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UNITED STATES et al. v. ORSHEK et al. No. 13512. Circuit Court of Appeals, Eighth Circuit Dec. 1, 1947. William H. Lamme, of Fremont, Neb., Walter Wm. Pearson and James R. Phillips, both of Chicago, 111., Spear & Lamme, of Fremont, Neb., and Murphy, Pearson & O’Connor, of Chicago, 111., for appellant. Arthur C. Sidner, of Fremont, Neb. (Yale C. Holland and Edwin Cassem, both of Omaha, Neb., Sidner, Lee & Gunderson and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, Neb., on the brief), for appellees. Before GARDNER, WOODROUGH and RIDDICK, Circuit Judges. GARDNER, Circuit Judge. This is an appeal from a judgment dismissing the complaint for improper venue. The parties will be referred to as they were designated in the trial court. The action was one brought under the so-called Miller Act, 40 U.S.C.A. §§ 270a to 270e, inclusive, in the name of the United States of America for the use and benefit of an employee of a subcontractor against the principal contractor and his surety on a bond given to the United States for the protection of persons supplying labor or material in connection with the construction of a war housing project near Alliance, Nebraska. Both defendants were served with summons at Omaha, Nebraska and the complaint was filed in the Omaha Division of the District of Nebraska. Defendants filed a motion to dismiss the complaint on the ground that it appeared from the complaint that all parties were non-residents of the District of Nebraska and that the contract on which the complaint was based was to be performed at Alliance, Nebraska, which is in the Chadron Division of the District of Nebraska, and that the complaint alleged that Francis R. Orshek, doing business as Francis R. Orshek Company, had his place of business in the City of Amarillo, Texas. There is no allegation in the complaint about the residence or citizenship of the defendant Orshek, other than the recital as to his principal place of business. It appears from the memorandum opinion of the trial court that it accepted as true defendants’ allegation that it appeared upon the face of the complaint that “All of the parties to the proceeding are non-residents of the State of Nebraska.” It appears from the record, however, that both defendants were served with process in the Omaha Division of the District of Nebraska, and there is no allegation in the complaint with reference to the citizenship or place of residence of the defendant Orshek. For the purposes of federal jurisdiction, a corporation has its home, residence, domicile and citizenship where it was originally incorporated and not elsewhere, regardless of ^where its principal place of business may be located, and there is no presumption that the principal place of business, either of a corporation or of an individual, is the residence of such corporation or individual. As the motion was interposed by the defendants the burden of proof was upon them to show that neither of the defendants was a resident of the Omaha Division of the District of Nebraska, and this they have failed to do. If we are to rely upon inferences, we should be warranted in inferring that the defendant Orshek resided where he was personally served with process. As there was no basis for the assertion that all of the parties to the proceeding are non-residents of the State of Nebraska, the very ground on which the motion was based failed. The Miller Act, so far as here pertinent, provides that, “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 for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit * * 40 U.S. C.A. § 270b(b). The State of Nebraska constitutes one district and, confessedly, the contract was to be performed within that district. It is, however, contended that the question of proper venue as between different divisions in the District Court for the District of Nebraska is governed by the Act of February 27, 1907, 34 U.S.Statutes at Large, Pt. I, p. 997 et seq., and particularly Sections 7 and 8. Section 7 of that Act provides, “That all civil actions not of a local nature, against a single defendant, must be brought in the division where said defendant resides * * Section 8 provides, among other things, “That all civil actions of a local nature at law or in equity shall be brought in the division where the subject-matter of the action is located; and where any such action is properly brought in such division and the defendant resides in a different division in said district from that in which the action is brought, the plaintiff may have original and final process against said defendant directed to the marshal of said district. * * * ” These provisions were not embodied in the Judicial Code as revised, codified and amended by the Act of March 3, 1911. The repealing provisions of the Judicial Code are contained in Section 297 of the Act, 36 Stat. 1168, and we think it was the purpose and intent of Congress to repeal Sections 7 and 8 of the Act of February 27, 1907. Section 297 of the Judicial Code repeals. “All Acts and parts of Acts authorizing the appointment of United States circuit or district judges, or creating or changing judicial circuits, or judicial districts or divisions thereof, or fixing or changing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven.” We think it clear that the venue provisions of the Act of February 27, 1907 were superseded by the venue sections of the Judicial Code, and that they were specifically repealed by reason of the Act codifying, revising, amending and adopting the Judicial Code. The parts of the 1907 Act establishing divisions in the District of Nebraska were revised and codified and were embraced in Section 93 of the Judicial Code, 28 U.S.C.A. § 173. This section does not contain any specific venue provisions, such as sections 7 and 8 of the Act of 1907, but the Judicial Code sections omit all venue provisions relating to particular states having districts containing more than one division, and in lieu of these provisions contain general venue section 53, 28 U.S.C.A. § 114, which is made applicable to all judicial districts of more than one division. This view is strengthened by reference to the note by the committee on revision of the Judicial Code, considered by the federal District Court of Virginia in United States v. Sutherland, 214 F. 320. The note reads in part as follows: “In a great many Acts creating divisions of districts there are to be found provisions requiring that suits not of a local nature shall be brought in the division in which one of the defendants resides, etc., and provisions, similar in character with respect to the removal of cases from state to federal courts. These provisions differ in some instances in the language used, but are substantially to the same effect. To avoid the necessity for repeating them in the various sections in which they otherwise should appear, and to avoid the necessity for repeating similar provisions in future Acts creating or changing divisions or districts, this section was inserted and made general in its application.” It seems clear from this note of the revisers that they intentionally omitted from the provisions of the Judicial Code the venue sections contained in the Act of February 27, 1907. Stephan v. United States, 319 U.S. 423, 63 S.Ct. 1135, 87 L.Ed. 1490. We pretermit consideration of the other questions argued because we cannot anticipate what further record may be made in the trial court when the case is again presented for further proceedings. The judgment appealed from is therefore reversed and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

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?

Alfred B. LEAVITT and G. P. Decker, Appellants, v. James Allen SCOTT, by and through his Guardian ad Litem Irma Lee Scott, Appellee. No. 7676. United States Court of Appeals Tenth Circuit. Nov. 4, 1964. Rehearing Denied Dec. 16, 1964. William K. Ris, Denver, Colo., and Don J. Hanson, Salt Lake City, Utah (Edward M. Garrett, Salt Lake City, Utah, on the brief), for appellants. Dwight L. King, Salt Lake City, Utah (Gayle Dean Hunt, Salt Lake City, Utah, on the brief), for appellee. Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges. LEWIS, Circuit Judge. This is a diversity action in which appellee, plaintiff below, was awarded a judgment totalling $93,489.40 for special and general damages found by a jury to have been suffered by him as the result of an automobile accident occurring upon a Utah highway. The determination of amount of damage was the only issue submitted to the jury, the trial court having directed a verdict upon liability. The appellants-defendants raise no appellate question concerning liability and direct their claims of error to the subjects of the jurisdiction of the trial court, the amount of the verdict, the instructions of the court on damages, and the rulings of the court affecting the scope of examination, particularly cross-examination of expert medical witnesses. Since each of appellants’ contentions, including that attacking jurisdiction, is interwoven in the factual background of Mr. Scott’s injuries, it is necessary to-narrate that background in some detail. Scott was injured in a head-on collision of two trucks. He suffered multiple injuries, the most severe of which was a cerebral concussion which rendered him totally unconscious for a period of three days and comatose for an additional five days. He was hospitalized for seventeen days and released to go back to work six weeks thereafter on May 12,1962. Before the accident, Scott had been employed as a truck driver and operator of a front end loader. He was described by his employer and by fellow employees as a skillful and generally superior employee and had been earning about $600 a month. Upon his return to employment his work proved unsatisfactory and his employer, after consulting with Scott’s personal physician, let him go. Scott’s difficulty lay in forgetfulness, unsureness and a noticeable inability to follow directions. He was considered a hazard to his own safety and to that of his fellow employees. Between his period of hospitalization and the time of trial, Scott was examined for the purpose of diagnosis or treatment by four physicians including specialists in the field of neurology, neuro-surgery and neuro-psychiatry. Each testified at the trial by appearance or deposition and each stated that Scott was physically able and that all standard neurological tests, such as an electroencephalogram, were negative. Each agreed that no residual brain damage was demonstrable through such tests and that the tests were of such reliability that the existence of organic brain injury not demonstrable by the tests was at least uncommon. However, plaintiff’s medical witnesses gave positive expert opinions that Scott was suffering from a brain injury attributable to his concussion that rendered him 50 to 100 per cent permanently disabled. Defendants’ expert did not express a contrary opinion as to the existence of organic injury but indicated that the negative results of neurological tests would lead him to consider the possibility of a purely psychological or emotional disturbance. No positive opinion was asked for or given and this medical witness indicated he was not qualified to and did not test for purely psychological disturbance. Psychometric tests were given by plaintiff’s witness, Dr. Troy, who found Scott’s ability to think greatly impaired and attributed the condition to a brain injury. No treatment was indicated or recommended by any of the medical witnesses at the time of trial. At the time of Scott’s accident, March 6, 1962, he owned a home at Moab, Utah, in which he resided with his wife and children. After his attempt and failure to return to and perform his original employment he was advised by his doctor, as a therapeutic measure, to seek outdoor work of an undemanding nature requiring a minimum of responsibility. In August of 1962 he obtained a job as a hand upon a Colorado ranch and in September the entire Scott family moved to Collbran, Colorado. The change of locale and the simplicity of work did not benefit Scott’s condition, his mental perplexity and lack of memory persisted, and in October, 1963, the family moved back to Moab, Utah. The defendant Leavitt is a citizen of Utah. At the time of the accident and at the time of trial the plaintiff was a citizen of Utah. This action was commenced January 25, 1963, at which time the plaintiff was residing in Colorado. The trial court specifically and specially found that in January of 1963 Scott was a citizen of Colorado and that the required diversity of citizenship conferred jurisdiction upon the court. We find the evidence to be substantial when considered in its most favorable aspect in support of the finding and consequently that the finding is not clearly erroneous. Rule 52(a), Fed.R.Civ.P. The motive of the family move to Colorado is not disputed — it was made upon medical advice for the potential benefit of Mr. Scott’s health. The evidence indicates an intent for permanent change, dependent, of course, upon Mr. Scott’s condition. The family belongings were moved; the children were enrolled in Colorado schools; Mrs. Scott entered into community and church activities in Collbran; and the Moab home was leased upon a yearly basis. Mrs. Scott testified that the Moab property was not sold outright because a continuing income was necessary for the family. Although the roots of the Scott family were undoubtedly in Utah and both Mr. and Mrs. Scott frankly entertained the hope that they could one day return to their home in Moab, the move to Colorado was still made with the then present intent of remaining and establishing a Colorado residence. Such is sufficient to establish citizenship within the requirements of 28 U.S.C. § 1332. Mid-Continental Pipe Line Co. v. Whiteley, 10 Cir., 116 F.2d 871. Since jurisdiction, once established, is not lost by a change in citizenship, Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d 1205, the trial court correctly found jurisdiction to exist. The determination of the extent or limitation upon examination or cross-examination of witnesses is a matter of discretion with the trial court and a technique so necessary for the proper control of a trial and so peculiarly suited for the judgment of the trial court that upon review that court’s rulings will not be upset except for a clear and prejudicial abuse of discretion. We do, however, agree with appellants’ suggestion that in the instant case the nature and extent of Scott’s claimed injury, being both severe and “uncommon,” dictates the right to a wide latitude in examination, particularly cross-examination, of the medical witnesses. Consequently, we have examined the record with an exacting eye in regard to each ruling and incident pointed to by appellants as constituting an unreasonable limitation upon counsel’s right to examine. Our review, tempered by the counter-rule that wide latitude of examination does not include promiscuous exploration or the insertion of suggested facts that do not exist, convinces us that the trial court did not abuse its discretion in such regard. For example, the trial court twice refused defendants’ counsel the privilege of examining the earlier witnesses concerning other accidents involving Scott that had occurred prior to the subject accident. Ruling the inquiries to be immaterial, the court invited counsel to make an offer of proof under Rule 43(c), Fed.R.Civ.P. No offer was made. And although later in the trial Scott testified upon cross-examination that he had been hit in the head by a riñe butt during World War II (without permanent effect), had been in a motorcycle accident, and had hurt his ankle in an industrial accident, the materiality of these incidents never appeared. The court also ruled out questions proposed by defendants’ counsel to expert witnesses which were premised in part by the assumption that Scott’s symptoms were existent to some degree prior to the subject accident. Except for some testimony that Scott was a quiet and withdrawn man both before and after his accident, there was no evidence or offer of evidence that his mental perplexity pre-existed the accident, and we find no error in the court’s ruling in this regard or in any other ruling upon the subject. Appellants’ contentions regarding error in the court’s instructions are generalized against overemphasis rather than specific error. Since the only issue submitted to the jury was that of damages, and the only evidence in the record concerning damages that needed detailed instruction pertained to charts of life expectancy and earning power, it was inherent in the case that such subjects dominate the instructions. We find no error in the instructions nor unfair dominance of subject matter. Appellants’ final contention that the verdict is excessive is without merit. The evidence is overwhelming that Scott suffered a severe and permanent injury that destroyed all or part of his earning capacity for his life expectancy of 31.6 years. The award of $92,000 general damage does not in any way indicate that an improper cause motivated the jury’s determination of the monetary fact of damage, absent which the finding is considered inviolate. Barnes v. Smith, 10 Cir., 305 F.2d 226, 228. The judgment is affirmed. . Counsel’s complaint regarding the scope of examination is perhaps not directed against the substance of the trial court’s rulings so much as it is against the manner of such rulings. The trial court exhibited flurries of impatience at defendants’ counsel’s persistence in obtaining definitions from the medical witnesses upon such terms as “functional” disorder. The court also complained to plaintiff’s and defendants’ counsel about the reading of a deposition that the court thought to be too long. We do not find such incidents to have had noticeable impact upon the conduct of the trial.

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?

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 250, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, E. H. Limited, d/b/a Earringhouse Imports, Intervenor. E. H. LIMITED, d/b/a Earringhouse Imports, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Service Employees International Union, Local 250, AFL-CIO, Intervenor. Nos. 77-1165, 77-1630. United States Court of Appeals, District of Columbia Circuit. Argued June 8, 1978. Decided April 25, 1979. Rehearing Denied May 31, 1979. David A. Rosenfeld, San Francisco, Cal., for petitioner in No. 77-1165 and intervenor in No. 77-1630. Robert V. Magor, San Francisco, Cal., for petitioner in No. 77-1630 and intervenor in No. 77-1165. Allison W. Brown, Jr., Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., with whom John S. Irving, Gen, Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief, for respondent. Claud L. Mclver, III, Atlanta, Ga., was on the brief for amicus curiae Florida Mining & Materials Corp., urging that the decision of the N. L. R. B. be overruled. Before WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and HOFFMAN, Senior District Judge. Of the United States District Court for the Eastern District of Virginia, sitting by designation pursuant to 28 U.S.C. § 294(d) (1976). WALTER E. HOFFMAN, Senior District Judge: Because “working time is for work,” we are here concerned with the issue of an employer discharging thirteen employees (essentially the entire production force) for leaving work during regular work hours, contrary to the express orders of the employer, for the purpose of attending en masse a representation hearing scheduled before the National Labor Relations Board (the Board), even though the employer had volunteered to permit one employee to attend the hearing in a representative capacity- Notwithstanding the findings and conclusions of the administrative law judge (ALJ) that the employer acted lawfully in discharging the thirteen employees for acting contrary to the employer’s orders, and with members Penello and Walther dissenting, the three-panel majority consisting of chairperson Murphy and members Fanning and Jenkins effectively reversed the ALJ by holding that the employer violated Section 8(a)(1) and (4) of the National Labor Relations Board Act, 29 U.S.C. § 158(a)(1) and (4), in discharging the employees. The Board also directed the issuance of a bargaining order to the employer for a violation of § 8(a)(5) of the Act “by refusing to recognize and bargain with the Union on or about August 1, 1974 (and thereafter).” The matter originated in San Francisco, California, where the employer conducts its place of business and the employees presumably reside. Following the filing of the charge against the employer on August 9, 1974, two amendments were permitted and the parties were at issue on January 24, 1975. Hearings before the ALJ were conducted on February 6-7, 1975. On April 3, 1975 the ALJ rendered his decision. The union, the employer and the Board’s general counsel each filed exceptions. The Board, holding the case until January 17, 1977, finally issued its order. The union, in No. 77-1165, sought review of a portion of the order in this court under § 10(f) of the Act, 29 U.S.C. § 160(f). In No. 77-1630, the employer filed a petition to review with the United States Court of Appeals for the Ninth Circuit, and the Board filed a cross-application to enforce the Board’s order of January 17, 1977. The United States Court of Appeals for the Ninth Circuit transferred the employer’s petition to this court pursuant to 28 U.S.C. § 2112(a). By order dated June 27, 1977 in this court the two cases were consolidated for all purposes, with the employer being granted leave to intervene in No. 77 — 1165, and the union being accorded the same right in No. 77— 1630. There is no material dispute as to the facts although, by reason of the language used in the majority and dissenting opinions, it would appear that there were varying inferences to be drawn from the evidence without specific findings as to credibility, thus making it necessary to elaborate in detail the pertinent evidence. For reasons stated herein, we disagree with the Board majority, substantially agreeing with the dissenting opinion, and grant the petition to review, set aside the order, and deny enforcement. I Petitioner, E. H., Limited d/b/a Earring-house Imports, is a California corporation with its principal place of business in San Francisco. It is engaged in the wholesale and retail sale of earrings and other custom jewelry items. It conducts its wholesale business from a warehouse where goods are received, packaged, and prepared for sale to stores. Nancy Pellerito, the petitioner’s vice-president and treasurer, maintains an office in the warehouse where the thirteen affected employees were engaged in production work. The bargaining unit is defined as all warehouse employees at the San Francisco distribution center, excluding office (clerical), guards and supervisors as defined by the Act. During the month of July, 1974, Pellerito was on vacation and did not return to work until July 29. By letter dated July 11, received by petitioner on July 15, Local 250 demanded recognition as the bargaining agent for the warehouse employees in the described unit. On the same day the letter was received (July 15), the union filed a representation petition with the Board for an election. The Board scheduled a hearing for August 8, 1974 in San Francisco. The letter to Pellerito was brought to the attention of petitioner’s president, Ben Lloyd, and its vice-president and secretary, Margaret Mahoma, neither of whom maintains an office at the warehouse nor takes any active part in the operation of the warehouse. On July 16, upon noting the contents of the letter, Lloyd telephoned the union and arranged a meeting for the following day, July 17. At that meeting the union again stated its claim of majority representation and suggested several methods for third-party resolution of that issue. Lloyd replied that the union would be advised of petitioner’s position but petitioner did not thereafter advise the union of its position with respect to the matter of recognition. In the interim, of course, the representation petition had been filed on July 15. The record is silent as to when petitioner received notice of the filing of the petition and Jacobs, the union’s business agent and organizer, did not testify that he advised Lloyd as to the filing of the petition. When Pellerito returned on July 29, she immediately convened a meeting of the warehouse employees. While there were apparently nineteen employees in the warehouse, the record is also silent as to how many were to be included in the bargaining unit although there are indications that sixteen would comprise the unit. It appears that at least three such employees were in a supervisory capacity. The Board, crediting Pellerito’s testimony, found that Pellerito told the assembled employees that she was aware of the union’s activities, asked them if they were sure that this particular union was the right union for them, added that she welcomed employees presenting their problems to her, and that she knew a hearing was scheduled. In response to a question as to whether the employees should attend the hearing, she replied that she “did not know.” She admits that she thereafter heard some employees discussing car pools for the purpose of attending the hearing but said nothing at that time. On August 2, 1974, Pellerito conducted a second meeting with the employees. She advised that she had learned that it was not necessary for all the employees to attend the hearing, thereby stopping production, and she preferred to keep the business running. She told the employees that they were not to go to the hearing even though several remonstrated that they wanted to go as the hearing concerned them. At the request of two employees another meeting was convened during the afternoon of August 6. Certain employees repeated their prior request to be permitted to attend the hearing en masse. Pellerito again stated that they could not go and she wanted production to continue. The employees replied that “it concerned them.” The following day, August 7 — and one day prior to the scheduled representation hearing — Pellerito again convened the employees and read to them this statement: Yesterday you said that you were all going to leave work to attend the NLRB hearing. I cannot allow all of the employees to go to the hearing since it will interrupt our production. Neither is it necessary for all of you to attend. We do have to continue business in this warehouse. I will agree to allow you to choose one' representative from among you to attend the hearing. Please let me know your choice. If all of you attend without our permission, you will be considered as having quit or will be considered for discharge. Likewise, Pellerito advised the employees that she wanted their breaks to remain normal and that they could have a few minutes to choose a representative to attend the hearing. Wendy Ball replied that it would take longer than five minutes. Pellerito responded by saying that the employees could choose a representative after work, and she urged them to return to work. One employee raised a question about making up the time, and Pellerito replied by stating that the company did not work overtime and it could not be done. On August 8 the hearing was conducted at the Federal Building in San Francisco. The thirteen employees left the warehouse around 9:25 a. m. to attend the hearing and signed out. None had permission to leave and no further notification was given to the employer as to any designated representative who would attend. No employee was called as a witness, nor did any employee testify at the hearing. The duration of the hearing, which apparently started around 10:15 a. m., was estimated at forty-five minutes to one hour. The employees were represented throughout the hearing by the union and its counsel. The employees returned to the warehouse about 12:50 p. m. and the time sheets reflect that at least one employee checked in, then went out to lunch, and returned at 1:51 p. m. The place of hearing was an approximate fifteen minute drive from the warehouse. Production halted after the employees left with the company losing at least thirty-nine hours of work. Three production employees remained but packaging was stopped. August 8 was a Thursday and it was the practice of store managers to telephone their orders on Tuesdays and Thursdays of each week, with orders to be called in before noon. Six orders were called in that morning but could not be filled that day. August 8 was a deadline for a gift show and new store display but was not met. The cost value of merchandise handled by production employees was estimated at $2000 per day. At approximately 3:00 p. m. on August 8, Pellerito summoned the thirteen affected employees and read to them the following statement: “Because you disobeyed the instructions I gave you yesterday and production here was stopped, I am dismissing you. You can pick up your checks in five minutes.” Among the thirteen discharged employees was one Podell as to whom the AU found that there was independent cause to discharge on August 7. Since Pellerito was dealing with a much larger problem, she did not discharge Podell on August 7 although she had decided to terminate Podell for unauthorized absenteeism, falsifying time sheets and poor work habits. Neither the majority nor minority dealt specifically with the Podell discharge; however she was included among the employees to be reinstated with reimbursement for her economic loss occasioned by the alleged wrongful discharge. II The Board’s position, as stated by its counsel in oral argument, is that these employees were involved in a function of the government when they attended this representation hearing; that an employee has a protected right under § 8(a)(4) to attend a Board hearing or to otherwise participate in Board processes; that the burden is on the employer to show a legitimate business justification to limit the right of employees to attend a hearing during working hours; and that the Board, in balancing the interests of the employer and employee, must look primarily to the economic loss to be sustained by the employer by reason of the absence of the employee. Although the majority decision mentions the fact that the employer agreed to let one representative attend the hearing, this fact is not discussed and apparently the Board deemed it irrelevant. In our view it is one of the controlling factors in this case. It is conceded by all parties that the employer emphatically denied the request of the thirteen employees to attend the representation hearing, and that no consent to attend was expressly or impliedly given, but the employer did offer to permit one representative as selected by the employees to attend. Members Fanning, Jenkins and Murphy comprised the majority in this case. The same panel, on May 5, 1978, decided Supreme Optical Company, Inc., 235 NLRB No. 193 (1978), a case in which a supervisor had granted permission for five employees to attend a hearing before the Ohio Bureau of Unemployment Services where, indeed, all five employees testified although no subpoena had been issued. The employees were discharged upon their return to work. In upholding the ALJ’s finding that the employer violated § 8(a)(1) of the Act by discharging five employees because they engaged in protected concerted activities, the Board noted in footnote 9: This is not to say that we would necessarily reach the same result if advance permission to be absent had not been sought and secured, since a balancing of the employee interest in protecting each other against the employer’s interest in efficiently operating his business is required and the securing of permission is an important element in making the balance. The Board majority does not mention its own precedents which support a contrary finding. In Standard Packaging Corporation, Royal Lace Paper Division, 140 NLRB 628 (1963), the precise question was presented. As stated by the Board, the issue in that case presented “a problem of accommodating the rights of employees in exercising rights guaranteed by the Act. with the rights of an employer to regulate his production requirements and maintain discipline over his employees.” Certain employees were anxious to attend a decertifi-cation hearing. The initial request, made the day before the scheduled hearing, was for six employees to be absent. The plant, manager questioned the necessity for so many attending, whereupon the request was reduced to four. After further discussion the number was reduced to two. These two attended, as did the remaining two who were later discharged. The Board said: We agree with the Trial Examiner that the Respondent did not engage in conduct proscribed by Section 8(a)(1), (3), and (4) of the Act, as alleged in the complaint, when it refused to grant employees Paul Murray and Charles Storms advance permission to absent themselves from work for purposes of attending a Board representation proceeding and thereafter discharged these employees when, in disregard of Respondent’s directions, they absented themselves from work to attend the hearing. The Board went further in Standard Packaging Corporation by noting (1) there was no evidence in the record which indicated any hostility on the part of the employer toward the collective activity of its employees, (2) there was no real need for their appearance at the hearing otherwise demonstrated to the employer at the time their release was requested or at any later date before their discharge, and (3) the disciplinary action taken against Storms and Murray was not in reprisal for any protected activity on their part, but was motivated solely by the employees’ absence from the plant in disregard of orders. Storms and Murray were not, of course, served with subpoenas. It is significant to note that Standard Packaging Corporation involved a plant of 195 employees. The general counsel argued that a request that four employees be permitted to be absent from work for a two hour period was a reasonable request and the burden of explaining its denial rested upon the employer; and further that, as a “substantial production problem” was neither anticipated nor created by the absence of two additional employees on the hearing day, it was proper to infer that the employer, having failed to meet its burden in that regard, was motivated by a desire to obstruct the decertification activities of its employees. The Board did not discuss this contention other than to mention that the employer exhibited no hostility toward the collective activity of its employees. The trial examiner disposed of it by saying that no prima facie case had been made out, the burden of going forward with the evidence did not shift to the employer, and the reasonableness of the employer’s action was but one factor to be weighed in resolving the question of motivation. It is indeed strange that the Board majority did not see fit to mention Standard Packaging Corporation since it is factually identical and involves the same principles of law. Obviously, the majority had examined the dissent as it is referred to by the majority. Without at least one overruling decision it is impossible for an ALJ or the legal field to keep abreast of the Board’s views. Ill Manifestly, the Board majority is attempting to enlarge, or take out of context, the decision in N.L.R.B. v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972), where the Supreme Court upheld the Board for a violation of § 8(a)(4) of the Act when employees were discharged for giving written sworn statements to a field examiner investigating an unfair labor practice charge filed against the employer, although the employees neither filed the charges nor testified at a formal hearing thereon. While the principal issue was whether § 8(a)(4) encompassed the discharge of employees for giving written sworn statements to Board field examiners, the Court does consider some aspects of the provisions of § 8(a)(4) which protect an employee from discharge or discrimination if the employee has “given testimony under the Act.” In holding that the existence of a subpoena is not crucial, the Court said: “Under this reasoning, if employees of Scrivener had been subpoenaed, they would have been protected. There is no basis for denying similar protection to the voluntary participant.” But the Supreme Court in Scrivener was not confronted with wholly unnecessary employees who could add nothing to the hearing and whose only interest was that “the hearing involved them.” It is apparent from the briefs, argument and common knowledge that Board representation hearings are not complex and, if the evidence develops a need for further testimony, the hearing is recessed, or a telephone call to the employer brings forth the additional required testimony of one or more employees. To uphold the Board majority in this case would result in complete disruption of an employer’s productive ability. Presumably, business enterprises are operated in the expectation of some profit. The Board majority has invited employees — indeed all employees — to attend Board representation hearings during normal working hours and in violation of an express prohibition against leaving work at that time without the benefit of a subpoena or other showing that the employee’s presence is required, unless the employer, upon whom the burden of proof is placed, can show substantial and legitimate business justification for requiring the employees to remain on the job. We cannot sanction such a pronouncement even though we acknowledge the Board’s expertise in the field. In effect, as in this case, even where the employer’s entire production line is shut down by reason of a mass exodus of employees, the Board majority suggests that this is not a substantial and legitimate business justification. Bearing in mind that “working time is for work” we agree with the dissent that, absent any subpoena or call from the Board to attend a hearing “unless employees can demonstrate substantial reasons for attending a Board hearing, unless there are compelling reasons urging their attendance, the employer’s right to maintain normal operations should, and does, take precedence over the employees’ right to leave work during regular working hours for such attendance or for any other purpose except that of legitimate strike activity” excluding, of course, an emergency with which we are not concerned in this case. In placing the burden upon the employer to come forward with evidence of legitimate and substantial business justification for- its act — even if the.employer is free from violation of the Act and there is no explicit discriminatory motive shown— the Board majority relied upon N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). The Great Dane Trailers ease was a § 8(a)(3) discrimination case and did not attempt to deal with a § 8(a)(4) situation. Manifestly, from the majority and dissenting opinions, it is clear that the rule announced in Great Dane Trailers was intended to be limited to § 8(a)(3) violations. We do not feel free to extend the same rule to an alleged violation of § 8(a)(4) as was done by the Board majority. The Board majority has seized upon the language in Great Dane Trailers, taken out of context, to support its view that the burden is upon the employer to come forward with evidence of “legitimate and substantial business justification” for its conduct if it is not to be found to have violated the Act. We do not agree that Great Dane Trailers can be given this interpretation in a § 8(a)(4) case where discrimination is not in issue. The precedent authorities in Great Dane Trailers are, in the main, Labor Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963), and Labor Board v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Each is a § 8(a)(3) case where “both discrimination and a resulting discouragement of union membership are necessary,” Labor Board v. Brown, supra, at 286, 85 S.Ct. at 985, and the “ ‘real motive’ of the employer in an alleged § 8(a)(3) violation is decisive.” Id. at 287, 85 S.Ct. at 985—986. In Brown, the Supreme Court went further and said: “When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers’ conduct is prima facie lawful.” Bearing in mind that the employer in the present case had volunteered to permit one representative to attend the hearing, and considering the nature of a Board representation hearing with its flexible alternatives with respect to a witness testifying, it is indeed difficult to find that the resulting harm is anything more than de minimis. Assuredly, the employer’s conduct was prima facie lawful and, we feel, convincingly so. IV Assuming arguendo that the Board majority was correct in applying the burden of proof rule in a § 8(a)(4) case and imposing this burden upon the employer, we nevertheless feel that the Board majority findings on the ultimate factual question are not supported by substantial evidence on the record considered as a whole. We are not unmindful of the fact that there is only limited judicial review of such findings but the Supreme Court in Labor Board v. Brown, supra, at 290-292, 85 S.Ct. at 988, pointedly stated that the phrase “limited judicial review” did not mean that the balance struck by the Board was immune from judicial examination and reversal in proper cases, and “where, as here, the review is not a question of fact, but of judgment as to the proper balance to be struck between the conflicting interests, the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” Such is the case before us in examining the attempts to balance the conflict of interest between the employer and employees. The Board majority agrees that “there were no terribly important reasons or exigencies crying out for employee attendance at the hearing,” but they hold that since the employees were engaged in protected activity, an employer’s interference with it requires more justification than his performance or inconsequential inconvenience. The majority refers to three reasons why the employer has not shown that the absence of thirteen of the sixteen production employees would not cause anything more than inconsequential inconvenience, although they at no time challenge the fact that production stopped when the thirteen employees walked out to attend the hearing. The majority suggests (1) Pellerito never told the employees that she feared serious business or economic consequences by reason of the employees’ absence from work; (2) Pellerito rejected the employees’ offer to make up the time lost; and (3) her discharge of the employees at 3:00 p. m., rather than waiting until 5:00 p. m. quitting time, was inconsistent with her professed concern about maintaining production. We think these arguments are specious. The majority found that Pellerito did say that “she wanted production to continue and the business to go on.” What further conceivable reason need an employer give to employees who express a desire to absent themselves from work en masse for no apparent necessity? With a large and wealthy corporate employer, a loss of one-half day may, in fact, be miniscule but it is assuredly the employer’s right to see to it that production is not stopped. The offer to make up the lost time is also a decision vested in the employer. While the Board attempts to emphasize this point, we note in footnote 5 of its majority decision it is said: “Ball was not, of course, proposing that the employees work overtime.” In one breath the Board majority finds that a specific offer to work overtime was made; in another comment the same majority holds that the proposal to work overtime was not specific. Lastly, the Board majority cites the 3:00 p.m. discharge as evidence that Pellerito was not concerned with the extent of production. When confronted with obvious insubordination, and to prevent a defense of condonement, it is essential that the employer act promptly. The ALJ held “the fact of the loss was clearly established at trial.” The Board majority stated that there was an “insufficient basis on which to predicate any conclusion that business or economic hardship or loss was a direct consequence of the employees’ leaving work.” The dissenting members stated, and we agree: “The successful functioning of a business enterprise requires, rather obviously, the presence of employees on the job during working hours. It would also seem equally evident that employee absence is inherently disruptive and unexcused absence has, of course, usually been considered, absent a legitimate strike, proper grounds for discharge.” Thus, we conclude that, assuming arguendo the correctness of the Board majority ruling that the burden was on the employer in this § 8(a)(4) case, under the undisputed facts in this case, the employer met the burden by the admitted fact that all production stopped and a loss was inevitable. V The Board urges that the employer improperly refused to accord recognition to the union after being advised that the union had received a sufficient number of executed authorization cards. Stated otherwise, the Board asserts that had the employer agreed to the procedures available for determining whether the union represented a majority of the employees, no representation hearing would have been required and the employees would have remained at work on August 8. This issue was resolved in a case from this court, Linden Lumber Division v. N. L. R. B., 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). It is not the employer’s obligation to petition for an election, although it has the option to do so. In the present case the union had already filed on July 15 a representation petition for an election — the same day the employer initially received word of the executed authorization cards. In N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 603, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court held the election process had acknowledged superiority in ascertaining whether a union has majority support. Since the only claimed unfair labor practice on the part of the employer centers around the discharge of the thirteen employees — a charge which we have rejected — there was no obligation on the employer’s part to bargain. No. 77-1165, Petition for Review and Enforcement DENIED. No. 77—1630, Petition for Review GRANTED, Order VACATED, and Enforcement DENIED. . See concurring opinion of Mr. Justice Powell in Beth Israel Hospital v. N.L.R.B., 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). See also Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 617 (1962); N.L.R.B. v. Essex Wire Corp., 245 F.2d 589, 593 (9th Cir. 1957). . As codified in 29 U.S.C. § 158, § 8(a)(1) and (4) of the National Labor Relations Act read: (a) 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 157 of this title; (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this sub-chapter. . Since this finding was principally related to the discharge of the thirteen employees, it will only be touched upon in this opinion by reason of our disposition of the § 8(a)(1) and (4) alleged violations. . Since No. 77-1165 involves only an alleged error as to the date back pay should become effective and whether the discharge of the thirteen employees violated § 8(a)(3) of the Act, and by reason of the conclusions herein reached, we deem it unnecessary to give further consideration to No. 77-1165 for the reason that our action in No. 77-1630 will render the back pay issue moot. The employer will be referred to as “petitioner” and Local 250 will be specified in that name or as the “union”. . The letter addressed to Pellerito (but not seen by her until her return from vacation) merely advised that a majority of the warehouse employees in the distribution center had designated the union as the authorized representative, and that the authorization cards could be inspected by a neutral party. It also advised Pellerito to reply within 48 hours. . There is some indication from the record that the hearing was originally scheduled for August 6, but it was postponed to August 8. This is of no importance to the decision. , Lloyd advised Jacobs, the union organizer, that he was not familiar with the subject matter. . The ALJ specifically credited Pellerito’s testimony throughout. The Board, while pointing to certain conflicts in the evidence, rendered its decision and order predicated upon Pellerito’s testimony. Thus, for our purposes, there is no dispute as to the facts. . On or about August 2, 1974, petitioner posted four “long-established” rules against solicitation and distribution proscribing (1) solicitation by employees during working time, (2) solicitation by employees on company premises after their shift’s end, (3) distribution of literature of any type during working time, and (4) distribution of literature in working areas. The Board majority agreed with the ALJ that only the second rule violated the Act. The validity of the posted rules is not at issue in this proceeding and we may assume that the Board majority ruling remains in full force and effect as to these rules. . Also, on August 6, at approximately 9:10 a. m., during working hours, about half of the production employees left the warehouse to be photographed at the urging of the union representatives. They were advised by a supervisor that they could not leave during work time. Some employees replied that they would make up the time and left the warehouse, absenting themselves from work for about ten to fifteen minutes. Since the employees were not discharged for this activity, we see no need to discuss it further. . The Board gives credence to testimony which indicates that, after Pellerito’s offer to permit one representative to attend, Wendy Ball contacted the union’s agent as to this latest development. She was advised by the union organizer that it was probably too late to issue any subpoena for the employees, that their testimony might prove necessary and that, in any event, the Act protected their right to attend. That night the employees unanimously voted to attend the hearing en masse. The employer was not advised as to this conversation with the union agent. . Prior to leaving for the hearing, a supervisor asked who their representative would be. Wendy Ball replied that they were all going to the hearing, that it concerned them. The supervisor referred the employees to what Pelleri-to had said on the previous day, that the company could not stop production, and warned the employees that if they went to the hearing they would be considered as quitting. The employees nevertheless left for the hearing. . Counsel for the union conceded at argument that he did not attempt to interview any of the thirteen employees at any time prior to or during the hearing. There was some evidence that notes were handed to union counsel, the contents of which are unknown. . On August 3 the time sheets reveal that Podell signed in at 9:00 a. m. and out at 5:00 p. m. She actually left early. When questioned on August 6 why her workload was so small, Podell replied that she left at 11:30 a.m. She indicated that she was sick and not responsible for her actions. Pellerito gave her a warning which was her third warning in three successive months. On August 7, Podell left work at 1:40 p. m., again without permission. Pellerito then decided to terminate her services but, on August 8, Podell was among the thirteen employees attending the hearing. . The minority, members Penello and Walther, do discuss these prior decisions. Apparently, the Board majority is now seeking to reverse itself. . Member Fanning, one of the majority herein, participated in the decision in Standard Packaging Corporation, Royal Lace Paper Division, supra. . As in the case before us where there is not the slightest intimation of animus union activity. Even the majority decision does not suggest any animus. . In the present case we have sixteen production line employees with thirteen having attended the hearing. . The Board’s brief in the present case does attempt to distinguish Standard Packaging Corporation by saying that the employer and union had agreed that two named employees would attend and that any others who were needed at the hearing would be released from work. This is not what was said as indicated by the decision which states: “Wolff [the plant manager] again made it clear, however, that, if he were officially notified of the need for additional employees’ appearance at the hearing, he would excuse not only these individuals but ‘the whole plant.’ ” In the present case the only justification stated by the thirteen employees was that “the hearing involved them” or that they were “interested”. They did not even advise the employer that the union organizer had suggested their attendance. . Ball testified that the employees wanted to attend the hearing “to talk about our own jobs” and to give testimony “for our own job description.” Pellerito denied that Ball had made this statement to her. The Board did not resolve this conflict in testimony except to note that Ball’s testimony was essentially uncontradict-ed. The ALJ found that Pellerito knew nothing of the allegation that she planned to attack the rank-and-file status of the employees at the hearing, and the record did not support such a contention and was discredited. According to Ball, she overheard a conversation between Pellerito and an individual Ball assumed to be the employer’s attorney which indicated that an effort would be made to eliminate twelve employees from the bargaining unit. Both Ball and Pellerito occupied enclosed offices, separated by approximately 200 feet. The alleged conversation was not included in Ball’s post-representation hearing affidavit to the Board given on August 13. Pellerito, while admitting that she had discussed the case with her attorney at his office, expressly denied discussing the case with her attorney at the warehouse or by telephone. Since the ALJ fully credited Pellerito’s testimony, and the Board did not see fit to expressly deal with this factual situation, we can assume that the Board’s established policy not

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"?

Ruby VELANDRA and Roy Velandra, Plaintiffs-Appellants, v. REGIE NATIONALE DES USINES RENAULT and Renault, Inc., Defendants-Appelie-es. No. 15362. United States Court of Appeals Sixth Circuit. Sept. 10, 1964. David R. Goldberg, Toledo, Ohio, Kitchen & Kitchen, Toledo, Ohio, on the brief, Cubbon & Rice, Toledo, Ohio, of counsel, for appellants. Frank E. Kane, Toledo, Ohio, Ward, Plunkett & Cooney, Detroit, Mich., on the brief, Eastman, Stichter, Smith & Bergman, John R. Eastman, Toledo, Ohio, of counsel, for appellees. Before McALLISTER and O’SULLIVAN, Circuit Judges, and WILSON, District Judge. FRANK W. WILSON, District’Judge. In these products liability lawsuits it is alleged that the plaintiff, Ruby Velandra, sustained severe and permanently disabling personal injuries, and that the plaintiff, Roy Velandra, sustained medical expenses, loss of services, and loss of consortium, all as the result of an automobile accident in Michigan caused by defective brakes in a Renault automobile manufactured in France by the defendant, Regie Nationale des Usines Renault (Regie), and imported into the United States by the defendant, Renault, Inc. (Renault), before ultimate sale to the plaintiffs in Ohio. The plaintiffs commenced their suits in the United States District Court for the Eastern District of Michigan, for negligent manufacture and for breach of express and implied warranties. The complaints claim federal jurisdiction upon the basis of diversity of citizenship and amount in controversy, alleging that the plaintiffs are citizens of Michigan, that defendant Renault is a New York corporation, and that defendant Regie is a French corporation. Neither defendant having a place of business or agent for the service of process in Michigan, service was obtained upon the Secretary of State for Michigan, “pursuant to the appropriate statutory provision for substituted service.” Both defendants moved to dismiss for lack of personal jurisdiction, and the District Court, after the submission of affidavits and counter-affidavits, found that it did lack jurisdiction over the defendants, sustained the motions, and dismissed the complaints, all without filing a written opinion. These appeals followed. Some argument has been devoted to the question whether, under the principle of Erie R. Co. v. Tompkins, state law rather than federal law governs the personal jurisdiction of a federal court over foreign corporations in diversity cases. This vexing question remains a source of controversy in other jurisdictions, but was recently resolved in favor of state law by this Court. In determining the personal jurisdiction of a federal court located in Michigan over these foreign corporations, this Court must therefore look to the law of Michigan. The law of Michigan in this regard may be found in the case of Jennings v. WSM, Inc., where the Supreme Court of Michigan confirmed its adherence to the rule of the landmark case of International Shoe Company v. Washington. In that case the United States Supreme Court held that under the Due Process clause of the Fourteenth Amendment of the United States Constitution a state court may exercise personal jurisdiction over a foreign corporation, having such “minimum contacts” with the State of the forum that the exercise of jurisdiction does not offend “ ‘traditional notions of fair play and substantial justice.’ ” The Court must therefore first look to see what “contacts” the defendants each have with the State of Michigan under the facts of this case. It is apparent that any definition of “minimum contacts,” if not also any definition of “traditional notions of fair play,” will require an evolutionary process rather than a quick definitive statement, as these terms involve subjective judgments that must be based upon a multitude of variant factors as they are presented in a multitude of cases. The existence or nonexistence of the necessary “minimum contacts” to justify the upholding of personal jurisdiction over foreign corporations under the Fourteenth Amendment as interpreted in the International Shoe Company ease must obviously be woi’ked out with reference to the facts of a particular case rather than in a statement of dogmatic rules of all-inclusive principles. Affidavits filed by the parties in support of and in opposition to the motions •to dismiss below establish the general nature and extent of the defendants’ activities within and their relationship to the State of Michigan. The following appear to be the facts upon which this opinion must be based. Regie is a French corporate manufacturer of Renault automobiles. Regie exports its automobiles into the United States through Renault, a New York corporation which is a wholly owned subsidiary of Regie and the exclusive American importer of Renault automobiles. Renault in turn distributes these automobiles to dealers throughout the United States by means of regional distributors, one of which at the time of the commencement of these suits was Renault Great Lakes, Inc. (Great Lakes), an Illinois corporation which is wholly owned by Renault, and which is the Renault distributor for the midwestern region of the United States, including the State of Michigan. Great Lakes carries on substantial economic activities in Michigan, among other things locating and granting franchises to Michigan dealers, and delivering to those dealers the automobiles it has purchased from Renault. The only evidence put into the record with regard to the volume of sales of Renault automobiles in Michigan is that there are three dealers in Detroit, one of whom sells a “substantial” number of Renaults, resulting in gross sales “upward” of $100,000.00. There is also evidence that at the time of a dealer retail sale to an individual in Michigan, an express written warranty in Regie’s name is delivered to the purchaser. Do the above facts establish such “minimum contacts” with the State of Michigan as to satisfy “traditional notions of fair play” so as to properly subject the defendant foreign corporation to the personal jurisdiction of the courts of Michigan? Considering first the chain of corporate ownership, Regie owns 100% of the stock of Renault, and Renault in turn owns 100% of the stock of Great Lakes, which, as indicated, carries on substantial economic activities within the State of Michigan. However, the mere ownership by a corporation of all of the stock of a subsidiary amenable to the jurisdiction of the courts of a state may not alone be sufficient to justify holding the parent corporation likewise amenable. In the early ease of Cannon Mfg. Co. v. Cudahy Packing Co., the Supreme Court held that the activities of a subsidiary did not subject its parent corporation to the personal jurisdiction of local courts. It should be noted that the ruling of the Cannon case, if not qualified by the subsequent ruling in the International Shoe Company case, has been at least qualified in later cases holding foreign corporations amenable to the personal jurisdiction of local courts because of the local activities of subsidiary corporations upon the theory that the corporate separation is fictitious, or that the parent has held the subsidiary out as its agent, or, more vaguely, that the parent has exercised an undue degree of control over the subsidiary. Unfortunately, such reasoning in these and similar cases, fails to explain the decisions of the courts adequately. Thus the law relating to the fictions of agency and of separate corporate entity was developed for purposes other than determining amenability to personal jurisdiction, and the law of such amenability is merely confused by reference to these inapposite matters. The International Shoe decision represented an effort by the Supreme Court to clarify' earlier concepts in the area of the amenability of foreign corporations to the personal jursidiction of state courts by sweeping aside any lingering notions that the earlier shibboleths of “consent,” “presence,” and “doing business” were self-defining abstractions, and by redefining those tests in terms of “minimum contacts.” Following this decision it would seem appropriate, for the purpose of determining the amenability to jurisdiction of a foreign corporation which happens to own a subsidiary corporation carrying on local activities, to inquire whether the parent has the requisite minimum contacts with the State of the forum. Thus the ownership of the subsidiary carrying on local activities in Michigan represents merely one contact or factor to be considered in assessing the existence or non-existence of the requisite minimum contacts with the State of Michigan, but is not sufficient of itself to hold the present foreign corporations amenable to personal jurisdiction. Another contact alleged to exist between the defendant and the State of Michigan is the sale of the defendant’s-product, Renault automobiles, within the State of Michigan and the delivery within the State of a warranty thereon, to which warranty the defendant Regie is a party. It is proper to note that it has come to be increasingly recognized that activities— in particular sales of products — outside a state resulting in consequences within the state may subject the actors to the personal jurisdiction of the courts within the state. In this regard the plaintiff relies strongly upon the case of Regie Nationale des Usines Renault v. The Superior Court of the State of California, 208 Cal.App.2d 702, 25 Cal.Rptr. 530, wherein the Court held these same defendants to be subject to the personal jurisdiction of a court in California under somewhat analogous circumstances. While the legal principles there enunciated as distinguished from the factual situation there before the Court, may be relevant to a resolution of the legal issues of “minimum contact” and “fair play’^ in this case, under the facts as they ap-' pear in the record of this case we are of the opinion that no sufficient showing has-been made with reference to sales of the-defendant’s products within Michigan to> establish such minimum contacts within the State as to warrant subjecting the defendants to the personal jurisdiction of a court in Michigan. In determining whether minimum contacts exist on the basis of the presence or sale of a product within a state, the extent of the contact is related to a number of factors, including the number and value of sales within the state, their ratio to the total market for like or similar products within the state, the quantity or value of the defendant’s production, the percentage of the total output sold within the state, as well as the nature of the product, particularly with reference to whether it is inherently dangerous or not. Obviously the manufacturer of a product that has a significant market within a state has more contact with that state than one whose product only has a minimal market. Likewise, a manufacturer whose total product or a large percentage of whose product is sold within a state has a more significant contact with that state than would be the case where only casual sales were made within the state or only a small portion of the manufacturer’s production was sold within the state. Finally, the nature of the product may well have a bearing upon the issue of minimum contact, with a lesser volume of inherently dangerous products constituting a more significant contact with the state than would a larger volume of products offering little or no hazard to the inhabitants of the state. A careful and discriminating analysis of the nature and quality of the defendants’ contacts with the foreign state must be made in each case. All that appears in the record in this case is that three dealers for the sale of Renault automobiles exist in the City of Detroit and that one of these sells a “substantial” number of Renault automobiles, having gross sales of “upwards” of $100,000. This record of dealerships and sales, even when considered together with the existence of a subsidiary corporation doing business within the State and the distribution of warranties with automobiles sold, does not in our opinion establish a sufficient showing of contacts between the defendants and the State of Michigan so as to constitute the minimum contacts essential to permit the exercise of personal jurisdiction in that State over these foreign corporations under the International Shoe Company case. The judgment of the Trial Court is therefore affirmed. . The complaint contains no allegation of the principal place of business of each defendant. Title 28 U.S.C.A. g 1332 (c). On the other hand, it clearly appears from affidavits filed below that nei-tlier defendant in fact has its principal place of business in Michigan. Because defective allegations of jurisdiction in a complaint may be amended at any time, Title 28 U.S.C.A. § 1653, no purpose would be served by dismissing the suits for lack of proper allegations of diversity of citizenship at this time. . There is no quotation of or citation to the particular Michigan statute under which substituted service of process was made. The omission is not crucial, because the Michigan standard for the exercise of judicial in personam jurisdiction over foreign corporations clearly appears in a recent Michigan case. Note S, infra. In any event, the appellees have not challenged the statement in the appellants’ brief that “There is no issue with regard to the procedure of obtaining service.” . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. . See e. g., First Flight Co. v. National Carloading Corp. (S.D.,E.D.Tenn., 1962), 209 F.Supp 730; Green, Federal Jurisdiction in Personam of Corporations and Due Process, 14 Vand.L.Rev. 967 (1961). . E.g., Arrowsmith v. United Press International (2 Cir., 1963), 320 F.2d 219, overruling Jaftex Corp. v. Randolph Mills, Inc. (2 Cir. 1960), 282 F.2d 508, 516 (alternative holding); Comment, Federal Jurisdiction over Foreign- Corporations and the Erie Doctrine, 64 Col. L.Rev. 685 (1964). See esp. Judge Clark’s vehement dissenting opinion in the Arrowsmith case. . Smartt v. Coca-Cola Bottling Corp. (6 Cir., 1963), 318 F.2d 447. . The Court may observe, incidentally, that some question might have been raised as to whether Regie, as the corporation of a foreign nation rather than a foreign state, should be treated differently than Renault. In a recent article Professor Elliott E. Cheatham has observed as follows: “In this country, the principles of conflict of laws developed primarily in interstate matters. * * * When international eases came up, the principles developed in the intranational cases were transferred almost unquestioningly to the international matters.” [Cheatham, Some Developments in Conflict of Laws, 17 Vand.L.Rev. 193, 200 (1963).] Professor Cheatham goes on to approve this practice, however. After having noted that the case of McGee v. International Life Ins. Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) had explained recent expansions in state court jurisdiction in terms of “the fundamental transformation for our national economy over the years,” “increasing nationalization of commerce,” and “modern transportation and communication,” which make it “less burdensome for a party sued to defend himself in a State where he engages in economic activity,” [Chea-tham, Some Developments in Conflict of Laws, 17 Vand.L.Rev. 193, 195 (1963).] Professor Cheatham declares that the practice of applying interstate principles to international problems “is fortunate in these days of expanding international relations.” Ibid., 200. On another point, Professor Cheatham refers to “the question whether international conflict of laws is governed by state law or by federal law,” and states as follows: “It has been widely assumed that except for treaties and federal statutes it is governed by state law, thus varying from state to state. * * * The question cannot be answered yet.” [Ibid., 200-201.) Because the parties have raised no question as to the foregoing matters, and in view of the Professor Cheatham’s comments thereon, the Court mentions these matters only in passing, and will proceed to apply the law of Michigan to Regie as well as to Renault. . 369 Mich. 210, 119 N.W.2d 598, 599 (1963). . 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). . 326 U.S. 310, 316, 66 S.Ct. 154, Michigan’s extension of its jurisdiction over foreign corporations to the limits permitted by the Fourteenth Amendment by no means necessarily signifies that the Michigan standard in this regard is identical to what the federal standard would be if the Erie principle were held inapplicable to questions of personal jurisdiction over foreign corporations in diversity cases. The statute from which the federal standard might be derived [Arrowsmith v. United Press International, (2 Cir. 1963), 320 F.2d 219, 242 (dissenting opinion)], and/or the Fifth Amendment [First Flight Company v. National Carloading Corporation, (S.D., E.D.Tenn., 1962), 209 F.Supp. 730, 738], would mark the limits upon personal jurisdiction, rather than the Fourteenth Amendment. . The defendants have emphasized that Regie is not a private corporation, but rather is “An instrumentality of the Government of the Republic of France under the direction of a President General Manager appointed by the French Government, and controlled by a board of directors some of whom are appointed by the Executive Department of the French Government and some of whom represent the financial and business community of France and the users of Renault’s products.” The defendants have advanced no argument, however, that Regie should be treated differently than a private corporation for purposes of passing upon its amenability to the jurisdiction of the District Court. Compare Restatement, Foreign Relations Daw of the United States, sec. 72 (1962), with Cheatham, Some Developments in Conflict of Laws, 17 Vand.L. Rev. 193, 200 (1963) : “[T]he great increase of commercial activities by foreign nations and national agencies requires modification of the old principle that a foreign nation is immune from judicial jurisdiction.” . Snch evidence appears from the affidavit of a Renault dealer in Detroit. This affidavit also recites that the af-fiant therein has visited the manufacturing facilities and offices of Regie in France, “partially at the expense of” Regie, and that representatives of Regie and of Renault have from time to time visited his facilities in Detroit “for the purpose of visitation.” But this would appear to be too general an allegation to be significant. This affidavit was filed by the plaintiff, not at the original hearing on the motion to dismiss, but in support of a motion to rehear. It was, however, before the Trial Court at the time it entered its finding and order that the petition to rehear was without merit. . See Pergament v. Frazer, 93 F.Supp. 9 (E.D.Mich., 1949). . 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925). . See, e. g., Intermountain Ford Tractor Sales Co. v. Massey-Ferguson Limited (C.D.Utah, 1962), 210 F.Supp. 930. Tlie plaintiffs in tbe present case allege a fictitious corporate separation between Renault and Regie, but tbe record contains no evidence whatever that would justify the piercing of corporate veils, or the disregarding of corporate entities, under the principles traditionally associated with these matters. . See, e. g., Curtis Publishing Company v. Cassel (10 Cir., 1962), 302 F.2d 132. . See, e. g., Focht v. Southwestern Skyways, Inc. (Colo., 1963), 220 F.Supp. 441. . See Foster, Personal Jurisdiction Based on Local Causes of Action, 1956 Wis.L. Rev. 522, 563; Developments in the Law —State-Court Jurisdiction, 73 Harv.L. Rev. 909, 933 (1960); Annot., 18 A.L.R. 2d 187. . Developments in the Daw — State-Court Jurisdiction, 73 Harv.L.Rev. 909, 933 (1960). . See McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). . The degree or extent of the ownership of such a subsidiary may also be important in assessing the nature and quality of the requisite minimum contacts of a parent corporation with a state in which its subsidiary is carrying on local activities. The parent might, for example, own only 99% or 51% or a minority but nevertheless controlling interest in the subsidiary, or the ownership might be divided in various proportions between two or more related or unrelated corporations, or between one or more corporations and one or more individuals, and so on. The point is, of course, that an analytical rather than a mechanical or formalistic approach is appropriate upon the issue of personal jurisdiction based upon ownership of the stock of a corporation carrying on local activities. . Compare Gray v. American Radiator and Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), with Hellriegel v. Sears Roebuck & Company (N.D. Ill., 1957), 157 F.Supp. 718. See also Singer v. Walker, 21 A.D.2d 285, 250 N.Y.S.2d 216 (1964).

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.

Joseph R. PALINO, et al., Plaintiffs, Appellants, v. Edwin T. CASEY, et al., Defendants, Appellees. No. 81-1310. United States Court of Appeals, First Circuit. Argued Sept. 18, 1981. Decided Nov. 23, 1981. Miriam Vock Sheehan, Boston, Mass., with whom Richard W. Renehan and Hill & Barlow, Boston, Mass., were on brief, for plaintiffs, appellants. Arthur J. Flamm, Boston, Mass., with whom Flamm, Kaplan, Paven & Feinberg, Boston, Mass., were on brief, for defendants, appellees. Before BOWNES and BREYER, Circuit Judges, and MURRAY, Senior District Judge. Of the District of Massachusetts, sitting by designation. BREYER, Circuit Judge. Following a restrictive change in the eligibility rules of an employee “health and welfare” fund, appellants were not allowed to renew a medical insurance policy which they had previously bought from the fund. They did not secure other insurance when their coverage under the fund expired. They thus had to pay personally for the medical costs associated with the birth of their child several months later. To recover those costs, they brought this action against the fund’s trustees. They claim that the trustees failed to give them adequate notice of the eligibility amendment, thereby violating their fiduciary duty to the fund’s participants. The district court rejected this claim, and we affirm. I The Boston and Eastern Massachusetts Carpenters Health and Welfare Fund (the “Fund”) provides medical insurance coverage for employees whose employers contribute to the Fund under the terms of a collective bargaining agreement. The insurance coverage runs for periods of six months at a time. From the Fund’s inception in 1955 until 1973, an employee was eligible for a six-month period of insurance only if he worked a specified number of hours in “covered employment” — employment for which his employer was contributing to the Fund — during a prior six-month qualifying period. In 1973, the Fund’s Trustees liberalized the eligibility rules by adopting a “self-payment” provision. The provision was designed to cushion the impact on the Fund’s beneficiaries of high unemployment in the construction industry. It enabled an employee whose eligibility would have terminated because he had not worked enough hours in the previous qualifying period to pay an appropriate premium to the Fund himself, and thereby to continue his coverage for one additional six-month period. Thus, under the old eligibility rules, a carpenter who had worked less than the specified number of hours in “covered employment” during the first half of the year would not have been able to secure coverage under the Fund in the second half of the year. Under the new rules, however, the employee was able to secure coverage through the second half of the year— though not beyond that period — simply by paying for it. Economic hard times persisted in the construction industry longer than expected and the Trustees continued to expand the Fund’s eligibility rules. Although a variety of approaches were tried, the general thrust of amendments throughout the mid-1970’s was to enable employees to buy coverage for longer periods of time and with less regard to the number of hours worked during preceding qualifying periods. The last of the expansionary amendments took effect in October of 1977 and permitted employees to secure coverage under the Fund by self-payment for up to six consecutive six-month periods (following a period of coverage based on employer contributions) without working any hours in “covered employment.” Late in 1977, a booklet was sent to the Fund’s participants which contained, among other things, the following description of the Fund’s then effective self-payment provisions: Revisions in the Self-Payment Provisions Page 5 of the descriptive booklet issued in 1974 explains the original ruling on self-payment provisions. Since that time, it has been modified by the Board of Trustees as follows: a. Beginning October 1, 1977, a member is allowed to buy in for six consecu-' tive qualifying periods if he meets the requirements set out in the descriptive booklet on page 5. At the time, appellant Palino was already insured under the Fund through March of 1978 on the basis of his previous work for contributing employers. For the six-month period beginning in April of 1978, however, Palino was unable to secure coverage based merely on “covered employment” because he had worked less than the requisite number of hours for contributing employers in the previous qualifying period. Palino therefore chose to buy coverage under the Fund’s self-payment provisions for his wife and himself for the six months from April through September of 1978. By the end of that six-month period, Palino was again unable to secure coverage on the basis of “covered employment.” He thus bought “self-payment” coverage for a second six-month period, from October of 1978 through March of 1979. In December of 1978, the Trustees again revised the Fund’s eligibility rules, but this time by restricting rather than by broadening them. Several reasons underlay the change. Economic conditions had improved in the construction industry, and it was easier for carpenters to find work. The Trustees had learned that the self-payment program was depleting the assets of the Fund. Finally, some individuals participating in the self-payment program had become self-employed contractors who the Trustees feared were statutorily precluded from participating in the Fund at all. See note 6, infra. The Trustees therefore decided that, as of April 1, 1979, previously eligible employees who lacked the requisite number of hours in “covered employment” would be allowed to pay for only one, not six, extra six-month periods of insurance, much as employees had been allowed to do when the self-payment program was first conceived in 1973. In March of 1979, the Palinos received a semi-annual statement of eligibility indicating that they would not be able to purchase coverage for the six-month period beginning April 1, 1979. No reason was given. Sometime around April 1, however, the Palinos also received an official notice from the Fund’s Trustees explaining that the eligibility rules had been changed to permit the purchase of only a single six-month period of insurance. Palino immediately complained to the Trustees, but to no avail. He had already used up the single six-month self-contributory period to which he was entitled under the new rules, and the Trustees affirmed the decision not to allow him to buy additional coverage. When Palino’s coverage finally expired at the end of March, his wife was several months pregnant. By the time he was first notified of his ineligibility to renew his coverage through the Fund, Palino claims, he was not able to find alternative medical insurance to cover his wife’s maternity costs. In fact, the Palinos were not insured when Mrs. Palino had her child in July, and they thus had to pay those costs themselves. The Palinos subsequently brought this suit against the Fund’s Trustees, claiming that the manner in which they changed the eligibility rules — and, accordingly, the refusal to allow the Palinos to renew their coverage in April of 1979 — violated the fiduciary duty imposed on fund trustees by the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (“ERISA”). II At the outset, it is important to understand that this case has not been argued on a theory of contract law. Appellants do not claim that the Fund was in any way contractually obligated to provide them coverage after March 31, 1979. While appellants point to language contained in the booklet distributed to Fund participants in November of 1977 which states that, as of October 1, 1977, “a member is allowed to buy in for six consecutive qualifying periods,” this language simply sets forth the Fund’s eligibility rules. It does not state that those rules will remain in effect indefinitely. It cannot be read as a promise that changes will not occur in the future; changes in eligibility rules occurred fairly often throughout the years preceding the change announced in the booklet itself. Appellants do not claim that the Trustees offered Fund participants a contractually binding option to renew their coverage for six periods. What this ease does involve is a claim premised on the law of trusts. ERISA imposes on trustees of funds such as the one at issue in this case a fiduciary duty to manage the fund with prudence and in the interest of the fund’s participants and beneficiaries. See note 4, supra. Appellants claim that, in light of the eligibility rules in effect since 1977 and the description of those rules contained in the 1977 booklet, it was a violation of their fiduciary duty for the Trustees to refuse to renew appellants’ coverage when it ran out in March 1979. Specifically, appellants’ arguments may be read to claim that the Trustees have breached their fiduciary obligations under ERISA in two ways: by reducing the number of self-payment periods available to Fund participants, and by doing so without giving earlier notice. In judging the actions taken by trustees in the course of managing an employee benefit plan, our inquiry is limited to determining whether the actions were arbitrary and capricious in light of the trustees’ responsibility to all potential beneficiaries. Rueda v. Seafarers International Union, 576 F.2d 939, 942 (1st Cir. 1978); Gaydosh v. Lewis, 410 F.2d 262 (D.C.Cir.1969). Under this standard of review, we are compelled to reject any contention that the Trustees acted unlawfully in reducing the number of self-payment periods available to Fund participants. Courts have consistently recognized that trustees of funds such as the one at issue in this case must often modify a fund’s operation in light of changing financial conditions and economic circumstances. And, in particular, they have allowed trustees broad discretion to change eligibility rules even where doing so has harmed workers with far more vested an interest in a rule’s continuation than appellants have here. See, e. g., Bridge Workers Local 111 v. Douglas, 646 F.2d 1211 (7th Cir. 1981) (amendment deprived employees of medical benefits to which they would otherwise have been entitled by virtue of their previously accumulated hours of work for contributing employers); Local 5, Sheet Metal Workers’ International Association v. Mahoning & Trumbull County Building Trades Welfare Fund, 541 F.2d 636 (6th Cir. 1976) (amendment resulted in loss of coverage based on employer prepayments and an employee’s “hour bank”); Gaydosh v. Lewis, supra (retired coal miner denied pension on the basis of an eligibility restriction adopted after he retired but less than one year before he reached the age at which his pension rights would otherwise have fully matured). It is undisputed that the Trustees curtailed the Fund’s self-payment program for three entirely legitimate reasons: work in the industry had become easier to find and the need for the program had thus diminished; the program had proved to be a financial drain on the Fund’s assets; and the program had apparently come to include people who had left the employ of contributing employers indefinitely. Given these concerns and the Trustees’ obligation to preserve the viability of the Fund over time, we cannot say that their decision to curtail the Fund’s self-payment program was arbitrary and capricious. With respect to appellants’ second, and principal, contention — that the Trustees failed to provide adequate notice of the eligibility amendment — we reach the same conclusion. In reaching this conclusion, we judge the Trustees’ actions in accordance with the principle that changes in a fund’s eligibility rules must be made, and notice given, subject to the limits of “fundamental fairness.” Kosty v. Lewis, 319 F.2d 744, 748 (D.C.Cir.1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964). Such limits are exceeded, for example, when pension eligibility rules are changed without giving notice to those who, with minimal effort, might easily have avoided the loss of all pension rights after many years of pension eligible work. See, e. g., Valle v. Joint Plumbing Industry Bd., 623 F.2d 196 (2d Cir. 1980); Argo v. Joint Plumbing Industry Bd., 623 F.2d 207 (2d Cir. 1980); Burroughs v. Board of Trustees of the Pension Trust Fund for Operating Engineers, 542 F.2d 1128 (9th Cir. 1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977); Kosty v. Lewis, supra. We do not believe that the limits of fundamental fairness were exceeded here. For one thing, all participants in the Fund were given considerably more generous notice than that expressly required by ERISA itself. Moreover, the Fund notified appellants — and presumably all other similarly situated Fund participants — before their coverage actually expired. This notice plainly gave most affected individuals adequate opportunity to secure other medical insurance coverage. Appellants’ contention of unreasonableness must essentially rest either upon a claim that the Trustees ought to have determined the particularized notice needs of each individual affected and given notice case by case or upon a claim that somewhat earlier notice to all those affected was, on balance, plainly appropriate. There is no evidence that the first of these alternatives was administratively feasible; common sense suggests that it was not. The second alternative — earlier notice to all — would indeed have helped appellants, and it might have helped others as well. But, giving notice a few months earlier still could not have helped everyone who may have needed it (e.g., those who had wives several months more pregnant or who had contracted serious long-term diseases or who had given up other non-repeatable insurance opportunities). And, earlier notice would have involved an additional delay in implementing the new eligibility amendment, which in turn would have imposed significant additional costs on the Fund. Any “time of notice” rule is to some extent arbitrary. The notice at issue here would seem sufficient for all but the unusual case. We have previously pointed out that fund rules and practices inevitably hurt “some individuals who find themselves on the wrong side of the line.” Rueda v. Seafarers International Union, 576 F.2d at 942. In such cases, we must ask whether, “notwithstanding the injustices which may befall individuals, the scheme as viewed by the trustees is a rational one ... as a whole.” Id. Given the extra costs associated with earlier notice, the sufficiency of notice given for nearly all cases, and the impossibility of holding everyone harmless, the “prerenewal” notice rule that the Fund followed seems reasonable. For the reasons indicated above, we believe that the eligibility amendment and the notice given Fund participants meet the Rueda test. Affirmed. . In an exception to this rule not relevant to this case, the Fund permitted ' employees to average their hours in “covered employment” over two qualifying periods. This enabled employees with low hours in the most recent qualifying period, but with high hours in the period before, to retain their insurance for at least six months beyond what the rule stated in text would allow. . The premium varied inversely with the number of hours actually worked in “covered employment.” In effect, the employee had to make up the difference between the cost of his insurance and the amount paid on his behalf by contributing employers. . Eligibility and qualifying periods under the Fund were actually separated by periods of two months. Thus, an employee’s hours of “covered employment” from January 1 to June 30 determined his eligibility for coverage not from July 1 to December 31 but from September 1 through February of the next year. Nothing of significance in this case turns on the two-month gap, and we have taken the liberty of discussing the Fund and how it works as if the gap did not exist. . Section 404(a)(1) of ERISA, 29 U.S.C. § 1104(a)(1), provides that: (a)(1) ... a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; . In terms, appellants challenge only the Trustees’ failure to provide earlier notice of their decision to amend the eligibility rules. Appellants do not say precisely how much notice would have been sufficient. In view of the alleged difficulty of finding insurance that would have covered an existing condition such as Mrs. Palino’s pregnancy, however, it appears that at least as far as the Palinos are concerned only notice before Mrs. Palino became pregnant would have sufficed. The Trustees, of course, did not even decide to amend the eligibility rules until December of 1978, after Mrs. Palino had become pregnant. There is thus implicit in the Palino’s claim not only an objection to the adequacy of the notice of the eligibility amendment but, in effect, an objection to the amendment itself. . In fact, Palino himself appears to have left “covered employment” to become a self-employed contractor sometime in late 1977 or early 1978. The Trustees suggest that, for this reason alone, Palino was statutorily precluded from renewing his medical insurance through the Fund in the spring of 1979. See Labor Management Relations Act § 302(c)(5), 29 U.S.C. § 186(c)(5) (requiring employee benefit plans to be established “for the sole and exclusive benefit of ... employees ... and their families and dependents”); Dohrer v. Wakeman, 14 Wash.App. 157, 539 P.2d 91 (1975). Given our resolution of this case on other grounds, we find it unnecessary to reach the statutory issue raised by the Trustees’ suggestion. Cf. Aitken v. IP & GCU-Employer Retirement Fund, 604 F.2d 1261 (9th Cir. 1979) (denial of benefits to sole proprietor of a printing business upheld on grounds that the eligibility restriction adopted by the trustees was reasonable in light of the apparent requirements of § 302(c)(5)). . ERISA required simply that the Trustees provide notice of the eligibility amendment within 210 days of March 31, 1979, the date on which the Fund’s year ends. See ERISA § 104(b)(1)(B), 29 U.S.C. § 1024(b)(1)(B). . Those who may have suffered because notice was not given earlier are far less seriously injured here than the plaintiffs in the pension plan cases that appellants cite. In those cases, plaintiffs were deprived of benefits that had been building in their accounts over decades. See, e. g., Valle v. Joint Plumbing Industry Bd., supra; Kosty v. Lewis, 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 "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.

Cynthia Jo SAMUEL and Dena Meyers, Individually, and on behalf of all other persons similarly situated, Plaintiffs, Appellants, Patricia Farley and Cynthia Lambert, Intervening Plaintiffs, v. UNIVERSITY OF PITTSBURGH, the Pennsylvania State University, Indiana University of Pennsylvania, Temple University, and all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Wesley Posvar, Chancellor of the University of Pittsburgh, John W. Oswald, President of the Pennsylvania State University, William W. Hassoer, President of Indiana University of Pennsylvania, Paul R. Anderson, President of Temple University, and all other chancellors and presidents of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, the Boards of Trustees of the University of Pittsburgh, the Pennsylvania State University, Indiana University of Pennsylvania, Temple University, and the Boards of Trustees of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, William H. Rea, Chairman of the Board of Trustees of the University of Pittsburgh and all other persons on the Board of Trustees of the University of Pittsburgh, Albert Shoemaker, Chairman of the Board of Trustees of the Pennsylvania State University and all other persons on the Board of Trustees of the Pennsylvania State University, and all other persons on the Board of Trustees of the Pennsylvania State University, Joseph W. Serene, Chairman of the Board of Trustees of Indiana University of Pennsylvania and all other persons on the Board of Trustees of Indiana University of Pennsylvania, William R. Spofford, Chairman of the Board of Trustees of Temple University and all other persons on the Board of Trustees of Temple University and all other Chairmen and all other persons on the Boards of Trustees of all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, R. V. Allshouse, Registrar of the University of Pittsburgh, and all other registrars or persons holding similar positions in all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Frederick Sehring, Assistant Registrar of the University of Pittsburgh, and all other assistant registrars or persons holding similar positions in all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated, Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, J. Shane Creamer, Attorney General of the Commonwealth of Pennsylvania, Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania, and each and every named Defendant and each and every Defendant subject to jurisdiction by representation, Individually and in their official capacity. No. 74-1624. United States Court of Appeals, Third Circuit. Argued Nov. 12, 1974. Decided Dec. 26, 1974. Michael P. Malakoff, Berger & Kapetan, Pittsburgh, Pa., for appellants. James M. Arensberg, Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for University of Pittsburgh, Wesley W. Posvar, R. V. Allshouse and Frederick Sehring, appellees. Peter Platten and Richard Z. Freemann, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Temple University, appellee. Delbert J. McQuaide and John C. Gilliland II, McQuaide, Blasko & Brown, State College, Pa., for The Pennsylvania State University, appellee. Israel Packel and Thomas F. Halloran, Pittsburgh, Pa., for the Governor arid the Atty. Gen. of the Commonwealth of Pennsylvania, appellees. Robert P. Meehan and Frank P. Lawley, Jr., Harrisburg, Pa., for Auditor Gen. Robert P. Casey, appellee. Before VAN DUSEN, HUNTER and GARTH, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh, who also represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. See Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972) (certification of plaintiff class). Plaintiffs appeal from an order entered by the District Court for the Western District of Pennsylvania, on June 7, 1974. The order directed the defendant universities to bear the expense of identifying members of plaintiff class and notifying them that, although the defendants had been found liable to the plaintiffs as a class, their damage claims would not be adjudicated on a class-wide basis. For the reasons discussed herein, we find that the appeal must be dismissed for want of a final, appealable order. See 28 U.S.C. § 1291. The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General’s Rule B(2), which classified women students as resident or nonresident for tuition purposes. It provided: “The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules.” Samuel v. University of Pittsburgh, 56 F.R.D. 435, 437 n. 1 (W.D.Pa.1972). The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined and to have restitution made of such tuition amounts as were unconstitutionally collected. The district court certified the above-mentioned class in an opinion and order dated August 21, 1972. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa.1972). On October 5, 1972, the district court ordered the members of the plaintiff class to be individually notified at their representatives’ expense. On April 10, 1974, the district court by opinion and order found for the plaintiffs on the ground of the rule’s unconstitutionality, but at the same time “decertified” the class with respect to the class members’ damage claims. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974). Motions of the plaintiffs to enter final judgment on the April 10, 1974, order pursuant to F.R.Civ.P. 54(b), and to certify the decertification of the class for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), were denied on May 1 and May 29, 1974, respectively. On June 7, 1974, the court ordered the defendant universities to send, at their own expense, an approved form of notice of decertification to the class, members. The plaintiffs filed timely notice of appeal from this last order, which order was stayed by this court, pending appeal, on July 10, 1974. I. The plaintiffs-appellants assert this court’s jurisdiction on the basis of criteria for application of the “collateral order doctrine” set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In Eisen the Court held that an order allowing a suit to proceed as a class action and allocating to the defendants a substantial portion of the cost of notifying the plaintiff class was a “final” decision within the meaning of 28 U.S.C. § 1291. Rejecting any “verbal formula,” the Court found a touchstone for the interpretation of § 1291 in the “ ‘practical’ ” inquiry whether “ ‘the inconvenience and costs of piecemeal review’ ” outweigh “ ‘the danger of denying justice by delay,’ ” 417 U.S. at 171, 94 S.Ct. at 2149, quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950). The Court reaffirmed two criteria in the Cohen decision: “First, the District Court’s finding was not ‘tentative, informal or incomplete,’ 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed. 1528, but settled conclusively the corporation’s claim that it was entitled by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a ‘step toward final disposition of the merits of the case . ’ Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment.” 417 U.S. at 171, 94 S.Ct. at 2149. We find that the second Cohen criterion is not met by the district court’s June 7, 1974, order. The plaintiffs believe that the second criterion is satisfied because the June 7 order “involves a matter unrelated to any issue remaining before the District Court” and the class plaintiffs “can proceed no further in the District Court,” thus making the order “a final disposition of class Plaintiffs’ rights.” Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 5—6. Such an approach to the question of finality fails to confront the basic issue identified by the Court in Eisen, namely, whether the burdens of piecemeal review are justified by the injustice potentially resulting from delay. The orders appealed from in Eisen and Cohen exemplify the sorts of matters which “could not be reviewed effectively on appeal from the final judgment.” 417 U.S. at 171, 94 S.Ct. at 2149. In Cohen the district court, in the face of a statute which allowed a corporation to demand security for its litigation expenses from the plaintiffs in a stockholder’s derivative action, had allowed the plaintiff to proceed without posting such security. 337 U.S. at 543-545, 69 S.Ct. 1221, 93 L.Ed. 1528. The order appealed from thus determined who would bear the risk of loss of the corporation’s counsel fees during the pendency of the litigation. An improper allocation of risk created by the order could not have been repaired retrospectively in an appeal brought after the district court litigation had reached its conclusion. Id. at 546, 69 S.Ct. 1221, 93 L.Ed. 1528. Similarly, the district court in Eisen had allowed the plaintiff class to proceed without bearing, during the pendency of the litigation, the risk of loss of the expense of notification, in the face of the “usual rule . . . that a plaintiff must initially bear the cost of notice to the class.” 417 U.S. at 178, 94 S.Ct. at 2153. If the Court had not allowed the appeal, the defendants might ultimately have prevailed on the merits and yet have been unable to recover the cost of notice from the representative plaintiffs. The plaintiffs in the case now under appeal have shown no similar prejudice which could outweigh the burden of piecemeal review. Both in their brief opposing the defendants’ motions to dismiss the appeal, see Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote), and again at oral argument, the plaintiffs advanced the thesis that the June 7 order may cause members of the class who pursue their damage claims individually to incur litigation expenses which could prove to have been unnecessary if the decertification were reversed on appeal from a final judgment. The prejudice arising from delay would only arise if, on appeal from a judgment with respect to the named plaintiffs, the court of appeals found that the action had been improperly decertified, but found that the plaintiffs are not entitled to recover their litigation expenses. In this situation, absent class members who, prior to the reversal of the decertification order, settled or brought their damage claims to judgment might incur litigation expenses greater than their proportionate share of the class’ litigation expenses would have been. We do not find this possible prejudice to be sufficient to outweigh the burden of allowing the present appeal. It should not be unduly time consuming for the named plaintiffs to reduce their individual claims to judgment and bring a unitary appeal in which the damage and litigation expense awards, if any, can throw helpful light on the correctness of the challenged decertification order. We take judicial notice of entries in the district court docket, which indicate that a hearing with respect to the named plaintiffs’ damages was had on July 1, 1974. Since there is no reason to believe that the proceedings in the district court will not continue with normal expedition, it is unlikely that great numbers of absent class members will incur substantial litigation expenses before a unitary appeal can be concluded. For these reasons alone, we would find that the danger of injustice due to delay is so slight that the collateral order doctrine should not be applied to the June 7 order. More importantly, however, we do not believe that the loss to absent class members of the economies inherent in class action adjudication is the type of prejudice which the Eisen and Cohen decisions contemplated as justification for immediate appeal. Whenever a district court refuses to certify a class, there is some danger that absent class members will file individual suits, thus incurring litigation expenses which might prove to have been unnecessary if the denial of class status is ultimately reversed. The above rationale would render immediately appealable virtually every adverse class action determination. We cannot believe that the Supreme Court intended such a result by its reaffirmation of Cohen in Eisen. Instead, we maintain the position adopted by this Circuit in Hackett v. General Host Corp., 455 F.2d 618, 623-624 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972), that the more desirable route through which aspiring class representatives should be required to obtain review of adverse class action determinations is the mechanism of F.R.Civ.P.- 54(b) or 28 U.S.C. § 1292(b). Under these provisions the knowledge bred of the district court’s proximity to the case can be brought to bear on the question of the propriety of immediate review. The presence of such alternative routes for appellate review necessarily affects our judgment whether “the inconvenience and costs of piecemeal review” outweigh “the danger of denying justice by delay.” The benefit of a district court’s views as to appealability secured through certification under F.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b) would be lost if aspiring class representatives were allowed to appeal, without such certification, adverse class action determinations under the collateral order doctrine. This loss, together with the additional burden placed on appellees and the appellate court whenever piecemeal appeals are permitted, greatly outweighs the danger that some class members may, by proceeding individually, lose the economies of scale associated with class treatment. II. In their brief opposing defendants’ motions to dismiss, the plaintiffs also appear to request this court to stay the district court’s June 7 decertification order even if we find that we have no jurisdiction over the appeal. Plaintiffs’Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote). If this court lacks jurisdiction, it cannot stay the proceedings in the district court. The equitable arguments for granting such a stay, in fact, go to the question of our jurisdiction under the collateral order doctrine; they have been considered and rejected above. Accordingly, that part of the July 10, 1974, order of this court which stayed the June 7, 1974, order of the district court will be vacated and the appeal dismissed for want of an appealable order under 28 U.S.C. § 1291. . In the original complaint, Cynthia Jo Samuel and Dena Meyers were the only named plaintiffs. On May 14, 1974, the district court signed an order allowing two members of the plaintiff class (Patricia Farley and Cynthia Lambert) to intervene. It appears from their motion to intervene filed May 2, 1974, that they are represented by the same attorney who represents Samuel and Meyers. Since the notice of appeal, filed in the district court on June 13, 1974, specifies only the “plaintiffs” as appellants, it may be assumed that the attorney did not mean to be lodging an appeal in behalf of the intervening plaintiffs as well. In this case, the ambiguity in the notice of appeal is harmless, since we decide that the order appealed from is not final within the meaning of 28 U.S.C. § 1291. However, attorneys in multi-party cases should designate with specificity which parties are appealing and which are not. See F.R.App.P. 3(c); F.R.App.P. Form 1. Also, Indiana University and “other state and state-related universities and colleges” were dismissed as defendants in 1972. See 56 F.R.D. 435. . Motions to dismiss this appeal by Temple University and the University of Pittsburgh were filed on June 26, 1974, and by Pennsylvania State University on June 27, 1974. On June 26, 1974, the defendant state officials, Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, Israel Packel, Attorney General of the Commonwealth of Pennsylvania, and Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania, filed a brief opposing plaintiffs’ motion for a stay pending appeal. However, on August 15, 1974, this court received a letter from the Governor and Attorney General, informing it that they would take no'position on the decertification issue. The Auditor General did file a brief and argue in support of the district court’s decertification order. . Rule B(2) is no longer used to determine the residency of students who are married women. The district court described its history as follows: “Rule B(2) was in effect from June 7, 1967, until February 11, 1972, when the Attorney General of Pennsylvania withdrew his approval of the legality of the rule. For five months, until July 14, 1972, no official rule existed to guide the defendant universities in their classification of married women students. On that date, the Attorney General wrote each defendant university that a ‘married woman’s residency should be determined in accordance with Rule B-3’, which provided that a married woman’s residency was prima facie the same as her husband’s and that the presentation of convincing evidence could establish that a married woman was a Pennsylvania resident in spite of the fact that her husband was not. On April 6, 1973, Rule A(3) of the Pennsylvania Auditor General was promulgated to replace Rule B-3. Rule A(3) provides: ‘A married woman is presumed to have the domicile of her husband; however, such presumption may be rebutted by convincing evidence to the contrary.’ In addition, Rule A(3) sets out nine factors which will be considered to rebut the presumption that a married woman has the domicile of her husband. Rule A(3) is applied by the same administrative processes employed by the defendant universities in the administration of Rule B(2) and Rule B-3.” Samuel v. Univ. of Pittsburgh, 375 F.Supp. 1119, 1122 (W.D.Pa. 1974). . On motion of the plaintiffs, a three-judge court , was initially convened. On February 16, 1972, after the Pennsylvania Attorney General had withdrawn his approval of Rule B(2), see note 3, supra, the three-judge court dissolved itself. See Samuel v. Univ. of Pittsburgh, 375 F.Supp. 1119, 1122 (W.D.Pa.1974). The district court’s April 10, 1974, order nevertheless “restrained” the defendant university officials “from making residency determinations as to married women on any basis other than that of objective criteria equally applicable to all students.” Since we have found that we lack jurisdiction over this appeal, we do not reach the question whether such an order was properly entered by a single-judge district court. . Defendant Temple University apparently had sent the decertification notice to some members of the class before the court of appeals stayed the June 7, 1974, order. . When the refusal to grant class status “amounts to a denial of a preliminary injunction broader than would be appropriate for individual relief,” an interlocutory appeal lies under § 1292(a)(1). Hackett v. Gen. Host Corp., 455 F.2d 618, 622 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). However, § 1292(a)(1) is unavailable to the plaintiffs in this appeal because paragraph 1 of the district court’s April 10, 1974, opinion and order granted injunctive relief on a class-wide basis. See n. 4, supra. Plaintiffs do not challenge the grant of injunctive relief in such paragraph 1 but do object to the decertification of the class for the purpose of determining damages. . Inasmuch as the first Cohen criterion addresses the question whether the order appealed from is sufficiently definite to be accessible to appellate review, it may be satisfied by the district court’s June 7 order. By ordering the defendant universities to notify the class members of the decertification of their class, the district court “settled conclusively” the plaintiffs’ claim that the damage issues should be determined on a class-wide basis. On the other hand, the June 7 order is still “tentative.” There is nothing to prevent the district court from recreating the class for purposes of as yet undetermined issues in the case pursuant to Rule 23(c)(4). See General Motors v. City of New York, 501 F.2d 639, 647 n. 16 (2d Cir. 1974). . If the June 7 order were a final disposition of the claims of absent members of the plaintiff class, it would be certifiable for appeal under Rule 54(b). However, the district court’s denial of a motion for Rule 54(b) certification is not challenged on this appeal. See n. 14, infra. . It should be noted that the plaintiffs included a claim for their attorney’s fees in their prayers for relief. Plaintiffs’ Complaint at 10. If such litigation expenses are ultimately included in the named plaintiffs’ damages, other class members who pursued their claims individually should be entitled to recover their litigation expenses as well. In this circumstance, no prejudice to the class members would result; instead, excess litigation expense due to lost economies of scale would be charged to the defendant universities, which are not appealing the June 7 order. . Plaintiffs also assert that if the decertification order is upheld on appeal, the expense of suing on an individual claim may deter many members of the class from asserting their claims. Plaintiffs’-Appellants’ Reply to Defendants’-Appellees’ Motions to Dismiss at 4 (footnote), 6 n. 1. This argument goes to the merits of the decertification order rather than its appealability; we therefore leave it for consideration in an appeal from a final judgment as to the named plaintiffs. See note 11, infra. . The June 7 decertification order will be open to review on appeal from final judgments with respect to the named plaintiffs. See, e. g., Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969). . The court of appeals may take judicial notice of developments in a case on appeal which have occurred in the district court after the appeal was filed. Doe v. Wohlgemuth, Nos. 74-1726 & 74-1727, slip opinion at 4, n. 5 (3d Cir., Dec. 10, 1974). The notice of appeal in the present case was filed on June 13, 1974, prior to the above-mentioned hearing. . At oral argument, counsel for Temple University represented that not a single absent class member had inquired about the case after notice of the decertification had been sent. See note 5, supra. . We do not here decide which provision is the preferable means of challenging the June 7 order. In Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.), cert. denied, - U.S. -, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974), we held that an order allowing an action to proceed on a class basis was appealable under 28 U.S.C. § 1292(b), id. at 756, and that orders denying class action treatment may be certifiable under Rule 54(b), id. at 754. As noted by Professor Moore, where there is doubt about which provision should be invoked, the district court can certify under both provisions in the alternative. See 6 Moore’s Federal Practice 11 54.30 [2.-2] at 456. In the present case, the plaintiffs brought motions both under Rule 54(b) and under § 1292(b). The district court’s denials of both motions have not been challenged by the plaintiffs. Cf. Katz, supra at 752. . The Second Circuit has allowed appeal under the collateral order doctrine where the order denying certification as a class sounds the “death knell” of the action. Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967). The plaintiffs’ argument herein would go far beyond the death knell doctrine by allowing appeal as a collateral order, even where class members’ claims would be individually viable legal actions. In fact, the plaintiffs’ argument only applies where absent class members are likely to bring individual actions. Thus, even the Second Circuit’s “death knell” doctrine, with which this court has disagreed, see Hackett, supra n. 14, does not support the plaintiffs’ position.

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?

UNITED STATES of America, Appellant, v. Charles Winfield WEST. No. 71-1687. United States Court of Appeals, Third Circuit. Argued Nov. 15, 1971. Decided Jan. 21, 1972. John G. Abramo, Asst. U. S. Atty., Wilmington, Del., (F. L. Peter Stone, U. S. Atty., on the brief) for appellant. Karl Haller, Georgetown, Del., for ap-pellee. Before GANEY, ADAMS, and MAX ROSENN, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. We are here confronted with the novel and intriguing question whether, when an owner of an automobile, at the behest of the police, searches that automobile for a gun alleged to belong to another, the Fourth Amendment has been violated. The matter arises as the result of an appeal by the Government from an order of the district court, 328 F.Supp. 545, suppressing the introduction into evidence of a shotgun on the ground it is the product of an illegal search. The precise issue is whether it was proper to suppress the shotgun the defendant was charged with possessing, where the search, which followed a statement by the police that “if [Trott and Cannon] couldn’t find the shotgun, that [they] could or would be arrested,” was conducted by a third-party, Trott, who found the gun in his automobile. At the time of the search, the defendant was incarcerated. The defendant, Charles W. West, was arrested by the local police on June 5, 1970, and imprisoned for a parole violation. The next day, the Chief of Police, Todd, interrogated West with regard to the possession of a shotgun. West admitted possessing the gun and took the police to his home to find it. They discovered that the house had been burglarized and that the gun was missing. Later that month, Chief Todd and two Treasury Agents questioned Wilson Trott and his friend, Douglas Cannon. The district court found as a fact that Chief Todd threatened Trott and Cannon with imprisonment if they did not locate the shotgun within one week. Three days later, on June 26, 1970, Trott found the gun jammed into the springs of the seat of his own car, where it had-been hidden by someone, probably Cannon. In July, 1970, West signed a statement admitting ownership of a shotgun, describing its purchase, and verifying its loss. On October 27, 1970, West was indicted for possession of an unregistered weapon, namely a “sawed off” shotgun, on or about June 26, 1970. Thereafter, West moved to suppress the shotgun and the statement of July, 1970. After a hearing, West was reindicted and charged with possession of the same weapon on or about June 5, 1970. The district court issued a memorandum tentatively suppressing the shotgun, but reserving decision until after a further hearing. At the second hearing, West testified that he did not own the shotgun referred to in the indictment and that he had not transferred any such weapon during June or July of 1970. A supplemental memorandum was then issued by the district court suppressing the shotgun and holding that the statement given in July was not the product of illegal police conduct. An order to this effect was entered on June 14, 1971. The Government has appealed. To resolve the ultimate issue in this case — the correctness ' of the district court’s order directing that the shotgun be suppressed — it is helpful to examine several subsidiary issues raised by the Government. These issues are (1) the standing of the defendant to object to evidence obtained by transgressing another’s Fourth Amendment rights, (2) the scope of the Fourth Amendment with regard to property interests, (3) the extent of the exclusionary rule as applied to searches by private citizens, and (4) the parameters of the Fourth Amendment with regard to searches. 1 The first matter to be resolved is West’s standing to move for suppression of the evidence allegedly seized illegally from another. The problem of standing in Fourth Amendment cases has for a considerable period of years been troublesome to courts and commentators. There are two cases, however, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which are controlling as to this issue. In Jones, the Supreme Court held that where possession of illegal material is an ingredient of the offense, the indictment charging possession provides a sufficient interest in the material to establish standing. 362 U.S. at 261-265, 80 S.Ct. 725. The principal question in Simmons was whether testimony by the defendant at a preliminary hearing to establish standing that the seized items were his could be introduced at trial on the issue of guilt. There, the police had seized from the home of the mother of a co-defendant suitcases containing evidence linking a defendant, Garrett, to the crime of armed robbery of a federally insured savings and loan association. Garrett was not on the premises at the time of the seizure. However, in resolving the issue, the Supreme Court made clear that the rule in Jones, that a defendant charged with a crime in which possession of the item in question is an essential element has standing to move to suppress, is still viable: “. . . First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. . . . Throughout this case, petitioner Garrett, has justifiably . . . proceeded on the assumption that the standing requirements must be satisfied. “. . . Garrett evidently was not in Mrs. Mahon’s house at the time his suitcase was seized, from her basement. The only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify that he wás its owner.” 390 U.S. at 390-391, 88 S.Ct. at 974-975. Thus, Garrett, who presumably owned the suitcase, was held to have standing to suppress it even though the police seized the suitcase as a result of an improper search of a third party’s premises. By parity of reasoning, West would have standing to suppress the shotgun, which he presumably owned, even though officials seized the gun as a result of an allegedly improper search of a third person’s automobile. To demonstrate that West does not have standing to assert the Fourth Amendment violation, the Government relies on Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942). The Government contends that these cases “state the principle that a Fourth Amendment violation can be successfully utilized in a suppression motion only by those whose rights were violated.” We do not disagree with this general rule of law. However, we note that in Alderman, in remanding the cause, the Supreme Court held that the petitioner would have standing to suppress wiretap evidence either where the Government unlawfully overheard conversations of the petitioner himself or where the conversations occurred on his premises, regardless of his presence or participation therein. 394 U.S. at 176-180, 89 S.Ct. 961. The holding in Wong Sun that Wong Sun did not have standing to suppress the narcotics was not inconsistent with Jones since Wong Sun had neither a proprietary interest in the seized drugs nor a possessary interest in the searched premises. 371 U.S. at 491-492, 83 S.Ct. 407. In Goldstein, the testimony at issue was based on conversations of third parties, not those involving the defendant. 316 U.S. at 119, 62 S.Ct. 1000. There is no indication in the opinion that the defendant’s premises or privacy had been invaded. Thus, Goldstein, as well as Alderman and Wong Sun, can be reconciled with Jones and Simmons. There is nothing in United States v. Konigsberg, 336 F.2d 844 (3d Cir.), cert, denied Celso v. United States, 379 U.S. 993, 85 S.Ct. 334, 13 L.Ed.2d 344 (1964), which would indicate that West does not have standing. In Konigsberg, where the defendants had been charged with possession of merchandise stolen in interstate commerce, the Court distinguished Jones on the ground that “[b]oth those statutory provisions permit conviction upon proof of the defendant’s possession of the narcotics and, with respect to 26 U.S.C. § 4704(a), of the absence of the appropriate stamps.” Id. at 847. However, the crime charged in Konigsberg required, in addition to possession, proof of the theft, relation to interstate commerce, knowledge of the theft, and value of the stolen goods. The Konigsberg Court recognized that “[t]he Jones rule governs as of course in a proper case.” Id. at 847. The present situation, according to Konigsberg, is proper for application of the Jones rule. At the time the district court entered its order, all that the Government had to prove under Section 5861 (d) was possession of a weapon which required registration and that the weapon was unregistered. Although the Supreme Court has ruled that the Government must now prove that the weapon travelled in interstate commerce, United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), possession is still “an essential element of the offense with which the defendant is charged.” Simmons v. United States, supra 390 U.S. at 390, 88 S.Ct. at 974. Thus, the tests of Jones and Simmons are satisfied. 2 The Government’s contention that the scope of “the Fourth Amendment does not extend to a property interest in contraband . . . once owned by a defendant but in . possession of another” at the time of the search is closely related to its standing argument. In developing that thesis, the Government argues that the Supreme Court, in Jones, by holding that standing could be satisfied by a property interest in the searched premises, sub si-lentio overruled United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), which held that a defendant’s property interest in the seized contraband conferred standing. The argument is valid, contends the Government, because the Jeffers case was never cited in the Jones opinion, despite the factual similarity of the cases. Such reasoning, however, ignores the first branch of Jones, which holds that where a posses-sory crime is charged, the indictment suffices to confer standing. West’s property interest in the shotgun was established for the purpose of the suppression motion by the indictment, and this interest was protected from illegal searches by the Fourth Amendment despite the fact that another person had dominion and control over the gun. See Simmons v. United States, supra, 390 U.S. at 390-391, 88 S.Ct. 967. 3 The next question is whether the exclusionary rule should be invoked to suppress an item surrendered by a citizen because a police officer ordered the citizen to locate the object. It seems clear that the police may not escape the proscription of the Fourth Amendment merely by directing a third party to perform the search and seizure which would be improper if the police themselves did it. See Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Corngold v. United States, 367 F.2d 1 (9th Cir. 1967); Purvis v. Wiseman, 298 F.Supp. 761 (D.Or.1969). Or, to put it another way, the illegal acts of a private citizen may be attributable to the police when the citizen is acting as the agent of the police and within the scope of his instructions. Cf. People v. McGrew, 75 Cal.Rptr. 378, 380 (Cal.App. (1969). If the underlying purpose of that rule of law is not to be frustrated, then it appears not to matter whether the agency relationship is voluntary or induced by duress. Cf. Restatement (Second) of Agency § 224 (1957). In this case, the district court found: “Sometime during the latter part of June, 1970, Chief Todd, a law enforcement officer of the town of Georgetown, Delaware, and two federal treasury agents had a conversation with Mr. Trott and Mr. Douglas Cannon in an automobile. At that time, Chief Todd told Trott and Cannon that he knew Charles West had a sawed-off shotgun and that he, Todd, wanted that gun. He told Trott and Cannon that they must find the gun for him, that he would give them one week to find it, and that, if they didn’t have the gun by the end of that time, he would put them in jail until the gun was found.” The court also determined that Chief Todd’s threat “did in fact result in a search of Trott’s car and a seizure of the property found therein.” Although these findings raise a serious question whether Trott was Chief Todd’s agent for purposes of interpreting the Fourth Amendment, the matter does not end there. To activate the exclusionary rule, two other crucial factual elements must appear: that the search was constitutionally prohibited and that Trott was acting within the scope of his agency in making it. Although the district court made no specific finding as to the scope of the authority conferred by Chief Todd, the instruction to Trott to find the gun was unrestricted except as to time, and the record indicates that it was broad enough to cover an illegal infringement of the Fourth Amendment. The overbreadth of the instruction does not vitiate the search, for even if Chief Todd had specifically told Trott to conduct an illegal search, the shotgun would still be admissible unless it were the fruit -of a search that was actually illegal. For example, had Chief Todd told Trott to conduct a warrantless search of a private dwelling, but instead, Trott found the gun abandoned on a public street, the gun would be admissible because the Constitution would not have been violated. 4 .[6] In view of the foregoing analy-ses, it seems clear that this appeal turns on the single issue whether Trott violated the Fourth Amendment when he searched his own car. The district court concluded that he had, stating that since Chief Todd could not have legally searched the car himself, neither could hisj agent. But this reasoning has one fatal deficiency — Trott, even assuming he became Chief Todd’s agent, would not thereby lose whatever rights he already possessed with respect to his own car Prior to becoming an agent of the police Trott could have legally searched his own car, found the shotgun, and turned it over to the police' voluntarily, even though Chief Todd ordinarily could not have searched the same car without a warrant. The mere fact that an agency relationship might have arisen between Trott and the police could not encroach upon the right of Trott to enter and search his own car any more than it could suspend Trott’s right to enter and search his own house. If the rule were to the contrary, a criminal could safely hide his contraband in the home or car of any policeman, then move to suppress the evidence when the evidence was subsequently discovered. One other basis exists for validating the search here. While in the context of this ease West has standing to object to unconstitutional searches of Trott’s automobile, such standing does not confer upon him the right to object to any search of Trott’s car at all. It seems that had Trott consented to a search of his car by Chief Todd, any evidence discovered as a result of that search would have been admissible against Trott or anyone else. See Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Commonwealth of Pa. ex rel. Craig v. Maroney, 348 F.2d 22 (3d Cir.), rehearing denied, 352 F.2d 30 (1965), cert, denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966) It follows that if Trott could have consented to the search by Chief Todd, he could have consented to a search by Chief Todd's agent. And, since Trott himself conducted the search — whether or not as Chief Todd's agent — he apparently consented thereto. Although West did not raise the issue whether Trott’s consent was coerced and thereby ineffective, there are sufficient facts in the record to negate the element of coercion. Because there had been a lapse of three days during which Trott was not in custody between the alleged threat and the discovery of the shotgun, it would appear that any taint would have been dissipated by that attenuation. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). Accordingly, it was error for the district court to grant defendant’s motion to suppress, and the order of the district court will be reversed. . Apparently, West believed that the barrel of his shotgun was of sufficient length so as not to require registration under 26 U.8.C. § 5861(d) (1970). . By stipulation, the motions and other papers previously filed were applied to the second indictment. . Although the defendant lias not appealed from that portion of the opinion denying his motion to suppress the statement, this will not preclude review of that ruling following conviction. Although the statute gives the Government the right to appeal from the grant of a suppression motion, the denial of such a motion is not a final order and is therefore not appealable. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). Consequently, since the defendant was unable to cross-appeal at this time, his failure to do so does not constitute a waiver of the objection. . At oral argument, this Court raised the issue whether West waived his objection by taking the police to his home to retrieve the gun. However, because of the disposition which we make of the case today, we do not have to decide this question. . In recent years, the question of standing has been widely discussed in the literature. The issue is inextricably bound to the philosophical underpinning of the application of the exclusionary rule as means of enforcing the Fourth Amendment. If the primary purpose of the rule is, as the Supreme Court announced in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), deterrence of illegal police conduct, then perhaps the goal could be best achieved by easing the standing requirements. See Note, Standing to Object to an Unreasonable Search and Seizure, 34 U.Chi.L.Rev. 342 (1967). See generally, White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 333 (1970). The issue of standing is again before the Supreme Court in United States v. Combs, 446 F.2d 515 (6th Cir. 1971), cert, granted, 404 U.S., 92 S.Ct. 677, 30 L.Ed.2d 661 (1972). There, the court of appeals held that a “moonshine” defendant had no standing to challenge a search warrant for his father’s premises, in which he had no possessory or proprietary interest, where the search was conducted when defendant was not present. . The other branch of Jones held that a person lawfully present in another’s apartment has a sufficient possessory interest in the premises to establish himself as a person aggrieved by the search. 362 U.S. at 265-267, 80 S.Ct. 725. . In United States v. Cowan, 396 F.2d 83 (2d Cir. 1968), the court held that the FBI had not violated defendant’s rights by searching, with the consent of a hotel owner, suitcases apparently abandoned by defendant and legally removed by the hotel from defendant’s room pursuant to its lien for unpaid hotel bills. A different result is indicated here, because West never voluntarily transferred the shotgun to anyone. At all material times, he had a superior right to the gun, than had anyone else in possession of it, and thus possessed an important indicia of ownership at the time of the search. . The holding in Konigsberg has not been followed in other federal circuits. See United States v. Price, 447 F.2d 23 (2d Cir. 1971); United States v. Allsenberrie, 424 F.2d 1209 (7th Cir. 1970); United States v. Cobb, 432 F.2d 716 (4th Cir. 1970); Glisson v. United States, 406 F.2d 423 (5th Cir. 1969); Niro v. United States, 388 F.2d 535 (1st Cir. 1968). See also, Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968). . The record in this case indicates that the shotgun was transported across a state line after its purchase by West. . United States v. Combs, supra, n. 4a, does not involve a possessory crime. Therefore, there is no reason to postpone judgment in this case until the Supreme Court decides Combs. . In Lustig, Mr. Justice Frankfurter explicitly stated that a “search is a search” by an official if he had a hand in it. 338 U.S. at 78, 69 S.Ct. at 1377. Mr. Justice Sutherland, in Byars v. United States, warned that a “court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods.” 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520 (1926). . Nothing in this opinion should be construed as narrowing the principle that warrantless searches of automobiles are sometimes permissible under proper circumstances. . There was no evidence that any relationship arose between Trott and West that would have operated to divest Trott of dominion and control over the car and vest such rights in West. Trott had neither loaned nor leased his car to West. Thus, the situation here is not analogous to those cases in which evidence was suppressed because the owner of property, such as a hotel, consented to the search of premises temporarily rented to someone else. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839 (3d Cir. 1970).

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?

Beatrice B. BRAMER, Cecil B. Mihaly and George C. Brown, Surviving Executors, Estate of S. Eugene Bramer, Deceased, Appellants v. UNITED STATES of America. No. 12419. United States Court of Appeals Third Circuit. Argued April 3, 1958. Decided Sept. 30, 1958. Samuel Kaufman, Pittsburgh, Pa., for appellants. Sheldon I. Fink, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Attys., Dept. of Justice, Washington, D. C., D. Malcolm Anderson, U. S. Atty., Thomas J. Shannon, Asst. U. S. Atty., Pittsburgh, Pa., on the brief), for appellee. Before KALODNER and HASTIE, Circuit Judges and LAYTON, District Judge. KALODNER, Circuit Judge. This appeal arises out of a suit to recover income and victory taxes paid by plaintiffs’ decedent (“taxpayer”) for the year 1943. The District Court denied relief, Kaplan v. United States, 154 F. Supp. 167, and this appeal followed. Two transactions are involved. They are the basis of taxpayer’s two causes of action set forth in a single complaint. An issue common to both is whether the taxpayer, who made his income tax returns on the basis of cash receipts and disbursements, was entitled to deduct payments made in 1942 and 1943 on account of obligations arising from two separate loss transactions, or whether the losses were deductible only in prior years when the events occurred giving rise to them. As to one of the transactions, the taxpayer previously litigated the same issue with respect to the year 1941. Bra-mer v. Commissioner, 6 T.C. 1027, affirmed, 3 Cir., 1947, 161 F.2d 185, cer-tiorari denied 332 U.S. 771, 68 S.Ct. 85, 92 L.Ed. 356. There is presented, accordingly, the additional issue, whether taxpayer (via plaintiffs) is now restricted as to that transaction by the doctrine of collateral estoppel: Commissioner v. Sunnen, 1948, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898. The facts relating to taxpayer’s “First 'Cause of Action” are as follows: Prior to May 13, 1931, taxpayer had a large margin account with the stock brokerage firm of Hornblower and Weeks. On this account he was indebted to that firm in a very substantial amount. As required by Hornblower and Weeks, taxpayer, who was without means to protect his margin account, posted as additional collateral 2,000 shares of common stock of National Steel Corporation obtained for this purpose from one William K. Frank. On or about May 13, 1931, the brokerage firm gave notice that it intended to close out taxpayer’s under-margined account and to sell the National Steel stock which it was holding. Frank, rather than lose this stock, reclaimed it by paying to Hornblower and Weeks the sum of $84,000, its then market value. On the same date, taxpayer gave Frank his note for $84,000. Hornblower and Weeks sold out taxpayer’s margin account at a heavy loss. In 1942 and 1943, taxpayer paid to Frank $21,250 and $35,036.12 on account of his indebtedness in this transaction, and on his returns for those years he claimed these amounts as deductions from gross income. The Commissioner disallowed the deductions, which resulted in a deficiency for the taxable year 1943. The Commissioner took the position that taxpayer’s loss was sustained, and therefore deductible, when the brokerage account was liquidated in 1931. The facts relating to the second transaction, embraced in taxpayer’s “Second Cause of Action” are as follows: In 1929, taxpayer, William K. Frank and Lee B. Foster entered into a joint venture, called a syndicate, to purchase and sell the stock of International Rust-less Iron Corporation. They were to share profits and losses equally, but Frank and Foster agreed to finance the syndicate through negotiating a loan with the Bank of Pittsburgh, N.A. In fact, Frank and Foster negotiated a loan with that Bank in the amount of $236,-752.50, to purchase 60,000 shares of Rustless stock, the Bank receiving a note in that amount signed by the three syndicate members, and, as collateral, the Rustless stock and other securities supplied by Frank and Foster. Between January 1, 1930, and July 14, 1930, the Bank sold 21,849 shares of the Rustless stock and applied the proceeds to reduce the debt of the syndicate to it. On his income tax return for 1930, taxpayer claimed a loss of $13,667.14, being one-third of the excess of the average cost of the said shares over the sales price. On January 14, 1931, the Bank was owed $199,942.93. On that date, Frank and Foster each paid one-third of the syndicate obligation to the Bank, and taxpayer gave to the Bank his note for $66,647.64, representing his third of the obligation. The Bank retained 12,717 shares of the Rustless stock (being the taxpayer’s third of the 38,151 shares held by the Bank after the 1930 sales), and also certain other securities which had been deposited with the Bank by Frank as collateral. As of January 14, 1931, the Bank held two other notes from the taxpayer, each of which provided that property posted as security therefor was also security for any other liability of the taxpayer. From October 3, 1932, to August 1, 1935, all dividends from Frank’s securities collateralizing the taxpayer’s note dated January 14, 1931, were credited by the Bank to the principal indebtedness represented by the taxpayer’s two smaller notes, except a small sum which was credited to interest on his note of January 14, 1931. Beginning May 22, 1935, the Bank foreclosed on Frank’s securities and applied the proceeds to principal and interest on taxpayer’s note of January 14, 1931. On August 5, 1935, the Bank sold taxpayer’s Rustless stock for $816.67, and applied part to the final liquidation of his note of January 14, 1931, and the balance was paid to William K. Frank, Inc., to which company William K. Frank had previously transferred his interest in the aforementioned collateral. By August 1, 1935, funds amounting to $101,051.11, coming from either sales of Frank’s stock or dividends thereon, had been applied by the Bank in satisfaction of the taxpayer’s indebtedness. On that date, taxpayer gave to William K. Frank his promissory note in the amount of $100,839.17, the adjusted amount due on account of the above transactions. Taxpayer claimed no deduction on his 1935 income tax return on account of the sales of his Rustless stock by the Bank in that year, but upon audit, a loss of $86,203.33, limited to $2,000 was allowed. Between 1939 and 1943, taxpayer made aggregate cash payments of $121,693.89 on account of his note dated August 1, 1935. These payments were made to the William K. Frank Trust, to which, on December 1, 1938, William K. Frank, Inc. had assigned the said note. On his income tax return for 1941, taxpayer claimed as a deduction the payment made in that year on his note of August 1, 1935. This deduction was disallowed, as a result of which taxpayer sought review in the Tax Court. On May 9, 1946, the Tax Court sustained the Commissioner, 6 T.C. 1027, and, in due course, this Court affirmed, 1947, 161 F.2d 185, and the United States Supreme Court denied taxpayer’s petition for writ of certiorari 332 U.S. 771, 68 S.Ct. 85, 92 L.Ed. 356. On his income tax returns for 1942 and 1943, taxpayer claimed as deductions payments made in those years on his note of August 1,1935. The Commissioner again disallowed the deductions, which resulted in a deficiency for the taxable year 1943. We shall take up first the Hornblower and Weeks transaction (taxpayer’s-“First Cause of Action”). The District Court recognized that the-taxpayer owed Hornblower and Weeks a large sum of money, partially collat-eralized by stock obtained from Frank for this purpose, which on the date of foreclosure had a value of $84,000 and' that Frank paid the market value of the-stock to Hornblower and Weeks rather than lose it. It said that the $84,000-was applied by Hornblower and Weeks [154 F.Supp. 169.] “in partial discharge-of Decedent’s [taxpayer’s] debt”, closing out his account at a heavy loss, taxpayer giving his note to Frank in the-amount of $84,000. It held that what took place was a borrowing of $84,000-from Frank by taxpayer and use of the $84,000 in partial liquidation of a deductible debt. On this basis, it concluded that since-taxpayer had borrowed from another to-make a payment on his debt, the loss-was deductible in 1931, when the account was closed out, and the deduction could not be deferred until a later year when-, taxpayer made repayment on the borrowed funds. We are of the opinion that the District Court was in error with respect to-its disposition of taxpayer’s First Cause of Action. There is no dispute here that taxpayer suffered a loss which was deductible under the income tax laws, nor is-there a dispute that such deduction, in-the case of a cash-basis taxpayer, must be taken in the year in which “paid or incurred”. Internal Revenue Code of 1939, 26 U.S.C. 1952 ed., Sections 23 and 43. The sole dispute, therefore, is with respect to the year in which the particular loss deduction must be taken. In this respect, there is no dispute that a cash basis taxpayer may deduct a loss only if he has satisfied the obligation arising from the transaction. Helvering v. Price, 1940, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836. Consistent with this principle, it has been held that the loss is deductible in the year in which it is paid, even though paid with borrowed funds, and the deduction may not be postponed to the year in which repayment of the borrowed funds is made. Haley v. Commissioner, 5 Cir., 1953, 203 F.2d 815, 819; Humphrey v. Commissioner, 9 Cir., 1937, 91 F.2d 155; Page v. Rhode Island Hospital Trust Co., 1 Cir., 1937, 88 F.2d 192, 121 A.L.R. 693; Crain v. Commissioner, 8 Cir., 1935, 75 F.2d 962; Harris v. Commissioner, 1948, 11 T.C. 864. Thus, a loss on account of worthlessness of stock is deductible when paid for, if paid for after the purchase date, even though the payment takes place after the year of actual worthlessness; if paid for with borrowed money, the loan is treated as a separate transaction. See 5 Mertens, Law of Federal Income Taxation (rev. ed.), Section 28.71, and the cases cited therein. In the instant case, taxpayer actually owed Hornblower and Weeks for the stock involved. Frank was merely a guarantor, and the Commissioner has so treated him throughout this litigation. When Frank’s stock, or his cash in lieu thereof, was applied by Hornblower and Weeks, it was not in discharge of taxpayer’s obligation, since Frank was entitled to be subrogated thereto. Cf. Putnam v. Commissioner, 1956, 352 U.S. 82, 85, 77 S.Ct. 175, 1 L.Ed.2d 144. In practical effect, taxpayer did not “pay or incur” the loss on the stock in 1931; this he began to do to Frank (or Frank’s transferee) in 1942 and 1943. To the extent of such payments, he was entitled to deductions in those years. Contrary to the view of the District Court, the fact that Frank paid Hornblower and Weeks the sum of $84,000, receiving back his stock, and the fact that taxpayer (then insolvent) delivered to Frank his note for $84,000, do not make out a case of borrowing. Without dispute, the cash delivered to Hornblower and Weeks by Frank was the then market value of his hypothecated stock, and was precisely the amount of his obligation on the day Hornblower and Weeks determined to realize on the collateral. The delivery of taxpayer’s note was in recognition, and a crystallization, of taxpayer’s implied obligation to Frank. A taxpayer on the cash basis does not sustain a loss by “satisfying” an obligation with notes rather than cash or property. Helvering v. Price, supra. The substitution of a note for an existing obligation is not the payment required as a condition for a deduction. We conclude, therefore, that taxpayer was entitled to deduct the payments made on account of the Hornblower and Weeks transaction in his income tax returns for 1942 and 1943. We turn next to the joint venture in the Rustless stock, taxpayer’s Second Cause of Action. The District Court determined that the same issues had been fully litigated by taxpayer in connection with payment made to Frank in 1941, as above related. On the authority of Commissioner v. Sunnen, supra, the District Court deemed the plaintiffs, in privity with the taxpayer, estopped to relitigate the substance of the transaction merely because he made subsequent payments. We are of the opinion that the District Court correctly disposed of the Second Cause of Action. The plaintiffs assert here that the doctrine of collateral estoppel is inapplicable because of a change in legal principle between the prior decision and the pending case, the said change being epitomized by Putnam v. Commissioner, supra. In addition, they contend that in view of Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, the affirmance of the Tax Court’s decision (6 T.C. 1027) by this Court (161 F.2d 185) was not a review on the merits. Otherwise, the plaintiffs contend that the essential nature of the Rustless transaction was the same as the Hornblower and Weeks transaction, and that there again Frank was merely a guarantor, no independent “borrowing” having occurred. We do not agree with the plaintiffs in any of these respects. The short answer, however, is that a reading of the Tax Court’s decision proves that it found the Rustless stock was bought and paid for with borrowed money. Two of the joint venturers agreed to supply the purchase price, and they in fact arranged to and did borrow the purchase money from the Bank, posting collateral therefor; plaintiffs’ deceased joined with them on the note obviously in performance of his agreement to share losses and profits in the purchase and sale of Rustless stock, and in recognition of his obligation to repay the advances of his co-venturers on his behalf. The Rustless stock was thus paid for, even though plaintiffs insist it was purchased on credit from the Bank. All of this, however, was a problem of identifying the independent character of the transactions, and rested in the first instance with the Tax Court: the practical effect of our decision on the appeal. Thus viewed, the Rustless stock transaction is not governed by the decision reached here in the Hornblower and Weeks transaction. Cf. Haley v. Commissioner, supra. We find no reason to alter the District Court’s conclusion with respect to the Rustless transaction, and hold that taxpayer was not entitled to deduct in 1942 and 1943 the payments made on account of his obligation in connection with that transaction. In summary, we find that the District Court erred with respect to its disposition as to taxpayer’s First Cause of Action and was correct as to his Second Cause of Action. For the reasons stated the Order of the District Court will be vacated and the cause remanded for further proceedings not inconsistent herewith. . As of Decomber 31, 1929, taxpayer’s indebtedness to Hornblower and Weeks bad increased to $371,787.87. On December 31, 1930, his indebtedness to that firm was $302,634.07. After application to taxpayer’s margin account of the $84,000 paid by Drank, and tbe proceeds of the sales of securities then remaining in the margin account, the taxpayer’s indebtedness to Hornblower and Weeks, as of December 31, 1931, was $113,997.26. . Section 23(e) of the Revenue Act of 1928, c. 852, 45 Stat. 791, and Section 23(e) of the Revenue Act of 1934, c. 277, 48 Stat. 680, provide a similar deduction for the years 1931 and 1935, respectively.

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.

BUSH v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA. No. 75. Circuit Court of Appeals, Second Circuit. Jan. 8, 1942. Barber & Barber, of Brattleboro, Vt. (F. Elliot Barber, Jr., of Brattleboro, Vt., of counsel), for appellant. Osmer C. Fitts, of Brattleboro, Vt., for appellee. Before L. HAND, AUGUSTUS N. HAND, and C. E. CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The plaintiff’s husband, Frank L. Bush, died on August 16, 1939, under the following circumstances: He had been fishing in the ocean in a boat or dory, and upon returning about 8:30 A. M. slipped in getting out of the dory and fell backwards on some rocks. He immediately complained of being a little dizzy and was helped to his tent ’ by his companions, a matter of about a hundred feet. He then lay down and rested 'for a time. Around 11 A. M. on the same day, after his rest, he drove his automobile about a mile into town on an errand, being accompanied by one Fontaine, who -testified -for the plaintiff at the trial. The decedent was about fifty-six years of age and appeared to be robust and in good health at the time of the accident. Fontaine left the car to do the errand, and when he returned about ten minutes later found Bush slumped over the wheel of his automobile and dead. Dr. Kinghorn, who performed an autopsy, testified that he opened up the heart and found it nearly full of. post-mortem blood clots. On a little further scrutiny he found an antemortem clot approximately an inch or an inch and a half long. He said that the cause of death was an embolism of the right auricle, that the clot was due to chronic cystitis, that is an inflammation of the bladder, which he found very hard and small, showing that it had been inflamed for a long' time. He explained that as a natural result little pieces would break off the inflamed surface which might pass off with the urine or might be picked up by the vessels. If they were picked up by the venous vessels they would have to enter the vena cava, because that was the only way out, and would thus get into' the heart. The blood clot he said caused death; that it moved because of the fall. Dr. Cook, who participated in the autopsy and saw the clot removed from the right side of the heart, testified that it was “not what I think of as a post-mortem clot. That is, it is a'very firmly organized clot and retained its shape with teasing.-” He also testified that the clot, lodged where it was, caused the insured’s death, and that it being lodged in the heart, connected with the fall, would pre-suppose some injury or infection in the 'vessels of the legs or pelvis or abdomen, that clots might be present in the veins" around such a diseased bladder, and that a fall or violence suffered, as explained to have been suffered by the insured, might have the effect in connection with this clot of dislodging it, thereby causing an embolism of this character. Under cross-examination he testified that the clot was of some age and made the following answer to this question:- “Q. So that an accident, if any, occurring not more than three or four hours prior to the time you first saw the body could not, in your opinion, have been the sole cause of the clot, as you have described it, being where you described it? “A. Perhaps the cause of it being where it is described and not the cause of the clot forming. I don’t mean to hedge.” The effect of the testimony seems to have heen that the decedent was a man apparently strong, active and in good health, but who because of a condition of chronic cystitis, which was not known to himself or his friends, developed a blood clot which through the jar occasioned by the fall was set loose, moved into the right auricle of the heart and caused death. The plaintiff is the beneficiary under an accidental death benefit certificate issued by the defendant on the life of her husband, Frank L. Bush, which entitled him to “the benefit under this certificate for death due to accidental means alone, and independent of all other causes.” It fixed'such benefit at $6,300 which by a rider upon the policy was reduced from $6,300 to $5,000. The constitution of the defendant (which was incorporated by reference in the certificate) insured members against death “effected solely through accidental, violent and external means, herein termed the accident, which shall be occasioned by said accident alone and independent of all other causes.” At the close of the plaintiff’s evidence in the action brought by her to recover on the policy, the defendant moved the court to direct a verdict in its favor on the ground that she had not made out a cause of action under the insurance contract. The motion was granted, a judgment entered for the defendant upon a verdict directed as prayed for, from which this appeal is taken. We think the direction was right and that the judgment should be affirmed. It would seem clear that if the requirement of the policy that recovery can only be had “for death due to accidental means alone and independent of all other causes” be taken literally the presence of a large blood clot, which was moved into the auricle as a result of the jar, was a contributing cause of death and that accordingly death did not arise from “accidental means alone.” It is true that there are numerous decisions that similar clauses do not prevent recovery where an insured is only subject to a congenital weakness or frailty such as a thin skull, but if we go so far as to say that a disease without which the accident would not have happened was not a contributing cause simply because it was immediately activated by the accident, the express contract of the parties becomes of no effect. The plaintiff principally relies upon the opinion of Cardozo, Ch. J., in Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914. The policy there insured against results of bodily injuries “caused directly and independently of all other causes by accidental means” and provided that it was not to cover death “caused wholly or partly by disease or bodily or mental infirmity or medical or surgical treatment therefor.” “The insured, while lifting a milk can into an ice box, slipped and fell, the can striking him on the abdomen and causing such pain that he was unable to get up. A surgeon, opening the abdomen, found a perforation at the junction of the stomach and the duodenum, through which the contents of the stomach escaped into the peritoneum, causing peritonitis and, later, death. At the point of perforation there had been a duodenal ulcer, about the size of a pea. The existence of this ulcer was unknown to the insured, and, were it not for the blow, would have had no effect upon his health, for it was dormant and not progressive, or so the triers of the facts might find. Even so, there had been a weakening of the wall in some degree, with the result that the impact of the blow was followed by perforation at the point of least resistance.” The court held that the evidence sustained a finding that the ulcer was not a disease or an infirmity within the meaning of the policy and said: “ * * * Left to itself, it would have been as harmless as a pimple or a tiny scratch. Only in the event that it was progressive would it become a source of pain or trouble. If dormant, as it was found to be, it was not only harmless in itself, but incapable of becoming harmful except through catastrophic causes, not commonly to be expected. In a strict or literal sense, any departure from an ideal or perfect norm of health is a disease or an infirmity. Something more, however, must he shown to exclude the effects of accident from the coverage of a policy. The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men. * * * “A distinction, then, is to be drawn between a morbid or abnormal condition of such quality or degree that in its natural and probable development it may be expected to be a source of mischief, in which event it may fairly be described as a disease or an infirmity, and a condition abnormal or unsound when tested by a standard of perfection, yet so remote in its potential mischief that common speech would call it not disease or infirmity, but at most a predisposing tendency.” Judge Cardozo then quotes from Rugg, C. J., in Leland v. Order of United Commercial Travelers, 233 Mass. 558, 564, 124 N.E. 517, who is said to have stated the governing principle “with clearness and precision.” Chief Justice Rugg (at page 564 of 233 Mass., at page 520 of 124 N.E.), said: “If there is no active disease, but merely a frail general condition, so that powers of resistance are easily overcome, or merely a tendency to disease which is started up and made operative, whereby death results, then there may be recovery even though the accident would not have caused that effect upon a healthy person in a normal state.” Judge Cardozo goes on to say: “An ulcer as trivial and benign as an uninfected pimple is at most a tendency to an infirmity, and not an infirmity itself.” Whatever may be thought of regarding a duodenal ulcer as “trivial and benign,” the assumption of the court was that such an ulcer had not given rise to a disease in any practical sense. We cannot say the same thing about a blood clot in a vein leading to the heart. Such clots are notoriously and frequently causes of death and the clot afflicting the decedent Bush was a large one originating in a diseased bladder and lodged in the vena cava. To hold that a fall (no more severe than the one here) was a cause of death independent of the decedent’s abnormal condition seems to disregard the plain meaning and purpose of the clause limiting the recovery of the insurance. Appellant argues that the Vermont decisions govern the present cause and support her right to recover upon the policy. But such is not our understanding of their effect. Two of those relied on are Corsones, Adm’r, v. Monarch Accident Ins. Co., 103 Vt. 379, 154 A. 693, and Griswold v. Metropolitan Life Ins. Co., 107 Vt. 367, 180 A. 649. The policy involved in the first case insured the decedent against loss of life resulting directly and independently of all other causes from bodily injuries effected solely through accidental means. The policy further provided that disability resulting wholly or partly from hernia should be considered as sickness and indemnified under the sickness provisions of the policy, whatever the original cause. The plaintiff’s evidence indicated that the decedent, a waiter in a restaurant, suffered a traumatic hernia as the result of a fall while carrying a tray of dishes. Recovery upon the policy was sought and allowed by the Supreme Court of Vermont on the ground that the decedent’s death was caused by accidental means within the meaning of the contract. There can be no doubt about the result reached by the Vermont Court, for the fall of the waiter was the cause of the hernia and the hernia occasioned the death of the insured. It might have been different if the fall had aggravated a preexisting hernia and the fall and the hernia had together effected the death of the insured. In Griswold v. Metropolitan Life Ins. Co., 107 Vt. 367, 180 A. 649, a policy insured against “the results of bodily injuries” “caused directly and independently of all other causes by violent and accidental means.” As the decedent there was chopping wood, a stick flew up and hit him in the nose. He afterwards died from septic infection originating at the spot where the stick struck him. The infection did not precede the accident but was set up by it. The infection and death were not independent of the accident but initiated by it. Recovery was accordingly allowed. There is nothing in the two Vermont cases we have discussed bearing on the case at bar. In Clark v. Employers’ Liability Assurance Co., 72 Vt. 458, 48 A. 639, the policy excluded death occasioned wholly or partly, directly or indirectly, by disease or bodily infirmity. The insured fell because of a stroke of apoplexy and was run over, and it was held that there was no liability, because the plaintiff had not shown that the decedent’s sclerotic diseased condition did not cause death. It is argued that the Clark decision differs because the word “indirectly” used in the policy there was broader than the words “due to accidental means alone and independent of all other causes.” We can see no practical difference and regard the Clark decision as directly in favor of the defendant’s position. In Aetna Life Insurance Co. v. Ryan, 2 Cir., 255 F. 483; Order of the United Commercial Travelers v. Nicholson, 2 Cir., 9 F.(2d) 7 and Commercial Travelers Mut. Acc. Ass’n v. Fulton, 2 Cir., 79 F. 423, recovery was denied under circumstances closely resembling the present. While the line is often difficult to draw between congenital infirmity or weakness of old age and diseases accelerated by accidents, we think that such a dangerous and abnormal physical defect as the existence of a large blood clot lodged in a vein leading to the heart brings the present case within the latter category and therefore that the death of the decedent did not arise through “accidental means alone.” Judgment 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?

HUMPHREY et al. v. BANKERS MORTG. CO. OF TOPEKA, KAN., et al. BANKERS MORTG. CO. OF TOPEKA, KAN., v. HUMPHREY et al. Nos. 1291, 1292. Circuit Court of Appeals, Tenth Circuit. Aug. 27, 1935. T. M. Lillard, of Topeka, Kan. (Tom D. McKeown, of Chicago, Ill., H. S. Roberts, of Kansas City, Kan., and N. J. Ward, of Belleville, Kan., on the brief), for appellants and reverse. • James A. McClure, of Topeka, Kan. (J. L. Stryker, of Fredonia, Kan., and Robert Stone, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, Kan., on the brief), for appellees and reverse. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. The separate appeals in these cases present conflicting orders entered by the District Court of Kansas sitting in bankruptcy. The Bankers Mortgage Company is a corporation organized under the laws of Kansas with its domicile at Topeka. It is authorized to issue and sell so-called savings bonds and other obligations and to •deal in mortgages and other securities. An action in equity for the appointment of a receiver was filed against it in the court below in 1933. The basis of the action was fraudulent conduct on the part of its officers. Frank L. Campbell, former clerk of the court, was appointed permanent receiver in July of that year and continued to conduct the business without interruption until the proceedings in bankruptcy which give rise to these appeals were instituted. The orders in the receivership proceedings were made and entered by Honorable Richard J. Hopkins, one of the judges of the court. On October 22, 1934, Clyde C. Humphrey and four others filed in the court below a petition under sections 77A and 77B of the Bankruptcy Act (11 USCA §§ 206, 207). They alleged that they were creditors of the corporation having provable claims against it aggregating more than $1,000 in excess of the value of the securities held by them; that the corporation was insolvent and unable to meet its debts as they matured; that the petition was filed in good faith; and that the corporation should effect a reorganization. They set forth in addition the pendency of the receivership proceeding, the manner in which the receiver had conducted the business, and the resulting necessity for the reorganization. That proceeding was referred to Honorable John C. Pollock, the other judge of the court. All orders made in it were entered by him. A joint and several motion of the corporation and the receiver to dismiss the petition was submitted to the court on November 12, 1934, and an order overruling it was entered April 3, 1935. A motion to set the order aside was filed and denied. The corporation, the receiver, and two stockholders answered. Insolvency, inability of the debtor to meet its debts as they matured within the meaning of the statute, the good faith of the petition, and that petitioners had provable claims aggregating more than $1,» 000 above their securities, were expressly denied. The issues thus raised were heard on May 6th. Evidence was submitted, and at the conclusion of the hearing the court said, among other things: “From this on, so long as it is handled in this court, the court will handle the whole thing and won’t have anybody butting in. * * * Let me say, if when these plans are brought in, 1 am satisfied you convince me, it is for the best interests of the people who have thing's at stake here, I will approve it. If I am convinced it is not any good, I will liquidate it. * * * 1 think I will appoint Mr. Campbell to act on as receiver, and if some plan is presented here to dispose of this company better than running along under this receivership, 1 will appoint Mr. Campbell Trustee.” Counsel were then given permission to file briefs. Petitioners were allowi d ten days and the corporation, the receiver and the stockholders ten days thereafter for that purpose. Twelve days later, that is, on Saturday, May 18th, at between 10:30 and 11 o’clock in the forenoon, the court signed an order in chambers at Kansas City in which it was found that the debtor was unable to meet .its debts as they matured; that the petition was filed in good faith and complied with the act of Congress; that petitioners and others desired to effect a plan of reorganization; and that on account of an emergent condition existing by reason of asserted adverse claims and litigation begun and threatened, immediate action was necessary to protect and preserve the estate. The petition was approved, jurisdiction was reserved for the purpose of making all necessary subsequent orders, and the clerk was directed to give notice that a hearing would be held on the 21st to consider the matter of an appointment of a temporary trustee. The order was handed immediately to the secretary of the court, and soon afterwards — the time not being more definitely fixed — she mailed it to the clerk at Topeka, that being the seat of the court. The envelope was postmarked at Kansas City at 3 o’clock in the afternoon, and it was received by the clerk at 8:30 o’clock on Monday morning, "the 20th. It was the prevailing custom of the clerk to mark orders signed by the court at other places than Topeka filed as of the date on which they were signed, and in accordance with that custom the order was marked filed on the 18th. The court, on the 20th and without a hearing, appointed Campbell as trustee with direction to take charge of the business and conduct it subject to further order. The trustee duly qualified immediately. Pursuant to a resolution of its board of directors adopted earlier in the day, the corporation on Saturday, the 18th, at 12 :15 o’clock in the afternoon, filed in the court below a voluntary petition in bankruptcy under the provisions of sections 77A and 77B. It was alleged therein that the corporation was not insolvent, but was unable to meet its debts as they matured; that it had been in receivership; that the creditors’ petition previously referred to had been filed and was then pending; that various claims and suits had been filed in the United States court in Mississippi ' involving sums in excess of $30,000; that the full amount of such claims with interest and attorneys’ fees was sought; that a hearing thereon had been set for the 25th of that month and that the court there had authorized others having similar claims to present them at that time; that the debtor believed many other similar claims would be filed, and that all of them would be allowed and judgments rendered thereon which would result in preferring those creditors over others. That petition was immediately presented to Judge Hopkins and all orders made in that case were entered by him. The court promptly entered an order approving the petition and appointing Campbell and Otis Allen as joint trustees.. Campbell declined to accept the appointment, and a subsequent order was entered later that day appointing Allen sole trustee with direction that he take charge of the property. The court entered another order on Monday morning at about 7:30 o’clock directing Campbell to surrender the property to Allen. A like order was entered at the same time in the receivership case. Allen and an officer went immediately to the residence of Campbell; a copy of each order was served and delivery of the property demanded. After some parley Campbell declined to deliver; instead, he filed a formal response in which he set forth his appointment as trustee in the involuntary proceeding and that he held the property by virtue of -it. • Answer was made to the response, and the petitioning creditors in the involuntary proceeding interposed a motion to dismiss the voluntary proceeding on the ground that by the approval of the petition in the former case, the court acquired and exercised exclusive jurisdiction of the debtor and its property, and that in consequence the later filing of the petition in the voluntary proceeding was without effect and conferred no jurisdiction upon the court. The court heard the entire matter. Testimony was submitted and the record in the involuntary proceeding was introduced. The court then made extended findings and conclusions. It was found, among other things, that the petitioning creditors in the involuntary proceeding did not have claims against the corporation in excess of the securities held by them, and that the commencement of that action was not for the best interests- of the creditors and stockholders. It was concluded that the court was without jurisdiction to enter the orders in that case approving'the petition and appointing a trustee which would bind the corporation; that such orders were void; that those approving the voluntary petition and appointing Allen trustee were valid. The motion to dismiss was overruled, and Campbell was directed anew to surrender the property. Appeals were allowed by the District Court. That in the first case here was from the respective orders made in the voluntary proceeding appointing Allen as trustee, directing Campbell to surrender the property, and overruling the motion to dismiss; that in the second case here was from the orders made in the involuntary proceeding denying the motion to set aside the order overruling the mo-' tion to dismiss the petition, approving the petition, and appointing Campbell as trustee. The record proffers a preliminary question respecting the right of appeal from orders made in a proceeding of this kind. The parlies do not present it, but it is jurisdictional and has engaged our attention. Section 77B of the Bankruptcy Act was added by the amendment of June 7, 1934 (section 1 [11 USCA § 207]), and its constitutional validity as a part of the law on the subject of bankruptcy is not open to doubt. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co., 294 U. S. 648, 55 S. Ct. 595, 79 L. Ed. 1110; Campbell v. Alleghany Corporation (C. C. A.) 75 F.(2d) 947; Grand Boulevard Inv. Co. v. Strauss (C. C. A. 8) 78 F.(2d) 180, decided July 15, 1935. That section contains no provision expressly authorizing an appeal except in one instance. It is provided in paragraph (c) (9), of the section that independently of others an appeal may be taken to the Circuit Court of Appeals from an order fixing an allowance. Otherwise the statute fails to authorize in express terms that an appeal may be taken from action had under its provisions. Bui it does provide: “ * * * If the petition or answer is so approved, an order of adjudication in bankruptcy shall not be entered and the court in which such order approving the petition or answer is entered shall, during the pendency of the proceedings under this section, have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section, and shall have and may exercise all the powers, not inconsistent with this section, which a Federal court would have had it appointed a receiver in equity of the property of the debtor by reason of its inability to pay its debts as they mature.” Paragraph (a). “All other provisions of this title, except such as are inconsistent with the provisions of this section, shall apply to proceedings instituted under this section, whether or not an order to liquidate the estate has been entered. For the purposes of such application, provisions relating to ‘bankrupts’ shall be deemed to relate also to ‘debtors’; ‘bankruptcy proceedings’ or ‘proceedings in bankruptcy’ shall be deemed to include proceedings under this section; the date of the order approving the petition or answer under this section shall be taken to be the date of adjudication, and such order shall have the same consequences and effect as an order of adjudication.” Paragraph (k). “In proceedings under this section and consistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and liabilities of creditors, and of all persons with respect to the debtor and its property, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor’s petition or answer was approved.” Paragraph (<?). These provisions, and the many others contained in the section plainly intended to assimilate a proceeding under its terms to an ordinary bankruptcy proceeding, render sections 24a, 24b, 25a of the Bankruptcy Act, 11 USCA §§ 47 (a, b), 48 (a), authorizing appeals applicable. That, however, is not enough. Which section applies in perfecting an appeal from these several orders? An order approving a petition effectually subjects the debtor to the jurisdiction of the court and places its property wherever situated in exclusive custodia lcgis from and after that time. In re Fox Metropolitan Playhouses (C. C. A.) 74 F. (2d) 722; In re 211 East Delaware Place Bldg. Corporation (C. C. A.) 76 F.(2d) 834. It has the same consequences with respect to subjecting the debtor and its property to the jurisdiction of the court for the purposes of administration in accordance with the terms of the statute that an adjudication has in an ordinary bankruptcy proceeding. That is apparent from a careful analysis of the various provisions of the section, and it is expressly so provided in the concluding language of paragraph (k). That paragraph further decrees that all other provisions of the title not inconsistent with those contained in the section shall apply to proceedings instituted under it whether or not an order to liquidate the estate has been entered. Paragraph (o), is in harmony. And paragraph (a), does not argue that they are dissimilar in effect. It suggests, on the contrary, that they are so closely akin in essence and consequence that approval of the petition suspends the power of adjudication while the proceeding continues to pend. Paragraph (o) is identical in substance with paragraph (n) of section 75 (11 US CA § 203 (n), except that in the latter jurisdiction attaches from the filing of the petition, while in the former it attaches upon the approval. The appeal in a quite recent case was taken from an order sustaming the petition of a creditor to dismiss the proceeding brought under section 75 because the debtor was not a farmer, but in passing the court expressed the view that the filing of the petition effected an implied adjudication which was the equivalent of an adjudication in bankruptcy. Wilkerson v. Cooch (C. C. A. 9) 78 F.(2d) 311. We think an order approving a petition under section 77B is so nearly the counterpart of an adjudication in an ordinary bankruptcy proceeding that an appeal from it may be taken under section 25a of the act (11 USCA § 48 (a). The appeal from the order approving the involuntary proceeding therefore was properly perfected. No appeal was taken from the order approving the petition in the voluntary proceeding. The orders made in the voluntary proceeding directing Campbell to turn over the property to Allen present a controversy arising in a bankruptcy proceeding review^ able under section 24a of the act (11 US CA § 47 (a). Harrison v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 70 L. Ed. 897; Great Western Stage Equipment Co. v. Iles (C. C. A.) 70 F. (2d) 197. And the District Court had power to grant the appeal from them. General Orders in Bankruptcy, No. 36, 11 USCA following section 53; In re Times Square Auto Supply Co. (C. C. A.) 47 F. (2d) 210; Central Republic Bank & Trust Co. v. Caldwell (C. C. A.) 58 F.(2d) 721; Domenech v. Lee (C. C. A.) 66 F.(2d) 31; In re McLean & Sons (C. C. A.) 70 F.(2d) 307; McBee v. Palmer (C. C. A.) 73 F.(2d) 342; Marcell v. Engebretson (C. C. A.) 74 F.(2d) 93. The respective orders overruling motions to dismiss and appointing trustees were made in a proceeding in bankruptcy from which an appeal could be allowed only by this court under section 24b, as amended (11 USCA § 47 (b). Campbell v. Alleghany Corporation, supra. It follows that we have for consideration the order approving the petition in the involuntary proceeding and the orders in the voluntary proceeding directing Campbell to deliver the property to Allen as trustee. In all other respects the appeals must be dismissed. . Coming now to the merits, we first consider the order approving the petition in’ the involuntary proceeding. The provisions of the act may be invoked by the corporation filing a petition with the court in whose territorial jurisdiction the corporation has had its principal place of business or its principal assets during the preceding six months or the greater portion of that time, or in any territorial jurisdiction in the state in which it was incorporated, stating the nature of its business, its assets, liabilities, capital stock, and financial condition; and alleging that it is insolvent or unable to meet its debts as they mature and that it desires to effect a plan of reorganization. Three or more creditors of a corporation having provable claims amounting in the aggregate to more than $1,000 in excess of the value of the securities held by them may file a petition with the court, if the corporation has not filed one or an answer in a proceeding of that kind, stating that the corporation is insolvent or unable to meet its obligations as they mature, and, if a prior proceeding in bankruptcy or receivership is not pending, that an act of bankruptcy has been committed within the preceding four months and that such creditors propose that it shall effect a reorganization. A copy of such petition shall be served upon the corporation and it is required to answer within ten days. At any time after a voluntary petition is filed or at any time after the period required for answer in case of a creditors’ petition, the court shall hear the matter summarily and, if satisfied that the petition complies with the terms of the act and is filed in good faith, shall approve it; otherwise, it shall be dismissed. Approval of the petition is the act through which jurisdiction of the court is acquired. It attaches to the debtor, and its property wherever situated is thereafter in custodia legis. That jurisdiction is exclusive for the purpose of administering the affairs of the debtor under the act. In case separate petitions are filed in different courts, priority of approval determines which court shall have jurisdiction; however, if a creditors’ petition is filed and while it awaits approval — not after approval — the debtor files another with promptness, it has preference. Hamilton Gas Co. v. Watters (C. C. A.) 75 F.(2d) 176; In re National Department Stores (D. C.) 8 F. Supp. 19; In re Kelly-Springfield Tire Co. (D. C.) 10 F. Supp. 419. But thé validity of the approval here is attacked on several grounds. It is said that the petition shows on its face, and the evidence confirms the fact, that the petitioning creditors do not have any claims against the corporation in excess of their securities. It is expressly alleged in the petition that they have provable claims of more than $1,000 in excess of their securities. Then follows the allegation that they hold and own bonds issued by the debtor upon which payments have been made and that the aggregate cash .surrender value of such bonds is $2,786.50. The bonds are a direct obligation of the corporation and they contain a recitation that the corporation is required by the Charter Board of the State of Kansas to keep on deposit at all times as collateral security first mortgages on improved real estate in an amount at least 10 per cent, above its liabilities on all such bonds, less loans made upon them. But there is no evidence in the record that securities of that value were deposited or otherwise earmarked for that purpose. There is evidence that throughout the receivership the average market value of the bonds has been 50 per cent, of their specified cash value and that they have sold on the market for that price. Ordinarily, bonds or other commercial paper do not have a substantially less price on the market than the fair value of the security pledged or earmarked to insure their payment. The fact tha.t the corporation is in receivership, that it admittedly cannot pay its debts as they mature, that these bonds have for about three years sold generally for 50 per cent, of their specified cash value, suggest strongly that the security does not exceed 50 per cent, of such specified value. The remainder, which is more than $1,000, has no security. The finding of the court that petitioners have provable claims of more than $1,000 in excess of their securities is supported by substantial evidence. It is insisted that the petition was not filed in good faith. In support of that contention emphasis is placed upon the fact that the petitioning creditors did not employ counsel and were importuned by others having an interest in the matter to lend the use of their names; that the order overruling .the motion to dismiss the petition and the order approving the petition were prepared by an attorney who did not represent any of the parties to the proceeding; and that after the court signed the order overruling the motion it was delivered to such attorney, who held it in his custody for several weeks before it was filed with the clerk. Some of the petitioning creditors were asked by persons desiring to effect a reorganization to lend the use of their names for that purpose, and they consented; but they understood that a reorganization was contemplated and that they were joining in that behalf at least to the extent of using their names. They did not know the technical procedure to accomplish that end, but that was not necessary. They favored a reorganization in the hope of realizing more from their investments and in consequence consented to the use of their names. The order overruling the motion to dismiss the petition and the order approving the petition were prepared by an attorney who did not represent any of the parties to the proceeding; and he held the order overruling the motion several weeks after the court signed it before it was filed with the clerk. He represented an outsider who desired to acquire the corporation after a satisfactory reorganization had been effected, and in furtherance of that desire he acquired some of its stock at about the lime the involuntary proceeding was instituted. But according to the undisputed evidence, the court requested the attorney to prepare the orders and their correctness is not challenged either as to form or substance. The fact that the corporation sought a reorganization within two hours after the challenged finding was made has significance. Both petitioning .creditors and the corporation concur in the contention that a plan of reorganization should be effected under the direction of the court, the only difference between them being the particular proceeding in which it shall be done. That is a very different situation from one in which a few dissenting creditors seek mischief in violation of the best interests of the debtor and other creditors. The evidence presented an issue of fact upon which the trial court passed. It has been repeatedly held that a finding of fact made by a chancellor is presumptively correct and will not be overturned on appeal unless a clear mistake was made in considering the evidence. Youngblood v. Magnolia Petroleum Co. (C. C. A.) 35 F. (2d) 578; Jonah v. Armstrong (C. C. A.) 52 F.(2d) 343; Jackson v. Jackson (C. C. A.) 67 F.(2d) 719; Standard Oil Co. of Colorado v. Standard Oil Co. (C. C. A.) 72 F.(2d) 524; Gorman v. Shaffer Oil & Refining Co. (C. C. A.) 74 F.(2d) 610. No mistake of that kind is shown here. The further contention is advanced that an order signed by the court in chambers during the absence of the parties does not become effective until it is filed with the clerk and in that way becomes public; that the order in question did not reach the clerk until Monday morning, after the order approving the voluntary petition had been signed and entered, and hence it never became effective. The contention is without merit. A judgment or an order of a court of record becomes effective when it is announced in open court or is signed either in open court or in chambers with prompt delivery to the clerk for entry in the records. The announcement or signature of the court is the judicial act and constitutes the rendition of the judgment or the making of the order; its enrollment in the records of the court is a ministerial act which supplies evidence of its existence. The order under review became effective at the time the court .signed it and delivered it to his secretary to be mailed to the clerk for entry.' Continental Oil Co. v. Mulich (C. C. A.) 70 F.(2d) 521; Dalton v. Bowers (C. C. A.) 53 F.(2d) 373; In re Neagle (C. C.) 39 F. 833, 5 L. R. A. 78; Montgomery v. Viers, 130 Ky. 694, 114 S. W. 251; Beetchenow v. Bartholet, 162 Wash. 119, 298 P. 335; Black on Judgments, § 106. Turning now to the orders made in the voluntary proceeding directing Campbell to deliver the property of the debtor to Allen as trustee, they were erroneously entered because the order approving the petition in that proceeding was entered without jurisdiction. We deal with two proceedings, but only one court. It had jurisdiction of the subject-matter, but that jurisdiction had been exercised by the approval of the involuntary petition almost two hours previously. By that action jurisdiction attached to the debtor and its property was in custodia legis. It was exhaustive and exclusive of subsequent action identical in nature. It could not be exercised by repetition. There remained no unexhausted reservoir of jurisdiction upon which the court could draw in approving the voluntary petition. How could a party already before the court and property already in custodia legis be brought again into that identical status? íhe question furnishes its own answer. The last turnover order cannot be sustained for another reason. It was based upon a determination of the court made in the voluntary proceeding that the order approving the petition' and the order appointing a trustee in the involuntary proceeding were void. It is well settled that in such circumstances the deliberate judicial acts of one judge are not open to review by another judge of the same court having co-ordinate jurisdiction. That is a salutary rule of comity which rests upon sound considerations of necessity. Any other would strike down orderly procedure and substitute unseemly conflict in its stead. The respective orders approving the petition and appointing a trustee in the involuntary proceeding could be reviewed only by appeal to this court. They were not open to review by the other judge of that court in the voluntary proceeding. Pickwick-Greyhound Lines v. Shattuck (C. C. A.) 61 F.(2d) 485; Plattner Implement Co. v. International Harvester Co. (C. C. A.) 133 F. 376; Commercial Union v. Anglo-South American Bank (C. C. A.) 10 F.(2d) 937; Hardy v. North Butte Mining Co. (C. C. A.) 22 F.(2d) 62; Jurgenson v. National Oil & Supply Co. (C. C. A.) 63 F. (2d) 727; In re Insull Utility Investments (C. C. A.) 74 F.(2d) 510. The order approving the petition in the involuntary proceeding is affirmed; the orders directing Campbell to deliver the property of the debtor to Allen as trustee are reversed- and remanded, with direction to consolidate the voluntary proceeding with the involuntary and that all subsequent action be had in the latter; and in all other respects the appeals are dismissed.

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?

MADSEN IRON WORKS v. WOOD et al. No. 9906. Circuit Court of Appeals, Ninth Circuit. Jan. 29, 1943. Rehearing Denied March 15, 1943. R. Welton Whann and Robert M. Mc-Manigal, both of Los Angeles, Cal. (Kelly L. Taulbee, of Los Angeles, Cal., of counsel), for appellants. Hackley & Hursh, Roy C. Hackley, Jr., and Jack E. Hursh, all of San Francisco, Cal., for appellees. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. DENMAN, Circuit Judge. This is an appeal from a declaratory judgment which holds that the appellees have a valid patent, serial number 1,997,-957, for a feeding mechanism of a -road mixing machine which the judgment also holds appellant had infringed by manufacturing and selling a similar road mixing machine having a mechanically equivalent feeding mechanism. Since we hold that the appellees claimed patent of the feeding mechanism, whether considered alone or as attached to the mixer, has no, novelty over the prior art, it is unnecessary to consider the question of appellant’s infringement. Appellees’ patent purports to find invention in a feeding mechanism into a portable cylinder carried on wheels with its rounded side parallel to the road, which at its forward end receives from the feed loosened and partially pulverized earth of an existing road into the cylinder, where it is stirred and mixed with mineral oil, the earth being propelled rearward by a double worm which brings the material from its forward entrance to the rear end of the cylinder where it is redeposited. The machines manufactured under appellees’ claimed patent are of excellent mechanical structure and have had commercial success in thus improving the surfacing Of dirt roads. Great stress is laid on this commercial success. One of the questions we have to consider is whether this is due to inventive novelty in its feeding mechanism, alone or in its attachment to the mixer, or due to mere mechanical excellence of the entire mixing machine as a whole having in it the application of known and established facts and principles of the prior art of mixing pulverized materials. No novelty is claimed or could be made because the major material is road dirt or because the mixing machine is portable on a wheeled conveyance. Nor is there any novelty in the use of the rearward turning double worm in its moving along of the earth inside the cylinder while the other materials are being mixed with it; nor in the circular turning paddle blades in the mixer set at angles to give at some places a propelling forward and at others a retarding motion to aid in both mixing and moving the material to its rear exit. Nor is there novelty in the flanged scraper which gathered the earth at • the forward end of the cylinder. Nor is there urged here a claim of novelty in the combination of these factors. The only claim of novelty is in the device itself and in the addition of ,the mechanical feed to such a mixer. A similar road mixing cylinder also parallel to the road and transported on wheels, with road earth moved through it by revolving mechanical equivalents of the worm in the appellees’ machine, was patented to one Popkess in serial number 1,-062,113. In the Popkess patent the opening through which the earth enters is on the lower face of the forward vertical cylinder head. In front of the hole is a horizontal scraper with side flanges angled downward into the pulverized earth on the road which scrapes it upwards and backwards till it comes into contact with the conveying apparatus inside the cylinder, which then carries it backward through the mixer. Appellee Wood made a model like the Popkess machine with a similar entrance in the forward vertical end of the cylinder and concluded the earth would pile up and be pushed forward. He therefore cut the hole backward into the forward part of the under curved side of the cylinder so that the hole extended from the vertical face diagonally downward across the cylinder’s forward lower end. The flanged scraper was placed at the lower end of the diagonal cut. With the hole thus diagonally cut, the lower part of the two forward blades of the rear propelling worm came in contact with the earth on the scraper and assisted in moving it backwards towards the remaining blades of the worm where the mixing process began. Upon this device, appellees’ patent claims of novelty are Claim 4. “* * said rotatable conveying and mixing mechanism in the cylinder having an extension beyond the front end of the cylinder to engage with, and initially act upon, the scooped up material before it reaches the cylinder and to operate to assist in feeding said material into the cylinder as the machine progresses.” There is no novelty in having a conveying device move material into a mixing machine, whether it be a worm or some' mechanical equivalent such as a series of paddles. Such a device, successive paddles on a rotating belt, is shown to move road earth over a scraper like plow into a mixer for combination with mineral oil, the whole mechanism carried over the road on wheels, in the drawing of the Murray road mixing patent, serial number 884,893. It does not constitute novelty in appellees’ mechanism for feeding earth into the mixer that the mixing process to which the earth is fed is not identical with that of the appellees. In another patent, serial number 1,332,-987, issued to Julian and Hutchings, for a stationary machine for mixing road materials, the drawing shows a worm revolving outside the cylindrical mixer and moving the material into the cylinder where a propelling and mixing device carries the earth on in the cylinder, there mixing it with the oil, the mass finally emerging at the other end. So far as concerns mechanical equivalents, it is a matter of indifference whether the earth is moved into the worm on its upper side, as in the Julian and Hutchings patent, or on its lower side as in appellees’ device, or that in one case the worm feeds a stationary mixer and in the other the mixer is being moved over a road. Assuming that attaching appellees’ feed to the mixing cylinder was at one time a patentable novelty, it was old in the art when appellee Wood filed his application. In view of this prior state of the art we are unable to see any invention in the claims of appellees’ patent upon which they rely here. A long known mechanical process or device processing pulverized material does not warrant patenting because its use is commercially profitable when it is applied on similar material at a different place, even though that process or device is there to be used for the first time as a commercial success. The decree declaring appellees’ patent to be valid and that appellant has infringed is reversed. Other claims are Claim 5 “ * * * a scraper blade and a pair of gathering blades carried by the vertically adjustable frame and disposed in front of the cylinder, * * Claim 7 ■“* * tt. a COnveyor carried by the shaft and disposed forwardly of the cylinder and engageable with said material for delivering it into the front end of the cylinder.” Claim 17 “ * * “ conveying means in front of the cylinder to engage the material and to feed the same into the cylinder, * * *_)> Claim 20 “ * * * a scraper on the advance end of the cylinder to scoop up the material to be treated, a screw conveyor having its forward end projecting beyond the front end of the cylinder and over the scoop and adapted to engage the scooped-up material before the latter enters the cylinder, * * Claim 21 “ * * * a conveyor extending through a substantial portion of the cylinder and projecting beyond the front end thereof, constructed and arranged to engage the scooped-up material to deliver it initially into the cylinder, * * *.” Claim 22 “ * * s: a scraper for scooping up the material from the roadway preparatory to its delivery into the cylinder as the machine progresses over the roadway, a screw conveyor within the cylinder with its forward end projecting beyond the front end of the conveyor and extending over the scraper to engage the scooped up material, * *

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?

PRENTISS v. CHANDLER. SAME v. TIMES-MIRROR CO. Nos. 8031, 8032. Circuit Court of Appeals, Ninth Circuit. Sept. 23, 1936. Rollin L. McNitt, of Los Angeles, Cal. (Edythe Jacobs, of Los Angeles, Cal., of counsel), for appellant. T. B. Cosgrove, F. J. O’Neil, and Richard G. Adams, all of Los Angeles, Cal., for appellees. Before WILBUR, GARRECHT, and HANEY, Circuit Judges. Rehearing denied Nov. 16, 1936. GARRECHT, Circuit Judge. We are here'concerned with an appeal from a judgment dismissing an action instituted by H. F. Schilling (predecessor of William Prentiss, Jr.), as receiver of the United States National Bank of Los Angeles, against the appellee Harry Chandler in case No. 8031 and also a similar appeal in case No. 8032 in an action brought by the same receiver against the Times-Mirror Company. The complaints were filed on the same day. The tases were not consolidated, but were set down on the same day for trial in the court below. By stipulations made during the trial and at the close of the first case it was agreed that the evidence offered by plaintiff might be considered as applicable to both cases. We are accordingly passing upon the two appeals jointly. The actions were tried by the court following a waiver of jury trial. At the close of the testimony offered on behalf of the appellant, the appellee moved for general findings in favor of each of the defendants and to grant and enter a judgment of nonsuit, and dismiss the action, and for judgment for the appellee in each. The motion was granted and judgment entered. The correctness of the rulings on the motion is the principal question presented on the appeal. Rulings of the court sustaining objections of the appellee to the introduction of testimony and other rulings overruling objections of appellant are also assigned as reversible error. The actions were brought to recover from Harry Chandler, in one case, and the Times-Mirror Company, in the other case, a certain sum paid to, each on August 11, 1931, on time certificates of deposit, none of which was due. These actions were brought under United States Revised Statutes, § 5242 (12 U.S.C.A. § 91), the portion of which, material to the question here, provides that payment of money by a national bank “made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to'the preference of one creditor to another, * * * shall, be utterly null and void.” The facts relied upon to support the allegations of the complaint are as follows: The Los Angeles Clearing House Association had made an examination of the bank and prepared a report, dated August 15, 1930, which was brought to the attention of the directors of the bank as early as October 29, 1930. The report criticized the unsatisfactory condition of many of the loans of the bank and the lack of supporting evidence of the financial responsibility of many of the largest debtors. Between September 19, 1930, and October 22, 1930, national bank examiners studied the bank’s condition, and brought it to the attention of the directors on November 26, 1930. In commenting on the condition of the bank in this report, the examiners indicated that certain losses should be charged off; certain other assets were listed as slow and doubtful; specific criticisms were made of other loans; the manner in which some accounts had been kept was censured; changes in conducting the trust department were suggested and the propriety of carrying the “Ferguson Trusts,” hereinafter discussed, was raised. At the January 28, 1931, meeting of the directors, attention was again called to the report of the examiners and a letter in relation thereto from the Comptroller of the Currency of the United States, dated November 26, 1930, was read. At a special meeting on February 2, 1931, the directors again reviewed the Clearing House report and a supplemental report. These reports apprised the directors of the fact that no improvement had been made in the condition of the bank, but that its loans and discounts were in a worse position than at the time of the August report. In the afternoon of the same day, at the special meeting of the board of directors, the president and the executive vice president of the bank conferred with the Los Angeles Clearing House committee and a proposed plan was outlined to the committee whereby funds might be secured, by means of which the criticized paper could be taken out of the bank, and cash substituted therefor. In March, 1931, the proper officers of the bank were authorized to communicate with the Comptroller of the Currency of the United States, and in May other plans for reorganization were discussed. At the meeting of the directors of June 24, 1931, the directors voted to omit the usual dividend of June 30th. On July 10, 1931, written demands on the United States National Bank by the receiver for the Ferguson Trusts were made, charging the bank with certain violations of the agreement of trust and with the unlawful diversion of trust funds. At the regular meeting of the board of directors on July 29, 1931, a letter from the Comptroller of Currency, under date of July 2, 1931, was read to the board. In this letter the Comptroller of Currency commented on the report which National Bank Examiner Lamm had submitted concerning the condition of the bank. Among other things, the Comptroller wrote: “The bank’s condition from the standpoint of undesirable assets is decidedly unsatisfactory, and as the examiner states presents a serious problem.” The letter then goes on to express the hope that the directors will devote themselves diligently and untiringly to the business of making such changes in operating policies and management as are necessary to insure successful operation in the future. The Comptroller also expressed a desire to be kept closely informed regarding the situation of the bank and directors were requested to submit monthly reports beginning July 15. Pursuant to these requests of the Comptroller a letter dated July 29, 1931, was sent forward, signed by O. M. Souden, chairman of the board. This letter reviews the affairs of the bank in some detail, particularly with reference to the departments that- had been criticized in the report of the examiner. The letter also outlined the manner in which improvements had been made and to it was appended a memorandum showing the condition as of July 15, 1931, of the loans that had been criticized, tpgether with the ■current appraisals. At this meeting special counsel were employed to give an opinion as to the-possible liability of the bank in relation to the Ferguson Trusts. The controversy concerning the Ferguson Trusts and the possibilities of settlement were under discussion by the attorneys for the respective parties during the month of July. In the early part of August a representative of- the Comptroller’s office was advised of the situation. On August 5, 1931, a conference was held, after which the attorneys for the bank advised that there was a liability 'on behalf of the bank in connection with the Ferguson Trusts claim, and also that suit was being withheld as a matter of public policy, pending efforts to arrive at a settlement. At the conference Mr. Lamm, the bank examiner, stated that from his analysis “ * * * the whole thing resolved itself into one thing; favorable compromise, speedily made, which would preserve the integrity of the institution.” Thereafter further negotiations were had with the result that the Ferguson Trusts agreed to accept $400,000, in cash, plus another $100,000, which $500,000 was to be paid to the receiver out of certain assets that the bank was to put into an investment company or out of the first money received in the liquidation of those assets. At this conference it was mentioned that in order to perfect the settlement, an agreement by the bank would have to be made with some outside person in order to secure the $400,000. It was also stated that the bank officials were then dealing with a group headed by a Mr. Bell, which was to furnish the new money. On August 10, 1931, Bank Examiner Lamm was advised that the bank association contemplated sale of the bank to Mr. Bell, which proposed transaction was outlined and which indicated that the plan contemplated also included the settlement of the Ferguson Trusts. It was suggested.that, instead of Bell purchasing the stock of the bank as proposed, it would be better that a new bank be organized by Mr. Bell. Mr. Lamm, the bank examiner, recommended to the Comptroller that Mr. Beíl be granted a charter. This was refused on August 15; 1931. A meeting between a committee from the board of directors of the United States National Bank and a special committee from the Clearing House Association was held on August 6, 1931, for the purpose of securing the aid of the Clearing House. At the close of this meeting and as they were adjourning, one of the representatives of the Clearing House remarked, “Gentlemen, you may not realize it, but there is a quiet run going on against your bank at this moment.” There was evidence that for some time withdrawals were being made in excess of deposits, which steadily diminished the amount of cash on hand. D. W. Pontius, one of the bank directors, called.by the appellant, testified that his attention was first directed to the ■Ferguson Trusts along in February, 1931. After appointment of receivers for the trust, there was some fear that the matter would be given publicity in. the newspapers, which would cast reflection on the bank. Thereafter the witness, with Mr. Weidner, president of the bank, went to see Mr. Chandler, who was a dependable man of influence and prominence, not only in the city, but elsewhere, and who was conducting large newspapers. The witness said to Mr. Chandler: “If there is anything published about the ‘Ferguson Trusts’ it won’t be to the best interests of the bank.” He asked Mr. Chandler to use his best efforts to see that nothing appeared in the newspapers. The witness further said: “I might have.discussed with him at that time that if this thing got along far enough to' go to the Clearing House Association — to talk to them — I might have said to him there, ‘Mr. Chandler, won’t you talk to Mr. Chaffey in connection with anything that might occur in this bank?’ But at the same time I knew in my own mind that the bank would not be closed, and that there was no chance of it closing; and all of my evidence and all of niy records show that there was no chance of the' United States National Bank closing until the morning that it was actually closed; and I offered the resolution closing the bank.” He testified that this conversation with Mr. Chandler was held some time in April or May. Later, the transcript recites the following as the testimony of the same witness: “The bank was not in difficulties at all at that time; they went over and talked to him in a general way about the condition of the bank; that the bank was not in trouble then at all, * * * that no troubles came to the attention of the witness after May 25th until about August 17th; that as far as he can recall he was not present at the special meeting of August 6th.” Moreover, he said that this conversation with Chandler was not after August 6, 1931, but that it was prior to June 1, 1931. He said he fixed the time from the fact that he made this call on Mr. Chandler before he had prepared the documents which he presented to the board of directors whereby they agreed to subscribe $100,000 for the purpose of taking the bad paper out of the bank. This document was prepared on May 25, 1931, and it was all signed prior to June 9, 1931, Pontius said. He further testified that he was given to understand by the president and manager of the bank that if the directors raised $100,000 among themselves and took some of the doubtful paper out of the bank, the bank would continue to operate permanently, notwithstanding the Ferguson Trusts claim. There is no evidence that at the time the -withdrawals were made, the appellees had been advised by anyone connected with the bank that there was any likelihood of its suspension. The only evidence of any of the bank officials having discussed bank affairs with appellees was the conversation of Director Pontius, wherein he requested Chandler to use his influence to withhold publicity of any suit by the receiver of the Ferguson Trusts in case it was instituted, because the claim for $4,000,000 was such a large amount that the mere bringing of such a proceeding might have an unfavorable reaction upon the bank. Mr. Pontius testified that at the time he had this talk with Mr. Chandler he did not know that either Chandler or the Times-Mirror Company had any money on deposit in the bank, and that he believed the bank to be in no danger of being closed. It is emphasized as a ground for suspicion that these certificates were presented before due and that the officer to whom these certificates were presented before paying them asked the president of the bank if payment should be made without insisting on time after notice given, which could have been required under the provisions of the certificates. The evidence is to the effect that theretofore no such notice had ever been asked of any depositor and that payments were made in due course as had been the custom of the bank, and it does not appear that the officers, at the time the certificates were paid, had a design of preferring the appellee Chandler, or entertained any belief that the bank was soon to suspend. Concerning the cashing of the Time Certificates of Deposit of the Times-Mirror Company and of the appellee Chandler, the witness, Assistant Cashier Stern, testified that on August 11, 1931, about 11 o’clock in the forenoon, the certificates held by the Times-Mirror Company, of which appellee Chandler was the president, were presented with a request for payment. The witness could not definitely remember who presented them but he thought it was Mr. Pfeffingcr, the treasurer of the Times-Mirror Company. The request was for a cashier’s check with interest included. Because of this demand for interest the witness asked to have the certificates of deposit left for a short time to enable him to take this interest matter up with another officer of the bank. The witness testified that he was instructed to take up large withdrawals made during the period from August 1 to August 18 with executive officers of the bank. In this instance he took the matter up with Mr. Weidner, knowing that he had introduced the account and was friendly to the gentlemen concerned, also because it was a large withdrawal; and, further, because the bank always had the right to demand of time certificate of deposit holders notice for a certain length of time if the certificate was not due. Inasmuch as withdrawals were quite heavy, the witness did not know hut the bank might require the notice, although he had never had discussion with any one with reference to making a demand for time. There was, however, such a possibility. The witness testified that the practice with reference to paying interest before maturity usually was that the interest was paid at six-month periods, provided the certificate was made out to cover a period of six months or more. The Times-Mirror certificates were for different dates and a full six months interest was not due. And when a cashier’s check covering these certificates and interest to date was asked for, the witness did not feel that he should act on his own responsibility, and he wanted to consult some other officer, particularly Mr. Weidner. > In regard to the interest, the person who presented the Times-Mirror certificates said that it was not necessary to determine that question at once, but that any interest could be adjusted at a later date. The certificates were left, however, and the witness took up the matter of their payment with Mr. Weidner. After talking to some one on the telephone, Weidner said: “I am informed that they have a commitment of a considerable size to meet, and that as the money has not come in as they had anticipated that it was necessary that they make the withdrawal of the funds from the bank.” This occurred about noon. During the lunch hour, while the witness was out, the Harry Chandler certificate was left at the bank. This certificate was not presented to him at the time when the certificates of the Times-Mirror Company were presented; it was there when he returned from lunch. He did not see it presented, but he signed the check and delivered it to a representative of Mr. Chandler. Interest was not paid on the Times-Mirror Company certificates; the check was drawn after the witness’ conversation with Mr. Weidner, but the assistant cashier did not remember having delivered the check to any one. The witness testified that he was keeping in daily touch with the financial situation in the bank, commencing in August, 1931, in regard to withdrawals; that he knew the withdrawals were heavy and believed that if the withdrawals kept on and new capital did not come in, there was a possibility of the bank’s suspending, although he believed the institution was financially sound; that he pursued the ordinary course of handling this matter on August 11th, as far as large withdrawals were concerned. During this period the bank had not required notice of presentation prior to the due date of the time certificates. The assistant cashier further testified that he did not know or have any intimation that these certificates were to be presented for payment, and that at the time they were presented the bank was conducting its business in regular course. The appellant also called a number of other bank officials, who testified that while they realized that it was possible for this bank or any other bank to suspend, they did not think that there was any probability that this bank would do so. They explained that they were confident that they would receive support from the Clearing House Association. They believed this up to ten minutes of ten of August 18, 1931, at which time Mr. Johnson, who was representing the board of directors of the bank at a session of the Clearing House, reported by telephone that the Clearing House Association would do nothing. Thereupon, after a short discussion by the directors, it was decided to close thq bank. The many reports of government bank examiners and correspondence with the Comptroller of the Currency take up most of the record. These were offered for the purpose of showing that the bank was insolvent at the time the payments here involved were made and to bring home this knowledge to the directors. Particular emphasis is placed on a phrase quoted from one report, as follows: “Laden with slow; and burdened with doubtful assets the Bank presents a serious problem.” This particular report was read to the directors on June 24, 1931. Thereafter, about the 1st of August, the chairman of the board of directors made a report to the Comptroller which indicated an earnest effort to comply with the suggestions for improvement of conditions and clearly shows that the officers were not anticipating closing the bank. More than that, these bank examiners and the Comptroller of the Currency were in closest touch with the bank situation to the day of suspension and no such action had been suggested. These officials, like the officers of the bank, apparently believed that the bank eventually would overcome its difficulties. It was stipulated that all evidence before the court might apply as well to the case against the Times-Mirror Company. Plaintiff then rested in both cases. Thereupon counsel for defendants interposed the following motion: _ “If your Honor please, for the purpose of testing the sufficiency of the evidence, the defendant Harry Chandler in the one case and the defendant The Times-Mirror Company in the other case now move the court at the close of the testimony in chief offered on behalf of the plaintiff and after the plaintiff has rested his case and prior to the introduction of any testimony on behalf of the defendant to make general findings in favor of each of the defendants and to grant and enter a judgment of non-suit against the plaintiff and in favor of the defendant in each case and to dismiss the actions as against the defendants and to enter judgment for the defendants in each of the cases on the following grounds and each one thereof: “1. The plaintiff has not shown facts sufficient to entitle him to recover; “2. The evidence is not sufficient to support a judgment in favor of the plaintiff and against the defendants; “3. The evidence is not sufficient to support a finding that the payment of the sums of money mentioned in the complaints in each of the cases by The United States National Bank of Los Angeles to the defendants on the 11th day of August, 1931, was made by said bank after the commission of an act of insolvency by said bank, or in contemplation of an act of insolvency by said bank, or with a view of preventing the application of its assets in the manner provided by law, or with a view to the preference of one creditor to another ; “4. That the evidence is not sufficient to show that at the time that the payment of the sums of money mentioned in the complaints, or either of them, was made by The United States National Bank of Los Angeles to the defendants, or either of them, on the 11th day of August, 1931, the financial condition of said bank was such that an act of insolvency was imminent ; “5. The evidence is not sufficient to show that said payment was actuated by the knowledge on the part of said bank, or any officer thereof, or the insolvency of said bank, or that said payment was influenced in any manner by such knowledge. “The evidence discloses that said payments, and each of them, was made in the ordinary course of business of s-aid bank.” The trial court sustained the aforesaid motions and rendered judgment against plaintiff on all grounds stated, from which judgment this appeal. From the cases cited by appellant and the reading of the statute (12 U.S.C.A. § 91), it is clear that the purpose of the enactment was to guard against the wrongful or preferential disposition of the assets of a bank known to be or about to become insolvent. The statute says all payments of money to creditors, “made after the commission of an act of insolvency, or in contemplation thereof, made * * * with a view to the preference of one creditor to another * * * shall be utterly null and void.” It was stipulated at the trial that this bank “was receiving deposits and paying out money and transacting.the usual and ordinary banking business. And that for a week after these withdrawals.” The knowledge and intent required to avoid a transfer relate to the knowledge and intent of the officers making the transfer. Here there is no showing that on the day the money was withdrawn the bank was actually insolvent or that there was any expectation that the bank would close. The testimony of all the bank officials is to the contrary. There was no showing of preference, nor would the evidence sustain any finding that any knowledge of the impending suspension of the bank had been imparted to these depositors by any official of the bank. The officer who paid out the money to appellee testified that he pursued the ordinary course of handling such matters; that the bank had not theretofore, in handling certificates of deposit, required notice of presentation prior to due date of the time certificates; that the officers had no intimation that the certificates would be presented until they were actually tendered for payment. At the time of the presentation of the certificates and payment of the money to appellees, the bank was conducting its business in regular course and continued to do so for a week thereafter. The evidence sustains the view that these payments were made in the usual course of business, uninfluenced by the state of the bank’s pecuniary affairs. Of the cases cited by the appellee we refer to the following decisions which support the judgment of the District Court: Rucker v. Kokrda (C.C.A.10) 68 F.(2d) 73; Collins v. School District (C.C.A.3) 72 F.(2d) 339; and Nelson v. Lewis (C.C.A.2) 73 F.(2d) 521. Collins v. School District, supra, affirms that in cases brought tinder Rev.Stat. § 5242 (12 U.S.C.A. § 91), where the transaction involved is alleged to be a preference made in contemplation of insolvency, the burden of proof is upon the receiver to show that the directors of the bank intended or had in view as a purpose, or as a future event, the insolvency of the bank at the time the transaction took place. In the case at bar the District Court determined that there was no such intent and purpose. In the other decisions noted, many of the cases cited by appellant are carefully analyzed and commented upon, so as to make them easily distinguishable when sought to be applied to this case. Upon the argument and in the brief, the appellant stressed the more recent case of Mechanics Universal Joint Co. et al. v. Culhane et al. (C.C.A.7) 80 F.(2d) 147. The controlling facts in that case, as recited in the opinion, are different from those in the case at bar. There the president of appellant, who caused the funds of the company to be' withdrawn from the bank on Saturday, June 13, was' also a director of the bank and knew at the time that the cash position of the bank was such that it could not stand a run of one business day and that the bank officers anticipated that such a run would occur on the following Monday. The check was drawn one day before the bank closed, and paid through the clearing house the day it closed. There were many other facts disclosed, all of which clearly showed a violation of section 5242 of the Revised Statutes (12 U.S.C.A. § 91). In this case we cannot say that the District Court was wrong in holding that the evidence failed to show that the officers of the bank knew of its insolvency at the date of the withdrawals; or that the payment of the certificates as far as the bank was concerned was not made in due course of business, uninfluenced by the state of the bank’s affairs; or that there was an intent to prefer the appellees. We therefore concur in the finding of the court below: “That the evidence, and all reasonable inferences to be drawn therefrom, is insufficient to prove that the payment by the bank of the money sought to be recovered herein, was made after the commission of an act of insolvency or in contemplation thereof, nor made with the view to prevent the application of its assets in the manner prescribed by law, or with the view to the preference of one creditor to another, as provided in United States Revised Statutes, § 5242 (12 U.S.C.A. § 91) * * From the showing made we are convinced that at the time the payments were made the officers of the bank did not contemplate the insolvency of the institution and that the payments were not made with the view of preferring these creditors. That the foregoing conclusion was inevitable upon the evidence admitted is almost conceded in appellant’s further argument in support of certain assignments of error based upon the exclusion of proffered evidence, which it is claimed was essential to sustain appellant’s contentions here made. We come now to consider these exceptions. The appellant has specified as error the exclusion by the trial court of the complaint, answer, and memorandum of conclusions and order for judgment in the case of Receiver of the United States National Bank v. A. Sieroty and Bertha Sieroty, which were offered by plaintiff to show that in another and similar action, wherein the same bank was involved and a violation of the same statute was in issue, the court found that, on a date shortly prior to the date of payment to or withdrawal by defendant, an act in contemplation of insolvency was committed by this bank by making other payments in violation of this statute. Counsel for defendants when the offer was made interposed the following objection: “We object to the introduction in evidence of the pleadings or any of the pleadings in a case which has no bearing upon this case at all, so far as the pleadings in the case are concerned. I can’t understand upon what theory anyone would consider that the case was relevant; but it has been mentioned here several times during the trial of this case, undoubtedly to bring before your Honor the circumstance that Judge James in another case brought by this same receiver has found in his memorandum decision against the defendant Sieroty. We are quite willing, and as a matter of fact we are anxious, that the court read the opinion of Judge James in that case. We will call it to your Honor’s attention and furnish your Honor with a copy of that. We are willing that the court be furnished with a copy of the transcript of the evidence, if you wish to consider it, in the Sieroty case; and we would be glad to furnish that. But we think that so far as the evidence in this case is concerned, that the pleadings in a case in which the defendant Harry Chandler and the defendant Times-Mirror Company were not parties has absolutely no relevancy to the issue raised by the complaint against them.” The evidence in that case is not before the court. Admittedly the decision in another action, to which defendant in this case was not a party, is not res judicata here. The pleadings offered do not constitute evidence in this case. Their exclusion by the court was correct. A number of questions were propounded to the assistant cashier who signed the checks in payment of the time certificates for the alleged purpose, as asserted in the appellant’s brief, of showing the intent and knowledge of this officer that these payments would operate as preferences. In the assignments of error and in the brief it would appear as if the questions and objections occurred consecutively. In fact, they are scattered through many pages of the record and their separate discussion would extend the opinion to unreasonable limits, and serve no valuable purpose. It also appears from the record that other testimony of the entries supplies facts sought to be addressed by the questions ruled objectionable. As the ruling of the court, we quote the following excerpt from the record: “Q. By Mr. McNitt. Did you have in mind that payment of these two withdrawals that have been the subject matter of this examination might constitute a preference on the part of the bank? “Mr. Cosgrove. We do object to that question, if the court please, on the ground that that is what this court is here for the purpose of determining. “The Court. Yes — the facts. “Mr. McNitt. If your Honor please, we are entitled to know what was in the mind of this witness. “Mr. Cosgrove. Well, you are entitled to know what was in the mind of this witness, if his acts were an indication of what was in his mind, yes. But the court is here for that very purpose. That is the ultimate fact to be found, as to whether or not this payment was a preference. Now, to ask a witness that is a clear invasion of the province of"the court. “The Court. Yes. Objection sustained. Note an exception.” “Thereupon the following question was asked and the following proceedings had: “O. Did you discuss with Mr. Weidner the fact that those withdrawals might constitute a preference to Mr. Chandler and to The Times-Mirror Company? “Mr. Cosgrove. I object to that question, if the court please, for the same reason. “The Court. Objection sustained. “Mr. McNitt. We note an exception. That is all.” The objections were placed upon the ground “that this is what the court is here for the purpose of determining.” That is, the ultimate fact to be found, as to whether or not this payment was a preference. The judge sustained the objections on the theory that these questions were an invasion of the province of the court and that the question of what constituted a preference was a conclusion of law to be drawn by the court from evidentiary facts and therefore any assumption by the witness as to what constituted a preference was not admissible. On this theory which appellant did not clearly controvert it cannot be held that the ruling was wrong. Furthermore, this witness, in other portions of his testimony, revealed his attitude of mind and the subject of his conversation with Mr. Weidner. This is shown by the following excerpts from the record: “The witness testified that he was instructed to take up large withdrawals made during the period from August 1st to August 18th with executive officers of the bank; that he doesn’t remember whether it was Mr. Johnson or Mr. Weidner, but he either wrote the name of the individual or concern making the large withdrawal on a sheet of paper or slip, and he usually placed those on Mr. Johnson’s desk. In this instance, he took the matter up with Mr. Weidner, knowing Mr. Weidner had introduced the account and was friendly with these gentlemen, and because it was a large withdrawal and the bank always had the right to demand on certificates of deposit that they be given a certain length of time or notice if the certificate is not due. They also had the right in savings to demand certain notice. Inasmuch as withdrawals were quite heavy, the witness didn’t know but what they might make a demand of this sort, although he had never had any discussion with anyone with reference to making a demand for time; but there is always that possibility.” “In response to the question whether it had occurred to him on August 11th that the bank might ultimately suspend, the witness testified.that he didn’t know as it would be on that particular day, but he believed that if the' withdrawals kept on and new capital didn’t come in, there was a possibility of the bank suspending, although he believed the institution was sound financially; * * * “He could not say that August 11th was the first time he thought there was a possibility of the bank suspending, but he knew that if the heavy withdrawals kept on there had to be a stopping place somewhere, and if they kept on that way there was only one thing that could happen; the bank would either have to have new capital or they would have to suspend; that was inevitable.” With the foregoing testimony in the record the answers would have been merely cumulative, and even if improperly excluded the same would constitute harmless error. Other errors assigned relate to the refusal of the court to permit Edythe Jacobs, one of the appellant’s attorneys, to testify for the purpose of impeaching Mr. Pontius, appellant’s own witness, alleged to have shown himself hostile. As pointed out by the Court, no proper foundation for impeachment had been laid. There was no error in the ruling. Likewise there was no error in permitting witness Pontius to refresh his memory from memorandum prepared by him at the suggestion of the appellants’ counsel as to datas and other matters upon which he was to testify. The witness stated what documents had been consulted in arriving at the dates upon which certain conversations took place, some of which documents referred to were in court. He further stated that by consulting the memorandum before giving his answers to the questions his memory would be refreshed so that he could be more sure of the correctness of his statements and he knew that the memorandum was correct. In these circumstances it was proper for the court to permit the witness to refresh his memory by consulting the memorandum before testifying. Nor was there error in refusing to permit the receiver as an expert to express an opinion as to solvency of the bank at the time of the payment of the deposits. He was permitted to give the figures and accounts upon which his opinion was based. It was then for the court to determine what conclusion should be drawn therefrom. In the case of Kullman & Co. v. Woolley (C.C.A.) 83 F.(2d) 129, 132

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

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

MAGNUS PETROLEUM COMPANY, INC. and Marpat Corporation, Plaintiffs-Appellees, Cross-Appellants, v. SKELLY OIL COMPANY, Defendant-Appellant, Cross-Appellee. Nos. 78-1387, 78-1388. United States Court of Appeals, Seventh Circuit. Heard Feb. 14, 1979. Decided May 23, 1979. Rehearing and Rehearing En Banc Denied June 20,1979. W. Stuart Parsons, Milwaukee, Wis., for defendant-appellant, cross-appellee. Irving I. Saul, Dayton, Ohio, for plaintiffs-appellees, cross-appellants. Before CUMMINGS and SPRECHER, Circuit Judges, and LEIGHTON, District Judge. District Judge George N. Leighton of the Northern District of Illinois is sitting by designation. CUMMINGS, Circuit Judge. This private antitrust action was brought in July 1973 by a Sheboygan, Wisconsin, gasoline and fuel oil distributor (Magnus) and the Company (Marpat) owning the land and buildings involved in the distributorship. Defendant Skelly Oil Company (Skelly) formerly was Magnus’ supplier of gasoline, furnace oil and related products. In seeking damages in excess of $700,000 (before trebling under Section 4 of the Clayton Act, 15 U.S.C. § 15), plaintiffs asserted that the defendant violated Section 1 of the Sherman Act (15 U.S.C. § 1) and Section 3 of the Clayton Act (15 U.S.C. § 14). According to the complaint, plaintiffs marketed Skelly’s petroleum products in Sheboygan County, Wisconsin, and adjacent areas from 1964 until February 28, 1973, when Skelly terminated its relationship with plaintiffs. The parties stipulated that plaintiffs were both wholesale and retail gasoline distributors. In the former capacity, they were “jobbers,” operating two bulk plants (storage facilities). One of these, in Haven, Wisconsin (seven miles from She-boygan), was owned by Magnus. Another facility, located in Sheboygan, was leased by Magnus from Skelly. In its capacity as a jobber, Magnus on February 29, 1964, entered into a “Franchise Sales Agreement” with Skelly. Under this agreement, Magnus was committed to buy and Skelly to sell and deliver certain specified quantities of gasoline each year. Magnus also agreed to sell and deliver petroleum products to four specified Skelly-owned stations in the Sheboygan area. The complaint states that the mainstay of plaintiffs’ retail distributorship was the fee ownership of four retail gasoline service stations in the Sheboygan area. Three of those were financed through a plan offered by Skelly to its jobbers. Plaintiffs’ complaint describes this financing arrangement as “a base lease for a term of fifteen (15) years running from plaintiff, MARPAT, to defendant, SKELLY, the rentals on which base leases are assigned to the financing source, coupled with a sublease from defendant, SKELLY, to plaintiff MAGNUS also for fifteen (15) years but each such sub-lease being subject to an earlier termination by SKELLY should MAGNUS purchase less than 100,-000 gallons annually of Skelly branded gasoline for resale at that respective service station” (Par. 16 of the complaint). Skelly’s rent under the base lease thus secured Magnus’ obligation to the lender. According to plaintiffs, the sub-lease and obligation to purchase 100,000 gallons of gasoline annually from Skelly could not be terminated by Magnus even if Marpat paid off the entire amount due for the purchase of a station. Additionally, plaintiffs produced testimony that termination of the “Franchise Sales Agreement” would make the entire amount due on the service stations payable in 60 days, but would not terminate the sub-lease and purchase obligation. Plaintiffs also asserted at trial that it is an industry-wide practice for branded oil companies to refuse to franchise jobbers or to finance branded stations if the franchisee still has a contract in force with another company. The Skelly-designed leases, considered in the context of the franchise agreements and the industry-wide “single distributorship” practice, allegedly violated Section 1 of the Sherman Act and Section 3 of the Clayton Act. Plaintiffs assert that in 1970 Skelly refused to permit them to cancel the base leases and that Skelly terminated plaintiffs’ distributorship on February 28, 1973, supposedly in furtherance of its then current desire to withdraw from marketing in Wisconsin. Plaintiffs charge that defendant’s violations ' of the antitrust laws prevented them from distributing branded petroleum products of any other oil company. In addition to damages, plaintiffs sought declaratory and injunctive relief. In March 1976, the district court denied defendant’s pretrial motion for summary judgment based on the statute of limitations. In November 1976, after a ten-day trial, a jury awarded plaintiffs $185,000 in damages before trebling, and judgment was accordingly entered in plaintiffs’ favor in the amount of $555,000, plus costs and reasonable attorney fees as provided in Section 4 of the Clayton Act. Skelly’s post-trial motions were denied in January 1978. In the accompanying opinion Judge Gordon held that the evidence could reasonably be interpreted to show that the three franchise sales agreements between Magnus and Skelly were implemented “so as to include a condition with Magnus not dealing in the gasoline of other suppliers” in violation of the exclusive dealing prohibition contained in Section 3 of the Clayton Act. The district judge pointed out that the jury could have concluded that numerous other jobbers in the relevant market were parties to financing arrangements with Skelly and were precluded from becoming jobbers for other suppliers, thus showing at least a potential lessening of competition under Section 3. The district court also concluded that there was ample evidence from which the jury could have found that (1) the object of the financing arrangements between Skelly and its jobbers in that area was to restrain trade and (2) those arrangements revealed Skelly’s anti-competitive intent in violation of Section 1 of the Sherman Act. In addition, the court concluded that plaintiffs had shown that they were injured in their “business or property” within the meaning of Section 4 of the Clayton Act because Magnus had demonstrated an attempt to purchase the Jackson Oil Company in Oshkosh, Wisconsin, and to become a Sunray DX franchisee in Oshkosh and Fond du Lac, Wisconsin, but was precluded from doing so by operation of the financing agreements between Magnus and Skelly. Judge Gordon next found that there was sufficient evidence to support the jury’s conclusion that Skelly’s actions caused Mag-nus to lose the Jackson Oil and Sun franchise opportunities. The district court decided that Magnus’ evidence of damages because of its failure to acquire the Jackson Oil Company and to become a Sun franchisee was sufficient and that plaintiffs were not damaged until they were unable to obtain the Jackson Oil Company or a Sun franchise agreement in 1970, well within the four-year statute of limitations contained in Section 4B of the Clayton Act (15 U.S.C. § 15b). Finally, the district court rejected Skelly’s arguments with respect to the instructions and held that a one-month continuance between the close of the evidence and the final arguments did not require a new trial. 446 F.Supp. 874 (E.D. Wis. 1978). Defendant here appeals each of the district court’s rulings except those relating to the statute of limitations, the instructions, and the continuance. We reverse. I. No Violation of Section 3 of the Clayton Act This part of -our opinion will assume ar-guendo that the franchise sales agreements between the parties tended substantially to foreclose competition in the relevant market. Section 3 of the Clayton Act (note 6 supra) proscribes sales “on the condition, agreement or understanding” that the purchaser shall not deal in the goods of a competitor of the seller if its effect may be substantially to lessen competition. Plaintiffs contend that the three franchise sales agreements between them and Skelly violated this statute. The first two agreements required plaintiffs to purchase 810,000 gallons of gasoline annually. In the third agreement, dated March 1, 1966, this amount was reduced to 701,000 gallons. None of the agreements contained an exclusive dealing clause nor required plaintiffs to purchase their total requirements of gasoline from Skelly, nor indeed any gallonage approaching plaintiffs’ requirements. The last of these agreements was terminated by defendant effective on February 28, 1971, although Skelly continued to supply Magnus on a month-to-month basis until February 1973. During the years 1964-1971 plaintiffs never purchased anything approaching their requirements from defendant. Because the agreements contained no exclusive dealing clause and did not require plaintiffs to purchase any amounts of gasoline that even approached their requirements, they did not violate Section 3 of the Clayton Act. See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580; Standard Oil Co. v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371. While their course of conduct might evince that the parties were violating Section 3 of the Clayton Act, the evidence here contravenes such a course of conduct because the quantity specified in the agreements amounted to less than 60-80 per cent of plaintiffs’ total requirements and plaintiffs regularly purchased 30-50 per cent of their requirements from competitors of the seller. Therefore, no illegal course of conduct has been shown under Section 3 of the Clayton Act. McElhenney Co. v. Western Auto Supply Co., 269 F.2d 332, 338 (4th Cir. 1959). Here Skelly cancelled its last franchise sales agreement on December 28, 1970, effective on February 28, 1971, without any proof that it was selling plaintiffs their total requirements. Although plaintiffs persuaded defendant to reinstate the franchise contract on a month-to-month basis, defendant gave plaintiffs another notice of termination February 28, 1973, because of severe credit problems with plaintiffs even though for the first time plaintiffs had been purchasing virtually their total requirements in 1972 from Skelly. The fact that plaintiffs did buy gasoline only from defendant in 1972 does not further their cause, for their lawsuit is predicated on their 1970-1971 inability to become a Sun distributor and to purchase Jackson Oil Company. In sum, during the critical years plaintiffs were handling competitors’ gasoline rather than purchasing exclusively from defendant and indeed the franchise sales agreements permitted this, so that Section 3 of the Clayton Act was not violated. McEl-henney Co. v. Western Auto Supply Co., supra, 269 F.2d at 338; Davis v. Marathon Oil Co., 528 F.2d 395 (6th Cir. 1975). II. No Showing of Tendency to Substantially Foreclose Competition in Relevant Market Under Section 3 of Clayton Act Even if the franchise sales agreements violated the forepart of Section 3 of the Clayton Act, they would not be illegal unless they tended to substantially foreclose competition between Skelly and its competitors in the relevant market. Tampa Electric Co. v. Nashville Coal Co., supra, 365 U.S. at 334, 81 S.Ct. 623; Lupia v. Stella D’Oro Biscuit Co., 586 F.2d 1163, 1172 (7th Cir. 1978). As seen on their face and in practice, they did not substantially foreclose competition because in the key years plaintiffs bought large quantities of gasoline from other suppliers. In addition, by plaintiffs’ own evidence the retail gasoline market in Sheboygan was highly competitive during the years in question, experiencing numerous “price wars.” This suggests that Skelly’s competitors were not foreclosed significantly from the retail market in She-boygan. Defendant put on evidence that the retail gasoline market in Wisconsin became more competitive between 1964-1974, with Skelly’s share decreasing slightly between 1964-1971. Finally, the plaintiffs failed to show and the district judge did not define what the relevant market consisted of. Thus the trial court, without selecting any, referred to three possible relevant markets: (1) the 13-county area in southeastern Wisconsin where plaintiffs bought their gasoline; (2) the northern region of defendant’s distribution system; and (3) defendant’s entire sales area (note 7 supra). The district court did not require plaintiffs to define the relevant market because it took out of context a statement in Lessig v. Tidewater Oil Co., 327 F.2d 459, 468 (9th Cir. 1964), certiorari denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046, that the requisite substantial lessening of competition “may appear from facts other than the proportion of total commerce in the relevant market which is subject to restraint.” But in Lessig plaintiff established that the relevant market consisted of eight Western states, that the defendant sold 6.5% of the gasoline in that market, and that through the challenged exclusive dealing contracts the defendant controlled 5% of the retail gasoline sales in the market. Tampa Electric, supra, and L. G. Balfour Co. v. Federal Trade Commission, 442 F.2d 1 (7th Cir. 1971), clearly hold that the relevant market must be established in a case based on Section 3 of the Clayton Act. On appeal, plaintiffs have pursued their arguments with regard to three different markets, but we find the evidence insufficient to support an inference that competition among Skelly’s competitors could have been significantly impaired in any of them. First, plaintiffs assert that in the “northern region” of Skelly’s distribution system “Skelly jobbers numbered between 140 and 150, among whom there were 40 to 50 separate such lease/sub-lease arrangements” (Br. 19). This is insufficient to show potential market foreclosure for at least three reasons: (1) there is no description of what area comprises the northern region and why that is the relevant market, (2) since one jobber may have more than one financing agreement, plaintiffs’ statistics tell us nothing about what proportion of the jobbers or what proportion of the retail outlets were assertedly prevented from seeking other suppliers, and (3) there is no evidence of what Skelly’s share of the relevant market was, so that even if it were possible to ascertain the proportion of Skelly outlets that were foreclosed, it would still have been impossible to evaluate the impact of the foreclosure of those outlets on Skelly’s competitors. Second, plaintiffs allege that the restrictive agreements complained of are company-wide and industry-wide, thus supporting an inference that collectively they must have foreclosed competition. The evidence of company-wide policy was that of 760-800 Skelly jobbers nation-wide, approximately 200 were estimated to have Skelly financing agreements. It was impossible to estimate the amount of Skelly gasoline sold through Skelly-financed stations. Since we have already concluded that plaintiffs failed to establish that the franchise agreements precluded jobbers from purchasing from Skelly’s competitors, the only remaining question would be whether, as plaintiffs allege, the inability of jobber-retailers to change distributors because of the financing agreements potentially foreclosed competition significantly. To determine that, however, we would need to know the proportion of retail gasoline sales foreclosed by the Skelly financing agreements. Plaintiffs failed to introduce such evidence, and the inferences that could be drawn from the statistics that are in evidence suggest that the impact on Skelly’s competitors would be negligible. With regard to industry-wide practice, plaintiffs introduced testimony that many branded gasoline distributors had financing programs and single-distributor policies similar to Skelly’s. However, none of the evidence offered, including that excluded by the district court, purported to establish the share of the gasoline sales foreclosed by such arrangements. There simply were no facts from which-a potential foreclosure of a significant amount of competition could be inferred from the evidence of company-wide or industry-wide practice. The third market plaintiffs describe is the greater Sheboygan area. Plaintiffs were the third largest of twelve jobbers in the greater Sheboygan area and supplied 10 of the 88 service stations in that area. Even if, as plaintiffs insist, the relevant market for retail gasoline sales is the “community,” it does not follow that the “community” is the relevant market to ascertain foreclosure of Skelly’s competitors (many of whom were regional or national brands). In addition, the evidence does not establish that Skelly’s competitors were foreclosed even from the greater Sheboygan area since (1) as indicated, plaintiffs bought a significant portion of their requirements from Skelly’s competitors, (2) only three of the ten stations supplied by plaintiffs were subject to the financing agreements, and (3) there was evidence of vigorous inter-brand competition in Sheboygan. Thus none of plaintiffs’ theories of possible competitive foreclosure is supported in the record. The defendant’s evidence did show that the 13-county area within a 62-mile radius from Sheboygan was the relevant market and that plaintiffs had less than 1% of that market in each of the years involved, so that the franchise sales and financing agreements would at most foreclose a de minimis volume of competition. That would not suffice to activate Section 3 of the Clayton Act. Tampa Electric Co., supra, 365 U.S. at 333-335, 81 S.Ct. 623. III. No Violation of Section 1 of the Sherman Act The complaint in this case does not make any charges that would amount to a per se violation of Section 1 of the Sherman Act, and the Supreme Court’s recent decision in Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568, evinces judicial reluctance to extend per se rules under that statute. Therefore, these plaintiffs had the burden of showing that any arrangements between plaintiffs and defendant unreasonably restrained trade. We conclude that plaintiffs have not satisfied the rule-of-reason standard that governs here. The district court held that Section 1 of the Sherman Act was violated by defendant because the jury could have concluded that the object of the financing arrangements between the parties was to restrain trade. 446 F.Supp. at 880. We cannot agree because the financing arrangements covering the three stations only required them to purchase 100,000 gallons of gasoline annually from defendant. These amounts were de minimis in view of plaintiffs’ total requirements for gasoline. See note 13 supra. Even if the financing agreements were a means of preventing plaintiffs from cancelling the franchise agreements, they would still have to show that the foreclosure of the amounts specified in the franchise agreements constituted an unreasonable restraint of trade. Just as there was no showing of a potentially substantial adverse effect on competition under Section 3 of the Clayton Act, the requisite evidence to show that under Section 1 of the Sherman Act the effect upon competition in the market-place was substantially adverse is also fatally lacking. See Lee Klinger Volkswagen v. Chrysler Corp., 583 F.2d 910, 914-915 n. 6 (7th Cir. 1978). As shown earlier, the district court did not determine the relevant market although defendant’s expert witness testified that it consisted of the 13 counties within 62 miles of Sheboygan. He testified that even if that market were halved and even if all plaintiffs’ requirements for gasoline were foreclosed by defendant to its competitors, the effect would still be less than 1% of the market. This means that defendant’s arrangements must be considered reasonable under Section 1 of the Sherman Act. United States v. Columbia Steel Co., 334 U.S. 495, 508, 511, 68 S.Ct. 1107, 92 L.Ed. 1533; Tampa Electric v. Nashville Coal Co., 365 U.S. 320, 334-335, 81 S.Ct. 623, 5 L.Ed.2d 580. As discussed at length supra, plaintiffs have presented no credible evidence of an adverse effect on competition. Because plaintiffs failed to show that defendant’s financing arrangements substantially foreclosed its competitors in a relevant market, no unreasonable restraints have been demonstrated. Since plaintiffs have not proven that defendant violated Section 3 of the Clayton Act or Section 1 of the Sherman Act, we need not consider whether they have failed to show that they were injured because of a violation of the antitrust laws and whether their claimed damages were too speculative to support the judgment. The district court’s judgment is reversed with directions to enter judgment for defendant notwithstanding the verdict. . Marpat also owns the petroleum dispensing equipment, including tanks, pumps and air compressors, used by Magnus. The only stockholders, officers and directors of both corporations were Arthur P. Magnus and members of his immediate family. . The only product involved in this case is gasoline. . This agreement was superceded by new agreements on March 1, 1965, and March 1, 1966. The original agreement specified that the annual minimum quantity of gasoline to be purchased was 810,000 gallons, but this was reduced to 701,000 gallons in the 1966 agreement. The agreements specified that they were terminable by either party on 60 days’ notice at the end of the five-year “primary term” or on any subsequent anniversary date of the agreements. . The “financing source” referred to was Skelly for one of the service stations and a bank for the other two. . On February 1, 1978, plaintiffs filed a motion for determination of a reasonable attorney’s fee for their counsel. The motion was supported by affidavits and a memorandum. Attorney’s fees of $45,000 were subsequently awarded, so that the total judgment (stayed during this appeal) for plaintiffs is $600,400 plus costs. The record does not reveal that plaintiffs obtained any additional relief. . Section 3 of the Clayton Act provides in pertinent part: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods * * * or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods * * of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce” (15 U.S.C. § 14). . The judge noted that there were three different definitions offered of the relevant market. Defendant’s expert focused on the 13-county area in southeastern Wisconsin where Magnus purchased gasoline and estimated that Magnus’ requirements comprised only .07 to .18 of 1% of that market. A Skelly field representative called as a witness for plaintiffs testified that in the “northern region” of Skelly’s distribution system, which includes Wisconsin, there were approximately 40 to 50 financing programs with jobbers similar to the ones with Magnus. In discussing the relevant market, Judge Gordon also referred to testimony about Skelly’s finance arrangements in general See 446 F.Supp. at 879. . Section 1 of the Sherman Act provides in relevant part that “[ejvery contract * * * in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal” (15 U.S.C. § 1). . Section 4 of the Clayton Act provides: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee” (15 U.S.C. § 15; emphasis supplied). . But see Part II infra. . There was testimony that the 810,000 gallon minimum specified in the 1964 and 1965 agreements was intended to approximate Magnus’ requirements. However, as described in note 13 infra, the minimum was reduced in subsequent years while Magnus’ requirements had increased, and even in 1964 and 1965 less than two-thirds of Magnus’ requirements were purchased from Skelly. In light of these facts, the possibility that the originally specified minimum amounts may have been intended to cover Magnus’ requirements is insufficient to form the basis of a Clayton Act Section 3 claim, especially since the damage complained of did not occur until 1970-1971. . Subsequent to the February 1973 termination of their relationship, Skelly continued to supply Magnus with gasoline under the federal voluntary and mandatory allocation programs. . As noted, in 1964 and 1965, the franchise sales agreement required plaintiffs to buy 810,-000 gallons of gasoline from Skelly. Nevertheless, in the former year, Magnus bought 840,-000 gallons of gasoline but only 568,000 gallons from Skelly. In 1965, plaintiff bought 1,057,-000 gallons of gasoline but only 699,000 from Skelly. In 1966 through 1971, plaintiffs were obligated to buy 701,000 gallons per year from Skelly. In each of those years, plaintiffs’ total requirements were about 1,000,000 gallons, a large percentage of which was purchased from other suppliers, ranging from 304,000 gallons in 1966 to 566,000 in 1971 (App. 79). Plaintiffs do not claim that the minimum 100,000 gallons per year per financed station to be purchased from Skelly violated the Clayton Act. . Some of the reasons for the cancellation were plaintiffs’ delinquent payments and their purchase of less than 40 per cent of their gasoline requirements from Skelly, causing an oversupply situation at Skelly’s Granville, Wisconsin, terminal. . After the 1971 termination of the agreement, Skelly supplied Magnus on a month-to-month basis and only for cash in advance. Plaintiffs’ theory is that this action by Skelly, taken together with the fact that Magnus purchased 99.6% of its 1972 requirements from Skelly, reveals that the agreements were intended to be exclusive dealing contracts and that they were enforced by Skelly through the threat of cancelling the franchise, which would make the service station debts payable immediately. Plaintiffs assert that the fact that the agreements were not strictly enforced in prior years does not relieve them of their illegality, citing Advance Business Systems and Supply Company v. SCM Corporation, 415 F.2d 55 (4th Cir. 1969). However, we think the events of 1972 do not support an inference that the agreements in force during the relevant years were exclusive dealing contracts in the absence of any evidence that the parties so understood them at the time. It would seem especially anomalous that Skelly should terminéis the re-» lationship entirely in February 1973 immediately after it had accomplished its asserted goal of requiring Magnus to purchase virtually exclusively from Skelly. Its action in doing so supports the inference that both the 1973 and 1971 terminations were on account of plaintiffs’ credit difficulties. . When discussing the local market, plaintiffs sometimes seem to suggest that the important measure is the extent to which Skelly’s competitors were foreclosed from distributing to Skelly jobbers, whereas at other times they focus on foreclosure of these competitors at the retail level. Since jobbers are independent wholesalers, and since there appears to have been no significant foreclosure of competition at the local retail level, it seems that either there was no significant foreclosure in the relevant geographic market at the jobber level or that there were alternative means of distribution available. At least, this is what we must conclude in the absence of evidence to the contrary. . Plaintiffs’ counsel sometimes appeared to be suggesting that an exclusive dealing contract could be illegal under Section 3 of the Clayton Act simply because it foreclosed the purchaser’s ability to seek out competing sellers, without any showing of a possibility of a significant foreclosure of competition among the competitors of the seller. To the extent this theory is applied to the franchise sales agreements, it is not supported by the evidence. As already described, Magnus’ freedom to purchase from other suppliers was not drastically curtailed. However, plaintiffs also contend that the combination of the franchise sales agreements, the financing agreements, and the industry practice of sole distributorships curtailed its freedom to change distributors for the duration of the 15-year term of the financing agreements. While such a deprivation of a purchaser’s freedom apparently will confer standing on him to sue under Section 3 of the Clayton Act, the case law is clear that to recover he must show a potential foreclosure of competition to the competitors of the seller Standard Oil Company v. United States; Tampa Electric Co. v. Nashville Coal Co., both supra. This plaintiffs have failed to do. . The Lessig court noted that the only evidence' not available was what percentage of retail outlets in the market were subject to the exclusive dealing contracts. It concluded that the more relevant figure was the portion of retail gasoline sales (in gallonage terms) which was subject to the challenged agreements. Thus the relevant market information was before the Lessig court. . Plaintiffs, of course, had three such agreements, and some jobbers apparently had as many as 8 or 10 financing agreements with Skelly. . Plaintiffs appear to assume that it is sufficient to show that the amount of market foreclosure was substantial in absolute terms. However, Tampa Electric Company, 365 U.S. 320, 329, 81 S.Ct. 623, 5 L.Ed.2d 580, made it clear that substantiality must be assessed on a comparative basis. . Defendant introduced evidence tending to show that any foreclosure of its competitors would be de minimis. Skelly had about 0.60% to 0.71% of the national market for gasoline in the relevant years. It distributed its gasoline in 17 states, and its portion of the market in each of these states in 1971 ranged from 1.24% (Illinois) to 6.47% (Kansas). It had approximately 2% of tliu Wisconsin market during the relevant, years. . The gasoline purchased by Skelly jobbers who participate i in tin. financing pro; fawn was sold not just to the financed statmou, but, also "through commercial accounts, industrial accounts, through service stations that [they do] not own, for bulk plants, to farm accounts, et cetera. et cetera (Tr. 653). . This would presumably be less than the amount of gasoline sold by Skelly-financed stations, since plaintiffs’ agreements, for example, committed them to selling 100,000 gallons of Skelly gasoline through each station, whereas the requirements of each were approximately 120,000 gallons per station. Assertedly plaintiffs’ agreement was typical, so that one could estimate that approximately 80% of retail sales of Skelly-financed stations were, according to plaintiffs’ theory, foreclosed to Skelly’s competitors. . In this respect the evidence falls far short of that in Standard Oil Company v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, where it was established that the defendant controlled 6.7% of the relevant market through exclusive dealing contracts and that its six leading competitors controlled 42.5% of the market through similar contracts. . Nor does it follow that foreclosure from part or all of plaintiffs’ business could substantially impair the competitive position of Skelly’s competitors. See note 16, supra. . Plaintiffs’ witness, Dr. Allvine, testified in the abstract that defendant’s arrangements were unreasonable, but his testimony was without reference to any relevant market and therefore was insufficient to show a violation of Section 1 of the Sherman Act. American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230 (3d Cir. 1975). . Our holding is not based on the absence of evidence on the details of exclusive dealing arrangements of Skelly’s competitors. And even if the district court should have considered defendant’s competitive price allowance program (the giving of price rebates on gasoline sold to a jobber who had been forced by retail price wars to reduce his sale price), that pricing formula has not been shown to violate Section 3 of the Clayton Act. Therefore plaintiffs’ cross-appeal is dismissed.

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.

WARDER v. BRADY. No. 4625. Circuit Court of Appeals, Fourth Circuit. Oct. 15, 1940. Jed W. Robinson, of Grafton, W. Va., for appellant. Elmer A. Bowers, of Elkins, W. Va., for appellee. Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges. SOPER, Circuit Judge. Francis L. Warder, a special receiver appointed by the Circuit Court of Taylor County, West Virginia, for the benefit of the bondholders of the Maryland Coal Company of West Virginia, appeals from a turn-over order of the District Court whereby he was summarily directed to pay the sum of $2,475.52 held by him for the bondholders, to A. Spates Brady, a trustee for the Coal Company appointed by the District Court in a reorganization proceeding under Ch. X of the Bankruptcy Act of June 22, 1938, 52 Stat. 883 et seq., 11 U.S.C.A. § 501 et seq. The grounds of the appeal are that the District .Court was without jurisdiction to decide the controversy and pass the order in a summary proceeding, and that in any event, the order was not justified on its merits by the circumstances of the case. The fund came into existence during the course of a receivership proceeding in the State court, which was instituted by the creditors of the corporation on November 12, 1932. The receiver therein operated the mines of the corporation under the authority of the ' court. On January 27, 1936 an intervening petition was filed on behalf of the holders of certain income bonds dated July 6, 1911 and due February 1, 1941, which had been issued by the company in the aggregate sum of $257,500 and contained the following provision: “The Directors shall set aside from the proceeds of the sales of coal mined from the property of the company, a fund equal to five cents per gross ton on all coal mined, and such further sum as may fairly represent the depreciation of the mining plant connected therewith. With this fund, and such other funds as the Directors may appropriate the Directors may from time to time, purchase, or redeem at par, this Bond or any or all of the Bonds issued hereunder.” The petitioners alleged that for a great many years prior to the receivership the company had failed and neglected to comply with the quoted provision, and no such fund had been established or maintained, and that the operating receiver had likewise failed in this respect ; that with the exception of the bonded indebtedness, all other debts of the company and all costs of the proceeding had been paid or would be paid in the year 1936, and that the property in the hands of the receiver would be turned back to the company, and that it was reasonable to believe from the past conduct of those in control of the company that the property would be wasted, dissipated and mismanaged, so that there would be no funds for the payment of the bonds when they fell due; and that there were not sufficient properties belonging to the company to pay the bonds in full. It was further alleged that the receiver had operated the mines at a profit, and it was prayed that the court direct the receiver to retain possession of the property and to continue the operation of the mines for the benefit of the bondholders. The questions raised by the intervening petition were considered by the state court, and further proceedings were had which resulted in a decree of December 31, 1937 wherein a description of the property found by the court to be owned by the company was set out, the amount of the outstanding bonds was found to be $257,500, and the owners thereof were ascertained; and it was decreed that the property of the company should be charged in equity with a lien in favor of the bondholders. The receiver was ordered to turn over the property to the company, which was directed to set aside a fund as provided in the quoted provision of the bonds until the further order of the court “unless such bonds are sooner redeemed and until such funds so set aside shall equal the sum of $257,500”. The company was also directed to pay interest on the bonds to the bondholders, and to pay all sums set aside for the benefit of the bondholders in accordance with the provisions of the bonds, to Francis L. Warder, who was appointed a special receiver to receive the moneys which were “to be held by him for the benefit of the bondholders until the further order of this court”. The operating receiver was also directed to pay any surplus remaining in his hands after the settlement of his accounts to Warder, to be held by him for the same purpose. It was further directed that Warder might from time to time under the order of the court purchase the bonds or any of them by calling for bids on a discount basis or redeem at par any or all of said bonds. Under this decree, the special receiver received certain sums of money from the company and also a larger sum from the operating receiver, after the latter had stated his accounts and had been directed by a subsequent order of July 1, 1938, to pay to Warder the surplus in his hands. The special receiver, acting under the orders of the state court, thereafter made certain payments" from the fund in the redemption or purchase of some of the-bonds at a discount, after the bondholders, upon notice, had submitted bids therefor; and there remained in his hands when the present controversy arose the sum of $2,-511.18. This controversy began on September 20, 1939, when the trustee in the reorganization proceeding prayed the District Court to stay further proceedings in the state court and to order the special receiver therein to turn over the funds in his hands. It was alleged in the trustee’s petition that the fund in the hands of the special receiver belonged to the debtor and that it could be advantageously used by the trustee as working capital in operating the business of the debtor. In answer to the petition the special receiver appeared specially and filed an answer in which the aforegoing facts were set out and it was alleged that the legal title to the fund was vested in him for the use and benefit of the bondholders who held the equitable title thereto, and that the fund was not and never had been the property of the debtor. The matter was heard summarily upon the petition and answer. The court ordered that the fund should be transferred to the trustee and that all further proceedings in the state court should be stayed, and referred the matter to a referee to ascertain the amount of the fund. An accounting was accordingly had, and thereupon, on February 10, 1940, the court passed the turn over order appealed from, directing the special receiver to pay to the trustee the sum of $2,475.52, being the amount of the fund in his hands less certain allowances. From this order the pending appeal was taken. The special receiver seems to contend that the District Court was without power to pass this order in a summary proceeding because of the provisions of § 23 of the Bankruptcy Act, 11 U.S.C.A. § 46, as interpreted by the decisions of the courts. This section was reenacted with minor changes as part of the Chandler Act of June 22, 1938. It provides in substance that the United States District Courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings under the act, between receivers and trustees as such and divers claimants, concerning the property acquired or claimed by the receivers or trustees, in the same manner and to the same extent as though such controversies had been between the bankrupt and the adverse claimants; and suits by the receiver and the trustee, with certain exceptions, shall be brought or prosecuted only in the courts where the bankrupt may have brought or prosecuted them if bankruptcy proceedings had not been instituted, unless by the consent of the defendant. It is well settled by decisions interpreting this section that property or money held adversely to the bankrupt can only be recovered in a plenary suit and not by a summary proceeding in a bankruptcy court. The mere assertion of an adverse claim is not sufficient to oust the jurisdiction of the courts of bankruptcy, for they have power to inquire preliminarily whether the claim is so unsubstantial and obviously insufficient, either in fact or in law, as to be plainly without merit; and if so, to dispose of it summarily. On the other hand, if the claim be found to be substantial and the property is in the possession of the claimant, the court is without jurisdiction to proceed at all even in a plenary proceeding without the consent of the defendant, unless the other conditions prescribed by the statute are met. May v. Henderson, 268 U.S. 111, 115, 116, 45 S.Ct. 456, 69 L.Ed. 870; Taubel, etc., Co. v. Fox, 264 U.S. 426, 432, 433, 44 S.Ct. 396, 68 L.Ed. 770; Harrison v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897; MacDonald v. Plymouth Trust Co., 286 U.S. 263, 52 S.Ct. 505, 76 L.Ed. 1093; In re Rathman, 8 Cir., 183 F. 913; Central Republic Bank & Trust Co. v. Caldwell, 8 Cir., 58 F.2d 721, 730; Marcell v. Engebretson, 8 Cir., 74 F.2d 93, certiorari denied 296 U.S. 579, 56 S.Ct. 89, 80 L.Ed. 409; In re Indiana Flooring Co., 2 Cir., 62 F.2d 763, 764. There can be no doubt that under these authorities the claim of the special receiver in the pending case would be considered substantial and adverse within the meaning of § 23. At the time of the institution of the reorganization proceeding, the fund was not actually or constructively in the possession of the trustee, but in the possession of the special state court receiver who set up the substantial and bona fide contention that the title to the fund resided in him under the decree of the state court and not in the bankrupt. Another restriction upon jurisdiction that has been recognized by the courts of bankruptcy (as well as courts of equity) is the rule of comity which forbids one court from exercising control over the property of the debtor which is already the subject of proceedings in another court, and permits the court first acquiring possession of the property to continue its administration without interruption until it is complete. This principle has had complete recognition in this and other federal courts. Griffin v. Lenhart, 4 Cir., 266 F, 671; Straton v. New, 283 U.S. 318, 51 S. Ct. 465, 75 L.Ed. 1060; Finletter, The Law of Bankruptcy Reorganization, 1939 Ed. pp. 115 to 121. If applied to the pending case, it would oust the jurisdiction of the bankruptcy court for the evidence shows clearly that the fund in litigation had been created in accordance with the decree of the state court, and had been placed in the custody of its special receiver long before the institution of the reorganization proceedings in bankruptcy. Furthermore, the fund was created at the conclusion of an equity receivership instituted for the benefit of creditors generally, when all the creditors, except the bondholders, had been paid and the property in the hands of the operating receiver had been turned back to the corporation. The receivership therefore was no longer an insolvent proceeding which, notwithstanding the rule of comity, was subject to supersession by the bankrupt court under the paramount bankruptcy power. Gross v. Irving Trust Co., 289 U.S. 342, 53 S.Ct. 605, 77 L.Ed. 1243, 90 A.L.R. 1215; Taylor v. Sternberg, 293 U. S. 470, 55 S.Ct. 260, 79 L.Ed. 599. We are concerned in the pending case, however, with the Act of 1938 which was passed for the very purpose of modifying these restrictions upon the jurisdiction of the bankruptcy court when engaged in a reorganization proceeding under Ch. X of the statute. First, it is important to note that § 23 of the Act of 1938 does not affect the present controversy; for while it is provided by § 102, 11 U.S.C.A. § 502, that Chs. I to VII of the act (including therein § 23), to the extent that they are not inconsistent with Ch. X, shall apply to proceedings under that title. It is also provided that § 23 (and other sections) shall not apply in such a proceeding unless an order shall be entered by the court directing that bankruptcy be proceeded with pursuant to Chs. I to VII. Accordingly, the restrictions contained in § 23 do not limit the jurisdiction of the court in the pending reorganization proceeding. Moreover, thet rule of comity is relaxed with respect to proceedings under Ch. X. The special exceptions to the rule contained in §§ 60, 67 and 70 of Ch. VII of the Act, 11 U.S.C.A. §§ 96, 107, 110, are made applicable to proceedings under Ch. X by § 102; and more important for our purposes, §§ 256 and 257, 11 U.S.C.A. §§ 656 and 657, provide that a reorganization petition may be filed under Ch. X notwithstanding the pendency of a prior mortgage foreclosure, equity or other proceeding in a federal or state court in which a trustee or receiver of all or any part of the property of the debtor has been appointed, and that a trustee appointed under Ch. X, or the debtor, if continued in possession of the property, shall become vested with the rights, if any, of such prior receiver or trustee in such property with the right to immediate possession thereof. § 113, 11 U. S.C.'A. § 513, empowers the judge, prior to the approval of a petition in reorganization, upon cause shown, to grant a temporary stay, until the petition is acted upon, of a prior pending bankruptcy, mortgage foreclosure or equity receivership proceeding, and of any act or other proceeding to enforce a lien against a debtor’s property; § 116(4); 11 U.S.C.A. § 516(4), empowers the judge, upon the approval of a petition, to enjoin or stay until final decree, the commencement or continuation of a suit against the debtor or its trustee, or any act or proceeding to enforce a lien upon the property of the debtor; and § 2 sub. a (21), 11 U.S. C.A. § 11, sub. a (21), invests the courts of bankruptcy with such jurisdiction at law and equity as will enable them to exercise original jurisdiction in proceedings under Ch. X, amongst other things, to require receivers or trustees appointed in proceedings not under the act, assignees for the benefit of creditors and agents authorized to take possession of or to liquidate a person’s property, although appointed more than four months prior to bankruptcy, to deliver the property in their possession or under their control to the receiver or trustee appointed under the act, and in all such cases, to account to the court for the disposition by them of the property of the bankrupt or debtor. Obviously these provisions go far to restrict the application of the rule of comity in the particular cases described in the quoted sections, and thus to enlarge the jurisdiction of federal courts over adverse claims. Moreover, there are provisions of even greater scope affecting the jurisdiction of the bankruptcy court that refer to the dependent jurisdiction which is conferred upon a federal court upon the appointment of a receiver of the debtor’s property. This kind of jurisdiction is described in Riehle v. Margolies, 279 U.S. 218, 223, 49 S.Ct. 310, 312, 73 L.Ed. 669, as follows: “The appointment of a receiver of a debtor’s property by a federal court confers upon it, regardless of citizenship and of the amount in controversy, federal jurisdiction to decide all questions incident to the preservation, collection, and distribution of the assets. It may do this either in the original suit, Rouse v. Letcher, 156 U.S. 47, 49, 50, 15 S.Ct. 266, 39 L.Ed. 341; or by ancillary proceedings, White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67. Compare Kelley v. Gill, 245 U.S. 116, 119, 38 S.Ct. 38, 62 L.Ed. 185. And it may, despite section 265 of the Judicial Code (28 U.S.C.A. § 379), issue under section 262 (28 U.S.C.A. § 377), or otherwise, all writs necessary to protect from interference all property in its possession. Julian v. Central Trust Co., 193 U.S. 93, 112, 24 S.Ct. 399, 48 L.Ed. 629.” The possession of this jurisdiction by the bankruptcy court in a reorganization proceeding is confirmed by the provisions of Ch. X. § 115, 11 U.S.C.A. § 515, provides that upon the approval of the petition in reorganization proceedings, the court shall have in addition to the jurisdiction, powers and duties of a bankrupt court, all the powers which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature; and §§ 187 and 188, 11 U.S.C.A. §§ 587 and 588, permit a trustee or debtor in possession, if authorized by the judge, to exercise such rights and powers as a receiver in equity would have if appointed by a federal court. Heretofore, the dependent jurisdiction of the courts of bankruptcy was restricted by § 23 and by the rule of comity, but now that § 23 is no longer applicable to reorganization proceedings under Ch. X, and the power to interfere in a prior court proceeding has been conferred upon the bankruptcy court by Congress in the exercise of the bankruptcy power, it seems clear that the bankruptcy court under Ch. X has jurisdiction to entertain all suits to which its trustee or the debtor in possession is a party, even though they be instituted against adverse claimants. See Finletter, The Law of Bankruptcy Reorganization, 1939 Ed. p. 181. It is significant that in Kelley v. Gill, 245 U.S. 116, 38 S.Ct. 38, 62 L.Ed. 185, the jurisdiction of the bankruptcy court to entertain a dependent suit in equity to enforce the collection of unpaid stock subscriptions due a bankrupt corporation was denied because of the applicable provisions of § 23. It does not follow, however, that the jurisdiction of the bankruptcy court over suits against an adverse claimant may be summarily exercised. The statute does not so provide; and under the well established procedural rule of the ordinary bankruptcy courts, as we have seen, suits by a trustee to recover property from an adverse claimant in possession must take the form of a plenary action. This is especially true when the title to property is in dispute. The rule was applied in Taubel, etc., Co. v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770, where the court discussed the bearing of §§ 67, sub. e, 60, sub. b and 70, sub. e of the Bankruptcy Act, which confer jurisdiction upon the bankruptcy court under certain circumstances over suits by trustees for the recovery of property in the possession of adverse claimants under conveyances from the bankrupt. Although the jurisdiction of the court" was beyond dispute, the necessity for plenary suit was emphasized. (264 U.S. page 434, 44 S.Ct. 396, 68 L.Ed. 770). As to the power of Congress in the premises, the court said (page 430, of 264 U.S., page 398 of 44 S.Ct., 68 L.Ed. 770); “Congress has, of course, power to confer upon the bankruptcy court .jurisdiction to adjudicate the rights of trustees to property adversely claimed. In matters relating to bankruptcy its power is paramount. Hence, even if the property is not within the possession of the bankruptcy court, Congress can confer upon it, as upon any other lower federal court, jurisdiction of the controversy, by conferring jurisdiction over the person in whose possession the property is. Congress has, also (subject to the constitutional guaranties), power to determine to what extent jurisdiction conferred, whether through possession of the res or otherwise, shall be exercised by summary proceedings and to what extent by plenary suit. But Congress did not, either by section 2, section 23 of the Bankruptcy Act of 1898 or any other provision of the act, confer generally such broad jurisdiction over claims by a trustee against third persons. Nor has it provided in terms, that a substantial adverse claim to property which is not in the possession of the bankruptcy court, and which is demanded by the trustee under subdivision ‘f of section 67, may be litigated, without consent, by a summary proceeding. To sustain the judgment under review, a specific grant of power to so deal with such a controversy must be shown.” These cases related to ordinary bankruptcy procedure, and are not conclusive here. The bankruptcy court in reorganization proceedings under § 77B, 11 U. S.C.A. § 207, had, and under Ch. X of the 1938 Act ■ now has a wider control, that comprehends not only property of the debt- or in his actual or constructive possession, but also property of the debtor in the hands of lien holders. The formulation of a plan of reorganization contemplates a readjustment of secured as well as unsecured debts, and so the summary power of the court extends to all of the debtor’s property that can be affected by a plan, whether or not the property is in his possession. Thus in Continental, etc., Bank & Trust Co. v. Rock Island Ry., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110, in a proceeding for the reorganization of a railroad under § 77, 11 U.S. C.A. § 205, the court granted an injunction in a summary proceeding against certain banks which held the bonds of the railroad as collateral and enjoined a sale of the collateral during the pendency of the procedure. The propriety of a summary rather than a plenary proceeding was sustained because an adverse claim to the property was not involved. The court said (page 681 of 294 U. S., page 608 of 55 S.Ct., 79 L.Ed. 1110) : “It is next contended that the court was without power to issue the injunction in a summary proceeding. Obviously, an application for an injunction against the immediate enforcement of a remedy is not the assertion of an adverse claim. The bonds deposited as collateral were not in the hands of purchasers, but in the hands of creditors as security. That the equity which the debtor retained was a property interest was not and could not be disputed by the creditors; nor was the claim of the creditors in respect of their rights in the collateral security or the rank' of “their liens questioned by the debtor. In short, no adverse claim was brought forward by either of the parties to the controversy. The only question was in respect of the creditors’ remedy; and the sole point is as to the authority of the bankruptcy court to delay for a reasonable time an interference with the reorganization proceeding which would result from an immediate sale of the collateral. The court below dealt adequately with the situation, and its conclusions find ample support in the decisions. See, for example, In re Purkett, Douglas & Co. (D.C.) 50 F.2d 435, 438; John Matthews, Inc. v. Knickerbocker Trust Co. [2 Cir.] 192 F. 557; Allebach v. Thomas [4 Cir.] 16 F,(2d) 853.” See also, In re Prudence-Bonds Corp., 2 Cir., 77 F.2d 328; Grand Boulevard Inv. Co. v. Strauss, 8 Cir., 78 F.2d 180; In re Argyle-Lake Shore Bldg. Corp., 7 Cir., 78 F.2d 491; In re Frances E. Willard Natl. Temperance Hospital, 7 Cir., 82 F.2d 804; In re Prima Co., 7 Cir., 98 F.2d 952; and see Finletter, The Law of Bankruptcy Reorganization, 1939 Ed., pp. 156-166. The pending case grows out of a reorganization proceeding under Ch. X and must be decided accordingly. The procedure is determined by the admitted facts that the fund is in the possession of an adverse holder, and the title of the fund is in dispute. If the contention of the special receiver is sustained, the reorganization court will have no interest in the fund, since in such event if will constitute no part of the debtor’s estate. It follows that recovery of the fund may be sought only in a plenary suit. The. order of the District Court might be reversed simply on the ground that it was based upon inadequate pro-, cedure; but it is desirable to add, in order to speed the settlement of the bankrupt estate, that under the undisputed facts the trustee in bankruptcy has no interest in the fund that would justify a turnover order in any form of action. Indeed it is difficult to decide one question without deciding the other. The record shows that the sinking fund for the benefit of the bondholders was established when the receivership for the benefit, of creditors generally came to an end. Under the decree of the state court this fund that'the debtor was obligated to accumulate for the retirement of the bonds was taken from its control and entrusted to the special receiver. This action amounted to an appropriation of the fund to the purpose specified, so that the corporation parted with all title thereto. Indeed the fund was established by the decree of the court which directed the payment of the surplus in the hands of the operating receiver to the special receiver, and this step was taken to compensate in part for the debtor’s prior failure to observe the covenant in the bond. The subsequent payments by the corporation to the receiver of small amounts to be added to the fund were in the same category; and it was the clear intent of the decree to vest the full ownership of the whole fund in the bondholders. The subsequent use of the fund in the purchase of bonds at varying discounts under the order of the court was of benefit to the debtor and did not provoke any opposition on its part or on the part of the bondholders. It was in any event a matter of which the state court had sole control in the execution of its decree. A sinking fund under a bond mortgage is a trust fund, the title to which passes from the debtor to the trustee who holds it for the benefit of the bondholders. Equitable Trust Co. v. Green Star S. S. Corp., D.C., 291 F. 650, affirmed 2 Cir., 297 F. 1008; Rogers Locomotive, etc., Works v. Kelley, 88 N.Y. 234; Holland Trust Co. v. Sutherland, 177 N.Y. 327, 69 N.E. 647. So it has been held that the debtor retains no interest in the fund that is subject to the attack of other creditors, and that a receiver appointed under a creditors’ bill cannot gain possession of the fund and use it for the benefit of the creditors as a whole. Truby v. M. & T. Trust Co., 141 Misc. 507, 510, 253 N.Y.S. 108; Tennessee Bond Cases, 114 U.S. 663, 698, 5 S.Ct. 974, 1098, 29 L.Ed. 281; Babcock P. P. Mfg. Co. v. Ranous, 164 N.Y. 440, 58 N.E. 529; First Union Trust & Savings Bank v. Bernardin, 8 Cir., 60 F.2d 419. Applying the principle of these decisions, we conclude that the ownership of the fund was finally adjudicated by a court of competent jurisdiction and the title passed from the ■debtor before the institution of the bankruptcy proceeding; and, therefore, the fund is not property of a debtor in the possession or control of a receiver appointed in proceedings not under the Bankruptcy Act, which under the terms of the act should be delivered to the trustee in ■bankruptcy. The retention of possession of the fund by the special receiver need not interfere with the execution of any plan ■of reorganization that may be formulated in accordance with the terms of the act. The order of the District Court will be reversed and the case will be remanded with direction to dismiss the petition of the trustee upon which the turnover order was based. Reversed and remanded. The narrower provisions of § 2 of the Act of 1898 to which 2, sub. a(21) was added by the Act of 1938, were thought insufficient to confer jurisdiction against adverse claimants except within the restrictions of § 23. Bardes v. Hawarden Bank, 178 U.S. 524, 20 S.Ct. 1000, 44 L.Ed. 1175. As to the differences between summary and plenary suits, see Louisville Trust Co. v. Comingor, 184 U.S. 18, 25, 22 S.Ct. 293, 46 L.Ed. 413; Central Republic Bank & Trust Co. v. Caldwell, 8 Cir., 58 F.2d 721, 731. Compare the express provisions of §§ 50, sub. n, 57, sub. I and 67, sub. a, 11 U.S.C.A. §§ 78, sub. n, 93, sub. I, and 107, sub. a.

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

MID-AMERICA TRANSPORTATION COMPANY, INC., Appellant, v. NATIONAL MARINE SERVICE, INC., et al., Appellees. No. 75-1236. United States Court of Appeals, Eighth Circuit. Submitted Oct. 17, 1975. Decided Nov. 11, 1975. Rehearing and Rehearing En Banc Denied Dec. 3, 1975. Certiorari Denied April 19, 1976. See 96 S.Ct. 1671. Fritz G. Faerber, Lucas & Murphy, St. Louis, Mo., for appellant. James W. Herron, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for appellees. Before CLARK, Associate Justice, and LAY and ROSS, Circuit Judges. Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation. PER CURIAM. This admiralty ease is before this court for the second time. In our original opinion we remanded to the trial court for further evidence and determination in keeping with the views expressed therein. Mid-America Transportation Co., Inc. v. National Marine Service, Inc., 497 F.2d 776 (8th Cir. 1974). No useful purpose would be served in again setting forth the facts in detail since that has already been accomplished by Judge Talbot Smith in our prior decision. Id. Suffice it to say that plaintiff’s barge was damaged while in the tow of a tug owned by the defendant. Judge Wangelin originally found that the damage occurred during a grounding of the barge, but held that the barge owner had not proved negligence on the part of the tug since it had not proved either when or where the grounding took place. It was conceded that if the grounding took place outside the channel or on a known obstruction in the channel that the tug owner was liable. On the other hand, if the grounding took place on an unknown object in the channel the tug owner was not to be presumed negligent. In our original opinion, we held that the fact that the barge was shown to have been damaged by grounding was sufficient to require “ . . . the tug to come forward to establish that she was in the channel and did not hit a known obstruction therein or to furnish other exculpatory explanation . . . .” (Emphasis supplied.) Id. at 780. We thereupon directed further proceedings at which the tug will be given an opportunity (subject to rebuttal by the barge) to carry such burden. If it fails to do so, the District Court may draw an inference of fact unfavorable to it. On the other hand, if the tug does come forward with evidence sufficient to cast doubt upon the validity of the inference arising from the facts, the barge will not have sustained the burden of ultimate persuasion resting upon it from the start. Id. at 780-781. On rehearing the defendant tug owner presented the deposition testimony of one Crawford, the pilot at the time the damage occurred. He testified that as far as he knew the barge was within the channel when the damage occurred and that there was no obstruction in the channel of which he was aware. The plaintiff presented no evidence to show that at the time of the grounding the barge was outside the channel nor that there were any known obstructions in the channel in the stretch of the river where the grounding occurred. After receiving this additional evidence Judge Wangelin found that the “ . . . defendants produced sufficient evidence to establish that the M/V National Progress and its tow were in channel and did not hit a known obstruction while within the channel.” Mid-America Transportation Co., Inc. v. National Marine Service, Inc., No. 71 A 692(3) (E.D. Mo., filed Mar. 5, 1975). Based upon our independent review of the evidence this finding of fact is not clearly erroneous. In making such finding, Judge Wangelin clearly complied with the law of the case as hereinbefore quoted from our original opinion. The judgment of the trial court 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?

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 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?

AUTOMOBILE UNDERWRITERS, INC., Appellant, Pauline Nelson and Donald Nelson, Intervening Plaintiffs, v. FIREMAN’S FUND INSURANCE COMPANIES v. LIBERTY MUTUAL INSURANCE COMPANY. No. 88-3850. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) April 18, 1989. Decided May 16, 1989. Jan C. Swensen, Swensen & Perer, Pittsburgh, Pa., for appellant, Auto. Underwriters, Inc. Jane Ann Thompson, Maria Zulick, Meyer, Darragh, Buckler, Bebenek, Eck & Hall, Pittsburgh, Pa., for appellee, Fireman’s Fund Ins. Companies. Before SEITZ, SLOVITER, and GREENBERG, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. I. Issue This case involves the construction of an “other insurance” clause in an insurance policy providing coverage to a car dealership that leased a car to a customer while his car was being fixed. The customer struck and killed a pedestrian while driving this rented car. The question presented is whether the clause in the car dealership’s insurance policy was an “escape” clause, to which Pennsylvania gives no effect, or was a valid “excess” clause, as found by the district court. II. Facts and Procedural History William Loving left his car with Ramsey-Sturman Ford, Inc. (Ramsey) for repairs; he rented from Ramsey a substitute car. The rental car was owned by Ford Rent-a-Car Systems and leased to Ramsey. Loving struck and killed a pedestrian, Eric Nelson, while driving this rental car. Nelson’s estate filed a wrongful death action in state court against Loving, claiming $3,325 in funeral expenses, and compensatory and punitive damages in excess of $20,000. Liberty Mutual Insurance Companies (Liberty), which provided a policy with a $100,000 limit to Ford Rent-a-Car Systems, admitted to being the primary insurer and agreed to pay up to the policy limit of $100,000. Liberty’s excess policy, unlike its primary policy, did not cover drivers of rental vehicles. Automobile Underwriters, Inc., the appellant here, provided Loving’s personal automobile policy coverage. The liability limit of its policy was $35,000. The policy contained a provision which stated: If there is any other applicable liability insurance we will pay only our share of the loss.. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. App. at 32. Ramsey was covered by a primary policy issued by Fireman’s Fund Insurance Companies (Fireman’s Fund) which had a limit of $1,000,000. The Fireman’s Fund policy stated: Anyone else is an insured while using with your permission a covered auto except: (3) Your garage operations customers. However, if a garage operations customer of yours ... (a) Has no other available insurance (whether primary, excess or contingent), he or she is an insured only up to the compulsory or financial responsibility law limits where the covered auto is principally garaged. (b) Has other available insurance (whether primary, excess or contingent), less than the compulsory or financial responsibility law limits where the covered auto is principally garaged, he or she is an insured only for the amount by which the compulsory or financial responsibility law limits exceeds the limits of his or her other insurance. App. at 78. Automobile Underwriters brought a declaratory judgment action against Fireman’s Fund based on diversity of citizenship to determine the parties’ obligations. It contended that its policy provided only excess coverage to that undertaken by Liberty and Fireman’s Fund. The administrators of the Nelson estate were given leave to intervene as plaintiffs and Liberty was added as a defendant. The three insurance companies moved for summary judgment, and all parties agreed that no material facts were in dispute. The district court granted summary judgment in favor of Liberty with respect to its excess policy because it did not cover drivers of rental vehicles. Automobile Underwriters, Inc. v. Fireman’s Fund Ins. Cos., 699 F.Supp. 1133, 1135 (W.D.Pa.1988). No party has appealed from that portion of the order. The court then held that the clause of the Fireman’s Fund policy was an “excess” clause, not an unenforceable “escape” clause, because it insured against the possibility that the driver did not carry insurance or carried insurance below the minimum required by Pennsylvania law. Id. at 1136. Therefore, this provision was “excess over other basic auto liability coverage with a policy limit equal to the amount of the state’s statutory minimum.” Id. The court found that the provision was “consistent with and enhances the purpose of” the state’s law requiring insurance coverage and had the further “salutary benefit of relieving the insured dealership of any obligation to determine each customer’s insurance coverage before providing a loaner car.” Id. The court concluded that “[bjecause Loving has other insurance which exceeds the statutory minimum required by Pennsylvania, Loving is not an insured under the Fireman’s Fund primary policy.” Id. Finally, the court found that the clear language of the Fireman’s Fund excess policy limited excess policy coverage to insureds covered under the primary policy. Therefore, it granted summary judgment in favor of Fireman’s Fund on both its primary and excess policies. Automobile Underwriters appeals. This court exercises plenary review of the grant of a motion for summary judgment. See Peters Township School Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 34 (3d Cir.1987). III. Discussion Judicial attitudes towards the use of “escape” clauses vary. See 8A J. Appleman, Insurance Law and Practice §§ 4906, 4910 (1981 and 1988 Supp.). The leading Pennsylvania Supreme Court case on point is Grasberger v. Liebert & Obert, Inc., 335 Pa. 491, 6 A.2d 925 (1939). In that case, Threshermen Company issued an insurance policy to a company which leased its truck, together with a driver, to a company insured by Aetna. The Threshermen policy covered any person legally responsible for operation of the covered automobile but further provided that “[i]f any other person ... insured hereunder ... is covered by other valid insurance against a claim otherwise covered by this Policy, no insurance under this policy shall be applicable to such claim.” 335 Pa. at 494, 6 A.2d at 926. The Aetna policy provided that “if the named Assured is covered under a policy taken out by the owner or operator of any automobile ... the coverage under this endorsement shall be excess coverage over and above the valid and collectible insurance under the policy taken out by the owner or operator.” 335 Pa. at 495, 6 A.2d at 926. A pedestrian was injured by the truck and driver and the lessor and lessee were held jointly liable for the injury. Thresher-men paid the judgment and then sought to recover contribution from the lessee. The lessee resisted, arguing that it was covered under Threshermen’s own policy. The Pennsylvania Supreme Court agreed. It construed Aetna’s policy as excess only, and held that the clause in the Threshermen policy which withheld protection if other coverage existed was not applicable because “up to the amount of the coverage of the [Threshermen] policy, [the insured] is not covered by other insurance.” Id. 6 A.2d at 926. It distinguished this situation from one where both policies contained clauses providing for proportional contribution when the risk was covered by another policy, in which situation it prorated the recovery from the two policies. Although the Grasberger Court did not denominate the clause in the Aetna policy as an “escape” clause, which is generally defined as a clause providing that there shall be no coverage where there is other valid and collectible insurance, see 8A J. Appleman, supra at 457, later Pennsylvania courts have so characterized it. See, e.g., Jett v. Hill, 10 Pa.D. & C.3d 734, 737 (C.P.Phila.1978) (“Grasberger ... dealt with an escape clause (whereby that policy would be null and void if other insurance existed) vis-a-vis an excess clause.”). Recently, the Pennsylvania Superior Court, following a discussion of Grasberger, inter alia, concluded that “it appears that the weight of authority instructs us to strike the escape clause or provision and enforce the policies as if the escape provision did not exist.” Connecticut Indem. Co. v. Cordasco, 369 Pa.Super. 439, 444, 535 A.2d 631, 634 (1987). This court, citing Grasberger, has explained that the courts of Pennsylvania have treated escape clauses with disfavor because they find “it unacceptable for an insurance company to provide no coverage under a policy for which it received premiums.” Contrans, Inc. v. Ryder Truck Rental, Inc., 836 F.2d 163, 166 (3d Cir.1987). The clause in the Fireman’s Fund policy at issue here goes beyond the escape provision in Grasberger. Known as a “super-escape/reduced limits clause,” see 8A J. Apple-man, supra at 350, 457, it provides that the company will not provide coverage when there is any other insurance available except to cover the excess of damages not covered by any other insurance up to the limit of an applicable financial responsibility law. This court considered the effect of Gras-berger on a “super-escape” clause in Insurance Co. of North America v. Continental Casualty Co., 575 F.2d 1070 (3d Cir.1978) (“IN A”). INA insured the lessee of a tractor-trailer under a policy agreeing to provide coverage “in excess of, and not [in] contributpon] with, [any other applicable] insurance.” Id. at 1072. We characterized this provision as an excess clause, because it did not provide supplemental protection until the other coverage available to the insured was exhausted. The other insurer, Continental, insured the owner/lessor of the tractor-trailer under a policy which stated that “[i]f ... the insured has other insurance, whether on a primary, excess or contingent basis, there shall be no insurance afforded hereunder ... provided, that if the limit of liability of this policy is greater than the limit of liability provided by other insurance, this policy shall afford excess insurance over and above such other insurance in an amount sufficient to give the insured, as respects the layer of coverage afforded by this policy, a total limit of liability equal to the limit of liability afforded by this policy.” Id. Judge Weis, writing for this court, stated that although “the first part of the Continental language is of the ‘escape’ variety,” the second part is not so “draconian” in that it undertook to provide coverage if the limits of its policy were greater than the other insurance available. Id. at 1072. However, because the policy limit in the Continental policy was lower than INA’s, we held that “in the context of the dispute at bar” the provision must be considered an escape clause, and noted that “ ‘escape’ clauses are generally in disfavor with the courts.” Id. at 1072. We predicted that Pennsylvania would not make a distinction between a “super-escape” clause and the basic escape clause at issue in Grasberger. We construed Grasberger to hold that, “in a conflict between an excess and an escape clause the court would refuse to enforce the latter,” and would require that the whole loss be borne “by the company which sought to avoid any responsibility by invoking its escape clause.” Id. at 1073. Accord Jamestown Mut. Ins. Co. v. Erie Ins. Exch., 357 F.Supp. 933 (W.D.Pa.1972) (where one policy contained excess clause and the other contained escape clause, policy with escape clause held to provide coverage), aff'd mem., 474 F.2d 1339 (3d Cir.1973). Thereafter, the Pennsylvania Superior Court in Connecticut Indemnity Co. v. Cordasco, 369 Pa.Super. 439, 535 A.2d 631 (1987), expressly adopted our analysis of Pennsylvania law as set forth in the INA case. Connecticut Indemnity provided insurance to the car dealership which owned the car involved in the accident. The driver had an insurance policy issued by State Farm Insurance which provided primary automobile insurance coverage on his personal automobile. The State Farm policy also provided coverage for use of temporary substitute cars but provided that: If a temporary substitute car ... has other vehicle liability coverage on it, then this coverage is excess. This coverage shall not apply: a. If the vehicle is owned by any person or organization in a car business, and b. if the insured or the owner has other liability coverage which applies in whole or in part as primary, excess or contingent coverage. 369 Pa.Super. at 443, 535 A.2d at 633 (emphasis added). The Pennsylvania Superior Court expressly followed INA and found this language to constitute an escape clause because it purported to relieve the insurer from any obligation to the insured if other coverage is available. 369 Pa.Super. at 444, 535 A.2d at 633. The court found “no difficulty with the fact that the escape provision is tied to an excess coverage provision,” noting that this court had, in the INA case, dealt with a similar clause. 369 Pa.Super. at 444, 535 A.2d at 633-34. The Cordasco court disregarded the escape provision and held that State Farm was obligated to provide the excess coverage at issue. Nothing in Contrans, Inc. v. Ryder Truck Rental, Inc., 836 F.2d 163 (3d Cir.1987), to which Fireman’s Fund alludes, is contrary. In Contrans, Old Republic issued a policy covering both the tractor portion of a rig involved in an accident, which was owned by its insured and leased to Contrans, and the trailer portion, owned by another party and leased to Contrans. The policy provided that the insurance “shall not apply if there is other coverage applicable to the trailer and available to the lessee/renter.” Id. at 167 (emphasis in original). Although the district court had construed this language as an escape clause, we held instead that the limiting clause was applicable only to the trailer (which Old Republic’s insured did not own) and that in fact Old Republic’s policy provided primary coverage on the tractor. Because the policy did not evince an intent to escape coverage entirely, it was not to be construed as an escape clause. Id. at 170. Fireman’s Fund argues that its policy, like that recently construed in Widener University v. Fred S. James & Co., 371 Pa.Super. 79, 537 A.2d 829 (1988), should be viewed as an excess clause rather than an escape clause. The clause at issue there read, “The insurer shall not be liable to make any payment for loss in connection with any claim against the Assureds ... which is insured by another policy or policies except in respect of any excess over and above the amount or amounts of such other policy or policies,” 371 Pa.Super. at 83-84, 537 A.2d at 831, and was a fairly straightforward excess clause. See also Maryland Casualty Co. v. Horace Mann Ins. Co., 551 F.Supp. 907, 910 (W.D.Pa.1982), aff'd mem., 720 F.2d 664 (3d Cir.1983) (holding a clause stating that it did not apply “to that portion of any claim ... against the insured which is insured by another valid policy” should be construed as an excess clause, rather than an escape clause, because “[n]owhere does defendant attempt to escape liability in its entirety” (emphasis added by district court)). Fireman’s Fund confuses the distinction between an excess clause and an escape clause. An excess clause provides for payment of that portion of the claim that remains unpaid once other coverage is exhausted. Id.; see also INA 575 F.2d at 1072. An escape clause, on the other hand, relieves the insurer from any obligation to its insured if other coverage is available. Id. The district court here reasoned that the Fireman’s Fund clause was not an escape clause because it would not exonerate the company from liability with respect to a class of potential insureds, i.e., those without the minimum coverage required under law. Such a construction is inconsistent with our analysis in INA. There, we refused to view the clause in a hypothetical situation and instead construed the clause “[a]s applied to the facts here” and labeled it “escape” “in the context of the dispute at bar.” 575 F.2d at 1072. No escape clause exonerates the company from liability in all situations; all such clauses by definition contemplate the possibility that no other insurance policy will provide coverage, but it is only in the event of that contingency that the insurer will be responsible. The policy reason for nullifying escape clauses was discussed in INA where we noted that such a rule protects the interests of the insured; that companies who write insurance in the state are aware of the rule; and that applying it would promote certainty in a field of law where predictability was particularly desirable. 575 F.2d at 1074. It follows, with the escape clause stricken, that the Fireman’s Fund primary policy coverage of $1,000,000 is applicable to the claim at issue. Moreover, we note that the basis on which the district court held that the Fireman’s Fund excess policy was inapplicable, i.e., its applicability only to insureds covered under the primary policy, can no longer be used to exclude its coverage. IV. Conclusion For the reasons set forth above, we will reverse the judgment of the district court and remand for the entry of a declaratory judgment consistent with this opinion.

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.

The INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, and Lodge 1021, International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 300, Docket 24385. United States Court of Appeals Second Circuit. Argued April 9, 1957. Decided Aug. 2, 1957. Plato E. Papps, Washington, D. C., Sturm & Perl, New York City, for petitioners. Kenneth C. McGuiness, General Counsel, Stephen Leonard, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Margaret M. Farmer, Attys., National Labor Relations Board, Washington, D. C., for respondent. Clarence M. Mulholland, Toledo, Ohio, Edward J. Hickey, Jr., Washington, D. C. (Mulholland, Robie & Hickey, Washington, D. C., of counsel), for Railway Labor Executives’ Ass’n, amicus curiae. Before HAND, MEDINA and WATERMAN, Circuit Judges. WATERMAN, Circuit Judge. This case is before us upon the petition of the International Association of Machinists, AFL-CIO, and Lodge 1021 of that union, pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board issued against the petitioners based upon a finding of unfair labor practices committed by them. The Board’s decision and order are reported at 116 N.L.R.B. No. 92 (1956). We have jurisdiction under the Act because the conduct found by the Board to constitute unfair labor practices occurred in New Britain, Connecticut, within this judicial circuit. In 1954 the New Britain Machine Company and the petitioners entered into a collective bargaining agreement, effective for a period of two years, covering a production and maintenance unit. The agreement contained a union security provision requiring employees who were union members to “maintain their membership in the Union in good standing” during the life of the agreement as a condition of their continued employment. A member’s failure to maintain such a status would entitle the union to request his discharge by the company. The maintenance of membership provision contained the following proviso: “ * * * provided, however, there shall be during the period of this contract, annual escape periods from March 7 to March 22 inclusive, within which escape periods any Union member may resign from the Union and be relieved of the obligations of maintenance of membership by written notice to both the Union and the Company indicating such resignation, and such notice shall also operate as a simultaneous revocation of the employee’s checkoff authorization under 4.3.” Edward Batogowski was an employee of the New Britain Machine Company and a union member who had signed a checkoff authorization. By letter dated March 21, 1955, Batogowski notified the Company that he was resigning that day from the union. The Company removed Batogowski’s name from the checkoff list. It then, in April, 1955, sent to Lodge 1021 a list of those employees who had canceled their checkoff authorizations, including Batogowski. Batogowski made no dues payments to the union after his letter to the Company. On May 17, 1955, the recording secretary of Lodge 1021 wrote Mr. Morrow, a vice-president of the Company in charge of industrial relations, informing him that the union had “received no official notification” of resigning and checkoff cancellation from Batogowski or from John Stochmal, another employee whose name had been placed on the list sent to the union in April. The letter of the recording secretary then directed the Company’s attention to the requirement in the bargaining agreement that both the Union and the Company must receive written notice of a union member’s resignation during an escape period in order for that resignation to be effective. On May 26 the Company official replied, stating that the Company had “investigated these two cases and is satisfied that the notices to the Union were properly placed in mail channels to the Union,” and asserted that proper mailing of the notice by the employee was sufficient compliance with the requirements of the escape period provision. The collective bargaining agreement contained provisions for a grievance procedure, with ultimate resort to arbitration of any unsettled issues. Sometime during May 1955, a grievance meeting was held. At the hearing before the Trial Examiner of the NLRB the union representative testified that at this meeting he told Morrow that the union had not received notices from the two employees, and that under the union constitution these employees would cease to be “members in good standing” after the lapse of a 90-day grace period measured from March 1, 1955, the date at which the employees’ obligation to tender the first unpaid installment of dues arose. The union representative further testified that at this May meeting he stated that if the two employees paid their back dues, the union would consider the matter closed. The Company adhered at that time, however, to its interpretation of the collective bargaining agreement and its contention that the two employees had sufficiently complied with the resignation provisions. Unsatisfied with this position, the union filed a formal grievance with the Company on June 16, 1955, at which time neither Batogowski nor Stochmal had tendered any back dues. It was the union’s claim that the attempted resignations were ineffective and therefore the two employees were no longer “members in good standing.” The grievance was considered by a Company official, who after a further examination upheld the Company’s original position. The grievance remained unresolved, however, and the parties resorted to arbitration. Sometime after June 20 but before the parties resorted to arbitration in August, Stochmal tendered his back dues, which were accepted by the union, and thus that employee was restored to the status of a “member in good standing.” There was evidence at the hearing held by the Trial Examiner of the NLRB tending to show that sometime prior to the arbitration hearing the union requested that the Company discharge Batogowski because he was no longer a “member in good standing.” The issue originally submitted for arbitration was framed as follows: “Did Employee Edward Batogowski resign from the Union membership and revoke his checkoff authorization under Article IV of the Contract?” The parties later agreed to add the following question to the statement of the issue: “And if not, (to) what remedy, if any is the Union entitled under the Contract?” The arbitrators held their hearing in the latter part of August and handed down their decision on November 28, 1955. This decision, written by the “third arbitrator” and concurred in by the arbitrator selected by the union, stated that Batogowski’s attempted resignation was ineffective because they found that no notice thereof was received by the union. The award of the arbitrators reads as follows: “Employee Edward Batogowski did not resign from the Union and revoke his checkoff authorization in accordance with Article IV of the Contract. “The Union is entitled under the Contract to require the discharge of Edward Batogowski.” Morrow learned of the award on the same day it was made. He immediately summoned Batogowski to the office, told him of the award, and suggested that he pay his back dues. Batogowski sent Lodge 1021 a note on that very day— November 23 — stating that he was enclosing a money order for $20 “representing arrears in dues as of today. If [there is] any monetary difference as to the accuracy of my calculation, please let me know promptly, as it is my desire to pay my dues in full.” It was stipulated before the Trial Examiner that Batogowski tendered the full amount of his back dues. At a meeting of Lodge 1021 held on December 1, 1955, the members voted not to accept Batogowski’s tender of dues, and the treasurer returned the money order to him. On December 6, the recording secretary wrote Morrow advising him of the union’s decision and requesting that the Company discharge Batogowski. Morrow rejected this request and set forth the company’s reasons for so doing. In the ensuing weeks the union repeated its request, but the Company stated that it would discharge Batogowski only when it was assured that it would not be committing an unfair labor practice thereby or depriving Batogowski of his legal or contractual rights. The Union representatives continued to press their demand for Batogowski’s discharge. Finally, at a meeting with Morrow on February 1, 1956, they threatened a strike unless their demand was met. The next day Morrow apprised Batogowski of the union’s stand, and informed him that his employment was terminated. On the same day Morrow notified the NLRB of the Company’s decision to discharge Batogowski and the circumstances prompting this action. The Company also charged the union with the commission of unfair labor practices in requesting Batogowski’s discharge and in threatening to strike if the request were not granted. A complaint was issued, and the NLRB took jurisdiction. “The Company understands that subsequent to the arbitration award, Edward Batogowski made full tender of back dues to the Union. In view of this fact, the Company may not legally discharge Mr. Batogowski for non-payment of Union dues. Under a recent decision of the National Labor Relations Board, both the Company and the Union would be subject to an unfair labor practice charge if the Company were to discharge Mr. Batogowski now. We refer you to the case of Aluminum Workers, A. F. of L., decided by the NLRB on May 6, 1955, and reported at 36 LRRM 1077 * * * On these facts, the Board found that the union had violated sections 8(b) (1) (A) and 8(b) (2) of the Act by “unlawfully demanding the discharge of Edward Batogowski.” In addition to the usual cease and desist order, the Board ordered the reinstatment of Batogowski, with back pay damages, if any, to be borne by the petitioners. The Board reasoned that although the petitioners were entitled to request Batogowski’s discharge at the time of the arbitration award on November 23, 1955, Batogowski had “made a full and unqualified tender of back dues after the arbitration decision had been announced and before the actual discharge had taken place.” Therefore the petitioners, subsequent to that tender, “were no longer privileged to lawfully require Batogowski’s discharge.” In support of this analysis, the Board relied on the following broad language in its own opinion in Aluminum Workers International Union, Local No. 135, AFL, 112 N.L. R.B. 619, 621 (1955), enforcement granted, N. L. R. B. v. Aluminum Workers International Union, 7 Cir., 1956, 230 F.2d 515: “ * * * a full and unqualified tender made anytime prior to actual discharge, and without regard as to when the request for discharge may have been made, is a proper tender and a subsequent discharge based upon the request is unlawful.” We reverse the Board’s order and decision finding the petitioners guilty of unfair labor practices under sections 8 (b) (1) (A) and 8(b) (2). We believe that the quoted language from the Board opinion in the Aluminum Workers case is an incorrect statement of the law. We are therefore remanding this case for further proceedings to ascertain the reason or reasons motivating the requests for Batogowski’s discharge that were made by the petitioners subsequent to November 23. The legislative intent embodied in sections 8(a) (3) and 8(b) (2) of the National Labor Relations Act was examined and discussed by the Supreme Court in considerable detail in Radio Officers’ Union of Commercial Telegraphers Union, A.F.L. v. N. L. R. B., 1954, 347 U.S. 17, 40-41, 74 S.Ct. 323, 335, 98 L.Ed. 455: “ * * * The policy of the Act is to insulate employees’ jobs from their organizational rights. Thus §§ 8(a) (3) and 8(b) (2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to § 8(a) (3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under such contracts if membership ‘was not available to the employee on the same terms and conditions generally applicable to other members’ or if ‘membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership’. Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited permissible employer discrimination. This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about ‘free riders,’ i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a union is condoned.” Under the applicable language of section 8(b) (2), 29 U.S.C.A. § 158(b) (2), a labor organization commits an unfair labor practice only if it causes an employer “to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues * * * uniformly required as a condition of * * * retaining membership.” (Emphasis added.) The petitioners here argue that there was no finding by the Board that their request for Batogowski’s discharge was motivated by anything other than that employee’s failure to tender his periodic dues. To this contention the Board replied that the requests for Batogowski’s discharge that were made on December 6, 1955, and thereafter, must have been motivated by some other reason because Batogowski had tendered the full amount of accrued back dues to the union on November 23, 1955 — the day of the arbitration award. Moreover, the Board argues, the Company would have committed an unfair labor practice if it had acceded to the union’s request for Batogowski’s discharge prior to the outcome of the arbitration, because the Company until that time would have had “reasonable grounds for believing that Batogowski’s union membership was * * # terminated for reasons other than [his] failure * * * to tender the periodic dues. * * *” 29 U.S.C.A. § 158(a) (3) (B). That is, until November 23, the Company believed that Batogowski’s union membership had been terminated by an effective resignation during the “escape period.” But, answer the petitioners, even if the Company was entitled to deny the union requests for Batogowski’s discharge made prior to the outcome of the arbitration, the Company was thereafter required to grant the request subsequent to November 23 because on that date the Company learned that Batogowski had not effectively resigned from the union during the preceding March. Thus his subsequent failure to tender the monthly union dues as they fell due deprived him of his status as a “member in good standing” and empowered the union to request his discharge under the terms of the existing collective bargaining agreement. And, according to the petitioners’ reasoning, Batogowski’s tender of back dues on November 23 was too late to defeat the union’s right to request his discharge, because at that time, under the union constitution, Batogowski had not been a “member in good standing” for almost six months. The underlying theory of this argument is that once the union’s right to request an employee’s discharge has arisen under the terms of the collective bargaining agreement, it cannot be defeated by a subsequent belated tender of back dues. We believe that there is considerable merit to the petitioners’ contention, and it finds support in at least two of the earlier Board decisions. See Chisholm-Ryder Co., 94 N.L.R.B. 508, 511 (1951); Ferro Stamping and Mfg. Co., 93 N.L.R.B. 1459, 1504 (1951). See generally Note, The Ability of A Union To Cause A Discharge For Nonpayment of Dues Under The Taft-Hartley Act, 45 Geo.L.J. 250 (1956-57). In the Ferro case the Trial Examiner stated that the failure to tender periodic dues “is not automatically canceled-out by a subsequent tender of payment, unless acquiesced in by the union or unless the union’s own regulations provide for restitution of membership rights upon correction of the default.” 93 N.L.R.B. at 1504. In ChishoIm-Ryder the Board applied this principle in holding that a tender of back dues by a union member who was delinquent in his payments did not defeat the union’s right to compel that employee’s discharge under a union security provision. The rationale of the Chisholm-Ryder holding is obvious. If labor organizations are to be allowed effective enforcement of union security provisions, they must be free to invoke the sanction of loss of employment against those union members who are delinquent in tendering their periodic dues. This sanction might become meaningless if an employee could avoid its impact by an eleventh hour tender of back dues just prior to actual discharge. Moreover, an employer might effectively frustrate the expeditious collection of dues by warning recalcitrant employees to tender their dues when the union finally pressed its request for discharge by resort to the NLRB arbitration, or, as here, by threat of strike. It seems clear to us that Congress did not intend that the efficacy of valid union security provisions should depend solely on the employer’s willingness to act promptly upon a request for an employee’s discharge when the validity of that request is not in issue. Rather, we believe that the employee who is delinquent in paying his union dues is a “free rider,” whose discharge can be compelled by the union under an applicable union security provision even though that employee belatedly tenders his back dues in full before actual discharge. Throughout the proceedings below, counsel for the NLRB, the Trial Examiner, and finally the Board itself relied upon the statement quoted above from the Board opinion in the Aluminum Workers case. Hence neither the intermediate order of the Trial Examiner nor the final decision of the Board contains a finding as to the reason or reasons underlying the requests for Batogowski’s discharge made subsequent to his tender of back dues on November 23. We believe that such a finding is crucial in a proceeding involving a charge brought under section 8(b) (2). That is, a violation of that section can be sustained here only upon a finding that the petitioners requested Batogowski’s discharge for some other reason “than his failure to tender * * * periodic dues.” We are therefore remanding this case to the NLRB for further proceedings in order to ascertain whether the demands for discharge made after November 23 were based, even in part, upon some ground other than nonpayment of dues. In its brief on appeal, the Board compared the union’s acceptance of Stochmal’s belated tender of dues with its subsequent refusal to accept Batogowski’s tender. The Board then argued that the requests for the latter’s discharge after November 23 must have been motivated by resentment over his insistence on arbitration rather than by his failure to tender periodic dues. Although on appeal we cannot sustain the finding of unfair labor practices on an inference that was not explored by the triers of fact, we do point out that this comparison in treatment may be relevant to the inquiry for which we are remanding this case. In upholding a Board finding of a section 8(b) (2) violation, this court has given great weight to evidence of any disparity in a union’s treatment of different employees, all of whom were similarly delinquent in tendering back dues. See N. L. R. B. v. Biscuit & Cracker Workers, 2 Cir., 1955, 222 F.2d 573, 575-577. Here Batogowski tendered his dues as soon as he was conclusively apprised that he was so obligated. His refusal to tender dues or to permit their checkoff, subsequent to March 1955 but prior to the outcome of the arbitration proceedings, was motivated, from all that appears in the record below, solely by his good faith belief that he was not a member of the union after March and thus was not obligated to tender periodic dues after that date. A finding by the Board that the demands for Batogowski’s discharge subsequent to November 23 were prompted, even in part, by union pique over that employee’s resort to grievance and arbitration procedures would provide ample basis for concluding that the petitioners had violated sections 8(b) (1) (A) and 8(b) (2). Clearly, Congress never intended that union security provisions could be invoked to penalize an employee whose only “error” was that he insisted on a full exhaustion of procedures expressly provided for in the collective bargaining agreement before he would concede his indebtedness to the union. Reversed and remanded to the NLRB for further proceedings there in accordance with this opinion. . That letter read as follows: “At the regular Lodge membership meeting held in the Lodge Hall at 434 Main Street, in New Britain, on December 1, 1955, the award of the Arbitrators on the Arbitration between the New Britain Machine Company and the International Association of Machinists Lodge No. 1021, regarding employee Edward Batagowski was read and thoroughly discussed. It was voted unanimously by all the members present at the meeting that the Lodge abide by the Arbitrators decision of November 23, 1955 on Edward Batagowski. “We request that Edward Batagowski be discharged under Article IV in the Contract between the New Britain Machine Company and the International Association of Machinists and Lodge No. 1021, IAM, dated March 22, 1954.” . That letter, dated December 12, 1955, insofar as here relevant, read as follows: . Section 8(b) (1) (A) provides: “(b) 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 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to proscribe its own rules with respect to the acquisition or retention of membership therein; * * * ”. . Section 8(b) (2) provides: “(b) It shall be an unfair labor practice for a labor organization or its agents— S: * * * * “(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” . At the hearing below the parties stipulated that “ * * * the question of whether or not Batogowski sent a proper resignation to the union * * * ” is not an issue in this proceeding, having been resolved by the same parties through the arbitration proceeding. In its opinion the Board characterized the arbitration decision in this case “as a fair and voluntary settlement of the factual issues presented in that proceeding.” The Board then relied upon its decision in Spielberg Mfg. Go., 112 N.L.R.B. 1080, 1082 (1955), where it said, “ * * * the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by [the Board’s] recognition of the arbitrator’s awards.” Thus the arbitration decision was not disputed on appeal. . On appeal, the Court of Appeals for the Seventh Circuit based its affirmance on two grounds, neither of which involved the broad rule set forth by the Board. See N. L. R. B. v. Aluminum Workers International Union, 7 Cir., 1956, 230 E.2d 515. The court held that on the particular facts of that case the employee’s tender of dues was timely, and that in any event it was made prior to the union’s “operative demand” for the employee’s discharge. The court also queried the union’s reason for requesting the discharge, suggesting that it was based on some other ground than nonpayment of dues. . Section 8(a) (3), insofar as here relevant, reads as follows: * * * Provided further, That no employer shall justify any discrimination against añ employee for nonmembership in a labor organization * * * if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . See also the remarks of the late Senator Taft made on the Senate floor while the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., was in the course of enactment. E. g., 93 Cong.Rec. 3827 ; 93 Cong.Rec. 3953 (1947); 93 Cong.Rec. 4317-4318 (1947); 93 Cong.Rec. 4887; 93 Cong. Rec. 5087-88 (1947). See S.Rep. No. 105, 80th Cong., 1st Sess. 6-7 (1947); Legislative History of the Labor Management Relations Act, 1947, pp. 412-413, 1010, 1096. . See Note, The Ability of A Union To Cause A Discharge Por Nonpayment of Dues Under The Taft-Hartley Act, 45 Geo.L.J. 250, 259-61, 264 (1956-57). . Efforts by a union to procure an employee’s discharge for a variety of reasons other than nonpayment of periodic dues or initiation fees have been held to be unfair labor practices. E. g., failure to pay a fine or other assessment, N. L. R. B. v. International Ass’n of Machinists, Local No. 504, 9 Cir.1953, 203 P. 2d 173; Custom Underwear Mfg. Co., 108 N.L.R.B. 137 (1954); Westinghouse Electric Corp., 96 N.L.R.B. 522 (1951); Electric Auto-Lite Co., 92 N.L.R.B. 1073 (1950); affirmed 6 Cir., 196 F.2d 500, certiorari denied 1952, 344 U.S. 823, 73 S.Ct. 23, 97 L.Ed. 641; Pen and Pencil Workers Union. Local 19593, AFL, 91 N.L.R.B. 888, 886 (1950); acceptance of a wage lower than the one establislied as union scale, International Brotherhood of Teamsters, AFL, 110 N.L.R.B. 287 (1954); activities in a rival union, Wagner Iron Works, 104 N.L.R.B. 445, 450 (3953) ; failure to attend union meetings, Hunkiu-Conkey Constr. Co., 95 N.L.R.B. 438, 436 (1951); circulating a petition criticizing the method of selecting a shop steward, Air Products, Inc., 91 N.L.R.B. 1381 (1950).

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?

Frank L. BIRD, Trustee of the Frank L. Bird Profit Sharing Trust, Frank L. Bird, Individually, and Joan Shea, Appellees, v. SHEARSON LEHMAN/AMERICAN EXPRESS, INC., and Raymond R. Clements, Appellants. No. 721, Docket 90-7688. United States Court of Appeals, Second Circuit. Argued Dec. 13, 1990. Decided Jan. 17, 1991. Jeffrey L. Friedman, New York City (Theodore A. Krebsbach, New York City, on the brief), for appellants Shearson Lehman/American Express, Inc. and Raymond R. Clements. Donald R. Holtman, Hartford, Conn. (Katz & Seligman, Hartford, Conn., on the brief), for appellees Frank L. Bird, Trustee of the Frank L. Bird Profit Sharing Trust, Frank L. Bird, Individually, and Joan Shea. Before TIMBERS, KEARSE and MINER, Circuit Judges. TIMBERS, Circuit Judge: Appellants Shearson Lehman/American Express, Inc. (Shearson) and Raymond R. Clements appeal from an order entered July 16, 1990 in the District of Connecticut, Jose A. Cabranes, District Judge, denying their motion to compel arbitration of a claim brought by appellees Frank L. Bird, Individually and as Trustee of the Frank L. Bird Profit Sharing Trust, and Joan Shea for breach of fiduciary duty pursuant to the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1001 et seq. (1988). On appeal, appellants contend that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (1988),' requires that agreements to arbitrate statutory ERISA claims are enforceable. For the reasons that follow, we reverse the judgment of the district court and remand for proceedings consistent with this opinion, including arbitration forthwith. I. We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. Frank L. Bird is the Trustee and a participant and beneficiary in the Frank L. Bird Profit Sharing Trust (the Trust). Joan Shea is a participant and beneficiary in the Trust. The Trust was established to provide for the retirement of its participants and beneficiaries and is governed by the terms of ERISA. Raymond Clements, a broker and vice president of Shearson, solicited Bird as a client. Bird was interested in investing the assets of the Trust. At their first meeting, Bird alleges that he explained to Clements that the investment objectives for the Trust were long term growth and safety of the Trust’s assets. In his capacity as Trustee, Bird invested all the assets of the Trust in a securities account with Shearson. Bird signed Shearson’s standard “Customer’s Agreement” prior to opening the account. That agreement contained an arbitration clause which provided that “Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect.” All of the Trust’s assets, a total of $62,-205.56, were deposited in the account. Fifty-five transactions were made in the account between July 24, 1984 and May 28, 1986. At the end of that period, $13,427.53 remained in the account. Appellees allege that the assets of the Trust were diminished due to mishandling by appellants, who allegedly made high risk investments on behalf of the Trust in disregard of the stated investment objectives of the Trust. On July 21, 1987, appellees commenced this action and filed the complaint in the District of Connecticut. Count one of the complaint alleged a breach of fiduciary duties under ERISA. 29 U.S.C. § 1104 (1988). Count two alleged that the account had been churned in violation of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1988), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 (1990). The complaint also set forth various state law claims; these subsequently were dismissed. On August 18, 1987, appellants filed a motion invoking the arbitration clause in the Customer’s Agreement and seeking a stay of proceedings in the district court. The district court granted the motion as to the securities law claim, but denied the motion as to the ERISA claim. We affirmed the district court’s decision. Bird v. Shearson Lehman/American Express, Inc., 871 F.2d 292 (2 Cir.1989) (Bird I). We held that Congress intended to preclude a waiver of judicial remedies for statutory ERISA claims, but not for contractual claims involving ERISA-covered plans. Id. at 298. Appellants filed a petition for a writ of certiorari in the Supreme Court. In the meantime, the Supreme Court filed its opinion in Rodriguez de Quijas v. Shearson/American Express, Inc., 109 S.Ct. 1917 (1989). In Rodriguez, the Court held that agreements to arbitrate statutory claims arising under the Securities Act of 1983 were enforceable. Subsequently, the Court granted certiorari in Bird I, vacated our judgment, and remanded the case for reconsideration in light of Rodriguez. Shearson Lehman/American Express, Inc. v. Bird, 110 S.Ct. 225 (1989). On January 19, 1990, we entered an order remanding the case to the district court for reconsideration in light of Rodriguez. On July 16, 1990, the district court, in a thoughtful opinion, affirmed its original decision. The district court reasoned that “Rodriguez [was] consistent with the Supreme Court’s other recent rulings on arbitration and therefore [did] not significantly change the legal landscape in which this issue was originally considered.” The district court held that statutory ERISA claims were not subject to compulsory arbitration. The court denied appellants’ motion to compel arbitration and for a stay of the district court proceedings pending arbitration. This appeal followed. II. Initially, we set forth our standard of review. “[A] court asked to stay proceedings pending arbitration in a case covered by the [FAA] has essentially four tasks: first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then determine whether to stay the balance of the proceedings pending arbitration.” Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2 Cir.1987) (citations omitted). We review the district court’s determinations on those issues de novo. Id. at 846. In Bird I, we affirmed the district court’s holding that Bird and Shearson entered into a valid arbitration agreement that encompassed the ERISA claim. Bird I, supra, 871 F.2d at 295. We see no reason to disturb that holding. Accordingly, the only issue before us on the instant appeal concerns the third element, i.e., whether Congress intended statutory claims created by ERISA to be nonarbitra-ble. III. We turn first to appellants’ contention that the FAA requires that their agreement to arbitrate be enforced notwithstanding the fact that appellees’ claim is for a breach of fiduciary duties under ERISA. We agree. In Bird I, we held that the text of ERISA — particularly the provisions for exclusive federal jurisdiction of statutory claims, the remedial nature of the statute, and the underlying purposes of ERISA— compelled the conclusion that “Congress intended the federal courts to be the exclusive forum for resolving disputes of substantive rights.” Bird I, supra, 871 F.2d at 295. We are told that Bird I was motivated, in part, by an “outmoded presumption of disfavoring arbitration proceedings”. Rodriguez, supra, 109 S.Ct. at 1920. Rodriguez makes it clear that that is no longer tenable. Accordingly, we now reach a contrary result. The FAA, “reversing centuries of judicial hostility to arbitration agreements, was designed to allow parties to avoid ‘the costliness and delays of litigation,’ and to place arbitration agreements ‘upon the same footing as other contracts . . . Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 (1974) (footnote and citation omitted). Section 2 of the FAA provides that “an agreement in writing to submit to arbitration an existing controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at láw or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1988). “Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983); see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985) (the FAA “requires that we rigorously enforce agreements to arbitrate”). The “duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights.” Shear-son/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). Congress, however, may override the presumption favoring arbitration agreements by a contrary provision in another statute. Id. The burden of demonstrating such congressional intent rests with the party opposing arbitration. Rodriguez, supra, 109 S.Ct. at 1921; McMahon, supra, 482 U.S. at 227. The party contending that an agreement to arbitrate a statutory claim is not enforceable must show that “Congress intended in a separate statute to preclude a waiver of judicial remedies . . . .” Rodriguez, supra, 109 S.Ct. at 1921. “[S]uch an intent ‘will be deducible from [the statute’s] text or legislative history,’ or from an inherent conflict between arbitration and the statute’s underlying purposes.” McMahon, supra, 482 U.S. at 227 (citations omitted). Applying these standards in a series of recent cases, the Supreme Court has upheld arbitration agreements involving various statutory claims. E.g., McMahon, supra, 482 U.S. at 227-38 (claim under § 10(b) of the Securities Exchange Act of 1934); id. at 238-42 (claim under civil provisions of Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628-40 (1985) (claim under Sherman Antitrust Act). Most recently, the Court held that agreements to arbitrate claims brought pursuant to the Securities Act of 1933 are enforceable. Rodriguez, supra, 109 S.Ct. at 1919-21. In so holding, the Court overruled its holding in Wilko v. Swan, 346 U.S. 427 (1953) (a 1933 Act decision), which it stated “rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law” and had “fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez, supra, 109 S.Ct. at 1920. Prior to Rodriguez, courts of appeals that considered the enforceability of agreements to arbitrate claims derived from ERISA reached varying conclusions. Compare Bird I, supra, 871 F.2d at 298 (agreement to arbitrate statutory ERISA claims is not enforceable) and Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923, 941 (3 Cir.1985) (same) with Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 847 F.2d 475, 477-79 (8 Cir.1988) (agreement to arbitrate statutory ERISA claim is enforceable). No court of appeals has considered this issue since Rodriguez. This ease is one of first impression. (A) We consider next the text and legislative history of ERISA. We find nothing in the text or legislative history explicitly addressing the issue of whether Congress intended to preclude a waiver of a judicial forum for claims arising from the substantive guarantees of ERISA. We also find nothing in the text or legislative history that compels us to reach that conclusion by implication. We are aware that one of the means by which Congress sought “to protect ... participants in employee benefit plans and their beneficiaries” was “by providing ... ready access to the Federal courts.” 29 U.S.C. § 1001(b) (1988). This provision, however, does not speak to whether Congress intended to require that parties avail themselves of that forum. Sulit, supra, 847 F.2d at 478. It does not follow that “by permitting a federal judicial forum Congress also intended to override the Arbitration Act’s aim of ensuring the enforcement of privately made agreements in which parties ... have chosen to forego an available judicial forum in favor of arbitration.” Id. at 479. Similarly, the fact that Congress provided for exclusive federal jurisdiction of claims brought to enforce ERISA’s substantive provisions, 29 U.S.C. § 1132(e) (1988), speaks only to which judicial forum is available, not to whether an arbitral forum is available. Moreover, the Supreme Court has upheld an arbitration agreement which was involved in a dispute grounded in a statute that similarly provides for exclusive federal jurisdiction. E.g., McMahon, supra, 482 U.S. at 227 (Securities Exchange Act of 1934, 15 U.S.C. § 78aa (1988)). In short, “any claim that the jurisdictional language of ERISA evidences a congressional intent to foreclose arbitrability would appear to be untenable in light of McMahon and [Rodriguez ].” Southside Internists Group v. Janus Capital Corp., 741 F.Supp. 1536, 1541 (N.D.Ala.1990). Liberal procedural provisions that facilitate bringing ERISA claims in federal court pursuant to § 1132 also do not compel a conclusion that Congress intended such claims to be nonarbitrable. The Supreme Court rejected that reasoning in Rodriguez. It declined to imply such an intent based on similar provisions that govern claims brought in the federal courts pursuant to the Securities Act of 1933. Rodriguez, supra, 109 S.Ct. at 1920. We hold that ERISA’s text and legislative history do not support a conclusion that Congress intended to preclude arbitration of claims brought pursuant to it. (B) We turn next to whether arbitration is inconsistent with ERISA’s underlying purposes. We hold that it is not. In its statement of findings and declaration of policy, Congress explained the circumstances leading to the passage of ERISA and the purpose of the legislation: “that despite the enormous growth in [pension] plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable ... that minimum standards be provided assuring the equitable character of such plans and their financial soundness.” 29 U.S.C. § 1001(a) (1988). “A reading of the statute’s legislative history compels the conclusion that ERISA’s purpose is to secure guaranteed pension payments to participants by insuring the honest administration of financially sound plans.” Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2 Cir.), cert. denied, 459 U.S. 1039 (1982); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (“ERISA was enacted ‘to promote the interests of employees and their beneficiaries in employee benefit plans,’ and ‘to protect contractually defined benefits’ ” (citations omitted)). Allowing parties to provide by agreement that their disputes will be resolved in arbitration is not inconsistent with those purposes. “By agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi, supra, 473 U.S. at 628. Thus, arbitration is inconsistent with the underlying purposes of a statute “where arbitration is inadequate to protect the substantive rights at issue.” McMahon, supra, 482 U.S. at 229. A presumption that arbitration is an inadequate forum in which to resolve disputes based on complex federal statutes is untenable in light of recent Supreme Court decisions. Id. at 232; Mitsubishi, supra, 473 U.S. at 633-34. Rodriguez put to rest “ ‘the old judicial hostility to arbitration.’ ” Rodriguez, supra, 109 S.Ct. at 1920 (citation omitted). Appellees suggest no reason why the substantive rights guaranteed by ERISA will be jeopardized if the arbitration agreement is enforced. We are aware of no such reasons. As in Rodriguez, “ ‘[t]here is nothing in the record before us nor in the facts of which we can take judicial notice, to indicate that the arbitral system ... would not afford the plaintiff[s] the rights to which [they] are entitled.’ ” Id. at 1921 (citation omitted). Accordingly, we disagree with those courts that have expressed the fear that substantive rights guaranteed by ERISA may be foreclosed by an arbitration agreement. E.g., Barrowclough, supra, 752 F.2d at 941; Amaro v. Continental Can Co., 724 F.2d 747, 752 (9 Cir.1984). Similarly, ERISA’s remedial nature, Firestone, supra, 489 U.S. at 108, is not compromised “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, [since] the statute will continue to serve ... its remedial ... function.” Mitsubishi, supra, 473 U.S. at 614. The Supreme Court has upheld agreements to arbitrate claims arising under other remedial statutes. E.g., McMahon, supra, 482 U.S. at 240 (considering remedial role of RICO); Mitsubishi, supra, 473 U.S. at 636-37 (considering remedial role of antitrust legislation). Appellees contend that their view is supported by a line of cases that held that arbitrations of claims under Title VII of the Civil Rights Act of 1964, Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Pair Labor Standards Act, Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981), and 42 U.S.C. § 1983 (1988), McDonald v. City of West Branch, 466 U.S. 284 (1984) were not preclusive in subsequent litigation to vindicate rights under those statutes. We disagree. In those three cases, the arbitrations were commenced pursuant to a clause in a collective bargaining agreement negotiated by the union, rather than the employee. They rely partially on the reasoning that an employee should not be bound by an arbitration clause he did not negotiate “where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, supra, 450 U.S. at 737. The Court was concerned with the fact that the union’s interest might not coincide with the employee’s and, therefore, the union’s representation at arbitration might not be adequate. McDonald, supra, 466 U.S. at 291; Barrentine, supra, 450 U.S. at 742; Gardner-Denver, supra, 415 U.S. at 58 n.19 The instant case does not raise such concerns. Bird signed the agreement that contained the arbitration clause. He cannot complain that his rights were bargained away by a third party. Although Shea did not sign the agreement, her interests and claims are essentially identical to Bird’s. Under such circumstances, requiring Shea to arbitrate does not work an injustice. Cf. Barrowclough, supra, 752 F.2d at 938-39 (beneficiaries are bound by principal’s agreement to arbitrate when they “claim no present entitlement to the [benefits] and press no claims separate from his”). We also do not find arbitration inconsistent with the enforcement and oversight responsibilities granted to the Secretary of Labor. The Secretary is involved in reporting requirements, 29 U.S.C. § 1021 (1988), is authorized to commence an action for a plan fiduciary’s breach of duty, 29 U.S.C. § 1132(a)(2) (1988), and is authorized to participate in litigation commenced by plan participants, 29 U.S.C. § 1132(h) (1988). Moreover, the Secretary is vested with broad investigatory powers to determine compliance with ERISA’s provisions. 29 U.S.C. § 1134 (1988). “We are reluctant to conclude that the mere fact of administrative involvement in a statutory scheme of enforcement operates as an implicit exception to the presumption of arbitral availability under the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195, 198 (4 Cir.), cert. granted, 111 S.Ct. 41 (1990). Arbitration of ERISA claims will not impede the Secretary’s supervisory and enforcement responsibilities. “[Ijmplemen-tation of the statutory purpose is [not] dependent upon the [Secretary’s] involvement in each and every allegation [under ERISA].” Id. Finally, one of the purposes of ERISA is to “bring a measure of uniformity in an area where decisions under the same set of facts may differ from state to state.” H.R. Rep. No. 533, 93rd Cong. 1st Sess. 12 (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4650. This desire has led the Supreme Court to conclude that Congress intended that “courts ... develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ” Firestone, supra, 489 U.S. at 110 (citation omitted). We are not persuaded that the fact that federal common law is to be created and applied to ERISA disputes alleging breaches of fiduciary duties creates an inherent conflict with arbitration. First, we do not believe that our holding will prevent the development of federal common law in this area. Our holding does not prohibit plaintiffs from bringing ERISA claims alleging a breach of fiduciary duty in federal courts. We merely hold that parties may provide by agreement that such claims will be arbitrated. If such agreements are the result of unequal bargaining power between the parties, general principles of contract law will bar enforcement. Second, the import of recent Supreme Court decisions is that arbitration is not to be distrusted no matter what the source of law to be applied is. Third, an arbitration determination is subject to review by the federal courts through a motion to enforce or to vacate the award. Arbitration is not inconsistent with the underlying purposes of ERISA. Appel-lees have not sustained their burden of demonstrating that the text, legislative history, or underlying purposes of ERISA indicate that Congress intended to preclude a waiver of a judicial forum for claims arising under it. Accordingly, we hold that statutory claims arising under ERISA may be the subject of compulsory arbitration. IV. To summarize: We hold that Congress did not intend to preclude a waiver of a judicial forum for statutory ERISA claims. We further hold that the FAA requires courts to enforce agreements to arbitrate such claims. The district court, therefore, erred in denying appellants’ motion to compel arbitration of appellees’ ERISA claim and for a stay of the district court proceedings pending arbitration. Reversed and remanded with instructions that arbitration proceed promptly. The mandate shall 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 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?

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 250, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, E. H. Limited, d/b/a Earringhouse Imports, Intervenor. E. H. LIMITED, d/b/a Earringhouse Imports, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Service Employees International Union, Local 250, AFL-CIO, Intervenor. Nos. 77-1165, 77-1630. United States Court of Appeals, District of Columbia Circuit. Argued June 8, 1978. Decided April 25, 1979. Rehearing Denied May 31, 1979. David A. Rosenfeld, San Francisco, Cal., for petitioner in No. 77-1165 and intervenor in No. 77-1630. Robert V. Magor, San Francisco, Cal., for petitioner in No. 77-1630 and intervenor in No. 77-1165. Allison W. Brown, Jr., Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., with whom John S. Irving, Gen, Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief, for respondent. Claud L. Mclver, III, Atlanta, Ga., was on the brief for amicus curiae Florida Mining & Materials Corp., urging that the decision of the N. L. R. B. be overruled. Before WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and HOFFMAN, Senior District Judge. Of the United States District Court for the Eastern District of Virginia, sitting by designation pursuant to 28 U.S.C. § 294(d) (1976). WALTER E. HOFFMAN, Senior District Judge: Because “working time is for work,” we are here concerned with the issue of an employer discharging thirteen employees (essentially the entire production force) for leaving work during regular work hours, contrary to the express orders of the employer, for the purpose of attending en masse a representation hearing scheduled before the National Labor Relations Board (the Board), even though the employer had volunteered to permit one employee to attend the hearing in a representative capacity- Notwithstanding the findings and conclusions of the administrative law judge (ALJ) that the employer acted lawfully in discharging the thirteen employees for acting contrary to the employer’s orders, and with members Penello and Walther dissenting, the three-panel majority consisting of chairperson Murphy and members Fanning and Jenkins effectively reversed the ALJ by holding that the employer violated Section 8(a)(1) and (4) of the National Labor Relations Board Act, 29 U.S.C. § 158(a)(1) and (4), in discharging the employees. The Board also directed the issuance of a bargaining order to the employer for a violation of § 8(a)(5) of the Act “by refusing to recognize and bargain with the Union on or about August 1, 1974 (and thereafter).” The matter originated in San Francisco, California, where the employer conducts its place of business and the employees presumably reside. Following the filing of the charge against the employer on August 9, 1974, two amendments were permitted and the parties were at issue on January 24, 1975. Hearings before the ALJ were conducted on February 6-7, 1975. On April 3, 1975 the ALJ rendered his decision. The union, the employer and the Board’s general counsel each filed exceptions. The Board, holding the case until January 17, 1977, finally issued its order. The union, in No. 77-1165, sought review of a portion of the order in this court under § 10(f) of the Act, 29 U.S.C. § 160(f). In No. 77-1630, the employer filed a petition to review with the United States Court of Appeals for the Ninth Circuit, and the Board filed a cross-application to enforce the Board’s order of January 17, 1977. The United States Court of Appeals for the Ninth Circuit transferred the employer’s petition to this court pursuant to 28 U.S.C. § 2112(a). By order dated June 27, 1977 in this court the two cases were consolidated for all purposes, with the employer being granted leave to intervene in No. 77 — 1165, and the union being accorded the same right in No. 77— 1630. There is no material dispute as to the facts although, by reason of the language used in the majority and dissenting opinions, it would appear that there were varying inferences to be drawn from the evidence without specific findings as to credibility, thus making it necessary to elaborate in detail the pertinent evidence. For reasons stated herein, we disagree with the Board majority, substantially agreeing with the dissenting opinion, and grant the petition to review, set aside the order, and deny enforcement. I Petitioner, E. H., Limited d/b/a Earring-house Imports, is a California corporation with its principal place of business in San Francisco. It is engaged in the wholesale and retail sale of earrings and other custom jewelry items. It conducts its wholesale business from a warehouse where goods are received, packaged, and prepared for sale to stores. Nancy Pellerito, the petitioner’s vice-president and treasurer, maintains an office in the warehouse where the thirteen affected employees were engaged in production work. The bargaining unit is defined as all warehouse employees at the San Francisco distribution center, excluding office (clerical), guards and supervisors as defined by the Act. During the month of July, 1974, Pellerito was on vacation and did not return to work until July 29. By letter dated July 11, received by petitioner on July 15, Local 250 demanded recognition as the bargaining agent for the warehouse employees in the described unit. On the same day the letter was received (July 15), the union filed a representation petition with the Board for an election. The Board scheduled a hearing for August 8, 1974 in San Francisco. The letter to Pellerito was brought to the attention of petitioner’s president, Ben Lloyd, and its vice-president and secretary, Margaret Mahoma, neither of whom maintains an office at the warehouse nor takes any active part in the operation of the warehouse. On July 16, upon noting the contents of the letter, Lloyd telephoned the union and arranged a meeting for the following day, July 17. At that meeting the union again stated its claim of majority representation and suggested several methods for third-party resolution of that issue. Lloyd replied that the union would be advised of petitioner’s position but petitioner did not thereafter advise the union of its position with respect to the matter of recognition. In the interim, of course, the representation petition had been filed on July 15. The record is silent as to when petitioner received notice of the filing of the petition and Jacobs, the union’s business agent and organizer, did not testify that he advised Lloyd as to the filing of the petition. When Pellerito returned on July 29, she immediately convened a meeting of the warehouse employees. While there were apparently nineteen employees in the warehouse, the record is also silent as to how many were to be included in the bargaining unit although there are indications that sixteen would comprise the unit. It appears that at least three such employees were in a supervisory capacity. The Board, crediting Pellerito’s testimony, found that Pellerito told the assembled employees that she was aware of the union’s activities, asked them if they were sure that this particular union was the right union for them, added that she welcomed employees presenting their problems to her, and that she knew a hearing was scheduled. In response to a question as to whether the employees should attend the hearing, she replied that she “did not know.” She admits that she thereafter heard some employees discussing car pools for the purpose of attending the hearing but said nothing at that time. On August 2, 1974, Pellerito conducted a second meeting with the employees. She advised that she had learned that it was not necessary for all the employees to attend the hearing, thereby stopping production, and she preferred to keep the business running. She told the employees that they were not to go to the hearing even though several remonstrated that they wanted to go as the hearing concerned them. At the request of two employees another meeting was convened during the afternoon of August 6. Certain employees repeated their prior request to be permitted to attend the hearing en masse. Pellerito again stated that they could not go and she wanted production to continue. The employees replied that “it concerned them.” The following day, August 7 — and one day prior to the scheduled representation hearing — Pellerito again convened the employees and read to them this statement: Yesterday you said that you were all going to leave work to attend the NLRB hearing. I cannot allow all of the employees to go to the hearing since it will interrupt our production. Neither is it necessary for all of you to attend. We do have to continue business in this warehouse. I will agree to allow you to choose one' representative from among you to attend the hearing. Please let me know your choice. If all of you attend without our permission, you will be considered as having quit or will be considered for discharge. Likewise, Pellerito advised the employees that she wanted their breaks to remain normal and that they could have a few minutes to choose a representative to attend the hearing. Wendy Ball replied that it would take longer than five minutes. Pellerito responded by saying that the employees could choose a representative after work, and she urged them to return to work. One employee raised a question about making up the time, and Pellerito replied by stating that the company did not work overtime and it could not be done. On August 8 the hearing was conducted at the Federal Building in San Francisco. The thirteen employees left the warehouse around 9:25 a. m. to attend the hearing and signed out. None had permission to leave and no further notification was given to the employer as to any designated representative who would attend. No employee was called as a witness, nor did any employee testify at the hearing. The duration of the hearing, which apparently started around 10:15 a. m., was estimated at forty-five minutes to one hour. The employees were represented throughout the hearing by the union and its counsel. The employees returned to the warehouse about 12:50 p. m. and the time sheets reflect that at least one employee checked in, then went out to lunch, and returned at 1:51 p. m. The place of hearing was an approximate fifteen minute drive from the warehouse. Production halted after the employees left with the company losing at least thirty-nine hours of work. Three production employees remained but packaging was stopped. August 8 was a Thursday and it was the practice of store managers to telephone their orders on Tuesdays and Thursdays of each week, with orders to be called in before noon. Six orders were called in that morning but could not be filled that day. August 8 was a deadline for a gift show and new store display but was not met. The cost value of merchandise handled by production employees was estimated at $2000 per day. At approximately 3:00 p. m. on August 8, Pellerito summoned the thirteen affected employees and read to them the following statement: “Because you disobeyed the instructions I gave you yesterday and production here was stopped, I am dismissing you. You can pick up your checks in five minutes.” Among the thirteen discharged employees was one Podell as to whom the AU found that there was independent cause to discharge on August 7. Since Pellerito was dealing with a much larger problem, she did not discharge Podell on August 7 although she had decided to terminate Podell for unauthorized absenteeism, falsifying time sheets and poor work habits. Neither the majority nor minority dealt specifically with the Podell discharge; however she was included among the employees to be reinstated with reimbursement for her economic loss occasioned by the alleged wrongful discharge. II The Board’s position, as stated by its counsel in oral argument, is that these employees were involved in a function of the government when they attended this representation hearing; that an employee has a protected right under § 8(a)(4) to attend a Board hearing or to otherwise participate in Board processes; that the burden is on the employer to show a legitimate business justification to limit the right of employees to attend a hearing during working hours; and that the Board, in balancing the interests of the employer and employee, must look primarily to the economic loss to be sustained by the employer by reason of the absence of the employee. Although the majority decision mentions the fact that the employer agreed to let one representative attend the hearing, this fact is not discussed and apparently the Board deemed it irrelevant. In our view it is one of the controlling factors in this case. It is conceded by all parties that the employer emphatically denied the request of the thirteen employees to attend the representation hearing, and that no consent to attend was expressly or impliedly given, but the employer did offer to permit one representative as selected by the employees to attend. Members Fanning, Jenkins and Murphy comprised the majority in this case. The same panel, on May 5, 1978, decided Supreme Optical Company, Inc., 235 NLRB No. 193 (1978), a case in which a supervisor had granted permission for five employees to attend a hearing before the Ohio Bureau of Unemployment Services where, indeed, all five employees testified although no subpoena had been issued. The employees were discharged upon their return to work. In upholding the ALJ’s finding that the employer violated § 8(a)(1) of the Act by discharging five employees because they engaged in protected concerted activities, the Board noted in footnote 9: This is not to say that we would necessarily reach the same result if advance permission to be absent had not been sought and secured, since a balancing of the employee interest in protecting each other against the employer’s interest in efficiently operating his business is required and the securing of permission is an important element in making the balance. The Board majority does not mention its own precedents which support a contrary finding. In Standard Packaging Corporation, Royal Lace Paper Division, 140 NLRB 628 (1963), the precise question was presented. As stated by the Board, the issue in that case presented “a problem of accommodating the rights of employees in exercising rights guaranteed by the Act. with the rights of an employer to regulate his production requirements and maintain discipline over his employees.” Certain employees were anxious to attend a decertifi-cation hearing. The initial request, made the day before the scheduled hearing, was for six employees to be absent. The plant, manager questioned the necessity for so many attending, whereupon the request was reduced to four. After further discussion the number was reduced to two. These two attended, as did the remaining two who were later discharged. The Board said: We agree with the Trial Examiner that the Respondent did not engage in conduct proscribed by Section 8(a)(1), (3), and (4) of the Act, as alleged in the complaint, when it refused to grant employees Paul Murray and Charles Storms advance permission to absent themselves from work for purposes of attending a Board representation proceeding and thereafter discharged these employees when, in disregard of Respondent’s directions, they absented themselves from work to attend the hearing. The Board went further in Standard Packaging Corporation by noting (1) there was no evidence in the record which indicated any hostility on the part of the employer toward the collective activity of its employees, (2) there was no real need for their appearance at the hearing otherwise demonstrated to the employer at the time their release was requested or at any later date before their discharge, and (3) the disciplinary action taken against Storms and Murray was not in reprisal for any protected activity on their part, but was motivated solely by the employees’ absence from the plant in disregard of orders. Storms and Murray were not, of course, served with subpoenas. It is significant to note that Standard Packaging Corporation involved a plant of 195 employees. The general counsel argued that a request that four employees be permitted to be absent from work for a two hour period was a reasonable request and the burden of explaining its denial rested upon the employer; and further that, as a “substantial production problem” was neither anticipated nor created by the absence of two additional employees on the hearing day, it was proper to infer that the employer, having failed to meet its burden in that regard, was motivated by a desire to obstruct the decertification activities of its employees. The Board did not discuss this contention other than to mention that the employer exhibited no hostility toward the collective activity of its employees. The trial examiner disposed of it by saying that no prima facie case had been made out, the burden of going forward with the evidence did not shift to the employer, and the reasonableness of the employer’s action was but one factor to be weighed in resolving the question of motivation. It is indeed strange that the Board majority did not see fit to mention Standard Packaging Corporation since it is factually identical and involves the same principles of law. Obviously, the majority had examined the dissent as it is referred to by the majority. Without at least one overruling decision it is impossible for an ALJ or the legal field to keep abreast of the Board’s views. Ill Manifestly, the Board majority is attempting to enlarge, or take out of context, the decision in N.L.R.B. v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972), where the Supreme Court upheld the Board for a violation of § 8(a)(4) of the Act when employees were discharged for giving written sworn statements to a field examiner investigating an unfair labor practice charge filed against the employer, although the employees neither filed the charges nor testified at a formal hearing thereon. While the principal issue was whether § 8(a)(4) encompassed the discharge of employees for giving written sworn statements to Board field examiners, the Court does consider some aspects of the provisions of § 8(a)(4) which protect an employee from discharge or discrimination if the employee has “given testimony under the Act.” In holding that the existence of a subpoena is not crucial, the Court said: “Under this reasoning, if employees of Scrivener had been subpoenaed, they would have been protected. There is no basis for denying similar protection to the voluntary participant.” But the Supreme Court in Scrivener was not confronted with wholly unnecessary employees who could add nothing to the hearing and whose only interest was that “the hearing involved them.” It is apparent from the briefs, argument and common knowledge that Board representation hearings are not complex and, if the evidence develops a need for further testimony, the hearing is recessed, or a telephone call to the employer brings forth the additional required testimony of one or more employees. To uphold the Board majority in this case would result in complete disruption of an employer’s productive ability. Presumably, business enterprises are operated in the expectation of some profit. The Board majority has invited employees — indeed all employees — to attend Board representation hearings during normal working hours and in violation of an express prohibition against leaving work at that time without the benefit of a subpoena or other showing that the employee’s presence is required, unless the employer, upon whom the burden of proof is placed, can show substantial and legitimate business justification for requiring the employees to remain on the job. We cannot sanction such a pronouncement even though we acknowledge the Board’s expertise in the field. In effect, as in this case, even where the employer’s entire production line is shut down by reason of a mass exodus of employees, the Board majority suggests that this is not a substantial and legitimate business justification. Bearing in mind that “working time is for work” we agree with the dissent that, absent any subpoena or call from the Board to attend a hearing “unless employees can demonstrate substantial reasons for attending a Board hearing, unless there are compelling reasons urging their attendance, the employer’s right to maintain normal operations should, and does, take precedence over the employees’ right to leave work during regular working hours for such attendance or for any other purpose except that of legitimate strike activity” excluding, of course, an emergency with which we are not concerned in this case. In placing the burden upon the employer to come forward with evidence of legitimate and substantial business justification for- its act — even if the.employer is free from violation of the Act and there is no explicit discriminatory motive shown— the Board majority relied upon N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). The Great Dane Trailers ease was a § 8(a)(3) discrimination case and did not attempt to deal with a § 8(a)(4) situation. Manifestly, from the majority and dissenting opinions, it is clear that the rule announced in Great Dane Trailers was intended to be limited to § 8(a)(3) violations. We do not feel free to extend the same rule to an alleged violation of § 8(a)(4) as was done by the Board majority. The Board majority has seized upon the language in Great Dane Trailers, taken out of context, to support its view that the burden is upon the employer to come forward with evidence of “legitimate and substantial business justification” for its conduct if it is not to be found to have violated the Act. We do not agree that Great Dane Trailers can be given this interpretation in a § 8(a)(4) case where discrimination is not in issue. The precedent authorities in Great Dane Trailers are, in the main, Labor Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963), and Labor Board v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Each is a § 8(a)(3) case where “both discrimination and a resulting discouragement of union membership are necessary,” Labor Board v. Brown, supra, at 286, 85 S.Ct. at 985, and the “ ‘real motive’ of the employer in an alleged § 8(a)(3) violation is decisive.” Id. at 287, 85 S.Ct. at 985—986. In Brown, the Supreme Court went further and said: “When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers’ conduct is prima facie lawful.” Bearing in mind that the employer in the present case had volunteered to permit one representative to attend the hearing, and considering the nature of a Board representation hearing with its flexible alternatives with respect to a witness testifying, it is indeed difficult to find that the resulting harm is anything more than de minimis. Assuredly, the employer’s conduct was prima facie lawful and, we feel, convincingly so. IV Assuming arguendo that the Board majority was correct in applying the burden of proof rule in a § 8(a)(4) case and imposing this burden upon the employer, we nevertheless feel that the Board majority findings on the ultimate factual question are not supported by substantial evidence on the record considered as a whole. We are not unmindful of the fact that there is only limited judicial review of such findings but the Supreme Court in Labor Board v. Brown, supra, at 290-292, 85 S.Ct. at 988, pointedly stated that the phrase “limited judicial review” did not mean that the balance struck by the Board was immune from judicial examination and reversal in proper cases, and “where, as here, the review is not a question of fact, but of judgment as to the proper balance to be struck between the conflicting interests, the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” Such is the case before us in examining the attempts to balance the conflict of interest between the employer and employees. The Board majority agrees that “there were no terribly important reasons or exigencies crying out for employee attendance at the hearing,” but they hold that since the employees were engaged in protected activity, an employer’s interference with it requires more justification than his performance or inconsequential inconvenience. The majority refers to three reasons why the employer has not shown that the absence of thirteen of the sixteen production employees would not cause anything more than inconsequential inconvenience, although they at no time challenge the fact that production stopped when the thirteen employees walked out to attend the hearing. The majority suggests (1) Pellerito never told the employees that she feared serious business or economic consequences by reason of the employees’ absence from work; (2) Pellerito rejected the employees’ offer to make up the time lost; and (3) her discharge of the employees at 3:00 p. m., rather than waiting until 5:00 p. m. quitting time, was inconsistent with her professed concern about maintaining production. We think these arguments are specious. The majority found that Pellerito did say that “she wanted production to continue and the business to go on.” What further conceivable reason need an employer give to employees who express a desire to absent themselves from work en masse for no apparent necessity? With a large and wealthy corporate employer, a loss of one-half day may, in fact, be miniscule but it is assuredly the employer’s right to see to it that production is not stopped. The offer to make up the lost time is also a decision vested in the employer. While the Board attempts to emphasize this point, we note in footnote 5 of its majority decision it is said: “Ball was not, of course, proposing that the employees work overtime.” In one breath the Board majority finds that a specific offer to work overtime was made; in another comment the same majority holds that the proposal to work overtime was not specific. Lastly, the Board majority cites the 3:00 p.m. discharge as evidence that Pellerito was not concerned with the extent of production. When confronted with obvious insubordination, and to prevent a defense of condonement, it is essential that the employer act promptly. The ALJ held “the fact of the loss was clearly established at trial.” The Board majority stated that there was an “insufficient basis on which to predicate any conclusion that business or economic hardship or loss was a direct consequence of the employees’ leaving work.” The dissenting members stated, and we agree: “The successful functioning of a business enterprise requires, rather obviously, the presence of employees on the job during working hours. It would also seem equally evident that employee absence is inherently disruptive and unexcused absence has, of course, usually been considered, absent a legitimate strike, proper grounds for discharge.” Thus, we conclude that, assuming arguendo the correctness of the Board majority ruling that the burden was on the employer in this § 8(a)(4) case, under the undisputed facts in this case, the employer met the burden by the admitted fact that all production stopped and a loss was inevitable. V The Board urges that the employer improperly refused to accord recognition to the union after being advised that the union had received a sufficient number of executed authorization cards. Stated otherwise, the Board asserts that had the employer agreed to the procedures available for determining whether the union represented a majority of the employees, no representation hearing would have been required and the employees would have remained at work on August 8. This issue was resolved in a case from this court, Linden Lumber Division v. N. L. R. B., 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). It is not the employer’s obligation to petition for an election, although it has the option to do so. In the present case the union had already filed on July 15 a representation petition for an election — the same day the employer initially received word of the executed authorization cards. In N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 603, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court held the election process had acknowledged superiority in ascertaining whether a union has majority support. Since the only claimed unfair labor practice on the part of the employer centers around the discharge of the thirteen employees — a charge which we have rejected — there was no obligation on the employer’s part to bargain. No. 77-1165, Petition for Review and Enforcement DENIED. No. 77—1630, Petition for Review GRANTED, Order VACATED, and Enforcement DENIED. . See concurring opinion of Mr. Justice Powell in Beth Israel Hospital v. N.L.R.B., 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). See also Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 617 (1962); N.L.R.B. v. Essex Wire Corp., 245 F.2d 589, 593 (9th Cir. 1957). . As codified in 29 U.S.C. § 158, § 8(a)(1) and (4) of the National Labor Relations Act read: (a) 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 157 of this title; (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this sub-chapter. . Since this finding was principally related to the discharge of the thirteen employees, it will only be touched upon in this opinion by reason of our disposition of the § 8(a)(1) and (4) alleged violations. . Since No. 77-1165 involves only an alleged error as to the date back pay should become effective and whether the discharge of the thirteen employees violated § 8(a)(3) of the Act, and by reason of the conclusions herein reached, we deem it unnecessary to give further consideration to No. 77-1165 for the reason that our action in No. 77-1630 will render the back pay issue moot. The employer will be referred to as “petitioner” and Local 250 will be specified in that name or as the “union”. . The letter addressed to Pellerito (but not seen by her until her return from vacation) merely advised that a majority of the warehouse employees in the distribution center had designated the union as the authorized representative, and that the authorization cards could be inspected by a neutral party. It also advised Pellerito to reply within 48 hours. . There is some indication from the record that the hearing was originally scheduled for August 6, but it was postponed to August 8. This is of no importance to the decision. , Lloyd advised Jacobs, the union organizer, that he was not familiar with the subject matter. . The ALJ specifically credited Pellerito’s testimony throughout. The Board, while pointing to certain conflicts in the evidence, rendered its decision and order predicated upon Pellerito’s testimony. Thus, for our purposes, there is no dispute as to the facts. . On or about August 2, 1974, petitioner posted four “long-established” rules against solicitation and distribution proscribing (1) solicitation by employees during working time, (2) solicitation by employees on company premises after their shift’s end, (3) distribution of literature of any type during working time, and (4) distribution of literature in working areas. The Board majority agreed with the ALJ that only the second rule violated the Act. The validity of the posted rules is not at issue in this proceeding and we may assume that the Board majority ruling remains in full force and effect as to these rules. . Also, on August 6, at approximately 9:10 a. m., during working hours, about half of the production employees left the warehouse to be photographed at the urging of the union representatives. They were advised by a supervisor that they could not leave during work time. Some employees replied that they would make up the time and left the warehouse, absenting themselves from work for about ten to fifteen minutes. Since the employees were not discharged for this activity, we see no need to discuss it further. . The Board gives credence to testimony which indicates that, after Pellerito’s offer to permit one representative to attend, Wendy Ball contacted the union’s agent as to this latest development. She was advised by the union organizer that it was probably too late to issue any subpoena for the employees, that their testimony might prove necessary and that, in any event, the Act protected their right to attend. That night the employees unanimously voted to attend the hearing en masse. The employer was not advised as to this conversation with the union agent. . Prior to leaving for the hearing, a supervisor asked who their representative would be. Wendy Ball replied that they were all going to the hearing, that it concerned them. The supervisor referred the employees to what Pelleri-to had said on the previous day, that the company could not stop production, and warned the employees that if they went to the hearing they would be considered as quitting. The employees nevertheless left for the hearing. . Counsel for the union conceded at argument that he did not attempt to interview any of the thirteen employees at any time prior to or during the hearing. There was some evidence that notes were handed to union counsel, the contents of which are unknown. . On August 3 the time sheets reveal that Podell signed in at 9:00 a. m. and out at 5:00 p. m. She actually left early. When questioned on August 6 why her workload was so small, Podell replied that she left at 11:30 a.m. She indicated that she was sick and not responsible for her actions. Pellerito gave her a warning which was her third warning in three successive months. On August 7, Podell left work at 1:40 p. m., again without permission. Pellerito then decided to terminate her services but, on August 8, Podell was among the thirteen employees attending the hearing. . The minority, members Penello and Walther, do discuss these prior decisions. Apparently, the Board majority is now seeking to reverse itself. . Member Fanning, one of the majority herein, participated in the decision in Standard Packaging Corporation, Royal Lace Paper Division, supra. . As in the case before us where there is not the slightest intimation of animus union activity. Even the majority decision does not suggest any animus. . In the present case we have sixteen production line employees with thirteen having attended the hearing. . The Board’s brief in the present case does attempt to distinguish Standard Packaging Corporation by saying that the employer and union had agreed that two named employees would attend and that any others who were needed at the hearing would be released from work. This is not what was said as indicated by the decision which states: “Wolff [the plant manager] again made it clear, however, that, if he were officially notified of the need for additional employees’ appearance at the hearing, he would excuse not only these individuals but ‘the whole plant.’ ” In the present case the only justification stated by the thirteen employees was that “the hearing involved them” or that they were “interested”. They did not even advise the employer that the union organizer had suggested their attendance. . Ball testified that the employees wanted to attend the hearing “to talk about our own jobs” and to give testimony “for our own job description.” Pellerito denied that Ball had made this statement to her. The Board did not resolve this conflict in testimony except to note that Ball’s testimony was essentially uncontradict-ed. The ALJ found that Pellerito knew nothing of the allegation that she planned to attack the rank-and-file status of the employees at the hearing, and the record did not support such a contention and was discredited. According to Ball, she overheard a conversation between Pellerito and an individual Ball assumed to be the employer’s attorney which indicated that an effort would be made to eliminate twelve employees from the bargaining unit. Both Ball and Pellerito occupied enclosed offices, separated by approximately 200 feet. The alleged conversation was not included in Ball’s post-representation hearing affidavit to the Board given on August 13. Pellerito, while admitting that she had discussed the case with her attorney at his office, expressly denied discussing the case with her attorney at the warehouse or by telephone. Since the ALJ fully credited Pellerito’s testimony, and the Board did not see fit to expressly deal with this factual situation, we can assume that the Board’s established policy not to overrule the resolutions with respect to credibility of the ALJ, unless the clear preponderance of all of the relevant evidence convinces the Board that the resolutions are incorrect, would be applicable. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enf'd 188 F.2d 362 (3rd Cir. 1951); Supreme Optical Company, Inc., 235 NLRB 193 (1978), footnote 1. . We recognize that the adoption of the Board minority view may result in the issuance of more subpoenas than would ordinarily be required. It is suggested that union counsel may subpoena ail employees of a given employer. We have more faith

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?

R. HOE & CO., Inc., et al. v. GOSS PRINTING PRESS CO. Circuit Court of Appeals, Second Circuit. March 22, 1929. No. 46. For the opinion of the Circuit Court of Appeals, see 30 F.(2d) 271. John D. Morgan, of New York City, for the motion. James J. Kennedy, of New York City, opposed. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. PEE CUEIAM. We held in Page Machine Co. v. Dow, Jones & Co., 168 F. 703, that we would not require a patentee, whose claims we had held valid, to disclaim a claim found invalid by the Circuit Court. At that time the plaintiff had no appeal from an interlocutory decree of invalidity, and the effect of requiring a disclaimer was to make the decision of the Circuit Court final without review by us. If the patentee had had the appeal which he now has, the result need not have been the same, as Judge Westenhaver pointed out in Ensten v. Rich-Sampliner Co. (D. C.) 13 F.(2d) 132. It is the practice of the Sixth and Seventh Circuits to require disclaimer of those claims held invalid in the Circuit Court of Appeals as a condition of proceeding upon the valid claims. Herman v. Youngstown (C. C. A.) 191 F. 579, 587; Liquid Carbonic Co. v. Gilchrist Co. (C. C. A.) 253 F. 54; Higgin Mfg. Co. v. Watson (C. C. A.) 263 F. 378, 387; Excelsior, etc., Co. v. Williamson Heater Co. (C. C. A.) 269 F. 614, 619. We can see no distinction, whether a decree holding some of the claims invalid is affirmed, or this court in part reverses a decree holding them all valid. In each case the time is extended till the decision on appeal. If this court’s decision were final, such a rule would be a corollary of O’Reilly v. Morse, 15 How. 62, 14 L. Ed. 601, Seymour v. McCormick, 19 How. 96, 15 L. Ed. 557, and Gage v. Herring, 107 U. S. 640, 2 S. Ct. 819, 27 L. Ed. 601. However, it is not final, if the Supreme Court chooses to grant certiorari. In that event, a disclaimer would destroy the patentee’s right to a review of our holding as to invalidity. The patentee should not be put to such a hazard, but should be as free to withhold his disclaimer, until his appeal to the Supreme Court is decided, as he is upon appeal to this court from the decree of the District Court. The plaintiff at bar goes further, however, arguing that, even after denial of an application for Certiorari, the patentee should not be obliged to disclaim. It argues that the Circuit Court of Appeals of another circuit might disagree with our ruling, and the Supreme Court would then take the ease on certiorari and might declare the claims valid. A disclaimer would merely destroy this right, though the defendant is protected forever by its decree, and really has no interest in the disclaimer at all. While we acknowledge the difficulty and the possibility, it appears to us that so to extend the patentee’s time might result in avoiding the statute altogether. The patentee may not sue-again, or, if he does, the result may be the-same. It does not follow, because two Circuit Courts of Appeals have held the same-way, that a third will not disagree. Must the patentee disclaim at the conclusion of the-second suit, or may he wait until all nine circuits have passed upon his claims? The-question is at best of seasonable action, and-in practice there must be some end, short of exhausting all conceivable remedies. When the patent has once passed through all the courts then available, the statute should have its effect; else the putatively invalid claims-may remain as scarecrows, preserved against the bare possibility that at some future time-they may come to life. The mandate will therefore be recalled- and amended, so as to require the plaintiff to-file a disclaimer within 30 days after the-time expires within which to petition for certiorari, or, if it does so petition, then within-30 days after denial, if it is denied, or affirmance of the decree, if it is granted, and the decree 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?

WESTMORELAND MANGANESE CORPORATION, Appellant, v. UNITED STATES of America, Appellee. No. 15500. United States Court of Appeals Eighth Circuit. June 26, 1957. M. F. Highsmith, Batesville, Ark., and Richard B. McCulloch, Forrest City, Ark., for appellant. Harold S. Harrison, Atty., Dept, of Justice, Washington, D. C. (Peiry W. Morton, Asst. Atty. Gen., Osro Cobb, U. S. Atty., Little Rock, Ark., and Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before WOODROUGH, VOGEL and VAN OOSTERHOUT, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal by Westmoreland Manganese Corporation, hereinafter called Westmoreland, from a judgment foreclosing mortgages given the Government by Westmoreland. The Government, pursuant to the Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2061 et seq., entered into a contract to lend Westmoreland $3,807,250 to aid it in acquiring and developing a manganese ore mining and processing plant, Westmoreland agreeing to sell the manganese ore, which was considered a strategic and critical metal, to the Government upon agreed terms. Mortgages were executed and delivered to secure the money to be loaned. Government funds totaling nearly $3,000,000 were advanced to Westmoreland. On October 23,1953, the Government, acting under the terms of Amendment No. 1 to the contract, terminated the contract, and on January 8, 1954, commenced this foreclosure action. The original contract and mortgage provided that, if Westmoreland defaulted in the performance of any of the obligations assumed by it in said instruments and if such default remained unremedied for 60 days after notice thereof, the Government would have the right to declare all indebtedness secured by the mortgage due and could foreclose the mortgage. It is conceded that the Government did not give Westmoreland the 60 days’ notice required by the original instruments. The Government asserts its right to foreclosure by virtue of Amendment No. 1 to the contract, dated April 2, 1953, set out in the footnote. It is not seriously questioned that the amendment gives the Government the right to terminate the contract at any time prior to commencement of production, or that Westmoreland has expressly waived the requirement that the 60 days’ notice of default be given as well as all other moratorium provisions of the original instrument. Westmoreland’s defense is that Amendment No. 1 is not supported by a valid consideration, and hence is not binding upon it. Westmoreland concedes that if Amendment No. 1 is supported by consideration, this foreclosure is authorized. The trial court found that the amendment is supported by consideration and the Government was entitled to foreclose. Westmoreland had also asserted in the trial court that the amendment was induced by fraud. The trial court rejected this contention. Westmoreland in its brief states it has abandoned the fraud issue. The trial court summarizes the law applicable to the consideration issue as follows (134 F.Supp. 898, 910): “With regard to consideration, the applicable principles of law are well settled and may be briefly stated: Parties who are capable of making a contract in the first instance are likewise capable of varying or modifying its terms, and their mutual agreements or undertakings in that connection furnish consideration for the modification; moreover, consideration for a contract may be found not only in benefits moving to the promisor (in this case Westmoreland), but also in legal detriment suffered by the promisee (here the Government) in reliance upon the agreement. Another principle of contract law, invoked by Westmoreland, is that ordinarily an undertaking by a party to do something that he is already obligated to do is not sufficient to constitute consideration; that general rule, however, is subject to an exception in cases where ‘the very existence of the duty is the subject of honest and reasonable dispute.’ 17 C.J.S. Contracts § 110.” Westmoreland in its brief states that it does not disagree with the law as above stated by the trial court, but that it does disagree with the court’s application of the law to the facts of this case. It is, of course, the function of the trial court acting without a jury to determine disputed questions of fact. We are not authorized to try this case de novo. In reviewing the trial court’s findings we must examine the evidence in the light most favorable to the prevailing party. A reversal is warranted only if the trial court’s findings are clearly erroneous. The trial court carefully explains in his opinion, reported at 134 F.Supp. 898, the basis of his findings that Amendment No. 1 was supported by a consideration. We agree with the trial court’s analysis of the evidence and are convinced that he reached a permissible conclusion. The original contract required Westmoreland to commence production of manganese ore in substantial quantities by April 7, 1953. In the whereas clauses of the amendment set out in footnote 1 Westmoreland conceded that production of manganese ore would not be commenced within the period re qu.'.red by the contract, and that it was without funds to complete the project contemplated by the contract, and that it had outstanding obligations it could not meet. The Government had severely criticized the management of Westmoreland prior to Stringham’s appointment as acting manager in December 1952. In January of 1953 Stringham learned that the proceeds of the Government’s loan would be inadequate to place the Westmoreland plant in operation, and that upwards of $500,000 additional money would be needed to complete the project. Prior to that time all reports and flow sheets had indicated that the project would be completed with the funds provided by the original loan. Negotiations for an additional loan from the Government were opened, and a formal request for $545,-800 additional money was made, the application stating private funds were not available. While some evidence was introduced to the effect that private financing for the additional funds required might be possible, the court, on the evidence as a whole, was fully justified in reaching the conclusion.that “Westmoreland knew that it could not complete construction within the time limited by the original agreement or without further funds from the Government, and it also knew that its management had been seriously criticized by the Government; how under such circumstances the directors could have seriously believed that they were in good standing with the Government with respect to their contract is hard to conceive; and we do not consider that they did so believe.” After several days of conferences between the Government officials and Westmoreland’s directors and attorneys, Westmoreland’s board of directors authorized the signing of Amendment No. 1 on behalf of the corporation. Later, upon recommendation of the directors and Westmoreland’s attorneys, the stockholders ratified the execution of Amendment No. 1. The original contract provides that each request for an advance of funds be supported by a flow sheet. Shortly after the execution of the contract, at a conference between officials representing the Government and Westmoreland, a flow sheet was worked out and agreed upon showing the estimated cost of each major component of the contemplated construction work. A countersignature system was worked out whereby the Dallas, Texas, comptroller of the General Services Administration was to sign checks drawn against advanees. Evidence introduced by the Government discloses that the comptroller was to satisfy himself that each voucher or check was legitimately charged against one of the components shown on the flow sheet, and that the total checks for any component part did not exceed the total amount estimated therefor. About the time the Government learned that the proceeds of the loan would fall a half million dollars short of completing the construction, the Government advised the Dallas comptroller that substantial overruns of the funds allocated to the various categories by the flow sheet should not be allowed unless and until such overruns were approved in Washington. Checks submitted by Westmoreland after February 10, 1953, which overran the accounts to which they were to be charged were not countersigned. As the result Westmoreland was unable to meet its payroll and other bills. Amendment No. 1 provides in part that the Government will advance Westmoreland $29,080.42 on condition that Westmoreland advance $15,000, said funds to be used to pay certain claims against Westmoreland, mostly for back wages. Both parties made the agreed amount of funds available. The trial court found the payment by the Government to be a consideration for Westmoreland’s various promises in the amendment. Westmoreland’s contention is that the Government by making this fund available was doing only what it was already legally obligated to do under its original contract. The trial court rejected this argument, stating (134 F. Supp. at page 915): “ * * When the Government finally agreed to advance funds to pay the laborers, it was taking a step that it had theretofore contended it was not required to take, and its agreement under such circumstances constituted consideration for the amendment.” In Board of Education of City of Albuquerque v. American Nat. Bank, 8 Cir., 294 F. 14, at page 19 this court stated: “If disputes have arisen under a contract, and the parties thereto enter into a new contract as a means of adjusting such disputes, such adjustment of disputes is a sufficient consideration.” We are satisfied that the Government asserted in good faith that it was not liable for back wages incurred by Westmoreland. In some instances the Government’s position was that the account to which the wages were to be charged was already overrun, and that it was not obligated to furnish funds in excess of the amount allocated to the categories in the flow sheet. Some of the wages accrued in connection with new road construction. The Government contended that the new road project had never been authorized, and that the proceeds of the loan could not be used for such a project. We agree with the conclusion of the trial court that the Government’s advance of funds to pay wages, which the Government in good faith claimed it was not obligated to pay under the original contract, constituted a consideration for the amendment. The trial court also found that the Government’s advance of money for drilling after the shutdown constituted consideration for the amendment. Westmoreland’s position is that the drilling paid for by the Government subsequent to the date of the amendment was production drilling contemplated by the original contract, which the Government was obligated to pay for under the original contract. The Government contended that such drilling was exploratory and was designed to prove the existence of an adequate amount of ore to justify the continuation of the project. As to this issue the court states (134 F.Supp. at page 915): “ * * We find from the evidence in this case that although Westmoreland may have considered that the drilling program contemplated by the amendment was nothing more than development drilling, that program was, from the Government’s standpoint, exploratory in nature, and we further find that if it had not been so regarded by the Government, the latter would have been unwilling to finance it; as a matter of fact, the Government would have had no object in financing a program of merely development drilling at a time when no one knew whether or not the plant would ever be completed.” This conclusion finds adequate evidentiary support. Recent engineers’ reports as to the irregular and discontinuous ore deposits had raised serious question whether there was a sufficient amount of suitable ore available to permit Westmoreland to meet the production requirements of the original contract. The adequacy of the ore supply was a crucial factor in determining whether additional Government funds should be loaned to Westmoreland. Manager Stringham knew that the Government officials in charge doubted the sufficiency of the ore deposits. The court’s finding that the primary purpose of the post-amer dment drilling was to establish the presence of an adequate supply of ore is fully supported by the record. The Government was not required by the original contract to provide funds for exploratory drilling. The trial court reached a permissible conclusion in determining that the funds advanced by the Government to permit the exploratory drilling to determine the availability of ore constituted consideration for the amendment. The trial court also found that the Government’s agreement to pay standby costs after the shutdown was an expenditure not contemplated by the original contract, and hence constituted a consideration for the amendment. We can not say such finding was clearly erroneous. The court’s finding of consideration in the respects hereinabove set out fully supports his conclusion that Westmoreland’s waiver of the moratorium provisions of the original contract was based upon a consideration. It is not necessary for the Government to establish all of the elements of consideration it asserts. Section 83, Restatement of Contracts, page 94, provides: “Consideration is sufficient for as many promises as are bargained for and given in exchange for it if it would be sufficient “(a) for each one of them if that alone were bargained for, or ■» •» *» See also Wright v. Iowa Southern Utilities Co., 230 Iowa 838, 298 N.W. 790, 793; 12 Am.Jur., Contracts, § 119, p. 612. The Court also found that Westmoreland received a benefit and that the Government suffered a detriment by reason of the Government forbearing exercising its right to declare a default under the original contract. The court found that if Amendment No. 1 had not been executed the Government would have taken steps to declare a default on April 7, 1953, the date Westmoreland was required by the contract to commence production. The court further found that by reason of the amendment the Government forbore claiming such default and kept the contract open for nearly seven months and up until October 29, 1953. During such period, in addition to paying the wage, drilling, and standby costs of over $75,000, the Government gave good faith consideration to Westmoreland’s request for additional funds, and incurred considerable investigating and engineering expenses in so doing. No definite time of forbearance is fixed by the amendment. However, it seems quite clear that all contracting parties contemplated that the contract would not be terminated before Westmoreland’s application for additional funds had been considered and acted upon. It was obvious that considerable time would be required to assemble the necessary information to enable the Government to pass upon the loan application. Restatement of Contracts, section 90, page 110, provides: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” In Wright v. Iowa Southern Utilities Co., supra, 298 N.W. at page 793, the court states: “In connection with appellee’s contention that the 1932 agreement is not supported by sufficient consideration because appellant’s promise to forbear was not for a definite time, we may observe that according to the later cases ‘the absence of a specified period for forbearance has generally been held immaterial as the law presumes that it was to be for a reasonable time.’ * * * ” See also 17 C.J.S. Contracts § 103d, p. 459; 12 Am.Jur., Contracts § 85, p. 580. We think that it may be fairly said that the Government’s forbearance was induced by Westmoreland’s promise to waive the default provision of the original contract, and that injustice can be avoided only by enforcing the amendment. Under this record it clearly appears that if Westmoreland had not signed the amendment the Government would have served notice of default and given no consideration to the application for the increased loan. The Government loan was Westmoreland’s only hope of salvaging anything out of its project. The records of Westmoreland’s directors’ and stockholders’ meetings and the letter from Westmoreland’s attorneys clearly indicate that Westmoreland thought it was obtaining a benefit by keeping the contract alive pending action on the loan application. We agree with the trial court’s finding to the effect that “during that period of time Westmoreland’s application for additional funds received serious, and we are satisfied, honest consideration.” The Government assembled all data bearing on the advisability of granting the additional loan and continuing the Westmoreland contract, and submitted such information to a panel of metallurgists. The panel recommended that no further funds be advanced. We have heretofore found that there was sufficient consideration to support the amendment. It is, therefore, not essential to the decision of this case that we find the Government’s forbearance to assert a default also constituted a consideration for the amendment. It would seem, howevei, that there is a strong basis for asserting under this record that the Government’s forbearance constituted an additional consideration for the amendment. We have not attempted to set out in detail all of the voluminous and contradictory evidence contained in the record. We have carefully examined the record and are satisfied that the trial court’k determination that Amendment No. 1 is supported by a consideration is fully supported by the record and is not clearly erroneous. ' ' The judgment appealed from is affirmed. . This amendment to Letter Order No. GS-OOP (D)-12263 between the United States of America, acting by and through the Defense Materials Production Agency, hereinafter referred to as the "Government” (pursuant to the authority contained in the Defense Production Act of 1950, as amended, and Executive Order No. 10161, as amended and supplemented), and Westmoreland Manganese Corporation, hereinafter referred to as the “Contractor” Witnesseth that: Whereas, the parties hereto entered into Letter Agreement No. GS-OOP (D)— 12263, dated April 7, 1952, (hereinafter referred to as the “Contract”), under the terms of which the Contractor covenanted to construct facilities (as defined in the aforesaid Contract), at or near Cushman, Arkansas, which would enable Contractor to produce and process manganese ore within a period of one year from the date of the Contract; anci Whereas, the aforesaid facilities have not been completed and the production of manganese ore will not be commenced within the period provided in the Contract; and Whereas, the Contractor is wdthout funds to complete the aforesaid facilities and has currently outstanding due and overdue financial obligations to employees, ex-employees, suppliers, cortractors and general creditors, which obligations the Contractor is unable to meet. Now, therefore, in consideration of the mutual promises herein contained and other good and valuable consideration, the parties hereto agree as follows: jl. The Contractor shall place the facilities in a temporary standby condition and shall employ standard methods for preserving the facilities from the elements, theft and damage. All operations at the facilities shall cease, except that the Contractor shall continue with the program for mineral drilling now currently in progress. Funds for the payment of the costs of such drilling program and costs for the maintenance of the facilities while in a standby state shall be made available by the Government out of funds to be provided under the terms of the Contract. Disbursement of such funds shall be made in accordance wuth the provisions of paragraph 2 hereof, and allowable costs for such work shall be subject to approval by the Government. 2. To enable the Contractor to meet certain of the aforesaid outstanding accrued obligations, the Government shall advance to the Contractor out of funds allotted pursuant to the Contract not to exceed $29,080.42, which sum shall be advanced by the Government to the Contractor only on the condition that the Contractor raises and provides the sum of Fifteen Thousand ($15,000) Dollars to be used to help moot the aforesaid obligations; the aggregate of the aforesaid funds shall be disbursed under procedures to be proscribed by the Government. Current obligations payable pursuant to this paragraph shall be principally the accrued and payable wages and salaries of Contractor’s bona fide employees of the clerical, laborer and supervisory class. All obligations payable out of the aforesaid aggregate funds shall be determined by the Government. The expenses of the drilling program and maintenance of the facilities referred to in paragraph 1 hereof shall be paid under procedures to be prescribed by the Government. 3. Notwithstanding any provision in the Contract to the contrary, the Contractor hereby grants to the Government the unqualified right and privilege of terminating the Contract at any time in the future up to commencement of production upon determination by the Government that termination of the Contract is in the best interest of the Government; the Contractor shall take no legal action to prevent such termination of the Contract by the Government, and disclaims any and all recourse by reason of such termination by the Government. 4. Under the terms of a mortgage instrument made by the Contractor to the Government on May 22, 3952, pursuant to the terms of the Contract, it is provided that the Contractor shall have sixty (CO) days from notiee to remedy the Contractor’s failure or refusal to perform any covenant, agreement or condition in the Contract, note or mortgage as a condition precedent to foreclosure. Contractor hereby waives the sixty-day period granted by said mortgage within which to remedy the breach, and agrees that henceforth all moratorium provisions contained in said mortgage shall be without force and effect, and in the event of termination of the Contract as provided in paragraph 3 hereof, the Contractor shall, on demand of the Government grant the Government immediate possession of the facilities, with the right to use the facilities in place or off-site, either directly or by contract, and the Government may lease and dispose of such facilities, provided, however, that nothing herein contained shall prejudice or impair the right of the Contractor to an accounting. Contractor shall, at the request of the Government, execute, deliver and record a supplemental mortgage under the terms of which the aforesaid sixty-day moratorium provisions shall be deleted from the original recorded mortgage. 5. The unexpended balance of the funds advanced to the Contractor now on deposit in the special bank account in the First National Bank, Batesville, Arkansas, shall be withdrawn and returned to the Government, the account of the Contractor shall be properly credited with such refund. In witness whereof, the parties hereto have caused this document to be executed on this 2nd day of April, 1953.

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?

SHELDON et al. v. GRIFFIN. No. 12097. United States Court of Appeals Ninth Circuit April 29, 1949. J. Gerald Williams, Atty. Gen., Territory of Alaska, Faulkner & Banfield, of Juneau, Alaska, and Medley & Haugland and W. C. Arnold, all of Seattle, Wash., for appellants. No other appearances were entered. Before MATHEWS, HEALY, and POPE, Circuit Judges. HEALY, Circuit Judge. This appeal is from a decree enjoining the Alaska Unemployment Compensation Commission from giving effect to an amendment to the Unemployment Compensation Code of the Territory adopted by the legislature at its 1947 session. The amendment provided for a system of credits to be granted qualified employers of labor on an experience merit basis and also reduced the waiting period from two weeks to one week before benefits may be Plaintiff (appellee) challenged the validity of the amendment for asserted irregularities in the course of the bill’s passage. His complaint alleged that the title of the bill was inadequate, that a motion to reconsider in the House was not properly disposed of, that the bill did not receive in the House three separate readings as required by Sec. 13 of the Alaska Organic Act, 48 U.S.C.A. § 85, and finally that the bill was vetoed by the governor. The court made findings adverse to all these allegations save one, namely, that the bill did not have a third reading in the Flouse. On a finding to the latter effect, based on an examination of the House Journal, the court concluded that the amendment did not become law and it granted the injunctive relief prayed for. claimed by an unemployed person. The record discloses that the bill was regularly certified by the presiding officers of both Senate and Flouse and became an enrolled bill; also that the governor intended it to become law without his signature and that with this intent he formally transmitted it to the office of the secretary of Alaska for permanent filing, it being thereafter officially published as Chapter 74 of the 1947 Laws. The Commission urges that the court was in error in failing to take judicial notice of Chapter 74 under the generally accepted doctrine of Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294. We do not reach that point as we are of opinion that the suit should have been dismissed as presenting no justiciable controversy. In his complaint the plaintiff alleged merely that he is a citizen and taxpayer of Alaska. While he offered no proof on the subject we may assume that he occupies that status. The amendment under attack adds nothing to the burden of the taxpayers of Alaska. The unemployment compensation fund administered by the Commission is made up of contributions exacted from employers in accordance with regulations prescribed by the Commission,, plus fines -and penalties collected pursuant to the provisions of the Act. Alaska Compiled Laws 1949, § 51-5-5. There is nothing in the pleading or proof to indicate that the plaintiff has. a particular right of his own to which injury is threatened, or any interest distinguishable from that of the general public in the administration of the law. To entitle himself to be heard he is obliged to demonstrate not only that the statute he attacks is void but that he suffers or is in imminent danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some remote or indefinite way in common with the generality of people. Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078. Cf. also Perkins v. Luckens Steel Co., 310 U.S. 113, 125, 60 S.Ct. 869, 84 L.Ed. 1108; State of Minn, ex rel. Smith v. Haveland County Assessor, 223 Minn. 89, 25 N.W.2d 474, 174 A.L.R. 544. . The judgment is reversed with directions to dismiss the suit. A number of employers were permitted to intervene in the suit and these intervenors have joined with the Commission on the 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?

WAGNER IRON WORKS, Appellant, v. KOEHRING COMPANY, a Wisconsin Corporation, Appellee. WAGNER IRON WORKS, Appellant, v. HENRY MANUFACTURING COMPANY, Inc., Appellee. Nos. 6267, 6268. United States Court of Appeals Tenth Circuit. Aug. 19, 1960. S. L. Wheeler, Milwaukee, Wis. (J. E. Schroeder, Kansas City, Mo., and Joseph P. House, Jr., Milwaukee, Wis., on the briefs), for appellant. Gordon D. Schmidt, Kansas City, Mo. (Hovey Schmidt, Johnson & Hovey, Kansas City, Mo., W. A. Denny, Milwaukee, Wis., John A. Hamilton, Kansas City, Mo., L. M. Cornish, Jr., Raines, Glenn & Cornish, Clayton M. Davis, Du-Mars, Davis & Bennett, Topeka, Kan., on the brief), for appellees. Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges. PHILLIPS, Circuit Judge. Wagner Iron Worksbrought two actions for alleged infringement of Patent No. 2,722,324, applied for September 30, 1954, and issued November 1, 1955, one against Shawnee Manufacturing Company, Inc. and the other against Henry Manufacturing Company, Inc. The cases were consolidated for trial. The claims in suit are 1, 12, 13 and 21. The trial court concluded that such claims were not valid and were not infringed by Shawnee or Henry and entered its judgment accordingly. Iron Works has appealed. After the appeal was lodged in this court, Koehring Company, having acquired the properties of Shawnee, was substituted as a party appellee. The specification of the patent in suit states that it relates to “hanger bracket pump mountings for tractors equipped with loader frames.” The specification refers to apparatus in which “the hydraulic pump which powers the boom and other tractor attachments is mounted on the base or loader frame of the tractor” and further states: “* * * This pump receives power from the engine drive shaft through an extension shaft having a flexible coupling to accommodate for movment of the frame respecting the tractor when the frame is stressed under load or otherwise. In actual practice the coupling is frequently damaged by excessive frame movement, and it has been a source of equipment breakdown. “It is the object of the present invention to re-locate the pump and to mount it directly from the tractor and, specifically, upon the hanger plate to which the underslung U-shaped member of the loader frame is connected. The re-located pump, accordingly, receives direct support from the tractor and is not subject to stresses imposed upon the loader. “The invention consists in mounting the loader system pump in fixed relation to the tractor and in alignment with the tractor drive shaft and upon a platform specially provided on the hanger plate aforesaid. In one embodiment of the invention the U-shaped member of the loader frame is rigidly connected to the bracket to transmit bending stresses in the loader frame directly to the tractor. In another embodiment of the invention the U-shaped member of the loader frame is pivot-ally connected to the hanger bracket to relieve the tractor from such bending stresses.” Claims 1, 2 and 3 of the patent read: “1. A hanger plate for attachment to a tractor having a loader frame subject to bending stress and a forwardly projecting drive shaft, said plate being provided with means for releasably mounting it on the tractor, a platform forwardly extending from said plate and mounting means on the platform to which a pump may be secured through said platform and hanger plate directly to said tractor and in alignment with said tractor drive shaft, said hanger plate further comprising means for mounting said loader frame on the tractor independent of said pump mounting means whereby bending stresses imposed on the loader frame are transmitted directly to the tractor without affecting the pump and its alignment with the tractor drive shaft. “2. The device of claim 1 in which said loader mounting means comprises means for rigidly mounting the loader to the hanger plate. “3. The device of claim 1 in which said loader mounting means comprises means for pivotally mounting the loader to the hanger plate.” Claims 12, 13, 15 and 16 of the patent read: “12. In combination, a tractor having a forwardly projecting power take-off shaft, a loader frame and a hydraulic system requiring a pump for its operation, means supporting the loader frame detachably on the tractor and including a bracket in rigid connection with the front of the tractor and having a releasable connection with the loader frame, certain portions of the frame being yieldable for relative movement respecting the bracket, a pump for said hydraulic system provided with a rigid mounting to said bracket independently of yieldable portions of the frame and having a drive shaft coupled with the tractor power take-off shaft, and hydraulic connections carried by the frame and having inlet and outlet connection with the pump and flexible to accommodate such yielding without affecting the pump or coupling. “13. The device of claim 12 wherein the connections of the pump to the bracket are independent of the connections of the loader frame to the bracket. “15. The device of claim 12 in which the releasable connection from the bracket to the loader frame is rigid. “16. The device of claim 12 in which the releasable connection from the bracket to the loader frame comprises a pivot.” Claim 21 of the patent reads: “21. In a device of the character described, a combined tractor loader frame hanger and mounting for a pump, comprising a plate, means for connecting the plate to the tractor, a platform projecting forwardly from said plate and comprising means upon which said pump may be mounted, said plate being further provided with depending means for the connection thereto of said loader frame.” It is obvious that Claim 2 is intended to embrace, in addition to the elements set forth in Claim 1, an element not included in Claim 1, to wit, means for rigidly mounting the loader to the hanger plate. It is obvious that Claim 3 is intended to embrace, in addition to the elements set forth in Claim 1, an element not included in Claim 1, to wit, means for pivotally mounting the loader to the hanger plate. It is obvious that Claim 15 is intended to embrace, in addition to the elements set forth in Claim 12, an element not included in Claim 12, to wit, a rigid connection of the loader frame to the bracket. And it is obvious that Claim 16 is intended to embrace, in addition to the elements set forth in Claim 12, an element not included in Claim 12, to wit, a pivotal connection of the loader frame to the bracket. It follows that neither Claim 1 nor Claim 12 embraces either the element of rigid mounting of the loader frame on the plate or the element of pivotal mounting of the loader frame on the plate. That is also true of Claim 21. In the commercial device of the patent in suit, the plate is rigidly attached to the front portion of the frame of the tractor. A bracket which embraces a platform is welded to the plate. The pump is mounted on the platform, with its drive shaft in alignment with the drive shaft of the tractor motor. The drive shaft of the tractor motor is extended and is releasably connected with the drive shaft' of the pump. An under-slung U-shaped portion of the loader frame, which extends beneath the tractor body, embraces a bracket welded to such U-shaped portion and such bracket is bolted to the plate by three bolts. The holes in the bracket and plate through which the three bolts extend are larger than the bolts, so as to permit a limited movement of the loader frame relative to the plate. Clearly, the bolt mounting is not a pivotal mounting nor the equivalent of a pivotal mounting. Each of the alleged infringing devices mounts the pump on a bracket rigidly attached by bolts to the front portion of the tractor frame and each employs an extended drive shaft of the motor connected to and in alignment with the drive shaft of the pump. In the Shawnee device the transverse section of the U-shaped member is slidably mounted in a channel. The channel is composed of three plates welded together at right angles, leaving the front side open. The channel is mounted on a bracket which is attached to the front end of the motor frame and which bracket also carries the pump. In the alleged infringing device of Henry, a plate is rigidly mounted on the front portion of the tractor frame, to which is attached the bracket which carries the pump. The transverse section of the U-shaped portion of the loader frame is attached to the plate by two pivots, one near each end of such transverse section. The pivots are formed by a sleeve attached to the bracket and a round, pinlike member with a head which extends through the transverse section into the sleeve. It will thus be seen that both infringing devices have means by which the U-shaped portion of the frame may move relative to the member to which it is attached. Section 112 of the Act of July 19,1952, an Act to revise and codify the laws relating to patents and the patent office (35 U.S.C. § 112) in part reads: “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. ***•»*» “An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” Section 103 of such Act in part reads: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. * * * ” The specification describes means for rigidly connecting the U-shaped member of the loader frame to the plate or bracket attached to the front portion of the tractor frame. It also describes means for pivotally connecting the U-shaped portion of the loader frame to the plate or bracket attached to the front portion of the tractor. Other than the pivotal mounting, the specification wholly fails to describe any method, manner or means of mounting the U-shaped portion of the loader frame, or any other portion of the loader frame, on the bracket or plate attached to the front portion of the tractor frame, so as to provide yieldability of the frame for relative movement respecting the bracket or plate. As stated above, neither Claim 1 nor 12 embraces the element of a pivotal mounting of the loader frame on the plate or bracket. That is likewise true of Claims 13 and 21. The elements of Claim 12 are: 1. A tractor having a forwardly extending power take off shaft; 2. A loader frame and a hydraulic system requiring a pump for its operation; 3. Means supporting the loader frame detachably on the tractor and including a bracket in rigid connection with the front end of the tractor and having a releasable connection with the loader frame; 4. A pump for the hydraulic system, provided with a rigid mounting to said bracket independently of yieldable portions of the loader frame and having a drive shaft coupled with the tractor power take off shaft; 5. Hydraulic connections carried by the loader frame and having inlet and outlet connections with the pump and flexible to accommodate such yielding without affecting the pump or coupling. The applicant for the patent also undertook to include an additional element in Claim 12 by use of the following language: “Certain portions of the (loader) frame being yieldable for relative movement respecting the bracket.” It will be observed that the quoted language is nothing more than a statement of a function or result. Neither the specification, drawings, nor the claim describes in any manner the means, method, or manner for producing such function or accomplishing such result. The quoted provision does not include the statutory language, “a means * * for performing,” or any like language. But even were we to disregard that deficiency in the claim, it would still be fatally defective, because there is no “corresponding structure, material, or acts” described in the specification or drawings. It is well settled that a “patentee may not by claiming a patent on the result or function of a machine extend his patent to devices or mechanisms not described in the patent. * * * ” While § 112, supra, permits a claim for a combination to be expressed as a means of performing a specific function, a statement of function, effect, or result does not broaden the claim or a portion of the claim beyond the corresponding structure described in the specification, nor beyond the invention and the manner of making and using it, described in the specification. The inadequacy of the description referred to above becomes all the more important when, as we shall later undertake to show, the specification used “conveniently functional language at the exact point of novelty.” Accordingly, we conclude that the portion of Claim 12 last quoted above adds nothing to the claim and does not extend the patent to devices or mechanisms which might obtain the function or result set forth in such quoted language, which were in nowise described in the patent. It follows that we must exclude from consideration of the claims here in suit any means for flexibly mounting the U-shaped portion of the loader frame on the plate or bracket by pivots or by the use of bolts which are smaller than the holes through which they extend. The narrow question then presented is whether the concept which embraces the plate rigidly attached to the front portion of the tractor frame, the bracket attached to such plate, the platform on the bracket, the hydraulic pump mounted on such platform, with its shaft in alignment with and connected to the extended shaft of the motor, and the mounting of the U-shaped portion of the loader frame on the bracket or plate, arose to the dignity of invention. The proof established that the invention covered by the patent was conceived by Werner and Wagner, Iron Works’ assignors, shortly before May 15, 1951. Prior to that date, Iron Works was manufacturing the Simmonds loader frame for Dearborn Motors Corporation, the owner of Simmonds Patent No. 2,495,144, issued January 17, 1950, and was also manufacturing loader frames for other customers. Iron Works mounted the hydraulic pump on the front end of the loader frame. Stresses generated by the loader frame caused excessive breakage of the pump drive shaft, with resultant injury to other portions of the equipment. Werner and Wagner, executives of Iron Works, undertook to design a loader frame and pump that would solve the problem. The experimental work was done by employees of Iron Works under the direction of Werner and Wagner and resulted in a device substantially like the commercial device of the patent in suit, described above. The new loader frame and pump were placed on the market prior to May 15, 1951, and the first work was done on the manufacture of the commercial device about May 15, 1951. The experimental device manufactured under the direction of Werner and Wagner and the commercial devices employed % inch bolts and u/ia inch holes to mount the transverse section of the U-shaped member of the loader frame on the plate. The reason for the failure to describe such method of mounting in the specification or elsewhere in the patent is not entirely clear. Werner testified that they did not conceive the idea of employing bolts smaller than the holes through which they extended, but that such clearance was in the holes from their initial construction. It may be, therefore, that they did not deem that type of mounting as important when the patent was applied for. However, Mr. Werner expressed the opinion in his testimony that the movement made possible by such type of mounting contributed “to the absorption of the stresses and strains” generated by the loader. Werner admitted that there was no suggestion in the patent for a mounting of the transverse section on the plate by means of bolts smaller than the holes through which they extended and that on the contrary the patent suggested a rigid mounting of the transverse section of the loader frame on the plate. The concept of mounting the hydraulic pump on a bracket rigidly attached to the front portion of the frame of the tractor, with the pump drive shaft in alignment with and connected to an extension of the drive shaft of the tractor was not new, when in 1951 Werner and Wagner conceived the device of the patent in suit. It was disclosed by Machín in his Patent No. 2,479,048, applied for October 16,1946, and granted August 16, 1949, assigned to Ottawa Steel Products, Inc. In his specifications Machín stated, “I provide a pump supported on the tractor frame by brackets by bolts or the like. A shaft extends through a bushing secured to the bracket members by bolts or the like and engages within a connecting collar on the end of the extension shaft having a universal joint connection with the crank shaft of the tractor * * * ” In Drawing No. 5 of his patent, Machín illustrates a pump mounted on a bracket, which bracket is rigidly attached to the frame of the tractor and an extended drive shaft of the pump in alignment with the crank shaft of the tractor and the two shafts connected by a universal joint. Moreover, in 1946 Ottawa Steel Products was engaged in the manufacture of front end loaders for farm tractors in which the hydraulic pump was mounted on the loader frame and experienced shaft breakage resulting from shaft misalignment caused by stresses generated by movements of the loader frame. To meet that problem the engineers of Ottawa Steel Products in 1947, following the teaching of Machín, mounted the pump on the front portion of the tractor frame by means of a “pump plate strut support assembly,” rigidly mounted the loader frame on the plate support assembly, positioned the pump so its drive shaft was in line with the drive shaft of the motor and connected the two drive shafts by a flexible coupling. They thus solved as early as 1947 the problem of pump drive shaft breakage and resulting damage caused by misalignment of the pump drive shaft. Thus it will be seen that the only novelty in the device conceived and built by Werner and Wagner was the mounting of the loader frame on the plate by means of bolts that were smaller in diameter than the holes through which they extended, thus permitting the limited movement by the loader frame relative to the plate — a mounting not described nor validly claimed in the patent. Moreover, we are of the opinion that it would be obvious to an ordinary mechanic, skilled in the art, that the problem of pump crank shaft breakage resulting from mounting the pump on the loader frame and the transmission of loader frame stresses to the pump crank shaft would be solved by rigidly mounting the pump on the front portion of the tractor frame, mounting the transverse section of the U-shaped member of the frame on such tractor frame and aligning the pump drive shaft and the tractor drive shaft and connecting them together, so that stresses which would cause the motor drive shaft to move would cause the same movement of the pump drive shaft and thus keep the two drive shafts in fixed relation, whereby misalignment of the shafts would be avoided. Accordingly, we conclude that the claims in suit are invalid for want of invention. Mr. Werner testified that sales were made of the device of the patent in suit “some time earlier than May 15,” 1951. The patent recites: “This application is a continuation-in-part of our co-pending application, Serial No. 357,284 filed May 25, 1953, now abandoned, and entitled ‘Pump Mounting.’ ” We do not pass on the question not raised by counsel, but which lurks in the record, as to whether Werner and Wagner were not entitled to the patent, because the device of the patent in suit was “in public use or on sale in this country, more than one year prior to the date of the application for patent. * * * ” See 35 U.S.C., 1946 Ed., § 31 and 35 U.S.C.A. § 102. The judgment is affirmed. . Hereinafter called Iron Works. . Hereinafter called Shawnee. . Hereinafter called Henry. . Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 257, 48 S.Ct. 474, 479, 72 L.Ed. 868; Philip Sitton Septic Tank Co. v. Ploner, 10 Cir., 274 F.2d 811, 813. . General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 371-373, 58 S. Ct. 899, 82 L.Ed. 1402; Doran Coffee Koasting Co. v. Wyott Manufacturing Co., 10 Cir., 267 F.2d 200, 202. . Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 8, 9, 67 S.Ct. 6, 10, 91 L.Ed. 3; General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 371, 58 S.Ct. 899, 82 L.Ed. 1402.

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?

BOUSHEA et al. v. UNITED STATES. No. 13694. United States Court of Appeals Eighth Circuit. March 14, 1949. Francis J. Murphy, of Fargo, N. D., and George Longmire and Harold D. Shaft, both of Grand Forks, N. D., for appellants. T. H. Wangensteen, Asst. U. S. Atty. and John W. Graff, U. S. Atty., both of St. Paul, Minn., for appellee. Before GARDNER, Chief Judge, and RIDDICK and STONE, Circuit Judges. GARDNER, Chief Judge. Appellants were convicted under an indictment which charged that they caused to be made and presented for payment and approval a certain false claim and caused, to be made and used a certain false certificate, which claim and certificate were presented to the Agricultural Conservation Association of Polk County, Minnesota, and to the Commodity Credit Corporation, on behalf of one Evald Lindquist, a potato grower, for reimbursement for deteriorated potatoes which had theretofore been stored in the Cold Storage Potato Warehouse Company owned by the defendant Francis J. Boushea, at East Grand Forks, Minnesota, and which potatoes were mortgaged to the said Commodity Credit Corporation in connection with the potato loan of said Evald Lindquist. Appellants will be referred to as defendants. The indictment contained a second count charging defendants with a conspiracy to commit the offense charged in count 1. Defendants interposed a motion to strike certain portions of the indictment as sur-plusage, which motion was overruled. They also interposed motion for acquittal at the close of the government’s case and renewed this motion at the close of the entire case, which motions were denied. At the close of all the evidence the government, on leave of court and with consent of counsel for defendants, dismissed the second count of the indictment. Defendants seek reversal on the ground that, (1) the court erred in denying their motion to strike portions of the indictment; (2) the court erred in denying their motions for acquittal; (3) the court erred in instructing the jury that although there was no specific requirement in the AAA regulations that the borrower must certify in writing to the Polk County AAA Committee -that the potatoes were dumped, there was testimony that it was the practice and custom of that committee to have the borrower so certify in addition to the certificate, including a statement that the potatoes so dumped would not be sold nor used for human consumption. The indictment charged but one substantive offense and that was the offense of having caused a fraudulent claim to be presented for payment and approval and having caused to be made and used a false certificate as a part of the presentation of the false claim. The statute under which the indictment ■ is drawn, 18 U.S.C.A. § 80 [now §§ 287, 1001], so far as here pertinent, reads as follows: “Whoever shall make or' cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States, or any department or officer thereof, or any corporation in which the Unitéd States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent; * * * or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a- stockholder, shall be * * * ” .punished as the statute requires. The indictment contained a narrative of the alleged facts and circumstances by which the offense .was charged to have been committed. . Defendants’, motion to strike was directed to such narrated facts. We think the indictment recited much unnecessary matter which might well have been, eliminated. However, the facts recited were all proven or at least testified to during the trial and there is no claim that any evidence was- improperly admitted. The indictment clearly stated the offense and the recitals .-relating, to .the evidentiary matter gave defendants, advice as- to all claims of the government.. The motion-did not go to the sufficiency of the indictment ,,-and hencej was -addressed to the judicial discretion of the court. The denial of the motion could not, we think, have been prej-uoicial to the defendants. Defendants challenged the sufficiency of the evidence by motion for judgment of acquittal interposed at the close of all the testimony and they renew that challenge here. As the jury found the defendants guilty, all conflicts in the evidence were resolved against them and we must take that view of the evidence which is most favorable to the government and accept as true all facts which the evidence reasonably tended to prove. Under the so-called Agricultural Adjustment Act of 1938 as amended, 7 U.S. C.A. § 1281 et seq., there was inaugurated by the United States Department of Agriculture, in connection with the Commodity Credit Corporation, what is known as the 1946 Potato Loan Program. Under that program a potato grower could obtain a loan upon potatoes grown by him upon condition that the potatoes be stored either in a public warehouse or some other suitable place approved by the committee. Pursuant to that program or plan, one Evald Lind-quist stored certain potatoes with the Cold Storage Potato Warehouse Company operated by defendant Francis J. Boushea. These potatoes were stored in three bins, referred to in the record as Bins 1170-P, 1171-P and 1172-P. A loan of $3436.44 was accordingly granted to him, which loan was evidenced by a note and a chattel mortgage, the loan being guaranteed by the Commodity Credit Corporation. These bins were sealed in such a way as to indicate that they were subj ect to a government loan. Under provisions of the program the borrower could sell the potatoes on the open market or to the government and thus pay the loan. The loans on the potatoes in Bins 1171-P and 1172-P were paid, and we are here "concerned only with the loan on Bin 1170-P. There was a further provision in the program which granted permission to the borrower upon certain conditions, to dump the potatoes subject to the loan if after inspection the potatoes were found to be of low grade or had deteriorated to such an extent that under the Act and the regulations promulgated thereunder, they could be certified for dumping. If such permission were granted the potatoes were to be dumped in accordance with the provisions of the Act and due proof made of such dumping, and thereupon the borrower would obtain credit on his loan for the basic value of the potatoes. Under this procedure it was not only necessary that the potatoes be dumped but that the borrower certify that the potatoes so dumped would not be used for human consumption nor sold, except under certain conditions not here material. If the borrower thought the potatoes had deteriorated or were otherwise subject to the provision for dumping, it was incumbent upon him to file such a request with the local Agricultural Committee in the county where the potatoes were stored, and thereupon the potatoes were inspected and if found suitable for dumping then the potatoes would be taken out of the bin to some designated dumping place. In the instant case the practice was that upon the dumping order being issued the potatoes would be dumped at any suitable place and thereupon the borrower would make a certificate as to the fact of the dumping and the place of the dumping, including in the certificate a statement to the effect that the potatoes would not be sold nor used for human consumption. The practice was to accept the grower’s word for the fact that the potatoes had been dumped and to rely on his certificate, unless there were circumstances which would not justify such reliance. Defendant Boushea spoke to Lindquist about the potatoes in Bin 1170-P being below grade and suggested that he try to secure a dúmping order, and this in due course Lindquist secured. Boushea assured Lindquist that he would take care of the dumping as soon as the order had been obtained and Boushea arranged with defendant Fontaine as to the' place, means and manner of dumping. Boushea assured Lindquist that the potatoes were being dumped at the dump grounds in East Grand Forks, Minnesota, although they were not so dumped but a substantial part of the potatoes was cached, under instructions of the defendants, on the Fontaine farm. The rest of the potatoes, under instructions of the defendants, were graded and sold to the Farmers Cooperative Marketing Association for the sum of $1209.34. The defendants participated in the sorting, sacking and selling of the dumped potatoes. Lind-quist, relying upon and believing the statement made by Boushea that the dumping of the potatoes had been completed and the potatoes actually dumped on the dumping grounds in East Grand Forks, Minnesota, was induced by reason of such representations to make the certificate to the effect that the potatoes had been dumped and that they would not be used for human consumption nor sold, and thereafter he made a claim for credit on his government loan by reason of the potatoes being dumped, and the credit was accordingly allowed. The certificate so prepared and presented, while believed by Lindquist to state the truth, was in fact untrue, false, fictitious and fraudulent. If, therefore, the defendants caused this fraudulent claim to be made and presented they were guilty as charged in the indictment and as found by the jury. Lindquist was the innocent person through whom the defendants acted. Whatever they caused him to do they were responsible for, and anyone who aids, abets or assists in committing an unlawful act is as guilty as the principal. The defendants were not mere aiders and abetters, however. They were the principals acting through an innocent agent. As said in United States v. Gooding, 12 Wheat. 460, 6 L.Ed. 693: “It is a known and familiar principle of criminal jurisprudence that he who commands or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act. This is so true that even the agent may be innocent when the procurer or principal may be convicted of guilt, as in the case of infants or idiots employed to administer poison.” It was the manifest plan and purpose of the defendants to appropriate these potatoes to their own use, which they succeeded in doing. In order to accomplish this purpose, using Lindquist as a tool, they caused him to make and present a false and fraudulent claim to a government agency. It is argued that the defendants had nothing to do with the actual preparation, signing or filing of the false certificate and that they did not know that any such certificate was required to be filed. It is also argued that the claim or certificate contained statements which were not required by any law. Whether required by law or not, the recitals were false in so far as they stated that the potatoes had actually been dumped. That statement was with reference to an alleged fact. Coupled with it was the statement that the potatoes would not be sold nor used for human consumption. It is said of this statement that it was not a representation as to an existing fact or past event, but was something to take place in the future. The fact that this last representation was with reference to something that might transpire in the future did not detract from the other false statements with reference to alleged existing facts, and where several false pretenses are made and some of them refer to existing facts while others refer to future events, a conviction may still be had where it appears that any of the representations as to existing facts induced action. This statement with reference to the fact that the potatoes would not be sold nor used for human consumption was not in the nature of a promise because the other recitals showed that the potatoes had passed from the control of the producer and had been dumped “at the dump grounds in East Grand Forks, Minnesota.” If we view the statement with reference to the future use of the potatoes as an opinion, this is to be attributed to the defendants, and they knew that that statement was false and as to them this was a statement of an existing fact made contrary to what they knew to be the truth. As said by the Court of Appeals of the Second Circuit in United States v. Zavala, 139 F.2d 830, 831: “Whether or not the vicarious amendment of the declaration was not technically in accord with the Tariff Act, it is evident that -the defendant thereby caused a false representation to be made to customs authorities and thus violated Section 80 of Title 18.” The Supreme Court in United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 522, 85 L.Ed. 598, referring to the scope of the statute now under consideration, among other things said: “The statute was made to embrace false and fraudulent statements of representations where these were knowingly and willfully used in documents or affidavits ‘in any matter within the jurisdiction of * * * the United States’. In this, there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction.” Defendants were engaged in the unlawful act of appropriating these potatoes to their own use. To accomplish their purpose they used Lindquist to do the things that were necessary to enable them to effect that purpose, and they were charged with notice that he would do the things necessary in the matter of filing the claim and they were responsible for the representations made in that claim and may properly be said to have caused it to be filed and presented. As the result of these unlawful acts of defendants, Lindquist secured credit on his government loan, the defendants got the money for the potatoes, the potatoes were sold and used for human consumption, and the government received nothing from its loan. It remains to consider the contention that the court erred in its instructions to the jury. The instructions of necessity were quite lengthy as the court carefully reviewed all the evidence and the only exception taken at the time the instructions were given is as follows: “The only portion of the instructions to which we would have any objection is that portion with reference to the practice of the County AAA Committee. It is our position that no practice of the AAA Board can be violated by these defendants without knowledge of that practice on their part.” The court told the jury that while there was no specific requirement in the AAA regulations that the borrower must certify in writing to the Polk County Triple A Committee that the potatoes were dumped, there was testimony that it was the practice and custom of that Committee to have the borrower so certify in addition to the certificate, including a statement that the potatoes so dumped would not be sold nor used for human consumption. If the statements contained in the certificate were false, they constituted a part of the false claim presented and whether or not the statements are “technically in accord” with the Act or regulations, they constituted false representations. United States v. Zavala, supra. The other contentions of the defendants have been considered but we think they are wholly without merit. The judgments appealed from are 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 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?

In re SAN JUAN STAR COMPANY, Petitioner, Pedro Juan SOTO, et al., Plaintiffs, Appellants, v. Carlos Romero BARCELO, et al., Defendants, Appellees, In re Pedro Juan SOTO, et. al., Petitioners, Pedro Juan SOTO, et al., v. Carlos Romero BARCELO, et al., Miguel Hernandez Agosto, Intervenor, Appellant. Nos. 81-1086, 81-1096, 81-1137 and 81-1221. United States Court of Appeals, First Circuit. Argued May 8, 1981. Decided Oct. 26, 1981. Bruce W. Sanford, Cleveland, Ohio, with whom Lee Levine, Baker & Hostetler, Cleveland, Ohio, Arturo Trias, and Francis, Doval, Munoz, Alevedo, Otero & Trias, Hato Rey, P. R., were on petition, for The San Juan Star Company. Jose Antonio Lugo, New York City, with whom Pedro Varela, Hato Rey, P. R., Michael Avery, Boston, Mass., Peter Berkow-itz, Rina Biaggi-Garcia, Rio Piedras, P. R., and Alberto Omar Jimenez, Boston, Mass., were on brief for Pedro Juan Soto, et al. Hector M. Laffitte, Hato Rey, P. R., with whom Laffitte & Dominguez, Hato Rey, P. R., was on answer to petition, for Angel Perez Casillas, et al. Vannessa Ramirez, Hato Rey, P. R., with whom Hartzell, Ydrach, Mellado, Santiago & Perez, Hato Rey, P. R., was on brief, for Alejandro Gonzalez Malave. Richard L. Cys, Joyce E. Mayers, and Verner, Liipfert, Bernhard & McPherson, Washington, D. C., on brief, for Carlos Romero Barcelo. Richard M. Schmidt, Jr., Robert C. Burns, Jack Landau, and Sharon Mahoney, Washington, D. C., on brief for The American Society of Newspaper Editors and The Reporters Committee For Freedom of the Press, amici curiae. Marcos A. Ramirez Lavandero, Hato Rey, P. R., with whom Marcos A. Ramirez, and Jose A. Nazario, Hato Rey, P. R., were on brief, for appellant in no. 81-1221. Richard L. Cys, Washington, D. C., with whom Joyce E. Mayers, Verner, Liipfert, Bernhard & McPherson, Washington, D. C., A. Santiago Villalonga, Vannessa Ramirez, Hartzell, Ydrach, Mellado, Santiago & Perez, Hato Rey, P. R., and Roberto Armstrong, Jr., Deputy Sol. Gen., Dept, of Justice, San Juan, P. R:, were on joint brief, for appellees in no. 81-1221. Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges. COFFIN, Chief Judge. On July 25, 1978, in what was to become one of the most controversial and well-publicized events in recent Puerto Rico history, two suspected terrorists were killed in a shootout with police officers at a mountainous location known as Cerro Maravilla. Young members of a radical pro-independence group, the two were allegedly on their way to sabotage a nearby communications facility when slain. Coming as it did in the midst of a heated debate over the island’s political future — and on the eve of a closely contested electoral campaign — the Cerro Maravilla incident attracted widespread popular and political attention. One of the several aftershocks of that incident was a federal civil rights action brought by relatives of the two deceased, in which they alleged that police officers, senior law enforcement officials and the Governor of Puerto Rico had conspired to arrange the killings. That suit, which among other things calls into question the validity of two earlier Commonwealth Justice Department reports exonerating the defendants, has itself stirred enormous interest and publicity in Puerto Rico. Media coverage of the developing litigation has 'been intense, with defendants’ deposition testimony in particular reported — together with explanations provided by both sides — virtually at the time it was given. In response to this publicity, the district court issued several orders. The first, which was reaffirmed by that court several times, limited physical attendance at all subsequent depositions to attorneys of record and clerical assistants. That order was sustained by us on an earlier review, and is not presently before us in any fashion. The second, which the district court has also reaffirmed on reconsideration, prohibits attorneys from disclosing any evidence obtained through subsequent depositions to the press, to the litigants themselves, or to any third party. Emphasizing that all information would become public once trial began, the court described its order as a protective order governing the taking of depositions under Fed.R.Civ.P. 26(c), with the requisite “good cause” found in a “reasonable likelihood” that the wide dissemination of prejudicial publicity would otherwise deny the defendants a fair trial. The third order issued by the district court arose in part from these developments and in part from an entirely independent sequel to the Cerro Maravilla incident. After the two Justice Department inquiries into the killings exonerated all officials of any wrongdoing, and after each investigation was attacked by opponents of the administration as biased and incomplete, the Commonwealth Senate authorized the issuance of two subpoenas for investigation-related documents in the Department’s possession. The fact that some of the documents subpoenaed were identical to those on which the district court had imposed the second protective order described above touched off what may be described as an internal combustion cycle of confrontation among three branches and two sovereigns. Invoking the district court’s protective order — which provided that “only plaintiffs, their attorneys, and paralegals of record” were to have access to the documents, and that they were “in no way to divulge their contents to any person or entity” — the Secretary of Justice refused to comply with the legislative subpoena and moved to quash it in the federal lawsuit. The Secretary asserted that complying with the subpoena would violate the protective order, affront the integrity of the court, deny him a federally-recognized privilege, and deny the defendants the fair trial the order sought to ensure. The police defendants joined the motion, and the President of the Senate intervened in the federal proceeding for the purpose of opposing the motion. The district court subpoenaed the President to testify regarding the legislature’s motives for issuing its subpoena; the President moved to quash the court’s subpoena on grounds of legislative immunity, the court held immunity inapposite, and defendants called the President to the stand. The President refused to answer questions regarding legislative motivations, the court ordered him to answer, the President refused, and the court ordered the legislative subpoenas quashed. In the wake of these developments, three separate parties raise three distinct issues before us. First, intervenor The San Juan Star challenges that portion of the district court’s order prohibiting disclosure of deposition evidence to members of the press or public. Second, plaintiffs seek review of that portion of the same order barring their attorneys from disclosing the contents of depositions to them. Finally, intervenor Miguel Hernandez Agosto, President of the Puerto Rico Senate, asks us to reverse the court’s order quashing the Senate’s subpoenas. We consolidated these cases and heard them on an expedited basis. I. At the outset we face a question of appellate jurisdiction. Because the orders contested are interlocutory in character, we must determine whether each satisfies the criteria of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), which we recently set forth as follows: “Four requisites of appealability under this exception can be gleaned from the Cohen opinion and the cases applying it. The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is ‘unfinished’ or ‘inconclusive’; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court’s discretion.” In re Continental Investment Corp., 637 F.2d 1, 4 (1st Cir. 1980), quoting United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979). In addition, we observed that the third criterion, variously referred to as urgency or irreparable harm should be the “central focus” and perhaps even the “dispositive criterion” of appellate jurisdiction over such orders. Id. at 6-7. The first and second criteria — separability and finality — were described as facets of the analysis of urgency, while the last, importance, was said to be either another facet of that element or simply not relevant. Id. We turn to the orders before us in the light of these standards. First, we consider briefly the separability and finality components. While many discovery orders are typically not sufficiently separable from the merits of the underlying dispute to meet this part of the Cohen test, see Grinnell Corp. v. Hackett, 519 F.2d 595, 597 (1st Cir.), cert. denied sub nom. Chamber of Commerce v. United Steelworkers, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975), we think the orders in this case do satisfy the requirement. All issues presently before us derive from the district court’s attempts to limit publicity concerning the civil rights action before it, and all are entirely independent of the substantive matters at issue in that action. Resolution of these collateral disputes at this time will not disrupt the trial below, and might well facilitate its conclusion by freeing the court from the recurrence of what has obviously been a constant irritant. Similarly, we think it apparent that the district court’s judgment on all matters before us has now been rendered in its final form. That court has reaffirmed its position with respect to both plaintiffs and The San Juan Star on numerous occasions without material modification, and has issued a decisive order following a climactic confrontation with intervenor Hernandez Agosta. Both orders are final and complete by their terms, and the district court has manifested no contrary view of them. We thus come to the central, and most difficult, object of inquiry: inseparability of harm, or the possibility of vindicating the various rights asserted on appeal from a final judgment in the underlying litigation. We note initially that the question “turns on whether irreparable harm would result to appellants, not from the district court order itself, but from a delay in obtaining appellate review of that order”. In re Continental Investment Corp., supra, 637 F.2d at 5. In addition, we reiterate our oft-stated view that potential burdens of litigation or relitigation cannot alone constitute the requisite harm. Id. at 5-6, quoting Lamphere v. Brown Univ., 553 F.2d 714, 717 (1st1 Cir. 1977). Because the potential for irreparable harm differs significantly for each party seeking review, we address the applicability of this standard separately with respect to each. Perhaps the clearest ease of urgency is presented by intervenor The San Juan Star. The interest asserted is that of covering effectively an ongoing judicial proceeding of significant hard news interest. Time is of the essence to such coverage in an almost singular fashion. In addition to the harm thus suffered by any delay in review, the paper, as an intervenor, faces the added consideration that if no party appeals the eventual final judgment, it may be precluded from gaining review at any time. We thus find the claim or urgency asserted by The San Juan Star to be sufficient to meet the Cohen standard. Intervenor Hernandez Agosto faces the same risk of potential preclusion from later review, and a similar urgency of purpose. A legislative investigation of a matter of pressing importance to a government may reasonably require expedition both to secure the availability or freshness of evidence and to have a legitimately desired impact, and the legislature has asserted such a need here. We thus conclude that its interests will be irreparably impaired by a further delay in review. Plaintiffs’ challenge to the portion of the order prohibiting their counsel from disclosing the contents of depositions to them presents somewhat different considerations. The central right invoked, the right to effective participation in one’s own litigation, is in part derivative of the right to win vindication on the merits of the underlying claim, and is to that extent capable of vindication through vindication of those rights on an ultimate appeal. We would therefore normally be inclined to find a lack of the urgency necessary to make this part of the order appealable under Cohen. At the same time, however, plaintiffs have two distinct interests in immediate review. First, a litigant has a significant interest in ensuring that his counsel, possessed of some factual information to which the litigant himself is denied access, not take some action he does not wish to take during the course of litigation. See generally Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In addition, we think— as discussed more fully below — that the pri- or restraint on significant communications imposed by this order does in fact in this instance implicate the First Amendment, see Bernard v. Gulf Oil Co., 619 F.2d 459, 466-73 (5th Cir. 1980) (en banc), aff’d on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), and that such a restraint constitutes immediate injury by its very nature. See id. at 470, citing Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1976). While we find the combination of these interests sufficient to compel immediate review in the unusual circumstances of this case, we stress that an asserted harm to a constitutional right is not in itself sufficient to make appealable an interlocutory order, especially one relating to discovery, see Grinnell, supra. Because each of the three appellants-petitioners before us satisfies the tests of separability, finality, and urgency, we must address briefly the final test of appellate jurisdiction, that of importance. Although we have said that this element is not analytically a proper component of the collateral order test, see In re Continental Investment Corp., supra, 627 F.2d at 6, and although the Supreme Court has apparently never, rejected an appeal for failure to satisfy it, see id., the Court has continued to include it in its statement of the doctrine. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374-75, 101 S.Ct. 669, 673-74, 66 L.Ed.2d 571 (1981). We think it sufficient to note that, as our analysis below makes clear, each appeal presents issues that are of clear importance and that certainly involve unsettled questions of controlling law. We thus hold that we have jurisdiction over all three appeals, and proceed to consider the merits of each in turn. II. We turn first to the appeal brought by The San Juan Star, which presents several difficult questions. At the outset we determine whether communications prohibited by a protective order restricting the dissemination of information obtained through court-ordered depositions qualify for protection under the First Amendment. Finding that a constitutional right warranting some protection is involved, we then assess its significance and determine the standard by which judicial restrictions on the protected communications are to be measured. Finally, we determine whether the district court’s actions in this case complied with the properly applicable requirements. See generally In re Halkin, 598 F.2d 176 (D.C.Cir.1979) (Bazelon, J.); id. at 200 (Wilkey, J., dissenting); Note, Rule 26(c) Protective Orders and the First Amendment, 80 Colum.L.Rev. 1643 (1980); Case Comment, The First Amendment Right to Disseminate Discovery Materials, 92 Harv.L.Rev. 1550 (1979). We think the answer to the first question to be that significant but limited First Amendment concerns are implicated by such protective orders. We begin with the undisputed fact that a court under Rule 26(c)(1) can deny access to information altogether by preventing discovery upon a showing of any “good cause”, specifically including but not limited to such relatively innocuous possibilities as “annoyance, embarrassment, oppression or undue burden or expense”, and that a denial of access does not implicate the First Amendment. This fact has led some judges to conclude that a power to deny access completely necessarily includes the lesser power to condition access to information on an undertaking not to disseminate it. See In re Halkin, supra, 598 F.2d at 200, 209 (Wilkey, J., dissenting). ¿But the “lesser included” rationale does not always solve the problem. For example, the police power of a municipality justifies zoning but does not permit preferential zoning for whites only. The power to deny access altogether does not necessarily allow a court to impose any condition upon access that it wishes — particularly when the condition at issue has an impact on separate constitutional concerns. Our next step is to recognize the relevant but not determinative fact that litigants, their attorneys, and the press would have a strong interest in being able to convey and receive truthful reports of public criminal and civil judicial proceedings, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595-96, 100 S.Ct. 2814, 2838-39, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring in the judgment), and that restraints on the transfer of newsworthy information of this nature would be subject to the highest degree of protection. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976). When information is produced during civil discovery, however, the First Amendment interests and consequently the degree of severity of our scrutiriy of the restraints are different. During discovery, information is produced through compulsion in order “to narrow and clarify the basic issues... and ascertain the facts”, Hickman v. Taylor, 329 U.S. 496, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947), and thereby to make the subsequent trial “a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). In pursuit of these aims, discovery rules are liberal, giving parties broad powers to gather information. As a result, a deponent may be obliged to reveal information that will not be admissible at trial. Unlike evidence at trial, it has not passed the strict threshold tests of relevance and admissibility, yet it has been compelled by dint of legal process. The information revealed may be irrelevant, prejudicial, or pose an undue invasion of an individual’s privacy. Such undigested matter, forced from the mouth of an unwilling deponent, is hardly material encompassed within a broad public “right to know”. Its disclosure would not advance the informed civic and political discussion that the First Amendment is intended to protect. We do not see present in the case of civil discovery those interests that make publicity in a criminal trial an important “safeguard against any attempt to employ our courts as instruments of persecution,” In re Oliver, 333 U.S. 257, 279, 68 S.Ct. 499, 510, 92 L.Ed. 682 (1948). Nor can the discovery processes lay claim to the long tradition of openness enjoyed by criminal or civil trials. Compare Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 564-69, 100 S.Ct. at 2821-23 (opinion of /Burger, C.J.). We conclude, therefore, that although there is a First Amendment interest in information produced at trial that warrants full protection, a judicially-powered process compelling information that has not yet passed through the adversary-judicial filter for testing admissibility does not create communications that deserve full protection. Having first recognized the full scale First Amendment interest in reports of public judicial proceedings, and also then having taken note of the series of factors distinguishing information developed during pre-trial discovery, we conclude that notwithstanding such factors the communications produced during discovery are not totally undeserving of protection under the First Amendment. Individuals have a well-recognized interest in self-expression, First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 n.12, 98 S.Ct. 1407, 1416 n.12, 55 L.Ed.2d 707 (1978); Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967), or, to turn the coin over, there is a First Amendment concern that the government not lightly engage in any restraints on communication, particularly when the order is issued prior to the expression taking place. Nebraska Press Ass’n v. Stuart, supra, 427 U.S. at 556, 96 S.Ct. at 2801. Moreover, some of the information produced during discovery presumably will be relevant at trial, newsworthy, and potentially subject to greater protection under the First Amendment. The products of discovery, therefore, embody significant but somewhat limited First Amendment interests. The Supreme Court has recognized that the special characteristics of the particular type of speech at issue may render inapplicable the prohibition against prior-restraints. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771 & 772 n.24, 96 S.Ct. 1817, 1830 & 1831 n.24, 48 L.Ed.2d 346 (1976) (commercial speech may not be subject to prohibition against prior restraints). Accordingly, we scrutinize the restraints imposed by protective orders under a less severe standard than that ordinarily applied to prior restraints. This result allows the discovery process to continue to serve its function while also allowing judges efficiently and effectively to fulfill their duty to protect the litigants’ right to a fair trial and right to privacy. If the trial judge were required to allow virtually full publicity of utterances forced from the mouth of an unwilling deponent, even if irrelevant or inadmissible, he might well refuse to allow the discovery to proceed at all when the interests of a fair trial or personal privacy are seriously threatened. The alternative of having to supervise personally each question and response when interests of privacy or fair trial are at stake ‘would prevent discovery from accomplishing its purpose of expediting the trial process. While allowing discovery to proceed with greater speed and greater scope, protective orders can also give judges the discretion to exercise their constitutional duty to protect litigants’ rights to a fair trial and privacy. The standard we apply to review the validity of a restraint on communications produced during discovery is similar to the standard applied to prior restraints but less stringent due to the more limited nature of the First Amendment interests at stake. We look to the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary. Our adaption of this standard in a civil discovery context, however, allows a court to be slightly less severe when considering the degree and imminence of the harm that might ensue if communications to the press are not prohibited. Thus, we consider the magnitude of the harm threatened by disclosure and the likelihood of that harm occurring, but we think these considerations are best applied on a sliding scale: as the potential harm grows more grave, the imminence necessary is reduced. For example, a threatened material harm to a defendant’s deep-seated interest in an impartial jury in a civil trial need only be reasonably likely. A claimed injury to less important interests, by contrast, would need to be serious and unmistakable. In general, then, we find the appropriate measure of such limitations in a standard of “good cause” that incorporates a “heightened sensitivity” to the First Amendment concerns at stake, see Bruno & Stillman, Inc. v. Globe Newpaper Co., 633 F.2d 583, 596 (1st Cir. 1980); Brink v. DaLesio, 82 F.R.D. 664, 677-78 (D.Md.1979), a position again midway between those taken in the majority and dissenting opinions in Halkin. Compare In re Halkin, supra, 598 F.2d at 191 with id. at 209. With respect to the remaining criteria to be applied — the effectiveness cf a protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary — no countervailing interests are juxtaposed, and we would accordingly maintain the strict standard. Because no competing interest can serve to justify any restraint on expression more than that minimally necessary to its own protection, any restraint must embrace Iwhat the court, after sensitively addressing | the issue, determines to be the least restrictive means possible. Similarly, because no purpose sufficient to outweigh First Amendment concerns can be served by an ineffective restraint, the court must be reasonably certain that its order will have the effect sought. We turn in light of these standards to consider the validity of the orders prohibiting dissemination of deposition contents to the press or public in this case. In its first order on the matter, issued June 11, 1980, the district court began by specifically identifying the issue as “one which involves a direct confrontation of two... fundamental rights”, those of free speech and fair trial. It went on to describe at length the ways in which the community had been “fully saturated” by the reports of the proceedings, and noted specifically the press conferences held by counsel, whom it properly described as “officers of the court” held to a “higher duty” of ensuring a fair trial. See, e. g., Hirschkop v. Snead, 594 F.2d 356, 366 (4th Cir. 1979). The court determined that the amount of publicity being generated would make it “difficult if not impossible for the defendants to obtain an impartial jury.” The court went on to note that its order applied only to deposition evidence, only to future depositions, and only until the time of trial; it also asserted explicitly that it saw “no other method or alternative” to its action. Finally, the court briefly addressed the First Amendment issues implicated by its order, concluding that they were “necessarily qualified or conditioned by the potential restrictions that are part of the [discovery] system” and that they did not outweigh the countervailing fair trial interests at stake. In its decision reaffirming that order, issued December 30, 1980, the court again reviewed the “intense pretrial publicity”, asserting that it went “beyond that which is tolerable” and “cast very serious doubts” on its ability to select an impartial jury. The court reiterated its view that protective orders restraining dissemination of information obtained through discovery were permissible despite the significant First Amendment concerns presented if they were based on a “reasonable likelihood” that defendants would otherwise be unable to obtain a fair trial. The court recognized that such an order must be “narrowly drawn,” and again emphasized the limitations on the scope and duration of its own order. Taking specific note of In re Halkin, the court concluded that “other measures would... fail to correct the threat” and that “without this prior restraint a fair trial will be denied.” We think the court’s judgment sustainable. With respect to the two threshold elements of the test discussed above, it is clear that the court found at least a reasonable likelihood of a material harm to defendants’ right to a fair trial. We think this conclusion well-supported by both the massive amount of publicity indisputably attending this case and by the emotionally-charged nature of the trial itself. As to the other elements of the test, we think the issues closer but the order ultimately supportable. First, the order is narrowly drawn. It does not restrain the press from publishing any information to which it gains access; it does not restrain any party or counsel from discussing with the press anything other than the contents of future depositions; and it does not seal any information beyond the time of trial. It would in general be more desirable for a court to review the contents of each deposition individually, restricting dissemination of only such information as it found specifically likely to endanger defendants’ right to a fair trial. See United States v. International Business Machine Corp., 82 F.R.D. 183, 195 (S.D.N.Y. 1979). However, given the probability that any additional publicity of deposition contents would be damaging to the defendants’ fair trial rights, and the need for the court to construct a manageable order which would not impose upon it an intolerable burden of involvement in the day-to-day problems of discovery, we think this arguable overbreadth alone insufficient to invalidate the court’s order. With respect to the final two elements to be considered we conclude that, while the court did not explicitly articulate the reasons for its conclusions, the record amply supports them. The conclusion that the alternatives that should be considered, see Nebraska Press Ass’n v. Stuart, supra, 427 U.S. at 563-64, 96 S.Ct. at 2804-05, would be unavailing finds support in several factors peculiar to this case. As appellees have argued, Puerto Rico is singularly unsuited to a change of venue, and postponement of a trial of such urgent proportions could seriously jeopardize important interests in its resolution. On the district court’s conclusions that such intermediate measures as voir dire, instructions, or sequestration would be unavailing in the face of the jury pool’s “saturation”, we must defer to that court’s discretion and its closer familiarity with the nature of the publicity involved. Finally, the record also provides reasonable support for the belief that the court’s order would be effective, since deposition testimony — some of which might be both inflammatory and inadmissible, and thus especially prejudicial — had provided the basis for a large part of prior publicity, and since even a late bar on discussion could make a fair trial more likely at some late date. We recognize that criminal trials might be thought to present even more compelling fair trial rights than do civil trials, but think the importance and potential effects of this case sufficient to justify scrupulous care for those rights here. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 257-58 (7th Cir. 1975); CBS, Inc. v. Young, 522 F.2d 234, 241 (6th Cir. 1975) (per curiam). Accordingly, the district court’s order prohibiting disclosure of deposition contents to the press or public is affirmed. In future cases, however, we would expect courts to assess these factors more explicitly and deliberately, and we will scrutinize those assessments accordingly- III. We turn next to the plaintiffs’ appeal of that part of the same order that prohibited disclosure of deposition material by plaintiffs’ counsel to their clients, plaintiffs themselves. We think this portion clearly invalid. First, the significance of plaintiffs’ right to such information can hardly be overstated. The very right sought to be vindicated by the court’s order — the fundamental right to a fair trial— might be thought as a general rule to depend critically on one’s ability to participate effectively in one’s own litigation. See Faretta v. California, supra; Geders v. United States, 425 U.S. 80, 88-89, 96 S.Ct. 1330, 1335-1336, 47 L.Ed.2d 592 (1976). In this particular case, moreover, undisputed affidavits have averred that plaintiffs — two of whom are tenured university professors — have consistently taken an active and significant role in the investigation, planning, and supervision of the litigation. In addition, because it is far from clear that it is within the court’s power to deny litigants access to information from counsel altogether, First Amendment concerns are implicated here even more strongly than with respect to the preceding appeal. See Bernard v. Gulf Oil Co., supra; Rodgers v. U.S. Steel Corp., 508 F.2d 152, 162-63 (3d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Finally, while plaintiffs concededly made numerous public statements about deposition testimony when such comment was unrestrained, there is no suggestion whatsoever either that they would fail to comply fully with a court order barring such disclosure in the future or that the court could not deal effectively with any intransigence. Indeed, no possibility of harm resulting from disclosure of this information to plaintiffs has ever been advanced. Accordingly, we face a significant infringement of fundamental constitutional rights supported by no direct or material interest, and we reverse that portion of the district court’s order prohibiting the disclosure of deposition contents to plaintiffs. IV. We turn finally to intervenor Hernandez Agosto’s appeal of the district court’s order quashing the Puerto Rico Senate’s subpoenas of investigatory documents from the Commonwealth Secretary of Justice. This question we also think clear, for we think the district court has simply misperceived the issue presented. The key fact, in our view, is that the documents sought had come into the Secretary’s possession through means entirely unrelated to the federal court’s discovery process — indeed, had come through the Department’s own investigations. The fact that copies of the documents had independently been obtained through discovery by a party to the federal litigation bears no more than an accidental relation to the Senate’s subpoena. As a result, none of the powers vested in the court by Fed.R.Civ.P. 26 — powers that were central to our disposition of The San Juan Star’s appeal — are of any relevance here whatsoever. To address the Secretary’s two principal arguments directly, we first think it clear that the protective order cannot possibly be said to compel the Secretary not to disclose the documents in question. The order was issued at the Secretary’s request and for his protection, and for him, neither a party nor privy to the civil rights action, now to assert that it bars disclosure on his part stands its legitimate purpose on its head. See Rodgers v. U.S. Steel Corp., supra, 536 F.2d at 1006-07; Davis v. Romney, 55 F.R.D. 337, 341 (E.D.Pa.1972). The Secretary’s second contention, that the district court’s protective order invested him with a privilege which he was allowed to assert as valid against the Senate subpoenas, reflects the same fundamental misconception. The Secretary’s argument is akin to that of an immunized criminal defendant in a tax fraud case who seeks to prevent the IRS from using independently obtained information in a separate civil case. Any “privilege” recognized as an incident of federal discovery proceedings — the Secretary’s inappropriate term for an interest found worthy of protection under Rule 26(c) — serves solely to condition the access obtained through those proceedings and cannot shut off unrelated means of access independently available. This limitation is particularly strong where the party enjoined from seeking access through such alternate means is not in any way party or privy to the judicial proceedings. See Martindell v. ITT, 594 F.2d 291, 295 (2d Cir. 1979); GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129, 132 (S.D.N.Y.1976). Finally, the constraints on the court’s action are perhaps at their most acute where the nonparty whose nonjudicial access is precluded is a legislative body of a separate sovereign. We thus conclude that any rights or privileges the Secretary may have against the Senate must be asserted before that body, rendering unnecessary any consideration of the propriety of the court’s questioning the Senate President regarding legislative motives. Because Fed.R.C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SWIFT AND COMPANY, Respondent. No. 13473. United States Court of Appeals Third Circuit. Argued April 20,1961. Decided July 24, 1961. Rehearing Denied Aug. 28, 1961. Melvin J. Welles, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Julius G. Getman, Atty., N. L. R. B., Washington, D. C., on the brief), for appellant. Bernard G. Segal, Philadelphia, Pa. (Samuel D. Slade, Shirley S. Bitterman, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., on the brief), for respondent. Ann Leonard, Chicago, 111., for amicus curiae, National Brotherhood of Packinghouse Workers. Before GOODRICH, KALODNER and STALEY, Circuit Judges. STALEY, Circuit Judge. Is it an unfair labor practice under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. (“Act”), for an employer to enter into an agreement with a previously certified union while a petition for an election is pending? The National Labor Relations Board so held and now seeks enforcement of its order made pursuant thereto. Swift and Company, respondent, and the National Brotherhood of Packinghouse Workers (“brotherhood”), were parties'to a master collective bargaining agreement, due to expire on September 1, 1959, that included production and maintenance employees at the respondent’s Harrisburg, Pennsylvania, plant. The parties began negotiating a renewal of the agreement on July 23, 1959. Shortly thereafter, on August 13, 1959, the Amalgamated Meat Cutters and Butcher Workmen of North America (“meat cutters”) filed a representation petition with the board, on which a hearing was held on September 17, 1959, requesting that an election be held at the Harrisburg plant. On October 22, 1959, before that petition was disposed of or an election held, respondent and the brotherhood executed a new agreement. On October 12, 1959, the meat cutters filed an unfair labor practice charge. Thereafter the board, based upon a stipulation of fact by the parties, found that the filing of the petition, followed by an administratively determined showing of interest, raised a real question concerning representation at the Harrisburg plant, and that renewal of the agreement, in light of this fact, constituted a violation of the Act. More particularly, the board found that, by renewing the agreement, respondent restrained and coerced its employees in the selection of a bargaining representative, a violation of § 8(a) (1) of the Act, and secondly, that it rendered unlawful support to the brotherhood in violation of § 8(a) (2) of the Act. Affirmatively, the board’s order, which it seeks to have enforced here, directed respondent to desist from applying the agreement to the Harrisburg employees and to withdraw recognition from the brotherhood. 128 N.L.R.B. No. 87 (1960). In opposing enforcement, respondent contends that it cannot be found guilty of an unfair labor practice for executing a collective bargaining agreement with a certified union, as the brotherhood was, since refusal to do so would itself have constituted an unfair labor practice under the Act. It also contends that the record fails to support the board’s finding that a real question of representation existed at the Harrisburg plant. A brief filed on behalf of the brotherhood, as amicus curiae, also urges those points. The board answers the first contention by saying that “obviously, in the circumstances here, the Board would not, and could not, have found respondent guilty of a refusal to bargain because it maintained its neutrality by refraining from dealing with either of the competing unions.” It meets the second contention squarely by urging that a real question exists once a petition has been properly filed. Under the Midwest Piping doctrine, which the board invokes here, it is an unfair labor practice for an employer to recognize and bargain with one of two or more unions as the exclusive bargaining agent of its employees during pendency of a rival union’s petition for certification where a real question concerning representation exists. The board has held, however, that it is the continuing existence of the representation claim and not the mere filing of a petition which determines whether the doctrine should be applied. It has persuasively, and we believe correctly, defined a real question of representation in National Carbon Division, 105 N.L.R.B. 441, 443 (1953), where it said: “We are convinced by the record as a whole that during the pendency of the petition and after its dismissal by the Board there was a reasonable basis for the Respondent to have believed that the Union no longer represented a majority of the employees. Thus, the Union’s certification was about 5 years old. It had just terminated an unsuccessful strike which resulted in the replacement of a large number of Union adherents. The Independent had made a rival claim of representation upon the Respondent, and implemented it by filing a representation petition. As stated above, the Independent’s petition was administratively dismissed by the Board, not because its claim was unfounded, but because of the pendency of certain charges filed by the Union which have been found herein to be without merit. We are convinced that the dismissal of the petition in these circumstances did not alleviate the Respondent’s otherwise reasonable and pre-existing doubt as to the Union’s majority status but only delayed its resolution.” (Emphasis supplied.) In William Penn Broadcasting Co., 93 N.L.R.B. 1104 (1951), the board pointed out that it is the responsibility of the general counsel to show that a real question exists. It there went on to say that “necessarily, it is for the Board, within the prescribed procedures of the Act, ultimately to determine after full litigation of the issue, whether a real question concerning representation existed under particular circumstances.” Id. at p. 1105, n. 5. Of course, that determination must be upheld so long as it is supported by substantial evidence. Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. See Cleaver-Brooks Mfg. Corp. v. N. L. R. B., 7 Cir., 264 F.2d 637, certiorari denied 1959, 361 U.S. 817, 80 S.Ct. 58, 4 L.Ed.2d 63; District 50, United Mine Workers v. N. L. R. B., 4 Cir., 1956, 234 F.2d 565. There must be a finding of a real question of representation, i. e., that the employer had a reasonable basis for believing that the union no longer represented a majority. Here, the board made that finding. We must now determine whether the record contains substantial evidence to support it. In doing so, we are guided in part by what the board itself said while referring to the Midwest Piping doctrine in Ensher, Alexander & Barsoom, Inc., 74 N.L.R.B. 1443, 1445 (1947): “ * * * That doctrine, necessary though it is to protect freedom of choice in certain situations, can easily operate in derogation of the practice of continuous collective bargaining, and should, therefore, be strictly construed and sparingly applied.” From our review of the record here, we think that the board’s finding is not supported by substantial evidence, and thus it becomes unnecessary to pass on respondent’s first contention. The board admits, as indeed it must, that the only evidence in the record to support the finding is filing of the petition by the meat cutters and an administrative determination that a hearing thereon should be held. A hearing took place on September 17, 1959. No ■election was ever ordered or held. These facts, we think, are cleaidy insufficient, for at most they establish the existence of a naked claim on the part of the meat ■cutters to majority representation. See St. Louis Independent Packing Co. v. N. L. R. B., 7 Cir., 1961, 291 F.2d 700. Recognizing its tenuous position, the board urges that we give weight to its disposition of the petition for election. Before proceeding to a hearing on the petition, the board points out that it has a statutory duty to first find that there ■exists “reasonable cause to believe that a question of representation affecting •commerce exists.” Its usual procedure in such cases is to check to see if the petitioning union has been designated by ■at least thirty per cent of the employees. We are asked simply to assume that such ■occurred here, for there is no evidence in the record in this regard, and the board is apparently satisfied with saying that such a showing “must have” occurred, since it is required by the board’s administrative practices. The showing •of thirty per cent interest, however, has a limited purpose. It was devised as a means of facilitating the board’s decision as to whether the circumstances justify holding an election at all. When used for this purpose, the board has held that such a showing may not be subject to collateral attack. Sebastopol Cooperative Cannery Co., 111 N.L.R.B. 530 (1955). Consistent therewith, the board has refused to permit attack on the procedure employed in establishing a showing of interest, or to pass on allegations that cards supporting the petition are false or otherwise invalid. 24 Annual Report NLRB 14-15 (1959). As is readily apparent, there is a great deal of difference between using the thirty per cent showing to support a decision to hold an election and in using it as an evidentiary basis for an unfair labor practice finding. The board itself has indicated, on at least two occasions, that membership cards are not reliable evidence of employee union allegiance where there are rival unions competing for membership. As the brotherhood indicated in its brief here, a third union, the United Packinghouse Workers of America, AFL-CIO, filed an election petition on June 29, 1959, which was withdrawn on August 7, 1959, only to be followed by the meat cutters’ petition, filed on August 13, 1959. There is one other evidentiary fact to round out the picture. At the time when the agreement was renewed, it appears that approximately ninety-five per cent of respondent’s employees at the Harrisburg plant were having dues for the brotherhood deducted from their pay pursuant to voluntary authorization, and that during the so-called “escape period,” which occurred prior to September 1, 1959, no employee revoked an authorization. In the absence of substantial evidence in the record to support the finding that the employer had a reasonable basis for believing that the brotherhood no longer represented a majority of its employees, the board’s ultimate finding of an unfair labor practice must fall. The petition for enforcement will be denied. . Section 8(a) provides, in relevant part, as follows: “(a) 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 of this title; “(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it; Provided, That subject to rules and regulations made and published by the Board pursuant to section 6 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay * * 29 U.S.C.A. § 158(a). . The name derives from Midwest Piping and Supply Co., 63 N.L.R.B. 1060 (1945). The opinion of the board in that case shows that there was substantial evidence to support the finding of a real question concerning representation. . Pittsburgh Valve Co., 114 N.L.R.B. 193 (1955), reversed on other grounds 4 Cir., 1956, 234 F.2d 565. . On this question, see St. Louis Independent Packing Co. v. N. L. R. B., 7 Cir., 1961, 291 F.2d 700; N. L. R. B. v. Spiewak, 3 Cir., 1950, 179 F.2d 695; Samoffi and Summers, “The Eternal Triangle in Labor Relations,” 4 Lab.L.J. 318, 325 (1953). . § 9(c) (1) of the Act, 29 Ü.S.C.A. § 159(c) (1). . § 101.18 N.L.R.B. Statements of Procedure, Series 7. . 20 Annual Report N.L.R.B. 12 (1955). For a full discussion of the development and efficacy of the thirty per cent showing of interest procedure, see N. L. R. B. v. J. I. Case Co., 9 Cir., 1953, 201 F.2d 597. . Novak Logging Co., 119 N.L.R.B. 1573 (1958); Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). See N. L. R. B. v. Wheland Co., 6 Cir., 1959, 271 F.2d 122.

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?

UNITED STATES of America, Plaintiff-Appellee, v. Earl L. KRAMER, Defendant-Appellant. No. 73-1925. United States Court of Appeals, Tenth Circuit. Aug. 20, 1974. James W. Heyer, Lakewood, Colo., for defendant-appellant. John W. Madden, III, Sp. Asst. U. S. Atty. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee. Before HILL, HOLLOWAY and MOORE, Circuit Judges. Honorable Leonard P. Moore, Second Circuit, sitting by designation. HILL, Circuit Judge. Earl Kramer was convicted by a jury in the United States District Court for the District of Colorado, of aiding, abetting, inducing and procuring the making of a false financial statement submitted to a federally insured bank to influence the action of the bank in granting a loan, in violation of 18 U.S.C. §§ 1014 and 2. On appeal, we reverse. The pertinent facts may be summarized as follows. Kramer was president of, and a majority stockholder in, the First National Bank of Fleming, Colorado (bank). In February, 1971, the Regional Administrator of National Banks discussed with Kramer the possibility of increasing the bank’s capital structure. Application for such an increase was subsequently made and tentative approval was given. The application lapsed, however, and while it was being renewed Kramer began soliciting bank stock purchasers. One such prospective investor was Robert Fuller, one of the bank’s customers. Fuller operated a tax/accounting business and hay hauling service in nearby Sterling, Colorado. Kramer thought it would be beneficial to the bank if Fuller was a stockholder, as Fuller would then be in a position to refer his 800 clients to the bank for business. Kramer visited Fuller’s office on August 23, 1971, and asked if Fuller, or his clients, would be interested in purchasing bank stock. Fuller replied that he would like to, but that he lacked the necessary finances. It was decided that Fuller would borrow the money from the bank, and he filled out the necessary papers for a $10,000 unsecured loan. Although he had a current financial statement on file with the bank, he made another one which listed his total assets as being $62,300 and his net worth as being $48,100. Kramer returned to the bank and gave the loan papers and financial statement to an employee to complete and process. At Kramer’s direction the loan proceeds were placed in the bank’s stock escrow account, pending final approval of the increase in capitalization. The bank’s board of directors met on August 26, 1971, and discussed several loans. One of the directors asked Kramer if Fuller’s financial statement warranted his loan. Kramer said that it did, and the loan was formally approved. The bank’s increase in capitalization was approved on December 17, 1971. Funds in the bank’s stock escrow account were then transferred to its capital account and stock was issued. Fuller received a stock certificate for 333 shares of the bank’s stock. Kramer was indicted on July 12, 1973, and convicted on August 22 of that year, receiving a fifteen month prison sentence. He now contends, inter alia, that the evidence introduced at trial was insufficient to sustain his conviction under 18 U.S.C. §§.1014 and 2. In deciding this issue we must view the evidence presented in the light most favorable to the government to ascertain if there is sufficient substantial proof, direct and circumstantial, together with reasonable inferences to be drawn therefrom, from which a jury might find a defendant guilty beyond a reasonable doubt. United States v. Twilligear, 460 F.2d 79 (10th Cir. 1972). The government has the burden of proving, beyond a reasonable doubt, that (1) Kramer made, abetted, aided, induced or procured another person in making a false statement submitted to a bank; (2) that he did so for the purpose of influencing the bank’s action in approving a loan; (3) that the statement was false as to a material fact; (4) that Kramer did so knowingly; and (5) that the bank’s deposits were insured by the Federal Deposit Insurance Corporation (FDIC). See 18 U.S.C. §§ 1014 and 2; United States v. Goberman, 329 F.Supp. 903 (M.D.Pa.1971), aff’d, 458 F.2d 226 (3rd Cir. 1972). It is conceded that the bank’s deposits are FDIC insured. Nor is there any serious dispute concerning the falsity of the August 23, 1971, financial statement which listed Fuller’s total assets as $63,300 and his net worth as $48,100. The government’s evidence established that Fuller had been in very poor financial shape from 1968 to 1971, that he had defaulted on a $20,000 loan from the Small Business Administration (SBA), and that there were three unsatisfied or partially unsatisfied judgments against him. Neither the SBA loan nor the judgments were disclosed as liabilities on the financial statement in question. Moreover, a financial statement Fuller filed with the bank on December 10, 1970, indicated his net worth was less than $2,000 and a financial statement filed with the SBA in 1972 showed he had a minus net worth. Nevertheless, our review of the record convinces us that the government failed to prove the remaining elements of the offense. There is no evidence in the record that Kramer made, aided, abetted, induced or procured the making of the financial statement. Fuller, a key government witness and the only person other than Kramer who could testify as to the circumstances surrounding the statement’s completion, could recall nothing. Kramer, however, testified that Fuller filled out the statement himself, that Fuller did not ask what to put in the statement, and that he did not tell him. His testimony was uncontroverted. Nor do we believe the government introduced sufficient evidence to prove Kramer knew the financial statement was false. Fuller filed five financial statements with the bank from 1968 through 1971, including the one in question. But not one of these statements revealed his SBA loan or the judgments against him. Fuller did testify that he had previously mentioned the SBA loan to Kramer, but could not recall what he said about it. Kramer’s uncontradicted testimony was that Fuller said he was in the process of settling an $1800 SBA obligation. Fuller could not recall the conversation that took place between him and Kramer on the date the financial statement was made. However, Kramer stated that Fuller led him to believe his financial affairs were in good order. He stated that Fuller told him his business was expanding and that his yearly income was $30,000. These uncontro-verted statements would lead one to believe the financial statement was accurate. Finally, sufficient evidence does not exist by which a jury could find that the financial statement was submitted to the bank for the purpose of influencing approval of the loan. A financial statement was not necessary, as a current one already was on file with the bank. And, Kramer, as the bank’s president, had unrestricted authority to make loans up to the bank’s maximum lending limit. Under these circumstances a false financial statement could serve no useful or influential purpose. Kramer and the person approving the loan would be one and the same. The government, however, argues that the statement served to influence the bank’s board of directors. We cannot agree. The evidence discloses that the board members did not review, and were not directly authorized to review, the financial statement. They approved the Fuller loan based on their faith in Kramer and his assertions about the loan. More important, however, is the fact that the loan was made and its proceeds placed in the bank’s stock escrow account on August 23, 1971. It already had been obtained by the time the board of directors could vote on it. Their subsequent approval of the loan appears to have been little more than a mere formality. Our decision that the evidence was insufficient to sustain a conviction renders consideration of Kramer’s remaining issues unnecessary. The judgment of conviction appealed from is reversed and the case is remanded with directions to dismiss the indictment. . 18 U.S.O. § 1014 provides, in part: “Whoever knowingly makes any false statement ... for the purpose of influencing in any way the action of . . . any bank the deposits of which are insured by the Federal Deposit Insurance Corporation . . . upon any application ... or loan . . . shall be fined not more than $5,000 or imprisoned not more than two years, or both.” . 18 U.S.C. § 2 provides, in part: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” . We do not recount all the facts. Kramer was also charged with making a false entry and willful misapplication of loan proceeds, in violation of 18 U.S.C. §§ 2, 656 and 1005. These charges were dismissed at the conclusion of the government’s case, on motion by Kramer, and facts relating to these charges are irrelevant to this appeal. . The bank’s deposits were insured by the Federal Deposit Insurance Corporation. . Fuller had filed four previous financial statements with the bank, one of which was dated December 10, 1970. It listed his total assets as $6,033.23 and his net worth as $1,797.23.

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 18. 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 18? Answer with a number.

George WASHINGTON and Edward P. Barnes, Sr., Individually and as Class Representatives, et al.; Cynthia Knight, Margie Andrews and Pamela Tobler, Individually and as Class Representatives, et al.; Donald Davis (Plaintiff in Intervention) Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Appellee. No. 91-8242. United States Court of Appeals, Eleventh Circuit. May 8, 1992. Charles A. Mathis, Jr., Mathis, Sands, Jordan & Adams, P.C., Brian G. Combs, Milledgeville, Ga., Steve Ralston, NAACP Legal Defense Fund, New York City, for plaintiffs-appellants. Frank C. Jones, William A. Clineburg, Jr., Richard A. Schneider, L. Joseph Love-land, King & Spalding, Atlanta, Ga., Buckner F. Melton, Joseph M. Popper, Jr., Sell & Melton, Macon, Ga., Louisa Hall, L. Elizabeth Foley, Brown & Williamson Tobacco Corp., Louisville, Ky., for defendant-appel-lee. Before KRAVITCH and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge. EDMONDSON, Circuit Judge: Named plaintiffs in a proposed class action appeal the district court’s denial of class certification, restrictions on classwide discovery, and ultimate decision on the merits of their individual claims. FACTS Plaintiffs George Washington and Edward Barnes started this proposed class action in June 1980 against Brown & Williamson Tobacco Corporation (“B & W”) alleging race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1981. Their complaint specifically targeted B & W’s cigarette-manufacturing plant in Macon, Georgia. Washington claimed he had been improperly disciplined and discharged because of his race and in retaliation for filing Equal Employment Opportunity Commission (“EEOC”) charges. Barnes raised similar allegations. Two other plaintiffs, Cynthia Knight and Pamela Tobler, joined the action through an amended complaint filed in July 1980. Knight charged that B & W discriminato-rily denied her training and initially failed to reimburse her for a college course at a local university. She also alleged racial discrimination in her annual performance appraisals and denial of promotion. Tobler claimed she was unfairly discharged for leaving the plant without her supervisor’s permission. Donald Davis, an unsuccessful applicant for employment, intervened in 1983 to become the fifth named plaintiff. In addition to their individual discrimination claims, the named plaintiffs sought to represent “all black persons currently or formerly employed at B & W’s Macon plant, as well as black unsuccessful past applicants and black future applicants for employment at B & W’s Macon plant.” Plaintiffs’ July 22, 1980 Amended Complaint, Paragraph 6. The complaint alleged racial discrimination in recruiting, hiring, job assignments, training, evaluations, promotions, transfers, discipline, retaliation— basically every employment decision the company made. Plaintiffs’ “Memo of Law in Support of Motion to Certify Class” of February 27, 1981, confirmed the group’s goal of asserting an “across-the-board” attack on B & W’s employment practices and asserting a class defined by race. After a March 1981 discovery conference, the district court limited discovery to the class-certification issue, postponing discovery on the merits. Over the next three years, plaintiffs requested and defendants generated much information about B & W’s employment practices. During this period, plaintiffs made no attempt to certify the class. In early 1984, when plaintiffs submitted requests B & W believed went beyond the scope of discovery appropriate on the certification issue, B & W moved to reconvene the discovery conference; and plaintiffs filed a motion to compel discovery. The district court conducted an evidentia-ry hearing in September 1984, to determine whether plaintiffs could show a sufficient possibility of class certification to warrant discovery on the merits of the class claims. After hearing testimony from the five named plaintiffs and a statistical expert, the court concluded plaintiffs lacked “the requisite nexus with the proposed class members.” Believing the requested discovery was irrelevant to class certification, the court denied plaintiffs’ motion to compel and continued to limit discovery to the class certification issue. Plaintiffs moved for reconsideration of the discovery order several months later; the motion was denied. In the alternative, plaintiffs asked that the court decide the class-certification issue on the existing record with no trial or, if certification were denied, to rule on the individual claims on the existing record with no trial. The district court refused, upholding its earlier discovery ruling and formally denying class certification. The court then directed the parties to complete discovery on the individual claims within 90 days. At the ensuing non-jury trial, none of the plaintiffs testified, choosing instead to rest on the existing record. After the trial, the court decided that statistical evidence and evidence of pattern discrimination might be relevant in deciding the individual claims of race discrimination and therefore ordered B & W to produce payroll computer tapes for plaintiffs’ expert to review. Both parties submitted expert commentary on the tapes. The district court rendered a final decision in 1991, see, Washington v. Brown & Williamson Tobacco Corp., 756 F.Supp. 1547 (M.D.Ga.1991), denying plaintiffs’ individual claims and specifically finding that (1) Washington’s termination was due to his inability to supervise his employees properly; (2) Barnes’ discipline was the result of poor performance; (3) Knight’s poor ratings were related to the poor performance of her subordinates; (4) Tobler’s discharge was due to a continuing attendance problem and, more specifically, to her failure to notify her supervisor that she was leaving the plant on one particular occasion; and (5) Davis was simply unqualified for the highly technical position for which he applied. All five plaintiffs now appeal. DISCUSSION Class Certification The district court has broad discretion in determining whether to certify a class. Coon v. Georgia Pacific Co., 829 F.2d 1568, 1566 (11th Cir.1987). Federal Rule of Civil Procedure 23(a) lists the prerequisites to a class action: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class [commonality], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality], and (4) the representative parties will fairly and adequately protect the interests of the class.” When this suit was originally filed, the Fifth Circuit permitted across-the-board class actions, in which commonality or typicality requirements were presumed to be met when an employment discrimination victim representing a class based on race or sex attacked all of the employer’s unequal employment practices committed pursuant to a policy of racial or sexual discrimination. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969) (racial discrimination). So, it was unsurprising that plaintiffs with highly individual claims, like plaintiffs Washington, Barnes, Knight, and Tobler, would seek to represent all blacks that had ever had contact with B & W in an employment context and try to attack nearly every employment decision the company made. But two years into this litigation, the Supreme Court ended the practice of across-the-board class actions in General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Although the Court recognized that "racial discrimination is by definition class discrimination,” id. at 157, 102 S.Ct. at 2370, the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. Id. Instead, each of the Rule 23(a) requirements must be demonstrated independently of the fact that the members of the proposed plaintiff class were all of the same race, sex, or national origin. See Coon, 829 F.2d at 1567 (plaintiff precluded from representing all past, present and potential women employees in all facets of employment); Griffin v. Dugger, 823 F.2d 1476, 1489 (11th Cir.1987) (blacks), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (1988); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1558 (11th Cir.1986) (women). Falcon allows for the certification of race-based or sex-based classes if the class challenges specific employment practices. See, e.g., Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. at 2371 n. 15 (both applicants and incumbents could challenge test if both required to take it and both potentially prejudiced by test); Cox, 784 F.2d at 1558 (limiting certification to class of women with claims of sexual discrimination in compensation, promotion and training); Giles v. Ireland, 742 F.2d 1366, 1371 (11th Cir.1984) (class limited to blacks in specific work group claiming unequal pay and denial of promotions); see also Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir.1983) (attack on discrimination in assignment, pay, promotion and termination constitutes an attack on employer’s “channelling” practices (isolation of minority in lower levels with little opportunity for advancement)). But certification in these cases is unlike what plaintiffs seek here: certification of a class challenging every employer practice with respect to that class. The five named plaintiffs have five different disparate treatment claims; the only thing they have in common with the class they seek to represent-or each other-is race. Without specific questions of law or fact common to plaintiffs and the members of the class they seek to represent, the district court cannot presume plaintiffs’ claims are typical of other claims against B & W by black employees and applicants. Because Falcon and its progeny preclude the kind of across-the-board class actions plaintiffs attempted in this case, we affirm the district court’s denial of class certification. Discovery The standard of review for discovery issues is whether the district court abused its discretion. Langston v. ACT, 890 F.2d 380, 388 (11th Cir.1989). Plaintiffs argue they were unfairly prevented from proving their class claims because the district court failed to allow them “virtually any classwide discovery” before denying class certification. The scope of discovery in Title VII cases is not without limits. The information sought must be relevant and not overly burdensome to the responding party. Trevino v. Celanese Corp., 701 F.2d 397, 406 (5th Cir.1983) (quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975)). Discovery should be tailored to the issues involved in the particular case. Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 55 (D.N.J.1985). In the class action context, one of the first issues confronting the court is class certification. See Fed.R.Civ.P. 23(c)(1) (“As soon as practicable after the commencement of the action brought as a class action, the court shall determine by order whether it is to be so maintained”). To make early class determination practicable and to best serve the ends of fairness and efficiency, courts may allow classwide discovery on the certification issue and postpone classwide discovery on the merits. See Stewart v. Winter, 669 F.2d 328, 331 (5th Cir.1982). In Stewart, prison inmates sought class certification to challenge confinement conditions in county jails. The court denied a discovery request for documents about all facets of life in 82 county jails in Mississippi, noting that, although the information might have been relevant to the merits of the case, little of it was “necessary or helpful” to the class-certification issue. Id. at 332. Like the plaintiffs in Stewart, plaintiffs in this case requested much discovery that was irrelevant to the class-certification issue. In addition, plaintiffs’ assertion that the district court failed to allow “virtually all classwide discovery” overlooks the extensive classwide information B & W provided over the course of discovery on the certification issue. When, after three years, plaintiffs were still unable to identify a class more specific than “all blacks,” the court correctly ended classwide discovery. The court allowed additional discovery on the individual claims and eventually ordered the company to release the computer tapes previously requested by the plaintiffs. We see no abuse of discretion in the district court’s discovery rulings. Merits of the Individual Claims The district court’s ruling on the merits of the individual claims is affirmed. Plaintiffs have not identified, nor do we view any of the court’s factual findings as clearly erroneous. See Butler v. Hamilton, 542 F.2d 835, 838 (10th Cir.1976) (appellants must point out specifically where findings of trial court are clearly erroneous). AFFIRMED. . Washington and Barnes had both filed charges of discrimination with the EEOC pursuant to Title VII on more than one occasion. Each time their charges were rejected by the EEOC. . Barnes was still employed by B & W when the complaint was filed. He alleged his discharge three years after the suit was filed was racially motivated as well. . Another employee of the Macon plant, Margie Andrews, joined at the same time but later voluntarily dismissed her claims. . Knight, Tobler and Davis never filed an EEOC charge; all relied on Washington and Barnes' EEOC filings to satisfy the plaintiff class’ Title VII requirement of exhausting administrative remedies before bringing suit. But as incumbent employees of B & W, Washington and Barnes lacked standing to object to the company’s hiring practices on behalf of Davis. So, the district court dismissed Davis’ Title VII claim. This ruling is not in dispute on appeal. . A transcript of the conference shows counsel for plaintiffs agreed to this approach. . The expert identified certain job classifications (which none of the five named plaintiffs held) in which blacks might be underrepresented. He claimed additional information was needed before he could conclusively state that a pattern of discrimination or individual discrimination existed. .Plaintiffs responded by filing a petition for a writ of mandamus and a writ of prohibition in this court; both were denied. . The requirements of commonality, typicality and adequacy of representation tend to merge. General Telephone Co. v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982). Commonality and typicality represent the "nexus” necessary between class representatives and class members. . Incumbent employees generally cannot represent a class containing unsuccessful applicants. Falcon, 457 U.S. at 158-59, 102 S.Ct. at 2371. Accord, Griffin v. Dugger, 823 F.2d 1476, 1483-84 (11th Cir.1987); Walker v. Jim Dandy Co., 747 F.2d 1360, 1364-65 (11th Cir.1984). Plaintiffs in this case sought to circumvent this problem by including Davis, an unsuccessful applicant. The attempt failed because Davis’ application was not a class-type claim: he interviewed for a technical job which required evaluation of each applicant’s personal skills. . That plaintiffs raise disparate treatment claims, while not dispositive, weighs against finding the commonality and typicality required by Rule 23. "Disparate impact cases typically involve readily identified, objectively applied employment practices such as testing procedures. The common reach of such practices is likely to be clearer and easier to establish than a general policy of race discrimination alleged to unite otherwise factually dissimilar disparate treatment claims.” Nelson v. United States Steel Corp., 709 F.2d 675, 679 n. 9 (11th Cir.1983). . Plaintiffs also complain that the court improperly considered the merits of the case in deciding to deny class certification. We disagree. "[A] district court holding a pre-trial certification hearing has no 'authority to conduct a preliminary inquiry into the merits of the suit,' ... [but] evidence relevant to the commonality requirement is often intertwined with the merits." Nelson, 709 F.2d at 679-80. See also Falcon, 457 U.S. at 160, 102 S.Ct. at 2372 (“Sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question”); Brooks v. Southern Bell Telephone & Telegraph Co., 133 F.R.D. 54, 56 (S.D.Fla.1990) (nature of individual claims directly relevant to determination of whether matters in controversy are mainly individual in character or are susceptible to proof in class action). .Most of the opinions plaintiffs cite in support of broad discovery involve discovery restrictions that were much more severe than the restrictions imposed in this case. See, e.g., Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir.1983) (amid charges of employment discrimination based upon national origin, lower court barred discovery of internal organization of management, identity of management, identifying characteristics of facilities, descriptions of documents or kinds of documents in company’s personnel recordkeeping system, identity of those initiating and reviewing such documents, and purging policies and procedures for internal personnel records); Williams v. City of Dothan, Ala., 745 F.2d 1406, 1415 (11th Cir.1984) (discovery inappropriately restricted to limited time when greater historical background necessary). Plaintiff also cites authority that predates Falcon. See, e.g., Burns v. Thiokol, 483 F.2d 300, 304-05 (5th Cir.1973). . Plaintiffs argue that they did not have “the number and names of persons, by race, who sought initial employment, promotion or transfer,” and "the impact, by race, of each step of each such process and the impact ... of the process as a whole.” Among other information, B & W provided the following: (1) a list of the plant’s departments and all job classifications for each year from 1975 through 1981; (2) a description of changes in the composition and structure of the plant's departments, as well as job positions that were added; (3) a list of any job or series of jobs that were held by white employees only or by black employees only; (4) the dates upon which B & W submitted “Employer Information Report EEO-l Forms”; (5) the EEO-l forms themselves; (6) the identity of the unions; (7) a 14-page chart showing the number of vacancies in each job title during the period from 1975 through 1981, displaying whether those vacancies were filled by hire, relocation, or promotion, subdivided by race; (8) a chart showing the job titles, employment dates, races, and names of all persons holding policy-making positions for the Macon plant; (9) a chart showing the same information with respect to decision-making positions; (10) a narrative description of tests administered since 1975 with respect to promoting or transferring incumbent employees; (11) a chart showing the number of persons who took certain of B & W’s tests who were not promoted or transferred; (12) a narrative description of the plant’s supervisory identification center for promoting persons to supervisory jobs, including charts showing the persons (and their race) that served as assessors and the names and races of persons who received a passing score at the center and were not promoted; (13) a narrative description of the qualifications for promotion of hourly and salaried employees; (14) a chart showing each job classification from 1975 through 1981, displaying the number of white and black incumbents in each year and the minimum salary for each job; (15) additional charts showing the minimum annual salaries for all job classifications at the plant covering the years 1981 through 1983; a narrative description of the manner in which vacancies were filled; and (16) a chart showing jobs filled between 1976 and 1981 through lateral transfer. . Plaintiffs claim the order releasing the tapes came too late because possession of these tapes at an earlier point in the litigation could have aided their attempt at class certification. Plaintiffs provide no explanation of how the tapes supported certification or why plaintiffs did not raise the certification issue again once they had the tapes. See Falcon, 457 U.S. at 160, 102 S.Ct. at 2372 (even after decision rendered on certification issue, judge remains free to modify it in light of later developments in litigation); Fed. R.Civ.P. 23(c)(1) (certification decision may be conditional and may be altered or amended before decision on merits).

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?

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LABOR SERVICES, INC., Respondent. No. 83-1207. United States Court of Appeals, First Circuit. Argued Sept. 8, 1983. Decided Nov. 7, 1983. John D. Burgoyne, Asst. Gen. Counsel, Washington, D.C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for petitioner. Robert P. Corcoran, Boston, Mass., with whom Stoneman, Chandler & Miller, Boston, Mass., was on brief, for respondent. Before COFFIN, Circuit Judge, FAIR-CHILD , Senior Circuit Judge, and BREYER, Circuit Judge. Of the Seventh Circuit, sitting by designation. COFFIN, Circuit Judge. This case presents the question whether the National Labor Relations Board permissibly found that a representation election resulting in a union victory was not tainted when a union representative supplied free alcoholic drinks to most of the electorate before, during, and after the election. The Regional Director overruled the employer’s objections to the election. The Board, by a 3-2 decision, without elaboration, adopted the Regional Director’s findings and recommendations that a certificate of representative should issue. The subsequent unfair labor practice charge of unlawful refusal to bargain, in violation of section 8(a)(5) and (1) of the National Labor Relations Act, was accordingly decided by summary judgment in favor of the union, and the company was ordered to bargain upon request. The Board now applies to us to enforce the order. The election was held between 5:00 p.m. and 7:00 p.m. at a Howard Johnson Motor Lodge in Pawtucket, Rhode Island. The total number of voters was 18. The final vote was 13 for the union and 5 against. Although there is another somewhat different version of what happened, the Regional Director — and the Board — accepted the following version given by the employer’s witnesses: “At about 4:15 p.m., [petitioner union’s] Business Manager Richard Stromberg and two other men entered the bar. At about 4:30 p.m., five or six other men entered the bar together. Stromberg greeted the men and told them that their drinks would go on his tab, that he would not allow the bartender to take their money. Stromberg instructed the bartender that the men’s drinks were on him. The five or six men stayed and drank, while Stromberg and the two men with whom he had entered left briefly and then returned. Shortly before 5:00 p.m., two or three of the group of five or six men finished their drinks and appeared to be leaving. At this time, Stromberg stated in a voice that could be heard throughout the bar that there was no hurry, that there were still a few minutes before they had to vote, and that there was time for another drink. Stromberg again reminded the men that all their drinks were to go on his tab. After a few more minutes, the five or six men left together, and as they did so, Stromberg said, ‘Don’t forget how to vote.’ A few minutes later, the same men came back into the bar and continued to drink on [Stromberg’s] tab. The original group of men was then gradually joined by other men entering the bar until, eventually, there were 12 to 15 men drinking in the bar on Strom-berg’s tab. Around 6:20 p.m., Employer’s President Robert Blanchette and the Employer’s attorney, Robert Corcoran, also entered the bar and spoke with [Paw-tucket police officers] Champagne and Randall.” The Regional Director, in concluding that the union business manager’s conduct did not warrant setting aside the election, relied on several subsidiary findings: (1) that there was no evidence of “advance inducement of the employees to come to the bar or to vote for the [union] in order to get a free drink”; (2) that there was no evidence of coercive statements; (3) that there was no evidence that any employees were inebriated; (4) that the value of the drinks was not “sufficient to interfere with the employees’ free choice”; and (5) that the incident occurred outside the polling area. We are well aware of the deference given the Board in exercising its discretion in connection with rulings concerning representation elections and the heavy burden on a party to show that this discretion has been abused. New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981); Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981). Nevertheless, having in mind the Board’s own oft-articulated objective “to establish in election proceedings conditions as nearly ideal as possible to determine the uninhibited desires of the employees”, Rattan Art Gallery Ltd., 260 N.L.R.B. No. 18, 109 LRRM 1149, 1150 (1982) (citing General Shoe Corp., 77 N.L.R.B. 124, 127 (1948)), the extent to which its prior decisions fall short of encompassing the facts in this case, the absence of any rational guidance in the five factors relied upon by the Regional Director, and the grave policy implications for future elections, we reluctantly decline to enforce the order. To begin with the last of these considerations, we think it helpful to focus a sharp if harsh light on the policy implication of the Board’s ruling. The precise holding is that a union may station a well-funded representative in a bar within a brief walk of a polling place where he may with impunity open the bar to unlimited free drinks to all voters before, during, and after the election, may in fact pay for drinks served to at least two-thirds of the electorate, and may accompany this generosity both by pressing the invitation to drink more and by reminding the electorate not to “forget how to vote”. A corollary of this ruling, not mentioned by the Regional Director or the Board, is that an employer may also station its perhaps better funded representative in a bar and offer even the higher priced brands of alcoholic beverage on the same terms to the electorate. Board counsel at oral argument acknowledged the reciprocal application of this ruling. The prospect of such a bibulous competition between union and employer hosts near and during polling seems to us an atavistic return to turn-of-the-century pursuit of votes through the discriminating distribution of alcohol. The observations of the Regional Director, which the Board deemed satisfactory limitations justifying the ruling in this case, do not in our view withstand analysis. First, the absence of “advance inducement” and coercive statements cannot realistically make a difference. Even assuming that the union business manager did not advertise in advance his presence in the bar, he managed to buy drinks for 12 to 15 voters in the electorate of 18 voters. It is the effect of the union business manager’s activities, not his or the union’s motives, that disturbs us here. See Cross Baking Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir.1971). The receipt of unlimited free drinks during an election accompanied by the reminder not to forget how to vote can hardly be justified simply because a previous bargain has not been spelled out. And the absence of coercive statements is immaterial in a case such as this one where a campaigning party’s tactics take the form of friendly cajolery rather than ugly intimidation. Second, the absence of evidence of inebriation offers no better basis for drawing a line. If it were thought to offer such, breathalyzers and similar apparatus would be standard gear for representation elections. Here the presence of alcohol is more than minimal; the union bought drinks for at least two-thirds of the electorate during a two-hour period. The salient point is, to use the standard endorsed by the Board in, among many cases, Weyerhaeuser Co., 247 N.L.R.B. 978, 978 n. 2 (1980), that “the conduct reasonably tends to interfere with the employees’ freedom of choice in the election.. .. ” Inebriation is not the only form of interference; induced fellowship is another. One is reminded of scenes from Edwin O’Connor’s The Last Hurrah (1956), such as that where a veteran politician muses on the efficacy of his ward club’s annual Spring Dance: “One got people together dancing and singing and eating and drinking, and sometimes, drugged by good spirits and the temporary feeling of fellowship, they said things and did things and agreed to things which, under more normal circumstances, they would have considered mad. It was politically very valuable.” Id. at 84. Third, the similar point that the value of the drinks was insufficient is not more persuasive. The monetary value may well have been considerable; how much of the union representative’s “heavy roll of bills” was disbursed does not appear. More to the point, the reality and appearance of the impropriety of buying drinks for voters is not triggered by a specific figure. State statutes proscribing gifts of liquor to voters do not make such distinctions. Nor do Board precedents. The cases cited to us by the Board which find payments unobjectionable all involve, as indeed it characterizes them, cases where “money or gifts are given in return for a service rendered, or are in furtherance of the election process, and their receipt is not contingent upon the voters’ support in the election.” Even if the giving of drinks was not explicitly contingent on the support of the voter, we see no suggestion of any service rendered or any assistance given to the election process. Finally, the fact that the incident occurred outside the polling area is descriptive, not exculpatory. By definition the provision of drinks at a bar near but not at the polling place does not occur inside the polling area. We know that an inevitable tension exists between the necessity of appraising an election “realistically and practically, ... and not .. . against theoretically ideal, but nevertheless artificial standards”, The Liberal Market, Inc., 108 N.L.R.B. 1481, 1482 (1954), and the aspiration voiced in Milchem, Inc., 170 N.L.R.B. 362 (1968): “The final minutes before an employee casts his vote should be his own, as free from interference as possible.” In Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118 (1982), enf’d, 703 F.2d 876 (5th Cir.1983), pamphleteering was permitted outside glass-paneled doors which were only ten feet from the polling place. But the effects of the strident voice and the crumpled flyer quickly dissipate when the doors are closed; the physical and psychological effects of rounds of convivial drinks just consumed in an adjacent bar enter the polling area. We have examined all the precedents relied on by the Board and find none concerning the furnishing of free liquor during an election. In Movsovitz & Son, Inc., 194 N.L.R.B. 444 (1971), one witness, in other matters discredited, had said that a union representative had promised, well before an election, to buy employees beer and wine after the union won. The Board properly held that in any event such a promise could not reasonably be expected to have influenced the employees’ free choice. Two years earlier, in Jacqueline Cochran, Inc., 177 N.L.R.B. 837 (1969), the gift by a union of a free turkey to each employee to attend a union campaign meeting, where no election had yet been scheduled, and a union-sponsored Christmas party were held not to be objectionable. Neither case can be considered remotely analogous. The closest precedent is Lach-Simkins Dental Laboratories, Inc., 186 N.L.R.B. 671 (1970), where, in a 2 to 1 decision, the Board upheld the Regional Director, who had overruled objections to an election where the union provided a free lunch of sandwiches and soft drinks at midday in a basement before and during the election, which was conducted in a room at the top of a 26 foot high stairway. Some 15 to 20 of 44 voters partook. The Board relied on the facts that the luncheon was not held so close to the polling area and the value of sandwiches and soft drinks were not so large as to interfere with the election. To rely on such a case, without discussion or analysis, as governing the instant case, in short to equate the likely effects of a tuna on rye and Pepsi with a double scotch, leaves us unpersuaded. The considerations urged on us by Board counsel do not withstand analysis or reflect any special expertise. We think the case at bar is different in kind from all other cases, is fraught with serious implications, and demands some helpful guidance for both unions and employers. We therefore decline to enforce the Board’s order. This specific outcome should not be read to detract from the general principle of judicial deference to Board discretion in the supervision of the NLRA election process. At the same time we acknowledge that, as the dissenting Board members pointed out, there seem to be substantial and material questions of fact created by non-employer witnesses which warrant resolution by a hearing. That is, the version of the facts relating to the offer and provision of drinks which the Regional Director, the Board, and we have accepted for the purpose of decision may be subject to significant change. We therefore remand this case to the Board for further proceedings. Costs awarded to respondent. . Officers Champagne and Randall were present in the bar on an unrelated assignment throughout these events. The employer Labor Services, Inc. provided the testimony of both officers to the Regional Director in support of the employer’s objections. Not quoted by the Regional Director but included in the testimony assumed as controlling was this additional statement: “At 6:00 p.m. the bartenders changed shifts. The male bartender going off duty went to settle up with Stromberg and Stromberg took out a heavy roll of bills and paid the tab. Stromberg then started a new tab with the female bartender who came on duty and made sure she understood that all of the men were drinking on him.” . Respondent has pointed out that many states have enacted statutes proscribing the sale or gift of alcoholic beverages while the polls are open as well as laws specifically barring gifts of liquor, however small, to influence voters. . That such a scenario is not the product of our imagination is illustrated by the following argument in the Board’s brief: “[T]he Company never offered any evidence to the Board concerning the voters’ actual state at the time they cast their ballots, the amount they had to drink, or even what they were drinking.” . See, e.g., NLRB v. Klingler Elec. Corp., 656 F.2d 76 (5th Cir.1981) (union reimbursement of day’s wages for requested attendance at Board hearing); NLRB v. Gulf States Canners, Inc., 634 F.2d 215 (5th Cir.1981) (union payment for gasoline to transport workers to union meetings); Heavenly Valley Ski Area v. NLRB, 552 F.2d 269 (9th Cir.1977) (reasonable union reimbursements to election observers). . See, e.g., NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973) (impermissible to give pre-election waiver of $10.00 maximum initiation fee); Collins & Aikman Corp. v. NLRB, 383 F.2d 722 (4th Cir.1967); Easco Tools, Inc., 248 N.L.R.B. 700 (1980) (impermissible to pay election observers significantly more than lost wages); General Cable Corp., 170 N.L.R.B. 1682 (1968) (impermissible for union to give $5.00 gift certificate to voters); Performance Measurements Co., Inc., 148 N.L.R.B. 1657 (1964) (impermissible for employer to promise $6.00 shoe allowance). . Not relied on below by the Board but cited in its brief are Peachtree City Warehouse, Inc., 158 N.L.R.B. 1031 (1966); Lloyd A. Fry Roofing Co., 123 N.L.R.B. 86 (1959); Ra-Rich Mfg. Co., 120 N.L.R.B. 1444 (1958); The Zeller Corp., 115 N.L.R.B. 762 (1956). All of these cases involve the serving of drinks or dinner as part of preelection activities. The two additional cases cited in the dissenting opinion, Albion Malleable Iron Co., 104 N.L.R.B. 225, 226-27 (1953); Cooper’s Inc., 94 N.L.R.B. 1554, 1556 (1951), also involved drink-buying prior to, but not during, a representation election.

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?

TRUCK INSURANCE EXCHANGE, an Interinsurance Exchange, a Corporation, Appellant, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellee. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant, v. TRUCK INSURANCE EXCHANGE, an Interinsurance Exchange, a Corporation, Appellee. No. 19137. United States Court of Appeals Ninth Circuit. Nov. 13, 1964. Clifford Mitchell, Mitchell & Henderson, Eureka, Cal., for appellant-cross appellee American Sur. Co. of N. Y. Gerald P. Martin, Richard G. Logan, Clark, Heafey & Martin, Oakland, Cal., for appellee-cross appellant Truck Ins. Exchange. Before BASTIAN, sitting by designation, MERRILL and DUNIWAY, Circuit Judges. MERRILL, Circuit Judge. The parties to this diversity action are insurers of persons whom a California state court has adjudged liable for damages in wrongful death resulting from their negligent conduct. The issue here is as to the apportionment of the California court judgment between the insurers. Defense of the state action was tendered to Truck Insurance Exchange and was refused. Defense was then undertaken by American Surety Company. Judgment in the sum of $73,561.56 was paid by American which then brought this action to secure a declaration of the proper apportionment between the insurers. The accident occurred when a logging trailer owned by one Dixon was being unloaded on premises of the J & W Lumber Company in Orrick, California. During the course of unloading a log fell from the trailer, killing Dixon. The action was brought against J & W Lumber Company and one Wescott, its employee, who had been assisting Dixon in the unloading operation. The complaint charged Wescott with negligence in the unloading of the trailer. It charged J & W with negligence in the maintenance and operation of the log landing and also stated a cause of action against the company for Wescott’s negligence on the theory of respondeat superior. The jury brought in a general verdict against both defendants. At the time of the accident a liability policy issued by American Surety Company was in effect, insuring J & W with a limit of $200,000 for injuries to one person. It did not cover J & W for the acts of its employees. At that time a liability policy issued by Truck Insurance Exchange was in effect, issued to Dixon covering the logging truck and trailer which were in use at the time of his accident, with a limit of $100,000 for injuries to one person. The policy did not by its terms extend coverage to non-owners using the truck and trailer with the owner’s permission. Section 16451 of the California Vehicle Code, however, provides such extended coverage by operation of law as to loss arising out of such use. Section 875 of the California Code of Civil Procedure provides for equal contribution between joint tortfeasors against whom judgment has been rendered. The District Court concluded that Wescott was insured by Truck Insurance Exchange as a user of the trailer under the extended coverage provided by California Vehicle Code § 16451; that J & W was insured by both companies: by American under the policy issued by that company and, as a user of the trailer, by Truck Insurance. The Court adjudged Truck Insurance liable for Wescott’s half of the judgment and that J & W’s half should be apportioned between the two companies on the basis of their policy limits, one third to Truck Insurance and two thirds to American, and that American was entitled to contribution from Truck Insurance on this basis. The judgment against Truck Insurance included interest from the date American satisfied Dixon’s claim in the wrongful death action until the entry of the judgment below. The sum upon which interest was due consisted of Truck Insurance’s pro rata share of the judgment in Dixon’s suit and the costs of the defense conducted by American. Both companies have appealed from that judgment. Appeal of Truck Insurance Exchange 1. Appellant contends that since its liability arises by operation of law, due to the requirements of § 16451 of the California Vehicle Code, and that since that section only requires coverage to the extent of $10,000, its liability should be limited to that amount. California law, as evidenced by Globe Indemnity Co. v. Universal Underwriters Ins. Co., 201 Cal.App.2d 9, 20 Cal. Rptr. 73 (Dist.Ct.App.1962), is to the contrary. 2. Appellant contends that § 875 of the California Code of Civil Procedure should not apply in an action between insurance companies to secure proration of their liability for the same loss; that the apportionment in such cases should be on the basis of the respective policy limits. Section 875, however, implicitly recog. nizes that the loss suffered by one joint tortfeasor is not the “same loss” as that suffered by another, in the sense in which appellant uses that term. Section 875 (e) provides: “A liability insurer who by payment has discharged the liability of a tortfeasor judgment debtor shall be subrogated to his right of contribution.” 3. Appellant contends that even if § 875 did give American Surety a right of contribution the two insurers should have shared the loss equally. In this we agree with appellant. Section 876 of the California Code of Civil Procedure deals with the manner in which the responsibility of joint tortfeasors as between themselves and their liability to contribution shall be ascertained. It provides: “(a)' The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them. “(b) Where one or more persons are held liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant, they shall contribute a single pro rata share, as to which there may be indemnity between them.” This section was apparently designed to prevent the doctrine of respondeat superior from creating another share of the liability which would ultimately have to be borne by the employee, or his insurer. In this case appellant’s responsibility for J & W’s loss was due solely to the fact that the company was a user of the trailer, and was limited to loss arising out of that use. The only company use was that of its employee, Wescott. Any loss arising out of that use resulted from Wescott’s negligence. J & W’s liability arising out of that use was, therefore, solely through respondeat superior — liability as master for the tort of its servant — for which it was entitled to indemnity from Wescott. Under § 876 the share of the judgment for wrongful death attributable to Wescott’s tort, whether borne by Wescott alone or with J & W joining in liability on the basis of respondeat superior, is one half of the judgment and no more. Judgment should therefore be modified to provide for equal apportionment, with American bearing J & W’s loss in its entirety and Truck Insurance bearing Wescott’s. 4. Appellant contends that the District Court erred in awarding interest from the date when American Surety satisfied judgment in the state action. From the principles enunciated in Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 17 Cal.Rptr. 12, 366 P.2d 455 (1961) (en banc), we conclude that such allowance was proper under California law in the light of appellant’s refusal to accept defense of the state action. Appeal of American Surety Company American simply asserts that there was in the state action no evidence that J & W was independently negligent and that the only basis for the jury verdict against that company could have been on the ground of respondeat superior; that Truck Insurance under these circumstances should be held primary insurer. The jury verdict was general and from such a verdict a presumption arises that the jury has found negligence on all material issues. Thomson v. Casaudoumecq, 205 Cal.App.2d 549, 23 Cal. Rptr. 189 (Dist.Ct.App.1962). Even assuming that American could go behind the jury verdict and show that there was no evidence of independent negligence, it has not done so. We must therefore presume that the jury in the state action properly found J & W guilty of independent acts of negligence. Judgment of the District Court against Truck Insurance Company is ordered reduced to provide for equal apportionment between the parties of the state court judgment for wrongful death plus costs, with interest as provided in the judgment of the District Court. As so modified, the judgment is affirmed. No costs are awarded 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 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?

DOMENECH v. PAN AMERICAN STANDARD BRANDS, Inc. No. 4037. Circuit Court of Appeals, First Circuit. March 2, 1945. Benicio F. Sanchez Castaño, and Otero Suro & Otero Suro, all of San Juan, Puerto Rico, on the brief, for appellant. Ryder Patten, of San Juan, Puerto Rico (James R. Beverleyj of San Juan, Puerto Rico, of counsel), for appellee. Before MAHONEY and WOODBURY, Circuit Judges, and SWEENEY, District Judge. MAHONEY, Circuit Judge. This action was brought by the plaintiff to recover unpaid overtime compensation, liquidated damages, costs and reasonable attorney’s fees under the provisions of § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. §§ 201-219. The case was heard by the court without a jury. At the close of the plaintiff’s evidence the defendant moved for a dismissal on the ground that the testimony failed to show that the activities of the plaintiff were within the coverage of the Act. The motion was granted, and from the entry of the judgment of the District Court the plaintiff has taken this appeal. From the answers made to the interrogatories propounded by the plaintiff the following appears: The defendant, Pan American Standard Brands, Inc., is a Delaware corporation with its principal office in New York. It is a selling corporation for Standard Brands, Inc., with branches in San Juan, Puerto Rico, and other places. It is engaged in the distribution and sale of yeast, baking powder, desserts, tea and all kinds of products for bread making, all of which products are manufactured or processed by Standard Brands, Inc. The defendant ships products to Puerto Rico as they are ordered. The San Juan branch determines its needs each week by checking the records of sales against inventories and then forwards its orders to the New York office. During the period in question it ordered and received six to eight shipments a month, averaging in value from $14,500 to $15,000 a month. Upon arrival in Puerto Rico the merchandise is 'stored in the defendant’s local warehouses. The defendant took no special orders and shipped no merchandise to Puerto Rico intended for a particular customer. Sales from the San Juan branch during the same period came to approximately $20,000 a month. The defendant does not know in advance the regular needs of its customers • for the reason that all sales are made directly from the defendant’s local warehouses. While working for the defendant the plaintiff, Domenech, drove a panel delivery truck which though owned by the defendant was driven exclusively by the plaintiff. In this truck he traveled a prescribed route selling the products of the company to local customers. From the testimony it appears that Domenech started work daily between five and six A.M. by going to the office, checking out the merchandise he expected to sell that day, loading it on his truck, and starting off on his route. It was his practise to carry a little more merchandise than he expected to sell on a particular day. His customers were mostly bakers, and he visited them daily. Their purchases varied little from day to day. Domenech was known among his customers as an employee of “the Fleishmann Company”. He sold “Fleishmann’s yeast”, a brand name for products of the defendant, and it appears that a salesman for “Budweiser yeast” visited some of the same customers. Domenech finished work between five and six P.M. by turning in his collections and unsold merchandise. Part of his job was to make new customers, and it is clear that he himself determined what quantities of merchandise the customers might take on a particular day and that although the defendant required him to visit his regular customers daily it did not tell him what quantities to deliver each day. The trial court found that from the end of October, 1938, through September, 1942, the plaintiff’s salary was raised from $95 a month to $110 a month and that this salary increase was based on the fact that he had been able to increase sales in his territory; that the defendant did not take “special orders”; that all shipments when stored in warehouses were mingled with other similar merchandise and became part of the general mass of property in Puerto Rico; and that the plaintiff had nothing to do with any of the products of the defendant until after they were stored in the warehouses. From the evidence and findings of fact the District Court concluded that the plaintiff was not engaged in commerce or the production of goods for commerce and that his work was that of an outside salesman and therefore exempt from the provisions of §§ 6 and 7 of the Act. Before this court the appellant makes two contentions: first, that the appellant and the defendant employer were both engaged “in commerce” within the meaning of the Fair Labor Standards Act; and second, that the appellant’s work for the defendant was not that of an “outside salesman” and therefore exempt from coverage under § 13(a) (1). The general test of coverage is the relation of the employee to interstate commerce or the production of goods for such commerce and not the nature of the employer’s business. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S,Ct. 337, 87 L.Ed. 468. We are not concerned with production of goods for commerce here. To be “in commerce” the employee’s activities must be “so closely related to the movement of the commerce as to be a part of it”. McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538. If the defendant in -this action were an independent wholesaler there would be no doubt but that the activities of the plaintiff would fall outside the coverage of the Act as not touching interstate shipments. Walling v. Jacksonville Paper Co., supra; Higgins v. Carr Bros. Co., supra. In the Jacksonville case, however, the Supreme Court in defining “in commerce” adopted a test somewhat beyond the implications of the “state of rest” doctrine which holds that the interstate journey ends when the goods come to rest in the wholesaler’s warehouse and are intermingled with the mass of property there, and the “prior order” doctrine used to extend coverage past the warehouse point when goods are imported to meet specific orders placed with the wholesaler by his customers. In expanding coverage to include goods ordered pursuant to a preexisting contract or understanding the court analogized these transactions to special orders and held that a break in the continuity of transit at a warehouse is not controlling if there is “a practical continuity of movement” [317 U.S. 572, 63 S.Ct. 336] from the out-of-state manufacturer through the wholesaler’s warehouse to the customer. “The contract or understanding pursuant to which goods are ordered, like a special order, indicates where it was intended that the interstate movement should terminate.” In rejecting the contention that the Act applied where the wholesaler’s customers form a stable group whose orders are recurrent as to volume and kind so that their needs could be estimated with some precision the court left the door open to future inclusion finding on the facts before it that the requisite continuity of movement was lacking. So far as the first point raised here is concerned it is apparent that the decision of the District Court rested on the theory that the interstate journey ended at the warehouse and that the appellant’s handling of the merchandise after it had come to “rest” in the warehouse was a local activity which placed him beyond the coverage of the Act. The appellant, on the other hand, relies, upon the theory that his work was the final step in getting the products of Pan American Standard Brands, Inc., to its customers. That is, he contends that he was engaged in delivering merchandise to certain pre-established customers who happened to be bakers and whom he visited daily on a fixed route assigned by his employer. Pan American Standard Brands, Inc., is -a Delaware corporation “selling” from its New York office; the San Juan branch is not an independent wholesaler that acquired separate title to the merchandise it handled; and some of this merchandise is perishable and must be stored in refrigeration and be distributed daily. It is with this in mind that the appellant urges the proposition that delivery to a distributing agency does not end the interstate movement and cites DeLoach v. Crowley’s, Inc., 5 Cir., 1942, 128 F.2d 378, 379. That court held that if the employer was a “mere distributing agency” of an extra-state supplier “its customers are the customers of its principal, and so is its business of local distribution. Transmission of the goods from New York to the customers would not be broken by their receipt and handling by the distributing agency. Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308.” See the Jacksonville case, supra, 317 U.S. at page 568, 63 S.Ct. at page 335, 87 L.Ed. 460 where the court said, “a temporary pause in their transit does hot mean that they are no longer ‘in commerce’ within the meaning of the Act. As in the case of an agency (cf. De-Loach v. Crowley’s, Inc., 5 Cir., 128 F.2d 378) if the halt in the movement of goods is a convenient intermediate step in the process of getting them to their final destinations, they remain ‘in commerce’ until they reach those points.” We do not agree that the business of the defendant here comes within the rule of the DeLoach case, supra. The employer in that case was in business in Miami, Florida, and was a corporate subsidiary of Crowley’s Dairy Products of Binghamton, New York. The Miami business purchased milk and milk products from other states and sold them at wholesale to retail dairies within the state. Most of the goods were purchased from Crowley’s Dairy Products in five and ten gallon containers, intended to go unbroken to consumers. These products were delivered by the parent company to the defendant in trucks in Miami. There they were transferred to the defendant’s trucks “as quickly as possible” and delivered to local customers. To apply the DeLoach rule in the instant case we would have to take the position that the business transaction involved was between the principal in New York by his agent in Puerto Rico and the local customer. We do not go so far. The Jacksonville Paper case, supra, dealt with the situation of the independent wholesaler. There the course of business began with the independent wholesaler purchasing goods out-of-state for resale to local retail customers from whom the ultimate consumer made his purchases. A variant on this we encounter in the chain-store situa- ■ tion where goods are imported for distribution to the importer’s own retail outlets and not independent local retailers. In this type of situation the Circuit Courts of Appeals are in disagreement as to the coverage of the Act. In those cases finding a continuity of movement through the warehouse to the retail outlets it was evident in view of such finding that the outlets were the intended terminal points of the interstate journey in spite of the stopover at the warehouse. The present case involves a third type of situation. Here the extra-state manufacturer or supplier maintains a branch within the state (the territory of Puerto Rico here) from which goods are sold direct to the consumer through “salesmen”. The needs of the branch are determined on the ground by checking sales against inventories on the basis of which orders are then placed with the New York office. Goods are regularly shipped according to order to Puerto Rico where they are stored in a number of warehouses and intermingled with the general mass of goods on hand. It appears that the warehouse stock would be enough to carry on business for a month or more. Only in an ultimate sense can it be said that the New York supplier is shipping goods to Puerto Rico and selling them in local markets. The immediate pattern shows the branch determining its needs in accordance with local market considerations. In the absence of special orders or pre-existing contracts or understandings, the branch is dealing directly with the general trade through its “salesmen”. On the facts of this case we are of the opinion that there is a substantial break in the movement of the products involved here at the warehouse as to warrant dividing the commerce involved into its interstate and intrastate phases. As we view the case it seems clear that the intended terminal point of the interstate journey was the warehouse and not the consumer. Since we are of the opinion that interstate commerce does not extend past the warehouse point, and the appellant’s activities clearly fall on the other side of the line there drawn, it becomes unnecessary to consider his second contention that he is not outside the coverage of the Act as an “outside salesman”. The judgment of the District Court is affirmed with costs to the defendant, appellee. § 3(b) (c) and (j), 29 U.S.C.A. §§ 203(b) (c) and (j). §§ 13(a) (1) and 3(k), 29 U.S.C.A. § 213(a) (1) and § 203(k). For coverage under the Fair Labor Standards Act generally see 41 Michigan Law Review 1000. It may be conceded that yeast is a perishable product. The appellant distributed other products, however, which the court could have found were not of the same perishable nature. The case was tried on the pleadings. The District Court granted a motion to dismiss on the ground that the petition failed to show that the plaintiff fell within the coverage of the Act. The Circuit Court remanded the case with instructions to determine whether Crowley’s, Inc., was a mere distributing agency or a separate corporation doing its own business. In support of the appellant’s position see 31 Georgetown L.R. 462. See Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778, certiorari denied, 318 U.S. 757, 63 S.Ct. 528, 87 L.Ed. 1130; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; Allesandro v. C. F. Smith Co., 6 Cir., 136 F.2d 75; Walling v. Silver, 1 Cir., 136 F.2d 168; Walling v. L. Wiemann Co., 7 Cir., 138 F.2d 602, 150 A.L. R. 878, certiorari denied 321 U.S. 785, 64 S.Ct. 782; Walling v. Block, 9 Cir., 139 F.2d 268, certiorari denied 321 U.S. 788, 64 S.Ct. 787; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331; A. H. Phillips, Inc. v. Walling, 1 Cir., 144 F.2d 102.

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"?

George A. ANGLE, d/b/a Kansas Refined Helium Company, Appellant, v. Martin SACKS, Regional Director of the Seventeenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellee. No. 9415. United States Court of Appeals Tenth Circuit. Aug. 28, 1967. Marvin J. Martin, Wichita, Kan. (John B. Wooley, and W. Stanley Churchill, Wichita, Kan., on the brief), for appellant. Julius G. Serot, Asst. General Counsel, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marvin Roth, Atty., N. L. R. B., Washington, D. C., on the brief), for appellee. Before JONES , SETH and HICKEY, Circuit Judges. Of the Fifth Circuit, by designation. SETH, Circuit Judge. The appellant, doing business as the Kansas Refined Helium Company, appeals from a temporary injunction granted by the District Court pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). The chronology of events leading to the temporary injunction may be summarized as follows: In the summer of 1966, the appellant, hereinafter referred to as the employer, had approximately twenty production and maintenance employees at his liquid helium plant near Otis, Kansas. In June 1966, certain employees contacted a union representative, and a campaign to organize the employees was commenced. In early July 1966, the union petitioned the National Labor Relations Board for a representation election, and in August a hearing was held on the union’s petition. Also in the latter part of August, during separate interviews with two employees, the employer inquired regarding union activity, expressed his displeasure with the union, and indicated that union “malcontents” and “agitators” would be discharged. An election was ordered, but the Regional Director, appellee herein, found that “senior operators” in the plant were supervisors and were not eligible to vote. On September 2, 1966, the union sought review by the Board of the Regional Director’s ruling that the senior operators were supervisors. Thereafter, on September 13, the employer started private interviews with each employee. At the hearing on the petition for a temporary injunction pursuant to section 10(j) of the Act, the employer claimed that the private employee interviews were undertaken to identify the employees responsible for dissension in the plant. The existence of such dissension had been revealed in three anonymous letters received by the employer during the summer. The employer stated that the representation election, then scheduled for September 28, was “entirely trivial and secondary to the problem” of dissension and unrest in the plant. The testimony of former employees so interviewed indicates that the employer considered the union a “threat” to the helium plant; that he inquired whether the employees had signed union cards and how they planned to vote; that he would discharge any employee who was not “100 per cent” for the employer, and that “there wouldn’t be anyone left to vote for the union” and he would never bargain with the union “in three thousand years.” On September 20, the union and the employer received a telegram from the Board advising that the Regional Director’s ruling on the supervisory status of the senior operators was amended to permit the senior operators to vote in the forthcoming election, subject to challenge, because the supervisory issue could best be resolved by the challenge procedure. On the same day, September 20, six employees were discharged by the employer, while the remaining employees were given a wage increase. On the next day, September 21, the Regional Director informed the employer that the union had filed charges of unfair labor practices, and that the representation election scheduled for September 28 was postponed indefinitely because of the employer’s conduct. Thereafter, the Board issued a complaint against the employer, alleging violations of sections 8(a) (1) and (3) of the Act. On December 22, 1966, the Regional Director filed a petition for a temporary injunction pursuant to section 10 (j). An adversary hearing on appellee’s petition was held in January 1967, and the District Court ordered a temporary injunction on April 5, 1967. The District Court enjoined the employer from interfering with, restraining, or coercing employees in the exercise of rights guaranteed by section 7 of the Act. The court ordered the employer to reinstate the six employees discharged on September 20, pending a final determination of the issues by the Board, and ordered the employer to tender sufficient transportation costs to permit the six employees and their families to return to work. The court’s order does not require payment of backpay, nor did the Board seek backpay. The employer’s motion to stay the temporary injunction pending appeal was denied by the District Court on April 24, 1967. We are unable to determine from the record before us whether any of the six discharged employees has accepted reinstatement. The District Court determined that the “ * * * clearly foreseeable result of the interrogations, the discharges, and wage increases to the remaining employees was to destroy any employee interest in union representation. Reasonable cause to believe that unfair labor practices have been committed clearly exists.” Although the evidence was contradictory, the record contains substantial evidence to support the court’s finding that there existed a reasonable cause to believe that unfair labor practices had occurred, and we cannot say that the court’s finding is clearly erroneous, or an abuse of discretion occurred in granting the injunction. See Johnston v. J. P. Stevens & Co., 341 F.2d 891 (4th Cir.). A finding of such reasonable cause is an implicit prerequisite for relief under section 10(j). See McLeod v. Compressed Air, Etc. Workers, 292 F.2d 358 (2d Cir.); Note, 45 Texas L.Rev. 358, 360 n. 12 (1966), and cases cited therein. We have heretofore considered section 10(i) cases in Lawrence Typographical Union v. Sperry, 356 F.2d 58 (10th Cir.), and in United Brotherhood of Carpenters v. Sperry, 170 F.2d 863 (10th Cir.). The appellant argues that a petition for section 10(j) relief should be filed only in rare emergency situations, and that the Board abused its discretion by seeking section 10(j) relief in the case at bar because the circumstances did not disclose an emergency situation then existing or likely to exist before the issues in controversy could be decided by the Board. Appellant also asserts that the District Court granted relief on the sole basis of reasonable cause to believe that unfair labor practices had occurred, thus failing to establish additional standards or guidelines for granting relief under section 10(j). The statute provides only that the court may grant relief it deems “just and proper” upon filing of a petition by the Board and notice to the respondent. Appellant’s contention that the Board’s discretion in seeking section 10(j) relief should be limited to rare emergencies is derived from statements of the Board or its personnel shortly after section 10(j) was enacted in 1947. For example, in 1947, General Counsel Denham of the Board said: “I believe it was intended that that section [10(j)] should be used with almost the same restraint that applies to the use of the national emergency injunctions. In other words, the problem has to be a widespread one; it has to be one that has heavy and meaningful repercussions.” 24 LRRM 45. However, in view of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, which deprived federal courts of jurisdiction to issue injunctions in labor disputes, congressional restoration of jurisdiction to order temporary injunctive relief under section 10 (j) should be regarded by the courts as a legislative response designed to reach particular situations. See the 1962 remarks of Chairman McCulloch of the Board, cited in McLeod v. General Electric Co., 366 F.2d 847 (2d Cir.). Relief under section 10(j) may be sought against employers and unions alike. We find nothing in the legislative history of section 10(j) declaring or suggesting that the Board’s discretion in seeking section 10 (j) relief should be limited to those emergencies endangering the national welfare, or to situations with “heavy and meaningful repercussions,” or to situations that have a demonstrably prejudicial impact on the public. The concern of Congress was rather that the purposes of the National Labor Relations Act could be defeated in particular cases by the passage of time: “ * * * the relatively slow procedure of the Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and priyate collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices. * * * ****** “Experience * * * has demonstrated that * * * the Board has not been able in some instances to correct unfair labor practices until after substantial injury has been done. * * * Since the Board’s orders are not self-enforcing, it has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible to restore or preserve the status quo pending litigation. [Emphasis added]. “In subsection (j) * * * the Board is given additional authority to seek injunctive relief. * * * Thus the Board need not wait if the circumstances call for such relief, until it has held a hearing, issued its order, and petitioned for enforcement of its order.” S.Rep. No. 105, 80th Cong., 1st Sess. 8, 27 (1947). In our view, the foregoing excerpts indicate that Congress imposed no readily identifiable limitation on the Board’s discretion to seek temporary relief under section 10(j); the Board may seek relief if the “circumstances call for such relief.” We do think, however, that the legislative history indicates a standard in addition to the “probable cause” finding that must be satisfied before a district court grants relief. The circumstances of the case must,.demonstrate that there exists a probability that the purposes of the Act will be frustrated unless temporary relief is granted. Administration of the Act is vested by Congress in the Board, and when the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless, temporary relief may be granted under section 10(j). Preservation and restoration of the status quo are then appropriate considerations in granting temporary relief pending determination of the issues by the Board. See, e. g., Johnston v. J. P. Stevens & Co., 341 F.2d 891 (4th Cir.); McLeod, on Behalf of National Labor Relations Board v. Compressed Air, Etc. Workers, 292 F.2d 358 (2d Cir.); Rains v. East Tennessee Packing Co., 240 F.Supp. 770 (E.D. Tenn.); Johnston v. Evans, 223 F.Supp. 766 (E.D.N.C.). Prescribing standards or guidelines is helpful, but standards are given substance only as they are applied to the facts and circumstances of a particular case. We conclude that the circumstances of the case at bar were sufficient to raise a reasonable apprehension that the purposes of the Act could be defeated if temporary relief were not granted under section 10 (j). The District Court’s analysis of the circumstances, quoted hereafter, reveals that the court did not grant relief on the sole basis that there was reasonable cause to believe that unfair labor practices had occurred, as appellant suggests. The trial court said: “ * * * We think it is appropriate to enjoin any further acts of respondent [appellant] which are of the character reflected in the evidence before the court, for there is no assurance such tactics will not be renewed against other employees if a ‘threat’ of union success appears. ****** “It is clear that the acts described are such as operate predictably to destroy or severely inhibit employee interest in union representation, and activity toward that end. * * * [Appellant’s] approach misconceives the purpose of proceedings under Section 10(j), to grant such relief as may be necessary to preclude an employer from ultimately frustrating an enforceable order of the Board protecting employees’ rights, which may not issue until months have passed. ****** “* * * [A]ny order of the Board will be an empty formality if, when finally issued, respondent [appellant] has succeeded in destroying any employee interest or initiative in union representation and collective bargaining. It may be that he has already done so. He discharged nearly one-third of the approximately twenty employees at the plant, and has since nearly doubled the size of the staff. There may be no effective union spokesman at the plant, and no residue of the sentiments which gave rise to these difficulties. When the Board finally resolves the issues before it, the employees then at the plant may not wish to exercise the rights thus secured to them. If they do not wish to do so, however, it must not be due to the illegal and thus far successful tactics outlined herein. * * * Reinstatement of the illegally discharged employees is the best visible means of rectifying this.” [Emphasis added.] The record shows that the finding of the trial court that there existed reasonable cause to believe that an unfair labor practice had occurred was not clearly erroneous, and there was no abuse of discretion in granting temporary relief as the purposes of the Act could be defeated if some temporary relief were not granted. An injunction was thus a “just and proper remedy” under the Act. Injunctive relief is a drastic remedy under any circumstances, but it was here clearly called for under the statute. The District Court’s order granting temporary injunctive relief is broad as it enjoins and restrains the employer from interrogating and coercing his employees, or in any way interfering with the employees’ rights of self-organization and collective bargaining, as set forth in section 7 of the Act. We conclude that the scope of the court’s order is however appropriate for the circumstances of the case at bar. The court also ordered the employer to reinstate the six discharged employees and tender to them sufficient travel funds to return to work. The discharged employees were apparently the nucleus of the organizational campaign. Section 10(j) authorizes “temporary relief,” as well as an appropriate restraining order. Although the employer asserted that the six employees were discharged for improprieties and misconduct that would justify discharge regardless of their union activities, the District Court determined that the employees were discharged for union activity. This is however an issue which will be resolved in the proceedings before the Board and need not be decided here. Lawrence Typographical Union v. Sperry, 356 F. 2d 58 (10th Cir.). It is sufficient in these proceedings to determine whether the case meets the standards above referred to. We conclude that an order of reinstatement is a permissible exercise of the court’s jurisdiction under the circumstances of the case at bar, for reinstatement will as nearly as is now possible restore the conditions prevailing before the discharges and so- prevent a frustration of the ultimate administrative action. For the limited purpose of deciding whether reinstatement will serve to prevent a frustration of the Act, the court must examine the facts relative to the supervisory character of the employees’ work. Also in deciding whether reinstatement is a suitable remedy, the trial court must give due consideration to existing administrative determinations of the status of the employees. The record here shows that the appellee Regional Director had ruled that senior operators Arel Rodgers and Russell Sims were supervisors and not eligible to vote at the representation election. This is the last ruling on their status by the agency concerned. The Board however directed that these senior operators be allowed to vote subject to challenge and thereby changing the procedure, but not their determined status. Under these particular facts, we conclude that temporary reinstatement of Sims and Rodgers is not necessary to protect the efficacy of a final order by the Board regarding the status of senior operators or of any other order by the Board resolving issues pending before it. The court’s reinstatement order is thus modified to exclude Sims and Rodgers. It would appear that much of the problem presented to the trial court, and the difficulty caused by the mandatory, nature of the order arose from the delay by the Board in seeking the remedy. The more time that elapses between the time the incidents occur the less effective injunctive relief becomes, and it becomes increasingly difficult to show it to be a “just and proper” remedy. This could, of course, reach a point where relief should be denied on that ground alone. The District Court’s order requires the employer to tender sufficient travel funds to enable the discharged employees to return to work. The employer should however not be required to tender travel funds in the absence of some indication that the employees involved will in fact accept temporary reinstatement. Thus the appellant will be required to tender reasonable travel expenses only to those of the four former employees who indicate they will accept temporary reinstatement, and the District Court’s order is modified accordingly. We have considered additional issues raised by the appellant on appeal and find them without merit. The order of the District Court is affirmed as modified herein. . Section 10(j), 29 U.S.C. § 160(j) : “(j) The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition, any United States district court, * * * for appropri- ate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.”

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?

RICHARDSON CO. et al. v. RUBEROID CO. Circuit Court of Appeals, Second Circuit. January 7, 1929. No. 191. George Ramsey, of New York City (L. F. Dittenhoefer and Drury W. Cooper, both of New York City, of counsel), for appellant. Fish, Richardson & Neave, of Boston, Mass. (Harrison F. Lyman, of Boston, Mass., of counsel), for appellees. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge (after stating the facts as above). Comstock’s disclosure is clearly the nearest to the patent in suit, hut it is to be observed that it speaks of metal strips, and that it was concerned with single or twin shingles. Only in the passage quoted above is there any evidence of a purpose to use the shingles in continuous strips. Probably the intention was by those words to disclose such a strip, but it is clear that the patentee had not clearly considered tho difficulties involved in so extending his invention. If single metal shingles were used, it is possible that compression by the longitudinal rib of tho upper shingle upon the upturned edges or half ribs at the sides of two lower shingles might distort them into a passable joint. This would be more likely if the lower shingles were not set in absolute contact, and we need not say that the disclosure was inoperablo to that extent. Also it may have been possible to use twin shingles, deforming or flattening the connecting rib of the lower pair by the longitudinal rib of the upper shingle, which covered it. This is more doubtful, but we can for argument assume that also. If, however, it were attempted to extend the shingles into a continuous strip, the deformation of the connecting ribs would he cumula^ tive, and would after a short distance throw the whole strip out of registry. It is plain that the suggestion — for it was no more — -was of an impracticable invention and so tho plaintiff proved. Nor do- we think that it was an obvious change to leave out tho reinforcing ribs. Electrical, etc., Co. v. Champion Switch Co., 23 F.(2d) 600, 604 (C. C. A. 2). To make the strips of fiat metal was to depart from the instructions of tho patentee, who supposed that such strips would not he serviceable. Perhaps he was wrong in this; but, certainly on a record which contains no such proof, wo are not free to say that the mistake would have been immediately corrected. We think that the art got no practicable advantage from the disclosure. Overbury struck close to the patent in suit, especially in his patent of 1908; all he had to do was to omit cutting his strip, shown in Figure 4 of that patent, into two strips and decrease its width. Still this very omission in all his patents is significant; it shows that he had not conceived the invention. In leaving one edge of his strip flat, ho wasted a substantial part of that material which lay behind the teeth of the strip above it. This was not necessary to protect the roof, and was used by Heppes for the teeth of another strip. Russell’s shingles were separate, hut, had that been all, we do not say, in view of Over-bury’s continuous strip, that they would not have sufficed as an anticipation, if their shape had been right. The defendant especially relies upon an alternative form, in which the square butts are tapered off on each side to produce an ornamental effect. But the material so cut away was lost; it formed no part of the teeth of another strip. Perhaps it might have done so, had Russell anticipated the defendant’s form; but he did not The lower edge, even of the modified form, was not a counterpart of the upper edge. While it is true that this is not expressly made a part of the claim, it is implied from the way in which the strips are produced, and the claim should be so limited. Russeli does indeed say that his shingles save nearly 40 per cent, of the material necessary for shingles of “rectangular form,” about the same saving that Hoppes made over square butt strips. There is no evidence, however, that he was right, and in any case he is speaking of the difference in material between the area of a rectangular shingle and his own. Whether the saving in roofing is the same does not appear; the question is one on which we cannot speculate. At any rate, it is clear that he contributed nothing more than Over-bury, except that he reversed the exposed edge of his shingles. Mankey’s patent is plainly not relevant; it concerned quite a different art, with different demands and different means available. Clapboards are not flexible; the scalloped ends cannot be raised by the wind to admit rain. Besides, the boards were not staggered in laying, and the strips were not cut from continuous sheets. The patent in suit appears to us to be an advance over the art, and we are confirmed in our conclusion by the fact that it passed the Board of Examiners over references to Overbury and Russell, the nearest, except Comstock. The objection, raised upon the appeal, that the claim was not sworn to, we shall consider, whether or not the appellant has strictly the right to raise it. We do not understand that it argues that, if the subject-matter appeared in the specifications, the claim needed a new oath. .It was held in Heller Bros. Co. v. Crucible Steel Co., 297 F. 39 (C. C. A. 3), and Diamond, etc., Co. v. Bayer Co., 13 F.(2d) 337, 340 (C. C. A. 8), that any claim might be added which the specifications allowed, regardless of the nature of the original claims. We need not go so far, because the only difference between claim 1 originally sworn to and the claim allowed was in the introduction of the element that the strip should be of uniform thickness. Assuming that the specifications did imply a strip of uniform thickness, it would be absurd to say that the claim was not for the same invention as claim 1. Possibly the invention might have been broader than the specifications in this respect, if the claim had not been limited; but that would have been because the idea was capable of more generalized monopoly. The invention still was in the specifications, and a limitation to confine it to them did not introduce a new invention. Thus the issue comes down to whether the specifications showed strips of uniform thickness. Expressly they do not; they only speak of strips cut from a “continuous sheet.” Yet it is plain that such a sheet will ordinarily itself be of uniform thickness. Whether it is mechanically possible to weave one in alternating waves of thickness does not appear, and we do not know; but it would certainly be unusual, and we think it a farfetched suggestion to suppose that the patentee had anything of the sort in mind. It is true that the lower edges of the strips might be reinforced, as in Overbury’s patent, 875,099; but again that would be an addition not to be assumed, unless expressly mentioned. A “continuous sheet” seems to us to presuppose a web of uniform thickness, and, if the strips were to be reinforced, so vital an addition would not have been left to conjecture. We think that the specifications, read naturally, import strips of uniform thickness. There remains only the question of infringement, which verbally turns upon the meaning of “apices.” Strictly, the defendant has no exposed points; they have been substantially truncated, and the material cut off left in the valleys of the adjacent strip. Yet the change is scarcely more than one of taste; it could not, for example, be even plausibly argued that an infringer should escape because he had merely blunted the teeth or somewhat rounded them off. 'Change in degree may indeed become change in kind; but. here we think it has not. Functionally the infringement is like the disclosure; the points of the upper strip protect the valleys of the1 lower; the upper and lower edges are counterparts; substantially as much material is saved; the ends are ¿like, and so are the means. The patent is scarcely a long step forward, but it does contain a genuine invention; to confine it so closely as the defendant requires appears to us to deny it any substance at all. Decree. 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?

JOHNS et al. v. UNITED STATES. No. 13759. United States Court of Appeals Fifth Circuit. March 18, 1952. W. A. Bootle, T. A. Jacobs, Jr. and J. W. Barnett, Macon, Ga., for appellants. Jack J. Gautier, Asst. U. S. Atty., John P. Cowart, U. S. Atty., Macon, Ga., for appellee. Before SIBLEY, RUSSELL and RIVES, Circuit Judges. SIBLEY, Circuit Judge. The indictment in one count charges that Shep Johns and Bryant A. Meeks from April 20, 1949 and continuously thereafter until September 6, 1950, when the indictment was returned, “In the United States of America, the exact place whereof is unknown, did unlawfully, wilfully and knowingly conspire and agree together and with each other, and with W. S. Tucker and Clara Tucker, who are named as conspirators but not charged as defendants, and with divers other persons to the Grand Jurors unknown, unlawfully to possess, transport and sell distilled spirits, to-wit, whisky, the immediate containers whereof did not and should not have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing the payment of all internal revenue taxes imposed on said spirits”. Six overt acts' in furtherance of the conspiracy are alleged, five of them done by Meeks or Tucker in Bibb County in the Middle District of Georgia, and one done by Johns in Baker County, Florida. Meeks and Johns were found guilty and appealed. Meeks has dismissed his appeal and is presumably serving his sentence. Johns is vigorously asserting error in overruling his motion to dismiss the indictment; in not sustaining his motion for acquittal; in not sustaining his several objections to evidence received of acts and conversations of Meeks and Tucker, not in his presence; and of certain telephone company records of calls made by Meeks and Mrs. Clara Tucker. 1. As to the indictment, it is urged that there is no allegation that the conspiracy was to commit any offense against or to defraud the United States, or that the distilled spirits to be handled were subject to tax in the United States, or were to be handled there, or to be fit for or intended for beverage purposes; and that without aid. from the allegations of the overt acts which cannot aid the description of the conspiracy, the indictment fails to charge any offense under the laws of the United States. It is true that the allegations of the overt acts, while important to show that the conspiracy alleged ripened into a crime, 18 U.S.C. § 371, and to fix venue for prosecution, do not constitute part of the description of the conspiracy charged. It is true also that this, indictment should have charged that the possession, transportation and sale of distilled spirits in unstamped containers were to be done in the United States and would constitute offenses against the laws of the United States. But it is alleged that the conspiracy was formed in the United States, and each overt act alleged to be in pursuance of it was done in the United States; and we judically know that statutes of the United States exist which penalize such dealings with distilled spirits in unstamped packages; and it is expressly alleged that the agreement was "unlawfully to possess, transport and sell whisky”; and especially because the record as a whole shows that everyone concerned knew, during the trial, what the Grand Jury meant and no surprise is shown, we are loath to upset the trial on these grounds. We do not commend this as a good criminal pleading, but ignore its faults under the circumstances. 2. The meritorious question is whether the evidence shows with the certainty required in felony cases that Johns was a co-conspirator. In brief, the evidence for the prosecution, though flatly denied by Meeks and Johns, is that Meeks, in Bibb County, Georgia, about April 20, 1949, approached Tucker, who had lived in an adjoining apartment with his wife, Clara, and infant child, and was out of work, and proposed to employ him for $50.00 per week and expenses, to haul “bootleg whis-ky” in Meeks’ automobile from Florida to Macon, Georgia, where it would be hidden out until resold by Meeks at retail and delivered to customers by Tucker. To this, in his wife’s presence, Tucker agreed. The-next day Meeks and Tucker drove to MacClenny, Baker County, Florida. On the way, at Alma, Georgia, Meeks arranged at a filling station to leave there 5 gallons of moonshine whisky on the return trip. Arriving at MacClenny, Meeks got out of the car at the home of Johns, who was unknown to Tucker, and talked with him on the porch. Tucker did not hear what passed. Tucker and Meeks then went to the home of Meeks’ mother-in-law some eight miles away, where Mrs. Meeks was visiting, and there spent the night. Before retiring Meeks gave Tucker $200.00 in cash to pay for 100 gallons of whisky which was to be picked up early next morning. Meeks and his wife and Tucker, at 3 o’clock a. m., left in the car and went by the home of Johns and woke him up. Meeks and his wife were then left at the bus station to ride to Macon, and Meeks told Tucker to go back to Johns’ house and someone would meet him there about 6 o’clock. Three young men (not Johns) met Tucker and took him out of town to a lonely place where about 100 gallons of whisky in unstamped jugs containing 5 gallons each, were delivered and placed in the car which Tucker was driving, the rear seat having been taken out in Macon. Tucker paid one of the men the $200.00 and drove back to Macon, leaving a jug of whisky at Alma, for which he collected six or seven dollars a gallon. Arriving at Macon, the remaining jugs were hidden at a place agreed on with Meeks arid retailed out by the gallon to customers of Meeks at seven or eight dollars per gallon, proceeds received by Meeks, Tucker .getting $50.00 per week and expenses for gasoline, as agreed. After about two weeks a second trip to MacClen-ny and Johns’ house was made by Tucker, Mrs. Tucker and the baby going along at the suggestion of Meeks for an “appearance of gentility”. A similar purchase was made of 100 gallons at $2.00 per gallon and paid for in cash to the unknown young gentlemen who delivered the whisky. A third like trip was made a week or ten days later, but on the way back Tucker and his wife were arrested at Alma and the automobile and whisky seized. Tucker was prosecuted and fined in a State Court after about a month’s imprisonment, Meeks. refusing to help him. Tucker and his wife at first claimed the whisky, as they testify Meeks had told them to do if caught, but afterwards they told the matter to a federal investigator, as above sketched. Their testimony, if believed, shows a conspiracy between them and Meeks to possess, transport and sell whisky in unstamped packages as alleged. As to Johns, they testify nothing save that they went to his house at the direction of Meeks and were by Johns, put in touch with the unknown young men. Mrs. Tucker also testifies that Meeks used her telephone to call Johns before one of the trips and the call, 75 cents, was charged on her bill. She did not know what was said between Meeks and Johns. Johns and Meeks testified that they had not known each other before they were indicted and sought each other out then to find out what it was about. They denied in toto the dealings related by the Tuckers. Their contention is that the Tuckers were in the liquor business and were falsely accusing them to get immunity for themselves. Tucker testifies flatly and repeatedly that in his dealings with Johns, Johns only put him in touch with the “young gentlemen”, who delivered the liquor each time and received the money, and there was no further understanding with or interest in any of them; they had no interest in where he took the jugs, or what he did with them; there was no agreement with them to go into the liquor business; nothing mentioned about whether the whisky was to be sold or drunk, or thrown in the river. After the indictment the Tuckers say that Johns and his wife came to Macon three times trying to get them to say they could not identify Johns as the person they saw in MacClenny; and on the last trip Mrs. Johns gave Mrs.Tucker a $100.00 bill sealed in an envelope as “a Christmas present”, which was turned over to the federal investigator and produced in court. This evidence fairly shows that Johns and his young men were' cooperating together to possess and sell untaxpaid whisky by wholesale and are guilty of that, and for that they are liable for prosecution in Florida, but not in the Middle District of Georgia. The apparent effort to bribe the Tuckers not to recognize Johns might indicate guilt of that as well as of this conspiracy. There is no positive testimony that Johns joined in or agreed to assist Meeks in his enterprise in Georgia. He knew of course, that the Tuckers were about to remove the unstamped jugs which Meeks had arranged to buy and which Tucker bought, and the quantity indicated that Meeks and Tucker were not going to drink, but to sell it; but every circumstance is as consistent with the theory that Johns was selling Meeks whisky in Florida as that he was joining with Meeks in transporting and selling it in Georgia. Certainly the latter theory is not proved true beyond a reasonable doubt, unless to sell illicit whisky necessarily joins the seller as a conspirator with the buyer in what the buyer seems about to- do with it. This question has often arisen touching the selling both of whisky and the materials for making it, under the prohibition laws and under the internal revenue laws, and has been answered differently in the different Circuits. It would be tedious and unprofitable to review the cases and attempt to distinguish or reconcile them. In this Circuit in Young v. United States, 48 F.2d 26, 27, it was held that sellers of articles intended for use by the buyers in the illicit manufacture of intoxicating liquors were not shown to' be conspirators with the manufacturers by successive sales and knowledge of the use intended; but that proof of actual participation in a conspiracy is necessary to fasten guilt on the seller. It was pithily said, “There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself.” United States v. Falcone, 109 F.2d 579, 581, arose in the Second Circuit under the internal revenue laws. The same question was presented. The court reviewed some of the cases, finding that in some circuits the seller and buyer were treated as ipso facto conspirators, but that in the Fifth and Second Circuits more than a mere sale with knowledge of an intended illegal use by the buyer was necessary to show a conspiracy between them. The court commented on the “dragnet of [a] conspiracy” charge sweeping in all who have had any connection with each other, distorting often the venue for trial, and intoducing confusion as to evidence admissible against one but not another defendant, and as to the sayings of one defendant about another; even as in this present case. The court held that the seller did not join in a conspiracy by merely selling what he knows the buyer intends to use in committing a crime, but that he must “in some sense promote the venture himself, make it his own, have a stake in its outcome.” The case was taken on certiorari by the Supreme Court, to resolve the conflicts in the Circuits, and affirmed. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 206, 85 L.Ed. 128. Among other things the Supreme Court said: “The evidence respecting the volume of sales to- any known to be distillers is too vague and inconclusive to support a jury finding that respondents knew of a conspiracy from the size of the purchases even though we were to assume what we do not decide that the knowledge would make them conspirators or aiders and abettors of the conspiracy.” We conclude that though Johns may have been a wholesaler of untaxed whisky, it is not shown that he entered into or even knew of the conspiracy between Meeks and the Tuckers to transport and possess and sell such. It does not appear that he did more than on applications or orders from Meeks, to agree to sell on three separate occasions 100 gallons of unstamped whisky at $2.00 per gallon if Meeks would send for it, and delivered the whisky accordingly, having no further interest in or activity about it. He may be prosecuted in Florida for what he did there, but is not shown to have joined in the Georgia conspiracy as alleged. It is unnecessary to rule on other questions. The motion of Johns for judgment of acquittal ought to have been granted and is directed to be entered, to 'which end the cause as to Johns is remanded to the district court. The appeal of Meeks is dismissed, he having withdrawn it.

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?

Linda HARRE, and her husband, William Harre, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., etc., and Aetna Casualty and Surety Company, etc., Defendants-Appellees. No. 84-3015. United States Court of Appeals, Eleventh Circuit. Jan. 21, 1985. Stephen Lindsey Gorman, Sidney Matthew, Tallahassee, Fla., for plaintiffs-appellants. Chris W. Altenbernd, Tampa, Fla., Barbara J. Paulson, Thomas Sloan, San Francisco, Cal., for defendants-appellees. Before GODBOLD, Chief Judge, HILL, Circuit Judge, and PECK , Senior Circuit Judge. Honorable John W. Peck, U.S. Circuit Judge for the Sixth Circuit, sitting by designation. JOHN W. PECK, Senior Circuit Judge: This case is before the court upon an appeal from the order of the district court denying Appellants’ motion for relief from judgment and for a new trial. Appellants Linda and William Harre are a married couple who filed suit against A.H. Robins Company (“Robins”), alleging that Linda Harre became sterile as the result of a defective and unreasonably dangerous intrauterine device (IUD) manufactured and sold by Robins. Trial began on March 3, 1983 and lasted twelve days; the jury returned a verdict in favor of defendants. On November 25, 1983, Appellants filed a motion for relief from judgment and for new trial under Fed.R.Civ.P. 60(b)(3) on the grounds that a defense witness, Dr. Louis Keith, M.D., committed perjury. We reverse the denial of the 60(b)(3) motion and remand for a new trial. At trial, Appellants alleged that the Daikon Shield IUD allowed bacteria to ascend within the core of its tailstring from the vagina to the uterus where the bacteria caused infection. This process is described as “wicking.” The trial judge stated that wicking was a “principal argument of the whole case” and counsel for Robins agreed that wicking was “the crux of the plaintiffs’ case.” During trial, several expert witnesses testified regarding the alleged defect of the Daikon Shield IUD. Dr. Louis Keith was the last witness for Robins, and his testimony began on March 14 and ended around noon on March 15. On March 14, Dr. Keith testified that, based upon his review of Linda Harre’s medical records, he was of the opinion that her pelvic inflammatory disease was caused by chronic cervicitis. When asked whether or not the Daikon Shield was the cause of the injury, Appellants’ counsel objected, and the trial judge ruled that Dr. Keith could not testify on the ultimate issue of causation because a proper foundation had not been established concerning his experience with the Daikon Shield. On March 15, Dr. Keith testified at length on direct examination regarding his work in the area of transmission of bacteria from the vagina to the uterus. The following discussion occurred: Q. Now, Doctor, have you done or are you doing any studies under your direction on the Daikon Shield tailstring itself? A. Yes, studies are being done under my direction. Dr. Keith continued his testimony, stating that the general purpose of the experiments was “to gain information on the allegation that had been made by some individuals that the string wicked bacteria.” Counsel for Appellants objected on the basis that this line of questioning was outside the scope of the answer to interrogatories as to the subject matter of Dr. Keith’s testimony. Counsel for Robins responded that he was laying the foundation on the issue of whether Dr. Keith had done any studies regarding the Daikon Shield tailstring in response to the ruling on the prior day that Dr. Keith could not testify on the ultimate issue of causation because a proper foundation had not been established. The trial judge overruled the objection, and Dr. Keith continued his testimony regarding wicking experiments. Dr. Keith was asked: “Could you draw a diagram, please, Dr. Keith, of the way in which you conducted these experiments?” In response, he drew illustrations and explained the manner in which the experiments in question were conducted. The following discussion then occurred: Q. Now, Dr. Keith, in conducting these experiments, did you have somebody working with you who was a microbiologist? A. I did. Q. And did you have someone working with you who was an expert in the use of radioactive labelling of bacteria? A. Yes. These people were experts. Dr. Keith further testified that he had acted since 1977 as a consultant and/or expert for attorneys representing Robins. He concluded that, in his opinion, the Daikon Shield did not contribute to Linda Harre’s illness, the Daikon Shield tailstring did not wick bacteria, and the Daikon Shield was not unreasonably dangerous for use as an IUD during the time period in question. In closing arguments, counsel for Robins criticized the studies conducted by Appellant’s expert, Dr. Tatum: The best test that has been done on this subject was done under the auspices of Dr. Keith. He testified here yesterday and he described the test that was done by this microbiologist which was a test that more closely duplicated the human situation than any of the laboratory tests done by Dr. Tatum____ Well, Dr. Keith has had that done and he has done it — a series of tests on this and found that not only that the bacteria not [sic] get into the sterile container but radioactivity wouldn’t be transported along the string. On November 1, 1983 (some eight months after the trial of the present case), Dr. Keith testified for Robins in the case of Dembrowsky v. A.H. Robins Co., case No. 764-831, Superior Court of the State of California in and for the City and County of San Francisco. Discovery was sought of Dr. Keith’s paperwork and records on the wicking studies he testified to in the trial of the present action. The following is an excerpt from Dr. Keith’s deposition: By Mr. Conklin (Plaintiff’s counsel): Q. Have you done any experimental work on new Daikon Shield tailstrings? A. No, other than to look at one I think under the microscope. Q. You haven’t done any wicking experiments? A. I haven’t. Q. Has somebody under your supervision done some? A. Not under my supervision. I didn’t supervise anybody. Q. Has somebody at your request done some wicking experiments? A. I have knowledge of somebody who has done some, but— Q. Is that— A. Dr. Eric Brown. Q. Who is Dr. Eric Brown? A. Professor of Microbiology at Chicago Medical School. Q. When did he do these? A. Within the last six months. (Emphasis supplied.) Q. Are those the same ones that you testified about in Florida? A. Yes. Dr. Keith further testified that he had known Dr. Brown for about 15 years and had consulted with him on numerous papers. Dr. Keith also testified that he did not observe the experiments in question, but his knowledge was based upon talking to Dr. Brown and looking at Dr. Brown’s laboratory books twice, once a couple of months prior to the deposition. The same counsel represented Robins in both Harre and Dembrowsky. After learning of Dr. Keith’s testimony in Dembrowsky, Appellants filed the Rule 60(b)(3) motion. They alleged that Dr. Keith’s deposition testimony in Dembrowsky was evidence a fraud had been committed upon the court at trial of the present action in which Dr. Keith had testified that wicking studies had been conducted under his direction. Appellants contended that, but for defense counsel’s and Dr. Keith’s representation that Dr. Keith had personally conducted such studies, the testimony of Dr. Keith would not have been presented to the jury, and the jury might well have reached a different result. The district court, in denying the motion, found that Appellants failed to show that the conduct of Dr. Keith and defense counsel prevented Appellants from fully and fairly presenting their case. The district court characterized the discrepancies in Dr. Keith’s testimony in the two cases as “minor inconsistencies.” Further, the court noted that Appellants’ counsel could have explored Dr. Keith’s involvement in the wicking studies on cross-examination but failed to do so. Rule 60(b) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party____ “To prevail, the movant must establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983); See also Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). We find that the record supports Appellants’ argument that a material expert witness testified falsely on the ultimate issue in the case, where the defense attorneys knew or should have known of the falsity of the testimony. We disagree with the characterization of the discrepancies as “minor inconsistencies.” Further, we do not share the opinion of Robins, as asserted in its brief, that the differences are “incidental” and “trivial” in nature, nor do we agree that the testimony in question was on a “tangential matter.” As noted supra, both the trial judge and defense counsel agreed that wicking was the principal issue of the ease. In addition to the issue of the time when Dr. Brown’s work was done, intractable conflicts are apparent in Dr. Keith’s testimony in this case and his testimony in the Dembrowsky deposition: (1) In this case Dr. Keith testified that “studies are being done under my direction.” In Dembrowsky he testified that no wicking experiments were done under his supervision but that he had knowledge of Dr. Brown’s experiments. (2) Dr. Keith was asked in this case by Robins’ counsel to diagram “the way in which you conducted these experiments.” Dr. Keith responded by drawing illustrations and explaining how the experiments were conducted. But he testified in Dembrowsky that he had done no experiments. (3) In the present case, following Dr. Keith’s testimony regarding experiments that “you conducted,” he was asked whether “in conducting these experiments, did you have somebody working with you who was a microbiologist?” He answered in the affirmative. He testified in Dembrowsky that he conducted no experiments, so obviously he could not have had a microbiologist working with him in conducting such experiments. (4) Immediately following he was asked: “And did you have someone working with you who was an expert in the use of radioactive labeling of bacteria?” In context, this too referred to “working with you in conducting such experiments.” Dr. Keith answered: “Yes. These people were experts.” Again, if, as he testified in Dembrowsky, he conducted no experiments he could not have had someone working with him who was an expert in radioactive labeling. (5) In this case Dr. Keith testified in detail describing the manner in which the experiments were conducted, and he drew illustrations and gave explanations, all in the context of establishing his qualification to express an opinion on wicking by reason of studies having been done by him or under his direction. But in Dembrowsky he testified that he did not observe the experiments and acquired his knowledge of them only by talking to Dr. Brown and looking at his laboratory books. Dr. Brown’s testimony was exacerbated by the argument of counsel to the jury. Counsel first said that “the best test that has been done was done “under the auspices of Dr. Keith.” Counsel then stated that Dr. Keith “has had that [test] done.” He followed this by stating that he [Dr. Keith] has done it —a series of tests — leading to a finding that radioactivity would not be transported along the string. These statements of counsel, like Dr. Keith’s testimony, squarely conflicted with Dr. Keith’s Dembrowsky testimony. We are also unpersuaded by Robins’ contention that the inconsistency was merely whether Dr. Keith or Dr. Brown directed these studies and the important issue was what knowledge Dr. Keith had acquired from these tests. Dr. Keith testified at trial on March 15, 1983; his deposition in Dembrowsky was taken on November 1, 1983. At that time, he stated that Dr. Brown’s studies had been done “within the last six months,” and that these were the same studies that were the subject matter of his testimony in March. Thus it is established out of Dr. Keith’s own mouth that he testified in the trial of the present action to experiments that had not yet been conducted. The knowledge gained by Dr. Keith could not have been, as Robins urges, the important issue, since when he testified at trial he obviously could not have possessed any knowledge of Dr. Brown’s experiment. Having concluded that Appellants have presented sufficient evidence to support the allegation that Dr. Keith committed perjury, the next inquiry is whether the conduct complained of prevented Appellants from fully and fairly presenting their case. Rozier, supra at 1339. Of the numerous expert witnesses for the defense, Dr. Keith was the only one who purportedly had conducted or directed wicking studies. His testimony went to the ultimate issue of causation, and he was the last defense witness in a twelve day trial. We are convinced that, had counsel for Appellants been aware that Dr. Keith had not actually directed, participated in or even observed the experiments he described, it would have made a difference in their approach to the case, and particularly in their cross-examination of Dr. Keith. Therefore, we conclude that Appellants were prejudiced by the discrepancies in Dr. Keith’s testimony. The district court, in denying the Rule 60(b)(3) motion, stated that counsel for Appellants had an adequate opportunity to cross-examine Dr. Keith at trial, but failed to exercise this option. Appellants’ cross-examination of Dr. Keith focused upon his review of medical literature and Linda Harre’s medical records. Dr. Keith had testified on direct examination, under oath, that wicking studies on the Daikon Shield tailstring were being conducted under his direction. Counsel for Appellants had objected to this testimony as outside the scope of the answers to interrogatories, but the objection was overruled. Appellants’ counsel had no discovery information on these studies and chose not to have Dr. Keith confirm on cross-examination that he had conducted these studies. Realistically, Appellants’ counsel expected that Dr. Keith would testify consistently with his testimony on direct examination, and it would not have been in Appellants’ best interest to emphasize such testimony on cross-examination. We do not think that failure to discover perjury on cross-examination of an expert witness should be a bar to a Rule 60(b)(3) motion. Robins states that Appellants’ allegations of attorney complicity are baseless. However, in view of the fact that Dr. Keith had acted as a consultant/expert for Robins attorneys since 1977, it becomes obvious that Robins’ counsel must have been aware that Dr. Keith’s testimony in Dembrowsky contradicted his testimony in the trial of this action. Further, we are disturbed by the comments of counsel for Robins in closing arguments and the nature of questions asked in direct examination which tend to support the implication that Dr. Keith was actually involved in the tests. This court is deeply disturbed by the fact that a material expert witness, with complicity of counsel, would falsely testify on the ultimate issue of causation. Therefore, we hold that the district court abused its discretion in denying Appellants’ Rule 60(b)(3) motion. Accordingly, we REVERSE and REMAND for a new trial. . We have considered the possibility that Dr. Keith's testimony at trial was truthful and that he committed perjury in his deposition testimony in Dembrowsky. After reviewing the record, however, we conclude that the false testimony occurred in the present action. . Appellants submitted interrogatories on the subject matter on which each expert was expected to testify. Robins answered in regard to Dr. Keith: Dr. Keith practices obstetrics and gynecology in Chicago, Illinois. He is a professor of medicine at Northwestern University and formerly served as medical director of the Illinois Family Planning Association. Dr. Keith is board certified in obstetrics and gynecology and has reviewed the available medical literature on intrauterine devices. Based on the foregoing and his experience, training and knowledge, Dr. Keith has formed the following opinions: (1) complications and adverse reactions associated with the Daikon Shield do not occur at a rate higher than complications and adverse reactions which would be expected to occur with any inert IUD. . Our holding makes it unnecessary to rule upon Appellants' pending motion to supplement the record.

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?

BANK OF AMERICA, NAT. TRUST & SAVINGS ASS’N v. LERER. No. 7508. Circuit Court of Appeals, Ninth Circuit. May 20, 1935. Torregano & Stark and Charles M. Stark, all of San Francisco, Cal., for appellant. Eli Freed, of San Francisco, Cal., for appellee. Before WILBUR, GARRECHT, and DENMAN, Circuit Judges. WILBUR, Circuit Judge. On April 26, 1933, one Thanos D. Lagios, doing business under the fictitious name of Standard Dairy Products Company, Limited, filed a voluntary petition in bankruptcy. Upon liquidation there was' not sufficient funds to pay the claims of the-creditors in full. For the four months pre-' ceding the filing of the petition, the bankrupt was unable to pay his- debts, and his-liabilities exceeded his assets over that .period of time. The bankrupt was indebted, to the French-American Branch of the Bank of America for more than four-months previous to bankruptcy in the sum. of $500, which was evidenced by a promissory note. This amount was the balance due upon an original debt of $1,000, $500‘ having been paid and the -note for the balance having been renewed in September,. 1932; The bankrupt had in his possession two'automobile trucks which he was operating in his business; the Bank of America had' the certificates of registration dated in Sep-' terfiber, 1932, showing that “legal” 'title ta-the trucks was in the bank; • 'the “registered” title was m the Standard Dairy-Products Company, Limited, as required by section 41 (Cal. Stat. 1931, p. 2104), section 44 (Cal. Stat. 1929, p. 514), and section 451/4 (Cal. Stat. 1931, p. 2517) of the Motor Vehicle Act, in case of a chattel mortgage. Although it is argued in the brief that there is no valid chattel mortgage from the bankrupt to the bank, upon the argument it was conceded that the trucks were hypothecated for the loan. On April 17, 1933, a few days before the voluntary petition in bankruptcy was filed (April 26, 1933), an arrangement was entered into by the bank, the bankrupt, and a friend of the bankrupt, named Economou, who had agreed to lend his credit to the bankrupt by executing his own note for $500 payable to the bank in consideration of the surrender by the bank to the bankrupt of the $500 note and the sale to Economou of the two automobile trucks. Thus stated, the transaction, so far as the bank is concerned, assumed the form of a purchase by Economou of the interest of the bank in the trucks for the sum of $500, and there was no preferential payment by the bankrupt to the .bank, and so far as the bankrupt was concerned, of the surrender of his equity in the trucks in consideration of the accommodation maker’s note. The evidence shows, however, that the bank upon the receipt of the $500 note from Economou in lieu of the $500 note of the bankrupt issued its check to Economou payable to him for the sum of $500 and that this check was taken by Economou and the bankrupt to the paying teller’s window where $500 was paid either to Economou or the bankrupt. They returned to the window where the bankrupt’s note and collateral were kept where the money was exchanged for the promissory note of the bankrupt and for the registration slips indicating that the bank was chattel mortgagee of the automobile trucks. The transaction thus assumed the form of the loan by the bank to Economou of $500 upon his promissory note and the purchase by Economou from the bank with the fund loaned of the bank’s chattel mortgage. In any view the bank received nothing at that time from the bankrupt. Whatever it received was from Economou who made the promissory note for which the bankrupt’s note and collateral security were surrendered, and, consequently, the action to recover a preferential payment cannot be maintained. The trial court found there was a payment of $500 from the bankrupt to the bank, but the evidence is undisputed and the conclusion of the trial judge upon that subject was an erroneous conclusion of law rather than of fact. See First Nat. Bank of Danville v. Phalen (C. C. A.) 62 F.(2d) 21, 88 A. L. R. 75; Doughty v. Nassau Factors Corp. (D. C.) 56 F.(2d) 862. Order 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?

BARRICK REALTY, INCORPORATED, et al., Plaintiffs-Appellants, v. CITY OF GARY, INDIANA, et al., Defendants-Appellees. No. 73-1279. United States Court of Appeals, Seventh Circuit. Argued Nov. 1, 1973. Decided Jan. 24, 1974. G. Edward McHie, Charles A. Myers, Hammond, Ind., for appellant. Sylvia Drew, New York City, amicus curiae. John R. Wilks, U. S. Atty., Fort Wayne, Ind., for United States. J. Robert Miertschin, Jr., Gary, Ind., Ivan E. Bodensteiner, Valparaiso University School of Law, Valparaiso, Ind., for defendants-appellees. Before CUMMINGS, STEVENS and SPRECHER, Circuit Judges. CUMMINGS, Circuit Judge. This appeal involves the validity of ordinance No. 4685, adopted by the City of Gary, Indiana, on July 25, 1972, forbidding the use of “For Sale” signs in residential zones of that city. The plaintiffs are a Gary realty company, its president, and a homeowner who listed his home for sale by the other plaintiffs. They sought a permanent injunction against the enforcement of the ordinance and a declaratory judgment that it is unconstitutional. In a carefully reasoned opinion, the district court denied relief. Barrick Realty, Inc. v. City of Gary, Indiana, 354 F.Supp. 126 (N. D.Ind.1973). In affirming, we adopt that opinion as our own as to all issues urged in this Court. We also add a few words in further support of the district court’s decision. The ordinance in question provides in pertinent part as follows: “Section 2. It shall be unlawful for any person to construct, place, maintain, install, or permit or cause to be constructed, placed, maintained, or installed any sign of any shape, size or form on any premises located in any Residential District Zoned R1 through R7 under Title 6, Chapter 6 of the Municipal Code of the City of Gary, Indiana. “For purposes of this section the ‘signs’ above mentioned are hereby defined to mean any structure, and all parts composing the same, together with the frame, background, or supports therefore which are used for advertising or display purposes, or any statuary, sculpture, molding, or casting used for advertising or display purposes, or any flags, bunting or material used for display or advertising purposes, including, but not limited to, placards, cards, structures or areas carrying the following or similar words: ‘For Sale’, ‘Sold’, ‘Open House’, ‘New House’, ‘Home Inspection’, ‘Visitors Invited’, ‘Installed By’, or ‘Built By’. “Section 3. Any person violating any of the provisions of this Ordinance shall upon conviction, be fined not less than Ten ($10.00) Dollars nor more than Five Hundred ($500.00) Dollars to which may be added imprisonment for a period not to exceed 180 days.” Five months after the promulgation of the district court’s opinion, the Supreme Court decided Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669. There the Court expressed the view that commercial speech receives only limited protection from the First Amendment. Like the Pittsburgh ordinance, the Gary ordinance is directed at signs that merely “Propose a commercial transaction” (413 U.S. at p. 385, 93 S.Ct. at p. 2558), whether erected by real estate brokers or individual house owners. The Supreme Court found a further basis for its Pittsburgh Press decision in the illegality of the transaction proposed: “Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.” 413 U.S. at 389, 93 S.Ct. at 2561. That reasoning is not applicable with full force here, because “For Sale” signs are forbidden even if they do not contain an explicit reference to race analogous to the sex designations in the help-wanted advertisements in Pittsburgh Press. However, the effect of the “For Sale” signs was inconsistent with public policy as expressed in the Gary Civil Rights Ordinance, Section 2 of the Indiana Civil Rights Law, and the federal Fair Housing Act. The history of the ordinance banning “For Sale” signs shows that it was aimed at panic selling and that its purpose was to halt resegregation. It was passed in response to the presence of numerous “For Sale” signs in some white neighborhoods, which caused whites to move en masse and blacks to replace them. There is evidence in the record that some real estate brokers who placed these signs (not including any plaintiffs) actively encouraged resegregation by unlawfully urging whites to sell quickly before they had black neighbors and lower property values. Plaintiffs' signs proposed a commercial transaction that is part of a pattern of transactions, all of which taken together lead to a result that the City of Gary can properly try to prevent. Accordingly, it can be said here, as in Pittsburgh Press, that "the restriction on advertising is incidental to a valid limitation on economic activity." The fact that the "For Sale" signs convey a commercial message is not in itself sufficient to meet the First Amendment attack. The history of the Gary ordinance indicates that the "For Sale" signs communicate a message to neighbors and visitors, as well as to prospective purchasers. In a sense, the very purpose of the ordinance is censorial. First Amendment as well as commercial interests are therefore affected by this ordinance. It is, nevertheless, clear that the signs are not "pure speech" as that term has been used in cases holding that activities which contain a mixture of speech and conduct are subject to state regulation. See, e. g., Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 13 L.Ed.2d 471; see also Cox v. Louisiana, 379 U.S. 559, 563-564, 85 S.Ct. 476, 13 L.Ed.2d 487. Unquestionably, the municipal interests which justify the restriction of commercial activity in residential neighborhoods support a prohibition against the display of commercial signs. See Euclid v. Ambler Co., 272 U.S. 365, 387-397, 47 S.Ct. 114, 71 L.Ed. 303. The city's interest in attempting to encourage and maintain stable integrated neighborhoods provides important added support. Since the record does not indicate that the ordinance has frustrated the ability of prospective buyers to find the homes in Gary which are for sale, and since alternate means of communication are available to the plaintiffs, the regulation is permissible. Plaintiffs also attack the ordinance on Due Process and Equal Protection grounds. They have not pressed the -equal protection claim discussed by Judge Eschbach. See 354 F.Supp. at 136-137. The argument labeled equal protection in their briefs in this Court —that there is no reason to apply the ordinance to certain kinds of property —is simply an additional substantive due process argument. Plaintiff’s substantive due process arguments rely on Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, and Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441. If those cases have any remaining vitality, it is clear that this ordinance is not sufficiently arbitrary or capricious to fall under their doctrine. One of plaintiffs’ exhibits reveals that in 1972, prior to the date the ordinance became effective, nearly three-fourths of Barrick Realty’s home sales were to persons first attracted to the property by means other than a “For Sale” sign. Thus the ordinance does not make it unduly difficult to sell a house; it only makes it slightly more expensive to do so. Accordingly, the burden on property rights is small, and any effect on the right to travel is insignificant. It is urged that the ordinance is racially discriminatory in violation of the Thirteenth Amendment because it makes it more difficult for blacks to move into previously all white neighborhoods. But the right to open housing means more than the right to move from an old ghetto to a new ghetto. Rather, the goal of our national housing policy is to “replace the ghettos” with “ ‘truly integrated and balanced living patterns’ ” for persons of all races. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 211, 93 S.Ct. 364, 34 L.Ed.2d 415. It is clearly consistent with the Constitution and federal housing policy for Gary to pursue a policy of encouraging stable integrated neighborhoods and discouraging brief integration followed by prompt resegregation, even if an effect of that policy is to reduce the number of blacks moving into certain areas of the city. See Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Shannon v. United States Department of Housing and Urban Development, 436 F.2d 809 (3d Cir. 1970). The NAACP Legal Defense and Educational Fund as amicus curiae has argued that “[H]ere a legislative body has acted to balance individual and collective interests to ensure constitutionally mandated open housing” and that “The interest of both the black and white citizens in stable communities outweighs any minor inconvenience of having to utilize alternate methods for advertisement and information gathering” (Br. 16). We agree and add one further comment. An allegation that this ordinance is unconstitutional as applied because it is being used to preserve all white neighborhoods from any significant integration would subject the ordinance and its application to the strictest scrutiny. But the district court expressly found that any such allegation was “wholly without evidentiary support.” 354 F.Supp. at 136. Plaintiffs appear to rely on Burk v. Municipal Court of Whittier, 229 Cal.App.2d 696, 40 Cal.Rptr. 425 (1964). There the City of Whittier enacted an ordinance barring real estate brokers from erecting “For Sale” signs in order to protect residential property from the encroachment of commercial activities. Plaintiffs note that unlike the Gary ordinance, the Whittier ordinance permitted homeowners to erect their own signs. But the California court did not hold that the ordinance would have been unconstitutional if that exception were not included. In fact, it has recently been held that an ordinance banning “For Sale” signs violates the Due Process and Equal Protection Clauses by not covering homeowners as well as real estate brokers. DeKalb Real Estate Board, Inc. v. Chairman and Board of Commissioners, 372 F.Supp. 748 (N.D.Ga.1973). We need not endorse that position to agree with the United States, in its brief as amicus curiae, that the posting of “For Sale” signs by private homeowners is commercial in character and therefore subject to regulation. See United States v. Hunter, 459 F.2d 205, 213-215 (4th Cir. 1972), certiorari denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189. As noted in the NAACP Defense Fund brief, “only an ordinance that prohibits any person from placing ‘for sale’ signs is a comprehensive solution” (Br. 12; emphasis in original). We decline the invitation to consider aspects of the ordinance not involved here. Our holding is confined to the facts presented. Judgment affirmed. . See Gary Ordinance No. 4458; Ind.Code § 22-9-1-2(a), (d) [Burns Ind.Stat.Ann. § 40-2308(a), (d)] ; 42 U.S.C. § 3604(e). For anecdotal and quantitative data on the related problems of blockbusting and panic peddling and their effect on both races, see Comment, “Blockbusting: Judicial and Legislative Response to Real Estate Dealers’ Excesses,” 22 DePaul L.Rev. 818 (1973) ; “Blockbusting: A Novel Statutory Approach to an Increasingly Serious Problem,” 7 Colum.J.L. & Soc.Prob. 538 (1971) ; Note, “Blockbusting,” 59 Geo.L.J. 170 (1970). For a collection of state court decisions on the validity of anti-blockbusting and panic peddling ordinances, see Comment, “The Constitutionality of a Municipal Ordinance Prohibiting ‘For Sale,’ ‘Sold,’ or ‘Open’ Signs to Prevent Blockbusting,” 14 St.L.U.L.J. 686 (1970). . See Judge Esckback’s discussion in 354 F.Supp. at 135 and 137.

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?

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. 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?

LEVY et al. v. UNITED STATES FIDELITY & GUARANTY CO. No. 7103. Circuit Court of Appeals, Fifth Circuit. Jan. 10, 1934. Walter Brower and J. Kirkman Jackson, both of Birmingham, Ala., for appellants. Frank E. Spain, of Birmingham, Ala., for appellee. Before BRYAN, FOSTER, and HUTCH-ESON, Circuit Judges. HUTCHESON, Circuit Judge. Bessemer Engineering & Construction Company obtained a highway construction contract in Alabama, and sublet it in its entirety to Flowers. Union Indemnity Company was Bessemer’s surety to the state for the performance of its contract; appellee, Flowers’ surety to Bessemer. It brought this suit as Bessemer’s assignee to hold appellee on its bond for sums paid out on account of the contract which it is claimed Flowers and his surety had obligated themselves to pay. This ease has been here before [56 F.(2d) 147]. Then the indemnity company was ap-pellee; appellee, appellant. We reversed that judgment on a point of pleading. This time the error claimed runs through the case. It goes to the merits. It is fundamental. Adequately raised in different ways and at different stages of the ease, and adequately preserved and pressed here, it may be simply and comprebensively stated thus: The District Judge erred in holding that the obligation of Flowers and his surety to hold Bessemer harmless did not extend to paying the claims for feedstuffs and supplies which Flowers had incurred to the extent of some $14,000 before he defaulted. Under the influence of this view, the District Judge struck these items from the account. Under its influence, he instructed the jury that there could he no recovery for them. Under its influence, he instructed them that, if the indemnity company refused to permit appellee to take over the work as provided in its bond, because appel-lee had refused to accept responsibility for these claims, this would be a breach of the bond discharging appellee. This in effect instructed a verdict against appellants, for it was their position throughout that by denying responsibility for these claims appellee had breached and abandoned its obligations and made it necessary for Bessemer and his surety to take the contract over. We take the point up to examine it. Appellants insist that it is of controlling importance here that Flowers took Bessemer’s contract completely over, and, agreeing to perform it and every part of it as the contractor had agreed to do, was a subcontractor in the fullest sense of the term, Linde Dredging Co. v. Southwest L. E. Myers Co., 67 F.(2d) 969; and that in his bond, after reciting that ho had agreed with Bessemer “for the furnishing of all labor in the construction of the project,” he had agreed to indemnify and hold Bessemer harmless from loss on account thereof. They argue that the special provisions of Flowers’ contract, regarding the payment of labor and material; aside, its general provisions and those of the bond, obligated Flowers and his surety to pay and discharge all feedstuff and supply bills incurred by him in carrying on the work, because Bessemer’s contract which he took over had written into it as a statutory term that all such bills must be paid, and Flowers’ agreement to perform that contract and save Bessemer harmless from its nonperformance necessarily included this term. U. S. F. & G. Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622; Forst v. Leonard, 112 Ala. 296, 20 So. 587; Keyes v. Anderson (C. C. A.) 262 F. 748; American Bridge Co. v. Crawford (C. C. A.) 31 F.(2d) 708, 68 A. L. R. 1246. Finally, they claim to find in this clause, “The sub-eontractor shall protect the contractor and the State Highway Department against all liens or claims of workmen or other, persons furnishing any material or labor for carrying out of completion of said work,” and in this one, “Should there prove to be any such claims after all payments are made, the sub-contractor shall refund to the contractor all moneys which the latter may be compelled to pay in discharging such liens or indebtedness,” specific agreements in terms to pay and discharge these bills. Franzen v. Southern Surety Co., 35 Wyo. 15, 246 P. 30, 46 A. L. R. 496; United States Fidelity & Guaranty Co. v. Henderson County (Tex. Com. App.) 276 S. W. 203; Brogan v. National Surety Co., 246 U. S. 257, 38 S. Ct. 250, 62 L. Ed. 703, L. R. A. 1918D, 776; Equitable Casualty & Surety Co. v. Helena Wholesale Groc. Co. (C. C. A.) 60 F.(2d) 380; Fitzgerald v. Neal, 113 Or. 103, 231 P. 645, 650; United States v. W. H. French Dredging & Wrecking Co. (D. C.) 52 F.(2d) 235; Early & Daniel Co. v. American Surety Co. (C. C. A.) 5 F.(2d) 670. Appellee looks at the case quite differently. It admits that Flowers took over Bessemer’s contract with the state, but it urges that the payment of the bills for supplies and feedstuffs was no part of that contract; that Bessemer’s agreement to pay them was not found in his contract, but in the bond he made, and that it is unreasonable to state that Flowers took over or agreed to pay Bessemer’s bond. It argues further that, while it may not be denied that the cases do generally hold that, when used in statutory bonds required in connection with public projects, an agreement to pay material and labor bills is construed liberally, and usually so as to include feedstuffs and supplies, the bond it signed -is not a statutory, but a common-law, bond. It urges that the term “materials” when used in such a bond Requires a construction more in accordance with its natural meaning, and that this is made more manifest by contrasting the language of the statutory bond given by Bessemer with that of the co-mmon-law bond given by Flowers. It urges that no other construction can be drawn from the use in the one bond of the additional words, “supplies and feedstuffs” and their omission from the -other, than that it was the intention of Bessemer and Flowers to contract with each other more narrowly in this respect than Bessemer and the state had contracted; that this view makes inapplicable the authorities cited by appellants for a broad construction. We cannot at all agree with appellee that anything in the record even color ably supports the view, that, in the sense of a real and actual intent, Bessemer intended to turn over to Flowers the entire performance of his contract without substituting Flowers in his place throughout, both as to performance and as to liability. We think it would be unreasonable to find such an intent. We cannot then attribute to the choice of the language in Flowers’ contract with Bessemer the intention to limit Flowers’ liability to him, nor construe the words used, in the light of such supposed intent. We must construe them in the light of the entire situation, of the other portions of the contract, and of their accepted judicial meaning. So construing them, we are without doubt that Flowers was bound, and his surety was, to pay and discharge all the claims he had properly incurred in connection with the prosecution of the work for feedstuffs and supplies, and that appellants, having paid them, may recover them back. The judgment is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

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?

RELIANCE FINANCE CORPORATION and Romer, O’Connor & Co., Inc., Appellants, v. Clyde E. MILLER and Arline A. Miller, Appellees. No. 75-2216. United States Court of Appeals, Ninth Circuit. July 18, 1977. Victor J. Haydel, III, argued, Farella, Braun & Martel, San Francisco, Cal., for appellants. William F. Murphy, San Mateo, Cal., argued for appellees. Before CHOY and KENNEDY, Circuit Judges, and FERGUSON, District Judge. Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation. FERGUSON, District Judge: This case arose as the result of the sale of a California collection agency, Romer, O’Connor & Company, Inc. (“Romer”). When business became impaired shortly after the consummation of the sale, the purchaser, Reliance Finance Corp. (“Reliance”) and the Romer agency sued the seller, Clyde E. Miller, for damages and rescission on a number of theories. Mrs. Miller, who joined in the sale, was also named in the complaint but played, no active role in the events at issue. Federal jurisdiction was predicated on the alleged violation of 15 U.S.C. § 78j(b) and Rule 10b-5; pendent claims were stated under state securities law and on several other theories (fraudulent misrepresentation, negligent misrepresentation, failure of consideration, breach of contract and breach of warranty). The complaint was amended just prior to trial to add an additional count, mutual mistake of fact. Defendants stated several counterclaims, seeking payment on a promissory note made and executed by Reliance in connection with the sale, damages for breach of an employment contract between Miller and Reliance and related expenses due in connection therewith, money due under a contingent fee contract between Miller’s law firm and Reliance, and damages for injury to Miller’s credit reputation and for defamation. The 8-day- trial was to the court. The trial judge found for the seller, Miller, and entered findings of fact and conclusions of law. Reliance appeals. We affirm. Although the parties dispute many basic factual points, the general course of events leading to the litigation is fairly clear. Romer, incorporated in 1932, was a relatively successful collection agency with offices in San Francisco and Los Angeles. It'had an annual volume of business of nearly $2.6 million. A substantial portion of' Romeh’s work stemmed from a single client, the Atlantic-Richfield Company (“ARCO”), whose retail and wholesale divisions provided 48 percent of the San Francisco- business and 65 percent of that in Los Angeles. During the course of a long association with the agency, Miller, a lawyer, and his wife Arline had become the sole owners of all Romer stock. Early in 1973, Miller decided to sell the business. He began negotiations with officials of the Van Ru Credit Corporation, a competitor of Romer. Negotiations with Van Ru ultimately stalled, allegedly because ARCO could or would give no assurances of continued business with Romer, and because the parties could not agree on a formula for reducing the purchase price if Romer’s volume of business declined. Allen Trant, a former lawyer and businessman in the collections field, also became interested in the business. In July 1973, Miller permitted an accounting firm chosen by Trant to audit Romer’s books. Trant eventually became a middleman and agent for Reliance, a Hawaiian corporation. Throughout the negotiations, Miller asked that all .discussion be kept confidential and that no contact with Romer’s clients be made. He repeatedly refused to guarantee that current clients of Romer would continue their business with the firm. He did, however, stress that Romer had enjoyed lengthy and pleasant relationships with a number of its clients, including ARCO, and claimed that he knew of no information indicating that ARCO or any other client intended to reduce or terminate its business with the agency. A lengthy contract to .purchase the stock of Romer was drafted and signed by Miller on September 20, 1973. The contract referred to a September 29 closing date and contained no escrow provisions... It- was signed by Reliance’s officers on October 8. While there was at trial substantial disagreement as to the effective closing date of this agreement, that dispute has not been pursued on appeal. Two related agreements were also entered into at this time, the first employing Miller as a business and management consultant to Reliance once the Romer agency changed hands, and the second utilizing Miller’s law firm to do legal work in connection with collection claims on a contingent fee basis for a set term. Reliance’s acquisition of Romer was spectacularly unsuccessful. Within days the business was in trouble. Late in October, ARCO announced the suspension of all retail business in Los Angeles, and the reduction of its San Francisco business by 50 percent. It stated that its decision was primarily due to a comparison of Romer’s rate of collection with that of its competitors. Similar problems befell the ARCO wholesale accounts, which amounted to at least 50 percent of ARCO business in Los Angeles. On October 5, the ARCO wholesale representative advised Miller that business would be withdrawn from the Los Angeles office unless a dispute between Miller and his erstwhile law partner, Jack Murphy, were resolved and problems concerning legal supervision and control over collection procedures remedied. A short time later, ARCO did in fact take such action. As a result of these and other client withdrawals, Reliance estimates that 80 percent of Romer’s business was lost. Appellants would fault Miller on two grounds. First, they argue, he breached his duty to inquire and to disclose information which he had or should have had concerning the substantial loss of business that resulted shortly after the sale of the Romer stock to Reliance. Second, they point to a special study of Romer’s client trust accounts completed in September 1974 by a private accounting firm commissioned by Reliance. Using different accounting methods than those employed by Romer, the study concluded that, although the trust accounts properly reflected monies received from debtors, liabilities due Romer clients were understated by approximately $33,000 in June and September 1973 (the month the agency was sold), and that as a result income figures were inflated by about $9,000 to $10,000. Reliance contends that this “irregularity” in Romer’s accounting system has two-fold significance: that it serves as an additional basis for their misrepresentation claim and that it in and of itself resulted in a mutual mistake which should trigger the remedy they seek, rescission. The issues on appeal are rather inartfully framed: appellants’ argument seems to be that the trial court erred in failing to find in their favor on any and all theories of recovery. In order to consider the merits of this claim systematically, however, we must utilize a three part analysis: (1) did the court err in its handling of appellants’ 10b-5 and misrepresentation claims? (2) should the court have granted rescission because of mutual mistake of fact? (3) did the court improperly reject appellants’ failure of consideration and breach of warranty theories? I. Rule 10b-5 and Misrepresentation In formulating his findings of fact and conclusions of law, the district judge carefully considered the application of the “flexible duty” standard of White v. Abrams, 495 F.2d 724 (9th Cir. 1974), to this case. Because the purchasers were familiar with the unstable collection business and because Miller agreed to and did make available to them for study all of the Romer financial documents, the judge concluded that Miller’s duty “was one of less than extreme care.” Although Miller was obliged to make reasonable inquiry regarding any foreseeable loss of business and to disclose material information accumulated in the course of that investigation, the court concluded that this duty was not breached. During the pendency of this appeal, the Supreme Court in Ernst & Ernst v. Hochfeider, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), has held that scienter, not simply negligence, is the necessary predicate to liability under Rule 10b-5. If the record supports the trial court’s determination that Miller did not fail to proceed with even the low standard of care demanded by White, it follows a fortiori that under the Ernst rule no liability would accrue. The court below found that Miller did not receive formal notification of the loss of ARCO’s retail business until October 29, 1973, after the sale had been completed. Although Reliance contended that Miller had earlier been informed of the imminent loss of business by his law partner, Jack Murphy, the district judge found otherwise. Murphy’s inability to remember the source of his information and his failure to commit such vital information to writing gave the trial judge sufficient grounds for disbelief and we cannot say that his finding is clearly erroneous. Butler v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 528 F.2d 1390, 1391 (9th Cir. 1975). Reliance also claimed that Miller failed to disclose that loss of ARCO’s wholesale business was imminent. Miller testified that he had fully revealed all relevant information to Allen Trant, Reliance’s agent, early in October. Trant said otherwise. That the court believed Miller rather than Trant is, again, not clear error. Nor was there knowing misrepresentation or failure to disclose material information concerning the status of Romer’s trust accounts. The court found that Miller, who is not an accountant, had no reason to know and could not reasonably have known of the allegedly irregular procedures which only came to light a year after the sale as a result of a study specially commissioned by appellants. It appears from the record that the court could not have found otherwise. We must therefore conclude that there was no violation of the federal securities laws in the course of this transaction. Appellants’ pendent misrepresentation claims fare no better. As we have just observed, the evidence supported the trial court’s determination that there was no intentional or negligent misrepresentation. Reliance would now present a further theory, however: innocent misrepresentation. No such claim was made a part of the complaint, however, either in its original or amended form. Whether or not innocent misrepresentation is akin to mutual mistake of fact, appellants’ failure to raise this theory before the district court precludes their raising it here. Moore v. Great Western Savings & Loan, 513 F.2d 688 (9th Cir. 1975). II. Mutual Mistake of Fact Reliance also sought rescission on the theory that neither buyer nor seller was aware that financial statements, relied upon during the parties’ negotiations, significantly understated the liabilities due Romer’s clients. Although this issue has repeatedly been tagged as a “trust account” problem, it is important to note that the difficulty did not arise in connection with the trust bank account, but rather with Romer’s accounting procedures. It is undisputed that Romer’s trust account properly reflected monies received from debtors and that no defalcation of funds had occurred. Rather, by retracing disbursements later made to clients, appellants attempted to show that the accounting entry which purported to represent the sums due clients out of trust account funds was in error and should have been significantly higher. This understatement of liabilities vis-a-vis funds received, they argue, led Reliance to assume that Romer had a higher profit margin than was in fact the case and to anticipate that a substantial sum could be safely diverted from the trust account to be used us working capital in the business. Two key witnesses testified on this point at trial: John Kaneshige, an accountant with Kimble, Faris, McKenna & von Kaschnitz, who was responsible for the trust account study commissioned by Reliance, and Arnold Avritt, an accountant long associated with the Romer agency during Miller’s tenure there. Their testimony was primarily directed to the legitimacy of the methods used by the Kimble firm to establish that an understatement existed. Little additional effort was directed to explaining whether the difference in the balances reflected in the Kimble study and those shown on the Romer books resulted merely from variances in accounting methods, or from procedures used to ensure an orderly transfer of money paid by debtors to creditors while providing for the proper handling of bad debtor checks and profits earned by the collection agency. In the face of the rather confusing testimony and exceedingly slim documentary evidence, the trial court found as a matter of fact that the accounts were understated. Unfortunately, however, he did not specifically address the mutual mistake claim in any of his conclusions of law. Reliance therefore contends that at the very least the case must be remanded for further proceedings on this point. The issue of whether there was a mutual mistake of fact, of course, must be determined under the Erie doctrine according to California law. Rather than leaving the matter solely to common law development, California has codified the requirements for rescission on the basis of mistake as part of the Civil Code. Section 1689(b) provides in pertinent part that “A party to a contract may rescind the contract in the following cases: (1) If the consent of the party rescinding . . was given by mistake . . . Section 1577 defines mistake of fact, insofar as is relevant here, as “a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract . . .” Section 1568 is also relevant: “Consent is deemed to have been obtained through [mistake] only when it would not have been given had such [mistake] not existed.” California case law suggests that there is more to the law of mistake than might be apparent from the simple language of these statutes. While California courts appear never to have adopted the traditional requirement that rescission may be obtained only where mistake goes to the identity of the matter bargained for (e. g., Costello v. Sykes, 143 Minn. 109, 172 N.W. 907 (1919); Hecht v. Batcheller, 147 Mass. 335, 17 N.E. 651 (1888); Wood v. Boynton, 64 Wis. 265, 25 N.W. 42 (1885)), they require that, in addition to being material, the mistake must pertain to the essence of the contract. (Hannah v. Steinman, 159 Cal. 142, 112 P. 1094 (1911); Reid v. Landon, 166 Cal.App.2d 476, 333 P.2d 432 (1958); Estate of Barton, 96 Cal.App.2d 234, 239, 214 P.2d 857 (1950)). It has likewise been said by California courts that it must be other than incidental (Reid v. Landon, supra; Vickerson v. Frey, 100 Cal.App.2d 621, 224 P.2d 126 (1950)), and that it must involve more than a collateral matter (Hannah v. Steinman, supra; Wood v. Kalbaugh, 39 Cal. App.3d 926, 114 Cal.Rptr. 673 (1974); Bellwood Discount Corp. v. Empire Steel Buildings Co., 175 Cal.App.2d 432, 435, 346 P.2d 467 (1959)). Only if the difference between the real and supposed quality or characteristic of the item sold is of such magnitude as to make it virtually a different thing will relief be granted. (Vickerson v. Frey, supra). In Roller v. California Pacific Title Ins. Co., 92 Cal.App.2d 149, 206 P.2d 694 (1949), the court detailed the rule as follows: “A mistake as to a matter of fact, to warrant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied, that but for the mistake the complainant would not have assumed the obligation from which he seeks to be relieved.” 92 Cal.App. at 157, 206 P.2d at 699, quoting Grymes v. Sanders, 93 U.S. 55, 60, 23 L.Ed. 798 (1876). Although articulating this idea in a number of different ways, it is evident that the courts have rather universally hesitated to undermine the stability of commercial transactions without serious provocation. While we recognize that some California cases have failed to apply any more stringent standard than that of materiality in determining whether rescission may be granted (Healy v. Brewster, 251 Cal.App.2d 541, 551, 59 Cal.Rptr. 752 (1967) (materiality); Williams v. Puccinelli, 236 Cal.App.2d 512, 46 Cal.Rptr. 285 (1965) (no stated test); Adams v. Heinsch, 89 Cal.App.2d 300, 200 P.2d 796 (1948) (no stated test)), we here follow the more prevalent California rule which requires that the mistake go to the essence of the contract. But because rescission is also available in California on the basis of innocent misrepresentation (Crocker-Anglo Nat’l Bank v. Kuchman, 224 Cal. App.2d 490, 36 Cal.Rptr. 806 (1964)), it is all too easy to confuse these two distinct doctrines and to assume that a simple materiality test applies to both (e. g., Brown v. Klein, 89 Cal.App. 153, 264 P. 496 (1928)). Proof of innocent misrepresentation is more complex than might appear to superficial analysis. Traditionally, rescission may be granted on this theory where the misrepresentation is material (i. e., nontrivial), where it concerns a material fact (i. e., one that would be taken into account by a reasonable person in deciding whether to enter into the transaction) (Restatement of Restitution § 9, comment (b) (1937); Restatement of Contracts § 476, comment (b) (1932)), and where the rescinding party has both actually and reasonably relied on the representation in entering the contract to his detriment (Restatement of Restitution § 8, comment (e) (1937)). The prerequisites for relief based on mutual mistake, that the mistake be material (i. e., nontrivial) and that it go to the essence of the contract, may really encompass the same facts and concerns, although articulated in different terms. Despite this apparent overall equilibrium, care must be taken not to introduce an erroneous equation and one-to-one correspondence between individual elements of proof. Material, in any of its several connotations, is not the same as basic or essential, and “there is a greater requirement of materiality when rescission is asked on the grounds of mistake than when the theory is ‘fraud’ [including innocent misrepresentation].” Note, 12 Hastings L. J., 458, 465 (1961). We, therefore, also decline to treat the California innocent misrepresentation cases cited by appellants as controlling California law on the issue of mutual mistake. In each case the issue of materiality was either not disputed (Brown v. Klein, supra) or assumed for purposes of the issue on appeal (Crocker-Anglo Nat’l Bank v. Kuchman, supra). Similarly, the question under Civil Code § 1568 of whether plaintiffs would not have entered the transaction but for the misrepresentation was not before those appellate courts. We cannot therefore, say that the results reached in those cases should govern here, where the problem is framed in terms of the distinctive analytic framework of mistake. As we have already noted, the trial court made only very limited findings concerning the status of Romer’s liabilities due clients account and did not specifically direct any of its conclusions to appellants’ mutual mistake theory. Although the district judge found the liability account to be understated, it might be inferred from his failure to hold that the understatement was of the amount claimed by Reliance, that appellants failed to meet their burden of proof in establishing the amount of understatement to be more than trivial (and therefore material). The district court’s discussion of risk may also be seen to imply that appellants failed, pursuant to Civil Code § 1568 to prove that they would not have entered into the contract were it not for their belief that the accounts were as represented. We need not rest our affirmance on the trial court’s refusal to grant relief on these grounds, however, for we are able to conclude from the present record, see Fluor Corp. v. United States ex rel. Mosher Steel Co., 405 F.2d 823, 828 (9th Cir.), cert. denied, 394 U.S. 1014, 89 S.Ct. 1632, 23 L.Ed.2d 40 (1969); Seligson v. Roth, 402 F.2d 883, 887 (9th Cir. 1968), that the mistake was less than basic. Hannah v. Steinman, supra, 159 Cal. 142, 112 P. 1094 the leading California case on the issue, counsels that the court must look to the intention of the parties in determining whether the mistake goes to the essence of the contract. Here, appellants, relying on the trial testimony of their accountant Kaneshige, have characterized the effect of the alleged understatement as reducing the money available for working capital and decreasing their expected profits. While they have also suggested in a passing reference in their supplemental brief that an understatement of client liabilities affected the collection agency’s value, they nowhere in the trial testimony or exhibits established or sought to establish to what extent this might be so. The availability of working capital is undoubtedly a collateral matter which, although it might be material to a potential purchaser, cannot be said to relate to the very essence of the bargain. Nor can an erroneous calculation of expected profits based on the figures provided by Miller justify rescission. While the expectation of profit was undoubtedly also an inducement to the contract, it does not lie so close to the heart of the bargain as to qualify as basic mistake. III. Failure of Consideration and Breach of Warranty A. Failure of Consideration. Material failure of consideration is a ground for rescission under California law. Civil Code § 1689(b)(4) (West 1973). The trial court specifically found that “there was no material failure of consideration in regard to any of the three contracts germane to this action.” The district judge’s broad statement on its face covers both loss of clients and accounting irregularities. We will, however, consider these two points separately. The trial judge specifically noted that Reliance “was aware of the nature of the business it was buying and knowingly bought a risk.” This conclusion was substantially supported by the evidence in the case. Miller insisted that he could not guarantee the continuity of client business, and a provision to this effect was incorporated into the contract. The Restatement of Contracts § 502, comment (f) recognizes that “Where the parties know that there is doubt in regard to a certain matter and contract on that assumption, the contract is not rendered voidable because one is disappointed in the hope that the facts accord with his wishes. The risk of the existence of the doubtful fact is then assumed as one of the elements of the bargain.” See Tombigbee Constructors v. United States, 420 F.2d 1037, 1043, 190 Ct.Cl. 615 (1970). The court’s determination on this facet of the failure of consideration claim must also stand as not clearly erroneous. Appellants complain that the dis= trict court’s finding that there was an understatement of client liabilities contradicts its broad finding that there was no material failure of consideration. We see no such contradiction, for the court did not adopt appellants’ calculation of the alleged understatement. Even if Reliance’s figures had been accepted, we would find it impossible to say that, when the transaction was considered as a whole, the trial court erred in finding that the failure of consideration that resulted was not so substantial as to warrant rescission. See Taliaferro v. Davis, 216 Cal.App.2d 398, 412, 31 Cal.Rptr. 164 (1963); Crofoot Lumber, Inc. v. Thompson, 163 Cal.App.2d 324, 332-333, 329 P.2d 302 (1958). Nor is reversal mandated due to the lack of specificity of the court’s findings on this point, Graham v. United States, 243 F.2d 919, 923 (9th Cir. 1957). As the Temporary Emergency Court of Appeals in Evans v. Suntreat Growers & Shippers, Inc., 531 F.2d 568, 570 (1976) recently stated: The trial court did not make findings of special facts or computations on which it based Finding # 15. Appellants did not propose additional or alternate findings nor did they apply to the district court for an amendment of its findings under Rule 52(b) F.R.Civ.P. See Kennedy v. United States, 115 F.2d 624 (9 Cir. 1940). We agree with the statement that “It would seem that if a party is not willing to give a trial judge the benefit of suggested findings and conclusions, he is not in the best of positions to complain that the findings made and conclusions stated are incomplete. Sonken-Galamba Corp. v. Atchison, T. & S. F. Ry., 34 F.Supp. 15, 16 (W.D.Mo. 1940), aff'd 124 F.2d 952 (8 Cir. 1942), cert. den., 315 U.S. 822 [62 S.Ct. 917, 86 L.Ed. 1218] (1942).” Appellants rightly contend that such failure does not prevent them from attacking a finding which is erroneous. But as to Finding # 15 they cannot complain of lack of specificity in the findings, when they proposed nothing to this effect. B. Breach of Warranty. The court below found that Miller had not breached any of the warranties in the contract of sale. That the loss of clients breached no warranty is literally true, for Miller neither warranted nor represented that he could in any way guarantee that clients as of the time of sale would stay with the business. A provision in the contract stated: “SELLING PARTIES do not, however, warrant the continuity or continued placement of claims by the present customers of CORPORATION or the number, dollar value or quality thereof.” The issue is a more difficult one with regard to the accounting irregularities. Appellees urge that we interpret the trial court’s statement to mean that language contained in the contract of sale involved merely representations, not warranties. Examination of the contract reveals, however, that the following statement was included in article II (titled “warranties and representations”): “The CORPORATION has no debt, liability, or obligation of any nature, whether accrued, absolute, contingent, or otherwise, and whether due or to become due, that is not reflected or reserved against in the CORPORATION’S consolidated balance sheet of July 31,1973, included in the financial statements or set forth in Exhibit ‘B’ to this Agreement, except for those that may have been incurred after the date of that consolidated balance sheet and that are not required by generally accepted accounting principles to be included in a balance sheet. . . Williston suggests that distinguishing between warranties and representations in this context is inappropriate. 8 Williston on Contracts § 954 (3d ed. 1964), citing Carolet Corp. v. Garfield, 339 Mass. 75, 157 N.E.2d 876 (1959). We agree. Proceeding beyond this initial stage of analysis, however, we must consider appellants’ warranty claim in the context in which it is raised. In count ten of their complaint appellants sought damages on the theory that breach of the contract warranties constituted a breach of the contract as a whole. No distinct claim for damages resulting from a failure to comply with the warranty provisions was asserted. Both at trial and on appeal, their focus has been on rescission. They sought to show that the accounts were in fact understated, but made no attempt to prove what damage resulted from this state of affairs. The only documentary support for the allegations of understatement was a letter from the accountant hired by Reliance after the sale, two letters from the Kimble firm stating in three sentences the sum total figures relied on in reaching its conclusion about Romer’s books, and two xeroxed worksheets containing one addition and three subtractions. The testimony of appellants’ witnesses was of no greater substance, dwelling as it did on the techniques used in concluding that there was an understatement, not proving or attempting to prove what net injury occurred to appellants as a result. Appellants’ initial and reply briefs on appeal raised no claim of error with regard to the trial court’s failure to award damages reflecting the effect of the accounting irregularities on the collection agency’s value. While the final pages of their supplemental brief (limited by our order to the issue of mutual mistake) did ask for other relief under California Civil Code § 1692 should rescission be an inappropriate remedy, they may not now resurrect a theory which they have never really embraced or at the very least have already abandoned. A question that has been presented to the district court for a ruling and which has not thereafter been waived or withdrawn is preserved for review. United States v. Harue Hayashi, 282 F.2d 599, 601 (9th Cir. 1960). But cf. Graham v. United States, supra, 243 F.2d 919. No such preservation will occur, however, when, as in the instant case, an issue has been raised in the pleadings but is not pressed at trial. See Santa Clara Valley Distrib. Co. v. Pabst Brewing Co., 556 F.2d 942, at 945 (9th Cir. 1977); Stanspec Corp. v. Jelco, Inc., 464 F.2d 1184, 1187 (10th Cir. 1972). The sole remaining question is therefore whether the trial court erred in refusing to grant rescission under a breach of contract theory. The courts in California as elsewhere have recognized that if a party substantially performs his obligations under a contract, he will not be found in total breach and the other party’s performance will not be excused. Posner v. Grunwald-Marx, Inc., 56 Cal.2d 169, 187, 14 Cal.Rptr. 297, 363 P.2d 313 (1961). And restitution may not be given “unless the defendant’s non-performance is so material that it is held to go to the ‘essence’; it must be such a breach as would discharge the injured party from any further contractual duty on his own part . . ..” Crofoot Lumber, Inc. v. Thompson, supra, 163 Cal.App.2d at 333, 329 P.2d at 308; 5 Corbin on Contract § 1104 at 564 (1960). We have already upheld the trial court’s determination that there was no material failure of consideration. See part III A supra. The very same accounting variances take on no more significant statute when considered from this slightly different vantage. The trial court quite correctly refused to grant rescission and restitution. The judgment is AFFIRMED. . The rule included in the Restatement of Restitution § 9 reflects this idea as well. To warrant rescission, mistake must be “basic,” i. e., be an error “as to a fact or rule of law constituting the assumed basis upon which the transaction rests.” Restatement of Restitution § 9, comment (c) (1937); Restatement of Contracts § 502, comments (a), (c) (1932). See also Note, 35 Harv.L.Rev. 757 (1922).

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.

SOUTHLAND INDUSTRIES, Inc., v. FEDERAL COMMUNICATIONS COMMISSION. No. 7018. United States Court of Appeals for the District of Columbia. Decided June 15, 1938. Donald C.-Beelar, Percy H. Russell, Jr., and Louis- G. Caldwell, all of Washington, D. C., for appellant. Hampson Gary) George B. Porter, William H. Bauer, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for appellee. Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices. MILLER, Associate Justice. This is an appeal under Section 402(b) of the Communications Act from the-decision of the Federal Communications Commission granting the application ■ of Hunt Broadcasting Association, for a construction permit for a radio broadcast station at Greenville, Texas. Appellant is the licensee of Station WOAI operating at San Antonio, Texas.- It claims to be aggrieved and adversely affected by the decision because its service in the Greenville area will be subjected to objectionable interference. It petitioned for leave to intervene in the hearing before the Commission on the Hunt application; was permitted to do só under the Commission’s Rule 105.20; was represented at the hearing and participated therein. The Commission’s decision was filed on May 18, 1937, effective July 13, 1937. • On July 20, 1937, and within the twenty-day period provided by Section 405 of the Communications Act (48 Stat. 1095, 47 U.S.C.A. § 405 (Supp.1937), appellant filed a petition for rehearing. On August 2, 1937, before the Commission had acted upon its petition, it appealed to this court as provided by Section 402(c) of the Act. On August 18, 1937, the Commission dismissed the petition. The presence in the record of the facts set out in the preceding paragraph challenges the jurisdiction of this court. While no motion to dismiss the appeal has been made, the court must consider the question and if it has no jurisdiction must dismiss the appeal sua sponte. It is a well recognized principle that an appeal cannot be taken from an interlocutory order (Metzger v. Kelly, 34 App. D.C. 548), or from a judgment or decree not final as to all the parties, the whole subject-matter and all the causes of action involved, “ * * * and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction.” Arnold v. United States for Use of Guimarin & Co., 263 U.S. 427, 434, 44 S.Ct. 144, 147, 68 L.Ed. 371. It is equally well settled that the courts cannot be resorted to for the adjudication of an administrative question the determination of which has not been completed . by a commission having jurisdiction of it for that purpose. Northern Pacific Ry. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221. In. United States ex rel. Dascomb v. Board of Tax Appeals, 56 App.D.C. 392, 394, 16 F.2d 337, 339, we said: “It is familiar law that a decision is not final, within the meaning of the statute providing for an appeal, until disposition of an application for rehearing or reconsideration seasonably made and entertained.” The same rule has been many times stated and applied by the Supreme Court and other Federal courts. Accordingly in Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 36, 14 S.Ct. 4, 6, 37 L.Ed. 986, the Court said: “The rule is that if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Brockett v. Brockctt, 2 How. 238, 249 [11 L.Ed. 251] ; Texas & Pacific Railway v. Murphy, 111 U.S. 488, 4 S.Ct. 497 [28 L.Ed. 492]; Memphis v. Brown, 94 U.S. 715 [24 L.Ed. 244].” [Italics supplied.] Appellant relies upon Luckenbach Steamship Co. v. United States, 272 U.S. 533, 47 S.Ct. 186, 71 L.Ed. 394, to support its contention that this court may obtain jurisdiction notwithstanding the pendency of the motion for rehearing before the Commission. That case involved an appeal from the Court of Claims. 59 Ct.Cl. 628. Appeals from that court were governed by rules peculiar to it, and the language of the Supreme Court in its decision is necessarily limited in its effect accordingly.' Section 243 of the Judicial Code, 36 Stab 1157, provided that all appeals from the Court of Claims should be taken “under such regulations as the Supreme Court may direct.” See Morse v. United States, 270 U.S. 151, 153, 46 S.Ct. 241, 242, 70 L.Ed. 518. The rule adopted pursuant thereto provided that: “In all cases an order of allowance of appeal * * * is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.” It appeared, in the Luckenbach Case, supra, at page 535, 47 S. Ct. at page 186, that while a motion for a new trial was pending the claimant filed with the clerk “an application for an appeal from the judgment. Thereafter the motion for a new trial * * * was denied, and the application for an appeal was then brought to the court’s attention and allowed.” The Court said of the application: “Evidently it was intended to be pressed only if and when the motion for a new trial and amended findings was denied. The court so regarded it, and therefore gave effect to it after disposing of the pending motion." [Italics supplied.] Under the practice of that court, therefore, the application for allowance of appeal was considered by the court after the motion for new trial was denied; its order of allowance of appeal was made thereafter; and when the matter first came to the attention of the Supreme Court, there was no pending motion for new trial in the lower court. The effect of the decision, therefore, is merely that where an application for allowance of appeal is prematurely filed, it may properly, be considered by the Court, under the rule, as having been filed after the motion for new trial has been disposed of. Properly understood, therefore, the decision is not in conflict with the general rule stated above. Similarly, in the case of Sauri v. Sauri, 1 Cir., 45 F.2d 90 — also relied on by appellant— the decision interpreted a rule of practice governing appeals from the Supreme Court of Puerto Rico, and held that allowance of a “petition for appeal” after the overruling of a “motion for reconsideration” cured premature filing of the petition. No such special rules are involved in the present case and there is nothing to take the case out of the general rule long ago established by the Supreme Court and followed in all the Federal courts thereafter. Appellant urges for our consideration the fact that the Commission has at different times taken different positions regarding the effect of filing a petition for rehearing and that this court has not de-cided the question when presented to it on former appeals. However, in Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554, we stated the applicable rule of interpretation of Section 405 as follows (page 558): “The Communications Act differs substantially from the Revenue Act involved in the cases hitherto cited only in the provision of Section 405 that ‘No such application [for rehearing] shall excuse any person from complying with or obeying any decision, order, or requirement of the' Commission, or operate in any manner to. stay or postpone the enforcement thereof, without the special order of the Commission.’ We think that the legislative history of this section of the Communications Act indicates that its inclusion ought not require a different result. The provisions of Section 405 as a whole are substantially those of Section 16a of the Interstate Commerce Act [34 Stat. 592, 49 U.S.C. § 16a (1934), 49 U.S.C.A. § 16a], and the provision above quoted was adopted almost verbatim. The Interstate Commerce Act makes no provision for direct appellate review of orders by the Interstate Commerce Commission. Hence the language of Section 16a could not, as used in that statute, have been intended tp defeat the general rule that a petition for rehearing will suspend the running of the appeal period. We do not think that Congress intended to enlarge the meaning of this language when it was used in the Communications Act. “Accordingly, we hold that the filing of a petition for rehearing suspends the running of the appeal period, and that an applicant has 20 days from the date of final action on the petition for rehearing within which to file his notice and reasons for appeal. The motion to dismiss the appeal herein is therefore denied.” And we also said in that case: “It is doubtful, moreover, whether this court would have jurisdiction to entertain an appeal while such a petition was pending before the Commission. Cf. Voorhees v. Noye Manufacturing Co., 1894, 151 U. S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Vincent v. Vincent, 1884, 3 Mackey 320, 14 D.C. 320; Brown v. Evans, 18 F. 56, C.C.D.Nev., 1883.” It follows that the same reason which prevents the running of the time for taking the appeal, prevents this court from acquiring jurisdiction; i. e., because jurisdiction continues in the Commission to modify, reverse, or affirm its decision. Upon the filing of its appeal in this court —its petition for rehearing being then undisposed of — appellant occupied the anomalous position of asking the Commission for administrative relief, and at the same time asking the court for judicial relief from the anticipated decision of the Commission. See Vincent v. Vincent, 3 Mackey 320, 322, 14 D.C. 320, 322; Chicago Great Western R. Co. v. Basham, 249 U. S. 164, 167, 39 S.Ct. 213, 63 L.Ed. 534; Doyle v. District of Columbia, 45 App.D. C. 90; Burnet v. Lexington Ice & Coal Co., 4 Cir., 62 F.2d 906. “Two courts cannot have jurisdiction in the same case at the same time.” Lasier v. Lasier, 47 App. D. C. 80, 83. See Andrews v. Virginian Ry. Co., 248 U.S. 272, 39 S.Ct. 101, 63 L. Ed, 236. As appellant elected to petition for a rehearing, the Commission retained jurisdiction; and as it failed to act on the petition its decision has never become a final one from which an appeal could be taken. See Voorhees v. Noye Mfg. Co., 151 U.S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192; Northern Pacific R. Co. v. Holmes, 155 U. S. 137, 138, 15 S.Ct. 28, 39 L.Ed. 99; Harrison v. Magoon, 205 U.S. 501, 27 S.Ct. 577, 51 L.Ed. 900. Consequently, this court is without jurisdiction. As the petition was dismissed in the present case — although not until sixteen days after the appeal was taken — it might be argued that it was not entertained by the, Commission, and, consequently,, did not constitute a bar to an appeal. A similar-contention was made in Payne v. Garth, 8 Cir., 285 F. 301, and it was there further-contended that it must appear that, the-court “affirmatively recognizes the motion during the trial term by some action indicating willingness to consider it.” (page 303.) The answer of the court in the-Payne Case is equally applicable in the present case. The court said: “The argument is plausible and would be readily convincing if it were not for the statute above quoted. This statute unquestionably gives a right, in jury cases, to the consideration and determination of a motion for new trial. Necessarily, this right includes the filing of the motion. When the motion is filed, the litigant can do nothing more except to present it when the court is pleased to hear it. The litigant has no; control over the action of the court toward the motion. He cannot compel the court to act affirmatively concerning it or to recognize it during the judgment term. Can he, then, be denied all benefit of the right given by Congress because the court fails or reftises to take such action? Can a court thus annul a valid statute affecting vitally the rights of litigants? Yet, if defendants in error be right in their argument and contention, this result may follow and would do so in this case.” 285 F. 301, at page 304. In the present case, also, the petition for rehearing is a matter of right, as distinguished from a matter of grace. Leave to file is not required under Section 405 of the Communications Act. Consequently — as was conceded by all parties on oral argument — the question wheth-er the Commission has entertained the petition does not arise, the Commission being without power to refuse to entertain it. See Larkin Packer Co. v. Hinderliter Tool Co., 10 Cir., 60 F.2d 491, 493; Kingman & Co. v. Western Mfg. Co., supra, at page 678, 18 S.Ct. 786. Appellant seeks further to support its position by urging that at the time the record on appeal was filed in this court, the petition for rehearing was not then pending. However, it was the fact that the petition was pending when the appeal was taken which prevented this court from acquiring jurisdiction. Moreover, as we have already indicated, the action of the Commission in dismissing the petition was improper, as leave to file it was not necessary under the Act and the Commission was not divested of jurisdiction by the filing of the appeal in this court. Consequently, the Commission’s order was improvidently made (Ex parte Roberts, 15 Wall. 384, 21 L.Ed. 131); the petition must be regarded as pending at the time of filing the record; and, in fact, as pending at all times thereafter, until properly acted upon by the Commission. Larkin Packer Co. v. Hinderliter Tool Co., supra. Finally, even if this court did have jurisdiction over the appeal, a situation would be presented calling for the exercise of judicial discretion to determine whether relief should be denied at this stage of the proceedings, until all possible administrative remedies had been exhausted; and in our opinion the appeal should be dismissed for that reason in any event. We have heretofore suggested that rehearings should be availed of by aggrieved persons both for their own protection, and in order to afford opportunity to the Commission to correct errors or to hear newly discovered evidence before appeal. This is not and should not be an arbitrary requirement. Whether a petition for rehearing should be filed in a particular case must be decided on the merits as each case arises. However, in our view, its use as an administrative remedy should not be discouraged, but instead should be encouraged - — “not to supplant, but to supplement” appellate review. For that reason, in our opinion, the purpose of the law is defeated if the Commission declines to act upon such petitions when they are filed, or dismisses them without consideration, as was done in the present case. Its action, therefore, wa{> arbitrary and capricious and constituted an improvident exercise of pow-> er. Until 'the Commission has considered and acted upon such a petition, the administrative remedy of the aggrieved person cannot properly be said to have been exhausted, and resort to this court in such cases is, therefore, premature. The appeal, therefore, must be dismissed and the Commission directed to proceed in accordance with this decision. Appeal dismissed. Act of June 19, 1934, c. 652, 48 Stat. 1064, 1093, 47 U.S.C.A. § 402(b) (Supp. 1937). “Such appeal shall be taken by filing with said court within twenty days after the decision complained of is effective, notice in .writing of said appeal and a statement of the reasons therefor, * 47 U.S.C.A. § 402(c). Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan,111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462; Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L. Ed. 616; Palmer v. State of Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108; Minnesota v. Northern Securities Co., 194 U.S. 48, 62-63, 24 S.Ct. 598, 48 L.Ed. 870; Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U.S. 413, 419-421, 31 S.Ct. 460, 55 L.Ed. 521; Fore River Shipbuilding Co. v. Hagg, 219 U.S. 175, 177, 31 S.Ct. 185, 55 L. Ed. 163; Trans-Atlantic Trust Co. v. Pagenstecher, 53 App.D.C. 42, 287 F. 1019; Metzger v. Kelly, 34 App.D.C. 548. See Southern Pacific Co. v. United States, 270 U.S. 103, 46 S.Ct. 242, 70 L. Ed. 489; Chicago, Great Western R. Co. v. Basham, 249 U.S. 164, 39 S.Ct. 213, 63 L.Ed. 534; Citizens’ Bank of Michigan City v. Opperman, 249 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701; Northern Pacific R. Co. v. Holmes, 155 U.S. 137, 15 S.Ct. 28, 39 L.Ed. 99; Northern Pacific R. Co. v. O’Brien, 155 U.S. 141, 15 S.Ct. 30, 39 L.Ed. 100; Title Guaranty & Surety Co. v. United States to Use of General Electric Co., 222 U. S. 401, 32 S.Ct. 168, 50 L.Ed. 248; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675, 679, 18 S.Ct. 786, 42 L.Ed. 1192; Memphis v. Brown, 94 U.S. 715, 24 L.Ed. 244; Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251; Payne v. Garth, 8 Cir., 285 F. 301; Klein v. Southern Pacific Co., C.C.Or., 140 F. 213; Doyle v. District of Columbia, 45 App.D.C. 90; Clarke v. Eureka County Bank, C.C.Nev., 131 F. 145; Montgomery Ward & Co. v. Banque Beige Pour L’etranger, 9 Cir., 298 F. 446. See cases cited in note 4, supra. The use of the words “entertained by the court” resulted from the interpretation of rules which made the-filing of petitions for rehearing subject to permission or leave of the court. See Morse v. United States, 270 U.S. 151, 154, 46 S.Ct. 241, 70 L.Ed. 518. (Ct. of Cl. Rule 90); Equity Rule 69, 28 U.S.C.A. following section 723. In such cases applications for leave to file are not sufficient to suspend the running of the time for appeal, and by the same token should not prevent the judgment or decree from becoming final for purposes of appeal. Morse v. United States, supra; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557. “After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, * * * Provided, * * • under Title III * * * the time within which application for rehearing may be made shall be limited to twenty days after the effective date thereof, * 47 U.S.C.A. § 405. United States v. Abilene & So. Ry. Co., 265 U.S. 274, 282, 44 S.Ct. 565, 68 L.Ed. 1016. Eastland Co. v. Federal Communications Comm., 67 App.D.C. 316, 319, 92 F. 2d 467, 470. Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D. C. 3, 98 F.2d 282. Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554. Saginaw Broadcasting Co. v. Federal Communications Comm., supra, note 11; “And if the statute here be construed so that a petition for rehearing does not suspend the running of the statutory period for appeal, the administrative benefit to the Commission of such petitions may well be destroyed.”

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?

Millie VECCHIO, Individually and as Administratrix of the Goods, Chattels and Credits of Mario Vecchio, Deceased, Appellant, v. ANHEUSER-BUSCH, INC., Appellee. No. 28429. United States Court of Appeals Second Circuit. Argued Nov. 18, 1963. Decided Feb. 24, 1964. Medina, Circuit Judge, dissented. Augustin J. San Filippo, New York City, Borris M. Komar, New York City, of counsel, for appellant. Hanlon & Dawe, New York City, Francis J. Healy, E. Richard Rimmels, Jr., Garden City, of counsel, for appellee. Before MEDINA, WATERMAN and MARSHALL, Circuit Judges. WATERMAN, Circuit Judge. On April 26, 1960, Mario Vecchio, an electrician employed by the Art Kraft Strauss Sign Corporation, fell to his death while servicing an electric sign atop a Newark, New Jersey brewery owned by Anheuser-Busch, Inc. His widow thereafter brought this action against Anheuser-Busch, Inc. in the United States District Court for the Eastern District of New York. The action was grounded on the alleged negligence of the defendant, and jurisdiction was properly based on diversity of citizenship. At the conclusion of plaintiff’s case the defendant moved for a directed verdict in its favor and renewed that motion at the close of its own case. The court refused to direct a verdict, and the case went to the jury. A verdict was returned in favor of defendant, judgment was entered accordingly, and plaintiff has appealed on the ground that the trial court erred in its charge to the jury. While it does appear that the charge given was improper inasmuch as it left to the jury the task of defining the legal duty owed plaintiff’s intestate by defendant, the record in the case demands that the judgment entered below be affirmed. We find that the facts developed by plaintiff during the trial were insufficient to permit recovery under governing New Jersey law, and we hold that defendant’s motion for a directed verdict should have been granted. The sign which plaintiff’s decedent was servicing when he was killed was one of two such signs erected atop defendant’s Newark brewery in 1951 by Art Kraft Strauss Sign Corporation, decedent’s employer. Emblazoned with defendant’s advertising emblem, and equipped with electric lights and neon tubing, the sign stood 30 feet high and 25 feet wide. It was supported by a metal structure embedded in the roof of the two-story brewery. Access to the sign for servicing was had by means of a scaffold built onto it by Art Kraft Strauss when the sign was erected in 1951. The scaffold extended the length of the sign, and was supported by two cables of wire rope which were attached to its metal top. Winches on the scaffold enabled workmen servicing the sign to move the scaffold up and down on the cables. The scaffold and cables were destroyed by a hurricane in 1954 and were replaced at that time by Art Kraft Strauss Sign Corporation, decedent’s employer. The replaced cables and scaffolding remained on the sign until the day of plaintiff’s decedent’s unfortunate accident in 1960. On the day of the accident Art Kraft Strauss ordered plaintiff’s decedent and two of its other employees to service the signs on top of defendant’s brewery. They were furnished with special wire for testing each sign’s electrical equipment and with new electric lamps and neon tubing to be used in replacing any fixtures they might discover had deteriorated. Art Kraft Strauss issued no warnings to decedent and its other workmen relative to the condition of the scaffolding and cables on the signs. Plaintiff’s decedent and his fellow workmen arrived at defendant’s brewery and proceeded to service one of the signs. Decedent and another workman, Picone, were on the sign’s scaffold when the accident occurred. They had been working with the scaffold hoisted to the top of the 30-foot sign, and, having completed their work there, were lowering the scaffold. The cable supporting the side of the scaffold occupied by plaintiff’s decedent suddenly snapped, and both men were thrown off. Picone managed to save himself by grabbing onto a guide cable, but plaintiff’s decedent fell 100 feet through the roof of a lower adjoining building and thereby met his death. ! Plaintiff claimed at the trial that at the time of the accident the advertising sign and its attached scaffold had been owned by defendant Anheuser-Busch, Inc., and that defendant had been negligent in failing to keep the scaffolding and cables in a safe condition. She introduced evidence tending to show that the cable which had snapped had done so because of deterioration caused by corrosion, that the cables had not been protected or covered in any way, and that smoke and vapors emitted from defendant’s brewery buildings may have accelerated the corrosion of the cables. | When Art Kraft Strauss erected the sign in 1951, it entered into an agreement with defendant through the latter’s .advertising agent which provided, inter 'alia, that title to the sign was to remain ¡ in Art Kraft Strauss until certain payments had been made to it by defendant. Another agreement was entered into in 1956, providing primarily for maintenance of the sign by Art Kraft Strauss, but also containing reservation of title provisions similar to those which had been incorporated into the 1951 agreement. Plaintiff contends that, despite the reservation of title provisions and the failure of defendant to make one payment called for in the contract, title nevertheless had passed to defendant by the time of the accident. Defendant argues that title had not passed. We find no need to examine in detail the part of the agreement relating to passage of title or the effect of the payments made pursuant to it, for it is clear that the defendant must be treated as the owner of the sign for the purposes of this case. Indeed, we will assume while we examine plaintiff’s claimed grounds for liability that defendant did, in fact, own the sign at the time of the accident in 1960. By far the more important part of the 1956 agreement was that part dealing with the maintenance and care of the sign. The agreement expressly stated that it was to cover its “complete maintenance” and that of the companion sign, and the responsibility for this maintenance was placed on decedent’s employer, Art Kraft Strauss. As the scaffolding and cables were part of the sign, and were used exclusively for maintenance operations by Art Kraft Strauss’s employees, Art Kraft Strauss was responsible for maintaining both the scaffolding and cables and the advertising portion of the sign. Plaintiff’s counsel admitted as much in the course of a colloquy with the court below, and plaintiff’s own witness, one of decedent’s fellow workmen, testified that he had himself inspected and greased the scaffold cables “forty or fifty times” while working on the sign on previous occasions. It was undisputed that Art Kraft Strauss had erected new cables, and scaffolding to replace those destroyed by a hurricane in 1954. No evidence was introduced by plaintiff tending to show that employees of defendant had ever worked on the sign, or the cables, or the scaffolding, or had ever directed work on them. Under New Jersey law, these facts being uncontroverted, defendant violated no duty owed by it to plaintiff’s decedent, and any blame for negligence in causing the accident in this case must rest solely on decedent’s employer, Art Kraft Strauss. Continuing to treat the defendant as the owner of the sign and the scaffolding, we reach plaintiff’s argument that defendant, as such owner, is bound by certain provisions of the New Jersey Safety Code in effect in 1960, R.S. 34:5-1 et seq., N.J.S.A., relating to the maintenance of scaffolding and work at elevated places generally. This argument must fail, however, because of the interpretation the New Jersey courts have given that section of the Safety Gode which lists the persons upon whom its provisions are binding. The section in point is section 34:5-161 of N.J.S.A., and it imposes obligations under the Code upon “[a]ny manager, superintendent, owner, foreman or other person in charge of any building, construction or other place” where a Code violation occurs. In interpreting this section of the Code, the New Jersey courts have emphasized the words “or other person in charge,” and have therefore refused to apply the Code’s requirements to persons included within one of the categories set forth earlier in the section but who are nevertheless not in control of the work or premises connected with a Code violation. Gibilterra v. Rosemawr Homes, Inc., 19 N.J. 166, 115 A.2d 553 (1955) ; Trecartin v. Mahony-Troast Const. Co., 18 N.J.Super. 380, 87 A.2d 349 (App.Div.1952). In Gibilterra v. Rosemawr Homes, Inc., supra, one of the defendants, Rosemawr Homes, had hired the United Construction Company to do excavation work on a tract of land owned by Rosemawr. It had also hired one Vellone to do the plumbing work on the project. One of Vellone’s employees was injured when a trench dug by United Construction Company’s steam shovel operator, Bayley, collapsed. The injured employee argued that Rosemawr, as owner of the land being excavated, was bound by certain provisions of the New Jersey Safety Code relating to excavations. New Jersey’s highest court rejected the argument, reasoning as follows: “The obligations under the Safety Code, R.S. 34:5-1 et seq., N.J.S.A. •x- -x- -x- are imposed only upon ‘any manager, superintendent, owner, foreman or other person in charge of any building, construction or other place, in which this chapter is violated,’ R.S. 34:5-161, N.J.S.A. (Emphasis supplied.) Whatever may be the case as between Vellone, on the one hand, and United and Bayley, on the other, one or the other of them, and not Rosemawr, was ‘in charge’ of the ‘place,’ the trench, where the Code was violated, if it was, and the violations cannot therefore be the basis of liability of Rosemawr.” Id., 115 A.2d at 555. In the case before us defendant had contracted with decedent’s employer Art Kraft Strauss for the latter to maintain and repair the sign and its scaffolding. One of plaintiff’s own witnesses testified that he, as an employee of Art Kraft Strauss, had many times inspected and greased the scaffold’s cables. No evidence was introduced showing that defendant in any way controlled or directed maintenance work on the scaffolding or the sign itself. Under these circumstances we think it clear that, whatever violations of the Safety Code of New Jersey may have occurred and may have operated to cause decedent’s accident, defendant was not chargeable with any liability for them. The fact that Art Kraft Strauss, plaintiff’s decedent’s employer, had complete control over the maintenance of the sign and scaffolding also precludes recovery under the second theory of liability advanced by plaintiff. This contention is that defendant, as owner of the premises upon which plaintiff’s decedent was working, breached its duty to furnish decedent, an invitee workman, with a safe place to work. It is settled law in New Jersey that where an owner of property engages an independent contractor to do work on his premises, he owes to the contractor’s employees who enter the premises to perform the work the duty of exercising reasonable care to furnish them with a safe place to work. E.g., Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 104 A.2d 313 (1954); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 59 A.2d 400 (1948); Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83, 164 A. 262 (1933); Zanca v. Conti, 73 N.J.Super. 23, 179 A.2d 129 (1962). This duty is qualified, however, by the rule that one who engages an independent contractor to do work for him, and who does not himself undertake to interfere with or direct that work, is not obligated to protect the employees of the contractor from hazards which are incidental to or part of the very work which the independent contractor has been hired to perform. Gibilterra v. Rosemawr Homes, Inc., supra; Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (1942); Wolczak v. National Elec. Prods. Corp., 66 N.J.Super. 64, 168 A.2d 412 (App.Div.1961); Jensen v. Somerset Hospital, 58 N.J.Super. 204, 156 A.2d 25 (App.Div.1959), certification denied, 31 N.J. 551, 158 A.2d 451 (1960); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J.Super. 372, 125 A.2d 292 (App.Div.1956); Trecartin v. Mahony-Troast Const. Co., supra. Thus, in Broecker v. Armstrong Cork Co., supra, where an employee of a contractor hired to replace a deteriorated roof fell through the roof and was injured, the court found no liability on the part of the owner for failing to provide scaffolding or otherwise guard the employee against the danger arising from the weakened condition of the roof. And in Gibilterra v. Rosemawr Homes, supra, the owner of premises under excavation was found not to be liable to the employee of a plumbing contractor who, while laying pipe in a ditch dug by another contractor, was injured when the wall of the ditch collapsed. On the other hand, the owner was not permitted to take advantage of the above rule and escape liability in Zanca v. Conti, supra, where the employee of a contractor hired by a village to install a sewer was injured when a water main alongside the sewer trench burst, the court emphasizing that the contractor had been hired “to install a sewer, not to make repairs to the water main.” 73 N.J.Super. 23, 179 A.2d 129, 137. The same result was reached in Reiter v. Max Marx Color & Chemical Co., 67 N.J. Super. 410, 170 A.2d 828 (App.Div.1960), where the owner of a water tank hired an independent contractor to install a new pipe at the bottom of the tank. One of the contractor’s employees who had climbed down into the tank to inspect the fittings on the old pipe was injured when a stationary wooden ladder attached to the inside of the tank wall collapsed. The court refused to deem the hazard posed by the weak ladder a hazard incidental to the work which the contractor had been hired to perform, for it noted that the contractor had not been called upon to do any work on the ladder which was merely the means of access to the pipe upon which the contractor and his employees were to work. 67 N.J. Super. 410, 170 A.2d at 829-830. In the case at bar, plaintiff’s decedent’s employer had contracted with defendant to provide “complete maintenance” for the sign which decedent was servicing when he was killed. The contract, as explained above, covered maintenance of not only the part of the sign serving as an advertising device but also the attached scaffold and cables. Thus, though decedent was at the time of the accident engaged in servicing a part of the sign other than the scaffolding, he was part of a larger operation of his employer which involved keeping the scaffold in a safe condition. No evidence was introduced to show that defendant attempted to participate in any way in the maintenance work which it had hired decedent’s employer to perform, and it appears that the scaffolding in question was used only by employees of Art Kraft Strauss who serviced the sign. Decedent’s co-worker who testified for plaintiff stated that he had himself inspected and greased the scaffold cable on forty or fifty occasions, and he even indicated that the inspection and greasing of the cables had been done by him and other Art Kraft employees on the same days that they had worked on the advertising portion of the sign. On the basis of these uneontroverted facts, we are forced to conclude that the hazard which caused decedent’s death was part of and incidental to the very work which decedent’s employer, Art Kraft Strauss, had contracted with defendant to perform, and, therefore, that the governing New Jersey law permits of no recovery by plaintiff as against this defendant. Thus, despite the incorrect charge given the jury when they found for defendant, the judgment entered below for defendant must be affirmed because the lower court should not have submitted the case to the jury at all but should have granted defendant’s motion for a directed verdict. 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?

JAMES CITY COUNTY, VIRGINIA, Plaintiff-Appellee, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, United States Army Corps of Engineers, Defendants-Appellants, Southern Environmental Law Center, Virginia Wildlife Federation, National Wildlife Federation, Chesapeake Bay Foundation, Amici Curiae. No. 91-2612. United States Court of Appeals, Fourth Circuit. Argued Oct. 1, 1991. Decided Jan. 29, 1992. Martin William Matzen, U.S. Dept, of Justice, Washington, D.C., argued (Richard B. Stewart, Asst. Atty. Gen., Peter W. Colby, Edward J. Shawaker, U.S. Dept, of Justice, Washington, D.C., Henry E. Hudson, U.S. Atty., Susan L. Watt, Asst. U.S. Atty., Norfolk, Va., Caroline Wehling, Office of General Counsel, U.S. Environmental Protection Agency, Washington, D.C., on brief), for defendants-appellants. William B. Ellis, McSweeney, Burtch & Crump, P.C., Richmond, Va., argued (Michael V. Hernandez, McSweeney, Burtch & Crump, P.C., Richmond, Va., Frank M. Morton, III, County Atty., James City County, Williamsburg, Va., on brief), for plaintiff-appellee. William A. Butler, Patricia Ross McCub-bin, Angus E. Crane, James W. Rubin, Dickstein, Shapiro & Morin, Washington, D.C., Roy Hoagland, Ann Powers, Chesapeake Bay Foundation, Inc., Richmond, Va., David W. Carr, Jr., Southern Environmental Law Center, Charlottesville, Va., David W. Carr, Jr., Jan Goldman-Carter, Virginia Wildlife Federation, Virginia Beach, Va., David W. Carr, Jr., Jan Goldman-Carter, National Wildlife Federation, Washington, D.C., for Amici Curiae. Before SPROUSE, Circuit Judge, SPENCER, District Judge for the Eastern District of Virginia, sitting by designation, and HERLONG, District Judge for the District of South Carolina, sitting by designation. OPINION SPROUSE, Circuit Judge: We review a judgment of the district court overturning a determination by the Environmental Protection Agency (the “EPA”) pursuant to section 404(c) of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. 758 F.Supp. 348. The EPA vetoed a decision by the Army Corps of Engineers which would have permitted James City County, Virginia, to build a dam and construct a water reservoir on Ware Creek. We hold that the district court properly overturned the EPA’s veto, but erred in failing to remand the case to the EPA for further proceedings. I James City County lies next to the City of Williamsburg on the York-James Peninsula. Although the County contains no large cities, it is the second fastest growing county in Virginia and has many summer visitors. In 1981, the County had approximately 24,000 residents. By 1987, the County’s population had grown to approximately 31,000 residents. Projections indicate that, by the year 2030, the County’s population will grow to over 50,000. The County’s current population consumes 9.3 million gallons of water per day (“mgd”) provided from three sources. The City of Newport News sells 5.4 mgd to residents in part of the County, groundwater wells within the County provide 3.6 mgd, and the remaining 0.3 mgd is purchased from the City of Williamsburg. The EPA, the Corps, and the County have accepted that, based on the County’s projected future population, the County’s water requirements for the year 2030 will be 18.2 mgd. Several factors limit the County’s ability to satisfy its increasing need for water with its current sources. Williamsburg refuses to supply water to the County after 1999. In addition, Newport News will not expand delivery beyond 7.7 mgd. The County also claims that its supply of groundwater is unreliable. It contends that levels of groundwater are falling, that the County’s groundwater contains impurities in violation of the EPA standards under the Federal Safe Drinking Water Act, and that the groundwater has been called “adverse to public health, welfare, and safety” by the Virginia State Water Control Board (the “SWCB”). The County therefore contends that it must develop a new source of water which could supply 10.5 mgd, the amount of the County’s projected demand in excess of the 7.7 mgd Newport News would supply. After various water supply studies by federal, state, and private organizations, the County decided that the best way to meet the projected excess demand was to construct a reservoir by building a dam in Ware Creek. The resulting lake would extend into adjacent New Kent County, flooding 425 acres of wetlands, and would reliably yield approximately 9.4 mgd of water. This reservoir could also be connected to the Newport News water system. Because of the steep topography of the proposed reservoir site, connection with Newport News could double the reservoir’s yield without inundating additional wetlands. Before construction of the reservoir could begin, however, the County was required to first obtain a permit to place fill for the dam. See 33 U.S.C. § 1311(a). As developed in greater detail below, the Clean Water Act gives the Army Corps of Engineers primary responsibility for evaluating the County’s application and issuing the appropriate permit, see Clean Water Act § 404(a), 33 U.S.C. § 1344(a), although the Act also authorizes the EPA to veto the Corps’ decision under certain circumstances. See Clean Water Act § 404(c), 33 U.S.C. § 1344(c). In 1984, the County formally applied to the Corps for a permit to place fill to construct the dam. The Corps, the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the EPA jointly completed an Environmental Impact Statement in September 1987, and the Corps subsequently issued a notice of intent to issue the permit on July 11, 1988. The EPA’s Regional Administrator then reviewed the Corps’ decision. After further hearings, comments, and consultations with the Corps, the Regional Administrator recommended on February 17, 1989, that the EPA veto the Corps’ decision. This recommendation was referred to the national EPA Administrator in Washington, D.C., where, on July 10, 1989, the EPA’s Assistant Administrator for Water issued the EPA’s Final Determination, vetoing the Corps’ decision to issue the permit. The County then filed suit against the EPA and the Corps in the Eastern District of Virginia, challenging the EPA’s vetp. On November 6, 1990, the district court granted summary judgment to the County. The court overturned the EPA’s veto, ordered the Corps to issue the permit, and denied the EPA’s request for a remand to the EPA for further proceedings. The EPA subsequently filed this appeal. The complex statutory and regulatory scheme involved here requires some preliminary discussion. Section 404(a) of the Clean Water Act gives the Army Corps of Engineers primary responsibility for issuing the permit required by the County. It states that “The Secretary [of the Army, acting through the Corps of Engineers,] may issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). While the Clean Water Act contains no particular provision detailing the standards to be used by the Corps in determining whether to issue a permit, it contains instructions for the Corps to follow in “specifying” sites where dredged or fill material may be placed. Section 404(b) of the Clean Water Act states: Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 1343(c) of this title.... 33 U.S.C. § 1344(b). Pursuant to this mandate, the EPA and the Corps have jointly issued guidelines to be followed by both agencies in making their respective determinations under section 404. See 40 C.F.R. § 230 (1991). These guidelines state that a permit should not be issued if: (1) practicable, environmentally superior alternatives are available, (2) the discharge would result in a violation of various environmental laws, (3) the discharge would result in significant degradation to the waters of the United States, or (4) appropriate and practicable steps have not been taken to minimize potential adverse impacts of the proposed discharge. 40 C.F.R. § 230.10(a)-(d). In deciding to issue the permit, the Corps found that the project did not violate any of these provisions. It found specifically that there were no practicable, environmentally superior alternatives to the Ware Creek Reservoir. It also found that the proposed reservoir would not cause or contribute to violations of water quality or toxic effluent standards, that it would not affect any threatened or endangered species or marine sanctuaries, that the project would not cause or contribute to significant degradation of waters of the United States, and that the County had made all appropriate and practicable efforts to minimize potential adverse effects. As noted above, however, approval by the Corps is not the end of the permit process. Section 404(c) of the statute authorizes the EPA to veto a Corps’ decision to issue a permit when the EPA Administrator “determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c) (emphasis added). It requires the Administrator to consult with the Corps before making a final determination and to “set forth in writing and make public his findings and his reasons for making any determination under this subsection.” Id. In the regulations the EPA has issued to govern its veto determinations, “unacceptable adverse effect” is defined as an “impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreation areas.” 40 C.F.R. § 231.2(e). This regulation also provides that, “In evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) guidelines....” Id. The Regional Administrator conducts the first step in the EPA veto process. After the Corps published its notice of intent to issue the permit, the Regional Administrator in this case issued a Proposed Determination which would veto the Corps’ decision. After holding a hearing, the Regional Administrator issued a Recommended Determination that the EPA veto the Corps’ decision. The decision included findings that viable alternative water supplies were available to the County. These alternatives included a possible pipeline to the County from the James River, conservation, use of additional groundwater (including desalinized groundwater), and the construction of three smaller dams on a different site on Ware Creek. The Recommended Determination was then referred to the national EPA Administrator, who delegated his final decisionmak-ing authority to the Assistant Administrator for Water. On July 10, 1989, the Assistant Administrator for Water issued the EPA’s Final Determination to veto the permit. In deciding to veto the Corps’ decision, the Final Determination found that the proposed Ware Creek Reservoir would result in a severe direct and cumulative loss of wildlife habitat and would result in serious impacts to and/or losses of involved wildlife species. In addition, the record reveals that there are practicable, less environmentally damaging alternatives that are available to James City County that would provide sufficient water supplies for its projected local needs. EPA therefore concludes that construction of the proposed Ware Creek impoundment would result in unacceptable adverse effects to wildlife. Like the Regional Administrator’s Recommended Determination, the Final Determination included findings that alternative sources of water were available to the County. Although the Final Determination rejected the James River pipeline as an alternative, it endorsed the three dam project, groundwater, desalinization, and conservation as alternative sources of water for the County. In contrast to the Recommended Determination, the Final Determination explicitly stated that the three dam project was a viable alternative water source for the County. It also concluded that groundwater could supply an amount between current production of 3.6 mgd and 9.4 mgd, although it noted that, if the SWCB limited use of groundwater, such a decision would preclude consideration of groundwater as an alternative. The EPA also concluded that there was insufficient evidence in the record to exclude desalinization as an option, and adopted a section of the Recommended Determination which mentioned favorably a Southern Environmental Law Center claim that conservation could reduce the County’s demand for water by eighteen to twenty percent. Finally, the Assistant Administrator emphasized the possibility of meeting the County’s water requirements through a combination of alternatives or through a regional solution. After the EPA issued its Final Determination, the County brought this action in the district court under 5 U.S.C. § 702, as well as 28 U.S.C. §§ 1331 and 2201, seeking to overturn the EPA’s action. The district court granted summary judgment to the County, finding that the County had no practicable alternatives to the construction of the Ware Creek Reservoir and that the EPA had incorrectly presumed that alternatives existed. After holding that the EPA’s veto was improper, the district court ordered the Corps to issue the permit and rejected the EPA’s request for a remand. II While the EPA does not abandon its challenge to the district court’s finding that the County had no practicable alternatives to the construction of the dam, its primary claim on appeal is that the district court should have remanded the case to the EPA in order to provide the EPA with an opportunity to consider whether the project’s environmental effects alone justified a veto. The EPA also requests an opportunity to reassess whether practicable alternatives are available. In response, the County argues that this case should not be remanded to the EPA. It maintains that practicable alternatives are unavailable and that the EPA has already refused to veto the project on environmental effects alone. The County argues in the alternative that the EPA has waived its right to another veto determination. We first consider whether the district court properly concluded that there were no practicable alternatives to the proposed reservoir. We find no error in that decision of the district court. However, because we do not believe that the EPA has in fact decided not to veto the permit even in the absence of practicable alternatives, we find that the district court should have remanded this issue to the EPA for its further consideration. A In our review of the district court’s conclusion that there were no practicable alternatives, we are guided by the same standards that controlled the district court’s evaluation of the EPA’s Final Determination. The Administrative Procedures Act provides that when a court reviews an administrative agency’s action on the record of a hearing provided by statute, that action can only be set aside if it is “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(E). Since, in our view, the EPA’s finding that the County had practicable alternative water sources was not supported by substantial evidence, we affirm the district court’s holding in this respect. The guideline regarding alternatives states: Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. 40 C.F.R. § 230.10(a). The regulation provides further that “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The three dam project is the primary alternative suggested by the EPA in its Final Determination. As the EPA recognized, however, part of the three dam project would be built in New Kent County. The record demonstrates that New Kent County categorically opposes the project and will not consent to its construction. Moreover, the three dam project also requires a section 404 permit, but the EPA did not find that the County could obtain a permit for the project. In fact, various statements by the EPA in the record indicate that the EPA itself would likely veto a permit for the three dam project. Finally, water from the three dam project would cost fifty percent more than water from the proposed reservoir. We are persuaded, therefore, that the three dam project is not a practicable alternative for the County. Nor is groundwater a practicable alternative. In the Final Determination, the EPA itself recognized that groundwater would not be a practicable alternative if further groundwater withdrawals were prohibited by the SWCB. The SWCB has in fact prohibited further groundwater withdrawals in response to a study by the United States Geological Survey. We also believe the EPA erred by including desalinization as a viable alternative. Desalinization, briefly mentioned in the Final Determination, is still experimental. This technique also has adverse environmental effects — the County would have to dispose of the salt removed from the water. There is simply no evidence that desalinization could provide a substantial and reliable source of water for the County- Conservation, of course, may be considered in determining the County’s water supply needs. However, accepting arguen-do the Southern Environmental Law Center’s largest estimate — that conservation could decrease the County’s demand for water by twenty percent — a substantial water supply deficit would remain. Despite uncontroverted evidence to the contrary, the EPA found that the County had practicable water supply alternatives. We conclude that, giving the appropriate deference to the agency, there was not substantial evidence to support the EPA’s conclusion that the County had practicable alternatives. Since we feel that the record makes this conclusion unavoidable, on remand the EPA will not be permitted to revisit this issue. B The County concedes, as it must, that remands are generally appropriate when a court finds that the stated basis for an agency’s action is inadequate. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 524-25, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). It argues, however, that a remand is not appropriate in this case for several reasons. First, it claims that the Recommended Determination essentially suggested to the national office that the EPA veto the project based on adverse effects alone. It argues further that EPA’s treatment of the Recommended Determination — modifying it so as to veto based on the availability of alternatives — amounted to a finding that the adverse environmental effects of the project alone did not justify a veto. We disagree. Both the Recommended and the Final Determinations found that practicable alternatives were available. The Recommended Determination simply stated that the permit should be vetoed because of “unacceptable adverse effects,” merely repeating the holding required by statute to justify a veto. We do not read the Recommended Determination to suggest that the EPA should veto even in the absence of practicable alternatives. In our view, the EPA has not yet ruled that considerations of environmental effects would alone justify a veto. It should have that opportunity. The County also contends that the EPA’s veto rights under the statute provide merely a single “opportunity” to veto, which, when exercised improperly, is waived. While theoretically Congress could create a scheme providing an agency with only one opportunity to make such a determination, we do not discern a congressional intent to implant that radical procedure in section 404(c). Accordingly, we reject the argument that the EPA has waived its right to veto the permit based on adverse effects alone. Finally, the County argues that the EPA’s delay in acting, as well as the prejudice the County will suffer as a result of a remand and further delay, justify the decision of the district court not to remand. We recognize that when Congress enacted section 404, it was concerned about the possibility of harmful delays in permit and veto decisions. See 118 Cong. Rec. 533699 (remarks of Sen. Muskie) (“The Conferees expect the Administrator to be expeditious in his determinations as to whether a site is acceptable_”). In this context, our decision to remand was heavily influenced by the unequivocal representation of the EPA’s counsel at oral argument that the EPA could complete its determination on remand within sixty days of our decision. We would view seriously any failure to comply with that representation. In view of the above, the judgment of the district court is affirmed in part. The case is, however, remanded to the district court for further remand to the EPA for action consistent with the views expressed in this opinion. AFFIRMED IN PART AND REMANDED. . For procedures established and followed by EPA in making its section 404(c) determinations, see 40 C.F.R. § 231. . The Recommended Determination equivocated with regard to the three dam alternative. It stated that "[w]e believe that this option continues to present serious environmental consequences. However, in the context of impact minimization[,] the three dam option should have received more attention.” . Although the EPA vetoed the permit, the Final Determination only vetoed the project as a local water supply source. The EPA apparently reserved the right to permit the reservoir as a regional water source. . By contrast, the Southern Environmental Law Center, the National Wildlife Federation, the Virginia Wildlife Federation, and the Chesapeake Bay Foundation, filing a brief as amici curiae, asked this court to reverse the district court and affirm EPA’s decision, either because EPA correctly concluded that practicable alternatives exist, or because EPA has already held that the adverse environmental effects alone were sufficient to justify a veto. Our focus, of course, is on the relief requested by EPA, not the amici. We note, however, that our reasoning obviously rejects these arguments. . In our view, this is the proper standard of review for the EPA's section 404(c) determination, in light of the statutory requirements of notice and opportunity for public hearings, as well as the requirement that “The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.” 33 U.S.C. § 1344(c). But see Bersani v. Robichaud, 850 F.2d 36, 46 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1556, 103 L.Ed.2d 859 (1989) (reviewing a section 404(c) veto decision by the EPA under the arbitrary and capricious standard). Even were we to review EPA’s action under the "arbitrary and capricious” standard, however, we would reach the same conclusions that we reach herein. . The district court concluded that EPA had relied upon a presumption that practicable alternatives exist because of a mistaken belief that the proposed reservoir would "not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not 'water dependent')....” 40 C.F.R. § 230.10(a)(3). After reviewing the EPA’s Final Determination, we are not persuaded that EPA applied the presumption in this case. While parts of the Final Determination seem to require the County to prove that alternatives are not available, EPA makes its findings without explicitly invoking the presumption. Moreover, like the district court, we are persuaded that this project is water dependent, and conclude that the presumption does not apply.

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?

TORRES et al. v. AMERICAN R. CO. OF PORTO RICO. No. 4122. Circuit Court of Appeals, First Circuit. July 24, 1946. Writ of Certiorari Denied Nov. 18, 1946. See 67 S.Ct. 204. V. Gutierrez Franqui, of San Juan, P. R. (L. E. Dubon and E. Ramos Antonini, both of San Juan, P. R., on the brief), for appellants. Henri Brown, of San Juan, P. R. (Enrique Cordova Diaz, of San Juan, P. R„ on the brief), for appellee. Before EDGERTON (by special assignment), MAHONEY and WOODBURY, Circuit Judges. EDGERTON, Circuit Judge. Appellee railroad paid its employees wages which were less than they were entitled to under the Fair Labor Standards Act of 1938, §§ 6, 7, 29 U.S.C.A. §§ 206, 207. Appellee afterwards paid them somewhat less than half of the balance due and, on the theory that appellee could pay no-more, the employees executed releases in full. A large number of employees, the present appellants, afterwards brought this suit to recover the amounts which still remained unpaid. The court found that ap-pellee had paid all it could pay “and thereafter continue operations or avoid insolvency”. The court concluded that the release agreements were valid and that the appellants were not entitled to recover. We think the court erred. Whether enforcement of the statutory rights of appellants will benefit or injure them, their employer, or the community is legally immaterial. The case is governed by Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 and D. A. Schulte, Inc., v. Salvatore Gangi, 66 S.Ct. 925. The Brooklyn case decides that, in the absence of a bona fide dispute between the parties, an agreement to accept less than the full amount due under the Act, including liquidated damages, is invalid. It does not appear that there was any dispute between the parties to the present suit when the releases were executed. The Schulte case decides that even the existence of a dispute regarding coverage does not validate an agreement to accept less than the full statutory amount. The existence in the present case of a question of policy cannot have a greater e/fect. The Act does not exempt employes who are in financial difficulties. “ ‘While in individual cases, hardship may result, the restriction will enure to the benefit of the general class of employees in whose interest the law is passed, and so to that of the community at large.’ ” Brooklyn Savings Bank v. O’Neil, supra, 324 U.S. at page 713, 65 S.Ct. 905, 89 L.Ed. 1296. Fort Smith & Western Railroad Co. v. Mills, 253 U.S. 206, 40 S.Ct. 526, 64 L. Ed. 862, on which appellee relies, is not in point. In that case, which arose under the Adamson Law, 39 Stat. 721, 45 U.S. C.A. §§ 65, 66, the question was no. whether employees could require their employer to comply with the law but whether the District Attorney could requ' ,-e the receiver of a railroad to comply with the law when the receiver and the employees were agreed in wishing to disregard it. The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.

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?

KERSHNER, Royce, Ryan, Bernard, on their own behalf and on behalf of others similarly situated, Appellants, v. MAZURKIEWICZ, J. F., Superintendent; Gerber, Gary R., Librarian, SCI at Rockview, Bellefonte, Pa., Appellees. No. 81-1042. United States Court of Appeals, Third Circuit. Argued May 19, 1981. Reargued Nov. 23, 1981. Decided Feb. 1, 1982. Richard G. Fishman (argued), Keystone Legal Services, Inc., State College, Pa., for appellants. Gregory R. Neuhauser (argued), Francis R. Filipi, Deputy Attys. Gen., Leroy S. Zim-inerman, Atty. Gen., Harrisburg, Pa., for appellees. Argued May 19, 1981. Before ADAMS, ROSENN and HIGGIN-BOTHAM, Circuit Judges. Reargued In Banc Nov. 23, 1981. Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVI-TER, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. On January 30, 1980, appellants Royce Kerchner and Bernard Ryan, inmates at the State Correctional Institution at Rock-view [Rockview] filed a class action civil rights complaint under 42 U.S.C. § 1983 seeking preliminary and final injunctive relief against two prison officials. Appellants contended that defendants were required by the sixth and fourteenth amendments to provide indigent inmates with free legal supplies including pads, pens, pencils, photocopying, and postage. Three issues are presented for consideration: first, whether the district court erred when it denied the inmates’ motion for a preliminary injunction; second, whether this Court has appellate jurisdiction to review at this time the district court’s denial of class certification; and finally, assuming there is jurisdiction over the denial of class certification, whether the trial court abused its discretion in denying class certification. We believe that the district court did not err in denying the motion for preliminary injunctive relief, and affirm the judgment of the district court in this regard. Because we conclude, however, that the order denying class certification is not now appealable, we do not reach the merits of the third issue. I. Kerchner and Ryan brought suit against Dr. J. F. Mazurkiewicz, the Superintendent of Rockview, and Gary R. Gerber, the Librarian at Rockview, for their alleged refusal to provide without cost certain legal supplies and documents both to the named plaintiffs and to other allegedly indigent inmates. In this respect, Pennsylvania law provides that: “Adequate legal size paper shall be available in institution commissaries for purchase by inmates.” 37 Pa.Code § 93.2(a). The inmate handbook for Rock-view further provides: LEGAL MATERIAL AND NOTARY PUBLIC 1. You may purchase any legal material you believe to be valuable to you in seeking legal remedies. The amount permitted in your cell at any one time may be limited depending on individual circumstances. 2. Some legal materials are available at the institutional library for your use. 3. The institution will provide notary service for documents requiring notarization. A request slip should be directed to the Records Office in the institution for Notary Public Services. Appendix at 37. As a result of the operation of the above policy, Kerchner complains that he has been “forced... to pay for legal supplies and materials in seeking... legal remedies... despite his indigency and [has been] placed... in the position of either foregoing these supplies and materials in the pursuit of legal remedies or giving up the few amenities available in prison life.” H 16, Plaintiffs’ Complaint, Appendix at 10. Kerchner earns $35.00 per month from his institutional job. During his incarceration Kerchner has had less than $60.00 in his institutional account at any one time; his average balance through January 2, 1980 was approximately $21.72. Ryan’s average balance was $12.00; on January 2, 1980, he had $25.85 in his institutional account. Appendix at 19-23. II. At the outset it must be stressed that the appellants did not establish that there was any instance in which they were unable to pursue any legal action because of the cost of legal supplies and photocopying. Rather, they assert that in being required to use their own limited funds they have been or will be deprived of certain unspecified amenities. The first issue before us, then, is simply whether the district court erred in denying a preliminary injunction that would have required the Commonwealth to supply, without cost to the named plaintiffs, pads, pens, pencils, postage, photocopying and other legal materials when the plaintiffs had funds in their institutional accounts sufficient to purchase those items. A. A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972). Consequently, the scope of appellate review of a trial court’s ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir. 1980). In this instance, the case was referred to Magistrate Raymond J. Durkin, who wrote a thoughtful opinion and recommendation. He concluded that the plaintiffs failed to carry their burden to show either “a probability of success on the merits or that they will suffer irreparable harm if the preliminary injunction is not granted.” Appendix at 57. Magistrate Durkin found that there has been no demonstration in the complaint or other documents that any prisoner has not been able to perfect and pursue a legal action due to the written policy concerning postage and the policy regarding paper and writing utensils, even if informal. With respect to the specific matters in dispute, it is recognized by plaintiffs that each inmate is permitted without cost to mail 10 one-ounce first class letters or the equivalent thereof in postage per month up to $1.50, and there has been no demonstration that any prisoner who exceeded this limit and was without funds and found himself in an emergency situation with respect to court matters was refused postage. In the absence of such demonstration, it would appear that prison officials would be free to establish some limitation on free postage. * * * * * * With respect to the matter of free photocopying, plaintiffs once again have not pointed to any instance in which an inmate was actually denied access to the courts by reason of being unable to photocopy documents when he did not have the funds to pay for the photocopying service. Appendix at 58, 60. The district court approved and adopted the Magistrate’s recommendation to deny the preliminary injunction “for the reasons set forth in his report.” Appendix at 69. B. On appeal, the inmates reiterate their claim that they were irreparably harmed because they were forced into a position in which they had “to choose to forego legal remedies for the few ‘amenities of prison life’ they have funds to purchase, or forego these ‘amenities in pursuit of legal remedies.’ ” Appendix at 53. But appellants do not in any way specify what these amenities are. Nor do they allege that they were deprived of their basic necessities. They assert merely that they have “clear” constitutional rights that are being violated, and that the violation of constitutional rights for even minimal periods of time constitutes the required showing of irreparable harm. Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1292(a)(1). It is now established, of course, “that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). But at this stage in the litigation, there has been no showing that this proceeding involves “access to the courts.” Although broad constitutional claims are asserted, the present matter is quite different from any of the major constitutional cases relied upon by the appellants: This is not a situation in which prisoners are being denied the right to file petitions for habeas corpus unless the petitioners are found “properly drawn” by the legal investigator for the Parole Board. Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). This is not a case in which the state has “effectively foreclosed” indigent prisoners from filing appeals and habeas corpus petitions by requiring the payment of docket fees. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959). This is not a case in which an indigent inmate cannot acquire trial records because of his inability to pay for them. Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). See also Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958). L.Ed.2d 899 (1963). This is not a case in which indigent inmates are denied “a meaningful appeal” from their convictions because of the state’s failure to appoint counsel. Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963). This is not a case in which the state prison system failed to provide adequate legal library facilities, Bounds, supra. Nor is this a case in which the state is closing a prison law clinic and does not provide an adequate law library, Wade v. Kane, 448 F.Supp. 678 (E.D.Pa.1978), aff’d 591 F.2d 1338 (3d Cir. 1979). Plaintiffs have been permitted to proceed in forma pauperis in this and in all their other cases, and thus the case at hand is also unlike Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), in which the plaintiffs were denied the right to proceed in forma pauperis. Appellants rely heavily on Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In the very first sentence in Bounds, however, the majority stated its perception of the primary issue before the Court as follows: “The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge.” 430 U.S. at 817, 97 S.Ct. at 1492-93 (emphasis added). Pads, pens, pencils, and photocopy machines are, of course, neither “law libraries” nor “alternative sources of legal knowledge.” In a lengthy discourse on somewhat collateral issues, however, the Court said: “It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.” 430 U.S. at 824-25, 97 S.Ct. at 1496 (emphasis added). Whether the latter statement was dictum or a holding is irrelevant for our purposes because the touchstone was the word “indigent,” though the Court proffered no definition of indigency. Magistrate Durkin’s report suggests that the plaintiffs may not have been “indigent” for the purpose of purchasing the modest supplies at issue here. Further, and more important, the Magistrate stressed that there was no proof adduced that “any prisoner has not been able to perfect and pursue a legal action due to the written policy concerning postage and the policy regarding paper and writing utensils.... ” Appendix at 58. He noted that each inmate was allowed to mail ten first class letters without cost per month and found that plaintiffs were unable to point “to any instance in which an inmate was actually denied access to the courts by reason of being unable to photocopy documents when he did not have the funds to pay for the photocopying service.” Appendix at 60. We agree with the district court that appellants have not met their burden of showing irreparable injury in this regard. As the Court of Appeals for the Tenth Circuit recently observed in Johnson v. Parke: The constitutional concept of an inmate’s right of access to the courts does not require that prison officials provide inmates free or unlimited access to photocopying machinery. See Harrell v. Keo-hane [621 F.2d 1059 (10th Cir. 1980)]. When an inmate’s access to the courts is not unduly hampered by the denial of access to such machinery, he cannot complain. 642 F.2d 377, 380 (10th Cir. 1981) (emphasis added). We therefore will affirm the district court’s order denying appellants’ motion for preliminary injunctive relief. IIÍ. Appellants urge that, in addition to ruling on the preliminary injunction issue, we should also consider that portion of the district court’s order that denied certification of the purported class of inmates. We conclude, however, that we lack appellate jurisdiction at this time over the latter issue. A. The appealability of a district court order denying a motion for class certification was, until recently, an unresolved issue. In 1978, however, the Supreme Court established that such orders are not generally appeala-ble, inasmuch as they are neither “final decisions” for purposes of 28 U.S.C. § 1291, Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), nor refusals of injunctive relief for purposes of 28 U.S.C. § 1292(a)(1), Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). Cf. DeMasi v. Weiss, 669 F.2d 114 at 119 (3d Cir. 1982) (refusing to employ mandamus to review class certification order). In the present case, however, class certification was denied in the same order as the refusal of preliminary injunctive relief. Both parties agree that this Court has jurisdiction, under section 1292(a)(1), to review that portion of the order declining to issue the requested injunction. The disputed question is whether we may also review the class certification issue that was disposed of in the same order. Appellants exhort us to embrace what one federal court has termed the doctrine of “pendent appellate jurisdiction,” Marcera v. Chinlund, 595 F.2d 1231, 1236 n.8 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). That doctrine, a judicially crafted exception to the interlocutory appeal rules of 28 U.S.C. § 1292, would provide that once an appellate court is accorded jurisdiction over the grant, refusal or modification of an injunction pursuant to § 1292(a)(1), the court in its discretion may review the entire order, including those portions of the order which otherwise would not qualify for interlocutory review. While the Supreme Court has yet to address the propriety of pendent appellate jurisdiction, our circuit has had a number of opportunities to explore the concept. An examination of the opinions reveals, however, that this Court has never formulated a consistent approach to the problem. In several decisions, this Court appears to have adopted a broad view of appellate jurisdiction under section 1292. In D’Iorio v. County of Delaware, 592 F.2d 681 (3d Cir. 1978), for example, the Court stated: [B]ecause the district court granted D’lorio’s requested injunctive relief and ordered his reinstatement as a county detective, this appeal is properly before us under 28 U.S.C. § 1292(a)(1) (authorizing appeals from injunctive orders). When appellate jurisdiction is established on this basis, the entire order, and not simply the propriety of the injunctive relief, is before the court for review. 592 F.2d at 685 n.4 (emphasis added). Similarly, in Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972), the Court asserted that certain provisions of the district court’s orders were “injunctions within the meaning of section 1292(a)(1).... Given jurisdiction over these aspects of the district court’s orders we can review the merits of the entire case as it now rests.” 458 F.2d at 262. See also Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786, 791 (3d Cir. 1978). The reach of Kohn, however, was explicitly constricted in W. L. Gore & Assoc. v. Carlisle Corp., 529 F.2d 614, 618 (3d Cir. 1976), a patent infringement case in which Judge Maris, writing for a unanimous panel, concluded that the jurisdiction conferred upon the court of appeals does not extend to other claims or issues determined by the judgment which have no bearing upon the propriety of the action of the court with respect to the injunction.... Our decision in Kohn... is not to the contrary. For in that case an injunction was the principal relief sought and all the issues decided by the district court in its interlocutory judgment which was appealed under § 1292(a)(1) appear to have been involved in the plaintiff’s right to injunctive relief. Finally, a later case, Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 168 (3d Cir. 1979), would appear to be even more directly at variance with Kohn and D’Iorio. Considering a district court order that disposed both of plaintiff’s motion for a preliminary injunction and of defendant-intervenor’s motion to file a supplemental answer, the court stated summarily: “This court’s jurisdiction is limited to reviewing that portion of the... order refusing to grant an injunction.” Bushkill thus represents a narrow approach to section 1292(a)(1) that would restrict our jurisdiction to the literal terms of the statute. B. Section 1292(a)(1) provides that the appellate courts “shall have jurisdiction of appeals from... [ijnterloeutory orders of the district courts... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.... ” 28 U.S.C. § 1292(a)(1) (1976). The provision is one of four exceptions to the general rule that our appellate jurisdiction extends to final decisions of district courts. 28 U.S.C. § 1291 (1976). The history of § 1292 has been recounted elsewhere, see, e.g., Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Katz v. Carte Blanche Corp., 496 F.2d 747, 753-54 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). It is sufficient to note here that section 1292(a)(1) “creates an exception to the long-established policy against piecemeal appeals, which this Court is not authorized to enlarge or extend. The exception is a narrow one and is keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978) (quoting Baltimore Contractors v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955) (footnote omitted)); accord, Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). Because section 1292(a)(1) is an exception to an otherwise fundamental rule of federal appellate jurisdiction, we must construe the scope of the provision with great care and circumspection. Indeed, as the Supreme Court declared in Switzerland Cheese Assoc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966), it is necessary that we “approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.” A broad grant of section 1292(a)(1) jurisdiction posited by such cases as D’Iorio and Kohn appears directly to contravene the admonition of the Supreme Court in Gardner and Switzerland Cheese. Kohn, however, relied upon a different line of Supreme Court precedent, the genesis of which was Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 410, 41 L.Ed. 810 (1897). In Smith, the Supreme Court construed the predecessor of section 1292(a)(1) to authorize “according to its grammatical construction and natural meaning, an appeal to be taken from the whole of such interlocutory order or decree, and not from that part of it only which grants or continues an injunction.” Reliance upon Smith, however, was misplaced. In Smith, the Supreme Court went on to say that the intent of the provision in question was “not only to permit the defendant to obtain immediate relief from an injunction... but also to save both parties from the expense of further litigation, should the appellate court be of opinion that the plaintiff was not entitled to an injunction because his bill had no equity to support it." 165 U.S. at 525, 17 S.Ct. at 410 (emphasis added). Smith holds, therefore, that where appellate jurisdiction is based on section 1292(a) but it appears to the appellate court that there is no merit to the complaint whatever, the entire case will be dismissed. This holding is much narrower than the excerpt quoted in Kohn would appear to suggest. N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99 (3d Cir. 1979), reflects more accurately the meaning of the Smith case. There, the district court denied a motion for a preliminary injunction and, in the same order, directed that discovery go forward. We decline to review the discovery order, concluding that, unless “subject matter jurisdiction is entirely lacking or the pleadings disclose no claim upon which relief could be granted... the discovery order is interlocutory and unreviewable.” 610 F.2d at 104. The other circuits that have considered the issue appear to have taken the more restrictive view of section 1292(a)(1) that is reflected in such opinions as Interstate Dress Carriers and Gore, discussed supra. Both the Second and Seventh Circuit approaches deserve close examination. In Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 70 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966), Judge Lumbard — reflecting the Smith court rationale — noted that [a]s a general rule, when an appeal is taken from the grant or denial of a preliminary injunction, the reviewing court will go no further into the merits than is necessary to decide the interlocutory appeal.... However, this rule is subject to a general exception — the appellate court may dismiss the complaint on the merits if its examination of the record upon an interlocutory appeal reveals that the case is entirely void of merit.... Such an exception serves the obvious interest of economy of litigation.... The Second Circuit carved out another narrow exception to the general rule in Sanders v. Levy, 558 F.2d 636, 643 (2d Cir. 1976), adhered to on this point en banc, 558 F.2d 646, 647-48 (2d Cir. 1977), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). There, the Court concluded that it could review an otherwise nonappealable class action determination because there was “sufficient overlap in the factors relevant” to the class action issue and the other, properly appealable, issues. See also Marcera v. Chinlund, 595 F.2d 1231, 1236 n.8 (2d Cir.) vacated on other grounds, sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). Judge Waterman, in State of New York v. Nuclear Regulatory Commission, 550 F.2d 745 (2d Cir. 1977), carefully delineated the rationale behind the Hurwitz and Sanders decisions. Declining to review the merits of the entire case after properly assuming jurisdiction under section 1292(a)(1), he concluded: What Hurwitz and Sanders have in common, and what distinguishes them from the present case, is that in each of them the expanded review undertaken by the appellate court required no greater expenditure of effort by that court than if it had strictly confined its review to the interlocutory order which was independently appealable. 550 F.2d at 760 (emphasis added). A similarly circumscribed approach was adopted by the Seventh Circuit in Jenkins v. Blue Cross Mutual Insurance, Inc., 522 F.2d 1235 (7th Cir. 1975), aff’d on rehearing, 538 F.2d 164 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). There, the plaintiff, a former employee of Blue Cross, charged her former employer with sex discrimination in violation of Title VII. The requested injunctive relief would have enjoined the defendants’ current employee evaluation and promotion practices. In refusing to grant the plaintiff’s motion to certify a class including all current employees of Blue Cross, the district court effectively precluded the requested injunctive relief: because the plaintiff was no longer employed, she could not demonstrate “irreparable harm” to herself resulting from continued use of the evaluation and promotion practices. On these facts, the Seventh Circuit held the class certification question appealable, concluding that “there can be no doubt that the district court’s earlier refusal to certify the suit as a class action directly controlled its subsequent decision on the requested preliminary injunction.” Id. at 1238 (emphasis added) (footnote omitted). A fair reading of the relevant Supreme Court precedents, as well as the discussions of section 1292(a)(1) found in the decisions of the other circuits that have considered the issue, lead us to conclude that the broad grant of section 1292(a)(1) jurisdiction adopted in such cases as D’lorio and Kohn is incorrect. The Congress that drafted section 1292 set forth four exceptions — and only four — from the basic rule that interlocutory orders are not appealable. Mindful of the Supreme Court’s counsel in Gardner, supra, and Switzerland Cheese, supra, we decline to reach out and extend our jurisdiction absent further directives from Congress. Instead, we hold that a pendent class certification order is not appealable under section 1292(a)(1) unless the preliminary injunction issue cannot properly be decided without reference to the class certification question. Our holding today reflects the carefully tailored reading of section 1292(a)(1) that has been mandated by the Supreme Court and advocated explicitly by the Second and Seventh Circuits. If the preliminary injunction issue appealable under section 1292(a)(1) cannot be resolved without reference to the otherwise nonappealable class certification issue — either because the latter issue directly controls disposition of the former, or because the issues are, in some other way, inextricably bound — then both issues must be addressed in order to resolve properly the section 1292(a)(1) preliminary injunction issue. In such a situation, the appellate court has no choice: any more limited review would deprive the appellant of his or her congressionally mandated right to a section 1292(a)(1) interlocutory appeal. If, on the other hand, the appellate court can dispose of the section 1292(a)(1) appeal without venturing into otherwise nonre-viewable matters, its jurisdiction should be limited accordingly. A contrary rule would have serious and unfortunate consequences. For one thing, extending appellate jurisdiction over interlocutory orders not explicitly covered by section 1292(a) could disrupt the functioning of the district court by prematurely taking matters out of the district judge’s hands. An appellate court decision to assume jurisdiction over a class certification order, for example, which “may be altered or amended before the decision on the merits,” Fed.R.Civ.P. 23(c)(1), is — -in the absence of extraordinary circumstances — a usurpation of the district court’s role. In addition, any rule that encourages a broad range of appeals under section 1292(a)(1) invites abuse. Litigants desiring immediate appellate review could simply encumber their complaints or counterclaims with prayers for injunctive relief. Finally, and most importantly, the standard arguably suggested in D'Iorio and Kohn could effectively undermine the final decision rule. Once we begin reviewing a broad range of interlocutory orders, we defeat the narrow scope of section 1292(a) that was clearly intended by Congress. C. Turning to the present appeal, we conclude that the order denying the class certification is not appealable as a concomitant of the order denying preliminary injunctive relief. Under the standard that is inferrable from section 1292(a), a mere nexus between the two orders is not sufficient to justify a decision to assume jurisdiction. Thus, the fact that the definition of the term “indigency” was relevant to both issues is not enough, by itself, to warrant the extension of our jurisdiction. Unlike Jenkins v. Blue Cross Mutual Insurance, Inc., supra, this is not a case in which the order denying the class certification “directly controlled” the refusal to grant a preliminary injunction. As an appellate court, we can resolve the preliminary injunction issue without even a reference to the order denying class certification. Indeed, it is instructive to note that, in this case, the Magistrate disposed of the preliminary injunction issue in its entirety before addressing the motion for class certification. Appendix at 62. Additionally, as the appellees point out, “it is conceivable that preliminary injunc-tive relief could have been granted while class action status [was] denied and the same result desired by the inmates would have been achieved.” Brief for Appellees at 15. The two issues are separate and distinct; in no way can they be said to be “inextricably bound.” IV. We therefore hold (a) that the ruling of the district court denying the request for a preliminary injunction will be affirmed, and (b) that the class certification order is not reviewable under section 1292(a)(1) at this point in the litigation. The matter will be remanded to the district court for action consistent with this opinion. . Kerchner’s name was docketed as Kershner, but except for the caption we will use the correct spelling of his name in this opinion. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 555 n*. 100 S.Ct. 790, 790-91 n* 63 L.Ed.2d 22 (1980). . While there is a claim that there was a failure to provide § 1983 forms for prisoners, the failure to provide enough § 1983 forms was found by the Magistrate to be nothing more than a “temporary short fall [which] resulted... [when] a check disclosed that there were only 5 sets of forms on hand. Gerber felt he had to limit the number of forms given to Ryan, until supplies could be replenished, when one considers that there are 850 men in the prison [sic]... Moreover, this court can take notice that many handwritten civil rights complaints, not on the required forms, are filed in this district.” Appendix at 60. We cannot conclude that these findings were clearly erroneous. . It must be emphasized that this case comes to us as an appeal from the denial of a preliminary injunction. It does not arrive with a detailed record. No testimony has been taken, and the case was decided on the basis of sparse affidavits. What may be error on an appeal from a final order may not constitute error at the present posture of review. Continental Group Inc. v. Amoco Chemicals Corp., 614

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"?

NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL LONGSHOREMEN’S ASSN., AFL-CIO, et al. No. 79-1082. Argued April 22, 1980 Decided June 20, 1980 Marshall, J., delivered the opinion of the Court, in which BreNNAN, White, Blackmun, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Stewart, RehNQUist, and SteveNS, JJ., joined, post, p. 522. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Stephen M. Shapiro, Robert E. Allen, Norton J. Come, Linda Sher, and Howard E. Perlstein. J. Alan Lips argued the cause for Tidewater Motor Truck Association, respondent under this Court’s Rule 21 (4), in support of petitioner. With him on the briefs was Marshall T. Bohannon, Jr. Thomas W. Gleason argued the cause for respondent International Longshoremen’s Association, AFL-CIO. With him on the brief were Ernest L. Mathews, Jr., and Andre Mazzola Mardon. Constantine P. Lambos argued the cause for respondents New York Shipping Association, Inc., et al. With him on the brief were Francis A. Scanlan, Alfred A. Giardino, and Donato Caruso. Carl W. Schwarz and Stephen P. Murphy filed a brief for respondent Dolphin Forwarding, Inc. Whiteford S. Blakeney and William L. Auten filed a brief for respondent Houff Transfer, Inc. Briefs of amici curiae urging reversal were filed by Kenneth C. Mc-Guiness, Robert E. Williams, and Daniel R. Levinson for the Air Conditioning & Refrigeration Institute et al.; by Nelson J. Conney, Kenneth E. Siegel, Robert A. Hirsch, and Alan J. Thiemann for the American Trucking Associations, Inc.; and by Raymond P. de Member for the International Association of NVOCCS. Me. Justice Marshall delivered the opinion of the Court. This case presents the question whether provisions of the collective-bargaining agreement between the International Longshoremen’s Association (ILA) and employer organizations in the shipping industry which were adopted in response to the technological innovation of containerized shipping are a lawful work preservation agreement. The National Labor Relations Board held that the provisions did not preserve traditional work opportunities for employees represented by the union, but sought instead to acquire work they had not previously performed; therefore, it concluded that the provisions violated § 8 (e) of the National Labor Relations Act, 29 U. S. C. § 158 (e), and union action to enforce them violated § 8 (b)(4)(B) of the Act, 29 U. S. C. § 158 (b)(4)(B). International Longshoremen’s Assn. (Dolphin Forwarding, Inc.), 236 N. L. R. B. 525 (1978); International Longshoremen’s Assn. (Associated Transport, Inc.), 231 N. L. R. B. 351 (1977). A divided panel of the United States Court of Appeals for the District of Columbia Circuit declined to enforce the Board’s orders. 198 U. S. App. D. C. 157, 613 F. 2d 890 (1979). We granted certiorari, 444 U. S. 1042 (1980), to resolve a conflict among the Circuits on this important question of federal labor law. I This controversy arises out of the collective-bargaining response of the ILA and the east coast shipping industry to containerization, a technological innovation which has had such a profound effect on that industry that it has frequently been termed “the container revolution.” In the words of one observer, “containerization may be said to constitute the single most important innovation in ocean transport since, the steamship displaced the schooner.” A Containers are large, reusable metal receptacles, ranging in length from 20 to 40 feet and capable of carrying upwards of 30,000 pounds of freight, which can be moved on and off an ocean vessel unopened. Container ships are specially designed and constructed to carry the containers, which are affixed to the hold. A container can also be attached to a truck chassis and transported intact to and from the pier like a conventional trailer. The use of containers is substantially more economical than traditional methods of handling ocean-borne cargo. Because cargo does not have to be handled and repacked as it moves from the warehouse by truck to the dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are significantly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most significantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship. As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo. Before the introduction of container ships, and as is still the case with conventional vessels, trucks delivered loose, or break-bulk, cargo to the head of the pier. The cargo was then transferred piece by piece from the truck’s tailgate to the ship by longshoremen employed by steamship or ste-vedoring companies. The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship’s hold. The process was reversed for cargo taken off incoming ships. With the advent of containers, the amount of on-pier work involved in cargo handling has been drastically reduced, since the cargo need not be loaded and unloaded piece by piece. The amount of work available for longshoremen has been further reduced by the shipping companies’ practice of making their containers available to shippers and consolidators for loading and unloading away from the pier. Containerization, then, was a technological advance of great importance to the shipping industry which at the same time threatened the jobs of longshoremen by dramatically increasing their productivity. As one might expect, the subject has been a hotly disputed topic of collective bargaining between the union and the employers. We are concerned with the results of that collective-bargaining process as it affects the shipping industry in the Ports of New York, Baltimore, and Hampton Roads, 'Va. B It is necessary, in discussing the collective-bargaining agreements here at issue, to define certain industry terms of art pertaining to containerized cargo. Loading cargo into a container is called “stuffing”; unloading cargo from a container is called “stripping.” Containers holding goods beneficially-owned by one shipper or consignee are called full shippers’ loads (FSL). Containers holding goods belonging to more than one shipper or consignee are called consolidated container loads. Such cargo is also called “less than trailer load” (LTL) or “less than container load” (LCL) cargo. The first collective-bargaining agreement to contain a provision dealing with containerized shipping was the 1959 agreement between ILA and the New York Shipping Association (NYSA). At that time, containerization was in its infancy. The provision in the 1959 agreement was prompted by a dispute over the use of Dravo containers, boxes eight cubic feet in size. See International Longshoremen’s Assn. (Consolidated Express, Inc.), 221 N. L. R. B. 956, 957 (1975), enf’d, 537 F. 2d 706 (CA2 1976), cert. denied, 429 U. S. 1041 (1977). The agreement recognized the right of NYSA members “to use any and all type [sic] of containers without restriction or stripping by the union.” 221 N. L. R. B., at 957. In return, NYSA agreed to contribute royalty payments on “containers which are loaded or unloaded away from the pier by non-ILA labor.” Ibid. The agreement also provided: “Any work performed in connection with the loading and discharging of containers for employer members of NYSA which is performed in the Port of Greater New York whether on piers or terminals controlled by them, or whether through direct contracting out, shall be performed by ILA labor at longshore rates.” Ibid. After the 1959 agreement was reached, the development of container shipping accelerated. In 1967, ILA demanded in collective-bargaining negotiations that longshoremen stuff and strip all containers crossing the piers. Following a lengthy strike, ILA and NYSA in 1969 adopted, as part of their 1968-1971 collective-bargaining agreement, the Rules on Containers (Rules). The terms of that master agreement were adopted by other ports on the North Atlantic coast, including Hampton Roads and Baltimore. The Rules were slightly modified in 1971, after another long strike. In 1973 ILA and the Council of North Atlantic Shipping Associations (CONASA) executed the “Dublin Supplement” as an “interpretive bulletin” to the Rules. The substance of the Dublin Supplement was incorporated in the version of the Rules contained in the 197L-1977 collective-bargaining agreement. In essence, the Rules contained in the 1968 and 1971 agreements provided that if containers owned or leased by the shipping companies and carrying LTL or consolidated container loads were to be stuffed or stripped within the local port area (that is, within a geographical radius of 50 miles of the port) by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. The shipping companies were required to pay a royalty on containers that passed over the piers intact, as well as liquidated damages, presently set at $1,000 per container, for any container handled in violation of the Rules. The Dublin Supplement declared that the Rules applied to all containers, including those designated as FSL containers, which were stuffed or stripped in the local area by other than the beneficial owner’s own employees. The Supplement also noted an exception for FSL containers warehoused locally for at least 30 days, and, as a method of enforcing the Rules, prohibited the employers from releasing any of their containers to known consolidators with facilities located within 50 miles of the port. Thus, under the final version of the Rules incorporated in the 1974 agreement, if containers owned or leased by the shipping companies are to be stuffed or stripped locally by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. FSL containers that are transported intact to or from the beneficial owner or that are warehoused locally for 30 days, and consolidated containers coming from or bound for points outside the local area, do not have to be stuffed and stripped by ILA members. The practical effect of the Rules is that some 80% of containers pass over the piers intact. App. 612. The remaining 20% are stuffed and stripped by longshoremen, regardless of whether that work duplicates work done by non-ILA employees off-pier. C This case involves two proceedings before the National Labor Relations Board (Board) on charges that the Rules are illegal secondary activity in violation of federal labor law. The cases were consolidated on appeal. The Dolphin proceeding, 236 N. L. R. B. 525 (1978), concerns the application of the provisions on LCL cargo to containers used by consolidators operating within 50 miles of the Port of New York. The Associated Transport proceeding, 231 N- L. Ri B. 351 (1977), concerns the application of the Rules to FSL containers whose cargo was transferred by truckers to their own trucks within 50 miles of the Ports of Baltimore and Hampton Roads. The affected truckers and consolidators filed unfair labor practice charges with the Board, alleging that the Rules constituted a “hot cargo” agreement in violation of § 8 (e) of the National Labor Relations Act (Act) and that the activities of the parties to the agreement in enforcing its terms were an illegal secondary boycott prohibited by §8 (b)(4)(B) of the Act. The facts underlying the charges may be briefly stated. Dolphin Forwarding, Inc. (Dolphin), and San Juan Freight Forwarding, Inc. (San Juan), were NVOCC consolidators, see n. 8, supra, soliciting business from shippers throughout the United States who wished to transport LCL cargo between New York and Puerto Rico. Dolphin and San Juan received their customers’ goods at their off-pier facilities, located within 50 miles of the Port of New York. Using subcontracted non-ILA labor, they consolidated the goods of two or more shippers, stuffed them into containers provided by members of NYSA, and had the filled containers trucked to the pier to be loaded onto ships by longshoremen. As a result of these practices, the NYSA members who had supplied their containers to the consolidators were assessed liquidated damages of approximately $47,000. Those carriers then informed Dolphin and San Juan that they would no longer furnish them with containers. Thereupon, Dolphin and San Juan filed unfair labor practice charges with the Board. Houff Transport, Inc. (Houff), and Associated Transport, Inc. (Associated), were Interstate Commerce Commission-licensed common carriers who operated motor freight terminals within 50 miles of the Ports of Baltimore and Hampton Roads. Since the advent of containerization, they had transported PSL container loads to consignees both within and beyond the 50-mile radius, and routinely stripped such PSL containers and restuffed the cargo into their own vehicles for reasons of economy, safety, or state highway or bridge regulations. The practice of using non-ILA labor to strip and restuff FSL cargo within the 50-mile radius is known as shortstop-ping. Although the Rules, prior to the Dublin Supplement, did not expressly discuss PSL cargo, see App. 235-250, 270-276, the ILA and the shipping companies apparently regarded shortstopping as an infraction, see 198 U. S. App. D. C., at 162, 613 P. 2d, at 895; 231 N. L. R. B., at 355 (Fanning, Chairman, dissenting). The Dublin Supplement, and subsequent versions of the Rules, provided that ILA labor must handle all PSL containers that otherwise would be handled within the local area by other than the consignee’s own employees, except for FSL cargo consigned to the beneficial owner’s place of business or warehoused for 30 days within the port area. After the new Rules became effective, Houff and Associated shortstopped containers picked up from CONASA members. The shipping companies were assessed liquidated damages for each such container. When Houff and Associated refused to indemnify them for the fines, the shipping companies canceled their interchange agreements. Houff, Associated, and the Tidewater Motor Truck Association (TMTA), an association of which Associated was a member, filed unfair labor practice charges. In holding that the charges were substantiated in both the Dolphin and Associated Transport proceedings, the Board relied on its previous decision in International Longshoremen’s Assn. (Consolidated Express, Inc.), 221 N. L. R. B. 956 (1975), enf’d, 537 F. 2d 706 (CA2 1976), cert, denied, 429 U. S. 1041 (1977) (hereinafter Conex) In Conex, the Board held that the traditional work of longshoremen has been to load and unload ships at the pier. As the Board explained in th& Dolphin proceeding, Conex “held that the Rules were not valid work-preservation clauses in that traditionally the off-pier stuffing and stripping of containers was performed by consolidating companies and not longshoremen. Since the work was not traditional longshore work and had never been performed by longshoremen, the Rules which required the shipping companies to stop doing business with consolidators did not have a lawful work-preservation object.” 236 N. L. R. B., at 526. Similarly, in the Associated Transport proceeding the Board affirmed the finding by the Administrative Law Judge (ALJ) of an unfair labor practice because longshoremen “had not historically done the work” of stripping FSL containers away from the pier. 231 N. L. R. B., at 353 (emphasis in original). In short, in the Board’s view the Rules sought to acquire for ILA members work that had historically been performed not by longshoremen but by employees of consolidators and truckers.. Therefore the Rules had a secondary objective forbidden by the Act. ILA and CONASA appealed to the Court of Appeals, and the Board cross-applied for enforcement of its orders. The cases were consolidated. A divided panel of the Court of Appeals refused enforcement, holding that the Board had erred as a matter of law in defining the work in controversy. It therefore vacated the Board’s decisions, denied its applications for enforcement, and remanded the cases for further proceedings. We affirm. II Section 8 (b) (4) (B) of the Act prohibits unions and their agents from engaging in secondary activities whose object is to force one employer to cease doing business with another. Section 8 (e) makes unlawful those collective-bargaining agreements in which the employer agrees to cease doing business with any other person. Although § 8 (e) does not in terms distinguish between primary and secondary activity, we have held that, as in §8 (b)(4)(B), Congress intended to reach only agreements with secondary objectives. See NLRB v. Pipefitters, 429 U. S. 507, 517 (1977) (hereinafter Pipefitters); National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 620, 635 (1967) (hereinafter National Woodwork). Among the primary purposes protected by the Act is “the purpose of preserving for the contracting employees themselves work traditionally done by them.” Pipefitters, supra, at 517. Whether an agreement is a lawful work preservation agreement depends on “whether, under all the surrounding circumstances, the Union's objective was preservation of work for [bargaining unit] employees, or whether the [agreement was] tactically calculated to satisfy union objectives elsewhere.... The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees.” National Woodwork, supra, at 644-645 (footnotes omitted). Under this approach, a lawful work preservation agreement must pass two tests: First, it must have as its objective the preservation of work traditionally performed by employees represented by the union. Second, the contracting employer must have the power to give the employees the work in question — the so-called “right of control” test of Pipefitters, supra. The rationale of the second test is that if the contracting employer has no power to assign the work, it is reasonable to infer that the agreement has a secondary objective, that is, to influence whoever does have such power over the work. “Were the latter the case, [the contracting employer] would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary.” National Woodwork, supra, at 644-645. In applying the work preservation doctrine, the first and most basic question is: What is the “work” that the agreement allegedly seeks to preserve? Sometimes the process of identifying the work at issue will require no subtle analysis. In National Woodwork, for example, the agreement preserved for the carpenters employed by a general contractor the work of fitting all doors installed on the jobsite. This was work they had always done, and the method the parties chose to preserve the carpenters’ right to that work was simply to prohibit the employer from purchasing any doors that had been prefitted by any other employees. That the provision incidentally required the employer to boycott all prefitted doors was of no consequence to the validity of the agreement. See Pipefitters, supra, at 510, 526. But in many cases it is not so easy to find the starting point of the analysis. Work preservation agreements typically come into being when employees’ traditional work is displaced, or threatened with displacement, by technological innovation. The national labor policy expresses a preference for addressing “the threats to workers posed by increased technology and automation” by means of “labor-management agreements to ease these effects through collective bargaining on this most vital problem created by advanced technology.” National Woodwork, supra, at 641, 642, In many instances, technological innovation may change the method of doing the work, instead of merely shifting the same work to a different location. One way to preserve the work of the employees represented by the union in the face of such a change is simply to insist that the innovation not be adopted and that the work continue to be done in the traditional way. The union in National Woodwork followed this tactic and negotiated an agreement in which the employer agreed not to use prefabricated materials. We held that agreement was lawful under §§8 (e) and 8 (b)(4)(B). But the protection Congress afforded to work preservation agreements cannot be limited solely to employees who respond to change with intransigence. Congress, in enacting § 8 (e), did not intend to protect only certain kinds of work preservation agreements; rather, it “had no thought of prohibiting agreements directed to work preservation,” National Woodwork, supra, at 640. The work preservation doctrine, then, must also apply to situations where unions attempt to accommodate change while preserving as much of their traditional work patterns as possible. When this is the case the inquiry must be more refined and the analysis more discriminating. The Board held that “ '[t]he traditional work of the longshoremen represented by ILA has been to load and unload ships. When necessary to perform their loading and unloading work, longshoremen have been required to stuff and strip containers on the piers.’ ” 231 N. L. R. B., at 364 (decision of ALJ, adopted by the Board), quoting Conex, 221 N. L. R. B., at 959; see 236 N. L. R. B., at 526. The Board then determined that the work in controversy was “the off-pier stuffing and stripping of containers,” ibid.; see 231 N. L. R. B., at 364-365. Similarly, in Conex the Board stated: “It is clear from the record that the work in controversy here is the LCL and LTL container work performed by [the charging parties] at their own off-pier premises.” 221 N. L. R. B., at 959. Because ILA members had never performed such work, the'Board concluded that the Rules were an illegal attempt to reach out and acquire work that was not within the union’s traditional work jurisdiction and which its members had never performed. We agree with the Court of Appeals that this approach to defining the work at issue was incorrect as a matter of law. The Board’s approach reflects a fundamental misconception of the work preservation doctrine as it has been applied in our previous cases. Identification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are allegedly seeking to preserve, and of how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. The analysis must take into account “all the surrounding circumstances,” National Woodwork, 386 U. S., at 644, including the nature of the work both before and after the innovation. In a relatively simple case, such as National Woodwork or Pipefitters, the inquiry may be of rather limited scope. Other, more complex cases will require a broader view, taking into account the transformation of several interrelated industries or types of work; this is such a case. Whatever its scope, however, the inquiry must be carefully focused: to determine whether an agreement seeks no more than to preserve the work of bargaining unit members, the Board must focus on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work, and examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it. The Board, by contrast, focused on the work done by the employees of the charging parties, the truckers and consolidators, after the introduction of containerized shipping. It found that work was similar to work those employees had done before the innovation, and concluded that ILA was trying to acquire the traditional work of those employees. That conclusion ignores the fact that the impact of containerization occurred at the interface between ocean and motor transport; not surprisingly, the work of stuffing and stripping containers is similar to work previously done by both longshoremen and truckers. The Board’s approach would have been entirely appropriate in considering an agreement to preserve the work of truckers’ employees, but it misses the point when applied to judge this contract between the ILA and the shipowner employers. By focusing on the work as performed, after the innovation took place, by the employees who allegedly have displaced the longshoremen’s work, the Board foreclosed — by definition — any possibility that the longshoremen could negotiate an agreement to permit them to continue to play any part in the loading or unloading of containerized cargo. For the very reason the Rules were negotiated was that longshoremen do not perform that work away from the pier, and never have. Thus it is apparent that under the Board’s approach, in the words of the Court of Appeals, the “work preservation doctrine is sapped of all life.” 198 U. S. App. D. C., at 176, 613 F. 2d, at 909. That this is so is vividly demonstrated by considering how different would have been the results in National Woodwork and Pipefitters if we had adopted the approach now chosen by the Board. In National Woodwork we held that carpenters could seek to preserve their traditional work of finishing blank doors at the construction jobsite by prohibiting the employer, a general contractor, from purchasing prefinished doors from the factory. If we had followed the Board’s current approach in analyzing the agreement, we would have defined the work in controversy as “the finishing of blank doors away from the construction site.” That work, of course, had never been done by the carpenters employed by the general contractor, but had been performed by the employees of the door manufacturers since before the adoption of the agreement. We would perforce have determined that the object of the agreement was work acquisition, not work preservation. Similarly, Pipefitters involved an agreement between a subcontractor and a pipefitters’ union that pipe threading and cutting were to be performed on the jobsite. Relying on the agreement, the union refused to install climate-control units whose internal piping had been cut, threaded, and installed at the factory. The Board held that the provision was a lawful work preservation agreement, but that the refusal to handle the prepiped units was an unfair labor practice because the units had been specified by the general contractor and the subcontractor had no power to assign the employees the work they sought. Neither the Court of Appeals nor this Court questioned the validity of the work preservation clause but for the fact that it was enforced against an employer who could not control the work. Under the Board’s current approach, however, the “work” would have been “cutting, threading, and installing pipe in climate-control units at the factory.” Since the bargaining unit employees had never performed that work, there would have been no reason to reach the “right of control” issue. Thus the Board’s determination that the work of longshoremen has historically been the loading and unloading of ships should be only the beginning of the analysis. The next step is to look at how the contracting parties sought to preserve that work, to the extent possible, in the face of a massive technological change that largely eliminated the need for cargo handling at intermediate stages of the intermodal transportation of goods, and to evaluate the relationship between traditional longshore work and the work which the Rules attempt to assign to ILA members. This case presents a much more difficult problem than either National Woodwork or Pipefitters because the union did not simply insist on doing the work as it had always been done and try to prevent the employers from using container ships at all— though such an approach would have been consistent with National Woodwork and Pipefitters. Instead, ILA permitted the great majority of containers to pass over the piers intact, reserving the right to stuff and strip only those containers that would otherwise have been stuffed or stripped locally by anyone except the beneficial owner’s employees. The legality of the agreement turns, as an initial matter, on whether the historical and functional relationship between this retained work and traditional longshore work can support the conclusion that the objective of the agreement was work preservation rather than the satisfaction of union goals elsewhere. Respondents assert that the stuffing and stripping reserved for the ILA by the Rules is functionally equivalent to their former work of handling break-bulk cargo at the pier. Petitioners-intervenors, on the other hand, argue that containerization has worked such fundamental changes in the industry that the work formerly done at the pier by both longshoremen and employees of motor carriers has been completely eliminated. These questions are not appropriate for initial consideration by reviewing courts. They are properly raised before the Board, whose determinations are, of course, entitled to deference. Since the Board has not had an opportunity to consider these questions in relation to a proper understanding of the work at issue, we will not address them here. We emphasize that neither our decision nor that of the Court of Appeals implies that the result of the Board’s reconsideration of this case is foreordained. Viewing the work allegedly to be preserved by the Rules from the proper perspective, the Board will be free to determine whether the Rules represent a lawful attempt to preserve traditional longshore work, or whether, instead, they are “tactically calculated to satisfy union objectives elsewhere,” National Woodwork, 386 U. S., at 644. This determination will, of course, be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace, see id., at 641-642. Thus, in judging the legality of a thoroughly bargained and apparently reasonable accommodation to technological change, the question is not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs. If the Board finds, on remand, that the Rules have a lawful work preservation objective, it will then, of course, be obliged to consider the charging parties’ contention that CONASA members did not have the right to control the stuffing and stripping of containers. Because the Board held that the agreement was directed at work acquisition, rather than work preservation, it did not decide the right-to-control issue in this case. That issue remains open on remand. Therefore, and because the arguments of the parties were necessarily-addressed to an erroneous conception of the work whose control was disputed, any discussion of that issue here would be premature. Respondents have also argued that the employers, as common carriers who are subject to Government regulation and to the provisions of their own tariffs, shippers’ bills of lading, and intermodal interchange agreements with motor carriers, have no legal right to withhold containers or container services from their customers on a selective basis, to condition access to the containers on compliance with the Rules, to seek indemnification from their customers for fines imposed under the Rules, or to enforce the Rules after the containers have been released to motor carriers. See, e. g., Shipping Act, 1916, 46 U. S. C. §801 et seq.; Intercoastal Shipping Act, 1933, 46 U. S. C. § 843 et seq.; Sea-Land Service, Inc.-Proposed ILA Rules on Containers, 20 F. M. C. 788 (1978), review pending, No. 78-1776 (CADC). These contentions present difficult and complex problems which are not properly before us. We conclude that the Court of Appeals correctly held that the Board’s definition of the work in controversy in this dispute was erroneous as a matter of law, and we therefore affirm the Court of Appeals’ judgment vacating the Board’s decisions, denying the applications for enforcement, and remanding to the Board for further proceedings. It is so ordered. APPENDIX TO OPINION OF THE COURT 1974 Rules on Containers CONASA-ILA RULES ON CONTAINERS PREAMBLE This Agreement made and entered into by and between the carrier and direct employer members of the CONASA Port Associations (hereinafter referred to collectively as “CONASA”) and the International Longshoremen’s Association, AFL-CIO (“ILA”), its Atlantic Coast District (“ACD”) and its affiliated local unions in each CONASA port (“locals”) covers all container work at a waterfront facility which includes but is not limited to the receiving and delivery of cargo, the loading and discharging of said cargo into and out of containers, the maintenance of containers, and the loading and discharging of containers on and off ships. CONASA agrees that it will not directly perform work done on a container waterfront facility (as hereinafter defined) or contract out such work which historically and regularly has been and currently is performed by employees covered by CONASA-ILA Agreements, including CONASA-ILA craft agreements, unless such work on such container waterfront facility is performed by employees covered by CONASA-ILA Agreements. RULES The following provisions are intended to protect and preserve the work jurisdiction of longshoremen and all other ILA crafts which was performed at deepsea waterfront facilities. These rules do not have any effect on work which historically was not performed at a waterfront facility by deepsea ILA labor. To assure compliance with the collective bargaining provisions, the following rules and regulations shall be applied uniformly in all CONASA Ports to all imports or export cargo in containers: Definitions (a) Loading a Container — means the act of placing cargo into a container. (b) Discharging a Container — means the act of removing cargo from a container. (c) Loading Containers on a vessel — means the act of placing containers aboard a vessel. (d) Discharging Containers from a vessel — means the act of removing containers from a vessel. (e) Waterfront facility — means a pier or dock where vessels are normally worked including a container compound operated by a carrier or direct employer. (f) Qualified Shipper — means the manufacturer or seller having a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the export cargo being transported and who is named in the dock/cargo receipt. (g) Qualified Consignee — means the purchaser or one who otherwise has a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order. (h) Consolidated Container Load — means a container load of cargo where such cargo belongs to more than one shipper on export cargo or one consignee on import cargo. Rule 1 — Containers To Be Loaded or Discharged by Deep-sea ILA Labor (a) Cargo in containers referred to below shall be loaded into or discharged out of containers only at a waterfront facility by deepsea ILA labor: (1) Containers owned, leased or used by carriers (including containers on wheels and trailers), hereinafter “containers”, which contain consolidated container loads, which come from or go to any point within a geographic area of any CONASA port described by a 50-mile circle with its radius extending out from the center of each port (hereinafter “geographic area”) or (2) Containers which come from a single shipper which is not the manufacturer (“manufacturer’s label”) into which the cargo has been loaded (consolidated) by other than its own employees and such containers come from any point within the “geographical area,” or (3) Containers designated for a single consignee from which the cargo is discharged (deconsolidated) by other than its own employees within the “geographic area” and which is not warehoused in accordance with Rule 2 (b). (b) Such ILA labor shall be paid and employed at deep-sea longshore

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The FIRST NATIONAL BANK AND TRUST COMPANY OF OKLAHOMA CITY, OKLAHOMA, and T. Jack Foster, Trustees, and the Beneficiaries of the John Robertson Foster Trust, Appellants, v. John Robertson FOSTER, Appellee. No. 7885. United States Court of Appeals Tenth Circuit. May 24, 1965. R. C. Jopling, Jr., Oklahoma City, Okl. (Fowler, Rucks, Baker, Jopling, Gramlich & Mee and Lynnie Clayton Spahn, Oklahoma City, Okl., were with him on the brief), for appellants. Gus Rinehart, Oklahoma City, Okl. (Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellee. Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges. SETH, Circuit Judge. The appellee commenced this action to require the appellant cotrustees to accept an amendment or supplement to a trust agreement that they were then administering. The trial court entered judgment in favor of the appellee and thereby required the acceptance of the supplemental agreement. The trustees have taken this appeal. The record shows that the appellee is the settlor or trustor of a trust administered under a trust agreement dated July 25, 1960, wherein the appellants are named cotrustees. This original agreement expressly provides that the trust should be irrevocable. It also provides that the income should be paid to the trustor, and that the distribution of the corpus after the death of the trustor be made as he may “designate by instrument supplementary to this trust agreement and delivered to and accepted by Trustees.” The instrument makes provision for distribution in the event trustor shall not execute such supplemental instrument by providing that the corpus is to be divided and remitted as directed by the individual trustee in his sole discretion. In January 1961 the trustor prepared a Supplement to the trust agreement in which detailed distribution of the corpus was directed. Then the trustor on June 15, 1961, filed an additional Supplemental Agreement which refers to the previous Supplement and again, as did the Supplement of January 13, 1961, refers to paragraph 6 of the original instrument which contains the provision for further disposition of the corpus as the trustor may designate by instrument supplementary to the original agreement. This Supplement of June 15, 1961, also recites a desire to revoke the prior Supplement to “amend the trust agreement” by surrendering his own right, title and interest therein. By this instrument the trustor renounced his right to income and provided that the administration and distribution be made without reference to whether the trustor is alive or dead. This instrument specifies that certain savings accounts are to be created and provides for disbursements of the corpus of the estate by a committee for the education of certain named persons. Thereafter the trustor prepared an additional Supplement dated October 11, 1962, which is the subject of this litigation since the trustees refused to accept and to proceed in accordance with it. This instrument revokes portions of the last prior Supplement, reinstates the life income to the settlor, and provides that the corpus of the trust shall pass upon the settlor’s death to his widow. The appellants urge that the Supplement of October 11, 1962, proposed by the trustor-appellee is in effect a revocation of the trust, and the trustor is powerless to so terminate the expressly irrevocable agreement under Oklahoma law. The appellants further argue that the prior Supplements were proper in that the Supplement of January 13, 1961, was an exercise of the power reserved by the trustor; that the Supplement of June 15, 1961, was a permissible waiver or surrender of the trustor’s right to receive income, and was a “minor revision” to identify the beneficiaries. Appellants urge that in contrast the proposed Supplement completely alters the purpose of the trust, the class of beneficiaries, and voids all prior instruments. The trial court found that the proposed Supplement was proper, and that the trustees should accept it. The remarks of the court indicate that the proposed Supplement does not constitute a revocation of the trust, and further that under the law of Oklahoma the trustor could exercise the reserved right to designate the beneficiaries upon the distribution of the trust as many times as he desired. The record shows that the proposed Supplement as it relates to the distribution of income during the lifetime of the trustor appellee would restore the provisions as made in the original trust agreement. It expressly “reinstates” the paragraph of the original agreement relating to income. This in itself cannot be considered a revocation, and there can be made no valid objection to it. The proposed Supplement to the extent that it constitutes a repeated exercise of the power to designate beneficiaries on the settlor’s death does not, according to the record, demonstrate anything contrary to the intention of the settlor. The settlor had previously exercised such a right several times, and this if nothing more demonstrates his intention that the reserved power would not be exhausted upon its first exercise. As was stated by the Oklahoma court in Hurst v. Kravis, 333 P.2d 314 (Okl.), the intention of the settlor should control if not in conflict with established principles of law. Under the circumstances here presented, the finding of the trial court that the repeated exercise of the power was proper was not erroneous. The settlor has the power to modify trust provisions to the extent that he reserved such authority. Restatement, Trusts § 331. The appellee in the case at bar reserved the power to make a different designation of beneficiaries on distribution upon his death in a supplemental instrument than was provided in the original instrument. This was a reservation of a right to modify the instrument as originally executed, and was not a power of a different character. The provision does not expressly state that repeated designations may be made, but such repeated use as is here before us is not contrary to law and, as indicated, is in accord with the settlor’s intent. Such a right to modify the original instrument as here reserved need not be stated in more exact terms under these circumstances. Bogert, Trusts, § 995; 35 Ill.L.Rev. 976. The parties have cited no Oklahoma cases directly upon the point of repeated exercise of a power to modify. The trial court’s determination of the applicable law of Oklahoma will be upheld under these circumstances unless clearly wrong, and we do not find it so. F & S Construction Co. v. Berube, 322 F.2d 782 (10th Cir.); Robert Porter & Sons, Inc. v. National Distillers Products Co., 324 F.2d 202 (10th Cir.); United States Fidelity & Guaranty Co. v. Lembke, 328 F.2d 569 (10th Cir.). The trial court also found that the attempted modification was not a revocation. The Oklahoma statute, 60 O.S.A. § 175.41, relating to revocation, is not applicable. Appellants urge that the basic question is whether the trust is revocable, but the determination of the trial court must stand. The effect of the reinstatement of the life income has been considered above. As to the balance of the proposed Supplement, it revokes all the operative provisions of the June 15, 1961, Supplement and then makes specific provision for distribution of the corpus on the settlor’s death to his widow, and then reaffirms the original trust agreement as modified. The record indicates no intention by the settlor to revoke the trust, and in fact all the evidence is to the contrary. The appellants urge in effect that despite such intention the changes are so great as to constitute a revocation. The record does not support such a position. Considering the proposed Supplement as a whole, its effect is to restore the theretofore changed provisions of the original trust, and to redesignate beneficiaries under the retained powers hereinabove considered. The new beneficiary of the corpus is not one of a class designated in prior instruments, and this does represent a change. However, there are no restrictions on the reserved power, and a change in the class of beneficiaries, the trust otherwise being as originally provided, cannot be regarded as a revocation. The finding of the trial court on this point is well supported by the record and no revocation was intended or resulted from the proposed Supplement. 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?

Luis GONZALEZ HERNANDEZ et al., Appellants, v. Orlando de ARAGON, Trustee, Appellee (two cases). In the Matter of CENTRAL SAN VICENTE, INC., Debtor. Nos. 6479, 6514. United States Court of Appeals First Circuit. Heard Feb. 7, 1966. Decided April 20, 1966. Carmen B. Hernandez, San Juan, P. R., for appellants. Orlando J. Antonsanti, San Juan, P. R., for appellee. Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. These appeals, challenge various orders of the district court finding feasible, approving, and confirming a Chapter X plan of corporate reorganization of a Puerto Rico sugar refinery company, Central San Vicente, Inc., pursuant to 11 U.S.C. § 501 et seq. Appellants include several unsecured creditors and one stockholder. Our standard of review in such cases is clear. As this court has said of another corporate reorganization, “If the words ‘fair and equitable, and feasible’ * * * are to be taken in their broad general meaning, and if the confirmed plan of reorganization is not in conflict with some hard and fast rule of law, it is clear to us that the order of the district court should be affirmed. The determination of the district court as to the fairness of the plan will not be set aside unless clearly shown to be erroneous * * Horowitz et al. v. Kaplan et al., 1 Cir., 1951, 193 F.2d 64, 71, cert. denied, 1952, 342 U.S. 946, 72 S.Ct. 561, 96 L.Ed. 704. The record in this case fails to disclose any such clear error. Rather, it demonstrates a prolonged and painstaking effort by the court, the trustee, and others over a period of four years to restore the debtor to a viable economic life. Further, this effort was made in an industrial sector — the sugar industry — which in Puerto Rico has been beset by both general uncertainty and substantial fluctuations in prices and prospects. Undoing the work that has gone forward under such circumstances is not lightly to be contemplated. The course of the effort was as follows. In August 1962, after the discovery of serious shortages of sugar in debtor’s warehouses, the debtor was placed in receivership by the Superior Court of Puerto Rico. Creditors filed a Chapter X petition in the federal district court in September 1962. On November 6, 1962, after hearing, the district court found the debtor insolvent and subsequently appointed appellee, Orlando de Aragon, as trustee. Subsequently both an appraisal and an audit were directed to be made. The appraisal, made by a competent mechanical engineer, set a “final estimate of value” of $5,500,000 for the debtor’s assets, as of July 1963. The auditor, an independent accounting firm, criticizing the appraisal as not giving enough weight to earnings potential or liquidation value, preferred to use 1963 cost figures of $3,987,734 as a closer approximation to value. The trustee, in April 1964, filed vigorous “observations” dissenting from the appraiser’s evaluation, alleging that it considerably overstated the market value, in the light of the decline of the sugar industry in Puerto Rico, the distress sales of several other local sugar mills, the disappearance of farms and acreage from sugar cane production in the area where the debtor was located, the decreasing yield in sugar from sugar cane, and the past unsatisfactory earning history of the debtor. During 1963 the business of the debtor was carried on by appellee and adequate provision was made for the filing and proving of claims. In late November 1963, the debtor filed a plan of organization, which was duly objected to by ap-pellee as violating provisions of the Bankruptcy Act under the circumstances. In January 1964, appellee filed a plan, incorporating proposals of several creditors. This plan, objected to by the debt- or, became moot when a purchaser which had contracted to buy the debtor’s 1964 sugar production encountered financial difficulties. Thereupon, in September 1964, the two major secured creditors, the Government Development Bank for Puerto Rico and Chase Manhattan Bank (whose total secured debts were in excess of $3,300,000) filed the plan now in issue. The principle features of this plan, insofar as this case is concerned, are the following. The Government Development Bank would contribute $400,000 for working capital, half of which would be covered by a new fifteen year first mortgage replacing its existing mortgage, and would receive 51 per cent of the stock in a reorganized company. Chase Manhattan would take a new second mortgage to secure the principal indebtedness owed it of $729,000, would forego accumulated interest to the date of the new mortgage (then stated to be $108,-826), and would receive 20 per cent of the stock in the reorganized company. The remaining 29 per cent of the stock would be distributed to unsecured creditors, who would also name two members of a board of seven directors. Hearings were held on this third plan and amendments, and, on October 6, 1964, the district court issued an order finding it feasible and submitting it to the Securities and Exchange Commission. On November 6, 1964 the court issued an order approving the plan and directing that a copy of the plan as amended be sent to each creditor. The secured creditors, 99 per cent of the independent farmer creditors, and 70 per cent of the unsecured creditors approved the plan. After hearing and consideration of arguments against confirmation, the court, on January 29, 1965, confirmed the plan, finding it fair, equitable, and feasible, and also found: "That, after taking into consideration the appraisal made by the independent appraiser, the observations of the Trustees [sic] in connection with said appraisal, the audit made by the independent auditing firm, and the evidence introduced as to the prospective earnings of the debtor as a going concern, the fair value of the debtor’s business is three million two hundred thousand dollars ($3,200,000). * *” The most basic attack on the plan concerns the value placed on the assets by the district court. If there had been clear error in substantially undervaluing the enterprise, common creditors and perhaps stockholders could claim to have been unfairly treated. Appellants make several arguments relating to evaluation. They say that the court did not determine the value of the debtor’s properties and debts as of the date of filing of the Chapter X petition. As to this, we think that the court acted properly. There was every reason for the expeditious transfer of debtor’s operations from the receivership to a federal trustee. There was adequate basis for the court’s finding of insolvency and inability to pay debts as they matured. Indeed, we find no averment of error as to the correctness of this finding. It would have served no purpose to delay this finding until an audit and appraisal were available. Appellants argue further that, while the court admittedly made a specific finding as to value at the time the plan was confirmed, error was committed in not making such a finding at the time of approval. They also charge error in the court’s action in accepting the guidance of the trustee and the accounting firm as to value over that of the appraiser. We think the court, having adjudicated insolvency, was not acting improperly under the facts of the case to delay fixing a figure for the value of the properties. Even within the eleven months separating the submission of the first plan from that of the • third, the price of sugar had fluctuated substantially (see note 3, supra), and one major purchaser had been subjected to a Chapter XI proceeding. There was a precise finding before confirmation of the plan, when the most current data could be taken into account. We cannot say that the district court erred in postponing its formal finding under the circumstances of this case. The rejection of the appraiser’s report was not arbitrary or unreasoned. (See note 2, supra.) A company in ex-tremis, in an unpredictable industry, in an area where that industry has seen dramatic decline, with no evidence of buyer interest, ought not to be subjected to standards prevailing in more thriving industrial sectors. As the Supreme Court said, in Consolidated Rock Products Co. et al. v. Du Bois, 1941, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982: “ * * * The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. * * * Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. A sum of values based on physical factors and assigned to separate units of the property without regard to the earning capacity of the whole enterprise is plainly inadequate.” It was this basic approach which the court properly followed in this case. This being so, we cannot say that the plan unfairly discriminated in favor of the secured creditors and against common creditors and stockholders. With total assets of August 31, 1964 being $5,529,867 and total debt being $8,407,612 (to which should be added subsequent borrowing on trustee’s certificates in the amount of $534,400 as of December 1, 1964), it is obvious that stockholders had no equity. Worcester et al. v. Chicago Transit Authority, et al., 7 Cir., 1947, 160 F.2d 59, cert. denied, 331 U.S. 808, 67 S.Ct. 1192, 91 L.Ed.2d 1829; Meyer et al. v. Dolan et al., 2 Cir., 1945, 145 F.2d 880, cert. denied, 324 U.S. 867, 65 S.Ct. 916, 89 L.Ed. 1422. Nor can we say, with secured debt (including interest and borrowing on trustee’s certificates) approaching $4,000,-000, that the plan gave unfair emphasis to it. Indeed, this emphasis would seem to have been required by the full and absolute priority rule of Northern Pacific Ry. Co. v. Boyd, 1913, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 and Case v. Los Angeles Lumber Products Co., 1939, 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110. The substitution of first and second mortgages and extension of time, the provision of $400,000 in working capital by the Government Development Bank and the giving up of accumulated interest by Chase Manhattan, together with provision for payment of small creditors, independent farmers and employees, and a .29 per cent participation of common creditors in stock holdings and a like representation on the Board of Directors seem to us to reflect a reasonable effort to give the debtor hope for survival, reflecting the legitimate interests of the two banks whose forbearance make survival possible, and at the same time providing for some participation by others. The amendments proposed by appellants would have altered the plan only by giving common creditors noninterest bearing third mortgage bonds payable in twelve annual installments for one half of their claims and the remaining half in five per cent non-cumulative and nonvoting preferred stock. They also proposed giving shareholders new (and admittedly worthless) common stock in exchange for old, all to be in a voting trust “in favor of” the Government Development Bank. Part of these proposals — those concerning the preferred stock being layered over new common — would convey so little in substance that the court’s refusal to accept them could not be said to have prejudiced appellants. As for the rest of the proposal, we could not find the court below in error in refusing to add the burden of annual debt repayments to the already fragile financial structure of the reorganized enterprise. Indeed, to have adopted this proposal might well have violated the teaching of Case v. Los Angeles Lumber Products Co., supra. We do not deem the remaining issues worthy of extended discussion. To the allegation that one of the appellants was deprived of his day in court because of the time taken by a special master to examine his claim, we observe that the special master did recommend allowance of the claim in September 1964. It appears to us that there was adequate reason for the court to have ordered the examination and we cannot say that the special master, in taking six months to allow a claim in excess of half a million dollars, was unduly dilatory. In any event, the appellant was under no disability to participate in all of the hearings and arguments which followed the filing, in September 1964, of the third plan. In fact he did join in proposing the amendments which we have discussed above. We see no evidence that appellant was wrongfully denied any substantive opportunity to influence further the course of this proceeding. Appellants make the additional argument that a genuine two thirds approval from common creditors was not forthcoming because a pre-petition claim of Olavarria & Co., Inc. in the amount of $1,293,685.99 ought to have been reduced by setting off a post-petition debt owed the estate by another company, Galban Lobo Puerto Rico, Inc, The reason urged is the fact that the same top officers served both companies. Wholly apart from the difference in corporate entities, this is not a setoff having the kind of mutuality required by 11 U.S.C. § 108. In the Matters of North Atlantic and Gulf Steamship Co., S.D.N.Y.,1962, 204 F.Supp. 899; In re Techcraft, Inc., S.D.N.Y., 1959, 177 F.Supp. 790. Finally, while allegations of mismanagement are said to have resulted in an excessive increase in the debtor’s debt, appellants have left it, without specification, that the record is “full of instances” of exorbitant expenditures and compensation. We have found nothing that could remotely suggest a reason for reversal. Affirmed. . It appears that appellee, acknowledged to be an outstanding sugar mill operator, was an employee of Central Mercedita, Inc., and was loaned by it for his period of service as trustee. Central Mercedita, Inc. was not a creditor and did not participate in these proceedings, although in October 1962, it had made a written offer to the Government Development Bank for Puerto Rico, the major secured creditor, proposing a management contract and participation in a plan of reorganization. The district judge very properly showed his awareness of a possible conflict of interest should Central Mercedita, Inc. become a participant in financing the reorganization. But no such situation developed. In the meantime the court was well advised to accept the services of an able manager while being fully aware of and equipped to deal with a conflicts of interest problem should one arise. . That the trustee’s “observations” were neither capricious nor arbitrary seems clear to us from a reading of the appraisal report. The appraiser, using various methods, arrived at these extraordinarily similar results: reproduction cost less depreciation, $5,598,480; “economic value” (capitalization of income), $5,400,-000; “going concern value” (identical to “economic value” since there was no “good will value” reflecting earnings about normal), $5,400,000; value by comparison, $5,346,270; final estimate of value, $5,500,000. While the appraiser’s final objective was to ascertain fair market value or “the measure of coveting or desire that humans, under free and fair conditions, might have for the properties involved”, his basic assumptions, looking ahead twenty and thirty years, were that “with increasing world populations sugar lands will be hard put to supply world demand” and that the cost of living would increase. This is fair market value very much in futuro. While he mentioned that the recent sales of sugar mills in Puerto Rico were distress sales, he did so only for the purpose of explaining that they could not be used for comparison. Constant yields and tonnage were projected as were income figures. At an estimated $8 per cwt sugar price, total income was projected at $7,109,940, net income before depreciation at $351,200, and net income at $101,200. Had the appraiser used the $6.20 figure embodied in the final plan, his pro-forma profit and loss statement would have reflected a loss before depreciation of $1,108,960. . It is significant, in assessing the district court’s ultimate action on the plan, to note that the sugar prices used in constructing the various plans fluctuated as follows: Debtor’s plan Nov. 1963 $7.50 per cwt Trustee’s plan Jan. 1964 8.50 per cwt (except a small quantity under existing contract at $10.055 per cwt) Pinal plan Sept. 1964 6.20 per cwt

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?

UNITED STATES of America, Plaintiff-Appellee, v. Mance E. TRICE, Defendant-Appellant. No. 18934. United States Court of Appeals Sixth Circuit. June 17, 1969. J. William Rutherford, Nashville, Tenn., for appellant. Martha C. Daughtrey, Nashville, Tenn., Gilbert S. Merritt, Jr., U. S. Atty., Kent Sandidge, III, Asst. U. S. Atty., Nashville, Tenn., on brief, for appellee. Before PHILLIPS, McCREE and COMBS, Circuit Judges PER CURIAM. This is a direct appeal from a conviction on two counts of an indictment charging unlawful possession of a check stolen from the United States mail and embezzlement of the proceeds of the check, in violation of 18 U.S.C. §§ 1702 and 1708. The jury found the defendant not guilty of the first count charging the taking of the envelope and its contents from the mail. Two issues are presented on the appeal: (1) whether there was sufficient evidence to support the verdict of the jury; and (2) whether the District Judge committed reversible error at the time of sentencing by refusing to permit counsel for defendant to inspect a memorandum prepared by counsel for co-defendant and delivered by him to the probation officer. The United States Attorney stated that an “unusual circumstance” had come to his attention in that the probation officer had a report from the co-defendant’s counsel, who was in the courtroom. The United States Attorney commented that “I think it is apropos on the matter of sentencing. * * * ” Thereupon he handed the report or memorandum to the District Judge, who read it and commented that “I’m going to give him exactly the same sentence I was going to give him before I read this because this is not controlling on the sentence matter.” The attorney for appellant asserted that he had a right to see the report, but this request was denied. The District Court proceeded to sentence defendant to the custody of the Attorney General for a period of one year and six months on the second and third counts of the indictment, the sentences to run concurrently. The refusal of the District Court to apprise defendant of the nature or content of the document was one of the grounds of defendant’s motion for a new trial. This motion was overruled. Upon a study of the briefs and transcript and after hearing oral argument, we conclude that there is sufficient evidence in the record to support the conviction. The second question, concerning the refusal to inform counsel for defendant of the nature and content of the document which was furnished to and read by the District Judge immediately prior to sentencing, presents a more serious issue. As a general rule when any communication is made to the District Judge by the prosecutor or a co-defendant at the time of sentencing for the purpose of influencing the sentence, other than through the probation officer in time for investigation, evaluation and report, we think its content should be disclosed to counsel for defendant upon his request. After oral argument on the present appeal, this Court has obtained from the clerk of the District Court for in camera inspection the original of the document in question. Every member' of the panel has read this document. We think it would have been better practice for the District Judge to have disclosed the contents of this document to counsel for defendant, either in chambers or in open court. However, since the District Judge stated affirmatively that this document had no effect on sentencing and there is nothing about the sentence to indicate the contrary, we conclude that refusal to divulge the contents of the document to counsel for defendant did not constitute reversible error under the facts and circumstances of the present 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 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?

Thomas H. WILSON and Marilyn L. Grandon, as Co-Trustees of the Testamentary Trust of Huber Greer Wilson, and as Co-Executors of the Estate of Louise Wilson, Plaintiffs-Appellees, v. BILL BARRY ENTERPRISES, INC., Defendant-Appellant, and O. R. Hahn, Inc., dba Santa Ana Chrysler-Plymouth; Ward & James; Freeway Auto Body; Does 1-50, Inclusive, Defendants. No. 86-5906. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 5, 1987. Decided July 20, 1987. As Amended Sept. 28, 1987. Marc J. Winthrop, Andrew K. Mauthey, Newport Beach, Cal., for defendant-appellant. Michael N. Zachary, Los Angeles, Cal., for plaintiffs-appellees. Before NELSON, BEEZER and LEAVY, Circuit Judges. Hon. Edward Leavy, United States Circuit Judge, at the time of argument was a United States District Judge, District of Oregon, sitting by designation. LEAVY, District Judge: Bill Barry Enterprises, Inc. (Barry) appeals from the district court’s order dismissing its petition for reinstatement of his lease. Barry originally filed the petition in California state court. Appellees, Thomas Wilson and Marilyn Grandon (Wilsons), removed the state court petition to federal district court. The district court dismissed the petition for lack of subject matter jurisdiction. We reverse the dismissal and remand to the district court. FACTS AND PROCEDURAL HISTORY The Wilsons own an eight and one-half acre parcel of land which was leased to Barry in 1968. The lease term was for fifty-five years with rent to be recalculated every ten years; yearly rent was to be six percent of the fair market value of the underlying land. In 1982, Barry filed a voluntary petition for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101, in the United States Bankruptcy Court for the Central District of California. Subsequently, Barry obtained approval from the bankruptcy court to assume the lease. When the time came to recalculate the lease rental in 1983, the Wilsons and Barry could not agree on the appropriate rent. As a consequence, the Wilsons filed a complaint for relief from the automatic stay in the bankruptcy court. The bankruptcy court determined in January, 1984, that appropriate rent was $30,000 per month. In the event that Barry did not make the rental payments, the court granted the Wilsons relief from the automatic stay to file an unlawful detainer action in state court. Barry appealed the order and the district court affirmed. When Barry failed to make payments on the lease, the Wilsons filed an unlawful detainer action in the Orange County Superior Court and sought to have the lease terminated. At the same time, the Wilsons filed an action in bankruptcy court for payment of back rent. The bankruptcy court ruled in the Wilsons’ favor and ordered Barry to pay the outstanding rent. The Wilsons attempted to execute on the court’s order by levying on Barry’s bank account. Before execution, Barry removed the funds from the bank, in violation of a court order. As a result of Barry’s action, the bankruptcy court appointed a trustee for Barry’s bankruptcy estate. The Wilsons prevailed in their unlawful detainer action in state court in two separate trials, one against Barry and one against the trustee. Judgment was entered against Barry on October 3, 1985, and against the trustee on November 8, 1985. On December 9, 1985, Barry filed a petition in state court seeking reinstatement of the lease under Cal.Civ.Proc.Code § 1179 (West 1982). A declaration of the trustee was attached to the petition. Therein the trustee stated: “there is sufficient cash on hand to satisfy additional claims for rent, if any, made by the Wilsons as a condition to reinstating the lease.” The Wilsons removed the petition for reinstatement to the United States District Court for the Central District of California. Once in federal court, the Wilsons moved to dismiss the petition for lack of jurisdiction. The Wilsons made three arguments in support of their motion to dismiss. First, they argued that the state court lacked jurisdiction because the petition infringed upon the exclusive jurisdiction of the bankruptcy court. Because the federal court’s jurisdiction was derived from the state court, it also lacked jurisdiction. Second, the Wilsons argued that the trustee, rather than Barry, was the real party in interest, and that Barry had no authority to file the petition. Third, they argued that the petition was untimely because it was filed more than thirty days after the judgment rendered against Barry. The district court held that the state court, and therefore the district court, lacked jurisdiction over the petition for reinstatement. The district court found that the petition involved matters critical to administration of the bankruptcy estate. The district court stated, that these matters fall within the jurisdiction only of the federal court, and that “only through federal abstention may a state court acquire jurisdiction to hear these matters.” In this appeal, Barry challenges the district court’s ruling dismissing the petition for reinstatement of the lease for lack of jurisdiction. The Wilsons submit as bases for affirming the district court’s ruling all three grounds previously advanced. DISCUSSION Jurisdiction. The jurisdiction of a federal court over an action removed from a state court is derivative in nature. State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 658-59 (9th Cir.1972). “If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.” Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Thus, in reviewing the district court’s dismissal of Barry’s petition, we must determine whether the state court had jurisdiction over the petition. Upon commencement of a bankruptcy proceeding the bankruptcy court obtains jurisdiction over the estate of the debtor. Callaway v. Benton, 336 U.S. 132, 142-43, 69 S.Ct. 435, 441-42, 93 L.Ed. 553 (1949). Property of the estate includes “all legal or equitable interests of the debtor in property.” 11 U.S.C. § 541(a)(1). These interests of the debtor are “created and defined by state law.” Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Because Barry had a right under California law to seek relief from the forfeiture of its lease with the Wilsons, this right is property of the estate. Cf In re Norma E. Worchester, 811 F.2d 1224, 1228 (9th Cir.1987) (property of debtor includes right under California law to set aside foreclosure sale). “[T]he statutory authorization for relief from forfeiture is part of the unlawful detainer statutes.” Childs v. Eltinge, 29 Cal.App.3d 843, 852 n. 8, 105 Cal.Rptr. 864 (1973). Section 1174 allows the landlord to seek forfeiture of the lease; section 1179 gives the tenant the right to seek relief from forfeiture in the case of hardship. Section 1179 applies only to unlawful detainer proceedings, Hignell v. Gebala, 90 Cal.App.2d 61, 70, 202 P.2d 378 (1949), and is the exclusive method of seeking relief from forfeiture. Boston Properties v. Pirelli Tire Corp., 134 Cal.App.3d 985, 995, 185 Cal.Rptr. 56 (1982). Because of this statutory structure, the bankruptcy court’s lifting of the automatic stay to allow the Wilsons to seek termination of the lease included Barry’s right to petition for relief from termination, if declared. Thus, while the bankruptcy court had jurisdiction over Barry’s right to seek reinstatement, it relinquished its jurisdiction when it granted relief from the automatic stay. As a consequence, the Orange County Superior Court had jurisdiction to hear Barry’s petition. Timeliness. The issue whether Barry’s petition was untimely filed is best determined by the state court on remand. Proper Party. The Wilsons contend that Barry is not a proper party to petition for reinstatement. Section 1179 provides, in pertinent part, that “[t]he application [for relief from forfeiture] may be made by ... any person in interest in the continuance of the term.” Because Barry has such an interest, it is a proper party to petition for reinstatement. While section 1179 does require that any grant of reinstatement be conditioned on “full payment of rent due ... so far as the same is practicable,” the trustee has declared that the bankruptcy estate has assets sufficient to cover the rent due. The issue in the state court is not how properly to administer the estate, nor is that the issue in this •appeal. CONCLUSION We reverse the district court’s dismissal of Barry’s petition for lack of jurisdiction, and remand to the district court with instructions to remand to the state court. . Section 1179 provides: The Court may relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where application for such relief is made within thirty days after the forfeiture is declared by the judgment of the Court, as provided in section one thousand one hundred and seventy-four. The application may be made by a tenant or sub-tenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served on the plaintiff in the judgment, who may appear and contest the application. In no case shall the application be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made. . • In 1986 Congress amended 28 U.S.C. § 1441 and eliminated the derivative character of removal jurisdiction. Now, federal courts may acquire jurisdiction over claims in which the State court lacks jurisdiction. 28 U.S.C. § 1441(e) (West Supp.1987). Section 1441(e) applies, however, only to claims commenced in State court on or after June 19, 1986. Because Barry filed its claim for reinstatement of the lease on December 9, 1985, the claim is not governed by the amended version of Section 1441.

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, Appellee, v. William J. O’CONNELL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard CROSSMAN, Defendant, Appellant. Nos. 81-1222, 81-1223 and 81-1648. United States Court of Appeals, First Circuit. Argued Jan. 3, 1983. Decided April 1, 1983. Geline W. Williams, Boston, Mass., by appointment of the Court, with whom Kirk Y. Griffin, and Griffin & Higgins, Boston, Mass., were on brief, for Richard Crossman. Henry D. Katz, Boston, Mass., for William J. O’Connell. Paul F. Healy, Jr., Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee. Before CAMPBELL, Chief Judge, ALD-RICH and BREYER, Circuit Judges. BREYER, Circuit Judge. After a jury trial, appellants William O’Connell and Richard Crossman were convicted of conspiring to receive and possess, and of receiving and possessing, goods (namely, jewelry) stolen from an interstate air carrier shipment. 18 U.S.C. §§ 371, 659. Crossman was also convicted of perjury before the grand jury investigating the theft. 18 U.S.C. § 1623. And, after a separate trial, Crossman was convicted of forcibly assaulting the officer who served him with a grand jury subpoena. 18 U.S.C. § 111. O’Connell and Crossman appeal, primarily on the ground of insufficient evidence. After examining their arguments and the record, we affirm their convictions. I We first summarize the evidence presented on the “stolen goods” counts. The following facts are not in dispute. On July 30, 1980, two Hong Kong firms sent three packages of jewelry worth more than $60,-000 to Town & Country Jewelry Co. in Revere, Massachusetts. Northwest Airlines flew the packages to Seattle where they were supposed to be transferred to another Northwest flight, which would take them to Boston via Washington, D.C. Town & Country did not receive the jewels. O’Connell worked as a cargo handler for Eastern Airlines at Logan Airport, Boston; Cross-man was a friend of O’Connell. The government tried to show that O’Connell and Crossman stole the jewels from Logan. Its evidence that they at least unlawfully conspired to (and did) receive and possess the jewelry fell into two categories. First, the government introduced Northwest documents (such as a cargo manifest) and testimony about Northwest’s “valuable cargo” handling practices to show that the jewels reached Logan on July 31, 1980. Second, the government presented detailed testimony by Toni Ann Jozapaitis, Crossman’s former girlfriend. Jozapaitis testified about both what she saw Crossman and O’Connell do between July 31 and August 2 and about what she heard them say. She testified that at 11:30 p.m. on July 31 O’Connell and Crossman met in the apartment that she and Cross-man shared. They spoke briefly, exchanged a green piece of paper, and left. Several hours later Crossman returned, and told Jozapaitis that he had gone to Charlestown to sell something for O’Connell. He showed her a green piece of paper, which he called a bill of lading; it had $5,000 written on it. Jozapaitis further testified that the following morning, August 1, Crossman told her he was going to sell jewelry that O’Connell had gotten at the airport. He said that the proceeds would be divided among Cross-man, O’Connell and two other men from the airport. Crossman then left for Charles-town, while Jozapaitis, who was pregnant, went to Beth Israel Hospital for a checkup. As she left the hospital, she received a note from Crossman with a $20 bill and a message to take a cab home. She called him, and he told her not to worry about a $20 cab fare because he had a lot of money. When Jozapaitis returned home Cross-man showed her cash which he said amounted to $2,000. He said it was from the sale of jewelry in Charlestown. He then showed her $21,000 wrapped in foil in the refrigerator. Shortly thereafter, O’Connell arrived and she saw Crossman give the $21,000 to O’Connell. That evening she and Crossman went to an appliance store in Revere, where Crossman paid $1,000 cash for a refrigerator, a washing machine, and a portable television set. Jozapaitis said that the next night, August 2, she heard Crossman ask O’Connell whether the jewel theft had led to an investigation at the airport. O’Connell replied that it had not because the jewels were sold before anyone knew they were missing. O’Connell complained that they should have received more money because the bills of lading for the separate packages added up to more than $68,000. In addition to Jozapaitis’ testimony, the government introduced other evidence showing that Eastern Airlines Cargo crews unloaded Northwest Cargo; that O’Connell was at work as a cargo handler for Eastern between 2:20 p.m. and 10:20 p.m. on July 31; that O’Connell had financial problems; that Crossman earned $450 per week as a truck driver; and that Crossman indeed paid $1,000 cash for the appliances that Jozapaitis mentioned. In the face of this evidence Crossman and O’Connell testified, denying any involvement in the jewels’ disappearance. O’Connell introduced alibi testimony to the effect that he went directly from work on July 31 to the Turf Lounge where he stayed from 10:30 p.m. until 2:00 a.m. The defendants also vigorously attacked the reliability of the Northwest “routine procedure” evidence. And, they tried to impeach Jozapaitis by showing she drank heavily and had a violent and unstable relationship with Crossman. II 1. Appellants argue that their convictions for receiving and possessing stolen goods (and the related conspiracy convictions) should be set aside on grounds of insufficient evidence. We do not agree. Although appellants’ attacks on the “routine procedure” evidence seriously weaken its probative value, that evidence does not stand alone. Despite their efforts to impeach Jozapaitis’ credibility, the jury could well have believed her. See United States v. Hinds, 662 F.2d 362, 366 (5th Cir. 1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1720, 72 L.Ed.2d 140 (1982); United States v. Anderson, 509 F.2d 312, 331 (D.C.Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). And, if believed, her evidence is damning. Appellants rely upon Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), which holds that an admission, like an extrajudicial confession, must have corroboration to support a conviction. The government argues that when read in light of the companion ease of Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), Opper’s corroboration requirement is limited to admissions made after the completion of the crime and made to a government agent. This question has split the courts. Compare United States v. Head, 546 F.2d 6, 9 (2d Cir.1976) (dictum) (corroboration may not be required for admissions made during commission of crime), cert. denied sub nom. Wheaton v. United States, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977), and Kaneshiro v. United States, 445 F.2d 1266, 1270 (9th Cir.) (corroboration not required for admission made to “unwitting accomplice”), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971), with United States v. Hallman, 594 F.2d 198, 201 (9th Cir.) (dictum) (admission during commission of crime must be corroborated), cert. denied, 444 U.S. 828, 100 S.Ct. 54, 62 L.Ed.2d 36 (1979), and United States v. Northrup, 482 F.Supp. 1032, 1038 (D.Nev. 1980) (admission to acquaintance may require corroboration unless it has special indicia of reliability). However, we need not decide the question, for even if we assume Opper applies, there is adequate independent corroboration. See Bryson v. United States, 238 F.2d 657, 662 (9th Cir.1956), cert. denied, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34 (1957). Contrary to the appellants’ argument, what must be corroborated, is not the whole of Jozapaitis’ testimony. If eyewitness testimony about, say, a defendant’s shooting of a gun is admissible and corroborative, that testimony does not suddenly become less admissible or corroborative or itself in need of corroboration simply because the eyewitness also heard the defendant confess. Rather, Opper requires corroboration of the admissions about which Jozapaitis testified. And, there was ample corroboration. The fact that the jewels were sent to Boston is some evidence they arrived in Boston. Their unexplained disappearance is some evidence they were stolen. The fact that O’Connell worked at Logan on the cargo crew at the relevant time is some evidence of opportunity. The existence of Cross-man’s financial problems is some evidence of motive. The appellants’ comings and goings, as reported by Jozapaitis, Cross-man’s keeping large sums of money wrapped in foil in the refrigerator, his sudden large purchases, his ordinary salary are all evidence of some surreptitious activity and guilty knowledge on their part. And, together with the circumstances of O’Connell’s employment, they strengthen the inference that the jewels were stolen. This corroborative evidence, of course, need not be sufficient standing alone to establish guilt; “[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.” Opper v. United States, 348 U.S. at 93, 75 S.Ct. at 164; accord Smith v. United States, 348 U.S. at 156, 75 S.Ct. at 199. It is clear beyond dispute that the corroborative testimony offered by Jozapaitis, when taken together with the other evidence introduced by the prosecution, was more than sufficient for a jury to infer that the admissions were true. Those admissions, in turn, were certainly sufficient in conjunction with the rest of the evidence for a jury reasonably to conclude that the elements of the offenses had been established beyond a reasonable doubt. 2. The same jury that convicted Crossman and O’Connell on the stolen goods counts also convicted Crossman of perjury. It found that he lied when he told the grand jury that he obtained the $1,000 cash with which he paid for appliances “at the track.” The jury might reasonably have believed Jozapaitis’ testimony that a few hours before buying the appliances he had shown her $1,800 in cash, that he said the cash had come from the sale of jewels, and that he later said he would buy the appliances with the “money that he had in his pocket that he had just got.” While the testimony does not make it logically impossible for Crossman to have had another $1,000 in cash from “the track” in his pocket, it does (together with other evidence) warrant a jury finding guilt beyond a reasonable doubt. Moreover, since the statement, if believed, might have made Cross-man’s conduct less suspicious, and thereby have influenced the grand jury, the statement was “material” and thus a proper object of the statute. See 18 U.S.C. § 1623; United States v. Giarrantano, 622 F.2d 153, 156 & n.7 (5th Cir.1980). 3. O’Connell argues that the district court should have severed Crossman’s perjury count and tried it separately. If O’Connell means that the court could not permit joinder of this count with the stolen goods counts, he is wrong. Fed.R.Crim.P. 8(b) provides that the trials of several defendants may be joined if the defendants “are alleged to have participated in the same act or transactions or in the same series of acts or transactions constituting an offense or offenses.” As we pointed out in United States v. Turkette, 632 F.2d 896, 908 (1st Cir.1980), rev’d on other grounds, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the “relatedness of offenses can be established by demonstrating that essentially the same facts must be shown for each of the consolidated crimes.” Here, the facts necessary to show guilt on the stolen goods charges made up an important subset of those needed to show guilt on the perjury charge. As the Ninth Gircuit recently stated in upholding a joint trial for two defendants, both of whom were accused of transporting a stolen truck and one of whom was accused of perjury about a receipt that he had when driving the truck: [The defendant’s] alleged false testimony related directly to the illegal transaction with which appellant was charged. Indeed, the facts underlying the joined offenses were so intertwined that most of the evidence admissible in proof of one was also admissible in proof of the other. In these circumstances joinder served the purpose of Rule 8(b); it permitted significant gains in trial efficiency without subjecting the defendants to substantial prejudice. United States v. Barney, 568 F.2d 134, 135-36 (9th Cir.) (per curiam), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978) (emphasis added and citations omitted). The same reasoning is equally applicable here. Cf. United States v. Duzac, 622 F.2d 911, 913 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980); United States v. Isaacs, 493 F.2d 1124, 1159 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir.), cert. denied sub nom. Jacobs v. United States, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). If O’Connell is arguing that the jury’s consideration of Crossman’s perjury count unlawfully prejudiced its consideration of his guilt on the stolen goods counts, he is equally wrong. The risk of prejudice is one properly addressed by a motion under Fed.R.Crim.P. 14. The trial court’s decision not to sever for prejudice under Rule 14 will be reversed only for abuse of discretion. See United States v. Ciampaglia, 628 F.2d 632, 643 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980); 1 C. Wright, Federal Practice and Procedure § 227, at 854-55 (2d ed. 1982). Even if we make the assumption that O’Connell properly raised this matter in the court below, we find no abuse of discretion. For one thing, most of the perjury count evidence was admissible against O’Connell anyway on the stolen goods charges. Much of the evidence not so admissible, such as evidence that the race track in question was closed, was not directly harmful to O’Connell. For another thing, the district court properly instructed the jury about what evidence it could and could not consider against Crossman. Finally, it is difficult to see how the jury could have convicted Crossman of perjury unless it thought he had received the stolen goods. It was less likely to reason from guilt on the perjury count to guilt on the stolen goods counts than vice versa. Thus, a single trial, under both Rules 8(b) and 14, was permissible. 4. Crossman attacks his separate conviction for forcibly assaulting, impeding and intimidating Donald DeFago, a federal officer who served him with a grand jury subpoena. 18 U.S.C. § 111. For the most part, we need not decide the various points of law Crossman raises, for even if we assume, purely for the sake of argument, that he is correct in his description of the standards to be used in a § 111 case, the evidence here shows that those standards were satisfied. The evidence, read 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), shows that DeFago and another agent, Sara Durant, approached Crossman in a parking lot with the subpoena. Crossman knocked the subpoena to the ground and headed for his car. DeFago tried to hand it to him again. Crossman took the subpoena, crumbled it up, began to shout obscenities, grabbed DeFago’s lapels, poked him repeatedly in the chest, and threatened to knock his head off. DeFago then pushed Crossman away and left. The record shows that at the time he was poking DeFago, Crossman had a present ability to inflict the threatened harm. See United States v. Johnson, 462 F.2d 423, 428 (2d Cir.1972) (requiring present ability to inflict harm), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973). But see Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1958) (dictum) (construing predecessor statute). Moreover, there was “some degree of presently applied force.” See United States v. Hightower, 512 F.2d 60, 61 (5th Cir.1975); compare United States v. Cunningham, 509 F.2d 961, 963 (D.C.Cir.1975) (per curiam) (presently applied force needed), with United States v. Bamberger, 452 F.2d 696, 699 (2d Cir.1971) (threat of present force sufficient), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972), and Burke v. United States, 400 F.2d 866, 868 (5th Cir. 1968) (same), cert. denied, 395 U.S. 919, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969). This evidence, along with DeFago’s testimony that he was “apprehensive” and concerned about his safety, demonstrates a “reasonable fear of imminent harm.” See United States v. Marcello, 423 F.2d 993, 1010 n. 26 (5th Cir.) (quoting district court instruction), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); cf. United States v. Frizzi, 491 F.2d 1231 (1st Cir.1974) (no requirement of fear in prosecution for forcibly resisting, opposing, or interfering with officer); United States v. Jacquillon, 469 F.2d 380, 385 (5th Cir.1972) (defining “intimidation” in federal bank robbery statute to mean “to make fearful or put into fear”), cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604 (1973). We further disagree with Crossman that DeFago ceased to be “engaged in ... the performance of his official duties,” 18 U.S.C. § 111, once he had handed Crossman the subpoena. Common English suggests that he continued to be so engaged while he remained in the parking lot, and common sense suggests that he continued to receive the statute’s protection. Finally, Crossman objects to the district court’s instruction about “force,” which the court defined to include “such threat or display of physical aggression ... as reasonably inspires fear, pain, or bodily harm.” The court also told the jury that the “use of force does not necessarily entail physical contact.” Crossman did not object to the instruction when it was given, and at a minimum, the instruction is not “plain error.” See Fed.R.Crim.P. 30, 52(b); United States v. Bamberger, 452 F.2d at 699 (defining “forcibly” in same terms). 6. Crossman sought a new trial. The decision of the district court denying the motion was not an abuse of discretion. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980). 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.

FARMERS GRAIN CO. et al. v. TOLEDO, P. & W. R. R. et al. No. 9114. Circuit Court of Appeals, Seventh Circuit Nov. 20, 1946. Writ of Certiorari Granted March 31, 1947. MAJOR, Circuit Judge, dissenting in part. Clarence W. Heyl, of Peoria, Ill., John E. MacLeish, Charles M. Price, and Leland K. Neeves, all of Chicago, Ill., for appellant. John E. Cassidy, John F. Sloan, Stanley Crutcher, Harry E. Witherell, George Z. Barnes, and Louis F. Knoblock, all of Peoria, Ill., for appellee. Before SPARKS, MAJOR, and KER-NER, Circuit Judges. SPARKS, Circuit Judge. This is an appeal by the Toledo, Peoria & Western Railroad Company from a judgment appointing a receiver to take possession of all its properties and to operate its railroad, and enjoining appellant and all others from interfering with his possession or operation. The controversy which gave rise to the present action arose out of labor difficulties between defendant-appellant, the railroad company, and the defendants-appel-lees. The latter are labor unions in which, it is alleged, 90% of appellant’s employees hold membership. These difficulties began prior to 1940 and they grew in intensity as time passed. On January 3, 1942, appellant filed a complaint, asking an injunction against the striking union, in the same district court from which this appeal is taken. After an extended hearing, the injunction was granted. Upon appeal, this court affirmed that decree on December 16, 1942. Toledo, Peoria & Western Railroad Co. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265. In this opinion are set forth the District Court’s rulings and its reasons therefor. Upon appeal to the Supreme Court our decision was reversed on January 17, 1944. Brotherhood of Railroad Trainmen v. Toledo, Peoria & Western Railroad, 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. That opinion held that a railroad company which refused to submit a labor dispute to arbitration in accordance with provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., although it had sought to settle the dispute by negotiation and by mediation, had not made every reasonable effort to settle the dispute, within the meaning of section 8 of the Norris-LaGuardia Act, 29 U.S.C.A. § 108, and was thereby barred by the Acts of Congress, from injunctive relief in the federal courts. In other words, it was held that the appellant was not entitled to an injunction until it had sought to settle the dispute by all three of the prescribed methods of conciliation, to wit: negotiation, mediation and arbitration; that it had not agreed to arbitrate the dispute, and while it was not required to do so, yet if it failed to make an offer to do so it deprived itself of the right to an injunction. In that case plaintiffs’ present counsel represented the labor unions, and the latter are now represented by other different counsel. This complaint, which was filed February 20, 1946, alleges that plaintiffs are shippers whose places of business are on appellant’s right of way; that the federal government had been in possession of the railroad from March 22, 1942 until October 1, 1945, at which time possession was relinquished to appellant; that on or about September 20, 1945, more than four-fifths of the employees who were in the service of the government in and during its operation of the railroad had voted to quit work; that the strike was effective as of 12:01 A.M. on October 1, 1945; that appellant and the Brotherhoods did not engage in collective bargaining prior to October 1, 1945; that on that date transportation of interstate commerce terminated; that since said date appellant’s facilities have been abandoned; that such abandonment will continue and plaintiffs and others similarly situated will be denied service until a working agreement is entered into between appellant and the Brotherhoods; that the president of appellant, who was in complete control of it, has refused to engage in collective bargaining in good faith; that cessation and abandonment of the railroad was also the result of failure of defendant Brotherhoods and unions since October 1, 1945, to exert efforts to persuade the president to meet with them and collectively bargain; that such cessation of service and abandonment of interstate commerce by the defendant company and the other defendants is contrary to the laws and public policy of the United States and of the State of Illinois, and is a ■source of disorder, disturbance of the peace, and against the general welfare; that such cessation and abandonment is injuring the property and rights of plaintiffs and the public, and is causing irreparable loss to defendant company through deterioration of its equipment and rolling stock, and is injuring the property of defendant’s stockholders; that such cessation and abandonment is preventing the employment of more than five hundred persons, and is a loss and injury to any and all persons, and is to the advantage or gain ¡of no one; that upon information and belief, the defendant Brotherhoods, unions and employees are ready and will immediately return to work and resume rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect from March 22, 1942, until October 1, 1945, when the defendant company was operated by the United States Government, which conditions and rates of pay have been and are the same as those in effect on other railroads in the United States. The complaint prayed generally for relief in the premises and that the court invoke such means as necessary to bring about the prompt resumption of transportation of interstate and all commerce on said Railroad, and that the court order such remedy as is necessary to effectuate the prompt availability to plaintiffs and other shippers of rail service on that railroad. It prayed specifically that the court enjoin the appellant, the defendant unions and all persons from further abandonment of operation of the railroad. It further prayed specifically that the court appoint a receiver to take possession of all the properties, franchises, equipment and facilities of the Railroad, and that such receiver be ordered to restore rail service and free flow of interstate transportation and other commerce on such railroad immediately, and that such receiver retain possession of all of such property and equipment and direct the operation of said railroad under supervision of the court until the further order of such court, and that the court grant such other relief in the premises as is meet and in the interests of the plaintiffs, the public and for the security of the general welfare. On March 20, 1946, plaintiffs filed a petition for the appointment of a temporary receiver, alleging that appellant and the Brotherhoods had attended a meeting called at the request of Governor Green; that no agreement was reached between appellant and the Brotherhoods at that meeting and that afterwards the parties were no nearer settlement than they had been before; that since October 1, 1945, appellant’s railroad has been closed down and has transported no freight over its line. It further alleged that there was no apparent possibility of any agreement between the parties or that the railroad could be placed in operation to perform its duties as a common carrier, unless a receiver appointed by that court should take possession of it and begin operation. The Brotherhoods, 'in their answer to this petition for a temporary receiver, stated among other things, that the meeting referred to in the petition had been held and that no - agreement had been reached, but denied that there was no apparent possibility of any agreement between the parties, or that the railroad could not be placed in operation to perform its duties as. a common carrier unless a receiver was appointed. A petition for temporary relief, similar to that filed by plaintiff on March 20, 1946, was filed by plaintiffs on May 3, 1946. Neither of the two last-named petitions filed by the plaintiffs was acted upon by the court. Appellant answered the complaint in.sub-' stance that its railroad had been in possession of, and had been operated by, the Government through a federal manager from March 22, 1942, until October 1, 1945; that on September 13, 1945, the Brotherhoods made written demand upon appellant, insisting. that from and after.October 1, 1945, all of the terms and conditions under which appellant’s'properties had been operated by the federal manager should apply to appellant; that on September 29, 1945, appellant offered to continue in effect the federal manager’s rates of pay and rules, and to employ all who were employees of appellant on March 22, 1942, and the employees of the federal manager, except those who had engaged in acts of violence in late 1941 and early 1942, with historical seniority; that effective at midnight, September 30, 1945, the federal manager terminated the employment of almost all of his employees; that at that time appellant was confronted with the seizure of its property by the Brotherhoods in what they termed a strike; that negotiations subsequently were had with the Brotherhoods, seeking a mutually agreeable disposition of all controversial questions, but that said negotiations had proved unavailing; that appellant had attempted to operate its railroad, but was prevented from doing so through the violent acts and unlawful conduct of the Brotherhoods; that appellant had sought protection from the public authorities sufficient to operate its road, but such protection had not been furnished, and proper operation and interchange with other railroads could not be carried out; that many of appellant’s employees had been hurt by pickets, property had been damaged, shooting had occurred, and that in one instance certain of the pickets had been shot and killed by armed special agents (acting in self-defense) employed by appellant in the attempted operation of one of its trains; that the unlawful conduct and acts of violence of which the Brotherhoods were guilty were similar in kind and character to those involved in the earlier suit in which the judge had granted an injunction which was affirmed by this court and reversed by the Supreme Court on the ground that appellant had not agreed to arbitrate as required by the Norris-LaGuardia Act, as above stated; that appellant had not abandoned its road, but had not been able to operate the same due to the unlawful conduct on the part of the Brotherhoods, and, that.if given adequate protection, appellant had available, or could procure, a sufficient number of properly trained employees to operate the road and render service to the shippers and to the public at large. Appellant further alleged in its answer that plaintiffs had no interest or title to any of appellant’s properties which would authorize the appointment of a receiver; nor did the complaint disclose that any one or more of the plaintiffs had any interest in or right to compel a court to settle a labor controversy by seizing the property and assets of one party to said controversy. With this answer appellant also filed a cross complaint by which it sought in-junctional relief against the continued violence and unlawful conduct on the part of the Brotherhoods against, and interference with the operation of the railroad. The Brotherhoods’ answer consisted largely of admissions of certain allegations of the complaint or statements that the allegations were neither admitted nor denied. Their answer specifically stated that they were ready and would immediately return to work and resume the rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect on September 30, 1945, when the road was being operated by the Government. The Brotherhoods moved to dismiss the complaint, and made the same motion at the close of plaintiffs’ evidence. These motions were denied by the court in its judgment of June 6, 1946. Material to the issues here joined, the court on June 6, 1946, made in substance the following findings of fact and conclusions of law: On September 6, 1945, the Director of the Office of Defense Transportation ordered that management of appellant be returned to its private management on September 30, 1945. On September 13, 1945, the Brotherhoods requested appellant’s president to confer with respect to a continuation of the rates of pay and working conditions which had been in effect under the federal manager. On September 15, 1945, appellant by letter notified the Brotherhood officials that it would not be proper for appellant to make any agreement with them at that time, and that it declined to participate in a meeting, and made no^ alternate or other proposal; that on or about September 27, 1945, appellant’s employees voted to withdraw from service on October 1, and that on September 28 and 29, appellant made certain proposals to the Brotherhoods which the Brotherhood officials would not accept. On October 1, 1945, practically all employees of appellant withdrew from service. By this finding the court also said that by their letter of September 13, the Brotherhoods had made a bona fide effort for collective bargaining and that the defendant railroad unreasonably frustrated this effort, and that neither appellant nor the Brotherhoods made any reasonable effort to negotiate and engage in collective bargaining prior to the employees’ withdrawal from service and cessation of rail transportation on October 1, 1945. The court further referred to other efforts made to bring the representatives of the defendants into agreement, but found that all such efforts toward mediation and adjustment were unsuccessful. By reason of these facts the court further found that the defendants had maintained an unreasonable disregard for the rights of plaintiff shippers and had acted contrary to the public welfare. In a further finding the court enumerated various acts of violence and stated that appellant’s officials had asked the local law enforcing officials and also the Governor of Illinois for protection; that the requests of all defendants to the law enforcing officers were reasonably complied with, and that appellant’s failure to operate was not justified by the railroad’s charge that public officials refused or were unable to perform their duty. It further stated that although incidents of violence occurred and a hostile and provocative attitude by pickets and also employees of defendant railroad was a hazard to the public peace and safety, yet the court could not find that such violence was a sufficient justification for the failure of the defendant to operate its trains unless the court could also find or presume from the evidence that local law enforcing officials and the Executive Officers of Illinois had refused or were unable to perform their official duties. The court said that it could not indulge in such presumption and that the evidence did not permit such finding. The court found that essential connecting rail carriers of defendant had since October 1, 1945, refused to interchange freight with defendant because of the danger to their employees arising out of the presence of armed guards on defendant’s trains and property, and because of the hazards due to the inefficiency of some of defendant’s engine crews; that one of the principal reasons for the failure of appellant to operate its trains and provide rail service was that the railroad did not have in its employ a sufficient force of trained and experienced railroad workers to operate its trains and man its equipment, and that such insufficiency of workers was the result of the appellant’s unreasonable refusal in September, 1945, to meet the defendant Brotherhoods, and engage in bona fide collective bargaining. The court further said that such insufficient force of workmen was also the result of the unreasonable and obstinate attitudes of all defendants (which included the Brotherhoods and their officials as well as appellant) and their refusal to make concessions and their failure to genuinely negotiate and bargain for the joint welfare of the employees, the railroad corporation and the public. The court found that from December, 1941 to March, 1942, many acts of violence were perpetrated by the striking workers of the railroad company; that these conditions were intercepted and relieved by the appointment of a federal manager who made a contract with the Brotherhoods which existed until October 1, 1945, when the road was returned to the appellant; that from October 1, 1945, until the present date, all the Brotherhoods refused to work, and violence has been prevalent on the part of' both membership and employees from that day to the present time; that from October 1, 1945, until the present time there has been considerable violence on the part of the present employees of the company and pickets and strikers, until conditions almost justified the statement that a state of war exists between these two opposing factions. He further stated that in his opinion, conditions were such that “a future settlement of the determined contentions of each of the parties is highly improb-' able.” The court’s conclusions of law, material to the issues here presented, are substantially as follows: The evidence does not establish that local law enforcing officers and the Executive Department of the State of Illinois have either refused or are unable to perform their public duties to keep the peace and afford protection, and. the railroad’s defense of violence and interference is not sufficient to excuse the failure to operate its trains and provide service. Upon withdrawal from service, the union members had the lawful right to engage in peaceful picketing. They had no right, however, to engage in violence or unlawful interference with defendant’s property. Neither did defendant have a right to provoke tension by the dangerous use of firearms and other provocative measures. Appellant’s refusal to arbitrate between 1941 and March 1942, and to respond to the order of the War Labor Board and the request of the President of the United States was not a reasonable discharge of its obligations to the public welfare. The refusal of defendant to comply with the Brotherhoods’ request for a conference on September 13, 1945, amounted to a failure of defendant to fulfill its legal duty to engage in collective bargaining, and the failure of the Brotherhoods to request additional steps for negotiation of appellant’s proposal of September 29, 1945, constituted a lack of full effort on their part to pursue collective bargaining. Appellant knew, or should have known, that the natural and probable consequences of its labor policy would result in cessation of interstate commerce and abandonment of its operations. It is the duty of the District Court to give effect to the law by compelling the prompt resumption of the safe, free and uninterrupted flow of interstate commerce on the railroad, and to accomplish that result it concluded that it should appoint a receiver of appellant to operate the railroad under that court’s supervision, and that all persons should be enjoined from interfering with the receiver in the performance of his duties. The court further concluded that an injunction in favor of appellant against the Brotherhoods and other appellees-defend-ants, as prayed in its cross complaint, “would not amount to relief sufficient to achieve prompt and complete resumption of the operations on defendant Railroad,” and in view of the order of the court for the appointment of a receiver, and an order enjoining all interference with the receiver, the defendant railroad’s cross complaint should be dismissed. The decree, entered on June 6, 1946, in substance denied the motions of all defendants to dismiss the complaint, and also dismissed appellant’s cross complaint. It also appointed Fred Windish, “not an experienced railroad official, but an efficient business man who has no interest on behalf of either of the defendants,” as receiver of all of the properties, franchises and assets of appellant. It further decreed that the receiver, upon filing his bond in the sum of $10,000 for the faithful performance of his duties should “take possession of all the real and personal property, franchise rights and other assets tangible and intangible of” appellant, “and operate or arrange to operate such Railroad in such manner as will furnish satisfactory and adequate rail transportation to all members of the public subject to the approval of this Court,” and that “all defendants, persons, firms and corporations be and they are hereby enjoined from interfering with the Receiver in obtaining possession of these properties or with his possession or with his operation of the Railroad.” On June 12, 1946, appellant filed its verified motion to vacate the decree and enter a decree in its favor, or to vacate the decree and hear further 'evidence. This motion disclosed that the case had been closed on May 17, 1946, argument of counsel heard on May 20 and 21, and the decree entered on June 6, 1946; that the shooting on February 6, 1946, above referred to, concerning which testimony had been introduced at this trial, had resulted in the indictment of four of appellant’s employees for manslaughter in McLean County, Illinois; that a trial of those defendants had been had in the Circuit Court of that County, which resulted in an acquittal on May 24, 1946. The motion further disclosed that since the final arguments in this case appellant had inspected and placed in operating condition the Eastern Division of its railroad running between East Peoria and Effner, Illinois; that on June 4, 1946, appellant had lifted its embargo to permit the acceptance of all carload shipments, excepting perishables and live stock, when originating at or destined to stations between East Peoria and Effner, and had established daily service, except Sunday, to shippers located on the Eastern Division; that since June 4, 1946, appellant had daily, except Sunday, operated a train between East Peoria and Effner, and had furnished to the shippers on the Eastern Division all the services they had requested; that since June 4, 1946, appellant had completed transportation of certain cars on its line; that connecting railroads, with one exception, had advised appellant that they would accept and handle cars in exchange from appellant, although certain other railroads had stated that such handling would depend upon freedom from interference, and the Peoria and Pekin Union Railroad had issued on June 4, 1946, an embargo against all shipments to and from, appellant. This motion further alleged that appellant was able to hire a sufficient number of employees to operate its lines, if it ultimately proved to be impossible to agree with the Brotherhoods; that since the closing arguments in this case, appellant and the Brotherhoods had conferred with respect to a settlement of their differences, and their endeavors were continuing when this decree was entered. This motion was denied. The receiver was appointed and his bond for faithful performance was filed and approved. Plaintiffs were not required to give bond. The first question presented is whether the District Court under the evidence was authorized by law or equity to appoint a receiver of appellant That court quite succinctly stated the question in the following language: “Whether * * * this court can, under the law, because of an injury to the public appoint a receiver over a financially sound institution, and more or less abolish the rights of arbitration or the rights of dealing with labor and capital.” His ruling was in the affirmative, and by it we think the methods prescribed by Congress for dealing with controversies between capital and labor were indeed abolished with respect to this case. It is admitted by plaintiffs and the District Court that the decree provides a new and unprecedented method of solving labor disputes by appointing a receiver of appellant’s property, which was specifically prayed for in' the complaint, together with the usual prayer for general relief. True, there was an additional prayer that the receiver be ordered to operate the property and that in so doing he be protected by injunctive process. Such prayer was granted as is usual in all federal equity re-ceiverships. Every equity receiver is appointed for the purpose of either preserving, liquidating or operating the property involved. It is admitted that this appointment was not made for the purpose of liquidation, nor was it made for the purpose of preserving the property, for plaintiffs had no interest in it, either legal or equitable, nor did they have a claim of any kind against it. It is clear that the ultimate aim of the action was the appointment of a receiver for the sole purpose of operating the railroad, without any limitation as to time, and not being ancillary to other equitable or legal relief sought. Under these circumstances we think the decree was improper. Kelleam v. Maryland Casualty Company, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; Gordon v. Washington, 295 U.S. 30, 55 S.Ct. 584, 79 L.Ed. 1282; Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; Re Metropolitan Railway Receivership, 208 U.S. 90, 28 S.Ct. 219, 52 L.Ed. 403; 16 Fletcher Cyclopedia of Corporations, Sec. 7683. Appellant further contends that the District Court erred in dismissing its cross complaint in which it asked for an injunction against the defendant-appellees. In its conclusions of law, the court stated in effect, as one of its reasons for such ruling, that it was unnecessary to grant that relief to appellant because it had granted the same relief to the receiver, and further, that to grant an injunction to appellant “would not amount to relief sufficient to achieve' prompt and complete resumption of the operations on * * * (the) railroad.” This latter statement is consistent with only one of two conceivable facts. Either the receiver contemplated granting the unions’ demands, or the court thought that the unions would not obey an injunction issued to appellant. We are reluctant to indulge in that thought for that would be to presume an unpatriotic act on the part of the unions as well as all participating courts. A further reason for dismissing the cross complaint, as set forth in its conclusions of law, was that appellant had not reasonably discharged its obligations to the public welfare, because it had refused to arbitrate its controversies with the Union in 1941 and March 1942, and that it did not respond to the order of the War Labor Board and the request of the President of the United States. At that time, of course, there had been no offer to arbitrate, as shown in the opinion of the Supreme Court in the former case (321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810), in which, however, it was held that appellant at that time had performed all of its duties as to negotiation and mediation as the District Court in the former case had found. Of course, the War Labor Board never issued a mandatory order in this case, nor did it have the power to do so. Its order, as well as that of the President, was purely recommendatory, and neither was binding on appellant. This ruling is further based on the appellant’s refusal to comply with the Brotherhoods’ request for a conference on September 13, 1945, as stated in the conclusions of law. The reason for not thus participating was that none of the employees concerned were then in appellant’s employment, but all were in the employment of the Government and would be until October 1. However, on September 29, appellant proposed to the Brotherhoods to adopt the federal manager’s pay and working conditions as of September 30, 1945, also to adopt the principle of historical seniority with respect to all appellant’s former employees and those of the federal manager; to give employment to all for whom jobs might be available, with the exception of 23 persons who had been found by the court in 1942 to have been guilty of unlawful conduct and acts of violence against appellant and who had been named in the injunctional order of the court issued on January 19, 1942, and one other person who had shot at one of appellant’s trains in violation of the injunc-tional order; and to sign an agreement with all of the Brotherhoods, recognizing them as bargaining representatives. The Brotherhoods refused appellant’s proposal of September 29, claiming that the provision concerning the treatment of persons who had engaged in acts of violence was unacceptable to them, and later they refused the provision relating to historical seniority, and so far as this record discloses there were no other questions involved. Even after October 1, there were other negotiations and proposals through the Illinois Commerce Commission, and the National Mediation Board. Appellant offered to arbitrate under an arbitrator appointed either by the senior federal judge of that district, or the trial judge, or the senior circuit judge of this ■circuit, or by the Illinois Commerce Commission, and finally appellant proposed to arbitrate their two remaining differences, or any others which might arise, under the •terms of the Railway Labor Act. The Brotherhoods rejected all of these proposals, notwithstanding their answer denying the allegation in plaintiffs’ petition that the railroad could not be placed in operation to perform its duties as a common ■carrier unless a receiver was appointed. Under these circumstances which are undisputed, we think it cannot be said that appellant failed either to negotiate, mediate or arbitrate as contemplated by the former decision in this case by the Supreme Court. The court found that the parties did not bargain or negotiate in good faith, and that their failure to agree was the result of the unreasonable and obstinate attitudes of all defendants and their refusal to make concessions. At the close of the trial, however, he said: “I know that there is an honest disagreement on the part of the management of the railroad company and perhaps an honest — and I know an honest disagreement on the part of the employees of the Brotherhoods.” Of course this statement of the court would not of itself annul its findings of lack of good faith in negotiating and bargaining, but it conclusively shows that the finding is based solely on the fact that the parties did not reach an agreement, which under the law does not constitute a proper basis for such finding. The statutes provide a remedy for such a situation by arbitration, which if accepted becomes binding on all parties, and if not accepted, the applicant is furnished with injunctive process for its protection under the ruling of the Supreme Court in the earlier case, 321 U.S. 50, 14 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. The law does not require the Brotherhoods or the appellant to enter into an agreement which is not mutually satisfactory. Virginian Railway Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; N. L. R. B. v. Jones & Laughlin Steel Co., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. It is urged by appellees that the appointment of a receiver will not be injurious to appellant. Conceding this arguendo, it furnishes no basis for the appointment of a receiver. 53 Corpus Juris on Receivers, § 21; 45 American Jurisprudence on Receivers, § 30; 16 Fletcher, Cyclopedia Corporations, § 7728. Appellees urge quite strongly that appellant has abandoned its railroad because, as it appears, the road cannot operate because of the unlawful interference of the Brotherhoods and because of the unlawful refusal of the connecting lines to interchange traffic with appellant. There is no merit in this contention. Townsend v. Michigan Cent. R. Co., 6 Cir., 101 F. 757; Williams v. Atlantic Coast Line Co., 4 Cir., 17 F.2d 17; Chicago & E. I. R. v. Clapp, 201 Ill. 418, 66 N.E. 223; Toledo, Peoria & Western R. R. Co. v. Brotherhood, supra; Interstate Commerce Act, § 3(3), 49 U.S.C.A. § 3(3); Smith-Hurd Ill.Ann. Statutes, chap. 111⅔, § 44. It seems to be well settled that appellant cannot be required to operate its road in the face of unlawful conduct and the acts of violence on the part of the Brotherhoods, especially where such conduct approaches the magnitude of civil war as found by the court in the case at bar. See Empire Transportation Co. v. Philadelphia & Reading Coal and Iron Co., 8 Cir., 77 F. 919, 35 L.R.A. 623; Geismer v. Lake Shore & Michigan Railroad Co., 102 N.Y. 563, 7 N.E. 828, 55 Am.Rep. 837. See also Toledo, Peoria & Western R. R. v. Brotherhood, supra; People v. New York Central R. R. Co., 28 Hun, N.Y., 543; and Jonesborough, L. C. & E. R. Co. v. Maddy, 157 Ark. 484, 248 S.W. 911, 28 A.L.R. 503; Ritchie v. Oregon Short Line R. Co., 42 Idaho 193, 244 P. 580, 45 A.L.R. 919. In its conclusions of law the court states that the enforcing officers and executive department of the State of Illinois have neither refused nor been unable to perform their public duties to keep the peace and afford protection to the defendant for the operation of its road. We are not disposed to labor this matter. The record does not inform us as to the specific duties of these officers, nor is it necessary that we should make further investigation on this subject. The undisputed evidence is that this road has been unable to run for quite a long period of time, and of course it is admitted that this is due to the labor troubles which are now before us. These troubles have grown in intensity, and they have resulted in the deaths of three human beings. It is undisputed that these troubles have never been alleviated by the officers referred to. Whether this was due to the officers’ inactivity or inability, or beyond the scope of their duty is immaterial at the present time. This condition has existed so long that it has become a stench in the nostrils of patriotic" citizens of Illinois, and it should be stopped by due process of law. Appellant has urged with considerable emphasis that the District Court was without jurisdiction to hear this case. We are indeed doubtful of the merit of this contention because of the very wide latitude of plaintiffs’ prayer for relief.- It sought any relief which the court might properly give and we see no reason why under that pleading and this evidence the District Court could not have issued a mandatory injunction against the appellant to continue the operation of its road and also protect the appellant by an injunction such as it has issued to the receiver. Of course, it did not do this. However, we do not feel disposed to hold that the District Court was without jurisdiction to hear the case. Its jurisdiction does not depend upon the correctness of its decision. The defendant appellees urge that appellant’s cross complaint was insufficient to support an injunction in favor of appellant against interference with its operation of the road because the cross complaint was, not verified by oath, nor did it disclose that notice of past unlawful interference, or such threatened interference, was given to the chiefs of those public officials, charged with the duties to protect appellant’s property in the counties and cities within which such unlawful acts were threatened or committed, nor was summons issued upon the cross complaint, and served upon any ap-pellee. The propriety of an injunction against interference in the road’s operation inheres in the issues raised by the complaint and answers. Plaintiffs ask for equitable relief by way of mandatory injunction, to compel appellant to operate the road. It is elemental that the law will never require the performance of an act unless it is physically possible to perform it. Appellant’s answer alleges acts of the Brotherhoods and their associates which, if true and continued, render the operation of the road impossible. The cross complaint for injunction is based, by reference, upon the allegations of interference as set forth in the answer., The court dismissed the cross complaint for injunction although it enjoined any interference with the operation of the road by the receiver which it appointed. The reason for this ruling is set forth in the court’s 9th conclusion of law, to which no objection was, or is now, made by any appellee. As stated before we think plaintiffs are entitled to the mandatory injunction, providing appellant is protected by an injunction against interference by anyone in the operation of the road. We think the proviso should be adhered to because of the history of this controversy. It is true that our Supreme Court has held that to render a person amenable to an injunction, it is neither necessary that he should have been a party to the suit, nor have been actually served with a copy of it, so long as he appears to have had actual notice of it. In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110. It is quite true that anyone, having actual notice, who might interfere with appellant’s compliance with the mandatory injunction would be guilty of contempt and could be punished therefor. Even so, that decision does not in any way militate against the propriety of issuing the injunction against interference, and the latter has the advantage of giving actual and specific notice to the defendant appellees as to the rights of the parties. We think

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"?

Geneva TRACY, Victoria De Lee, Anna William, Ollie Mae Utsey, Dianne Grant, by her mother and next friend, Laureen Grant, Edna De Lee, by her mother and next friend, Cora Lee De Lee, James Lemon, by his mother and next friend, Beatrice Lemon, on their own behalf and on behalf of all others similarly situated, Appellants, v. Jack W. ROBBINS, individually and as Chief of Police of the Town of St. George, W. Duncan Horne, individually and as Mayor of the Town of St. George, J. Wilson Patrick, individually and as Town Attorney for the Town of St. George, and their agents, successors, employees, subordinates and attorneys, Appellees. No. 10718. United States Court of Appeals Fourth Circuit. Argued Jan. 10, 1967. Decided Feb. 7, 1967. Henry M. diSuvero, New York City (Russell Brown, Charleston, S. C., and Carl Rachlin, New York City, on brief), for appellants. Nathaniel L. Barnwell, Charleston, S. C. (Legare Walker, Jr., Sidney B. Jones, Jr., Summerville, S. C., Ben Scott Whaley, Charleston, S. C., Walker, Walker & Jenkins, Summerville, S. C., and Barn-well, Whaley, Stevenson & Patterson, Charleston, S. C., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge, and KAUFMAN, District Judge. PER CURIAM: This proceeding was commenced for the vindication of alleged rights under the First Amendment. It was an aftermath of the arrest and prosecution of some pickets and demonstrators in the public streets of St. George, South Carolina. The defendants are the Mayor of the Town of St. George who, in his capacity as municipal judge, presided at the trials of the arrested pickets, the Town Attorney, who acted as prosecutor in those proceedings, and the Chief of Police who, individually or through subordinates, effected the arrests. Injunctive relief and damages were sought. The District Court dismissed the complaint as to the Mayor and the Town Attorney. The dismissal was on the ground of judicial immunity, but the order left in the case the Chief of Police and incorporated leave to amend the complaint. This appeal by the plaintiffs from the order dismissing the complaint as to the Mayor of the Town and its Attorney is premature. It is not a final order within the meaning of 28 U.S.C.A. § 1291, for the action may proceed against the Chief of Police, and, for all that now appears, all the relief to which the plaintiffs may be entitled may be granted and made effective though the Chief of Police is the only remaining defendant. There Is no appeal from any order denying an injunction which might be allowable under 28 U.S.C.A. § 1292 (a) , nor is there any contention that the order dismissing the Mayor and the Town Attorney involves a controlling question of law, which would allow a permissive appeal under 28 U.S.C.A. § 1292 (b) , provided the requisite certification of the District Judge were present. There has been no determination by the District Judge that there is no just reason for delay and express direction of the entry of a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. The order has not been made final under that rule, and the conditions for allowance of an appeal from an interlocutory order have not been met. The appeal will be dismissed as premature. Under Rule 54(b), the Mayor and Town Attorney will remain subject to the orders of the Court and, upon entry of a final order, the propriety of the order dismissing the complaint as to them will be subject to appellate review. We assume that the taking of this appeal will toll the running of the time allowed by the District Judge for an amendment of the complaint. The dismissal of the appeal, of course, is without prejudice to any subsequent appeal which may be taken under either § 1291 or § 1292. Appeal dismissed.

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?

Oliver MARSHALL, et al., Plaintiffs-Appellants, v. WESTERN GRAIN COMPANY, INC., and The Riverside Group, Inc., Defendants-Appellees. No. 86-7761. United States Court of Appeals, Eleventh Circuit. March 1, 1988. Rehearing and Rehearing En Banc Denied April 6,1988. Richard Ebbinghouse, Birmingham, Ala., for plaintiffs-appellants. David J. Middlebrooks, Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held and Apolinsky, Birmingham, Ala., for defendants-appellees. Before FAY, Circuit Judge, HENDERSON , Senior Circuit Judge, and BLACK , District Judge. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Susan H. Black, U.S. District Judge for the Middle District of Florida, sitting by designation. PER CURIAM: The plaintiffs in this action, forty-six former union employees of Western Grain Company, Inc. [hereinafter “Western Grain”], appeal from an order entered by the United States District Court for the Northern district of Alabama dismissing their complaint for failure to state a claim upon which relief may be granted. For the following reasons, the judgment of the district court is affirmed in part, vacated in part and reversed in part. Western Grain purchased its facility in Birmingham, Alabama from the Jim Dandy Company [hereinafter “Jim Dandy”]. After the sale, Western Grain continued to employ the plaintiffs, who had worked for Jim Dandy at the Birmingham plant. All of the plaintiffs were represented by Local 12830 of the United Steelworkers of America, AFL-CIO-CLC [hereinafter “Union”]. As part of the transaction, Western Grain assumed the collective bargaining agreement between Jim Dandy and the Union. That agreement remained in force through April 9, 1984. In December 1983, Western Grain announced the shutdown of its operations. All but four union employees were terminated. Following clean-up operations, the remaining four union employees were also laid off. The Riverside Group, Inc. [hereinafter “Riverside”] alleged to be a successor corporation of Western Grain, bought out the company. Western Grain paid severance pay to its employees who were not covered by the collective bargaining agreement. This group included office clerical employees, millwrights, maintenance and truck mechanics employed in the maintenance department, foremen, salesmen, watchmen, office janitors and professional employees, guards and supervisors as defined by the National Labor Relations Act, 29 U.S.C. § 141 et seq. [hereinafter “NLRA”]. They received one week’s pay for each year of service performed at the Birmingham facility. Out of the total number of non-union employees, only four were black. The union employees, on the other hand, did not receive any severance pay. This group included production employees, truck drivers, laborers and plant janitors employed by the company. All but one of the sixty-eight union employees were black. In October 1984, the plaintiffs filed charges with the Equal Employment Opportunity Commission alleging race discrimination. Following the receipt of right to sue letters, the plaintiffs filed a complaint against Western Grain and Riverside in the United States District Court for the Northern District of Alabama, Southern Division. In Count One, the plaintiffs alleged that the defendants violated § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by paying severance pay to non-union employees but not to union employees. In Count Two, the plaintiffs alleged that the defendants violated § 703(a) of Title VII by perpetuating a policy in which non-union positions were generally not open to black workers. The plaintiffs claimed that this policy was discriminatory because non-union employees received benefits not available to union employees while at the same time receiving all the benefits given to union employees. In Count Three, the plaintiffs alleged that the defendants violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d), when they made severance payments only to non-union employees. On June 6, 1986, both defendants filed motions to dismiss. On July 29, 1986, the district court granted the defendants’ motions. The court granted Western Grain’s motion on the basis of insufficiency of service of process. In his order, the trial judge stated that ordinarily he would grant leave to effect service within a specified time but he declined to do so because he believed that the plaintiffs failed to state a claim against either defendant under either Title VII or the Equal Pay Act. Following a denial of their motion to alter or amend the judgment, the plaintiffs filed this appeal. I. Count One: Nonpayment of Severance Benefits To establish a prima facie case of racial discrimination under Title VII, the plaintiffs must show that they are members of a racial minority and that they were treated differently from similarly situated non-minority members. Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir.1985). In employment discrimination cases, the question of whether the plaintiffs are similarly situated with non-minority members is crucial. See, e.g., Johnson v. Artim Transportation System, Inc., 826 F.2d 538 (7th Cir.1987) (upholding district court finding that five white employees with different disciplinary records were not similarly situated with plaintiff); Kendall v. Block, 821 F.2d 1142 (5th Cir.1987) (upholding district court finding that white employees with different grade levels and performance ratings were not similarly situated with plaintiff). The defendants focus on this “similarly situated” requirement in their defense of this appeal. According to the defendants, given the “differences in status created by the presence of the bargaining unit,” the plaintiffs would under no circumstances be able to show that they were similarly situated with white, non-union workers with respect to payment of severance benefits. Brief of Defendants/Appellees at 13. The plaintiffs offer a different perspective in their briefs. According to the plaintiffs, the existence of a collective bargaining agreement is irrelevant to the question of whether the defendants’ distribution of severance benefits was discriminatory. In support of this argument, the plaintiffs cite the decision in Hishon v. King & Spalding, 467 U.S. 69, 75, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984), where the Supreme Court ruled that “[a] benefit ... may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.” See Reply Brief for Plaintiffs-Appellants at 2. Although the Hishon decision offers some guidance regarding the employer’s obligations under Title VII in distributing privileges of employment, it does not (as the plaintiffs suggest) necessarily preclude an employer from relying on its contractual rights and responsibilities in refusing to dispense privileges. Although an employer’s obligations under Title VII preempt his contractual obligations, the courts do not lightly disregard the employer’s contractual obligations. This is especially true in cases such as the present one, where the employer’s contractual obligations are governed by the National Labor Relations Act [hereinafter “NLRA”]. Under the NLRA, the employer may not disregard the terms of a collective bargaining agreement in order to make severance benefits payments to his employees. 29 U.S.C. § 158(a)(5). Thus, where the employer’s provision of benefits to minority workers is restricted by the terms of a collective bargaining agreement, a balance between the competing policies of Title VII and the NLRA must be struck. Several broad principles may be discerned from the decisional law involving Title VII and the NLRA. One principle is that the NLRA offers no protection to an employer who defends his practices on the basis of a collective bargaining agreement that is discriminatory on its face or in its application. When the collective bargaining agreement is discriminatory, the employer has an affirmative duty under Title VII to modify the agreement to remedy the effects of the discrimination. For example, in Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO, 643 F.2d 445 (7th Cir.1981), cert. denied, 454 U.S. 1046, 102 S.Ct. 587, 70 L.Ed.2d 488 (1981), the plaintiff, a Seventh Day Adventist, alleged that his employer discharged him in violation of Title VII after he refused to financially contribute to his union. The court agreed, holding that although the collective bargaining agreement provided for such financial contributions, the employer nonetheless unreasonably failed to accommodate the plaintiff’s religious beliefs by permitting substitute charity donations. In response to the employer’s argument that it should be entitled to rely on the provisions of its union shop agreement, the court stated that “[i]t is well settled ... that Title VII rights cannot be bargained away and that a collective bargaining agreement therefore does not of itself provide a defense for Title VII violations.” Id. at 452. See also United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir.1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), (Title VII overrides collective bargaining agreement where agreement restricts transfer and promotion opportunities of incumbent black employees). Where the collective bargaining agreement is neither discriminatory on its face nor in its application, the policies of Title VII give way to federal labor policies. As a matter of federal labor law, courts will not intervene in the collective bargaining process and require the employer to take steps unauthorized by the duly-negotiated agreement. See 29 U.S.C. § 158(a)(5). This principle applies even in cases where the concerns of Title VII are indirectly implicated. See generally Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975) (employer has no duty to bargain with minority union members regarding allegedly discriminatory transfer policies). This refusal to tamper with nondiscriminatory collective bargaining agreements is necessary to promote respect for the collective bargaining process. Thus, courts have declined to intervene even in cases where the plaintiff frames his request for relief in the form of a Title VII complaint. For example, in Rose v. Bridgeport Brass Co., 487 F.2d 804 (7th Cir.1973), the plaintiff claimed that her employer's decision to deny her a job reassignment after plant-wide layoffs, and to instead give jobs to male employees with less seniority, violated Title VII. The Seventh Circuit held that the plaintiff was not entitled to relief under Title VII because she was not contractually entitled to a job reassignment. According to the court, The Company would have violated the collective bargaining agreement had it given Rose a job on October 30, and it would have done so at the expense of another employee. If what the Company did was required by the contract, and the contract itself was nondiscriminatory, the Company could not have discriminated against Rose no matter what its subjective motivation. Id. at 810. In light of the principles set forth above, it is apparent that the collective bargaining agreement in this case should not be set aside based upon the mere allegation that minority workers were treated differently from non-minority workers. Instead, we must determine whether the “discrimination” alleged in Count One of the Complaint is the kind which requires judicial intervention into the collective bargaining process. At this stage of the litigation, we must accept the plaintiffs’ factual allegations as true and are not concerned with whether the plaintiffs will be able to prove them at trial. “In appraising the sufficiency of the complaint ..., the accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). As stated earlier, Count One alleges that the defendants, after deciding to close their Birmingham facility in 1983, began laying off predominately-black bargaining unit employees and predominately-white non-bargaining unit employees. After the layoffs, the defendants paid severance benefits to each member of the group of non-bargaining unit employees, and withheld such benefits from each member of the bargaining unit. According to the plaintiffs, the defendants’ withholding of severance pay from them constituted discrimination based on race and color in violation of Title VII. What is immediately clear from the face of the Complaint is that the plaintiffs do not seek to prove that the collective bargaining agreement governing their relationship with the defendants was in itself discriminatory. In fact, the one crucial fact which the plaintiffs offer to establish their claim of dissimilar treatment — payment of severance benefits to predominantly-white, non-union members and nonpayment to predominately-black union members — does not challenge the defendants’ implementation of the collective bargaining agreement. Thus, the plaintiffs ask this court to recognize a theory of relief heretofore unrecognized in Title VII jurisprudence. As discussed above, federal courts have traditionally provided a remedy to collective bargaining unit members under Title VII when the plaintiffs claim that their employer discriminatorily applied the collective bargaining agreement, or that the agreement was discriminatory on its face. Under the theory set forth by the plaintiffs, the courts are asked to provide a remedy based upon the contention that non-minority, non-union employees were being treated differently from minority, union employees. For several reasons, we conclude that Count One does not state a claim of “discrimination” under Title VII. First and foremost, because of their unique status in the workplace, bargaining unit employees are never similarly situated with non-bargaining unit employees. The unique treatment that employers give to bargaining unit members is, of course, reflected best by the collective bargaining agreement. This agreement represents a culmination of often-extensive “give-and-take” negotiations between the employer and the employees’ designated bargaining representative. An employer’s decision to pay severance or any other benefits cannot be understood without inquiring into the substance of such negotiations. In many cases, the inclusion of certain provisions into the collective bargaining agreement additionally requires inquiry into the negotiations between other employers and other collective bargaining units in the industry. Aside from the collective bargaining agreement itself, a number of other elements of the collective bargaining process reflect the unique treatment accorded to union members. The ability of an employer to modify the collective bargaining agreement, for example, is greatly restricted whenever the proposed modification involves “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). Under the NLRA, 29 U.S.C. § 158(a)(5), an employer has the duty to bargain over such “mandatory” subjects. Clear Pine Mouldings, Inc. v. N.L.R.B., 632 F.2d 721 (9th Cir.), cert. denied, 451 U.S. 984, 101 S.Ct. 2317, 68 L.Ed.2d 841 (1981). Thus, while a sudden upturn in profits may stimulate an employer to spontaneously offer bonuses to his employees performing under individual contracts, that employer would be obligated to bargain with a designated bargaining representative over any bonus payments to union employees. The size and strength of the designated bargaining representative may further limit the conduct, or potential conduct, of the employer. The plaintiffs in the present case seek the opportunity to demonstrate that the defendants were motivated by race or color in making payment of severance benefits, not by the contractual status of the various employees. However, the plaintiffs cannot negate the existence of the collective bargaining agreement. Although the plaintiffs may be able to show that the employer gave to non-bargaining unit members all of the tangible benefits that were given to bargaining unit members, see Complaint at 6, they will not be able to show that the employer’s decisions regarding non-bargaining unit members were restricted by the many intangible considerations inherent in collective bargaining. A second reason for our affirmance of the dismissal of Count One is the federal policy of judicial nonintervention in the collective bargaining process. As noted earlier, employers’ and unions’ faith in the ability of the collective bargaining process to provide solutions to problems in labor relations greatly depends on such nonintervention. A policy of refusing to enforce collective bargaining agreements and of imposing contractual modifications on parties to such agreements would drastically reduce the incentive of those parties to work toward negotiated solutions. Under such a policy, parties to and agreement would face the potential of their opposition turning to the courts for assistance in accomplishing goals not achieved at the negotiating table. Such a result would be contrary to the well-established federal policy goal of fostering collective bargaining as the means of resolving employer-union disputes. The federal policy of judicial nonintervention in the collective bargaining process must of course give way to the federal policy, embodied in Title VII, of eliminating racially-discriminatory employment practices. Thus, the courts have held that Title VII imposes an affirmative duty on employers to modify collective bargaining agreements which are discriminatory in their application. See, e.g., United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir.1971). This exception to the policy of nonintervention has not been extended, however, to cases where the product of the collective bargaining process is a nondiscriminatory agreement. Under such circumstances, the policies of Title VII are not implicated to the extent necessary to override federal labor policy. A final reason for refusing to accommodate the plaintiffs’ request for a modification of the collective bargaining agreement in this case is that minority union members will not be without a remedy as a result of this refusal. If minority union members are dissatisfied with the terms of their collective bargaining agreement, they have the option of electing a new bargaining representative or leaving the union altogether. If they choose the latter option, Title VII will provide them with a potential remedy whenever their employer offers similarly-situated non-minority members more favorable treatment. When minority union members choose collective bargaining as a means of remedying unfavorable employment conditions, they sacrifice any right to complain of more favorable treatment of non-union employees. Collective bargaining provides many benefits and protections that are unavailable to non-union members; however, assurance of equal treatment with those who elect not to utilize the collective process is not one of those protections. By electing a collective bargaining representative, minority workers accept the responsibility of adhering to the terms of any nondiscriminatory agreement negotiated in good faith by that representative. II. Count Two: Refusal to Hire In Count Two of the Complaint, the plaintiffs allege that “management perpetuated a policy that was discriminatory [sic] in that positions ineligible for union membership, such as clerical employees, mechanics, watchmen, office janitors and jobs [sic] were all occupied by whites, but are not considered traditional management positions.” They further allege that such employees “were granted the same benefits that union members received as a result of the union’s negotiations, such as holidays and birthdays off,” but that “union members were not granted the same benefits that non union/non-bargaining unit employees received, such as time off to attend funerals with pay and severance pay.” At first glance, Count Two appears to challenge the dissimilar treatment of nonunion employees to establish Title VII discrimination against union members. As explained in the previous section of this Opinion, such a challenge does not state a claim of Title VII discrimination. Our inquiry into the allegations of Count Two does not end there, however. In reviewing a dismissal for failure to state a claim, we are obligated to construe the complaint in a light most favorable to the plaintiffs and assume all allegations to be true. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Construing Count Two in a light most favorable to the plaintiffs, we find that the plaintiffs seek to prove that the positions held by non-union members were denied to them in violation of Title VII. Under this interpretation of Count Two, the plaintiffs would establish racial discrimination by showing that the defendants chose non-minority members over minorities in filling the more favorable non-union jobs. Our analysis of the denial of severance benefits challenged in Count One does not preclude the plaintiffs from pursuing this refusal-to-hire theory. In dismissing the plaintiffs’ complaint, the district court stated that 29 U.S.C. § 158(a)(5) required the employer to deny severance benefits to the plaintiffs pursuant to the terms of the collective bargaining agreement. The court apparently believed that the plaintiffs were challenging the denial of severance benefits in all of their counts. Because we read Count Two as setting forth a theory separate and apart from that which was set forth in Count One, we reverse. On remand, the district court should provide the plaintiffs with an opportunity to better articulate their refusal-to-hire theory in an amended complaint. III. Equal Pay Act Claim While we do not agree that § 8(a)(5) of the NLRA precludes the plaintiffs’ second Title VII claim, we do agree with the trial court’s decision to dismiss the Equal Pay Act claim for relief. The Equal Pay Act applies to disparities in pay between male and female employees. Not only does the complaint fail to allege any differences in pay or benefits based on gender, it fails even to assert the gender of the plaintiffs, of other members of the class that the plaintiffs purport to represent, or of the non-union employees who received severance pay. In short, the complaint makes no reference to gender whatsoever. Under these circumstances, the district court correctly concluded that the plaintiffs’ allegations in this regard are not sufficient. For the foregoing reasons, the district court’s dismissal of Count One of the complaint is AFFIRMED; the district court’s dismissal of Count Two of the complaint is REVERSED; the district court’s dismissal of the complaint against Western Grain for insufficiency of service of process is VACATED; the district court’s dismissal of Count Three of the complaint is AFFIRMED; and the case is REMANDED for further proceedings not inconsistent with this opinion. . The collective bargaining agreement contained a provision for severance pay for union employees. However, its scope was limited to those bargaining unit employees who had worked for at least three years and only in the event that the hiring of outside contractors caused the elimination of an entire department. . They claimed that they were not aware of the facts underlying their complaint until September 1984. . Section 703(a) provides ás follows: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. .Section 206(d)(1) provides as follows: (d)(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. . Although the terms "union” and "collective bargaining unit” do not ordinarily have identical meanings, they will be used interchangeably in this opinion for the sake of convenience. . In determining that the plaintiff was not contractually entitled to a reassigned job after the layoff, the court in Rose deferred to the ruling of an arbitrator. A subsequent decision of the United States Supreme Court, Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), effectively invalidated this portion of the court’s analysis, holding that a Title VII plaintiff who raises issues previously decided by an arbitrator is entitled to a trial de novo regarding those issues. Alexander did not, however, disturb the principle set forth in Rose which requires judicial nonintervention into nondiscriminatory collective bargaining agreements. . The Complaint does not allege that the defendants denied the plaintiffs severance benefits in violation of the collective bargaining agreement. In fact, as noted in footnote 1 above, the collective bargaining agreement provided that severance benefits would be paid to bargaining unit members under certain defined conditions, none of which apparently applied to the plaintiffs. . The plaintiffs cite several cases as precedent for their theory of recovery. None, however, involve claims of discrimination based on dissimilar treatment of bargaining unit and non-bargaining unit employees. Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir.1971), cited by the plaintiffs, provides little assistance. In Danner, the employer defended its decision not to give seniority and bidding rights to clerical employees on the grounds that clerical jobs were not “unionized" jobs. According to the employer, other employees such as utility men were considered "unionized" (although they were not actually union members) and therefore were entitled to these privileges. The Fifth Circuit rejected this defense as pretextual and, citing the dissimilar treatment of female clerical workers and male "unionized" employees, held in favor of the plaintiff. The court did not compare the employer’s relative treatment of union and non-union employees. .Although the parties are unable to cite any cases for or against this exact proposition, the court in its own research has located two analogous cases which indicate that union and nonunion employees are not similarly situated for purposes of class membership under Fed.R.Civ. P. 23. See Wells v. Ramsay, Scarlett & Company, Inc., 506 F.2d 436 (5th Cir.1975); Cooper v. Florida Power & Light Co., 18 FEP Cases 319, 321 (M.D.Fla.1978).

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, Plaintiff-Appellee, v. James Earl FLEMING, Jr., Henry Lee Fleming and Tommie Earl Millender, Defendants-Appellants. Nos. 76-2278 to 76-2280. United States Court of Appeals, Seventh Circuit. Argued Sept. 21, 1977. Decided Feb. 13, 1979. Certiorari Denied June 11, 1979. See 99 S.Ct. 2863. Robert A. Filpi, Chicago, 111., H. Gary Apoian, East St. Louis, 111., for defendants-appellants. Walter E. Schroeder, Asst. U. S. Atty., East St. Louis, 111., for plaintiff-appellee. Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and KUNZIG, Judge. The Honorable Robert L. Kunzig, Judge of the United States Court of Claims, is sitting by designation. FAIRCHILD, Chief Judge. Appellants James Earl Fleming, Jr., Tommie Millender, and Henry Fleming were charged in a three-count indictment with assaulting the employees of a bank during the course of a bank robbery in violation of 18 U.S.C. § 2113(d), killing a person while avoiding and attempting to avoid apprehension from the robbery in violation of 18 U.S.C. § 2113(e), conspiracy to rob a bank in violation of 18 U.S.C. § 371, and commission of that offense in violation of 18 U.S.C. § 2113(a). Robert Fisher, Jr. was also charged with these offenses but was deceased prior to the time of the indictment. After a three-day trial involving testimony by over 40 witnesses, the jury found the defendants guilty on all three counts. The defendants received identical sentences of 25 years for the robbery, 200 years for the killing, and five years for the conspiracy. The sentences were to run consecutively to one another and to any and all sentences previously imposed. Each defendant appeals his conviction. I. BACKGROUND On the morning of July 9, 1973, several witnesses observed a cream and brown Ford LTD occupied by four black males driving through Elkville, Illinois, and De Soto on the way to Carbondale, Illinois. At 11:30 a. m., Larry Powell, a Carbon-dale resident, was flagged down by four black males who said they locked the car keys in the trunk and needed tools to retrieve them. The car was a cream and brown LTD, later identified by Powell and other witnesses at FBI request. At approximately 1:15 p. m. on July 9, several black males robbed the Elkville State Bank in Elkville, Illinois, escaping with $11,355.10, packaged in St. Louis Federal Reserve Bank wrappers. Several witnesses testified to the presence of a green Chevrolet Nova outside the bank at this time and to observing several black men get into the Nova. The car then left the bank area quickly. At a later time on July 9, a green Chevrolet Nova was seen occupied by a white woman, later identified as Colleen Battaglia, the murder victim, and a black man. A second car occupied by several other black males was observed following the Nova. Even later on the afternoon of July 9, a green Chevrolet Nova was found in the Carbondale dump. The trunk was partially pried open by police and in it was found the nude and bound body of Colleen Battaglia. The back seat of the car contained various pieces of clothing and a purse. The Nova belonged to the murder victim and her husband, Michael Battaglia. Police investigators took soil samples from the vicinity of the Chevrolet Nova. A rope was also found on the road by the dump. Two bullets were subsequently discovered in the trunk. Michael Battaglia testified that he had a navy blue stocking cap in the trunk of the green Chevrolet Nova which was not present when the car was returned by the police. An autopsy performed on Colleen Battaglia revealed that she died from hemorrhaging caused by several close range gunshot wounds in the neck and chest. The pathologist who performed the autopsy could not determine the time of death. The rope which bound the victim’s hands was preserved for evidence. On July 11, 1973, Carbondale police received a radio message from the FBI seeking assistance in stopping an evasive vehicle. In response to that call, the Ford LTD, driven by Leon Collins, was stopped. The license plates on the LTD were registered to James Fleming for a 1972 Oldsmobile Cutlass. The LTD was apparently stolen. That same day the Ford LTD was examined. Investigators removed a dark blue stocking cap, some vacuum sweepings, a rug, and assorted other items. Laboratory analysis revealed that the rug found in the LTD contained sisal fibers which were identical to the rope removed from Colleen Battaglia and the rope found at the dump where the green Chevrolet Nova was located. The blue stocking cap found in the LTD matched the description of the cap missing from the green Chevrolet Nova. Moreover, soil samples taken from the cap matched the soil found around the Chevrolet at the dump. The FBI was unable to establish that Negroid hair fragments found in the green Chevrolet Nova came from any of the defendants. On October 22, 1973, the decomposed body of Robert Fisher was found by the police. The body was clothed in purple pants similar to those worn by one of the four men who flagged Larry Powell down on the day of the robbery. At trial a bank teller, Mrs. Nellie Jean Cochran, identified James Earl Fleming, Jr. and Henry Fleming as participants in the robbery. Mrs. Cochran had earlier identified Henry Fleming from a series of photographs. Mrs. Cochran was unable, however, to identify positively James Earl Fleming, Jr. from a line-up immediately after the bank robbery. Powell was also able to provide a detailed description of the four men. The Carbondale Police Chief testified that on July 26, 1973, Leon Collins, the Carbondale resident at whose home James Earl Fleming lived at the.time of the robbery, contacted the Police Department and indicated that he had found a money wrapper in a cosmetic case which James Earl Fleming had left during his stay. The money wrapper was from the St. Louis Federal Reserve Bank, dated May 3, 1973. All defendants allegedly made statements connecting them with the events of July 9, 1973. The first government witness, Gerald Smith, testified that James Earl Fleming told him the details of the Elkville robbery and the murder of Colleen Battaglia. Fleming allegedly implicated himself, his brother, and a person nicknamed “Fish.” Fleming also allegedly confessed to killing “Fish” because he was a drug addict and, therefore, unreliable. Another government witness, Otis Philips, testified that Henry Fleming told him of the Elkville Bank robbery in November, 1973. Allegedly Henry Fleming stated that he, his brother, James, and Fisher took $10,-000 in the robbery and used some of the money as bond for a brother-in-law. Additionally, Fleming related that a teller was taken hostage, raped, and murdered. James Earl Fleming allegedly confirmed his brother’s story. Philips then testified that the Fleming brothers threatened to kill him if he ever disclosed their involvement in the Elkville robbery. Still another government witness,. John Flournoy, testified that in June, 1973, he, James Earl Fleming and Tommie Millender were discussing possible bank targets in the Carbondale area. A similar discussion was held later that month in East St. Louis, Illinois at Millender’s house in the presence of Flournoy, James Fleming, Millender, and “Fish.” On that occasion, Millender allegedly told Flournoy in confidence that “Fish” was dispensable after the robbery. Flournoy did not participate in the Elkville Bank robbery because he was in the county jail on July 9th. In January or February, 1974, Flournoy again allegedly conversed with James Fleming regarding the Elkville robbery. At this meeting, Fleming recounted the bank robbery, abduction, and murders of Colleen Battaglia and Robert Fisher. The final incriminating statement was made by Tommie Millender in the presence of Frank Reid and Fred Meyer, both United States Marshals. After having been given a copy of the indictment after his arrest, Millender allegedly stated “whoever told them all this had to be somebody that was there, because they knew exactly how it took place.” In addition to testimony regarding the out of court statements by defendants and identification of defendants, several photographs of the car and the nude body of the victim were introduced at trial over defendants’ objection. At the conclusion of the trial, two female jurors were approached by a black male later identified as the brother of Tommie Millender. The jurors were reportedly asked how they were going to vote and later noticed that they were being followed by a car occupied by black individuals. The two female jurors became frightened, and related the incident to three male jurors upon their return. When informed of the incident, James Earl Fleming moved for a mistrial. The motion for a mistrial was denied after the jurors stated they could still deliberate fairly and impartially. Although in closing argument defendants’ counsel argued that statements of the government’s witnesses were unreliable because they were made by convicted felons and that other, evidence was ambiguous, the jury, after weighing the evidence and determining the credibility of the witnesses, entered guilty verdicts on all counts. Defendants contend on appeal that: (1) they were denied their Sixth Amendment right of confrontation by the admission into evidence of confessions by co-defendants who did not testify; (2) the trial court erred in failing to instruct the jury on the use of co-defendants’ confessions and in failing to instruct the jury that the identity of the perpetrators of the crimes must be proved beyond a reasonable doubt; (3) they were denied effective assistance of counsel; (4) the court abused its discretion in admitting into evidence several photographs of the murder victim; (5) the court erred in refusing to grant a mistrial after the two jurors were confronted before deliberation; (6) the killing of Colleen Battaglia does not establish a violation of 18 U.S.C. § 2113(e); and (7) the court erred in imposing consecutive sentences for violations of § 2113(d) and § 2113(e). We will now consider each of these contentions.. II. THE CONFRONTATION CLAUSE CLAIM All three defendants made, statements which not only implicated themselves, but also other defendants. The court allowed the introduction of these extrajudicial hearsay statements into evidence against all defendants over objection that such admission contravened the dictates of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We now turn to an examination of Bruton and its progeny to determine the admissibility and prejudicial impact of the statements of the defendants in this case. In Bruton, the Supreme Court held that in a joint trial of two defendants, a confession of one co-defendant who did not testify could not be admitted into evidence even with a limiting instruction that the confession could only be used against the confessing defendant. The rationale of Bruton was that the introduction of a potentially unreliable confession of one defendant which implicates another defendant without being subject to cross-examination deprives the latter defendant of his right to confrontation guaranteed by the Sixth Amendment. ' The government claims the present case differs from Bruton, however, in that each of the defendants made admissions which are substantially similar to the hearsay declarations of the other defendants. The government asserts that under these circumstances where • the admissions by the co-defendants “interlock,” introduction of admissions by non-testifying co-defendants does not violate the Bruton rule. A line of cases in the Second Circuit has held that Bruton is inapplicable where confessions by defendants in a joint trial interlock. E. g., United States ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d Cir. 1975); United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973); United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1976). The defendants, on the other hand, contend that there is no “interlocking co-confession” exception to Bruton and therefore the admissions of the co-defendants were improperly admitted and must be tested under the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This view is supported by several circuits which have rejected any exception to Bruton when co-confessions interlock and have evaluated the admission of such evidence under the harmless error rule. E. g., Randolph v. Parker, 575 F.2d 1178 (6th Cir. 1976), cert. granted, - U.S. -, 99 S.Ct. 563, 58 L.Ed.2d 649 (1978); Hall v. Wolff, 539 F.2d 1146 (8th Cir. 1976); United States v. Digilio, 538 F.2d 972 (3d Cir.), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749. The leading case in this circuit, upon which both parties rely, is United States v. Spinks, 470 F.2d 64 (7th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972). In Spinks, this court held that, at least to the extent of the facts presented there, the admission of substantially similar confessions by two co-defendants did not violate Bruton, thus following the Second Circuit’s view. This court also stated, however, that “if error was committed it was harmless beyond a reasonable doubt,” 470 F.2d at 66, given the objecting defendant’s own confession and other evidence of his guilt. This court’s reliance on both the interlocking co-confession exception and the harmless error rule is not incompatible. If, as in Bruton, only one of two co-defendants makes an inculpatory statement, then by admitting such statement into evidence without affording the objecting defendant the opportunity to test the statement by cross-examination the trial court will run the risk that the jury will be unable to disregard the co-defendant’s potentially unreliable confession and thus deprive him of the Sixth Amendment right of confrontation. Bruton, supra 391 U.S. at 136, 88 S.Ct. 1620. The same situation exists where co-defendants make inculpatory statements which are contradictory. The jury may look to the unreliable incriminating statements of a co-defendant, or to the cumulative impact of those statements coupled with the objecting defendant’s own statement to find defendant’s guilt. This danger is particularly great where, as is often the case, the defendant denies making the confession or admission admitted against him. In this type of case, the defendant’s defense that he did not make a statement attributed to him is undermined by the admission of a confession of non-testifying co-defendant. Where, however, such inculpatory statements are admitted in evidence, additional corroborating evidence may make the error harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). When, as in Spinks, the incriminating statements are substantially similar, then the devastating risk that the jury will be unable to disregard the co-defendant’s statement is not present because the defendant’s own similar statement is in evidence. Where the statement is not repudiated, it may be powerful evidence of guilt, and if properly admissible, may render the existence of the co-defendant’s statement harmless beyond a reasonable doubt. Thus, we must review the inculpatory statements to see if they were substantially similar on critical points to indicate a common origin and to minimize the problems dealt with by Bruton. This case differs from Spinks in that there are no formal confessions here, only informal disclosures in conversations with acquaintances and cellmates under circumstances which raise questions of credibility. But, as in Bruton and Spinks, none of the defendants took the stand and no repudiation of the statements was made. Here, two of the three defendants, James and Henry Fleming, admitted in detail the circumstances surrounding the commission of the crimes to others. The statements made to Smith, Philips, and Flournoy by the Fleming brothers interlock closely. Each described the taking of a white woman hostage in order to obtain a getaway car, the bank robbery itself, the killing of the hostage, and the killing of accomplice Fisher. While the admissions were not absolutely identical and some of the descriptive details were garbled in the retelling, there is no doubt that the same crimes were described by both Flemings. Thus, with regard to the Flemings the use of extrajudicial admissions of one against the other would not bring about the devastating effects envisioned by Bruton. We can see no prejudice to either Fleming since each would still be faced with his own admission even if the other’s admission was excluded. The evidence against James Earl Fleming amply supported his conviction. John Flournoy and Gerald Smith both testified that James Earl Fleming admitted to them his participation in the robbery of Elkville State Bank and the murders of Colleen Battaglia and Robert Fisher. Flournoy also testified that he, James Earl Fleming and Tommie Millender conspired to rob a bank. Otis Philips further testified that Fleming threatened to kill him if he testified. All this testimony was clearly admissible against James Earl Fleming. Moreover, Fleming was identified in court, as seen near the bank by Larry Powell, and by Mrs. Cochran as being one of the robbers. In addition, considerable circumstantial evidence supported James Earl Fleming’s conviction. A rope sample found in the LTD matched the rope which bound the hands of the murder victim and the rope found near the green Chevrolet Nova in the dump. A blue stocking cap matching the description of one missing from the green Chevrolet Nova owned by the Battaglias was found in Fleming’s car. Finally, the Carbondale Police Chief testified that Leon Collins contacted the Carbondale Police Department after he allegedly found a money wrapper from the St. Louis Federal Reserve Bank in a cosmetic case owned by James Earl Fleming. Given the overwhelming evidence of the guilt of James Earl Fleming, we have no difficulty finding that the improperly admitted evidence was harmless error. The case against Henry Fleming essentially consists of his own admissions, identification by an eyewitness to the robbery, and some circumstantial evidence. Otis Philips testified that Henry Fleming told him that he had robbed the Elkville State Bank and also committed a rape and a murder. Philips also testified that Henry Fleming threatened to kill him if he testified at trial. Finally, Philips stated that Henry Fleming told him that some of the robbery money was used to bail out Ken Bevner, Henry Fleming’s brother-in-law. Sergeant Bill Glassaock testified that on the day after the robbery, Henry Fleming did pay $750 to have Bevner released on bail. The testimony of Otis Philips and Sergeant Glassaock was unquestionably admissible against Henry Fleming. Henry Fleming was further inculpated by the testimony of Mrs. Cochran, who identified Henry Fleming both after the robbery from a series of photographs and at trial as a participant in the bank robbery. Thus Mrs. Cochran identified Henry Fleming on two different occasions as one of the bank robbers. As in the case of James Earl Fleming, we find that the evidence against Henry Fleming strongly supports his conviction. The improperly admitted evidence was merely cumulative and therefore constituted harmless error. Millender’s statement regarding the crimes is not substantially similar to those of the Flemings. In fact, the statement consists of one noncommittal sentence made in the presence of two federal marshals on being shown the indictment against him. The government contends that the sentence —“I’ll tell you one thing, whoever told them all this had to be somebody that was there, because they knew exactly how it took place.” is as inculpatory as the clear and unequivocal admissions of the Flemings. We disagree. Millender’s comment is of such general nature that it is not certain whether the statement was an admission or merely a reaction to the detailed nature of the document presented to him. Consequently, in Millender’s case, the use of the extrajudicial admissions of his co-defendants could bring about the devastating effect feared by Bruton. It is possible that a seemingly inconsequential statement by Millender could be interpreted by the jury to be an admission of guilt when coupled with the detailed admissions of his co-defendants. Thus we conclude that the use of the inculpatory statements of the Fleming brothers was erroneous. We must, however, scrutinize all evidence against Millender to determine whether or not the error is harmless beyond a reasonable doubt. The evidence against Tommie Millender consisted of statements which he allegedly made to John Flournoy and to the United States Marshals. Flournoy testified to conversations he had with Millender where a bank robbery and the possible murder of Robert Fisher was discussed. These statements were admissible against Millender since he and Flournoy were co-conspirators and the testimony shows participation in a conspiracy to rob. Of course, the statement made to the marshals was also admissible against Millender. Millender’s statements to Flournoy are powerful evidence of guilt. The statement made in the presence of the marshals is less indicative of guilt, but may be damaging since their credibility was not attacked. However, unlike the case against either James Earl or Henry Fleming, no other direct or circumstantial evidence linked Millender to the crime. Significantly, Millender was never identified before, during, or after the robbery as a participant. Under these circumstances, we cannot say that the improperly admitted admissions of James Earl and Henry Fleming which linked Millender to the crime were not prejudicial beyond a reasonable doubt and therefore hold that Millender is entitled to a new trial. III. THE ABSENCE OF LIMITING INSTRUCTIONS Even though the argument about the absence of limiting instructions is to some extent merged with the Bruton argument, defendants contend that the failure of the trial court to give limiting instructions on the use of the hearsay evidence and the burden of proof in proving identity constitutes reversible error. At trial, no defendant at any time requested a limiting instruction as to any statements of co-defendants nor did any defendant ask for an identification instruction. Thus the failure to instruct must result in “basic and highly prejudicial error” to justify reversal of a conviction. United States v. Esquer, 459 F.2d 431 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973). A. The Failure to Give Limiting Instructions On the Use of the Hearsay Statements We do not find the failure of the trial judge to give a limiting instruction at the time the statements were introduced to be sufficiently prejudicial to constitute plain error. Riley, et al. v. United States, 411 F.2d 1146 (9th Cir. 1969), cert. denied, 397 U.S. 906, 90 S.Ct. 897, 25 L.Ed.2d 87 (1970). It is conceivable that the defense attorneys did not request such an instruction as a matter of strategy to avoid highlighting damaging statements to the jury. Moreover, the conspiracy instruction given by the judge at the end of the trial specifically informed the jurors that they could consider statements not in furtherance of the conspiracy only against the person making them. Defendants rely on United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971), for the proposition that failure by the trial judge to give a limiting instruction at the time of the admission of evidence offered for a limited purpose constitutes plain error. McClain, however, is distinguishable from the case at bar. The issue in McClain was the evidentiary use of a prior violent act by the defendant in a later trial which resulted in a conviction for manslaughter. While the prior act was admissible against the defendant to show malice, no limiting instruction was requested or given. The court held that the failure of the trial judge to issue a limiting instruction was plain error requiring reversal. McClain involved unique facts which are crucial to an understanding of the case. After defense counsel in McClain objected to the admission of the prior incident, the prosecutor stated at the bench that he only intended to use the incident to demonstrate malice. The trial court excluded the evidence as prejudicial. When defense counsel then questioned the witness about prior violent acts by defendant, the court on its own initiative interrogated the witness about the specific prior incident that the court had earlier excluded as too prejudicial. Under these circumstances, the absence of a limiting instruction was deemed to be plain and reversible error. As the unusual facts of McClain are absent in this case, we adhere to the general rule that “[T]he primary responsibility rests on counsel to make fair and proper requests to charge.” United States v. Bessesen, 445 F.2d 463, 468 (7th Cir. 1971). We hold, therefore, that the failure of the trial court to give limiting instructions on the use of hearsay statements at the time of their admission does not constitute plain error mandating reversal. B. The Failure to Give Limiting Instructions on the Burden of Proof in Proving Identity Defendants also contend that where identification of a defendant is a key issue, failure to given an instruction on identity constitutes reversible error. We find no merit to this contention. Some cases cited by defendants do hold that refusal to give a proffered instruction on the issue of identity is reversible error. E. g., United States v. Hodges, 515 F.2d 650 (7th Cir. 1975). Cf., United States v. Barber, 442 F.2d 517 (3d Cir. 1971). These cases do not suggest, however, that a failure by the trial judge to give a cautionary instruction to the jury where none was requested can be grounds for reversal. IV. THE ADEQUACY OF COUNSEL Criminal defendants in this circuit have “the constitutional right to an advocate whose performance meets a minimum professional standard.” United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975). The defendants here claim their counsel did not meet this constitutionally required minimum standard. In considering a claim of ineffective assistance of counsel we start with a presumption that he was conscious of his duties to his clients and that he sought conscientiously to discharge those duties. The burden of demonstrating the contrary is on his former clients. Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975). See also, United States ex rel. Ortiz v. Sielaff, 542 F.2d 377 (7th Cir. 1976). We do not feel defendants have succeeded in overcoming the presumption of adequate assistance of counsel. Defendants place primary emphasis on trial counsel’s failure to request limiting instructions on the use of statements by co-defendants at the time of their admission and trial counsel’s failure to request an instruction on identification. Defendants also allege that trial counsel should have moved to suppress the eyewitness identification of Henry Fleming by Mrs. Cochran and should have objected to the introduction of certain hearsay testimony. None of these alleged failures by counsel rise to the level of a constitutional deprivation. As we stated earlier, defense counsel may well have decided not to-draw the attention of the jury to damaging testimony by requesting limiting instructions at the time of admission. Nor do we consider the failure to move to suppress the identification of defendants as significant given the extreme unlikelihood that such motion would be granted. We concede that it may have been preferable for counsel to have requested an instruction on identification and objected to the introduction of all hearsay evidence, but we adhere to the view that tactical or strategic errors during trial do not raise a presumption of failure to meet the constitutional guarantee of adequate counsel. United States ex rel. Williams v. Twomey, supra at 640. Were the situation otherwise, there would rarely be a criminal trial where some strategic or tactical error could not be seized upon as demonstrating ineffective assistance of counsel. Finally, we note that we are persuaded, after an independent examination of the record, that defense counsel did a commendable job in attempting to discredit testimony of government witnesses, objecting to the introduction of statements of non-testifying co-defendants as violative of Bruton, making other timely objections, and presenting the evidence in a light most favorable to defendants in opening and closing arguments. V. THE INTRODUCTION INTO EVIDENCE OF THE PHOTOGRAPHIC EXHIBITS Defendants assert that the admission into evidence of numerous photographs of the victim’s nude and bound body prejudiced the jury against the defendants and constituted reversible error. It is well settled that the admission or rejection of photographs lies largely within the discretion of the trial court, and unless there is a showing of abuse of discretion, the trial court’s ruling will not be disturbed on appeal. United States v. Delay, 500 F.2d 1360, 1366 (8th Cir. 1974). Although relevant evidence can at times be excluded where highly prejudicial, in this case, several of the photographs had probative value in that they established the corpus delicti, the approximate location of the gunshot wounds, and the fact that the victim’s hands were bound with rope. Arguably a smaller selection of pictures could have sufficed. While the United States should be cautious to avoid unnecessary prejudice, it is a matter of discretion and we cannot say it was’ abused. VI. THE REFUSAL TO DECLARE A MISTRIAL Defendants further allege that the trial court abused its discretion in failing to declare a mistrial after two female jurors were contacted and questioned as to how they would vote. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1953), the Supreme Court held that unauthorized private communications with jurors on matters pending for their deliberation was presumptively prejudicial. We think the presumption of prejudice was overcome in this case. All counsel agreed to permit the court to question the jurors involved as to any prejudice. At a hearing in chambers, each of the jurors who was aware of the ex parte communication stated that he or she was not prejudiced or in any way hampered from impartially considering the charges against the defendants. Only after this hearing was conducted did the trial judge refuse to grant defendants’ motion for a mistrial. We hold that the judicious course followed by the trial judge after the unfortunate communication' with the jurors adequately demonstrated that no prejudice resulted and that therefore the trial court did not abuse its discretion in not declaring a mistrial. VII. WHETHER A VIOLATION OF 18 U.S.C. § 2113(e) WAS PROVED 18 U.S.C. § 2113(e) provides in relevant part: Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense kills any person... shall be imprisoned. Defendants contend that no violation of this section was proved in this case. We do not agree. The government alleged that defendants kidnapped Colleen Battaglia in Carbondale to acquire her car to commit the bank robbery. The defendants then robbed the Elk-ville State Bank and fled to the dump in Carbondale where they murdered Colleen Battaglia. The verdict of guilty demonstrates the jury agreed with the government’s view of the case. We are aware, of course, that criminal statutes must be construed strictly. However, we find no ambiguity in the statute. The kidnapping and murder of Colleen Battaglia after the bank robbery falls plainly within the statutory prohibition of murder “in avoiding or attempting to avoid apprehension for the commission of [the] offense.” See United States v. Etheridge, 424 F.2d 951, 963 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971). VIII. WHETHER IT WAS PROPER TO IMPOSE CONSECUTIVE SENTENCES FOR VIOLATIONS OF 18 U.S.C. §§ 2113(d) AND 2113(e) The question before us is whether consecutive sentences can be imposed under subsection (d) and (e) of 18 U.S.C. § 2113. Defendants contend that these subsections each prescribe a more severe punishment for the substantive offense defined elsewhere in § 2113 rather than creating separate offenses for which separate sentences may be imposed. The pertinent part of subsection (d) provides: “Whoever, in committing. any offense defined in subsection (a)... assaults any person,... shall be fined... (Emphasis added.) This language has been uniformly interpreted to increase the subsection (a) penalty for committing an assault during the course of a bank robbery and not to create a distinct offense authorizing a separate penalty. United States v. Faleafine, 492 F.2d 18 (9th Cir. 1974). Cf. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). The language of subsection (e), differs significantly from the language of subsection (d). Subsection (e) has three separate subparts stated in the disjunctive which, to facilitate analysis, we number in brackets: “Whoever [1] in committing any offense defined in this section, [2] or in avoiding or attempting to avoid apprehension for the commission of such offense [3] or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person.... ” (Emphasis added.) Whatever the merits of arguing about the construction of § 2113(d) and (e), this circuit has long ago committed itself to the position that this.§ 2113(e) creates separate offenses for which separate sentences can be imposed. United States v. Parker, 283 F.2d 862 (7th Cir. 1960). Other circuits have reached the same result. E. g., Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), cert. denied 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976); Clark v. United States, 184 F.2d 952 (10th Cir. 1950). Contra, Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973); Simunov v. United States, 162 F.2d 314 (6th Cir. 1947). Having considered all the contentions of the defendants, the judgments as to James Earl Fleming and Henry Fleming are affirmed. The judgment as to Tommie Mil-lender is reversed, and his cause remanded for a new trial. AFFIRMED IN PART, REVERSED IN PART. . 18 U.S.C. § 2113(d) provides: (d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both. . 18 U.S.C. § 2113(e) provides: (e) Whoever, in committing any offense defined in this section or in avoiding or attempting to avoid apprehension for the commission of such offense,... kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct. . 18 U.S.C. § 371 provides in relevant part: If two or more persons conspire either to commit any offense against the United States,... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000

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?

HAMLIN TESTING LABORATORIES, INC., Petitioner, v. UNITED STATES ATOMIC ENERGY COMMISSION, and The United States of America, Respondents. No. 16055. United States Court of Appeals Sixth Circuit. March 25, 1966. Anthony B. Roshak, Detroit, Mich., for petitioner. Sidney G. Kingsley, Asst. General Counsel (Sol.), Atomic Energy Commission, Washington, D. C., William H. Qr-rick, Jr., Asst. Atty. Gen., Lionel Kesten-baum, Gerald Kadish, Attorneys, Department of Justice, Washington, D. C., Joseph F. Hennessey, General Counsel, Troy B. Conner, Jr., Trial Counsel Office of General Counsel, United States Atomic Energy Commission, Washington, D. C., on brief, for respondents. Before PHILLIPS and EDWARDS, Circuit Judges, and THORNTON, District Judge. Honorable Thomas P. Thornton, United States District Judge for the Eastern District of Michigan, sitting by designation. THORNTON, District Judge. The Court has before it for review an order of the Atomic Energy Commission denying the application of Petitioner Hamlin Testing Laboratories for renewal of its Byproduct Material License authorizing it to perform industrial radiography. These parties were before this Court on a prior occasion by virtue of petitioner’s motion for an order staying the enforcement of the Atomic Energy Commission’s order denying the renewal license application. The determination of that matter is reported in the case of Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, 337 F.2d 221 (C.A.6, 1964). For the purpose of introducing the subject matter here for consideration we will quote the third paragraph of that opinion. It reads as follows, at page 222: “Hamlin’s application for license renewal was denied on the basis of its conceded repeated violations of Commission regulations adopted to protect health and safety. A trial examiner, while finding such violations, exonerated Hamlin on his view that its violations were not wilful. The Commission did not follow the recommendations of its Hearing Examiner. It has not been shown to us that lack of wilfulness would necessarily bar the Commission from refusing renewal to a licensee which had repeatedly violated its regulations. Without full review of the record of the case, the material before us does not demonstrate such a strong probability that petitioner will succeed on the merits as to prompt us to stay the Commission’s order.” As to the nature of the work that the Hamlin firm had been licensed to perform, respondent states that the Byproduct Material License issued to Hamlin authorized it to conduct radiography using sealed sources of radiation; that sealed sources contain radioactive “byproduct material” created by nuclear reactions; that radiography is the examination of materials by the use of penetrating radiation, as X-rays are used; and that radiography is performed by employing sealed sources in shielded containers comparable to cameras, with shutters which may be opened during exposure. From the foregoing it appears to the Court that the Hamlin firm had been licensed to use a device that contained radioactive material, in connection with the examination of equipment and/or materials. Such license was originally issued to the Hamlin firm on June 30, 1960, renewed on May 25, 1961 and expired May 31, 1963, but actually continued in effect beyond that date, since Hamlin had filed an application for its renewal on April 25, 1963. On June 14, 1963 the renewal application was denied by the Division of Licensing and Regulation of the Atomic Energy Commission. Said denial notice informed Hamlin that the basis for the denial was violation of its license and of Commission regulations in numerous respects. The denial notice contained reference to the specific matter with respect to which such violation had been found to have occurred.. Such part of the notice is referred to as Part III and Part IV and will be adverted to by us shortly. Subsequent to the said denial notice by the Commission’s Division of Licensing and Regulation, Hamlin requested a hearing which was held before a Hearing Examiner who issued an Initial Decision October 17, 1963 setting forth his findings, and concluding that the license should be conditionally renewed for a limited time. The Commission then sought review of said Initial Decision which was had, and a Decision rendered by the Commission on July 8,1964, which reversed the Initial Decision of the Hearing Examiner. The foregoing sets forth the chronology leading up to the instant Petition For Review, to the contents of which we will now direct our attention. Petitioner Hamlin has set forth its Statement of Questions Involved, consisting of ten questions. Respondent has accepted said Statement of Questions. The Questions are as follows: “I. Does a denial of an application for license renewal constitute a “withdrawal” of the license within the meaning of Section 9(b) of the Administrative Procedure Act? II. Does Section 9(b) of the Administrative Procedure Act require prior notice of violations and opportunity for compliance before issuance of denial of application for license renewal ? III. Is a denial of an application for license renewal action within Subpart B of the Commission’s “Rules of Practice”, 10 CFR 2? IV. Was the licensee guilty of willful and intentional violations of the Commission’s regulations and license conditions ? V. Did the Commission violate due process of law or depart significantly from fair play in its dealings with the licensee? VI. Did the licensee willfully falsify its utilization log? VII. Did the licensee knowingly report false information to the Commission? VIII. Was the licensee prejudiced by the inaction of the Commission in withholding additional user authority under the license? IX. Did the Commission err in overruling the renewal of the license for a limited term? X. Did the Commission err in reversing the Hearing Examiner’s evaluation of the credibility of the witnesses and the evidence as a whole?” We do not deem it necessary to deal specifically with each question. We will treat the issues herein as component parts of one integrated whole, said whole being necessarily controlled by certain compelling and overriding considerations. The indicated questions are therefore subject to such considerations and the answers thereto governed by the approach to the total picture. In the earlier opinion in this matter (Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, supra), Judge O’Sullivan, writing for the Court, said that “[i]t will be obvious that the public interest is critically involved in the use of materials subject to regulation by the Atomic Energy Commission”. Judge O’Sullivan also wrote that even though the Court may not fully understand “the dangers involved in the use of ‘by-product material’ by careless or unskilled hands, we can fairly infer such danger.” Our review of this matter has convinced us that there is, in fact, extreme danger attached to the use of “byproduct material” by unqualified persons. The June 14, 1963 denial notice by the Commission’s Division of Licensing and Regulation contained a Part III setting forth three violations based upon the disclosure resulting from 1963 inspections by the Commission of petitioner’s operations. One was stated to be willful violation of License condition No. 13 in permitting ten named individuals to act as radiographers or radiographers’ assistants without approval of the Commission. Two stated that the licensee knowingly falsified its utilization log by recording that Mr. Hamlin was the radiographer who used the radiography source at the Enrico Fermi Nuclear Power Plant, when in fact the source was not used by Hamlin but was used by unauthorized employees of the licensee. Three stated that: “The licensee knowingly reported false information to Commission inspectors during the inspection on April 30, 1963, in stating that, contrary to fact, all radiography performed (1) at the Enrico Fermi Nuclear Power Plant, Monroe, Michigan, (2) at the Defoe Shipbuilding Company, Bay City, Michigan, and (3) at the licensee’s headquarters, Roseville, Michigan, had been performed by persons authorized to conduct radiography under Condition No. 13 of License No. 21-6564-1”. Part IV of the denial notice stated that the 1963 inspections disclosed the following additional violations: (1) Conducting radiography at Bay City without a calibrated and operable survey instrument, in violation of Section 31.303(a); (2) Permitting employees to conduct radiography without a film badge, in violation of Section 31.203(a); (3) Failing to make records of radiation surveys, in violation of Section 20.401(b); (4) Failing to record pocket dosimeter readings daily for radiographer Mr. Hamlin, in violation of Section 31.203(b); (5) Failing to maintain personnel monitoring records for radiographer Mr. Hamlin on Form AEC-5 or its equivalent, in violation of Section 20.401(a); and (6) “With respect to the sealed sources in its possession between June 8, 1961 and April 19,1963, the licensee performed leak tests in violation of Section 31.105(a); failed to have leak tests conducted at intervals of six months or less as required by Section 31.105 (b); and failed to make records of those leak tests conducted, in violation of Section 31.105(c).” Part V of the denial notice states that: “It is further found that the activities of the licensee as set forth in Sections II, III and IV above demonstrate that the licensee is not qualified to own, possess, and use byproduct material as requested in the application for renewal filed by the licensee on April 25,1963, and accordingly said application should be denied.” The Hearing Examiner upon review of said denial notice by the Commission treated the matters contained in Parts III, IV and V in the following manner: As to the first item in Part III, he found that Petitioner’s use of individuals to act as radiographers or radiographers’ assistants without the approval of the Commission (violation of License condition No. 13) “was less a willful violation of the specific condition of its license than a good faith attempt to train and qualify personnel to enable them to become officially authorized users under the license”. As to the second item in Part III of the denial notice, the Hearing Examiner found that the incorrect log entries were simply errors and “did not amount to a knowing falsification”. These entries were the ones indicating Mr. Hamlin to have been the radiographer who used the source at the Enrico Fermi Nuclear Power Plant when in fact it was used by unauthorized employees. With respect to the third item in Part III of the denial notice, the Hearing Examiner included the following findings, among others, in paragraph 37 of his Initial Decision: “ * * * The testimony adduced includes both direct and indirect contradictions about the circumstances out of which this charge arose. * * * the record does not support a finding that knowingly false testimony was given by either or any of the witnesses upon this point. * * * Balancing these considerations and the observed renditions of the testimony, a finding in two parts is made: (1) with a lack of candor which amounts to less than knowingly reporting false information, Mr. Hamlin permitted or led the inspectors to believe that false statements were made; and (2) the intangible effects of conflicting motivations for each witness, on the occasions of the investigation and the hearing, so shadow with doubt the precision of their respective recollections as to preclude a finding of knowingly false testimony that produced the conflict concerning the words used by Mr. Hamlin. Hence, the allegations made in Part III-3 of the denial are not sustained by the record.” We now turn to Part IV of the denial notice which we outlined above, consisting of six items. As to each of these, the Hearing Examiner found in his Initial Decision that each of said violations as alleged did occur. In dealing with Part V of the denial notice, the Hearing Examiner stated as follows in paragraphs 44 and 45 of his Initial Decision: “ * * * It is concluded that the entire record does not support a finding that the licensee’s conduct did amount to intentional acts done knowingly in violation of applicable regulations and license conditions. The whole record falls short of showing that the licensee’s conduct should be characterized as manifesting such utter disregard for regulatory requirements as to amount to willful violations. The attitude of the licensee, and its course of conduct as demonstrated at all times prior to the intiation of this investigation, are persuasive to the view that willful and intentional violations have not been committed.” “ * * * The sum of the licensee’s demonstrated deficiencies casts doubt upon the adequacy of its qualifications to own, possess and use byproduct material. Nevertheless, a careful review of all of the circumstances leads to the conclusion that a denial of the license renewal application ought not here to be imposed. On the other hand, the record is not persuasive to a judgment that the license renewal should be granted as requested. * * * [I}t is concluded that a conditional renewal of license for a limited term should be ordered.” Petitioner has indicated that certain findings appearing in the Commission’s Decision of July 8, 1964 reflect the controlling points of the Decision. We quote from the Decision as it pertains to these points: 1. “We adopt the findings of the hearing examiner to the extent that he found that the licensee had committed the acts charged in the notice of violation, and his findings as to the licensee’s lack of candor. But we go one step further. We find that the violations were willful within the standard we have applied in * * * [citing cases].” 2 «* * * [W]e find that the conversation of April 30, 1963 between Mr. Hamlin and the Commission’s inspectors was as they reported it and that he intended to deceive them and the Commission ****** that the words amounted to careful equivocation intended to mislead.” 3. “We find on full consideration of the record that the applicant is not qualified to own, possess, and use byproduct material as requested in the application for renewal, and that the application for renewal should be denied for the protection of the public health and safety and in the public interest.” 4. “We do not find that the staff committed any violations of due process of law or departed significantly from fair play in its dealings with the licensee.” 5. “ * * * Hamlin was not prejudiced by any unreasonable delay in determining its application of March 6, 1963, for authority to use additional radiographers.” 6. “In any event, however, we hold that the denial of an application for renewal of a license is not withdrawal, suspension, revocation or annulment of the license within the meaning of Section 9(b) of the Administrative Procedure Act.” 7. “We hold that the denial of renewal of a license under Subpart A is not ‘other action’ within Sub-part B.” 8. “The application of Hamlin Testing Laboratories, Inc., for renewal of byproduct material license No. 21-6564-1, filed on April 25, 1963, is denied, effective thirty days after the date of this decision.” The Commission adopted the findings of the Hearing Examiner that the violations as charged had been committed but disagreed that they had not been willful. It took the position that there is necessity for meticulous compliance with the rules and regulations in the interest of public health and safety, and that on the entire record there was reason to doubt that the licensee would perform in an acceptable manner, that the pattern of continued violations and false reports was persuasive that the license should not be renewed, conditionally or otherwise, as recommended by the Hearing Examiner. The foregoing findings and conclusions are supported by substantial evidence. We find here a strong analogy to the situation presented in the case of Lorain Journal Company v. Federal Communications Commission, 351 F.2d 824 (C.A.D.C.1965). In that case the Commission had reversed the Hearing Examiner and the Court affirmed the decision of the Commission. The Court pointed out that Commissions are not “relegated to the role of reviewing courts who sustain fact findings of courts of first instance unless clearly erroneous. FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 364, 75 S.Ct. 855, 99 L.Ed. 1147 (1955). The responsibility for decision is placed in the Commissioners appointed by the President and confirmed by the Senate to discharge the function of administering the statutes under the agency’s cognizance.” Lorain Journal Company v. F. C. C., supra, 351 F.2d page 828. A number of additional observations made by the Court in Lorain are of equal force here. We, therefore, quote further from that opinion at page 828 because of the direct applicability of the language employed therein to the situation presented by this appeal. “ * * * The agency’s conclusions must be sustained if supported by substantial evidence even though there is also substantial evidence to support the contrary conclusion of the examiner. The Examiner’s report is entitled only to ‘such probative force as it intrinsically commands’ [see Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, at 495, 71 S.Ct. 456, at 468, 95 L.Ed. 456]. In this case, even assuming that the Examiner’s report reflects a plausible view of the evidence, it does not negative the Commission’s conclusions as a permissible view of the significance of the facts shown by the evidence. There are indeed items of evidence supporting the Examiner’s conclusion. There are also countervailing factors. It is for the Commission to measure the force of the various vectors and to chart the resultant in the parallelogram of forces.” We find a direct parallel between that case and this one in many respects and adopt the rationale there employed in reaching our conclusion that the decision of the Commission herein on appeal must be affirmed. We can imagine no area requiring stricter adherence to rules and regulations than that dealing with radioactive materials, from the viewpoint of both public health and national security. The various contentions raised by petitioner concerning procedural matters are thoroughly and competently dealt with by the Commission in its Decision. Petitioner complains, for example, that the procedures applicable to the withdrawal, suspension, revocation or annulment of a license were not here followed. The simple answer to this is that petitioner had filed an application for renewal of a license. The Commission’s Decision relies upon the fact that a renewal application is not withdrawal, suspension, revocation or annulment, and that the complaint is not well taken for this reason. We agree. The same situation prevails with respect to petitioner’s complaint concerning the applicability of Subpart B of Part 2 of the regulation dealing with suspensions, modifications and revocation of existing licenses. The proceedings here were pursuant to Sub-part A of Part 2 dealing with the issuance and renewal of licenses. The Commission states that the “two subparts are mutually exclusive in scope”. With this we also agree. We find no merit to plaintiff’s complaint of lack of due process addressed to various procedural matters, and conclude that the Decision of the Commission should be in all respects and hereby 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 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?

ESTATE of Henry G. EGAN, Transferee, Northwestern National Bank, Executor, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 15912. United States Court of Appeals Eighth Circuit. Nov. 10, 1958. William R. Busch, St. Paul, Minn. (Joseph A. Maun and Bundlie, Kelley & Maun, St. Paul, Minn., were with him on the brief), for petitioner. James P. Turner, Atty., Dept. of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., and Joseph F. Goetten and Robert N. Anderson, Attys., Dept. of Justice, Washington, D. C., were with him on the brief), for respondent. Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. Petitioner, the executor of the estate of Henry G. Egan, has filed timely petition for review of the decision of the Tax Court (opinion reported 28 T.C. 998) holding the estate liable as transferee for the deficiency in income tax previously finally determined to be due from the transferor, Egan, Inc. The Tax Court, by its decision in Egan, Inc., v. Commissioner (not reported), on May 19, 1955, after trial upon the merits, determined that Egan, Inc., in the taxable year 1948 was availed of for the purpose of preventing the imposition of surtax upon its stockholder through the medium of permitting earnings to accumulate beyond the reasonable needs of the business, and that the corporation was liable for a deficiency in income tax of $88,286.78 under section 102 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 102. Upon review we affirmed the Tax Court decision. Egan, Inc., v. Commissioner, 8 Cir., 236 F.2d 343. The facts establishing the tax liability of Egan, Inc., are fully set out in our opinion. Henry G. Egan was the sole stockholder of Egan, Inc. He died on January 15, 1953. Egan, Inc., was dissolved, and all of its assets were transferred to Egan’s executor, the transferee here involved, on or about March 19, 1953. It is undisputed that the value of the assets so transferred exceeds the amount of the tax liability. Egan, Inc., did not pay the tax liability deficiency determined against it. The Commissioner proceeded against petitioner as transferee of Egan, Inc., issuing on May 15, 1956, a statutory notice covering the 1948 tax deficiency of Egan, Inc., which the Commissioner proposed to assess against the petitioner as transferee. A statement, made part of the notice, asserts that the amount of the deficiency of the transferor has been adjudicated. Within 90 days of the issuance of such notice, petitioner filed a petition with the Tax Court seeking a redetermination of the amount of the tax liability of Egan, Inc. The petitioner does not deny its liability as transferee for any deficiency in tax due from Egan, Inc., but contends that Egan, Inc., does not owe the tax claimed by the Commissioner. The Commissioner in his answer, among other things, alleged that the liability of Egan, Inc., was finally determined in the case of Egan, Inc., v. Commissioner, supra, and that the transferee is prevented by the doctrine of res judi-cata from resisting transferee liability on the ground that the transferor was not liable for the tax. Upon the Commissioner’s motion for judgment on the pleadings, the Tax Court, after hearing arguments of counsel, determined that the petitioner was precluded by the doctrine of res judicata from relitigating the liability of Egan, Inc., for the tax deficiency determined in the prior litigation. The basis of the Tax Court’s ruling is thus stated: “A transferee stockholder and a transferor corporation, under the present circumstances, are parties in privity and both the present transferee and the Commissioner are precluded from relitigating the issue decided in the case of the taxpayer, Egan, Inc. Jahncke Service, Inc., 20 B.T.A. 837, appeal dismissed (C.A.-5) 112 F.2d 169; Nora M. Carney, et al., 22 B.T.A. 721. That rule is supported by the rule of privity of parties under the doctrine of res judicata and by the fact that the corporation, in litigating the deficiency under the circumstances here present, was acting not only for itself but also for the stockholder. The petitioner’s contention that section 534 of the I.R.C. of 1954 [26 U.S.C.A. § 534] constitutes a change in the law which avoids the application of res judicata is without merit since a change in the law or a change in the legal climate after the final judgment in the case of the taxpayer does not avoid the effect of res judi-cata. Commissioner v. Sunnen, 333 U.S. 591 [68 S.Ct. 715, 92 L.Ed. 898]. * * *” The issue for our determination is whether the prior final decision on the merits, determining the tax liability of the transferor, Egan, Inc., for 1948, is res judicata of the liability of the petitioner, as transferee, for the same tax, where it is admitted the transferee status exists and that the assets transferred exceed in value the amount of the tax claimed. Petitioner’s contention is that section 534 of the Internal Revenue Code of 1954 brought about a change in the law by shifting the burden of proof from the taxpayer to the Commissioner upon the issue of whether the accumulation of earnings was beyond reasonable business needs. Section 533(a) of the 1954 Code, 26 U.S.C.A. § 533(a), which, in effect, is the same as section 102(c) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 102(c), operative at the time of the determination of the tax liability of Egan, Inc., provides: “(a) Unreasonable accumulation determinative of purpose.- — 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 534(a), upon which petitioner relies, is a statutory provision not appearing in previous codes, áñd reads: “(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— “(1) if notification has not been sent in accordance with subséction (b), be on the Secretary or his delegate, or “(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 in accordance with the provisions of such subsection.” ’ ■ As originally enacted, section 534(a) was not operative as to past tax years. By Act of August 11, 1955, Chapter 805, Section 4, 69 Stat. 689, 690, section 534 was extended to cover prior taxable years as to cases tried on the merits after the enactment of the amendment. The trial of the Egan, Inc., case occurred before the enactment of the amendment, Petitioner contends that it is entitled to a redetermination of the merits by virtue of section 6901 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6901, which provides that tax liabilities of transferees shall “be assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the ease of the taxes with respect to which the liabilities were incurred.” Petitioner contends that section 6901 requires the Commissioner to issue the statutory notice prescribed by section 6212, and that the issuance of such notice gives the right to have the liability of the transferor determined. Doubtless, section 6901 gives the transferee a right at least to have an adjudication upon an issue that has not previously been litigated and determined, such as, whether he is in fact a transferee, and whether the value of the transferred assets equals the amount of the tax liability. Also, in situations where there has been no final adjudication as to liability of the transferor, the transferee would be entitled to have such liability determined by the Tax Court. In answering a similar contention made by a transferee under section 280 of the Revenue Act of 1926, which is in substance similar to section 6901, the Board of Tax Appeals in Jahncke Service, Inc. v. Commissioner, 20 B.T.A. 837, 849, states: “ * * * Where the tax liability of a transferor corporation has never been adjudicated, we think that under the provisions of section 280 a transferee stockholder may have the tax liability of the transferor determined in a proceeding brought by the transferee, but we find nothing in section 280 which indicates that Congress intended that, although the tax liability of the transferor corporation has been determined in a proceeding brought by and in the name of the corporation, such determination is to be ignored and the tax liability of the transferor corporation determined anew each time a transferee stockholder comes before the Board and asks that such be done. Under the construction contended for by the petitioner, there could be no finality of the determination of the tax liability of the transferor corporation so long as there remained a transferee stockholder against whom the respondent had determined a liability as transferee, and whose case remained undecided.” We agree with the foregoing reasoning of the Tax Court. We find nothing in section 6901 which shows any legislative intent that the doctrine of res judi-cata should not be applied in determining the amount of tax liability of the transferee. It is well settled that the doctrine of res judicata applies to tax cases. Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 92 L.Ed. 898; Tait v. Western Maryland Ry. Co., 289 U.S. 620, 624, 53 S.Ct. 706, 77 L.Ed. 1405; Guettel v. United States, 8 Cir., 95 F.2d 229, 231, 118 A.L.R. 1060. We believe that the Tax Court correctly determined that the doctrine of res judicata applies. The deficiency involved in the suit against Egan, Inc., was that for the year 1948 occasioned by accumulation of surplus beyond reasonable business needs. Exactly the same tax of the transferor for the year 1948 is involved in the present litigation. The Supreme Court in Commissioner v. Sunnen, supra, prescribes the test to be applied in determining identity of causes of action, stating (333 U.S. at page 598, 68 S.Ct. at page 719): " * * * Income taxes are levied on an annual basis. Each year is the origin of a new liability and of a separate cause of action. Thus if a claim of liability or non-liability relating to a particular tax year is litigated, a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year. But if the later proceeding is concerned with a similar or unlike claim relating to a different tax year, the prior judgment acts as a collateral estoppel only as to those matters in the second proceeding which were actually presented and determined in the first suit. * * *” The Court in the case just cited also discusses the distinctions between res judicata and collateral estoppel, and with reference to the scope of res judicata states (333 U.S. at page 597, 68 S.Ct. at page 719): “ * * * The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. * * * ” In Guettel v. United States, supra, this court states (95 F.2d at page 230): “ ‘The scope of the estoppel of a judgment depends upon whether the question arises in a subsequent action between the same parties upon the same claim or demand or upon a different claim or demand. In the former case a judgment upon the merits is an absolute bar to the subsequent action.’ (Italics supplied.) Tait v. Western Maryland Railway Co., 289 U.S. 620, 623, 53 S.Ct. 706, 707, 77 L.Ed. 1405. The reason for this is that a judgment, if rendered upon the merits, is conclusive not only as to all matters which were decided, but as to all matters which might have been decided. * * * ” Among other cases holding that res judicata is an absolute bar to relitigating the cause of action are: Tait v. Western Maryland Ry. Co., supra, 289 U.S. at page 623, 53 S.Ct. at page 707; Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; Bass v. United States, 8 Cir., 221 F.2d 494, 496; First National Bank of Chicago v. Commissioner, 7 Cir., 112 F.2d 260, 262; Jahncke Service, Inc. v. Commissioner, supra, 20 B.T.A. at page 849. In our present ease there can be no question but that privity exists between the petitioner and Egan, Inc. Egan was the sole stockholder of Egan, Inc. “A stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings touching the body oí which he is a member.” Hawkins v. Glenn, 131 U.S. 319, 329, 9 S.Ct. 739, 742, 33 L.Ed. 184; Marin v. Augedahl, 247 U.S. 142, 150, 38 S.Ct. 452, 62 L.Ed. 1038; Jahncke Service, Inc. v. Commissioner, supra, 20 B.T.A. at page 847. If Egan were living, he would be bound by the decision against the corporation. Petitioner succeeded to Egan’s stock interest and received all the corporate assets upon dissolution. The petitioner does not question the fact that privity here exists between it and Egan, Inc. We have examined the cases relied upon by the petitioner to support its contention that res judicata does not bar petitioner from relitigating the transferor’s liability. We shall not attempt to discuss in detail all the cases which it cites. Utter v. Franklin, 172 U.S. 416, 19 S.Ct. 183, 43 L.Ed. 498, a suit brought on municipal bonds, was dismissed because the issuance of such bonds was not authorized by law. Later, by action of the territorial legislature and Congress, the bonds were validated. The Court held that Congress had power to validate the bonds, and that the issue of the validity of the subsequent legislation was not involved in the first suit. In West Side Belt R. Co. v. Pittsburgh Construction Co., 219 U.S. 92, 31 S.Ct. 196, 55 L.Ed. 107, plaintiff’s first action was dismissed solely because plaintiff had not registered as a foreign corporation before making the contract sued upon, which fact under the existing law made the contract void. Later, state legislative action validated such contracts, and provided for their enforcement. The Court held that the legislative action revitalized the contract which had been declared invalid in the prior action. These cases are readily distinguishable from the situation we are now considering. In both of the cases just cited, there was no trial upon the merits. The cases previously cited in support of our opinion state that res judicata applies to prior judgments rendered upon the merits. Cases disposed of on technical grounds are said not to fall within this rule. See 30 Am.Jur., Judgments, § 208, p. 944; Restatement of the Law of Judgments, § 49. Our opinion in the Egan, Inc., case conclusively shows that that case was tried and decided on the merits after complete hearing. Moreover, the change in law in the eases cited by the petitioner was far more substantial than that present here. In the cited cases contracts which were void under the law existing at the time of the prior trial had subsequently been declared valid by legislation. In our present case the basic law imposing the tax has not been changed, but only a change of procedure is provided in certain circumstances. Snyder v. Riddell, 9 Cir., 252 F.2d 23, cited by petitioner, recognizes the authorities upon which we base this opinion, but finds such authorities not applicable to the facts in the particular case. We are inclined to think that the cases relied upon by petitioner do not conflict with the principles upon which this opinion is based. To the extent, if any, that conflict exists, we feel that the cases we have cited in support of our position are controlling. We hold that the petitioner is barred by the doctrine of res judicata from relitigating the amount of its transferor’s tax liability for 1948. It is conceded that the petitioner is the transferee of the assets of Egan, Inc., and that the value of the transferred assets exceeds the amount of tax claimed. The Tax Court was justified in summarily determining upon motion that the transferee was liable for the 1948 tax deficiency previously adjudicated to be due from Egan, Inc. We agree with the Tax Court that it is not clear that section 534 represents a change in legal climate which would avoid a collateral estoppel. For a discussion of the changes made in the prior law by the 1954 Code with reference to the type of tax here involved and the legislative history in connection therewith, see Pelton Steel Casting Co. v. Commissioner, 28 T.C. 153, affirmed, 7 Cir., 251 F.2d 278. Like the Tax Court, we find it unnecessary to decide whether there has been such a change in legal climate since we are convinced that res judicata, rather than collateral estoppel, is here established. Under the authorities heretofore cited, a change in legal climate does not overcome the bar of res judicata. The decision of the Tax Court 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.

George BEDROSIAN et al., Plaintiffs-Appellants, v. Joseph MINTZ, Administrator, Erie County Bar Association Aid to Indigent Prisoners Society, et al., Defendants-Appellees. No. 989, Docket 75-7099. United States Court of Appeals, Second Circuit. Argued May 14, 1975. Decided June 20, 1975. Herman Schwartz, Amherst, N. Y. (Edward I. Koren, Amherst, N. Y., on the brief), for plaintiffs-appellants. Richard F. Griffin, Buffalo, N. Y. (Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo, N. Y., on the brief), for defendants-appellees Joseph D. Mintz, Administrator, and Erie County Bar Association Aid to Indigent Prisoners Society, Inc. Ralph McMurry, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for defendant-appellee Carman F. Ball, Justice of the Supreme Court of the State of New York. Before KAUFMAN, Chief Judge, OAKES, Circuit Judge, and JAMESON, District Judge. Senior District Judge of the District of Montana, sitting by designation. JAMESON, District Judge: In this class action, under 42 U.S.C. § 1983, the plaintiffs-appellants are indictees in criminal cases arising out of the September, 1971 uprising at the Attica Correctional Facility and out-of-state attorneys representing the indictees. They seek (1) a declaratory judgment that the attorneys “are entitled to compensation to the same extent as counsel appointed for indictees who are members of the New York Bar”, and (2) a “mandatory injunction ordering defendants to appoint the [attorneys] and members of their class as counsel for the [indictees] and members of their class, pursuant to New York County Law § 18-b”. The defendants-appellees are the Erie County Bar Association Aid to Indigent Prisoners Society, Inc., Joseph D. Mintz, its administrator, and Carman F. Ball, a justice of the Supreme Court of the State of New York, who was assigned to preside over a special and trial term for Wyoming County in the Attica cases. The district court granted defendants’ motion to dismiss for failure of the plaintiffs to present a substantial federal question. New York County Law Article 18-B (McKinney, Consol.Laws, c. 11, 1972; Supp.1974-75) provides for the payment of fees for counsel assigned to represent indigent defendants. The assignment of counsel is made by the court. The County of Erie in conjunction with the Erie County Bar Association organized the Erie County Bar Association Aid to Indigent Prisoners Society, Inc. to assist the court by making available attorneys who are ready and willing to represent indigent defendants. The Society assists assigned counsel in processing applications to the court for services and expenses and disburses funds to assigned counsel upon receipt of a court order directing payment. Justice Ball was responsible for assigning most, if not all, the attorneys to defend persons indicted for crimes arising out of the Attica prison riot. At arraignment he advised each of the indictees “of his right to counsel of his own choice and that if he did not have sufficient funds to hire counsel, the court would assign counsel in accordance with Article 18B of the County law”. A number of the indictees initially retained counsel, whom they later requested the court to assign as their court-appointed counsel. Some of those attorneys were out-of-state attorneys who had not been admitted to the New York Bar, while others were New York attorneys who were not residents of Erie County. Given the extraordinary circumstances surrounding the cases, Justice Ball agreed to assign the New York attorneys chosen by some of the indictees even though the attorneys did not reside in Erie County. He denied all requests for the assignment of out-of-state counsel not admitted to the New York Bar. His refusal to appoint out-of-state counsel was based on the grounds that (1) the court was unfamiliar with the competence of out-of-state counsel or their understanding of New York law; (2) there were attorneys licensed to practice in New York who were ready and willing to accept assignments; and (3) “the expenses involved in transportation, living expenses, accommodations for office space, etc. [for out-of-state counsel] would be an excessive burden upon the taxpayers of New York State depleting the state funds which were intended for the legal defense of the defendants”. Justice Ball did permit out-of-state counsel to appear pro hac vice on behalf of the indictees as long as they were willing to associate with local counsel and provided the court with information concerning their professional background and experience. He made it clear, however, that out-of-state attorneys would not be appointed as assigned counsel or be compensated from state funds and that the court was “ready, willing and able to supply New York admitted attorneys” to all of the defendants. One out-of-state attorney whom Justice Ball refused to assign, commenced an Article 78 proceeding in the Appellate Division, Fourth Department, seeking to compel Justice Ball to assign and reimburse him as counsel for an Attica indictee. The Appellate Division in dismissing the action held that although there was no legal impediment to the appointment of the out-of-state counsel, the matter was one within the discretion of Justice Ball and the exercise of that discretion could not be attacked in an Article 78 mandamus proceeding. Goodman v. Ball, 45 A.D.2d 16, 356 N.Y.S.2d 146 (4th Dept. 1974). The State Court of Appeals denied leave to appeal. Plaintiffs-appellants then started this class action. Following discovery plaintiffs moved for summary judgment and defendants moved for dismissal. In granting defendants’ motion, the court said- in part: “Matters within the discretion of the state trial justice, such as the choice of assigned counsel, are reviewable on appeal, not under the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), cited with approval in Scheuer v. Rhodes, 416 U.S. 232, at 244-245, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also Goodman v. Ball, 45 A.D.2d 16, 356 N.Y.S.2d 146 (1974).” In essence two issues are raised on appeal: (1) whether the district court erred in concluding that the assignment of counsel by Justice Ball was not subject to review under 42 U.S.C. § 1983; and (2) whether the refusal of Justice Ball to assign out-of-state counsel violated appellants’ constitutional rights. Appellants do not contend that a defendant has the right to counsel of his choice and “do not quarrel with the general proposition that ‘the choice of an assigned counsel is for the judge, not the defendant’ ”. Rather, they argue that in exercising his discretion and making his “choice of assigned counsel”, Justice Ball engaged in “unconstitutional discrimination”. I. Reviewability of Assignment of Counsel As the Supreme Court stated in Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), “Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts”. Given this “longstanding public policy against federal court interference with state court proceedings”, federal courts have refused to issue injunctions enjoining state criminal proceedings unless the party seeking the injunction has demonstrated “great and immediate” irreparable injury which could not be “eliminated by his defense against a single criminal prosecution.” Id. at 46, 91 S.Ct. at 751; O’Shea v. Littleton, 414 U.S. 488, 499-502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). To grant the injunctive relief sought by the appellants would disrupt the state criminal proceedings in sharp conflict with the principles of equitable restraint outlined in Younger v. Harris. This is especially true given the discretionary nature of the act which appellants seek to enjoin. The fact that the action is one brought pursuant to 42 U.S.C. § 1983 does not necessitate a different conclusion. The mere fact that 42 U.S.C. § 1983 constitutes an “expressly authorized” exception to the absolute bar against federal injunctions directed at state proceedings provided by 28 U.S.C. § 2283 in no way qualifies “the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding”. Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); O’Shea v. Littleton, supra, 414 U.S. at 499, 94 S.Ct. 669. Moreover, appellants have failed to establish that they are subject to substantial and immediate irreparable injury for which there are no adequate remedies at law. There are many competent New York attorneys who are ready and willing to represent the indictee appellants. In addition, appellants may raise any denial of equal protection and effective assistance of counsel arguments on appeal. With respect to the attorney appellants, there is likewise no substance to the irreparable injuries claimed by them, as discussed infra. We recognize that different considerations apply to the declaratory relief sought than to injunctive relief, at least in a situation in which no criminal action is pending. Steffel v. Thompson, 415 U.S. 452, 469, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). At the same time, Steffel v. Thompson reaffirmed Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), that the same principles of “equity, comity and federalism” recognized in Younger v. Harris “ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending. . . . ” 415 U.S. at 461, 94 S.Ct. at 1216. Thus Samuels v. Mackell, as reaffirmed by Steffel v. Thompson, equally precludes the granting of declaratory relief in this case. II. Constitutionality of Refusal to Assign Out-of-State Counsel Appellants argue that the refusal of Justice Ball to assign out-of-state counsel (1) interfered with indictee appellants’ right to the effective assistance of counsel; (2) denied equal protection to all appellants; (3) violated the attorney appellants’ right to travel; and (4) burdened interstate commerce. All of these arguments are ultimately premised on appellants’ claim that the discrimination against out-of-state attorneys was unjustified. Even assuming an adequate basis for equitable relief, we find no merit in appellants’ constitutional contentions. There is no doubt that a state has a substantial interest in regulating the practice of law within its borders, Sperry v. Florida, 373 U.S. 379, 383, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), and may establish reasonable rules and qualifications for the practice of law within its jurisdiction. See, e. g., Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961); Konigsberg v. State Bar of California, 366 U.S. 36, 40-41, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Brown v. Supreme Court of Virginia, 359 F.Supp. 549 (E.D.Va.), aff’d, 414 U.S. 1034, 94 S.Ct. 533, 38 L.Ed.2d 327 (1973). In Martin v. Walton, supra, the Court upheld the validity of rules promulgated by the Supreme Court of Kansas which “provide in substance that an attorney admitted to the Bar of Kansas who has been admitted to the Bar of another state and who is regularly engaged in the practice of law in that state shall associate local counsel before he can appear in courts or before boards or commissions of Kansas”. Martin v. Davis, 187 Kan. 473, 357 P.2d 782, 785 (1960). The Supreme Court of Kansas justified the rules on the ground that they assured that litigants would be represented by counsel who was “familiar with local rules, procedure and practice and upon whom service may be had in all matters connected with actions or proceedings proper to be served upon an attorney of record”. Id. at 791. The United States Supreme Court in dismissing the appeal held that these reasons given by the Kansas Supreme Court could not be disregarded and “the fact that the Rules may result in ‘incidental individual inequality’ [does not] make them offensive to the Fourteenth Amendment”. 368 U.S. at 26, 82 S.Ct. at 2. The classification upheld in Martin v. Walton distinguished between members of the same state bar. Clearly, if that classification is valid, the classification employed by Justice Ball distinguishing out-of-state attorneys not members of the New York Bar from members of the New York Bar must be sustained. While Justice Ball had power to assign these out-of-state counsel to represent the indigent Attica defendants, he was under no obligation to do so. The assignment of counsel was a matter within his sole discretion. See United States v. Tortora, 464 F.2d 1202, 1210 (2 Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). Justice Ball’s refusal to appoint out-of-state attorneys was founded on a rational basis and did not constitute an abuse of discretion. The State of New York has a legitimate interest in developing a pool of competent attorneys to represent indigents who appear before its courts. To appoint out-of-state counsel when there are qualified in-state counsel ready and willing to represent indigents can only serve to hamper this state objective. Equally important is the state interest in providing indigents with counsel who are familiar with the laws of the state and the rules and practices of the New York courts. Attorney appellants argue that their competence was determined by Justice Ball who, after reviewing their detailed affidavits as to their competence and experience, permitted them to appear pro hac vice on behalf of the indictee appellants. The affidavits, however, indicate only that the attorneys have had extensive experience in the trial of criminal cases, and do not establish any thorough knowledge of New York law or procedure. While experience in criminal law in other jurisdictions may qualify an attorney to appear pro hac vice in a jurisdiction wherein he has never practiced, especially when as here he is required to associate with local counsel familiar with state law and procedure, it does not follow that the court may be compelled to appoint that attorney to serve as assigned counsel. There is a rational basis for distinguishing between permitting non-licensed retained counsel chosen by the defendant to appear pro hac vice and assigning nonlicensed counsel for whom the court assumes the responsibility of appointment. Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2 Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966), cited by appellants throughout their brief, is inapposite. In Spanos, this court held “that under the privileges and immunities clause of the Constitution no state can prohibit a citizen with a federal claim or defense from engaging an out-of-state lawyer to collaborate with an in-state lawyer and give legal advice concerning it within the state”. Id., 364 F.2d at 170. We expressly limited our holding to the situation there presented — a licensed out-of-state lawyer working with a local lawyer “on a federal claim or defense”. The court was not concerned, as here, with an alleged equal protection violation in state court proceedings which does not involve a claim or defense based upon federal law. We conclude that the classification employed by Justice Ball was rational and reasonable, does not involve “invidious discrimination”, and does not violate the appellants’ equal protection rights under the Constitution. Nor do we find merit in attorney appellants’ contention that Justice Ball’s refusal to assign them as counsel infringed their right to travel under the privileges and immunities clause. They are not prevented from coming to New York or residing in New York. Procedures for licensing persons to practice professions within a state are not inconsistent with their right to travel freely within the state. We are not concerned with a residency requirement, but rather with the right of non-residents to practice law in New York state courts. They have no constitutional right to do so unless they are admitted to the New York Bar. The power of the state to regulate the , practice of law in state courts is beyond dispute. Martin v. Walton, supra. While Justice Ball could have assigned attorney appellants as counsel for the indictee appellants, his refusal to do so was a proper exercise of judicial discretion. This court cannot compel the exercise of that discretion in a particular way. Affirmed. . Chapter 992 of the New York Laws of 1974 appropriated state funds to reimburse localities for the cost of trials resulting from the alleged commission of offenses by inmates at state correctional institutions. Chapter 992, however, does not change the method of assigning counsel, nor does it authorize payment to attorneys other than those assigned by the court. . The Rules of the New York State Court of Appeals § 520.8(d)(1) vests in state judges the discretion to permit attorneys to appear pro hac vice. . Justice Ball granted requests for investigators and authorized payment for their services and expenses pursuant to § 722-c of the County Law, which permits a court to “authorize counsel, whether or not assigned in accordance with a plan”, to obtain investigative and expert services on behalf of a defendant. . In O’Shea v. Littleton, 19 residents of Cairo, Illinois brought a civil rights class action against a magistrate and a circuit court judge seeking to enjoin their allegedly unconstitutional practices with respect to bond setting, sentencing and payment of jury fees. The district court dismissed the action, holding that it had no jurisdiction to issue injunctive relief and that judicial immunity barred the relief sought. The court of appeals reversed. In turn, the Supreme Court, reversing the court of appeals, held that the injunctive relief sought would interfere with state criminal proceedings contrary to the holding in Younger v. Harris. The Court held further that the Respondents had failed to establish “the basic requisites of the issuance of equitable relief in these circumstances — the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law”. Id. 414 U.S. at 502, 94 S.Ct. at 679. . At oral argument counsel suggested that the federal-state comity theory which underlies the doctrine of equitable restraint in Younger v. Harris is not applicable since the assignment of counsel is merely a collateral matter in the prosecution of the indictee appellants. In Stefanelli v. Minard, 342 U.S. 117, 123, 124, 72 S.Ct. 118, 121, 96 L.Ed. 138 (1951), the Court, in refusing to enjoin the use of allegedly illegally seized evidence in a pending state criminal proceeding, said in part: “If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues. . “. . . Asserted unconstitutionality in the impanelling and selection of the grand and pet-it juries, in the failure to appoint counsel, in the admission of a confession ... all would provide ready opportunities, which conscientious counsel might be bound to employ, to subject the orderly, effective prosecution of local crime in local courts.” . As indicated, supra, the district court in dismissing the action, relied on Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Both of those cases consider the doctrine of judicial immunity. As we find appellants’ action barred by Younger v. Harris, we do not reach the issue of whether judicial immunity is a bar to suits seeking equitable relief. . In Brown v. Supreme Court of Virginia, supra, at 554, a three-judge court, relying heavily on Martin v. Walton, held that the Supreme Court of Virginia had “the constitutional right to separately classify applicants taking the bar examination and those foreign attorneys who seek admission by comity or reciprocity”. Rejecting the contention that the classification was in violation of the Equal Protection Clause, the court noted that the “ ‘test is whether the difference in treatment is an invidious discrimination’ ”. Id. (Quoting from Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed. 351 (1973)). . Appellants argue that Justice Ball’s refusal to assign out-of-state counsel can only be justified by a showing of a compelling state interest because it infringes on appellants’ fundamental rights, i. e., the indictee-appellants’ right to effective assistance of counsel and the attorney-appellants’ right to travel. Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). As discussed infra, appellants have not been deprived of their right to travel or denied the effective assistance of counsel as a result of Justice Ball’s action. The rational basis test is therefore the standard for review. McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). . In addition, as noted by Justice Ball, assignment of out-of-state counsel may impose an excessive economic burden on New York taxpayers. The fact that in some particular instances travel expenses for an out-of-state attorney might prove to be less than travel expenses for a New York attorney does not preclude a court from relying on economic considerations as justification for its refusal to assign out-of-state counsel. “Incidental individual inequality” is not sufficient to establish a violation of the Fourteenth Amendment. Martin v. Walton, supra, 368 U.S. at 26, 82 S.Ct. 1. . ' The court noted that Spanos “had concentrated on antitrust problems in the motion picture industry — a subject requiring detailed knowledge both of the decisions and of complex business practices; it was this knowledge and skill . . that the defendants wished to bring to the aid of their New York attorneys in preparing the antitrust suit”. 364 F.2d at 170. . Appellants’ reliance on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, supra, and other residency cases is misplaced. Attorney appellants have not been precluded from residing in New York. Nor was it Justice Ball’s purpose in refusing to assign attorney appellants to discourage them from residing in New York. Rather, legitimate state interests outlined supra serve as the basis for the refusal to assign attorney appellants. See Brown v. Supreme Court of Virginia, supra; Huffman v. Supreme Court of Montana, 372 F.Supp. 1175, 1181-1183 (D.Mont.), aff'd, 419 U.S. 955, 95 S.Ct. 216 (1974).

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?

FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. C. S. LEONARD, individually and trading as Leonard Excavating Company, W. W. Wendell Company, Inc., a Pennsylvania Corporation and Agricultural Insurance Company, a New York Corporation. No. 17170. United States Court of Appeals Third Circuit. Argued Sept. 24, 1968. Decided Oct. 1, 1968. Robert F. McCabe, Jr., Pittsburgh, Pa., J. M. McCandless, Robert F. McCabe, Jr., Pittsburgh, Pa., on the brief, for appellant. James C. Larrimer, Dougherty, Lar-rimer, Lee & Hickton, Pittsburgh, Pa., for appellees. Before BIGGS, FREEDMAN and VAN DUSEN, Circuit Judges. OPINION OF THE COURT PER CURIAM. Fireman’s Fund Insurance Company, a California surety company doing business in Pennsylvania, appeals to this court from the denial of its motion for a new trial in the court below. The facts are as follows. On December 26, 1963, Stanton Construction Company entered into a written contract with the Lower Yoder Municipal Authority of Cambria County, Pennsylvania, for the construction of a sewage collection system. Pursuant to the contract Stanton gave bonds for the faithful performance of the contract and the payment for materials and labor furnished. Fireman’s Fund was surety on the bonds. The United States made an assessment under Sections 3402-3403 of Chapter 24 (“Collection of Income Tax at Source on Wages”) of the Internal Revenue Code of 1954 (26 U.S.C. §§ 3402-3403 (1958)), against Stanton for the fourth quarter of 1963 and for every quarter of 1964, the last assessment date being November 4, 1964. Notice of liens was filed in the offices of the Prothono-tary and Recorder of Deeds for Allegheny County on November 9, 1964. The United States then executed on Stanton’s assets. It is clear that all interested parties including Fireman’s Fund had notice of the liens when filed. On November 25, 1964 Stanton was declared in default by the Municipal Authority. At that time Stanton was in possession of pipe and other materials for which payment had not been made. Fireman’s Fund paid the materialmen and by reason of these payments acceded to Stanton’s interest in the materials under the assignment provisions of the bonds. On May 27, 1965 the United States sold the pipe and other materials at public sale to Wendell and Leonard, the new contractors. The Internal Revenue Service thereupon issued a certificate of sale to Wendell and Leonard. Fireman’s Fund objected to these proceedings claiming ownership of the pipe. The suit at bar is to recover the value of the pipe, Fireman’s Fund contending that the material in question belonged to it by reason of subrogation. The argument is without merit. The federal tax lien was good against all persons having notice of it. See 12A P.S. § 9-401(2) and 26 U.S.C. §§ 6321-6322. Fireman’s Fund is merely a general creditor. Its rights as subrogee did not ripen until the declaration by the Municipal Authority of the default, by which time the federal tax liens had already been filed. Accordingly, the judgment 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 "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.

UNITED STATES of America, Appellee, v. Elias A. KENAAN, Appellant. No. 73-1094. United States Court of Appeals, First Circuit. April 26, 1974. Michael O. McCarter, Boston, Mass., with whom Michael S. Field, and Field, Rudnitsky, Mullane & Schultz, Boston, Mass., were on brief, for appellant. Lauren S. Kahn, Atty., with whom James N. Gabriel, U. S. Atty., John R. Tarrant, Special Atty., and Peter M. Shannon, Jr., Atty., Dept. of Justice, were on brief, for appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Appellant, convicted on two counts of unlawful receipt, concealment, and possession of approximately .293 grams of cocaine, in violation of 18 U.S.C. § 545 and 21 U.S.C. § 844(a), contends on appeal that his conviction should be set aside because of alleged errors which included the denial of appellant’s motion to suppress testimony concerning the results of an examination of appellant’s hands for traces of fluorescent powder, conducted with an ultraviolet light, before appellant was arrested, and an instruction to the jury which permitted the jury to employ an unconstitutional statutory presumption in 18 U.S.C. § •545. Evidence was introduced by the government at trial to show that customs agents had discovered cocaine inside a packet within a parcel postmarked from Peru and addressed to an individual, other than appellant, at appellant’s address. Most of the cocaine was then removed by the agents, and soap powder substituted. The new mixture, containing less than three per cent cocaine, was put back into the packet, the packet was dusted with fluorescent powder, and was replaced in the parcel. After the reconstituted parcel arrived in Boston, a post office notice card was delivered to appellant’s address. Appellant thereupon presented the card at the mail station and asked for the parcel, but was told that the parcel was unavailable, and that he should consult with the post office superintendent. Appellant then left the mail station. The next day the parcel was delivered to appellant’s address. Appellant agreed to receive the parcel, although he stated that the parcel was not addressed to him, and that the addressee picked up his mail at that address periodically. Government agents then obtained a warrant to search appellant’s apartment. There they found a small spoon, which appeared to have some residue upon it, but did not find the parcel. The residue was subsequently analyzed to contain cocaine. The parcel itself was discovered, unwrapped and without the cocaine-soap powder mixture, within a plastic garbage bag which agents had observed being placed on the sidewalk outside the building by the building landlord. The agents then used an ultraviolet lamp to inspect appellant’s hands for traces of fluorescent powder. After the test revealed traces of the powder, appellant was placed under arrest. Appellant contends that the results of the inspection of his hands should have been suppressed at trial, since the inspection was, in effect, a personal search unauthorized by the warrant to search the premises. There can be little doubt that an inspection of one’s hands, under an ultraviolet lamp, is the kind of governmental intrusion into one’s private domain that is protected by the Fourth Amendment. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If the reach of the Fourth Amendment extends to fingerprinting, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and a search of one’s clothing or personal effects, United States v. Micheli, 487 F.2d 429 (1st Cir. 1973), it should certainly encompass a detailed inspection, by special instrument, of one’s skin. It is no answer for the government to argue that the ultraviolet inspection actually protected appellant’s privacy by obviating the necessity of a physical search of his person, since the search warrant gave the government agents no authority to conduct a personal search. Micheli, supra. The protection afforded an individual by the Fourth Amendment would be eviscerated if, under authority of a warrant to search premises, government agents could scan an individual’s body with sensitive instruments capable of picking up the most minute or intimate object lodged thereon. The government urges, alternatively, that even if the Fourth Amendment applies, the search was justified as being incidental to a lawful arrest. Although appellant had not been placed under arrest when the search was conducted, it has been held that a personal search is justifiable as incidental to arrest if an arrest is made immediately after the search and if at the time of the search there was probable cause to arrest. Bailey v. United States, 128 U. S.App.D.C. 354, 389 F.2d 305, 308 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Brown, 150 U.S.App.D.C. 113, 463 F.2d 949 (1972). These criteria must, of course, be strictly construed to avoid the possibility that the search is aimed at retrieving enough evidence to provide probable cause for arrest, or that the arrest is simply a pretext for the search. See United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Here the government knew that the parcel bore appellant’s address and that the appellant had attempted to retrieve it long before agents entered the premises. Of course, law enforcement officers may postpone arrest in the hope that they may strengthen their case by uncovering further evidence, “[b]ut every time there is delay in the making of the arrest and there is a search made as incidental to the arrest, the law enforcement officers take the risk that they will be charged with using the arrest as a mere pretext for the search.” Carlo v. United States, 286 F.2d 841 (2d Cir. 1961), cert. denied, 366 U.S. 944, 81 S. Ct. 1672, 6 L.Ed.2d 855 (1961). The remaining items of evidence gathered prior to inspection of appellant’s hands — the spoon with some residue on it and the discarded parcel in the garbage bag outside — provided some circumstantial evidence. Despite the characterization in the government’s brief we are not able to ascertain from the record whether the spoon was of the type uniquely associated with the use of cocaine or was of a garden variety type. If the evidence were of the former nature, the government’s claim of probable cause would be more persuasive. We make no final determination on the point, however, since appellant’s next contention requires reversal. On remand, the district court will have further opportunity to decide whether there was probable cause for arrest before inspection of appellant’s hands. Factors to be considered might include whether or not the spoon and its residue had unique characteristics which would signal narcotics activity. We turn to appellant’s second contention which, as noted, we find dispositive of his appeal. 18 U.S.C. § 545 under which appellant was convicted, provides, in part, that “whoever knowingly . smuggles . . . into the United States any merchandise that should have been invoiced ... or knowingly imports merchandise contrary to law” shall be guilty of a felony. It also provides that “[p]roof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.” In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court struck down the statutory presumption in 21 U.S.C. § 174, which imputed knowing importation of cocaine from a mere unexplained showing of possession of cocaine. The Court reasoned that since more cocaine is lawfully produced in this country than is smuggled into this country, the statutory presumption could not satisfy the “more-likely-than-not” standard for validating statutorily authorized inferences enunciated in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Precisely the same presumption, when applied to cocaine, is featured in 18 U.S.C. § 545, except that here the government has the added burden of showing illegal importation. If the presumption could not pass constitutional muster in one part of the Code, it cannot in another. The government contends, in effect, that since the court instructed the jury that each element of the crime had to be proven beyond a reasonable doubt, the possible effect of any unconstitutional inference within the statute would be eliminated. But the court also familiarized the jury with the statute itself, and alerted the jury to the statutory presumption contained therein: “It also states that proof of the defendant’s possession of such goods, unless explained to the satisfaction of the jury shall be deemed evidence sufficient to authorize conviction for violation of this section.” We have no way of knowing to what extent the jury based its finding upon this unconstitutional inference. Nor is it relevant that the jury might have had ample circumstantial evidence on which to base a finding of knowledge of illegal importation of cocaine, beyond a reasonable doubt. The due process guarantee of a rational statutory presumption in Leary and Turner may pose a constitutional right “so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); see Bollenbach v. United States, 326 U.S. 607, 614-615, 66 S.Ct. 402, 90 L.Ed. 350 (1946). But see United States v. Matalon, 425 F.2d 70 (2d Cir. 1970). But even if the unconstitutional presumption could amount to no more than harmless error in certain circumstances, in the present instance we are unable to say that it was harmless. Appellant might have had knowledge of illegal importation if he had seen the postmark on the parcel, if he understood that the postmark was derived from outside the United States, and if he had reason to know that the importation was illegal. But the government offered no direct evidence to substantiate any of these possibilities, nor did it offer “overwhelming” circumstantial evidence. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). On this record, we are unable to say that the error was harmless beyond a reasonable doubt. Chapman, supra, 386 U.S. at 24, 87 S.Ct. 824. Reversed and remanded for a new trial. . The district court, in denying appellant’s motion to suppress, relied upon United States v. Richardson, 388 F.2d 842 (6th Cir. 1968), in which the court declined to characterize an examination by ultraviolet light, similar to the present one, as a search within the meaning of the Fourth Amendment. But the Riohardson court’s opinion is inconclusive. No reason is offered to support its assertion. The court cited only Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which seems to offer support for the opposite conclusion, since there the Supreme Court held that a withdrawal of defendant’s blood, for the purposes of examnation, came within the ambit of Fourth Amendment protection. Finally, the court in Richardson chose to rest its holding upon appellant’s consensual waiver of Fourth Amendment rights. . Barnes held that since the statutory presumption submitted to the jury satisfied both the Leary “more-likely-than-not” standard as well as the higher “beyond a reasonable doubt” standard, it accorded with due process. In the present case, however, since the statutory presumption as applied to cocaine in small quantities fails to meet even the Leary standard, we need not go on to examine whether the “beyond a reasonable doubt” standard is constitutionally required.

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?

Auckland SEMPER and Eldra Semper, Appellants, v. Raymundo SANTOS and Everett Investments, Inc. d/b/a Caribbean Car Rentals. No. 87-3203. United States Court of Appeals, Third Circuit. Argued April 19, 1988. Decided May 12, 1988. Ronald W. Belfon (argued), Law Office of Warren M. Williams, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellants. Douglas A. Brady (argued), Jacobs & Brady, Christiansted, St. Croix, U.S. Virgin Islands, for appellee. Before SEITZ, SLOVITER, BECKER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. This case presents two issues: whether the trial court was required to grant a new trial because the jury failed to award damages for pain and suffering to plaintiff, and whether the trial court may preclude testimony of a witness who was not timely identified. I. Facts Auckland Semper (Semper) and his wife brought suit in the Territorial Court of the Virgin Islands for injuries suffered by Semper when the automobile he was driving was hit by one driven by defendant Raymundo Santos. Santos, who had never before been in the Virgin Islands, was driving a rented car and was unaware that he was required to drive on the left side of the road. Because both cars were travelling at less than fifteen (15) miles per hour, a head-on collision was avoided and the impact was slight. Semper sued Santos and the company from which he rented the car. The trial court’s grant of summary judgment to Semper against Santos on liability was uncontested. Thus, the only issue at trial as to Santos pertained to the amount of damages. Following the accident, the police took Semper to the hospital, where he complained of chest pain and dizziness, Dr. Alfred Heath, a physician working in the emergency room, examined him, noted a contusion (bruise) to Semper’s chest, and released him after receiving negative x-rays. It is not clear whether Semper was prescribed medication upon his release. Although Dr. Heath, defendants’ witness, stated at trial that the normal procedure is to prescribe medication, he noted that the emergency room records did not indicate medicine being prescribed. App. at 204. Semper was charged $57.00 for emergency room services. Approximately two weeks later, Semper, again complaining of chest pain, returned to Dr. Heath. Again, the diagnosis was a contusion to the chest, the symptoms of which normally subside within two or three weeks from the date of injury. App. at 215. At that time, Dr. Heath gave Semper a prescription for tylenol and codeine for pain. App. at 211. There is no evidence that this prescription was filled. No billing statement for this visit was offered into evidence, and Dr. Heath was unable to corroborate Semper’s testimony that he was charged for this visit. Semper testified at trial that he saw an unlicensed “healer” about a month after seeing Dr. Heath. Again, however, no bills were produced and it remained uncorroborated that Semper had actually paid for the “healer’s” services. Semper also testified that he visited several physicians on account of injuries received in the accident. Only one of these physicians, Dr. McDonald, testified. He stated that he had seen Semper on three occasions beginning approximately two and one-half years after the accident, and that although Semper complained of lower back pain, neck pain, a numb right leg, tremors, and pain around his waist, he complained primarily about his sexual dysfunction. None of these complaints was noted on the records of the hospital emergency room immediately after the accident or on Dr. Heath’s records of Semper’s visit two weeks later. Dr. McDonald suggested that there might be a psychogenic (“in the mind”) cause for Semper’s sexual dysfunction. App. at 91. Dr. McDonald testified that he prescribed Semper medication for the spasms in his lower back. App. at 66. Semper introduced evidence of other prescriptions, but Dr. Heath testified that those medications prescribed were for the treatment of ulcers and for the treatment of earaches. App. at 222-23. Following the trial on the issue of damages, the jury found for the defendant car rental company, against Semper’s wife, and for Semper in the amount of $57.00 against Santos, the amount of the total out-of-pocket expenses for which Semper submitted evidence. The trial court denied Semper’s motion for a j.n.o.v. or for a new trial. Semper appealed to the Appellate Division of the District Court of the Virgin Islands, complaining, inter alia, about the inadequacy of the verdict and the trial court’s refusal to permit a treating physician to testify. The Appellate Division of the District Court rejected both of these contentions, holding that the Territorial Court did not abuse its discretion. Semper appeals to this court. We consider first the scope of our review over the decision of the Appellate Division of the District Court of the Virgin Islands. The usual deference that an appellate court gives the trial court’s discretionary rulings, see United States v. Criden, 648 F.2d 814, 817-19 (3d Cir.1981), is inapplicable when one appellate court reviews another. We have held in connection with another system of two-tiered appellate review that the second appellate tribunal should review the trial court’s determination using the same standard of review applied by the first appellate tribunal. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-102 (3d Cir.1981) (reviewing district court’s appellate review of bankruptcy court decision). In such a system, both appellate courts are equally able to review the factual findings and discretionary rulings of the trial court, and it is only through an independent review of the trial court’s findings that the second appellate court can determine whether the first appellate court erred in its review. See id. at 102. This reasoning is equally applicable to our review of the Appellate Division of the District Court of the Virgin Islands. II. Inadequacy of Damage Award The scope of this court’s review of a damage award is “ ‘exceedingly narrow’ ”, Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.1987) (quoting Walters v. Mintec International, 758 F.2d 73, 80 (3d Cir.1985)), whether the appeal is from an allegedly excessive jury verdict or an allegedly inadequate damage award. See, e.g., Nussbaum v. Warehime, 333 F.2d 462, 464 (7th Cir.1964), cert. denied, 379 U.S. 979, 85 S.Ct. 682, 13 L.Ed.2d 570 (1965). We have ordered a new trial for excessive damages only when the verdict is so grossly excessive as to “shock the judicial conscience.” Williams, 817 F.2d at 1038 (citation omitted). Similarly, the remedy of a new trial for insufficient damages is only appropriate where the evidence indicates that the jury awarded damages in an amount “ ‘substantially less than was unquestionably proven by plaintiff’s uncontradicted and undisputed evidence.’ ” Taylor v. Bennett, 323 F.2d 607, 609 (7th Cir.1963) (quoting Schaeper v. Edwards, 306 F.2d 175, 177 (6th Cir.1962)); see also Tann v. Service Distributors, Inc., 56 F.R.D. 593, 598 (E.D.Pa.1972) (new trial will not be awarded unless damages assessed by jury are so unreasonable as to offend conscience of the court), aff'd, 481 F.2d 1399 (3d Cir.1973). The question of adequacy of damages is primarily left to the sound discretion of the trial court in considering a motion for a new trial, and this court will not disturb that determination unless a “ ‘manifest abuse of discretion’ [is] shown.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d 215, 225-26 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); see also Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir.1979) (“trial judge is in the best position to evaluate the evidence and assess whether the jury’s verdict is rationally based”); Porterfield v. Burlington Northern Inc., 534 F.2d 142, 146 (9th Cir.1976) (appellant has “substantial burden to demonstrate that the trial judge’s discretion was abused”). Semper places his principal reliance on Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972), where the court ordered a new trial because the jury had awarded plaintiff only the exact dollar amount of his out-of-pocket expenses for hospital and medical costs. However, in that case the court explained that “[u]nder applicable Colorado law the jury’s authority does not include limiting the award to actual medical expenses where the undisputed evidence establishes both pain and suffering and permanent disability.” Id. at 20 (emphasis added). Even if we were inclined to follow the same rule, an issue we do not decide, Brown is not apposite here because there is no undisputed evidence of any permanent disability. Semper’s testimony regarding his pain, backaches, sexual dysfunction, and emotional problems was all uncorroborated. The jury was free to draw its own conclusion from the totality of evidence presented, particularly in light of Semper’s failure to mention many of these alleged medical problems to the only physician who saw him shortly after the accident and his failure to seek any further medical attention other than that of a “healer” for two years after the accident. Semper argues that his testimony that he suffered two weeks of chest pain was well-corroborated and undisputed, and that the trial court abused its discretion in refusing to grant a new trial because no reasonable jury could have failed to award him damages for pain and suffering. The testimony shows that he complained of chest pains immediately after the accident and on his visit to Dr. Heath approximately ten days later. However, although Semper was prescribed a pain medication when he saw Dr. Heath the second time, Semper did not testify that he filled that prescription or that he took the medication. Santos testified that immediately after the impact Semper did not complain of any injury and that Semper stated he was “okay” and showed no signs of being in pain. App. at 41. The jury was in the best position to evaluate the credibility of Sem-per’s testimony of his pain and suffering. See Murray v. Fairbanks Morse, 610 F.2d at 154; Porterfield v. Burlington Northern Inc., 534 F.2d at 146 (allegedly inadequate damage award should not be overturned where it results from credibility judgments by the trier of fact); Szewczyk v. Doubet, 354 A.2d 426, 430 (Del.1976) (jury free to reject plaintiff’s testimony as to pain and suffering). The jury was under no obligation to believe the testimony of Semper as to his chest pain, even if that testimony were undisputed. Cf. Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 486 (3d Cir.1965) (“the trier of fact, whether the issue be one of an excessive or inadequate verdict, is at liberty within the bounds of reason to reject entirely the un-contradicted testimony of a witness which does not convince the trier of its merit”). This court has stated that, “[ejvidence of pain and suffering is particularly ill-suited to review upon only a written record.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d at 227 n. 16. Plaintiff stresses that in his argument to the jury, defense counsel suggested that an award of $3,000 would be appropriate. Defense counsel explains that this comment was in response to plaintiff counsel’s request that the jury award plaintiff $200,-000. Appellee’s Brief at 28. The arguments of counsel are not evidence, and the jury remained free to make its own assessment. Because the jury could have decided to discredit Semper’s testimony of pain and suffering on this record, we cannot hold that the jury’s award of $57.00 covering Semper’s only verified expense, the cost of the emergency room treatment following the accident, “shock[s] the judicial conscience,” Williams, 817 F.2d at 1038. The trial judge who also heard the evidence and observed the witnesses found the verdict not to be against the weight of the evidence nor unconscionable. We conclude that he did not abuse his discretion in denying Semper’s motion for a new trial. III. Exclusion of Expert Witness on Rebuttal Semper also argues that the trial judge abused his discretion in excluding testimony of a physician Semper denominates as “an important rebuttal witness.” Appellant’s Brief at 21. The court based its ruling excluding the witness on Semper’s failure to timely disclose that this proposed expert witness, Dr. Omitowoju, had been an examining physician or that he would be called as a witness for plaintiffs at trial. Dr. Omitowoju had originally seen Semper in November, 1984, well in advance of the discovery deadline. App. at 254. Nonetheless, Semper ignored defendants’ request for supplementation of responses to discovery and did not identify Dr. Omitowoju by the April 12,1985 deadline that the court set for naming witnesses. It was only on April 30, 1985, one day after jury selection, that defendants received mail notice dated April 20, 1985 of Semper’s intention to call Dr. Omitowoju as an expert witness. Defendants then moved in limine to exclude the doctor as a trial witness, and the trial court granted the motion due to Semper’s failure to comply with the court-imposed discovery deadline. Because jury selection had already commenced and the case was about to proceed to trial, defendants had been effectively precluded from the opportunity to obtain discovery concerning Dr. Omitowoju’s treatment, findings, or prospective testimony- Semper attempted to call Dr. Omitowoju in rebuttal following the close of defendants’ case. Semper concedes that he made no offer of proof as to the scope of the doctor’s testimony. Appellant’s Brief at 21-22 & n. 4. The trial judge cannot be faulted, therefore, for excluding the testimony as, in the appellate division’s words, “a back-door attempt to bolster the case-in-chief.” App. at 551. Even more important, the trial court had the discretion to exclude testimony of a witness who had not been identified. The trial court’s exclusion of testimony because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion. Franklin Music Co. v. American Broadcasting Companies, 616 F.2d 528, 539 (3d Cir.1979). As the trial court stated, had Dr. Omitowoju been permitted to testify, Semper “would have profitted from its own failure to comply with the discovery deadlines,” App. at 545, since defendants would have been prejudiced. In Murphy v. Magnolia Electric Power Ass’n, 639 F.2d 232 (5th Cir.1981), on which Semper relies, not only had plaintiffs offered to exchange experts’ reports ten days before trial, but also the evidence excluded “struck at the heart of appellants’ case.” Id. at 235; see also Meyers v. Pennypack Woods, 559 F.2d 894, 904 (3d Cir.1977) (“importance of the excluded testimony” one of the factors to be considered in deciding whether trial court abused its discretion in excluding witness), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), aff'd, — U.S.-, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Here, it is questionable whether the rebuttal testimony would have materially helped Semper. Semper argues “that Dr. Omitowoju would have testified in rebuttal that Dr. Heath was wrong to say that back problems normally become apparent within 72 hours of a trauma, as in fact they normally can take as long as six weeks.” Appellant’s Brief at 21-22. Although Semper contends this testimony would have bolstered his credibility, and discredited Dr. Heath, both the trial judge and the Appellate Division of the District Court discounted the significance of this proposed testimony. In light of the fact that Semper sought no further medical attention other than that of the “healer” for more than two years after the accident, testimony that he might have had back pain six weeks thereafter hardly “strikes at the heart” of Semper’s case. IY. Conclusion For the reasons set forth above, we will affirm the judgment of the Appellate Division of the District Court. . The appellate division did hold that the trial court erred in permitting defendant to amend his answer to allege contributory negligence after the summary judgment on liability; it held that Semper was entitled to the full $57.00 verdict, without reduction by the 25% for which the jury found Semper negligent.

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?

Lawrence J. SABO, Administrator of the Estate of James Scott, Jr., Deceased, Appellant, v. READING COMPANY, (Bethayres Concrete Products Company, Inc.) No. 12075. United States Court of Appeals Third Circuit. Argued Feb. 21, 1957. Decided May 15, 1957. Walter E. Alessandroni, Philadelphia, Pa., for appellant. William C. Schultz, Jr., Philadelphia, Pa. (Richard P. Brown, Jr., Henry R. Heebner, Philadelphia, Pa., on the brief), for appellee, Reading Co. Morgan, Lewis & Bockius, Philadelphia, Pa. (Thomas E. Byrne, Jr., Philadelphia, Pa., on the brief. Krusen, Evans & Shaw, Philadelphia, Pa., of counsel), for appellee, Bethayres Concrete Products Co., Inc. Before MARIS, McLAUGHLIN and STALEY, Circuit Judges. STALEY, Circuit Judge. Appellant’s decedent, James Scott, Jr., was killed by a rapidly moving passenger train of the Reading Company at 8 o’clock on the foggy morning of January 20, 1954. This is an appeal from the judgment of the district court, sitting without a jury, in favor of defendant. The court concluded that decedent was contributorily negligent and the Reading Company free from wanton or willful misconduct. Jurisdiction is based upon diversity of citizenship, and we must apply the law of Pennsylvania. The findings of fact of the district court were amply supported by the record. They disclose that the decedent on the date of the accident was employed by Bethayres Concrete Products Company, Inc., the additional defendant here. It was his duty to thaw frozen cinders so that they might be unloaded from freight cars on a siding owned by the Reading Company, adjacent to premises leased by that company to decedent’s employer. The siding was located just north of the parallel west-bound main track of the Reading Company, so that there was a distance of 11 feet 2% inches between the south rail of the siding and the north rail of the main track. The overhang of a freight car on the siding and the overhang of a passenger train on the main track reduce this distance to a net clearance of 5 feet 9% inches. The morning of January 20, 1954, was extremely foggy. On that day, Scott was carrying a bucket of fuel from a storage area located north and west of the scene of the accident in order to place it under the freight car standing on the siding. Visibility was found to be about seven feet; the rails on the main track, however, were visible. Scott had been working in the general area for three days and was aware of the location of the main track and that speeding trains created danger there. James Jones, a fellow-worker, was walking ahead of Scott and to his left. When they had advanced with the fuel buckets to a point alongside a freight car on the siding, defendant’s passenger train sped out of the fog at sixty miles an hour. Jones testified that he had to leap aside to avoid being hit. Scott, walking behind him to the right, was struck by the train and killed. The status of Scott at the time of the accident is the salient factor in determining the degree of diligence required of the railroad. The freight cars Scott was to thaw were standing on the siding owned by defendant railroad. A building to the north of the siding constricted the work área there, so that it was easier and more practicable for Scott to pursue his duties in the area to the south of the siding. In the space in which it was necessary for him to work, we agree with the district court that he was a business invitee. His implied invitation was not dissimilar to that found by Pennsylvania appellate courts in Muth v. Pennsylvania R. Co., 1930, 100 Pa.Super. 63, and Boggess v. Baltimore & Ohio R. Co., 1912, 234 Pa. 379, 83 A. 356. Scott’s work in preparing the cars for unloading was directly or indirectly connected with business between his employer and the railroad. Restatement, Torts § 332 (1934). We conclude that Scott was a business invitee in the area in which it was necessary for him to be while he performed his duties. However, the district court made a finding of fact that in doing this work “It was not necessary for the men to go upon the main track or so close to it that they would be struck by trains.” The record supports this finding. Thus, if it were not necessary for Scott to be in the overhang area of the main track, when he did walk within that space he became a trespasser. “One who is invited or permitted to enter a particular part of the land * * * becomes a trespasser if he enters another part of the land * Restatement, Torts § 341, Comment b, cited with approval in Dumanski v. City of Erie, 1943, 348 Pa. 505, 34 A.2d 508, 509. The degree of negligence which will impose liability upon the railroad for injury to a trespasser is described by the Pennsylvania courts as “willful or wanton negligence.” Reagan v. Reading Co., 1937, 126 Pa.Super. 175, 190 A. 412, 413-414; Noonan v. Pennsylvania R. Co., 1937, 128 Pa.Super. 497, 194 A. 212, 215. To justify recovery, it must appear that the engineer actually discovered the presence of the trespasser, and thereafter failed to exercise due care to avoid strikng him. It is not enough that the engineer simply failed to keep a lookout for the trespasser. Restatement, Torts § 336, Illustration 4; Peden v. Baltimore & Ohio R. Co., 1936, 324 Pa. 444, 188 A. 586, 587. Appellant urgently presses upon us the contention that the railroad’s conduct in speeding blindly through the fog was wanton and willful. He cites no cases to support this, and our research discloses none. The contention ignores two basic principles of Pennsylvania law. First, speed itself is not evidence even of ordinary negligence. Ealy v. New York Central R. Co., 1939, 333 Pa. 471, 5 A.2d 110, 112. Secondly, on its own tracks, a railroad has the paramount right of way and is entitled to presume, and to act upon the presumption, that there will be no trespassers on the tracks. Falchetti v. Pennsylvania R. Co., 1932, 307 Pa. 203, 160 A. 859. To hold otherwise would defeat the social and economic utility of railroads. In the present case, the train would have had to be traveling about ten miles an hour to stop within the distance of visibility, thus completely defeating its purpose as a transportation medium. The ■ engineer of defendant’s train saw appellant’s decedent after it was too late to stop. Wanton or willful negligence can be predicated only upon a finding that the railroad failed to exercise due care after the presence of the trespasser was discovered. This record discloses no such negligence, and the district court properly so found. The district court found also that appellant’s decedent was contributorily negligent as a matter of fact. Although not necessary to this opinion, the court could have found that Scott, as a trespasser on the part of the tracks where his work did not require him to be, was contributorily negligent as a matter of law. Bailey v. Lehigh Valley R. Co., 1908, 220 Pa. 516, 69 A. 998, 999; Buxton v. Baltimore & Ohio R. Co., 1923, 81 Pa.Super. 490. The testimony of decedent’s fellow worker, Jones, given on behalf of plaintiff, indicated that decedent Scott was walking within the overhang-area of the main track. This dissipated decedent’s presumption of due care and rendered a nonsuit appropriate by Pennsylvania law. Conley v. Mervis, 1936, 324 Pa. 577, 188 A. 350, 355, 108 A.L.R. 160. The judgment of the district court 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. 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?

DUVALL-PERCIVAL TRUST CO. v. JENKINS et al. (Circuit Court of Appeals, Eighth Circuit. November 15, 1926.) No. 7325. (.Mortgages <@=»280 (4)— Grantee, assuming mortgage debt, is liable therefor, though his grantor was not. Under the law of Missouri, as by the general weight of authority, a grantee of mortgaged premises, who as part consideration assumes and agrees to pay the mortgage debt, is liable therefor to the mortgagee, though his grantor did not assume and was not liable; especially is this true when he has been accepted as debtor by the mortgagee and has made payments. 2. Mortgages <S=»280(i) — Law of state of contract, and where land is situated, governs liability of grantee assuming mortgage debt. Where a mortgage is executed and the debt is payable in the state where the mortgaged premises are situated, the law of that state governs the rights and liabilities of the parties, including a subsequent grantee, who assumes the mortgage debt. 3. Action <©=»I7 — Whether suit against grantee assuming mortgage debt is one at law or in equity is determined by law of forum. Whether a suit against a grantee who assumed a mortgage debt to enforce his liability for a deficiency judgment is one at law or in equity depends on the law of the forum. Stone, Circuit Judge, dissenting. In Error to tbe District Court of tbe United States for tbe District of Kansas; John C. Pollock, Judge. Action at law by tbe Duvall-Percival Trust Company against John H. Jenkins and others. Judgment for defendants, and plaintiff brings error. Reversed, with directions. W. 0. Jackson, of Butler, Mo., and James G. Sbeppard, of Ft. Scott, Kan., for plaintiff in error. P. Louis Ziekgraf, of Pittsburg, Kan., for defendants in error. Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge. LEWIS, Circuit Judge. The trial court sustained a demurrer to tbe complaint, exception was saved to that ruling and plaintiff has brought tbe case here. We summarize tbe facts pleaded, admitted by demurrer, as tbe basis of defendants’ asserted liability: (1) The plaintiff is a Missouri corporation having its principal place of business at Butler, Missouri; (2) tbe defendants are citizens and residents of Kansas; (3) on January 10, 1918, Arch W. Beamer and wife owned tbe S. E. %, of Sec. 3, Town. 30, R. 33, Barton County, Missouri, on that day they gave plaintiff their $5,000 promissory note due March 1, 1925, bearing interest from March 1, 1918, payable annually, payments of both principal and interest to be made at the office of Duvall-Pereival Trust Company in Butler, Missouri, and to secure payment of said principal sum and interest Beamer and wife at the same time executed and delivered a deed of trust on said land, with power of sale in the trustee on default in said payments; (4) thereafter on January 17, 1919, Beamer and wife conveyed said quarter section by warranty deed to Mattie E. Roberts, subject to the $5,000 mortgage; (5) thereaffc er H. A. Beck and wife became the owners of the quarter section and assumed in the deed to them payment of said mortgage debt; (6) thereafter Beck and wife by warranty deed conveyed the quarter section to defendants, which deed recited, “Subject to deed of trust for $5,000 with interest at 7 per cent, whieh seeond party (Jenkins and wife) assumes and agrees to pay;” (7) the defendants, after the conveyance to them, insured the house and buildings on the land for the benefit of plaintiff as mortgagee, the policy providing that insurance be applied on payment of the mortgage indebtedness in case of loss (this was required by the deed of trust), and defendants paid to plaintiff one installment of interest on the indebtedness and they were accepted by plaintiff as its debtors; (8) all of said deeds, contracts, agreements and promises were made in the State of Missouri; (9) there was default in the payment of said $5,-000 note and part of the interest, the trustee named in the deed of trust refused to act, and the substituted trustee sold the land in accordance with the terms of the deed of trust, credited the amount received from the sale on the note, and $3,973.01 thereof remained unpaid, for whieh sum with interest plaintiff asked judgment. In the deed from Beamer to Roberts the grantee did not assume and agree to pay the mortgage debt; and in many jurisdictions, including Kansas where this suit was instituted, it is held that no subsequent grantee would be personally liable to the mortgagee for the debt, although the deed to the subsequent grantee might contain an assumption clause. Colorado Savings Bank v. Bales, 101 Kan. 100, 165 P. 843; Nelson v. Rogers, 47 Minn. 103, 49 N. W. 526; Eakin v. Shultz, 61 N. J. Eq. 156, 47 A. 274; Y. M. C. A. v. Croft, 34 Or. 106, 55 P. 439, 75 Am. St. Rep. 568; Fry v. Ausman, 29 S. D. 30, 135 N. W. 708, 39 L. R. A. (N. S.) 150, Ann. Cas. 1914C, 842. These cases, and others like them, are based on the principle that the effect of the assumption clause is to make the grantee the principal debtor and his grantor a surety for the payment of the mortgage debt (Keller v. Ashford, 133 U. S. 610, 10 S. Ct. 494, 33 L. Ed. 667; Union Mut. Life Ins. Co. v. Hanford, 143 U. S. 187, 12 S. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 S. Ct. 445, 45 L. Ed. 613), and that where the grantor is not personally liable to the mortgagee, the assumption clause in a deed which he may make is without any effect, because there was no liability on his part which his grantee could assume. The contract of the grantee when valid is to indemnify the grantor. Williston on Contracts, §-§ 480-486, treats the subject, and on this point says: “The promisee (grantor) has no interest in the performance of this promise, since he is not personally liable for the debt, and he is no longer the owner of the premises. * * * The decisions which generally deny the mortgagee a right to recover in such a case, therefore, seem sound;” and he cites cases in support of his conclusion, and also many that hold to the contrary. Some of the latter are the following: Crone v. Stinde, 156 Mo. 262, 55 S. W. 863, 56 S. W. 907; Marble Sav. Bank v. Mesarvey, 101 Iowa, 285, 70 N. W..198; Hare v. Murphy, 45 Neb. 809, 64 N. W. 211, 29 L. R. A. 851; Enos v. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 862, 65 Am. St. Rep. 38; McDonald v. Finseth, 32 N. D. 400, 155 N. W. 863, L. R. A. 1916D, 149; and McKay v. Ward, 20 Utah, 149, 57 P. 1024, 46 L. R. A. 623. In the last two the subject is fully reviewed and authorities pro and con cited. These cases, and others like them, go upon the theory that the assumption of the debt by. the grantee is for the benefit of the mortgagee, and if it be made on a valid consideration and the mortgagee accepts the grantee as his' debtor the fact of personal non-liability of his grantor for the debt is wholly immaterial. A contractual relation between mortgagee and grantee was thus brought about. The divergence is of long standing, has been persistent, and the two rules stand out in clear contrast. There may be, there is, sharp controversy as to which of the two is founded on the better reason; but ea<?h is firmly established and it would be hard to say that either is in conflict with a settled principle of general jurisprudence, to whieh it ought to yield in this jurisdiction. We think there can be no doubt that Missouri is committed to the rule maintained by the eases last cited. Its supreme court, long prior to the transaction here involved, held in Hicks v. Hamilton, 144 Mo. 495, 46 S. W. 432, 66 Am. St. Rep. 431, that where there was an omission of the assumption clause in the chain of title no subsequent grantee becomes personally liable to the mortgagee, although his deed contains that clause. The syllabus in that case fully states. the court’s conclusion: “A grantee of mortgaged premises, whose conveyance recites that he assumes and agrees to pay the mortgage debt, is not liable for a deficiency arising on a foreclosure of the mortgage, where his grantor was not liable.” That conclusion was in line with the cases first cited above, and was based on the same reason which they set forth. The same question came before that court again two years later in Croñe v. Stinde, supra, and the court held that the opinion in the Hicks Case was a departure from the rule which had been established in that State at an early date, and in reference thereto said: “We are unable to appreciate the position of the distinguished judge who wrote the opinion in that ease, with respect to there being a want of consideration in the promise by the defendant therein to pay the mortgage debt. While it is true that the interest sold was but an equity, it was sold to defendant for a stipulated price, and whether of little or much value it formed a valuable consideration for the promise for the payment of the money to the person who held the debt, who showed his acceptance of the benefit of the promise by bringing suit upon it. Nor do we think that an action cannot be maintained by a person for whose benefit a contract is made by others upon a valuable consideration, although he is not a party thereto, provided he adopts it. The consideration passing between the two contracting parties, by which one of them promises to pay to a third, is just as available to the beneficiary as if he himself had paid the consideration. The case is not only in conflict with all the decisions of this court, with the exception stated, but is directly in conflict with Heim v. Vogel [69 Mo. 529] and Fitzgerald v. Baker, supra [70 Mo. 685] and should be overruled. That there are many authorities which hold in accordance with the views expressed in the Hicks Case, we concede, but we prefer to be governed by our own adjudications which announce a rule more in harmony with right and justice and the spirit of our laws. Besides we are in line with the great weight of authority which we think supported by the better reason.” That opinion was rendered in February, 1900, and it is not claimed that the Supreme Court of Missouri has receded from the position taken in that case, nor that since that time it has changed or modified the rule there announced. It is alleged that the deed to the defendants, in which they assumed payment of the mortgage debt, was executed in the State of Missouri, and it seems clear that the contractual obligations which the defendants therein assumed were to be performed and discharged in that State. It is further alleged that defendants executed in part the obligation which they assumed, and were accepted by plaintiff as its debtors". The interpretation of a contract, and the obligations which it imposes, are ascertained and fixed by the place of its performance, and where the place of performance is not stated or ascertainable from the contract and the subject-matter dealt with, then by the place where it is made. The debt to the plaintiff which the defendants assumed to pay in the deed to them was payable to the plaintiff at Butler, Missouri. The contract, then, which they assumed, was made in Missouri and was to be performed in that State, and under the law of that State they were obligated by their contract of assumption to pay the debt. And this obligation, it is argued, is enforceable in the Federal courts. Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. Ed. 245; Pritchard v. Norton, 106 U. S. 124, 1 S. Ct. 102, 27 L. Ed. 104; Coghlan v. R. R. Co., 142 U. S. 101, 12 S. Ct. 150, 35 L. Ed. 951; Hall v. Cordell, 142 U. S. 116, 12 S. Ct. 154, 35 L. Ed. 956; Owen v. Giles (C. C. A.) 157 F. 825, 829; 12 C. J. pp. 449, 450; 22 Am. & Eng. Ency. of Law (2d Ed.) pp. 1322, 1325. In Pritchard v. Norton, supra, it appears that Pritchard had executed in Louisiana an appeal bond in a ease which had been tried in a court of that State and taken to its supreme court. Norton gave Pritchard a contract of indemnity, executed in New York, on his liability on the appeal bond. The Supreme Court of Louisiana affirmed the judgment on appeal and Pritchard was required to pay it. His executrix then sued Norton on his contract of indemnity in the United States Circuit Court for the District of Louisiana. Norton contended that his contract of indemnity was void under the rule of the State in which it was made. Mr. Justice Matthews, speaking for the court, said: “So that it is clear, heyond any doubt, that the obligation of the indemnity was to be fulfilled in Louisiana, and, consequently, is subject, in all matters affecting its construction and validity, to the law of that locality. * * * We do not hesitate, therefore, to decide that the bond of indemnity sued on was entered into with a view to the law of Louisiana as the place for the fulfillment of its obligation; and that the question of its validity, as depending on the character and sufficiency of the consideration, should be determined by the law of Louisiana, and not by that of New York.” We think the plaintiff’s contention is Bound and that the court erred in sustaining .the demurrer. The ease was brought here by the writ providing for the removal of actions at law, and it must have been regarded as an action on the law side by the trial court, and not’ a suit in equity. That also has been a subject of controversy and disagreement — whether the plaintiff’s remedy on the facts stated, is at law or in equity. Under the rule maintained by the courts in the eases first cited, it would seem clear that the mortgagee must resort to equity for relief. By that rule there is no direct personal liability of the grantee to the mortgagee. The latter has only an equitable right against the grantee based on the relation of suretyship between him and his grantor — a right of subrogation. Keller v. Ashford, supra; Union Mut. Life Ins. Co. v. Hanford, supra; Johns v. Wilson, supra. Under the rule maintained by the courts in the other line of cases, it would seem equally clear that the mortgagee can sue the grantee in debt or assumpsit; for there is a direct personal liability from the latter to the former to pay the debt, arising from contract. Central Elec. Co. v. Sprague Elec. Co. (C. C. A.) 120 F. 925; Starbird v. Cranston, 24 Colo. 20, 48 P. 652; Pomeroy’s Eq. Jurisp. §§ 1206,1207. This seems to have been the unquestioned form of action in Colo. Sav. Bank v. Bales, supra, and a judgment for plaintiff in that case would have been sustained had the proof shown that the grantee was bound. In this case the defendants are bound on their contract. The law of the forum controls the form of remedy. Johns v. Wilson, supra; Willard v. Wood, 135 U. S. 309, 10 S. Ct. 831, 34 L. Ed. 210; Le Roy v. Beard, 8 How. 451, 12 L. Ed. 1151. We think the judgment of dismissal should be reversed with direction to overrule the demurrer and let the defendants answer. It is so ordered.-

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?

GUSS, doing business as PHOTO SOUND PRODUCTS MANUFACTURING CO., v. UTAH LABOR RELATIONS BOARD. No. 280. Argued January 16, 1957. Decided March 25, 1957. Peter W. Billings argued the cause for appellant. With him on the brief was Harold P. Fabian. E. R. Callister, Attorney General of Utah, argued the cause for appellee. With him on the brief was Raymond W. Gee, Assistant Attorney General. Solicitor General Rankin, Theophil C. Kammholz, Stephen Leonard and Dominick L. Manoli filed a brief for the National Labor Relations Board, as amicus curiae, urging affirmance. A brief of amici curiae was filed for the States of Florida, by Richard W. Ervin, Attorney General; Georgia, by Eugene Cook, Attorney General; Texas, by John Ben Shepperd, Attorney General; Vermont, by Robert T. Stafford, Attorney General; Virginia, by J. Lindsay Almond, Jr., Attorney General; Wyoming, by George F. Guy, Attorney General; and the Wisconsin Employment Relations Board, by Vernon W. Thomson, Attorney General, and Beatrice Lampert, Assistant Attorney General. Briefs of amici curiae were also filed by Herbert B. Cohen, Attorney General, and Oscar Bortner, Assistant Attorney General, for the Commonwealth of Pennsylvania, and Philip Feldblum for the New York State Labor Relations Board. Arthur J. Goldberg and David E. Feller filed a brief for the United Steelworkers of America, as amicus curiae. Mr. Chief Justice Warren delivered the opinion of the Court. The question presented by this appeal and by No. 41, post, p. 20, and No. 50, post, p. 26, also decided this day, is whether Congress, by vesting in the National Labor Relations Board jurisdiction over labor relations matters affecting interstate commerce, has completely displaced state power to deal with such matters where the Board has declined or obviously would decline to exercise its jurisdiction but has not ceded jurisdiction pursuant to the proviso to § 10 (a) of the National Labor Relations Act. It is a question we left open in Building Trades Council v. Kinard Construction Co., 346 U. S. 933. Some background is necessary for an understanding of this problem in federal-state relations and how it assumed its present importance. Since it was first enacted in 1935, the National Labor Relations Act has empowered the National Labor Relations Board “to prevent any person from engaging in any unfair labor practice . . . [defined by the Act] affecting commerce.” By this language and by the definition of “affecting commerce” elsewhere in the Act, Congress meant to reach to the full extent of its power under the Commerce Clause. Labor Board v. Fainblatt, 306 U. S. 601, 606-607. The Board, however, has never exercised the full measure of its jurisdiction. For a number of years, the Board decided case-by-case whether to take jurisdiction. In 1950, concluding that “experience warrants the establishment and announcement of certain standards” to govern the exercise of its jurisdiction, Hollow Tree Lumber Co., 91 N. L. R. B. 635, 636, the Board published standards, largely in terms of yearly dollar amounts of interstate inflow and outflow. In 1954, a sharply divided Board, see Breeding Transfer Co., 110 N. L. R. B. 493, revised the jurisdictional standards upward. This Court has never passed and we do not pass today upon the validity of any particular declination of jurisdiction by the Board or any set of jurisdictional standards. How many labor disputes the Board’s 1954 standards leave in the “twilight zone” between exercised federal jurisdiction and unquestioned state jurisdiction is not known. In any case, there has been recently a substantial volume of litigation raising the question stated at the beginning of this opinion, of which this case is an example. Appellant, doing business in Salt Lake City, Utah, manufactures specialized photographic equipment for the Air Force on a contract basis. To fulfill his government contracts he purchased materials from outside Utah in an amount “a little less than $50,000.” Finished products were shipped to Air Force bases, one within Utah and the others outside. In 1953 the United Steelworkers of America filed with the National Labor Relations Board a petition for certification of that union as the bargaining representative of appellant’s employees. A consent election was agreed to, the agreement reciting- that appellant was “engaged in commerce within the meaning of Section 2 (6), (7) of the National Labor Relations Act.” The union won the election and was certified by the National Board as bargaining representative. Shortly thereafter the union filed with the National Board charges that appellant had engaged in unfair labor practices proscribed by § 8 (a) (1), (3) and (5) of the Act. Meanwhile, on July 15, 1954, the Board promulgated its revised jurisdictional standards. The Board’s Acting Regional Director declined to issue a complaint. He wrote on July 21: “Further proceedings are not warranted, inasmuch as the operations of the Company involved are predominantly local in character, and it does not appear that it would effectuate the policies of the Act to exercise jurisdiction.” The union thereupon filed substantially the same charges with the Utah Labor Relations Board, pursuant to the Utah Labor Relations Act. Appellant urged that the State Board was without jurisdiction of a matter within the jurisdiction of the National Board. The State Board, however, found it had jurisdiction and concluded on the merits that appellant had engaged in unfair labor practices as defined by the Utah Act. It granted relief through a remedial order. On a Writ of Review, the Utah Supreme Court affirmed the decision and order of the state administrative agency. We noted probable jurisdiction. 352 U. S. 817. On these facts we start from the following uncontro-verted premises: (1) Appellant’s business affects commerce within the meaning of the National Labor Relations Act and the National Labor Relations Board had jurisdiction. Labor Board v. Fainblatt, supra. (2) The National Act expressly deals with the conduct charged to appellant which was the basis of the state tribunals’ actions. Therefore, if the National Board had not declined jurisdiction, state action would have been precluded by our decision in Garner v. Teamsters Union, 346 U. S. 485. (3) The National Board has not entered into any cession agreement with the Utah Board pursuant to § 10 (a) of the National Act. Section 10 (a) provides: “The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.” (Emphasis added.) The proviso to § 10 (a), italicized in the quotation above, was one of the Taft-Hartley amendments to the National Labor Relations Act. Timing and a reference in one of the committee reports indicate that it was drafted in response to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 330 U. S. 767. In Bethlehem foremen in an enterprise affecting commerce petitioned the New York State Labor Relations Board for certification as a bargaining unit. At that time the National Board was declining, as a matter of policy, to certify bargaining units composed of foremen. The Court held that the federal policy against certifying foremen’s units must prevail. However, it took occasion to discuss the efforts of the two boards to avoid conflicts of jurisdiction. “The National and State Boards have made a commendable effort to avoid conflict in this overlapping state of the statutes. We find nothing in their negotiations, however, which affects either the construction of the federal statute or the question of constitutional power insofar as they are involved in this case, since the National Board made no concession or delegation of power to deal with this subject. The election of the National Board to decline jurisdiction in certain types of cases, for budgetary or other reasons presents a different problem which we do not now decide.” Id., at 776. Three Justices were led to concur specially, because, as it was stated for the three: “I read . . . [the Court’s opinion] to mean that it is beyond the power of the National Board to agree with State agencies enforcing laws like the Wagner Act to divide, with due regard to local interests, the domain over which Congress had given the National Board abstract discretion but which, practically, cannot be covered by it alone. If such cooperative agreements between State and National Boards are barred because the power which Congress has granted to the National Board ousted or superseded State authority, I am unable to see how State authority can revive because Congress has seen fit to put the Board on short rations.” Id., at 779. Thus, if the opinion of the Court did not make manifest, the concurring opinion did, that after Bethlehem there was doubt whether a state board could act either after a formal cession by the National Board or upon a declination of jurisdiction “for budgetary or other reasons.” When we read § 10 (a) against this background we find unconvincing the argument that Congress meant by the proviso only to meet the first problem, i. e., cession of jurisdiction over cases the National Board would otherwise handle. The proviso is directed at least equally to the type of cases which the Board might decline “for budgetary or other reasons” to hear as to the type of cases it might wish to cede to the States for policy reasons — if, indeed, there is any difference between the two classes. Cases in mining, manufacturing, communications and transportation can be ceded only where the “industry” is “predominantly local in character.” In other industries, which Congress might have considered to be more or less typically local, it put no such limitation on the Board’s power. The Senate Committee spelled the matter out: “The proviso which has been added to this subsection [§ 10 (a)] permits the National Board to allow State labor-relations boards to take final jurisdiction of cases in border-line industries (i. e., border line insofar as interstate commerce is concerned), provided the State statute conforms to national policy.” The Committee minority agreed as to the purpose of the proviso and agreed “with the majority that it is desirable thus to clarify the relations between the National Labor Relations Board and the various agencies which States have set up to handle similar problems.” We hold that the proviso to § 10 (a) is the exclusive means whereby States may be enabled to act concerning the matters which Congress has entrusted to the National Labor Relations Board. We find support for our holding in prior cases in this Court. In Amalgamated Assn. of Employees v. Wisconsin Board, 340 U. S. 383, 397-398, the Court said: “The legislative history of the 1947 Act refers to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 330 U. S. 767 (1947), and, in its handling of the problems presented by that case, Congress demonstrated that it knew how to cede jurisdiction to the states. Congress knew full well that its labor legislation ‘preempts the field that the act covers insofar as commerce within the meaning of the act is concerned’ and demonstrated its ability to spell out with particularity those areas in which it desired state regulation to be operative.” (Footnotes omitted.) In a footnote to the first sentence quoted above the Court cited § 10 (a) and described its authorization to cede jurisdiction only where the state law is consistent with the national legislation as insuring “that the national labor policy will not be thwarted even in the predominantly local enterprises to which the proviso applies.” Id., n. 23. See also Algoma Plywood & Veneer Co. v. Wisconsin Board, 336 U. S. 301, 313; California v. Zook, 336 U. S. 725, 732. Our reading of § 10 (a) forecloses the argument based upon such cases as Welch Co. v. New Hampshire, 306 U. S. 79, and Missouri Pacific R. Co. v. Larabee Flour Mills Co., 211 U. S. 612, that “where federal power has been delegated but lies dormant and unexercised,” Bethlehem Steel Co. v. New York Labor Board, supra, at 775, the States’ power to act with respect to matters of local concern is not necessarily superseded. But in each case the question is one of congressional intent. Compare Welch Co. v. New Hampshire, supra, with Napier v. Atlantic Coast Line R. Co., 272 U. S. 605. And here we find not only a general intent to pre-empt the field but also the proviso to § 10 (a), with its inescapable implication of exclusiveness. We are told by appellee that to deny the State jurisdiction here will create a vast no-man’s-land, subject to regulation by no agency or court. We are told by appellant that to grant jurisdiction would produce confusion and conflicts with federal policy. Unfortunately, both may be right. We believe, however, that Congress has expressed its judgment in favor of uniformity. Since Congress’ power in the area of commerce among the States is plenary, its judgment must be respected whatever policy objections there may be to creation of a no-man’s-land. Congress is free to change the situation at will. In 1954 the Senate Committee on Labor and Public Welfare recognized the existence of a no-man’s-land and proposed an amendment which would have empowered state courts and agencies to act upon the National Board’s declination of jurisdiction. The National Labor Relations Board can greatly reduce the area of the no-man’s-land by reasserting its jurisdiction and, where States have brought their labor laws into conformity with federal policy, by ceding jurisdiction under § 10 (a). The testimony given by the Chairman of the Board before the Appropriations Committees shortly before the 1954 revisions of the jurisdictional standards indicates that its reasons for making that change were not basically budgetary. They had more to do with the Board’s concept of the class of cases to which it should devote its attention. The judgment of the Supreme Court of Utah is Reversed. Mr. Justice Whittaker took no part in the consideration or decision of this case. 61 Stat. 146, 29 U. S. C. § 160 (a). 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. § 10 (a), 49 Stat. 453, left unchanged in this particular by the Taft-Hartley amendments, 61 Stat. 146, 29 U. S. C. §160 (a). “The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” § 2 (7), 49 Stat. 450, left unchanged by the Taft-Hartley amendments, 61 Stat. 138, 29 U. S. C. §152 (7). The NLRB’s press release of October 6, 1950, can be found at 26 LRR Man. 50. The NLRB’s press release of July 15, 1954, can be found at 34 LRR Man. 75. But see Labor Board v. Denver Building & Construction Trades Council, 341 U. S. 675, 684. Members of the Board disagreed as to the impact' of the revision. See Breeding Transfer Co., 110 N. L. R. B. 493, 498-500, 506-508. Among the cases in which courts have sustained state jurisdiction where the Board declines or would decline jurisdiction are Garmon v. San Diego Building Trades Council, 45 Cal. 2d 657, 291 P. 2d 1; Building Trades Council v. Bonito, 71 Nev. 84, 280 P. 2d 295; Hammer v. Local 211, United Textile Workers, 34 N. J. Super. 34, 111 A. 2d 308; Dallas General Drivers v. Jax Beer Co., 276 S. W. 2d 384 (Tex. Civ. App.). On the other side are Retail Clerks v. Your Food Stores, 225 F. 2d 659; Universal Car & Service Co. v. International Assn. of Machinists, 35 LRR Man. 2087 (Mich. Cir. Ct.); New York Labor Board v. Wags Transportation System, 130 N. Y. S. 2d 731, aff’d, 284 App. Div. 883, 134 N. Y. S. 2d 603. 61 Stat. 140, 141, 29 U. S. C. § 158 (a) (1), (3), (5). Utah Code Ann., 1953, 34-1-1 through 34-1-15. 5 Utah 2d 68, 296 P. 2d 733. The Bethlehem decision was handed down April 7, 1947. The proviso to § 10 (a) first appeared when S. 1126, which contained the substance of what was to become the Taft-Hartley Act, was reported out of committee April 17. See S. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 38. S. Rep. No. 105, 80th Cong., 1st Sess. 26. S. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 38. The minority members also said, “We think the clarification of relations between the Federal and State boards contemplated under section 10 (a) a wise solution to a complex problem.” Id., at 41. See also S. Rep. No. 986, 80th Cong., 2d Sess. 30-31. “The effect ... of the Board’s policy of refusing to assert its jurisdiction has been to create a legal vacuum or no-man’s land with respect to cases over which the Board, in its discretion, has refused to assert jurisdiction. In these cases the situation seems to be that the Board will not assert jurisdiction, the States are forbidden to do so, and the injured parties are deprived of any forum in which to seek relief.” S. Rep. No. 1211, 83d Cong., 2d Sess. 18. The minority agreed that “When the Federal Board refuses to take a case within its jurisdiction, the State agencies or courts are nevertheless without power to take jurisdiction, since the dispute is covered by the Federal act, even though the Federal Board declines to apply the act. There is thus a hiatus — a no man’s land — in which the Federal Board declines to exercise its jurisdiction and the State agencies and courts have no jurisdiction.” Id., Pt. 2, p. 14. The Committee’s bill, S. 2650, was recommitted. 100 Cong. Rec. 6203. The National Labor Relations Board has informed us in its brief amicus curiae in these cases that it has been unable, because of the conditions prescribed by the proviso to § 10 (a), to consummate any cession agreements. Hearings before Subcommittee of House Committee on Appropriations, Department of Labor and Related Independent Agencies, 83d Cong., 2d Sess. 309, 315, 323.

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?

LANE-COOS-CURRY-DOUGLAS COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jens HORSTRUP, Respondent. Nos. 22169, 22169-A. United States Court of Appeals Ninth Circuit. Aug. 18, 1969. James M. Carter, Circuit Judge, dissented. Paul T. Bailey, Portland, Or. (argued), Laurence J. Cohen, Washington, D. C., and Stephen M. Malm, of Bailey, Swink & Haas, Portland, Or., for petitioner. Glen M. Bendixsen (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Thomas P. Graham, Jr., Regional Director, Seattle, Wash., Robert J. Wiener, Officer-in-Charge, Portland, Or., for respondent. Riddlesbarger, Pederson, Brownhill & Young, Eugene, Or., for respondent Horstrup. Louis Sherman, Laurence J. Cohen, of Sherman & Dunn, Washington, D. C., for Building & Construction Trades Dept., AFL-CIO, amicus curiae. Before BROWNING, DUNIWAY, and CARTER, Circuit Judges. BROWNING, Circuit Judge: The Trades Council and Jens Horst-rup, its secretary-treasurer, ask us to set aside an order of the National Labor Relations Board based upon a holding that they had violated section 8(b) (7) (A) of the Act, 29 U.S.C. § 158(b) (7) (A), by picketing R. A. Chambers & Associates of Eugene, Oregon. 165 N.L.R.B. No. 86. The Board cross-petitions for enforcement. Chambers is a general contractor in the construction industry. Subcontractors do approximately 60 per cent of Chambers’ work; about 40 per cent is done by his own employees. Chambers’ employees are carpenters and laborers who are members of locals of the Laborers’ Union and the Carpenters’ Union. At the time of the picketing, Chambers was a party to collective bargaining contracts with these unions. The Trades Council is an association of local building trade unions, including the Laborers’ Union and Carpenters’ Union. The Trades Council was not certified as the representative of Chambers’ employees — its membership does not include individual employees. The purpose of the picketing was to require Chambers to execute a formal agreement with the Trades Council, the provisions of which are considered below. The Board concluded that the picketing violated section 8(b) (7) (A) because it had as an object requiring Chambers to recognize or bargain with the Trades Council as the representative of Chambers’ employees, at a time when Chambers had lawfully recognized other unions and a question of representation could not appropriately be raised under section 9(c) of the Act, 29 U.S.C. § 159(c). Except as we will note, the issues and arguments presented to us were considered by the Court of Appeals for the District of Columbia Circuit in Dallas Building & Construction Trades Council v. NLRB, 130 U.S.App.D.C. 28, 396 F.2d 677 (1968). That court enforced the Board’s order. We agree with the Dallas opinion, and enforce a similar order of the Board here. It would serve no useful purpose to deal again with the contentions disposed of in Dallas. With one preliminary observation, we confine our comments to matters not considered in that opinion. It must be conceded that the primary purpose of section 8(b) (7) (A) is to protect employees’ freedom of choice in selecting their bargaining agent from the coercive effect of picketing by a “stranger” union; and that it is not readily apparent that this purpose is served by applying the statute to picketing by an allied or affiliated labor organization rather than one hostile to the lawfully recognized union. However, Congress did not choose to rest the applicability of section 8(b) (7) (A) upon such a distinction. On the contrary, if the other conditions specified in the section are present, picketing is barred when the employer has lawfully rocognized “any other labor organization.” It cannot be supposed that Congress was unaware of the special problems in the construction industry (see, e. g., section 8(e)); and, as Dallas points out, Congress may well have intended to protect the employer from pressure even from allied or affiliated unions with regard to matters properly subject to settlement by agreement between the employer and the exclusive bargaining agent of his employes. 396 F.2d at 680-681. The exact language of section 8(b) (7) (A) is the product of intense legislative conflict and compromise (NLRB v. Suffolk County District Council of Carpenters, 387 F.2d. 170, 174 (2d Cir. 1967)); and, to an unusual degree, the words of the statute provide the only safe measure of the actual agreement between contending purposes and points of view. Cf. A. Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn.L.Rev. 257, 266 (1959). Nonetheless, we agree, of course, that it would be proper to read a condition into the statutory language if the legislative history affirmatively supported the Trades Council’s thesis that Congress did not intend to bar picketing by an allied or affiliated labor organization in the construction industry. But it does not. The Board’s position, in this case and in Dallas, is that “an object [of picketing] is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees,” if a purpose of the picketing is to establish a continuing contractual relationship with the employer with regard to matters which could substantially affect the working conditions of his employees, and which are the proper subject of bargaining by a lawfully recognized exclusive representative of those employees. See 396 F.2d at 680-81. The Board found that the Trades Council picketed to require Chambers to execute a formal contract to remain in force from year to year unless either party gave notice of termination 60 days prior to an anniversary date. The proposed contract was to replace a similar agreement executed by the parties nine or ten years earlier. The Board further found that several of the provisions of the proposed contract related to subjects already covered by the collective bargaining agreements between Chambers and locals of the Laborers’ and the Carpenters’ Unions, and would have modified the terms of the latter agreements. Certain of these proposed provisions would have imposed greater restrictions upon the subcontracting of work by Chambers than were imposed by Chambers’ existing collective bargaining agreements with the locals. For the reasons stated in Dallas, picketing to secure a continuing agreement with respect to this subject matter intruded upon the area reserved to collective bargaining between Chambers and the craft unions representing Chambers’ employees. The Examiner held, and the Board agreed, that several other proposed provisions not involved in Dallas, fell in the same category. The first of these was a provision that the Trades Council would not be bound by the no-strike and arbitration clauses in the agreements with the Laborers’ Union and the Carpenters’ Union. A second provision would have freed the Carpenters' and Laborers’ Unions of the obligation to furnish workmen imposed by hiring-hall provisions of their agreements with Chambers during the time of any violation by Chambers of the proposed agreement with the Trades Council. The Trades Council’s argument in support of these two provisions is premised upon the validity of the central provisions restricting subcontracting which these two provisions were designed principally to enforce. The argument falls with its premise. This is equally true of the Trades Council’s defense of a final provision to the effect that the craft unions could not modify, amend or alter the proposed agreement without the approval of the Trades Council. The Board interpreted this proposed provision as requiring prior agreement by the Trades Council to the negotiation by Chambers and the craft unions of any change in the terms and conditions of employment of Chambers’ employees. The Trades Council argues that this provision applied only to the modification of its proposed agreement. Assuming the latter interpretation to be correct, the provision would require prior Trades Council approval of any changes in the subcontracting articles which were the heart of the proposed agreement. Since, as we have held, restrictions on subcontracting are matters solely for negotiation between Chambers and the lawful representatives of his employees, any provision concerning modification of those restrictions would also be reserved for negotiation between those parties. We enforce the Board’s order. . The Trades Council challenges the Board’s finding that Chambers’ employees were union members at the time collective bargaining contracts were executed with the locals. Chambers testified under oath that they were; and the weight of his testimony was for the Board to determine. There was no evidence to the contrary. . Chambers also became a party to collective bargaining agreements with two other local unions affiliated with the Trades Council, the Iron Workers and the Cement Masons, hut it appears that Chambers did not employ men in either craft. . It should be noted, however, as the trial examiner observed, that “There is no indication in this record of the position of the four crafts concerning this tactic by Respondents.” 165 N.L.R.B. No. 86, at note 5. . It is at least clear from the legislative history that § 8(b) (7) (A) was intended to protect both parties to a lawful bargaining relationship — the employer as well as his employees. I Leg.His. of the LMRDA of 1959 781-782; 2 Leg.His. of the LMRDA 994, 1185, 1191, 1291, 1518, 1576, 1582, 1828, 1858. . The Building and Construction Trades Department, AFL-CIO, amicus curiae, points out that § 8(b) (7) bars picketing to require an employer to recognize or bargain with a labor organization “as the representative” of his employees, and argues that the section therefore applies only where the picketing union seeks recognition as the exclusive representative of the employees. This contention was rejected in Dallas on the ground that it “does not appear to be compatible with the clear purpose of Section 8(b) (7) to prevent any infringement of the recognized union’s representative status.” 396 F.2d at 680 n. 5. If the construction suggested by amicus were adopted, § 8(b) (7) would have little or no substance since any union, competing or allied, could avoid the statute merely by limiting its demands upon the employer to anything less than the full range of bargainable subjects. . This position was foreshadowed by the Board’s pre-Landrum-Griffin Act interpretation of § 8(b) (4) (C). See Industrial Chrome Plating Co., 121 N.L.R.B. 1298, 1300 (1958); Lewis Food Co., 115 N.L.R.B. 890, 892-93 (1956). . The Trades Council contends that Chambers was still bound by this earlier agreement with it when he executed collective bargaining agreements with the local craft unions, and thus the local craft unions were not “lawfully recognized” by Chambers as required by § 8(b) (7) (A). Since the local craft union contracts were executed over a year before the picketing occurred, the Trades Council is barred by § 10(b) of the Act from asserting that those unions were not “lawfully recognized.” Rowan Stone Construction, 153 N.L.R.B. 659 n. 3. Nor could the Council have brought a petition for an election. NLRB v. Local 3, I.B.E.W., 362 F.2d 232, 236 (2d Cir. 1966). The Trades Council’s contention that the craft collective bargaining agreements were pre-hire agreements within the meaning of § 8(f) and therefore not a bar to a petition under § 9(e), is sufficiently answered in Dallas, 396 F.2d at 679 n. 4, on undistinguishable facts. . We agree with the holding in Dallas that this construction of § 8(b) (7) (A) is consistent with the letter and spirit of the first proviso in § 8(e). 396 F.2d at 682.

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"?

The FIRST NATIONAL BANK AND TRUST COMPANY OF OKLAHOMA CITY, OKLAHOMA, and T. Jack Foster, Trustees, and the Beneficiaries of the John Robertson Foster Trust, Appellants, v. John Robertson FOSTER, Appellee. No. 7885. United States Court of Appeals Tenth Circuit. May 24, 1965. R. C. Jopling, Jr., Oklahoma City, Okl. (Fowler, Rucks, Baker, Jopling, Gramlich & Mee and Lynnie Clayton Spahn, Oklahoma City, Okl., were with him on the brief), for appellants. Gus Rinehart, Oklahoma City, Okl. (Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellee. Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges. SETH, Circuit Judge. The appellee commenced this action to require the appellant cotrustees to accept an amendment or supplement to a trust agreement that they were then administering. The trial court entered judgment in favor of the appellee and thereby required the acceptance of the supplemental agreement. The trustees have taken this appeal. The record shows that the appellee is the settlor or trustor of a trust administered under a trust agreement dated July 25, 1960, wherein the appellants are named cotrustees. This original agreement expressly provides that the trust should be irrevocable. It also provides that the income should be paid to the trustor, and that the distribution of the corpus after the death of the trustor be made as he may “designate by instrument supplementary to this trust agreement and delivered to and accepted by Trustees.” The instrument makes provision for distribution in the event trustor shall not execute such supplemental instrument by providing that the corpus is to be divided and remitted as directed by the individual trustee in his sole discretion. In January 1961 the trustor prepared a Supplement to the trust agreement in which detailed distribution of the corpus was directed. Then the trustor on June 15, 1961, filed an additional Supplemental Agreement which refers to the previous Supplement and again, as did the Supplement of January 13, 1961, refers to paragraph 6 of the original instrument which contains the provision for further disposition of the corpus as the trustor may designate by instrument supplementary to the original agreement. This Supplement of June 15, 1961, also recites a desire to revoke the prior Supplement to “amend the trust agreement” by surrendering his own right, title and interest therein. By this instrument the trustor renounced his right to income and provided that the administration and distribution be made without reference to whether the trustor is alive or dead. This instrument specifies that certain savings accounts are to be created and provides for disbursements of the corpus of the estate by a committee for the education of certain named persons. Thereafter the trustor prepared an additional Supplement dated October 11, 1962, which is the subject of this litigation since the trustees refused to accept and to proceed in accordance with it. This instrument revokes portions of the last prior Supplement, reinstates the life income to the settlor, and provides that the corpus of the trust shall pass upon the settlor’s death to his widow. The appellants urge that the Supplement of October 11, 1962, proposed by the trustor-appellee is in effect a revocation of the trust, and the trustor is powerless to so terminate the expressly irrevocable agreement under Oklahoma law. The appellants further argue that the prior Supplements were proper in that the Supplement of January 13, 1961, was an exercise of the power reserved by the trustor; that the Supplement of June 15, 1961, was a permissible waiver or surrender of the trustor’s right to receive income, and was a “minor revision” to identify the beneficiaries. Appellants urge that in contrast the proposed Supplement completely alters the purpose of the trust, the class of beneficiaries, and voids all prior instruments. The trial court found that the proposed Supplement was proper, and that the trustees should accept it. The remarks of the court indicate that the proposed Supplement does not constitute a revocation of the trust, and further that under the law of Oklahoma the trustor could exercise the reserved right to designate the beneficiaries upon the distribution of the trust as many times as he desired. The record shows that the proposed Supplement as it relates to the distribution of income during the lifetime of the trustor appellee would restore the provisions as made in the original trust agreement. It expressly “reinstates” the paragraph of the original agreement relating to income. This in itself cannot be considered a revocation, and there can be made no valid objection to it. The proposed Supplement to the extent that it constitutes a repeated exercise of the power to designate beneficiaries on the settlor’s death does not, according to the record, demonstrate anything contrary to the intention of the settlor. The settlor had previously exercised such a right several times, and this if nothing more demonstrates his intention that the reserved power would not be exhausted upon its first exercise. As was stated by the Oklahoma court in Hurst v. Kravis, 333 P.2d 314 (Okl.), the intention of the settlor should control if not in conflict with established principles of law. Under the circumstances here presented, the finding of the trial court that the repeated exercise of the power was proper was not erroneous. The settlor has the power to modify trust provisions to the extent that he reserved such authority. Restatement, Trusts § 331. The appellee in the case at bar reserved the power to make a different designation of beneficiaries on distribution upon his death in a supplemental instrument than was provided in the original instrument. This was a reservation of a right to modify the instrument as originally executed, and was not a power of a different character. The provision does not expressly state that repeated designations may be made, but such repeated use as is here before us is not contrary to law and, as indicated, is in accord with the settlor’s intent. Such a right to modify the original instrument as here reserved need not be stated in more exact terms under these circumstances. Bogert, Trusts, § 995; 35 Ill.L.Rev. 976. The parties have cited no Oklahoma cases directly upon the point of repeated exercise of a power to modify. The trial court’s determination of the applicable law of Oklahoma will be upheld under these circumstances unless clearly wrong, and we do not find it so. F & S Construction Co. v. Berube, 322 F.2d 782 (10th Cir.); Robert Porter & Sons, Inc. v. National Distillers Products Co., 324 F.2d 202 (10th Cir.); United States Fidelity & Guaranty Co. v. Lembke, 328 F.2d 569 (10th Cir.). The trial court also found that the attempted modification was not a revocation. The Oklahoma statute, 60 O.S.A. § 175.41, relating to revocation, is not applicable. Appellants urge that the basic question is whether the trust is revocable, but the determination of the trial court must stand. The effect of the reinstatement of the life income has been considered above. As to the balance of the proposed Supplement, it revokes all the operative provisions of the June 15, 1961, Supplement and then makes specific provision for distribution of the corpus on the settlor’s death to his widow, and then reaffirms the original trust agreement as modified. The record indicates no intention by the settlor to revoke the trust, and in fact all the evidence is to the contrary. The appellants urge in effect that despite such intention the changes are so great as to constitute a revocation. The record does not support such a position. Considering the proposed Supplement as a whole, its effect is to restore the theretofore changed provisions of the original trust, and to redesignate beneficiaries under the retained powers hereinabove considered. The new beneficiary of the corpus is not one of a class designated in prior instruments, and this does represent a change. However, there are no restrictions on the reserved power, and a change in the class of beneficiaries, the trust otherwise being as originally provided, cannot be regarded as a revocation. The finding of the trial court on this point is well supported by the record and no revocation was intended or resulted from the proposed Supplement. 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 "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 second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

PHILADELPHIA POLICE AND FIRE ASSOCIATION FOR HANDICAPPED CHILDREN, INC., Phillip Joseph Barrett, Debbie Callaghan, Gina Marie Coccia, Colleen Devaney, Bernadine Doughty, William Engle, David Joseph Fialkowski, Thomas Edward Foley, Robert G. Fulmer, Dianne Gradel, Suzanne Gress, Matthew T. Hoag, Anthony T. Hulem, Elliot N. Jaffee, William J. Jaffee, Edward Kelly, David Andrew Kensil, Yanina Kopyt, Helen Posusney, Michael V. Powell, Loretto Ricciardi, David W. Rickolds, David E. Rounds, Dennis Rowan, Diane Rubis, Dorothy Schaeffler, Joseph R. Steffen, Elizabeth Sturkey, Dennis P. Torrieri, William Watson, Judith Weick, Michael Weinberg, on behalf of themselves and all others similarly situated v. CITY OF PHILADELPHIA, Maurice Clifford, Robert Glover, John White, Jr., Steven Eidelman. Appeal of CITY OF PHILADELPHIA, Maurice Clifford, and Robert Glover, Appellants in No. 88-1883. Appeal of COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, Secretary and Deputy Secretary, Appellants in Nos. 88-1909 and 89-1116. Nos. 88-1883, 88-1909 and 89-1116. United States Court of Appeals, Third Circuit. Argued March 28, 1989. Decided May 8, 1989. Rehearing Denied June 8, 1989. Seymour Kurland, City Sol., Richard J. Gold (argued), First Deputy City Sol., Doris M. Leisch, Chief Asst. City Sol., City of Philadelphia Law Dept., Philadelphia, Pa., for City of Philadelphia etc., appellants in No. 88-1888. Ernest D. Preate, Jr., Atty. Gen., David M. Donaldson, (argued), Sr. Deputy Atty. Gen., Laura Fredricks, Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Philadelphia, Pa., for Com. of Pa., Dept, of Public Welfare Secretary, and Deputy Secretary, appellants in Nos. 88-1909 and 89-1116. David Ferleger (argued), Philadelphia, Pa., for Philadelphia Police and Fire Ass’n for Handicapped Children, etc., appellees. Macdonald Flinn, Robert S. Herbst, White & Case, New York City, amici curiae, for The Ass’n for Retarted Citizens etc. Robert J. Sugarman, Sugarman & Cohen, Philadelphia, Pa., amicus curiae, for Philadephia Coalition of Community Mental Health/Mental Retardation Centers, Inc. Before GIBBONS, Chief Judge, and BECKER and NYGAARD, Circuit Judges. OPINION OF THE COURT GIBBONS, Chief Judge: The City of Philadelphia and its mental retardation officials, Health Commissioner Maurice Clifford and Mental Health/Mental Retardation Administrator Robert Glover, (collectively “Philadelphia”), and the Commonwealth of Pennsylvania, its Secretary of Public Welfare, John F. White, Jr., and his Deputy Secretary for Retardation, Steven Eidelman, (collectively “the Commonwealth”) appeal from a district court order enjoining them to maintain services to mentally retarded individuals who live at home at fiscal year 1988 levels. We conclude that the district court erred in holding that the reduction or elimination of services to this group violated the fourteenth amendment on equal protection and substantive due process grounds. Therefore, we will reverse. I. The mentally retarded require special and continuing care called “habilitation” to function optimally in society. Habilitation entails “teaching and training the retarded basic life and social skills,” App. 833, such as walking, talking, eating, toileting, socializing, using money, traveling, and working. These lessons, however, are not learned permanently by mentally retarded persons: once habilitation ceases, they begin to regress. In Pennsylvania, state-subsidized habilitation of the mentally retarded is performed in a variety of settings ranging from state institutions to the retarded person’s home. Provision of these services is governed by the Mental Health and Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969 & Supp.1988). The Act divides responsibility for providing and purchasing services for the mentally retarded between the state and county governments. It delegates to the state the duties “[t]o ensure... the availability and equitable provision of adequate... mental retardation services for all persons who need them,” to promulgate regulations consistent with the Act, and to assist the counties in fulfilling their duties. 50 Pa.Cons. StatAnn. § 4201. It delegates to the counties diagnosis, evaluation of needs, and development of a plan to address those needs, including a determination to place the mentally retarded person either in the institution, a group home, or with his family. Id. at §§ 4301-4805; 55 Pa.Code §§ 6201.1-14. To be eligible for county-level services, individuals must register with, and be accepted by, a base service unit (“BSU”). 50 Pa.Cons.Stat.Ann. § 4301(d)(9) (Purdon 1969); 55 Pa.Code § 6201.13(a). The Act requires the Pennsylvania General Assembly annually to budget funds for mental retardation services within the state. See 50 Pa.Stat.Ann. §§ 4201, 4202 (Purdon 1969 & Supp.1988). It delegates to the Department of Public Welfare disbursement of these funds, supplemented by federal funds, among Pennsylvania’s sixty-seven counties. Id. at §§ 4201, 4507, 4509. The counties, however, remain free to provide additional funding. See id. at § 4509. The Act also anticipates funding shortfalls, requiring the Department of Public Welfare, in the event of an allocation insufficient to fully fund approved grants, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties’ financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available. Id. at § 4509(5). Under the statutory scheme, the state must provide total funding for approved local residential programs, which give twenty-four hour care to live-in residents. Id. at §§ 4507, 4509. Programs administering approved nonresidential services must receive ninety percent of their funding from the state and ten percent from the county. Id. at § 4509. Since 1983, Philadelphia’s program has run at a deficit; in each year through fiscal year 1987, it covered the deficit with money left over from placement of persons from Pennhurst. App. 636-37. In fiscal year 1988, however, Philadelphia could not find a way to cover the difference. Faced with cutting services, Philadelphia asked for and received supplemental funding from the Commonwealth. The Commonwealth, however, refused Philadelphia’s request to annualize this special allocation. The Commonwealth’s position set the stage for the instant dispute. For fiscal year 1989, the Commonwealth once again allocated less funds than Philadelphia needed. The shortfall was estimated at $6.8 million, approximately 10% of Philadelphia’s budgeted spending for care and treatment of the mentally retarded. The Commonwealth, as promised, refused to supplement the funding. In response, Philadelphia announced that it planned to reduce services to mentally retarded citizens living at home. The reductions would be made there because Philadelphia believed such a response best would maintain the integrity of the system as a whole. Hoping to minimize harm to those residing at home, the city decided to cut “soft” services, such as case management, more heavily than “hard” services, such as day and vocational programs. Specifically, Philadelphia planned to compensate for the shortfall by reducing case management by 50%, family support services by 30%, and early intervention programs by 10%. These cuts were made equally to each BSU. Thus, regardless of the ratio of nonresidential to residential clients serviced, each BSU lost the same proportionate amount of dollars. App. 214. The plan additionally called for a per person reduction in day and vocational programs, meaning that the ratio of nonresidential to residential clients factored into the reductions. Id. at 214-15. Once instituted, this policy would affect the home-treated mentally retarded as follows: 540 (59%) would lose their vocational services; 550 of 1,800 families would lose support services; and 150 of 1,500 children would lose their early intervention services. App. 829 (Philadelphia Police & Fire Ass’n for Handicapped Children v. City of Philadelphia, 699 F.Supp. 1106, 1107 (E.D.Pa.1988) [hereinafter Dist. Ct. Op. ]). The decision where to make the cuts was an administrative one. When Philadelphia announced the planned cuts, the Philadelphia Police and Fire Association for Handicapped Children, Inc. and thirty-two mentally retarded individuals, later absorbed into a certified class of mentally retarded plaintiffs comprised of all individuals currently or subsequently registered “as clients with retardation with the City of Philadelphia and its Base Services Units,” (collectively, “the class”), sued Philadelphia and the Commonwealth under 42 U.S.C. § 1983. September 15, 1988 Order, App. 170a. They alleged violations of the class members’ fourteenth amendment equal protection and substantive due process rights arising from a reduction of mental retardation services provided to mentally retarded persons living at home by the state and the city due to budgetary shortages. They also alleged that Philadelphia’s planned actions violated state law. The class moved for a temporary restraining order and a preliminary injunction. On July 29, 1988, the district court heard oral argument and issued a temporary restraining order enjoining Philadelphia and the Commonwealth “to continue all services, programs and support... to all retarded persons who were receiving such services on June 1, 1988 on the same basis and to the same extent as such services were provided as of June 1,1988,” effective 12:01 a.m. August 1, 1988. App. 167a. The court next consolidated the requests for preliminary and permanent injunctions and scheduled a trial for September 26, 1988. All issues concerning mentally retarded Philadelphians on the “waiting list” for services were severed, leaving for resolution at trial only those issues concerning the plaintiffs currently receiving community mental retardation services. The parties, through a series of agreements, consented to continue the temporary restraining order in effect through November 17, 1988. The trial was held from September 26 through September 29, after which the court ordered the parties to attempt settlement. The negotiations, however, bore no fruit. Additional argument was heard on November 7. Finally, on November 18, 1988, the district court filed a memorandum and order permanently enjoining Philadelphia and the Commonwealth “from terminating habilita-tive services, including all programs, support services and transportation services to the retarded members of the plaintiff class who live in residences other than Community Living Arrangements and institutions.” App. 861. As under the temporary restraining order, Philadelphia and the Commonwealth were to provide services to each class member identical to those they were receiving on June 1, 1988. App. 861. The court based this order on the conclusion that the proposed reductions in community mental retardation services violated the class members’ equal protection and substantive due process rights under the fourteenth amendment. The court did not address the class’ state law claims against Philadelphia. Philadelphia and the Commonwealth appealed. Shortly thereafter, Philadelphia moved for a stay pending appeal or, in the alternative, for a finding of civil contempt against the Commonwealth. After a January 18, 1989 hearing, the district court granted the alternative motion and ordered the Commonwealth to pay Philadelphia approximately $3.7 million by February 14 and $1.2 million by April 1. Supp.App. 882-83. The order specifies fines to be imposed should the Commonwealth miss either deadline. 705 F.Supp. 1103. The Commonwealth appealed. It also sought and was denied, both by the district court and by this court, a stay pending appeal. As a result, Pennsylvania made its first payment on February 14 and announced that it would make the second payment as well. This court consolidated the three appeals and entertained them on an expedited basis. We have jurisdiction over the appeals of both orders under 28 U.S.C. § 1292(a)(1), which, in part, gives jurisdiction over interlocutory grants of injunctions. See Cohen v. Board of Trustees of the Univ. of Medicine and Dentistry of New Jersey, 867 F.2d 1455, 1466 (3d Cir.1989) (in banc). II. As a threshold position, the class asserts that the Commonwealth and Philadelphia have complied fully with the court's first injunction by funding and providing the services for fiscal year 1989, and that such compliance has rendered this appeal moot, depriving this court of subject matter. jurisdiction to hear it. We disagree. “A case may become moot if (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have ‘completely and irrevocably eradicated the effects of the alleged violation.’ ” Finberg v. Sullivan, 658 F.2d 93, 97-98 (3d Cir.1980) (in banc) (footnote omitted) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979)); accord New Jersey Turnpike Auth. v. Jersey Central Power, 772 F.2d 25, 31 (3d Cir.1985) (quoting Finberg). Full compliance with an injunction amounting to the entirety of the relief sought renders an issue moot. See, e.g., Honig v. Students of Cal. School for the Blind, 471 U.S. 148, 105 S.Ct. 1820, 85 L.Ed.2d 114 (1985); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam). But here, neither Philadelphia nor the Commonwealth has fully complied with the terms of the first injunction. The class argues that the Commonwealth and Philadelphia’s provision of services for fiscal year 1989 constitutes full compliance with the injunction because the trial involved only fiscal year 1989, and thus the injunction only orders the provision of services for that fiscal year. The language of the district court’s order, however, does not limit the effect of the injunction to fiscal year 1989. The terms of the injunction obligate the defendants to continue to provide services to the mentally retarded at June 1988 levels “until otherwise ordered by the Court.” Thus, on its face, the injunction continues in effect beyond fiscal year 1989, and the appeals with respect to it are not moot. The peculiar nature of this claim also provides another ground for subject matter jurisdiction over the appeals from the first injunction. Courts may entertain cases where the controversy in question is moot if the issue is one “ ‘capable of repetition, yet evading review.’ ” DeFunis, 416 U.S. at 318-19, 94 S.Ct. at 1707 (quoting Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973)); accord Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). Under Pennsylvania law, the state allocates funding for care of the mentally retarded on a yearly basis. The class argues that the unusual confluence of events that gave rise to this litigation is unlikely to occur again, placing particular reliance on the proof they introduced at trial. We disagree. Philadelphia has operated its mental retardation system at a deficit for the past seven years. App. 296, 628-29, 636. During fiscal year 1988, the Commonwealth granted Philadelphia’s request for supplemental funds to bail out the city under identical circumstances. App. 835. Because of the one-year duration of the allocations, it is unlikely that the Commonwealth ever could obtain a determination on the merits before the issue became moot. To turn away this appeal on mootness grounds would amount to institutionalizing Philadelphia’s right to exceed with impunity state-approved spending limits. In addition, the facts presented make it likely that the same plaintiffs could be injured similarly in future years. See Weinstein, 423 U.S. at 149, 96 S.Ct. at 349 (traditionally, to avoid mootness, challenged conduct must be so short as to end before any opposition to it can be litigated fully, and “a reasonable expectation that the same complaining party would be subjected to the same action again” must exist). The district court’s contempt order, however, is a different matter. That order required the Commonwealth to make two payments — one on February 14, 1988, and one on April 1, 1988. Both of those payments apparently have been made, and the Commonwealth cannot recoup the money. We therefore will dismiss as moot the appeal with respect to the contempt order and vacate that order. III. Having passed over the class’ jurisdictional threshold, we must address the merits of the appeals from the first injunction. The Commonwealth and Philadelphia challenge the correctness of the district court’s conclusion that the cutbacks draw an arbitrary and irrational distinction between those mentally retarded placed at home and those assigned to group homes. In contrast, the Commonwealth argues that the mentally retarded placed at home constitute a distinct group and, therefore, that the equal protection clause does not come into play. While this contention at best is debatable, we need not address it because the actions planned by Philadelphia and the Commonwealth survive minimum scrutiny, the appropriate test here. Thus, the district court erred in determining that the cutbacks were not executed in a rational way to address a legitimate governmental interest. A. The fourteenth amendment provides in part that “[n]o State shall... deny any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend XIV. Jurisprudence on the equal protection clause recognizes that the act of governing often requires a state to bestow a benefit on some, but not all, of its citizens. See, e.g., Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656-57, 101 S.Ct. 2070, 2077, 68 L.Ed.2d 514 (1981) (fourteenth amendment does not prevent states from making reasonable classifications); Vance v. Bradley, 440 U.S. 93, 96-97, 99 S.Ct. 939, 942-43, 59 L.Ed.2d 171 (1979) (presumption exists in favor of legislatively-made classification if it does not affect a fundamental right or suspect group); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (“ ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.’ ” (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913))). Thus, it is classification-oriented: at a base level, it permits the state to draw distinctions between groups of similarly situated individuals provided that the distinction is rationally drawn to address a legitimate purpose. E.g., Western & S. Life Ins. Co., 451 U.S. at 656-57, 101 S.Ct. at 2076-77; Vance v. Bradley, 440 U.S. at 96-97, 99 S.Ct. at 942-43. Historically, certain classifications have proven suspect or quasi-suspect because they almost always serve no legit-purpose or they impact a group traditionally politically unable to protect itself. See Plyler v. Doe, 457 U.S. 202, 216-17 & n. 14, 102 S.Ct. 2382, 2394-95 & n. 14, 72 L.Ed.2d 786 (1982). Such classifications signal courts asked to review legislation employing them to apply strict or heightened scrutiny to such laws. Id. These suspect or quasi-suspeet classifications, however, represent a very limited exception to the general rule. In Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court held that the classification of mentally retarded does not count among them. Thus, this equal protection claim requires minimal scrutiny. Under minimal scrutiny, to determine whether state action violates the fourteenth amendment’s equal protection clause, courts must ask whether the state rationally could have believed that the distinction drawn would promote a legitimate government objective. Western & S. Life Ins. Co., 451 U.S. at 656-57, 671-72, 101 S.Ct. at 2076-77, 2084-85. The Supreme Court has acknowledged the existence of a presumption in favor of the state’s action in cases involving “social or economic legislation.” E.g., Kadrmas v. Dickinson Public Schools, - U.S.-, 108 S.Ct. 2481, 2489, 101 L.Ed.2d 399 (1988); Bowen v. Gilliard, 483 U.S. 587, -, 107 S.Ct. 3008, 3016, 97 L.Ed.2d 485 (1987); Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254; City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). This presumption imposes upon plaintiffs the heavy burden of making a “clear showing of arbitrariness and irrationality” in order to upset the legislation. Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981); accord Kadrmas, 108 S.Ct. at 2489. Within this context, a statutory classification violates the equal protection clause “only if the statute’s classification ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.’ ” Kadrmas, 108 S.Ct. at 2489 (quoting Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292 (1978) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961))). The fact that the state action was rendered administratively does not invoke intensified scrutiny. See, e.g., New York City Transit Auth. v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (applying minimum scrutiny to agency decision); McCullough v. Redevelopment Auth., 522 F.2d 858, 874-77 (3d Cir.1975) (same). In the instant case, the district court overstepped these bounds when it held the cutbacks arbitrary and irrational. Given the shortage of funds allocated to it by the Commonwealth, Philadelphia had to reduce its spending. Philadelphia’s plan began with the notion that services for those residing in group homes needed to be maintained at its current level. It so concluded because those living in group homes are totally dependent on Philadelphia and the Commonwealth for their care and thus are more likely to require institutionalization should their services be diminished. Minimizing institutionalization clearly is a legitimate state interest. Furthermore, Philadelphia offered testimony to show that a cut in day services to residential clients would not trim the deficit because it would require an equal additional expenditure for day staff at the residential facilities, a service not necessary when full day services are in place. App. 385-86. Thus, it cannot be said that Philadelphia’s decision to limit cuts to those mentally retarded receiving services at home is “wholly irrelevant to the achievement of the State’s objective” of reducing expenditures with minimal disruption to the system. Nonetheless, the class counters that Philadelphia’s argument would be persuasive only if had shown that distributing the cut of habilitative services to both those who live at home and those who live in the group residences would cause the closure of some residences, because only in that case would institutionalization of group home clients be necessary. This argument fails for two reasons. First, its premise is not necessarily true. Philadelphia could have believed that residents who lost habili-tative services and therefore regressed would be more likely to be institutionalized than their counterparts who live with their families. The families, which already have demonstrated their devotion to their retarded children by caring for them at home, might be willing to keep them at home after they have regressed. In contrast, the residences might not be able to continue to care for such residents who, because of their regression, place greater demands on the residential staff. The district court characterized the situation as follows: “[I]t is as if [Philadelphia and the Commonwealth] seek to capitalize upon the love and dedication of the families of the class members.” Dist.Ct.Op. at 1113, App. 844. Whatever our individual beliefs about the desirability of such a policy may be, such reliance on family dedication is not irrational because it may serve to minimize institutionalization. Second, even if the premise of the class’ argument were true, our ability to review Philadelphia’s decision is limited. Under minimum scrutiny, we must uphold Philadelphia’s actions if it reasonably could have thought that residences might have to be closed. The class bears the burden of showing otherwise. The $6.8 million budget shortfall represented 10% of Philadelphia’s total budget for services to the retarded, and the plaintiffs have not shown that it was clear that such drastic cuts could be apportioned to those living in group residences without causing a shutdown of any of those residences. The class also attacks Philadelphia’s methodology in making the cuts as arbitrary. Philadelphia tried to structure the cuts in such a way as to minimize their impact on those mentally retarded living at home. The city targeted soft services for the heaviest cuts, trimming smaller amounts from hard services. The district court faulted this “top-down” method, which reduced types of spending, rather than cutting services on an individual basis determined by need, as irrational and arbitrary. It held that the situation required Philadelphia to have examined at the individual level the effects varying cutbacks would have. Furthermore, it faulted the lack of any “administrative, fiscal, clinical or scientific basis for the budget reduction figures in each category; the officials instead ‘backed into’ the numbers.” App. 843. The equal protection clause, however, tolerates some unfairness and mathematical imprecision. See, e.g., Mathews v. DeCastro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); Price v. Cohen, 715 F.2d 87, 94 (3d Cir.1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1300, 79 L.Ed.2d 700 (1984); McCullough v. Redevelopment Auth., 522 F.2d 858, 876 (3d Cir.1975). Indeed, “[w]e may not compel the state to verify its logical assumptions with statistical evidence.” Price, 715 F.2d at 95 (upholding welfare cuts to a class of needy individuals, even though they were made without individual determinations, clearly were overbroad, and were based on generalizations). Nor may the court hold legislation in violation of the clause just because it believes a better solution exists. New York City Transit Auth. v. Beazer, 440 U.S. 568, 594, 99 S.Ct. 1355, 1370, 59 L.Ed.2d 587 (1979); Dandridge, 397 U.S. at 485, 90 S.Ct. at 1161. It may be the case that Philadelphia made the wrong decision. It costs the city less to have the plaintiffs continue to live at home then it would cost if they needed to be housed in state-sponsored residences, and there is evidence in the record that without the services in question at least some of the plaintiffs no longer will be able to remain at home. See, e.g., App. 182, 329. But this is the type of policy judgment that we are not allowed to impose under rational basis scrutiny. See Beazer, 440 U.S. at 594, 99 S.Ct. at 1370; Dandridge, 397 U.S. at 485, 90 S.Ct. at 1161. Under the standard set out above, we hold that the state rationally could have believed that the classification would promote its legitimate interest in maintaining the integrity of its mental retardation services program; singling out those living at home is not “wholly irrelevant” to this goal. B. The district court held alternatively that intermediate scrutiny should apply because the cut of habilitative services could be analogized to the denial of access to education. The district court read the Supreme Court’s opinion in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), as requiring heightened scrutiny for cases involving the denial of access to education and found that “[h]abilitation is more of a necessity to the mentally retarded than is education for the non-retarded.” Dist.Ct.Op. at 1113, App. 845. Although this analogy between habilitation and education indeed may be apt, the district court erred in stating that under Plyler the state may burden education only if the burden is justified by a substantial state interest. In Plyler, the Supreme Court applied intermediate scrutiny to a statute that prohibited the disbursement of state funds for the education of the children of undocumented aliens. See 457 U.S. at 223-24, 102 S.Ct. at 2398. Plyler, however, expressly reaffirms the Court’s holding in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973), that education is not a fundamental right and therefore that burdens on education are not subject to heightened scrutiny. See 457 U.S. at 221, 102 S.Ct. at 2396. It was the “unique circumstances” of a burden on education coupled with the disadvantaging of children of aliens that led to heightened scrutiny in Plyler, and the Court subsequently has expressly limited Plyler to those circumstances. See Kadrmas v. Dickinson Public Schools, — U.S. -, 108 S.Ct. 2481, 2487-88, 101 L.Ed.2d 399 (1988) (refusing to overturn as violative of equal protection a law authorizing a school bus user fee). Thus, the analogy between education and habilitation cannot help the class. The class members also contend that heightened scrutiny is appropriate because their fundamental rights to family integrity and to freedom from unnecessary institutionalization have been burdened by the cut of habilitative services. The Supreme Court has held that “any classification which serves to penalize the exercise of [a fundamental] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (emphasis in original). Furthermore, the Supreme Court previously has recognized the rights cited by the class to be fundamental. See Moore v. City of E. Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (Constitution protects choices concerning family living arrangements); O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 2494, 45 L.Ed.2d 396 (1975) (continued confinement of involuntarily committed, non-dangerous person capable of living alone or with family violates Constitution). The Supreme Court, however, has made it clear that not every burden on a fundamental right will give rise to heightened scrutiny. If a burden is sufficiently indirect, scrutiny will not be heightened. See Bowen v. Gilliard, 483 U.S. 587, 107 S.Ct. 3008, 3017-18, 97 L.Ed.2d 485 (1987) (upholding amendments that affected eligibility for Aid to Families with Dependent Children benefits, although evidence existed that families had changed their living arrangements in response to the amendments). In the case before us, the district court found that “[without continued support in the form of direct habilitative services or family support services, it will be impossible for [some] members of the class to remain in the family home.” Dist.Ct.Op. at 115, App. 851. But the Supreme Court has stated that the fact “[t]hat some families may decide to modify their living arrangements in [response to government action], does not transform the [action] into an act whose design and direct effect is to ‘intrud[e] on choices concerning family living arrangements.’” See Gilliard, 107 S.Ct. at 3017 (quoting Moore, 431 U.S. at 494, 97 S.Ct. at 1933). The cut in habilita-tive services does not in itself require members of the class to leave their family homes or enter institutions (although it may make it more likely that they will do so). Because the burden on these fundamental rights is indirect, heightened scrutiny is inappropriate on this ground as well. The standards for judicial review of equal protection claims thus dictate that minimum scrutiny be applied to this case. Therefore, the district court was required to uphold a classification made with the rational belief that the classification advances a legitimate governmental interest. Because the classification drawn by the defendants meets this minimum threshold, the district court erred by holding that it did not pass constitutional muster. IV. The Commonwealth and Philadelphia also challenge the district court’s conclusion that the cutbacks violate the substantive due process rights of those mentally retarded persons living at home. That court relied on two lines of cases that recognize certain liberty interests when the state holds an individual in custody or has created a special relationship with an individual. The district court, however, rendered its decision

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?

W. K. FRANK TRUST OF 1931 v. COMMISSIONER OF INTERNAL REVENUE. ROBERT J. FRANK TRUST OF 1931 v. SAME. Nos. 8644, 8646. Circuit Court of Appeals, Third Circuit. Argued Oct. 5, 1944. Decided Nov. 2, 1944. See also, 145 F.2d 413. S. Leo Ruslander, of Pittsburgh, Pa. (Samuel Kaufman and Julian H. Ruslander, both of Pittsburgh, on the brief), for petitioners. Melva M. Graney, of Washington, -D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before GOODRICH and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge. GOODRICH, Circuit Judge. These two cases, which were consolidated both for trial in the Tax Court and for argument here, present the same single legal question. The W. K. Frank Trust of 1931 will be referred to as “the taxpayer” and everything said concerning it is applicable in the case of the Robert J. Frank Trust of 1931 except as to the amount involved. The trust was set up in 1931. Its original corpus was the entire capital stock of W. K. Frank, Inc. This corporation was liquidated in 1938 and taxpayer received as a distribution in liquidation shares of the National Steel Corporation and other securities. In 1939, pursuant to authority conferred in the trust instrument, the trustees donated 181 shares of National Steel Corporation stock to three organizations which were operated exclusively for religious, charitable and educational purposes. These shares were part of the shares which had been received by the taxpayer as a distribution when W. K. Frank, Inc. was liquidated and constituted a part of the corpus of the trust. The contributions were made under resolutions of the trustees to the effect that the value of the shares at the date of distribution should be charged against the income of the trust, the trustees finding their authority in Article VI already quoted in the margin. In the taxpayer’s income tax return for 1939 the market value of the stock at the time the gift was made was claimed as a deduction from gross income under § 162(a) of the Internal Revenue Code, 26 U.S.C.A. Int. Rev.Code, § 162(a). This was disallowed by the Commissioner and the Commissioner’s position was sustained by the Tax Court. ■ The taxpayer’s argument calls attention to the decision in Old Colony Trust Co. v. Commissioner of Internal Revenue, 1937, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169, to show judicial recognition of the policy of giving' liberal interpretation to those sections of (lie tax law which encourage, through deductions, gifts for charitable purposes. It argues that Congressional intent was certainly not to put obstacles in the way of such gifts by a trust since the 15% limitation applicable to individuals does not apply to contributions made by trusts. Since an individual taxpayer could make his gift in the form of property at its then market value and claim his deduction at that figure, the same should he true of the trust. Otherwise, the taxpayer urges, the trust is in a less favorable position than that of the individual taxpayer and such is not in accordance with legislative policy and court interpretation thereof. An unsurmountahle obstacle in acceptance of this argument is the statutory definition of gross income, defined as “gains, profits, and income derived from * * * trades, businesses, commerce, or sales, or dealings in property * * * growing out of the ownership or use of or interest in such property * * * or gains or profits and income derived from any source whatever.” Internal Revenue Code § 22(a), 26 U.S.C.A. Int.Rev.Code, § 22(a). The shares of which the trust made a gift in 1939 were not income but were part of its corpus. They were worth more on the market when the gift was made than they were when the trust got them. Such appreciation in value, unrealized by sale or other disposition, was not gross income. United States v. Safety Car Heating & Lighting Co., 1936, 297 U.S. 88, 99, 56 S.Ct. 353, 80 L.Ed. 500; Eaton v. White, Commissioner of Internal Revenue, 1 Cir., 1934, 70 F.2d 449. That the plain meaning of the statute as worded governs has been declared many times. Helvering, Commissioner of Internal Revenue, v. Hammel et ux., 1941, 311 U.S. 504, 510, 511, 61 S.Ct. 368, 85 L.Ed. 303, 131 A.L.R. 1481; Woolford Realty Co., Inc., v. Rose, Collector of Internal Revenue, 1932, 286 U.S. 319, 327, 52 S.Ct. 568, 76 L.Ed. 1128. The contributions were made under resolutions of the trustees that the value of the shares at distribution should he charged against the income of the trust. But such resolutions cannot convert corpus into income so as to authorize deductions for tax purposes. What the taxpayer did, not what he intended to do is determinative. Commissioner of Internal Revenue v. Merchants’ & Manufacturers’ Fire Ins. Co., 3 Cir., 1934, 72 F.2d 408, 409. Cf. Bank of America Nat. Trust & Savings Ass’n v. Commissioner of Internal Revenue, 9 Cir., 1942, 126 F.2d 48, 52; Wellman v. Welch, 4 Cir., 1938, 99 F.2d 75. This is sufficient to dispose of the case adversely to the taxpayer’s contention. It may be added, however, that the general argument in favor of an interpretation which will aid charitable gifts becomes less plausible when the statutes are carefully examined. Section 23(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 23(o), provides for the charitable gift deductions for individuals. In § 162(a), 26 U.S.C.A. Int.Rev.Code, § 162(a), the deduction for such gifts from the net income of a trust is provided for and is expressly stated to be in lieu of the deduction authorized by § 23(o). If the provisions for charitable contributions by individual taxpayers and by trusts are to be made identical, the Congress, which has made a distinction between the two for many years, can abolish the distinction. But it cannot be done by a court without distortion of obvious Congressional intent. The decision of the Tax Court is affirmed. The W. K. Frank trust contains the following provision: “VI. Anything hereinbefore to the contrary notwithstanding, said Trustees, by majority vote, shall have the right and power at any time and from time to time, in their own uncontrolled discretion, to make distribution of the principal of this trust, in whole or in part, as well as of any or all undistributed income, to my wife or any of my children, or any of the other beneficiaries mentioned in Items EC and III above; to vary or change and fix the share of the income and/or principal of and the manner of paying the same to, any of the beneficiaries (including my wife) hereinabove mentioned, in such manner as they shall deem right and proper, or to eliminate entirely any of said beneficiaries from participation in the income and/or principal of the trust estate; and to choose beneficiaries, whether they be individuals (excluding therefrom, however the Donor) or organizations, associations, corporations or bodies maintained for religious, charitable, philanthropic, educational or other public uses and purposes, to participate in the income and/or principal of the trust estate at such time or times, for such term or terms, and in such manner, proportions, percentages or amounts as they shall deem right and proper.” The Robert J. Frank trust contains a similar provision, but provides this is to be done with the consent of Cecelia K. Frank, Trustor’s wife and one of the beneficiaries. “There shall be allowed as a deduction (in lieu of the deduction for charitable, etc., contributions authorized by section 23 (o) ) any part of the gross income, without limitation, which pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for the purposes and in the manner specified in section 23 (o), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit; * * » The distinction is not a new one. See 6 Merten’s Law of Federal Income Taxation, § 86.69 (1942).

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 "fiduciary, executor, or trustee". 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 "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

LOUDERMILK et al. v. FIDELITY & CASUALTY CO. OF NEW YORK. No. 14633. United States Court of Appeals Fifth Circuit. Nov. 10, 1953. Rehearing Denied Dec. 22, 1953. G. Seals Aiken, Atlanta, Ga., for appellants. . H. D. Russell, T. Reese Watkins, John B. Harris, Jr., Harris, Russell, Weaver & Watkins, Macon, Ga., of counsel, for appellee. Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges. HUTCHESON, Chief Judge. When this cause was here before it was on the appeal of defendants Louder-milk and Brooks, from a summary judgment in plaintiff’s favor. Saying: “This is not the kind of case that can be settled on summary judgment. It is peculiarly the kind of case where the triers of fact whose business it is not only to hear what men say but to search for and find the roots from which the sayings spring, should be afforded full opportunity to determine the truth and integrity of the case.” We rejected the contention respectively of appellants and appellee that the case admitted of determination as matter of law. We then went on to say, “The judgment is reversed and the cause is remanded for a full trial on the issues tendered, including a determination of the single claim of fact tendered in the plaintiff’s petition, whether or not in fact there was an acceptance of the policy, or whether, if there was no acceptance, this was brought about by collusion with the insurance company in an attempt to defraud the plaintiffs in the damage suit, or, if not in collusion with the plaintiff, as a result of the Tingles being overreached by the insurance company and its agents.” That decision and the mandate putting it into effect was and is the law of the case. This time the same defendants are appealing from a jury verdict in plaintiff’s favor rendered after a full trial, conducted painstakingly and precisely in accordance with the court’s decision and mandate and upon evidence not substantially different from that which we held on the former appeal forbade the entry of judgment as matter of- law and required a jury verdict. It will not do then, as appellants endeavor to do, to urge upon us that the case should not have been submitted to the jury for their verdict but should have been withdrawn from their consideration by the direction of a verdict in defendants’ favor. We, therefore, reject, as presenting nothing of substance for our consideration, appellants’ points one, two, eleven, twelve, and nineteen, on which they rely for reversal and rendition, that the court erred in not directing a verdict in their favor. We turn then to appellants’ claims of procedural error to determine whether, considered severally and as a whole, they make a showing of error requiring reversal of the judgment and remand of the cause for trial anew. Testing each of these claims carefully for error by an examination of the record as a whole, we are of the clear opinion, for the reasons hereafter briefly stated, that, taken singly or as a whole, they make no showing of reversible error. On the contrary, we think the record makes crystal clear that the district judge with scrupulous fidelity to the teachings of our decision and the authority of our mandate, and with commendable patience, acumen and restraint, conducted the trial throughout with fairness and correctness and with an eye single to conducting it as near as might be in accordance with the law as our opinion has declared it and our mandate has made binding upon him. In the light of the showing in this regard made by the record, including particularly the elaborate and detailed instructions given in the charge, most, if not all, of the complaints leveled at the conduct of the trial appear to tithe mint, anise and cumin, neglecting the weightier matters of the law. A specific word or two about these claims of error will, we think, make this clear. Four of the claimed errors, appellants’ brief points five, six, seven, eight and nine, deal with charges, two requested by the plaintiff and given by the district judge, and three requested by defendants and refused. As to those requested by defendants and refused, it is sufficient to say that, assuming without deciding that they were correct charges, the court’s general charge fully, fairly and faithfully presented all the issues in the case, and the failure to give the requested charges could not have been prejudicial error. As to those requested by the plaintiff and given, it is quite clear that they were correct statements of law and that charges of the kind given were called for on the record in the case. With respect to the procedural matters which appellants labor the most, appellants’ brief points fourteen, sixteen and seventeen, the action of the court in confining the trial of the case to the issues germane to it by excluding from it evidence as to matters which were properly triable only in the damage suits which appellant had brought against the Tingles, it is sufficient to say that there was no error in any of the complained of actions and rulings. Indeed, they were in exact accord with the opinion of this court in Royal Indemnity v. Rex-ford, 5 Cir., 197 F.2d 83, in which a judgment in a case similar to this one was reversed because the court had admitted evidence relevant only in the damage suit. Moreover the record shows plainly that defendants’ counsel expressly agreed with the substance of the ruling of the district judge that evidence of the kind he now makes the subject of his claim of error was not admissible or proper. As to appellants’ complaints that plaintiff’s counsel, in his opening statement, was allowed to make improper and prejudicial statements, and the defendants’ counsel, in their opening statement, were unduly limited, an examination of the record wholly refutes this claim. As to the statement of the counsel for the plaintiff, no objection whatever was made to it, and as to the action of the court when objection was made in the course of the statement of defendants’ counsel, nothing could be farther from the real truth of the matter than the claim that there was undue interference with defendants’ counsel and undue prejudice visited on him by the court’s action. The same lack of merit marks the claims of error dealt with in points thirteen, fifteen, and eighteen; point thirteen, the action of the court in confining defendants’ examination of witnesses to issues which were within the scope of this trial as distinguished from the trial of the damage suit; point fifteen, the court’s refusal to exclude Miss Tingle’s statement that in her opinion the Tingles were not at fault for the accident; and point eighteen, directed at the remark of counsel for appellants made during examination of one of defendants’ witnesses upon the issue of the amount of the fee that should be allowed for defending the action. None of these objections, in short, go to matters of serious moment. Under the rule controlling this court in hearing appeals, all of these claims if not frivolous, are too unsubstantial to form the basis of a reversal of a judgment in a cause carefully tried as this one was under the' directions of a mandate issued on the former appeal. In Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30, 33, this court, thus stated the rule controlling here: “This court, as to law cases, is a court of error. We do not retry the case. We review the record made in it for reversible error, error by the judge in conducting or failing to conduct the trial, which has, by permitting the case to get out of bounds, prejudiced the just result. In this review we are guided by [Sec. 391, Title 28 U.S.C.A.] We-do not reverse cases for insubstantial error. Abstract inerrancy is. hardly possible in the trial of a case' in the federal court; it is never an essential to a valid trial there. Jennings v. U. S., 5 Cir., 73 F.2d 470; Community Natural Gas Co. v. Henley, 5 Cir., 54 F.2d 59. Too much is-said and done about too little in the heat and hurry of a trial, for it all to. be important. Things of no moment, in their transpiring are not made momentous merely by making record of them. Therefore, though the District Judge is an administrator primarily charged with the just conduct of the trial, he may not ordinarily be put in error merely because an aberration from trial rules. has occurred. It is the duty of counsel by objection to call such threatened or actual departure to the judge’s attention, and invoke his corrective action, and, if overruled, to make it appear that prejudice has resulted.” No reversible error having been made to appear, the judgment is Affirmed. . Loudermilk v. Fidelity & Casualty Co., 5 Cir., 199 F.2d 561, 565. . This section provides: “All United States courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of' the entire record before the court, without regard to technical errors, defects,, or exceptions which do not affect the substantial rights of the parties.” [Now Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.] Cf. Gillis v. Keystone Mutual Casualty Co., 6 Cir., 172: F.2d 826, at page 830, 11 A.L.R.2d 455.

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?

In re Albert H. CALDWELL, Debtor. James E. HARDIN, James C. Hardin, and Ralph Majors, Plaintiffs-Appellees, Cross-Appellants, v. Albert H. CALDWELL, Defendant-Appellant, Cross-Appellee. Nos. 88-6404, 88-6405. United States Court of Appeals, Sixth Circuit. Argued Nov. 9, 1989. Decided Feb. 9, 1990. Ann C. Short, Herbert S. Moncier, Knoxville, Tenn., for James E. Hardin, James C. Hardin and Ralph Majors. Wade M. Boswell, Knoxville, Tenn., for Albert H. Caldwell. Before KRUPANSKY and NELSON, Circuit Judges, and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. For a second time this court has been asked to review a decision to grant the debtor’s motion to convert his petition in bankruptcy to one under Chapter 13. The bankruptcy court ruled that the debtor, Albert Caldwell, had acted in good faith in so moving, but the district court remanded the case for reconsideration of this issue. Upon appeals by both sides, we reversed the district court and directed it to determine whether the bankruptcy court’s decision in holding that the debtor acted in good faith and in granting his petition was clearly erroneous. In re Caldwell, 851 F.2d 852 (6th Cir.1988). The district court then concluded that the bankruptcy court was clearly erroneous in its good faith determination, and should not have allowed Caldwell’s petition under Chapter 13. We agree, and affirm the district court. I This case arises from most unusual circumstances. The Hardins and Majors are judgment creditors following a Tennessee state court judgment against Caldwell for false arrest, malicious prosecution, and false imprisonment. The state court of appeals affirmed the judgment but reduced the amount of punitive damages; Caldwell then appealed to the Tennessee Supreme Court, which denied review. The amount of the debt now is more than $50,000, which includes compensatory and punitive damages and interest. (The bizarre story which culminated in Caldwell’s bankruptcy, known locally in Knoxville as the “Santa Claus caper,” makes interesting reading; see 851 F.2d at 855-56). Caldwell did not attempt to pay the judgment and filed a bankruptcy petition under Chapter 7. These creditors sued to determine the status of their debt. The bankruptcy court ruled that the debt was not dischargeable because it was compensation for a willful and malicious injury. See 11 U.S.C. § 523(a)(6) (1979). Caldwell did not appeal. Two months later, Caldwell moved to reopen his bankruptcy matter and convert it to Chapter 13, under which it is possible to discharge such a debt to the judgment creditors. Caldwell first proposed to pay the joint creditors $400 for 36 months, plus $6,300 from Caldwell’s individual retirement account. After another hearing, the bankruptcy court approved a plan under which Caldwell agreed to pay $550 for 36 months — $19,800—to discharge the unsecured debt of slightly more than $50,000. Only the joint creditors were to be paid under this plan; Caldwell arranged to pay his secured creditor separately. Caldwell is 54 years old, in good health, and has no plans to retire. He earns slightly more than $26,000 per year after income taxes as an assistant chief of the Knoxville police department, and holds a current real estate license. Despite the judgment creditors’ objections, the bankruptcy court held that Caldwell had proposed his plan in good faith and allowed him to convert to Chapter 13. Thus, by far the major portion of the debt would be discharged upon completion of the plan. The judgment creditors appealed to the district court, arguing, among other things, that Caldwell had not acted in good faith. The district court vacated the bankruptcy court’s decision and directed it to reconsider this question. Caldwell then appealed to this court. We held that it was the function of the district court to determine whether the finding of good faith was, or was not, clearly erroneous, and remanded the case for clarification. Caldwell, 851 F.2d at 860. On remand, the district court concluded that the bankruptcy court was clearly erroneous to have found, as a question of fact, that Caldwell had acted in good faith, and so it reversed that court and thereby denied Caldwell’s application to convert to Chapter 13. Caldwell again appeals. The joint creditors also cross-appeal, but because we agree with the district court’s conclusion on the question of good faith, we do not address these other issues. II We begin with the proposition that a debt which follows a “willful and malicious injury” cannot be discharged under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 523(a)(6) (1979). But such a debt can be discharged under Chapter 13, which allows the debtor to repay his obligation over time from his disposable income. See 11 U.S.C. § 706(a) (Supp.1989). Chapter 13 allows the debtor to “work off” his debt rather than lose everything. See In re McAloon, 44 B.R. 831, 835 (Bankr.E.D.Va.1984) (purpose of Chapter 13 is to allow debtors to reorganize rather than liquidate). The debtor may proceed under Chapter 13, with the court’s permission, if his plan meets the six criteria of 11 U.S.C. § 1325(a), and if he proposes payments which meet the requirements of 11 U.S.C. § 1325(b). The most important of the six criteria of § 1325(a) for purposes of this case is that the debtor propose a plan in good faith. 11 U.S.C. § 1325(a)(3). Discharge under Chapter 13, though a salvation for some debtors, is a loophole for others. The good faith, or lack of it, with which the plan is proposed, distinguishes a sincere effort at repayment from a false one. Courts should not approve Chapter 13 plans which are nothing more than “veiled” Chapter 7 plans. In re Girdaukas, 92 B.R. 373, 377 (Bankr.E.D. Wis.1988). A Chapter 13 plan which proposes to repay only a small portion of a debt which could not be discharged under Chapter 7 deserves “particular scrutiny.” In re Warren, 89 B.R. 87, 95 (Bankr. 9th Cir.1988). The party who seeks a discharge under Chapter 13 bears the burden of proving good faith. Girdaukas, 92 B.R. at 376. Best efforts under 11 U.S.C. § 1325(b), without more, are not enough. Id. at 377. This court has suggested a twelve-part test to determine whether a debtor’s Chapter 13 plan is proposed in good faith. See In re Okoreeh-Baah, 836 F.2d 1030 (6th Cir.1988). Those criteria are: (1) the amount of the proposed payments and the amount of the debtor’s surplus; (2) the debtor’s employment history, ability to earn and likelihood of future increase in income; (3) the probable or expected duration of the plan; (4) the accuracy of the plan’s statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court; (5) the extent of preferential treatment between classes of creditors; (6) the extent to which secured claims are modified; (7) the type of debt sought to be discharged and whether any such debt is nondischargeable in Chapter 7; (8) the existence of special circumstances such as inordinate medical expenses; (9) the frequency with which the debtor has sought relief under the Bankruptcy Reform Act; (10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; (11) the burden which the plan’s administration would place upon the trustee; and, (12) whether the debtor is attempting to abuse the spirit of the Bankruptcy Code. See 836 F.2d at 1032; In re Estus, 695 F.2d 311, 317 (8th Cir.1982); Matter of Kull, 12 B.R. 654, 659 (Bankr.S.D.Ga.1981). Like the district court, we review the bankruptcy court’s determination of good faith for clear error. Matter of Metz, 820 F.2d 1495, 1497 (9th Cir.1987); In re Baker, 736 F.2d 481, 482 (8th Cir.1984). Rather than a good faith effort to repay this debt, we see an unbroken pattern of deceit and delay. Caldwell has evaded questions about federal tax refunds he received, and did not disclose a personal IRA containing $6,300 until the bankruptcy trustee discovered the account at his first meeting with Caldwell and the creditors. Caldwell also disclaimed any ownership in his mother's house, even though he is actually a one-quarter owner and has been since the house was bought almost a decade ago. In addition, Caldwell removed his name from a joint credit union savings account containing at least $1,700 five months before he filed for bankruptcy, leaving his wife as sole owner. The couple had held the account jointly for 14 years, depositing money in it which had been deducted from Mr. Caldwell’s paycheck. Under Chapter 13, Caldwell has proposed to pay $19,800, or only 36.6% of a $50,000 plus debt. We also note that he proposed to pay the judgment creditors for only three years, the statutory minimum. Section 1322(c) of the Bankruptcy Code requires that a debtor in Chapter 13 repay his creditors over three years, but that period can be extended, at the debtor’s request and with the court’s permission, to as long as five years. Caldwell could have repaid a much larger portion if he had requested to pay it over five years rather than three. He was not required to do so, but the length of repayment is a relevant indicator of the debtor’s good faith, see In re Kourtakis, 75 B.R. 183, 188 (Bankr.E.D.Mich. 1987), and is one more factor which suggests to us that Caldwell is not sincere. Caldwell has assiduously tried to avoid his debt to the judgment creditors. After the damage award was entered, Caldwell declared bankruptcy before he had made any attempt to pay what he owed. He tried to discharge the debt under Chapter 7, and when it was declared nondischargeable, made three monthly payments under threat of garnishment before he sought to discharge the debt under Chapter 13. Caldwell has admitted many of his assets only when forced to by the creditors, and has said that he “detests” the judgment against him. He contends that this is not bad faith. We believe it is. See id. The bankruptcy court opined that it “exhaustively reviewed” the “totality of the circumstances.” It stated that it considered the circumstances in which Caldwell incurred the debt, the percentage of the debt he proposed to repay, the period of repayment, Caldwell’s employment and assets, and his filing under Chapter 7. It reviewed these factors in very general terms, and concluded that Caldwell had acted in good faith. The district court, with greater specificity, reviewed them and found that he had not. The bankruptcy court made much of the point that an attempt to discharge a debt under Chapter 13 which is not dischargeable under Chapter 7 is not conclusive evidence that the Chapter 13 plan was not made in good faith. We agree. It is not conclusively bad faith for a debtor to seek to discharge a debt incurred through his own criminal or tortious conduct, but that factor may be considered. See Matter of Chaffin, 836 F.2d 215, 216 (5th Cir.1988); see also 11 U.S.C. § 1328(a). Although we consider as a factor what Caldwell did to incur the judgment, it is what he has done since the judgment to avoid paying it that is most important. Our decision rests on much more than the fact that this debt is not dischargeable under Chapter 7; it rests on Caldwell’s unrelenting efforts to reduce the assets available to his creditors, to make only minimal payments and over the shortest possible time, and to make even those only when threatened with garnishment. The plan before us was not tendered in good faith, but was one more effort to avoid paying the judgment creditors. As the district court observed, Caldwell is not the type of debtor whom the bankruptcy laws were meant to protect. See also Public Finance Corp. v. Freeman, 712 F.2d 219, 221 (5th Cir.1983) (court should determine whether debtor is attempting “to abuse the spirit of the Bankruptcy Code”). We agree that the bankruptcy court’s decision that Caldwell had acted in good faith was clear error and so we AFFIRM the decision of the district court. . Caldwell filed this secured claim on behalf of the Internal Revenue Service for $2,627.18 owed because of the early distribution of his IRA. See Bankr.R. 3004 (Supp.1989). . These requirements are that the debtor pledge all his disposable income to repayment for at least three years, and that his unsecured creditors receive at least as much under Chapter 13 as they would under Chapter 7. . Although Caldwell contended that his wife was always the principal owner of the account because her name was listed first in the records, Mrs. Caldwell testified that the real reason her husband removed his name was to ensure that she would still have the money after the judgment was paid.

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.

Dominick MARINO, Appellant, v. Louis NEVITT, George Novitsky and Carl Lake, Individually and as Officers and Directors of N & L, Inc., a Pennsylvania Corporation, and N & L, Inc., Appellees. No. 13972. United States Court of Appeals Third Circuit. Argued Nov. 9, 1962. Decided Jan. 2, 1963. Harry Alan Sherman, Pittsburgh, Pa., for appellant. Joseph Martin Gelman, Pittsburgh, Pa. (Saul Davis, Pittsburgh, Pa., on the brief), for appellees, Carl Lake and N & L, Inc. Before GANEY and SMITH, Circuit Judges, and AUGELLI, District Judge. WILLIAM F. SMITH, Circuit Judge. The original complaint in this action is in one count and states a single claim for damages based on the alleged tortious conduct of the defendants. This complaint, although inartistically drawn, sufficiently alleges that the defendants, pursuant to an unlawful conspiracy and in furtherance of a scheme to defraud: injured the plaintiff in his business, divested him of his interest in three separate contracts, and deprived him of personal property consisting of certain motor equipment. The contracts were with the Boroughs of West Homestead, White Oak and Forest Hills. The first of these contracts was with the plaintiff individually and the others were with a partnership of which he was a member. The action came before the court below on the motion of the defendants to dismiss the complaint for failure to state a claim upon which relief could be granted and, in the alternative, to dismiss certain allegations of the complaint. The court heard argument and thereafter filed its opinion and entered the following order: “And Now, this 1st day of September 1961, it is Ordered and Directed that the motions to dismiss filed by the defendants be and the same hereby are granted, and those claims based on either the White Oak or Forest Hills contracts dismissed. Plaintiff may file within twenty (20) days from the date hereof an amended complaint setting forth in a short and plain statement any remaining claims asserted in his individual capacity.” The plaintiff filed an amended complaint, the allegations of which, with one exception, are identical with those contained in the original complaint. The defendants again moved to dismiss the complaint and, in the alternative, to dismiss certain allegations thereof. The court heard argument and thereafter filed its opinion and entered an order, which is the same as the original in tenor and effect. The plaintiff promptly filed a “Supplemental Amended Complaint,” to which the defendants addressed a motion for dismissal. A hearing on the motion is held in abeyance pending disposition of the present appeal. While the action was still pending the court below, on motion of the plaintiff, entered an order which reads as follows: “And now, January 15, 1962, the within petition having been presented in open Court, on motion of Harry Alan Sherman, attorney for petitioner, it is hereby ordered and directed that the orders of September 1, 1961, heretofore entered, and December 28, 1961, dismissing plaintiff’s complaint as to the White Oak and Forest Hills contracts, be opened and, the Court being satisfied that the plaintiff’s rights to said contracts or to damages for deprivation thereof are not supportable or provable as a matter of law, does expressly determine that there is no just reason for delay in entering judgment for defendants upon said claim, does hereby expressly direct entry of final judgment dismissing the White Oak and Forest Hills claims, preserving to plaintiff his rights remaining under the complaint and amended complaint, and his rights of review or appeal. The order of December 28, 1961, as to the remaining claims to stand.” The present appeal followed the entry of this last order. We do not reach the questions raised on this appeal because we are of the view that the order and the judgment entered pursuant thereto are not appeal-able at this time. The normal jurisdiction of courts of appeals is limited to the review of final judgments. 28 U.S.C.A. § 1291; Catlin v. United States, 324 U.S. 229, 233, 234, 65 S.Ct. 631, 89 L.Ed. 911 (1945). This jurisdiction is not enlarged by amended rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). Notwithstanding the provisions of the said rule, finality of judgment is still a prerequisite to the right of appeal. The complaint in this action, and the amendment thereto, state a single claim comprised of several elements of damage. The effect of the court’s decision was to eliminate two of these elements as “not supportable or provable as a matter of law.” The decision was a partial adjudication and therefore lacked the finality prerequisite to the right of appeal. Schwartz v. Eaton, 264 F.2d 195 (2d Cir., 1959); Panichella v. Pennsylvania Railroad Company, 252 F.2d 452 (3rd Cir., 1958); King v. California Company, 224 F.2d 193 (5th Cir. 1955), cert. den. 352 U.S. 1007, 77 S.Ct. 569, 1 L.Ed.2d 551 (1957); Gold Seal Co. v. Weeks, 93 U.S.App.D.C. 249, 209 F.2d 802 (1954), and the cases hereinafter cited. See also 6 Moore’s Federal Practice, 238, jf 54.33. Such decisions are reviewable only on appeal from the final judgment and, conversely, are not reviewable otherwise. Ibid. The application of amended rule 54(b) is limited “to multiple claims actions in which ‘one or more but less than all’ of the multiple claims have been finally decided and are found otherwise to be ready for appeal.” Sears, Roebuck & Co. v. Mackey, supra. A special order entered under the rule is a nullity in an action in which the decision of the district court involves nothing more than a partial adjudication on a single claim. Brandt v. Renfield Importers,. Ltd., 269 F.2d 14 (8th Cir., 1959); United States v. Burnett, 262 F.2d 55 (9th Cir., 1958); Panichella v. Pennsylvania Railroad Company, supra. A special order entered under such circumstances does not confer jurisdiction on the court of appeals. Ibid. We conclude that the special order in this case was improvidently entered and should be vacated. This appeal will be dismissed and the action will be remanded to the District Court with directions to vacate the said order.

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?

COMMONWEALTH OF MASSACHUSETTS et al. v. UNITED STATES; UNITED STATES v. COMMONWEALTH OF MASSACHUSETTS et al. Nos. 4193, 4209. Circuit Court of Appeals, First Circuit. April 2, 1947. Alfred E. LoPresti, Asst. Atty. Gen. (Clarence A. Barnes, Atty. Gen., and John A. Brennan, Chief Counsel, Division of Employment Security, of Boston, Mass., on the brief), for Commonwealth of Mass., intervenor, and Carlton W. Spencer, defendant. Norman S. Altman, Sp. Asst. to the Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and Helen R. Carloss, Sp. Asst. to the Atty. Gen., and George F. Garrity, U. S. Atty., and Thomas P. O’Connor, Asst. U. S. Atty., both of Boston, Mass., on the brief), for the United States. Before DOBIE (by special assignment) MAHONEY and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. . This case is here on cross appeals from the judgment of the district court. The question involves the application of Revised Statutes, § 3466 (1898), 31 U.S.C.A. § 191, to payment of competing claims of the United States and the Commonwealth of Massachusetts against an insolvent taxpayer for unemployment compensation taxes under Title IX of the Social Security Act of 1935, 49 Stat. 620, 639, 26 U.S.C.A. Int. Rev.Code, § 1600 et seq., and the Massachusetts Unemployment Act. There is no dispute as to the facts which are briefly as follows: The Somerville Sales & Service, Inc., being insolvent in 1939 made a common law assignment for the benefit of creditors. The Commissioner of Internal Revenue filed with the assignee a claim against the assignor for 1938 federal unemployment compensation taxes under Title IX of the Social Security Act in the sum of $963.08, for 1938 and 1939 federal insurance contributions taxes under Title VIII of said Act, 26 U.S.C.A. Int.Rev.Code, § 1400 et seq., in the sum of $690.05, and for 1939 capital stock tax in the sum of $21. The Commonwealth of Massachusetts filed with the assignee its claim for state unemployment taxes under Massachusetts Unemployment Compensation Act in the sum of $803.72, representing contributions for 1938 and 1939. On October 6, 1939 the assignee paid out of the sum of $1,135.11 which he had realized from the sale of the assets of the assignor $803.72 in full payment of the claim of the Commonwealth of Massachusetts and the remainder of $331.39 he paid to the Collector of Internal Revenue. This latter sum was credited to Title VIII taxes due for 1938 and there remained unpaid the sum of $1,342.74 with interest. Massachusetts has agreed to pay over the above mentioned $803.72 to the United States if the payment to it was in disregard of the priority of the United States under Rev.Stat. § 3466, and the United States has agreed that if it prevails the judgment shall be limited to $803.72. The lower court held that the United States had priority as to its capital stock taxes, its Title VIII taxes, and 10 per cent of its Title IX taxes, but that it could not recover 90 per cent of its Title IX taxes, stating that the taxpayer or his assignee had the alternative right to pay the 90 per cent of his obligation under Title IX to an approved state unemployment fund. It cited Illinois ex rel. Gordon v. United States, 1946, 328 U.S. 8, 66 S.Ct. 841, in support of its decision as to capital stock taxes and Title VIII taxes but said that the Supreme Court had no occasion in that case to consider the problem whether as to the 90 per cent of the amount due for Title IX taxes the statute had not given the taxpayer the option of making payment to a state instead of to the United States. Since the lower court handed down its decision in the instant case, the Supreme Court in People of State of Illinois ex rel. Gordon v. Campbell, 67 S.Ct. 340, restated its position as follows: “Illinois ex rel. Gordon v. United States, 328 U.S. 8, 66 S.Ct. 841, held that in circumstances which called into application Rev.Stat. § 3466, 31 U.S.C. § 191, 31 U.S.C.A. § 191, the claims of the United States for federal insurance contributions taxes under Title 8 of the Social Security Act, 49 Stat. 620, 636, 42 U.S.C.A. § 1001 et seq., and for federal unemployment compensation taxes under Title 9 of the Social Security Act, 49 Stat., at page 639, 42 U.S.C.A. § 1101 et seq., had priority over claims of Illinois for taxes under its Unemployment Compensation Act. That decision is controlling, of course, upon the same feature of this case iff Under said § 3466 it is stated that where a debtor is insolvent the debts due the United States must be paid first. There is no question but what these are debts due the United States. “The words of Section 3466 are broad and sweeping and, on their face, admit of no exception to the priority of claims of the United States.” United States v. Waddill, Holland & Flinn, Inc., 1945, 323 U.S. 353, 355, 65 S.Ct. 304, 306, 89 L.Ed. 294. It has not been decided that taxes under Title IX of the Social Security Act are an exception which can be read into this statute and we do not think that they are. Nor do we think that § 902 amended by implication said § 3466. Recently the Supreme Court in United States Department of Agriculture v. Remund, 67 S.Ct. 891, 894, has said: “We reiterate what was said in United States v. Emory, 314 U.S. 423, 433, 62 S.Ct. 317, 322, 86 L.Ed. 315, ‘Only the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466/ ” “We agree that the social security legislation provides a method for accomplishing state and federal unemployment relief systems, integrated in plan, function, and purpose, and that sound state systems are essential to complete success of the Congressional plan. But we cannot agree that Congress thereby intended in effect to amend Section 3466, by making its priority provisions inapplicable to state unemployment tax claims.” Illinois ex rel. vior-don v. United States, supra, 328 U.S. at page 11, 66 S.Ct. at page 843. There is nothing here to show any intention on the part of Congress that only 10 per cent of the taxes under Title IX of the Social Security Act should be collected by the United States from insolvents. The words of the Act do not show such intention and the court has no power to apply what it may deem equitable principles in the distribution of an estate when Congress has formulated the rule that must be applied. In re White Plains Oil Corp., 1941, 287 N.Y. 141, 38 N.E.2d 472. The taxpayer was clearly insolvent at the time it made the assignment for the benefit of creditors. The total amount of its assets was $1,135.11 and apart from all other claims filed with the assignee the claim of the United States alone amounted to $1,674.13. The claim for taxes under Title IX was $963.08. The payment of Title VIII taxes and capital stock taxes would leave a balance in the hands of the as-signee of only $424.06. This was clearly insufficient to pay Title IX taxes and the full amount of those taxes had to be paid before any payment could be made to the Commonwealth of Massachusetts. Under § 902 of the Act the only way in which a taxpayer may obtain a credit against Title IX taxes would be to make actual payment to a state. In this case such a payment could not be made until the United States claim was paid. By paying the United States as required under § 3466 there would be nothing left with which to pay Massachusetts. Hence there is no way by which a credit against Title IX taxes could be obtained. The determination by the district court that the question was one of meeting alternative obligations was error. There was no such alternative obligation here. Section 3466 commanded the payment to the United States of debts due it and therefore there was no balance left to meet any state payment with which to obtain such credit. The judgment of the District Court -is affirmed as to Title VIII taxes and capital stock taxes and is reversed as to Title IX taxes, and the case is remanded to the District Court .for judgment in conformity with this opinion. “Sec. 3466. Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which, a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”

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?

ZOTOS INTERNATIONAL, INC., Appellant, v. Frank E. YOUNG, et al. No. 86-5614. United States Court of Appeals, District of Columbia Circuit. Argued April 30, 1987. Decided Oct. 2, 1987. William I. Althen, Washington, D.C., for appellant. Melvin S. Drozen, Associate Chief Counsel for Enforcement, Food and Drug Admin., with whom Thomas Scarlett, Chief Counsel, Food and Drug Admin., Rockville, Md., Richard K. Willard, Asst. Atty. Gen., John R. Fleder, Director, Office of Consumer Litigation and Gerald C. Kell, Dept. of Justice, Washington, D.C., were on the brief, for appellees. Before MIKVA and WILLIAMS, Circuit Judges, and WEIGEL, Senior District Judge. Of the United States District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Circuit Judge WILLIAMS. WILLIAMS, Circuit Judge: Zotos International, Inc. manufactures a number of hair care products, using an ingredient whose identity it contends is a trade secret — hereafter referred to as the “secret ingredient.” Regulations promulgated by the Food and Drug Administration under § 5(c)(3)(B) of the Fair Packaging and Labeling Act (the “Act”), 15 U.S.C. § 1454(c)(3)(B) (1982), require that cosmetics bear labels listing their ingredients in descending order of predominance, but permit a manufacturer to withhold the name of any ingredient whose identity is a trade secret. 21 C.F.R. §§ 20.61, 701.3(a), 720.8 (1987). In 1976 Zotos sought, and was denied, trade secret status for the secret ingredient. Zotos appealed the denial in federal district court, attacking both the merits of the determination and the constitutionality of the FDA’s procedures. The district court invalidated the procedures on due process grounds and remanded the matter for further proceedings. Zotos International, Inc. v. Kennedy, 460 F.Supp. 268 (D.D.C.1978) (“Zotos I”). In response to the court’s opinion in Zotos I the FDA revised its procedures for handling trade secret applications. See 21 C.F.R. § 720.8 (1987). Applying these revamped procedures to Zotos’s resubmitted application, the FDA again determined that the ingredient was not a trade secret. Zotos again sought judicial relief. The district court referred the matter to a magistrate, who rejected Zotos’s claims. The district court affirmed on the basis of the magistrate’s report. On appeal to this court, Zotos presses three attacks: (1) the denial is arbitrary and capricious; (2) the FDA’s revamped procedures are facial violations of the due process clause of the Fifth Amendment; and (3) the FDA’s procedures are unconstitutional as applied in this case. We agree with Zotos that the denial is arbitrary and capricious and remand to the agency for further proceedings. We do not reach the due process claims. I. Arbitrary and Capricious Character of the FDA Decision Appellant’s substantive attack on the FDA decision proceeds under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1982), authorizing the court to set aside an agency decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). (The substantial evidence test is inapplicable as no statute prescribes a hearing on the record, see id. § 706(2)(E)). The standard is a narrow one, but the agency must have examined the relevant data and “articulate[d] a satisfactory explanation for its action including ‘a rational connection between the facts found and the choice made.’ ” Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (citations omitted). We must, of course, give deference to the agency’s expertise in technical matters, FPC v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 643-44, 30 L.Ed.2d 600 (1972), but where its position “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” we must reverse, State Farm, 463 U.S. at 43, 103 S.Ct. at 2866-67. Our inquiry into the facts is to be “searching and careful.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). For protection of trade secrets under the Fair Packaging and Labelling Act, the FDA has adopted the definition offered by the original Restatement of Torts, § 757 comment b (1939). Thus any formula, pattern, device, or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it qualifies as a trade secret. 21 C.F.R. § 20.61(a) (1987). And whether an ingredient meets this standard turns on an analysis of six factors that the Restatement identified as relevant: (1) The extent to which the identity of the ingredient is known outside petitioner’s business; (2) The extent to which the identity of the ingredient is known by employees and others involved in petitioner's business; (3) The extent of measures taken by the petitioner to guard the secrecy of the information; (4) The value of the information about the identity of the claimed trade secret ingredient to the petitioner and to its competitors; (5) The amount of effort or money expended by petitioner in developing the ingredient; and (6) The ease or difficulty with which the identity of the ingredient could be properly acquired or duplicated by others. 21 C.F.R. § 720.8(b) (1987). Zotos discussed each of the six factors in making its case for trade secret status, claiming that they uniformly pointed to such a finding. Joint Appendix (“J.A.”) at 4-10, 13-17, 28-52. The FDA accepted Zotos’s representations “as true” with respect to the first five factors, but rejected its position on the sixth. J.A. at 54. It found that a knowledgeable chemist could “easily” identify the ingredient’s chemical composition by “reverse engineering,” i.e., working back from one of Zotos’s finished products to its constituent elements. See J.A. at 54. In finding reverse engineering readily feasible, the FDA acknowledged that an inquiring chemist who had to start the process from scratch would face an overwhelming number of variables. It found, however, that the chemist could, and would, use certain publicly available information as a shortcut. The FDA’s explanation cited the particular documents it believed a literature search would reveal, and explained step-by-step how a knowledgeable chemist would employ them. J.A. at 53-55. Looked at in isolation, this finding may well meet the standards of reasoned decisionmaking. How a chemist would go about analyzing a product is a highly technical matter in which the agency is expert. Zotos acknowledges the literature references relied upon by the FDA. It contests the ease with which the probing chemist would draw the inferences suggested by the FDA, but, given our hopeless ignorance of the subject matter, it would be most difficult for us to find the FDA’s rejection of these arguments arbitrary if the parties’ dispute were only a scientific one. See Baltimore Gas & Elec. Co. v. Natural Resources Defense Counsel, 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983). The ease with which a competitor can identify Zotos’s secret ingredient, however, is not a purely scientific matter. In applying the six-factor Restatement test, the FDA has accepted Zotos’s contentions that exclusive possession of the ingredient is extremely valuable and that the secret ingredient’s identity is known only to Zotos. See J.A. at 54. The totality of the FDA’s findings here create a condition of cognitive dissonance: if the identity of the ingredient is of great value, and is readily ascertainable, why has no one bothered to identify it in the 20-plus years that Zotos has profited from its exclusive use? FDA has offered no solution to this mystery, nor even, so far as appears, acknowledged its existence. Of course in any case where an ingredient’s identity remains secret, we may infer that competitors have not found it worthwhile to engage in the research activities necessary for an identification. It does not follow either that all such items qualify as trade secrets — a rule which would make the first Restatement factor dispositive — or that the agency bears a special burden in establishing ease of discovery. But the FDA in adopting its trade secret regulations has implicitly found that the statute does not allow it to readily force the disclosure of highly valuable information; the fourth Restatement factor focuses on value to the manufacturer and its competitors. Implicit in this test is some sort of balance between the manufacturer’s interest in secrecy and the public’s in disclosure. Where the former is acknowledged to be very great, and the secrecy has been successfully maintained over a substantial period, any finding of easy discoverability must be reconciled with the fact of non-discovery. “We obviously cannot affirm a decision based on ... different and inconsistent answers to the same fundamental questions.” Mid-Tex Electric Coop. v. FERC, 773 F.2d 327, 353 (D.C.Cir.1985). Therefore we reverse the denial of trade secret status and remand to the FDA to resolve the discrepancies in its findings. II. Procedural Claims As the Act does not require the FDA to determine trade secret status by means of a hearing “on the record,” the proceeding falls into the APA’s largest gap: it is an informal adjudication, a category for which no procedures are specified. Compare 5 U.S.C. §§ 553, 554, 556 & 557 (specifying procedures for rulemakings (formal and informal) and for formal adjudications). In Zotos I, the court found that the FDA’s procedures in the first proceeding violated elementary notions of due process. The core of that violation lay in the agency’s reaching a final determination without ever having afforded Zotos a clear enough glimpse into its analysis to enable Zotos to respond. As a result of Zotos I, the agency established a new, two-step process, involving a request by the petitioner for trade secret status, a tentative decision including an explanation of the grounds relied upon, an opportunity for the petitioner to respond, and a final determination. See 21 C.F.R. § 720.8 (1987). Zotos here raises a considerable number of constitutional objections to the procedures, in both their general articulation and their application here. It suggests that the decision was made by an unidentified person (evidently on the assumption that the true authors of the tentative and final decisions were persons other than those named), and that this denied it an opportunity to question the authors’ credentials; that the “true” decisionmaker at both the tentative and final phases may be one and the same person; and that the FDA relied in its final decision on assertions never previously revealed. In light of our finding that the FDA’s decision was arbitrary and capricious, we believe it would be inappropriate for us to address Zotos’s constitutional claims. See Ashwander v. TVA, 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandéis, J., concurring); Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C.Cir.1987). A thorough FDA effort to resolve the substantive conflicts that we have identified seems likely to dispose of the objections to the agency’s application of its procedures. The facial objections may well also become moot, either through the communications between Zotos and the agency in the proceedings on remand or (possibly) through a different outcome. It is so ordered. . Under the regulations the presence of secret ingredients is acknowledged by adding the phrase “and other ingredients" to the end of the ingredient declaration. 21 C.F.R. § 701.3(a) (1987). . 28 U.S.C. § 636 (1982) (subsequently amended, see 28 U.S.C.A. § 636 (West Supp.1987)) authorizes such references under a broad set of circumstances, including motions for summary judgment, which both parties made in this case. . 38 Fed.Reg. 28,912, 28,912-13 (1973) (adopting for purposes of the Act the procedures originally devised to protect trade secrets in FDA's files from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552); 39 Fed.Reg. 44,602, 44,612-13 (1974) (adopting the Restatement formula for FOIA purposes (and thus, by cross-reference, for purposes of the Act)); 47 Fed.Reg. 38,353, 38,354 (1982) (proposed regulations elaborating basis for protecting trade secrets under FOIA and (by cross-reference) under the Act, and specifically directing attention to six Restatement factors); 51 Fed.Reg. 11,441, 11,443-44 (1986) (final regulations) (codified at 21 C.F.R. § 720.8). . Quoting from FDA’s response to a comment generated by a proposed rulemaking on trade secrets for FOIA purposes, Zotos contends that it benefits from a prima facie case on the entire trade secret issue simply because it represented that to the best of its knowledge "the ingredient has not previously been disclosed to any member of the public.” Zotos Brief at 6 (quoting 39 Fed.Reg. 44,602, 44,614 (1974)). When the entire response to the comment is examined it becomes clear that the representation only entitles Zotos to a prima facie case on the first of the six factors, confidentiality, and not on the entire issue. See 39 Fed.Reg. at 44,614. . In its brief the FDA backpedals from its concession that the information is of significant value. FDA Brief at 26-27. But our task is to review the "administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). . Cf. Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C.Cir.1981) (reverse engineering feasible only if secret’s value exceeds cost of acquiring it); accord, Greenberg v. FDA, 803 F.2d 1213, 1218, 1222-23 & n. 2 (D.C.Cir.1986). . Given the confused state of the record we are in no position to accede to Zotos’s request that we declare the ingredient a trade secret without further reference to the agency.

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?

UNITED STATES v. TORONTO, HAMILTON & BUFFALO NAVIGATION CO. No. 39. Argued November 9, 1949. Decided December 12, 1949. Paul A. Sweeney argued the cause for the United States. With him on the brief were Solicitor General Perlman and Assistant Attorney General Morison. Gerald E. Dwyer argued the cause for respondent. With him on the brief were Frederick L. Wheeler and C. Austin White. Mr. Justice Clark delivered the opinion of the Court. We are faced again with elusive questions of property valuation in determining whether the United States awarded “just compensation” under the Fifth Amendment when it took the respondent’s car ferry, the Maitland No. 1, under the authority of § 902 of the Merchant Marine Act of 1936, as amended, 53 Stat. 1254, 1255, 46 U. S. C. § 1242. The Government requisitioned the vessel in 1942, and determined its fair value as $72,500. In 1943, respondent exercised its option to accept 75 per cent of the award, and in 1945 brought action in the Court of Claims to recover $711,753 as the additional amount necessary for just compensation. The Court, two judges dissenting, held that the fair value of the Maitland was $161,833.72, more than twice the Government’s original determination. 112 Ct. Cl. 240, 81 F. Supp. 237. We brought the case here on certiorari, 336 U. S. 965, because it presents problems of difficulty and importance in the practical application of the general standard of just compensation. The facts were found by the Court of Claims. They must be stated in some detail. 1. The Maitland No. 1 was a conventional, steel-hull, two-stacker, twin-screw ferry for railroad cars, built in 1916. Until 1932 she plied across Lake Erie between Ashtabula, Ohio, and Port Maitland, Canada. She was respondent’s only ship on that route, and her principal cargo was coal for a steel company in Hamilton, Ontario. On the Canadian side, respondent’s connecting rail line moved the coal to destination in Hamilton. But a more convenient route on Lake Ontario caused a sharp decline in respondent’s traffic beginning in 1928. And when the “new Welland Canal” between Lake Erie and Lake Ontario was opened in 1932, and larger ships carried the load directly to Hamilton, respondent abandoned the line. From 1932 to 1935 the Maitland was laid up at her dock in Ohio. On November 29, 1935, respondent chartered the ship at an unspecified rate to a company ferrying freight across Lake Michigan, and thereafter, for the convenience of the parties, title was transferred to the Lake Michigan concern. The transfer recited a total consideration of $166,000 and included a “recapture” clause. On December 15, 1937, this right was exercised and upon payment of $92,894.80 the Maitland was returned to Ashtabula where she lay until requisitioned in August, 1942. 2. Cost, book and scrap value, upkeep and earnings of Maitland. — The Maitland was built in 1916 at a cost of $362,800. Respondent, a wholly owned subsidiary of the New York Central and Canadian Pacific Railways, acquired her from respondent’s own president in that year, paying $394,560. From 1917 to 1930, respondent spent $38,115.46 for “additions and betterments to the vessel.” Repairs from 1922 to 1932 amounted to $20,329.11 per annum. Lay-up expenses from 1938 to 1942 — there is no evidence for earlier years — averaged $2,700 per year, including repairs. It would have cost the Government some $35,000 to place the ship in operating condition in 1942. Her insured valuation in 1942 was $100,000; her scrap value $13,500. We do not know the reproduction cost at that time. Book value, figured at original cost less depreciation at one per cent for each of the first three years and four per cent per annum for the remaining period was $75,509.51. The earnings varied during the years she was operated by respondent. The average annual net operating income through December 31, 1920, was $17,216.28; both 1921 and 1922 operations found a deficit, while for the next five years net profit was at its highest level, averaging $129,893.92 per annum. 1928 and 1929 were progressively bad years and the next two and one-half years showed losses averaging $15,417.82 per year. In June 1932 the traffic was so poor that the vessel was docked and her operation never resumed. The Court of Claims found that the average annual net profit for the entire period of operation, ending in 1932, was $42,816.36, amounting to a return of 10.41 per cent per annum on the original investment. 3. Sales of other vessels of like class on Great Lakes.— After 1930, ships of the Maitland type were obsolete and not in demand as railroad car ferries on the Great Lakes. Construction of the “outer belt” railroad around the Chicago yards and abolition of a rate differential made all-rail transportation, or movement on larger and more modern ferries, more practical for shippers. But the Court found that in 1942 “there were a number of secondary uses for the vessel for which a demand did exist at that time” for use on the Great Lakes. Conversion to automobile ferry was relatively simple and economical; and the Court found that three sales of similar vessels had occurred from 1936 to 1940 for that use. The prices ranged from $25,000 to $65,000, but conversion and repair costs were greater because of the age and maintenance record of the vessels. Two other vessels that were built from the same plans as the Maitland were sold for use on the Great Lakes in 1940 and 1942, for conversion as bulk carriers of pulpwood. Sale prices were $24,000 and $37,724.04, respectively. Neither of these vessels, however, was in the state of repair of the Maitland. One had been built in 1903, the other in 1910. 4. Sales of vessels of like class for car ferrying on Atlantic Coast. — While there was a finding that in “1942, there was a demand for a vessel such as the Maitland No. 1 for use as a car ferry between Florida and Cuba,” there was no finding that this “demand” had reflected itself in the Great Lakes market. The Maitland was not equipped to operate in salt water and it would have cost “not less than” $115,000 so to equip and move her to Florida, not including necessary strengthening for ocean service. There is no finding that respondent would have been able to sell the vessel had it been transported to Florida, nor that successful operation there was possible. The Florida “demand” seems to have been predicated upon five sales of four vessels between 1941 and 1945. Only one ship, the Grand Haven, was sold while on the Great Lakes, and that was not until after hostilities ended in the last war. She was smaller but faster than the Maitland, and brought a $50,000 price. She was floated down the Mississippi to the Gulf at “considerable expense.” We know neither this amount nor the amount needed for repairs. The other four sales were of vessels very similar to the Maitland, built between 1914 and 1920; but, unlike the Grand Haven and the Maitland, these ferries were operating on the Atlantic coast and were originally constructed for ocean travel. The sale prices were $100,000 and $170,000 for one vessel, the Henry M. Flagler, and $332,-500 each for the two others. The latter two required about $20,000 each for repairs. All three vessels were “purchased” by the United States after requisition. The Court of Claims, finding that “the property condemned” was “unique, . . . peculiarly situated” and without relative comparison on the Great Lakes, concluded that the Maitland was worth more than “the residual value of an obsolete car ferry,” thus requiring resort to “a consideration of the earnings ... , in conjunction with the contemporaneous transactions in vessels of close similarity in determining a fair value.” It called “the average mean residual value of an obsolete car ferry” $50,000; “attributing this value to the Maitland,” the capitalized value of an annual income comparable to that of the Maitland for the sixteen years ending in 1932 was the figure of $389,767.15, “according to actuarial tables in evidence.” The court then deducted the percentage difference between the life expectancy of the vessel in fresh and salt water (20%), the cost of conversion to salt water and sailing it to Florida, and the necessary repairs. Under this formula, $161,833.72 was the fair value “for its highest available and most profitable use for which it was adaptable at the time of its taking.” Perhaps no warning has been more repeated than that the determination of value cannot be reduced to inexorable rules. Suffice to say that the balance between the public’s need and the claimant’s loss has been struck, in most cases, by awarding the claimant the monetary “market value” of the property taken. See United States v. Miller, 317 U. S. 369, 374 (1943). Usually that is a practical standard; usually that approaches the “just” compensation demanded by the Fifth Amendment. At times, however, peculiar circumstances may make it impossible to determine a “market value.” There may have been, for example, so few sales of similar property that we cannot predict with any assurance that the prices paid would have been repeated in the sale we postulate of the property taken. We then say that there is “no market” for the property in question. But that does not put out of hand the bearing which the scattered sales may have on what an ordinary purchaser would have paid for the claimant’s property. We simply must be wary that we give these sparse sales less weight than we accord “market” price, and take into consideration those special circumstances in other sales which would not have affected our hypothetical buyer. And it is here that other means of measuring value may have relevance — but only, of course, as bearing on what a prospective purchaser would have paid. We agree with the Court of Claims that in this case there was no Great Lakes “market” in the sense discussed above. We hardly think that five sales of dissimilar vessels require a finding that any one of the varying prices would have been repeated had the Maitland been offered for sale. And so we are in basic agreement with the court below that other measures of value may be relevant. But there are few of these substitute standards which are in fact of assistance in assessing the value of the Maitland. Original cost is well termed the “false standard of the past” where, as here, present market value in no way reflects that cost. So with reproduction cost, when no one would think of reproducing the property. And past earnings are significant only when they tend to reflect future returns. We see no relevance in the Maitland’s earnings between 1916 and 1932 on the issue of capacity to earn after 1942, on the Great Lakes or elsewhere. On this record they are entirely too remote to bear on the vessel’s value when taken. It follows that the Court of Claims’ reliance upon earnings was error. We have said that the absence of “market” price does not, ipso facto, rid isolated contemporaneous sales of all relevance. None of the evidence upon which the findings below were based is before us, but it seems likely that the differences between the Maitland and ships sold on the Great Lakes between 1936 and 1942 may be calculated with some degree of accuracy. And the circumstances may indicate the relevance of the Maitland’s insurance valuation. See Rule 3, Advisory Board on Just Compensation, 1943 A. M. C. 1443, 1444. But cf. Westmoreland C. & C. Co. v. Public Service Comm’n, 293 Pa. 326, 331, 142 A. 867, 869 (1928); Report of Proceedings of the Advisory Board, supra, pp. 152-153. We have yet to consider the weight given to what the Court of Claims called Florida “demand.” The question is whether Florida prices may be considered at all in determining value when the Maitland was taken on the Great Lakes. Two cases in this Court, both involving the requisition of coal, have stated the rule that where “private property is taken for public use, and there is a market price prevailing at the time and place of the taking, that price is just compensation.” United States v. New River Collieries, 262 U. S. 341, 344 (1923); Davis v. Newton Coal Co., 267 U. S. 292, 301 (1925). (Emphasis supplied.) We have held that in this case there was no “market” on the Great Lakes; and so the quoted rule is in terms inapplicable. But neither can a Florida market be established on the evidence before us. And we have reminded the court below that it may consider individual sales for use on the Great Lakes for what bearing they may have upon the Maitland’s value. We take it that in the valuation of readily salable articles, price at the market nearest the taking is, at least in the usual case, a practical rule of thumb, and one that is most likely to place the claimant in the pecuniary position he occupied before the taking. Such considerations seem to underlie a similar result in the law of sales, and in the general law of damages. Thus, in Grand Tower Co. v. Phillips, 23 Wall. 471 (1874), the plaintiff had planned to sell the defendant’s coal at the best available market on the Mississippi between Cairo and New Orleans. Yet the defendant’s breach of contract to sell to plaintiff brought a “more direct” measurement of damages: the nearest available market. See Harris v. Panama R. Co., 58 N. Y. 660 (1874); 3 Williston, Sales §§ 599, 599e (Rev. ed. 1948), and cases cited. But we do not think a similar rule practical or fair in the requisition of property which most owners would, if possible, sell without geographic restriction. We doubt, for example, that owners of ocean' liners would, under ordinary circumstances, fail to negotiate beyond the port in which the vessels lay — whether or not ocean liners are “goods” and subject to the law of sales. Were market conditions normal, we could hardly call an award “just compensation” unless relevant foreign sales, in available markets, were considered. See Supplementary Rules 1 and 3, Advisory Board on Just Compensation, 1945 A. M. C. 1382, 1383; Glaspy v. Cabot, 135 Mass. 435 (1883). The question is of course one of degree, and we do not mean to foreclose the consideration of each case upon its facts. Olson v. United States, 292 U. S. 246, 255 (1934), relied upon below, makes this clear. This Court there stated that the “highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held.” Mr. Justice Holmes had earlier warned that the prospective use may be considered “only so far as the public would have considered it”; the price was not to be “what a tribunal at a later date may think a purchaser would have been wise to give.” New York v. Sage, 239 U. S. 57, 61 (1915). On the record before us, the Court of Claims was in error in according weight to Florida values. Whether the problem is one of more profitable use or simply of a more advantageous price in a distant port, the burden is on the claimant to show that it is likely that a prospective Florida buyer would have investigated the Great Lakes market and considered a ship like the Maitland while it was moored to its Ohio dock; or that the ordinary Great Lakes owner would have undergone the trouble and expense necessary to send his ship to Florida for a possible sale; or, finally, that either of these possibilities would have had an effect on price had the Maitland been sold on the Great Lakes. And the question is what the ordinary businessman in the trade would do, not what the owner claims he would do; a contrary rule would invite perjury, and would smack of the kind of special value which would not be considered by the ordinary purchaser. See Grand Tower Co. v. Phillips, supra. A bare record reciting five sales, three to the United States, and but one on the Great Lakes for Florida use— and that after the war’s end — does not meet the claimant’s burden. But we leave the final question open for further consideration below. We do not mean to foreclose a finding, on substantial evidence not now before us, that there were probabilities of sale in Florida in 1942 sufficient to warrant consideration of demand there in fixing the value of the Maitland. We may add that the Court is clearly not bound to accept any geographic price range at full value. This record, however, justifies neither of the valuation measures adopted below. The judgment is reversed and the cause remanded for further proceedings in the light of this opinion. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case. The first sale was in May 1941 to a private party who had thereafter spent $63,820 for necessary repairs. The second sale was on requisition, July 28, 1941, by the War Shipping Administration. These vessels, the Joseph R. Parrott and the Estrada Palma, were requisitioned by the War Shipping Administration in June, 1942. Considerations which might affect our rulings in this case if the cause were tried to a jury need not concern us here. E. Schmalenbach, Finanzierungen, pp. 4-6 (3d ed., Leipzig, 1922), quoted in 1 Bonbright, Valuation of Property 147, n. 9 (1937). “It is the property and not the cost of it that is protected by the Fifth Amendment.” Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123 (1924). But see Bonbright, supra, ch. VIII. See 1 Report of Proceedings of the Advisory Board on Just Compensation 170 (United States Maritime Commission, War Shipping Administration, mimeographed, 1943). Cf. Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146 (1925); The Hisko, 54 F. 2d 540 (1931). See Orgel, Valuation Under Eminent Domain, ch. XIV (1936); 2 Nichols, Eminent Domain § 446 (2d ed. 1917); The I. C. White, 295 F. 593, 595, 596 (1924). As to the separation which must be made, in any case, between the value of the property and the value of the claimant’s own business skill, see Kimball Laundry Co. v. United States, 338 U. S. 1 (1949). See Rivara v. Stewart & Co., 241 N. Y. 259, 264, 149 N. E. 851, 852 (1925), per Cardozo, J.; Behnke v. Bede Shipping Co. [1927] 1 K. B. 649. Cf. Meering v. Duke, 6 L. J. (o. s.) 211 (K. B. 1828) (Stamp Act). But see Report of Proceedings of the Advisory Board, note 5, supra, pp. 64-71. United States ex rel. T. V. A. v. Powelson, 319 U. S. 266, 273 (1943).

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?

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARTIN ARSHAM SEWING COMPANY, and Martin Arsham, Respondents. No. 88-5432. United States Court of Appeals, Sixth Circuit. Argued Feb. 14, 1989. Decided April 21, 1989. Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard Perlstein, Karen L. Arndt (argued), N.L.R.B., Office of the Gen. Counsel, Washington, D.C., and Frederick Calatrello, Director, N.L.R.B., Cleveland, Ohio, for N.L.R.B., petitioner. Robert T. Rosenfeld (argued), H. Lee Einsel, Jr., Walter, Haverfield, Buescher & Chockley, Cleveland, Ohio, for Martin Ars-ham Sewing Co., Martin Arsham, an Individual, and Marsco, Inc., respondents. Before KENNEDY and JONES, Circuit Judges, and SILER, Chief District Judge. The Honorable Eugene E. Siler, Jr., Chief U.S. District Judge for the Eastern District of Kentucky and U.S. District Judge for the Western District of Kentucky, sitting by designation. KENNEDY, Circuit Judge. The National Labor Relations Board (“NLRB” or “Board”) petitions for enforcement of an order imposing personal liability upon Martin Arsham (“Arsham”), president and sole stockholder of the Martin Arsham Sewing Company, aka MARSCO, Inc. (“MARSCO”), for a portion of the back pay obligation of MARSCO. The obligation was imposed in an earlier unfair labor practice proceeding before the Board. Among other contentions, Arsham argues that the Board is now precluded from proceeding against him by attacking as fraudulent a transfer from MARSCO to him because the Board did not attempt to avoid this transfer in MARSCO’s prior bankruptcy proceedings. The Board argues that it was not limited to bringing its back pay claim against the bankruptcy estate because the present action was brought against a non-bankrupt individual (Arsham) to intercept assets which never became a part of the bankruptcy estate. Because we find Ars-ham’s argument persuasive, we decline to enforce the Board’s order and therefore deny the petition. In July of 1976 Arsham incorporated MARSCO under Ohio law for the purpose of contracting labor for industrial sewing operations. Arsham owned 100 percent of MARSCO stock and he and his wife were the company’s directors. In the spring of 1978 the International Ladies’ Garment Workers’ Union initiated a campaign to organize MARSCO production employees. As a result of the company’s actions during this campaign the Union filed unfair labor practice charges on May 1, 1978. On June 14,1978 the Board issued a complaint alleging labor law violations including Arsham’s constructive discharge of 16 employees in violation of the National Labor Relations Act (“Act” or “NLRA”). An ALJ held a hearing on the complaint in October and November of 1978. On February 5, 1979, prior to the issuance of the ALJ’s opinion, Arsham, acting in his capacity as president of MAR-SCO, executed a promissory note from the company to Arsham, in his individual capacity, acknowledging past unsecured loans by Arsham to the company totaling $37,700.00. The terms of the note called for payment of interest at 8 percent annually with the balance of the note due immediately upon nonpayment of interest. The parties also executed a security agreement pledging all corporate assets as collateral for the debt. Subsequently, on March 21, 1979, the ALJ issued his decision finding, inter alia, that 12 employees had been unlawfully terminated. On April 30, 1979, Arsham filed his security interest. On September 7, 1979 the Board issued its decision finding that MARSCO violated the Act and extending the AU’s findings of discrimination to include four additional employees. MAR-SCO subsequently agreed not to contest the Board’s order. Accordingly, on March 30, 1982 the Board issued a supplemental decision and order determining that $41,-677.31 was due to the discriminatees. No back pay has been paid to date. On December 9, 1981 Arsham, acting on his own behalf, filed a state court suit to enforce the confessed judgment provisions of the MARSCO promissory note. On December 17, 1981 the uncontested judgment became final. In satisfaction of this judgment Mr. and Mrs. Arsham, as directors of MARSCO, transferred all property of the company to Arsham individually on December 12,1981. On December 24, 1981 MAR-SCO ceased doing business. On December 30,1981 MARSCO filed for voluntary bankruptcy. The Board was listed as an unsecured creditor on MARSCO’s petition. Other unsecured creditors included Ms. Rita Kremser, S.P. Communications, and Arsham in his personal capacity. On February 24, 1982 the Board filed a Proof of Claim with the Bankruptcy Court and on June 6, 1982 inquired whether the trustee in bankruptcy had examined the issue of whether another corporation formed by Arsham, the Drape Factory, Inc., was a successor employer to MARSCO. Despite receiving notice of all subsequent proceedings in the Bankruptcy Court, a representative of the Board did not attend any creditors’ meetings nor did the Board contest the trustee’s report and final accounting. On April 1, 1982 Arsham sold to the Drape Factory, Inc., all machinery, equipment and other assets which had formerly belonged to MARSCO for $20,000.00 evidenced by a five year promissory note with interest at 8 percent per annum. The bankruptcy estate and the trustee were subsequently discharged by order of the Bankruptcy Court dated January 18, 1983. On November 30, 1984 the Board’s General Counsel filed a motion before the Board to hold Arsham personally liable for the back pay award limited to the $20,-000.00 he obtained from the sale of MAR-SCO’s former assets to the Drape Factory. The Board, after denying the motion initially, remanded the issue for a hearing in light of the General Counsel’s proof that MARSCO possessed no assets when it filed for bankruptcy. After a hearing, an AU found Arsham personally liable in the amount of $20,000.00 to satisfy the back pay liability of MARSCO. The AU noted that the General Counsel conceded that Arsham was not an alter ego of MARSCO and that there was “no intent to saddle him personally with full liability for the back-pay due.” Accordingly, the AU limited the claim for personal liability “to the value of corporate assets retained by Arsham and allegedly converted to his personal use to avoid satisfaction of the Board’s remedy.” A three-member panel of the Board (Chairman Dotson, dissenting) adopted the AU’s recommended order. The Board petitions for enforcement. This case presents an apparent conflict between the policies underlying Chapter 7 of the Bankruptcy Code with those of the National Labor Relations Act and the function of the Board. The Board, pointing to its important function as the protector of the labor negotiation process, asserts that it should be allowed to hold Arsham personally responsible for the back pay liability to the extent he received assets from MARSCO. To hold otherwise, claims the Board, would allow Arsham to abuse the Board’s remedial processes thereby frustrating the Board’s enforcement of the labor laws and its attempt to effectuate the primary purpose of the NLRA. Mr. Arsham asserts that the imposition of personal liability upon him would effectively allow the Board to avoid the bankruptcy proceedings and circumvent the bankruptcy goal of channeling all claims against the debtor’s estate into one proceeding thus ensuring equitable distribution among creditors. Arsham calls upon this Court to stop the Board’s “end run” around the Bankruptcy Court’s efforts to secure equality of distribution among creditors. We agree with Arsham that the Board erred in using its own procedures to recover the value of the assets which it claimed belonged to MAR-SCO and which, if they did, belonged in the bankruptcy estate for the benefit of all creditors. The equitable distribution principles of the Bankruptcy Code apply to the NLRB notwithstanding the Board’s broad powers to effectuate the public purposes of the NLRA. In Nathanson v. NLRB, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952), the Board argued that the national interest in eliminating unfair labor practices justified the Board’s receipt of priority in payment from the debtor’s bankruptcy estate. The Supreme Court refused to treat the Board’s claims for back pay any differently than other wage claims. The Court stated: The contest now is no longer between employees and management but between various classes of creditors. The policy of the National Labor Relations Act is fully served by recognizing the claim for back pay as one to be paid from the estate.... The theme of the Bankruptcy Act is “equality of distribution” ... and if one claimant is to be preferred over others, the purpose should be clear from the statute. We can find in the Bankruptcy Act no warrant for giving these back pay awards any different treatment than other wage claims enjoy. Id. at 28-29, 73 S.Ct. at 82-83 (citation omitted). Thus, the Board is entitled to no priority over the claims of other unsecured creditors in the distribution of the debtor’s property. See NLRB v. Deena Artware, Inc., 251 F.2d 183, 185 (6th Cir.1958) (“the beneficiaries of the back pay awards are private persons for whom the Board is acting as agent. The claims have no status or priority different from that enjoyed by other unpaid wage claims”); cf. In re Bildisco, 682 F.2d 72, 78 (3d Cir.1982), aff'd, NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984) (holding rejection of collective bargaining agreement authorized under section 365(a) as an executory contract). The corporate Chapter 7 bankruptcy case is designed to provide an orderly proceeding in which the debtor corporation’s assets may be marshalled and their pro rata distribution to creditors obtained. To this end the Bankruptcy Court is vested with exclusive jurisdiction over all the debtor’s property. See 28 U.S.C. § 1471(e) (1982). The filing of a bankruptcy petition operates as a stay of any action to obtain possession of “property of the estate” which is comprised of “all legal or equitable interests of the debtor in property.” 11 U.S.C. § 541(a)(1) (1982). See 11 U.S.C. § 362(a) (1982). Once the trustee, under the auspices of the Bankruptcy Court, has collected all the debtor’s property the Code dictates an elaborate step-by-step distribution order which serves to ensure an equitable distribution of the debtor’s assets. See 11 U.S.C. § 726 (1982). These characteristics of bankruptcy — the exclusive jurisdiction of the Bankruptcy Court, the stay of any creditors’ piecemeal actions to collect the property of the debtor’s estate, and the detailed order for distribution of the debtor’s assets — protect equal treatment for all creditors and avoid the incoherent dismemberment of the debtor which would occur under a “first-come-first-served” scheme. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 178, reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6138. In a further effort to consolidate all the debtor’s assets and distribute them equally between creditors, the Bankruptcy Code contains provisions empowering the court or the trustee in bankruptcy to recover property belatedly, unlawfully, or fraudulently transferred by the debtor in an effort to place it outside the reach of creditors. Any effort to recover this property is essentially an action to recover property that belongs to the debtor. In re MortgageAmerica Corp., 714 F.2d 1266, 1275 (5th Cir.1983). For example, the section 544 “strong arm” provision of the Code allows the trustee to “step into the shoes” of a creditor in order to nullify transfers voidable under state fraudulent conveyance acts for the benefit of all creditors. See 11 U.S.C. § 544 (1982). Any property recovered is returned to the estate to be divided pro rata. In re Johnson, 28 B.R. 292, 297 (Bankr.N.D.Ill.1983). The Supreme Court has stated that the definition of property of the estate includes “any property made available to the estate by other provisions of the Bankruptcy Code.” United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Thus, property fraudulently conveyed and recoverable under Bankruptcy Code provisions remains property of the estate and, if recovered, should be subject to equitable distribution under the Code. The Board’s claim against Arsham challenges as fraudulent a transaction from MARSCO to Arsham. It is well established that a creditor can proceed against a bankrupt corporation’s officers and directors despite the automatic stay provision of the Bankruptcy Code. See, e.g., In re Nashville Album Productions, Inc., 33 B.R. 123 (M.D.Tenn.1983). The creditor’s ability to bring suit is premised upon the notion that the action is not one against the debtor or the property of the estate. Id. at 124. If, however, a creditor brings a collateral action against third parties (including the debtor corporation’s officers) in an attempt to satisfy the bankrupt’s obligation by attacking, as fraudulent, a property transfer to these third parties such action is stayed under Code section 362(a). See, e.g., In re MortgageAmerica, 714 F.2d at 1275-76. To allow a creditor of the bankrupt to pursue his remedy against third parties on a fraudulent transfer theory would undermine the Bankruptcy Code policy of equitable distribution by allowing the creditor “to push its way to the front of the line of creditors.” In re Central Heating & Air Conditioning, Inc., 64 B.R. 733, 737 (N.D.Ohio 1986). Such an action is a delayed attempt to obtain property of the estate to the exclusion of all other creditors. In the case at bar the NLRB is indirectly attempting to obtain an impermissible priority over other creditors. The Board took no action in the Bankruptcy Court to set aside the transfer of the debtor corporation’s assets to Arsham pursuant to the allegedly fraudulent security agreement. If the Board had successfully avoided this transfer the proceeds would have been shared equally by all the unsecured creditors. Instead, the Board now attempts to circumvent the equitable nature of asset distribution in bankruptcy by waiting and letting the assets pass out of the debtor’s hands into those of a third party who can then be held accountable to the Board alone for the entire back pay award. We cannot allow the Board to secure for itself preference before the other creditors. Cf. In re New England Fish Co., 19 B.R. 323, 328 (Bankr.W.D.Wash.1982) (“where claims result from non-bankruptcy litigation or administrative proceedings, and the debtor becomes involved in bankruptcy, the only framework for priorities among claimants is that of the bankruptcy statute”). Thus, in light of the purposes behind the Bankruptcy Code, we hold that the Board’s failure to pursue its remedy in the Bankruptcy Court precludes it from attempting to impose derivative liability upon Arsham by attacking as unlawful the conveyance from MARSCO to Arsham. We therefore deny the petition for enforcement of the Board’s order. . The Board had several possible means available in the Bankruptcy Court to challenge Ars-ham’s security interest. The Board could have requested that the trustee use his avoidance power under section 544(b) in conjunction with Ohio law to set aside the transfer of the security interest as a fraudulent transfer. See 11 U.S.C. § 544(b) (1982); Ohio Rev.Code Ann, §§ 1313.-56, 1336.07 (Page 1979); In re Central Heating & Air Conditioning, Inc. 64 B.R. 733, 736 (N.D.Ohio 1986). See also In re Landbank Equity Corp., 83 B.R. 362, 380 (E.D.Va.1987); In re Hecht, 51 B.R. 72, 76 (D.Vt.1985). The Board could also have moved the Bankruptcy Court to reorder the priorities of the creditors or invalidate Arsham’s 1979 security agreement. See 11 U.S.C. § 510(c) (1982). . Our decision in the case that the Board may not bypass bankruptcy proceedings and pursue the debtor corporation’s assets for the Board’s exclusive benefit does not undermine labor policy because "that policy ... is to protect the process of labor negotiations, not to impose particular results on the parties.” NLRB v. Bildisco & Bildisco, 465 U.S. 513, 534, 104 S.Ct. 1188, 1200, 79 L.Ed.2d 482 (1984). A bankruptcy filing will never become a "safe haven” for corporate wrongdoers with labor problems because both the Bankruptcy Court and the trustee have powers to avoid transactions designed to hide assets and defraud creditors. The NLRB, as the representative of the debtor’s employees, is a creditor entitled to the benefit of these avoidance powers vested in the court or trustee. Furthermore, under Chapter 11 a debtor-in-possession remains obligated as an "employer” to bargain collectively with the employees’ representative, see Bildisco & Bildisco, supra at 534, 104 S.Ct. at 1200, and thus cannot escape its collective bargaining obligations in most instances.

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?

C. E. GRAHAM, Plaintiff-Appellant, v. Bruce CLARK and Murrell Denton, Defendants-Appellees. No. 15454. United States Court of Appeals Sixth Circuit. May 22, 1964. Robert C. Carter, Glasgow, Ky. (Carroll M. Redford, Glasgow, Ky., on the brief), for appellant. Robert D. Simmons, Bowling Green, Ky. (Robert M. Coleman, Coleman, Harlin & Orendorf, Bowling Green, Ky., Morris Butler, Greensburg, Ky., on the brief), for appellees. Before CECIL, O’SULLIVAN and EDWARDS, Circuit Judges. CECIL, Circuit Judge. The plaintiff-appellant brought this action in the United States District Court for the Western District of Kentucky to rescind the sale of two oil and gas leases. The sole question presented on this appeal is whether the sale of these leases constituted a sale of a security under the Securities Act of 1933 (Sections 77b, 77e and 77l(1), Title 15, U. S.C.), and as such was required to be registered. Since there was no registration, the appellant claims that the transaction may be rescinded within one year. (Section 77m, Title 15, U.S.C.) The district judge held that it was not a security within the meaning of the Act. We will refer to the parties as plaintiff and defendants, as they were in the trial court. On November 24, 1959, the defendants sold and assigned to the plaintiff two oil leases of which they were the joint owners. One lease included forty-two acres of land, more or less, upon which there were twenty-one operating wells. The other lease was for approximately twenty acres of land upon which there were eight operating wells. The assignment and transfer included all of the equipment and personal property on the leased land used in connection with the operation of the wells. The consideration was the payment of $72,500 in cash and the reservation to the defendants of an oil payment in the sum of $52,500 to be paid out of 14 of the working interest in the two leases. Section 77b(1), Title 15, U.S.C., so far as is applicable to this case, defines a security as “any * * * fractional undivided interest in oil, gas, or other mineral rights, * * * ” Counsel for the plaintiff say that, as applicable here, there are two elements necessary to render a transfer of oil and gas rights a security: “1. There must be a splitting of the interest owned by the seller, which is, “2. Connected with, or for the purpose of, a sale thereof.” In support of this test, counsel claim that the defendants split their ownership by reserving to themselves one quarter of the working interest until $52,500 had been paid to them. Counsel concede that the transfer of all of one’s interest in and to a specific oil and gas lease is not a security within the meaning of the Act. Roe v. United States, 287 F.2d 435, 437, C.A. 5, cert. den., 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29, Woodward v. Wright, 266 F.2d 108, C.A. 10. Counsel for the plaintiff say that the Woodward case, supra, is controlling in the case now before us. There is a vital distinction in the facts between the Woodward case and our case. There the ultimate effect of the conveyance was a splitting of the entire interest assigned. A % interest was sold for the sum of $40,000, $25,000 to be paid in cash and the balance within two years, secured by a mortgage on the property. The contract specifically provided that the sellers would deliver to the escrow agent assignments in the lease “to such parties and in such fractions as may be named by the parties of the second part.” Assignments for various fractional interests in the oil and gas lease were, in fact, issued to at least seven participants. We have no such situation in this case. The sale was to the plaintiff with no resale or assignment of any part of his interest either actually made or contemplated. The written instrument of assignment by which the leases in question were sold and transferred to the plaintiff by the defendants purports to and does convey all of the right, title and interest of the defendants in the leases to the plaintiff. The defendants under the terms of sale had no control, no right of entry and no voice in the operation. The oil payment to be paid out of of the working interest in the two leases was a part of the consideration for the sale. We agree with the trial judge that the transaction in question here cannot be distinguished from a sale subject to a vendor’s lien to secure the payment of a deferred consideration. We conclude that the sale of the oil leases herein did not constitute the sale of a security within the meaning of the Securities Act. The judgment of the District Court is affirmed. . The transfer was subject to a %2 overriding royalty interest of Walter Chenault in the 42-acre lease. The defendants’ interest was also subject to this royalty interest.

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?

Mrs. Marie de Jaham STEWART, Co-Executrix and Mrs. Margaret Stewart Johnson, Co-Executrix of the Estate of Seymour J. Stewart, Deceased, Appellants, v. Chester A. USRY, District Director of Internal Revenue, New Orleans District, Appellee. No. 25395. United States Court of Appeals Fifth Circuit. July 29, 1968. Arthur V. Flotte, New Orleans, La., for appellants. Mitchell Rogovin, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson, Robert N. Anderson, Benjamin M. Parker, Attys., Dept. of Justice, Washington, D. C., Louis C. LaCour, U. S. Atty., Elaine Chauvin, Asst. U. S. Atty., New Orleans, La., for appellee. Before AINSWORTH and SIMPSON, Circuit Judges, and SINGLETON, District Judge. AINSWORTH, Circuit Judge: Plaintiffs, who are surviving spouse and daughter of decedent Seymour J. Stewart, and co-executrixes of his estate, appeal from a summary judgment in favor of defendant, the District Director of Internal Revenue Service, New Orleans District, sustaining the disallowance of plaintiffs’ claim for refund of estate taxes paid, and denying plaintiffs’ motion for summary judgment. Decedent was a Louisiana citizen and his estate consisted of both separate and community property as it is known in the Civil Law of Louisiana. By testamentary disposition, decedent bequeathed all property of which he died possessed to his four children in naked ownership, subject to a lifetime usufruct in favor of his wife. Plaintiffs filed a federal estate tax return which included in the computation of the gross estate decedent’s separate property and one half of his community property. In arriving at the taxable estate reported, taxpayers claimed a “marital deduction” under Section 2056 of the Internal Revenue Code of 1954, 26 U.S.C. § 2056, of the maximum amount allowable under the federal tax statute, which is fifty per cent of the adjusted gross estate. 26 U.S.C. § 2056(c) et seq. Taxpayers’ reason for claiming the marital deduction is shown in the tax return to be, “Surviving Spouse has the IMPERFECT USUFRUCT of said property which is, under the Law of Louisiana, the same as full ownership since she may sell, alienate and/or dispose of same.” The Commissioner rejected the computation of the marital deduction, and determined that the estate was entitled to such a deduction for the value of the following items only: United States Savings Bonds paid for with community assets and one half of the face amount of an insurance policy of which the usufructuary is the beneficiary. The disallowance by the Commissioner was based on his determination that all property, except the savings bonds and life insurance, was subject to the terminable interest limitations of Section 2056(b) of the Internal Revenue Code of 1954. Accordingly, the Commissioner assessed a deficiency against the estate, which taxpayers have paid. Subsequently, taxpayers filed a claim for refund with the District Director, and upon disallowance thereof, taxpayers filed the instant suit to recover the sum of $7,293.72. The District Court granted the motion of the Government for summary judgment and denied that of taxpayers. In a well-reasoned opinion, the District Court concluded that the property rights which the surviving spouse received with respect to property subject to an imperfect usu-fruct constitute a terminable interest within the meaning of Section 2056(b) of the Internal Revenue Code of 1954, and that such property rights did not qualify for the exception under Section 2056(b) (5) to the terminable interest rule. We affirm. This appeal involves the novel question of whether the interest of the surviving spouse in and to the movable property bequeathed by decedent to his children in naked ownership, subject to an imperfect lifetime usufruct in favor of the surviving spouse, qualifies for the marital deduction allowed in computing a federal estate tax return under Section 2056 of the Internal Revenue Code of 1954 (26 U.S.C. § 2056). The marital deduction permitted is contained in Section 2056, subsection (a) of the Internal Revenue Code of 1954. Subsection (b) (1) is an exception to subsection (a) and disallows the deduction where the interest passing to the surviving spouse is terminable. Subpara-graph (5) of said subsection (b) in turn provides an exception to the “terminable interest” rule of subsection (b) (1) under certain circumstances and permits the marital deduction. Taxpayers contend that the property rights in question qualify for the marital deduction because they are not subject to the teminable interest limitations contained in subsection (b) (1) of the statute; and further, that if such rights are considered to constitute a terminable interest, they nevertheless come within the exception provided in subsection (b) (5). Louisiana law is controlling in regard to the nature and extent of the property interests bequeathed to the usufructuary. Federal law, however, dictates whether such property interests qualify as a marital deduction. The terminable interest rule: In order to exclude from the marital deduction a property interest which would otherwise qualify, it is necessary under subsection (b) (1) of 26 U.S.C. § 2056 that the property interest meet the requirements set out in that subsection: 1. It must be an interest which will terminate or fail upon the lapse of time or some other contingency. 2. An interest, other than the interest passing to the surviving spouse, must also pass from decedent to ■some other person or persons. Such other person or persons or their heirs may, by reason of the passing of the interest, enjoy or possess any part of the property following the termination of the spouse’s interest. The word “usufruct” is defined by the Louisiana Civil Code as “the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce provided it be without altering the substance of the thing.” LSA-C.C. art. 533. Usufruct is of two kinds: Perfect, “which is of things which the usufructuary can enjoy without changing their substance,” and Imperfect, “which is of things which would be useless to the uufructuary, if he did not consume or expend them.” LSA-C.C. art. 534. Taxpayers have claimed the marital deduction only on property interests subject to an imperfect, or quasi, usufruct, as they agree that the usufructuary’s interests in the immovable property are terminable and entitle her only to use and enjoyment of such property as that property at her death will revert to the naked owners, the children of the deceased. The first two requirements under 26 U.S.C. § 2056(b) (1) — that the interest to the property (subject to the imperfect usufruct) will terminate and that an interest in the same property will pass to one other than the surviving spouse— are obviously met by the last will of decedent which provides that the usufruct will cease upon the death of the usufructuary and which bequeaths the naked ownership of the property to the children of decedent. The third requirement— enjoyment or possession of the property subject to the usufruct by persons other than the usufructuary (the children in this instance) at the termination of the usufruct — according to taxpayers’ contentions, is not satisfied. The contention of taxpayers is that inasmuch as the surviving spouse has unrestricted power over the property subject to the imperfect usufruct and that such property may, under Louisiana law, be completely consumed by the beneficiary, it is possible that nothing may remain at the termination of the usufruct to be possessed or enjoyed by anyone. Taxpayers rely on various Louisiana cases which ascribe the quality of ownership to such “imperfects” and the distinction made in the Louisiana Civil Code between a perfect and an imperfect usufruct as contained in LSA-C.C. art. 534, supra, and as further provided in LSA-C.C. arts. 535 and 536: Art. 535. “Perfect usufruct does not transfer to the usufructuary the ownership of the things subject to the usufruct; the usufructuary is bound to use them as a prudent administrator would do, to preserve them as much as possible, in order to restore them to the owner as soon as the usufruct terminates.” Art. 536. “Imperfect usufruct, on the contrary, transfers to the usufruct-uary the ownership of the things subject to the usufruct, so that he may consume, sell or dispose of them, as he thinks proper, subject to certain charges hereinafter prescribed.” The use of the term “ownership” along with the powers of the usufructuary delineated in article 536 indicates a type of ownership which is by the article itself subject to certain charges. These charges are contained principally in LSA-C.C. art. 549 which imposes upon the usufructuary certain obligations: Art. 549: “If the usufruct includes things, which cannot be used without being expended or consumed, or without their substance being changed, the usufructuary has a right to dispose of them at his pleasure, but under the obligation of returning the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct.” (Emphasis supplied.) The Louisiana courts have interpreted this article as requiring the usufructuary, despite her temporary role as “owner,” to account to the naked owners for the equivalent of the property subject to the usufruct or its estimated price at the termination of the usufruct. A quasi debtor-creditor relationship is thereby established between the usufructuary and the naked owners, In Succession of Dielmann, 119 La. 101, 117 (1907), 43 So. 972, 977, the Louisiana Supreme Court said: “She [the imperfect usufructuary] had the right to use those funds subject to the obligation of returning an equal amount later to the husband’s heir. * * * ” In Burdin v. Burdin, 171 La. 7, 18 (1930), 129 So. 651, 654, the Louisiana Supreme Court said: “the usufruct so held by the defendant of the money and other movable effects was an imperfect or quasi usu-fruct, carrying with it the ownership and the right to dispose of the same, subject to an accounting at the expiration of the usufruct. * * * ****** “The usufruct of the community property held by the defendant terminated on July 18, 1911, the date of his second marriage; and from that date defendant became a debtor of his children for the money and movable effects theretofore held by him as usufructuary.” Thus the “ownership” referred to in LSA-C.C. art. 536 is not in the nature of an unqualified ownership which would exclude the rights which other persons may possess or enjoy on the termination of the usufruct. Although, as a practical matter, a surviving spouse may completely deplete, by use, disposition, or otherwise, the property which she is allowed to use and enjoy, the reverse inference is true also — she may not so deplete the property. All that is necessary to meet the third requirement under the “terminable interest” rule of the federal tax statute is that other persons “may possess or enjoy any part of such property.” (Emphasis supplied.) 26 U.S.C. § 2056(b) (1) (B). That the heirs, upon the termination of the usufruct, may eventually enjoy the property in question is clearly contemplated by decedent’s bequest of the naked ownership to them and by the mandatory provisions of the Louisiana Civil Code and the case law requiring an accounting and restitution to the naked owners by the usufructuary. Consequently, all of the criteria of 26 U.S.C. § 2056(b) (1) for determining a property interest to be terminable have been met, and unless these property interests can qualify as an exception to the terminable interest rule, they may not be included in the marital deduction claimed. Exception to the terminable interest rule: In order for an interest passing to the surviving spouse to qualify as an exception under Section 2056(b) (5) of the Internal Revenue Code, it is mandatory that certain requirements be met. One of these requirements is that the surviving spouse have the power to appoint the entire interest which she received from the decedent to herself or another. This power of appointment is further explained in Section 20.2056(b)-5(g) (2), (3), (4) of the Treasury Regulations on Estate Tax: “(2) The power of the surviving spouse must be a power to appoint the entire interest * * * as unqualified owner * * * or to appoint the entire interest * * * as a part of her estate * * * that is, in effect, to dispose of it to whomsoever she pleases * * * “(3) A power is not considered to be a power exercisable by a surviving spouse alone and in all events * * * if the exercise of the power in the surviving spouse to appoint the entire interest * * * to herself or to her estate requires the joinder or consent of any other person. The power is not ‘exercisable in all events’, if it can be terminated during the life of the surviving spouse by any event other than her complete exercise or release of it. * * * Likewise, if there are any restrictions, either by the terms of the instrument or under applicable local law, on the exercise of a power to consume property * * * for the benefit of the spouse, the power is not exercisable in all events. * * * In order for the power of invasion to be exercisable in all events, the surviving spouse must have the unrestricted power exercisable at any time during her life to use all or any part of the property subject to the power, and to dispose of it in any manner, including the power to dispose of it by gift (whether or not she has power to dispose of it by will). “(4) The power in the surviving spouse is exercisable in all events only if it exists immediately following the decedent’s death. For example, if the power given to the surviving spouse is exercisable during life, but' cannot be effectively exercised before distribution of the assets by the executor, the power is not exercisable in all events.” An interpretation of these limitations on the power of appointment supports the conclusion reached by the District Court — that the exception was designed to relate to those situations where the life tenant has the equivalent of absolute ownership. The power given by the Louisiana Civil Code to the usufructuary to use and dispose of the property subject to the imperfect usu-fruct is not a power to appoint the property to herself or another to the exclusion of the naked owners. The naked ownership of the property passed to the children at the moment of their father’s death. Consequently, they inherit his interest in the property directly from him, not from their mother. It is obvious that she could in no way divest them of their inheritance, and as we have already noted, even if she were to consume or dispose of the entire interest, her estate at the time of her death would be required to account to the children as naked owners because of the debtor-creditor relationship. Taxpayers’ contention that a deceased cannot account, and therefore there is no charge upon the property in usufruct, is without merit, inasmuch as her estate will be accountable. The effect of Louisiana law which permits a bequest of a usufruct to a surviving spouse and naked ownership to heirs of the same property is to create dual but separate interests in the property — usufruct and naked ownership — which taken together comprise all the attributes of ownership, but this ownership does not, by virtue of the interests passing from the decedent to the surviving spouse, vest in the spouse. To the contrary, the children at their mother’s death will be vested with complete ownership of the property which they have inherited by their father’s will. The “ownership” of the surviving spouse is obviously inferior to that of the children. This concept is completely in accord with the Louisiana doctrine of forced heirship in favor of the children. No such protective device is afforded the surviving spouse, for the apparent- reason that Louisiana, being a community property state, provides for other advantages for the survivor. Automatically, at the death of one spouse in community the marital partner is endowed with full ownership of one half of the community theretofore existing between the spouses. i¡C !¡! ^ Turning now to the federal ta* law, we look to the reason behind the marital deduction provision. The District Court very ably summarized the congressional intention as an “attempt to promote equality of estate tax treatment between married residents of community and non-community property states” [citing S.Rep.No.1013, 80th Cong., 2d Sess., p. 38 (1948-1 Cum.Bull. 285, 305); H.Rep.No.1274, 80th Cong., 2d Sess., p. 27 (1948-1 Cum.Bull. 241, 261)]. In United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 255, 11 L.Ed.2d 195 (1963), the Supreme Court said: “Our conclusion concerning the con-gressionally intended result under § 812(e) (1) [26 U.S.C. § 2056 of the Internal Revenue Code of 1954] accords with the general purpose of Congress in creating the marital deduction. The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. Under a- community property system, * * * the spouse receives outright ownership of one-half of the community property and only the other one-half is included in the decedent’s estate. To equalize the incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the marital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of ‘estate splitting’ otherwise available only in community property States. The purpose, however, is only to permit a married couple’s property to be taxed in two stages and not to allow a tax-exempt transfer of wealth into succeeding generations. Thus the marital deduction is generally restricted to the transfer of property interests that will be includible in the surviving spouse’s gross estate. * * * ” (Emphasis supplied.) The Supreme Court reiterated this interpretation of congressional intent in Northeastern Pa. Nat. B & T. Co. v. United States, 387 U.S. 213, 221, 87 S.Ct. 1573, 1578, 18 L.Ed.2d 726 (1967), in the following language: “Congress’ intent to afford a liberal ‘estate-splitting’ possibility to married couples, where the deductible half of the decedent’s estate would ultimately —if not consumed — be taxable in the estate of the survivor, is unmistakable.” (Emphasis supplied.) We are, therefore, of the view that the opinion of the District Court was in all respects correct, and it is Affirmed. . The definition of “naked ownership” appears in LSA-C.C. art. 490, which provides in pertinent part that “When an immovable is subject to a usufruct, the owner of it is said to possess the naked ownership.” Naked ownership is not, however, restricted to immovables and attaches as well to movables under the case law of Louisiana. Cf. Succession of Moore, 40 La.Ann. 531 (1888), 4 So. 460. . LSA-C.C. art. 533: “Usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing. * * $ * * ” For an excellent discussion on the characteristics, purposes and effects of “usu-fruct” in Louisiana, see Yiannopoulos, Legal Usufructs, 14 Loyola L.Rev. 1 (1968). . The will provides in pertinent part as follows: “I give and bequeath to my beloved wife Marie de Jaham Stewart, the usu-fruct of all the property that I may die possessed of, of whatsoever nature and kind wheresoever situated. “I give and bequeath to my four (4) children * * *, share and share alike, the naked ownership of all of the property that I may die possessed of, of whatsoever nature and kind and wheresoever situated subject to the usufruct in favor of my wife, Marie de Jaham Stewart.” . The tax return shows separate property valued at $52,113.03; decedent’s one half of community property valued at $99,-S84.72; and a total gross estate of $151,997.75. . “The nature of the property interest of the decedent determines estate tax treatment. If the decedent spouse’s interest is in community property, the surviving spouse’s one-half interest is not in-cludible in the estate of the decedent spouse. Separate property is includible in full, but the marital deduction may reduce the taxable portion. Int.Rev.Code § 812(e). The marital deduction is limited to fifty per cent of the ‘adjusted gross estate,’ which includes only separate property (community property being excluded to avoid a duplication of deductions). Of. Int.Rev.Code § 812(e) (2) (C) (i) [26 U.S.C. § 2056(c) (2) (C) (i) of the' Internal Revenue Code of 1954].” Wisdom and Pigman, Testamentary Dispositions in Louisiana Estate Planning, 26 Tulane L.Rov. 119, 124, n. 24 (1952). . “§ 2056. Bequests, eta. to surviving spouse “(a) Alloivance of marital deduction. —For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b), (c), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. “(b) Limitation in the case of life estate or other terminable interest.— “(1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— “(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and “(B) if by reasons of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; # * ❖ * * * * “(5) Life estate ivith poioer of appointment in surviving spouse. — In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse — ■ “(A) the interest of such portion thereof so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and “(B) no part of the interest so passing shall, for purposes of paragraph (1) (A), be considered as passing to any person other than the surviving spouse. “This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, or such specific portion thereof, whether exercisable by will or during life, is exercisable by such spouse alone and in all events. * * * ” 26 U.S.C. § 2056. . “State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed.” Morgan v. Commissioner of Internal Revenue, 309 U.S. 78, 80, 60 S.Ct. 424, 426, 84 L.Ed. 585 (1940). . Planiol, the French commentator, in Traite Elementaire De Driot Civil, vol. 1, No. 2775, describes the term thusly: “Usufruct confers a double right: the right to use the thing (usus) and the right to receive the fruits (fruotus). These are the two elements of which it is composed. They gave it its name. The Latins had the two words usus and fruotus which eventually became but one.” . Vivian State Bank v. Thomason-Lewis Lumber Co., 162 La. 660 (1926), 111 So. 51; Mariana v. Eureka Homestead Soc., 181 La. 125 (1935), 158 So. 642; Succession of Dielmann, 119 La. 101 (1907), 43 So. 972; Danna v. Danna, La.App., 1 Cir., 1935, 161 So. 348. . See also Kelley v. Kelley, 185 La. 185 (1936), 168 So. 769; Mariana v. Eureka Homestead Soc., 181 La. 125 (1935), 158 So. 642. Succession of Block, 137 La. 302 (1915), 68 So. 618; Succession of Grubbs, La.App., 2 Cir., 1966, 182 So.2d 203; Johnson v. Bolt, La.App., 2 Cir., 1933, 146 So. 375. In commenting on the nature of usu-fructuary’s obligation, Planiol, in his treatise on civil law, Traite Elementaire De Droit Civil, vol. 1, says: “It has already been seen * * * that this limitation of the rights of unsufructu-aries makes impossible the establishment of usufructs upon consumable things, things of which no use can be made without consuming them. Usufructs upon such things are replaced by a special right, called quasi-usufruct, which amounts to this: the usufructuary acquires the ownership of the things whicji are subject to his right. This permits him to make use of them in consuming them. But these things are vested in him solely upon condition that he return their equivalent, at the moment of restitution.” Planiol, vol. 1, No. 2777. “It is recognized that in such cases the usufructuary may consume these things, provided he gives back like things at the expiration of the usufruct. Such right is called quasi usufruct * * Planiol, vol. 1, No. 2749. “[In] the different cases where he [the usufructuary] acquires the ownership of the things subject to his right of enjoyment * * * the nature of his obligation changes. Having become owner he may destroy, consume, alienate. He owes merely the equivalent of what he has received.” Planiol, vol. 1, No. 2864. Cf. Aubry & Rau, Civil Law Translations, vol. II, 7th Ed., § 235, pp. 510, 511, in which it is stated: “Since the recovery of the right of enjoyment by the naked owner operates automatically, the usufructuary or his heirs are obligated to return without delay the objects of the usufruct * * *. These rules must apply even to sums of money contained in the usufruct; hence, if they are not immediately returned, an interest runs automatically in favor of the naked owner from the time the usufruct was extinguished.” Footnote 2 annotated to this section indicates that something more than an ordinary debtor-creditor relationship is contemplated: “the relations between the usufructuary and the naked owner are not those of an ordinary debtor and creditor. What is involved here is not so much the return of a sum of money, as a restitution of the capital subject to usufruct, whose enjoyment cannot be extended beyond the duration of the usufruct * * * ” . In Johnson v. Bolt, La.App., 2 Cir., 1933, 146 So. 375, the Louisiana Court of Appeal for the Second Circuit said: “The word ownership used in article 536 supra, has not the far-reaching significance attached to it in ordinary parlance, nor by Article 488 of the Code. The ownership referred to is defined by the Code as being imperfect. Such ownership is terminable at a certain time or on a condition; Civ.Code art. 490.” The general principles of ownership are explained in part in the following Louisiana codal articles: LSA-C.C. art. 488: “Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other pci’sons.” LSA-C.C. art. 490: “Ownership is divided into perfect and imperfect. “Ownership is perfect, when it is perpetual, and when the thing is unincumbered with any real right towards any other person than the owner. “On the contrary, ownership is imperfect, when it is to terminate at a certain time or on a condition, or if the thing, which is the object of it, being an immovable, is charged with any real right towards a third person; as a usufruct, use or servitude. * * * ” LSA-C.C. art. 491: “Perfect ownership gives the right to use, to enjoy and to dispose of one’s property in the most unlimited manner, provided it is not .used in any way prohibited by laws or ordinances. $ SjS ❖ f > LSA-C.C. art. 492: “Imperfect ownership only gives the right of enjoying and disposing of property, when it can be done without injuring the rights of others ; that is, of those who may have real or other rights to exercise upon the same property.” . See footnote 6. . Taxpayers contend that in order to qualify for the marital deduction the interest in the property passing to the surviving spouse need not be absolute ownership, and cite as authority Northeastern Pa. Nat. B. & T. Co. v. United States, 387 U.S. 213, 222, 87 S.Ct. 1573, 1579, 18 L.Ed.2d 726 (1967), wherein the Supreme Court said: “Obviously Congress did not intend the deduction to be available only with respect to interests equivalent to outright ownership, or trusts would not have been permitted to qualify at all.” In that case the issue was stated to be “whether a bequest in trust providing for the monthly payment to decedent’s widow of a fixed amount [as contrasted to a percentile share of the corpus] can qualify for the estate tax marital deduction * * 387 U.S. 213 at 214, 87 S.Ct. at 1574. The case is inapposite and distinguishable on several grounds, one material distinction being that the will which created the trust granted the widow the power to appoint the entire corpus, one of the requisites for qualifying for the marital deduction under the “terminable interest” exception. . LSA-C.C. art. 940: “A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. “This rule applies also to testamentary heirs, to instituted heirs and universal legatees, but not to particular legatees.” LSA-C.C. art. 941: “The right mentioned in the preceding article is acquired by the heir by the operation of the law alone, before he has taken any step to put himself in possession, or has expressed any will to accept it. . “There exists between the naked owner and the usufructuary no community of interests analogous to that created by indi-visión or partnership. Their rights, even if they coexist on the same thing, are not only distinct but of a different nature.” Planiol, vol. 1, supra, No. 2829. . LSA-C.C. art. 1493: “Donations inter vivos or mortis causa cannot exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number.” . L8A-C.C. art. 2406: “The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs, at the dissolution of the marriage * * . See Warren and Surrey, Federal Estate and Gift Taxation (1961), pp. 759-760 (cited witli approval by tlie Supreme Court in United States v. Stapf, supra, in n. 13 of that opinion) : “As indicated previously, one of the basic policies underlying the marital deduction provisions was that property qualifying for the deduction be includible in the surviving spouse’s gross estate. No marital deduction was to be allowed where an interest in the property bequeathed to the spouse could pass to other persons, after the termination of her interest, ivithout the inclusion of such interest in the wife’s gross estate. Such terminable interests have their own built-in estate tax avoidance, because the interests passing to third parties, stemming as they do from the decedent, automatically escape tax in the estate of the first legatee enjoying the property. * * * “It was also intended to require property qualifying for the marital deduction to be substantially the same type of interest which would have passed to the surviving spouse under the community property system. Under that system, the surviving spouse receives outright ownership of half the community property and only half of the decedent’s property is included in his gross estate. If the wife then dies still owning half of the community property it will be included in her gross estate and all the family’s community property will have been subject to estate tax at least once. Thus, only where the surviving spouse receives outright ownership of its practical equivalent should the property qualify for the marital deduction. “The terminable interest rule found in section 2056(b) attempts to incorporate the foregoing two policies in specific statutory language. By its operation, property which is not included in the decedent’s estate because it qualifies for the marital deduction will if still in existence be subject to tax in his spouse’s estate. Thus, all the family’s property will have been subjected to the estate tax once, and a treatment equivalent to that accorded the community property spouse will have been achieved. * * * ” (Emphasis supplied.) Cf. Hickey, The Usufruct and Taxation, 8 La.B.J. 223, 224 (1961); Wisdom and Pigman, Testamentary Dispositions in Louisiana Estate Planning, 26 Tulane L. Rev. 119 (1952), supra; Kelleher, The Marital Deduction Under Louisiana Law, 26 Tulane L.Rev. 154, 160 (1952).

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?

METROPOLITAN COAL CO. v. HOWARD. No. 280. Circuit Court of Appeals, Second Circuit. June 5, 1946. Edmund J. Lamb and Purdy & Lamb, all of New York City, for appellant. Albert T. Gould and Bingham, Dana & Gould, all of Boston, Mass., and Kirlin, Campbell, Hickox & Keating, of New York City, for appellee. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This appeal is from a decree in the admiralty entered upon the claim of the Metropolitan Coal Company in a proceeding for limitation of liability by Thomas J. Howard, as owner of the “box barge,” Thomas H. O’Leary. The question is how far Howard is liable for the loss of a cargo of coal owned by the claimant, when the barge, which carried it, foundered in Block Island Sound on December 4, 1940, about two miles west of the entrance to the Point Judith Harbor of Refuge. The facts are as follows. On November 1st, Howard and the Coal Company signed a charterparty, chartering the whole of the barge to carry a cargo of coal from Edgewater, New Jersey, to Chelsea, Massachusetts. The char-terparty stated that the barge had a “coal carrying capacity of 1800/1900 tons or thereabouts,” and contained the usual exceptions, including “acts of God, dangers and accidents of the sea.” It incorporated .by reference the Limitation of Liability Act, 46 U.S.C.A. § 192, and “the provisions of and exceptions from, liability contained in” the Harter Act, 46 U.S.C.A. § 190 et seq.; and it then proceeded as follows: “If the Owner * * * shall have exercised due diligence to make the * * * Barge in all respects seaworthy and properly manned, equipped and supplied * * * neither the Owner * * * or the Barge shall be liable for any loss of * * * cargo resulting from * * * unseaworthiness of said Barge, * * * not discoverable by due diligence.” Whether or not the tonnage mentioned in the charterparty is to be measured in net tons or gross, the O’Leary lifted only 1917 net tons of coal on November 6th at Edgewater, whence she set out in tow of the tug, “Greenough,” in company with two other barges. On December 2nd, the flotilla, having passed through Long Island Sound without mishap, left New London, but was forced back by the weather. It set out again on the fourth, with the O’Leary in the lead, the two others behind her in tandem. They passed Watch Hill and into Block Island Sound that afternoon where the hawsers were let out to 150 fathoms each. Such information as the master of the tug had been able to get, indicated that the weather would be favorable, and so it continued until six o’clock in the evening. 'At that time, as the judge found, “there was a sudden change in the weather, the wind veering into the southwest and back to the south-southwest, and building up in strength, and the sea commencing to make.” At seven-fifteen it had begun to snow, “and the sea continued to build up very fast”; the wind increased, but not so much as the seas, which were “much higher than was to be expected from the strength of the wind,” though they were “not unusual” in those waters at that season. The judge found that the O’Leary was so loaded that her freeboard amidships was only about eighteen inches, and the seas, which boarded her, broke in her hatch covers (an inch and one-half thick), and so filled her that she foundered. The other two barges broke adrift, went ashore and were also lost. The judge held that the O’Leary was unseaworthy, when she broke ground at Edgewater, “by reason of overloading and because thereof of furnishing her with hatch covers which were too thin”; and since Howard had signed the charterparty stating that she had a carrying capacity of 1900 tons, he charged him as for a warranty and without limitation. This appeal raises three questions: (1) Whether the burden of proof rested on the shipper, Howard being a private, and not a public, carrier ; and whether the shipper carried it; (2) whether the charterparty excused the barge under the quoted clause as to “due diligence” ; (3) whether the incorporation of the Limitation of Liability statute in any event excused Howard. Before considering these questions we must decide whether two findings made by the judge were “clearly erroneous.” The first is that the barge had only eighteen inches of freeboard amidships. Upon the trial the bargee said that the freeboard was three and one-half feet, and the master of the tug that it was about three feet. However, when the tug master was examined before the Inspectors less than a fortnight after the loss, he stated that his “best judgment” was that the barge had only eighteen inches of freeboard amidships, although, he added, this was only “a guess.” At the trial he repudiated this “guess,” although he acknowledged that it had been his best judgment at the time. We cannot say that it was “clearly erroneous” for the judge to choose the tug master’s first judgment against his, and the bargee’s recollection at the trial. The truth was more likely to be what the master supposed while the matter was fresh in his mind. Next are the findings as to the severity of the weather. At Block Island the hourly wind movement never rose beyond twenty-four miles, with a maximum of twenty-six; and at seven-thirty P.M. on that day the seas were recorded as only “moderate.” Apparently they were heavier than was to be expected from such winds; and they may ■well have been the result of stronger winds further to the west; but certainly there is no reason to differ with the judge, who discredited the testimony that the waves ever reached a height of twenty feet. Nor do we see any reason to disturb his other finding that they were no more than was usual in those waters at that season. At least, they were not of that exceptional violence which justifies the strange appellation — “an act of God.” The barge, having therefore foun-ered under conditions of wind and sea which she was intended to meet, was unseaworthy in fact. The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 43 L.Ed. 241; The Southwark, 191 U.S. 1, 9, 24 S.Ct. 1, 48 L.Ed. 65; Edmond Weil, Inc., v. American West African Line, 2 Cir., 147 F.2d 363, 365. The statement in the charter-party that she had a “coal carrying capacity of 1800/1900 tons,” was an express warranty (Denholm Shipping Co. v. W. E. Hedger Co., Inc., 2 Cir., 47 F.2d 213), and bound Howard without limitation. Pendleton v. Benner Line, 248 U.S. 353, 38 S.Ct. 330, 62 L.Ed. 770. Yet, although private, as well as common, carriers warrant the seaworthiness of their vessels, concededly there is a difference as to the burden of proof, for a shipper by private carrier must prove the breach. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89. That difference is of no importance here, however, for ■courts have recognized over and over .again that unfitness developing in a vessel shortly after she breaks ground, is proof enough of unseaworthiness. (We collected the cases in Commercial Molasses Corp. v. New York Tank Barge Corp., 2 Cir., 114 F.2d 248, 251.) Therefore we hold that, •except as Howard may have modified his •express warranty by the clause we have •quoted, the claimant carried the burden of proof and must succeed. The modification was that, if Howard “exercised due diligence to make '* * * the Barge * * * seaworthy and properly manned, equipped and sup-plied,” he was not to be liable for “unseaworthiness * * * not discoverable by due diligence.” Although the scope of the warranty was therefore limited by the words “not discoverable by due diligence,” upon that limitation was imposed the condition that Howard should use due diligence, and if the condition was not fulfilled, the express warranty stood without limitation. The clause as a whole is primarily directed to defects in hull and gear, rather than to overloading; but seaworthiness includes proper stowage and the limitation would apply if the evidence justified it. Read upon the situation before us, the clause as a whole meant that, if Howard had been duly diligent to see that the barge was able to carry 1900 net tons in December, with hatch covers of one and a half inches, he did not warrant her ability, provided her inability could not have been discovered by reasonable diligence. So far as we can see, the substance of the limitation is the same as that of the condition for it is hard to see how, if Howard used due diligence to learn whether the barge was suited for the voyage as she rode, her unfitness could have been discovered by duly diligent inquiry or information. It is not necessary, however, to decide whether the Coal Company had the burden of proving that her unfitness was so discoverable, because we hold that Howard had the preliminary burden of proving the exercise of due diligence to make her seaworthy, in spite of the fact that he was a private carrier. First, the condition was copied almost in ipsissimis verbis from § 3 of the Harter Act, 46 U.S. C.A. § 192; and, when parties to a private charter lift words out of the Harter Act, they must accept the interpretation which the courts have put upon them'. The Framlington Court, 5 Cir., 69 F.2d 300, 307. Under § 3 of the Harter Act the owner has the burden of proof to show due diligence, as a condition of limitation upon his duties. The W. W. Bruce, 2 Cir., 94 F.2d 834. Second, the owner has access to all the facts relating to what diligence he has in fact used, and the shipper has none. It is patently fairer that the owner should be called upon to prove that those facts existed on which he has made the limitation of his liability depend. Third, the warranty of seaworthiness is a favorite of the admiralty and exceptions to it Of limitations upon it, are narrowly scrutinized. The Caledonia, 157 U.S. 124, 137, 15 S.Ct. 537, 39 L.Ed. 644; Compania de Navegacion La Flecha v. Brauer, 168 U.S. 104, 118, 18 S.Ct. 12, 42 L.Ed. 398; Spang, Chalfant & Co. v. Dimon S. S. Corp., 2 Cir., 57 F.2d 965, 968; The Framlington Court, supra, 69 F.2d 300, 303. The judge found that Howard had not used due diligence to make the barge seaworthy and although that was a “mixed finding of law and fact,” since it necessarily involved a standard of conduct, nevertheless we read it to include a true finding of fact so far as it involved the credibility of any relevant testimony. Howard made no effort to prove that he had used diligence to ascertain whether the barge was fit for the voyage as she rode, except his own statement that he thought that she was; and, although he put in evidence apparently all the voyages of the O’Leary for the past four years, in only a single instance had she lifted so large a cargo, and that was in the summer, as indeed had been all her voyages. Furthermore, one, DeMars, whom he called as an expert, and who had had a long experience, although he said that the O’Leary could safely have taken such a cargo upon such a voyage at any season if she had three feet freeboard, added: “but if you said one foot freeboard or two feet freeboard then I would have to make some reservations in telling you whether I think it is good or bad.” We do not wish to say that it can never be adequate evidence of due diligence that an owner, long tried in the traffic of vessels of the kind, declares that he believes the venture a safe one. Save for exceptional situations where courts are sure enough of their ground to overrule the customs of a calling, those customs measure the proper standard, and the bias of a party need not discredit his testimony upon such an issue, any more than upon any other. But plainly an owner’s testimony is not conclusive even when it is not contradicted, and that is the more true, when he has the burden of proof. We hold that the warranty of seaworthiness was unlimited, that the Coal Company proved the breach, and that Howard was properly charged with unlimited liability for the loss. Finally, it is apparent that the Coal Company should not be itself charged with lack of care for overloading the barge. A warranty is an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended precisely to relieve the promisee of any duty to ascertain the fact for himself; it amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue, for obviously the promisor cannot control what is already in the past. Denholm Shipping Co. v. W. E. Hedger Co., supra, 47 F.2d 213, 214; The Fred Smartley Jr., 4 Cir., 108 F.2d 603, 606; The Soerstad, D.C., 257 F. 130. To argue that the promisee is responsible for failing independently to confirm it, is utterly to misconceive its office. The Coal Company was therefore quite right in loading the barge as it did; that is precisely what Howard intended that it should do, and now that he is called upon to indemnify his shipper because what he said has turned out to be untrue, he must respond. Decree affirmed. The T. J. Hooper, 2 Cir., 60 F.2d 737; Sieracki v. Seas Shipping Co., Inc., 3 Cir., 149 F.2d 98,100.

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?

NATIONAL LABOR RELATIONS BOARD v. PIQUA MUNISING WOOD PRODUCTS CO. No. 8233. Circuit Court of Appeals, Sixth Circuit. Feb. 16, 1940. ARANT, Circuit Judge, dissenting in part, Alvin J., Rockwell, of Washington, D. C. (Charles Fahy, Robert B. Watts, Mortimer B. Wolf, and Allen Heald, all of Washington, D. C., on the brief), for petitioner. E. W. LeFever, of Cleveland, Ohio (Jones, Day, Cockley & Reavis, of Cleveland, Ohio, on the brief), for respondent. Before SIMONS, HAMILTON, and ARANT, Circuit Judges. 'HAMILTON, Circuit Judge. This case arises out of a petition of the National Labor Relations Board filed pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449, U.S.C. Supp. Ill, Title 29, Sec. 151, et seq., 29 U.S.C.A. § 151 et seq), to enforce its order theretofore issued against the respondent, an Ohio corporation, engaged in the business of manufacturing woodenware, with its 'principal office in Cleveland, Ohio. Upon an appropriate complaint; which was denied in its material allegations by respondent’s answer, the Board found that respondent had engaged in unfair labor practices within the meaning of Section 8(1) of the Act by interfering with its employees’ right to self organization and of Section 8(5) by refusing to bargain with Federal Labor Union Local 18,787, its employees’ representative and an affiliate of the American Federation of Labor, hereinafter referred to as the “Union.” So far as material here, the complaint stated that all of the employees of the respondent,- excluding those in clerical and supervisory positions, were an appropriate unit for the purpose of collective bargaining and that on or before July 27, 1937, and thereafter, a majority of them had designated the Union as their representative for that purpose. -It was then alleged that the respondent had refused to recognize the unit and its agency and had interfered with, restrained and coerced its employees, in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157, and was so continuing. The respondent resists the enforcement of the order on the following grounds: (a) That substantial evidence is lacking to support the finding that a majority of the members of the unit designated the Union as their bargaining representative; (b) That there was no violation of the Act by a refusal to bargain until there had been a prior determination by the Board of the appropriate unit and agency; (c) That an unlawful refusal to recognize a bargaining representative is a violation of Section 8(5) of the Act, not of Section 8(1); (d) That the Board’s order is. in excess of its jurisdiction because it found the respondent guilty of an unfair labor practice without supporting complaint; (e) That the Board’s order is void,because respondent’s refusal to bargain occurred subsequent to the execution and filing of the charge. There is substantial evidence to support the Board’s finding that respondent’s production and maintenance employees, exclusive of those in clerical and supervisory positions, constituted a unit appropriate for collective bargaining. National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815; National Labor Relations Board v. Colton, 6 Cir., 105 F.2d 179. The evidence shows that respondent had 143 employees, eight of whom occupied supervisory or clerical positions, which left 135 in production. The Board’s finding that the Union represented a majority of the unit for bargaining is supported by 82 application cards signed by employees seeking membership in the Union. Of these, two had discontinued their employment before July-27, 1937. Twelve of the cards are undated and one is post-dated September 21, 1937, leaving 67 members. Respondent concedes that four employees were members of the Union prior to July 27, 1937, whose names do not appear on application cards. Employees Spangler and Pittman, whose names also did not appear, testify without contradiction that they had been members for several years prior to July 27, 1937. This makes a total of 73 out of the appropriate unit. Respondent’s contention that some of the cards lack probative value because dated in 1935 and 1936 is without merit. It is a well-established rule of evidence that when the existence of a personal relationship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject matter. National Labor Relations Board v. National Motor Bearing Company, 9 Cir., 105 F.2d 652. The question as to the presumption of the continuation of membership in the Union was one of fact and rested within the sound discretion of- the Board to be decided in the light of the facts and circumstances before it. Hiser, the Union president, testified that the persons whose names appeared on the membership cards were members of the Union. Respondent’s contention that the Board erred in assuming that the unit contained the some number of employees belonging to the Union on August 8, 1937, as of July 27, 1937, must be denied. The Act defines “employee” to “include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.” 29 U.S.C.A. § 152(3). The act also defines “labor dispute” to include “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 29 U.S.C.A. § 152(9). During the period between July 27, 1937, and August 8, 1937, the dispute between the respondent and its employees was current. The relationship of the parties had not been so completely terminated as to give rise to the presumption that any one of them had discontinued his employee relationship or had obtained regular and substantially equivalent employment elsewhere. Jeffrey-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; Black Diamond S. S. Corporation v. National Labor Relations Board, 2 Cir., 94 F. 2d 875. Respondent challenges three of the application cards for membership in the Union upon the ground that they are undated as shown by the printed summary. The original exhibit shows dates and is controlling. The respondent also contends that four or five names should be eliminated from the list because Hiser, Union president, testified they were on the fence and wanted, to play both sides, and further that respondent’s manager testified that two who had signed application cards stated to him they did not want to be members of the Union and that one whose signature appeared on a card, testified he was not - a member. These objections go to the credibility and weight of the testimony and are matters for the determination of the Board. There is other evidence in the record tending to support the Board’s finding that the Union had been designated by a majority of the unit. Its finding in that respect is supported by substantial evidence. National Labor Relations Board v. Louisville Refining Company, 6 Cir., 102 F.2d 678. Some of respondent’s employees had belonged to the Union for several years before it was selected as a bargaining agency. From October 24, 1935, the plant operated under the management’s written declaration of policy, copy of which was furnished plant employees. In November, 1936, the Union, as bargaining representative for the employees, submitted a written contract to respondent’s officers which was rejected by its plant manager and there is substantial evidence -that he gave as his reason that it was not the policy of the company to recognize the Union and there is also substantial evidence that about this time respondent’s president stated that he would not recognize the American Federation of Labor as a bargaining representative but would negotiate with a committee of the employees. In April, 1937, respondent’s president presented to the employees’ committee, a bargaining agreement without mentioning the Union, and when it insisted on the name of the Union being inserted, he stated that before doing so, he would shut down the shop. As a counterproposal, he offered to increase wages five percent which the committee accepted. On June 14, 1937, he informed the committee that a tentative increase in wages provided in the April agreement would be impossible, but he would make every effort to provide steady work and there would be no shut down for inventory. He stated, however, if there were too much labor unrest, the plant would be shut down temporarily or possibly permanently. The Union committee then called in a representative of the American Federation of Labor to assist in negotiating with respondent and on July 27, 1937, the president of the local union posted a notice on the plant bulletin board announcing a meeting for that afternoon at which such representative would be present. About an hour later respondent’s manager posted a notice on the board that the plant would close that night for inventory, pursuant to a proposed sale or lease, and that the employees would be advised later when to report back for work. The next day the Union endeavored without success to arrange a conference between the president of respondent and the representative of the American Federation of Labor. Prior to May, 1937, the respondent was negotiating with the Robin Hood Woods Products Company of California for a sale or lease of part of its plant and on July 27, 1937, it was notified that the contract had been closed and that the Company was shipping machinery and equipment to Piqua, Ohio, for installation. On July 27, 1937, respondent closed its plant for inventory pursuant to this agreement and the Union employees began to picket it that afternoon and so continued. On August 3, 1937, respondent mailed to all of those who were its employees on July 27, 1937, a notice that inventory would be completed August 4, 1937, and the plant re-opened on August 5, at the regular time. It re-opened on that date but none of the employees began working. Some started into the plant but after being approached by members of the picket line, turned back. On August 8, 1937, respondent’s president asked a committee of its employees to meet with him, but informed them before negotiations commenced that he would not recognize or deal with the Union. He promised continuance of the 40-hour week and a raise in wages when profits permitted if they would return to work. The Board’s finding that the respondent refused to bargain with the Union is supported by abundant evidence. National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713. Respondent does not seriously question this finding but insists it was not compelled to bargain collectively until the Board had first determined the appropriate unit of employees for that purpose and had designated the bargaining agency under Section 9(a) and (b) of the Act, 29 U.S.C.A. § 159(a, b). This position is untenable. The National Labor Relations Act is in no way concerned with mediation or arbitration, nor with wages, hours or working conditions. Its sole purpose is to encourage the practice and procedure of collective bargaining and to protect the workers in the exercise of full freedom of association, self-organization and designation of representatives. National Labor Relations Board v. Jones-Laughlin Steel Co., 301 U.S. 1, 42, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. In the preamble to the Act, its purpose is declared to be “to eliminate the causes of certain substantial obstructions to the free flow of commerce * * * by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing * 29 U.S.C.A. § 151. To make this declared policy effective, the Act imposes on the Board two principal functions; the first defined by Section 9, headed “Representatives and Elections” is certification of the name or names of representatives for collective bargaining of an appropriate unit of employees after appropriate investigation and a hearing; the second, defined by Section 10, headed “Prevention of Unfair Labor Practices” is the prevention by order of the Board after a hearing and by further appropriate proceeding in court of the unfair labor practices set out in Section 8, one of which is the refusal of an employer to bargain with the employees’ representative of the appropriate unit. • [10] The Act assumed the existence of a quasi or constructive contract whereby a legal obligation was imposed on the employer, even against his intention, to deal with an appropriate unit of his employees, through their chosen representative concerning the matters referred to in the statute and the Board is without jurisdiction until the employer has violated his obligation and a complaint has been lodged with the Board pursuant to Section 10(c) of the Act. The employer acts at his peril in refusing to recognize a duly selected bargaining agency of an appropriate unit of his employees unless the facts show that in the exercise of reasonable judgment he lacked knowledge of the appropriateness of the unit or the ‘selection of the majority representative. The respondent makes no contention that the unit found by the Board which existed at the beginning of the controversy was , not an appropriate one for collective bargaining nor does it question the right of the Union to act as a bargaining representative if selected by a majority of the unit. The Board in its cease and desist order directed the respondent to refrain from interfering with, restraining or coercing its employees in their right to self-organization under Sedtion 7 of the Act, 29 U.S.C.A. § 157. It also directed it upon request to bargain collectively with the Union. Respondent attacks this part of the order on three grounds ; first, that there is no charge laid in the complaint that it engaged in an unfair labor practice within the meaning of Section 8(1) of the Act; second, that the facts as found by the Board constituted a violation of Section 8(5) and not of 8(1) and third, that its refusal to bargain with the designated representative as found by the Board occurred on August 8, 1937, which was after the verification of the charge on which the Board issued its complaint. Section 10(b) of the Act, 29 U.S. C.A. § 160(b) provides that, if any person has engaged in or is engaging in any unfair labor practice defined by the Act, the Board shall issue and cause to be served upon the offender a complaint stating the charges which may be amended by the Board in its discretion at any time prior to issuance of an order based thereon. The person complained of is accorded the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at a time and place fixed in the complaint. The Board must conform to the standards established in the Act. Myers v. Bethlehem Corporation, 303 U.S. 41, 49, 58 S.Ct. 459, 82 L.Ed. 638. An examination of the complaint shows respondent was properly charged with violation of Section 8(1) and there is substantial evidence to support this charge. It, therefore, follows that the application of Section 8(5) becomes immaterial. The sole function of the complaint is to advise the respondent of the charges constituting unfair labor practices as defined in the Act, that he may have due notice and a full opportunity for hearing thereon. The Act does not require the particularity of pleading of an indictment or information, nor the elements of a cause like a declaration at law or a bill in equity. All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense. Texas & Pacific Railroad Co. v. Interstate Commerce Commission, 162 U.S. 197, 215, 16 S.Ct. 666, 40 L.Ed. 940; Cincinnati, Hamilton & Dayton Railway Company v. Interstate Commerce Commission, 206 U.S. 142, 149, 27 S.Ct. 648, 51 L.Ed. 995. ,, The complaint here under consideration stated clearly that labor practices denounced by the Act were being pursued by respondent which would continue unless a cease and desist order was issued. The complaint did not set out the particular facts constituting the unfair labor practice as finally found but this was not necessary as all parties to the proceedings knew its basis. The order of the Board was prospective in operation, not retroactive. Pennsylvania Co. v. United States, 236 U.S. 351, 361, 35 S.Ct. 370, 59 L.Ed. 616; National Labor Relations Board v. Mackay Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L.Ed. 1381. In considering whether the complaint is sufficient to support the order of the Board, it is necessary to bear in mind the nature of the proceedings under review, which is preventive, not punitive, and taken in the interest of the general public. The order complained of does not afford compensation for any injury alleged to have resulted from the matter charged. The National Labor Relations Act is a new device in administrative machinery introduced by the Congress in the hope of eliminating labor unrest and maladjustment in industry. Our conclusion is that while the order may have been technically outside the issues raised by the pleadings, it was still germane to the subject matter before the Board. The real question before it and in the minds of all the parties was whether the respondent was engaged in unfair labor practices denounced by the National Labor Relations Act. New York Central & H. Railroad Co. v. Interstate Commerce Commission, C.C., 168 F. 131. The complaint filed was sufficiently definite to support evidence of unfair labor practices after the verification of the charge. There is substantial evidence to sustain the findings and the order of the Board. N.L.R.B. v. Mackay Company, supra. A decree for enforcement will issue in conformity with the prayer of the petition.

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?

Aminta FLORES, et al., Plaintiffs-Appel-lees Cross-Appellants, v. EDINBURG CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellants Cross-Appellees. No. 83-2195. United States Court of Appeals, Fifth Circuit. Sept. 17, 1984. Rehearing and Rehearing En Banc Denied Nov. 1, 1984. See also, 554 F.Supp. 974. Alfonso Ibanez, L. Aron Pena, Edinburg, Tex., Roy S. Dale, Brownsville, Tex., for defendants-appellants cross-appellees. Mitchell J. Green, Conde Thompson Cox, Asst. Attys. Gen., Austin, Tex., amicus curiae, for State of Tex. Douglas M. Becker, Ray Goldstein, Austin, Tex., for Edinburg Consol. Indep. School Dist. Larry Watts, Laura Oren, Houston, Tex., for plaintiffs-appellees cross-appellants. Before GARZA, GARWOOD, and HIGGINBOTHAM, Circuit Judges. . HIGGINBOTHAM, Circuit Judge: The Edinburg Consolidated Independent School District appeals from a judgment entered against it in this § 1983 action brought by the administratrix of the estate of David Flores, a junior high school student who suffered an injury to his hand in a classroom accident and later committed suicide. A jury found that the school district’s negligence had caused an infringement of Flores’s constitutionally-protected right not to have his bodily integrity impaired by unsafe school conditions, and awarded damages of $550,000. A suit in state court identical to the federal suit, except that its legal theory was state tort rather than constitutional tort, resulted in a summary judgment for. defendants on grounds of sovereign immunity. Because we conclude that under Texas law the present suit is barred by the doctrine of res judicata, we reverse the judgment and order that judgment be entered for the defendants. I In January 1977, when he was fourteen years old, Flores was using a power circular saw in his woodworking class and suffered a severe cut to his right hand; at the time of the injury, the saw’s safety guard had been removed and the teacher was in an area of the classroom from which he could not observe or supervise students using the power tools. Although surgery was successful in saving Flores’s hand, the hand was left permanently deformed — a condition that evidently preyed on Flores’s mind. The Flores family blames this condition for Flores’s eventual suicide in October 1981. in January 1979 Flores sued the school district and his woodshop teacher in the Texas state court, arguing that their negligence had been the cause of his injury, Defendants were granted summary judgment before trial on the ground of sovereign immunity. Tex.Civ.Stat.Ann. art. 6252-19a (waiver of immunity in Texas Tort Claims Act does not apply to school districts). No appeal from this judgment was ever perfected. In September 1980 Flores filed the present suit in the district court, alleging that the school board’s custom or policy of disregarding safety concerns had led to Flores’s injury; a right of recovery was asserted under 42 U.S.C. § 1983. Flores’s woodshop teacher was also named as a defendant, but he was granted summary judgment by reason of qualified governmental immunity. The school board’s motion for summary judgment, which raised inter alia the issue of res judicata, was denied. The case proceeded to trial and resulted in a judgment for the plaintiffs. The school district appeals. jj The Texas law of res judicata is traceable at least back to Foster v. Wells, 4 Tex. 101 (1849), and has not changed significantly since that time. The most frequently cited early statement of the rule is found in Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 100 (1894), where the Texas Supreme Court declared that “[a] party cannot relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies, in reference to the same subject matter” Thus> a judgment “is not only final as matter actually determined, but as every other matter which the parties uaight litigate in the cause, and which they might have had decided. Id. On its face, this broad statement of the rule suggests that every claim that might be permissibly joined in one suit must be so joined or will be forfeited. The Texas Supreme Court, however, soon explained that it understood the rule “to mean only that a11 matters which properly belong to a caAlse °f action asserted in the pending su^> such as will sustain or defeat, in whole or in part, that cause of action, must he produced or be barred by the judgment, an(^ n0^ ^at all of the different causes of ac^on a Party maY have ^ respecting the same property must be joined, because ^hey may be, in one proceeding. Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 8 (1904). ^he court quoted approvingly from Freeman on Judgments 249: The general expression, ... that a judgment is conclusive eveiT matter which the parties might have htigated in the action, is misleading. What is really meant by this expression is that a judgment is conclusive upon the tendered by the plaintiff’s corn- ^ am ' More recently, these early statements of the doctrine of res judicata were reaffirmed in Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971): [A]n existing final judgment rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties in all other actions on the points at issue and adjudicated in the first suit. Further, the rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former action as well as those which were actually tried. Thus the scope of the res judicata bar is dependent on a determination of which issues are “connected with a cause of action or defense” in the first suit. The Texas Supreme Court has never explicitly stated what becomes of an issue that is actually raised in the first action but not decided there because a judgment on the merits is entered on some other ground. However, if res judicata barred the relitigation only of those issues actually decided in the first action, it would be indistinguishable from collateral estoppel with respect to the issues raised in the pleadings; only with respect to issues that should have been raised in the pleadings but were not raised would res judicata pose a greater bar than collateral estoppel. See Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869, 871 & n. 4 (Tex.Civ.App.1980). Furthermore, if the pleading of a different legal theory would have induced the court to decide a particular issue in the first action, the issue is plainly one “which, with the use of diligence, might have been tried in [the] former action.” Diligence is, in brief, a key determinant of the applicability of the res judicata bar to any particular case. Some uncertainty about this rule has arisen since the Texas Supreme Court’s decision in Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). In Griffin, a contractor sued his employer alleging that the two parties had had a contract, that the contractor had performed under their contract, and that he had not been paid. Judgment was entered for the employer. The contractor then sued on a theory of quantum meruit, but the Court of Civil Appeals affirmed its dismissal on the basis of res judicata. Reversing, the Texas Supreme Court noted that, although the quantum meruit claim could have been joined with the contract claim, the two actions were factually independent; the contractor could recover in quantum meruit while conceding that there was no actual contract between the parties or that, if there was an actual contract, he had not fully performed. The ease was thus analogous to Moore v. Snowball, where the plaintiff in the second suit conceded without reservation all of the factual issues placed in dispute by his prior action. The only things common to the first and second suits in Moore and Griffin were the property and the transaction, respectively, underlying the suits; the legal theories and factual bases were, in both cases, entirely distinct. In Gravis, decided by the Texas Supreme Court two years before Griffin, the court found that a plaintiff’s suit against a drug manufacturer upon a strict liability theory was barred by an earlier adverse judgment in a suit upon a negligence theory identical as to parties and overlapping in material ways in their facts. The court rejected the argument that the judgment in the negligence action should be no bar because negligence is not an issue in a products liability suit. Because “[b]oth suits involve[d] a tort action resulting from the furnishing of the same drug for the same operation on the same person,” 470 S.W. at 642, the court held that the two claims were obliged to be brought in a single action. In short, a change in legal theory was not enough to justify separate actions. The present plaintiffs are in an even weaker position than the Gravis plaintiffs because the shift in legal theory from their state suit to their federal suit does not free them from reliance on the factual allegations made in their state complaint. Though the legal bases for the two actions are distinct — § 1983 in place of Texas tort law — the crucial factual issue raised by plaintiffs’ complaints in both actions is the alleged negligence of officials of the school district. Flores, however, relies upon the following declaration by the Griffin court: Freeman [v. McAninch] has been consistently cited for the proposition that all grounds of recovery or defense relating to the cause of action asserted in the pending suit must be urged or will be barred by the judgment. Ogletree v. Crates, Tex.Sup., 363 S.W.2d 431; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5. We have not said or held that a judgment in a suit on one claim or cause of action is necessarily conclusive of all claims and causes of action against the same party, or relating to the same property, or arising out of the same transaction____ ... As a general rule a judgment on the merits in a suit on one cause of action is not conclusive of a subsequent suit on a different cause of action except as to issues of fact actually litigated and determined in the first suit. See Moore v. Snowball____ 496 S.W.2d at 537-38 (additional citations omitted). The question raised but not answered by Griffin — as by Gravis — is what constitutes a “different cause of action” for res judicata purposes. Flores argues in effect that a “different cause of action” is a suit grounded in a different legal theory, the factual underpinnings of which need not be different from the factual underpinnings of the prior suit so long as those factual issues were not actually litigated and decided in the prior suit. By this test, res judicata would not bar the present suit because § 1983 is a legal basis for recovery distinct from Texas tort law, and the principal factual issue in the two suits — the school board’s alleged negligence — was not determined in the earlier state court action. As we have noted above, however, this view leaves res judicata a dead letter in the sense that it would be no broader a rule than collateral estoppel with respect to issues raised in the pleadings. In this Erie -like inquiry, we do not independently examine the policies behind the choices made by Texas courts. Rather, we attempt faithfully to apply Texas law. Consistent with this surrogate role, our primary reason for rejecting Flores’s reading of Griffin is its heavy reliance upon Moore v. Snowball, where the court declared definitively that “a judgment is conclusive upon the issues tendered by the plaintiffs complaint,” 81 S.W. at 8 (emphasis added). We conclude therefore that “a different cause of action” is one that proceeds not only on a sufficiently different legal theory but also on a different factual footing as not to require the trial of facts material to the former suit; that is, an action that can be maintained even if all the disputed factual issues raised in the plaintiff’s original complaint are conceded in the defendant’s favor. Dobbs v. Navarro, 506 S.W.2d 671, 673 (Tex.Civ.App.1974). Flores, as we have previously noted, cannot meet this standard, for to concede the factual issues previously raised would be to admit that the school officials were not negligent. This result is not so harsh as it may first appear. The doctrine of res judicata, like a statute of limitations, penalizes lapses in diligence, thereby assuring potential defendants that their exposure to liability is not wholly open-ended. Flores has offered no excuse for the failure to join the § 1983 action with the state tort claim. All of the information relating to the school district’s alleged negligence was surely as available to the plaintiffs when they filed their state lawsuit as when they filed the federal suit. Beyond this, there is no suggestion that any fact necessary to the filing of the § 1983 action first came to plaintiffs’ attention after the state action had been decided. Flores, however, would have us overlook this issue of diligence and permit successive suits to be prosecuted so long as the policies underlying the doctrine of res judi-cata are not offended. We are, of course, obliged to apply this rule if it is the approach that would be followed in the Texas state courts, see note 3, supra, and this framework does appear to have been adopted by the Texas Courts of Civil Appeals in Dallas and Houston. In Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869 (Tex.Civ.App.1980), the Dallas court reviewed several possible ways that “cause of action” might be defined for res judicata purposes, and ultimately concluded that the Texas courts have employed a functional case-by-case approach designed to effectuate the policy considerations underlying the doctrine of res judica-ta: “promotion of judicial economy, prevention of vexatious litigation, prevention of double recovery, and promotion of the stability of decisions.” Id. at 877. If consideration of a second suit would pose no threat to any of these interests, the court concluded, the successive action may be entertained. This formulation was later followed by the Houston court in Cohen v. Cohen, 663 S.W.2d 617, 620 (Tex.Civ.App. 1984). The district court below accepted the Gilbert formulation as an accurate statement of the Texas law of res judicata, and held consequently that the present action was not barred because there was 1) no waste of judicial resources in view of the summary disposition of Flores’s state court suit, 2) no risk of double recovery, 3) no evidence of purposeful vexatiousness in the failure to join the two claims in a single suit, and 4) no threat to the stability of the state court judgment. We cannot agree that Gilbert accurately states the Texas law. Gilbert purports to make a subjective policy-based determination in each case, but it will in practice prove nearly as mechanical as, and likely more arbitrary than the constructs it purports to reject. There is no great waste of judicial resources in any case decided summarily; there is no risk of double recovery in any case where the plaintiff lost his first suit; purposeful vexatiousness will seldom appear, and Gilbert would raise no bar where the splintering of the actions is not done purposefully; and finally, the stability of a judgment is imperiled only if an issue has been decided in the prior suit, in which case the collateral estoppel doctrine already bars relitigation. In brief, the Gilbert rule draws several intersecting lines based on concepts of judicial economy and stability rather than a single line based on the diligence of the plaintiff. This approach is not without merit, and might yet be adopted by the Texas Supreme Court at some future time. We conclude, however, that the present law of res judicata, as enunciated by the Texas Supreme Court for well over a century, is not so constricted. As Griffin states, issues of fact actually litigated and determined in one suit are barred in all later suits, whether or not the later suit arises from the same cause of action; only when the subsequent suit is on a different cause of action will those issues which have not been actually litigated and determined not be barred. 496 S.W.2d at 538. If the subsequent suit is not on a different cause of action, even issues not actually litigated in the prior suit will be barred. Whether two lawsuits constitute “different causes of action” must be an objective determination. A different cause of action is not merely a different theory of recovery; it should differ in “the theories of recovery, the operative facts, and the measure of recovery,” Dobbs v. Navarro, 506 S.W.2d 671, 673 (Tex.Civ.App.1974) (emphasis added). A contrary rule, süch as that adopted by the Gilbert court, cannot be harmonized with the holding in Moore that res judicata operates upon all the issues tendered in the plaintiff’s complaint. As Moore is plainly still 'good law, having been cited in several of the recent Texas Supreme Court decisions, we conclude that Gilbert is not an authoritative statement of the Texas law of res judicata. Plaintiffs, by acting diligently, could have brought all of their claims in the original suit in the Texas courts. Consequently, a successive suit grounded in the same operative facts cannot now be maintained. Plaintiffs have done no more in their § 1983 action than to advance a new theory of recovery; however, “[t]he assertion of a theory of recovery different from that of the first suit is not enough to state a new cause of action under Texas law.” Wilson v. Wilson, 532 F.Supp. 152, 155 (M.D.La.1980), aff'd, 667 F.2d 497 (5th Cir.), cert, denied, 458 U.S. 1107, 102 S.Ct. 3485, 73 L.Ed.2d 1368 (1982). As the present suit was barred by res judicata, the judgment for the plaintiffs must be reversed and judgment entered for the defendants. REVERSED. . After David Flores’s suicide, his mother was certified as administratrix of his estate and was substituted as plaintiff in that capacity. Flores’s mother and father are also named as plaintiffs in their individual capacities. . In light of our disposition of this case, we need not consider most of the grounds of appeal urged by the school board, including the question of whether plaintiffs have identified a constitutionally-protected interest that was impaired by defendants’ conduct. As to these issues we intimate no views. . In a § 1983 action we accord the prior judgment the same preclusive effect that it would have in the state courts. Migra v. Warren City School Dist. Bd. of Educ., — U.S.-, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). A summary judgm^nt on pounds of sovereign immunity is a Judgment on the merits for purposes of res judicata. Herring v. Texas Dept, of Corrections 500 S.W.2d 718, 720 (Tex.Civ.App.1973), aff'd, 513 S.W.2d 6 (Tex.1974). . As an incidental matter, we disagree with the school district’s argument that the above-quoted portion of Griffin was dicta overruled by the Texas Supreme Court in Texas Water Rights Com'n. v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979). Crow, if anything, reaffirms Griffin —a natural result, because Griffin is consistent with the longstanding res judicata jurisprudence in Texas. Specifically, the Crow court defined the doctrine of res judicata as stating "that a cause of action once finally determined ... cannot afterwards be litigated by new proceedings.’’ Id. at 771 (emphasis added). Moreover, this circuit has already indicated that it does not believe Griffin to change the Texas law of res judicata; in Brachett v. Universal Life Insurance Co., 519 F.2d 1072, 1073 (5th Cir.1975), — a post-Griffin decision — we restated the traditional Texas formulation of res judicata (almost exactly as it was later restated by the Texas Supreme Court in Crow ) without citing Griffin, but citing Abbott Laboratories v. Gravis. . It is unquestioned that a § 1983 claim can be advanced in a state court suit, as state courts exercise concurrent jurisdiction with federal courts over such claims. Kutzik v. Young, 730 F.2d 149, 152 (4th Cir. 1984). As sovereign immunity is no defense to a claim grounded in § 1983, Flores could have obtained full and fair consideration of his complaint if he had joined his § 1983 claim to his state tort claim; consequently, there is no basis here for an exception to the traditional bar of res judicata. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 418, 66 L.Ed.2d 308 (1980).

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 D. THOMAS, Plaintiff-Appellant, v. John CARPENTER, Defendant-Appellee. No. 88-6507. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1989. Decided Aug. 9, 1989. George W. Shaeffer, Jr., Silver, Kreisler, Goldwasser & Shaeffer, Newport Beach, Cal., for plaintiff-appellant. Eric S. Oto, Cotkin, Collins & Franscell, Los Angeles, Cal., for defendant-appellee. Before HUG, HALL and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: We must consider in this case the right of a public employee to seek election to the position occupied by his supervisor, free from retaliatory action against him when he fails. Under the circumstances of this case, we hold that the public employee states a cause of action. I Appellant James D. Thomas, a Lieutenant for the County of Santa Barbara Sheriff’s Department, appeals from the district court’s dismissal of his second-amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Thomas’s complaint alleges civil rights violations against the County of Santa Barbara and its sheriff, John Carpenter, and seeks both injunctive relief and compensatory and punitive damages under 42 U.S.C. § 1983 (1982). The district court dismissed the complaint with prejudice, concluding that Carpenter's alleged conduct as a matter of law did not violate Thomas’s constitutional rights. We have jurisdiction of Thomas’s timely appeal under 28 U.S.C. § 1291 (1982). A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law and as such is reviewed de novo. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986). We cannot uphold such a dismissal “unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved. All material allegations in the complaint are to be taken as true and construed in the light most favorable to the non-moving party.” Id. The material allegations in Thomas’s complaint are as follows. Thomas has been employed by the Santa Barbara Sheriffs Department since 1973. He attained the position of Lieutenant in 1982. A Lieutenant is defined by the department's policy and discipline manual as a “subexecu-tive” whose duty is to “carry out department policies and administer and supervise the work of various subdivisions.” As a Lieutenant, Thomas is not responsible for developing departmental policy, and therefore he, like any other employee, can only recommend policy changes through the designated chain of command. During his tenure as Lieutenant, Thomas had attended over 100 departmental staff meetings in the absence of his Division Commander, attended departmental policy manual revision meetings in conjunction with other Lieutenants in the department, and participated as an evaluator in training exercises for the department’s high risk entry team. In 1986 Thomas challenged Carpenter, the incumbent sheriff, in the June election for that office. Thomas’s campaign literature focused on Carpenter’s commitment to the sheriff’s department and challenged his competence in running an efficient law enforcement agency. Carpenter won the election, receiving 54% of the vote to Thomas’s 46%. After the election, Carpenter banned Thomas from attending departmental staff meetings, from attending policy manual revision meetings, and from participating as an evaluator for the department’s high risk entry team. Thomas is the only Lieutenant in the department singled out for exclusion, purportedly in retaliation of his campaign against Carpenter for the office of Sheriff. Carpenter asserts that he took these steps because of Thomas’s disloyalty and untrustworthiness, but he has not formerly charged Thomas in any departmental disciplinary proceedings. Carpenter’s conduct is alleged to have diminished Thomas’s professional reputation so that he has lost promotional opportunities within the department and lateral opportunities with other law enforcement agencies in California. He seeks general damages, punitive damages, and injunctive relief. II “ ‘To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.’ ” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313-14 (9th Cir.1989) (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987)). The district court concluded that Thomas’s allegations failed to meet the second of these two elements. The district court reasoned that Thomas was not deprived of any protected right because he “was neither terminated nor demoted nor transferred,” and he “had no given right to attend policymak-ing meetings.” Underlying this rationale is the notion that dismissal was proper because Thomas failed to allege a constitutionally protected property interest. But such allegations are unnecessary under the theory of Thomas’s claim. Because “[sjtate action designed to retaliate against and chill political expression strikes at the heart of the First Amendment,” Gibson, 781 F.2d at 1338, all that Thomas’s complaint needs so as to avoid dismissal are allegations that Carpenter’s conduct was motivated by an intent to retaliate for his exercise of constitutionally protected rights, see Soranno’s Gasco, Inc., at 1314 n. 3 (“The fact that he had no protected property interest in continued employment was not dispositive because his firing, if retaliatory, effectively deprived him of his constitutionally protected right to free speech.”). It is therefore of no consequence that, as Thomas alleges, Carpenter chose to remove certain responsibilities from his usual duty assignments instead of terminating, demoting, or transferring him. See, Allen v. Scribner, 812 F.2d 426, 434 n. 16 (9th Cir.1987) (“If Allen reasonably felt that office work was less desirable than field work, his reassignment might have had an impermissible chilling effect on his constitutionally protected speech,” even if the tasks “were commensurate with his training and experience.”), modified, 828 F.2d 1445 (9th Cir.1987); cf. Elrod v. Burns, 427 U.S. 347, 359 n. 13, 96 S.Ct. 2673, 2683 n. 13, 49 L.Ed.2d 547 (1976) (conduct used to discourage the exercise of first amendment freedoms “need not be particularly great in order to find that rights have been violated”; for example, “[rjights are infringed both where the government fines a person a penny for being a Republican and where it withholds the grant of a penny for the same reason”). The crux of this case, then, rests on whether Thomas’s complaint sufficiently alleges that Carpenter acted with an intention of retaliating against the exercise of constitutionally protected rights. Carpenter does not challenge Thomas’s allegations that the “substantial” or “motivating” factor of his decisions banning him from certain duties was because of Thomas’s candidacy for Sheriff. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-86, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977) (after plaintiff satisfies his burden of showing that the defendant’s conduct was motivated by his exercise of a constitutional right, the burden shifts to the defendant to establish that the decision would have been no different even in the absence of the protected conduct). Instead, Carpenter contends that Thomas’s campaign against him is not constitutionally protected. Whether a public employee’s conduct is constitutionally protected necessarily involves balancing “ ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). “The threshold question in applying this balancing test is whether [Thomas’s] speech may be ‘fairly characterized as constituting speech on a matter of public concern.' ” Id. 107 S.Ct. at 2896-97 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)). This inquiry is “determined by the content, form, and context of a given statement, as revealed by the whole record.” Id. 107 S.Ct. at 2897 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). There is no doubt that the allegations of Thomas’s complaint, taken as true, satisfies this threshold inquiry. The content of Thomas’s speech was to challenge Carpenter’s commitment to the Sheriff’s department and his competence in running an efficient law enforcement agency. Cf. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (“the competency of the police force is surely a matter of great public concern”). The form of the speech was literature disseminated widely throughout the County of Santa Barbara. And, of great significance, the statements occurred in the context of a political campaign. The content, form, and context of these statements clearly satisfy the threshold requirement even under the most exacting of views of what kinds of statements involve matters of public concern. See Rankin, 107 S.Ct. at 2902 (Scalia, J., dissenting) (speech on matters of public concern include “those matters dealing in some way with ‘the essence of self government,’ matters as to which ‘free and open debate is vital to informed decisionmaking by the electorate,’ and matters as to which ‘ “debate ... [must] be uninhibited, robust, and wide-open” ’ ” (citations omitted)). Balanced against Thomas’s interest in speaking on these matters of public concern is the public employer’s interest “in promoting the efficiency of the public services it performs through its employees.” Id. at 2898 (majority opinion). The focus of this part of the inquiry is on whether the protected conduct disrupts “the effective functioning of the public employer’s enterprise.” Id. at 2899. Factors to consider are “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Id. Where, as here, the challenged speech deals more directly with issues of public concern, the public employer is “required to make an even ‘stronger showing’ of disruption.” McKinley, 705 F.2d at 1115. “Exactly what that ‘stronger showing’ entails is unclear,” Allen, 812 F.2d at 432, and even varies depending on the context of the situation. “[A] police department,” for example, “ordinarily will not be governed by the same standard as a school district” because of the “ ‘differences between the public interest in education and the public interest in safety.’ ” Id. (quoting in part Byrd v. Gain, 558 F.2d 553, 554 (9th Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). Carpenter argues that these safety concerns tip the balance in his favor and therefore Thomas’s conduct was not constitutionally protected. “Yet even in a police department, the complained-of disruption must be ‘real, [and] not imagined.’ ” Id. (quoting McKinley, 705 F.2d at 1115). Here, the clear import of Thomas’s allegations is that his campaign against Carpenter did not impede his ability to perform his job or interfere with the safety responsibilities of the department. Simply stated, then, Carpenter cannot use the disruption exception “ ‘as a pretext for stifling legitimate speech or penalizing [Thomas’s expression of] unpopular views.’ ” Id. (quoting McKinley, 705 F.2d at 1115). Carpenter also relies on the political affiliation cases of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), to argue that he could justifiably exclude Thomas from any policymaking role on the department solely on account of Thomas’s being his political adversary. See also Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261 (1985). Elrod and Branti are not directly on point because they address political patronage dismissals based upon party loyalty. The election between Thomas and Carpenter, however, was nonpartisan. Nonetheless, “[t]he El-rod-Branti line is premised upon concerns similar to those animating the employee speech cases.” Hall v. Ford, 856 F.2d 255, 262 (D.C.Cir.1988). Accordingly, “the government interest recognized in the affiliation cases is also relevant in the employee speech cases.” Id. at 263. The interest advanced by Carpenter’s argument is the “need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367, 96 S.Ct. at 2687. This interest is not furthered, however, by the discharge of nonpolicymaking individuals who “have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.” Id. It simply cannot be decided on the basis of Thomas’s complaint that he would be in a position to thwart the goals of the in-party. As noted in Elrod, No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a poli-cymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well-defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policy-making position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Id. at 367-68, 96 S.Ct. at 2686-87. Even this formula is not all encompassing. “[T]he ultimate inquiry,” the Court announced later in Branti, “is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518, 100 S.Ct. at 1295. Carpenter cannot show, based solely on the allegations of Thomas’s complaint, that Thomas’s political loyalty is essential to the effective performance of the tasks removed from his list of responsibilities. Thomas alleges that the weekly staff meetings are informational only and do not involve the formulation of departmental policy. Also, it seems patent that the role of evaluator of the department’s high risk entry team has no significant relationship to one’s political loyalty. The effect of Thomas’s participation in policy manual revision meetings is much less clear. Carpenter may be able to prove at trial, or perhaps even by summary judgment, that Thomas’s political loyalty in each of these positions is needed for the effective implementation of general departmental policy. Compare Roth v. Veteran’s Admin. of Government of U.S., 856 F.2d 1401, 1408 (9th Cir.1988) (requiring trial on government’s defense that employee’s speech disrupted the office) with Balogh v. Charron, 855 F.2d 356, 357 (9th Cir.1988) (affirming summary judgment based upon bailiff's status as a confidential employee). At the pleading stage, however, Carpenter cannot satisfy this burden. Cf. Soderbeck, 752 F.2d at 288 (whether employee could be fired based on political affiliation “was sufficiently uncertain to be one for the jury to decide”). Ill Because Thomas’s complaint states a claim under section 1983, we reverse the district court and remand for additional proceedings. Thomas is entitled to costs of this appeal. However, a claim for attorneys’ fees is premature and must await the ultimate determination of the prevailing party. See Hanrahan v. Hampton, 446 U.S. 754, 756, 100 S.Ct. 1987, 1988, 64 L.Ed.2d 670 (1980). REVERSED AND REMANDED.

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?

GENERAL AMERICAN LIFE INS. CO. v. STEPHENS. No. 9722. Circuit Court of Appeals, Ninth Circuit. July 17, 1942. Rehearing Denied Sept. 8, 1942. Writ of Certiorari Denied Nov. 23, 1942. See-D.S. -, 63 S.Ct. 206, 87 L.Ed. -. For prior opinion, see 121 F.2d 218. John T. Gose and George B. Gose, of Los Angeles, Cal., for appellant. Clyde C. Shoemaker and William J. Currer, Jr., both of Los Angeles, Cal., for appellee. Before WILBUR, DENMAN, and MATHEWS, Circuit Judges. DENMAN, Circuit Judge. Wc have set aside our former decision and given further consideration to the facts as stated in the report of this case in 9 Cir., 121 F.2d 218. We there held that the matured coupons attached to the policy were assigned with the policy as security for the loan to the insured. Further consideration leads us to the conclusion that the coupons were not so assigned. After the assignment of the policy, one of the coupons was paid. This left to the insured but the first of his three options with respect to the coupons. The other two options required the surrender of all the coupons, both under option 2, for a fully paid-up policy after sixteen years payment of premiums, and under option 3 for the payment in cash of the face of the policy less loans after eighteen years payment of premiums. The remaining option provision is “Option 1. The insured may use the amounts designated in the coupons hereto attached for the reduction of his premium payments from year to year. ***** “In case the Insured shall pay all premiums in full, without coupon reduction, the unused due coupons shall be placed to the credit of the policy and shall be payable at any time, together with compound interest at the rate of three and one-half per cent per annum for each full year after due dates thereof; or, in the event of the death of the Insured said amount shall be payable to the beneficiary in addition to the face amount of the policy.” When the premium became due March 20, 1934, the original insurer was bankrupt and the appellant insurer agreed to pay but half the amount due on the coupons, which the insured declined to take, as was his right. With such refusal to pay them, the insured could not be regarded as treating them as an investment at 3% per cent. He then had but one effective use of their full value,—its application to the March 20, 1934, premium as provided in option 1. The appellant with the obligation of insurer, as well as successor to the loan, was required so to apply the coupons that the policy would survive. American Nat. Ins. Co. v. Yee Lim Shee, 9 Cir., 104 F.2d 688, 694, where we held “The general rule is that an insurer is not justified in declaring a forfeiture of an insurance policy for the nonpayment of a premium when at the time such premium accrues, the insurer is indebted to the assured, either for dividends declared or other funds which it may have in its hands belonging to the policy holder.” Cf. Great Southern Life Ins. Co. v. Jones, 8 Cir., 35 F.2d 122. It is stipulated that the value of the coupons on March 20, 1934, was $1054. The district court in its finding XI found that there was a lien on the policy in favor of appellant as of September 1, 1933, of $117.-00. This is the difference (to the nearest dollar) between the reserve on the policy, $3,166.70, and the loan to the insured of $3050. This lien and its interest at 5 per cent on March 20, 1934, amounted to $120.-2L Concerning this lien, the district court failed to take into account the provision of the reinsurance contract that “Every such lien, together with the interest thereon, will be deducted from any payment made by the New Company pursuant to the terms of each such policy or from any settlement made thereon or from the value used to purchase or provide any paid-up or extended insurance or to exercise any option provided by said policy ’’ (Emphasis supplied.) This clause requires the deduction of the lien from the coupons, whether the transaction on March 20, 1934, was (1) a “payment” of the coupons, or (2) a “settlement” in which they are a part, or (3) one involving the use of the “value” of the coupons “to exercise an option.” Deducting (and thereby discharging) the lien of $120.21 from $1,054, the stipulated value of the coupons, left $933.79 applicable to the premium of $936 due March 20, 1934,—that is, $2.21 less than the annual premium. However, this $933.79 was sufficient to continue the policy, since it covered three quarterly premiums under the “Automatic Extended Insurance” provision of the policy for part payment of premiums. Also under that provision such payment increased the reserve by $300, that is, three-fourths the $400 increase from the $3,050 of March 20, 1933, to $3,350 of March 20, 1934. On March 20, 1934, this reserve of $3,350 was of sufficient value to more than cover $3,233, the loan of $3,050 and the interest, $183, prepayable for the succeeding year. There was still left a loan value in the reserve of $117, from which, under the optional policy provision (accepted by the insured) for “Premiums Advanced from Loan Values,” insured’s loan was automatically increased by the $2.21 to pay the balance of the premium. This increased the principal of the loan to $3,052.21. In all, with the prepaid interest, the loan amounted to $3,235.21 at the death of the insured. The payment of the full premium created the tenth coupon of $145.80. This coupon bore interest only for “each full year.” Hence on deceased’s death, on October 22, 1934, less than eight months from March 20, 1934, it was payable without interest. On the insured’s death on October 22, 1934, the policy was in full force and effect with a year’s premium paid. The appellant then owed $10,145.80, being the policy’s principal plus $145.80, the amount of the tenth coupon, less the loan (with its interest prepaid) of $3,235.21. The balance thus due on October 22, 1934, was $6,910.59. This amount is $117 less than $7,027.59, the amount found by the district court to be due on insured’s death. The difference appears to arise from the failure of the district court to deduct from the coupon value the $117 lien on the policy on September 1, 1933, in exercising the option to use the coupons to pay the premium. The judgment should have been for $6,-910.59, plus interest from October 22, 1934, to the judgment date, September 25, 1940, or $9,777.14,-—that is, unless the appellant insurer was entitled to have added to its lien of September 1, 1933, a further sum computed on a reserve which included the coupon liability. This claim of-a larger lien is based upon an interpretation of the lien provision of appellant’s contract with the Missouri Insurance Commissioner, acting as statutory trustee for the policy holders and creditors of the defunct General American Life Insurance Company. We are of the opinion, contrary to our former view, that the trial judge properly held that appellant’s agreement is an insurance agreement to be strictly construed against appellant insurer. This is apparent from the fact that the suit here is to recover $10,000 which the appellant had agreed to pay on the death of appellee’s husband. As stated, it was made by the Insurance Commissioner, acting in behalf of all the per-sons insured by the defunct company, with the appellant insurer. In it the latter agreed to carry out the provisions of each of the insured’s policies as modified by the agreement. Appellant’s agreement is one for life insurance. The pertinent portion of the lien clause is “Section (c) Liens.—Inasmuch as the present appraised value of the assets purchased hereunder is less than the required reserves, a lien (adjusted to the nearest dollar) equal to 50% of the terminal reserve on each policy of life insurance and each annuity policy as such reserve has been established in the accounts of the old Company, computed as of September 1, 1933, to the date to which premiums on such policies have been paid, will be established and placed against such policy; provided, that in no case shall such lien exceed the amount by which said reserve shall be in excess of the indebtedness on any such policy as of September 1, 1933. * * Appellant repeatedly contended below that the phrase “terminal reserve on each policy of life insurance and each annuity policy as such reserve has been established in the accounts of the Old Company,” was inserted in the contract at the instance of the appellant insurer. Applying the usual rule of construction against an insurer’s own phraseology, we accept as a reasonable interpretation of the phrase “terminal reserve on each policy of life insurance,” that it is the reserve on the “life insurance” agreement only. It is such a reserve so limited which appellant must show was “established in the accounts” of the defunct company. This is the reserve upon which the district court found the lien discussed above. The court properly excluded the proffered evidence of a larger amount based upon a claimed lien based on the amount of the coupons. The judgment is reversed. The district court is instructed to render judgment nunc pro tunc of date September 26, 1940, for $9,777.14, the judgment to bear interest thereon at 7 percent per annum from the date of its entry.

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?

NATIONAL LABOR RELATIONS BOARD v. STILLEY PLYWOOD CO., Inc. No. 6411. United States Court of Appeals Fourth Circuit. Argued Oct. 8, 1952. Decided Oct. 13, 1952. Owsley Vose, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Normán Somers, Asst. Gen. Counsel, and Maurice Alexandre, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner. John B. McCutcheon, Conway, S. C. (Suggs & McCutcheon, Conway, S. C., and Arthur M. Williams, Jr., Columbia, S. C., on the brief), for respondent. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. This is a petition to enforce an order of the National Labor Relations Board which directed the Stilley Plywood Company of Conway, South Carolina, to cease and desist from unfair labor practices, to bargain in good faith with a labor union which had been chosen as bargaining representative by its employees and to reinstate with back pay certain employees found to have been discriminatorily discharged or denied reinstatement after a strike brought about in part by unfair labor practices. The facts are fully set forth in the decision and order of the Board and the lengthy report of the trial examiner and need not be repeated here. We think that the findings and order of the Board are sustained by substantial evidence on the whole record except the findings as to the discriminatory discharge of Jethro Rabón and the order for his reinstatement. Respondent admits that the Board’s findings with respect to the anti-union activities and coercion in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1), are supported by substantial evidence; and there can be no doubt that its findings with respect to refusal to bargain in good faith and the discriminatory discharges of the employees Lewis and Allen are likewise amply supported. While the demand for increase in wages and respondent’s refusal thereof were doubtless potent factors in bringing about the strike, there is substantial support for the Board’s finding that respondent’s refusal to bargain and other unfair labor practices were also con-, tributary factors; and where unfair labor practices are a factor in bringing about a strike the Board may shape its remedies with a view of removing the effect of such practices. As said by Judge Goodrich in Berkshire Knitting Mills v. N. L. R. B., 3 Cir., 139 F.2d 134, 137: “Where the causes contributing to a strike consist of unfair labor practices and employee desires for wage betterments, the latter should not excuse the employer from the legal consequences that flow from its conduct which transcends the permissible bounds under the National Labor Relations Act”. Question is raised about the amount of back pay to be awarded, but this is a matter to be worked out in future orders of the Board. Certainly, the orders should do no more than make whole the employees discriminatorily discharged or denied reinstatement by awarding them an amount which will equalize their earnings with those-not subjected to discrimination. They should not be awarded wages for the time that the mill was standing idle nor should such periods of idleness deprive them of the right to return to work accorded other employees. The order of the Board will be modified by striking therefrom the finding as to the discriminatory discharge of Jethro Rabón and the order of reinstatement with back pay based thereon; and as so modified the order of the Board will be enforced. Modified and enforced.

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?

Eugene LYNCH, Appellant, v. David R. LANDY, Deputy Commissioner and William K. Rogers, Assistant Deputy Commissioner, Bureau of Employees’ Compensation, United States Department of Labor and Industrial Indemnity Co., et al., Appellees. No. 21852. United States Court of Appeals Ninth Circuit. June 10, 1968. Rehearing Denied July 9, 1968. Eugene Lynch (argued), in pro. per. William Kanter (argued), Lee H. Cliff (argued), Morton Hollander, Jack H. Weiner, Attys., Department of Justice, Washington, D. C., Edwin L. Weisl, Jr., Asst. Atty. Gen., Washington, D. C.; Cecil F. Poole, U. S. Atty., John Meadows, Admiralty & Shipping Section, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for appellees. Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and CARTER, Circuit Judges. PER CURIAM: Eugene Lynch, appellant, appeals from an order entered by the United States District Court for the Northern District of California dismissing his action to recover damages for personal injuries in the amount of $150,000.00, and for other relief, against Industrial Indemnity Co., the insurance carrier for appellant’s former employer, and David R. Landy and William K. Rogers of the “Department of Labor Bureau of Employees' Compensation for the Thirteenth Compensation District, Northern California,” appellees. The action filed on November 21, 1966, was dismissed by the district court on the ground, inter alia,, that the court lacked jurisdiction over the subject matter set forth in the complaint. Jurisdiction of the district court was predicated under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. It appears that on November 6, 1961, while employed by Martinolich Ship Repair Co., appellant was overcome by noxious fumes while cleaning tanks aboard a barge on San Francisco Bay, at Oakland, California. The employer had immediate notice of the claimed injury and appellant received medical attention on the date of the injury, and received compensation from November 6, 1961 to December 19, 1961. On November 23, 1962, appellant filed a claim under the Longshoremen’s and Harbor Workers’ Compensation Act with the Bureau of Employees’ Compensation. This claim was designated as Claim No. 294-83 and is still pending before the Bureau of Employees’ Compensation. On July 15, 1964, appellant brought an action in the same district court against his former employer and its insurance carrier. The district court dismissed the action on the ground, inter alia, that the court lacked jurisdiction over the subject matter of the action. Appellant appealed and ultimately his petition for a writ of certiorari was denied by the Supreme Court (Lynch v. Industrial Indem. Co., 382 U.S. 844, 86 S.Ct. 42, 15 L.Ed.2d 84), which likewise denied the petition for rehearing (382 U.S. 949, 86 S.Ct. 386, 15 L.Ed.2d 358). After denial of the petition for certiorari, appellant contacted the Bureau of Employees’ Compensation, and insisted that his claim filed with the Bureau be heard and determined by a trial judge “at the United States Court of Appeals”, and not by the Deputy Commissioner assigned to hear the claim. Thereafter the appellant instituted the action which the district court dismissed for lack of jurisdiction of the subject matter, appeal from which order is now before us. It is clear to us that the action filed in the district court was premature. Appellant’s claim under the Longshoremen’s and Harbor Workers’ Compensation Act is still pending before the Bureau of Employees’ Compensation. Appellant’s claim has not been rejected and no award has been made. The Act establishes the procedure in respect to claims for compensation benefits under its provisions. 33 U.S.C. § 919 provides that the deputy commissioner shall have full power and authority to hear and determine all questions in respect to such claims. 33 U.S.C. § 921 provides that: “If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred * * and that proceedings for suspending, setting aside, or enforcing an award shall not be instituted otherwise than as provided in section 921. This court has clearly held that a decision of the deputy commissioner is a prerequisite to the consideration in the district court of the merits of a claim under the Longshoremen’s and Harbor Workers’ Compensation Act. Paramino Lumber Co. v. Marshall, 95 F.2d 203, 205 (9th Cir.), cert. denied 305 U.S. 603, 59 S.Ct. 63, 83 L.Ed. 382 (1938); Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 49 (5th Cir. 1960); Leonard v. Liberty Mutual Ins. Co., 267 F.2d 421, 424-425 (3d Cir. 1959). See also Associated-Banning Co. v. Landy, 254 F.Supp. 275 (N.D.Cal.S.D.1965). Appellant is advised to return to the Bureau of Employees’ Compensation and pursue his remedy there until the deputy commissioner issues a final decision on the pending claim. The order of the district court 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 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?

Mrs. Guilberta Dakin MAGGIORE et al., Plaintiffs-Appellants, v. J. C. BRADFORD et al., Defendants-Appellants. Nos. 14790, 14823. United States Court of Appeals Sixth Circuit. Dec. 4, 1962. David Keeble, of Hooker, Keeble, Dodson & Harris, and W. Raymond Denney, of Denney, Leftwich & Osborn, Nashville, Tenn., Z. T. Osborn, Jr., E. J. Walsh, Nashville, Tenn., on brief, for plaintiffs-appellants. William Waller, of Waller, Davis & Lansden, Nashville, Tenn., Clarence Evans, Cecil Sims, Nashville, Tenn., on the brief; Farris, Evans & Evans, Bass, Berry & Sims, Nashville, Tenn., of counsel, for defendants-appellants. Before CECIL, Chief Judge, WEICK, Circuit Judge, and TAYLOR, District Judge. WEICK, Circuit Judge. The suit in the District Court was a stockholders derivative action. It was brought by minority stockholders of Phillips & Buttorff Corporation, a Tennessee corporation, *to rescind a transaction whereby the controlling shareholders of P & B (hereinafter referred to as Comer Group) financed the purchase of their stock with funds derived from their sale to P & B of 60,000 shares of an unlisted stock owned by them in Wm. R. Moore Dry Goods Company of Memphis, Tennessee for $2,700,000. The complaint alleged conspiracy and fraud and charged a violation of the fiduciary duty owing by controlling shareholders. It averred that the assets of P & B were wrongfully depleted by the transaction to the detriment of P & B and the minority shareholders. The transaction complained of was handled in a somewhat circuitous manner. Brokers, who were made defendants in the action, acquired the shares of P & B on the order of Guy L. Comer with temporary financing. The shares were placed in the name of Church of Christ Foundation, a corporation not for profit, of which Mr. Comer was a trustee. Woodstock Corporation, a Comer company, with the authority of the Foundation and its subsidiary, First National Company, gave P & B an option to purchase the Moore shares at $45.00 a share. P & B loaned $2,000,000 to Woodstock secured by a pledge of the Moore stock, which pledge was made by permission of the owners. The brokers through Woodstock gave First National Company an option to purchase 75,721 shares of the common stock of P & B, which carried the control of P & B. First National Company assigned its option on the P & B stock to the Foundation which exercised it. P & B exercised its option and purchased the Moore shares. As of December 31, 1955 P & B had cash on hand of $953,335.53 and investments in government and other marketable securities totaling about $2,000,-000. In order to make the loan to Woodstock and purchase the Moore stock, P & B liquidated its securities and borrowed additional money from a bank. The Comer Group had previously acquired the Moore shares by the use of Moore’s assets and the shares were placed in the name of the Foundation. The case pended in the District Court for about ten months. Discovery proceedings had been taken. On October 15, 1958, which was before the case had been assigned for trial, P & B sold the Moore stock back to the Foundation for $45.00 a share. The District Court impressed a lien on the proceeds of sale for attorneys fees for plaintiffs’ counsel. Plaintiffs then filed an amended complaint seeking to recover from the officers and directors of P & B operating losses sustained by P & B before the transaction was rescinded. The only questions left for determination by the District Court were as to the allowance of attorneys fees to counsel for plaintiffs, the liability of the officers and directors of P & B for the operating losses sustained by P & B, and the appointment of a receiver. The District Judge considered the matter of allowance of attorneys fees on the basis of whether the plaintiffs, as minority shareholders, were entitled to relief, rescinding the transaction. On this proposition the controlling evidence was uncontroverted. It remained only for the court to determine the legal consequences. The District Judge was of the view that this evidence did not prove conspiracy or fraud. He found that the price paid for the Moore shares was not unfair or oppressive either to P & B or its minority shareholders. He held that the evidence did not show that the Comer Group actually exercised control over the directors and officers of P & B even though they had the right to control; that the operating losses were not attributable in whole or part to the Moore purchase. The court dissolved the attorneys’ lien and dismissed the complaint. On the issue whether the Comer Group exercised control, the transaction speaks for itself. The officers and directors of P & B entered into the transaction without making a proper investigation and without knowledge even as to who was behind the deal. They liquidated all the marketable securities of the company and made a loan to a corporation which had no assets other than the Moore stock. Looking through the corporate maze, the deal was simply one whereby the majority shareholders were using corporate assets to finance their purchase of the stock. It is clear to us that it was not an arms length business transaction, but one which was entered into by a person dealing with himself. Without going into further detail, we think that, at least,' constructive fraud was shown and that the District Court was mistaken in not so finding. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. It is well-settled that dominant or controlling shareholders who exercise control over a corporation are fiduciaries. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 250 U.S. 483, 39 S. St. 533, 63 L.Ed. 1099; Seagrave Corp. v. Mount, 6 Cir., 212 F.2d 389; Dale v. Thomas H. Temple Company, 186 Tenn. 69, 208 S.W.2d 344. Some authorities hold that transactions between persons in control and the corporation are illegal and may be set aside irrespective of the fairness thereof. Gillespie v. Branham, 47 Tenn.App. 234, 337 S.W.2d 689, cert. denied by the Supreme Court of Tennessee on December 12, 1959; Attalla Iron Ore Company v. Virginia Iron, Coal & Coke Co., 111 Tenn. 527, 77 S.W. 774. If the transaction is regarded merely as one subject to “close scrutiny,” in our judgment, it cannot withstand the light of day. Stripping P & B of its cash and marketable securities and requiring it to borrow money so that the Comer Group could finance their controlling shares certainly operated to the prejudice of P & B and its minority shareholders. The evidence clearly disclosed the plan to acquire the control of P & B by the use of its assets. The defendants all participated in carrying it out. A conspiracy is an agreement to perform an illegal act. It may be shown by direct as well as circumstantial evidence. In our judgment, it was clearly established by the evidence. It is no defense that plaintiffs did not exhaust their corporate remedies. Since P & B was under the control of the Comer Group, it would have been futile to resort to it. The fact that the case pended in the District Court for ten months before the rescission was made is pretty good proof of the unavailability of any adequate corporate remedy. Under the circumstances resort to such remedies was excused. Akin v. Mackie, 203 Tenn. 113, 310 S.W.2d 164; Peeler v. Luther, 175 Tenn. 454, 135 S.W.2d 926. The District Court did not consider the right to allowance of attorneys’ fees on the basis of the liability of defendants to rescind the transaction and the case must be remanded for that purpose. The fact that'the defendants rescinded the transaction before the court had an opportunity to pass upon the merits of the case would not, in our judgment, defeat the right to compensation. The rescission, however, without the necessity of a trial must be taken into account in fixing fees along with other relevant factors. A question was raised as to liability for interest on $2,700,000. We think it should be computed at the legal rate from the date of the commencement of this action (January 16, 1958) to the date of rescission (October 15,1958) less credits for interest received by P & B from Woodstock Corporation and less dividends received by P & B from the Moore stock during said period. Dale v. Thomas H. Temple Co., 186 Tenn. 69, 208 S.W.2d 344. Relative to the operating losses, the District Court found as a fact that these were not attributable to the purchase of the Moore stock. In our judgment, this finding was not clearly erroneous. Nor do we find any error in the refusal of the court to appoint a receiver for P & B, or in denying plaintiffs’ motion under Rule 60(b). The judgment of the District Court is reversed in Case No. 14790 and the cause remanded for further proceedings in conformity with this opinion. The judgment in Case No. 14823 is affirmed. . Phillips & Buttorff Corporation will be referred to as P & B. . Wm. It. Moore Dry Goods Company will be referred to as Moore,

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.

GEORG JENSEN HANDMADE SILVER, Inc., v. GEORG JENSENS SØLVSMEDIE A/S et al. No. 6392. United States Court of Appeals for the District of Columbia. Argued April 9, 1935. Decided June 24, 1935. Rehearing Denied July 25, 1935. Axel V. Beeken, of Washington, D. C., for appellant. Walter C. Clephane, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. PER CURIAM. Appeal from a decree in the Supreme Court of the District quashing service of a subpcena and the .return thereon, and dismissing the bill for want of jurisdiction. A brief statement showing the relation'ship of the parties will be helpful. The defendant Georg Jensens S{!>lvsmedie A/S (which we shall refer to as the Silver-smithy) is a Danish corporation engaged in Denmark in the manufacture of gold and silverware and jewelry. The defendant Pedersen is a Danish subject, a resident of Denmark, and an officer of the Silver-smithy. The defendant Georg Jensen & Wendel A/S (the Jensen & Wendel corporation) is also a Danish corporation located in that country and engaged in the sale of the products manufactured by the Silversmithy. The defendant Miller is also a subject and resident of Denmark and an officer of the Jensen & Wendel corporation. In August, 1923, a contract (an exhibit to plaintiff’s bill) was entered into between the Silversmithy, Pedersen, Miller, Georg Jensen (designer of Silversmithy’s products), and Frederik Lunning. Lunning thereby secured for a definite term of years for himself and his assigns the exclusive right to sell in the United States articles manufactured by the Silversmithy. from designs made by the artist, Jensen. Lunning was to make a specified minimum volume of sales yearly, and he was to be allowed the use of all patents, trade-names, and trade-marks in connection with the business. As protection to Lunning the other parties undertook for a period of twenty years to refrain from selling the same wares in the United States, Lunning’s exclusive territory. Lunning was to sell only the products of the Silversmithy. In January, 1925, and April, 1926, supplementary agreements were entered into whereby the 20-year term was extended and Lunning’s obligation was modified as to the volume of sales required of him. The 1926 supplementary contract also modified Lunning’s prior obligation to purchase solely from the Silversmithy. The Jensen & Wendel corporation was not a party to any of these contracts. In June, 1928, Lunning assigned his entire business in the United States, including his contract rights, to Georg Jensen Handmade Silver, Inc., a New York corporation, and plaintiff below (appellant here), which is engaged in the sale in the United States of the Silversmithy’s products. Thereafter, in 1934, the present suit was initiated, the object of which, broadly-stated, is to establish the validity of the contracts above referred to as well as the assignment by Lunning to appellant, and to secure equitable relief against their alleged violation. Since all the defendants were, as above stated, subjects and residents of Denmark and not doing business within the District, jurisdiction was sought to be obtained by, service of subpcena upon Herbert R. Kerslake (a resident of the District of Columbia), who had been designated in three trade-mark registrations as a special process agent of the Silversmithy and the Jensen & Wendel corporation under the provisions of section 3 of the Trade-Mark Act of 1905 (15 U. S. C. § 83, 15 USCA § 83). That section provides that every applicant for the registration of a trade-mark, or its renewal, who is not domiciled within the United States, “'shall, before the issuance of the certificate of registration * * * designate, by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings affecting the right of ownership of the trade-mark of zvhich such applicant may claim to be the ozrner, brought under the provisions of this act or under other laws of the United States, may be served, with the same force and effect as if served upon the applicant or registrant in person.” (Italics ours.) The court below, after stating that neither of the defendants, Pedersen and Miller, was designated as process agent under the Trade-Mark Act, and that while the bill claims that the corporate defendants represent the individual defendants, being as the bill expresses it each an “alter ego” of the individual defendants, held that a suit against an agent is- not a suit against , the principal; that the service provided by statute brings before the court the person who appoints the process agent, and not any third person whose agent the appointing party may be; that an agent cannot be sued upon a cause of action arising from the acts of the principal; and that it is not necessary to determine whether the “proceedings” referred to in the Trade-Mark Act were limited to proceedings in the Patent Office, because the court was without jurisdiction in the case even if the provisions of the statute were not so limited; that the agency of Kerslake is limited in its scope to proceedings “affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner”; that the only matters in the bill which could be considered as coming within this provision is that part of the bill which seeks to cancel the .Silversmithy Registration No. 148928, “and the bill on its face shows that the trade-mark is no longer in force”; and that under this pretext the defendants cannot be brought before the court for purposes not within the statute. Section 3 of the Trade-Mark Act 1905 is of limited application. Maya Corporation v. Smith (D. C. Del.) 32 F.(2d) 350; Erickson v. Macy, 231 N. Y. 86, 90, 131 N. E. 744, 16 A. L. R. 1322. The provision requiring a nonresident applicant to designate some person residing within the United States on whom process may be served is restricted to “proceedings affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner.” In the present case an examination of the bill and exhibits fails to disclose that any one of the defendants claims to be the owner of any registered mark claimed by appellant, or which so nearly resembles such mark as to be likely to be mistaken therefor by the public. Section 7, Trade-Mark Act 1905, 15 U. S. C. § 87, 15 USCA § 87. There is, therefore, no basis for the contention that the defendants had submitted to the jurisdiction of the court below. Appellant further contends that the attempted special appearance was in fact a general appearance by which the defendants submitted themselves to the jurisdictions of the court. There is no merit in this contention. In Jones v. Gould (C. C. A. 6) 149 F. 153, 156, the claim was that the defendants invoked the exercise of jurisdiction upon the merits by requiring the court to pass upon the facts of the case in order to determine the nature of the relief prayed. The court answered the contention as follows: “But we think this is a forced construction of the language employed. It was indeed necessary for the court to look into the bill and ascertain from its allegations and the prayer for relief whether the nature of the case was such as to authorize it under the provisions of section 738, Rev. St., and of section 8, Act March 3, 1875, c. 137, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513 [see 28 USCA § 118]), to obtain jurisdiction of the defendants by publication of notice or service of process outside of its territory, for service could not be had within it. * * * The defendants, therefore, properly referred to the nature of the relief sought by the bill as a reason for denying the jurisdiction of the court over their persons, for as they were neither citizens of the state nor residents therein, personal service could not be had, and the question for the court would then be whether the nature of the case was such that the substituted service- authorized by the statute could be resorted to.” In Gage v. Riverside Trust Co. (C. C.)' 156 F. 1002, 1003, the court said: “There is no question but that, on a motion ■to vacate an -order for ■ substituted service .made under said section [section 8, act of March' 3, 1875, IS Stat. 472], the court must examine the bill in order to ascertain whether or not the case is within the statute. ' * * * Facts, which would otherwise be heard only on the merits, must necessarily ■ be considered in determining the legality of the service.” The decree was right, and is affirmed. 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, Appellant, v. Gerard WAGNER, Defendant, Michael Canale; Tammie Canale; Thomas Brewer; Donald Howard; Shawna O’Leary; Leo Talback; Arthur Villa and David Keays, Defendants-Appellees. No. 97, Docket 92-1173. United States Court of Appeals, Second Circuit. Argued Sept. 18, 1992. Decided March 12, 1993. Paul D. Silver, Asst. U.S. Atty. for the N.D.N.Y. (Gary L. Sharpe, U.S. Atty. for the N.D.N.Y., of counsel), for appellant. Michael A. Feit (Ellen C. Brotman, Feit & Schlenker, Albany, NY, of counsel), for defendant-appellee Michael Canale. Joseph R. Brennan (McPhillips, Fitzgerald & Meyer, Glens Falls, NY, of counsel), for defendant-appellee Shawna O’Leary. Before MINER, ALTIMARI, and WALKER, Circuit Judges. WALKER, Circuit Judge: This is an interlocutory appeal by the United States, pursuant to 18 U.S.C. §§ 2518(10)(b) and 3731, of an order of the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge) dated January 23, 1992, suppressing the fruits of a wiretap on the telephone of Defendant Michael Canale (hereinafter “Canale”) and a search of Defendant Shawna O’Leary’s home. On April 8, 1991, Judge Cholakis authorized the wiretap pursuant to 18 U.S.C. § 2518. The O’Leary search warrant was issued by United States Magistrate Ralph W. Smith, Jr. on May 3, 1991. The various defendants were indicted on October 9, 1991 for possession and distribution of marijuana and for conspiracy to do the same in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also charged Ca-nale with possession and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). In his January 23, 1992 suppression order, Judge Cholakis concluded that the affidavit in support of the application for authorization of interception of wire communications (the “Wiretap Affidavit”) was not supported by probable cause, and that the affidavit submitted with the application for the search warrant (the “Search Warrant Affidavit”) failed to establish probable cause and was stale. The government, in its appeal from this order, maintains that the two affidavits did establish probable cause, that the search warrant was not stale, and that officers conducting the search and the agents executing the wiretap acted in good faith reliance on the search warrant and the authorization of the wiretap. We denied an earlier motion by the defendants to dismiss the appeal. See Canale v. United States, 969 F.2d 13 (2d Cir.1992). While we uphold the suppression of evidence seized in the search of O’Leary’s home, we reverse the suppression of evidence derived from the wiretap. A. The Canale Wiretap Application On April 8, 1991, Judge Cholakis signed an order that he would later contradict authorizing the interception of wire communications on Canale’s telephone pursuant to 18 U.S.C. § 2518(3). Title 18, United States Code, Section 2518(3)(a-d), requires that before issuing an order for interception of wire communications, the judge must determine, based on the facts in the affidavit, that there is probable cause to believe that a crime has been, is being, or is about to be committed; probable cause to believe that communications about the crime will be obtained through the wiretap; that alternative means have been tried and failed or appear too dangerous or unlikely to succeed; and probable cause that the premises to be wiretapped are being used for criminal purposes or are used or owned by the target of the wiretap. The test for determining probable cause under 18 U.S.C. § 2518 is the same as that for a search warrant. United States v. Rowell, 903 F.2d 899, 901-02 (2d Cir.1990); United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court set forth a “totality-of-the-circumstances” test for determining probable cause to support a search warrant. The issuing judicial officer must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” 462 U.S. at 238, 103 S.Ct. at 2332. The quanta of proof necessary to establish probable cause is “only the probability, and not a prima facie showing, of criminal activity....” Id. at 236, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)). A reviewing court must accord substantial deference to the finding of an issuing judicial officer that probable cause exists. United States v. Nichols, 912 F.2d 598, 602 (2d Cir.1990) (search warrant); United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983) (search warrant). The reviewing court’s determination should be limited to whether the issuing judicial officer had a substantial basis for the finding of probable cause. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; United States v. Nersesian, 824 F.2d 1294, 1306 (2d Cir.) (wiretap authorization), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987). In this case Judge Cholakis authorized the wiretap as based upon probable cause. After the agents had executed the wiretap, secure in the knowledge that their search and seizure of communications had been judicially approved, the district judge reversed himself and found probable cause lacking. In these circumstances, it is Judge Cholakis’s April 8, 1991 order authorizing the wiretap upon which the agents acted in apparent good faith, and not Judge Cholakis’s order suppressing the fruits of the wiretap on January 23, 1992, which we believe to be entitled to deference. It was in issuing the first order and not the second that he was acting as an issuing judicial officer to whom deference is owed. The wiretap application was supported by an affidavit of Special Agent Robert K. Sears of the Drug Enforcement Administration (the “DEA”), in which Agent Sears stated that the DEA was conducting a joint investigation, with the Warren County Sheriff’s Department and the New York State Police, of a marijuana distribution ring controlled by Canale. The affidavit stated that beginning on June 19, 1990, a confidential informant (the “Cl”), who had not worked previously with law enforcement officials, told Agent Sears that he had known Canale for approximately 20 years, during which time he had sporadically purchased small, “user” quantities of marijuana from Canale. Prior to becoming an informant, the Cl was in Canale’s home at various times from December, 1989 to March, 1990 doing construction work in a room in the basement. On several occasions, the Cl saw large quantities of marijuana, and smaller quantities of cocaine, in Canale’s house. Sometime around December, 1989 or January, 1990, the Cl helped break up a one-hundred-pound package of marijuana in the house and was paid a small quantity of marijuana and cocaine for his work on the house. After beginning to cooperate with the government in June, the Cl continued to observe drugs in Canale’s home. In January, 1991, Canale gave the Cl $700 to buy one quarter pound of marijuana from Michael Stewart, saying that his supply was low. Following the instructions of Agent Sears, the Cl returned the $700 to Canale. The affidavit also stated that, under the supervision of the agents and officers conducting the investigation, from December, 1990 to February, 1991, the Cl made six separate purchases of marijuana and cocaine from members of the alleged Canale conspiracy other than Canale. On February 19 and 25, also under law enforcement supervision, the Cl bought marijuana from a person not believed to be a member of the conspiracy alleged. The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of providing reliable information, or if it is corroborated in material respects by independent evidence. If a substantial amount of information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that he provides, though uncorroborated, is also reliable. In this case our focus is entirely upon the reliability of the information provided by the Cl, since without that information, probable cause is lacking. An inquiry into the reliability of an informant’s information is usually of two general types, not necessarily mutually exclusive: an inquiry into an informant’s veracity and an inquiry into the quality of his sources of knowledge of the information. By quality of sources we mean the degree to which his information is based on reliable means, such as first-hand observations or secondhand information from reliable sources, rather than on unreliable means such as rumor or innuendo. Our inquiry here is of the first type, a focus on the veracity of the Cl, since if the Cl was telling the truth to Agent Sears, then probable cause to believe that criminal activity was being conducted in Canale’s home is easily established in light of the fact that the Cl described numerous occasions on which he personally witnessed, and even participated in, drug distribution-related activities in the Canale home. While information provided by an informant from whom the government has received consistently reliable information in the past is likely to be sufficiently reliable to establish probable cause, Gates instructs that it is improper to discount an informant’s information simply because he has no proven record of truthfulness or accuracy. 462 U.S. at 237-38, 103 S.Ct. at 2331-32 (holding that a tip from an anonymous informant can be a basis for a finding of probable cause). Even where an informant has no proven record, if an informant’s declaration is corroborated in material respects, the entire account may be credited, including parts without corroboration. See generally id. The Cl’s account of the various activities he witnessed inside Canale’s home was properly credited by Judge Cholakis when he issued the wiretap authorization. Corroboration of information the Cl gave the officers was amply provided by the fact that the Cl made six supervised purchases of marijuana and cocaine from members of the alleged conspiracy, and two drug purchases from another suspect. An informant’s participation in supervised drug purchases is powerful corroborative evidence for purposes of determining probable cause. See United States v. Adams, 759 F.2d 1099, 1114 (3d Cir.), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985); United States v. Sandoval, 550 F.2d 427, 430 (9th Cir.1976), cert. denied, 434 U.S. 879, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977). Applying the common sense, totality-of-thé-circumstances test set forth in Gates, it was reasonable for the issuing judge to conclude that the Cl’s information as set forth in the affidavit was truthful. While there is always a possibility that an informant has concocted his story while pretending to cooperate in order to harass an innocent or curry favor with the police, our common sense tells us that in circumstances such as those presented in this case, where the Cl cooperated with the government for nine months and made eight drug purchases under government supervision, it is far more likely than not that such deception was absent. Apart from the corroborating drug purchases, the veracity of the Cl’s story has additional support. The affidavit stated that Canale was previously convicted of a New York state charge of Criminal Possession of Marijuana in the First Degree, but that conviction was overturned under New York’s Speedy Trial Act. Prior convictions are a relevant consideration in determining probable cause. United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990); see also Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) (“that petitioner was a known user of narcotics made the charge against him much less subject to scepticism [sic] than would be such a charge against one without such a history”). That the prior conviction was overturned on technical grounds does not affect its probity as to probable cause. Cf. United States v. Nolan, 551 F.2d 266, 272-73 (10th Cir.) (prior British conviction is valid consideration in determining probable cause despite fact that defendant did not receive Miranda warnings), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). Also, pen register data indicating calls between Ca-nale and others said by the Cl to be members of the alleged conspiracy corroborated the Cl’s information. See United States v. Zucco, 694 F.2d 44, 47 (2d Cir.1982); see also Gates, 462 U.S. at 243-45, 103 S.Ct. at 2334-35. Although the Cl did not make a government-supervised drug purchase from Canale himself, the affidavit stated that he made three such purchases from David Keays, who the Cl said was a member of the conspiracy. The pen register showed twenty-five calls between Canale and Keays over the period February 5 to April 1, 1991. The pen register data has added significance in light of the Cl’s statement that on one occasion at Keays’s house he overheard Keays speaking on the telephone with Canale about a large marijuana shipment. The purchases from Keays, the CPs information about the Keays-Canale conversation, and the corroborating pen register data constitute reliable information that Canale was a knowing participant in a marijuana distribution network. The CPs account, as corroborated, established probable cause to believe crimes were being committed, and that these crimes were occurring in Canale’s home, satisfying the first and fourth prongs of 18 U.S.C. § 2518(3). The second prong, whether the affidavit establishes probable cause that the wiretap will intercept evidence of crime, is met by the pen register data showing frequent calls between those who the Cl stated were members of the conspiracy, as well as the CPs statement that Canale’s practice was to have his distributors call him before coming to his house to pick up the marijuana. In light of these facts, the affidavit easily established that it was more likely than not that evidence of the conspiracy would be obtained by intercepting calls on the telephone at Canale’s residence. The affidavit also satisfied the requirement that it establish that other investigative techniques have been tried and failed or appear too dangerous or unlikely to succeed. The affidavit cited the rural location of the house and the presence of dogs on the property as making surveillance difficult. It also recited that the Cl had not been able to determine the source of supply and method of delivery of marijuana to Canale. Finally, the affidavit stated that the government did not think that it could infiltrate the organization with one or more undercover agents. In sum, we find ample support for Judge Cholakis’s April 8, 1991 authorization to intercept wire communications at Canale’s home. It was error for Judge Cholakis to suppress the fruits of the wiretap in his January 23, 1992 order and, accordingly, we reverse. B. The O’Leary Search Warrant Our view of the alleged probable cause to search O’Leary’s home is quite different. The district court concluded that the affidavit in support of that search was insufficient to establish probable cause. We agree. The affidavit stated that the Cl purchased a small quantity of marijuana consisting of four “nickel bags” from O’Leary on March 19, 1991 in her home, that the transaction was tape recorded, and that O’Leary “stated in substance” that she had obtained the marijuana from Canale. Six weeks later, on May 3, 1991, the search warrant was issued and the search was physically conducted six days after that. The district court was of the view that by this time the affidavit was stale. We agree with the district court that, while the affidavit might barely have supported a search that was more or less contemporaneous with the Cl’s drug purchase, the six-week delay placed the information in the affidavit below the probable cause threshold. While there is no bright line rule for staleness, the facts in an affidavit supporting a search warrant must be sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search and not simply as of some time in the past. Compare Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932) (undercover alcohol purchase at hotel twenty-one days prior to application for warrant too remote in time), with United States v. Beltempo, 675 F.2d 472, 476-79 (2d Cir.) (search warrant not stale when object sought was trace sample of heroin observed spilled on rug fifty-two days prior to issuance of warrant), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). Facts of past criminal activity that by themselves are too stale can be sufficient if the affidavit also establishes a pattern of continuing criminal activity so there is reason to believe that the cited activity was probably not a one-time occurrence. United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985); United States v. Barlin, 686 F.2d 81, 87-88 (2d Cir.1982). Therefore, if O’Leary were in any way linked to the ongoing conspiracy, the warrant would not have been stale. See United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990) (“Marcotíes conspiracies are the very paradigm of the continuing enterprises for which the courts have relaxed the temporal requirements of non-staleness”) (quoting United States v. Feola, 651 F.Supp. 1068, 1090 (S.D.N.Y.1987), aff'd mem., 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989)). The government argues that the O’Leary Search Warrant Affidavit, which incorporates most of the information set forth in the Wiretap Affidavit, linked O’Leary to the ongoing conspiracy, and thus permitted the inference that there was an ongoing presence of drugs in O’Leary’s home. While the Search Warrant Affidavit stated that Canale owned O’Leary’s home, it offered no clue as to the source of the affiant’s knowledge. Moreover, while the Search Warrant Affidavit recited most of the facts in the Wiretap Affidavit, the Search Warrant Affidavit was devoid of any mention of O’Leary in connection with the conspiracy. There was not even a statement that the Cl told the affiant that O’Leary was part of the distribution network. Furthermore, the pen register information recited in the Search Warrant Affidavit does not implicate O’Leary. Thus, the evidence supporting the O’Leary search boiled down to this: a single, small purchase of marijuana from O’Leary in her home more than six weeks before the search, the fact that O’Leary made a “recorded” statement to the Cl “in substance” that Canale was her source for that marijuana, and the unsubstantiated assertion by the affiant that O’Leary’s home was owned by Canale. On these facts, we cannot ascribe to O’Leary a membership in Canale’s ongoing conspiracy such as would defeat O’Leary’s claim of staleness with respect to a warrant issued six weeks after the single marijuana purchase. Matters might be different if the affidavit had been more carefully drawn. Perhaps the affidavit could have told us exactly what O’Leary said, since this conversation was said to be recorded. The affidavit might also have proffered the basis for the affiant’s conclusion that Canale owned O’Leary’s home. Of course, any further reliable information tending to show that O’Leary was an ongoing member of Ca-nale’s alleged drug distribution ring rather than a one-time seller acting on her own could have met the staleness objection. Because the Search Warrant Affidavit does not establish the likelihood that there was an ongoing drug-selling operation in O’Leary’s home, we cannot conclude that the district court erred in finding no probable cause at the time the warrant was issued and the search conducted. Finally, the government argues that the officer conducting the search of O’Leary’s home relied in good faith on the warrant issued by the magistrate and therefore under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the evidence may not be excluded. While this argument is persuasive, we are precluded from considering it since the government first raised the issue in a Motion for Reconsideration of the district court’s January 23, 1992 suppression order that was untimely filed on February 24, 1992. Local Rule 10(m) of the United States District Court for the Northern District of New York requires Motions for Reconsideration to be filed within 10 days of the judgment or order appealed from. Since the Motion for Reconsideration was untimely, the Leon issue was never properly raised before the district court and we may not consider it. The general rule is that a reviewing court will not consider claims not presented before the district court. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990). Reviewing courts may depart from this general rule “only when necessary to avoid manifest injustice.” Schmidt v. Polish People’s Republic, 742 F.2d 67, 70 (2d Cir.1984). No such injustice has been demonstrated by the government. A claim of good faith reliance on the search warrant was ascertainable to the government at the time of the suppression hearing and the government has proffered no cause for not raising it at that time. We affirm the order of the District Court suppressing the fruits of the search of O’Leary’s home. CONCLUSION The order of Judge Cholakis of January 23, 1992, is reversed insofar as it suppressed the fruits of the wiretap of Ca-nale’s telephone authorized by the April 8, 1991 order, but affirmed insofar as it suppressed the fruits of the search of O’Leary’s home on May 9,1991 pursuant to the May 3, 1991 search warrant. The fruits of the O’Leary search are suppressed only as against O’Leary, since she is the only defendant who raised the issue before the district court and presumably was the only defendant with standing to do so. Affirmed in part and reversed in part and remanded.

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?

McCLELLAN et al. v. MONTANA-DAKOTA UTILITIES CO. No. 14634. United States .Court of Appeals Eighth Circuit. May 8, 1953. See also, 95 F.Supp. 977. Milo V. Olson, Los Angeles, Cal., and Leif Erickson, Helena, Mont. (Guthrie, Darling & Shattuck, Los Angeles, Cal., Thompson, Hessian, Fletcher & McKasy, and John J. McKasy, Minneapolis, Minn., on the brief), for appellants. Armin M. Johnson, Minneapolis, Minn. (John C. Benson, Rodger L. Nordbye and Faegre & Benson, Minneapolis, Minn., on the brief), for appellee. Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges. THOMAS, Circuit Judge. This is an appeal by the plaintiffs in the district court from a summary judgment for the defendant. The opinion and judgment of the court are reported in 104 F. Supp. 46. Jurisdiction of the federal court is predicated upon a claim for relief under § 22 of the Natural Gas Act, 15 U.S.C.A. § 717u; upon diversity of citizenship; and upon § 4 of the Anti-Trust Act, 15 U.S.C.A. § 15. The complaint alleges that Capital Gas Corporation is a Montana corporation with its principal place of business at Billings, Montana; that the corporation was adjudged a bankrupt on June 7, 1943, and that the plaintiff Joseph L. McClellan is its qualified trustee; that the plaintiff John Wight is joined as a party plaintiff because he is the principal stockholder and creditor of the corporation; and that the defendant-appellee is a Delaware corporation with its principal place of business at Minneapolis, Minnesota. It is alleged that the defendant-appellee owns and operates an integrated and interconnected gas pipeline system constructed prior to 1930, located partly in Montana and partly in North and South Dakota. That since some of the rights of way for said pipelines cross government owned lands under permits granted by the Secretary of the Interior pursuant to the provisions of the Leasing Act of February 20, 1920, 30 U.S.C.A. § 185, appellee is a common carrier. The complaint further alleges that plaintiff Capital Gas Corporation during the period from 1930 to'1940 had gas which it desired to ship in interstate commerce through the defendant’s pipelines but the rates charged by defendant were so unreasonably high that it could not do so except at a loss, as a result of which it sustained the damages sought in this action to be recovered. Those alleged damages consist of profits on the gas which it might have produced and sold and the loss of which profits resulted in the loss of its lands, gas wells, leases and operating agreements on gas producing lands, all of which losses resulted in its bankruptcy. Judgment is asked against the defendant for damages as follows: “1. $3,000,000 by reason of loss of assets; * * *. “2. $10,000,000 by reason of loss of profits; * * *. “3. That all of said damages be trebled” pursuant to the provisions of 15 U.S.C.A. § IS; 4. For attorneys’ fees; and 5. For costs. Since the defendant’s motion for summary judgment was sustained we shall discuss only the alleged errors of the court controlling our decision here. The record, including the supplement thereto, contains 257 printed pages consisting of pleadings, affidavits and exhibits. This case is a sequel to the case of Montana-Dakota Utilities Co. v. Federal Power Commission, 8 Cir., 169 F.2d 392. In that case the appellee here appealed from two orders of the Federal Power Commission. The first order dated March 22, 1946, required the appellee to file a new rate schedule for the common carrier transportation of natural gas in interstate commerce. The second order entered on rehearing was dated January 29, 1947. This court affirmed the orders on August 4, 1948, and the rate schedule complying with the Commission’s orders was filed on April 2, 1949. The complaint in this case, outlined above, was filed October 25, 1950. It is based on the contention that the rates filed and charged by defendant for transporting gas between 1930 and 1940 were unreasonably high and therefore fraudulent by reason of which the damages claimed in this case were sustained. The damages sought to be recovered are not for the difference between some hypothetical reasonable rate and the rate demanded by defendant but for alleged loss of profits which might have been earned had the Gas Corporation shipped gas during that period and for the loss of property rights resulting from the fact that it could not pay its debts and was thus forced into bankruptcy. The Natural Gas Act became effective June 21, 1938, and gave the Federal Power Commission jurisdiction over the transportation and sale of natural gas in interstate commerce and over the rates and charges therefor. 15 U.S.C.A. § 717 et seq. The Act provided that every natural gas company should file with the Commission a' schedule showing all rates and charges for any transportation or sale subject to its jurisdiction. Prior to that time the business of the defendant as a common carrier of natural gas was subject to the jurisdiction of the Secretary of the Interior under the Leasing Act, supra. Under that Act the defendant had promulgated rate schedules, for the transportation of natural gas on October 27, 1933, and March 2, 1937, referred to in the record as rates 3-G and 4-G respectively. On August 29, 1938, appellee filed these rate schedules with the Federal Power Commission. On December 6, 1941, proceedings were instituted before the Commission to test these rates. The appellant Gas Corporation was not a party to the proceedings. The Commission determined that the rates were unjust, unreasonable and discriminatory, and prescribed a "new rate which as stated above was filed April 2, 1949. .The plaintiffs admit that the courts have no power to determine and prescribe reasonable rates and that except for the finding of the Commission that rates 3-G and 4Mj were unreasonable they could not maintain this action in a federal court. As said by the Supreme Court in MontanaDakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 695, 95 L.Ed. 912: “ * * * a utility could not institute a suit in a federal court to recover a portion of past rates which it simply alleges were unreasonable. It would be out of court for failure to exhaust administrative- remedies, for, at any time in the past, it could have applied for and secured a review and, perhaps, a reduction of the rates by the Commission.” Again, in the same case the Court say: “It can claim no rate as a legal rate that is other than the filed rate, whether- fixed or merely accepted by the Commission, and not even -a court can authorize commerce in the commodity, on other -terms. * * * the right to a.reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission’s orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.” It is clear, therefore, that the -appellants here are relying in part at least upon common law fraud as a basis for their right to recover the damages claimed to have been sustained. Upon this point the Supreme Court in the last -cited case say: “It would be -a strange contradiction between judicial and administrative policies if a relationship which the Commission has declared will not adversely affect public or private interests were regarded by courts as enough to create a presumption of fraud.” There are several reasons why the appellants cannot recover common law damages in this'case, all of which are discussed by the trial court in its opinion cited above. We shall consider but one of them here which we regard as conclusive. The action is barred by the statute of limitations. It will be recalled that the losses sought to be recovered as damages are alleged to have occurred during the period between January 1, 1930, and January 1, 1940. The present action was commenced on October 25, 1950, more than ten years thereafter. The action was -brought in the federal district court of Minnesota. Since the federal statutes involved have no applicable statute of limitations the law of the stale of Minnesota is applicable. Cope v. Anderson, 331 U.S. 461, 463, 67 S.Ct. 1340, 91 L.Ed. 1602; Momand v. Universal Film Exchange, Inc., 1 Cir., 172 F.2d 37; Burnham Chemical Co. v. Borax Consolidated, Limited, 9 Cir., 170 F.2d 569. It is conceded that the applicable statute of Minnesota is six years. Minnesota Statutes Annotated, § 541.05. It is appellants’ contention in substance that the statute was tolled because the “appellant had no remedy until the administrative question was determined that appellee’s demanded rates 3-G and 4 — G were unlawful” in the proceedings brought by the Mondakota Development Company on December 7, 1941, before the Federal Power Commission, and terminated on April 2, 1949. The -chief difficulty with this contention is that the finding of the Commission in 1949 did not under any view-of that proceeding relate back to the period from 1930 to 1940. It did not purport to do so. The six-year statute of limitations had run its course approximately three years before that finding was made. Further, the appellant Gas Corporation was not a party to that proceeding and its rights were not pertinent to that investigation. Neither did the Commission undertake in that proceeding to prescribe a “reasonable” rate for the period from 1930 to 1940. It had no authority under the Federal Power Act to do so. There was, therefore, no basis for a claim for damages by appellant Gas Corporation during that period. In addition to their claim for damages based upon common law fraud, appellants contend that the acts of the appellee complained of constituted violations of the Anti-trust laws. The claim for treble damages is especially predicated upon those laws. The contention does not aid appellants however because the anti-trust laws do not contain a statute of limitations. The statute of limitations of the state having jurisdiction of the cause of action alleged controls; and that statute begins to run at the time the plaintiff’s interest is invaded to his damage. Burnham Chemical Co. v. Borax Consolidated, Limited, 9 Cir., 170 F.2d 569, and cases therein cited. The Moratorium Act of Congress of 1942, 15 U.S.C.A. § 16, as amended by the Act of June 30, 1945, suspended the applicable statute of limitations until June 30, 1946. This does not aid the appellants because this action was not brought until October 25, 1950. So whatever character may be attributed to appellants’ action for damages, it is barred by the statute of limitations of Minnesota, supra. We agree with the conclusions of the trial court in its opinion reported in 104 F. Supp. 46, but since the judgment appealed from must be affirmed for the reason that plaintiffs’ alleged cause of action was barred by the statute of limitations of the state of Minnesota, it is unnecessary to extend this opinion to discuss other points. 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 "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 appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

Auckland SEMPER and Eldra Semper, Appellants, v. Raymundo SANTOS and Everett Investments, Inc. d/b/a Caribbean Car Rentals. No. 87-3203. United States Court of Appeals, Third Circuit. Argued April 19, 1988. Decided May 12, 1988. Ronald W. Belfon (argued), Law Office of Warren M. Williams, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellants. Douglas A. Brady (argued), Jacobs & Brady, Christiansted, St. Croix, U.S. Virgin Islands, for appellee. Before SEITZ, SLOVITER, BECKER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. This case presents two issues: whether the trial court was required to grant a new trial because the jury failed to award damages for pain and suffering to plaintiff, and whether the trial court may preclude testimony of a witness who was not timely identified. I. Facts Auckland Semper (Semper) and his wife brought suit in the Territorial Court of the Virgin Islands for injuries suffered by Semper when the automobile he was driving was hit by one driven by defendant Raymundo Santos. Santos, who had never before been in the Virgin Islands, was driving a rented car and was unaware that he was required to drive on the left side of the road. Because both cars were travelling at less than fifteen (15) miles per hour, a head-on collision was avoided and the impact was slight. Semper sued Santos and the company from which he rented the car. The trial court’s grant of summary judgment to Semper against Santos on liability was uncontested. Thus, the only issue at trial as to Santos pertained to the amount of damages. Following the accident, the police took Semper to the hospital, where he complained of chest pain and dizziness, Dr. Alfred Heath, a physician working in the emergency room, examined him, noted a contusion (bruise) to Semper’s chest, and released him after receiving negative x-rays. It is not clear whether Semper was prescribed medication upon his release. Although Dr. Heath, defendants’ witness, stated at trial that the normal procedure is to prescribe medication, he noted that the emergency room records did not indicate medicine being prescribed. App. at 204. Semper was charged $57.00 for emergency room services. Approximately two weeks later, Semper, again complaining of chest pain, returned to Dr. Heath. Again, the diagnosis was a contusion to the chest, the symptoms of which normally subside within two or three weeks from the date of injury. App. at 215. At that time, Dr. Heath gave Semper a prescription for tylenol and codeine for pain. App. at 211. There is no evidence that this prescription was filled. No billing statement for this visit was offered into evidence, and Dr. Heath was unable to corroborate Semper’s testimony that he was charged for this visit. Semper testified at trial that he saw an unlicensed “healer” about a month after seeing Dr. Heath. Again, however, no bills were produced and it remained uncorroborated that Semper had actually paid for the “healer’s” services. Semper also testified that he visited several physicians on account of injuries received in the accident. Only one of these physicians, Dr. McDonald, testified. He stated that he had seen Semper on three occasions beginning approximately two and one-half years after the accident, and that although Semper complained of lower back pain, neck pain, a numb right leg, tremors, and pain around his waist, he complained primarily about his sexual dysfunction. None of these complaints was noted on the records of the hospital emergency room immediately after the accident or on Dr. Heath’s records of Semper’s visit two weeks later. Dr. McDonald suggested that there might be a psychogenic (“in the mind”) cause for Semper’s sexual dysfunction. App. at 91. Dr. McDonald testified that he prescribed Semper medication for the spasms in his lower back. App. at 66. Semper introduced evidence of other prescriptions, but Dr. Heath testified that those medications prescribed were for the treatment of ulcers and for the treatment of earaches. App. at 222-23. Following the trial on the issue of damages, the jury found for the defendant car rental company, against Semper’s wife, and for Semper in the amount of $57.00 against Santos, the amount of the total out-of-pocket expenses for which Semper submitted evidence. The trial court denied Semper’s motion for a j.n.o.v. or for a new trial. Semper appealed to the Appellate Division of the District Court of the Virgin Islands, complaining, inter alia, about the inadequacy of the verdict and the trial court’s refusal to permit a treating physician to testify. The Appellate Division of the District Court rejected both of these contentions, holding that the Territorial Court did not abuse its discretion. Semper appeals to this court. We consider first the scope of our review over the decision of the Appellate Division of the District Court of the Virgin Islands. The usual deference that an appellate court gives the trial court’s discretionary rulings, see United States v. Criden, 648 F.2d 814, 817-19 (3d Cir.1981), is inapplicable when one appellate court reviews another. We have held in connection with another system of two-tiered appellate review that the second appellate tribunal should review the trial court’s determination using the same standard of review applied by the first appellate tribunal. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-102 (3d Cir.1981) (reviewing district court’s appellate review of bankruptcy court decision). In such a system, both appellate courts are equally able to review the factual findings and discretionary rulings of the trial court, and it is only through an independent review of the trial court’s findings that the second appellate court can determine whether the first appellate court erred in its review. See id. at 102. This reasoning is equally applicable to our review of the Appellate Division of the District Court of the Virgin Islands. II. Inadequacy of Damage Award The scope of this court’s review of a damage award is “ ‘exceedingly narrow’ ”, Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.1987) (quoting Walters v. Mintec International, 758 F.2d 73, 80 (3d Cir.1985)), whether the appeal is from an allegedly excessive jury verdict or an allegedly inadequate damage award. See, e.g., Nussbaum v. Warehime, 333 F.2d 462, 464 (7th Cir.1964), cert. denied, 379 U.S. 979, 85 S.Ct. 682, 13 L.Ed.2d 570 (1965). We have ordered a new trial for excessive damages only when the verdict is so grossly excessive as to “shock the judicial conscience.” Williams, 817 F.2d at 1038 (citation omitted). Similarly, the remedy of a new trial for insufficient damages is only appropriate where the evidence indicates that the jury awarded damages in an amount “ ‘substantially less than was unquestionably proven by plaintiff’s uncontradicted and undisputed evidence.’ ” Taylor v. Bennett, 323 F.2d 607, 609 (7th Cir.1963) (quoting Schaeper v. Edwards, 306 F.2d 175, 177 (6th Cir.1962)); see also Tann v. Service Distributors, Inc., 56 F.R.D. 593, 598 (E.D.Pa.1972) (new trial will not be awarded unless damages assessed by jury are so unreasonable as to offend conscience of the court), aff'd, 481 F.2d 1399 (3d Cir.1973). The question of adequacy of damages is primarily left to the sound discretion of the trial court in considering a motion for a new trial, and this court will not disturb that determination unless a “ ‘manifest abuse of discretion’ [is] shown.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d 215, 225-26 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); see also Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir.1979) (“trial judge is in the best position to evaluate the evidence and assess whether the jury’s verdict is rationally based”); Porterfield v. Burlington Northern Inc., 534 F.2d 142, 146 (9th Cir.1976) (appellant has “substantial burden to demonstrate that the trial judge’s discretion was abused”). Semper places his principal reliance on Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972), where the court ordered a new trial because the jury had awarded plaintiff only the exact dollar amount of his out-of-pocket expenses for hospital and medical costs. However, in that case the court explained that “[u]nder applicable Colorado law the jury’s authority does not include limiting the award to actual medical expenses where the undisputed evidence establishes both pain and suffering and permanent disability.” Id. at 20 (emphasis added). Even if we were inclined to follow the same rule, an issue we do not decide, Brown is not apposite here because there is no undisputed evidence of any permanent disability. Semper’s testimony regarding his pain, backaches, sexual dysfunction, and emotional problems was all uncorroborated. The jury was free to draw its own conclusion from the totality of evidence presented, particularly in light of Semper’s failure to mention many of these alleged medical problems to the only physician who saw him shortly after the accident and his failure to seek any further medical attention other than that of a “healer” for two years after the accident. Semper argues that his testimony that he suffered two weeks of chest pain was well-corroborated and undisputed, and that the trial court abused its discretion in refusing to grant a new trial because no reasonable jury could have failed to award him damages for pain and suffering. The testimony shows that he complained of chest pains immediately after the accident and on his visit to Dr. Heath approximately ten days later. However, although Semper was prescribed a pain medication when he saw Dr. Heath the second time, Semper did not testify that he filled that prescription or that he took the medication. Santos testified that immediately after the impact Semper did not complain of any injury and that Semper stated he was “okay” and showed no signs of being in pain. App. at 41. The jury was in the best position to evaluate the credibility of Sem-per’s testimony of his pain and suffering. See Murray v. Fairbanks Morse, 610 F.2d at 154; Porterfield v. Burlington Northern Inc., 534 F.2d at 146 (allegedly inadequate damage award should not be overturned where it results from credibility judgments by the trier of fact); Szewczyk v. Doubet, 354 A.2d 426, 430 (Del.1976) (jury free to reject plaintiff’s testimony as to pain and suffering). The jury was under no obligation to believe the testimony of Semper as to his chest pain, even if that testimony were undisputed. Cf. Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 486 (3d Cir.1965) (“the trier of fact, whether the issue be one of an excessive or inadequate verdict, is at liberty within the bounds of reason to reject entirely the un-contradicted testimony of a witness which does not convince the trier of its merit”). This court has stated that, “[ejvidence of pain and suffering is particularly ill-suited to review upon only a written record.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d at 227 n. 16. Plaintiff stresses that in his argument to the jury, defense counsel suggested that an award of $3,000 would be appropriate. Defense counsel explains that this comment was in response to plaintiff counsel’s request that the jury award plaintiff $200,-000. Appellee’s Brief at 28. The arguments of counsel are not evidence, and the jury remained free to make its own assessment. Because the jury could have decided to discredit Semper’s testimony of pain and suffering on this record, we cannot hold that the jury’s award of $57.00 covering Semper’s only verified expense, the cost of the emergency room treatment following the accident, “shock[s] the judicial conscience,” Williams, 817 F.2d at 1038. The trial judge who also heard the evidence and observed the witnesses found the verdict not to be against the weight of the evidence nor unconscionable. We conclude that he did not abuse his discretion in denying Semper’s motion for a new trial. III. Exclusion of Expert Witness on Rebuttal Semper also argues that the trial judge abused his discretion in excluding testimony of a physician Semper denominates as “an important rebuttal witness.” Appellant’s Brief at 21. The court based its ruling excluding the witness on Semper’s failure to timely disclose that this proposed expert witness, Dr. Omitowoju, had been an examining physician or that he would be called as a witness for plaintiffs at trial. Dr. Omitowoju had originally seen Semper in November, 1984, well in advance of the discovery deadline. App. at 254. Nonetheless, Semper ignored defendants’ request for supplementation of responses to discovery and did not identify Dr. Omitowoju by the April 12,1985 deadline that the court set for naming witnesses. It was only on April 30, 1985, one day after jury selection, that defendants received mail notice dated April 20, 1985 of Semper’s intention to call Dr. Omitowoju as an expert witness. Defendants then moved in limine to exclude the doctor as a trial witness, and the trial court granted the motion due to Semper’s failure to comply with the court-imposed discovery deadline. Because jury selection had already commenced and the case was about to proceed to trial, defendants had been effectively precluded from the opportunity to obtain discovery concerning Dr. Omitowoju’s treatment, findings, or prospective testimony- Semper attempted to call Dr. Omitowoju in rebuttal following the close of defendants’ case. Semper concedes that he made no offer of proof as to the scope of the doctor’s testimony. Appellant’s Brief at 21-22 & n. 4. The trial judge cannot be faulted, therefore, for excluding the testimony as, in the appellate division’s words, “a back-door attempt to bolster the case-in-chief.” App. at 551. Even more important, the trial court had the discretion to exclude testimony of a witness who had not been identified. The trial court’s exclusion of testimony because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion. Franklin Music Co. v. American Broadcasting Companies, 616 F.2d 528, 539 (3d Cir.1979). As the trial court stated, had Dr. Omitowoju been permitted to testify, Semper “would have profitted from its own failure to comply with the discovery deadlines,” App. at 545, since defendants would have been prejudiced. In Murphy v. Magnolia Electric Power Ass’n, 639 F.2d 232 (5th Cir.1981), on which Semper relies, not only had plaintiffs offered to exchange experts’ reports ten days before trial, but also the evidence excluded “struck at the heart of appellants’ case.” Id. at 235; see also Meyers v. Pennypack Woods, 559 F.2d 894, 904 (3d Cir.1977) (“importance of the excluded testimony” one of the factors to be considered in deciding whether trial court abused its discretion in excluding witness), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), aff'd, — U.S.-, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Here, it is questionable whether the rebuttal testimony would have materially helped Semper. Semper argues “that Dr. Omitowoju would have testified in rebuttal that Dr. Heath was wrong to say that back problems normally become apparent within 72 hours of a trauma, as in fact they normally can take as long as six weeks.” Appellant’s Brief at 21-22. Although Semper contends this testimony would have bolstered his credibility, and discredited Dr. Heath, both the trial judge and the Appellate Division of the District Court discounted the significance of this proposed testimony. In light of the fact that Semper sought no further medical attention other than that of the “healer” for more than two years after the accident, testimony that he might have had back pain six weeks thereafter hardly “strikes at the heart” of Semper’s case. IY. Conclusion For the reasons set forth above, we will affirm the judgment of the Appellate Division of the District Court. . The appellate division did hold that the trial court erred in permitting defendant to amend his answer to allege contributory negligence after the summary judgment on liability; it held that Semper was entitled to the full $57.00 verdict, without reduction by the 25% for which the jury found Semper negligent.

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?

PAN AMERICAN PETROLEUM CORPORATION, a corporation, Appellant, v. Ed PIERSON, individually and as Supervisor for the State of Wyoming, Bureau of Land Management, Department of the Interior; Cecil L. Hase, individually and as Manager of Cheyenne Land Office, Bureau of Land Management, Department of the Interior; R. P. Rigtrup, individually and as Acting Manager of Cheyenne Land Office, Bureau of Land Management, Department of the Interior; John Doe I, individually and as the Examiner appointed or to be appointed by Manager or Acting Manager, Cheyenne Land Office; and John Doe II and John Doe III, individually and in any capacity they may hold as representatives of the Cheyenne Land Office, Bureau of Land Management, Department of the Interior, Appellees. No. 6372. United States Court of Appeals Tenth Circuit. Oct. 28, 1960. Rehearing Denied Dec. 20, 1960. A. G. McClintock, Cheyenne, Wyo. (T. J. Files, Casper, Wyo., Virgil C. Mc-Clintock and Frank H. Houck, Casper, Wyo., were with him on the brief), for appellant. A. Donald Mileur, Atty., Dept, of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John F. Raper, Jr., U. S. Atty., District of Wyoming, Cheyenne, Wyo., and Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., were with him on the brief), for appellees. Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. The question presented is whether appellant, Pan American Petroleum Corporation, may maintain an action to enjoin the appellees, officers of the Bureau of Land Management, Department of the Interior, stationed in the State of Wyoming, from proceeding with an administrative action for the cancellation of oil and gas leases held by Pan American. This appeal is from a judgment of the trial court sustaining a motion to dismiss the complaint. Pursuant to the Mineral Leasing Act of 1920, as amended, the Secretary of the Interior issued to Walter G. Davis and others oil and gas leases covering portions of the public domain lying in Wyoming. By assignment Pan American became the owner of certain of these leases and the owner of interests 'in other of such leases. Some of these leases so held in whole or in part by Pan American are presently producing oil or gas, others cover lands known to contain oil or gas, and still others are not producing and not known to contain oil or gas. The Wyoming State Supervisor of the Bureau of Land Management brought a proceeding, styled a “Contest,” in the Wyoming office of that Bureau. Therein it is alleged that Davis and others willfully, falsely and fraudulently procured the issuance and assignment of federal oil and gas leases: (1) for the purpose of enabling Davis and others to obtain leases covering acreage in excess of that permitted by statute and regulations; (2) without disclosing that an agent was involved and without the interest and qualifications of Davis or others being disclosed; and (3) at a time when Davis was not qualified to hold such leases. The complaint prays for the cancellation of the leases. An appropriate notice was served on Pan American, as a party interested in certain of the leases, which required the filing of an answer within 30 days. Before the expiration of that period Pan American brought the instant action in the United States District Court for the District of Wyoming. Jurisdiction exists under 28 U.S.C. § 1331 as the action arises under the laws of the United States and the controversy involves more than the required jurisdictional amount. Pan American alleges that federal oil and gas leases may not be cancelled by administrative action, that the unauthorized administrative action will cause it great and irreparable damage and will result in the taking of its property without due process of law, and that it has no remedy other than injunctive relief. The complaint asks that the defendant officers be restrained from taking any action to cancel the leases except through a proceeding instituted by the Attorney General of the United States in the United States District Court for the District of Wyoming. The defendant officers moved to dismiss on the grounds that the complaint fails to state a claim as the leases may be cancelled in an administrative action, that the Secretary of the Interior is an indispensable party, and that Pan American has not exhausted its administrative remedies. The trial court held that the leases could not be cancelled by administrative action but dismissed the complaint on the ground that the Secretary of the Interior was an indispensable party. At the outset it should be noted that the government lawyers who appear for the defendant officers of the Bureau of Land Management do not assert the defense of sovereign immunity. Instead they rely upon the doctrine of the indispensable superior officer and say that the action may not be maintained in the absence of the Secretary of the Interior who may be sued only in the jurisdiction of his official residence, that is, the District of Columbia. Sovereign immunity does not prevent a suit against a federal officer who is acting in excess of his authority. The instant action raises the sole question of whether the defendant officers are so acting. Since the decision in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, the traditional remedy of a person aggrieved by governmental action, and precluded from a suit against the sovereign by the doctrine of immunity, has been a suit against the government officer responsible for that action and such suits have been permitted when the officers have exceeded their statutory powers. The situation here presented is not one of asserted erroneous action within the ambit of statutory authority. The practical operation of the doctrines of sovereign immunity and indispensable superior officer has presented many difficulties and has evoked much comment among the law writers. The application of the doctrine of the indispensable superior presents practical and legal difficulties. The rejection of the unavailability of the defense of sovereign immunity in a suit against a government officer because of his official conduct should carry with it a realization of the practicality of venue and geography. Recognition of this principle is established by the decision in Shaughnessy, District Director of Immigration and Naturalization v. Pedreiro, 349 U.S. 48, 54, 75 S.Ct. 591, 595, 99 L.Ed. 868, wherein the Court said that its decisions “have established a policy under which indispensability of parties is determined on practical considerations.” If concern is to be given to such practical considerations, and we think they should be given concern, then this action to restrain proceedings in Wyoming for the cancellation of federal oil and gas leases involving land in Wyoming should be maintained in the United States District Court for the District of Wyoming and should not be defeated by the inability of the plaintiff to sue the Secretary of the Interior in that court. Doubt has been cast upon the simplicity of this approach by a complex of decisions by the United States Supreme Court and the lower federal courts in cases involving the question of the indispensable superior. In five decisions the Supreme Court has permitted the action without joinder of the superior and in four other cases has held that a superior was an indispensable party. Williams v. Fanning is often taken as the leading case and is relied upon by Pan American. It will not be helpful to review the many decisions of the lower federal courts which have applied Williams v. Fanning, but it is fair comment that they have achieved no substantial uniformity of application. As we read Williams v. Fanning, it notes three inquiries which are pertinent in determining the indispensability of a superior officer. These are: (1) Does the relief sought require the superior “to take action, either by exercising directly a power lodged in him or by having a subordinate exercise it for him”?; (2) Are the subordinates acting in excess of their authority?; and (3) Will the relief sought “expend itself on the public treasury or domain, or interfere with the public administration” ? As to the first, the relief sought by Pan American requires no action by the ■Secretary or any subordinate. The purpose is to enjoin the cancellation of the leases by administrative action. There is no effort to compel the exercise of any power or authority. Instead, the purpose is to prevent the allegedly wrongful ■exercise of claimed power and authority. This is not a case like Richman v. Beck, 10 Cir., 257 F.2d 575. The relief there .sought would have required the issuance ■of permits by the Secretary of the Interior for the trailing and grazing of sheep. Related to the problem of the impact •of the decree upon the non-joined superior is the query as to whether effec-five relief may be obtained by a decree acting upon the subordinate. The administrative proceeding here sought to be enjoined is denominated a “Contest” and is brought under 43 C.F.R. 221 (1954 Supp.). It was instituted by the Wyoming State Supervisor of the Bureau of Land Management, Department of the Interior, and, by the applicable regulations, had to be instituted in Wyoming. The decree thus will affect land within the jurisdiction of the court and will operate against the officers who either instituted or will conduct the proceeding and who are within the jurisdiction of the court. Control over the actions of the local officers will suffice to stop the administrative proceeding. The argument that such subordinates may be left under the command of their superior to do what the court has forbidden was rejected in Williams v. Fanning as being immaterial if the decree will “effectively grant the relief desired by expending itself on the subordinate official who is before the court.” Such is the situation here. The next query is whether the subordinates are acting in excess of their authority. This involves a consideration of the statutes relating to the disposition of the federally-owned oil and gas resources. The method of disposing of these resources of the public domain was changed by the Mineral Leasing Act of 1920 from the location and patent method provided in the Placer Mining Act to a plan whereby permits were granted for exploration and leases for production. Amendments made in 1935 changed the plan by providing for leases instead of prospecting permits for unproven oil and gas lands. The Mineral Leasing Act was “the expression of a new policy for the disposition of public lands open to exploration or entry, by lease, instead of by complete alienation.” Section 27 of the Mineral Leasing Act, as amended, provides, among other things, that if any person holds any interest in any lease in violation of, the provisions relating to maximum holdings he may be compelled to dispose of such holding in an appropriate proceeding instituted by the Attorney General in the United States district court for the district in which the leased .property is located. Section 31, as amended, provides that, except as otherwise provided, a lease is subject to cancellation in an appropriate proceeding in the United States district court for the district wherein the land is located “whenever the lessee fails to comply with any of the provisions of said sections, of the lease, or of the general regulations promulgated under said sections and in force at the date of the lease.” That section further provides that any lease issued after August 21, 1935, shall be subject to cancellation by the Secretary for non-compliance with lease terms “unless or until the land covered by any such lease is known to contain valuable deposits of oil or gas.” A Department of the Interior regulation, provides that “[1] eases known to contain valuable deposits of oil or gas may be cancelled only by judicial proceedings in the manner provided in sections 27 and 31 of the act.” The contention of the officers is that sections 27 and 31 have no application to leases procured through fraud and that the Secretary has full authority to cancel a lease which was fraudulently obtained. This authority is said to exist under 5 U.S.C.A. § 485, which charges the Secretary of the Interior “with the supervision of public business relating to * * Public lands, including mines.” It is not necessary to explore the extent of the powers of the Secretary over the public lands. Suffice it to say that prior to the establishment of the lease system for mineral lands, those lands, like other public lands, were subject to disposition by patent and, upon the issuance of patent, administrative control ceased and the patent could be set aside or cancelled only by judicial proceedings in the courts. This rule is said not to be applicable in the instant case because upon the issuance of a patent title passes from the United States to the patentee whereas under the Mineral Leasing Act the United States retains legal title. We deem it unnecessary to delve into the legal complexities as to whether an oil and gas lease grants a profit a prendre or creates an estate in land. Under the first theory the lessee gains title to the oil and gas after its severance and under the second the lessee has an ownership, of the hydrocarbons in place. Under each theory the government, by the issuance of the lease, has performed the last act required of it to vest in the lessee the right to explore for, produce, market and sell the oil and gas underlying the leased premises. Similarly the issuance, of a patent is the last act of the government in disposing of the non-mineral lands of the public domain. Upon the performance of this last act, administrative power to annul or cancel ends and judicial power begins. The difference between a patent and an oil and gas lease is no reason for the denial of the power of administrative cancellation of a patent and for the recognition of such power to cancel a lease, unless Congress in the exercise of its authority over the public lands has provided for such administrative cancellation of leases after issuance. The only provision of this nature in the Mineral Leasing Act and its amendments, of which we are aware, relates to administrative cancellation of non-producing oil and gas leases issued after 1935 for breach of lease provisions, and that has no application here because cancellation is sought for fraud in procurement, not for breach of any lease provisions. If there may be administrative cancellation of an oil and gas lease for fraud in procurement, the practical operation of the Mineral Leasing Act is seriously impaired. It is common knowledge that exploration for oil and gas is costly. The drilling of wells requires substantial financial risks and the expense of putting those wells on production and of marketing the product is burdensome. If the continued existence of the granted leasehold estate is dependent upon the fluctuating policies of governmental departments uninhibited by any limitations upon time of action, the value of federal oil and gas leases as a title basis for oil and gas development is greatly diminished if not practically destroyed. No prudent operator would be willing to accept the financial risks if he were subject to ouster because of some administrative decision based upon improper conduct of an assignor occurring at some distant time in the past. The Secretary of the Interior has no powers except those granted or those necessarily implied from granted powers. As “the guardian of the people of the United States over the public lands” it is his obligation to see that neither patents nor leases are procured by fraud. The courts have repeatedly held that he is without power to annul a patent once it has issued. That power is reserved to the courts. In the absence of some statutory provision giving him power to annul leases under the Mineral Leasing Act, that power also is reserved to the courts. Otherwise the new system created by the Mineral Leasing Act for the disposition of the mineral reserves found on the public lands fails of its purpose. Certainty of title is an elementary prerequisite for the sound development of any mineral resource. We find it unnecessary to explore the legislative history of the Mineral Leasing Act or of the amendments thereto, either proposed or enacted. Such of that history as has been called to our attention is without persuasive effect. Most significant is the fact that the 1960 amendments make no change in the pertinent provisions even though the question of administrative cancellation was presented and considered. As we conclude that the defendant officers and their superior, the Secretary of the Interior, are without statutory authority, either express or implied, to cancel or annul federal oil and gas leases by administrative proceedings taken after the issuance of such leases and because of any conduct of a lessee which preceded such issuance, we are not concerned with the contention that Pan American has failed to exhaust its administrative remedies. It cannot exhaust something which it does not have. Government counsel for the local federal officers further urge that the Secretary is indispensable because the action seeks to interfere with the obligation of the Secretary to protect the public domain against the encumbrance of fraudulently obtained oil and gas leases and, hence, will expend itself on the public domain and interfere with public administration in violation of one of the criteria established by Williams v. Fanning. The decree sought will not, and cannot, establish any right in Pan American to any interest in any public lands. It will not interfere with any administrative proceeding that is authorized by statute. It leaves the Secretary free to protect the public domain from the encumbrance of fraudulently procured leases by the institution of proper judicial proceedings in which ancillary relief pending determination may be obtained if warranted. The judicial remedy is adequate and available. The defendant officers contend that the complaint is without merit because there has been no enjoinable interference with any property right of Pan American and, until that occurs, Pan American has sustained no injury justifying injunctive relief. The answer is that the administrative proceeding for cancellation clouds Pan American’s title and, thus, has an adverse effect on the exploration for and the development of the oil and gas resources and on the marketability, not only of the leases but also of the production therefrom. There exists an actual controversy cognizable in a court of equity and injunction is an appropriate remedy. The defendant officers threaten by action which we hold to be in excess of their authority to cancel Pan American’s leases. If the threats are carried out the injury will be great. In such a situation the officers cannot claim immunity from the injunctive process. This is not a case involving administrative proceedings specifically provided by statute, nor is it a case involving supervisory powers of the Secretary-prior to the issuance of patent or lease. The decisions in McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35, and Seaton v. Texas Co., 103 U.S.App.D.C. 163, 256 F.2d 718, are not helpful. In the first, the authority of the Secretary-to cancel a lease in an administrative proceeding was not involved and the court ordered cancellation. In the second, the court avoided the question of the general power of the Secretary to cancel a lease after issuance and held that in the situation presented the cancellation “was not valid administrative action.” In a later decision, McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780, 784, certiorari denied 358 U.S. 835, 79 S.Ct. 57, 3 L.Ed.2d 71, the same circuit held that “a fair common denominator * * * of the conditions which will cause judicial repudiation of administrative action by the Secretary, is at least that he is plainly wrong.” As we see the case at bar, his subordinates were plainly wrong as they were acting in excess of their lawful authority. There is a suggestion in the brief presented by government counsel that the issuance of an injunction in this case will interfere with the power of the Secretary to conduct an investigation. No such result is intended. The Secretary has the unquestioned power to investigate. If the results of that investigation justify action for cancellation, that action must be brought in court and not before the agency which makes the investigation. If Congress desires administrative cancellation of federal oil and gas leases, it may, in the exercise of its constitutional authority over the public domain, so provide in appropriate legislation, but we have no such legislation before us. The judgment sustaining the motion to dismiss and dismissing the case is reversed and the cause is remanded for further proceedings consistent with this opinion. . 30 U.S.C.A. § 181 et seq. . The opinion of the trial court is reported at 181 F.Supp. 557. . West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582, 596, certiorari denied 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123. See also Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899; Atchison, Topeka & Santa Fe R. Co. v. O’Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436; Philadelphia Co. v. Stimson, Secretary of War, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Waite et al. v. Macy et al., 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892; Santa Fe Pacific R. Co. v. Fall, Secretary of the Interior, 259 U.S. 197, 42 S.Ct. 406, 66 L.Ed. 896; and Work, Secretary of the Interior v. State of Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259. . Cf. Larson, War Assets Administrator and Surplus Property Administrator v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 703, 69 S.Ct. 1457, 93 L.Ed. 1628, rehearing denied 338 U.S. 840, 70 S.Ct. 31, 94 L.Ed. 514. . E. g. 3 Davis, Administrative Law Treatise, §§ 27.01-27.10 (1958); Hart and Wechsler, The Federal Courts and the Federal System, pp. 1177, 1189 (1953); 48 Calif.Law Rev. 98; and The Doctrine of Indispensable Parties as Applied in Review of Administrative Action, 103 U.Pa.Law Rev. 238. . Cf. Gart v. Cole, 2 Cir., 263 F.2d 244, 250, certiorari denied 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929. See also Homestake Mining Co. v. Mid-Continent Exploration Co., 10 Cir., 282 F.2d 787. . State of Colorado v. Toll, Superintendent of the Rocky Mountain National Park, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; Williams v. Fanning, Postmaster of Los Angeles, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95; Hynes, Regional Director, Fish and Wildlife Service v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; Shaughnessy, District Director of Immigration and Naturalization v. Pedreiro, supra. See Ceballos (y Arboleda) v. Shaughnessy, District Director, Immigration and Naturalization Service, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583. . Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 S.Ct. 225, 41 L.Ed. 621; Gnerich et al. v. Rutter, Prohibition Director, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068; Webster v. Fall, Secretary of the Interior, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411; and Blackmar v. Guerre, Regional Manager, Veterans’ Administration, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. . See Williams v. Fanning Revisited, 54 Columbia Law Review 1128. . 332 U.S. 493, 68 S.Ct. 189, 92 L.Ed. 95. . The decisions in Ogden River Water Users’ Ass’n v. Weber Basin Water Conservancy, 10 Cir., 238 F.2d 936, and State of New Mexico v. Backer, 10 Cir., 199 F.2d 426, are not pertinent as they involved the doctrine of sovereign immunity. May v. Maurer, 10 Cir., 185 F.2d 475, was a case where the principal relief sought was an adjudication that •certain leased premises were not subT ject to rent control and the decision was that such relief could not be obtained without joining the superior and that the plaintiff had not exhausted the available ■administrative remedies. . The availability of Part 221 to obtain the cancellation of a federal oil and gas lease is questionable. Section 221.67 provides that the government may initiate contests for “any cause affecting the legality or validity of any entry or settlement or mining claim.” . Section 221.68 provides that government contests shall be governed by the rules regulating private contests, with exceptions not here pertinent. Section 221.53, relating to private contests, provides that the complaint must be filed in the land office which has jurisdiction over the land involved. . 332 U.S. 494, 68 S.Ct. 189, 92 L.Ed. 95. . 30 U.S.C.A. §§ 35-37, 16 Stat. 217, 17 Stat. 94. . See 4 Summers, Oil and Gas, § 869, p. 295. . 30 U.S.C.A. §§ 221, 223, 223a, 226 and 185, 49 Stat. 674. . West v. Work, 56 App.D.C. 191, 11 F.2d 828, 831, certiorari denied 271 U.S. 689, 46 S.Ct. 639, 70 L.Ed. 1153. . 30 U.S.C.A. § 184. . 30 U.S.C.A. § 188. . All leases involved in this litigation wore issued after that date. . 43 C.F.R. 192.161(c) (1954 Supp.). . Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 S.Ct. 208, 42 L.Ed. 591; Moore v. Robbins, 90 U.S. 530, 533, 24 L.Ed. 848. . U.S.Const. Art. 4, § 3; Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791. . 30 U.S.C.A. § 188. . Suits to annul patents must be brought within six years from issuance. 43 U.S.C.A. § 1166. . Cf. Moore v. Robbins, supra, 96 U.S. at page 534. . Knight v. United States Land Ass’n, 142 U.S. 161, 181, 12 S.Ct. 258, 264, 35 L.Ed. 974. . Act of Sept. 2, 1960, P.L. 86-705, 30 U.S.C.A. §§ 181 et seq., 182, 184, 187a, 226, 226-1, 226-2, 226d, 226e, 241. . H.Rept. No. 1401, 86th Cong., 2d Sess., covering proposed amendments to the Mineral Leasing Act, contains the following: “A major committee amendment strikes out all of paragraphs (1) and (2) of subsection (h) of section 27, as amended by H.R. 10455, dealing with the cancellation, forfeiture, and compelled disposition of interests held in violation of the act, and related matters, and substitutes the present language of the law for that which was proposed in the bill. The committee recognizes that the meaning of this language is under current dispute. The plaintiffs in certain cases pending or recently pending in the U. S. District Court for the District of Wyoming have questioned the asserted authority of the Secretary of the Interior to cancel or forfeit oil and gas leases in an administrative proceeding. The committee believes that any legislation further fixing jurisdictional boundaries in this field between the judiciary and the executive should await the outcome of, and be based upon the experience gained through, the pending actions.” . See also Land, Chairman, United States Maritime Commission v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209. . Cf. Florida Lime & Avocado Growers, Inc. v. Jacobsen, Director of the Department of Agriculture, 362 U.S. 73, 85, 80 S.Ct. 568, 4 L.Ed.2d 568. . The brief for the officers does not dispute that the lands covered by the leases contain valuable oil and gas deposits and that some are presently producing oil and gas. . Philadelphia Co. v. Stimson, Secretary of War, supra, 223 U.S. at page 620, 32 S.Ct. at page 344. . Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. . Cf. United States ex rel. Roughton v. Ickes, 69 App.D.C. 324, 101 F.2d 248. . 256 F.2d 721.

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?

INDIANA STATE POLICE PENSION TRUST et al. v. CHRYSLER LLC et al. No. 08A1096. Decided June 9, 2009 Together with No. 08A1099 (08-1513), Center for Auto Safety et al. v. Chrysler LLC et al., and No. 08A1100, Pascale v. Chrysler LLC et al., also on applications for stay. Per Curiam. The applications for stay presented to Justice Ginsburg and by her referred to the Court are denied. The temporary stay entered by Justice Ginsburg on June 8, 2009, is vacated. A denial of a stay is not a decision on the merits of the underlying legal issues. In determining whether to grant a stay, we consider instead whether the applicant has demonstrated “(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect that a majority of the Court will conclude that the decision below was erroneous; and (3) a likelihood that irreparable harm will result from the denial of a stay.” Conkright v. Frommert, post, at 1402 (Ginsburg, J., in chambers) (internal quotation marks and alteration omitted). In addition, “in a close case it may be appropriate to balance the equities,” to assess the relative harms to the parties, “as well as the interests of the public at large.” Ibid, (internal quotation marks omitted). “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, ante, at 433 (2009) (internal quotation marks omitted). It is instead an exercise of judicial discretion, and the “party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Ante, at 433-434. The applicants have not carried that burden. “[T]he propriety of [a stay] is dependent upon the circumstances of the particular case,” and the “traditional stay factors contemplate individualized judgments in each case.” Ibid, (internal quotation marks omitted). Our assessment of the stay factors here is based on the record and proceedings in these cases alone.

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?

Hazel TUFT, Individually, and Hazel Tuft, as a member of a class of female employees of McDonnell Douglas Corporation, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee. No. 74-1890. United States Court of Appeals, Eighth Circuit. Submitted March 14, 1975. Decided May 27, 1975. Rehearing and Rehearing En Banc Denied July 2, 1975. Doreen D. Dodson, Louis Gilden, St. Louis, Mo., for plaintiff-appellant. Dennis C. Donnelly, St. Louis, Mo., for defendant-appellee. Charles Reischel, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae. Before CLARK, Associate Justice, Retired, and LAY and BRIGHT, Circuit Judges. TOM C. CLARK, Associate Justice, Retired, United States Supreme Court, sitting by designation. BRIGHT, Circuit Judge. Hazel Tuft on her own behalf and as a class action alleges that McDonnell Douglas Corporation (McDonnell Douglas) has discriminated against women in its employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. II, 1972). The district court dismissed the action on grounds that Ms. Tuft failed to bring her action in district court within the allowable time period of 90 days after she had received notice from the Equal Employment Opportunity Commission (EEOC or Commission) that it had failed to resolve her claim against McDonnell Douglas through conciliation. Ms. Tuft brings this timely appeal. We reverse the district court for reasons stated below. 1. Facts We relate the relatively uncomplicated facts presented at this stage of the litigation. On August 13, 1971, Ms. Tuft filed a complaint with the EEOC alleging sex discrimination in employment by McDonnell Douglas at its St. Louis, Missouri, facility. Some 17 months later, on December 15, 1972, the EEOC determined that reasonable cause existed to believe that the complaint was true and it commenced conciliation efforts with McDonnell Douglas in an attempt to resolve the dispute. Thereafter, over one year later on February 13, 1974, the supervisor of conciliations at the St. Louis EEOC district office wrote Ms. Tuft advising that conciliation efforts in her case had failed and that she could, if she so desired, request a “right to sue” letter from the district director. The letter further suggested that Ms. Tuft should obtain an attorney before requesting her right to sue letter since she would have only 90 days after receiving it in which to bring suit. After obtaining a lawyer, Ms. Tuft then requested a formal letter authorizing her to sue in federal court. In response, the district director issued a second letter on June 14, 1974, advising her that the “Commission has not filed a civil action” nor “entered into a conciliation agreement to which you are a party” and that she might institute a civil action in the proper United States District Court “within 90 days of your receipt of this Notice.” As required by its regulations the Commission forwarded copies of the charge and the reasonable cause determination with this letter. Ms. Tuft filed her action on June 20, 1974, only a few days after receiving the second letter from the Commission, but more than 90 days after receiving the initial letter advising her that conciliation efforts in her case had failed. The district court ruled that the first letter, rather than the second, triggered the running of the 90-day limitation period. The court reasoned as follows: * * * The only notice required [by the statute] is that which notifies the plaintiff that efforts to conciliate have failed. Once such notice is given, the-ninety day period begins to run. The idea that more information should be put into the notice came not from Congress, but from the EEOC in their regulations. 29 C.F.R. 1601.25. While the additional information regarding the right to sue may be of some benefit, it does not change the fact that only notice of failure of conciliation is required to start the statute of limitations running. The letter of February 13, 1974, contained all the notice that is required by the Act to start the ninety-day period running. * * * * * * The wording of the Act clearly indicates that the notice is to be given immediately upon the failure of conciliation. In the case at bar, notice of the failure of conciliation was given at that proper time. The EEOC’s attempt to postpone the running of the ninety-day period until the plaintiff requests some further notice is of no effect. [385 F.Supp. at 186.] The district court’s analysis cannot be sustained in view of the statutory language of the 1972 amendments to Title VII and the legislative history of these amendments. II. Background A. Section 706 Prior to the 1972 Amendments. As originally enacted, § 706 of Title VII read in pertinent part as follows: If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference [to a state agency] under subsection (e) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought * * *. [42 U.S.C. § 2000e — 5(e) (1970).] By this provision, Congress limited the Commission’s enforcement powers to conciliation efforts. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); EEOC v. Hickey-Mitchell Co., 507 F.2d 944, 947 (8th Cir. 1974). The courts generally interpreted this provision to require that the Commission notify a complainant whenever conciliation efforts had failed and that this notification constituted a right to sue letter. Stebbins v. Continental Insurance Co., 143 U.S.App.D.C. 121, 442 F.2d 843, 846 (1971); Cunningham v. Litton Industries, 413 F.2d 887, 890—91 (9th Cir. 1969); Miller v. International Paper Co., 408 F.2d 283, 287 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 359 (7th Cir. 1968); see EEOC v. Missouri Pacific R.R., 493 F.2d 71, 72 (8th Cir. 1974); Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973); Huston v. General Motors Corp., 477 F.2d 1003, 1005 (8th Cir. 1973); Goodman v. City Products Corp., 425 F.2d 702, 703 (6th Cir. 1970). The issuance of the letter, not the exhaustion of conciliation efforts, constitutes a jurisdictional prerequisite to suit. Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d 399 (5th Cir. 1969), cert. denied, 403 U.S. 912, 91 S.Ct. 2219, 29 L.Ed.2d 689 (1971). B. 1972 Amendments and Legislative History. In amending Title VII with the Equal Employment Opportunity Act of 1972, Congress expressed concern over the ineffectiveness of conciliation as the sole administrative remedy in Title VII cases and administrative delay in achieving effective enforcement of the Title VII claims. As the House Report observed: With the steady growth in the number of cases filed with the Commission, an effective and suitable procedure and remedy become increasingly important. Effective remedies have not resulted from present practice. Of the 35,455 charges that were recommended for investigation, reasonable cause was found in over 63% of the cases, but in less than half of these eases was the Commission able to achieve a totally or even partially successful conciliation. [H.R.Rep.No.92 — 238, 92d Cong., 2d Sess. (1972), 1972 U.S.Code Cong. & Admin.News, pp. 2139-40 (hereafter House Report).] See S.Rep.No.92-415, 92d Cong., 1st Sess. 5 (1971). In an attempt to alleviate these problems Congress granted the EEOC the power to initiate civil actions if its conciliation efforts failed but preserved the right of the individual claimant to sue as a means by which he might extricate himself from the “quagmire which occasionally surrounds a case caught in an overloaded administrative process.” House Report, 1972 U.S.Code Cong. & Admin.News, p. 2148. As the House Report further observed, [i]t would, however, be appropriate for the individual to institute a court action where the delay is occasioned by administrative inefficiencies. The primary concern must be protection of the aggrieved person’s option to seek a prompt remedy in the best manner available. [Id (emphasis added).] Although the individual retains the option of bringing his own Title VII suit when authorized to do so, Congress indicated that the primary burden of enforcing Title VII rights should rest upon the Commission. The Senate Report noted: Accordingly, where the Commission is not able to pursue a complaint with satisfactory speed, or enters into an agreement which is not acceptable to the aggrieved party, the bill provides that the individual shall have an opportunity to seek his own remedy, even though he may have originally submitted his charge to the Commission. It is expected that recourse to this remedy will be the exception and not the rule, particularly once the Commission’s enforcement procedures are fully operational. In the meantime, however, the committee believes that the aggrieved person should be given an opportunity to escape the administrative process when he feels his claim has not been given adequate attention. [S.Rep.No.92-415, 92d Cong., 1st Sess. 23 (1971).] C. 180-day Provision. An initial question for our consideration is whether § 706(f) requires the Commission to complete its enforcement actions by bringing suit within 180 days after the complaint has been filed. An affirmative answer could imply a requirement for the Commission to issue its notice in any event after 180 days from the filing (or expiration of period of reference) date of the complaint. Against the backdrop of legislative history § 706(f) carries a congressional suggestion that the EEOC should dispose of its cases administratively within the 180-day period. Three courts of appeals, however, have ruled that § 706(f) does not require institution of a Commission suit within the 180-day period. The Sixth Circuit Court of Appeals, in EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975), ruled that § 706(f) does not bar the EEOC from filing suit more than 180 days after the complaint has been filed. The court explained the purpose of the 180-day provision as follows: The statute does not expressly limit the period within which the EEOC may sue to 180 days from the filing of a charge. In one sentence of section 706(f)(1) the EEOC is authorized to sue to enforce Title VII if after thirty days from a charge’s filing a conciliation agreement has not been reached. In a later sentence the EEOC is required to notify a charging party when an agreement has not been reached 180 days after the charge’s filing, and the private party is then authorized to sue. Authorization for a private suit does not expressly deprive the EEOC of power to sue. ****** If Congress had intended to cut off the Commission’s right to sue after 180 days from a charge’s administrative filing, it should and would have done so expressly * * *. In summary, we find that the 180-day provision was not intended to hamper the EEOC’s ability to enforce Title VII but rather was meant to guarantee private parties prompt recourse to the courts after a reasonable period of conciliation efforts. The EEOC is not barred from basing a complaint on a charge filed more than 180 days prior to the EEOC’s suit. [Id. at 1356-57, 1359.] Accord, EEOC v. Louisville & Nashville R.R., 505 F.2d 610, 612 (5th Cir. 1974); EEOC v. Cleveland Mills Co., 502 F.2d 153, 159 (4th Cir. 1974). Although Congress believed that six months should be a sufficient period of time in which to process the ordinary case, S.Rep.No.92-415, 92nd Cong., 1st Sess. 24 (1971), its reports, as we have already noted, have acknowledged the existence of great delay in the administrative process. Id. at 23; House Report, 1972 U.S.Code Cong. & Admin. News, p. 2147. Furthermore, in § 706(b), Congress recommended, but did not mandate, that the EEOC make a determination on reasonable cause within 120 days. This provision reads in pertinent part: The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, * * * from the date upon which the Commission is authorized to take action with respect to the charge. [42 U.S.C. § 2000e-5(b).] The use of this language — “as promptly as possible and, so far as practicable”— demonstrates that Congress did not set specific administrative deadlines. Given the congressional emphasis on conciliation, we cannot conclude that Congress intended a 180-day cutoff period for Commission enforcement actions when Congress explicitly noted that determinations on reasonable cause alone might take more than 120 days. We believe that the language of the statute and its legislative history support the conclusion that administrative enforcement of Title VII does not cease at the end of 180 days, and thus, the 180-day provision does not serve as a time deadline for the Commission to issue any notice to the complaining party. D. Option of Complaining Party After 180 Days. Section 706(f) provides that the Commission “shall so notify the person aggrieved” if within 180 days it has neither conciliated the dispute nor brought suit. In its regulations, the Commission has construed this language to require the issuance of the statutory notice on demand of the complaining party after 180 days have elapsed from the filing of the charge. The Commission regulation provides: At any time after the expiration of one hundred and eighty (180) days from the date of the filing of a charge or upon dismissal of a charge at any stage of the proceedings, an aggrieved person may demand in writing that a notice issue * * * and the Commission shall promptly issue a notice, and provide copies thereof and copies of the charge to all parties. [29 C.F.R. § 1601.25b(c) (1974).] Under this regulation an individual, at any time after the 180-day period has elapsed, may demand the statutory notice as the prerequisite to his suit, regardless of whether the Commission procedures remain in the investigative stage, the conciliation stage, or whether the Commission is considering bringing its own action after conciliation efforts have failed. As the court in EEOC v. Kimberly-Clark Corp., supra, 511 F.2d at 1359, observed: The 180-day provision’s purpose is served under the present law by protecting the private party from undue administrative delay during the conciliation stage, guaranteeing the right of private suit six months after a charge is filed. See House Report, 1972 U.S.Code Cong. & Admin.News, p. 2148. The regulation appears consistent with pre-1972 procedures entitling an aggrieved party to demand and receive an official notice or right to sue letter 60 days after the charge was filed regardless of any act or omission of the EEOC. 29 C.F.R. § 1601.25a (1972). In Beverly v. Lone Star Constr. Corp., 437 F.2d 1136 (5th Cir. 1971), the court observed: Were this regulation not written, we would read it into the Act lest a claimant’s statutory right to sue in federal court become subject to such fortuitous variables as workload, mistakes, or possible lack of diligence of EEOC personnel. [Jdf. at 1140.] III. The Validity of the Commission’s Two-Letter Procedure. The question remains — when must the Commission issue an official notice to the aggrieved party in the absence of a demand? As we observed earlier in this opinion, prior to the 1972 amendments the EEOC’s administrative procedures terminated with the exhaustion of conciliation efforts. The then existing statute recited that if “the Commission has been unable to obtain voluntary compliance * * * the Commission shall so notify the person aggrieved * * *See p. 1305 supra for the text of this provision. This notice has been characterized as the “formal notification to the claimant that his administrative remedies with the Commission have been exhausted.” Beverly v. Lone Star Lead Constr. Corp., supra, 437 F.2d at 1140. The 1972 amendments, in addition to granting the Commission the power to file civil actions, also gave the Attorney General the power to file an action against a state governmental agency or political subdivision. Except for initial referral requirements to local agencies, the statute prescribes nearly identical procedures for processing Title VII complaints against private employers or governmental employers (“government, governmental agency, or political subdivision”) except that the Attorney General must file the suit against the governmental employers. The pertinent portion of § 706(f) applicable to both private and state or local governmental employers is reproduced in the margin. This section, read in its entirety, calls upon the Commission, in cases of private employers, or the Attorney General, in cases of governmental employers, to “notify” the aggrieved party upon a determination not to file suit. In the absence of a demand from the complainant, the notice from the Attorney General obviously must follow his decision not to file suit. Since the Commission similarly determines whether to institute a civil action against other employers, it follows that it also must issue its notice upon determining that it will not sue. Thus, absent a demand from the aggrieved party, § 706 requires an official notification to the complainant upon making the decision not to file suit, this determination representing the final step of administrative processing. As the Second Circuit observed in DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 310 (2d Cir. 1975), [t]he purpose of the notice of right to sue was definitely to fix a time when the administrative remedies had ended and when the 90-day statute of limitations for bringing a suit in the federal court began to run. This reading of the notification provisions of § 706(f) comports with the expressed congressional desire to place the primary burden of enforcement of Title YII cases on the Commission rather than the private complainant. If the statute required the issuance of notice at some intermediate stage of the administrative process, an aggrieved person would be required to either sue within 90 days or lose his right to sue without knowing whether or not the Commission would file suit on his behalf. Moreover, this construction remains consistent with pre1972 procedures which generally geared the issuance of notice to exhaustion of administrative remedies. Before the 1972 amendments administrative procedures ended with the termination of conciliation efforts while under the current statute these administrative procedures end with a determination of whether to file suit. The notice procedures which trigger the 90-day statute of limitations may be summarized as follows: 1) Upon a dismissal of the charge by the Commission, the statutory notice must issue promptly to the aggrieved party and the respondent. DeMatteis v. Eastman Kodak Co., supra, 511 F.2d at 310. 2) The complainant may demand the statutory notice any time after 180 days have elapsed from the filing of the complaint if the Commission has not dismissed his complaint, achieved a conciliation agreement, or filed a civil action. 3) Otherwise, the statutory notice must issue following a determination by the Commission or, in appropriate cases, the Attorney General, that a civil action will not be filed. Here, the first letter recites only that conciliation efforts have failed and does not mention suit consideration by the Commission. The Commission has advised us that at the time the first letter was sent to Ms. Tuft, it had made no determination on whether to file suit. Thus, the first Commission letter of February 13, 1974, must be read literally, 'as informing Ms. Tuft that conciliation had failed and advising her that she might request the formal statutory notice from the Commission as a prerequisite to filing her own suit. Since the Commission had not then exhausted its administrative procedures under Title VII, no basis exists, legally or equitably, for construing the first letter as a statutory notice initiating the running of the 90-day limitation period. IV. Requirement of Actual Notification. Finally, even if § 706(f) could be considered to require the issuance of a statutory notice of right to sue upon the failure of conciliation efforts, the letter in the instant case cannot be construed as such notification to Ms. Tuft. This first letter explicitly informed Ms. Tuft that the 90-day period would not begin until receipt of the second letter: When you request your letter of right to sue, you have only 90 days to get a lawyer to file suit for you in Federal District Court. The critical phrase in § 706(f) is “so notify.” Notification to the aggrieved person initiates the running of the limitation period. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Plunkett v. Roadway Express, Inc., 504 F.2d 417 (10th Cir. 1974); Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974). The cases make clear that the aggrieved person must receive actual and effective notification of his right to sue. In Franks, under the pre-1972 version of the statute, the court ruled that a statutory notice mailed by the Commission and received at claimant’s house, but which was never seen by the claimant, did not trigger the 90-day period: In terms of the policy behind limitations periods generally, the claimant can hardly be said to have slept on his rights if he allows the thirty-day period to expire in ignorance of his right to sue. [Id. at 404.] The Tenth Circuit, in Plunkett, similarly held that it was the actual receipt of the notice, rather than its mailing, which governed the running of the statute. 504 F.2d at 418-19. Moreover, it is undisputed that Ms. Tuft relied on the Commission’s procedures and, in the absence of prejudice to the defendant, she should not be penalized for any errors or omissions of the EEOC. See EEOC v. Kimberly-Clark Corp., supra, 511 F.2d at 1360; Choate v. Caterpillar Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968); see also Love v. Pullman, 404 U.S. 522, 526-27, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); EEOC v. Wah Chang Albany Corp., 499 F.2d 187 (9th Cir. 1974); Huston v. General Motors Corp., 477 F.2d 1003 (8th Cir. 1973); Note, Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629, 631 (1974). Since the first letter did not give Ms. Tuft any effective notification that she could sue within 90 days of the receipt of that letter, it cannot serve to initiate the running of the statute of limitations. We reverse and remand this case for further proceedings. . Section 706(f) of the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-5(f)(1) (Supp. II, 1972)). The pertinent language of that section reads: If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) [state or local agencies] of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. * * *. [Emphasis added.] . The district court opinion is reported at 385 F.Supp. 184 (E.D.Mo.1974). We note a similar ruling in another case in the Eastern District of Missouri, Harris v. Sherwood Medical Industries, Inc., 386 F.Supp. 1149 (1974). . As the district court aptly noted, the statute does not mention any “right to sue” letter. 385 F.Supp. at 186. The courts, however, have frequently referred to the statutory notification given by the EEOC which triggers the complainant’s right to sue in a Title VII action as a “right to sue” letter. E. g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); EEOC v. Missouri Pacific R.R., 493 F.2d 71, 75 (8th Cir. 1974); United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849, 850-51 (8th Cir. 1972). The Commission regulation refers to these notifications as “Notices of Right-to-Sue.” 29 C.F.R. § 1601.25 (1974). . The text of this letter reads in full as follows: This is to inform you that conciliation efforts in your case have failed. Anytime now, you may request your letter of Right to Sue. This is done by requesting, in writing, from the District Director, Mr. Eugene P. Keenan. When you request your letter of Right to Sue, you have only 90 days to get a lawyer to file suit for you in Federal District Court. It is not wise to request your Right to Sue letter until you have obtained a lawyer who has agreed to represent you. There are a number of St. Louis area lawyers who have experience with cases under Title VII of the Civil Rights Act of 1964, as amended. You would be wise to talk with a number of lawyers to find out what their fees would be in your case. If you need assistance in obtaining a lawyer or if you have any questions about your legal rights, you may contact Ms. Gretchen Huston, District Office Attorney, at 622-4126. If there are any questions, please do not hesitate to contact me. William G. Lorenz /s/ William G. Lorenz Supervisor of Conciliations . This letter was phrased in terms of the statute, which provides, among other things, that if within 180 days from the filing of a case which has not been dismissed by the Commission, or within 180 days from the expiration of reference to state or local agencies, the Commission (or in certain cases the Attorney General) has not filed a civil action or has not entered into a conciliation agreement to which the claimant is a party, the Commission (or the Attorney General) “shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge * * 42 U.S.C. § 2000e-5(f)(l). The text of this letter reads: NOTICE OF RIGHT TO SUE WITHIN 90 DAYS In Case No. YSL3-203 before the Equal Employment Opportunity Commission, United States Government. YOU ARE HEREBY NOTIFIED THAT: WHEREAS, This Commission has not filed a civil action with respect to your charge as provided by Section 706(F)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq: and, WHEREAS, this Commission has not entered into a conciliation agreement to which you are a party; THEREFORE, pursuant to 706(F) of Tide VII, you may, within 90 days of your receipt of this Notice, institute a civil action in the United States District Court having jurisdiction over your case. Should you decide to commence judicial action, you must do so within 90 days of the receipt of this letter or you will lose your right to sue under Title VII. If you are not represented by counsel and you are unable to obtain counsel, the Court may, in its discretion, appoint an attorney to represent you. Should you have any questions concerning your legal rights or have any difficulty filing your case in court, please call Ms. Gretchen Huston of this office at 314-622-5571. June 14, 1974 John F. Nicholson /s/ Date John F. Nicholson, Acting District Director . The pertinent Commission regulation provides: PROCEDURE AFTER FAILURE OF CONCILIATION § 1601.25 Notice to respondent, person filing a charge on behalf of the aggrieved person or aggrieved persons. (a) In any instance in which the Commission is unable to obtain voluntary compliance as provided by Title VII, as amended, it shall so notify the respondent, the person filing a charge on behalf of the aggrieved person, the aggrieved person or persons, and any State or local agency to which the charge has been previously deferred pursuant to § 1601.12 or § 1601.10. Notification to the aggrieved person shall include: (1) A copy of the charge. (2) A copy of the Commission’s reasonable cause or no reasonable cause determination as appropriate. (3) Advice concerning his or her rights to proceed in court under Section 709(f)(1) [sic: 706(f)(1)] of Title VII. (b) The Commission hereby delegates to its District Directors, Deputy District Directors, and the Dierctor [sic] of Compliance, the authority to issue Notices of Right-To-Sue on behalf of the Commission in all cases except those in which a government, governmental agency or political subdivision is named in the charge, pursuant to the procedures set forth in paragraph (a)(2) and (3) of this section. [29 C.F.R. § 1601.25 (1974).] . The House and Senate Reports recommended that the Commission be granted judicially enforceable cease and desist authority. The Congress rejected these recommendations and accepted the minority views in the House Report which recommended that the Commission be empowered to sue directly in federal district court to enforce provisions of Title VII. See House Report, 1972 U.S.Code Cong. & Admin.News, pp. 2143-47, 2168-72; S.Rep.No. 92 — 115, 92d Cong., 1st Sess. 17-22 (1971); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1354 (6th Cir. 1975); EEOC v. Missouri Pacific R.R., 493 F.2d 71 (8th Cir. 1974). . The case before us reflects these administrative delays. Ms. Tuft filed her complaint with the EEOC in August 1971 and more than two and one-half years elapsed before the Commission informed her that conciliation efforts had failed. Delays of this length erode the effectiveness of Title VII. The Commission should endeavor to obtain prompt resolution of Title VII cases through the administrative process and thus avoid burdening the already overburdened federal courts with additional litigation. See S.Rep.No.92-415, 92d Cong., 1st Sess. 18 (1971). . We adverted to this issue in EEOC v. Missouri Pacific R.R., 493 F.2d 71, 75-76 (8th Cir. 1974), where we ruled that once a complainant files suit pursuant to a right to sue letter, the Commission may not file its own action. We noted, however, that the issue of whether the Commission, absent a private suit, could sue more than 180 days from the filing of the complaint was not before the court. . The original enactment of § 706 contained similar language which might imply that the Commission should complete its conciliation efforts within a 30 to 60 day period. See text at p. 1305 supra. This provision has been interpreted to be precatory only. Cunningham v. Litton Industries, supra, 413 F.2d at 890-91; Miller v. International Paper Co., supra, 408 F.2d at 287; Choate v. Caterpillar Tractor Co., supra, 402 F.2d at 359. . The House sponsor of the bill stated: The conferees contemplate that the Commission will continue to make every effort to conciliate as is required by existing law. Only if conciliation proves to be impossible do we expect the Commission to bring action in Federal district court to seek enforcement. [118 Cong.Rec. 7563 (1972) (remarks of Congressman Perkins).] . The quoted language appears in the original version of § 706. 42 U.S.C. § 2000e-' 5(e)(1970). Conciliation in the original version of § 706 was phrased in terms of “voluntary compliance” with Title VII, see p. 1305 supra, while the present section speaks in terms of “a conciliation agreement to which the person aggrieved is a party.” See n.l supra. . We understand from the Commission’s amicus brief that the same two-letter procedure has been followed in approximately 200 cases under the jurisdiction of the Commission’s St. Louis district office and that the rights of these claimants could be adversely affected by recognizing the first letter as the statutory notice preceding suit under § 706(f). . In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court, * * * If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a 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. 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?

Michael L. MARTIN, Plaintiff-Appellant, v. Sheriff Richard TYSON, et al., Defendants-Appellees. No. 87-2371. United States Court of Appeals, Seventh Circuit. Submitted March 29, 1988. Decided May 9, 1988. Michael L. Martin, pro se. Patrick J. Hinkle, Law Office of R. Kent Rowe, South Bend, Ind., for defendants-ap-pellees. Before FLAUM and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument.” See Fed.R.App. P. 34(a); Circuit Rule 34(f). No one filed such a statement, and the appeal is submitted on the briefs and record. PER CURIAM. Michael L. Martin filed this action under 42 U.S.C. § 1988 against Sheriff Richard Tyson, various Commissioners of Marshall County, Indiana, and prison employees, as individuals and in their official capacities, for violating his constitutional rights while Martin was a pretrial detainee. The district court granted summary judgment in favor of the defendants, and this appeal followed. I In 1982 Martin was arrested for arson and held in the Marshall County jail for 21 days, until released on bond. In September 1988 Martin was arrested in Houston, Texas, for interstate flight to avoid prosecution. Martin was returned to the Marshall County jail, where he remained until he escaped on November 25, 1983. On September 19, 1984, Martin was arrested in Ohio for non-support and was held in an Ohio jail until October 18, 1984, when he was returned to the Marshall County facility. Martin remained in the Marshall County jail until February 11,1985. This suit is based on the conditions of Martin’s confinement in the Marshall County jail between October 18, 1984, and February 11, 1985. II A. Allegation Nine Martin’s original complaint contained ten allegations and named only the Commissioners of Marshall County and Sheriff Tyson as defendants. On March 7,1986, Martin was given leave to amend his complaint. His amended pleading added the remaining defendants and restated the allegations of his original complaint. Martin did not mention Allegation Nine of his original complaint in the amended complaint. Allegation Nine was that Martin had been denied access to newspapers during his confinement. The district court interpreted Martin’s omission of Allegation Nine as a decision on his part not to pursue this claim, which the court then dismissed. The language of Martin’s amended complaint suggests that Allegation Nine was incorporated by reference. Martin asked the court to allow the following wording [in the amended complaint] in addition to the wording already contained in the complaint. Given the obligation to accord a liberal reading to pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), we find that Martin’s Allegation Nine survived the amendment of the complaint. The district court should consider this claim on the merits. We have previously found the arbitrary denial of access to published materials violates an inmate’s first amendment rights. Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.1987); Kincaid v. Rusk, 670 F.2d 737, 744-45 (7th Cir.1982). See also Mann v. Smith, 796 F.2d 79, 82 (5th Cir.1986). Sheriff Tyson’s affidavit confirms that newspaper delivery to the Marshall County jail inmates was prohibited, although Tyson stated that newspapers could be received on a subscription basis. Martin argues that this portrayal of the facts is inaccurate, and that the ban on newspapers was absolute. Since the district court has not addressed the merits of this allegation, we must remand the issue. B. Defendants Overmyer, Schultz, and Baker The district court dismissed the claims against defendants Overmyer, Schultz, and Baker, then Commissioners of Marshall County. The court held that the Commissioners had no personal involvement with Martin, which precluded liability under § 1983. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir.1986), citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983). Martin cites several Indiana statutes establishing the administrative standards for state prisons. He argues that the Commissioners were statutorily required to comply with certain policies. This is irrelevant, since a violation of state law does not create liability under § 1983. Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 434-35 (7th Cir.1986). Martin also sues the Commissioners in their official capacities, which makes this a claim against the governmental unit. Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978). Although the doctrine of respondeat superior is inapplicable to § 1983 actions, Monell, 436 U.S. at 694, 98 S.Ct. at 2037, a county may be held liable for its official policies. Under Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), a policy that “amounts to punishment of the detainee” is unlawful. There is no evidence, however, that the Marshall County jail’s policies were designed to deprive pretrial detainees of their due process rights. The district court therefore properly granted summary judgment on this claim. C. Defendants Tyson, Criswell, Giant, Hesler, and Woodward Defendants Tyson (Sheriff of Marshall County), Criswell (a police officer), Giant, Hesler, and Woodward (three employees of the jail), may have been directly involved with Martin’s confinement. The rights of pretrial detainees are protected under the Due Process Clause of the fourteenth amendment, which prohibits punishment of persons who have not been convicted of a crime. Bell, 441 U.S. at 536 n. 16, 99 S.Ct. at 1872 n. 16. The district court decided that Martin had not been “punished” prematurely. 1. Conspiracy Martin alleges that defendant Cris-well conspired with Ohio jail officials. When contacted by the Ohio authorities, Criswell identified Martin as an inmate escaped from the Marshall County jail. As a result, Martin maintains that he was incorrectly classified in the Ohio facility. As the district court observed, however, the defendants had no control over the administration of the Ohio jail. Furthermore, Cris-well accurately stated Martin’s status. Martin protests that since the charges against him for the escape were later dropped, the information given to the Ohio authorities was erroneous. On the contrary, Criswell’s statement corresponded with the facts. Plea bargains (which led to the dropping of the escape charge) do not retroactively alter facts. 2. Visitation Policy Martin also complains of the visiting policy at the jail. The jail limited both the number of visitors and the length of the visits, and “contact” visits were prohibited. On one occasion, Martin’s mother was denied the opportunity to visit with him because she arrived on a day when no visits were scheduled. The Marshall County jail officials assert that these limitations were necessary due to the small size of the jail and the number of people to be accommodated. The size and location of a facility are relevant factors in determining whether a plaintiff has been constitutionally harmed. Penland v. Warren County Jail, 797 F.2d 332, 335 (6th Cir.1986). The Marshall County jail is a small detention facility in a rural area. Courts must play a limited role in the administration of detention centers. Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 3231-3232, 82 L.Ed.2d 438 (1984). Summary judgment for the defendants on this point was proper. 3.Access to Courts Martin asserts that he was denied access to the courts because the Marshall County facility has no law library. Meaningful access to the courts must be provided. Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977); United States ex rel. George v. Lane, 718 F.2d 226, 230 (7th Cir.1983). As Bounds recognized, however, this need can be addressed in several ways. The relevant inquiry is whether the inmate has been given a “reasonably adequate opportunity” to present his claim. Bounds, 430 U.S. at 825, 97 S.Ct. at 1496. Although the Marshall County jail does not have a law library, Martin was represented by counsel on his criminal charges. See Love v. Summit County, 776 F.2d 908, 914 (10th Cir.1985), cert. denied, — U.S. -, 107 S.Ct. 66, 93 L.Ed.2d 25 (1986). The fact that Martin has pressed this suit suggests that he has not been constitutionally harmed. See Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir.1987) (no detriment shown by denial of legal materials); Mann v. Smith, 796 F.2d 79, 84 (5th Cir.1986) (no actual injury shown by pretrial detainee). He does not point to any claim that he was unable to pursue. Consequently, we find that the judgment for defendants on this allegation was appropriate. 4.Classification Hearing Martin next contends that he was denied a classification hearing prior to his placement in a one-man cell, and later, in an eight-men cell. The fact that Martin was lodged with several other prisoners does not suggest that the practice was unconstitutional. Bell, 441 U.S. at 542, 99 S.Ct. at 1875 (“one man, one cell” principle is not required by Due Process Clause). Martin’s complaint regarding the size of his cell is also without merit. See, e.g., Mann, 796 F.2d at 85 (detainee’s contention that his cell was too small to allow exercise found meritless). Martin further insists that pretrial detainees should not be lodged with convicted inmates, and that his placement within the Marshall County jail was therefore unacceptable. It does not appear that the Marshall County jail had a classification scheme in place. However, classification of inmates, whether or not desirable, is not a constitutional requirement. See Campbell v. Bergeron, 486 F.Supp. 1246, 1249 (M.D.La.1980), affirmed mem., 654 F.2d 719 (5th Cir.1981). Martin has offered no indication that he has been injured by his cell placement. The grant of summary judgment on this ground is therefore affirmed. 5. Outside Recreation Martin alleges that he was denied access to sunshine and fresh air, a cruel and unusual punishment and a violation of Indiana state law. We have recognized the importance of adequate ventilation, Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986), and exercise, French v. Owens, 777 F.2d 1250 (7th Cir.1985), cert. denied, — U.S.-, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986). However, Martin has offered no proof that the ventilation was either inadequate or harmful. As for access to the outdoors: the defendants admit that Martin was not permitted to exercise outdoors but say there were no facilities to do so. And, they contend, there was adequate space within Martin’s cell to allow exercise. Martin also posed a potential security risk, since he was facing criminal charges for an escape from the jail. See, e.g., Bell, 441 U.S. at 546 n. 28, 99 S.Ct. at 1878 n. 28 Since the limitation on his access to the outdoors is related to a legitimate prison concern, Martin has suffered no constitutional deprivation. 6.Mail Handling According to Martin, the defendants opened his personal mail outside of his presence. As stated in Martin v. Brewer, 830 F.2d 76 (7th Cir.1987), the Free Speech Clause of the first amendment applies to communications with prison inmates, particularly when one of the correspondents is not imprisoned. The communication is not without restriction, however, due to the security problems inherent in jails. Id. at 78. The inspection of Martin’s personal mail for contraband served a legitimate purpose and did not violate his first amendment rights. As a pretrial detainee, Martin was not immune from the regulatory practices of the jail. Bell, 441 U.S. at 540, 99 S.Ct. at 1874 1875. Furthermore, the recognized safeguards on prison mail handling usually apply to the opening of legal mail, not personal correspondence. Martin, 830 F.2d at 78. Thus, there has been no constitutional infringement. 7.Segregation of Prisoners Upon his arrival at the jail, Martin complains that he was placed in segregation for six days. At the time, Martin was facing a charge of felony escape. Since the segregation was a legitimate response to a security risk, it was permissible. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Martin does not identify regulations comparable to those in Hewitt limiting the jailers’ substantive discretion. The summary judgment for defendants on this ground is affirmed. 8.Physical Conditions Martin complains of several other aspects of his confinement. For example, he protests that he was denied use of a pillow, and that he had to wear tennis shoes that had been previously worn. He objects to the lack of cleaning supplies and the infrequency of the laundry schedule. As the district court observed, the conditions at the Marshall County jail may be far from ideal. But again, the Marshall County jail is a small, rural jail, and jails do not have to duplicate the amenities of small, rural hotels. In order to make out a claim under 42 U.S.C. § 1983, Martin must show that intentional actions of the defendants served to deprive him of a constitutional right. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). He has not been constitutionally harmed here. 9.Medical and Dental Care Martin also complains that he was denied medical care on two occasions, and that there was no doctor on the staff of the jail. Martin had an ear infection during his stay at the jail. He also broke his tooth while eating a bowl of beans that he says contained a rock. Martin contends that he requested treatment for his ear infection on October 19, 1984, and that he sought attention for his tooth as early as October 31, 1984, but that treatment for these conditions was delayed or denied. Martin alleges that he has suffered permanent damage due to delay in treating his ear infection. An act or practice that violates the eighth amendment also violates the due process rights of pretrial detainees. Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984). Pretrial detainees’ rights are infringed “when a jailer fails to promptly and reasonably procure competent medical aid”. Id. at 1147. We do not condone delay in providing medical treatment. See Matzker, 748 F.2d at 1147 (medical care denied to the plaintiff for three months, resulting in permanent injury). Nonetheless, Matzker is limited to situations where medical treatment is withheld from an inmate with serious medical problems. A physician examined Martin on November 16, 1985. Martin never mentioned his tooth, or complained of any attendant pain when he met with the physician for his ear infection. The fact that Martin did not mention his tooth problem to the doctor who treated his ear infection is noteworthy. Although a dental professional would have been better suited to care for the tooth, the doctor might have been able to alleviate his discomfort. At the very least, the doctor could have alerted the jail administrators that dental treatment was required. Finally, Martin has not produced any evidence to sustain his allegation that he has suffered permanent damage as a result. Any delays in treating Martin, even if negligent, simply are not the type of deliberate indifference which the eighth amendment prohibits. Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir.1987). 10. Telephone Use Martin takes issue with telephone access at the jail. Inmates were entitled to place a telephone call every other day. For security reasons, the lines were monitored to ensure that they were placed to the designated party, although a non-monitored line was also available for legal calls. Due process rights are not infringed when the imposition in question is reasonably related to a legitimate governmental purpose. Bell, 441 U.S. at 538, 99 S.Ct. at 1873. Since security is a vital concern in jails, this practice is lawful. Ill The district court’s grant of summary judgment for the defendants is hereby affirmed. The dismissal of Allegation Nine is vacated, and the case is remanded for further proceedings. . Martin objects to any reference to his 1983 departure from the jail as an escape, since the criminal charge against him for the escape was later dropped pursuant to a plea agreement'. Martin can use whatever nomenclature he likes, but an unauthorized departure from jail is an escape. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). That Martin has not been convicted of escape does not alter the facts. . The newspapers would be delivered by mail, a method that would presumably minimize the potential for smuggling contraband into the institution. See, e.g., Bell v. Wolfish, 441 U.S. 520, 549, 99 S.Ct. 1861, 1879, 60 L.Ed.2d 447 (1979). . It is not clear whether Martin arrived at the jail with the infection or whether the condition developed during his stay. . Martin was never provided with a dental appointment, and his tooth was removed in April 1985 upon his transfer to the Department of Correction Reformatory.

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.

Erma RAY, Plaintiff-Appellant, v. CITY OF LEEDS, and Jack Courson, individually and in his capacity as Mayor of the City of Leeds, Defendants-Appellees. No. 87-7246. United States Court of Appeals, Eleventh Circuit. Feb. 25, 1988. Falkenberry, Whatley & Heidt, Joe R. Whatley, Jr., Lisa J. Huggins, Birmingham, Ala., for plaintiff-appellant. Rushton, Stakely, Johnston & Garrett, P.A., Robert C. Brock, William S. Haynes, Wade K. Wright, Montgomery, Ala., for defendants-appellees. Before ANDERSON, EDMONSON and GOODWIN , Circuit Judges. Honorable Alfred T. Goodwin, U.S. Circuit Judge, for the Ninth Circuit, sitting by designation. PER CURIAM: Erma Ray brought this action under 42 U.S.C. § 1983 (1982) against the City of Leeds and Jack Courson, individually and in his capacity as mayor of the City of Leeds, alleging that the defendants violated her rights to freedom of speech and due process by discharging her from her position as Director of Community Services for the City of Leeds. She appeals the summary judgment for the defendants. Ray worked in Courson’s 1980 reelection campaign for mayor. After his reelection, Courson offered Ray a part-time position with the City of Leeds as director of its Senior Citizens Department. Subsequently, she became a full-time employee, and her title later was changed to Director of Leeds Community Service. Her department performed basic social work with senior citizens and assisted needy families by arranging and providing food and clothing. She worked directly for the mayor and had the authority and discretion to meet the needs of the community as she saw them with the resources available to her in her department. Ray knew that she was, and considered herself to be, the head of a city department. In 1984, Ray did not actively work in Courson’s reelection campaign. She expressed a belief that she could not actively support any candidate because she was a city employee. When a community services volunteer asked Ray for advice concerning the upcoming mayoral election, Ray did not recommend that she vote for Courson. Ray was fired without a hearing three days after the election. For the purposes of summary judgment, we assume that Ray’s failure actively to support Courson in the 1984 election was a substantial motivating factor in her termination. The district court, in granting summary judgment, found that Ray failed to establish the requisite showing under § 1983 that the City’s policy or custom is to terminate persons who failed to support Courson. The court also rejected her first amendment claims, finding that neither Courson nor any other city official attempted to coerce Ray into actively supporting him, and, alternatively, that Ray held a policymaking position with the city and therefore could be terminated by the Mayor at will. Finally, the court held that Ray had no due process right to a pretermination hearing because at will employees lack a property interest in city employment. We affirm the summary judgment on the ground that because Ray held a policymak-ing position she could be discharged for political reasons. See Elrod v. Burns, 427 U.S. 347, 367, 96 S.Ct. 2673, 2687, 49 L.Ed.2d 547 (1976) (plurality opinion) (finding that “the need for political loyalty of employees” may be served by “[ljimiting patronage dismissals to policymaking positions”). The Elrod plurality, while recognizing that “[n]o clear line can be drawn between policymaking and nonpolicymaking positions,” observed that: The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.... Id. at 367-68, 96 S.Ct. at 2687. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court modified the requisite inquiry: In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Id. at 518, 100 S.Ct. at 1295. See Tanner v. McCall, 625 F.2d 1183, 1190 (5th Cir.1980) (observing that Branti requires the employer to “show that the required political support or affiliation is relevant or essential to the job”), cert. denied, 451 U.S. 907, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981). We agree with the district court that Ray acted as a policymaker. She had the authority and discretion to deploy the resources available to her in order to address needs as she saw them. She set the policy of the Leeds Community Services Department, subject only to the authority of the mayor; she implemented a number of programs for the needy in the community. She was a department head who attended city council meetings and made presentations concerning the goals and accomplishments of her department. As the district court observed, “[i]f Ray’s job description does not constitute a policymaking position, then no such unelected position exists in Leeds.” We reject Ray’s argument that her political beliefs were unrelated to the effective performance of her job. Where a policymaker’s position requires decisions concerning the allotment of scarce resources, her political beliefs and her compatibility with the hiring authority clearly are relevant to her performance. See Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.) (finding that “an employee’s position is unprotected if, first, there is room for principled disagreement in the decisions reached by the employee and his superiors, and, second, he has meaningful direct or indirect input into the decisionmaking process”), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985); accord Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en banc), cert. denied, — U.S. -, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). The survey of cases set forth in Jimenez Fuentes, 807 F.2d at 241, reinforces our conviction that Ray’s position was one commonly deemed to involve policymaking and that she therefore could be discharged for political reasons. See Brown v. Trench, 787 F.2d 167 (3d Cir.1986) (Assistant Director of Public Information for the county); Tomczak, 765 F.2d 633 (First Deputy Commissioner of the Department of Water); Shakman v. Democratic Org. of Cook County, 722 F.2d 1307 (7th Cir.) (Superintendent of Employment for Chicago Park District), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981) (Senior Citizens’ Coordinator), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). Those cases finding that plaintiffs might not be policymakers and therefore are not subject to dismissal under Elrod and Branti have involved individuals who had considerably less discretion than did Ray. See Meeks v. Grimes, 779 F.2d 417 (7th Cir.1985) (city court bailiffs); Horton v. Taylor, 767 F.2d 471 (8th Cir.1985) (road-graders); Grossart v. Dinaso, 758 F.2d 1221 (7th Cir.1985); Barnes v. Bosley, 745 F.2d 501 (8th Cir.1984) (deputy court clerks), cert. denied, 471 U.S. 1017, 105 S.Ct. 2022, 85 L.Ed.2d 303 (1985); Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984) (deputy sheriff). Our holding that Ray was a policymaker subject to discharge for political reasons disposes of Ray’s § 1983 and due process claims. Her discharge was not unlawful and she had no property interest in her employment. It is not necessary to reach Ray’s first amendment claims. 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.

In re ALLIED OWNERS CORPORATION. RECONSTRUCTION FINANCE CORPORATION v. CALLAGHAN et al. No. 499. Circuit Court of Appeals, Second Circuit. July 22, 1935. Debevoise, Stevenson & Plimpton, of New York City, and Max O’Rell Truitt, of St. Louis, Mo. (E. W. Debevoise, William E. Stevenson, and D. F. McGlinchey, all of New York City, of counsel), for appellant Reconstruction Finance Corporation. Goldwater & Flynn, of New York City (Monroe Goldwater, Nathan Goldstein, and Oliver T. Cowan, all of New York City, of counsel), for trustee in bankruptcy in reorganization. Robert P. Levis, of New York City, for Allied Owners Corporation. Cullen & Dykman, of Brooklyn, N. Y. (Maximilian Moss and John B. Bennett, both of Brooklyn, N. Y., of counsel), for William M. Greve. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. Writ of certiorari denied 56 S. Ct. 307, 80 L. Ed. — AUGUSTUS N. HAND, Circuit Judge. The questions raised by these appeals all relate to allowances which the court in-charge of a proceeding for the reorganization of Allied Owners Corporation under section 77B of the Bankruptcy Act (11 US CA § 207) ordered to be paid to persons engaged in a prior bankruptcy proceeding of that company. On August 8, 1933, the company was adjudicated a bankrupt on its voluntary petition. Stephen Callaghan and Percival E. Jackson became trustees in bankruptcy on August 25, 1933, and William M. Greve became a trustee on September 14, 1933. The delay between the date of his election and the date of taking office was due to his rejection by the referee because of a supposed disqualification. After the referee’s ruling, he employed Cullen & Dykman as his personal counsel and was reinstated by the court. On June-22, 1934, the bankruptcy proceedings were-superseded by proceedings for reorganization under section 77B, and the former-trustees in bankruptcy were appointed trustees in reorganization. Messrs. Goldwater & Flynn were attorneys for the trustees in each proceeding. The tenure of the trustees in bankruptcy and their counsel lasted about ten months, and the amounts to which they are entitled as compensation for services during that period are in dispute on the present appeal. There is also-before us the question of the compensation, of Robert P. Levis, the attorney for the bankrupt, of Cullen & Dykman, who performed legal services in securing the reinstatement of William M. Greve as trustee, and of William Stitt, who as referee was in charge of the bankruptcy proceeding. The referee awarded compensation to-the persons engaged in the bankruptcy proceeding other than himself, and submitted to the District Judge the question of the amount of his own compensation. The judge entered an order fixing the compensation of the referee at $25,000 and approving the awards made by the latter to the other persons. He fixed them at the same amounts except in the case of the three trustees in bankruptcy, whose award he raised from $60,000, allowed by the referee, to $90,000. After this was done, the same judge made an order in the section 77B proceeding directing the payment of these allowances out of the estate of the debtor. As finally ordered, they were as follows: The Reconstruction Finance Corporation, a large creditor of Allied Owners Corporation, seeks by this appeal to have the allowances to the trustee, their attorneys, and the attorney for the bankrupt reduced, and those to the referee and Messrs. Cullen & Dykman entirely eliminated. The appellant objects to the allowance to the trustees not only because it is excessive, but because their compensation was governed by section 48a of the Bankruptcy Act (11 USCA § 76 (a), and, under that section, they were limited to “such commissions on all moneys disbursed or turned over to any person, including lien-holders, by them, as may be allowed by the courts, not to exceed 6 per centum on the first $500 or less, 4 per centum on moneys in excess of $500 and less than $1,500, 2 per centum on moneys in excess of $1,500 and less than $10,000. * * * ” They may also, under section 48e of the act (11 US CA § 76 (e), receive an additional 1 per centum if, as here, they conduct the business. If section 48a and section 48e had been applied, the trustees in bankruptcy would have been limited to the statutory fees on $731,425.57 cash turned over by them, or $14,628.50. But it is argued that their compensation was subject to no such limitations and that the language of section 77B (i) of the act (11 USCA § 207 (i) leaves the amount of compensation for services in the prior bankruptcy proceeding to the discretion of the judge in the reorganization proceeding, guided only by the “rule of reason.” In our opinion, however, section 48a fixes the bounds of the fees which the trustees in bankruptcy can claim. ’ We have discussed the application of section 77B (I) in Matter of New York Investors, Inc. (C. C. A.) 79 F.(2d) 182, so far as it relates to the fixing of fees in a prior equity receivership. The principles involved where the prior insolvency proceeding is in bankruptcy are the same. Section 77B (i) provides that, if a receiver or trustee has been appointed by a federal, state, or territorial court and if thereafter a reorganization proceeding under section 77B supervenes, “the trustee or trustees appointed under this section, or the debtor if no trustee is appointed, shall be entitled forthwith to possession of and vested with title to such property, and the judge shall make such orders as he may deem equitable for the protection of obligations incurred by the receiver or prior trustee and for the payment of such reasonable administrative expenses and allowances in the prior proceeding as may be fixed by the court appointing said receiver or prior trustee. * * * ” The foregoing section, in our opinion, requires that the prior insolvency court shall fix allowances and the reorganization court shall provide for their payment in so far as they are found to be “reasonable.” It seems quite unlikely that such a provision, made, as we believe, in order that the reorganization court might benefit by the experience of the prior court and its familiarity with the details of the business, was intended to leave the prior court free (within its statutory limitations) to fix conclusively any allowance it might deem reasonable. No such freedom had existed where ordinary bankruptcy had succeeded a state receivership. Taylor v. Sternberg, 293 U. S. 470, 55 S. Ct. 260, 79 L. Ed. 599; Gross v. Irving Trust Co., 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215; Hume v. Myers (C. C. A.) 242 F. 827. We think it plain that the words “equitable” and “reasonable” were intended to mean “reasonable” in the eyes of the reorganization court, and were to serve only as a check by the section 77B court on payments which might affect the proposed reorganization unfairly. If the parties whose compensation was fixed by the prior insolvency court felt aggrieved, they would seem to have had an obvious remedy by an appeal from the court which had fixed their compensation. Under sec-awarding compensation in excess of limilion 7TB (i), the reorganization court is given power to pay allowances which have been fixed by the prior court only to the extent that they are found reasonable. Nothing in the language of the subdivision suggests the removal of any restriction which may exist upon the prior court in the determination of allowances. Indeed, it is impossible to imagine that court tations imposed by a statute to which its orders are made subject. It seems equally unlikely that the reorganization court should be empowered by mere implication to make allowances for services by the agencies of another court which the statutes governing the action of that court forbid. Judge Goddard in Matter of Paramount Publix Corp. (D. C.) 12 F. Supp. 16, December 10, 1934, held that section 77B of the Bankruptcy Act did not enlarge the fees which might be granted under section 48a to trustees in bankruptcy, and we think his decision was entirely correct. In Re National Dept. Stores, Inc., supra, Judge Nields recently held that under section 77B (i) the reorganization court had no power to revise allowances fixed by the prior court. With all due respect, we cannot agree with an interpretation of the subdivision that would seem to make the words “equitable” and “reasonable” mere exhortations to the prior insolvency court which could result in no effective control by the reorganization court over excessive allow-' anees. We believe that it was the purpose of Congress to lessen the cost of insolvency proceedings which have long been regarded as too great. Cf. remarks of Cardozo, J., in Realty Associates Securities Corp. v. O’Connor, 295 U. S. 295, 55 S. Ct. 663, 79 L. Ed. 1446. It is argued that section 77B (k) of the act (11 USCA § 207 (k) makes section 48a inapplicable to the prior bankruptcy proceeding. This is plainly unsound. Subdivision (k) in terms relates only to “proceedings instituted under this section [77B].” It provides that certain sections of the Bankruptcy Act, including section 48 (11 USCA § 76), shall not “apply to proceedings instituted under section 77B [this section] unless and until an order” of liquidation has been entered. This means that the judge fixing fees for services in a section 77B proceeding shall not be limited by section 48, and not that the bankruptcy judge in fixing fees in that proceeding is not so bound. It has been suggested that the trustees might be allowed compensation larger than $14,628.50 by calculating their commissions on the value of property as well as “moneys disbursed or turned over to any person,” upon the analogy of In re Toole (D. C.) 294 F. 975, and In re Kessler (unreported decision in the Southern District of New York, July 16, 1918). But neither of these decisions was made upon facts like the present, and, if sound, each is limited to cases where it can be said that there is a constructive disbursement of moneys by turning over property at an agreed valuation. Here the commissions had to be figured upon cash disbursed. In re Detroit Mortgage Corp. (C. C. A. 6) 12 F.(2d) 889, certiorari denied Security Trust Co. v. De Land, 273 U. S. 713, 47 S. Ct. 107, 71 L. Ed. 854; American Surety Co. v. Freed (C. C. A. 3) 224 F. 333. While we should allow a substantially larger compensation if we were at liberty to disregard section 48a, the amount awarded by the District Court was plainly excessive. The services of the trustees only lasted ten months, were in many respects preliminary to a reorganization, and were far less burdensome than those of their counsel. If the reorganization succeeds, they will be entitled to substantial compensation in the 77B proceeding. We see no reason under present circumstances to suspend the payment of allowances to either the trustees or their counsel for work which has been completed. We award to the former $14,628.50, instead of the $90,000 granted by the District Court. The next item to be considered is the compensation of Messrs. Goldwater & Flynn, the attorneys for the trustees in the bankruptcy proceeding. The value of the assets of the bankrupt based on the statement of its accountants as of December 31, 1933, was $18,161,470.38. This, of course, did not represent the realizable value at the date of bankruptcy, and the properties were subject to mortgages amounting to about $11,662,000. Among the principal properties of the estate were seven moving picture theaters and a note ox -Ringling Bros, in which its participation interest was $828,000. In addition to this, there was cash on deposit in various hanks and trust companies aggregating $341,414.-22. The bankrupt was a subsidiary of New York Investors, Inc., which was iti the hands of receivers in equity, and as such was involved in its complicated affairs. One of the most important matters that the attorneys had to attend to arose out of two actions pending on behalf of the bankrupt to recover monthly installments of purchase price on three of the theater properties from Loew’s Theater & Realty Corporation and Loew’s, Inc. The total amount sued for was nearly $300,000. Many complicated questions of law and fact were involved in these litigations in which answers and counterclaims had been interposed, and the cases were prepared for trial by Messrs. Goklwater & Flynn. They we.re finally settled, shortly after the trustees under section 77B were appointed, by means of a guaranty by Loew’s, Inc., of the aggregate amount payable tinder the installment contracts. Undoubtedly the settlement was largely due to the preparation of the cases for trial, and the guaranty of some $12,000,000 of future installment payments is said to be good. Claims for about $23,000,000 prepared by the attorneys were asserted by the trustees against Paramount Publix Corporation based on alleged damages because of breach by the latter of contracts for the purchase of theaters. The claims against Paramount were settled long after the termination of this proceeding. The Manufacturers Trust Company, which was trustee under a trust deed that secured a large bond issue, was dissuaded from foreclosing mortgages covering the theaters, and this made it possible to proceed with the actions against Loew’s Theater & Realty Corporation and Loew’s, Inc., and finally to settle them. These and many other important matters, such as litigation over the Ringling note, requiring skill and experience, are said to have occupied one or more of the partners in Goklwater & Flynn and two of their legal assistants for some 4,508 hours, of which 3,023 were those of their assistants. Many of the things done by these lawyers, as is always the case, were routine matters; many were matters of large importance; many were of a sort preliminary to the reorganization, which has not yet been completed. We think $50,000 is a reasonable compensation for these attorneys, and we award that amount, instead of $75,000, to which is to be added their disbursements of $1,247.80 directed to be paid by the District Judge. The attorney for the bankrupt was allowed $10,000 for his services. His most important services were advising the corporation about going into bankruptcy, preparing the petition, schedules, amended schedules, and notices to banks, asking for the immediate appointment of a trustee, and taking steps, that were evidently successful, to prevent the expense of a receiver. These things were' for the benefit of the estate and properly chargeable to it. His other services in attending creditors’ meetings and examinations under section 21a of the act (11 USCA § 44 (a), supporting the proceeding of Mr. Greve for reinstatement as trustee, acquainting the trustees and their counsel with the previous business of the bankrupt, making arguments in connection with the Ringling nóte, arguing against the attempted foreclosure by the Manufacturers Trust Company and Realty Associates, Inc., negotiating with the Loew interests, and filing the petition under section 77B, are not matters for which compensation can properly come from the bankrupt estate. Undoubtedly the preparation of the schedules was a difficult matter requiring much time, labor, and skill, but an allowance of $5,000 is, in our opinion, adequate, if not liberal, compensation, for all the services chargeable to the estate. We award that amount to the attorney for the bankrupt, instead of the $10,000 granted by the District Court. The award of $25,000 to the referee was clearly erroneous. We have already shown that the reorganization court was without power to increase allowances fixed by the prior court and that the prior court was limited by the provisions of the Bankruptcy Act. Under section 40a of that act (11 USCA § 68 (a), referees are only entitled to “a fee of $15 * * * in each case * * * and 25 cents for every proof of claim filed for allowance * * * and from estates which have been administered before them 1 per centum commissions on all moneys disbursed to creditors by the trustee. * * * ” Under section 40a, the referee here was limited to a fee of $15 and his filing fees, and under section 72 of the act (11 USCA § 112) could not “in any form or guise receive * * * any other or further compensation.” The award of $2,474.35 to Cullen & Dykman cannot stand. They performed legal services for Mr. Greve in procuring his reinstatement after the referee declined to approve his election by the creditors. But he was not trustee at the time the services were performed. They were performed for him personally, and, though they doubtless resulted in a benefit to the estate when the selection of a good trustee was thereby secured, it was not the sort of benefit which can be the basis of a charge against the fund in the hands of the trustees. The situation resembles that in Weed v. Central of Georgia Ry. Co. (C. C. A. 5) 100 F. 162, 167, .where an allowance was sought' by counsel for an intervening creditor for securing the appointment of a coreceiver. The application was denied, the court saying: “That kind of service is certainly such a service as should be paid for by their clients.” The orders are modified as to Stephen Callaghan, Percival E. Jackson, William M. Greve, Goldwater & Flynn, and Robert P. Levis, and reversed as to Theodore Stitt and Cullen & Dykman, in accordance with this opinion. See decision in Re National Department Stores, Inc. (D. C. Del. 1935) 11 F. Supp. 101, where Judge Nields, as judge of the reorganization court, withheld an order for payment of allowances' granted by the Pennsylvania District Court until it appeared whether an appeal had been taken or, if taken, disposed of.

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.

Peter CALAGAZ, on Behalf of Himself and All Other Members of Marine Engineers’ Beneficial Association No. 14, AFL-CIO, Mobile, Alabama, Appellant, v. C. E. DeFRIES, Individually and as Representative of All Other Members of National Marine Engineers’ Beneficial Association, AFL-CIO, Appellee. No. 19332. United States Court of Appeals Fifth Circuit. June 11, 1962. Willis C. Darby, Jr., Mobile, Ala., for appellant. Lee Pressman, New York City, Otto E. Simon, Mobile, Ala., for appellee. Before HUTCHESON, WISDOM and BELL, Circuit Judges. PER CURIAM. This appeal is from an order of the United States District Court for the Southern District of Alabama, denying appellant’s motion for a preliminary injunction. The case involves a dispute between National Marine Engineers Beneficial Association, AFL-CIO, hereinafter National, and Marine Engineers Beneficial Association, Local 14, hereinafter Local 14, which is or was originally chartered by National, relative to the internal organization and affairs of National. In addition to the requested preliminary injunction, certain declaratory relief was also sought by appellant. In the month of May, 1960, at a nationwide convention of the National organization, a resolution directing that a referendum among the members be held was purportedly adopted by the convention. The question to be referred to the membership in each District was “whether each District organization shall be established to take the place of the present Subordinate Associations within the District”. A complete reorganization program was thereafter submitted to the members, and ostensibly approved by them. In his complaint, however, appellant challenged all acts of the national convention as void, on the ground that certain delegates were not seated; challenged the appointment of a subcommittee to work out the referendum, as a violation of the National constitution; claimed that the referendum exceeded the authority of the sub-committee; and alleged that the ballots were counted in a dishonest fashion. The prayer was for injunctive relief against certain alleged acts of appellee which are said to constitute “a studied campaign to coerce [Local 14] to accept the questioned referendum”, namely: (1) causing or attempting to cause or soliciting members of Local 14 to transfer therefrom to any other organization affiliated with National; (2) refusing to accept dues for forwarding to Local 14 from members thereof; (3) continuing to maintain an office in Mobile, Alabama or at any other place within the territorial jurisdiction of Local 14; (4) taking any action in connection with charges pending against Local 14 and certain named officers thereof; (5) in any other manner attempting to give effect to the proposed plan to abolish Local 14 and other affiliated associations and to create a district organization. There is no absolute standard by which the discretion of a trial judge is to be guided in determining whether to grant or deny a motion for a temporary or preliminary injunction. His task is to balance the relative conveniences of the parties. If he finds that certain, immediate, and irreparable injury to a substantial interest of the movant will occur if the application is denied and the final decree is in his favor, and that injury to the opponent will be inconsiderable or may be adequately indemnified by a bond, even if the final decree be in his favor, an injunction should issue. Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972 (1929); Rice & Adams v. Lathrop, 278 U.S. 509, 49 S.Ct. 10, 73 L.Ed. 520 (1929); National Lawyers Guild v. Brownell, 96 U.S.App.D.C. 252, 225 F.2d 552 (1955) cert. denied 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457, reh. denied 351 U.S. 990, 76 S.Ct. 1045, 100 L.Ed. 1502; Love v. Atchison, T. & S. F. R. Co., 185 F. 321 (8th Cir. 1911) cert. denied 220 U.S. 618, 31 S.Ct. 721, 55 L.Ed. 612; City of Miami Beach, Florida v. Benhow Realty, Inc., 168 F.2d 378 (5th Cir. 1948). The determination of these matters is to be made by the trial court, not by this one. The narrow question before this court is whether, in reaching the conclusion that the case was not one in which a preliminary injunction should be issued, the trial court abused its discretion. Rice & Adams v. Lathrop, supra; Dronet v. Tucker, 300 F.2d 559 (5th Cir. 1962); Mansfield Hardwood Lumber Co. v. Johnson, 242 F.2d 45 (5th Cir. 1957); Mitchell v. Hodges Contracting Co., 238 F.2d 380 (5th Cir. 1956). This is essentially a continuation of a dispute between warring factions concerning the propriety of a reorganization which, rightly or wrongly, has been in actual existence for some time; as with every reorganization, old ways of conducting the affairs of the association have been discarded, and in their places new ones instituted. Whether the new plan of reorganization may properly continue in effect remains for determination on the merits. Mansfield Hardwood Lumber Co. v. Johnson, supra. In our opinion, however, the acts alleged by appellant constitute no semblance of a showing of that character of certainty, immediacy, or irreparability of preponderating harm, hardship, or inconvenience, actual or threatened, required to warrant the issuance of an injunction. A clearer example of the sound exercise of judicial discretion than that which is reflected in the denial of the preliminary injunction sought in the case at bar would be difficult to imagine. The order of the trial court is Affirmed. . Appellant Calagaz brought suit on behalf of himself and all other members of Local 14, seeking relief against J. M. Calhoon individually, as agent of National, as Secretary-Treasurer of National, and as a representative of all other members of National, and against G. E. DeFries individually, as agent of National, and as representative of all other members of National. Motions to quash service and to dismiss the complaint for various reasons not here material were filed, and after a hearing the trial court entered an order quashing service and dismissing the complaint entirely as to Calhoon, and as to DeFries as an agent of National, but retaining jurisdiction as to DeFries as an individual and representative of all other members of National. Neither the merits nor the procedural aspects of the suit for declaratory relief is before us on this appeal from denial of a preliminary injunction. . We have not been furnished a transcript of the hearing before the trial court on the motion for preliminary injunction, or with findings of fact. Our consideration is limited to the allegations and related evidence appearing in the record. The presumption, however, is that the trial. court ruled in accordance with all of the evidence before it. Carter Oil Co. v. Norman, 131 F.2d 451 (7th Cir. 1942); Fraser v. Doing, 76 U.S.App.D.C. 111, 130 F.2d 617 (1942).

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

Robert I. SILVERMAN, et al., Appellants, v. Marion BARRY, Mayor of the District of Columbia, et al. No. 86-7037. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 10, 1987. Decided May 3, 1988. Rehearing En Banc Denied July 15, 1988. Burton A. Schwalb, Washington, D.C., for appellants. Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Frederick D. Cooke, Jr., Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief for appellees, Barry, Mayor of the District of Columbia, et al. Lynne Bernabei, Washington, D.C., for appellee, The Group to Save Van Ness South for Everybody, Inc. Before WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: Appellants in this case are suing the District of Columbia for denying them permission to convert a rental apartment building they own to cooperative or condominium apartments. They bring both constitutional and statutory claims, and challenge both the District’s actions and the conversion statutes under which it acted. Appellants seek damages in the amount of the difference between the price they sold the building for, and the price they could have obtained had they been permitted to convert it. Appellants are the sole general partners in a limited partnership that owned Van Ness South, an apartment building in the Northwest section of Washington, D.C. In 1979 and 1980, they attempted without success to convert the building to cooperative or condominium apartments. Eventually, they sold the still-unconverted building and filed suit in U.S. District Court alleging that they had been illegally prevented from converting it. They contended in the suit that in denying them permission to convert the building, the District of Columbia deprived them of due process and equal protection of the law in violation of the Fifth Amendment. In addition, appellants challenged the statutes regulating conversion as violating the Due Process Clause of the Fifth Amendment and the D.C. Home Rule Act. The district court held that neither the District’s actions nor the statutes under which it acted violated appellants’ rights to due process or equal protection. It also found the claim under the D.C. Home Rule Act to be without merit. We affirm that decision. I. Background Appellants are the sole general partners in Van Ness Properties III, a District of Columbia limited partnership. The partnership built and owned a 625-unit apartment building known as Van Ness South, located at 3003 Van Ness Street, in Northwest Washington. Appellants bring this suit against the District of Columbia, the District’s Department of Housing and Community Development (DHCD), and three officers of the District, including the May- or. Appellee-intervenor, Group to Save Van Ness South for Everybody, Inc., is a tenant group organized in 1980 and incorporated in 1981 for the purpose of maintaining Van Ness South as rental property. This case marks Silverman v. Barry’s second appearance on the docket of this court. Filed initially in the D.C. District Court, the suit was dismissed by that court for want of jurisdiction. That decision was overturned on appeal by this court, and the case was remanded to the district court for trial. See Silverman v. Barry, 727 F.2d 1121 (D.C.Cir.1984). The district court then heard the case on the merits and dismissed with prejudice. Silverman v. Barry, No. 81-0394 (D.D.C. Filed Aug. 22, 1986) (Findings of Fact and Conclusions of Law). Appellants appeal from that decision. A. District Regulation of Conversions The District of Columbia has long regulated the conversion of rental property to cooperatives and condominiums. The regulation of condominium conversion within the District began with the Condominium Act of 1976 which restricted condominium conversions to buildings that were “high rent” according to a statutory formula, that had a threshold vacancy rate, or in which a majority of the tenants consented to conversion. D.C.Law 1-89, codified in D.C.Code §§ 6-1201 et seq. (1978 Supp.). That statute, with changes not material to this case, remained in effect until May 29, 1979, when the District’s moratorium on “high rent” conversions began. As of April 1979, condominium conversions were begun by filing condominium instruments with the Recorder of Deeds. District regulations required the applicant then to obtain a Certificate of Eligibility (C/E) from the District. The regulation of cooperative conversions within the District dates back considerably earlier. Since 1940, the District of Columbia Cooperative Association Act has required building owners to file articles of incorporation to convert a building to a cooperative. See D.C.Code §§ 29-801 et seq. (1973). From 1975 to 1979, the District enacted a series of consecutive emergency and non-emergency acts that made it considerably more difficult than previously to convert rental apartments to cooperatives. The first emergency act, in effect from January 25, 1979 to April 25, 1979, prohibited conversion of rental property in the District to cooperatives except that the Mayor could grant an “exemption” in three cases: (i) if fewer than fifty percent of the units in the building were occupied; (ii) if at least 51 percent of the tenants consented to the conversion; or (iii) if the building qualified as “high rent” according to a statutory formula. D.C.Law Act 3-2, Jan. 25, 1979, 25 D.C.R. 7680 (1979). To convert to cooperatives as a “high rent” building, the District, by rule and practice, required the applicant to obtain a Certificate of Exemption (“C/Ex”) from the conversion moratorium. Before issuing a “high rent” C/Ex or C/E, DHCD verified that the rents in the application exceeded the statutory minimums necessary to qualify for “high rent.” The emergency acts regulating cooperative conversions were passed by the District in smooth succession with one exception: the seventh reenactment of the emergency act expired on April 25, 1979, and the eighth did not become effective until May 4, 1979. A nine-day gap was thus created during which a building in the District could be converted to cooperatives by the owner simply filing articles of incorporation with the Recorder of Deeds. Even during the gap, however, the DHCD took the position that an owner had to obtain a C/Ex before it would approve a cooperative conversion. (Although a nine-day gap existed in the regulation of cooperatives, appellants’ application was pending for only six business days. Appellants filed their application on the second day of the gap, April 26, and two of the nine days were weekend days, on which the DHCD office was closed.) On May 29, 1979, the District enacted a moratorium on “high rent” cooperative and condominium conversions. The Emergency Condominium and Cooperative Stabilization Act of 1979 prohibited the District from issuing any high rent C/E’s or C/Ex’s. D.C.Act 3-44, 26 D.C.R. 10363 (1979). The original Act lasted 90 days, but it was followed by three similar 90-day emergency acts, D.C.Act 3-95, 26 D.C.R. 1014 (1979); D.C.Act 3-132, 26 D.C.R. 2436 (1979); D.C.Act 3-151, 27 D.C.R. 849 (1980), and on February 23, 1980 by an emergency act which went into effect for 180 days. Condominium and Cooperative Conversion Stabilization Act of 1979, D.C.Law 3-53, 27 D.C.R. 37, 958 (1980). These moratoria, directed at high-rent conversions, did not affect conversions based on tenant-consent procedures or on vacancies. On October 19, 1979, the D.C. Superior Court held that the District’s practice of enacting successive emergency acts instead of passing permanent legislation violated the District of Columbia Self-Government and Government Reorganization Act, P.L. 93-198, 1 D.C.Code §§ 121 et seq., as amended (1979 Supp.) (“Home Rule Act”). The court enjoined enforcement of the emergency act then in effect governing cooperative and condominium conversions. Washington Home Ownership Council, Inc. v. District of Columbia, No. 10624-79 (D.C.Sup.Ct. Oct. 19,1979). On October 22, the District of Columbia Court of Appeals stayed the Superior Court order. District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1350 n. 4 (1980) (en banc). During the pendency of the appeal, the District continued to pass emergency acts that imposed the same restrictions on conversion to cooperatives and condominiums that the previous acts had. On May 28, 1980, the Court of Appeals sitting en banc affirmed the Superior Court’s holding, but stayed enforcement of its decision for 90 days to provide the District “an appropriate interval in which to deal with its emergency legislation,” id. at 1360, and remanded the case. On December 3, 1980, the Superior Court ruled on remand that its decision would be prospective only. As a result, the emergency acts passed prior to August 28, 1980 — the date on which the Court of Appeals mandate issued — remained valid law. Washington Home Ownership Council, Inc. v. District of Columbia, No. 10624-79 (D.C.Sup.Ct. Dec. 3, 1980). Before the Court of Appeals mandate issued, on August 10, 1980, the Mayor signed into law the Rental Housing Conversion and Sale Emergency Act of 1980, which was enacted for 90 days as emergency legislation. D.C.Act 3-248, 27 D.C.R. 3954 (1980). It was, in the wake of the decision in Washington Home Ownership Council, the last emergency act that the District could pass governing conversions. In September, the August 10 emergency act was superseded by a permanent District law, the Rental Housing Conversion and Sale Act of 1980. D.C.Law 3-86, D.C. Code §§ 45-1601 et seq. (1981). The 1980 Act required tenant consent as a prerequisite to conversion of rental property in the District. To be approved, a plan to convert had to receive the votes of over 50 percent of qualified voters in a conversion election. The application to convert Van Ness South was filed against the backdrop of a recent change in mayoral administrations. On January 1, 1979, Mayor Marion Barry took office. Mayor Barry appointed Robert L. Moore the new Director of DHCD. The record indicates that Moore may have believed that condominium and cooperative conversions in the District were occurring too rapidly. Silverman v. Barry, Findings of Fact ¶ 12. Shortly after his appointment, Moore transferred the administration of cooperative and condominium conversions from the Neighborhood Improvement Administration to his own office. Appellants contend that this transfer marked the start of a concerted effort to stymie conversions until a moratorium could be enacted. In particular, they point to a memorandum written to Moore by a DHCD officer, Maria L. Johnson, recommending ways to restrict conversions by administrative means, which included the suggestion that housing conversions could be delayed administratively for as long as 60 days. Conversion applications were granted slowly during the first half of 1979. Between March 12, 1979 and May 29, 1979 no new high rent or tenant consent application for a C/E or C/Ex filed after March 12, 1979 was acted upon. Findings of Fact 1115. The DHCD did, however, continue to grant C/E’s and C/Ex’s during this time. When the Van Ness South application was filed, DHCD records show that more than 60 applications were on file. The district court found that the applications were handled in roughly chronological order. DHCD records show that a number of the pending applications were approved for cooperative or condominium conversion, and that those approved were not all for small buildings. Among them were a 315-unit condominium conversion approved on May 15, 1979, and a 290-unit cooperative conversion approved on April 11, 1979. B. The Van Ness South Application On April 26, 1979, appellants filed applications with the District for a C/Ex to convert Van Ness South to cooperatives and for a C/E to convert to condominiums under the “high rent” provision of the Condominium Act of 1976. Appellants’ applications were notarized, and contained the information required by the statutes, including information on rents to substantiate the claim of eligibility for high-rent condominium conversion. Appellants applied for a C/E as part of their condominium application. In addition, although the application was made during the nine-day gap between cooperative conversion statutes, appellants nevertheless applied for a C/Ex, because they contend that the District continued to require one. The District had not acted on appellants’ applications by May 4, the end of the nine-day statutory gap. The district court, noting that more than 60 conversion applications were on file at the time, concluded that it appeared that Van Ness South was not granted a C/Ex during the nine-day gap because of the volume of applications pending before the DHCD. Silverman v. Barry, Findings of Fact 1113. On May 4, 1979, the eighth reenactment of the Emergency Cooperative Regulation Act of 1979 went into effect. Like those that preceded it, the May 4 law imposed a general prohibition on cooperative conversions, except that the Mayor was authorized to grant exceptions in three cases: buildings with over a 50% vacancy rate, buildings in which a majority of tenants approved the conversion in writing, and buildings that were “high rent” according to a statutory formula. D.C.Act 3-37, 26 D.C.R. 9918 (1979). The DHCD still had not acted on the Van Ness South application by May 29, when the District enacted the first of several acts that restricted conversions still further. The Emergency Condominium and Cooperative Stabilization Act of 1979 eliminated the “high rent” exception to the ban on cooperative and condominium conversions. That act was followed by several successive emergency acts that continued the prohibition on “high rent” conversions. As long as these prohibitions remained in effect, the only route for conversion of Van Ness South was a tenant consent conversion. In early 1980, appellants entered into a contract to sell Van Ness South, on the assumption that it would ultimately be permitted to convert. On January 28, 1980, they contracted with The Investment Group Development Corporation (“The Investment Group”) to sell the Van Ness South building and the land on which it was built for $40,130,000.00. The contract was terminable, however, if a C/E or C/Ex were not granted for the building within a certain amount of time, or if the Superior Court’s decision in Washington Home Ownership Council were overturned. On February 20, 1980, appellants informed the Van Ness South tenants of their intent to sell, gave notice of their intent to convert, and, as required by District law, offered to sell the property instead to a corporation comprised of the Van Ness South tenants. On May 20, 1980, the Van Ness South Tenants Association (“VNSTA”) approved by majority vote a purchase of the building on the terms offered to the Investment Group, for conversion to condominiums or cooperatives. Two days later, VNSTA entered into a contract to purchase the building for $40,130,000.00. With the contract signed, VNSTA attempted to convert Van Ness South by tenant consent. The Condominium Act of 1976 and District rules required a building owner to file consent forms signed by a majority of the heads of households in a building. D.C.Code § 5-1281fl))(2). On May 23, 1980, prior to distributing consent forms to tenants, VNSTA submitted a sample consent form to DHCD, which gave its advance approval to the form. At the time, DHCD did not indicate that the forms would have to be verified. By June 17, 1979, VNSTA had collected signed consent forms from 319 of the 603 eligible households in Van Ness South consenting to the conversion of the building to condominiums or cooperatives. In apparent possession of a majority, VNSTA filed for a C/E pursuant to the tenant-consent provision of § 5-1281(b)(2). In support of its application, VNSTA submitted its 319 consent forms to DHCD. On June 23, 1980, VNSTA submitted an application for a C/Ex to convert the building to a cooperative, and submitted 10 additional tenant consent forms. Without yet having obtained a C/E, on July 28, 1980 VNSTA submitted its application to convert Van Ness South to a condominium, and included a $23,125 fee. From June 28 to August 6, on seven separate occasions, consent forms, re-scissions of consent, and rescissions of declaration of non-consent for the Van Ness South application were filed with DHCD. On June 28, 1980, the appellee-intervenor, Group to Save Van Ness South for Everybody (“the Group”), submitted 33 re-scissions of consent to convert Van Ness South. On July 8, VNSTA submitted eight additional consent forms. On July 25, VNSTA submitted seven more consents, and three days later an additional four. On August 4, VNSTA submitted 17 additional consent forms, five rescissions of declaration of non-consent, and five new consent forms signed by tenants who had previously revoked consent forms that had been filed. On August 5, VNSTA submitted one consent to convert and five re-scissions of declaration of non-consent. On August 6, VNSTA submitted one consent to convert. As a matter of policy, the DHCD did not consider any tenant consent to be valid until it was verified by a member of the DHCD staff. The office verified consents by telephoning residents during regular business hours. If the tenant could not be reached after three telephone calls, the DHCD would attempt to reach him or her by other means, such as leaving messages at the building’s front desk, or trying to relay a message through the tenants’ association. The District’s regulations governing cooperative and condominium conversions did not state that consent forms had to be confirmed. Nor did DHCD supply applicants with any written notification of the verification requirement. The District considered notarized consent forms to be valid without verification, but the DHCD did not mention notarization when it approved appellants’ model consent form. There is, however, no evidence that appellants did not have actual notice of the policy of checking consents. The DHCD had regularly done some checking of consents in the past. Until March 1979, however, it was not DHCD policy to consider consents invalid until verified. On August 7, 1980, the District notified VNSTA that it did not have enough validated consent forms to convert Van Ness South. Although VNSTA had submitted 344 unrescinded consents, more than a majority of the households in Van Ness South, the DHCD staff had only been able to verify 274 of those consents. On Sunday, August 10, the Rental Housing Conversion and Sale Emergency Act of 1980, D.C.Act 3-248, was signed into law. The Act eliminated tenant-consent conversions, and instead required approval by a majority of heads of households in a tenant election. VNSTA, having learned that notarized consents did not have to be verified, submitted 32 additional notarized consents on Saturday, August 9. The District, however, did not evaluate the materials submitted on that date, maintaining that it had no obligation to work beyond normal business hours verifying consent forms. The August 10 Emergency Act was later made permanent by D.C.Act 3-86, codified in D.C.Code §§ 45-1601 et seq. On October 9, 1980, the DHCD informed VNSTA that its application could not be processed any further due to the new legislation. On October 24, VNSTA requested a hearing on the DHCD’s refusal to continue processing its application. In a letter dated December 22, 1980, Robert Moore advised VNSTA that any appeal of DHCD’s refusal to issue a C/E became moot as a result of the August 10 law and the succeeding permanent legislation. Moore stated that conversion at that point could only be accomplished through compliance with the tenant election provisions of D.C.Law 3-86. On November 7, 1980, VNSTA terminated its contract with appellants to buy Van Ness South, citing its inability to convert the building. Appellants sought to convert Van Ness South on their own pursuant to the Rental Housing Conversion Act of 1980. On November 10, 1982, a tenant election was held at Van Ness South to determine whether to convert the building to a condominium. A majority of the voters in the election opposed conversion. In 1984, appellants sold Van Ness South as a rental building for $27,000,000, an amount less than the price it was to receive in its contract with either VNSTA or the Investment Group. In February 1981, appellants filed suit against the DHCD and several District officials under 42 U.S.C. § 1983, alleging that the District violated their due process and equal protection rights in denying them approval to convert Van Ness South. They also attached a state claim that the District acted illegally because the statutes it relied on violated the Home Rule Act. In addition, appellants contended in the suit that the appellees’ actions constituted a taking, a claim they have dropped in this appeal. The district court dismissed the suit, holding that the District had not violated appellants’ constitutional rights. Appellants appeal here from that judgment. II. DISCUSSION Section 1983 imposes civil liability on one who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.... 42 U.S.C. § 1983. The purposes of the Civil Rights Acts are to obtain compensation for persons whose civil rights have been violated and to prevent the abuse of state power. Burnett v. Grattan, 468 U.S. 42, 53, 104 S.Ct. 2924, 2931, 82 L.Ed.2d 36 (1984). Courts have not, however, extended the Acts to cover all wrongs committed on the state level. The Supreme Court has long instructed that "[i]t was not intended by the... Civil Rights Acts that all matters formerly within the exclusive cognizance of the states should become matters of national concern.” Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 403, 88 L.Ed. 497 (1944). Courts must strike a careful balance in applying the protections of the Civil Rights Acts. Too restrictive an application risks failing to achieve the Acts’ goals of compensation and curbing governmental abuse. Too broad an application risks federalizing too many infractions that are fully remediable in state court. As this court has stated of violations of state electoral processes by state officials, “[i]f official violations of such laws automatically created federal causes of action, a great many cases involving only local issues that were fully remediable under state law would be brought in federal courts.” Grano v. Barry, 733 F.2d 164, 169 (D.C.Cir.1984). The Supreme Court has not enunciated a standard by which to determine precisely which state lapses constitute substantive due process violations under 42 U.S.C. § 1983. Nor has this circuit yet addressed the issue. The First Circuit, however, struck a wise balance in Roy v. City of Augusta, 712 F.2d 1517 (1st Cir.1983), when it stated that a plaintiff suing under § 1983 must “prove that his injury was due not merely to the law’s delay and [the government’s] errors but to the defendant’s deliberate disregard of the state’s fundamental process.” Id. at 1524 (emphasis added). To succeed in a § 1983 suit for damages for a substantive due process or equal protection violation, a plaintiff must at least show that state officials are guilty of grave unfairness in the discharge of their legal responsibilities. Only a substantial infringement of state law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights, qualifies for relief under § 1983. See, e.g., Scott v. Greenville County, 716 F.2d 1409, 1416 (4th Cir.1983) (stating that “[d]espite the great deference accorded local officials in zoning and land use matters, their decisions and official actions are not exempt from the constitutional command to be free of racial discrimination.”) Inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of offical duties, do not warrant redress under this statute. See Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91, 103 (1st Cir.1977) (upholding dismissal of § 1983 equal protection claim because “there has been no showing of the kind of purposeful, malicious action which is a prerequisite to any such damages recovery”). Appellants assert that the District’s actions relating to the conversion application of Van Ness South rose to the level of constitutional violations. Appellants’ contentions encompass five distinct claims, four constitutional and one statutory. Their constitutional claims center on: (1) the District’s failure to approve the conversion application during the nine-day gap from April 25 to May 4, 1979; (2) the District’s purported “illegal administrative freeze” in the spring of 1979; (3) the District’s failure from June to August 1980 to approve appellants’ conversion application based on tenant consent; and (4) the District’s reliance on a tenant election procedure that appellants contend constitutes an unconstitutional delegation of governmental authority. Appellants also allege a statutory violation: (5) the District’s refusal throughout to permit conversion based on the emergency moratoria later held to be illegal in Washington Home Ownership Council. The district court held that none of these actions by the District rose to the level of constitutional violations. Judge Flannery found that rather than imposing an illegal internal freeze or otherwise violating appellants’ due process or equal protection rights, the District was at this time beset by “confusion,” which “explains the slowness in the District’s ability to process the applications.” Silverman v. Barry, Findings of Fact 1128. The court concluded: The totality of these events suggests that the District was going through a period during which conversions to cooperative^] and condominium[s] were to be done differently under D.C. law. While the conduct of the DHCD and the passage of successive emergency acts suggests a protracted effort by the District to deal with the problem of massive conversions, insufficient evidence exists to show the District’s actions prior to passage of permanent legislation to be a deprivation of plaintiffs’ rights in their property. The acts of the District are discretionary to a point before they become a deprivation of due process: that point was not reached. Silverman v. Barry, Conclusions of Law 1114. Because we agree with this assessment, we affirm the decision below. In so doing, we do not say that the District’s actions were ideal. We hold only that at no point did the District’s handling of appellants’ application rise to the level of a constitutional violation or violate the Home Rule Act. A. The April-May 1979 Statutory Gap The first time period at issue in this appeal is the nine-day interval during which cooperative conversions were virtually unregulated in the District as a matter of law. In the nine-day period from April 25 to May 4,1979, one emergency act regulating cooperative conversions had expired, and the next had not yet been enacted. Although appellants applied to convert Van Ness South to a cooperative on April 26, the District did not act on the application during the gap. Appellants contend that during this time they possessed an absolute right to convert their property, and that the District denied them their due process rights when it failed to approve the conversion. The district court found that the District’s failure to act during the nine-day interval was due to the fact that this was “an extremely short interim period” during which “it was undoubtedly unclear to DHCD and its personnel what procedures they were operating under.” Silverman v. Barry, Conclusions of Law 119. Our deference to the district court’s determination is considerable. We must defer to its determination that the DHCD’s delay was due to innocent confusion unless we find that holding to be “clearly erroneous.” Cf. Pullman-Standard v. Swint, 456 U.S. 273, 290, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982) (stating that “a court of appeals may only reverse a district court’s finding on discriminatory intent if it concludes that the finding is clearly erroneous under [Federal] Rule [of Civil Procedure] 52a”). In light of the shortness of the gap and the large number of applications pending, we are unable to conclude that the district court’s decision that the DHCD’s delay during the statutory gap was a result of confusion over the state of the law is clearly erroneous. The District was not only justified in proceeding with deliberation and caution on appellants’ application, it had an affirmative duty to do so. The law has long shown a special solicitude for the interest of a person in being secure in his or her home. See, e.g., Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 1387, 63 L.Ed.2d 639 (1980) (stating that “the sanctity of the home... has been embedded in our traditions since the origins of the Republic”); Radin, Property and Personhood, 34 Stan. L.Rev. 957, 994 (1982) (discussing the “normative judgment that tenants should be allowed to become attached to places and that the legal system should encourage them to do so”). When a government is asked to approve the commencement of a process that may lead to citizens being evicted from their homes, it must act with the utmost care. Appellants misperceive the District's role when they maintain that it deprived them of their constitutional rights by not acting more quickly on their application for a C/Ex during the statutory gap. The DHCD does not exist exclusively to process applications speedily for owners who want to convert buildings; it has a strong countervailing duty to tenants throughout the District to proceed with caution and to grant C/E’s and C/Ex’s only when it has ascertained that the conversion would be in conformity with the law. The government’s obligation to tenants is heightened in an ex parte situation like the instant one. The application for a C/E occurs between the building owner and the DHCD; the tenants are absent from this process and no mechanism exists for them to challenge the application. Because of their strong interest in the outcome of the application, the government has an obligation to the tenants to proceed with sufficient deliberation to ensure that tenants’ rights under the law are being protected. The District was justified in acting cautiously during the statutory gap. We affirm the district court’s holding on this point. B. The Spring of 1979 “Administrative Freeze” Appellants’ second allegation is that the District imposed an “illegal administrative freeze” in the spring of 1979. Appellants' case that such a freeze existed relies in large part simply on their contention that the DHCD was approving applications too slowly during this time. During the period from March 12, 1979 to May 29, 1979, no new high rent or tenant consent application for a C/E or C/Ex was granted or denied. Silverman v. Barry, Findings of Fact 1115. The district court found, however, that the DHCD was handling an unusually large number of applications at this time, and that processing of large and small buildings continued throughout this time. Id. The court dismissed appellants’ claim, stating that they “had no right to expect conversion permission within such a short period of time.” Silverman v. Barry, Conclusions of Law If 8. Appellants present only one significant piece of evidence to suggest that the delay was at all intentional. The mere facts that conversions were an issue in an election campaign or that the government restructured its offices handling conversions provide only the most tangential support for appellants’ claim. The only significant evidence they adduce is a single internal DHCD memorandum that they believe indicates the adoption of a departmental freeze. It cannot, however, when looked at in its entirety, support appellants’ claim. The memorandum at issue, dated March 12,1979, was written by DHCD staff member Maria Johnson to DHCD director Robert Moore. Along with a series of suggestions for new legislation, the memorandum contains the statement that “[a]dministra-tively, the processing of most of the pending applications and all new applications could immediately be delayed for as long as sixty days.” Appellants contend that the memorandum constitutes direct evidence that the District embarked on a program to halt conversions until a moratorium could be enacted. The Johnson memorandum does appear at first to raise the possibility that DHCD began a slow-down on processing of conversion applications. However, examined in the larger context of the DHCD’s entire operation, it is clear that the suggestion was just an isolated suggestion made by a single staff member that was never adopted by the DHCD. The passage to which appellants object was just one of a long list of possible actions that Johnson suggests in her memorandum. It came as part of a specific administrative restructuring suggested in the memorandum: 1. Refer all “high rent” applications to the Rental Accommodations Office for a determination of the legality of the rent levels on which we would base our determination of condominium conversion eligibility. I discussed this possibility with Mr. Albert Williams, Deputy Administrator at RAO. He indicated that they would be willing to do this review for us, however it would require an additional auditor to handle our case load. We used to refer these applications to RAO, but discontinued the practice because of excessive delays. If we were to resume the practice immediately, it would delay approvals on those buildings that are eligible for as long as sixty days. There is no evidence in the record that the DHCD ever adopted the proposal and routed applications through RAO or that it ever stopped processing applications. The record indicates that Johnson’s suggestion that the DHCD delay applications was just an idle suggestion by a staff member powerless to implement it on her own and that it was not accepted by DHCD officials in authority. It is not sufficient basis for adopting appellants’ theory about an “illegal administrative freeze” or for disturbing the decision below. C. June-August 1980 The next chapter of the Van Ness South saga occurred from June to August 1980, when the Van Ness South Tenants Association attempted to conduct a tenant-consent conversation of the building. Appellants contend that the District deprived them of their constitutional rights when it denied VNSTA a C/E. The District maintains, however, that it was justified in denying the C/E because it was unable to verify consent forms from a majority of heads of household in Van Ness South before the August 10 moratorium went into effect. The district court found that the “confusion” surrounding the Van Ness South conversion “amply justifies the use of a more accurate method of ascertaining consent,” and “explains the slowness in the District’s ability to process the applications.” Silverman v. Barry, Conclusions of Law 1111. This holding is supported by the record. Considerable confusion did indeed surround the consent-verification process at Van Ness South. With 603 units, it was one of the larger buildings to submit an application to convert. In addition to the complications created by the sheer number of households in Van Ness South, the verification process was made more difficult by the steady flow of consent forms, re-scissions of consent, and rescissions of re-scissions

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?

UNITED STATES v. FRUEHAUF et al. No. 91. Argued January 11, 1961. Decided February 20, 1961. S. Hazard Gillespie, Jr. argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey/Beatrice Rosenberg and Eugene L. Grimm. Louis Nizer argued the cause for appellees. With him on the briefs were Charles Seligson, Cyrus R. Vance, Mortimer A. Sullivan, Albert C. Bickford, Charles S. Burdell, Donald McL. Davidson, James D. Walsh, Albert I. Schmalholz and Melvin Lloyd Robbins. Mr. Justice Frankfurter delivered the opinion of the Court. On June 17, 1959, an indictment in two counts was filed in the United States District Court for the Southern District of New York against appellees Roy Fruehauf, Fruehauf Trailer Co., Burge Seymour, Associated Transport, Inc., and Brown Equipment and Manufacturing Co. (hereinafter referred to collectively as the Fruehauf-Seymour group) and appellee Dave Beck. The first count, based on § 302 (a) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U. S. C. § 186 (a), which makes it unlawful “for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce,” charged that on or about June 21, 1954, each of the appellees of the Fruehauf-Seymour group, employers of employees engaged in an industry affecting commerce, “did unlawfully, wilfully and knowingly pay and deliver and agree to pay and deliver to Dave Beck, President, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a representative of the aforesaid employees, a thing of value, to wit, money, in the amount of $200,000.” The second count, based on § 302 (b), 61 Stat. 157, 29 U. S. C. § 186 (b), and similarly couched in the words of the statute, charged that Beck had received and accepted, and agreed to receive and accept, from the appellees of the Fruehauf-Seymour group, $200,000. All of the appellees entered pleas of not guilty; after various pretrial proceedings, during the course of which “trial memoranda” were submitted by the Government and by several of the appellees, the case came on for trial. At the outset of the hearing, the district judge suggested that if, as he was advised by • the trial memoranda of certain among the appellees, any of them intended to move for dismissal of the indictment, such a motion should be made at that time. Counsel for the appellees replied that they “would be in a better position to address ourselves to the grounds for a dismissal after the government had made an opening here, ... if on inquiry in this pretrial, preliminary conference, the government conceded certain positions that it has conceded at arraignment and other places in the minutes.” The district judge then read into the record an extended excerpt from the Government’s trial memorandum which purported to outline the “facts which support the charge and which the government intends to prove.” These were: (A) That Beck asked Roy Fruehauf to “lend him $200,000,” which “loan” was subsequently discussed at a meeting of Fruehauf and attorneys for Beck and Fruehauf Trailer Co.; that after unsuccessful attempts to “place the loan” with officers of various banks, “Fruehauf and Burge Seymour found it necessary to arrange the loan without the aid of financial institutions and, instead, processed it through the Frue-hauf Trailer Co. (Roy Fruehauf, president), Associated Transport Co. (Burge Seymour, president), and the latter’s wholly owned subsidiary Brown Equipment and Manufacturing Co.” (B) That “The method by which this otherwise simple transfer of $200,000.00 from Frue-hauf to Beck was effected is a fairly complex one, apparently caused by difficulties encountered by the defendant employers in effectuating what they have called a 'loan’ but without officers of their corporations learning of the transaction.” (C) That “[T]he details of this circuitous financing operations [sic]” were as follows: Inasmuch as “Neither Fruehauf nor Seymour wished to effect the loan by use of personal funds,” and “neither Fruehauf nor Seymour felt that their respective corporations could overtly finance the transfer of funds in such an amount without embarrassing themselves,” it was determined that the Brown Company “would actually make the transfer to Beck.” Thereupon, (1) on June 21, 1954, Fruehauf Trailer Co. “transferred” $175,000 by check to Brown in exchange for Brown’s $175,000 promissory note, payable December 30, 1954, and “purporting to bear interest in the amount of 5 Jo per annum,” whereas, in fact, “no interest was ever paid to, or even anticipated by, Frue-hauf or his corporation.” (2) Brown, on the same date, transferred $200,000 to Beck in return for Beck’s promissory note for that amount at 4% per annum, payable December 30, 1954 — a Brown check requisition form which falsely listed the object of this transfer being explained by Seymour as intended to conceal from “the people in Associated . . . that Beck was borrowing Associated funds.” (3) Associated, on the same date, transferred $200,000 to Brown. One week later, Brown returned to Associated $175,000, the amount lent Brown by Fruehauf. On December 30, 1954, “after Seymour had renegotiated the loan with Manufacturers Trust Co.,” Brown returned the remaining $25,000 to Associated. (“It should be noted that Beck was supposed to, but did not, repay the 'loan’ to Brown by December 30,1954.”) (4) On December 27, 1954, Seymour borrowed $200,000 at 4% per annum for 90 days from Manufacturers Trust Co., col-lateralizing the loan with Beck’s note and obligations of Fruehauf, Seymour and others, including an attorney for Fruehauf Trailer Co. (5) Seymour paid $2,066.66 interest to Manufacturers Trust, and by check dated March 30, 1955, returned the $200,000'loan to the bank. (6) “Beck paid the $200,000. loan from Brown by remitting to Seymour $163,215. on or about April 11, 1955, and $36,785. on or about June 30, 1955, which Seymour endorsed to Brown.” (7) “Only $4,000 interest, approximately half of the interest due, was actually paid and that was remitted in the form of a check . . . [from Fruehauf Trailer Co.’s attorney] to Seymour.” Having read this portion of the Government’s memorandum for the purpose of making known to the appellees “the government’s position, at least on the matter of the loan,” the district judge ruled that “in my view that statement by the government is a judicial admission that the transaction was a loan. As a matter of fact, to verify that belief, the government later argues in its brief that the use of the money was a thing of value. So at least, so far as I am concerned, there can be no dispute that the government’s position is that this was a loan, and we are now resolved to the question of whether a loan under these circumstances was illegal under the statute . . . .” “[0]n the basis of the disclosure by the Court of what the Court understands to be a judicial admission by the government,” the court then asked, again, whether appellees wished to be heard on a motion to dismiss. At this point, government counsel interposed “to communicate one thought to the Court that may not have been communicated by my brief.” He stated: “Despite the fact that there is the repeated use of the word ‘loan’ in the government’s advance outline before the Court, caused by the fact that the government’s case in large part is as asserted by these defendants as the trial will reflect as it proceeds, nevertheless the government’s position on the loan, and I hope to make this clear as the trial progresses, is actually twofold. “A loan, if your Honor please, is something that relates to a state of mind between the person who is receiving the money and the person who is giving the money, and again the repayment which actually occurred in this case is only one aspect of whether or not the transfer of funds between one party or from one party to another is actually a loan. “Now, to be quite specific, I will simply say that the position that the government takes is that the government has called this a loan, and in reiterating the facts as we know them from the defendants, the defendants having repeatedly used the word ‘loan/ we say that this is not necessarily so, because in fact any loan when it is made, to prove the fact that it was a loan, goes through certain stages, and is accompanied by certain attributes and here those items were not present in this case.” After adverting to the size of the “loan,” the fact that no collateral was given, and the facts that the “loan” could not be processed through financial institutions, that no interest was paid between the corporations although the transaction purported to require its payment, and that Beck did not in fact pay the 4% interest due under the terms of his note to Brown, government counsel concluded : “That is our first position. And the second position is that even if this is a loan as a matter of law it is still encompassed within the statute.” The district judge replied: “I do not think that anything you said detracts from the argument that you made in your memorandum, that you are going to prove that this was a loan, and on that basis I intend to entertain an application with respect to the dismissal of the indictment.” All of the appellees moved to dismiss on the ground, among others, that the transaction between Beck and the Fruehauf-Seymour group, being a “loan,” was not within the prohibition of the statute. Argument on the motion was had, and government counsel reiterated his position: “The Court: Assuming that this case was tried and the Court was disposed to frame special interrogatories to the jury, and one of those interrogatories was, Was the transaction a loan, and the jury brought back the answer No: do you think the Court could allow that answer to stand on the basis of the facts as you have set them forth in your brief, or wouldn’t the Court have to set aside the finding as being contrary to the evidence and the weight of the evidence? “Mr. Gtjzzetta: Your Honor, in the context of the remarks I made after you read in open court my brief, I would say that that would not be an erroneous finding by them. “The Court: In other words, your position is that despite the facts which you set forth this could be held to be not a loan? When I say the fácts you set forth, I mean the facts in your memorandum. “Mr. Guzzetta: As I tried to indicate, . . . the government’s position is twofold. If it wasn’t a loan, if the jury determine on the basis of the facts which they hear that this was — that the outer clothing, fabricated by one highly complex intercorporate transaction, didn’t make this transfer a loan, clearly, it would come within the statute. There would be no problem in my mind at all. Secondly, if the jury decided that it was a loan, I wouldn’t say that that would preclude them from finding a verdict of guilty because ... a loan is encompassed under the statute.” The District Court granted the motions to dismiss the indictment as to all of the appellees. It ruled: “I am convinced that the language which I read into the record from the Government’s brief is a judicial admission that this transaction was a loan. I have no doubt in my own mind at least, that in a trial either to the court or the jury, in a preliminary hearing where the defendants have not yet subjected themselves to jeopardy, if the Government established the facts which it recounted in its brief that it intended to prove, a finding by a jury to the contrary would have to be set aside, nor could the Court find to the contrary. Those facts, in my view, notwithstanding the qualifications attempted orally, and despite those qualifications and accepting those qualifications, those facts, in my view, establish that the transaction was a pure and simple loan. “. . . Having found as I do on the Government’s judicial admission that the transaction was a loan, we must then resolve whether the transaction as a loan was violative of the statute as it was at the time of the transaction, and I am qf the opinion that it was not.” From this oral ruling the Government brought the case here by direct appeal pursuant to the Criminal Appeals Act, 18 U. S. C. § 3731. The sole question presented in its Jurisdictional Statement is “whether a loan of money comes within the . . . prohibitions” of § 302 of the Labor Management Relations Act,' 1947. Briefs and oral argument in this Court proceeded upon the assumption that this question, and only this question, was properly raised by the record, and that the question, thus shaped, presupposed the substantial reality and bona fides of the “loan.” Counsel for the Government, in response to questions from the bench, asserted that in light of the framing of the issues on this direct appeal, the Government’s trial theory would have to be that the Beck-Frue- ' hauf-Seymour transaction was an incontestable, good-faith loan at a fair rate of interest, and that such other circumstances of the transaction as the lack of collateral would be immaterial. However, in a subsequent communication addressed to the Court and opposing counsel by the Solicitor General, the Government took the position “that the Court may properly take account in disposing of this case of the salient facts with respect to the transaction, as developed by the prosecutor before the district judge and as taken into account by the district judge in dismissing the indictment, and that the question before the Court may be considered in the factual context in which it was presented; the question presented fairly comprised the two issues of (1) whether any loan was covered by Section 302, and (2) whether this loan was covered by Section 302.” On this record, the question put to the Court for our direct review under 18 U. S. C. § 3731 is left unclear. An indictment cast in statutory language has been dismissed for failure to charge an offense within the meaning of the legislation whose words it employs, on the ground (as expressed in the ruling of the District Court) that the Government’s trial memorandum constituted a “judicial admission that the transaction was a loan.” The portions of the trial memorandum upon which this ruling rests establish, at most, that approximately a year after the Fruehauf-Seymour group transferred $200,000 to Beck, Beck transferred $200,000 back to the Fruehauf-Seymour group, with $4,000 “interest,” “approximately half of the interest due.” On the basis of such facts, putting aside of course all questions of variance between indictment and proof that might emerge at a trial, seemingly the Government might have attempted to make out violations of § 302 on any of a number of alternative theories: (1) that the “loan” was a sham, a mere ruse and covering device intended to pass from Fruehauf and Seymour to Beck a gift or bribe of money; (2) that irrespective of intention, the acceptance by the Fruehauf-Seymour group of $200,000 plus $4,000 interest in satisfaction of Beck’s obligation to repay the “loan” with twice that amount of interest constituted a forbidden delivery of the unpaid interest to Beck; (3) that irrespective of the terms of Beck’s note, the loan of a large sum of money at a rate of interest significantly lower than the going commercial rate effected a delivery to Beck of the difference between the interest payable at a commercial rate and the interest agreed on; (4) that irrespective of the interest rate, the transaction — by which Fruehauf and Seymour made available a large, unsecured loan which Beck could not have gotten through normal financing channels — resulted in the delivery to Beck of a “thing of value,” namely, the benefit of having the money in hand; (5) that irrespective of the particular incidents of this transaction, all loans, as such, violate the statute, either because the use of money is itself a “thing of value” which may not in any case be delivered by an employer to his employees’ representative, even in consideration of the payment of interest, under the statute, or because every loan, qua loan, comports the “delivery” of the thing loaned, which delivery (regardless of repayment) violates § 302. However, the District Court’s ruling that, by admission of the Government, the transaction was a “loan,” appears to mean that, in light of its trial memorandum, the Government is foreclosed from pursuing some, probably most, of these theories. Which among them the court thus viewed as closed remains uncertain. On the other hand, in a representation to this Court, the Solicitor General does not leave it unequivocally clear, so as to preclude controversy in the lower court were the case to be allowed to go to trial, which (if not all) of the theories he would regard as still open. The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government’s “judicial admission”) is the issue posed by the fifth theory above — the issue posed, in its most evidently abstract form, by the question presented here in the Government’s Jurisdictional Statement — “whether a loan of money,” every loan of money, as such, “comes within the [statute’s] . . . prohibitions.” We do not reach that question on this appeal. For we cannot but regard it — abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees’ motions to dismiss an indictment incontestably valid on its face — as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U. S. 327; Rescue Army v. Municipal Court, 331 U. S. 549; United Public Workers v. Mitchell, 330 U. S. 75; Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Arizona v. California, 283 U. S. 423. Nor does the record raise questions concerning the sufficiency of the indictment which would require, in an appropriate case, that the case be sent to the Court of Appeals, pursuant to 18 U. S. C. § 3731. For this is not a case in which the District Court has construed the allegations of an indictment, or limited the scope of the Government’s presentation by construction of a bill of particulars or the prosecutor’s opening statement. In the present case we cannot know with reference to what supposed factual circumstances the District Court attributed to the Government the admission that the Beck-Fruehauf-Seymour transaction constituted a “loan.” Without spelling out in detail the diverse argumentative possibilities that underlie the judge’s attribution of a “loan” as an unequivocally defined concept to the Government, it suffices to say that experience in instances of similar unclarity under the Criminal Appeals Act counsels the wisdom of abstaining from reviewing construction of a criminal statute on so cloudy a record as is now before the Court. Compare United States v. Colgate & Co., 250 U. S. 300, with United States v. A. Schrader’s Son, Inc., 252 U. S. 85. The core of the difficulty in the present case is that the record does not preclude the Government from attempting to prove that the transaction in question came within the statutory ban by reason of any or all possible theories. Of course, an undertaking by counsel here, however honorable its impulse, cannot bind the Government in the future. And the District Court’s ruling, insofar as it purports to close any avenues open to the Government under the indictment — not in view of specifications made in a bill of particulars or an opening statement, but on the basis of a “judicial admission” culled from a pretrial memorandum — was impermissible and constitutes an insufficient basis to justify the exercise of this Court’s jurisdiction on direct appeal. We do not think, however, that the purpose of Rule 15 of this Court, under which the Government filed the Jurisdictional Statement which brought the case here, requires us to penalize the Government by dismissing this appeal, simpliciter. This Court has the power, expressly provided in 28 U. S. C. § 2106, to “vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and . . . remand the cause and . . . require such further proceedings to be had as may be just under the circumstances.” The exercise of that authority is appropriate here. The ruling dismissing the indictment is set aside and the case is remanded for trial upon this’ valid indictment. So ordered. It appears that Roy Fruehauf is President of Fruehauf Trailer Co., that Burge Seymour is President of Associated Transport, Inc., and that Brown Equipment and Manufacturing Co. is a wholly owned subsidiary of Associated Transport, Inc. Section 505 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 537, enacted September 14, 1959, amended this section to read, in pertinent part: “It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value— “(1) to any representative of any of his employees who are employed in an industry affecting commerce . . . .” Count Two of the indictment charged that “On or about the 21st day of June, 1954, . . . Dave Beck, ... a representative of employees who were engaged in an industry affecting commerce . . . did unlawfully, wilfully and knowingly receive and accept and agree to receive and accept from [the several appellees of the Fruehauf-Seymour group], employers of the aforesaid employees, a thing of value, to wit, money, in the amount of $200,000.” Section 302 (b), as it was in effect at the time of the transaction alleged, provided: “It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.” The Labor-Management Reporting and' Disclosure Act of 1959, § 505, amended the section to cause it to parallel the amended version of § 302 (a), note 2, supra. The memorandum has not been made a part of the record in this Court. As read into the record, in part, by the district judge, it appears to have been prefixed by the statement: “This memorandum is submitted for the purpose of supplying the Court with a general outline and analysis of the facts the government intends to prove together with an exposition of the statutory and decsional [s¿c] law regarding the crime charged in the instant case.” This statement of the question differs from that in the Government’s Notice of Appeal, which stated the issue to be “Whether the payment of money by an employer (of employees in an industry affecting commerce) to a representative of his employees, intending repayment of said money with interest, is within the proscriptions of Section 302 (a) and (b) of the Labor Management Relations Act, 1947 . . . .” Subsection (c) of § 302 excepts five enumerated situations from the section’s broad ban on delivery or receipt of any thing of value: e. g., § 302 (c) (3) provides that the section shall not be applicable “with respect to the sale or purchase of an article or commodity at the prevailing market price in the regular course of business.”

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JENKINS PETROLEUM PROCESS CO. v. SINCLAIR REFINING CO. Circuit Court of Appeals, First Circuit. April 9, 1929. No. 2203. Henry Russell Platt and Wallace R. Lane, of Parkinson & Lane, both of Chicago, Ill. (Philip G. Clifford, of Portland, Me., on the brief), for appellant. Isaac B. Lipson, of Chicago, Ill., and Frank E. Barrows, of New York City (W. Clyde Jones, J. Bernhard Thiess, and Arthur B. Seibold, all of Chicago, Ill., Dean S. Edmonds, of New York City, and Charles D. Booth, of Verrill, Hale, Booth & Ives, of Portland, Me., on the brief), for appellee. Before JOHNSON and ANDERSON, Circuit Judges, and MORRIS, District Judge. JOHNSON, Circuit Judge. This is an appeal from the District Court of the United States for the District of Maine. 32 F. (2d) 247. A statement of facts is necessary to a consideration of the questions whieh have been raised. The Jenkins Petroleum Process Company will be referred to as plaintiff, and the Sinclair Refining Company as defendant. Tho plaintiff is a corporation organized and existing under the laws of the state of Wisconsin; the defendant, a corporation organized and existing under the laws of tho state of Maine. The latter was originally organized and known as the Cudahy Refining Company. Its name was later changed to that whieh the defendant hears. The business of the Cudahy Refining Company, whieh was continued by the defendant, was in part to treat petroleum products. The plaintiff was organized for the same purpose and acquired the ownership of an invention of Ulysses S. Jenkins and letters patent of the United States No. 1,226,526 issued to him on May 15, 1917, and letters patent No. 1,-321,749 issued to him on November 11, 1919. Tho former was for a process patent and the latter an apparatus patent. The process relates to the distillation of crude oil to obtain gasoline, and is called a “cracking process” in distinction from “straight distillation.” By the latter crude oil as it comes from the well is heated to different temperatures, the vapors from whieh gasoline is derived coming off at one temperature and those forming kerosene and gas oil coming off at other temperatures. The lighter oils whieh yield gasoline, the most valuable product of the “cracking process,” contain fewer atoms of hydrogen and carbon to the molecule than the heavier oils which yield other products. By tho “cracking process” the crude oil is subjected to a high degree of heat to break up the molecules of tho heavier oils into smaller, molecules, to form lighter oil before they are distilled over. In order to do this it is necessary to prevent tho escape of gases and vapors in order that the distillation may not take place before a temperature is reached at whieh the molecules •are disrupted or broken up. At tho time with which the present case is concerned, “straight distillation” had been employed, by which the refiners were not able to obtain more than 30 to 35 per cent, of the amount of the oil as gasoline, and in tho attempts that had been made to obtain gasoline by the “cracking process” a great deal of carbon was deposited in tho still which adhered to its sides, interfering with the proper heating of the oil and producing other results whieh caused the bursting of the still. It then became necessary to shut down the process and let the still cool so that tho carbon whieh adhered- to its walls might be removed and it again be heated to the temperature required for the “cracking process.” Experts in tho refining process were devoting their knowledge and skill to discovering some method for the elimination of carbon. Two methods were in use at this time: One, called the Burton method, by which a still was charged by -oil pumped into it and then heated; another, devised by different inventors, was a tube method by which the oil was heated in tubes instead of in a still. Various inventions by Clark, Seeger, Smith, and Cross employed the tubular method. The demand for gasoline had largely increased- and the “cracking” art was the subject of a great deal of study. Ulysses S. Jenkins, to whom t-lie patents before mentioned were issued, was in tho employ of the defendant in its lubricating sales department. lie had had experience with steam boilers, but, knowing that there was serious trouble with tho “cracking process” due to the formation of carbon, turned his attention to inventing a still for “cracking” oil, and set up one in a small garage in Chicago-. Others became interested with him and prospectuses were issued, when his experimentation had gone far enough to justify it. These wore distributed to the public and particularly to oil refiners. Tho striking feature of! his method and apparatus set out in tho prospectus issued was that the process could bo made continuous by new oil being pumped into the still continuously and tho desired products obtained by an indefinite running of the still, so that it would not be necessary to stop the process to clean tho carbon from the still before a fresh charge of oil could ho put into it. Inclined boiler tubes wore shown through whieh the oil was driven, and it was claimed that by this method “coking, tho bane of practical oil men, which is responsible for more trouble, inefficiency, burned bottoms, ruined stills, and spoiled product, than any other single cause, is absolutely done away with. Our stills if properly operated, need practically never be cleaned except to remove the small percentage of impurities which may be carried in with the oil.” The prospectus then pointed out how the oil circulating rapidly through the inclined boiler tubes would gather the maximum of heat, being “seventy-five per cent, as high as that of the flames.” It then pointed out other advantages of the method, including the gas take off so adjusted as to take off the gases generated, which would arrange themselves according to various densities by what was known as “mass aetion.” Reference was made to the demonstration of Dr. Rittman, connected with the United States Bureau of Mines. These prospectuses were issued and came into the possession of the Cudahy people in the fall of 1916- The defendant in the meantime had been studying methods for cracking oil since 1912, through its engineer, Edward W. Isom, in charge of its refining plants. He had visited different places as described in the record and examined the methods used in refining oil and the cracking processes there. Mr. William H. Isom was the father of Edward W. Isom and the president of the defendant company. It was brought to his attention in 1916 that Jenkins claimed to have invented an apparatus for cracking oil which eliminated the carbon practically and that it would run continuously and “revolutionize the oil industry.” He communicated with his son, Edward W. Isom, who came to Chicago, and arrangement was made to visit the garage where the Jenkins apparatus had been set up. He did so, but'the apparatus did not work, and a fire soon after put it out of commission. This was in August, 1916. Edward W. Isom saw the Jenkins apparatus but once in Chicago. He thought that different oil should be used and wanted to try it upon the oils of the defendant company. He therefore made a suggestion to the officers of the plaintiff company that they ship the still to Coffeyville, Kan., where the defendant had a plant. Following this a letter was written by the plaintiff, as follows: “Chicago, Ill., October 2, 1916. “Cudahy Refining Co., Chicago, Illinois. “Gentlemen: Pursuant to our conversations and conferences relative to the Jenkins process of treating petroleum, it is understood that we are to loan you our experimental still to be shipped to Coffeyville, Kansas, so that your experts and engineers may have apparatus immediately available upon which to carry out experiments upon the Jenkins improved process upon your petroleum products. “It is further understood that Mr. Ulysses S. Jenkins of Chicago will go to Coffey-ville, Kansas, to install the still and will remain in an advisory capacity throughout the entire course of experimental work carried on by your experts, Mr. Jenkins’ salary being $150.00 per month, and all expenses, including railroad expenses incurred by him in making trips to Chicago rendered necessary by said experimental work, this to be paid by you. “It is further definitely understood and agreed between us that any improvements, whether of a mechanical nature or in the process, which may be developed as the result of the work of your engineers and experts in familiarizing themselves with the Jenkins apparatus and process^ shall accrue to the Jenkins Petroleum Process Company, and that you shall so far as you are able to do, cause your employees carrying on such experimental work to execute applications for patents for the United States and any other countries to protect any such improvements, but at the expense of Jenkins Petroleum Process Company and to assign said applications, together with the improvements they are intended to protect, to the Jenkins Petroleum Process Company. This provision is of course rendered necessary by the fact that in the development of a process of this character, and particularly in its application to particular oils, many short-cuts and improvements necessarily are developed by the experts entrusted with the carrying out of the process, which belong by right to their employer, and under the circumstances here involved, of course, to the Jenkins P’etroleum Process Company, inasmuch as they are loaning you not only their experimental still, but also the services of Mr. Jenkins, the inventor himself. “It is further understood that all expenses in connection with the transportation of the still and incidental expenses shall be paid by you, and that as soon as your engineers and experts have carried on sufficient work with this still to, thoroughly familiarize themselves with the process and discover the best conditions under which to apply the process to your petroleum products, the still will be returned in good condition to us, and that Mr. Jenkins’ salary will continue from the time the still is first shipped to Coffeyville until such time as it is returned. “Yours very truly, “Jenkins Petroleum Process'Co. “By A. G. Maguire, President.” This letter was approved and accepted by the Cudahy Refining Company through W. H. Isom, its president. Pursuant to this agreement, the experimental still was shipped to Coffeyville, and Mr. Jenkins, the inventor, went there to set it up and give instructions to the engineers of the defendant. Employees of the defendant assisted, under the supervision of Jenkins, in installing the still, which was tested with water and found to leak. After several attempts to weld it together, and after bricking it in and testing it out with water, it was found impossible to make it water-tight. No test was made with oil, which would he a more severe and dangerous test. After discovering the experiments to be futile, Jenkins in November left for Chicago without notice to any one that he was leaving. No experiments with oil were attempted and nothing further was done with the still. It was later sent to the defendant’s storehouse, where it remained until produced at the trial. The defendant, through its patent attorneys, made an investigation of plaintiff’s patent application, and upon their report, which was adverse, negotiations were dropped. The plaintiff, however, attempted to sell licenses to other oil refiners and made one license agreement with the Consumers’ Company, September 21, 1916, prior to. the date of the letter which is the basis of this suit. Plaintiff had also, in August, 1916, started to design a commercial still at Milwaukee, Wis. It is contended by the defendant that its experts and engineers learned nothing from experimentation on the plaintiff’s still, as there was none, and that all that it disclosed had been made public by the statements in the prospectus which had been issued. E. W. Isom continued his experimental work and researches in regard to the cracking of oil, and later applied for a patent which was granted by the United States November 19,1918, on an application filed September 10, 1917. The defendant has erected a large number of plants at great expense in which the apparatus described in the Isom patent is used. It is contended by the plaintiff that this patent is only an improvement which results from information obtained by Edward W. Isom from the plaintiff, or obtained by the employees of the defendant by an inspection of the Jenkins still. In its bill the plaintiff has prayed for specific performance of the contract made with the defendant by the letter of October 2, 1916, and its acceptance, and asks for a decree directing the defendant to assign and transfer to it the letters patent issued to Edward W. Isom November 19, 1918, with all rights thereunder, and any and all patents in other countries or applications therefor relating to said improvements and invention; and that the defendant be required to disclose to the plaintiff the result of any and all experiments, tests, and operations made or attempted by it or any of its experts, engineers, agents, employees, and servants after October 2, 1916, relating to the process or apparatus described or disclosed in the patent to Jenkins; and that the defendant he required to account to the plaintiff for all profits which have accrued to it or to the Sinclair Consolidated Oil Corporation, of which it is alleged to be a subsidiary, arising out of the use of the process described in the Isom patent; and also be enjoined from using any of the processes, inventions, and improvements described in the Isom patent; and that the defendant further be required to account to the plaintiff for damage which it has sustained by virtue of the violation of the contract of October 2, 1916. The contention of the defendant is that the Isom patent of November 18, 1918, was conceived by the said Isom prior to any transactions whatever between Isom and Jenkins, and that the patent issued to Isom was not an improvement upon, in, or to the Jenkins experimental still or the alleged Jenkins process, but that it is radically different from either of these inventions and embodies a wholly different idea of means, operates upon different principles, and accomplishes different and highly successful results. It also contends that the discovery, inventions, and processes of the Jenkins patents which are alleged to have been disclosed to the defendant, or as set forth in them, are not discoveries or inventions in the meaning of the statute of the United States, but consist of mere adaptations to required uses of what was well known in the art, and involved only mere mechanical skill. A large amount of testimony was taken in the case, which comes to us in a veiy extended record, hut the gist of the case is whether there was sufficient evidence that the Isom patent was the result of information furnished to E. W. Isom, or obtained by any officers of the defendant company in “familiarizing themselves with the Jenkins apparatus and process,” to ground a decree for specific performance in the exercise of a judicial discretion by the District Judge. Of the contract the Judge of the District Court, in his opinion, says: “While I think that a narrow construction of the contract confining the improvements to such as were developed by experts while making the contemplated experiments with the machine (which were never made) may be justified, I prefer to further consider the status of the parties under a broader construction which gives more weight to the words 'familiarizing themselves with the Jenkins apparatus and process,’ especially as the plaintiff claims that the defendant’s agents, artfully and designedly gained the confidence of the Jenkins people, extracted all their information and used it as the basis of the Isom patent. “Taking the broader construction of the contract it would embrace information concerning the Jenkins Process imparted in any way by the Jenkins people to the defendant’s experts, and it appears from the evidence that much information was given by way of plans, specifications, and descriptions, and without doubt the defendant’s experts in this and other ways 'familiarized themselves with the Jenkins apparatus and process’ as much as possible. I do not, however, find from the evidence that there was any fraudulent intent in so doing, and much of the descriptive information acquired by the defendant’s people was not received by them exclusively, but, like the description in the plaintiff’s prospectus, shared with the public or with others.” The hearing before the District Judge occupied about three weeks, one of which was taken up with the examination of Edward W. Isom. He testified at length, both in direct and cross examination, in reference to the investigation which he had made of cracking processes — in the Burton still in 1912, the Wells process in 1913, the Kelsey process in 1914, the Clark process in 1914, and the Seeger process in. 1915 — also that he visited various refineries and studied their methods, particularly those where the Seeger cracking process was employed. That he was favorably impressed with the process of heating the oil in tubes is shown by a letter to his father under date of April 24,-1915, part of which is as follows: “The cheapest installation, and the best one, I am sure, will be the tube system, although it may take some time to develop. I will have the estimate and general layout of the equipment I propose ready next week; I am sure of getting results with this equipment, in case we go ahead with it. It eliminates all the faults of various tube processes, all of which axe in themselves partially successful, and so has a fair chance of success. The only way to know is) of course, to try it out.” He also testified that he was familiar with all the literature that had been written in regard to cracking processes. Of his testimony the District Judge said: “An immense amount of evidence was put in relative to the source from which Isom drew the inspiration for his invention. It is not desirable or possible to even summarize it here. Isom himself was on the stand for about a week. He testified definitely and in detail of his prior conception of his invention. It developed that he had investigated and studied oil cracking processes for some years, that being his business, and in the course of his work acquired information as to thirty or forty different systems. His principal object was to solve the carbon problem. “He ‘ described in detail systems with which he was familiar prior to Jenkins, such as Benton, Clark, Seeger, Smith and many others, several of which had features which were manifestly the ancestors of the ideas incorporated into the Isom patent. * * * I incline to the theory that Isom got all the information he could about the Jenkins process and turned it down as impracticable. He never saw the apparatus work and did not believe it would work. He returned to his preconceived ideas based on Clark and others prior to Jenkins and went ahead with his invention which was the outgrowth of those ideas.” There was evidence that certain admissions were made on the part of the defendant which was denied, so that the evidence in regard to them was conflicting. This testimony was all oral, and the finding of the presiding judge in regard to it is conclusive. That Isom made his invention from what was disclosed by Jenkins rather than from knowledge gained from his own experimentation, the prior art, and from all that had been disclosed by prior patents, is not in our opinion so clearly shown as to ground a decree for specific performance. It is contended by the defendant that the contract of October 2, 1916, should be confined to information obtained from experimentation with the Jenkins still after that date, but giving to the contract the broad construction placed upon it by the District Court, it is impossible to determine from a careful study of the record whether the invention of Isom was the result of information which had been obtained by the defendant’s “engineers and experts familiarizing themselves with tho Jenkins apparatus and process,” or whether it was tho result of Isom’s inventive genius and of information obtained from other sources which were open to Isom 'as fully as to Jenkins. To sustain a decree of specific performance the contract not only should be clear and unambiguous, but the evidence in relation to acts alleged to have been done under it and necessary to give it effect should ho clear and convincing. Failing such evidence, the parties must be left to their equitable or legal remedies; the bill must be dismissed without prejudice and without costs. The decree of the District Court is modified in accordance with this opinion, and so modified is affirmed, without costs.

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?