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LANE ex rel. CRONIN v. TILLINGHAST, Commissioner of Immigration. Circuit Court of Appeals, First Circuit. Feb. 17, 1930. No. 2426. John-T. Lane, of Boston, Mass., for appellant. John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, ANDERSON, and' "WILSON, Circuit Judges. ANDERSON, Circuit Judge. This appeal from a decision of the District Court denying habeas corpus involves the right of the immigration authorities to deport Anna Cronin, an alien, who was duly admitted on September 2,1923, on the ground that she had “within five years after entry * * * [been] * * * sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States.” Act of February 5, 1917, 39 Stat. 889, 8 USCA § 155. The record shows that on October 21, 1926, she pleaded guilty to a complaint in the district court of Lawrence, Mass., charging her with being “a lewd, wanton and lascivious person in speech and behaviour, frequenting houses of ill fame and other places of evil repute, the company of lewd persons, and has otherwise conducted herself in a lewd, wanton and lascivious manner, against the peace of said Commonwealth, and contrary to the form of the Statute in such ease made and provided;” that she was placed on probation for six months; that she violated the terms of her probation; that on June 29, 1927, after hearing, she was committed to the Massachusetts Reformatory for Women at Framingham for an indeterminate period, and actually remained there for one year, when she was apparently paroled. On her arrest for deportation, she was gpven a fair hearing, with counsel present. On credible evidence, the finding was made that she had told various police officers that she had had promiscuous sexual intercourse with men at the Plaza Hotel in Lawrence, for money, and divided the proceeds with one Dyer, who sent the men to her. She admitted telling this to the officers; but claimed she then lied. If the evidence was legally admissible to show the nature of her alleged lewdness, of course all questions of credibility were for the immigration officials. We need not decide whether the evidence of the nature of this alien’s lewdness was competent; United States v. Uhl (C. C. A.) 210 F. 861, 863; Tillinghast v. Edmead (C. C. A.) 31 F.(2d) 81; Ex parte Edmead (D. C.) 27 F.(2d) 438; for we are of opinion that under the statute, G. L. Mass. c. 272, § 53, lewdness connotes moral turpitude. In Commonwealth v. Wardell, 128 Mass. 52, 54, 35 Am. Rep. 357, the court said: “The word ‘lewdness’ at common law means open and public indecency; but as used and qualified in the statute it has a broader sense. It was held to mean, as used in other criminal statutes (Gen. Sts. e. 165, § 13; e.-87, § 6), ‘the irregular indulgence of lust, whether publie or private.’ ” Bouvier says: “Lewdness. — That form of immorality which has relation to sexual impurity.” Bouv. Law Dict., vol. 2, p. 1938. Compare Swearingen v. United States, 161 U. S. 446, 451, 16 S. Ct. 562, 40 L. Ed. 765. The deeree of the District Court is affirmed.

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

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

Ralph NAPLETANA and Rosanne M. Goldrick, Plaintiffs-Appellees, v. HILLSDALE COLLEGE, a corporation, Defendant-Appellant. No. 17598. United States Court of Appeals Sixth Circuit. Nov. 24, 1967. Edward D. Wells, Grand Rapids, Mich., for appellant, Cholette, Perkins & Buchanan, Grand Rapids, Mich., on the brief, William J. Addison, Grand Rapids, Mich., of counsel. Clay T. Brockman, Coldwater, Mich., for appellees. Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge. EDWARDS, Circuit Judge. This is a damage action brought under the jurisdiction of the federal courts due to diversity of citizenship. 28 U.S.C. § 1332 (1964). In this case a father and daughter, alleging that they were citizens of Ohio, filed suit against a Michigan college. The daughter was attending the college in 1962 when a radiator fell, injuring her left foot. The case was tried to a jury before Judge W. Wallace Kent, with the result of a judgment in favor of plaintiffs in the amount of $4,000. This appeal presents only one question: whether the District Judge erred in denying defendant’s motion to dismiss for lack of diversity jurisdiction. At the time of the filing of this complaint, January 22, 1965, appellee, Mrs. Goldrick, was a teacher in the Shaker Heights schools, residing in Cleveland Heights, Ohio, with her parents. At that time, however, she was married. Her husband had moved to Michigan to take a new job four weeks before the filing of this complaint. Shortly thereafter, on February 1, 1965, at the conclusion of the school semester, Mrs. Goldrick joined her husband in Michigan. The District Court had jurisdiction over this action if diversity of citizenship existed at the time the complaint was filed. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed. 2d 1205 (1957); Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 472, 31 A.L.R.2d 909 (6th Cir. 1952); 1 W. Barron & A. Holtzoff, Federal Practice and Procedure § 26, at 139-40 (Wright ed. 1960). For purposes of the jurisdictional statute, 28 U.S.C. § 1332 (1964), a person is a citizen of a state if he is domiciled there. Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); C. Wright, Handbook of the Law of Federal Courts § 26 (1963). Generally, diversity must exist between all plaintiffs and all defendants. Hence, regardless of her father’s Ohio domicile, the domicile of Mrs. Goldrick is crucial to jurisdiction of this case. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 471, 31 A.L.R.2d 909 (6th Cir. 1952). But see generally ALI Study of the Division of Jurisdiction Between State and Federal Courts 180-90 (Official Draft, part 1,1965). The boundaries of federal diversity jurisdiction must, of course, be determined basically by federal law. But customarily the federal courts look to state law, particularly the law of the states concerned, for definitions of terms such as “domicile” which are direct products of state law. Appellant contends that Mrs. Gold-rick’s domicile necessarily followed her husband’s domicile into Michigan prior to the filing of the complaint. This argument is based on the common-law doctrine that a married woman’s domicile is that of her husband. See 25 AM.JUR.2d Domicil § 53 (1966). Appellees contend that the modern trend in the law is to recognize separate domiciles for husband and wife, if in fact they are residing in and intend to maintain separate domiciles in different states. Appellees argue that this is true where there is an agreement, express or implied, between husband and wife to maintain separate domiciles. Professor Wright provides this definition of how a domicile may be changed. “A citizen of the United States can change his domicile instantly. To do so, two elements are necessary. He must take up residence at the new domicile, and he must intend to remain there. Neither the physical presence nor the intention to remain is alone sufficient.” C. Wright, Handbook of the Law of Federal Courts § 26 (1963). In one of the few federal court cases cited to us, the United States Court of Appeals for the District of Columbia held: “Although the domicile of a wife ordinarily follows that of her husband, it is not so in this case. When Oxley left North Carolina in 1935, it was by agreement that his wife remained there and so her domicile remained in that state, despite the fact that he established a new domicile for himself in the District of Columbia.” Oxley v. Oxley, 81 U.S.App.D.C. 346, 159 F.2d 10, 11 (1946) (Footnote omitted.) This quotation mirrors the American Law Institute’s Restatement of Conflict of Laws : “If a wife lives apart from her husband without being guilty of desertion according to the law of the state which was their domicil at the time of separation, she can have a separate domicil.” Restatement of Conflict of Laws § 28 (1934). Early in the history of the Supreme Court of Michigan, Justice Cooley recognized exceptions to the common-law rule that a wife’s domicile is that of her husband. People v. Dawell, 25 Mich. 247, 262 (1872). Similarly, the Supreme Court of Ohio long ago recognized the principle that a married woman can have a domicile separate from that of her husband. Van Fossen v. State, 37 Ohio St. 317, 320 (1881). We believe that for purposes of federal diversity jurisdiction a married woman can have a legal domicile separate from that of her husband. Our question in this case then becomes primarily one of fact — whether plaintiff Goldrick’s residence and intent at the time of the filing of this complaint supports the conclusion that she was at that time domiciled in Ohio. There is ample testimony to establish the fact of Mrs. Goldrick’s lifetime residence in Ohio up to and beyond the date of the filing of the complaint in this case. We also find evidence of the intent to remain there until February 1, 1965, in her testimony: “Q. And where were you residing during the month of January, 1965? “A. At the home of my parents. “Q. And where was that? “A. In Cleveland Heights, Ohio. “Q. And what were you doing at that time, employmentwise ? “A. I was teaching first grade in Shaker Heights, Ohio. “Q. And did you complete the first semester of teaching there? “A. Yes, I did. “Q. When did you move to Detroit or the Detroit area? “A. On the first of February. “Q. Of’65? “A. ’65, yes.” We believe this record establishes that Mrs. Goldrick resided in Ohio on January 22, 1965, and intended to remain there until the end of the school semester. There is in this case no evidence of any marital rift or disagreement. Mrs. Gold-rick’s testimony concerning her intention to remain in Cleveland to the end of the school semester and her joining her husband in Michigan immediately thereafter allowed an inference that these arrangements were agreeable to both husband and wife. On this record we find no error in the District Judge’s denial of defendant’s motion to dismiss this case for want of jurisdiction. 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.

UPHOLSTERERS’ INTERNATIONAL UNION PENSION FUND, Plaintiff-Appellant, v. ARTISTIC FURNITURE OF PONTIAC, Defendant-Appellee. No. 89-3058. United States Court of Appeals, Seventh Circuit. Argued Sept. 28, 1990. Decided Dec. 11, 1990. Karen I. Engelhardt, Jacobs, Burns, Sug-arman & Orlove, Chicago, Ill., M. Eugene Wright, Wright & Wright, Danville, Ill., for plaintiff-appellant. Edward A. Berman, Antonette C. Hue-Laitsch, Chicago, Ill., William L. Townsley, Sebat, Swanson, Banks, Garman & Towns-ley, Danville, Ill., for defendant-appellee. Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. FLAUM, Circuit Judge. The trustees of the Upholsterer’s International Union pension fund brought suit against Artistic Furniture of Pontiac in district court, alleging that the company was liable for its predecessor Pontiac Furniture’s delinquent pension fund contributions. The district court granted summary judgment in favor of Artistic Furniture and denied the trustees’ motion for summary judgment. We reverse in part and affirm in part. I. From 1980 to 1985, Pontiac Furniture Inc. (“Pontiac”) manufactured upholstered chairs and recliners at a plant in Pontiac, Illinois. Pontiac’s employees were members of the Upholsterer’s International Union. Under Pontiac’s collective bargaining agreement with the union local, the company was obligated to make fixed contributions on behalf of its workers to the union’s multiemployer pension fund (“Fund”). Pontiac began experiencing financial difficulties in the early 1980s. By 1984, the company’s situation had deteriorated to the point where one of its creditors, James Talcott, who held a security interest in Pontiac’s inventory, equipment, machinery, and furniture, exercised his right to review and veto its proposed payments to other more junior creditors. The Fund was among those not paid by Pontiac from March, 1984 to August, 1985. On August 28, 1985, Taleott foreclosed on his loan to Pontiac and sold the company’s assets to Artistic Furniture (“Artistic”). Artistic’s stock was owned by four individuals — Steve Connor, Joe Townsley, Ronald Roesink, and Earl Kessler — none of whom had any previous ownership interest in Pontiac. Artistic’s officers and directors were different than those of Pontiac, with the exception of Larry Bork, Pontiac’s Vice President of Finance, who stayed on to hold the same position with Artistic, and occupied a seat on Artistic’s Board of Directors. During the weeks before the foreclosure and subsequent sale, Artistic’s management negotiated a new collective bargaining agreement with Pontiac’s bargaining unit employees in anticipation of taking over Pontiac’s operation. The agreement reached was similar to the agreement in effect between the union and Pontiac, and was designed to ensure a smooth transition between the two companies. Substantially all employees formerly employed by Pontiac were retained by Artistic and their seniority was honored. Artistic did not, however, represent to the union or to Taleott that it would assume liability for Pontiac’s pension fund contribution shortfall. On February 11, 1986, the Fund sued Pontiac in district court, alleging that Pontiac had failed to fulfill its obligation to contribute to the union’s pension plan. Soon thereafter, the Fund amended its complaint to allege that Artistic, as the successor of Pontiac, was jointly and severally liable for the delinquent contributions. On August 3, 1987 the district court entered judgment against Pontiac in the amount of $89,609.95. The union, apparently, was not able to collect its judgment against Pontiac. The suit against Artistic continued, and two years later, following the close of discovery, both parties moved for summary judgment. The district court denied the Fund’s motion and granted Artistic’s, finding that there existed no commonality of ownership between Artistic and Pontiac that would mandate the imposition of liability and that Artistic was not otherwise liable for Pontiac’s debt on a theory of successor liability. The Fund’s trustees appeal the district court’s decision and request that we both reverse the district court and enter summary judgment in the Fund’s favor. We now reverse the district court’s grant of summary judgment to Artistic but affirm the court’s denial of the Fund’s motion. II. We turn first to the district court’s legal findings regarding the applicability of a theory of successor liability to the instant action. As this court has previously noted, the issue of successor liability is “dreadfully tangled, reflecting the difficulty of striking the right balance between the competing interests at stake.” E.E.O.C. v. Vucitech, 842 F.2d 936, 944 (7th Cir.1988). We must endeavor to balance the well-articulated federal interest in ensuring that employers maintain properly funded pension plans and the social interest in facilitating the market in corporate and other productive assets. We appreciate the district court’s efforts to strike this balance, but feel constrained to disagree with its ruling that labor law successorship principles cannot support the imposition of liability upon Artistic. However, we do not reverse the district court’s denial of summary judgment to the Fund because material facts relevant to the imposition of liability remain in dispute. A. The general common law rule, designed to maximize the fluidity of corporate assets, is that “a corporation that merely purchases for cash the assets of another corporation does not assume the seller corporation’s liabilities.” Travis v. Harris Corp., 565 F.2d 443, 446 (7th Cir.1977). Traditionally, this rule has been limited by four exceptions. Successors have been held liable where (1) there is an express or implied assumption of liability; (2) the transaction amounts to a consolidation, merger, or similar restructuring of the two corporations; (3) the purchasing corporation is a “mere continuation” of the seller; and (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts. See id. at 446 (citations omitted). However, “[t]he perimeters of the labor-law doctrine of successorship [] have not been so narrowly confined.” Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182 n. 5, 94 S.Ct. 414, 424 n. 5, 38 L.Ed.2d 388 (1973). Rather, the Supreme Court and this Circuit have imposed liability upon successors beyond the bounds of the common law rule in a number of different employment-related contexts in order to vindicate important federal statutory policies. In Golden State Bottling, for example, the Supreme Court held that liability under the National Labor Relations Act could be imposed on a successor for a predecessor’s unlawful discharge of an employee. The Court ruled that an employer who substantially assumes a predecessor’s assets, continues the predecessor’s operations without interruption or substantial change, and who has notice of a pending unfair labor practice charge at the time of acquisition can be required to remedy the unfair labor practice. The Board’s remedy in Golden State required reinstatement with back pay of the aggrieved employee. The Court affirmed the Board’s remedial order against the successor in order to promote the free exercise of employees' rights under the NLRA and make whole the victimized employee. Id. at 184-85, 94 S.Ct. at 425-26. Speaking to the economic justifications underlying the common law presumption against successor liability, the Court found the imposition of liability to be of relatively minimal economic cost: because “the successor must have notice before liability can be imposed, ‘his potential liability for remedying unfair labor practices is a matter which can-be reflected in the price he pays for the business_’” Id. at 185, 94 S.Ct. at 425, (quoting Perma Vinyl Corp., 164 N.L.R.B. 968, 969 (1967)). Golden State and its progenitor, John Wiley & Sons Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), have provided the foundation for a series of cases in which this court and others have concluded that the balance between the need to effectuate federal labor and employment discrimination policies and the need, reflected in the traditional common law rule, to facilitate the fluid transfer of corporate assets is best struck by the imposition of successor liability. In Musikiwamba v. ESSI Inc., 760 F.2d 740 (7th Cir.1985), this court extended the labor law successorship doctrine to a § 1981 claim for employment discrimination. Three considerations motivated the court’s decision: the existence of an “overriding federal policy against unfair [] employment practices,” the recognition that “the victim of the illegal employment practice is helpless to protect his rights against an employer’s change in the business,” and the recognition that “the successor can provide relief at minimum cost.” 760 F.2d at 746. Similarly, in Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir.1986), we drew upon these justifications to impose liability upon a successor for a predecessor’s Title VII violation. We reasserted our belief that “in the context of Congressional prohibition of discrimination in employment, judicial importation of the concept of successor liability is essential to avoid undercutting Congressional purpose by parsimony in provision of effective remedies.” 794 F.2d at 1237. Relevant to the imposition of liability were the following factors: (1) whether the successor employer had prior notice of the claim against the predecessor; (2)whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been sufficient continuity in the business operations of the predecessor and successor. Id. at 1236. We found the first two factors to be critical because of our belief that it would be inequitable to hold a successor liable when it was unable to take the liability into account in negotiating the acquisition price or when the predecessor was capable of paying and merely attempted to externalize the liability onto another party. Id. Finally, in E.E.O.C. v. Vucitech, 842 F.2d 936 (7th Cir.1988), we extended liability for Pregnancy Discrimination Act claims under Title YII to successor employers. In Vuci-tech we elaborated upon the economic rationale for successor liability: When the successor company knows about its predecessor’s liability, knows the precise extent of that liability, and knows that the predecessor itself would not be able to pay a judgment obtained against it, the presumption should be in favor of successor liability_ This solution prevents the externalizing of the liability without disappointing the reasonable expectations of investors (and hence impeding the market for corporate assets). The successor, if he knows of his potential liability, will demand compensation in the form of a lower price for the assets, and in this way the burden of liability will be shifted back to the owners of those assets, where it belongs. 842 F.2d at 945. These cases suggest several relevant principles. First, contrary to Artistic’s contention, the fact that the imposition of liability will have a significant fiscal impact on a successor is not prohibitive: in holding successors liable for backpay or employment discrimination damages in our previous cases, we have demonstrated a willingness to impose just such a burden. There is, of course, no relevant economic difference between the award of backpay or compensatory damages at issue in our previous successor liability cases and the delinquent contribution liability at issue here. Second, we have not confined the theory of successor liability to the NLRA context in which it was born, but rather have extended it to a variety of statutory contexts when the equities have so dictated. We have found the imposition of successor liability to be appropriate in those cases where the vindication of an important federal statutory policy has necessitated the creation of an exception to the common law rule, where the successor has had prior notice of the liability in question, and where there has existed sufficient evidence of continuity of operations between the predecessor and successor. B. That being said, we do not see any reason why successor liability should not in principle apply to actions seeking recovery of delinquent multiemployer pension fund contributions. The congressional policies underlying ERISA and the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) are no less important, and no less compel the imposition of successor liability than do the policies animating the NLRA, Title VII, or Section 1981 in the cases previously discussed. Because multiemployer employer pension plans are “defined-contribution in, defined-benefit out,” if some employers fail to make their required contributions, others must make up the difference in order to ensure that workers receive their designated benefits. Central States, Southeast and Southwest Areas Pension Fund v. Gerber Truck Service Inc., 870 F.2d 1148, 1151 (7th Cir.1989) (en banc); see also Robbins v. Lynch, 836 F.2d 330, 333 (7th Cir.1988); House Committee on Ways & Means, Multiemployer Pension Plan Amendments Act of 1980, H.R.Rep. No. 96-869, Part II, 96th Cong., 2d Sess. 15, reprinted in 1980 U.S.Code Cong. & Admin. News 2993, 3004 (hereinafter “House Report”). This is precisely the problem at issue here. Absent the imposition of successor liability, present and future employer participants in the union pension plan will bear the burden of Pontiac’s failure to pay its share. An examination of relevant ERISA provisions suggests that this result would be contrary to congressional pension policy. We note initially that the MPPAA gave statutory status to employers’ contractual contribution duties under multiemployer plans, see 29 U.S.C. § 1145, and then authorized certain parties to bring actions in federal court to enforce those obligations. See 29 U.S.C. § 1132. Congress sought to facilitate the collection of multiemployer plan contributions, since lag time between obligation and payment “imposes a variety of costs on plans. While contributions remain unpaid, the plan loses the benefit of the investment income that could have been earned if the past due amounts had been received and invested on time.” Senate Committee on Labor & Human Resources, The Multiemployer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration, 96th Cong., 2d Sess., 43 (Comm. Print 1980) (hereinafter “Senate Report”). Moreover, Congress recognized that “[participants and beneficiaries of plans as well as employers who honor their obligation to contribute in a timely fashion bear the heavy cost of delinquencies in the form of lower benefits and higher contribution rates-” 126 Cong.Rec. 23039 (Rep. Thompson, House manager of the MPPAA); see also Senate Report at 43-44. To be sure, this provision does not speak directly to the problem of a delinquent contributor’s financial collapse as is the situation here. Nevertheless, the federalization of multiemployer plan contribution obligations evinces a strong congressional desire to minimize contribution losses and the resulting burden such losses impose on other plan participants. Also relevant to our inquiry are those MPPAA provisions imposing withdrawal liability on employers who cease participating in a multiemployer plan. In an effort to relieve the financial burden placed upon remaining contributors to a multiemployer fund when one or more of them withdraws from the plan, Congress enacted provisions which hold withdrawing employers liable, subject to certain adjustments, for their share of their plan’s unfunded vested pension benefits. Though these liability provisions are not directly applicable here, as Pontiac’s contribution liability is not technically a withdrawal liability, the congressional motives underlying their enactment are. Congress enacted the statutes imposing withdrawal liability in order to “relieve the funding burden on remaining employers” and to “avoid creating a severe disincentive to new employers entering the plan....” House Report, Part I, at 67, reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2935. See also House Report, Part II, at 15, reprinted in 1980 U.S.Code Cong. & Admin.News 2993, 3004. Congress also sought to prevent the creation of funding deficiencies which in the future might necessitate the infusion of Pension Benefit Guarantee Corporation (PBGC) insurance funds to cover shortfalls and hence would burden the large number of employers that support the PBGC through the premiums they pay. See House Report, Part II, at 15. Absent the imposition of successor liability, the hardships that Congress sought to stave off in enacting the MPPAA may indeed result in cases where a predecessor employer is unable to fulfill its contribution obligation. As old collective bargaining agreements are renegotiated, and new ones formulated, present and future employers will have to increase their plan contributions in order to cover shortfalls created by the financial collapse of delinquent employers. In the face of this possible consequence, we believe that the congressional policies animating the MPPAA support the imposition of successor liability for unpaid multiemployer pension fund contributions when the other prerequisites to successor liability have been met. One other court of appeals has reached the same conclusion. See Hawaii Carpenters Trust Funds v. Waiola Carpenter Shop Inc., 823 F.2d 289 (9th Cir.1987); Northwest Administrator's Inc. v. Con Iverson Trucking Inc., 749 F.2d 1338, 1340 (9th Cir.1984). As discussed above, the other predicates to the imposition of successor liability are as follows: to hold a successor liable we must find that there exist sufficient indicia of continuity between the two companies and that the successor firm had notice of its predecessor’s liability. Continuity of operations is easily established here. Artistic employed substantially all of Pontiac’s workforce and it appears, supervisory personnel as well. It used Pontiac's plant, machinery, and equipment and manufactured the same products. Work orders not completed by Pontiac prior to its termination were completed by Artistic. Artistic also agreed to honor warranty claims for goods sold by Pontiac. Finally, both Pontiac’s Vice President of Finance, Larry Bork, and Vice President of Manufacturing, Richard Mahon, stayed on in the same positions under Artistic’s management. These facts establish adequate continuity of operations for the purpose of imposing successor liability. The question of whether Artistic had prior notice of Pontiac’s liability is more difficult. Notice can be proven not only by pointing to facts that conclusively demonstrate actual knowledge, but also by presenting evidence that allows the fact finder to imply knowledge from the circumstances. See Golden State, 414 U.S. at 173, 94 S.Ct. at 419; NLRB v. South Harlan Coal Inc., 844 F.2d 380, 385 (6th Cir.1988). In Golden State, for example, the Supreme Court affirmed the finding of the Board and the Court of Appeals that the presence at negotiations between the two companies of an individual who was the predecessor’s manager and became the successor’s general manager supported the inference that the successor had knowledge of the predecessor’s unfair labor practice. And in South Harlan Coal, the Sixth Circuit took note of the proximity of the predecessor’s and successor’s business operations, the extensive news coverage of the union activity at issue, and the successor’s lack of credibility in affirming the Board’s decision inferring knowledge of an unfair labor practice. The only evidence in the record that speaks to the question of notice is Larry Bork’s deposition testimony. Bork, currently Artistic’s Vice President of Finance, indicated that during his tenure at Pontiac, he had knowledge of the pension contribution liability. However, it is unclear from Bork’s testimony whether as a Pontiac employee he informed Artistic of the liability before the sale took place. The record does show that Bork had at least one meeting and a number of phone conversations with Artistic officials before the acquisition took place, and that “questions about the company” were discussed, but the substance of those communications is unknown. Bork also discussed with Artistic’s stockholders his own future employment arrangement and other staff hiring matters. These facts do not conclusively prove actual knowledge, but they might support a reasonable inference that members of Artistic’s control group had knowledge of Pontiac’s contribution liability. Whether the facts actually do or do not support such an inference is a question best resolved in the district court after the presentation and evaluation of further evidence. Given the current state of the record, the presence of this factual dispute renders summary judgment at this juncture for either party inappropriate. We therefore reverse the district court’s decision to grant summary judgment to Artistic, affirm the court’s denial of summary judgment to the Fund, and remand for further proceedings consistent with this opinion. . The Golden State Court distinguished NLRB v. Burns International Security Services Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), a case cited by both Artistic and the district court for the proposition that the imposition of successor liability in this case would be inappropriate. In Burns, decided a year before Golden State, the Court ruled that successor employers could not'be bound to the terms of a predecessor’s collective bargaining agreement. The Court found that the NLRA’s goal of facilitating free and unfettered collective bargaining would be significantly undermined if successor employers were held to the terms of their predecessor’s collective bargaining agreement. 406 U.S. at 281-84, 92 S.Ct. at 1579-80. The Golden State court noted, however, that Burns did not prevent the imposition of successor liability for an unfair labor practice violation. 414 U.S. at 184-85, 94 S.Ct. at 425-26. Rather, the imposition of unfair labor practice liability in Golden State was, and the imposition of delinquent contribution liability here would be, more in the nature of a discrete, one-time corrective than a constant damper on a successor’s ability to bargain over the wide variety of issues typically at stake in the collective bargaining process. . Other Circuits have similarly extended successor liability to Title VII violations. See, e.g., Trujillo v. Longhorn Mfg. Co. Inc., 694 F.2d 221 (10th Cir.1982); EEOC v. MacMillan Bloedel Containers Inc., 503 F.2d 1086 (6th Cir.1974). . Pub.L. 96-364, 94 Stat. 1295, 29 U.S.C. § 1132 et seq. .The Fund argues that the failure to pay pension fund obligations constitutes an unfair labor practice, and hence, successor liability can be imposed directly under Golden State. To our knowledge, however, unfair labor practice charges have not been brought by the NLRB against Pontiac or Artistic. This court, of course, cannot make unfair labor practice findings in the first instance. This avenue of argument is thus closed. . Section 1145 provides that "[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement."

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

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

INTERNATIONAL LONGSHOREMEN’S & WAREHOUSEMEN’S UNION et al. v. JUNEAU SPRUCE CORP. No. 280. Argued December 6, 1951. Decided January 7, 1952. Richard Gladstein and Allan Brotsky argued the cause and filed a brief for netitioners. Manley B. Strayer argued the cause for respondent. With him on thé brief was Charles A. Hart. Solicitor General Perlman, David P. Findling, Mozart G. Ratner and Dominick L. Manoli filed a memorandum for the National Labor Relations Board, as amicus curiae. Mr. Justice Douglas delivered the opinion of the Court. In the spring of 1947, respondent purchased certain properties for the manufacture of lumber, including a sawmill at Juneau, Alaska, and commenced operations. Shortly thereafter, the International Woodworkers of America requested negotiation of' a contract with respondent, claiming representation of a majority of respondent’s employees. A bargaining agreement was signed with that union on November 3, 1947. Respondent decided to ship its lumber to ports in Canada and the United States and acquired barges for that purpose. Respondent’s policy was to utilize its own employees to load its barges. In October, 1947, petitioner, Local 16 of the International Longshoremen’s and Ware-housemen’s Union, asked that its men be allowed to load respondent’s barges. This request was denied. ' The request was repeated the following spring and was again denied. Petitioner Local established a picket line at respondent’s plant bn April 10, 1948. Most of respondent’s employees refused to cross the picket line and the mill shut down. The mill reopened on July 19, 1948, but picketing continued. Petitioner International notified' its Canadian locals that- respondent’s products were unfair. Respondent was unable to unload its barges in Canada or Puget Sound due to the refusal of longshoremen to work respondent’s vessels. - On October 11, 1948, the mill again closed down due to .lack of storage facilities to. hold the accumulating lumber. Picketing was not discontinued until May 9, 1949. On August 3,- 1948, respondent filed a charge against Local 16 alleging violations of § 8 (b) (4) (D) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 141, 29 U. S. C. (Supp. II) §§ 151, 158, on the ground that the Local attempted to induce assignment of particular work to its members. Following a hearing pursuant to § 10 (k) of the Act, the National Labor Relations Board determined on April 1, 1949, that longshoremen represented by Local 16 were not entitled to the barge-loading work. 82 N. L. R. B. 650. In the meantime, respondent had filed suit for damages against both the Local and the International under § 303 (a) (4) of the Labor Management Relations Act. Respondent asked,- pursuant to an amended complaint, for damages from April 10, 1948, to April 27, 1949. After trial before a jury, respondent was awarded.a judgment of $750,000 plus, costs. The Court of Appeals for the Ninth Circuit affirmed. 189 P. 2d 177. The case is here on certiorari. 342 U. S. 857. First. This suit was brought in the District Court for the Territory of Alaska. And the question which lies at the threshold of the case is whether that court is a “district court of the United States” within the meaning of § 303 (b) of the Act. That court has the jurisdiction of district courts of the United States by the law which created it. 48 U. S. C. § 101. Yet vesting it with that jurisdiction does not necessarily make it a district court for all the varied functions of the Judicial Code. See Reynolds v. United States, 98 U. S. 145, 154; McAllister v. United States, 141 U. S. 174; United States v. Bur roughs, 289 U. S. 159, 163; Mookini v. United States, 303 U. S. 201, 205. The words “district court of the United States” commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. See Mookini v. United States, supra, p. 205. But we think that in the context of this legislation they are .used to describe courts which exercise the jurisdiction of district courts. The jurisdiction conferred by § 303 (b) is made “subject to the limitations and provisions of section 301.” Section 301 lifts the limitations governing district courts as respects the amount in controversy and the citizenship of the parties; it defines the capacity of labor unions to sue or be sued; it restricts the enforceability of a money judgment against a labor union to its assets; and it specifies the jurisdiction of a district court over a union and defines the service of process. Congress was here concerned with reshaping labor-management legal relations; and it was taking precise steps to declared and announced objectives. One of those was the elimination of obstacles to suits in the federal courts. It revised the jurisdictional requirements for suits in the district courts, requirements as applicable to the trial court as to any court which in the technical sense is a district court of the United States. The Act extends in its full sweep to Alaska as well as to the states and the other territories. The trial court is indeed the only court in Alaska to which recourse could be had. Even if it were not a “district court” within the meaning of § 303 (b), it plainly would be “any other court” for purposes of that section. As such other court it might or might not have jurisdiction over this dispute ■depending on aspects of territorial law which we have not examined. But since Congress lifted the restrictive requirements which might preclude suit in courts having the district courts’ jurisdiction, we think it is more consonant with the uniform, national policy of the Act to hold that those restrictions were lifted as respects all courts upon which the jurisdiction of a district court has been conferred. That reading of the Act does not, to be sure, take the words “district court of the United States” in their historic, technical sense. But literalness is no sure touchstone of legislative purpose. The purpose here is more closely approximated, we believe, by giving the historic phrase a looser, more liberal meaning in the special context of this legislation. Second. The main contention of petitioners in the case is that § 303 (a) (4) read in light of § 8 (b) (4) (D) renders illegal only such picketing as takes place after and in the face of a determination by the Board that the acts complained of were unfair labor practices. If that conclusion is warranted, there must be a reversal here since the damages reflected in the present judgment for the most part accrued prior to the decision of the Board, under § 10 (k) of the Act, that petitioners had committed an unfair labor practice within the meaning of §8 (b)(4)(D): Section 8 (b) (4) (D) and § 303 (a) (4) are substantially identical in the conduct condemned. Section 8 (b) (4) (D) gives rise to an administrative finding; § 303 (a) (4), to a judgment for damages. The fact that the two sections have an identity of language and yet specify two different remedies is strong confirmation of our conclusion that the remedies provided were to be independent of each other. Certainly there is nothing in the language of § 303 (a) (4) which makes its remedy dependent on any prior administrative determination that an unfair labor practice has been committed. Rather, the opposite seems to be true. For the jurisdictional disputes proscribed by § 303 (a) (4) are rendered unlawful “for the purposes of this section only,” thus setting apart for private redress, acts which might also be subjected to the administrative process. The fact that the Board must first attempt to resolve the dispute by means of a § 10 (k) determination before it can move under § 10 (b) and (c) for a cease-and desist order is only a limitation on administrative power, as is the provision in § 10 (k) that upon compliance “with the decision of the¿ Board or upon such voluntary adjustment of the dispute,” the charge shall be dismissed. These provisions, limiting and curtailing the administrative power, find no counterpart in the provision for private redress contained in § 303 (a) (4). Section 303 (a) (4) as explained by Senator Taft, its author, “retains simply a right of suit for damages against any labor organization which undertakes a secondary boycott or a jurisdictional strike.” The right to sue in the courts is clear, provided the pressure on the employer falls in the prescribed category which, so far as material here, is. forcing or requiring him to assign particular work “to employees in a particular labor organization” rather than to employees “in another labor organization” or in another “class.” Here the jurisdictional row was between the outside union and the inside union. The fact that the union of mill employees temporarily.acceded to the claim of the outside group did not withdraw" the dispute from the category of jurisdictional disputes condemned by § 303 (a) (4). Petitioners, representing one union and employing outside labor, were trying to get the work which another union, employing mill labor, had. That competition for work at the expense of employers has been condemned by the Act. Whether that condemnation was wise, or unwise is not our concern. It represents national policy which has both administrative and conventional legal sanctions. Affirmed. Section 8 (b) (4) (D) provides: “(b) It shall be an unfair labor practice for a labor organization or its agents— “(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or-a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: ... (D) forcing or requiring any employer to assign particular work to employees in a particular iabor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his -own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act; . . . .” Section 303 (a)(4) provides: “(a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a. concerted refusal in the course of their employment to use, manufacture, process, transport, or other wise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is— “(4) forcing or requiring any employer to assign particular work /to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class unless such employer is failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work. Nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under the National Labor Relations Act.” Section 303 (b) provides: “Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) may sue therefor in any district court- of the United States subject to the limitations and provisions of section 301 hereof without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.” The new Judicial Code creates judicial districts for the District of Columbia, 28 U. S. C. § 88; for Hawaii, 28 U. S. C. § 91; and for Puerto Rico, 28 U. S. C. § 119; but none for the Canal Zone, the Virgin Islands, or for Alaska. See note 3, supra. Section 301 provides: “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. “ (b) Any'labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity .and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a .district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. “(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in .any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. “(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. “(e) For the purposes of this, section, in determining whether any person is acting as an 'agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently rati-, fied shall not be controlling.” Section 2 (6) defines commerce to include trade, etc., between a state and a territory or within any territory. See notes 1 and 2, supra. Section 10 (k) provides: “Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.” The administrative finding under § 10 (k) can be the basis for a cease and desist order under § 10 (b) and (c). A cease and desist order was issued in the present dispute. 90 N. L. R. B. 1753. Juneau Spruce Corp., 82 N. L. R. B. 650, 655. 93 Cong. Rec. 4858; 2 Legislative History of the Labor Management Relations Act, 1947, p. 1371.

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?

FRIO ICE, S.A., Plaintiff-Appellant, v. SUNFRUIT, INC., John R. Plana, Jr., Oswaldo P. Rodriguez, Defendants-Appellees. No. 89-6258. United States Court of Appeals, Eleventh Circuit. Nov. 30, 1990. Stephen P. McCarron, Steven A. Rafkin, Silver Spring, Md., Guy Motzer, Miami, Fla., for plaintiff-appellant. Ellen R. Hornstein, U.S. Dept, of Agriculture, Washington, D.C., amicus curiae, for plaintiff-appellant. Howard M. Camerik, Glenn E. Goldstein, Miami, Fla., for defendants-appellees. Before FAY and JOHNSON, Circuit Judges, and ALLGOOD , Senior District Judge. Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation. JOHNSON, Circuit Judge: Plaintiff Frio Ice, S.A. (“the plaintiff”) appeals the district court’s Memorandum Order holding that the court did not have jurisdiction under the Perishable Agricultural Commodities Act (“PACA”) to entertain injunctive actions by private parties to enforce payment from a statutory trust established under Section 5(c) of PACA, 7 U.S.C.A. § 499e(c) (West Supp.1990). I. STATEMENT OF THE CASE A. Background Facts Congress enacted PACA in 1930 to encourage fair trading practices in the marketing of perishable commodities. H.R. Rep. No. 543, 98th Cong., 2d Sess. 3, re printed in 1984 U.S.Code Cong. & Admin. News 405, 406. Under PACA, the Secretary of Agriculture (“the Secretary”) must license all commission merchants, dealers, and brokers (hereinafter collectively “produce dealers”) of perishable agricultural commodities placed in interstate or international commerce. 7 U.S.C.A. § 499c (West 1980). PACA also requires produce dealers to make “full payment promptly” for any produce they purchase. 7 U.S.C.A. § 499b(4) (West Supp.1990). In the early 1980s, Congress determined that the increase in non-payment and delinquent payment by produce dealers threatened the financial stability of produce growers. Congress was particularly troubled by the practice by which produce dealers granted their lenders security interests in the produce on which they had accepted delivery even though the dealers had not yet paid for these commodities. See 7 U.S. C.A. § 499e(c)(l) (West Supp.1990). In response, Congress amended PACA in 1984 to establish a nonsegregated statutory trust under which a produce dealer holds its produce-related assets as a fiduciary until full payment is made to the produce seller. 7 U.S.C.A. § 499e(c) (West Supp.1990). The trust automatically arises in favor of a produce seller upon delivery of produce. 7 U.S.C.A. § 499e(c)(2) (West Supp.1990). An unpaid seller loses the benefits of the trust unless it files written notice of its intent to preserve its rights with the United States Department of Agriculture and the produce dealer. 7 U.S.C.A. § 499e(c)(3) (West Supp.1990). For produce sellers, a principal benefit of the trust is that they are placed first in line among creditors for all produce-related assets if the produce dealer declares bankruptcy. During December 1988 and January 1989, the plaintiff supplied nineteen shipments of asparagus to the defendant, Sun-fruit, Inc. (“Sunfruit”). The plaintiff served and filed the notices of intent required to preserve its trust benefits. Sun-fruit failed to pay for the produce. B. Procedural History On June 16, 1989, the plaintiff filed a complaint against Sunfruit, John R. Plana, Jr., and Oswaldo P. Rodriguez to enforce payment of $229,831.13 from the trust. The plaintiff filed a motion for a preliminary injunction requesting that Sunfruit segregate this amount in a court-supervised trust account pending resolution of the suit. The plaintiff also sought a court order requiring Plana and Rodriguez to fund any shortfall not funded by Sunfruit. On July 7, 1989, after a hearing on the motion, the district court found that the plaintiff was a trust beneficiary of Sunfruit in the amount of $229,831.14. It ordered Sunfruit to segregate that amount in a bank account under court supervision during the pendency of the action. The court withheld its ruling on the plaintiffs motion that it order Plana and Rodriguez to fund the trust to the extent there was any shortfall not funded by Sunfruit until the parties briefed the issue. On November 6, 1989, the district court, sua sponte, vacated its preliminary injunction. Frio Ice, S.A. v. Sunfruit, Inc., 724 F.Supp. 1373 (S.D.Fla.1989). The court concluded that it did not have jurisdiction under Section 499e(c) to entertain injunc-tive actions by private parties. Id. at 1378. It also decided that, even if it had such jurisdiction, it could not order Sunfruit to segregate trust assets through the establishment of a separate trust account under court supervision. Id. at 1376-77. The district court subsequently denied the plaintiff’s motion to reinstate the injunction pending reconsideration, and this appeal followed. On this appeal, we consider the following three issues: (1) whether federal courts have jurisdiction to entertain injunc-tive actions by trust beneficiaries to prevent dissipation of a trust established pursuant to 7 U.S.C.A. § 499e(c) (West Supp. 1990); (2) if federal courts have such jurisdiction, whether they have the authority to order segregation of the assets in the trust to implement an injunction to prevent dissipation; and (3) assuming federal courts have such jurisdiction, whether the district court is precluded from issuing a preliminary injunction against Rodriguez. II. ANALYSIS The interpretation of a statute by a district court is subject to de novo review by this Court. Centel Cable Television Co. of Fla. v. Thos. J. White Development Corp., 902 F.2d 905, 908 (11th Cir.1990). A. Jurisdiction Over Injunctive Actions by Private Parties Absent a clear congressional command to the contrary, federal courts retain their authority to issue injunctive relief in actions over which they have jurisdiction. Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 2559, 61 L.Ed.2d 176 (1978); see also Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”); Huie v. Bowen, 788 F.2d 698, 704 (11th Cir.1986). This Court resolves any ambiguities in the statute in favor of the interpretation that permits federal courts to exercise fully their traditional equity powers. Huie, 788 F.2d at 705 (citing Hecht Co. v. Bowles, 321 U.S. 321, 330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944)). Section 499e(c)(4) of Title 7 states: The several district courts of the United States are vested with jurisdiction specifically to entertain (i) actions by trust beneficiaries to enforce payment from the trust, and (ii) actions by the Secretary to prevent and restrain dissipation of the trust. 7 U.S.C.A. § 499e(c)(4) (West Supp.1990). In analyzing its jurisdictional authority under the statute, the district court stated that jurisdictional provisions of federal statutes are to be strictly construed. Frio Ice, 724 F.Supp. at 1378 (citing Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1040 (D.C.Cir.1986); In re Carter, 618 F.2d 1093, 1098 (5th Cir.1980)). The district court found that Section 499e(c)(4) granted it jurisdiction to consider injunctive actions only when such actions are brought by the Secretary. Id. The court claimed support for this reading based on the statute’s language and on its legislative history, which specifically discussed injunctive actions only in relation to actions by the Secretary. Id.; See H.R.Rep. No. 543, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S.Code Cong. 6 Admin.News 405, 410. The plaintiff contends that the district court has read Section 499e(c)(4) erroneously. Specifically, it argues that the district court applied the wrong test to determine whether Congress limited the authority of federal courts to grant injunctive relief to trust beneficiaries. It claims that the proper test focuses on whether the statute or its legislative history clearly states that Congress intended to preclude such relief to private parties. Contrary to the district court’s conclusion, neither Section 499e(c)(4) nor PACA’s legislative history directly or inferentially restricts the district court’s jurisdiction to entertain injunctive suits by trust beneficiaries. On its face, the statute does not limit a federal court’s jurisdiction over actions by private parties. Subsection (i) explicitly grants district courts the jurisdiction to entertain “actions by trust beneficiaries to enforce payment from the trust.” 7 U.S.C.A. § 499e(c)(4)(i) (West Supp.1990). Although the statute does not define the term “actions,” since the merger of law and equity, there is only one form of action, a civil action. See Fed.R.Civ.P. 2. By using the term “actions” without any restrictions, Congress thus intended the federal courts to entertain claims for both legal and equitable relief by trust beneficiaries. Moreover, the language of subsection (ii) does not change this conclusion. Rather, subsection (ii) may be read as simply granting to the Secretary standing to bring Section 499e(c)(4) suits to prevent dissipation of trust assets. Finally, this Court resolves ambiguities in favor of the interpretation that permits federal courts to exercise fully their traditional equity powers. Huie, 788 F.2d at 705. Thus, the language of the statute supports the conclusion that the district court has jurisdiction to entertain injunctive actions by private parties. The district court noted correctly that the legislative history discusses injunctive suits only in relation to actions by the Secretary. The legislative history states that upon discovering that a produce dealer is in financial difficulty, the Secretary, acting on behalf of the trust beneficiaries, should seek an injunction to freeze the trust assets until the Secretary has advised the beneficiaries of the situation, thereby giving them the opportunity to protect their interests. Id. at 411. Congress gave this authority to the Secretary in order to protect trust beneficiaries, who frequently cannot protect themselves because they lack the necessary information. Id. at 410-11. Thus, when the legislative history is read in its entirety, it is clear that Congress is discussing only how it foresees the Secretary fulfilling his responsibilities under the statute. There is no language in the legislative history that limits the remedies available to trust beneficiaries. See H.Rep. No. 543, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 410. Neither the statute nor the legislative history contains a clear congressional command limiting the remedies available to private beneficiaries. Accordingly, we find the district court’s interpretation of Section 499e(c)(4), as limiting injunctive relief to suits brought by the Secretary, to be incorrect. B. The District Court’s Authority to Order Segregation of Trust Assets The district court also held that Section 499e(c) did not authorize federal courts to order PACA defendants to create segregated trust accounts in order to enforce payments to trust beneficiaries. Frio Ice, 724 F.Supp. at 1376-77. The district court relied on the decisions in Fresh Western Marketing v. M & L Food Center, 707 F.Supp. 515, 516 (S.D.Fla.1989); DeBruyn Produce Co. v. Victory Foods, Inc., 674 F.Supp. 1405 (E.D.Mo.1987). The district court’s reliance on DeBruyn is mistaken. The DeBruyn court adopted the wrong test for determining the scope of a federal court’s authority to fashion equitable relief. The DeBruyn court refused to segregate trust assets into a court-supervised account because it could find no positive grant of authority to do so from either the statute or the legislative history. Id. at 1409. As noted in 11(A) supra, the proper test for finding restrictions on the equitable powers of federal courts is a clear congressional command to preclude such relief. Califano, 442 U.S. at 705, 99 S.Ct. at 2559. No such restriction can be found in the statute or its legislative history. It is true that Congress sought to minimize the burden of the PACA trust on produce dealers. That is why the statute permits a PACA trust to exist as a nonsegregated floating trust that permitted commingling of assets. H.Rep. No. 543, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 407; See also 7 C.F.R. § 46.46(c). At the same time, the central purpose of Section 499e(c) is to ensure payment to trust beneficiaries. Segregation often may be the only means by which a federal court can prevent dissipation. H.Rep. No. 543, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 407. The legislative history noted that once the trust is dissipated it is almost impossible for a beneficiary to obtain recovery. Id. at 411. Congress recognized that dissipation of trust assets would undermine PACA and made such dissipation a violation of the statute. 7 U.S.C.A. § 499b(4) (West Supp.1990). Thus, preventing dissipation of the trust is a key purpose of PACA. Segregation of trust assets is an important tool for achieving that purpose. For these reasons, the district court’s finding that it did not have the authority to segregate trust assets is erroneous. In the instant litigation, however, the plaintiff sought only the segregation of sufficient trust funds to cover its claims against Sunfruit. Segregation of only part of the trust solely to accommodate a beneficiary’s singular interest is inappropriate because the statutory trust exists for the benefit of all unpaid produce suppliers. See 7 U.S.C.A. § 499e(c)(2) (West Supp. 1990). Upon a showing that the trust is being dissipated or threatened with dissipation, a district court should require the PACA debtor to escrow its proceeds from produce sales, identify its receivables, and inventory its assets. It should then require the PACA debtor to separate and maintain these produce-related assets as the PACA trust for the benefit of all unpaid sellers having a bona fide claim. 7 U.S.C.A. § 499e(c)(3). Each beneficiary would then be entitled to its pro rata share. C. Extension of the Preliminary Injunction to Rodriguez The issuance of a preliminary injunction falls within the sound discretion of the district court. Cunningham v. Adams, 808 F.2d 815, 819 (11th Cir.1987). A district court should grant a preliminary injunction only if the moving party clearly shows: (1) a substantial likelihood that it will succeed on the merits; (2) that it will suffer irreparable harm unless the injunction issues; (3) that the potential injury outweighs possible harm to the opposing party; and, (4) that the injunction would not be adverse to the public interest. Id. In the proceeding below, the district court vacated its preliminary injunction against Sunfruit and denied the plaintiff’s request to extend the injunction to Plana and Rodriguez. Rodriguez argues that even if the district court erred regarding its equity powers, the plaintiff is not entitled to a preliminary injunction against Rodriguez personally. He contends that at the hearing on July 7,1989, after which the district court issued the injunction, the plaintiff failed to establish likelihood of success on the merits that Rodriguez was personally liable for the trust funds or that he possessed these funds. Because the district court ruled that it did not have jurisdiction to issue an injunction in the instant case, it made no findings on any of these factors regarding the personal liability of Rodriguez for the trust funds. Accordingly, it would be premature for this Court to determine this issue at this time. III. CONCLUSION For the foregoing reasons, we REVERSE the district court’s Memorandum Order and REMAND with instructions to determine whether the trust is being dissipated or threatened with dissipation, and, if so, to order Sunfruit to escrow its proceeds from produce sales, identify its receivables, and inventory its assets. These assets should then be segregated into a court-supervised trust account on a pro rata basis to all unpaid sellers having bona fide claims. Finally, we REMAND to the sound discretion of the district court the determination of whether to extend the preliminary injunction to Rodriguez. . The Code of Federal Regulations defines "full payment promptly" as payment within ten days after acceptance of regulated produce, unless the parties execute a specific written agreement to the contrary at the time of the sale. 7 C.F.R. § 46.2(aa) (1990). . The parties disagreed over the bill. The plaintiff claimed Sunfruit owed it $229,831.13. Sun-fruit argued that it only owed $79,460.94 and offered to pay that sum in full and final settlement. The plaintiff rejected this offer. . Plana is the president of Sunfruit. Rodriguez is a 35 percent shareholder in Sunfruit and may be an officer. Only Rodriguez submitted an appellee's brief. . The Department of Agriculture, in its brief as amicus curiae, argues that the district court erred for essentially the same reasons. . Sunfruit contends that this Court should look to section 198 of the Restatement (Second) of the Law of Trusts (1959) to glean Congress’ intent to limit trust beneficiaries to legal remedies. Section 198 states that a trust beneficiary "can maintain an action at law ... to enforce payment.” Sunfruit argues that by employing the language "to enforce payment" in the statute Congress intended to limit trust beneficiaries to legal remedies. This argument is undercut by the lack of any specific words of limitations in the statute itself. The statute refers to “action” not “action at law.” 7 U.S.C.A. § 499e(c)(4) (West Supp.1990). Moreover, comment a to section 198 recognizes that beneficiaries retain equitable remedies against the trustee. . Sunfruit's claim that the caselaw interpreting jurisdictional grants in other statutes supports the district court’s interpretation of Section 499e(c)(4) is not persuasive. These statutes are easily distinguishable from the PACA because they contain either express words of limitation or detailed lists of remedies. For example, in the Rail Passenger Service Act of 1970, 45 U.S. C.A. § 501, et seq., cited by Sunfruit, Congress expressly precluded private employees from bringing suits other than those involving labor agreements and the Supreme Court so held in National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Moreover, in the Privacy Act of 1974, 5 U.S.C.A. § 552a(g), also cited by Sunfruit, Congress created a detailed list of remedies for particular violations. This Court found that the Privacy Act limited the remedies available to those listed in Section 552a(g). See Edison v. Department of the Army, 672 F.2d 840 (11th Cir.1982). By detailing an explicit list of remedies for specific violations, the Privacy Act is precisely the type of statute that creates “necessary and inescapable inference” that remedies are limited. See Porter, 328 U.S. at 398, 66 S.Ct. at 1089. . The district court in Fresh Western, 707 F.Supp. at 515, relied solely on DeBruyn without explanation for its holding that it could not order the segregation of trust assets. . By requiring trust beneficiaries to show the actual dissipation or the threat of dissipation of the PACA trust before ordering segregation, district courts will avoid unduly burdening those produce beneficiaries who have properly maintained the trust.

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.

Maxwell RUBIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 13598. United States Court of Appeals Seventh Circuit. June 28, 1962. . William P. Rosenthal, Leonard Schan-field, Chicago, Ill., for appellant. Louis F. Oberdorfer, Asst. Atty. Gen., Giora Ben-Horin, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., James P. O’Brien, U. S. Atty., Chicago, Ill., Lee A. Jackson, Harry Baum, Attys., Dept, of Justice, Washington, D. C., for appellee. Before DUFFY, KILEY, and SWYGERT, Circuit Judges. SWYGERT, Circuit Judge. Taxpayer, Maxwell Rubin, brought this action in the District Court to recover an alleged overpayment of federal income taxes, plus interest, in the amount of $21,232.22, arising from a disallowance by the Commissioner of Internal Revenue of a deduction for interest claimed by taxpayer in 1953. The court found that the transaction in question did not in substance create an indebtedness and that no interest was paid by taxpayer. Accordingly, the court entered judgment dismissing taxpayer’s complaint. Taxpayer appeals from this judgment. The facts found by the District Court are substantially as follows: On May 27, 1953 taxpayer placed a purchase order with Livingstone and Company of Boston, Massachusetts for $5,000,000 face amount United States Treasury 1%% notes maturing March 15, 1954. Subsequently, taxpayer received a confirmation slip from Livingstone purporting to show the purchase by Livingstone for taxpayer’s account of the ordered securities at a principal purchase price of $4,960,937.50, plus accrued interest of $14,011.55, or a total purchase price of $4,974,949.05. On May 28, 1953 taxpayer executed a check for $7,500 to the order of Livingstone as part payment for the securities. To finance the remainder of the purchase price he executed a non-recourse promissory note on May 29, 1953 to Seaboard Investment Associates, Inc. of Boston, Massachusetts. The note was in the amount of $4,967,449.05 and the. maturity date was March 15, 1954. It recited an interest rate of 2%6% per annum, further that $5,000,000 United States Treasury 1%% notes due March 15, 1954 had been deposited as collateral, and it gave Seaboard a lien on the securities for the face amount of the note. The note also gave Seaboard “the right to hypothecate and use the securities pledged for any purpose while so pledged,” and provided that taxpayer was not to “be called upon nor be liable to furnish additional collateral.” Under the terms of the note, taxpayer had the right to pay the note before maturity, and in that event, he was to be charged interest at the rate of % % per annum from date of payment to maturity. On May 29, 1953 taxpayer forwarded his $7,500 check to Livingstone together with a letter requesting Livingstone to deliver to Seaboard $5,000,000 face amount United States Treasury 1%% notes as security for the loan. On the same day taxpayer sent Seaboard the promissory note together with a letter requesting Seaboard to receive $5,000,-000 face amount United States Treasury 1%% notes from Livingstone and requesting it to disburse the proceeds to Livingstone to complete payment for the securities. On May 27, 1953 Seaboard, for the ostensible purpose of obtaining the funds to make the loan to taxpayer, placed a short sale order with Livingstone for $5,000,000 face amount United States Treasury 1%% notes maturing March 15,1954. Livingstone executed taxpayer’s purchase order by a purchase from C. J. Devine and Company. Livingstone executed Seaboard’s short sale order by a sale to Devine. On May 29, 1953 delivery on taxpayer’s purchase order and on Seaboard’s short sale order was made at the Guaranty Trust Company of New York. On the same day Guaranty charged the account of Livingstone in the amount of the purhase price on receipt of the securities, and Livingstone satisfied Seaboard’s delivery commitment on the short sale by redelivering to De-vine the same securities. Guaranty then credited Livingstone’s account with the identical amount it had charged his account. No securities were, actually delivered by Livingstone to Seaboard for taxpayer's account, nor did Livingstone actually pay to Seaboard any money on Seaboard’s short sale. Moreover, Seaboard did not furnish Livingstone any money to cover taxpayer’s purchase order. Seaboard had a running account with Livingstone and the transaction was handled by debits and credits to this account. On December 7, 1953 taxpayer placed a sale order with Livingstone for $5,-000,000 face amount United States Treasury 1%% notes maturing March 15, 1954. Livingstone sent taxpayer a confirmation of sale at a principal price of $5,001,562.50, plus accrued interest of $15,763.12, or a total sale price of $5,-017,325.62. On the same date, taxpayer sent a letter to Livingstone, requesting Livingstone to receive from Seaboard $5,000,000 United States Treasury 1%% notes upon Livingstone’s payment to Seaboard of $5,017,325.62. He also sent a letter to Seaboard, requesting Seaboard to deliver to Livingstone $5,000,000 United States Treasury notes upon Livingstone’s payment of the $5,017,325.62, and requesting that Seaboard apply this amount “against my loan and remit to me the excess proceeds.” On the same date, Seaboard, in order to cover its short position, placed a purchase order with Livingstone for $5,000,000 United States Treasury 1%% notes maturing March 15, 1954. The purchase price was the same amount that taxpayer received for his sale of the securities. No securities were actually delivered by Livingstone on the execution of either the sale or purchase order; instead Livingstone balanced the orders by debits and credits to Seaboard’s account with him. Subsequently taxpayer received a settlement statement from Seaboard showing the following computation: Principal Interest Purchase at 99 7/32 $4,960,937.50 Accrued interest 14,011.55 Total cost 4,974,949.05 Deposit paid 7,500.00 Amount of note 4,967,449.05 Interest 5/29/53-9/15/53 $ 38,540.95 Accrued interest credited 9/15/53 14,011.55 Interest 9/15/53-12/7/53 4,953,437.60 29,264.91 Int. at y^fo from 12/7/53 to 3/15/54 3,371.31 $ 71,177.17 Credit Coupon 9/15/53 $ 34,375.00 Less accrued interest 14,011.55 $20,363.45 Accrued interest to 12/7/53 15,763.12 36,126.57 Balance of interest due 35,050.60 Principal due 4,953,437.50 Total amount due 4,988,488.10 Proceeds of sale at 100 1/3Í 6,001,562.50 Balance due customer $ 13,074.40 With the settlement statement taxpayer received a check from Seaboard for $13,074.40. In his income tax return for the calendar year 1953, taxpayer claimed an interest deduction of $77,177.17 paid to Seaboard. He also reported a long term capital gain of $40,625.00 from “U. S. Treasury 1% Notes,” and interest income of $36,126.57 from “U. S. Treasury Notes.” On audit of this return, the Commissioner disallowed the claimed interest expense deduction and eliminated the two items of reported income. The resulting deficiency of $17,633.13 was assessed and collected with interest, and it is this amount for which taxpayer seeks a refund. The issue is whether the District Court erred in finding that the transaction above set out did not in substance create a valid indebtedness between taxpayer and Seaboard. If there was no valid indebtedness, then taxpayer was not entitled to a deduction for interest under Section 23(b) of the 1939 Code. In determining whether the purported indebtedness was valid, it would serve no purpose to examine each step in the purported acquisition and sale by taxpayer of the securities. The government conceded in oral argument that taken one by one each step may be in accord with normal business activity. Many real and substantial business transactions may involve some steps similar to the individual steps taken by taxpayer here. That is, in real transactions investors may borrow in order to make purchases of securities; brokers may hold securities as collateral and, if necessary, borrow the securities held as collateral in order to cover short sales; lenders may lend much more than their actual capital; non-recourse promissory notes may be given for borrowed money; and securities may change hands by debiting or crediting accounts rather than by actual delivery. Cf. MacRea v. Commissioner, 34 T.C. 20, affirmed 9 Cir., 294 F.2d 56. What we must decide is not whether the individual steps necessary to establish a formalistic debtor-creditor relationship were undertaken but whether, when the transaction is considered as a whole and realistically, there was in substance a debtor-creditor relationship. In other words, we must determine whether taxpayer paid interest for the “use or forbearance of money” actually loaned. Deputy v. DuPont, 308 U.S. 488, 498, 60 S.Ct. 363, 84 L.Ed. 416. The government contends the indebtedness was not real and that this suit involves the same question resolved adversely to other taxpayers in a series of recent cases which denied claimed deductions for interest on purported indebted-nesses arising from transactions very similar if not identical to the case at bar. Among the cases cited by the government are: MacRae v. Commissioner, supra; Lynch v. Commissioner, 2 Cir., 273 F.2d 867; Becker v. Commissioner, 2 Cir., 277 F.2d 146; and Goodstein v. Commissioner, 1 Cir., 267 F.2d 127. In all of these cases except MacRae, Eli Livingstone was the broker who handled the securities transactions, and in Becker, Seaboard was the finance company. The government maintains that the underlying objectives in all the cases were to create, for high bracket taxpayers, large interest deductions without either much actual cash outlay or financial risk on the part of the taxpayers. Taxpayer concedes that Goodstein, Lynch, and MacRae have held against the taxpayers in situations similar to that presented here, but contends that we must apply the test laid down by the Supreme Court in Knetsch v. United States, 364 U.S. 361, 365, 81 S.Ct. 132, 135, 5 L.Ed.2d 128, where the Court, quoting Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596, stated: “ ‘The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. * * * But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended.’ ” Knetsch involved claimed interest expense deductions similar to the instant case except that the questioned transaction concerned so-called purchases of insurance annuity contracts with borrowed funds secured by the annuity bonds. The Court held that the transaction was a sham since there was nothing of substance to be realized by Knetsch from the transaction beyond a tax deduction. Taxpayer maintains that in the instant case his beneficial interest was appreciably affected beyond a reduction in his taxes; that when he entered into the transaction, he had in mind the possibility of economic profit as well as tax advantages; and that he, in fact, realized a cash profit of $5,574.40 on his cash investment of $7,500. Consequently, taxpayer contends that since he realized something of substance, his interest expense should be allowed under the Knetsch holding as a legitimate tax deduction. We do not believe that Knetsch is inconsistent with the cases cited by the government. The question for decision in Knetsch was “whether what was done, apart from the tax motive, was the thing which the statute intended.” We believe that in the instant case there was, in substance, no genuine indebtedness regardless of taxpayer’s motives; that no interest was paid for the use or forbearance of money; and consequently, taxpayer should be allowed no interest expense deduction. Insofar as the purported loan was concerned, what transpired was nothing more than a “financial round robin.” Broome v. United States, 170 F.Supp. 613, 145 Ct.Cl. 298. (Broome also involved Eli Livingstone). In reality, this paper transaction setting up the “loan” did not involve any Treasury notes owned either by taxpayer or Seaboard or any real money represented by the “loan.” No payment was actually made by taxpayer to Livingstone for the Treasury notes except the $7,500; no Treasury notes were delivered by taxpayer or Livingstone to Seaboard for collateral. Moreover, no money was actually advanced to Livingstone by Seaboard to make up the balance of the purchase price of the Treasury notes, and no interest was actually paid Seaboard by taxpayer. We agree with the view expressed by the Tax Court in MacRae, 34 T.C. 20, 26 (decided after Knetsch), that: “The steps taken, each in itself a legitimate commercial operation, were here each mirror images, and add up to zero. The various purchases and sales, each real without the other, neutralize one another and fairly shout to the world the essential nullity of what was done. No purchase and no sale is essentially identical with what was done here, i. e., identical and virtually simultaneous purchases and sales. The choice of the more complicated and involved method of doing nothing had no purpose, save the erection of the facade upon which petitioners now seek to rely.” We do not believe the fact that in the instant case taxpayer made a profit on the transaction distinguishes it from MacRae. Due to the fluctuations in the market it was likely that taxpayer would either make or lose money on the transaction; but this was incidental to the chimerical character of the transaction. In MacRae and in Becker, the courts recognized that, while the transactions created no indebtedness, various legal rights and obligations were, created and consequently the taxpayers were allowed to deduct their out-of-pocket losses arising from the transactions. The holdings in those cases lend additional support to our view that taxpayer’s profit in the instant case is immaterial to the question before us. The losses suffered by the taxpayers in MacRae and Becker and their deductibility for income tax purposes did not prevent the courts in those cases from seeing through the transactions and concluding that no actual indebtednesses were created. Similarly, the profit of taxpayer in the instant case does not affect the question whether there was an actual indebtedness between him and Seaboard. The District Court correctly found that there was in substance no valid indebtedness between taxpayer and Seaboard and its judgment dismissing the complaint is affirmed. . The applicable statute, Section 23(b) of the Internal Revenue Code of 1939, 26 U.S.C. § 23(b), provides in part as follows: “§ 23. Deductions from gross income. In computing net income there shall be allowed as deductions: ***** “(b) Interest. All interest paid or accrued within the taxable year on indebtedness, * * . The individual proprietorship of M. Eli Livingstone, a self-styled investment banker. . According to the deposition of Harry N. Cushing, the president and treasurer of Seaboard, and a friend of Livingstone, the corporation was formed in 1952 or 1953. Its original capital contribution was $500 and its largest bank balance during the period of this transaction was estimated by Cushing to be $134,000. Seaboard’s office was in the law office of Cushing. It had no telephone listing and was not listed in the directory of business enterprises in Boston. . The deductions were allowed under 26 U.S.C. § 117(g) (2).

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

UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Bruce Lee BERTA, Defendants Appellant. Nos. 90-5413, 90-5432. United States Court of Appeals, Eleventh Circuit. July 8, 1992. Theodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, Fla., for Small. Kenneth P. Speiller, Miami, Fla., for Kimmons. Dexter W. Lehtinen, U.S. Atty., Frank H. Tamen, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for U.S. Henry M. Bugay, Miami, Fla., for Berta. Before FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. FAY, Circuit Judge: In this consolidated appeal, William Kim-mons, Howard Small, and Bruce Lee Berta challenge the district court’s application of the United States Sentencing Guidelines. In addition, Small and Kimmons raise claims concerning the validity of their convictions. The appellants were charged with conspiracy to affect commerce by robbery of armored car companies, in violation of 18 U.S.C. § 1951(a), and with related firearms offenses. A jury convicted Kim-mons and Small on all counts, and each received life imprisonment with additional concurrent sentences. In a separate proceeding, Berta pled guilty to all pertinent counts of the indictment and received a sentence of 123 months. We AFFIRM the challenged convictions and the sentences the district court imposed on each defendant. I. BACKGROUND On June 21, 1989, an anonymous source notified the Federal Bureau of Investigation (FBI) that certain unidentified individuals intended to rob an armored car near Bird Road in the southwest section of Miami. The robbery would be committed by men driving a white van with a boomerang-shaped television antenna on the roof. In response to the tip, the FBI established a loose surveillance of several financial institutions in the area. The FBI ascertained the routes and delivery stops of armored cars in the vicinity and watched for unusual activity. The next day, a white van, precisely matching the description provided by the anonymous source, deliberately drove through the parking lot of the Coral Gables Federal Savings & Loan on Bird Road moments after a Wells Fargo armored car had arrived to deliver cash to the bank. The van was registered to William Kimmons. Having been warned by the FBI of the threat, Wells Fargo had conspicuously placed extra guards with shotguns on their armored cars. The white van turned away. In mid afternoon, the van again drove through the parking lot of the bank. It then circled around the block of a second branch bank of Coral Gables Federal Savings & Loan. In the late afternoon, the FBI spotted the van at the Town & Country Mall, where Special Agent Robert Ka-minski observed Kimmons and Howard Small exit the van, Kimmons enter the mall, and Small stand in the parking lot of the CenTrust branch bank for roughly ten minutes. The following day, on June 23, 1989, Special Agent Peter Schopperle observed Small sitting at the entrance of the Las Americas shopping center on Coral Way. Small stayed at the mall for approximately five hours, intermittently surveying the traffic that entered the stores, making calls from a pay phone, walking to a turnpike overpass that overlooked the mall, and watching the arrivals of a Wells Fargo armored car at a Woolworth’s Department Store and a Brinks armored car at Ocean Bank and Flagler Bank mall branches. Over the next five weeks, the FBI observed the defendants repeatedly return to the Las Americas mall. On June 26th, Kimmons and Small arrived at the mall shortly before a Wells Fargo armored car delivered cash to a Woolworth’s store; they watched the delivery from the sidewalk of the mall, standing at opposite sides of the armored car. On July 3rd, Small and Kimmons again arrived at the mall, approximately one minute prior to the arrival of a Wells Fargo armored car. They watched the armored car’s activities at the mall and left approximately fifteen minutes after the car departed. On at least ten more occasions the defendants arrived at the mall solely for the purpose of observing armored cars, police patrols, mall traffic, the parking lot, and potential escape routes. The FBI tracked the defendants to a single story residence at 12350 S.W. 35th Street in Miami. Kimmons had rented the residence continuously since 1987. Bruce Lee Berta, who had joined Kimmons and Small in their activities at the mall, had subleased a room from Kimmons and lived at the residence with his girlfriend. In June and July of 1989, during the course of their joint activity, Small also used the house as his residence. On July 31, 1989, the FBI observed the defendants prepare for the actual robbery. The defendants had parked a Lincoln Town car in front of a Zayre store next to the door through which a Loomis armored car messenger entered and left with cash. At 8:50 a.m., Berta and Small drove a stolen Dodge Aspen from Kimmons’ residence to the mall, and Kimmons followed in a Cadillac owned by Berta. Once at the mall, Small entered the Lincoln and drove it out while Berta pulled the Dodge into the same space. Kimmons remained in his Cadillac and drove up and down the parking lanes in front of Zayre’s before returning home. Meanwhile, Berta joined Small in the Lincoln and drove up on the Florida Turnpike directly behind the Zayre store. They parked the Lincoln on the berm of the road and hung a sign in the window that said “Out of Gas — Will Return Shortly,” although the gas tank was actually more than half full. Berta and Small walked down the slope of the turnpike and entered the back portion of the mall through a narrow gap in the fence behind Zayre’s. They walked to the parked Aspen and entered the car. Berta sat in the driver’s seat and read a newspaper. Small ducked down and remained out of sight in the back seat. Berta checked his watch repeatedly. At approximately 9:25 a.m., a Loomis armored car approached the Las Americas mall. At the same moment, however, a woman and a small child had wandered to the front of the Zayre department store so the child could play on a carousel. Small and Berta were less than ten yards away, poised in their parked car for the arrival of the armored car. Special Agent Stephen Warner immediately directed the manager of Zayre’s to invite the mother and child into the store for a “pre-opening sale,” in order to avoid the prospect of innocents caught in a crossfire. Seconds later, as the Loomis car pulled in front of Zayre’s, Special Weapon and Tactic (SWAT) agents rapidly converged on Small and Berta and ordered them out of the Dodge Aspen. They were arrested and handcuffed. On the seat next to Berta, agents found a sawed-off twelve-gauge shotgun loaded with five rounds of buckshot, including a round in the chamber of the shotgun. On the floor of the backseat, agents found a fully loaded Colt.38 super automatic pistol, a black ski mask, and gloves. FBI agents then surrounded Kimmons’ residence, ordered him out of his house, and placed him under arrest. Agents conducted a protective security sweep of the inside of the residence and found, inside a hall closet, a Ruger Mini-14 semi-automatic assault rifle with a taped, double magazine loaded with sixty rounds of ammunition. After giving Miranda warnings at the scene, agents took Kimmons to FBI headquarters. Agent Warner again read Kimmons his rights. Kimmons said he understood his rights and that he would not make a statement until he spoke with his attorney. Agent Warner discontinued questions regarding the case but told Kimmons that he desired his cooperation concerning a search of the residence. After Warner read Kim-mons a “consent-to-search” form, Kimmons stated that a search warrant was inevitable and signed the form. A search of the residence uncovered several weapons, including a modified fully automatic nine millimeter Intratech pistol, a thirty-round magazine, two silencers,.38 caliber super automatic ammunition, a Mossberg twelve-gauge shotgun, another Ruger assault rifle, various shotgun shells, and two portable police radio scanners. The serial numbers on the weapons had been partially obliterated. Receipts found in Kimmons’ bedroom showed that three of the weapons had been purchased by Kim-mons’ girlfriend, Barbara Rodriguez. On October 31, 1989, a federal grand jury returned a superseding indictment against the defendants. Count I charged all three defendants with conspiracy to affect commerce by robbery of armored car companies, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Count II charged them with attempting to affect commerce by robbery of employees of Loomis Armored, Inc., in violation of 18 U.S.C. §§ 2 and 1951(a). Count III charged Berta with possession of a short-barrelled shotgun with no serial number, in violation of 26 U.S.C. § 5861(h) and 5871. Count IV charged Berta with carrying a Mossberg twelve-gauge shotgun during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count V charged Small with carrying a Colt pistol during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count VI charged Kimmons with possession of a silencer in violation of 26 U.S.C. §§ 5861(d) and 5871. Count VII charged Small with violation of the Armed Career Criminal Act, 18 U.S.C. § 922(g)(1). Count VIII charged Kimmons with the same offense. Berta pled guilty to all relevant counts of the indictment on February 14, 1990. After a six-day jury trial beginning February 16, 1990, Small and Kimmons were convicted on all applicable counts. Under the Sentencing Reform Act of 1984, Berta received concurrent sentences of sixty-three months on Counts I, II, and III. He received a consecutive sixty-month sentence on Count IV, for a total sentence of 123 months. Small received the following concurrent sentences: twenty years each for Counts I and II, five years on Count V, and life imprisonment on Count VII. Kimmons received similar concurrent sentences: twenty years each for Counts I and II, five years on Count VI, and life imprisonment on Count VIII. II. DISCUSSION The appellants-defendants raise several issues regarding the validity of their convictions and the district court’s application of the Sentencing Guidelines. We turn first to two arguments requiring more careful comment, and then briefly address the remaining claims. Conspiracy Count Sentence Enhancement Appellant Berta challenges the district court’s application of a conspiracy count sentence enhancement under Guideline § lB1.2(d) as a violation of the ex post facto prohibition. The Guideline section was not in effect at the time of the offense, although it had been added by the time of sentencing. Berta asserts that § lB1.2(d) operated retrospectively and disadvantaged him by requiring an increase of three units above the base offense level, thus violating the ex post facto clause of the Constitution, U.S. Const, art. I, § 9, cl. 3. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (Florida trial court’s application of the Florida sentencing guidelines violated ex post facto prohibition.). Our review is de novo. United States v. Goolsby, 908 F.2d 861, 863 (11th Cir.1990) (“Interpretation of the Sentencing Guidelines... is subject to de novo review on appeal.”). Berta’s argument is identical to one recently rejected by the Seventh Circuit in United States v. Golden, 954 F.2d 1413 (7th Cir.1992). In Golden, the defendant was indicted on one count of conspiracy to commit arson and two counts of arson. Id. at 1414. He pled guilty to the conspiracy charge and the remaining charges were dismissed. Id. at 1415. The district court adjusted the defendant’s guilty plea upwards by two levels under Guideline § 1B1.2. Id. at 1416. Although, as here, § 1B1.2 was adopted after the defendant’s offense, the district court dismissed the defendant’s ex post facto argument because § 1B1.2 was not a “substantive” change in the law, but simply an explanation of the “intentions of the Guidelines drafters.” Id. The Seventh Circuit affirmed, stating that “no ex post facto violation occurs if the change in the law is merely procedural and does not ‘increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” Id. at 1417 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)). The court concluded: [WJhen viewed in the context of other Guidelines provisions—each in existence at the time of [the defendant’s] sentencing—there can be little question that the sentencing court was already required to treat a conspiracy charge as if it were several counts, each charging a conspiracy to commit a substantive offense. In particular, the introductory comment to the chapter on “Multiple Counts” indicates that conspiracy is a composite offense which may include several underlying offenses. And even more illustrative is note 9 to Guidelines § 3D1.2, which provides in relevant part: A defendant may be convicted on conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses. In such cases, treat the conspiracy count as if it were several counts, each charging conspiracy to commit one of the substantive offenses. Then apply the ordinary grouping rules to determine the combined offense level based upon the substantive counts of which the defendant is convicted and the various acts cited by the conspiracy count that would constitute behavior of a substantive nature. In short, Guidelines § lB1.2(d) was enacted for [sic] sole purpose of clarifying then existing procedure, and therefore no ex post facto concerns can legitimately be raised. Id. at 1417-18 (footnotes omitted). We agree with the Seventh Circuit and find the appellant’s ex post facto argument without merit for the reasons expressed in Golden. Berta also challenges the enhancement of his sentence as related to the activities directed toward the Wells Fargo car at the Coral Gables Federal Savings & Loan and the Brinks car at the Ocean Bank and Flagler Bank branches based on lack of notice and insufficient evidence. He asserts that Count I made no mention of multiple objectives, and that there was little or no evidence to support the district court’s determination of multiple offenses. Berta insists that he only conspired to rob the Loomis car at Zayre’s and that there is “no quality of evidence or any stretch of the facts” which would support a finding that the appellants conspired to rob any other armored car. Brief of Appellant Berta at 34. He contends that his and his co-defendants’ surveillance of the Wells Fargo and Brinks armored cars at most amounted to “shopping a robbery,” and that they were simply “looking for the most likely and easiest victim,” id. at 35, but that there is no evidence of any agreement to rob either the Wells Fargo or Brinks cars. At the sentencing hearing, the district court found otherwise: As far as the issue of the conspiracy is concerned, there is ample evidence in the record, as outlined by the Federal Agents, as to the number of conspiracies involved. There were several prior efforts to do bank robberies, like the armored car robberies. They did not go down. One, for example, involved the question — and they saw a heightened security on the armored car because the FBI had advised them that there was an alert, and the FBI Agent’s testimony outlined those events. So, I think there is sufficient evidence of the pre-conspiracy. Additionally, the count does sufficiently charge and puts the defendant on notice concerning multiple conspiracies. So, I have no problem with ruling against the defendant on that issue. (R10:43). In reviewing a sentence under the Guidelines, the factual findings of the sentencing court are entitled to great deference and must be accepted unless clearly erroneous. 18 U.S.C. § 3742(e) (“The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.... ”); see United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989); United States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989). Berta does not dispute that along with his co-defendants he conspired to rob the Loomis armored car. He does challenge that his co-defendants’ scrutiny of the Wells Fargo and Brinks cars were separate and independent offenses. A review of the record, however, supports the district court’s finding that the conspiracy had multiple objectives. It may be inferred from the Federal agent’s testimony that the appellants followed and deliberately observed the Wells Fargo car as it delivered cash at the Coral Gables Federal'Savings & Loan off Bird Road. (R5:33-36). There is further testimony revealing that the appellants likely saw the extra Wells Fargo armed security guards before the appellants turned away. (R5:34; R7:126). Federal agents further testified that the appellants drove to the Las Americas mall and monitored the Wells Fargo and Brinks cars as they delivered cash at Woolworth’s and the Ocean Bank and Flagler Bank branches. (R6:45-53, 56-60). The appellants watched the armored cars from different perspectives on at least three different days. (R6:60-62, 88-92, 99-103). These exploits amounted to independent overt acts in furtherance of the conspiracy. See United States v. Parker, 839 F.2d 1473, 1477 (11th Cir.1988) (“To support a conspiracy conviction, the government must prove 1) an agreement to commit unlawful act and 2), an overt act by one conspirator in furtherance of conspiracy.”). Berta’s more thorough attempt to rob the Loomis car does not negate that, along with his co-defendants, he also carefully monitored the activities of the Wells Fargo and Brinks trucks. The appellants could have chosen to rob one or all of the armored cars, but as the district court noted, the earlier offenses simply “did not go down.” (R10:43). Accordingly, we affirm the district court’s enhancement of the sentence imposed under the conspiracy count in accord with § lB1.2(d) of the Guidelines. Kimmons’ Motion to Suppress Appellant Kimmons challenges the introduction into evidence of the Huger Mini-14 assault rifle and ammunition found during a protective sweep of his residence immediately following his arrest. He argues that agents lacked exigent circumstances to require him to leave his residence without an arrest warrant or to conduct a protective sweep without a search warrant. Kimmons further asserts that his subsequent consent to a search was involuntary because of the totality of the circumstances. We address each assertion in turn. Our review of the facts is construed in the light most favorable to the party who prevailed in the district court. See United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988) (District court’s findings of fact at suppression hearing are reviewed under a clearly erroneous standard.). Relying on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and United States v. Maez, 872 F.2d 1444 (10th Cir.1989), Kimmons claims that the Federal agents’ show of force outside his home coerced his exit in violation of the Fourth Amendment. In Payton, the Supreme Court held that the Constitution prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in the absence of exigent circumstances. 445 U.S. at 583-603, 100 S.Ct. at 1378-1388. In Maez, the Tenth Circuit found a Payton violation where armed officers, having no warrant for an arrest, surrounded a mobile home and demanded over loud speakers that the occupants remove themselves from the home so that a suspect could be taken into custody. 872 F.2d at 1449-53. Kimmons argues that the force used by the government in his arrest was comparable to the force found violative of the Fourth Amendment in Maez. Moreover, Kimmons contends that the government cannot justify that use of force through exigent circumstances because such an argument was never made in the district court. The record, however, indicates that the government indeed argued exigent circumstances, circumstances which we find compelling on review. As we noted in United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir.1986): A finding of probable cause alone... does not justify a warrantless arrest at a suspect’s home. Exigent circumstances which make it impossible or impractical to obtain a warrant must also be present. The exigent circumstances exception encompasses situations such as hot pursuit of a suspect, risk of removal or destruction of evidence, and danger to the arresting officers or the public. (citation omitted). In Edmondson, we did not find exigent circumstances because none of the situations outlined above were present and because “the circumstances did not otherwise make it impossible or even imprudent” for the agent to obtain an arrest warrant. Id. In addition to those situations noted in Edmondson, exigent circumstances may be indicated by the presence of other relevant factors, such as those set forth in United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.1987), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987): Factors which indicate exigent circumstances include: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. We find that the circumstances here include the factors set forth in Standridge. The FBI had just apprehended two of Kim-mons’ accomplices seconds before they were about to commit a daylight armed robbery in a busy shopping center. They were armed with a fully loaded sawed-off shotgun and pistol. The FBI knew that Kimmons had been part of the conspiracy for at least six weeks, that he had been at the crime scene that very morning, and that he had a history of violent crime. Kimmons’ participation in a plan to rob armed security personnel also showed a present willingness to use violence. Moreover, Kimmons’ home had served as the headquarters for the conspiracy, and it was highly likely that evidence would be concealed inside. Finally, with Kimmons awaiting the return of his co-defendants and likely surmising that the robbery had misfired, any further delay on the part of the FBI would have given Kimmons more time to prepare for either violent resistance or an attempt to escape. Consequently, we find sufficient exigent circumstances to justify the arrest. Kimmons next challenges the security sweep that immediately followed his arrest, claiming that the Supreme Court has not recognized a “protective sweep” exception to the search warrant requirement. However, in Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990), the Supreme Court held: that the Fourth Amendment would permit [a] protective sweep undertaken... if the searching officer “possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted]’ the officer in believing” that the area swept harbored an individual posing a danger to the officer or others. (quoting Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3481-82, 77 L.Ed.2d 1201 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968))). Here, the circumstances fall well within the exception set forth in Buie. In addition to the dangerous exigencies noted above, the FBI had knowledge of a fourth conspirator whose identity and whereabouts were unknown, which further heightened concern at the site of Kimmons’ arrest. See United States v. Burgos, 720 F.2d 1520, 1525-26 (11th Cir.1983) (upholding a security sweep where house was likely laden with firearms and an unknown number of people were inside). The sweep did not last any longer than needed to complete Kimmons’ arrest and secure the premises. Moreover, the seizure was lawful because the weapons and ammunition were found in plain view. See Buie, 494 U.S. at 330, 110 S.Ct. at 1096. Finally, Kimmons complains that his subsequent consent to search was involuntary based on the totality of the circumstances. He concedes that under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), his consent was voluntary if viewed independently from the initial arrest. Reply Brief of Appellant Kim-mons at 7. Nonetheless, he alleges that because his arrest was illegal, his subsequent consent to search while in custody is invalid. See United States v. George, 883 F.2d 1407 (9th Cir.1989) (finding that consent to search was tainted by earlier illegal home arrest). However, as his arrest was lawful and evidence indicates that Kim-mons was aware of his right of refusal before he signed the consent form, see United States v. Smith, 543 F.2d 1141, 1145 (5th Cir.1976) (Where the trial court makes no factual findings on an issue, the appellate court may affirm the ruling based upon facts in the record that support the decision.), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977), we find that Kimmons’ consent was freely and voluntarily given. The Remaining Claims The appellants raise several additional claims that require less comment. Berta and Small challenge the district court’s four level increase under Guideline § 2B3.1(b) based on a calculation that the loss from the offense would have been approximately $500,000. The appellants assert that the potential loss was only $67,-000, because that was the sum that the Loomis truck would have picked up from Zayre’s on the morning of the attempted robbery. However, the target of the robbery was the money already in the Loomis truck as well as the money from the store. Otherwise, the appellants might simply have planned to rob the store instead of the armored car. Testimony from managers of all three intended victim corporations established that hundreds of thousands to millions of dollars were carried on the armored cars during the specific routes that the appellants had targeted. (R8:81, 84, 88, 92). The district court’s factual finding of a potential loss of $500,000 is supported by a preponderance of the evidence. See United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (The facts underlying a sentence must be established by a preponderance of the evidence.), cert. denied, — U.S. -, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991). Berta and Small also argue that the district court erroneously enhanced their sentences by three levels under Guideline § 2B3.1(b)(2)(C) because each co-defendant carried a firearm during the commission of the conspiracy. Each was sentenced to a sixty-month term of incarceration for violating 18 U.S.C. § 924(c). The appellants assert that the guideline application amounted to “double-counting,” which Guideline § 2K2.4 prohibits. However, the district court’s application of § 2B3.1(b)(2)(C) to each appellant did not “double count” because it involved neither the same firearm nor the same possession for which a penalty was imposed under 18 U.S.C. § 924(c). See United States v. Ote-ro, 890 F.2d 366, 367 (11th Cir.1989) (setting forth criteria for establishing defendant’s liability for enhancement under guidelines for firearm possessed by co-defendant). Berta was convicted for possessing a twelve-gauge shotgun, but his three-level enhancement was based upon co-defendant Small’s firearm possession. Similarly, Small was convicted for possession of a Colt pistol, but the enhancement of three levels was based upon co-defendant Berta’s possession of a different firearm. Because two armed men perpetrating a robbery pose a much greater threat to the public safety than only one armed robber, it is proper to increase each defendant’s guideline score to reflect this more serious conduct. Small further challenges his sentence pursuant to 18 U.S.C. § 924(e)(1), stating that he was charged in Count VII with violating 18 U.S.C. § 924(a)(1)(B), which carries a maximum term of only five years. Thus, Small contends, he was not legally on notice of his offense and the potential penalty of life imprisonment. However, in the same count, the indictment also charged him with violating 18 U.S.C. § 922(g)(1). The indictment not only specified the elements of the offense under 18 U.S.C. § 922(g)(1), but also specified the convictions that established Small’s eligibility for the potential life sentence carried under that section. The government concedes that it incorrectly included 18 U.S.C. § 924(a)(1)(B) in Count VII, but notes that the reference is merely surplusage given that the district court disregarded it and properly applied § 924(e)(1) pursuant to § 922(g)(1). We agree. The enhanced penalty provisions of 18 U.S.C. § 924(e)(1) are not elements of the offense and need not be set forth in the indictment. See United States v. McGatha, 891 F.2d 1520, 1524-25 (11th Cir.), cert. denied, 495 U.S. 938, 110 S.Ct. 2188, 109 L.Ed.2d 516 (1990). We find no merit in the remaining claims. Accordingly, we AFFIRM the challenged convictions and the sentences the district court imposed on each defendant. . Guideline § 1B1.2 provides, in relevant part, that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted of a separate count of conspiracy for each offense that the defendant conspired to commit." U.S.S.G. § 1B1.2 . Pursuant to 18 U.S.C. § 3553(a)(4) and (5), sentencing courts must abide by the Sentencing Guidelines and policy statements in effect on the date of sentencing, not on the date of the offense. . We find no merit in Berta's notice argument. Count I of the superseding indictment expressly charges "that the defendants conspired to unlawfully take currency from the custody of employees of armored car companies... in violation of Title 18, United States Code, Section 1951(a)." (Rl:29 at 1-2) (emphasis added). . Moreover, if any error occurred in the application of the Guidelines, it occurred in appellant Berta’s favor. The district court, relying on the Pre-Sentence Investigation Report, calculated a base offense level of 18 under Guideline § 2B3.1(a), increased the offense level by 4 under § 2B3.1(b)(1)(E) because the potential loss approximated $500,000, added another 3 levels pursuant to § 2B3.1(b)(2)(C) because codefend-ant Small possessed a firearm, added 3 more levels for the multiple offenses under § lB1.2(d), and subtracted 2 levels under § 3El.l(a) for Berta's affirmative acceptance of responsibility, for a total offense level of 26. At the time of sentencing, Criminal History Category I of the Guidelines Sentencing Table imposed an incarceration range of 63 to 78 months. The district court imposed a minimum sentence of 63 months running concurrently on each of the conspiracy counts. However, under Appendix C, amendments 110 and 111, of the Sentencing Guidelines, effective November 1, 1989 and applying on the date of sentencing, April 25, 1990, the base offense level under § 2B3.1(a) was 20. The enhancement for the potential loss under § 2B3.1(b)(1)(E) was 3, not 4 as reflected in the PSI report. The adjustments calculated properly would have raised Berta’s offense level to 27. At that level, the sentencing range increased to 70 to 87 months. Had the Guidelines been strictly followed, Berta would have suffered an even greater penalty. The government did not appeal the sentence. . In United States v. Maez, 872 F.2d 1444, 1452 & n. 9 (10th Cir.1989), the Tenth Circuit never reached the merits of the government’s argument of exigent circumstances because it had been raised for the first time on appeal. Here, the record discloses the following argument by government counsel on the motion to suppress: MR. TAMEN [AUSA]: Judge, the case that established the law regarding warrantless arrests of violence inside a house made it clear—Peyton [sic] versus New York—a warrant that has been in existence for a period of time or case, an investigation of a case that has been completed for some time period which requires police to obtain a warrant before entering a house. This is a different situation. We have a situation in which three men, two of whom are known to be dangerous, to have lengthy criminal histories involving robberies are arrested at a shopping center in the morning, at a time when it's open for business to the public. They have ski masks, gloves, sawed off shotguns and a pistol in the car. The weapons are all loaded. They are apprehended where the armored car arrives at the scene, moments before they would have jumped out with guns to commit that armed robbery and a third member of the conspiracy, who has been stalking armored cars along with them for a period of 4 months is back at the house. There are exigent circumstances there. The police cannot arrest the two men at the shopping center and wait around until tomorrow to get the guy who is at the house, who is a member of the conspiracy, who assisted in setting up the scene at the shopping center that very morning. They have to

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?

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

What follows is an opinion from a United States Court of Appeals. Your task is to 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 25. 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 25? Answer with a number.

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.Civ.P. 26 is not relevant to this situation, any power to quash the subpoenas must derive from the court’s power to take any action necessary to ensure a fair trial, a power entirely independent of the fact that the subpoenas by chance relate to documents subject to a protective order in a discovery proceeding. See Rodgers v. U.S. Steel Corp

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?

Martha DUNHAM and Preston Dunham, Plaintiffs-Appellants, v. FRANK’S NURSERY & CRAFTS, INC., Defendant-Appellee. No. 89-2109. United States Court of Appeals, Seventh Circuit. Argued Jan. 8, 1990. Decided Dec. 12, 1990. Saul I. Ruman, Thomas A. Clements, Ru-inan, Clements & Tobin, Hammond, Ind., for plaintiffs-appellants. Frank J. Galvin, Robert H. Bahner, Gal-vin, Stalmack, Kirschner & Clark, Hammond, Ind., for defendant-appellee. Before POSNER, RIPPLE, and KANNE, Circuit Judges. KANNE, Circuit Judge. The issue in this case is whether the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. Other circuits confronting this issue have reached opposite conclusions. In Fludd v. J.B. Dykes, 863 F.2d 822 (11th Cir.1989), the Eleventh Circuit held that Batson applies to the exercise of peremptory challenges by a private litigant in a civil case. In a recent en banc opinion, the Fifth Circuit held that Batson is limited to criminal cases. Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990) (en banc). We declined to resolve this issue in Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988) on the grounds that it was not ripe for decision in that appeal. Today, we join the Eleventh Circuit in holding that Batson forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. Martha Dunham was injured in December of 1985 while shopping at Frank’s Nursery & Crafts in Merrillville, Indiana. Mrs. Dunham received an electrical shock when she placed a Christmas ornament plug into a portable electric outlet. Frank’s directed its customers to use the portable outlet to test the working condition of electrical ornaments prior to purchase. Martha Dun-ham brought a negligence suit against Frank’s to recover for her injuries; her husband, Preston Dunham, asserted a claim for lost consortium and services of his wife due to her injuries. Jurisdiction in federal court was based upon diversity of citizenship in accordance with 28 U.S.C. § 1332. Frank’s and the Dunhams both consented to a United States Magistrate conducting all proceedings. On April 24, 1989, a jury trial was commenced. Both Mr. and Mrs. Dunham are black, and of the jury panel examined during voir dire, the only black member to be seated on the petit jury was peremptorily struck by Frank's. The Dunhams objected to this peremptory strike, claiming that it was racially motivated. The magistrate declined to require Frank’s to provide a non-racial explanation for its strike, correctly noting that neither the Supreme Court nor the Seventh Circuit has held that Batson applies to a civil case. The case proceeded to trial with a jury of seven white members. On April 28, 1989, the jury rendered a verdict against the Dunhams finding that, under Indiana’s Comparative Fault Act, Martha Dunham’s fault was greater than fifty percent. The Dunhams appeal solely on the ground that the magistrate erred in declining to order Frank’s to provide a non-racial explanation for its peremptory strike as required by Batson. In Batson, the Supreme Court held that the equal protection clause of the fourteenth amendment forbids a prosecutor in a state criminal trial from using peremptory challenges to strike potential jurors from the venire solely because they are of the same race as the defendant. 476 U.S. at 89, 106 S.Ct. at 1719. In addition, the Court formulated an evidentiary standard for establishing that the state has struck a potential juror on account of his race. Specifically, the Court held that the prosecutor’s striking of a defendant’s racial peer from the venire can be used as circumstantial evidence of the prosecutor’s discriminatory intent. In so doing, the Court overruled the portion of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) which held that a prosecutor’s use of a peremptory challenge is presumptively based on proper considerations related to the case he is trying. Departing from Swain, the Court concluded that a defendant may establish a prima facie case of racial discrimination solely on evidence concerning the prosecutor’s use of a peremptory challenge at the defendant’s trial. Batson, 476 U.S. at 95-96, 106 S.Ct. at 1722-23. In order to establish a prima facia case under Batson, the defendant must first show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to prevent members of his race from serving on the jury. Second, the defendant is entitled to rely on the fact that the mere exercise of a peremptory challenge can be used as circumstantial evidence of discriminatory intent. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptories to exclude veniremen from the petit jury on account of their race. Id. Once the defendant makes a prima facia showing, the burden shifts to the state to come forward with a non-racial explanation for its challenge. Although the prosecutor’s explanation does not have to rise to the level of cause, the mere denial of a discriminatory motive, or an affirmation of prosecutorial good faith does not suffice as a neutral explanation. After hearing the state’s explanation, the trial court must determine if the defendant has established purposeful discrimination. Id. at 97-98, 106 S.Ct. at 1723-24. It is important to emphasize that the holding of Batson was based on the equal protection clause of the fourteenth amendment, not the sixth amendment right to a jury trial in criminal cases. While sixth amendment rights apply only to criminal defendants, equal protection rights apply to civil litigants as well as criminal defendants. Accordingly, the equal protection rationale underlying Batson does not stem from any rights or protections afforded to a criminal defendant that are not afforded to a civil litigant. The Court in Batson based its holding on three basic principles. First, the Court stated that “[cjompetence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person’s race simply ‘is unrelated to his fitness as a juror’ ” 476 U.S. at 87, 106 S.Ct. at 1718 (citations omitted). Second, the Court stated that a prosecutor shall not be allowed to assume that a juror of the defendant’s race will be partial to the defendant simply because of their shared race. Id. at 97, 106 S.Ct. at 1723. Finally, the Court reasoned that “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Id. at 87, 106 S.Ct. at 1718. It is obvious that these three principles are not dependent upon the fact that the jurors in Batson were being selected to sit for a criminal trial rather than a civil trial. Because the rationale of Batson is not inherently dependent upon the fact that Batson was a criminal proceeding, it is only logical to conclude that the Supreme Court would not intend the equal protection requirements of Batson to be limited to criminal cases. This conclusion does not end our analysis, however, for the Constitution does not forbid private persons from discriminating. For a civil litigant to invoke the requirements of the equal protection clause, the litigant must show that the alleged discriminatory act is “state action” subject to the dictates of the Constitution. State action is readily apparent in the context of a criminal case; for there, a representative of the state — the prosecutor — exercises the peremptory challenge. However, state action is not so obvious in a civil case where the party utilizing the peremptory challenge is often a private individual, not a representative of the state. But the fact that a private litigant exercises a peremptory challenge does not automatically make that act private. As the level of interaction and cooperation between private individuals and the state rises — as it does in the jury selection process — it becomes increasingly difficult to discern precisely where private conduct ends and state action begins. In this case, Frank’s, a private litigant, is the alleged discriminatory actor. For Batson to apply in this situation, the alleged discriminatory act — Frank’s exercise of a peremptory challenge — -must fairly be said to be conduct attributable to the state. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court established a two-part framework for determining the presence or absence of state action. The first part asks whether the claimed constitutional deprivation has resulted from the exercise of a right or privilege having its source in state authority. Id. at 937, 102 S.Ct. at 2753-54. As Frank’s concedes, this requirement is clearly satisfied here. Specifically, 28 U.S.C. § 1870 provides that each party in a civil case shall be entitled to three peremptory challenges. The crucial question is whether the Dunhams can establish Lugar’s second requirement: under the facts of a given case, can the party charged with the deprivation appropriately be characterized as a “state actor”? Id. The Court emphasized that a private party who exercises a right having its source in state authority — Lugar’s first requirement — is not considered a state actor — Lugar ’s second requirement — absent “something more.” Id. at 937-39, 102 S.Ct. at 2754. Determining what constitutes “something more” is far from a precise task. In Lugar, the Court referred to its own use of several different tests in making this determination, including the “public function” test, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); the “state compulsion” test, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); the “nexus" test, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Auth., supra; and the “joint action” test, see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The Court questioned whether these tests are actually different in operation or are simply different ways of “characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation.” Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. The Court concluded that, in the final analysis, the state action determination must be based on the specific facts and the entire context of a given case. “ ‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in .private conduct be attributed its true significance.’ ” Id. (citing Burton, 365 U.S. at 722, 81 S.Ct. at 860). At the outset of this “necessarily fact-bound inquiry,” it is instructive to examine the key facts of relevant precedents in which the Court has traced the line that separates private conduct from government action. In Shelley v. Kraemer, supra, the Court established that the equal protection clause forbids judicial enforcement of private, racially restrictive covenants. The Court held that enforcement of such private agreements by judicial officers in their official capacities amounted to state action. The Court applied a but for analysis, reasoning that, absent the intervention of the enforcing court, supported by the full panoply of state power, the persons excluded by the covenants would have been free to occupy the properties at issue. 334 U.S. at 19, 68 S.Ct. at 845. In Burton v. Wilmington Parking Auth., supra, the Court found that the state acted when a privately owned restaurant located in a state owned and operated parking garage refused to serve a black would-be-patron. Although the decision to discriminate was made by the restaurant owner, a private concern, the Court reasoned that the state could have affirmatively required the restaurant not to discriminate as a precondition to renting space in the parking garage. 365 U.S. at 725, 81 S.Ct. at 861-62. The Court reasoned that through its inaction, the state elected to place its power, property and prestige behind the admitted discrimination. The Court concluded that regardless of the state’s motive, it was not allowed to effectively abdicate its responsibility to prohibit racial discrimination occurring on its property. Id. Recently, in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the Court concluded that the activities of a probate court in a dispute between private parties caused the acts of one party to amount to state action. Tulsa involved a provision of the Oklahoma Probate Code barring creditor claims against an estate unless those claims are presented to the estate no later than two months after the estate notifies creditors that probate proceedings had commenced. A creditor who failed to comply with the two month requirement contended that the estate’s notification did not comply with the requirements of the due process clause because the estate provided only publication notice to creditors as opposed to personal notice. Id. at 479-81, 108 S.Ct. at 1341-43. The Court held that the estate’s act of providing notice was an act that could be attributed to the government because of the probate court’s role in the notification process in particular and the probate process in general. Specifically, the Court emphasized that the two month time bar did not begin to run until the probate court appointed an executrix and required her to file a copy of the estate’s notice and an affidavit stating that the notice had been published. The Court reasoned that the role of the probate court was “so pervasive and substantial that it must be considered state action subject to the restrictions of the Fourteenth Amendment.” Id. at 487, 108 S.Ct. at 1345-46. The Court concluded that whenever “private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Id. at 486, 108 S.Ct. at 1345. We now turn to whether there was state action in this case. The key is to determine whether the trial court’s participation in Frank’s exercise of its peremptory challenge is substantially different than the state’s involvement in Shelley, Burton, or Tulsa. In holding that state action is absent in a civil case, Judge Thomas Gibbs Gee, writing for the en banc panel of the Fifth Circuit in Edmondson, characterized the role of a trial judge as follows: 895 F.2d at 221-22 (footnotes omitted). Judge Gee reasoned that this “mere standing aside” cannot constitute “action” in light of Supreme Court pronouncements that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement ... that the choice must ... be deemed to be that of the State,” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citing cases), and that “[mjere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the ... Fourteenth Amendment.” Id. (citing cases). [t]he merely ministerial function exercised by the judge in simply permitting the venire members cut by counsel to depart is an action so minimal in nature that one of less significance can scarcely be imagined. No exercise of judicial discretion is involved, rather a mere standing aside; so that the fault — if it is a fault — lies with the system which permits such challenges, not with the judge’s mere ministerial compliance with what the rule requires. While the approach of the Fifth Circuit is certainly plausible, we believe that Supreme Court precedent requires a different characterization of the role of a trial judge in the peremptory challenge process. Analogizing to Shelley, Burton, and Tulsa, we are unable to characterize a judge’s role as that of a “ministerial bystander.” Admittedly, this case is different than Shelley in one key respect — a judge enforcing peremptory challenges, unlike a judge enforcing racial covenants, does not exercise judicial discretion; once a private litigant exercises a peremptory challenge, the judge has no choice but to excuse the stricken panel member. However, in applying a but for analysis in Shelley, the Court focused on a court’s coercive powers, not its discretionary powers. A similar but for analysis is applicable here. Like the racial covenants in Shelley, enforcement of a peremptory strike is ultimately dependent upon the judge’s coercive powers. When a private litigant peremptorily challenges a panel member, that challenge is not self-effectuating. The litigant may exercise the peremptory challenge — but it is the presiding judge who then exercises his authority to excuse the juror from service. All jurors are under the control of the presiding judge during the course of the trial. It is this control over the jury and its selection procedures, inherent in the powers of a federal judicial officer, which demonstrates that the ultimate enforcer of a peremptory challenge is the trial judge; enforcement is not dependent upon an agreement between the private parties. In excusing a juror, the state, no less than in Burton, places its power and prestige behind the admitted discrimination. In addition, peremptory challenges are invoked in a courtroom operated by the government. If the Court in Burton did not allow the state to abdicate its responsibility to prohibit racial discrimination in a parking garage, it only seems logical that the Court would not allow the state to abdicate this responsibility in a court of law. Up to this point, we have focused only on the function of a trial judge in excusing a juror pursuant to a private litigant’s peremptory challenge. In finding state action in Tulsa, however, the Court did not limit its focus to the role of the probate court in the process by which the estate provided notice; rather, the Court emphasized the importance of the probate court’s overall involvement in the probate proceedings. Likewise, our state action inquiry should focus on the overall involvement of the trial court in the jury selection process. The role of a federal district court in the jury selection process appears to be at least as pervasive as the role of the probate court in Tulsa. Congress determines the qualifications for jury service and the method of summoning jury panels; the district court, in turn, enforces these standards. 28 U.S.C. § 1865. In order to avoid discrimination in the selection of jury ve-nires, Congress also requires each district court to devise and enforce a plan for random jury selection. 28 U.S.C. § 1863. The clerk of the district court summons the venire to appear in court at a particular time and place. Of course, jury service in the federal system is not optional — if not excused by the district court, a summoned juror must fulfill jury duty. In regard to the exercise of peremptory challenges, there are several discretionary measures open to a judge which tend to belie the characterization of the judge as a “ministerial bystander.” For example, while the number of peremptory challenges is determined by statute in single party civil cases, a trial'judge has broad discretion in determining the appropriate number and allocation of peremptory challenges in multiparty civil cases. 28 U.S.C. § 1870. Perhaps more important, the trial judge indirectly determines the impact of any given number of peremptory strikes. Local court rules control the number of jurors empaneled in civil cases, thereby governing the relative effectiveness of peremptory challenges in determining the composition of a jury. The trial judge controls the conduct of voir dire and the range of information that may be discovered about a jury panel member, thus affecting the exercise of both challenges for cause and peremptory challenges. In addition, the judge has broad discretion over whether or not to excuse a juror for cause, thus determining the number of jurors who remain eligible for the exercise of peremptory strikes. Finally, a trial judge enjoys broad discretion in determining the manner in which peremptory challenges are exercised: he can decide which party exercises the last challenge; he can require the parties to exercise their challenges simultaneously in writing; or he can require one party to exercise all of its challenges first, thereby allowing the other party to act with full knowledge of its opponent’s choices. We do not think the role of the trial court in Frank’s peremptory strike is significantly different than the role of the state in Shelley, Burton, or Tulsa. Accordingly, we conclude that the requisite state action is present in this case. There is one final point we should address, however: the en banc court in Ed-monson noted that the Court in Batson declined to hold that the equal protection clause prohibits defense counsel in a criminal case from exercising peremptory challenges on racial grounds. 895 F.2d at 222. The en banc court hinted, and Frank’s now argues, that the Court’s failure to so hold is inconsistent with the view of the trial court as state actor. Id. We disagree. The Court in Batson explicitly declined to express a view one way or the other on whether the Constitution imposes any limits on the exercise of peremptory challenges by defense counsel. 476 U.S. at 89 n. 12, 106 S.Ct. at 1719 n. 12. Thus, it is clear that the Court in Batson did not address the issue of whether the trial court supplies the necessary state action in the context presented in this case. Since Batson was decided in 1986, a debate has ensued as to whether it makes sense to allow a right to peremptory challenges — a device admittedly intended to allow a party to strike a potential juror for any reason, be it a hunch, an assumption or an intuitive judgement — once the Supreme Court created an equal protection exception to that right. One thing is certain — the future viability of peremptory challenges is quite uncertain. As of this date, the Supreme Court has not made clear whether the equal protection rationale of Batson forbids the exercise of peremptory challenges with regard to other cognizable categories such as sex, ethnic origin, religion and so on. See Batson, 476 U.S. at 124, 106 S.Ct. at 1737 (Burger, C.J., dissenting). Some propose that we should completely abolish peremptory challenges (as they have in England), see Batson, 476 U.S. at 106-08, 106 S.Ct. at 1728-29 (Marshall, J., concurring), while others argue that we should restore peremptory challenges to the $re-Batson right with no exceptions. Regardless of what position one favors, the current status of the law — peremptory challenges which are not truly peremptory, with exceptions for some reasons but not others — hardly seems satisfactory. See United States v. Clark, 737 F.2d 679, 682 (7th Cir.1984) (Posner, J.) (permitting inquiry into the basis for a peremptory challenge causes it to collapse into a challenge for cause); Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges and the Review of Jury Verdicts, 56 U.Chi.L.Rev. 153 (1989). For our purposes today, however, the debate over the partial invalidation of peremptory challenges was resolved by the Supreme Court in Batson; thus, our views on its merits are irrelevant to deciding this appeal. Our basic task has been to determine the presence or absence of state action. Having found the requisite state action, we are bound to hold that the requirements of Batson apply to Frank’s use of its peremptory challenge. Accordingly, we must remand this case to the district court for it to determine whether the Dunhams can establish a prima facie case of racial discrimination. If the Dunhams establish a prima facie case, then the district court must require Frank’s to show that it had some neutral, that is, non-racial reason for its challenge. If Frank’s does not come forward with a non-racial explanation for its challenge, the district court shall order a new trial. The case is Remanded for further proceedings consistent with this opinion. . The en banc opinion vacated the original panel opinion, which held that Batson applies to a private litigant in a civil case. See Edmonson v. Leesville Concrete Co., Inc. 860 F.2d 1308 (5th Cir.1988). . In Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir.1990), the Eighth Circuit held that the requirements of Batson apply to a civil case when the government is the civil litigant exercising the peremptory challenge. Id. at 1008. The court declined to express a view on whether the action of a trial court alone, in a case involving no government litigants, can supply the necessary element of state action. Id. n. 2. . Martha and Preston Dunham are residents of Lake County Indiana; Frank’s Nursery & Crafts, Inc. is incorporated in the state of Michigan and has its principal place of business in Michigan. The amount in controversy exceeds $50,000. . Batson was based on the equal protection clause of the fourteenth amendment, which applies only to the states, not the federal government. However, the right to equal protection of the laws expressed in the fourteenth amendment has been found by implication in the due process clause of the fifth amendment, which applies to federal action. Johnson v. Robison, 415 U.S. 361, 364, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 389 (1974); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). . The Court declined to express a view on the merits of Batson's sixth amendment arguments. 476 U.S. at 84, 106 S.Ct. at 1716 n. 4. Recently, in Holland v. Illinois, — U.S. -, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), the Court held that the fair cross section requirement of the sixth amendment does not prevent either side in a criminal prosecution from exercising its peremptory challenges in order to exclude cognizable racial or other groups from the petit jury as long as the venire itself is drawn from a fair cross section of the community. . The facts of Blum v. Yaretsky, see accompanying text, are not pertinent to our case. Unlike this case, the private action at issue in Blum failed to satisfy Lugar’s first prong. In Blum, the Court noted that it was dealing with a case “obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it ‘state’ action for purposes of the Fourteenth Amendment." 457 U.S. at 1003, 102 S.Ct. at 2785. . The portion of the en banc opinion in Edmon-son pertaining to state action does not discuss Shelley, Burton, or Tulsa. See Edmonson, 895 F.2d at 221-22.

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

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

Marc D. LEH, individually, and The Progress Company, a co-partnership comprised of Marc D. Leh and David Brown, co-partners, Appellants, v. GENERAL PETROLEUM CORPORATION, a corporation, Standard Oil Company of California, a corporation, Texaco, Inc., a corporation, Richfield Oil Corporation, a corporation, Union Oil Company of California, a corporation, Tidewater Oil Company, a corporation, Appellees. No. 18333. United States Court of Appeals Ninth Circuit. April 2, 1964. Richard D. Harris, Los Angeles, Cal., for appellants. Paul E. Bermingham, New York City, Arthur Kelly Howard Painter Los Angel Cal., for appellee General Petroleum Corp ^, T w.„. „,, Francis R. Kirkham, William E. Mussman, Thomas E. Haven and H. Helmut Eorm^ San Francisco, Cal., for appellee Standard Oil Co. of Cal. Charles E. Beardsley, Los Angeles, Cal., and George W. Jansen, New York City, for appellee Texaco Inc. William J. DeMartini, Los Angeles, Cal., for appellee Richfield Oil Corp. Moses Lasky and Richard Haas, San Francisco, Cal., for appellee Union Oil Co. of Cal. Edmund D. Buckley and Wayne H. Knight, Los Angeles, Cal., for appellee Tidewater Oil Co. Before BARNES and JERTBERG, Circuit Judges, and BURKE, District Judge. BARNES, Circuit Judge. This is an appeal from a judgment of dismissal below, upon the sole ground the statute of limitations had run against The Progress Company on its cause of action against appellees, filed September 28, 1956. The action was for treble damages under Section 4 of the Clayton Act (15 U.S.C. § 15), arising from the alleged violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2). Jurisdiction below rested on Section 1337 of Title 28 United States Code, and rests here on Sections 1291 and 1294(1) of Title 28 United States Code. It is conceded by appellants that their cause of action accrued no later than February 1954, and that the applicable statute of limitations began to run at that time. The question before us is first: What is the applicable statute of limitations? And, second: Whether (if the one year statute Cal.Code Civ.P. § 340(1) is applicable, rather than the three year statute Cal.Code Civ.P. § 338(1)) it was tolled or suspended under § 5 of the Clayton Act (15 U.S.C. § 16, as amended, 15 U.S.C. § 16(b), 1955) by a similar proceeding “instituted by the United States.” The alleged similar proceeding was United States v. Standard Oil Co., et al., Civil No. 11584-C, heretofore pending in the United States District Court for the Southern District of California (the same district from which this case arose, although the cases were assigned to and tried by different judges). Seven specifications of error raise the above primary questions. They need not here be quoted in full. The appellees likewise raise two separate defenses, which need not here be considered in view of our subsequent primary conclusions. It is further conceded by both parties that the four year federal limitations period with respect to private causes of action under the antitrust laws is inapplicable to a cause accruing in 1954; and that resort must be had to state law. (Steiner v. 20th Century-Fox Film Corp., 9 Cir. 1956, 232 F.2d 190, 194 ) The difficulty with the “solution” of “looking to state laws” is that there the problem starts. I This action is one where much can be said on both sides. Where a strong diversity of judicial opinion exists, and we attempt to prognosticate (as all other federal courts must who face the problem) the result at which a state court would arrive, we find many gray areas. Are we to consider what our opinion might be, based on an original solution of the problem, or are we to consider the trial court’s conclusion and opinion, and determine only whether it is clearly erroneous? We conclude the latter is the proper measuring stick, and under it, after some soul searching, we affirm the district court. We are reminded of what Judge Wyzanski said so frankly to a jury in a private treble damage antitrust action (Cape Cod Food Products v. National Cranberry Association, D.Mass.1954, 119 F.Supp. 900, 910) speaking of damages, “You can’t go to a book and look for the answer.” The California Code of Civil Procedure §§ 335 and 338(1) read as follows (in pertinent part): “§ 335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows * * * “§ 338. * * * “Within three years: “1. An action upon a liability created by statute, other than a penalty or forfeiture.” California Code of Civil Procedure, § 340(1) reads as follows (in pertinent part): “§ 340. * * * “Within one year: “1. Statutory penalty or forfeiture. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation; -x -x -x» Is the action based upon a statutory penalty or forfeiture, or is it an action based upon a liability created by statute other than a penalty or forfeiture? In considering this question, it is our problem, as it was that of the court below, to determine not what we would rule were it a case of first impression before us, but which of said statutes a California court would apply if it had jurisdiction of this case. Hall v. Copco Pacific, Ltd., 9 Cir., 1955, 224 F.2d 884. Appellants have five prongs to their spear in their attack on the one year penal statute interpretation. We discuss each of appellants’ contentions in turn. (A) Appellants suggest that “at least one California trial court has construed the action as compensatory rather than penal.” This decision is unreported, but what purports to be a certified copy of a “Memorandum and Order on Demurrers and Motions to Strike” is attached to appellants’ opening brief as an appendix. It is from the Superior Court of the State of California in and for the County of Fresno, No. 97179, and is entitled “Charles S. Ehrhorn, d.b.a. Navy Gas Co., Plaintiff, vs. Caminol Company, et al, Defendants.” The trial judge in Ehrhorn v. Caminol Co., supra, first sustains certain general and special demurrers, and grants leave to amend. He likewise states: “The Court is of the opinion that the three year statute of limitations applies.” This is a state action based on the Cartwright Act, a state antitrust statute. No reasons are given for the holding; and no authority is cited. We do not know what the precise issue was, raised by the pleadings then before the trial judge, or whether he was merely delivering “an advisory opinion” to aid counsel for plaintiffs therein in drafting his required new complaint. We think it of some, but little, precedential value. We adopt in this connection a portion of appellees’ argument, appearing in their opening brief: “[A] decision of the Superior Court at an intermediate stage of the case is binding on no one, Stevens v. Key-Resistor Corp. (1960) 186 C.A.2d 325, 8 Cal.Rptr. 908; Carley v. City of Santa Rosa (1957) 154 C.A.2d 214, 315 P.2d 905; Curnutt v. Holk (1962) 203 A.C.A. 6 [203 C.A.2d 6, 21 Cal.Rptr. 224]; Phillips v. Phillips (1953) 41 Cal.2d 869, 874, 264 P.2d 926; Grable v. Citizens Nat. Trust & Sav. Bank (1958) 164 C.A. 2d 710, 331 P.2d 103, and even a final decision is not binding on any other superior court. People v. Cowles (1956) 142 C.A.2d [Supp.] 865, 298 P.2d 732; see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [20 Cal.Rptr. 321] 369 P.2d 937. Superior Court opinions are rarely reported in California and there is no digest of points decided in such opinions. It is precisely for this reason that King v. Order of [United Commercial] Travelers (1948) 333 U.S. 153, 161-162 [68 S.Ct. 488, 92 L.Ed. 608], held that state trial court decisions need not be regarded by federal courts in diversity actions as declaratory of state law. Otherwise a plaintiff might secure a fortuitous victory in a federal court by virtue of an authority that would not be recognized in the state courts and might be contrary to many other such unreported cases. “Upon the basis of its own thorough knowledge of the nature of California Superior Courts, this Court in State of California [Dept. of Employment] v. Fred S. Renauld & Co., 179 F.2d 605 (9 Cir. 1950) with careful analysis rejected an argument that a decision of a Superior Court is binding on the United States Court of Appeals, saying (179 F.2d at 609): ‘federal courts are bound (a) when the supreme judicial tribunal of the state has decided a given question, or (b) a state appellate court which is in the line of the state appellate structure leading up to the supreme tribunal of the state has decided it, or (c) a goodly number of the trial courts of the state generally and for a considerable period of time have adhered to a common interpretation of the point. Neither of the cited California decisions is binding on any other court of the state excepting only that the Superior Court Appellate Department decisions may be said to be binding on other Municipal Courts of the county in which the decision was had. ‘It is our opinion that neither of the California cases cited falls within either of the categories mentioned and neither, nor both of them together, bind the federal court.’ ” (Emphasis appellees’.) In Reid v. Doubleday & Co., N.D.Ohio 1952, 109 F.Supp. 354, Judge Kloeb, a trial judge experienced in antitrust litigation, held that treble damages awarded under the Robinson-Patman Act were remedial rather than penal, and in doing so, considered whether a federal court, in determining what state law is or is to be, and eliminating "other persuasive evidence,” must follow (a) the Supreme Court of that state; (b) an intermediate appellate court; (c) lower state courts of original jurisdiction. He stated the answers are to (a) “Yes.” Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; to (b) “Yes.” King v. Order of United Commercial Travelers of America, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608; Six Companies of Cal. v. Joint Highway District, 1940, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114, reh. den. 311 U.S. 730, 61 S.Ct. 438, 85 L.Ed. 475; Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, reh. den. 311 U.S. 730, 61 S.Ct. 438, 85 L.Ed. 475; to (c) “Yes and no.” King v. Order of United Commercial Travelers of America, supra, 333 U.S. at 159, 68 S.Ct. at 491, 92 L.Ed. 608. The federal courts, he concludes, may or may not follow the lower state courts, as they think proper. In deciding the matter, Judge Kloeb relied on many of the cases later cited and discussed herein (109 F.Supp. p. 363). (B) Turning to the cases which appellants list as recognizing the three year statute, we find the following listed: Burnham Chemical Co. v. Borax Consolidated, 9 Cir., 1948, 170 F.2d 569, 578, cert. den. 336 U.S. 924, 69 S.Ct. 655, 93 L.Ed. 1086, reh. den. 336 U.S. 955, 69 S.Ct. 878, 93 L.Ed. 1109; Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir. 1950, 185 F.2d 196, 207; cert. den. 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680, reh. den. 341 U.S. 912, 71 S.Ct. 620, 95 L.Ed. 1349; Steiner v. 20th Century-Fox Film Corp. supra. (In the last two cases cited the authority is dimmed somewhat by the fact the parties agreed that the three year statute applied.) Four district court decisions are then listed — two each from Northern and Southern California: Aero Sales Co. v. Columbia Steel Co., N.D.Cal.1954, 119 F.Supp. 693; Manny v. Warner Bros. Pictures, S.D.Cal.1953, 116 F.Supp. 807; Levy v. Paramount Pictures, N.D.Cal. 1952, 104 F.Supp. 787; United West Coast Theatres Corp. v. South Side Theatres, S.D.Cal. 1949, 86 F.Supp. 109. In the Burnham Chemical Co. case, supra, a reading indicates that this court stated (170 F.2d at p. 578): “The [trial] court therefore properly held the cause barred by Section 338(1) of the California statute of limitations.” (Emphasis added.) The “therefore” refers to the fact that “the only damages for which a recovery might be had (under federal antitrust laws) are those which accrued and were suffered «within three years prior to the filing of the complaint and the record reveals that none were shown during this period.” Obviously if no damages could be shown during a three year period immediately prior to the filing of the complaint, none could be shown during the one year period prior to the filing of the complaint; hence no choice between the two periods was offered the court, nor any choice between the two periods necessary or required. Thus a reading of Burnham, supra, Suckow Borax Mines, supra, and Steiner v. 20th Century-Fox, supra, indicates that in none of these has the precise issue here present been met. In the first it was not necessary because of the facts; in the last two, the three year statute was agreed upon by the parties as applicable. In Aero Sales Co. v. Columbia Steel Co., N.D.Cal.1954, 119 F.Supp. 693, Judge Harris held that Judge Goodman, in Wolfe v. National Lead Co., had already decided the question that the treble damage provision of the Clayton Act was not penal, hence the three year statute prevailed, and that Judge Harris concurred despite “persuasive arguments” in favor of the one year penalty theory. Judge Harris also referred to the United West Coast Theatres (supra) opinion which was written by Judge Mathes (the same judge who came to the opposite conclusion in our instant case). Judge Harris discussed and differentiated Ben C. Jones & Co. v. West Publishing Co., 5 Cir. 1921, 270 F. 563, dismissed, 270 U.S. 665, 46 S.Ct. 208, 70 L.Ed. 789, upon two grounds — (1) it had not been followed, either in the courts of Texas nor in the federal courts sitting in that state, and (2) that in the Jones case, the four year statute was an effective bar, without a consideration or discussion as to whether the two year Texas statute prevailed, as the action was barred by either statute of limitations. In Manny v. Warner Bros., supra, Judge Westover specifically noted: “[I]t is immaterial whether the plea of the statute of limitations is under the provisions of subdivision 1 of § 340 or subdivision 1 of § 338 of the Code of Civil Procedure of the State of California. If the contention of moving defendants is correct * * then the cause of action is barred by both sections.” (116 F.Supp. at 808-809.) In Levy v. Paramount Pictures, supra, Judge Carter.assumed the three year statute applied, without the necessity of determining whether the one year statute was applicable. In United West Coast Theatres Corp. v. South Side Theatres, supra, Judge Mathes, after reciting that the California courts had not decided the point (86 F.Supp. at 110), ruled: “ * * * the nature of the remedies accorded a private person * * would seem to mark the liability as one ‘created by statute, other than a penalty or forfeiture.’ * * * ” (the language used in § 338(1)) Judge Mathes then cites Fleitmann v. Welsbach Street Lighting Co., 1916, 240 U.S. 27, 29, 36 S.Ct. 233, 60 L.Ed. 505; United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119, and relies upon Burnham Chemical, supra, already discussed as a ninth circuit case supporting his position, and refers to Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir. 1936, 85 F.2d 742, 751-753, cert. den. 299 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Culver v. Bell & Loffland, 9 Cir. 1944, 146 F.2d 29, 31, and states: “[T]his action having been commenced more than six years * * * thereafter * * * [each claim for damages had accrued] the counterclaim is long barred by § 338(1) of the California Code of Civil Procedure, unless * * * tolled.” In reversing his position in his reexamination of the problem in this case, Judge Mathes gave it careful study. He states in his memorandum of decision filed August 30, 1962 (to be considered as his Findings and Conclusions, 208 F. Supp. at 291): “The correct method whereby to determine which State statute of limitations is properly applicable to a cause arising under the antitrust laws prior to the Federal limitations statute has been the subject of some judicial disagreement. One view is that, inasmuch as the private antitrust action involves a Federal cause of action, whatever State limitations period is to be applied turns upon the Federal court’s view as to the nature of the Federal action, as being either ‘remedial’ or ‘penal’. [Cf.: Fulton v. Loew’s Inc., 114 F. Supp. 676, 682 (D.Kan.1953); Christensen v. Paramount Pictures, 95 F.Supp. 446, 449 (D.Utah 1950); see also Momand v. Universal Film Exchange, 43 F.Supp. 996, 1008-1009 (D.Mass.1942).] And since the Court concluded in the Chattanooga Foundry case, supra, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241, that actions for treble damages under the Federal antitrust laws are not subject to the general Federal statute of limitations governing actions to recover a ‘penalty’ under the laws of the United States [28 U.S.C. § 791, as amended, id. § 2462 (1948)], it has been reasoned that a State limitations statute dealing with recovery of ‘penalties’ in the State courts cannot in any event be applied to treble-damage claims grounded upon Federal antitrust violations. [See: Greene v. Lam Amusement Co., 145 F.Supp. 346, 348 (N.D.Ga.1956); Wolf Sales Co. v. Rudolph Wurlitzer Co., 105 F.Supp. 506, 509 (D.Colo.1952).] “The majority view, however, as formulated in recent years, holds that the question of limitations applicable to private antitrust actions was, as Mr. Justice Holmes put it, ‘left to the local law by the silence of the Statutes of the United States’. [Chattanooga Foundry & Pipe Works v. Atlanta, supra, 203 U.S. at 397, 27 S.Ct. 65.] Moreover, the word ‘penalty’, as applied in a Federal statute such as 28 U.S.C. § 2462, obviously may have ‘a different meaning than the same word in the * * * [State] statute’. [Bertha Building Corp. v. National Theatres Corp. 269 F.2d 785, 788 (2d Cir. 1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960).] Accordingly, in keeping with the principle that statutory construction by a State’s highest court is deemed an integral part of the text of the State’s statute of limitations, it has been declared that Federal courts ‘must accept the statutes as construed and interpreted by the * * * [State] courts. It is for them to determine what is meant by the word “penalty” in the * * * [State] statute’. [Bertha Building Corp. v. National Theatres Corp, supra, 269 F.2d 785, 788, (2d Cir. 1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960); cf.: Moore v. Illinois Central R. Co, 312 U.S. 630, 634, 61 S.Ct. 754, 85 L.Ed. 1089 (1941); Costello v. Bank of America, 246 F.2d 807, 812 (9th Cir. 1957).] “Adherence to the rationale just stated has required' the Federal courts to compare the nature of the Federal treble-damage antitrust action with that of analogous State causes, as construed by the courts of the particular State involved, and from such a comparison to decide which local statute of limitations the courts of the State would deem applicable to actions embracing Federal treble-damage antitrust claims. [See: North Carolina Theatres, Inc. v. Thompson, 277 F.2d 673 (4th Cir. 1960) ; Powell v. St. Louis Dairy Co., 276 F.2d 464 (8th Cir. 1960) ; Bertha Building Corp. v. National Theatres Corp., supra, 269 F.2d 785; Gordon v. Loew’s Inc., 247 F.2d 451 (3rd Cir. 1957); Green v. Wilkinson, 234 F.2d 120 (5th Cir. 1956); Hoskins Coal & Dock Corp. v. Truax Traer Coal Co., 191 F.2d 912 (7th Cir. 1951), cert. denied, 342 U.S. 947, 72 S.Ct. 555, 96 L.Ed. 704 (1952); Leonia Amusement Corp. v. Loew’s Inc., 117 F.Supp. 747 (S.D. N.Y.1953); and see: Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947); Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802, 806 (6th Cir. 1961); Momand v. Universal Film Exchanges, 172 F.2d 37, 47 (1st Cir. 1948), cert. denied, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1949); United Banana Co. v. United Fruit Co., 172 F.Supp. 580, 585 (D.Conn. 1959); compare: Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109 (1899); Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892).] “A study of the decisions convinces me that the precedent of seeking guidance from the construction given a particular limitations statute by State courts is a sound one to follow in the case at bar, notwithstanding the inherent difficulty of diverse judicial interpretations in the various States as to the essential nature of private multiple-damage actions. [See: North Carolina Theatres, Inc. v. Thompson, supra, 277 F.2d 673; Bertha Building Corp. v. National Theatres Corp., supra, 269 F.2d 785; Englander Motors, Inc. v. Ford Motor Co., 186 F.Supp. 82, 90 (N.D.Ohio 1960), modified on other grounds, 293 F.2d 802 (6th Cir. 1961).] “Turning, then, to the scope of the three-year [Cal.C.C.P. § 338(1)] and the one-year [Cal.C.C.P. § 340(1)] statutes in question here, as construed by the State coui'ts, it is noted that although the California courts have not as yet interpreted for limitations purposes a similar private-action provision under the State’s antitrust law [see Cal.Bus. & Prof.C. § 16750, as amended, id. § 16750(a) (1959)], they have considered the applicability of both § 338(1) and § 340(1) on several occasions in cases involving circumstances closely analogous to those presented at bar. For example, a statutory provision for recovery of twice the amount paid to a decedent in excess of legally-incurred payments under the State Old Age Security Law has been characterized as ‘penal’, and hence the one-year period of limitation specified in § 340(1) was held applicable. [Department of Social Welfare v. Stauffer, 56 Cal.App.2d 699, 133 P.2d 692 (1943).] “The same result was reached where ‘liquidated damages’ were imposed by statute for failure of gas and electric companies to supply requisite power [Hansen v. Vallejo Electric Light & Power Co., 182 Cal. 492, 188 P. 999 (1920); compare Los Angeles County v. Ballerino, 99 Cal. 593, 32 P. 581, 34 P. 329 (1893)] ; where court reporter fees were reduced for failure to comply with court rules [County of San Diego v. Milotz, 46 Cal.2d 761, 300 P.2d 1 (1956)]; and where a buyer sued for return of the amount paid under a conditional sale contract upon the seller’s interference with payment of the balance of the debt prior to maturity [Stone v. James, 142 Cal.App.2d 738, 299 P.2d 305 (1956)]. “The California courts have also characterized as ‘penal’ a statutory provision for double damages in trespass actions involving timber [Helm v. Bollman, 176 Cal.App.2d 838, 1 Cal.Rptr. 723 (1959); cf. Swall v. Anderson, 60 Cal.App.2d 825, 141 P.2d 912 (1943)]; likewise a statutory provision for treble damages in actions for unlawful detain-er [see: Hoban v. Ryan, 130 Cal. 96, 62 P. 296 (1900); Gwinn v. Goldman, 57 Cal.App.2d 393, 134 P.2d 915 (1943)], as well as for damages to adjacent property caused by fire [Clark v. San Francisco & S. J. Val. Ry. Co., 142 Cal. 614, 76 P. 507 (1904); see also Esposti v. Rivers Bros., 207 Cal. 570, 279 P. 423 (1929)]. “While there has been no such concurrence of views as to the proper characterization of Federal treble-damage antitrust actions [see: Schiffman Bros. v. Texas Co., 196 F.2d 695, 697 (7th Cir. 1952) ; Leonia Amusement Corp. v. Loew’s Inc., supra, 117 F.Supp. at 756; and see Loevinger, Private Action — The Strongest Pillar of Antitrust, 3 Antitrust Bull. 167 (1958)], it is reasonable to characterize such actions as compensatory in part, and as exemplary or penal with respect to the trebling of damages to business or property resulting from antitrust violations [see Lyons v. Westinghouse Electric Corp., 222 F.2d 184, 189 (2nd Cir.), cert. denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) ; cf. Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 365 (9th Cir. 1955)]. “Moreover, the California Supreme Court has characterized as a penalty ‘any law compelling a defendant to pay a plaintiff other than what is necessary to compensate him for a legal damage done him by the former’. [Miller v. Municipal Court, 22 Cal.2d 818, 837, 142 P.2d 297, 308 (1943); see also Grossblatt v. Wright, 108 Cal.App.2d 475, 239 P.2d 19 (1951).] “The conclusion is thus impelled that § 340(1) of the California Code of Civil Procedure, as construed by the California courts, is applicable to treble-damage causes under the Federal antitrust laws which accrued prior to the effective date of the four-year Federal limitations period. [15 U.S.C.A. § 15b.] Inasmuch as plaintiffs’ cause of action admittedly accrued in February of 1954, and this action was not commenced until September of 1956, application of the one-year period specified in § 340(1) would clearly raise the time bar upon which defendants rely for summary judgment of dismissal. * * * ” The trial judge then turned to the ninth circuit cases hereinbefore mentioned, and the previous district court decisions from this circuit, supra, and concluded: “Treating the question as res integra, as I now deem it to be, and having due regard for State-court interpretation of the content of the provisions of both § 338(1) and § 340(1), I must hold that the one-year period specified in Cal.C.C.P. § 340(1) is the California statute of limitations properly applicable to Federal treble-damage antitrust causes accruing prior to the effective date of the Federal four-year statute. [15 U.S.C.A. § 15b.]” We have examined the cases cited in the trial court’s memorandum, and we believe they, and his reasoning based thereon, carry conviction. Cf.: Isom v. Rex Crude Oil Co., 140 Cal. 678, 680, 74 P. 294 (1903) and Penziner v. West American Finance Co., 10 Cal.2d 160, 170, 74 P.2d 252 (1937), and our brief discussion of the penalty theory lying behind treble recovery in antitrust litigation in Flintkote Co. v. Lysfjord, 1957, 9 Cir., 246 F.2d 368, 398, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46. While appellees cite cases from six other state jurisdictions supporting their position, we do not feel that the manner in which other state courts interpret their particular statutes would foretell what the California courts might do, absent an almost unanimous rule in other states. Such unanimity of opinion in other states does not exist. We agree with appellants (Reply Brief, p. 6): “Everyone concedes that the problem is how a California court would characterize this action under the language of the two specific California statutes. If that is the problem, of what assistance is it to know how a New Jersey Court characterized a private antitrust action under different language in different statutes as interpretated (sic) by different decisions.” We realize that Judge Murphy in McLean v. Paramount Pictures, Inc., No. 30262 (in proceedings had on January 10, 1958), held the three year statute applicable, stating: “[T]he Ninth Circuit has never squarely passed upon this issue. However, for almost ten years now the Ninth Circuit has assumed that the three year period of Section 338(1) is the applicable statute.” He cited the cases we have discussed above, his former opinion in Samuel Goldwyn Productions, Inc. v. Fox West Coast Theatres Corp., N.D.Cal.1956, 146 F.Supp. 905, and Christensen v. Paramount Pictures, D.Utah 1950, 95 F.Supp. 446, 449. In Goldwyn, it was said: “The applicability of the three year statute of limitations of Cal.Code of Civil Procedure, § 338(1) * * * to this proceeding is not in issue on this motion, and may be assumed for the purposes of this motion [involving its tolling] to be undisputed.” (146 F.Supp. at 906.) In Christensen, supra, Judge Ritter said: “On the other hand, counsel for plaintiff contend that the Utah statute of limitations for ‘An action upon a statute for a penalty or forfeiture where the action is given to an individual * * *.’ does not apply to actions for treble damages under the Sherman and Clayton Anti-Trust Acts. “It is my judgment that the Utah statute of limitations, when it speaks of an action upon a statute

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?

GOODMAN v. SCHOOL DIST. NO. 1, CITY AND COUNTY OF DENVER, et al. Circuit Court of Appeals, Eighth Circuit. April 17, 1929. No. 8204. Victor Arthur Miller and Mandell Levy, both of Denver, Colo., for appellant. Cass E. Herrington, Herbert M. Munroe, and Cass M. Herrington, all of Denver, Colo., for appellees. Before VAN VALKENBURGH and COTTERAL, Circuit Judges, and SCOTT, District Judge. VAN VALKENBURGH, Circuit Judge. School district No. 1, in the city and county of Denver, state of Colorado, has inaugurated and conducts in certain of the school buildings of said school district cafeterias wherein luncheons are provided for the pupils and teachers of said schools at noontime of each school, day. Employees of the schools also are served, and parents and other occasional visitors are permitted to patronize these cafeterias. Concerning the service to pupils, the testimony is to this effect: “It is not compulsory, but a large proportion are served in proportion varying in the different schools. Some bring their lunches to school and facilities are afforded them for eating those lunches with others in the lunch room. Some bring part of their lunch and buy the rest, particularly in the districts where the poorer classes of children attend.” Classes are in session constantly throughout the school day — approximately from 9 in the forenoon until 3 in the afternoon. There is a luncheon intermission of thirty minutes at noon for the individual pupils. The districts served by these schools are large, having diameters of from two to four miles. Except in individual eases, where they go to their homes for luncheon, pupils are not permitted to leave the school buildings during the noon intermission. This rule is established for the maintenance of school discipline, necessary supervision by teacher’s, for promotion of the best social and democratic spirit among the pupils, and in the interest of their health and welfare. The food at the cafeterias is sold at moderate prices, sufficient, however, to discharge operating expenses and to provide for replacement of worn-out equipment. Profit over and above these requirements is negligible, and is not sought. No return is made in the way of interest upon the capital originally invested in the. establishment of the cafeterias, nor by way of rental for the space occupied by them in the school buildings. All of the lunchrooms are used in some degree for instruction purposes when not in use for lunches. Appellant, a citizen of California, brings her bill against the school district and members of its school board, charging that they have inaugurated a restaurant business for the purpose of buying, cooking, and vending foodstuffs, etc., for money considerations, to the pupils and teachers of the schools within the aforesaid district at noontime of each school day; that large sums of money were expended for the purchase and installation of kitchens, apparatus, and other property; that this business has been and is being conducted in buildings owned for public school purposes, and that foodstuffs have been sold to parties other than students and teachers; that expenditures have been made in various ways out of moneys derived partly from proceeds of bond issues, partly from direct taxation and partly, gs to operating expenses only, from the current proceeds of operation; that all this augments school taxation and amounts to a misuse of public property. It is charged that such conduct deprives the appellant of her property as a taxpayer without due process of law and in violation of the Fourteenth Amendment to the Constitution of the United States; further, that the institution and operation of the alleged business is beyond the scope and power of the school district as defined by the Constitution and laws of the state of Colorado. The jurisdiction of the federal court is based upon diversity of citizenship and the question raised under the Federal Constitution. The prayer was for an injunction to restrain the school district and the members of the school board from continuing the operations complained of. Upon hearing, the finding was for appellees, defendants below, and the bill was dismissed at appellant’s costs. The two grounds for the relief sought are: (1) Unconstitutionality — appellant urges that the operation of these cafeterias is a private enterprise and invokes the principle that taxation used to subserve a private mercantile purpose is violative of the true principle of democratic government, and in tins case deprives appellant, and those similarly situated, of their property without due process of law, and denies to them the equal protection of the laws guaranteed by the Fourteenth Amendment. (2) Ultra vires, to wit, lack of legal power of the school board to conduct such cafeterias under the Constitution and laws of the state of Colorado. 1. That the business does not subserve a private mercantile purpose, but is conducted for the public welfare, that is, for the benefit of the student body, is apparent from the record before us. Parents visiting the schools, for purposes of inspection, are served, if present at the noon hour; likewise employees, in the interest of economy. Occasionally a citizen of the neighborhood has not been denied admission to the lunchroom; but this practice is carefully guarded and its abuse prevented. Altogether outside patronage is so negligible that it may be disregarded. In no event can this operation of the cafeterias be viewed as a mercantile enterprise for private gain. In Laughlin v. City of Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734, the challenge was to the establishment and maintenance of a public yard for the sale of wood, coal, and other fuel, without financial profit, to the inhabitants of a municipality. The Supremo Court of the state of Maine, in the course of its analysis, while upholding the principle that municipalities should neither invade private liberty nor encroach upon the field of private enterprise, found that, in the case before it, the element of commercial enterprise was entirely lacking; that the purpose was neither to embark in business for the sake of direct profits nor for the sake of indirect gains to purchasers through reduction of price by governmental competition. In a case involving the same subject-matter, the Supreme Court of the United States quoted approvingly from Laughlin v. City of Portland, and held that the act establishing such a public yard for the sale of fuel was “a public purpose for which taxes may be levied without violating the Fourteenth Amendment.” Jones et al. v. City of Portland, 245 U. S. 217, 38 S. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660. See also, Green et al. v. Frazier et al., 253 U. S. 233, 40 S. Ct. 499, 64 L. Ed. 878. State legislation permitting a city owning an electric plant to sell electricity to private consumers, while subjecting a competing private corporation to regulation of its rates, does not deny to that private corporation the equal protection of the laws. Springfield Gas & Electric Co. v. City of Springfield, 257 U. S. 66, 42 S. Ct. 24, 66 L. Ed. 131. “The fact that a city engaging in a commercial line of activity competes with and damages one of its inhabitants in his trade or business does not entitle him to relief against municipal action for the city owes him no immunity from competition.” Andrews v. City of South Haven, 187 Mich. 294, 153 N. W. 827, L. R. A. 1916A, 908, Ann. Cas. 1918B, 100. We think these eases decisive of the constitutional question presented. The school board does not conduct these cafeterias for profit, and in commercial competition with private restaurants and eating houses. The students are kept in during the lunch hour for reasons which intimately concern their welfare as students. In conjunction with this administrative rule, the cafeterias are necessary conveniences. Opportunity is thus afforded to the students to enjoy well-selected, well-prepared, and nourishing food, adapted to their needs. The amount charged is only for the purpose of maintaining1 these facilities and not for, commercial profit. In •many cases it is impracticable for the students to reach home and return within time for a proper enjoyment of food. The practice has for its object the physical welfare of the students, which is an important factor in their educational development. It is therefore not obnoxious to constitutional inhibitions. 2. Appellees rely for their authority in establishing these cafeterias, under facts and circumstances shown in evidence, upon section 15, art. 9, of the Colorado Constitution, which provides that the directors of boards of education “shall have control of instruction in the public schools of their respective districts.” Under such a grant, which is, in substance, common throughout the states of the Union, much latitude is indulged, provided the object of the power sought to be exercised is reasonably germane to the purposes of the grant. The question for decision in such eases is thus formulated by the Supreme Court of Indiana: “Is the rule or regulation, for the government of the pupils * * * a valid and reasonable exercise of the discretionary power conferred by law upon the governing authorities of such school corporation?” State ex rel. Andrew v. Webber et al., 108 Ind. 31-35, 8 N. E. 708, 711 (58 Am. Rep. 30). “A board of education has power to adopt such rules and by-laws for the discipline and control of the school as it deems proper, and courts will- not interfere unless there is a clear abuse of the power and discretion vested in the board.” Wilson v. Board of Education of Chicago, 233 Ill. 464, 84 N. E. 697, 15 L. R. A. (N. S.) 1136, 13 Ann. Cas. 330. The presumption is in favor of the proper exercise of power, and “to enjoin such exercise it must appear that the corporation is abusing its discretion.” Waldschmit et al. v. City of New Braunfels et al. (Tex. Civ. App.) 193 S. W. 1077. This statement respecting municipalities generally applies equally to this municipal subdivision. “A rule adopted by a school board for the government of the school will not be interfered with by the courts unless it is so unreasonable as to amount to an abuse of power.” Kinzer v. Directors of Independent School District of Marion, 129 Iowa, 441, 105 N. W. 686, 3 L. R. A. (N. S.) 496, 6 Ann. Cas. 996. Education of a child means much more than communicating to it the contents of textbooks. State ex rel. Stoltenberg v. Brown, 112 Minn. 370-372, 128 N. W. 294. “The board of education is under the duty of establishing and maintaining for the city of Dallas an efficient school system., This is the mandate of the Constitution of the state of Texas, and of the charter of the city of Dallas. In order to effectuate this high purpose, said board has the discretion to exercise any power relating to the school system of said city, not prohibited by law, which it believes will accomplish this result.” City of Dallas et al. v. Mosely et al. (Tex. Civ. App.) 286 S. W. 497, 499, 500. Coming now to the Colorado decisions, we find the following with respect to the implied powers of sueh boards: “Boards of county commissioners possess such powers as are expressly conferred upon them by the Constitution and statutes and such implied powers as are reasonably necessary to the efficient execution of • their express powers and duties.” Board of Commissioners et al. v. Davis, 27 Colo. App. 502, 150 P. 324. And the Supreme Court of Colorado in Hallett et al. v. Post Printing & Publishing Co., 68 Colo. 573, 192 P. 658, 12 A. L. R. 919, has’ said that it is undoubted that the board may provide for the physical as well as the mental education of the pupils, and may, within reasonable limits as to expense, provide means and instrumentalities to that end. The fears that this may lead to unnecessary extravagance are pronounced groundless, and it is suggested that “the people of the district can always control the whole matter by changing the board.” The question in each case is whether the implied powers sought to be exercised are reasonably necessary to the express powers and duties. Appellant cites Speyer et al. v. School District No. 1, City and County of Denver et al., 82 Colo. 534, 261 P. 859, 57 A. L. R. 203, in which it was held that: “Complaint alleging that school authorities maliciously, unlawfully, and without just cause and intending to destroy businesses of plaintiff storekeepers conspired to promulgate and enforce rule requiring pupils to eat noon lunches in school buildings, and forbid students from dealing or trading with plaintiffs, hold to state cause of action.” In this case a demurrer had been sustained in the trial court. This ruling was reversed because of the allegation of malice and absence of just cause. But the court added this significant language: “It may he conceded, so far as this demurrer is concerned, that the mere fact that a public officer bates a person and may be glad to see him suffer as a consequence of that officer’s official act is not enough to justify interference by the courts, and that if the rule is a reasonable one and is made in good faith for the good of the schools and pupils it is of no consequence that it injures plaintiffs’ enterprises or that defendants are glad that it does so; but when, as is here alleged, the officer acts in bad faith, with malice, and from no purpose or motive except to injure another, the case is different.” There is no allegation of malice nor design to injure others in this ease. On the contrary, good faith and honesty of purpose are abundantly shown. Upon both of her points, appellant relies largely upon the language in Detroit Citizens’ St. Railway v. Detroit Railway, 171 U. S. 48-54, 18 S. Ct. 732, 734 (43 L. Ed. 67), quoting from an opinion by Mr. Justice Jackson in Grand Rapids, etc., Power Co. v. Grand Rapids, etc., Co. (C. C.) 33 F. 659, as follows: “Municipal corporations possess and can exercise only snob powers as are ‘granted in express words, or those necessarily or fairly implied, in or incident to the powers expressly conferred, or those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.’ ” From this it is argued that the cafeterias are not indispensable to the express powers conferred upon the board, and their establishment is therefore not within its implied powers. The real proposition involved in Detroit Citizens’ Street Railway v. Detroit Railway, supra, was the authority of the Detroit common council to grant an exclusive franchise or privilege. The Supreme Court held that it had no power either inherent or derived from the Legislature so to do. This ease was decided in 1898, and the opinion of Mr. Justice Jackson was written in 1888. It is doubtful if the implied powers of these administrative boards would be held to be so strictly limited in view of the advances that have been made in the methods employed in our public schools to-day. The rule announced by the Supreme Court of Colorado we think more nearly applies to the situation before us. The Supreme Court of Michigan (Attorney General ex rel. Sheehan v. Board of Education of City of Detroit, 175 Mich. 438-441, 141 N. W. 574, 575 [45 L. R. A. (N. S.) 972]) has this to say: “Boards of education, supported by public sentiment and interest, now commit school districts to various measures and activities which our fathers would have regarded as revolutionary and intolerable. Measures which were once discarded, if they were ever considered in educational affairs, are demonstrably efficient in advancing the interests of education generally. Manual training schools and domestic science schools are examples of comparatively new approved departures in methods of public school training.” The Supreme Court of the United States (Village of Euclid et al. v. Ambler Realty Co., 272 U. S. 365-387, 47 S. Ct. 114, 118 [71 L. Ed. 303, 54 A. L. R. 1016]), quite recently has voiced the same sentiment: “Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a eentury ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.” It is conceded that the practice of operating cafeterias and lunchrooms in connection with public schools has been a matter of growth within the last twenty-five years, and is now almost universal, not only in Colorado, hut in the larger cities of the entire country. While it is conceivable that it may be abused and carried beyond reasonable demands, there is no evidence that this has been done in the instant case. In onr opinion, appellees have acted in good faith in their effprt to establish and maintain an efficient school system; that they have neither offended against the Constitution of the United States nor exceeded the powers conferred upon them by the laws of Colorado. It results that the decree below should be and is affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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 "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 second 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?

The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Rosa Lee Leaman ROOSTH, Appellee. No. 18830. United States Court of Appeals Fifth Circuit. July 19, 1962. Rehearing Denied Sept. 27, 1962. Thos. B. Ramey, Jack W. Flock, Tyler, Tex., Gordon C. Reeves, J. T. Deitschel, Fort Wayne, Ind., Ramey, Brelsford, Hull & Flock, Tyler, Tex., of counsel, for appellant. Chas. F. Potter, Tyler, Tex., Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, Tex., of counsel, for appellee. Before TUTTLE, Chief Judge, and HUTCHESON, RIVES, CAMERON, JONES, BROWN, WISDOM, GEWIN and BELL, Circuit Judges. JOHN R. BROWN, Circuit Judge, joined by TUTTLE, Chief Judge, and RIVES, CAMERON, WISDOM and GEWIN, Circuit Judges. This is the second appearance of this ease. On the first trial the District Court after the jury was unable to agree on a verdict, discharged the jury and thereafter entered j. n. o. v. for the Insurer pursuant to its earlier motion for a directed verdict. F.R.Civ.P. 50(b), 28 U.S. C.A. When that judgment for the Insurer came here on appeal, this Court, by a divided vote, reversed and remanded the case for a new trial. Roosth v. Lincoln National Life Insurance Co., 5 Cir., 1959, 269 F.2d 171. Because of the detailed recitation of the facts in that opinion, it is unnecessary to repeat or even summarize them here. On the retrial pursuant to our mandate, the jury returned a verdict for the beneficiaries of the Assured and against the Insurer. The District Judge made it plain that because of our decision he felt compelled to enter judgment on the verdict against the Insurer. It is equally plain that had it been left to him, he thought the evidence insufficient as a matter of law to sustain any such judgment. The case then came back again to this Court with only two differences — neither of which are decisive — from the prior appeal. First, it was the Insurer, not the Assured, that was seeking to upset the Trial Court’s action. Second, the record while substantially the same in its total teachings and effect, differed in its structure in that documents offered by the Insurer on the first trial to substantiate its charge of fraudulent misrepresentation of prior medical history were on this second trial offered by the Assured. But apart from the technical question of evidence which we discuss briefly later on, the record, in a very real, practical and legal sense, was and is identical. In the routine assignment of cases to the calendar for argument, the second appeal was presented to a panel of this Court different from that deciding the first appeal. After oral argument before that panel, the serious question arose whether, on this identical record, the second panel was in agreement with the decision of the former panel that the evidence was legally sufficient to make a jury issue. In view of this, the Court on its own motion and prior to decision of the second panel ordered the case resubmitted to the full Court. 28 U.S.C.A. § 46(c). See also 5 Cir. R. 25a, 28 U.S.C.A. The parties were invited to file such supplemental briefs as were thought necessary, but after informal consultation between them, counsel commendably concurred in the view that everything that could be said, pro and con, had already been set forth in able briefs filed on the two appeals. Consideration by the full Court on these briefs verified the initial impression that we are here dealing with a record which is as identical as can ever be achieved considering the unavoidable nuances in the testimony of living witnesses. The reconsideration of this identical record by the second panel and now by the full Court revealed another thing of equal positiveness. There are no differences among the Judges of this Court on the questions of law as such. The differences, such as they exist, relate to the facts. It is true, of course, that whether the evidence is sufficient to make out a jury case is a question of law. Marsh v. Illinois Central R., 5 Cir., 1949, 175 F.2d 498. Kirby Lumber Corp. v. Laird, 5 Cir., 1956, 231 F.2d 812; Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914. But it is one only in relation to the particular facts of the particular case. There is no disagreement over the controlling standard, only on whether the evidence does, or does not, satisfy that standard. It is that absence of any disagreement on controlling legal principles and the very substantial actual sameness of the two records which leads us to the conclusion that this is a case calling imperatively for the application of the doctrine of the law of the case. This, we emphasize, is a deliberate choice and is in no sense the product of any erroneous notion that, as a matter of sheer power, application of that doctrine is mandatory. This would, of course, turn our backs on the principle so often recognized by this Court that while this is a rule guiding decision in a given case, the Court is not compelled to follow its former decision. We have too often held that this Court is, and must be, free to determine whether, first, the prior decision was erroneous, and second, and more important, whether the circumstances are such that a different result should be reached. Seagraves v. Wallace, 5 Cir., 1934, 69 F.2d 163; Commercial National Bank v. Connolly, 5 Cir., 1949, 176 F.2d 1004. Of course this approach is consistent with such leading cases as Messinger v. Anderson, 1912, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152; Remington v. Central Pacific R. Co., 1905, 198 U.S. 95, 25 S.Ct. 577, 49 L.Ed. 959; United States v. United States Smelting etc. Co., 1950, 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750; Insurance Group Committee v. Denver & R. G. W. R. Co., 1947, 329 U.S. 607, 67 S.Ct. 583, 91 L.Ed. 547. But we think that when the issue resolves itself, as it does so clearly here, into a question of whether the same body of evidence is enough to permit a jury submission, neither a subsequent, second, or third, panel of this Court, nor the whole Court sitting en bane, should ordinarily undertake to review the correctness of the first decision or, doing so, arrive at a contrary conclusion. This approach has been many times expressed by some of our sister Courts of Appeals and no statement is better than that of the Eighth Circuit. “This court has repeatedly held that the decision on former appeal is the ‘law of the case’ on a question presented in that former appeal, unless the evidence introduced at the subsequent trial is substantially different from that considered on the first appeal, and must be followed in all subsequent proceedings in such case in both district and appellate courts, unless that decision is clearly erroneous and works manifest injustice. The introduction of new testimony at the second trial which is merely cumulative will not prevent the application of this doctrine on the second appeal. While this rule of practice is not a limit of pow- . er, it is nevertheless a salutary one, and should be departed from only after careful consideration on situations arising in specific cases.” Chicago, St. P. M. & O. Ry. Co. v. Kulp, 8 Cir., 1939, 102 F.2d 352, 354, 133 A.L.R. 1445. We are aware, of course, that any such approach seemingly gives secondary importance to the intrinsic merits of the particular case, and more serious, to the likelihood of an injustice being done one or more of the litigants. But this helps to bring into focus the basic notion that we are a part of a system of courts of law. It is the aim and hope, of course, of every tribunal that it can work justice in the cause. But it must function with an appropriate awareness that it is the law which it administers. That means, as is true of many procedural as well as substantive requirements, courts of law must recognize that regard should be given to some factors which are not intrinsically a part of the particular case at hand. Of these other factors, a most important consideration is stability in the law —a sort of permanence and sureness in decision apart from the make-up or composition of the particular tribunal so far as the person of the Judges is concerned. That, of course, is a matter of growing concern to Courts such as this one in which, as a multiple Judge tribunal, we sit by statute in panels of not more than three Judges. 28 U.S.C.A. § 46(c). In more tranquil days and times, an appeal from a second trial would be heard by the same Court as the first appeal. Now, that is highly unlikely, and where it occurs, it is — at least in this Court — due entirely to the laws of chance. That puts a premium on multiple appeals. That is so because, without implying any improper purpose to litigants or their counsel, or acknowledging anything more than, as human beings, Judges will unavoidably have differences in emphasis, approach, or views on close questions in given areas, if the practice is followed for each succeeding panel to arrive at its own decisions, the losing party on the first appeal will naturally strive to bring it back a second, or a third, or a fourth time until all are exhausted. This possibility involves something other than simply more grist for our mill and as to which we should be indifferent. One of the vices is that whether a litigant gets a second, or a third time at bat likewise depends so much on chance, or at least on factors making it most unfair that in one situation a second trial and appeal is available while in another one it is lacking. A variety of possibilities will illustrate these unpredictables: the trial Court enters judgment for a plaintiff on a jury verdict, and we reverse for failure to grant an instructed verdict, but send it back for a new trial because no proper motion for j. n. o. v. has been made, see Yorkshire Indemnity Co. v. Roosth & Genecov Production Co., 5 Cir., 1958, 252 F.2d 650, 657-58. Another trial Judge, in substantially the same kind of case, takes a bolder course, grants the motion for directed verdict and enters judgment for a defendant which on appeal we affirm. In the former situation, the parties will have a second chance and a second appeal. In the latter, it will be a one-shot affair. Countless other variations may readily be envisioned. We think that in a multi-Judge Court it is most essential that it acquire an institutional stability by which the immediate litigants of any given case, and equally important, the bar who must advise clients or litigants in situations yet to come, will know that in the absence of most compelling circumstances, the decision on identical questions, once made, will not be re-examined and re-decided merely because of a change in the composition of the Court or of the new panel hearing the ease. With that in mind, we are of the clear view that nothing about this case warrants our exercising the undoubted power to overrule the prior decision reached by the Court on the first appeal. On the contrary, any effort to re-examine the merits and now declare a result— either the same or a different one — independent of the former decision leads to consequences much more serious to' the permanent, objective, administration of justice under law than any supposed individualized injustice to one or all of the litigants. We need mention only briefly two new matters upon which the Insurer, independent of the sufficiency of the evidence, urges a reversal and remand for still a third trial. ' As to the first, we do not think that because the Assured offered the documentary evidence containing the asserted fraudulent misrepresentations, the oral testimony offered thereafter by the Assured was an impermissible impeachment such as is frequently discussed. See 32 C.J.S. Evidence § 1040d at 1113-1114; 17 Tex.Jur. Evidence § 419. Such oral testimony, at most, was explanatory, and analogous to the offering of other oral testimony, not as impeachment of the veracity of a witness, but merely to prove the truth of the particular facts, even though in contradiction of the story related by such witness. This is quite permissible. As to the second, a fair reading of the charge as a whole negatives any idea based on literalism of the instructions that the jury was misled. It is plain that the question submitted was not whether the various statements, answers, etc. charged to be fraudulent were in fact made, but whether — as made, as they admittedly were— they were made with the requisite Texas intent to deceive or defraud. Thus, as it must to all things and all cases, this one now comes to an end. Affirmed. . Similar cases include New York Life Ins. Co. v. Golightly, 8 Cir., 1938, 94 F.2d 316; Williams v. Order of Commercial Travelers of America, 6 Cir., 1930, 41 F.2d 745; General Motors Acceptance Corp. v. Mid-West Chevrolet Co., 10 Cir., 1934, 74 F.2d 386; Priester v. Southern Ry. Co., 4 Cir., 1925, 6 F.2d 878; Dodd v. Union Indemnity Co., 4 Cir., 1929, 32 F.2d 512; Louisville Trust Co. v. National Bank of Kentucky, 6 Cir., 1939, 102 F.2d 137; Electrical Research Products, Inc. v. Gross, 9 Cir., 1941, 120 F.2d 301. If taken literally, the Sixth Circuit, in this situation apparently would hold that the “former decision is conclusive.” Carpenter v. Durell, 6 Cir., 1937, 90 F.2d 57, 58. . The Insurer stresses these Texas cases. Lock v. Morris, Tex.Civ.App., 1956, 287 S.W.2d 500 (error ref. n. r. e.); Seifert v. Brown, Tex.Civ.App., 1932, 53 S.W.2d 117 (error ref.); Stancil v. Mills & Exports Co., Tex.Civ.App., 1940, 146 S.W.2d 787 (no writ history); McClung Construction Co. v. Langford Motor Co., Tex.Civ.App., 1930, 33 S.W.2d 749 (no writ history); Lincoln v. Pohly, Tex.Civ.App., 1959, 325 S.W.2d 170 (error ref. n. r. e.); Parkerson v. American Hospital & Life Ins. Co., Tex.Civ.App., 1959, 322 S.W.2d 27 (error dismissed); Freed v. Bozman, Tex.Civ.App., 1957, 304 S.W.2d 235 (error ref. n. r. e.); McDonald v. Grant, Tex.Civ.App., 1958, 312 S.W. 694 (error dismissed); Vincent v. Vincent, Tex.Civ.App., 1958, 320 S.W.2d 217 (error ref. n. r. e.); Foster Wheeler Corp. v. Western Wood Products Co., Tex.Civ.App., 1958, 324 S.W.2d 45 (no writ history). . 20 Am.Jur., Evidence § 915; 58 Am. Jur. Witnesses § 797; McCormick and Ray, Texas Evidence § 636; Trice Production Co. v. Dutton Drilling Co., Tex.Civ.App., 1960, 333 SW.2d 607 (error ref. n. r. e.); Masterson v. Bouldin, Tex.Civ.App., 1941, 151 S.W.2d 301 (error refused); Brumit v. Cokins, Tex.Civ.App., 1955, 281 S.W.2d 154 (error ref. n. r. e.); Independence Indemnity Co. v. Pope, Tex.Civ.App., 1929, 14 S.W.2d 330-(error dismissed); Pruett v. Mabry, Tex.Civ.App., 1954, 268 S.W.2d 532 (error-ref. n. r. e.)

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

UNITED STATES of America, Plaintiff-Appellee, v. Martin L. ROEMER, Defendant-Appellant. No. 776, Docket 74-2677. United States Court of Appeals, Second Circuit. Argued March 21, 1975. Decided April 8, 1975. Gerald L. Shargel, New York City (La Rossa, Shargel & Fischetti, New York City, James M. La Rossa, New York City, of counsel), for defendant-appellant. David A. Cutner, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., V. Thomas Fryman, Jr., and Lawrence S. Feld, Asst. U. S. Attys., of counsel), for plaintiff-appellee. Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and MacMAHON, District Judge. Of the Southern District of New York, sitting by designation. J. JOSEPH SMITH, Circuit Judge: After a jury trial in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, Martin Roemer was found guilty of violating 18 U.S.C. § 371 as a party to a conspiracy to defraud the United States. He challenges his conviction primarily on the ground that his trial was not begun within the time limits established by Rule 6 of the Southern Distict’s Plan for Achieving Prompt Disposition of Criminal Cases. He also claims that reversal is required to vindicate his constitutional right to a speedy trial under the Sixth Amendment and that, minimally, he is entitled to a new trial in view of the trial court’s erroneous exclusion of relevant evidence. We affirm the district court’s judgment of conviction. For purposes of this appeal, the details of this case’s progress to trial, rather than the specifics of the criminal activities in which the defendant allegedly engaged, are of foremost concern. Roemer was a civilian buyer for the Army and Air Force Exchange Service’s post exchanges in Europe. According to the indictment, he received payoffs from Fritz Mintz and Morton Penn for using his position to influence the exchanges to purchase merchandise from businesses represented by Mintz and Penn, Penn was granted immunity from prosecution by the government and thereafter became the key prosecution witness in Roemer’s trial. Mintz, named as a defendant in the indictment, has been a fugitive from justice. The government postponed prosecution of this and related indictments, all dated February 25, 1970, while it sought unsuccessfully to secure Mintz’s extradition from Europe. Upon the various defendants’ motion,'Judge Morris E. Lasker of the Southern District, the district judge to whom their cases had been assigned, dismissed their indictments in December, 1972. He based his decision upon Rule 4 of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, rules which have since been superseded by the district court plans. This court on June 11, 1973, granted the government’s petition for a writ of mandamus ordering Judge Lasker to reinstate the indictments. United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974). Although the government plainly was not ready for trial within six months after indictment, as required by Rule 4, we found that its delay was excused under the allowance of Rule 5(e) for a “reasonable period of delay”: It was not the [Second Circuit Judicial] Council’s aim [in drafting the rules] to make the government vulnerable to dismissal of an indictment where a co-defendant is a fugitive from justice and the government, with some reason, delays action against defendants who are present. Id. at 233. After the appellees’ petition for rehearing was denied on August 7, 1973, three of them, not including Roemer, persevered in their efforts to get the indictments dismissed. On September 3, 1973, however, this court denied their motion for a stay of its mandate under Fed.R.App.P. 41(b), and on March 18, 1974, the Supreme Court denied certiora-ri. At this point there ensued a series of errors in communication. Although the government had already in March, 1972, indicated its readiness for trial, Judge Lasker quite appropriately chose to postpone trying the various indictments ordered reinstated by this court in United States v. Lasker, supra, until the Supreme Court had an opportunity to review this court’s issuance of the mandamus. Notification that certiorari had been denied would therefore have set the trials into motion. As requested by counsel in the Supreme Court for three of the defendants in the companion cases (who also served as nominal counsel for Judge Lasker), the Clerk of the Supreme Court immediately sent counsel notice upon the denial of certiorari. The attorneys failed, however, to convey this information to Judge Lasker. Meanwhile, through an oversight in the Solicitor General’s Office, notice of the Court’s action also did not reach the United States Attorney’s Office in the Southern District. In May or early June, Judge Lasker’s secretary telephoned Assistant United States Attorney Frank Wohl, who had agreed to inform the judge of the progress of the case in the Supreme Court. Prompted by the secretary’s inquiry as to the case’s present status, Wohl called the Solicitor General’s Office and learned for the first time of the March 18 denial of certiorari. He promptly conveyed the information by telephone to Judge Lasker’s secretary but apparently neglected to send her a letter, as she requested at the time, reiterating the details of his telephone message. This added precaution to ensure that Judge Lasker received the news of the Supreme Court’s action was sorely missed, moreover, for when Wohl called Judge Lasker on July 24, 1974, to ask about the trial dates set for the seven reinstated indictments, the judge evinced no knowledge of the denial of certiorari. On August 1, 1974, Judge Lasker reassigned Roemer’s case to Judge Wyatt, who, after the government had filed its second notice of readiness, held a pretrial conference on August 14 and set the case down for trial on October 29. Prior to trial, the defendant in a motion to dismiss the indictment asserted his right to a speedy trial under the Southern District’s plan and the federal Constitution. The court denied the motion, the trial began on schedule, and the appellant’s conviction followed. I. Compliance with Rule 6 Rule 6 of the Southern District’s Plan for Achieving Prompt Disposition of Criminal Cases provides: Retrials. Where a new trial has been ordered by the district court or a trial or new trial has been ordered by an appellate court, it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause. Preliminarily, we dispose of the appel-lee’s claim that Rule 6 is inapplicable to this case because, according to the rule’s caption, it deals only with delays in conducting retrials and the delay at issue in the instant case is in commencing a first trial. We read the rule quite to the contrary. It gives greater effect to the draftsmen’s intent for us to regard the title “retrials” as a generally accurate but somewhat under-inclusive description of the rule’s subject matter than to ignore entirely the text’s express affirmation of its applicability to situations “[w]here ... a trial has been ordered by an appellate court ..” This interpretation of the rule accords with the basic principle of statutory construction which gives precedence, in the event of irreconcilable conflict, to words in the body of a provision over those in the caption. See United States v. Minker, 350 U.S. 179, 185, 76 S.Ct. 281, 100 L.Ed. 185 (1956); Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. R., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Strath-earn S. S. Co. v. Dillon, 252 U.S. 348, 354, 40 S.Ct. 350, 64 L.Ed. 607 (1920); Tibke v. Immigration and Naturalization Service, 335 F.2d 42, 45 (2d Cir. 1964); cf. Uniform Commercial Code § 1 — 109:3. The Supreme Court’s explanation in Brotherhood of Railroad Trainmen, supra, 331 U.S. 519 at 528-29, 67 S.Ct. 1387, of the rationale underlying this principle of construction confirms the propriety of invoking it to interpret Rule 6: [Hjeadings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. [Citations omitted]. For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain. We hold, therefore, that Rule 6 is not limited to retrials but instead extends to cases, like the one now before us, which an appellate court orders to a first trial. The 90-day limit established by Rule 6 was clearly not met in this case. This court’s order in United States v. Lasker, supra, that Roemer’s indictment be reinstated became final on March 18, 1974, with the Supreme Court’s denial of certiorari, and the trial did not get underway until October 29, more than seven months later. The relevant inquiry thus becomes whether or not the delay beyond 90 days was the result of “good cause,” within the meaning of Rule 6. Two precepts laid down in our prior decisions guide this inquiry. First, “the escape hatch of ‘good cause’ must be construed with an awareness of the practicalities.” United States v. Drummond, 511 F.2d 1049, 1053 (2d Cir. 1975). Secondly, “the Plan was not established primarily to safeguard defendants’ rights . [but instead] to serve the public interest in the prompt adjudication of criminal cases.” United States v. Flores, 501 F.2d 1356, 1360 n. 4 (2d Cir. 1974) (per curiam). Attention to these considerations indicates the inappropriateness of charging the delay from March 18 to July 24 to the court. Judge Lasker’s Supreme Court counsel and his secretary were obviously remiss in failing to relay to him messages that certiorari in United States v. Lasker had been denied. It is dubious, however, that the public interest in deterring unnecessary delays in bringing cases to trial would be seriously dis-served by excusing in this instance delay attributable to negligence of this sort. Some sacrifice of this deterrent interest is validated, moreover, by the concomitant vindication of the public’s competing interest in the punishment and deterrence of criminal behavior. Furthermore, having been indulgent of delay stemming from similar administrative oversight in this court, United States v. Drummond, supra, 511 F.2d 1049, at 1054 (mandate ordering new trial not issued until more than two months after opinion so requiring), we are loathe to create a double standard by treating district court-initiated delays during this same period more severely. Through no fault of its own, the United States Attorney’s Office in New York did not learn of the denial of certiorari until May or early June. The delay from March 18 to at least May 1, then, cannot fairly be charged against the prosecution. Nor, in view of the probably minor deterrent effect of punishing the Solicitor General’s Office for its negligence in this matter and the competing public interest in enforcement of the criminal laws, should this period of delay be counted against the government generally. Even if the court is excused until July 24 and the government until as late as mid-June, each allowed more than 90 days to run before Roemer’s trial. Both apparently assumed that Rule 6, like Rule 4 (“All Cases: Trial Readiness and Effect of Non-Compliance”) and the superseded Second Circuit rules, establishes a date by which the government must declare its readiness for trial, rather than a deadline by which the trial itself must begin. Manifestly, if readiness were the test applicable to this case, the district court plan would be satisfied, for the government had long since indicated its preparedness to proceed to trial in March, 1972. When this court in United States v. Drummond, supra, held that Rule 6 (in the identical Eastern District Plan) was a trial-oriented rather than readiness rule, we excused the delay stemming from the government’s action upon the contrary assumption: [T]he prosecution was ready to try Drummond again without undue delay and obviously misapprehended the change brought about by the Eastern District Plan adopted a few months before. The new Rule was a departure from the former requirement of prosecutorial readiness only, which still permeated the rest of the Plan. Rule 6 does not mention any sanction for failure to comply with it and was adopted without any published focus on the change for retrials. 511 F.2d 1049 at 1053. Since Drummond was not decided until February 11, 1975, the court and government obviously lacked in the instant case the advantage of Drummond’s clarification of the rule’s focus on the trial itself. The same considerations which counseled an indulgent view in Drummond of delay resulting from a construction of Rule 6 in terms of readiness for trial rather than actual commencement of trial apply with equal force in this case. Also as in Drum-mond, furthermore, a determination that “good cause” justified the delay is more easily made in light of the defendant-movant’s failure to request a trial prior to the expiration of the 90-day period set by Rule 6 as well as his freedom on bail throughout the months in question. See id. at 1054. We therefore reject the appellant’s contention that Rule 6 of the Southern District’s plan requires dismissal of the indictment. A number of mishaps and mistaken assumptions generated the delay beyond 90 days and provided “good cause,” within the meaning of Rule 6, for such delay. We wish to indicate, however, our serious concern at the sluggishness with which justice was finally achieved in this case and take this opportunity to remind district courts and government attorneys of their present responsibility to keep abreast of developments in cases to which they are assigned. Measures must be taken both in the offices of the courts and the offices of the government prosecutors to flag the time requirements in all criminal cases. Failure to do so in the future will not be treated lightly. Particularly under the generally more stringent requirements of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174, scheduled to take effect on July 1, 1975, negligence of the sort displayed in this case is likely to lead to the dismissal of indictments. II. Satisfaction of Sixth Amendment Rights Notably less substantial is Roemer’s claim that he was denied his Sixth Amendment right to a speedy trial. In United States v. Lasker, supra, we considered the period from the indictment’s rendition in February 1970, until March, 1972. In light of the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as relevant to the consideration of Sixth Amendment speedy trial claims —“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”— we determined that Roemer’s constitutional right to a speedy trial had not been violated. United States v. Lasker, supra, 481 F.2d 229 at 237. Since the delay has grown beyond that period considered in Lasker, our decision in that case does not compel a similar result here. The appellant’s inability to point to any change in the Barker v. Wingo factors other than length of delay, however, calls for the same disposition of his current Sixth Amendment claim as his earlier one. Thus, the appellant contends that “some degree of prejudice should be presumed,” but plainly the balancing test elucidated in Barker v. Wingo contemplates a showing of actual prejudice. See Barker v. Wingo, supra, 407 U.S. 514 at 532-33, 92 S.Ct. 2182. Also fallacious is Roemer’s attempt to characterize his 1972 motion to dismiss for post-indictment delay as an assertion of his right to a speedy trial and thus a factor in his favor this time in the Barker v. Wingo calculus. This claim overlooks the very different footing on which Roemer’s case was placed by Judge Lasker’s dismissal of the indictment. In view of the dismissal, the mandamus ordering the district court to reinstate the indictment must be seen as the functional equivalent, for purposes of the present speedy trial claim, of an initial indictment. Only a demand for trial after the mandamus would therefore support a subsequent motion to dismiss for delay based upon the Sixth Amendment. The defendant obviously could have tried to hasten his day in court by asking for it. He chose not to do so, however, in hopes of catching the government in a violation of statutory or constitutional norms. As Barker v. Wingo makes eminently clear, a defendant follows such a course at almost certain detriment to his cause. See id. at 531-32, 92 S.Ct. 2182. We conclude that Roemer was granted the speedy trial guaranteed him by the Sixth Amendment. III. Propriety of Evidentiary Ruling Finally, Roemer argues that the district court erred in refusing to allow him to offer proof of his generally scrupulous attention to his duties. By establishing himself as a model employee for some 20 years, Roemer hoped to convince the jury that he must have acted properly in his dealings with Mintz and Penn. The appellant concedes that evidence of this sort is regularly excluded on grounds of relevance. He maintains, however, that the trial court abused its discretion in excluding this evidence after it had allowed the prosecution to offer proof of Roemer’s general faithlessness to his public trust. This proof lay, according to the appellant, in the prosecution’s effort to establish Roemer’s violation of a “Certificate of Understanding” signed by him which set forth conflict of interest rules by which Roemer was expected to abide in the performance of his duties. Not having taken exception to the introduction of this evidence in the district court, the appellant can only complain of the court’s admission of the certificate into evidence if it amounted to plain error. Probably mindful of the stringent standards for recognizing plain error, see Troupe v. Chicago, D. & G. Bay Transit Co., 234 F.2d 253, 259-60 (2d Cir. 1956), Roemer eschews a plain error tack in favor of one based on the proposition that the erroneous admission of evidence offered by the prosecution justifies the otherwise erroneous admission of evidence offered by the defense. Roemer’s claim is thus basically a strained effort to avoid the demanding test for reversal on plain error, an elaborate attempt to argue that two wrongs do make a right. We have little difficulty finding, therefore, that the district court ruled quite within its discretion in excluding the evidence of Roemer’s faithful performance of his tasks over the years. The appellant’s trial was initiated with sufficient promptness to satisfy Rule 6 of the Southern District’s Plan for achieving Prompt Disposition of Criminal Cases as well as the Sixth Amendment to the Constitution. In addition, the proffered evidence of Roemer’s ever-scrupulous attention to possible conflicts of interest in the performance of his duties was properly excluded for irrelevance. The judgment of conviction is therefore affirmed. Affirmed. . § 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. . The statement of facts to follow is based in part upon two affidavits submitted by the government to this court. Neither in his reply brief nor at oral argument did Roemer object to the truth of the allegations contained therein. Moreover, in ruling upon a motion to dismiss one of the seven related indictments involved in United States v. Lasker, supra, Judge Tenney of the Southern District of New York accepted the assertions in these affidavits. United States v. Carone and Mintz, 70 Cr. 132 (S.D.N.Y. March 4, 1975). . The government also attempts to obviate attention to the merits of the Rule 6 claim by arguing that Roemer waived his right to raise this claim. It is true that the defendant did not move before trial to dismiss the indictment under Rule 6, and Rule 7 provides that “failure of a defendant to move for discharge prior to plea of guilty or trial shall constitute waiver of such rights conferred by these rules.” Roemer did make a timely motion, however, to dismiss for undue delay under Rule 4. In light of our ultimate disposition of this alleged ground for reversal, we may assume arguendo that the Rule 4 motion asserted the appellant’s right to be tried within the time limitations set by the district court plan with sufficient clarity to avoid the effect of both Rule 7 and the general prohibition on raising issues for the first time on the appellate level. . Although Roemer did not pursue possible appellate reversal of this court’s decision in United States v. Lasker after August 7, 1973, he plainly stood to benefit from his co-appellees’ efforts in this regard. The order directing a trial for Roemer did not therefore become final until his co-appellees’ attempt to overturn Lasker came to rest with the Supreme Court’s denial of certiorari. . Rule 6 sets the time limit for the trial to commence, not for the government to declare its readiness to try the case. See United States v. Drummond, 511 F.2d 1049, 1052 (2d Cir. 1975). See also text accompanying notes 6-8 infra. . Although Judge Wyatt commenced the trial “not later than” 90 days after the assignment of Roemer’s case to him (specifically, on the 90th day), the court may not be viewed in terms of its individual members for purposes of calculating delay. See United States v. Drummond, supra, 511 F.2d 1049, at 1053. Judge Lasker’s week on the case (July 24-Au-gust 1) therefore brings the judicial total, excusing for “good cause” the period prior to July 24, to more than 90 days. . The government’s second notice of readiness (in August, 1974) was superfluous. See United States v. Bisgyer, 384 F.Supp. 504, 505 (S.D.N.Y.1974). . Rule 7 expressly rejects the equation of a failure to demand a trial with a waiver of one’s rights under the rules. . Brief of Appellant at 31. . See Brief of Appellant at 38. It should be noted that the district court did permit Roemer to introduce evidence tending to prove that his dealings with Mintz and Penn specifically were always legitimate. . Whether the admission into evidence of the certificate in fact constituted error thus need not be decided. It appears, however, that it was properly admitted to lay the groundwork for proof of criminal ; '

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.

Andrew REUTHER, Appellant, v. TRUSTEES OF the TRUCKING EMPLOYEES OF PASSAIC AND BERGEN COUNTY WELFARE FUND and United States of America and Ray Marshall, Secretary of Labor, (Defendant-Intervenors in D. C.). Appeal of REUTHER MATERIAL CO., INC. No. 77-1986. United States Court of Appeals, Third Circuit. Argued March 30, 1978. Decided April 28, 1978. Brigadier & Margulies, Jersey City, N. J., for appellant; Robert E. Margulies, Jersey City, N. J., on brief, Franzblau, Falkin & DiMarzio, Newark, N. J., for the Trustees of the Trucking Emp. of Passaic and Bergen County Welfare Fund; Gary L. Falkin, Newark, N. J., of counsel. Carin Ann Clauss, Sol. of Labor, Washington, D. C., Francis LaRuffa, Regional Sol., New York City, Monica Gallagher, Associate Sol., Washington, D. C., Jonathan L. Goldstein, U. S. Atty., Newark, N. J., Mary S. Calfee, Atty., U. S. Dept, of Labor, Ray Marshall, Plan Benefits Security Division, Washington, D. C., for the United States and the Secretary of Labor. Jones, Cuccio & Klinger, Hackensack, N. J., for John Ruzila, Peter Ruzila and Ruzi-la’s Exp. Service, Inc., as amicus curiae; Walter H. Jones, III, Hackensack, N. J., Donald G. Koch, Newark, N. J., on brief. Before ALDISERT, GIBBONS and HIG-GINBOTHAM, Circuit Judges. OPINION OF THE COURT ALDISERT, Circuit Judge. In this appeal we are asked to construe an important provision of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. The district court determined that a provision of the Act time-barred both the individual appellant, Andrew Reuther, and the corporate appellant, Reuther Material Co., Inc., which is partly owned by the individual appellant, from successfully asserting a claim for the return of contributions mistakenly paid into a pension fund. The court granted summary judgment in favor of the trustees of the pension fund, holding that the contributions were made by a mistake of fact and the claim for refund is thus barred by 29 U.S.C. § 1103(c)(1H2)(A): (c)(1) Except as provided in paragraph (2) . . . , the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan. (2)(A) In the case of a contribution which is made by an employer by a mistake of fact, paragraph (1) shall not prohibit the return of such contribution to the employer within one year after the payment of the contribution. Because we hold that these provisions do not bar appellants’ claim,, we reverse the district court judgment. I. The facts are not in dispute. Andrew Reuther was employed by the Reuther Material Co. as a truck driver from 1947 until 1965. He subsequently served as a managerial employee of the company and is now vice president and part owner. From 1957 until April 2, 1976, the company made contributions on behalf of Andrew Reuther to a pension plan known as the Trucking Employees of Passaic and Bergen County Welfare Fund. The plan is a “defined benefit” plan under 29 U.S.C. § 1002(35), that is, “a pension plan other than an individual account plan”, which antedated the effective date of the relevant portions of ERISA, January 1, 1975. Although Reuther applied for a pension in December 1975, it was not until April 8, 1976, that the trustees denied the application. In justifying the denial, the trustees stated that Reuther was “an integral part of the management” and thus was neither entitled to service credit after 1965, the year he became a managerial employee, nor eligible for a pension. Denied the pension, Reuther demanded the refund of $12,320.12, an amount representing all contributions made by the company for the hours he had worked. The trustees offered him $1,686.22, a sum representing contributions made for the year ending April 5,1976, but refused to refund the remainder on the ground that the application for the return of the contributions was barred by ERISA § 1103(c)(lH2)(A). II. ERISA provides for comprehensive federal regulation of employee pension plans. For the purposes of this case, certain statements of congressional findings and policy declarations assume special significance: • (a) The Congress finds that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; . . . that despite the enormous growth in such 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; . (c) It is hereby further declared to be the policy of this Act to protect interstate commerce, the Federal taxing power, and the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance. 29 U.S.C. § 1001. Thus it is readily apparent that the major concern of Congress was to ensure that bona fide employees with long years of employment and contributions realize anticipated pension benefits. Because ERISA is employee-oriented, Congress specifically provided that the assets of a plan “shall never inure to the benefit of any employer”. 29 U.S.C. § 1108(e)(1). The starting point of our analysis is a recognition that two discrete issues confront us on appeal. The first is whether § 110S(c)(l)-(2)(A) applies retrospectively to bar the refund of contributions made before the effective date of the Act. The second issue concerns those contributions made by the corporate appellant after the effective date of ERISA; appellees concede that such an employer is entitled to the return of contributions, but only to the extent a claim is made “within one year after the payment of the contribution.” 29 U.S.C. § 1103(c)(2)(A). Although the parties did not treat these as separate issues, we believe that they raise considerations necessitating separate treatment. A. We turn first to the question whether an employer may seek the return of contributions made to a “defined benefit” plan prior to the effective date of the Act on behalf of a named employee whom the trustees later find to be unqualified for pension benefits. The trustees’ case stands or falls on the interpretation of one clause in the comprehensive statute: “a contribution which is made by an employer [may be returned] to the employer within one year after the payment of the contribution.” (Emphasis added). The provision went into effect January 1, 1975. The trustees would have us expand the congressionally expressed present tense of the copulative verb, “is”, to the past tense, “was”, or the present perfect tense, “has been”, in order to encompass contributions made prior to the effective date of the Act. We believe that the plain meaning of the statutory language militates against this broad interpretation. Although we heed Learned Hand’s admonition “not to make a fortress out of the dictionary”, Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), we must, in the Anglo-American tradition, respect Lord Atkinson’s venerable advice that “[i]f the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed . . . .” Vacher & Sons, Ltd. v. London Society of Compositers [1913] A.C. 107, 121 (House of Lords). Simply put, the use of the present tense “is” indicates that this provision is to apply only to contributions made after the effective date of ERISA; if Congress had intended otherwise, it could have stated “In the case of a contribution that is, was, or has been made by an employer”. We find even more formidable support for appellants’ case when we examine the entire statutory schema for an understanding of Congress’ intention as to acts, omissions or circumstances which arose pri- or to ERISA’s effective date. ERISA’s supersedure provision declares that the Act “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . ,” 29 U.S.C. § 1144(a), but it immediately qualifies this proposition with a provision that we believe is most persuasive, if not absolutely controlling, in our quest for congressional intention: “This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975/’ 29 U.S.C. § 1144(b)(1). This language compels the inference that acts or omissions that occurred prior to the effective date of ERI-SA are not controlled by the provisions of the Act. Any doubt as to this reading has been totally dissipated by a recent pronouncement of the Supreme Court in a case involving pre-ERISA activities in a pension plan similar to the one before us: “Because ERI-SA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case.” E. I. Malone v. White Motor Corp., - U.S. -,-n.l, 98 S.Ct. 1185, 1187 n.l, 55 L.Ed.2d 443 (1978) (emphasis added). See also Bacon v. Wong, 445 F.Supp. 1189 (N.D. Cal. 1978). The contributions of Reuther Material Co. before January 1, 1975, were surely “events before that date”. Accordingly, we are satisfied that the district court erred in accepting the appellees’ contention that § 1103(c)(l)-(2)(A) is relevant to a refund of contributions made prior to January 1, 1975. B. The second issue commanding our attention is the status of contributions made between January 1,1975, the effective date of the Act, and April 5,1975, the beginning date of the one-year period of contributions authorized for refund by the trustees. Chronology is significant. Application for the pension was made in December 1975; it was rejected on April 8, 1976. The claim for refund followed in April 1976, and the trustees’ subsequent offer was predicated on the one-year period set forth in section 1103(c)(2)(A), to-wit, from April 1975 to April 1976. Had the trustees acted immediately on the pension request and decided the application in December 1975, Reuther Material Co. would not have made contributions from January to April 1976. The time lag between Reuther’s application and the trustees’ denial thus had a direct bearing on the denial of a refund of contribution paid from January 1975 to April 5, 1975. Because Congress has emphasized “the equitable character” of the regulated pension plans, 29 U.S.C. § 1001(c), supra, we believe that equitable principles should be applied in this case. We are not persuaded that the December 1975 to April 1976 delay in reviewing the pension application can be attributed to Reuther. We are impressed that some action on the pension was initiated in December 1975, albeit by Andrew Reuther, and not the company. Under these unusual circumstances, we believe that the “equitable doctrine” of Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946), should be considered. Holmberg dealt with fraud, and reaffirmed “the old chancery rule that where a plaintiff has been injured by fraud and ‘remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.’ Bailey v. Glover, 21 Wall. 342, 348, 22 L.Ed. 636.” 327 U.S. at 397, 66 S.Ct. at 585. The Court, speaking through Mr. Justice Frankfurter, stated: “This equitable doctrine is read into every federal statute of limitation.” Id. While recognizing that the case before us does not involve fraud, we note that it does present a factual complex in which there was “no want of diligence or care” by appellants. Appellants did not discover that Andrew Reuther was not eligible for the pension until four months after the pension application; the date of determination of ineligibility, unlike the date of pension application, fell more than one year beyond the effective date of the Act. Under these circumstances, we believe that it would be congruent with the congressional emphasis on the “equitable character” of the pension plans to apply the Holmberg “equitable doctrine” here. We recognize that Holmberg is not, in John W. Salmond’s formulation, “authoritative precedent”, but it at least rises to the dignity of a “persuasive precedent”. Thus, we will treat the December application of Andrew Reuther for a pension as equivalent to the filing of a claim for refund by the corporate appellant. So perceived, it follows that it would be inequitable for the trustees to retain contributions made during the three months of 1976 when they were considering the pension application. Accordingly, without purporting to establish a rule, but deciding only that the unusual circumstances of this case call into play equitable principles, we conclude that the one-year period of § 1108(c)(l)-(2)(A) does not apply here to bar the application of the corporate appellant for refund of all contributions made on behalf of Andrew Reuther after the effective date of the Act. III. In sum, this case is an appeal from a summary judgment in favor of the pension fund trustees. In reversing that judgment, we do not decide that the corporate appellant is entitled to the return of all contributions made on behalf of Andrew Reuther, but only that the judgment was erroneously based on application of 29 U.S.C. § 1108(c)(l)-(2)(A). The employer may now attempt to show entitlement to the return of some or all of the mistaken contributions made before the effective date of the Act. The judgment of the district court will be reversed and the cause remanded for further proceedings. . The trustees’ position is also supported by the United States and the Secretary of Labor as intervenor-appellees. . The Supreme Court addressed this basic tenet of statutory construction in Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917): It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. Where the language is plain and admits of no more than one meaning, the duty of inter- pretation does not arise, and the rules which are to aid doubtful meanings need no discussion. . . . Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them. . “It is elementary that the ultimate aim of rules of interpretation is to ascertain the intention of the legislature in the enactment of a statute, and that intention, when discovered, must prevail.” Temple v. City of Petersburg, 182 Va. 418, 422, 29 S.E.2d 357, 358 (1944). . Because we hold that pre-1975 contributions are unaffected by § 1103(c)(l)-(2)(A), we need not consider at length the rule of Sohn v. Waterson, 84 U.S. 596, 21 L.Ed. 737 (1873), which is relied on by the appellees. In Sohn, the Supreme Court was faced with a statute of limitations contained in legislation which was intended by a state legislature to have retroactive application. To legitimate such application, the Court held that holders of past causes of action had to be granted the full statutory time, measured from the statute’s effective date, to bring their claims. The century-old Sohn rule still enjoys great viability. See Superior Engraving Co. v. N. L. R. B., 183 F.2d 783, 789 (7th Cir. 1950), cert. denied, 340 U.S. 930, 71 S.Ct. 490, 95 L.Ed. 671 (1951). The trustees would apply it to this case, contending that as to pre-ERISA contributions made by employers by mistake of fact, one making a claim for refund from January 1, 1975 through December 31, 1975, would be entitled to a full refund irrespective of when the contributions had been made, but any claim made after 1975 would be limited to only those contributions made within the year of the claim. However, since we, unlike the Sohn Court, deal with a statute intended by Congress to have prospective application only, the rule cannot apply. . John W. Salmond, The Theory of Judicial Precedents, 16 Law Quarterly Rev. 376, 379-80 (1900).

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

Was there any amicus participation before the court of appeals?

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. H. K. PORTER COMPANY, INC., DISSTON DIVISION-DANVILLE WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 19492, 19507. United States Court of Appeals District of Columbia Circuit. Argued March 22, 1966. Decided May 19, 1966. Certiorari Denied Oct. 10, 1966. See 87 S.Ct. 90. Wilbur K. Miller, Senior Circuit Judge, dissented in part. Mr. Michael H. Gottesman, Washington, D. C., with whom Mr. Elliot Bred-hoff, Washington, D. C., was on the brief, for petitioner in No. 19,492. Mr. Donald C. Winson, Pittsburgh, Pa., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of court, with whom Messrs. Bartholomew A. Diggins, Daniel W. Sixbey, Washington, D. C., and Paul R. Obert, Pittsburgh, Pa., were on the brief, for petitioner in No. 19,507. Mr. Elliott Moore, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Morton Namrow, Attorney, National Labor Relations Board, were on the brief, for respondent. Before Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and Wright, Circuit Judge. J. SKELLY WRIGHT, Circuit Judge. These cases are before the court on petitions filed by both the union and the employer to review a final order of the National Labor Relations Board. The Board has filed, a cross-petition to enforce its order requiring the company to bargain in good faith. Pursuant to a secret ballot election, the union was certified on October 5, 1961, as the collective bargaining representative of all production employees at the employer’s Danville, Virginia, plant. After four years of bargaining and two orders from the Board requiring the employer to cease and desist from refusing to bargain collectively with the union, the second of which included the provision that the employer also cease and desist from “interfering with, restraining or coercing employees in the exercise of their right to self-organization * * no agreement has been reached. It is the second order which is the subject of these proceedings, the first order having been summarily enforced on July 17, 1964, by the United States Court of Appeals for the Fourth Circuit after the company filed no exceptions to the trial examiner’s findings or proposed order. See 61 Stat. 147 (1947), 29 U.S.C. § 160(c). The narrow issue presented by the present proceeding, according to the trial examiner, is “whether, as the General Counsel contends, [the employer’s] position on the Union’s demands for a cheek off was a mere device to frustrate agreement on a contract, or whether, as [the employer] contends, it was merely engaging in ‘hard bargaining,’ with no intention of preventing an agreement.” The trial examiner concluded that the employer’s refusal to grant a check-off was “for the purpose of frustrating agreement with the Union and hence [the employer had] engaged in bad-faith bargaining.” The Board, through a three-member panel convened pursuant to Section 3 of the National Labor Relations Act, adopted the trial examiner’s findings, conclusions, recommendations and proposed order. The employer, citing Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), maintains that the trial examiner’s finding that the company refused to agree to a dues check-off provision in order to frustrate an agreement is not supported by substantial evidence on the record considered as a whole. It argues that, while Section 8(d) of the Act requires good faith bargaining, it does not compel either party to agree to a proposal or require the making of a concession. Our study of the record, however, convinces us that the Board’s findings are supported by substantial evidence on the record considered as a whole, and that the company’s adamant refusal to consider a union dues check-off for those employees who individually requested it did indeed frustrate the bargaining. In the prior proceeding, in which the Board likewise found violations of Sections 8(a) (5) and (l) ***of the Act, in addition to making unilateral changes in working conditions which it had refused to grant the union, the company had also refused to agree to an arbitration provision while insisting on a no-strike clause. This insistence, the Board found, demonstrated bad faith bargaining on the part of the company contrary to the observation in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed. 2d 972 (1957), that “ * * * the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike.” In spite of the Board’s order in the prior proceeding, it was not until ten months and 20 bargaining sessions following its issuance that the company receded from the position which the Board had found to amount to an unfair labor practice. When bargaining was resumed after the Board’s prior order, some 14 items were open and unresolved. At the time of the final meeting on September 10, 1964, only three items remained unresolved, the union having given in on all of the others. Throughout the negotiations, both before the prior order and subsequent to it, the union had insisted on a dues checkoff. The union maintains no office in Danville, that area being serviced from Roanoke, Virginia, a distance of about 85 miles. Moreover, the 300 company employees live within a radius of from 35 to 40 miles from Danville. Thus without a check-off, or some adequate substitute therefor, the collection of dues would have presented the union with a substantial problem of communication and transportation. The company admitted that it had no general policy against a dues check-off; that indeed in some of its divisions the bargaining agreements so provide. The company admitted, too, that the refusal to check off union dues at the Danville plant was not based on inconvenience. As a matter of fact, the Danville plant was checking off from the salaries of its employees for purchase of United States savings bonds, dependents’ coverage under health insurance, United Fund, and a Good Neighbor Fund. The company’s position, as stated by its counsel and by its chief negotiator, was simply that “our purpose in denying check-off was that we were not going to aid and comfort the union.” It is clear from the record in this case that the prior order of the Board, drawn, as is the order in suit here, in terms of the statute, requiring the company to bargain in good faith, was ineffective. Instead of starting a new Section 10(b) proceeding, the Board no doubt could have requested the Fourth Circuit to cite the company for contempt for continuing failure to bargain in good faith. Certainly a succession of Section 10(b) proceedings resulting in Board orders cast in statutory language is not the answer where refusal to bargain persists. In order to eliminate further frustration of the purposes of the Act, the union suggests that the Board should have included in its order a provision requiring the company to withdraw its objection to the dues check-off. Moreover, • the union suggests that, since the company not only refused the check-off but also refused to allow the union to collect dues during non-working hours on nonworking areas of the company premises, a further provision should be included in the Board’s order protecting this statutory right as well. It is true, as the company contends, that under Section 8(d) it cannot be compelled to agree to a proposal or make a concession. But neither can refusal to make concessions be used “as a cloak * * * to conceal a purposeful strategy to make bargaining futile * N. L. R. B. v. Herman Sausage Co., 5 Cir., 275 F.2d 229, 232 (1960). “Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of ‘take it or leave it’; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract.” N. L. R. B. v. Insurance Agents’ Intern. Union, 361 U.S. 477, 485, 80 S.Ct. 419, 425, 4 L.Ed.2d 454 (1960). While it is clear from the record that the company had no reason, other than to frustrate the bargaining procedure, to refuse to accept the dues checkoff, it is not necessary to include a specific reference to the check-off in the Board’s order. Nor, in the circumstances of this case, is it necessary to provide in the order that the union shall have the right to collect dues during nonworking hours on non-working areas of the company’s premises. In any contempt proceeding, the record made before the Board in both Section 10(b) proceedings will be available to this court. Thus we will be in a position to make a judgment based not only on the Board’s order, but on the entire record of this company’s performance at the bargaining table. Affirmed and enforced. . 73 Stat. 542 (1959), 29 U.S.C. § 153(b). . 61 Stat. 142 (1947), 29 U.S.C. § 158(d). . 61 Stat. 141 (1947), 29 U.S.C. § 158(a) (5). . 61 Stat. 140 (1947), 29 U.S.C. § 158(a) (1). Sections 8’(a) (1) and (5) of the 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 7; ******* (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).” . The representative of the union testified, without contradiction, as follows: Q. When parties began meeting in October of 1963, how many items were there that the union was demanding; before they would agree to a contract? A. Fourteen. Q. Your testimony is that they are now demanding three? A. Well, actually, it covers a number of things. Q. What’s happening to those issues that you didn’t refer to in your testimony earlier? A. In the hopes of getting an agreement, the union gradually held twenty meetings, and dropped all those demands except those I mentioned. The examiner reported that subsequent to the Board’s prior order “each of the parties withdrew certain of its bargaining proposals.” With reference to the company’s concessions, the examiner is apparently referring to the withdrawal of the company’s no-strike clause demand without arbitration, which withdrawal was required by the Board’s prior order. . The check-off is included in 92 per cent of all contracts in manufacturing industries. See BNA, Collective Bargaining Negotiations and Contracts, p. 87:3. Most of the contracts not containing check-off provide some alternative method of dues collection on company property. Id. at p. 87:901. . Q. Is there a company policy, that is a policy of H. K. Porter Company, against the check-off of union dues? A. [By Witness T. C. Jones, chief negotiator for the company] We do have some contracts at some of our plants that do have check-off, I do know that. Q. Is there, to your knowledge, a company policy against the check-off? A. Being a company policy, not that I know of. Q. Is there a company policy against the collection of union dues on company property? A. Not any that I am aware of. Q. So your position on these matters is not dictated by company policy? A. That is correct. . Q. You have never taken the position, have you, that there was any inconvenience to the company in checking off union dues ? A. [By Witness Jones, chief negotiator] To the best of my knowledge, no, sir, we have not. Q. In point of fact, there would be no more inconvenience, would it, than checking off Savings Bonds or insurance coverage or United Fund contributions, or any other item? A. That’s right. Q. As I understand your testimony, I want to get this clear, your sole reason for rejecting the demand for a check-off or for dues collection in the plant was that this was union business ? A. Right; this was union business, and the union should collect their own business; yes, sir. And I should have nothing to do with it. . Q. I’ll be right direct with you, Mr. Jones [chief negotiator], does your company, or has your company in the past made any deductions from payroll, other than those required by law? A. Yes, sir. Q. Would you name what the purpose was for which those deductions were made? A. We deduct Treasury Bonds. Q. United States Savings Bonds? A. The United States Savings Bonds. We deduct dependents coverage on the insurance policy; we deduct— Trial Examiner: That’s health insurance? The Witness : Yes, sir. And we deduct a United Fund and Good Neighbor Fund. . Q. [By counsel for the company] As I understand your testimony, the reason for refusing to grant check-off or collection of union dues, was that you were not going to aid and comfort the union, in the union business ? A. [By Witness Jones, chief negotiator] Yes, sir, that’s right. . Section 8(a) (5), 29 U.S.C. § 158(a) (5). . 61 Stat. 146 (1947), 29 U.S.C. § 160 (b). . 61 Stat. 143 (1947), 29 U.S.C. § 159. See also 61 Stat. 141 (1947), 29 U.S.C. § 141. . Q. Mr. Jones [chief negotiator], you were in the room when Mr. Blood-worth testified, were you not? A. Yes, sir. Q. His testimony was that the subject was discussed, the subject of checkoff was discussed at almost all of your meetings; and the company’s consistent position has been that you will not check off union dues, is that correct? A. That’s correct. Q. He also testified that the union offered to withdraw his request for check-off, if the company were willing to agree to some kind of an arrangement, whereby the union could collect its dues in the plant, from employees during periods when they were not working? A. That is correct. Q. They made that offer? A. Yes, sir. Q. What was your position on that? A. My position is and was then that that’s union business. Q. And therefore— A. They could collect their own dues at their own meetings or at their offices. Q. Your position that you would not permit this on the plant grounds? A. Yes, sir. * * * * * Trial Examiner: What is your objection to a union official collecting it from employees at the lunch hour, or when coming to or leaving work? The Witness : I just think that I should not help the union collect their dues, and this is what I am doing, when I let them collect it on company property, when they can go right to their union meetings that they hold here and collect the dues at the regular meetings they have in town. . Section 8(d), 29 U.S.C. § 158(d), reads in part: “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * . Footnote 9 in the trial examiner’s findings reads in part: “This is not to say that in the resumed bargaining sessions which I shall recommend, Respondent will be required to agree to some form of check off. I only find and conclude that on that issue Respondent did not heretofore bargain in good faith, and that it should be required to do so. If after such good-faith bargaining the parties reach an agreement or an impasse, the requirements of the Act will have been fulfilled. * * * ” This footnote is inconsistent with the trial examiner’s finding that the company’s refusal to grant a check-off was “for the purpose of frustrating agreement with the Union and hence [the company had] engaged in bad-faith bargaining.” To suggest that in further bargaining the company may refuse a check-off for some other reason, not heretofore advanced, makes a mockery of the collective bargaining required by the statute. Since the text of the trial examiner’s decision controls, Footnote 9 should be disregarded. . Compare J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 341, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Burr v. N. L. R. B., 5 Cir., 321 F.2d 612, 615 (1963). . It would serve no useful purpose to have another § 10(b) proceeding to require the company to allow the union to collect dues during non-working hours on non-working areas of the company’s premises. The issue was raised in these proceedings and the company offered no good reasons for its flat refusal to allow the dues collection on its premises. Compare Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); N. L. R. B. v. Walton Manufacturing Company, 5 Cir., 289 F.2d 177 (1961).

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?

William C. WEST and Virginia B. West, Appellees, v. UNITED STATES of America, Appellant. No. 13180. United States Court of Appeals Fourth Circuit. Argued June 12, 1969. Decided July 24, 1969. Jonathan S. Cohen, Attorney, Department of Justice (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and C. Guy Tadlock, Attorneys, Department of Justice, on the brief), for appellant. Peter W. Martone, Norfolk, Va. (Leroy T. Cañóles, Jr., Vincent J. Mastracco, Jr., and Candes & Mastracco, Norfolk, Va., on the brief), for appellees. Before BOREMAN, BRYAN and BUTZNER, Circuit Judges. ALBERT V. BRYAN, Circuit Judge: The Commissioner of Internal Revenue appeals a decision of the United States District Court for the Eastern District of Virginia, at Norfolk, holding that no portion of the payments made by William West to his former wife Annie was clearly designated as child support, and thus the payments were wholly alimony and not includable in William’s income. Int.Rev.Code of 1954 § 71, 26 U.S.C. § 71. William and Annie entered into a separation agreement April 10, 1950, which was later incorporated in a divorce decree a mensa et thoro of September 1, 1950, and carried into a decree a vinculo matrimonii of April 10, 1952. The agreement provided for the payment of $35 per week as alimony for Annie and for support of the three children born of the marriage. When any child reached 21 or became self-supporting, the weekly sum was to be reduced by $10, and if the wife remarried, the sum was to be reduced by $5 per week. Another clause, crucial here, provided that Annie “un dertakes to expend at least Thirty ($30.-00) Dollars per week of the amounts paid her by [William] for the use and benefit of their infant children.” (Accent added.) Section 71 of the Internal Revenue Code of 1954, supra, provides: “(a) General rule.— (1) Decree of divorce or separate maintenance. — If a wife is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, the wife’s gross income includes periodic payments * * * received after such decree in discharge of * * * a legal obligation which, because of the marital or family relationship, is imposed on or incurred by the husband under the decree or under a written instrument incident to such divorce or separation. * * * * * * “(b) Payments to support minor children. — Subsection (a) shall not apply to that part of any payment which the terms of the decree, instrument, or agreement fix, in terms of an amount of money or a part of the payment, as a sum which is payable for support of minor children of the husband.” (Accent added.) Thus whether periodic payments are in whole or in part alimony and so assessable as income to the wife, or are child support and thus assessable as income to the husband, turns on whether the decree or separation agreement “fixes” an amount as child support. If an agreement providing a sum for both alimony and child support contains stated reductions in the amount upon remarriage of the wife, or a child’s marriage, achievement of self-sufficiency, or attainment of the age of 21, seemingly it can be inferred just how much of the payment is child support and how much is alimony. Such an inferential determination does not, however, provide the specificity required by 71(b). Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 81 S.Ct. 1343, 6 L.Ed.2d 306 (1961). Thus in the instant situation, the separation agreement “fixes” $30 per week as child support only if the “undertakes” clause, just quoted from the agreement, does so. In making this determination, we are guided by Lester, where it is said pertinently: “The agreement must expressly specify or ‘fix’ a sum certain or percentage of the payment for child support before any of the payment is excluded from the wife’s income. The statutory requirement is strict and carefully worded. It does not say that ‘a sufficiently clear purpose’ on the part of the parties is sufficient to shift the tax. It says that the ‘written instrument’ must ‘fix’ that ‘portion of the payment’ which is to go to the support of the children. Otherwise, the wife must pay the tax on the whole payment.” Id. at 303, 81 S.Ct. at 1346. Applying Lester, the District Court found that “ ‘undertakes to spend at least Thirty ($30.00) Dollars per week * * * for the use and benefit of their infant children’ * * * does not so meet the test of specificity as to ‘fix’ the obligation. The word ‘undertakes’ in the opinion of this Court, in this connotation, means something less than ‘shall’ * * * ” West v. United States, 292 F.Supp. 845, 847 (E.D.Va.1968). We find the District Court’s reading of Lester too exacting. The Court in Lester pointed out that the design of 71(b) is to permit divorced parents to place the income tax burden, on moneys used as child support, upon either husband or wife. However, to avoid uncertain tax consequences and ease revenue collection, the statutory scheme taxes the wife, unless the spouses clearly impress a child support character upon the payments. 366 U.S. at 302-303, 81 S.Ct. 1343. Nevertheless Lester requires only words of designation, not words of obligation. No talismanic rubric is demanded; only specification of a certain amount, as here, for child support is needed. Support for our conclusion is found in Commissioner of Internal Revenue v. Gotthelf, 407 F.2d 491 (2 Cir. 1969). There a separation agreement called for a husband to pay $12,000 per year to his divorced wife and two minor children. If she remarried the total was to be reduced by $5,000, and if a child married or reached 21 in age, a $3,500 reduction followed. A final clause bound the estate of the husband in the amount of $7,000 per year “for the benefit of the two children, as in this agreement provided for.” The Tax Court, 48 T.C. 690, held, and the Second Circuit affirmed, that the final clause provided the specificity to fix $7,000 as child support. The judgment on review must be vacated, and the District Judge requested to enter an order sustaining the Commissioner’s assessment. Vacated 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 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.

BURRAGE v. SMITH et al. (Circuit Court of Appeals, Fifth Circuit. April 1, 1927.) No. 4754. 1. Corporations <s=>560( 12)— Charges of fraud In transactions between railroad and terminal companies, and their fiscal agent held not sustained. Charges of fraud in transactions between closely allied corporations, made in a suit between receivers for the" service corporations, helé not sustained. 2. Corporations <S=s>478 — Lease for adequate / rental held not breach of covenant not to incumber property in note indenture. A lease of right of way over its property by a corporation, which was expected to be profitable to it, and for which adequate rental was received, cannot be considered in breach of a covenant against incumbering the property in an indenture securing its notes. 3. Principal and agent <§=>69(6) — Agent, buying property for himself with his own money, cannot be compelled to convey to principal. Agent, who with his own money buys property for himself, cannot be compelled to convey it to his principal. Appeal from the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge. Suit in equity by Paul J. Burrage, as receiver, of the Port Wentworth Terminal Corporation, against Theodore G. Smith and John B. Johnson,-individually and as receivers of Imbrie & Co., and others. Decree for defendants, and complainant appeals. Affirmed. George T. Cann, of Savannah, Ga., William M. Evarts, of New York City, and Barton Corneau, of Boston, Mass. (Anderson, Cann & Cann, of Savannah, Ga., Murray, Aldrich & Roberts,- of New York City, and Channing, Corneau & Frothingham, of Boston, Mass., on the brief), for appellant. Robert M. Hitch, R. L. Denmark, and A. B. Lovett, all of Savannah, Ga., Chas. P. Spooner, of New York City, and S. B. Adams and A. P. Adams, both of Savannah, Ga., A. B. Rowe, of Palmetto, Fla., Herman E. Rid-dell and Mark Hyman, both of New York City (Rabenold & Scribner, of New York City, on the brief), for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is an appeal from a final decree dismissing a bill of complaint filed by leave of court in a receivership suit. The bill was based on the alleged fraud of Imbrie & Co. in three separate and distinct transactions. Jurisdiction was entertained in a single suit, because the District Court, through its various receivers, including the receivers of Imbrie & Co., was in possession of the subject-matters in controversy. Prior to their failure in March of 1921, Imbrie & Co. were investment bankers. In 1913 they became the principal stockholders of the Brinson Railway, whose name in 1915 was changed to Savannah & Northwestern Railway, and later was merged in the Savannah & Atlanta Railway. The line of railroad was so extended that by 1917 it reached from Savannah to Camak, Ga., and connected at the latter place with the Georgia Railway. By that time, Imbrie & Co., owned all of the common stock and three-fifths of the preferred stock of the Savannah & Atlanta Railway. They acquired from a lumber company a 3,-000-acre tract of undeveloped land at Port Wentworth on the Savannah river about six miles above Savannah, and a spur track about three miles long, which connected with the track of the railway at Newtonville? This spur track is referred to in the record as the Newtonville lead. The objects of the purchase of the Port Wentworth property were to secure a tidewater terminal, develop industries, provide tonnage for the railway, and thus increase its business with its connecting and other railroad companies. To accomplish these objects, the Port Wentworth Terminal Corporation was organized, and several industrial enterprises were located on-the water front. Industrial tracks were built which connected the industries with the Newtonville lead, and by means of it with the railway. The railway owned all the stock of the terminal corporation, and Imbrie & Co. were fiscal agents for both. The directors of the terminal corporation were either members or employees of the firm of Imbrie & Co. or directors of the railway. In 1921 Imbrie & Co., the railway company, and the terminal corporation were all. placed in the hands of receivers. The following are the questions raised on this appeal, and the essential facts in the light of which those questions must be decided: (1) Did the District Court err in refusing to set aside a 99-year lease from the terminal corporation to the railway of the Newtonville lead.and the industrial tracks on the Port Wentworth property? That lease, though dated December 31,1917, was not actually executed until March of 1918. It was not authorized by the board of directors of the terminal corporation, but was recorded, and a subsequent mortgage, executed October 1, 1920, by that corporation, to the Equitable Trust Company, and approved by its board of directors and stockholders, was made subject to it by specific reference to its date and the book in which it was recorded; and the rent reserved by the lease was accepted by the terminal corporation up until the time it was placed in the hands of a receiver, and has since been accepted by its receiver. The railway operated the industrial tracks from the beginning, and it was always the intention of all the parties interested that the terminal property should be used for the benefit of the railway. To carry out that intention, the railway also, on December 31,1917, conveyed the Newtonville lead to the terminal corporation, and the latter included in its lease both the Newtonville lead and the industrial tracks. The consideration to the railway for its deed of the Newtonville lead was $101,500 of the terminal corporation’s notes, which Imbrie & Co. received and credited on that corporation’s indebtedness to them. It i§ claimed that the Newtonville lead was covered as after-acquired property by a previous mortgage of the Brinson Railway, and that Imbrie & Co. could and should have secured a release under a clause of that mortgage. The railway never applied for the release, because it did not have the money with which to pay- for it, and for that reason the deed to the Newtonville lead was withheld from record. On October 1,1917, in order to raise funds to repay advances made by Imbrie & Co., the terminal corporation issued notes for $700,000, payable in three years, and also issued participation certificates of the par value of $100 each, which entitled the holders to its net earnings until they should equal in amount the par value of the certificates. Imbrie & Co. took the potes and some of the certificates and sold them to the general public. The indenture, under which the notes were issued, provided that no mortgage or other incumbrance should be placed on any of the real property of the terminal corporation until all the notes were paid, , and that, if any of that corporation’s real property should be sold, the proceeds should either be deposited with the trustee under the note indenture or invested in property to be kept free from incumbrance. At the maturity of these notes on October 1, 1920, the terminal corporation executed its above-mentioned mortgage to the Equitable Trust Company, to secure an issue of $2,000,000 of bonds on all its real estate. Of these bonds, $1,000,000 were issued, Imbrie & Co. took $800,000 face value, and agreed with the terminal corporation to exchange bonds for notes issued in 1917, and all the notes except $74,500 were either paid or exchanged for bonds. The lease provided that the railway should pay all taxes on the leased property, pay for the upkeep of the tracks, and' 7 per cent, upon the cost thereof. At the time of the receiverships about 40 per cent., or seven miles, of the industrial tracks were producing revenue to the railway, and it was paying at the rate of $19,000 annually to the terminal corporation, besides .$10,000 for taxes and upkeep, a gross annual rental of over $4,000 per mile of tonnage producing track. The testimony was undisputed that the rental was fair for the service received, although it was insufficient to enable the terminal corporation to meet its obligations. (2) Did the District Court err in refusing to set aside a deed by which the terminal, corporation conveyed 75 acres of land at Port Wentworth to* the Cuban-Atlantic Transportation Company? In the winter of 1919-20 Imbrie & Co.’s manager at Savannah recommended to them the building of terminal facilities at Port Wentworth to be so equipped as to provide facilities for the shipment 'of coal to Cuba and as to receive sugar from Cuba. At that time there was a great demand for sugar in the United States. There was already in existence a corporation known as the Cuban Atlantic Transport Corporation, the stock in which was held by Garcia, Guidera, and James, who severally agreed to supply the sugar, the necessary coal barges, and the coal. In reliance upon their representations, it was agreed that the transport corporation would convey all its assets, subject to liabilities, to a new corporation. Pursuant to that agreement, a new corporation, the Cuban-Atlantic Transportation Company, was organized, with a capitalization of $500,000 first preferred stock, $150,000 second preferred stoek, and 20,000 shares of common stoek without par value. For the purpose of providing a site for the proposed terminal and warehouse, the terminal corporation conveyed to the Cuban-Atlantie Transportation Company the 75 acres of land in question, and was to receive as consideration for its deed all the second preferred stock and all the common stoek, out of which it expected to realize $170,000. Thereupon bonds to the amount of $210,000, secured by a first mortgage on all the company’s assets, including the 75 acres of land, were taken by Imbrie & Co. at $189,000. The proceeds were used to pay off various obligations, including a mortgage of $60,000 on one of the barges, and about $100,000 for boats purchased from the Emergency Fleet Corporation. It soon became apparent that the transport corporation had not been operated profitably as claimed, but at a considerable loss. By that time, Imbrie & Co. and their Savannah manager had advanced about $260,-000. They refused to make further advances, and the venture proved to be a failure. None of the preferred or common stock was ever issued. (3) Did the District Court err in refusing to decree that the terminal corporation was the beneficial owner of a 500-aere tract of land acquired by Imbrie & Co. ? This land is referred to in the record as the Foundation tract. It is situated on the Savannah river, but does not adjoin the Port Wentworth property. It was used during the World War by the Foundation Company as a site for the construction of ships for the French government. In 1920 Imbrie & Co. were considering the purchase of this tract for use in connection with the export of coal, and were in negotiations with French capitalists. It had a greater depth of water than the Port Went-worth tract, and in August of 1920 Imbrie & Co. purchased it for $175,000. They entered into negotiations to sell part of it to a coal and dock company for $100,000, and after-wards offered to sell the rest of it to the terminal corporation for $175,000. There was some effort made to show that the terminal corporation delivered to Imbrie & Co. $200,-000 of its bonds in payment for this tract of land, but that effort failed. The president of that corporation, who, although he was a member of the firm of Imbrie & Co., was the chief witness for appellant, admitted that the bonds were furnished in payment of other indebtedness, and testified it was the intention to issue additional bonds of his corporation for $200,-000 face value, that the coal and dock company would issue its purchase-money mortgage for $100,000, and that Imbrie & Co. would take the bonds and mortgage, at a cash valuation of $275,000, as the consideration to them for the Foundation tract. The whole plan fell through. The contemplated sale to the coal and dock company was never made, and consequently it never executed a purchase-money mortgage. The legal title to the Foundation tract remained in Imbrie & Co. The District Judge heard the testimony, which was voluminous, and, after it was concluded, stated in a written opinion: “Not only does the testimony fail to establish the charges of fraud, but the court is convinced that Imbrie & Co., and those who were advising them, acted with honest purpose throughout. This conviction does not prevent the further conviction that in some cases proper care was lacking, as in failing to arrange for the release of the Newtonville •track from the lien of the mortgage of the Brinson Railway before any attempt at consummating its sale, in failing to make certain the provision for all of the three-year notes before issuing the mortgage bonds; and in at least one case there was undue haste, with resultant disaster — i. e., the Cuban-Atlantic Transportation Company transaction. But in none of these was there any dishonest purpose and in the latter at least Imbrie & Co. suffered a treinendous direct and immediate loss in addition to the indirect losses they suffered whenever the terminal corporation lost. It must not be forgotten, in the consideration of every aspect of this case, that all of the stock of the terminal corporation was owned by the Savannah & Atlanta Railway, and that in turn Imbrie & 'Co. owned the large majority of the stoek of said railway. Therefore loss to the terminal corporation meant loss to Imbrie & Co. Imbrie & Go. may have been too sanguine, but their ever-present faith was evidenced by their continuing financial support.” We agree with the District Judge, for the reasons stated by him, that actual fraud was not shown. The transactions complained of are of a kind that are not unusual in the relations between closely allied business corporations. At last, the terminal corporation was only a subsidiary of the railway. But it is contended by appellant that the averments of the bill are broad enough, and the proof is sufficient, even in the absence of intentional wrongdoing, to show that Imbrie & Co., while acting in a fiduciary capacity, handled the affairs of the terminal corporation for their own benefit and profit, with resulting injury to it, its security holders and other creditors. Assuming that appellant’s construction of the bill is correct, we also agree with the District Judge that the evidence fails to show such breach oi fiduciary relationship as to authorize the relief prayed in regard to any of the transactions of which complaint is made. 1. As to the lease: It is clear that the railway never intended to lose control of the Port Wentworth property, which it had long' before acquired as a means of gaining access to a terminal on the Savannah river. The deed of the Newtonville lead, and the lease of it and the industrial tracks, bear the same date, and were intended to be parts of a single transaction. The lease, although not authorized by the board of directors, was ratified by them as well as by the stockholders of the terminal corporation, by long afterwards making a mortgage subject to it, and by accepting rent for a period of years. The terminal corporation’s title to the Newtonville lead has not yet failed, because of the existence of the Brinson mortgage. The same District Court is in possession through receivers of both the railway and the terminal corporation, and has the power to protect the title to the Newtonville lead against the lien of the mortgage, if necessary, by authorizing receiver’s certificates in order to secure continued operation of the properties under its control. Miltenberger v. Railway Co., 106 U. S. 286, 1 S. Ct. 140, 27 L. Ed. 117. The principle is the same, whether the court authorizes an issue of eceiver’s certificates, or, to the extent that is necessary, protects the lease against the lien of the mortgage. It is true that the reasonableness of the rentals reserved by the lease are to be carefully considered, because of the interlocking directorates and the interest and influence of Imbrie & Co.; but, notwithstanding that, it is undisputed that a fair rental is being paid. The situation is to be viewed as it existed at the time ,the lease was entered into, when it was believed that it would become profitable to the terminal corporation by reason of the expected development of its property. The lease cannot justly be considered as an incumbrance within the meaning of the note indenture of 1917, by reason of the fact that notes amounting to $74,-500 are still outstanding. The incumbrance provided against in the note indenture was one similar to a mortgage. It would be extreme to say that reference was made to a lease that might become desirable in developing the terminal property. 2. As to the Cuban-Atlantie Transportation Company transaction: The good faith of Imbrie & Co. in this matter is not seriously questioned. But it is said that they acted in haste, caused the terminal corporation’s deed to be delivered before any stock was issued, and were careful to take security for themselves. Prompt action was thought to be necessary, and there was nothing to indicate that Imbrie & Co. took any advantage of the terminal corporation. The venture that it was hoped by all would yield a large profit resulted in a serious loss. Imbrie & Co, took security, it is true, but they are the only ones connected with the transaction who advanced any money. The situation is not different than it would have been if the terminal corporation had itself borrowed the money and pledged its land as security. 3. Imbrie & Co. did not purchase the Foundation tract as agents of the terminal corporation, but for themselves, in. order to provide a terminal for the coal and dock company which they expected to organize. The terminal corporation did not supply the purchase price, and has never paid anything for the property. The only contract right it could possibly assert was to acquire title upon.the payment of a profit to Imbrie & Co. It cannot at one and the same time enforce a contract to convey and refuse to pay the purchase price agreed upon. Burland v. Earle, 1902 A. C. 83. Appellant does not rely on the contract as ¿nade, but invokes the universally recognized rule that an agent will not be permitted to make a secret profit at the expense of his principal. That rule is violated where a trustee is the agent, and takes title in his own name to property which he paid for with money of his cestui que trust, or where a director buys and with his own money pays for property for the use of the corporation he represents, and then makes or contracts for a secret profit in the sale of that property to the corporation. In the one case, the cestui que trust is entitled to the property bought with its money, and, in the other, has the option to recover the secret profit or to rescind the sale. Cases in each of these classes are cited by appellant. It is to be noted that they relate to consummated transactions, and in that particular are different from the ease at bar. In Seacoast R. Co. v. Wood, 65 N. J. Eq. 530, 56 A. 337, the suit was to compel conveyance and an accounting of profits upon a sale to the railroad company. In Parker v. Nickerson, 112 Mass. 195, the suit was to recover from directors the profits they had made in the purchase of a ferryboat and the resale of it to their corporation. In Tyrrell v. Bank of London, 10 H. L. Cas. 26, the suit was to compel an accounting of profits on a resale to the corporations. None of those eases goes to the extent of holding that an agent, who with his own money has bought property for himself, and not for hisf principal, can after-wards be compelled to convey that property to his principal. 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 "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?

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. 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"?

SHATEL CORP., Plaintiff-Appellee, v. MAO TA LUMBER AND YACHT CORPORATION, Defendant-Appellant. No. 81-6187. United States Court of Appeals, Eleventh Circuit. Feb. 14, 1983. Curtis Carlson, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, Fla., for defendant-appellant. Richard H. Compere, Hume, Clement, Brinks, Willian & Olds, Ltd., Chicago, 111., Richard A. Goetz, Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauderdale, Fla., for plaintiff-appellee. Before RONEY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge. JOHNSON, Circuit Judge: Shatel Corporation is a Fort Lauderdale, Florida, corporation in the business of selling and importing yachts. Appellant Mao Ta Lumber and Yacht Corporation is a Taiwanese corporation and a manufacturer of yachts. In 1979 Mao Ta sent corporate officers to the United States to obtain a sales representative for the line of boats it was then manufacturing in Taiwan. Mao Ta contacted the president of Shatel and interested him in a 51-foot sailing yacht. As a result of subsequent negotiations Shatel entered a written agreement with Mao Ta whereby appellant was to manufacture and appellee was to exclusively distribute the 51-foot boat which would be built pursuant to Shatel’s specifications and standards and sold under the trademark SKYE. Mao Ta acknowledged that the trademark SKYE would be Shatel’s sole property and would not be used by Mao Ta in the promotion and sale of the boat without Shatel’s prior written permission. Shatel filed trademark applications in the United States and in twenty-five other countries to register the mark SKYE. Shatel supplied various parts to Mao Ta that were to be incorporated into the SKYE 51 boats being manufactured, and Shatel spent substantial sums of money and time in advertising, promoting and selling the 51-foot yacht under the trademark SKYE. On July 26, 1981, Mao Ta ended the distributorship arrangement because Shatel did not order the minimum twelve vessels in a twelve-month period required by the distribution agreement. Since that date there have been no sales of Mao Ta’s 51-foot boat in the United States. On August 4,1981, Rex Yacht Sales, Inc. of Fort Lauderdale, Florida, sent a Telex to Mao Ta requesting information about its production lines. On August 7, Mr. Tai, the president of Mao Ta, sent a return Telex stating: “THKS UR TLK RCVD. SAILBOATS 36', 41', 46', N', SKYE 51' R UR PRESENT PRODUCTION LINES. HVING NO AGREEMENT IN THE U.S., WE HANDLE ALL BUSINESS.” The president of Rex Yacht Sales testified that his impression on receiving this Telex was that he was being offered a SKYE 51. Mao Ta also gave information to Odyssey Yacht Sales of Seabrook, Texas, concerning the boats that it manufactured. Odyssey put out a brochure offering Mao Ta’s 51-foot boat as the SKYE 51. The brochure was made up principally of photo-copies from a brochure previously printed by Shatel. There is no evidence that Mao Ta was the source of the brochure, but hull numbers of 51-foot boats in Mao Ta’s inventory were included in the brochure. On August 28, 1981, Shatel filed a complaint in the United States District Court for the Southern District of Florida against Mao Ta for both federal and common law unfair competition and for breach of contract. The unfair competition counts were based on Shatel’s claim that Mao Ta had infringed its trademark SKYE. Shatel filed a motion for a preliminary injunction which was limited to the trademark infringement issue. Subsequent to the presentation of testimony, documentary evidence and argument the district court made findings of fact and conclusions of law, and entered an order enjoining Mao Ta, its agents and employees from “the use of the designation SKYE or another designation which will cause confusion as to the vessel’s origin and designation.” The grant or denial of a preliminary injunction rests within the sound discretion of the district court and is reversible on appeal only for an abuse of that discretion, Dallas Cowboys Cheerleaders v. Scoreboard Posters, 600 F.2d 1184, 1187 (5th Cir.1979), or if contrary to some rule of equity. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 465, 64 L.Ed. 822 (1920). A preliminary injunction, however, is an extraordinary remedy, and the boundaries within which the district court may exercise its discretion are clearly marked. Vision Center v. Opticks, Inc., 596 F.2d 111, 114 (5th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). The district court should issue an injunction only if the moving party clearly satisfies the following four prerequisites: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Id. Mao Ta argues that according to the rules of equity the preliminary injunction was improperly granted because the plaintiffs hands were unclean. It claims that Shatel used the federal registration symbol in connection with the mark SKYE in two advertisements when SKYE was not a federally registered trademark in order to ward off others inclined to use the same mark. Shatel replies that its use of the registration symbol was inadvertent and was not done with the intent of deceiving or misleading the public. Although SKYE was not a registered trademark in the United States at the time of these ads, it had already been registered in several countries. Mr. Atlass, the president of Shatel, testified that he thought the registration symbol could be used since the ads, which appeared in Yachting Magazine, would be distributed in countries where the mark was registered. The law on “unclean hands” in a trademark ease is well stated in Worden & Co. v. California Fig Syrup Co., 187 U.S. 516, 23 S.Ct. 161, 47 L.Ed. 282 (1903): [W]hen the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in his advertisements and business, be himself guilty of any false or misleading representations; that if the plaintiff makes any material false statement in connection with the property which he seeks to protect, he loses the right to claim the assistance of a court of equity; that where any symbol or label claimed as a trademark is so constructed or worded as to make or contain a distinct assertion which is false, no property can be claimed on it, or, in other words, the right to the exclusive use of it cannot be maintained. Id. at 528, 23 S.Ct. at 164 (use of the mark “Syrup of Figs” not protected because figs were not a main ingredient in the laxative). The type of material misrepresentation considered in Worden is far different than Shatel’s misuse of a registration symbol. Worden held that a court should not protect the exclusive right to use a name or mark which is misleading to the public. Accord Holzapfel’s Compositions Co. v. Rahtjen’s American Composition Co., 183 U.S. 1, 8, 22 S.Ct. 6, 8, 46 L.Ed. 49 (1901) (“Rahtjen’s Patent Composition” not protectable trademark because composition was not patented). The mark SKYE is not misleading, and Shatel is not trying to protect the right to use the registration symbol in connection with the mark. Because misunderstandings about the use of federal registration symbols are common, see U.S. Department of Commerce, Trademark Manual of Examining Procedure § 902.04 (1979), courts have been reluctant to find unclean hands where the misuse of the registration symbol was negligent or immaterial to the litigation. Gilson, Trademark Protection & Practice, § 8:12(13)(iii) (1979). Mao Ta has introduced no evidence to show that Shatel’s use of the registration symbol was anything other than inadvertent, and we consider its use immaterial to this litigation. Application of the equitable doctrine of unclean hands lies within the sound discretion of the district court. Wolf v. Frank, 477 F.2d 467, 474 (5th Cir.), cert. denied, 414 U.S. 975, 94 S.Ct. 287, 38 L.Ed.2d 218 (1973). We hold that the district court did not abuse its discretion by refusing to apply the doctrine of unclean hands. Mao Ta’s principal argument is that the district court abused its discretion by granting the injunction since Shatel’s evidence did not show a substantial likelihood of success on the merits. Mao Ta claims that Shatel could not have prevailed on the merits because there is no evidence that, through use of the mark SKYE, Mao Ta has caused any 51-foot boats to enter into commerce. In order to make out a violation of 15 U.S.C.A. § 1125(a) Shatel must show (1) that Mao Ta used a false designation of origin, or a false description or representation in connection with the 51-foot vessel in question and (2) that Mao Ta caused the vessel to “enter into commerce.” Id.; see note 1 supra. Mao Ta argues that it did not cause any improperly designated 51-foot boats to enter commerce because none of its 51-foot boats were sold or transported in this country after the distribution agreement was terminated. Commerce, however, is not limited to the interstate sale or physical transportation of goods. In Section 45 of the Lanham Act, 15 U.S.C.A. § 1127, the word “commerce” is defined for purposes of the Lanham Act as “all commerce which may lawfully be regulated by Congress.” It is well settled that as defined “commerce” includes any intrastate transaction which “affects” interstate commerce. Thompson Tank & Mfg. Co., Inc. v. Thompson, 693 F.2d 991, 993 (9th Cir.1982). “Commerce” also includes commerce between citizens of the United States and citizens and subjects of foreign nations. Bulova Watch Co. v. Steele, 194 F.2d 567, 570 (5th Cir.), aff’d, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252 (1952). Commerce within the power of Congress to control “is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse.” Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 290, 42 S.Ct. 106, 108, 66 L.Ed. 239 (1921). Advertising that affects interstate commerce and solicitation of sales across state lines or between citizens of the United States and citizens and subjects of a foreign nation is therefore commerce within the meaning of the Lanham Act. By soliciting orders from Rex Yacht Sales, Inc., Mao Ta caused its boat, designated a SKYE 51, to enter into commerce. Mao Ta asserts that even if the Telex to Rex Yacht Sales had caused its boat, designated a SKYE 51, to enter commerce, such conduct would not be actionable. Since it had in fact manufactured the SKYE 51, Mao Ta argues that its representation to Rex Yacht Sales that it manufactured the SKYE 51 was neither a false designation of origin nor a false description or representation. This argument ignores the fact that SKYE 51 boats were manufactured to Shatel’s specifications and standards whereas the boats manufactured after the distribution agreement was terminated were not subject to Shatel’s quality control. We agree with the district court’s conclusion that Mao Ta improperly designated the origin of its vessel, and we agree that Shatel has demonstrated a substantial likelihood of success on the merits of this case. In granting the preliminary injunction the district court found that the plaintiff would suffer irreparable injury if customers attributed the vessels of the defendant to Shatel because money damages would not eliminate or compensate for customer confusion. The court also found that the hardships created by the preliminary injunction were outweighed by the threatened injury to Shatel and that the public interest would be served by granting the requested injunctive relief. These findings are supported by the record and are not challenged by Mao Ta. We therefore AFFIRM the district court’s grant of a preliminary injunction. . The statutory authority is Section 43(a) of the Lanham Act, 15 U.S.C.A. § 1125(a) which provides that Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. (Emphasis added.) Federal jurisdiction was based on 15 U.S.C.A. § 1121 and 28 U.S.C.A. § 1338. . In its conclusions of law the district court found that plaintiff had shown “a likelihood of success on the merits.” Mao Ta argues that this standard is incorrect—that a substantial likelihood is required in this Circuit. But “substantial” means real, valuable, material, or of substance. Black’s Law Dictionary 1280 (rev. 5th ed. 1979). In our opinion the word “substantial” does not add to the quantum of proof required to show a likelihood of success on the merits. The requirement of a substantial likelihood of success was established in the Fifth Circuit in Buchanan v. United States Postal Service, 508 F.2d 259, 266 (5th Cir.1975). Cf. DiGiorgio v. Causey, 488 F.2d 527, 529 (5th Cir.1973) (factor to consider is whether plaintiff is likely to prevail); Blackshear Residents Org. v. Romney, 472 F.2d 1197, 1198 (5th Cir.1973) (likelihood of success). Fifth Circuit precedent handed down before September 30, 1981, is binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). Buchanan supports its requirement of a substantial likelihood of success by citing Wright and Miller, Federal Practice and Procedure, § 2948, which requires plaintiff to show “the probability that plaintiff will succeed on the merits.” The word likelihood is synonymous with probability. So the fact that the district court did not use the word “substantial” in describing its conclusion of law, if error, was harmless. . As stated in 15 U.S.C.A. § 1127, it is the intent of the Lanham Act, inter alia, “to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce” and “to protect persons engaged in such commerce against unfair competition.” The Lanham Act’s definition of “commerce” is at least as broad as the definition of commerce employed in any other federal statute. See Bulova Watch, supra, 194 F.2d at 570 n. 11. . We find no evidence in the record to support a finding that Mao Ta caused its 51-foot boat, designated a SKYE 51, to enter commerce through use of Odyssey’s brochure. There was no testimony that Mao Ta used the mark SKYE in soliciting business from Odyssey, or that Odyssey was an agent of Mao Ta, or that Mao Ta was guilty of contributory infringement. To be guilty of contributory infringement the manufacturer must intentionally induce another to infringe a trademark or continue to supply its product to one whom it knows or has reason to know is engaging in trademark infringement. Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 854, 102 S.Ct. 2182, 2188, 72 L.Ed.2d 606 (1982).

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?

SLAPPEY DRIVE INDUSTRIAL PARK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. John W. CROUCH and First State Bank & Trust Co., Executor of the Will of Katherine S. H. Crouch, Deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Emily Jean HALEY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. LAKE PARK, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Spencer C. WALDEN, Jr. and Cornelia H. Walden, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. SHERWOOD ACRES, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. FOREST ESTATES, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. CAIRO DEVELOPERS, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Loretta Haley McKNIGHT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. William T. HALEY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. LAKE PARK ADDITIONS, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. PECAN HAVEN, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Nos. 75-1885 thru 75-1896. United States Court of Appeals, Fifth Circuit. Oct. 19, 1977. H. H. Perry, Jr., Albany, Ga., for plaintiff-appellant. Ronald T. Knight, U. S. Atty., John D. Carey, Asst. U. S. Atty., Macon, Ga., Scott P. Crampton, Asst. Atty. Gen., Jeffrey S. Blum, Atty., U. S. Dept. of Justice, Tax Div., Washington, D. C., Gilbert E. Andrews, Acting Chief, App. Section, Leonard J. Henzke, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee. Before TUTTLE, GOLDBERG and RO-NEY, Circuit Judges. GOLDBERG, Circuit Judge. This tax refund suit involves seven closely held real estate development corporations that Spencer C. Walden, Jr. organized and manages. The first issue, the one most extensively debated by the parties, is whether certain purported debts that the corporations owed their shareholders should be treated for tax purposes as contributions to capital. The second issue is whether one of the seven corporations was formed primarily for tax-avoidance purposes, thus precluding it from claiming the corporate surtax exemption. The final question is whether three parcels of land vvere held by two of the corporations primarily for sale to customers in the ordinary course of business, precluding capital gains treatment. The district court, Cairo Developers, Inc. v. United States, D. C., 381 F.Supp. 431, resolved each issue in the government’s favor. We affirm. I. Facts Spencer C. Walden, Jr. is a successful real estate developer in Albany, Georgia, a city of some 100,000 located less than 50 miles southeast of Plains. Acting primarily through the partnership of Walden & Kirkland, Walden has developed numerous residential subdivisions and various commercial properties. This case concerns a subset of his activities. Among the properties Walden has developed are several tracts originally owned by his father-in-law, J. T. Haley, and Haley’s descendants. With Walden directing organizational efforts, members of the Haley family formed six corporations over a fifteen year period. Those corporations were Pecan Haven, Inc. (Pecan Haven), Lake Park, Inc. (Lake Park), Sherwood Acres, Inc. (Sherwood), Lake Park Additions, Inc. (Additions), Forest Estates, Inc. (Forest Estates) and Slappey Drive Industrial Park, Inc. (Slappey). Each of these is a party to this case. The other corporate party is Cairo Developers, Inc. (Cairo Developers), which Walden fonned in conjunction with two individuals not members of the J. T. Haley family. Walden was the moving force behind each of these corporations. He was president of each enterprise, and his partnership, Walden & Kirkland, handled their development work. All but Slappey were to develop residential subdivisions; Slappey’s project was an industrial park. On this appeal the government asserts that Additions was formed primarily for tax-avoidance purposes and that Sherwood and Additions held certain property for sale rather than for investment. The government further contends that purported debts that each corporation owed its shareholders should receive equity treatment. The debts arose from eight transfers of land (ostensibly credit sales) and three transfers of money (ostensibly loans) that the shareholders made to the corporations. We develop the facts relevant to these contentions by discussing the corporations in the order of their incorporation, referring to the contested transfers by alphabetical labels. Pecan Haven. Pecan Haven was formed in June 1947. The shareholders were Walden (1 share), his wife Cornelia Haley Walden (59 shares) and her twin sister Loretta Haley (60 shares). They paid $12,000 for their shares. Pecan Haven developed several tracts obtained from Loretta and Cornelia and later developed a tract purchased from their father J. T. Haley. Transfer A occurred July 26, 1960. Spencer Walden transferred 69.435 acres to the corporation in exchange for its $65,000 five-year 3% installment notes. Appellants assert that the corporation’s book net worth at that time was $83,000 and that its “true” net worth, taking into account the appreciated value of its real estate holdings, was $476,000. The corporation failed to make timely payments of principal or interest, and $20,000 remains outstanding. Lake Park. J. T. Haley’s three children — Joel T. Haley, Jr., Cornelia and Loretta — organized Lake Park in November 1950 intending to develop lands they held jointly. They took equal shares of the corporation’s stock, for which they paid a total of $28,000. The corporate books reflected the contributions as $9,000 paid-in capital and $19,000 paid-in surplus. The corporation immediately acquired land from its shareholders that it developed. Transfer B occurred September 7, 1954. The shareholders transferred 100 acres to the corporation in exchange for $10,000 cash and a $40,000 demand note bearing 4% interest. Appellants contend that at the time of the transfer the corporation’s net worth was $50,000 and that its “true” net worth was $78,000. Lake Park made irregular principal payments and retired the note in 1959. The corporation did not pay interest as provided in the note, making only a single $2,500 interest payment in 1956. Sherwood. The Lake Park shareholders —Joel, Cornelia and Loretta — formed Sherwood in September 1954. Each took one-third of the new corporation’s stock, for which they paid a total of $21,000. The next day they made transfer C, conveying to the corporation 48 acres in which each owned a one-third undivided interest. In exchange the corporation paid $6,000 cash and an $18,000 demand note bearing 4% interest. The corporation made irregular principal payments and a single interest payment, retiring the debt in 1960. By the time of the second contested Sherwood transaction, Joel had died, leaving to his wife Katherine and his two children equal portions of his stock and the remaining property owned in conjunction with the other shareholders. This new lineup of shareholders made transfer D in January 1960. In exchange for 126.48 acres, the corporation issued five-year 3% notes to each shareholder totalling $189,720.02. Appellants assert that at that time the corporation had a book net worth of $62,000 and a “true” net worth of $206,000. Sherwood made irregular principal and interest payments, and a $32,000 balance remains outstanding. Transfer E occurred in December 1964 when Sherwood’s shareholders conveyed an additional 84.252 acres to the corporation. In exchange they received five-year 5% notes totalling $126,000. Appellants contend that the corporation had a $117,000 book net worth and a $240,000 “true” net worth. In September 1965 the corporation retired the notes held by Katherine and her two children. The corporation has made no payments on the notes held by Loretta and Cornelia. The corporation made an interest payment to Katherine and her children in 1965 and made annual interest payments to Loretta and Cornelia from 1967 through 1971. On July 7, 1965, Sherwood sold.99 acres of the tract it had received in 1954 from its shareholders. The land was part of 3.71 acres that the corporation had not divided into residential lots and which were identified on the recorded plat as “reserved for business” and described in the corporate books as a “land reserve.” Texaco, the purchaser, had initiated negotiations for the sale; Sherwood had not solicited buyers. Texaco used the land for a gas station. Sherwood originally reported the profit on the Texaco sale as ordinary income but now seeks capital gains treatment. Additions. In June 1959 Loretta, Cornelia and Katherine formed Additions, each taking one-third of its shares and contributing a total of $36,900 paid-in capital. Katherine’s two children did not participate. The shareholders and Katherine’s children immediately made transfer F, conveying 268.8 acres to the corporation in exchange for five-year 3% notes totalling $368,200. The corporation made no principal or interest payments until 1964. From 1964 until 1969 it made annual interest payments. It has made a single principal payment, for $5,000 in 1965. Transaction G occurred August 2, 1961. Loretta advanced the corporation $61,250, taking in return its one-year 5% note. The corporation made its first payment on the note in 1964 and retired the note in 1965. After conducting a topographical survey of the land it had received from its shareholders in 1959, Additions discovered that nearly three acres could not be incorporated into the planned residential subdivision because of drainage problems. The corporation abandoned its initial plan regarding this tract and did not subdivide it into lots. The corporation did not break the parcel out separately on its books but carried it in the same account that included all undeveloped land. In 1963 Georgia Power Company approached Additions and bought two acres for a substation, and the City of Albany contacted Additions and purchased the remainder of the tract for a pumping station. Georgia Power paid $7,500 for its parcel and the city $2,500. Additions claims that this land had been held for investment, making capital gains treatment appropriate. Forest Estates. In September 1959 Loretta Haley and Marjorie Scherberger formed Forest Estates, each taking half its stock, for which they paid a total of $25,000. They immediately effected transfer H, conveying to the corporation 43.93 acres that they owned jointly in exchange for five-year 4% notes totalling $100,000. Forest Estates made no principal payments on the notes until 1971, and $70,000 remains outstanding. The corporation made small and irregular interest payments from 1961 through 1967. Forest Estates suffered losses in 1965 and 1966 and apparently abandoned development plans. Cairo Developers. Spencer C. Walden, Jr., George M. Kirkland, Jr., and J. Nor-wood Clark formed Cairo Developers in April 1961. Kirkland was Walden’s partner in Walden & Kirkland. Clark was a real estate broker from Cairo, Georgia, who owned the bulk of the land that Cairo Developers was to develop. Each organizer took one-third of the corporation’s stock, paying in a total of $5,100. From May 1961 through January 1964, the corporation received ostensible loans from the three shareholders, the Walden & Kirkland partnership, a corporation that Walden and Kirkland owned, and two of Walden’s children. These advances together constitute transfer J. Most of these notes were due in one year; a few were payable on demand. The corporation made no payments of principal or interest until 1971. Slappey. On July 7, 1962, Cornelia Haley Walden organized Slappey, paying $9,000 for all its issued stock. On July 9 she transferred the stock in equal segments to her three children. The next day Cornelia made transfer K, conveying 80.78 acres to the corporation in exchange for $6,366.50 cash and an eight-year 4% note for $75,000. Slappey planned to develop the land for industrial and commercial establishments. The Corporation made irregular principal and interest payments, failing to pay the debt on its due date. Transfer L occurred May 27, 1963. Each of the three shareholders advanced the corporation $5,000 in exchange for one-year 6% notes. Slappey has made no payments of principal or interest on these notes. Overview. We may assume, as appellants contend, that in each ostensible sale of property to a corporation the price reflected the fair market value. Nonetheless, the recurring pattern in regard to all the loans has been the corporations’ failure to adhere to the announced repayment schedules. Although the corporations did make some principal and interest payments, in not a single case did the payments conform to the terms included in the notes. In addition, Spencer Walden’s deposition testimony makes clear that the creditor-shareholders viewed their situation not at all as normal creditors would. The shareholders entered no objections to the passing of payment dates and requested payments only when the corporations had “plenty of cash.” In explaining the willingness to tolerate delinquencies even when interest was not being paid, Walden candidly stated that the individuals were more concerned with their status as shareholders than in their status as creditors. II. Debt-Equity The tax code provides widely disparate treatment of debt and equity. In regard to a typical transfer at issue here, involving an individual’s transfer of property to his corporation in exchange for the instrument in question, the classification as debt or equity may affect the taxation of the original transaction, the resulting bases and hence the taxation of subsequent transfers, and the taxation of payments the corporation makes to the shareholder with respect to the instrument. In the case at bar debt classification would greatly benefit the taxpayers. Unfortunately, the great disparity in the tax treatment of debt and equity does not derive from a clear distinction between those concepts. The problem is particularly acute in the case of close corporations, because the participants often have broad latitude to cast their contributions in whatever form they choose. Taxpayers have often sought debt’s advantageous tax treatment for transactions that in substance more closely resembled the kind of arrangement Congress envisioned when it enacted the equity provisions. See Nassau Lens Co. v. Commissioner, 308 F.2d 39, 44-46 (2d Cir. 1962) (Marshall, J.). Thus the labels that parties attach to their transactions provide no guarantee of the appropriate tax treatment. See, e. g., Tyler v. Tomlinson, 414 F.2d 844, 850 (5th Cir. 1969); Berkowitz v. United States, 411 F.2d 818, 820 (5th Cir. 1969). Articulating the essential difference between the two types of arrangement that Congress treated so differently is no easy task. Generally, shareholders place their money “at the risk of the business” while lenders seek a more reliable return. See Midland Distributors, Inc. v. United States, 481 F.2d 730, 733 (5th Cir. 1973); Dillin v. United States, 433 F.2d 1097, 1103 (5th Cir. 1970). That statement of course glosses over a good many considerations with which even the most inexperienced investor is abundantly familiar. A purchaser of General Motors stock may bear much less risk than a bona fide lender to a small corporation. See Fin Hay Realty Co. v. United States, 398 F.2d 694, 697 (3d Cir. 1968). Nevertheless, the “risk of the business” formulation has provided a shorthand description that courts have repeatedly invoked. Contributors of capital undertake the risk because of the potential return, in the form of profits and enhanced value, on their underlying investment. Lenders, on the other hand, undertake a degree of risk because of the expectancy of timely repayment with interest. Because a lender unrelated to the corporation stands to earn only a fixed amourit of interest, he usually is unwilling to bear a substantial risk of corporate failure or to commit his funds for a prolonged period. A person ordinarily would not advance funds likely to be repaid only if the venture is successful without demanding the potential enhanced return associated with an equity investment. See Curry v. United States, 396 F.2d 630, 634 (5th Cir.), cert. denied, 393 U.S. 967, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968); DuGro Frozen Foods, Inc. v. United States, 481 F.2d 1271, 1272 (5th Cir. 1973). These considerations provide only imperfect guidance when the issue relates to a shareholder’s purported loan to his own corporation, the usual situation encountered in debt-equity cases. It is well established that shareholders may loan money to their corporations and achieve corresponding tax treatment. See United States v. Snyder Bros. Co., 367 F.2d 980, 983 (5th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1021, 18 L.Ed.2d 104 (1967); Rowan v. United States, 219 F.2d 51 (5th Cir. 1955). When making such loans they could hardly be expected to ignore their shareholder status; their motivations will not match those of potential lenders who have no underlying equity interest. The “risk of the business” standard, though, continues to provide a backdrop for our analysis. While we should not expect a creditor-shareholder to evidence motivations and behavior conforming perfectly to those of a mere creditor, neither should we abandon the effort to determine whether the challenged transaction is in substance a contribution to capital masquerading as debt. Rather than attempt to measure concrete cases against an abstract formulation of the overriding test, we have identified numerous observable criteria that help place a given transaction on one side of the line or the other. We have always recognized, however, that the various factors are not equally significant. “The object of the inquiry is not to count factors, but to evaluate them.” Tyler v. Tomlinson, 414 F.2d 844, 848 (5th Cir. 1969). Each case turns on its own facts; differing circumstances may bring different factors to the fore. See In re Indian Lake Estates, Inc., 448 F.2d 574, 579 (5th Cir. 1971); Tomlinson v. The 1661 Corp., 377 F.2d 291, 295 (5th Cir. 1967). With that preliminary caveat, we note the factors that prior cases have identified: (1) the names given to the certificates evidencing the indebtedness; (2) The presence or absence of a fixed maturity date; (3) The source of payments; (4) The right to enforce payment of principal and interest; (5) participation in management flowing as a result; (6) the status of the contribution in relation to regular corporate creditors; (7) the intent of the parties; (8) “thin” or adequate capitalization; (9) identity of interest between creditor and stockholder; (10) source of interest payments; (11) the ability of the corporation to obtain loans from outside lending institutions; (12) the extent to which the advance was used to acquire capital assets; and (13) the failure of the debtor to repay on the due date or to seek a postponement. Estate of Mixon v. United States, 464 F.2d 394, 402 (5th Cir. 1972). As indicated above, these factors are but tools for discerning whether a transaction more closely resembles the type arrangement for which Congress provided debt or equity treatment. In the case at bar the most telling of the Mixon factors is the corporate debtors’ consistent failure to repay the debts on the due dates or to seek postponements. More generally, that failure and the corresponding absence of timely interest payments combine with Walden’s testimony regarding the parties’ view of their relationships to make clear that these transactions were in substance not at all the type arrangements for which debt treatment is appropriate. The individuals’ failure to insist upon timely repayment or satisfactory renegotiation indicates that the compensation they sought went beyond the announced interest rate, for an investor would not ordinarily undertake such a risk for so limited a return. See Tyler v. Tomlinson, 414 F.2d 844, 850 (5th Cir. 1969). The failure to insist that the corporations pay the interest that the agreements provided underscores the inference; “a true lender is concerned with interest.” Curry v. United States, 396 F.2d 630, 634 (5th Cir.), cert. denied, 393 U.S. 967, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968). See also National Carbide Corp. v. Commissioner, 336 U.S. 422, 435 n. 16, 69 S.Ct. 726, 93 L.Ed. 779 (1949). When a corporate contributor seeks no interest, it becomes abundantly clear that the compensation he seeks is that of an equity interest: a share of the profits or an increase in the value of his shareholdings. See Estate of Mixon v. United States, 464 F.2d 394, 409 (5th Cir. 1972). Walden’s testimony confirms these conclusions. He acknowledged that the individuals sought payments of principal or interest only when the corporations had “plenty of cash” and that the investors did so because they were more concerned with their status as shareholders than as creditors. That statement of how the individuals viewed their situation corresponds almost perfectly to the classic equity situation. A corporation normally declares dividends only when it has “plenty of cash.” Shareholders ordinarily acquiesce in such dividend policies because their primary concern is the health and long-term success of the enterprise. Walden’s statement indicates that the individuals here possessed precisely those motivations and that they believed it appropriate for the corporations to decide when to make payments on the same basis that corporations customarily make dividend decisions. See Berkowitz v. United States, 411 F.2d 818, 821 (5th Cir. 1969). The taxpayers’ pattern of conduct belies any intention to structure their affairs as parties to a debt transaction ordinarily would. In the circumstances here, these factors indicate that all the transactions should be characterized for tax purposes as equity arrangements. In reaching this conclusion we have not ignored the other factors our cases have identified. Appellants place particular reliance on the intent of the parties. Here, appellants contend, the form in which the parties cast the transactions conclusively demonstrates their intent to create a debt relationship. In relying so heavily on this factor, however, appellants misconceive its import. The question is not whether the parties intended to call their transaction “debt” and thus to achieve advantageous tax treatment; that a person wants to pay less tax rather than more provides little basis for discerning how much tax Congress decided he should pay. Instead, the relevant inquiry is the actual manner, not the form, in which the parties intended to structure their relationship. If the intended structuring accords with the type arrangement that qualifies for taxation as debt, that intent supports a finding of debt. Here, however, the parties intended to structure their relationship in a manner placing funds at the prolonged risk of the businesses; they intended decisions whether to make payments on the advances to be based on the criteria usually associated with dividend decisions. To the extent that intent is relevant, it favors equity classification. Another Mixon factor to which appellants look for support is the extent to which the advance was used to acquire capital assets. They argue that here the corporations used none of the advances for that purpose. Instead, appellants note, the corporations used the contributions primarily for land, which constitutes the inventory of these real estate development firms. Whatever force this factor might have in other settings, appellants here can garner little support from it. Most of these advances, while perhaps not used for capital assets, nonetheless served “to finance initial operations.” Plantation Patterns, Inc. v. Commissioner, 462 F.2d 712, 722 (5th Cir. 1972). See Aquaiane Shores, Inc. v. Commissioner, 269 F.2d 116 (5th Cir. 1959) (shareholder’s credit “sale” of land to real estate development corporation held to constitute equity contribution). Providing the bulk of the necessary first assets without which a corporation could not begin functioning is as traditional a usage of capital contributions as is purchasing “capital assets.” Another factor from Mixon that sometimes proves most instructive is the identity of interest between creditor and stockholder. Courts and commentators have often discussed this criterion under the rubric “proportionality.” When each shareholder owns the same proportion of the company’s stock as he does of the ostensible shareholder debt, the parties’ framing of the transaction contributes little to the analysis. See Fin Hay Realty Co. v. United States, 398 F.2d 694 (3d Cir. 1968). In that situation the owners’ decision regarding how much of their contribution to cast as equity and how much as debt does not affect the distribution of control over the company. Non-tax considerations may play little role in the choice, and reviewing courts accordingly must scrutinize carefully the resulting transaction. When, on the other hand, an individual holds different percentages of the corporation’s stock and shareholder debt, the casting of debt in that form ordinarily will affect substantial non-tax interests. There is thus reason to believe that the parties’ debt characterization has substance as well as form. Appellants argue in the case at bar that many of the challenged transfers exhibited imperfect proportionality and that some displayed none at all. While that argument would carry weight in the usual case, it has little force here.. The disproportional holdings all occurred among close relatives. Although we do not treat the various shareholding members of the J. T. Haley family as an indivisible unit, neither do we treat them as unrelated individuals. For all that appears in this record, relations among the various family members were completely harmonious. Because shareholding family members were thus less likely to attribute major significance to departures from strict equality in their positions, the instances of disproportionate debt and equity holdings provide a much weaker inference than they ordinarily would that the ostensible debt was in fact what it purported to be. Finally, appellants strenuously urge that the level of the corporations’ capitalization does not undermine their position. We have not, however, based our decision on the inadequacy of the corporate capitalization. While some of the purported loans were made to corporations with woefully inadequate capital, others were not. In some cases, as the taxpayers note, capitalization was adequate. These facts strengthen our conclusion as to some transactions, weaken it for others. They do not, however, suffice to change the conclusion we have derived from the parties’ pattern of conduct and from Walden’s testimony. Because the parties to the transactions in question intended to conduct and did conduct their affairs in a manner that the tax code labels equity rather than debt, taxation of the transactions as equity is appropriate. Contrary to appellants’ assertions, in reaching that result we do not disapprove their decisions concerning how to organize the corporations, and we do not substitute our business judgment for theirs. We merely announce the tax consequences that attach to their decisions. While appellants are correct that they were free to decide without our supervision how much of the corporate financing to derive from loans and how much from capital contributions, they were not free to decide for themselves what tax consequences would attach to their conduct. III. Surtax Exemption Corporations pay a different rate of tax on income above and below a set amount. The Internal Revenue Code accomplishes this result by computing corporate income taxes as the sum of the “normal tax” and the “surtax.” See I.R.C. § 11. A corporation is ordinarily exempt from surtax on taxable income below a set amount. Id. Here, however, the Commissioner rejected the surtax exemption claims of Sherwood and Additions, contending that those corporations were formed principally for the purpose of avoiding income taxes. I.R.C. § 269 provides for the disallowance of deductions, credits or other allowances in certain circumstances where the principal purpose of the underlying transaction was tax avoidance. The district court upheld the Commissioner, finding as a fact that tax avoidance had indeed been the taxpayers’ primary motivation. On appeal taxpayers acknowledge that § 269 provides a tool for attacking surtax exemptions. See, e. g., Bobsee Corp. v. United States, 411 F.2d 231 (5th Cir. 1969), Green Light Co. v. United States, 405 F.2d 1068 (5th Cir. 1968); Airport Grove Corp. v. United States, 431 F.2d 739 (5th Cir. 1970). While abandoning their claim in regard to Sherwood, taxpayers continue to maintain that they formed Additions primarily for non-tax-avoidance purposes. We set forth the applicable standards in Bobsee Corp., supra. “[T]here are only two relevant classes of purposes: tax-avoidance and non-tax-avoidance; the statute applies only if the former class exceeds the latter.” Id., 411 F.2d at 239 (footnote omitted). Which class of purposes predominates is a question of fact; we review the district court’s findings only to determine whether they are clearly erroneous. See, e. g., Your Host, Inc. v. Commissioner, 489 F.2d 957 (2d Cir. 1973), cert. denied, 419 U.S. 829, 95 S.Ct. 51, 42 L.Ed.2d 54 (1974). The original equal shareholders of both Lake Park and Sherwood were Cornelia Haley Walden, Loretta Haley and Joel T. Haley, Jr. They formed Lake Park in 1950 and Sherwood in 1954. Joel died in 1955, leaving equal shares of his interest in each corporation to his wife Katherine and his two children. Cornelia, Loretta and Katherine formed Additions in 1959 to develop a residential subdivision adjoining Lake Park. Each took a one-third interest. Katherine’s two children, who had become one-ninth owners of Lake Park and Sherwood by virtue of their father’s death, took no shares in the new corporation. In asserting that tax avoidance was not the primary purpose for forming Additions, taxpayers emphasize that Katherine S. Haley desired to exclude her minor children from the new enterprise. The record contains ample indicators, however, from which the trier of facts could reasonably have concluded that tax purposes predominated. In his deposition testimony Spencer Walden, who was con-cededly the moving force behind the multi-corporate operations and who apparently made the decision to create the new corporation, listed several reasons for forming Additions and assigned no prominence to the participation of Katherine’s children. Walden alluded to the difficulty of getting a valid deed from a minor in Georgia, to the need for separate corporations to market houses of “different character,” to the advantages of limited liability, to the ease with which divisions or trades of shareholdings could be made under a multicorporate arrangement, and to the interest in having one corporation for houses north of the highway and another for those south of the highway. Walden did not explain how these vague contentions, many of which are palpably trivial, related to the decision whether to create a new corporation. Their relationship is at best very weak. Walden acknowledged that he made the decision on the advice of his accountant and tax adviser, T. S. Mauldin. Mauldin conceded that they discussed the surtax exemptions as an advantage of having multiple corporations. Walden denied that surtax exemptions provided the sole reason for the decision, but tax avoidance need not be the sole purpose of a transaction in order to bring § 269 into play. In response to Walden’s unfocused laundry list of non-tax considerations sounding much like after-the-fact rationalizations, the district court concluded that tax purposes predominated. That finding is not clearly erroneous, and we therefore uphold it. IV. Capital Gains/Ordinary Income Sherwood and Additions seek capital gains treatment on sales of several small tracts for non-residential purposes. Such treatment would be appropriate only if the property constituted a “capital asset.” The Internal Revenue Code defines that term as “property held by the taxpayer” but excludes numerous items from that definition. See I.R.C. § 1221. Among the exclusions is “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” I.R.C. § 1221(1). As used in that section, “primarily” means “of first importance” or “principally.” See Malat v. Riddell, 383 U.S. 569, 572, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Biedenharn Realty Co. v. United States, 526 F.2d 409, 422 (5th Cir.) (en banc), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The district court concluded that the land involved here came within § 1221(1) and that ordinary income treatment therefore was appropriate. We agree. In Biedenharn, supra, our en banc court set forth the proper approach for determining whether land has been held for sale or for investment. We adhered to the factors enumerated in United States v. Winthrop, 417 F.2d 905, 910 (5th Cir. 1969): the “substantiality and frequency of sales, improvements, solicitation and advertising efforts, and brokers’ activities.” Bieden-harn, supra, 526 F.2d at 415. In the case at bar the result that these factors counsel depends upon the success of taxpayers’ efforts to have us view the three small lots in question in isolation from the larger tracts of which they were originally a part. Sherwood began its first subdivision with over 60 acres that it divided into 180 residential lots, leaving.99 acres it sold to Texaco and 2.72 acres it conveyed to a church. Sherwood of course acknowledges that it held the 180 lots primarily for sale to customers in the ordinary course of its business. In regard to those 180 lots, and the numerous others derived from the additional 210 acres Sherwood had obtained for residential developments prior to the challenged sale to Texaco, Sherwood made substantial and frequent sales, undertook major and ongoing improvements, and solicited purchasers. If the Texaco parcel is viewed in isolation, on the other hand, Sherwood completed only a single sale, added no improvements, and did not seek out a purchaser. The Additions sales present a similar issue. Its founders organized the corporation to develop a 268.8 acre tract that yielded hundreds of residential lots. Sales were frequent, improvements substantial, and solicitations undenied. With respect to the two acres sold to Georgia Power and the fraction of an acre sold to the city, however, sales were two, improvements and solicitations none. We decline the taxpayers’ invitation to blind ourselves to their predominating activities and to narrow our focus to three carefully excised slivers from the land they sought to develop. The corporations undoubtedly acquired the lots intending to incorporate them into their projects and to sell them in the ordinary course of business; when these real estate firms decided not to do so, they found alternative buyers within a relatively short period. Under these circumstances the Bieden-harn analysis and Winthrop factors require ordinary income treatment. A business of this type bears a heavy burden in attempting to separate for special treatment a small fragment of a tract bought for development and sale This record contains no indication that these taxpayers had completely severed the contested lots and abandoned their intent to sell them to customers

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.

In the Matter of MUNTZ TV, Inc., et al., Debtors. R. H. and M. WIENER, Appellants, v. C. Wylie ALLEN and Floyd G. Dana, The Trustees of Muntz TV, Inc., Appellees. No. 11377. United States Court of Appeals Seventh Circuit. Aug. 10, 1955. Monroe L. Friedman, New York, N. Y., for appellant. Joseph W. Grady, James Overton Brooks, Chicago, Ill., for appellee. Before FINNEGAN, LINDLEY, and SCHNACKENBERG, Circuit Judges. FINNEGAN, Circuit Judge. Trustees-appellees, Allen and Dana of Muntz TV, Inc., principal debtor under Chapter X, Bankruptcy Act proceedings were granted an order below against appellants, Max Wiener, landlord, and Ralph H. Wiener, directing those persons to turn over $661.67. That sum represented the balance of $3,000 deposited “as security for the full and faithful performance of” a lease running from the Wieners to Muntz for premises located in Jackson Heights, New York. Ralph H. Wiener’s communication, on his law office letterhead, to' the district judge follows: “As illness and confinement to my home prevent my attendance in your court on November 16, 1954, to oppose a petition made by the Trustees and returnable on that date for a turnover of a leasehold security deposit allegedly held by myself and M. Wiener, I am enclosing the original of an Affidavit of Max Wiener which I wish would be marked and read as submitted in opposition to the Trustees’ said petition. A copy of the said answering Affidavit has been served by mail upon the Attorney for the Trustees. “Thank you.” In the affidavit, mentioned in that letter, Max Wiener requested a hearing in the Federal District Court, Southern District of New York where he resides, and the leased property is located, because of advanced age and illness of R. H. Wiener. The affiiant stated that only he and R. H. possessed personal knowledge of the matter. Obviously on this record there is absent any question of notice to the Wieners. We think the letter and affidavit, disclosing no challenge to jurisdiction, plenary or summary, waived jurisdictional issues. Cline v. Kaplan, 1944, 323 U.S. 97, 99, 65 S.Ct. 155, 89 L.Ed. 97. Ordering the turnover of $661.77 and allowing the Wieners $2,338.23 out of the security deposit totaling $3,000 was correct. In re Cuyahoga Finance Co., 6 Cir., 1943, 136 F.2d 18. In his affidavit Max Wiener admitted the deposit was for security and the court below rightly-tested its findings of fact and conclusions of law on that point. Because we are affirming the district court’s order entered November 16, 1954, challenged here by appellants, it is unnecessary to discuss the trustees’ motion to dismiss this appeal. After studying this record, two briefs filed by appellants and the brief for appellees, we are satisfied that this Case presents facts readily distinguishable from those presented by In re Muntz TV, Inc. (W. G. Embry and Fort Worth National Bank v. Allen and Dana), 7 Cir., 225 F.2d 489. We have considered all of appellants’ contentions and find them without merit. The judgment of the district court is affirmed. Affirmed. . 52 Stat. 883, 11 U.S.C.A. § 501 et seq.

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?

MARION COUNTY COURT, W. VA., v. RIDGE et al. (Circuit Court of Appeals, Fourth Circuit. June 8, 1926.) No. 2477. 1. Courts @=>354 — In federal court, motion to • set aside judgment made during term, and held open, may be aoted on thereafter. While a federal court has no power to set aside judgments after the term at which they are rendered, it has complete control over them during the term, and, where motion to set aside is made during the term, and held open for further consideration, it may be acted on after the term has expired. 2. Courts @=>354. On a motion* to set asido a judgment, federal courts are governed by the practice prescribed by the state statutes. 3. Judgment @=>145(1) — Motion to set aside default judgment held to show “good cause” (Code W. Va. o. 125, § 47). Motion to set aside default judgment against a county court of West Virginia, entered more than 4 years after the action was commenced, held to show “good cause,” within Code W. Va. e. 125, § 47, where summons was served on a chairman of the court, who soon went out of office, as did the county attorney, and his successor had no knowledge that the county was in default for want of answer, and relied on a rule of court requiring notice before trial, and especially in view of the long inaction of plaintiff. 4. Counties @=>222 — Declaration, not showing presentation and disallowance of claim against county, as required by state statute, held insufficient (Code W. Va. o. 39, § 41). Declaration in an action on contract against a county court of West Virginia does not state a cause of action which will sustain a judgment by default, where it does not allege prior presentation of the claim to the county court and its disallowance, as required by Code W. Ya. e. 39, § 41. 5. Courts @=>374. Limitations on suits against counties imposed by state statute, requiring presentation of claims, will be enforced in federal courts. In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Jndge. Action by Patrick Ridge and another, partners doing business as the Ridge Bros. Company, against the County Court of Marion County, W. Va. From an order denying a motion to set aside judgment for plaintiffs, defendant brings error. Reversed and remanded, with directions. M. W. Ogden, M. E. Morgan, and John W. Mason, Jr., all of Fairmont, W. Va., for plaintiff in error. John J. Coniff, of Wheeling, W. Va., for defendants in error. Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge. PARKER, Circuit Judge. Patrick Ridge and Mike Ridge, partners doing business as Ridge Bros., plaintiffs in the court below, obtained a default judgment for the sum of $20,090.11 against the defendant, county court of Marion county, W. Va., at the October term of the United States District Court at Wheeling, W. Va. The defendant, at the same term, made a motion to set aside the judgment and the verdict on which it was rendered; and from an order denying the motion this writ of error is prosecuted. The parties will be referred to in accordance with their respective positions in the court below. This action was one of trespass on the case, in assumpsit, in which plaintiffs sought to recover $50,000 for losses alleged to have been sustained as a result of breach of contract by defendant, $50,000 for the value of machinery of plaintiffs, alleged to have been appropriated by defendant to its own nse, and for $8,000 as balance due plaintiffs for road work performed under contract. Summons was issued October 8, and served October 15, 1920. The declaration was filed January 5, 1921. Thereafter no action whatever was taken in the cause until October 21,1924, 3 years and 9 months later, when, upon the calling of the docket on the first day of the regular term at Wheeling, the defendant was ealled in open court, and the ease was set for trial November 10th. On that date, November 10, 1924, the ease was ealled for trial, and, the" defendant being ealled and not appearing, a jury was impaneled, and found for plaintiff's, and assessed their damages at $20,-090.11. Three days later, but during the same term, defendant appeared and moved that the verdict be set aside, and for a new trial, and an order was thereupon entered allowing defendant 20 days in which to file grounds in support of its motion. These grounds were duly set forth in an affidavit, which was filed within the time allowed, whereupon the court took the matter under advisement, and on August 28, 1925, signed the order denying the motion. ' The affidavit filed shows that defendant had a meritorious defense to the action, and that the judgment was taken as the result of surprise, mistake, and excusable neglect on the part of defendant and its counsel, and is irregular, in that the declaration does not contain an averment, in accordance with the statute of West Virginia, that demand for the claim in suit had been presented to the defendant county court, and disallowed in whole or in part. As to the defense, the affidavit avers that plaintiffs abandoned their contracts to construct roads for defendant; that defendant was obliged to take over the road work and complete the roads at considerable loss; and that the dispute between plaintiffs and defendant as to the loss sustained, as a result of the breach, had been compromised' by the payment to defendant of the sum of $15,000 by the surety on the bonds accompanying the road contracts involved in the case. With respect to surprise, mistake, and excusable neglect, on the part of defendant and its counsel, the affidavit alleges that the summons was served upon one Shaffer, who was president of the county court in 1920, but who went out of office in January, 1921; that the county attorney is the person having charge of litigation of this character against the defendant, and that- a new county attorney was chosen on January 1, 1921, who had no knowledge of the fact that this action had been instituted until the latter part of that year; that, upon being informed that an action of some sort was pending against defendant in the federal court, the county attorney addressed a letter to the deputy clerk, making inquiry as to whether any such action were pending; and that he received a letter in reply, under date of December 14, 1921, from the clerk of the court at Wheeling, advising that the action was pending there, and giving the nature of the action, the amount demanded, and the date of the issuance of summons, but not advising that the declaration had been filed, that the answer had not been filed, or that defendant was in default. The position of defendant with respect to this is that the letter of the county attorney was notice that he was appearing in the case; that he was not apprised by the letter of the clerk that defendant was in default; that section 11 of the rules of practice of the District Court for the Northern District of West Virginia provides that any party desiring trial of a civil action shall give notice in writing to the adverse party or his counsel, and shall file same, together with proof or acknowledgment of service, in the clerk’s office, at least 20 days before the term; and that he was justified in assuming that the case was at issue; and that he would be duly notified, according to rule, in advance of trial. Defendant also takes the position that section 13 of the rules of the court provides that eases which have been pending in court for more than a year without proceedings may be dismissed at the call of the docket, for want of prosecution, either at the request of a party or by the court of its own motion; and that, nearly 4 years having elapsed, defendant was justified in assuming that the case had been dismissed, or, at least, that the court would allow no action to be taken without notice against a public corporation upon which notice could be served without difficulty. With respect to the sufficiency of the declaration, it appears that there is no allegation whatever that the claims sued on were ever presented to the defendant county court, as required by statute, and the only allegation which plaintiffs contend to be a compliance with the statute is a general averment that plaintiffs suffered damage to the amount of $150,000 (which is not the total of the claims in suit), coupled with the formal allegations of a declaration in assumpsit of demand and refusal to pay this amount. While a federal court has no power under state statutes to set aside judgments after the term at which they are rendered, it has complete control over them, and may set them aside during the term. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. And, where a motion to set aside is made during the term, and held open for further consideration, the court has power to act upon it after the term has expired. Walker v. Moser (C. C. A. 8th) 117 F. 230; Goddard v. Ordway, 101 U. S. 745, 751, 25 L. Ed. 1040. As the motion here was made during the term and.held for further consideration, there is no doubt of the power of the court to act upon it just as though final disposition had been made during the term. The power of the court to act upon the motion being established, the practice to be followed is that prescribed by the statute of the state where the court is held. B,. S. 914 (Comp. St. § 1537); Wylie Permanent Camping Co. v. Lynch (C. C. A. 4th) 195 F. 386, 115 C. C. A. 288; Virginia, T. & C. Steel & Iron Co. v. Harris (C. C. A. 4th) 151 F. 428, 80 C. C. A. 658; Howie Mining Co. v. McGary (D. C.) 256 F. 38. The statute of West Virginia applicable here is section 47, c. 125, of the Code, which provides that, where judgment by default “has been entered up in court, * * * it shall not be set aside ■without good cause be shown therefor.” And “good cause” authorizing the setting aside of a default judgment, where the judgment has been entered up or the order for an inquiry of damages has been executed, is “fraud, acci* dent, surprise, mistake, or some adventitious circumstance preventing the party from making defense, excusing his absence.” Post v. Carr, 42 W. Va. 72, 24 S. E. 583; Jennings v. Wiles, 82 W. Va. 573, 96 S. E. 1009. In this case we think that the defendant showed “good cause,” within the meaning of the statute, for setting aside and vacating the judgment, and that the learned district judge erred in holding, as a matter of law, that the circumstances upon which defendant relies were not sufficient to constitute good cause. In the first place, we think that the judgment was obtained by surprise, and as the result of mistake and excusable neglect on the part of defendant and its attorney. Defendant is the governing body of a county. The president of the court upon whom process was served had gone out of office. The attorneys for the county had been changed. More than a year after the action had been instituted the county attorney, being .advised that a suit of some sort was pending against the county, made inquiry of the proper court official, and was informed as to the nature of the action, without being told that defendant was in default. The rule of court required at least 20 days’ notice before trial, and the attorney might reasonably assume that this notice would be given him. It is true that the attorney should have investigated to see whether answer had been filed, but it may well be that he was thrown off! his guard by reason of the fact that no default judgment had been taken, although the action had been pending more than a year. Almost 3 years after this, and after the declaration had been on file for 3 years and 9 months, during 2 years and 9 months of which the action might have been dismissed by the court of its own motion, the plaintiffs, without any notice whatever, proceeded to have the defendant called out and the case tried in the absence of defendant’s counsel. If the defendant was negligent in failing to take action during the 3 year and 9 months’ period, what shall be said of the plaintiffs? The fact that plaintiffs liad allowed their ease to lie dormant for so long a time did not, of course, justify the defendant in ignoring it; but such delay on the part of plaintiffs was calculated to cause the case to be forgotten in the change of county administrations, and, after so long a period of inaction, judgment should not have been entered against the people of a county, without giving to their representatives reasonable notice and opportunity to defend. The fact that immediately upon learning of the judgment, and within 3 days after it was entered, defendant’s counsel were in Wheeling, moving to set it aside, is a circumstance which strongly corroborates their contention that they were taken by surprise and had been acting under mistake. Their diligence in moving so promptly to set aside the judgment stands out in strong contrast with the action of plaintiffs in delaying for more than 3y2 years to apply for it. We think that the neglect shown by defendant and its counsel was excusable, under the peculiar circumstances of the case, and that the surprise, mistake, and excusable neglect under which the judgment was obtained constituted “good cause,” within the meaning,of the statute, for setting it aside. Jennings v. Wiles, supra; Willson v. Ice, 78 W. Va. 672, 90 S. E. 272; Varney & Evans v. Lumber & Mfg. Co., 64 W. Va. 417, 63 S. E. 203. There was yet another “good cause” shown for vacating the judgment on the motion of defendant, viz. that the declaration, did not state a cause of action. “A default admits only what is well pleaded, and therefore, in order to sustain a judgment by default, plaintiff’s declaration, complaint, petition or statement of claim, must allege with clearness and certainty sufficient facts to constitute a good cause of action or show a right to recover.” 34 C. J. 153; U. S. v. Bell (C. C. A. 3d) 135 F. 336, 68 C. C. A. 144. The Code of West Virginia provides: “No suits shall be brought against a county court for any demand for a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and been disallowed by them in whole or in part. But if the court neglect or refuse to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk pursuant to the preceding section, for presentation, it shall be deemed to have been duly presented and disallowed.” Code of W. Va. Ch. 39, § 41. As said by the Supreme Court of West Virginia, in State v. Smith, 92 W. Va. 12, 16, 114 S. E. 375, 376, “the procedure required by the statute is a condition precedent to the claimant’s right to sue the county court for money founded on a contract, except an order for payment out of the county treasury, and must be followed or his suit will abate. The reason for such procedure is plainly apparent. It was designed to protect the comity court against useless costs and litigation. The fiscal affairs of the county coming-under the jurisdiction of the county court are numerous, and its obligations in the conduct of the public business are necessarily complex and varied, and to permit the owners of claims founded on contract to sue as and when their whims or spite might dictate before presentation for audit and payment in an orderly way, would subject the court to vexatious suits and unnecessary costs.” It is expressly held that no suit may be instituted or maintained against a county court for a specified sum of money founded, on contract, without compliance with this statute, and that a declaration in such suit is insufficient, unless it contains an averment to the effect that tlje provisions of the statute have been complied with. Barbor v. County Court, 85 W. Va. 359, 101 S. E. 721; Yates v. County Court, 47 W. Va. 376, 35 S. E. 24. And it is settled that limitations on suits against'counties of the character of that imposed by this statute will be enforced by the federal courts, and that a pleading which fails to aver compliance with the statute will be held insufficient. May v. Buchanan County (opinion by Judge Shiras) (C. C.) 29 F. 469; Covington County v. Stevens (C. C. A. 5th) 256 F. 328, 167 C. C. A. 498; Holmes County v. Burton Const. Co. (C. C. A. 5th) 267 F. 769. For the reasons stated, we think that the learned district judge erred in refusing to set aside the default judgment. The order denying the motion is accordingly reversed, and the cause is remanded, with directions that the verdict and judgment be set aside, and that other proceedings be had not inconsistent with this opinion. Reversed.

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

McLEOD et al. v. UNITED STATES. No. 896. Circuit Court of Appeals, Tenth Circuit. Nov. 27, 1933. S. R. Owens, of Denver, Colo., for appellant. Thomas J. Morrissey, U. S. Atty., John G. Reid, Asst. U. S. Atty., and Richard A. Toomey, Atty., Dept, of Justice, all of Denver, Colo., and T. R. Callahan, Atty., Dept, of Justice, of Washington, D. C., for the United States. Before PHILLIPS, MeDERMOTT, and BRATTON, Circuit Judges. PHILLIPS, Circuit Judge. Appellants brought this action against the United States to recover upon a policy of war risk insurance issued to Charles Sumner McLeod. Trial by jury was duly waived and the ease tried to the court. Judgment was for the United States. The court made the following finding of fact, “That said Charles Sumner McLeod, insured herein, was not totally and permanently disabled within the terms of his contract of War Risk Term Insurance involved in this action during the time that said contract of insurance was in force”; and the following conclusion of law: “That inasmuch as the proof fails to show that the contract of War Risk Term Insurance sued upon matured under its total and permanent disability clause while it was in force, and inasmuch as said contract of War Risk Term Insurance was not in force at the date of death of the insured, that the plaintiffs herein are not entitled to recover in this action and the clerk is directed to enter judgment in favor of the defendant dismissing plaintiff’s Amended Complaint at the cost of plaintiffs.” In the record proper there appears a purported request by appellants for special findings of fact and conclusions of law. These, however, not being incorporated in the bill of exceptions are not properly a part of the record, and may not be considered here. McPherson v. Cement Gun Co. (C. C. A. 10) 59 F.(2d) 889; White v. United States (C. C. A. 10) 48 F.(2d) 178, 181; Davis v. United States (C. C. A. 10) 67 F.(2d) 737, decided November 27, 1933. The bill of exceptions contains no challenge by the appellants to the sufficiency of the evidence to support the special findings made by the trial court, no request for a declaration of law that they are entitled to judgment, and no motion for a judgment in their favor. By their assignments of error appellants charge that the court erred in making its special findings of fact and conclusions of law and in entering judgment thereon, because they are contrary to the evidence; and that it erred in refusing to make the findings of fact and conclusions of law requested by appellants. The errors assigned are not reviewable on this record. White v. United States, supra; Davis v. United States, supra; Henry H. Cross Co. v. Texhoma O. & R. Co. (C. C. A. 8) 32 F. (2d) 442, 445. The judgment is therefore affirmed.

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

Jose Antonio BENITEZ-MANRIQUE, Petitioner, Appellee, v. Col. Harry P. MICHELI, Commandant, Induction Station, Col. Bert Perrin, Commandant, U. S. Army, Southern Command, Puerto Rico, Col. John P. Moyar, Commandant, Rodriguez Army Hospital, Fort Brooke, Respondents, Appellants. No. 7536. United States Court of Appeals, First Circuit. March 22, 1971. Ezra H. Friedman, Atty., Dept. of Justice, with whom Will Wilson, Asst. Atty. Gen., and Blas C. Herrero, Jr., U. S. Atty., were on brief, for appellants. Olaguibeet A. Lopez Pacheco, Rio Piedras, P. R., with whom Juanita Trevino Monserrate was on brief, for appel-lee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is a petition for habeas corpus. Petitioner is a Selective Service inductee who complains because of a failure to receive a medical examination by the Board. The District Court for the District of Puerto Rico granted the writ, 305 F.Supp. 334, and respondents appeal. The facts are extensive. Petitioner, a resident of Puerto Rico, executed his original questionnaire on November 7, 1967, noting that he had been “operated in the heart — Will bring medical certificate.” Not having done so, on December 14 he was requested to comply as soon as possible. On December 20, no response having been made, the Board notified him that he was classified I-A. Petitioner’s complaint that this action was hasty is ill-founded. He overlooks the fact that he had promised six weeks before to supply the certificate. The Board is entitled to progress. If, for some reason, further delay was unavoidable, it behooved petitioner to report this fact. A heart operation, not otherwise defined, is not necessarily disabling. Having received no further description, there was no error in the Board’s classifying petitioner I-A on December 20. Moreover, even had there been error, petitioner lost his rights by failure to appeal. On January 29, 1968 petitioner submitted a certificate of a Dr. Romero to the effect that in 1962 he had been operated upon for an interauricular septal defect. “Recovery was uneventful.” There was no suggestion that petitioner was in any way disabled, or, as we will come to later, that this disorder came within the government’s disabling classifications. The Board did nothing as a result of this submission, and in April 1969 petitioner was given his pre-induction physical. In May he received notice from the Board that he had passed, together with a further questionnaire. Petitioner completed the questionnaire, claiming he was medically disabled, and submitting another copy of Dr. Romero’s certificate, together with an “Annual routine [X-ray] examination” of July 23, 1968. This latter showed, “The heart is normal in size with prominent pulmonary veins and dilated main pulmonary arteries. No other abnormality is seen.” On or about June 22 the Board notified petitioner that he might submit more medical certificates, giving him until August 13. Petitioner then submitted a full copy of the 1962 hospital records, which, besides describing the operation, his discharge in good condition, and the absence of any heart murmur, indicated good health and “excellent physical activity.” Accompanying this was a current letter of the operating surgeon, which made no mention of any residual effects. In addition petitioner filed a July 1969 electrocardiogram and fluoroscope report and a mother’s non-medical letter. The Board reviewed this file and stated, by letter of August 13, that it had concluded that the Armed Forces should determine petitioner’s fitness to serve, and that the new documents would be forwarded and considered at the time set for induction. Petitioner was inducted on August 27, 1969, the Army apparently not finding these matters persuasive. He was ordered to report to Fort Jackson, South Carolina, on September 1st. For reasons not elucidated in the record he, instead, submitted himself for a medical examination at the San Juan Army Hospital on September 2d. Copies of the documents he had filed with the Board were there inspected. Petitioner was found fit for duty. On the same day, he filed the present petition. His sole complaint is that he should have received an examination by a doctor appointed by the Board. We must first consider jurisdiction. The respondent Micheli is the commandant of petitioner’s Induction Station; the respondent Perrin is commandant of the Puerto Rico Army Command; the respondent Moyar is commandant of the Army Hospital. All deny custody of the petitioner. Col. Moyar is clearly correct. Petitioner did not go to the hospital by order of the Army. He was no more in custody there than he would have been in custody of the civil police had he gone to the station to ask a question. Col. Micheli asserts he lost custody when petitioner was inducted. Col. Perrin asserts that he lost custody, either because petitioner was, by order, required to be at Fort Jackson prior to the date of the filing of the petition, or because of the fact that, on that da'te, he was A.W.O.L. Custody, of course, for the purpose of habeas corpus relief is something less than total physical restraint. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. Against the logic of respondents’ contentions, it may be argued that if the order of induction was invalid, Micheli’s custody never ceased. No court that we are aware of, however, has so held. If Perrin did obtain custody, it may be suggested that the transfer to the commandant of Fort Jackson required some physical act beyond the execution of a piece of paper. The cases which have recognized the continuing custody of the initial command, however, involve petitions filed prior to the date that the transferee was due at his new post, and are accordingly not too helpful. See, e. g., Feliciano v. Laird, 2 Cir., 1970, 426 F.2d 424, 427 n. 4. By not filing the petition until he was A.W.O.L., petitioner faced a further strain upon any concept of custody by a command from which he was officially detached. Since, for reasons that we will come to, we find no substantive merit in the petition, we will make no final decision with respect to petitioner’s meeting the jurisdictional requirement of Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, viz., custody in the district where the petition is filed. We proceed to the merits. As we have said, petitioner had already been classified I-A. Although he bases his case on 32 C.F.R. Part 1628, “Physical Examination,” the various papers he submitted to his local board in the spring and summer of 1969 must be considered as well in the light of 32 C.F.R. Part 1625, “Reopening and Considering Anew Registrant’s Classification.” Section 1625.2 calls for reopening upon the presentation of “facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification.” Put another way, if the registrant makes a prima facie showing within those terms, the Board must reopen. Mulloy v. United States, 1970, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362. Similarly, under the provisions of Part 1628 in effect in 1969 the Board was required to order a medical interview if the registrant indicated the existence of a disqualifying medical condition or defect. No case or regulation, and no principle of fairness requires action by the Board if he does less. This is the present petitioner’s difficulty. Section 1628.1 provides that the Surgeon General shall prepare a list of “medical conditions or physical defects that disqualify registrants for service in the Armed Forces.” The list in effect in 1969 is contained in A.R. 40-501, June 19, 1968. Petitioner points to two subsections. Subsection 2-20b covers petitioner’s particular heart operation, but only where there are “residual abnormalities or complications.” Petitioner was obviously neither indigent nor otherwise impeded from fully presenting his claim. Over a period of 18 months he furnished reports from four doctors and technicians; yet none went to the point of asserting such a residue. The other subsection, 2-19a, refers to “pronounced dilation of the main pulmonary artery.” Petitioner did file an X-ray report indicating the existence of pulmonary arterial dilation, but it failed to describe it as pronounced. Insofar as the district court found that petitioner’s submissions came within the Surgeon General’s list, the finding is unsupported. Petitioner did not state a claim sufficient to require the Board either to reopen his classification or to order a medical interview. He therefore cannot complain of the Board’s failure to accede. Quite apart from the fact that petitioner has passed three physical examinations, and shown no reason why he should not pass another, we have rarely seen so much ado about so little. By its letter of August 13 denying relief, but referring petitioner to the armed forces for examination, rather than depriving him of due process the Board gave him all to which he was entitled. Petitioner was properly classified; he was properly refused reopening; he was properly inducted. The order granting the writ is vacated, and the case is remanded to the district court with instructions to dismiss the complaint. Because the court’s order had the effect of suspending petitioner’s service, the Army may adopt any appropriate procedure that will exclude from his term of duty the period between the order and the dismissal of the complaint. . Part of the reason for this delay was that petitioner was seeking a student deferment. No basis for such was established. . The provisions for registrant-initiated medical interviews were contained in subsection 1628.2(b). The subsection was revoked in August of 1970 by Executive Order 1155, 35 Fed.Reg. 13719 (1970). . A third subsection, 2-18c(2), was erroneously held by the district court to have been met. Petitioner is correct in not pressing this matter. . Had a prima facie case been made out, petitioner would, of course, have been prejudiced by the Board’s failure, through inaction, to reopen. United States v. Ford, 1 Cir., 1970, 431 F.2d 1310. We note that even if the Board had reopened, the district court’s discussion of the desirability of a local board examination rather than one by the armed forces overlooked section 1628.4(e) and, possibly, section 1628.3. We cannot think that the regulations suggest that the armed forces examination is a prejudiced one.

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?

Harvey M. SANDERS, Petitioner, Appellant, v. Michael FAIR, et al., Respondents, Appellees. No. 83-1611. United States Court of Appeals, First Circuit. Argued Dec. 9, 1983. Decided Feb. 29, 1984. Certiorari Denied June 18, 1984. See 104 S.Ct. 3541. Brownlow M. Speer, Boston, Mass., for petitioner, appellant. Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees. Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges. BREYER, Circuit Judge. This appeal from a federal district court decision denying appellant Sanders’ petition for a writ of habeas corpus arises out of his state court trial for rape. At the trial Sanders’ counsel, noting that his client was black and the victim was white, asked permission to question prospective jurors individually about possible racial prejudice. The trial judge felt that, under the circumstances, individual questioning was not required, though he himself raised the issue of racial prejudice generally with the panel of prospective jurors. The jury convicted Sanders and he appealed, claiming that the refusal to allow individual questioning violated Mass.Gen.Laws ch. 234, § 28, which requires individual examination of a juror for bias in any case where it appears that, as a result of ... community attitudes, ... or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent. On appeal, the Supreme Judicial Court (Commonwealth v. Sanders, 383 Mass. 637, 421 N.E.2d 436 (1981)) held that the trial judge had not violated existing state law, which it had previously interpreted to require special questioning only where the judge found “reason to suspect” or “substantial risk” that the jurors might be affected by prejudice, see, e.g., Commonwealth v. Horton, 376 Mass. 380, 395, 380 N.E.2d 687, 697 (1978) (quoting Common wealth v. Dickerson, 372 Mass. 783, 793, 364 N.E.2d 1052, 1059 (1977)), cert. denied sub nom. Wideman v. Massachusetts, 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979); Commonwealth v. Campbell, 378 Mass. 680, 696, 393 N.E.2d 820, 830 (1979). No such “risk” or “reason” existed here. The court, however, pointed out that in the past it had characterized the allowance of individual juror questioning in interracial rape cases as the better practice. Commonwealth v. Sanders, 383 Mass, at —, 421 N.E.2d at 437 (citing Commonwealth v. Lumley, 367 Mass. 213, 216, 327 N.E.2d 683, 686 (1975)). And it concluded that in future interracial rape cases section 28 should be interpreted to require such questioning at defendants’ request. 383 Mass, at —, 421 N.E.2d at 438. Such a requirement would assure “caution and certainty in the application of § 28,” Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633, 641 (1982), and would also serve to “avoid needless appeals,” Commonwealth v. Lumley, 367 Mass, at 217, 327 N.E.2d at 686. The Supreme Judicial Court, however, did not apply its new rule to Sanders’ case. And Sanders filed a habeas petition in federal court claiming that the state court’s failure to do so violated the federal Constitution. The district court did not agree with his arguments; nor do we. Sanders does not claim that the federal Constitution compels individual juror questioning in his case. He cannot do so, for the Supreme Court has held that the Constitution requires such an inquiry only where explicit racial issues are “inextricably bound up with the conduct of the trial.” Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976); see Dukes v. Waitkevitch, 536 F.2d 469 (1st Cir.) (per curiam), cert. denied, 429 U.S. 932, 97 S.Ct. 340, 50 L.Ed.2d 302 (1976); Commonwealth v. Lumley, supra. Cf. Rosales-Lopez v. United States, 451 U.S. 182, 192, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22 (1981) (plurality opinion) (requiring specific inquiry into juror bias, in exercise of Court’s supervisory power). The unchallenged state court finding that the trial court satisfied stronger state law requirements removes this federal issue from the case. And the absence of a federal basis for appellant’s underlying claim makes inapplicable in turn those federal cases discussing the federal question of when courts should apply federal rules of law retroactively. See, e.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Jackson v. Justices of the Superior Court, 549 F.2d 215 (1st Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977). But cf. United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (abandoning reliance on Stovall factors, although only in fourth amendment cases on direct review). Here, we face only the question of whether, or when, the federal Constitution requires a state court to apply a new rule of state law retroactively. This question was answered by Justice Cardozo, speaking for the Supreme Court, in 1932. He said that the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.... The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53 S.Ct. 145, 148-49, 77 L.Ed. 360 (1932). See also Prater v. Maggio, 686 F.2d 346 (5th Cir.1982) (relying on Sunburst to dismiss habeas petition challenging purely prospective reinterpretation of state law); Lewin-ski v. Ristaino, 448 F.Supp. 690, 696 (D.Mass.1978) (same). Appellant seeks to overcome the force of this language with two arguments. First, he claims that Sunburst applies only where a court makes “new” law, say, by overruling a prior decision. He argues that Sunburst does not apply where a court, as here, considers a question of statutory interpretation for the first time. Such an “initial” interpretation, in his view, is “a declaration of what the law has meant from the date of its effectiveness onward.” Strauss v. United States, 516 F.2d 980, 983 (7th Cir.1975) (quoting Gates v. United States, 515 F.2d 73, 78 (7th Cir.1975)). In our view, however, appellant cannot meaningfully distinguish between precedents that break radically with the past and those that do not. For one thing, as a practical matter the distinction is difficult to draw. One’s view about the extent to which any decision “breaks” with the past likely depends upon how broadly or narrowly one reads the new decision, how broadly or narrowly one reads the precedents, and the context in which one places them. It seems unlikely that the Sunburst Court would have turned its decision on so subjective a matter. Indeed, as we read the Massachusetts precedents prior to Sanders’ case, we would consider its new rule a considerable departure from the Supreme Judicial Court’s prevailing approach to section 28, and thus likely to fit within Sunburst even on appellant’s reading. See, e.g., Commonwealth v. Shelley, 381 Mass. 340, 352, 409 N.E.2d 732, 740 (1980); Commonwealth v. Campbell, supra; Commonwealth v. Horton, supra. See also Commonwealth v. Sanders, 383 Mass, at —, 421 N.E.2d at 438 (characterizing prior decisions as having “given insufficient force to § 28”). For another' thing, whether a state court decides to make retroactive or prospective its resolution of a previously undecided question of statutory interpretation would seem to involve those very considerations of “juristic philosophy” and “conceptions of law” that Justice Cardozo wrote are up to the state’s judges. The Massachusetts Supreme Judicial Court in recent years has frequently introduced new rules, particularly rules involving nonconstitutional matters of criminal procedure, with purely prospective effect as here. See, e.g., Commonwealth v. Day, 387 Mass. 915, 921 & n. 10, 444 N.E.2d 384, 387 (1983) (concerning burden of proof of waiver of Miranda rights); Commonwealth v. Lewinski, 367 Mass. 889, 901-03, 329 N.E.2d 738, 746-47 (1975) (concerning disclosure of prior statements by government witnesses); Commonwealth v. Stewart, 365 Mass. 99, 104-08, 309 N.E.2d 470, 474-75 (1974) (concerning disclosure of grand jury testimony of government witnesses); see also Schrottman v. Barnicle, 386 Mass. 627, 437 N.E.2d 205 (1982) (general discussion of Massachusetts’ approach to retrospectivity, especially in civil contexts); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771 (1980) (prospective elimination of “year-and-a-day” rule for homicides), cert, denied sub nom. Phillips v. Massachusetts, 450 U.S. 929, 101 S.Ct. 1386, 67 L.Ed.2d 360 (1981). It has explained that total retroactivity of a rule like the one announced in Sanders could “have a calamitous impact on the criminal justice system[]” — an adverse impact that is unnecessary where the pre-existing practice had not “materially tainted the outcome of the trial.” Commonwealth v. Lumley, 367 Mass, at 219 & n. 5, 327 N.E.2d at 687. And, when it makes a rule purely prospective, it does so in part because it believes that to apply the prospective rule to the case before it would produce “disparate treatment of similarly situated parties.” Schrottman v. Barnicle, 386 Mass, at 637 n. 6, 437 N.E.2d at 212. Any disagreement with this approach strikes us as conceptual and philosophical, not legal. This is not a case in which a state court has acted gratuitously or without reason. It is not a case where a state court seeks to disturb preexisting reliance, cf. Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S.Ct. 1731, 1741-43, 14 L.Ed.2d 601 (1965) (emphasizing importance of protecting justified reliance on prior rule); Schrottman v. Barnicle, 386 Mass, at 635-36, 437 N.E.2d at 211 (same), nor a case in which it imposes a harsh new rule retroactively, cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (discussing fundamental unfairness of retroactive enlargement of scope of criminal statute), nor a case that, as far as we can see, involves any other sort of fundamental unfairness, cf. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (retro-activity necessary where former practice raises serious questions about accuracy of prior guilty verdicts). In our view Sunburst applies and controls. Second, Sanders argues that the state court’s decision not to apply its new rule to his case deprives him of “equal protection of the laws,” that it unconstitutionally discriminates between him and others. We are not completely certain which “others” Sanders has in mind. Certainly the Supreme Judicial Court has announced purely prospective rules in other cases. And it has adhered to the purely prospective characterization of the Sanders rule in subsequent cases involving jury questioning in interracial sexual assault cases tried prior to the new rule’s announcement. See, e.g., Commonwealth v. Sowers, 388 Mass. 207, 214, 446 N.E.2d 51, 55 (1983); Commonwealth v. Hobbs, 385 Mass, at 873, 434 N.E.2d at 641. [L2] Nor can Sanders complain of the distinction drawn between those tried before and those tried after the Supreme Judicial Court issued its opinion in his case. Since the “jury questioning” issue is one of state procedural law, and does not involve protections required by the federal Constitution, no “fundamental right” is at issue. See Ristaino v. Ross, supra; cf. Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). Thus, the “equal protection” question is solely whether the state’s distinction between litigants such as Sanders and those who will enjoy the benefit of the new rule in the future is rational. See, e.g., id., 404 U.S. at 365, 92 S.Ct. at 484; Rinaldi v. Yeager, 384 U.S. 305, 308-09, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966). We have already discussed the Supreme Judicial Court’s reasons. We see nothing irrational about them. Retroactive application would surely have been far more burdensome for the Commonwealth than the prospective approach. And, to the extent that the court’s purpose was to remove one frequently recurring ground for appeals in interracial rape cases, see Commonwealth v. Lumley, 367 Mass, at 217, 327 N.E.2d at 686, retrospective application would have been counterproductive. The decision of the district court dismissing the petition for habeas corpus 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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.

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

Iris C. TILLERY, Plaintiff-Appellee, v. Charles PARKS, District Director of Internal Revenue Service, and The United States of America, by and through John E. Green, Defendants-Appellants. No. 78-1915. United States Court of Appeals, Tenth Circuit. Argued July 11, 1980. Decided Sept. 9, 1980. Rehearing Denied Oct. 28, 1980. Joan I. Oppenheimer, Atty., Tax Division, Dept, of Justice, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Crombie J. D. Garrett, Attys., Tax Division, Dept, of Justice, Washington, D. C., with her on brief; Larry D. Patton, U. S. Atty., Oklahoma City, Okl., of counsel), for defendants-appellants. Riley Brock, Oklahoma City, Okl., for plaintiff-appellee. Before McWILLIAMS, McKAY and SEYMOUR, Circuit Judges. SEYMOUR, Circuit Judge. Plaintiff and her husband own their Oklahoma homestead as joint tenants. The husband defaulted in his obligation to pay $29,759.45 in withholding taxes as the responsible officer of two corporations. The Internal Revenue Service filed federal tax liens for the unpaid taxes against all of the husband’s property, including his interest in the homestead. Plaintiff brought this action to quiet title to the homestead. The district court granted relief on the authority of our decision in United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and ordered the tax liens discharged as against the homestead property. The narrow issue raised by the Government’s appeal is whether federal tax liens arising solely through the tax liability of one spouse may attach to his interest in the homestead of both spouses in Oklahoma. We hold they may. The Internal Revenue Code of 1954, as amended, provides that the amount of a delinquent taxpayer’s liability “shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U.S.C. § 6321. State law determines whether the taxpayer has “property” or “rights to property” to which the tax lien may attach. Aquilino v. United States, 363 U.S. 509, 513, 80 S.Ct. 1277, 1280, 4 L.Ed.2d 1365 (1960). See In re Carlson, 580 F.2d 1365, 1368-69 (10th Cir. 1978). The taxpayer here, plaintiff’s husband, owns an undivided half interest in the property. See Clovis v. Clovis, 460 P.2d 878, 881-82 (Okl.1969); Reynolds, Co-ownership of Property in Oklahoma, 27 Okla.L.Rev. 585 (1974). Due to the homestead nature of this property, Oklahoma law places certain restrictions upon the joint owners and their creditors for the protection of the family. Nevertheless, these constitutional and statutory restrictions do not negate the proprietary interest of the taxpayer. As the Ninth Circuit has recognized, “all that section 6321 requires is that the interest be ‘property’ or ‘rights to property.’ It is of no statutory moment how extensive may be those rights under state law, or what restrictions exist on the enjoyment of those rights.” United States v. Overman, 424 F.2d 1142, 1145 (9th Cir. 1970). Plaintiff contends, however, that our decisions in United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and Jones v. Kemp, 144 F.2d 478 (10th Cir. 1944), govern the instant case and preclude the attachment of a federal tax lien on homestead property. Hershberger was an action brought by the United States to foreclose on the Kansas homestead of a husband and wife to satisfy the unpaid tax liability of the husband. We refused to order sale of the property, holding that “[wjhile [the wife] is living on the property, the government may not enforce its tax lien against the homestead.” 475 F.2d at 682. Previously in Jones we said that “a wife is granted an indivisible and vested interest in homestead property, and one which cannot be subjected to levy and sale for the satisfaction of the Federal tax liability of her husband.” 144 F.2d at 480. We went on to hold, however, that the husband’s property was not exempt from sale because the common-law marriage purporting to create the homestead right failed to ripen into a legal marriage under Oklahoma law. In neither Hershberger nor Jones was the propriety of attaching a lien to the husband’s interest in homestead property at issue. Those cases dealt solely with foreclosure. In holding for plaintiffs here, the district court erred by not drawing a distinction between the attachment of a federal tax lien pursuant to section 6321 and its enforcement in a foreclosure action pursuant to 26 U.S.C. § 7403. Congress has provided that in a foreclosure action brought under section 7403, a court may decree a sale of any property subject to a tax lien. Consequently, we held in Hershberger that a court has equitable discretion to decide whether to order foreclosure. But no such discretion lies under section 6321. It provides that a lien shall attach to all the property of a delinquent taxpayer. Thus, the inquiry ends once it is determined that the husband has a property interest, of whatever extent, in the homestead. Indeed, Hershberger itself recognized the validity of the lien as against the husband’s interest in his Kansas homestead property. There, we said “§ 6321 imposes a lien upon delinquent taxpayer’s real and personal property,” before we added “it does not necessarily follow that § 7403 requires the courts to satisfy this lien via a tax foreclosure sale.” 475 F.2d at 679. And in United States v. Eaves, 499 F.2d 869, 871 (10th Cir. 1974), we cited Hershberger for the proposition that “once the validity of the lien has been established,” the court has discretion under section 7403 whether to order foreclosure. We hold that the lien in this case properly attached to the husband’s undivided one-half interest in his Oklahoma homestead. Accordingly, we reverse the judgment of the district court. . See, in pertinent part: Okl.Const. art. 12: “§ 1. Extent and value of homestead . . . “The homestead within any city, town, or village, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner: Provided, That the same shall not exceed in value the sum of five thousand dollars, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value . . . “§ 2. Exemption from forced sale — Consent of spouse to sale — Mortgages “The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon; nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law; Provided, Nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage.” 31 Okl.Stat.Ann. (Supp.1979-1980): “§ 1. Property reserved to heads of families — Exemption from attachment, execution or other forced sale “The following property shall be reserved to every person owning a home and residing therein or to the head of every family residing in the state, exempt from attachment or execution and every other species of forced sale for the payment of debts except as herein provided. “1. The home of such person or head of family. The homestead of the family shall consist of the home of the family whether the title to the same be lodged in or owned by the husband or wife.” . Section 7403 gives the Government authority to bring an action in district court to enforce a tax lien of the United States against the property of the delinquent taxpayer. In pertinent part, subsection (c) states: “The court . may decree a sale of such property, by the proper officer of the court, and a distribution of the proceeds of such sale according to the findings of the court in respect to the interests of the parties and of the United States.” 26 U.S.C. § 7403(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?

NEWFIELD v. RYAN et al. (two cases). BALLENTINE v. FLORIDA TEX OIL CO. et al. Nos. 8458-8460. Circuit Court of Appeals, Fifth Circuit. July 22, 1937. Allen E. Throop, Gen. Counsel, Securities and Exchange Commission, Robert E. Kline, Jr., and William A. McClain, Assts. to Gen. Counsel, Securities and Exchange Commission, all of Washington, D. C., for appellants Newfield and Ballentine. Wm. C. Pierce and W. K. Zewadski, both of Tampa, Fla., for appellees. Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges. Writ of certiorari denied 58 S.Ct. 54, 82 L.Ed. —-. HUTCHESON, Circuit Judge. These three appeals, while brought up in separate records, present the same question and may be disposed of in one opinion. They are from interlocutory orders restraining appellants, agents of the Securities and Exchange Commission, from enforcing subpoenas duces tecum issued to the Postal and Western Union Telegraph Companies, under authority of the Securities Act of 1933, as amended, IS U.S.C.A. § 77a et seq. In the Ballentine case the subpoena required the bringing and production of “Any and all telegrams or copies thereof in your custody or control, sent or received between the dates of January 1, 1937, and March 12, 1937, by Florida Tex Oil Co. Lewis Sacker, Edmund A. Aldridge and Income Royalties, Inc. which mention or refer or relate to the Class A common stock of Florida Tex Oil Company or to interests in oil royalties, or oil leases in the Walker farm or tract of the Crescent pool, Oklahoma, the Fitts pool, Oklahoma, or the Jacob pool, Texas, or to any transactions or proposed transactions in any such securities, and particularly any and all telegrams or copies thereof, sent to or received from George C. Creager, Oklahoma City, or M. A. Childers, San Antonio, Texas.” In the Newfield cases the subpoenas required the bringing and production of “Any and all telegrams or copies thereof in your custody or control, sent or received between the dates of May 1, 1936, and March 30, 1937, by Ryan-Florida Corporation, Frank J. Ryan, Thomas J. McReynolds, Jr. and J. E. Stillman, which mention or refer to or relate to investment contracts or certificates of participation in profit sharing agreements, pertaining to oil royalties or interests in oil rights or leases, or to any transaction or proposed transaction in any of said securities, and pertaining particularly to oil royalties or interests in oil rights or leases in the Wilmauna Section of Hillsborough County, Florida.” Each of the bills claimed that the act itself under which the subpoenas were issued was violative of the Fourth and Fifth Amendments in that (a) it purported to compel persons- to be witnesses against themselves; (b) it purported to authorize general, and therefore unreasonable searches and seizures. Each of the bills attacked the subpoenas themselves, urging that if the act was valid the subpoenas in question were not supported by its authority, in that (a) they command the production of telegrams without distinction between interstate and intrastate messages; (b) they are not sufficiently specific to confine their demands within the scope of the act; (c) they compel the production of plaintiffs’ messages by their agents, the telegraph companies, without affording plaintiffs an opportunity to contest the demand; (d) the subpoenas are too general, too wanting in specification, and constitute but exploratory fishing expeditions; (e) no hearing to which the documents are relevant is being held by the commission, and no proper investigation is going forward which would authorize the issuance of the subpoenas; (f)they violate amended rule IV — 6, of the rules and practicés of the commission, “Subpoenas for the production of documentary evidence will issue upon application in writing, which must specify as nearly as may be, the documents desired and the facts to be proven by them.” All the bills aver that plaintiffs have no adequate remedy at law, for that unless restrained by the court the defendants telegraph companies will obey the subpoenas, and furnish the information desired. The commission defendants, Newfield and Ballentine, answered the bills, insisting that the Securities Act was valid, and that the subpoenas were issued in accordance with its provisions and by authority of the commission in a matter pending before it for investigation. They answered that the practice rule referred to in plaintiffs’ bills applies not to investigations of the kind here being conducted, but only to hearings had before the commission. They also pleaded fully; that activities of defendants in connection with the interstate offering of securities, investments, contracts, and interests in oil rights are under survey and investigation by the commission; and that the commission has reason to believe that the provisions of section 5 (a) and section 17 (a) of the Securities Act (as amended, 15 U.S.C.A. §§ 77e (a), 77q (a) have been, are being, and are about to be violated by the defendants, who are in the course of obtaining money and prop'erty by means of false and fraudulent representations in connection with the issuance, offer, and sale in interstate commerce of fraudulent securities. The District Judge thought it unnecessary to rule upon the constitutionality of the Securities Act of 1933 (as amended, 15 U.S.C.A. § 77a et seq.) or the Securities Exchange Act of 1934 (as amended, 15 U.S.C.A. § 78a et seq.). Of the opinion that plaintiffs had a property right in the privacy of their telegrams, though in the possession of the companies, and a standing to attack the form and content of the subpoenas; that the subpoenas described the documents in such indefinite terms as to constitute an unreasonable search and seizure under the Fourth Amendment; and that they sought to deprive plaintiffs of their property without due process, he granted the interlocutory injunctions prayed. Appellants, denying that the subpoenas are in any respect exceptionable, are here insisting that they constitute a “demand of other lawful authority” which, under the Federal Communications Act of 1934, § 605, 47 U.S.C.A. § 605, at once requires and justifies disclosure of telegraph messages; that therefore no right of privacy, if plaintiffs had any, in the telegrams was violated; and that the subpoenas, being directed not to plaintiffs but to the companies, plaintiffs had no standing to invoke either the Fourth or the Fifth Amendments, particularly no standing to complain of the form and content of the subpoenas. We agree with appellants that the subpoenas in themselves are unexceptionable; that they are not unduly indefinite; and that they do not constitute unreasonable searches and seizures. The subpoena in the Ballentine case was definitely limited to a period of less than three months; those in the Newfield cases to a period of less than one year. The subpoenas in all the cases were limited to the persons and corporations under investigation and to the schemes being investigated. In each of the subpoenas attention was called to the subjects under particular investigation. None of the subpoenas could in any sense be regarded as dragnets for fishing expeditions. All of them are well within the specific limits approved in the cases. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327, 12 Ann. Cas. 658; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558; Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309; Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; McMann v. Securities and Exchange Comm. (C.C.A.) 87 F.(2d) 377, 379. ^ But we think it plain, that in enacting the securities legislation in question, Congress was well within its constitutional powers, and that the investigations and subpoenas under attack are fully supported by that legislation. We agree, therefore, with appellants in the broader view they take of this case, that the assailed subpoenas constitute a “demand of other lawful authority,” justifying and requiring the telegraph companies to furnish and disclose the messages called for. We agree with them, therefore, that the subpoenas do not take plaintiffs’ property, nor invade their right of privacy in the messages, inspection of which is demanded. We agree, too, that, directed not to them, but to the companies, plaintiffs have no standing to invoke the Fourth or the Fifth Amendments against, and particularly none to complain of, the form and content of the subpoenas. This is not to say, as appellants argue, that plaintiffs, as senders of telegraphic messages, have no standing in equity to prevent an unauthorized publishing and disclosure of their contents, that is, disclosures made by the companies, except upon the demand of lawful authority. Upon the plainest principles we think they do. Statutes, both state, section 7984, Compiled Laws of Florida 1927, and the Federal Communications Act, supra, forbid such disclosures, and equity is always competent to preserve rights conferred to prevent the breach of duties affixed, by statutes. Texas & N. O. R. Co. v. Brotherhood of Ry. and Steamship Clerks (C.C.A.) 33 F.(2d) 13, 16; De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041. If, therefore, defendants were private persons, mere interlopers, seeking information for their own ends, and not persons having authority, plaintiffs should have their writs. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877; Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 25 S.Ct. 637, 49 L.Ed. 1031; Cocke v. Western Union Tel. Co., 84 Miss. 380, 36 So. 392; Jones on Telegraph and Telephone Companies, § 311, 62 C.J. 169; High on Injunctions, Vol. 1, § 19; Baker v. Libbie, 210 Mass. 599, 97 N.E. 109, 37 L.R.A.(N.S.) 944, Ann.Cas.1912D, 551; Hearst v. Black, 66 App.D.C. 313, 87 F.(2d) 68. The cases appellants cite against plaintiffs standing to be heard are' not at all in point. Here is no case of eavesdropping by wire tapping, as Olmstead’s Case was; neither is this a case as Isbrandtsen’s (Isbrandtsen-Moller Co. v. U. S.) and McMann’s (McMann v. Securities and Exchange Comm.) were, of orders for books and papers belonging to others than plaintiffs. This is a case of messages, the privacy of which and the freedom from disclosure as to which, are secured to plaintiffs under federal statutes which condition their receiving and sending. Neither is it to say that officials and bodies authorized by state or federal law, to make investigations and inquiries, or otherwise exert public authority, may under official pretext but in fact officiously, extend their powers beyond those provided by the law, or that color of, may serve as, authority. The contrary is firmly established as the principle of democracy in America, the spirit of its laws. Jones v. Securities & Exchange Commission, 298 U. S. 1, 56 S.Ct. 654, 80 L.Ed. 1015; Ellis v. Interstate Commerce Commission, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036; Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265; Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375. It is to say though, that those who formed and those who have maintained our institutions did not form the federal government, they have riot maintained it, to be impotent. They formed, they have maintained it, upon the principle that law is liberator, that, “However it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom.” They formed and they have maintained it upon the principle, that liberty is not a mere abstraction, but a vital force, in active partnership with law, and that.it is therefore the function of law to actively and consciously advance the liberty of all of- us by imposing just and due restraints upon the license of some of us. It is particularly to say that the regulation of interstate commerce, the prevention of fraud in its conduct, and generally its protection, fostering, and control, are, under our form of government, federal activities; c/f National Labor Relations Board v. Jones & Laughlin Steel Co., 57 S.Ct. 615, 81 L.Ed. -; that the acts of officials to prevent wrongs in or injuries to that commerce, if taken in accordance with federal law, may not be enjoined or restrained; and that whoever invokes the aid of equity to restrain the actions of duly constituted officials is under a heavy burden to show that the laws they act under are unconstitutional, or that they are acting beyond or contrary to the powers conferred upon them by those laws.- It is to say that under federal law and statutes, telegraph companies engaged in sending messages interstate have been brought completely under federal control, and messages are sent with the consequences and subject to the conditions, and those alone, affixed by federal law to their sending. One of those conditions is that telegraph companies are common carriers, subject to federal regulation and control, and that messages filed with them while protected from the prying o"f the merely curious, and from other unauthorized disclosures, are not protected from “the demand of other lawful authority.” It is to say that against such a demand the sender of messages has no rights, either of substance or of procedure, for such a demand invades no privacy of his, takes none of his rights away. It is to say that against such a demand, made not upon plaintiffs, but upon the telegraph companies, plaintiffs have no standing whatever to invoke the Fourth and Fifth Amendments, for plaintiffs are being called upon neither to produce evidence, nor to testify against themselves, they are not being called upon at all. Neither are they being subjected to a search and seizure, reasonable or unreasonable, as to their persons, or their properties. Fuller v. United States (C.C.A.) 31 F.(2d) 747; Schwartz v. United States (C.C.A.) 294 F. 528; Tritico v. United States (C.C.A.) 4 F.(2d) 664, 665; Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919, 47 L.R.A.(N.S.) 263. It is to say that if, in demanding of the telegraph companies production and inspection of the messages in question, the commission and commission defendants are about their lawful business plaintiffs’ bills must fail, not because plaintiffs have no standing to prevent the unlawful disclosure of their telegrams, but because the disclosure sought is a lawful one, of which plaintiffs may not complain. Plaintiffs’ bills, by conclusions and inferences, make defendants out mere snoopers on a prowl, prying officiously, and for no good, into their private affairs. The facts, as the record shows them, and as found by the trial judge, show defendants as not personally or officiously, but for a public purpose and officially, under authority of law, making a formal and regular demand for information needed in connection with an investigation formally and regularly set on foot by the Securities and Exchange Commission, to expose and defeat fraudulent schemes in and upon interstate commerce and prevent their consummation. The facts, in short, make out a case in which defendants, under the authority of a valid law, and for a' public purpose, are lawfully demanding of the telegraph companies an inspection of telegraph messages in their files. Matters standing thus, plaintiffs’ bills are without equity. They should be dismissed. Securities and Exchange Commission v. Jones (C.C.A.) 79 F.(2d) 617; Securities and Exchange Commission v. Jones (C.C.A.) 85 F.(2d) 17; McMann v. Securities and Exchange Commission (C.C.A.) 87 F.(2d) 377; Coplin v. United States (C.C.A.) 88 F.(2d) 652; McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1; Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407. The orders appealed from are reversed, and the causes are remanded with directions to dismiss the bills. Reversed and remanded. “No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to prop? er accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpoena issued by a court of competent jurisdiction, or on demand of other lawful authority.” 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376. 300 U.S. 139, 57 S.Ct. 407, 81 L.Ed. 562. (C.C.A.) 87 F.(2d) 377. John Locke correctly set the matter out thus more than two hundred and fifty years ago:— “Allegianee is nothing but an obediance according to law. * * * Nor can one claim it otherwise than as a public person vested with the power of the law and so is to be considered as the image, phantom, or representative of the commonwealth acting under the will of the society declared in its laws, and thus he has no will, no power, but that of the law. * * * ” “The use of force without authority always puts him that uses it into a state of war as the aggressor, and renders him liable to be treated accordingly. * * * For the exceeding the bounds of authority is no more right in a great than a petty officer, no more justifiable in a king than a constable.” Locke, Two Treatises on Government pp. 271, 272, 297. While Madison, in The Federalist, dedares: “In framing a government which is to be administered by men over men, the groat difficulty lies in this; you must first enable the government to control the governed; and in the next place, oblige it to control itself.” In this connection we need do no more than refer, for the purpose of rejecting it, to plaintiffs’ contention that; the subpoenas were unauthorized because they sought indiscriminately telegrams sent interstate and intrastate. What was being investigated was not particular telegrams, but the use of telegrams in connection with a scheme to defraud in interstate commerce. It has never been, it could not be, contended that federal agencies unearthing and bringing to book offenders against federal laws are limited in their investigations to facts and matters actually transpiring interstate, and may not use their authority to uncover and disclose matters having evidential bearing upon an interstate offense merely because they transpired exclusively within a state. The telegrams, disclosure of which is sought in this case, are within that principle. Interstate Commerce Act § 1, subsec. (1) (c) and subsection (3) of section 1 (title 49 U.S.C.A., § 1 (1) (c), (3)); Oklahoma-Arkansas Tel. Co. v. Southwestern Bell Tel. Co. (C.C.A.) 45 F.(2d) 995, 76 A.L.R. 944; Western Union Tel. Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457; Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094.

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?

CONSUMERS UNION OF the UNITED STATES, INC. and Public Citizen’s Health Research Group, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION et al. No. 75-2059. United States Court of Appeals, District of Columbia Circuit. Dec. 22, 1978. Alan B. Morrison and Diane B. Cohn, Washington, D. C., for appellants Consumers Union of the U. S. and Public Citizens Health Research Group, filed a supplemental memorandum. Leonard Schaitman and Frederic D. Cohen, Attys., Dept. of Justice, Washington, D. C., for appellee Consumer Product Safety Commission, filed a supplemental memorandum. Harry L. Shniderman and James M. McHaney, Jr., Washington, D. C., for appellees Aeronutronic Ford Corp. and GTE Sylvania, Inc.; Robert W. Steele and Alan M. Grimaldi, Washington, D. C., for appellee General Elec. Co.; Bernard G. Segal, Charles C. Hileman, III, and Deena Jo Schneider, Philadelphia, Pa., for appellee RCA Corp.; J. Wallace Adair, Washington, D. C., for appellee Admiral Corp.; Stephen B. Clarkson, Washington, D. C., for appellees The Magnavox Co. and Zenith Radio Corp.; Nancy L. Buc, Washington, D. C., for appellee Matsushita Elec. Co.; James M. Johnstone, Washington, D. C., for appellee Motorola, Inc.; William L. Dickey, Washington, D. C., for appellee Sharp Electronics Corporation; Lawrence R. Walders, Washington, D. C., for appellee Toshiba-America, Inc.; William F. Patten and D. Clifford Crook, III, Washington, D. C., for appellee Warwick Electronics, Inc.; filed a supplemental memorandum. Before WRIGHT, Chief Judge, and BA-ZELON and ROBINSON, Circuit Judges. Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: At the core of this litigation is appellants’ challenge under the Freedom of Information Act (FOIA) to the Consumer Product Safety Commission’s failure to disclose data concerning accidents attributable to the operation of television sets. When their cause was first before us, we reversed the District Court’s ruling that no case or controversy was presented. That determination had been premised on the Commission’s acknowledged willingness to release the data save for a ban imposed thereon by a preliminary injunction awarded television manufacturers by the District Court for the District of Delaware in a reverse-FOIA suit involving the same information. We held that the Delaware action, to which appellants were not parties, was no obstacle to their effort in the District Court here. We reasoned that a preliminary injunction is designed merely to preserve the status quo ante pending final decision, and “ ‘is not an adjudication of rights in any proper sense of the term... Because the Delaware court had entered an order “closing out” the case before any final stage had been reached, we concluded that the Delaware proceeding was not “an insuperable barrier to the suit at bar.” We later were informed that the Delaware action had not really been terminated, but that the “closing out” order was apparently a means merely of placating the periodic call for statistics reflecting judicial efficiency in processing caseloads. In denying rehearing, we noted that appellants had still not been added as parties to the Delaware proceedings, and explained that “[sjince all necessary parties are before the District Court here, there appears no reason why the litigation should not proceed here, particularly since this is the venue authorized by the FOIA.” Our prior opinions spurred the manufacturers to renew vigorously their pursuit of a judgment on the merits in Delaware, and appellants made no effort to have the District Court here enjoin them from that course. And the Commission, at long last, moved in the Delaware court for a change of venue to the District of Columbia, but added no alternative motion to join the FOIA requesters in the Delaware case — in which, we are now told, their rights have been fully and finally adjudicated. The Delaware court denied transfer primarily on the ground that, though the Commission faced the possibility of inconsistent outcomes on the merits, “[t]he time for the Commission to have moved for a transfer of these cases was in the early stages of this litigation in 1975 before all the effort and work had been expended here.” While a petition to the Supreme Court for a writ of certiorari in this case was pending, the Delaware court issued a permanent injunction. The Supreme Court subsequently granted certiorari and remanded the case to us “for further consideration in light of the permanent injunction.” Thus we are now brought face-to-face with the issue we had earlier reserved: Does a judgment in favor of information-suppliers in a reverse-FOIA suit bar requesters not parties thereto from litigating their contention that the Freedom of Information Act mandates disclosure? The answer, we think, becomes clear once one investigates the interrelationship of the Act and reverse-FOIA suits in light of traditional principles governing preclusion of subsequent litigation. I. THE RATIONALES FOR FOIA AND REVERSE-FOIA SUITS Before the Freedom of Information Act was adopted, official dissemination of information was frequently marked by caprice, and suits to obtain information or to forestall its release met with “far from uniform” judicial treatment. The Act was intended to rationalize agency disclosure policies by providing a mechanism for balancing the public’s “right to know” against the agency’s interest in preserving confidentiality. If a court finds that the Act applies to material for which a request has been properly made, that is the end of the matter; the material must be disclosed for the Act effectuates a eongressional judgment that in those circumstances no public or private interest in secrecy outweighs the benefits attending public access. Moreover, in determining whether the Act is operative, the legislative command that disclosure be the rule and exemptions be narrowly construed must be sedulously observed. But Congress in the same breath specified classes of information to which the Act — and its policy of openness —“do[ ] not apply.” When a court finds that requested material falls into one of these categories, and resultantly that its divulgence is not compelled by the Act, the propriety of voluntary disclosure by the agency must hinge on reconciliation with such other law as is pertinent — whether statute, regulation, the administrative “common law” or general principles of equity. Some of these residual legal rules may endow private parties with legally cognizable interests in the confidentiality of exempted information; others may bestow on some a greater entitlement to information than the Act itself gives the general public. Since the agency’s purposes will only coincidentally correspond with those of nongovernmental parties, it would be folly to entrust these often-critical private interests to unreviewable bureaucratic discretion. This court has accordingly held that when an agency asserts its intention to comply with a demand for information, parties who would be aggrieved by compliance may sue for a declaration whether that release would be lawful. But such litigants must first pass through the needle’s eye of the Freedom of Information Act, for if the Act calls for disclosure they have, of course, no right whatsoever to confidentiality. Only if the Act does not govern need the court examine other sources of law — which may prohibit dissemination, give the agency judicially reviewable or unreviewable discretion to release or retain, or even mandate disclosure, depending on the circumstances. Reverse-FOIA suits therefore are no blight upon the landscape of the law, but the propriety of their role in any scenario must be carefully considered. Enforcement of such rights of confidentiality as federal law might otherwise recognize must not be allowed to choke the free flow of data contemplated by Congress in the Freedom of Information Act. Surely such an obstruction would in interposed if a judgment adverse to the agency in a reverse-FOIA action were permitted to bar later FOIA suits for the documents in question when no one interested in obtaining the material was a party to the earlier litigation. In our view, no such preemption is warranted, as this case tellingly exemplifies. II. THEORIES FOR PRECLUSION OF SUBSEQUENT FOIA SUITS Federal courts in different jurisdictions may sometimes reach conflicting conclusions on the duties of an administrative agency, but normally without placing it in an impossible dilemma or bringing on a direct clash of judicial power. A serious conundrum, however, arises when, as here, the subject matter is information and the dispute is over whether it should be disclosed to the public. Once released pursuant to judicial decree, the data cannot be bottled up within the court’s geographical area; with modern communications, information made public at any one point may soon be available throughout the country, often within moments. By the same token, when a court orders an agency to retain information, its edict is absolutely useless unless it stops agency action everywhere. Consequently, the first court to decide — in either a FOIA or a reverse-FOIA suit — will have pronounced a judgment that might reach across the Nation, or, on the other hand, might not have any practical effect even in its own jurisdictional domain. That is exactly the situation here: The Delaware proceeding began, and the Commission was temporarily enjoined, before the appellant-requesters filed their own action in the District of Columbia seeking disclosure. By the time appellants sued, the District Court, here knew that should the litigation before it continue, a decision contrary to that of the Delaware court might be reached, and that the Commission could not possibly comply with each of the conflicting orders. Thus focused, the issue is the proper response of the court chronologically second. We earlier rejected one solution — dismissal for absence of a case or controversy — and we adhere to that position for the reasons then stated. That still leaves other alternatives — dismissal on a theory of stare decisis, collateral estoppel or comity, or continuation of the suit in some manner. For more than ample reason, we have chosen the latter course. A. Stare Decisis We surely do not gainsay that “the doctrine of stare decisis is still a powerful force in our jurisprudence.” So, a court resolving a FOIA claim may choose to defer to a previous judicial decision that the Act does or does not apply to particular documents, whether the prior action sought disclosure or restraint. It has not, however, been our experience that federal judges are either careless or timorous. The notion that any would defer on stare decisis grounds to a decision by a co-ordinate court with which he disagreed is unworthy of comment. B. Collateral Estoppel Furthermore, the doctrine of collateral estoppel, which does bind parties to a previous suit to such determinations of material issues as are encompassed in the judgment, only rarely precludes nonparties from litigating the same issues afresh. If the FOIA applicant has neither been a party nor otherwise represented in a prior successful reverse-FOIA suit, he will not be blocked from taking his controversy to the courts. The only parties here who were litigants in Delaware are the Consumer Product Safety Commission and the manufacturers who sought to prevent disclosure of materials that the Commission was prepared to turn over to appellants. An agency’s interests in FOIA suits of either stripe diverge markedly from private interests, and raise serious doubt whether the agency could ever be deemed to represent members of the public. Indeed, congressional appreciation of that divergence underlies the Act. The institutional predilections that distinguish the agency’s position from the citizens argue against permitting the Commission to do via litigation what it may not do by agreement — to bar applicants from information to which the Act mandates access. Far less do they justify departure from the rule, articulated in the milieu of antitrust enforcement, that “just as the Government is not bound by litigation to which it is a stranger, so private parties, similarly situated, are not bound by government litigation.” Nor can the agency’s role in reverseFOIA litigation be likened to that of the named representative of a class in a defendant class action, and thus raise the spectre that a judgment against the agency would extend to bind all putative members of the hypothetical class it supposedly represents. At the outset, the clash of purposes would render the bureaucracy suspect as a representative of any class composed of FOIA requesters. Even passing that, when — as in the present circumstances — no class has been convened, no preclusive effect can possibly follow, and the public’s right to know remains secure. C. Comity That brings us lastly to comity, here reflected in the principle that “[o]rdinarily, the court first acquiring jurisdiction of a controversy should be allowed to proceed with it without interference from other courts under suits subsequently instituted.” Though we have not the smallest quarrel with that time-honored dogma, it should not be permitted to hold sway outside situations in which it was designed to apply. Created to assure judicial efficiency and to reflect abiding respect for other courts, the doctrine surely does not contemplate that fundamental rights of citizens will be adjudicated in forums from which they are absent. In fact, though perhaps subconsciously at times, the courts have not allowed comity to be debased in such a fashion. The decisions invoking the principle involve circumstances in which the plaintiff in the later federal suit was a party to the earlier action involving the same issues and subject matter. When everyone with an interest could have had his claim resolved in one court, it would be senseless to allow some of the parties to initiate concurrent litigation over the same dispute. But that is not this ease. Some — at least appellants — with a stake in the controversy were not before the Delaware court, and accordingly the principle of comity is inapplicable. Even if comity might be thought at all relevant, it would not outweigh the non-parties’ right, guaranteed by the Act and the Constitution to have their claims adjudicated. III. ACCOMMODATING FOIA AND REVERSE-FOIA SUITS The sum of the foregoing is that none of the familiar anti-relitigation doctrines operates to deprive nonparty requesters of their right to sue for enforcement of the Freedom of Information Act; rather, they remain unaffected by prior litigation solely between the submitters and the involved agency. One obvious consequence is that federal agencies that are prey to reverse-FOIA suits may by that token find themselves subject to the possibility of inconsistent judgments. Threats of that nature are not unprecedented, however, and there are procedural devices aplenty designed to avoid the hazard of conflicting obligations. Resort to them in the present context, moreover, would have brought about representation of all interests before the court that first addressed the merits, and thereby would have eliminated the problem completely. Another consequence is that reverseFOIA plaintiffs may find that, to prevent judgments in their favor from becoming nugatory, they must join in their lawsuits anyone whose request for information quickened the submitter’s controversy with the agency — or perhaps even, by way of a defendant class action, all those who likely may subsequently make such requests. That, too, can only be salutary, for it will assure that the public’s interest will be represented by at least one of its own. It will also relieve courts of the temptation — to which we earlier succumbed — to undertake a critique of the agency’s litigative strategy- The manufacturer-plaintiffs could have named appellant-requesters as defendants in the Delaware lawsuit, or they could have maintained it as a defendant class action against the Commission and all possible requesters. They did not. The Commission, with some creativity, could have filed an interpleader counterclaim and joined the requesters on the theory that otherwise the Commission might be exposed to multiple accountability and that, in a dispute over disclosure, information is an indivisible res over which the parties contest. It did not. At the very least, the Commission could have urged that the requesters were parties-whose joinder was required under Civil Rule 19. But no consideration was given to the mandates of that rule, though, as we now elucidate, its applicability could hardly have been questioned. If, as the manufacturers and the Commission assert, the Delaware reverseFOIA suit so affected appellants’ interest in disclosure of the information sought that they are now barred from litigating it in the District Court here, the Delaware action certainly could have been said, in the words of Rule 19, “as a practical matter [to] impede [their] ability to protect that interest or. [to] leave [the agency] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [appellants’] claimed interest.” Indeed, the concept of joinder was created to resolve the problem of conflicting exercise of equity jurisdiction. Rule 19(b) states the considerations that must guide a determination whether one described by Rule 19(a) must be regarded as so. indispensable that the litigation must be dismissed. Those factors include first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. In our view, those factors, had anyone in the Delaware action paused to look at them, surely demanded dismissal of the manufacturers’ Delaware suit, or at least an injunction shaped to impact to the smallest possible extent upon the absent requesters’ interest. Joinder of the requesters would have been the better course, for it would have avoided the duplicative litigation in which we now are unfortunately entangled, but it was not the only solution. A well-crafted judgment in Delaware could have steered clear of any embarrassment to appellants’ claim. Indeed, the inherent tension between reverse-FOIA and FOIA suits could often be mitigated by a rule that, unless the party resisting disclosure joins in his reverse-FOIA suit those seeking release, any injunction therein must be drafted to halt only voluntary disclosure by the agency, and to leave unaffected the requesters’ right to seek a subsequent judicial determination that the Act mandates disclosure. IV. CONCLUSION Appellant requesters were not made parties to the Delaware action, and the effect of that omission on this litigation is, to us, indisputable. A judgment cannot bind those who were not before the court either in person or through some sort of representative. As the Supreme Court has declared, in dealing with situations where “a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties..., no Court can adjudicate directly upon a person’s right, without the party being either actually or constructively before the Court.” This basic tenet of due process can hardly be circumvented through the ritualistic invocation of “comity.” The manufacturers have no valid objection to relitigation of disclosure of this information, “for clearly the plaintiff [in the earlier suit], who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtained] against them.” Nor can the Commission legitimately bemoan the threat of inconsistent obligations since it never attempted to foreclose that possibility by seeking the joinder of appellants in Delaware. The only factor even remotely capable of preventing appellants from prosecuting their FOIA suit toward a result contrary to the broad Delaware reverse-FOIA injunction is their failure to intervene in the proceeding there. We believe, however, that appellants, and perhaps informationrequesters generally, should not suffer from bypasses of this sort. To decide otherwise would force them to accept the choice of, a forum possibly sympathetic to the submitter and surely inconvenient or impossible for the requester. Congress specified the sites proper for judicial consideration of FOIA claims; to allow submitters to force FOIA litigation to occur in other arenas would free the tail to wag the dog. This, in our opinion, is the type of “undue hardship” expressly discountenanced by the Advisory Committee when it discussed amended Rule 19 in 1966. The rule puts the burden on existing parties and the court to bring in those whose presence is necessary or desirable, and to work out a fair solution when joinder is jurisdictionally impossible. A generally applicable theory of waiver by one who declines to voluntarily step into the proceeding would abrogate the rule and its purpose completely. It is the party’s — not the nonparty’s — responsibility to make certain that the court has before it all those needed to enable it to serve the ends of justice. And if the essential nonparty cannot, for reasons of personal jurisdiction, be joined in the suit, then the litigation must proceed elsewhere, if at all. This case, therefore, must finally continue toward a decision on the merits in the District Court for the District of Columbia. Its first task is to analyze closely the Delaware court’s reasoning, for it may turn out that the court here will agree with the Delaware court. Should, however, the court decide that the failure to release the information was indeed improper, it will have to ascertain the relief appropriate in the circumstances. Since the manufacturers are party-defendants, it might consider enjoining them from enforcing their Delaware judgment against the Commission. In short, our decision is a narrow one — that this litigation is not prohibited by the earlier action — and we have not attempted to decide whether or not actual disclosure should be the final result. Remanded. . Our earlier decisions are cited infra notes 4 and 9. . Because of the grounds on which our previous decisions rested, it was unnecessary to deal with the problems that are squarely presented now. . Pub.L. No. 89-554, 80 Stat. 383 (1966), as amended, 5 U.S.C. § 552(a)(3)-(e) (1976). . Consumers Union v. Consumer Prod. Safety Comm’n, 182 U.S.App.D.C. 351, 561 F.2d 349 (1977). . See id. at 356, 561 F.2d 354. . Id. at 359, 561 F.2d at 357. . Id. at 358, 561 F.2d at 356, quoting United States Elec. Lighting Co. v. Metropolitan Club, 6 App.D.C. 536, 544 (1895). . 182 U.S.App.D.C. at 358, 561 F.2d at 356. . Consumers Union v. Consumer Prod. Safety Comm’n, 184 U.S.App.D.C. 146, 147, 565 F.2d 721, 722 (1977). . Id. . GTE Sylvania, Inc. v. Consumer Prod. Safety Comm’n, 438 F.Supp. 208, 212 (D.Del.1977). The court noted that “the Commission does not contend that the convenience of the parties and witnesses requires a transfer of these actions to the District of Columbia.” Id. at 211. . GTE Sylvania, Inc. v. Consumer Prod. Safety Comm’n, 443 F.Supp. 1152 (D.Del.1977), appeal pending, No. 78 1328 (3d Cir.). . GTE Sylvania, Inc. v. Consumers Union, 434 U.S. 1030, 98 S.Ct. 761, 54 L.Ed.2d 778 (1978). . See Consumers Union v. Consumer Prod. Safety Comm’n, supra note 4, 182 U.S.App.D.C. at 359, 561 F.2d at 357. After the remand, we called upon the parties for, and they submitted, supplemental memoranda setting forth their views as to the course the court should take, addressing particularly the question stated in text. . Section 3(c) of the original Administrative Procedure Act, Pub.L. No. 79-404, 60 Stat. 238 (1946), which the Freedom of Information Act replaced, provided that “[s]ave as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons properly and directly concerned except information held confidential for good cause found.” This section was perceived as “not intended to open up Government files for general inspection,” Attorney General’s Manual on Administrative Procedure Act 25 (1947), and agency responses to requests for information often evidenced an appreciation of secrecy for secrecy’s sake. See S.Rep. No. 813, 89th Cong., 2d Sess. 3-5 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5-6 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418; EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119, 127-128 (1973); Getman v. NLRB, 146 U.S.App.D.C. 209, 217-218, 450 F.2d 670, 678-679, stay denied, 404 U.S. 1204, 92 S.Ct. 7, 30 L.Ed.2d 8 (1971); Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417, 435-437 (1965). The breadth of agency discretion under § 3(c) was in no way curtailed by the courts, see, e. g., FCC v. Schreiber, 381 U.S. 279, 293, 85 S.Ct. 1459, 1469, 14 L.Ed.2d 383, 393 (1965); cf. Appeal of SEC, 226 F.2d 501, 517-519 (6th Cir. 1955); but cf. Graber Mfg. Co. v. Dixon, 223 F.Supp. 1020 (D.D.C.1963), and that section had little practical effect on prior law. Cf. United States ex rel. Stowell v. Deming, 57 App.D.C. 223, 224, 19 F.2d 697, 698, cert. denied, 275 U.S. 531, 48 S.Ct. 28, 72 L.Ed. 410 (1927). . 1 K. Davis, Administrative Law Treatise § 3.13, at 227 (1958). . See cases cited supra note 15. See also the many cases dealing with the propriety of agency disclosure sua sponte or in the course of agency proceedings. E. g., FCC v. Schreiber, supra note 15; Utah Fuel Co. v. National Bituminous Coal Comm’n, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483 (1939); Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933); FTC v. Menzies, 145 F.Supp. 164 (D.Md.1956), aff’d on other grounds, 242 F.2d 81 (4th Cir.), cert. denied, 353 U.S. 957, 77 S.Ct. 863, 1 L.Ed.2d 908 (1957). See generally Appeal of SEC, supra note 15, 226 F.2d at 517-519 and cases there cited; J. Chamberlain, N. Dowling & P. Hays, The Judicial Function in Administrative Agencies 112-120 (1942); 1 K. Davis, Administrative Law Treatise § 3.13 (1958 & 1970 Supp.); Rourke, Law Enforcement Through Publicity, 24 U.Chi.L.Rev. 225, 242-247 (1957). . See, e. g., S.Rep. No. 813, supra note 15, at 3: It is the purpose of the present bill... to establish a general policy of full agency disclosure unless information is exempted.. It is essential that agency personnel, and the courts as well, be given definitive guidelines in setting informational policies. . Id. See also EPA v. Mink, supra note 15, 410 U.S. at 79-80, 93 S.Ct. at 832, 35 L.Ed.2d at 127-128. . When no “request for identifiable records” has been made, the statute is not activated. 5 U.S.C. § 552(a)(3) (1976); see S.Rep. No. 813, supra note 15, at 2; cf., e. g., Nader v. Volpe, 151 U.S.App.D.C. 90, 93 n.26, 466 F.2d 261, 264 n.26, 18 A.L.R.Fed. 595 (1972); FTC v. Cinderella Career & Finishing Schools, Inc., 131 U.S.App.D.C. 331, 341 n.15, 404 F.2d 1308, 1318 n.15 (1968) (concurring opinion). See also Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm’n, 555 F.2d 82, 93-94 (3d Cir. 1977). But see Pennzoil Co. v. FPC, 534 F.2d 627, 630 (5th Cir. 1976); Continental Oil Co. v. FPC, 519 F.2d 31, 36 (5th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 794 (1976); Union Oil Co. v. FPC, 542 F.2d 1036, 1045 (9th Cir. 1976). . NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 147-148, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29, 45-46 (1975). . S.Rep. No. 813, supra note 15, at 5-6; see, e. g., Getman v. NLRB, supra note 15, 146 U.S.App.D.C. at 217-219, 450 F.2d at 678-680; Soucie v. David, 145 U.S.App.D.C. 144, 154, 448 F.2d 1067, 1077 (1971). See also Department of the Air Force v. Rose, 425 U.S. 352, 379 n.17, 96 S.Ct. 1592, 1607 n.17, 48 L.Ed.2d 11, 31 n.17 (1976). See generally K. Davis, Administrative Law of the Seventies § 3A.6, at 61 (1976). . See Department of the Air Force v. Rose, supra note 22, 425 U.S. at 361, 96 S.Ct. at 1599-1600, 48 L.Ed.2d at 21, citing EPA v. Mink, supra note 15, 410 U.S. at 79, 93 S.Ct. at 832, 35 L.Ed.2d at 127-128; Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), aff’d after remand, 173 U.S.App.D.C. 187, 193, 523 F.2d 1136, 1142, 28 A.L.R.Fed. 623 (1975); Soucie v. David, supra note 22, 145 U.S.App.D.C. at 157, 448 F.2d at 1080. . 5 U.S.C. § 552(b) (1976); S.Rep. No. 813, supra note 15, at 3; see, e. g., Administrator v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164, 170 (1975); NLRB v. Sears, Roebuck & Co., supra note 21, 421 U.S. at 137, 95 S.Ct. at 1510, 44 L.Ed.2d at 39; DPA v. Mink, supra note 15, 410 U.S. at 74, 93 S.Ct. at 830, 35 L.Ed.2d at 125. Since the Act is “not a withholding statute but a disclosure statute,” S.Rep. No. 813, supra note 15, at 5; see S.Rep. No. 584, 93d Cong., 2d Sess. 6 (1974); H.R.Rep. No. 1419, 92d Cong., 2d Sess. 7 (1972), the mere fact that information falls within one of its exemptions does not of itself outlaw disclosure. See Planning Research Corp. v. FPC, 181 U.S.App.D.C. 33, 36-37 n.4, 555 F.2d 970, 973-974 n.4 (1977), citing S.Rep. No. 584, supra, at 6 and Charles River Park “A”, Inc. v. HUD, 171 U.S.App.D.C. 286, 293, 519 F.2d 935, 942 (1974) and K. Davis, Administrative Law of the Seventies § 3A.5, at 58-61 (1976) and K. Davis, Administrative Law Treatise § 3A.5, at 122 (1970 Supp.); Chrysler Corp. v. Schlesinger, 565 F.2d 1172, 1185 (3d Cir. 1977), cert. granted, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978); Superior Oil Co. v. FERC, 563 F.2d 191, 204 (5th Cir. 1977); Clement, The Rights of Submitters to Prevent Agency Disclosure of Confidential Business Information: The Reverse Freedom of Information Lawsuit, 55 Texas L.Rev. 587, 598-600 (1977); cf. Drachsler, The Freedom of Information Act and the “Right” of Non-Disclosure, 28 Ad.L.Rev. 1, 5-6 (1976); Project, Government Information and the Rights of Citizens, 73 Mich.L.Rev. 971, 1158-1159 (1975); Comment, Reverse Freedom of Information Act Suits: Confidential Information in Search of Protection, 70 Nw.L.Rev.

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

This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". What subcategory of private association best describes this litigant?

NATIONAL LABOR RELATIONS BOARD v. GRACE CO. No. 14107. United States Court of Appeals Eighth Circuit. Sept. 13, 1950. Mozart G. Ratner, Acting Assistant General Counsel, National Labor Relations Board, Washington, D. C. (David P. Find-ling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Frederick U. Reel and Irving M. Herman, attorneys, all of Washington, D. C., on the brief), for petitioner. Burr S. Stottle, Kansas City, Mo. (Robert J. Ingraham, Kansas City, Mo., on the brief), for respondent. Clif. Langsdale, Kansas 'City, Mo. (John J. Manning, Kansas City, Mo., on the brief), for intervener, International Ladies’ Garment Workers’ Union. Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. The question is whether this court should grant the petition of the National Labor Relations Board for a decree enforcing its order requiring respondent to bargain collectively with the International Ladies’ Garment Workers’ Union as exclusive representative of production employees of the respondent at its Clinton, Missouri, plant. The Grace Company, a Missouri corporation, is engaged in the manufacture of children’s wearing apparel. At all times during the proceedings before the National Labor Relations Board the company operated two plants, one at Belton and the other at Clinton, Missouri. There were 58 employees at the Belton plant and 53 at the Clinton plant. Matters concerning wages, hours, and working conditions for both plants were determined at Belton where the company maintained its management office. There was little difference in the character of work or in the working conditions at the two plants. There was little or no interchange of employees between the plants, but from the standpoint of management the two plants were operated as one. On October 7, 1946, the employees of the Grace Company organized the Independent Union of The Grace Company of Clinton and Belton, Missouri, an unaffiliated labor organization, which began collective bargaining negotiations with respondent representing a majority of the employees of both plants. These negotiations continued until November 8, 1946, when respondent and Independent reached an understanding on terms and conditions of employment and reduced tlieir understanding to writing. Because of interlineations and corrections in the written instrument, the parties thought it necessary to prepare a final draft of the agreement in corrected form before signing. This was done, ánd the agreement was signed by respondent and Independent on November 14, 1946. On November 13, 1946, the International filed a petition with the Board for certification as bargaining representative of the employees of respondent at its Clinton plant,' claiming to represent a majority of the employees at that plant, and alleging that ./ Independent was a company-dominated | union. On December 30, 1946, Independent filed a similar petition for certification, claiming to represent a majority of all employees. The petitions for certification were consolidated for hearing, after which, on May 27, 1947, the Board ordered an election at the Clinton plant. , : In the consolidated hearing the Board found, over the objections of respondent and Independent, that either a company-wide unit or a plant unit would on the iacts before it constitute a proper bargaining unit for the employees, the-Board ruling that: “Under these -circumstances * * * the determination of the unit should depend,-in part, upon the desires .of :the employees themselves.”: ■ , . . The Board did not find that Independent was a company-dominated union, nor did it make any finding concerning the propriety or the validity of the contract signed November 14, 1946, between Independent and respondent, nor that Independent at the time the confract-was signed did not represent á majority' of the employees at both plants. At the election International received a majority of the votes of the employees at the 'Clinton plant. On July 8,' 1947, the International was certified by the Board as their appropriate bargaining representative. Following the certification of International, respondent arid International agreed upon July 18, 1947, for a meeting for collective bargaining purposes. The meeting was never held. On July 15, 1947, Independent, in a proceeding in a Missouri State court for a declaratory judgment sustaining the validity of its bargaining agreement, obtained an order temporarily restraining respondent from “renouncing or disclaiming” its contract with Independent. The order commanded respondent to recognize its contract with Independent and to perform all its obligations thereunder pending a hearing on the merits. Respondent took the position that it was bound to obey the order of the State -court until vacated. International asserted that the order was void, and that respondent was required by the Board’s order of certification to ignore the State court. On July 24, .1947, respondent filed a motion with the Board to vacate its certification of International because of respondent’s contract of November 14, 1946, with Independent and because of the State court’s restraining order. , The motion was denied on August 11, 1947. On July 30, 1947, International filed with the Board its charge that respondent was engaged in unfair labor practices by refusing to bargain collectively with International, and on March 15, 1948, the General Counsel of the Board, pursuant to the charges filed by International, instituted proceedings before the .Board which resulted in the order of June 21, 1949, which the Board now seeks to enforce. On December 18, 1947, respondent filed a motion in the State court to dissolve the temporary restraining order because of the Board’s certification of International as bargaining representative of the Clinton plant employees. The motion, was denied December 20, 1947. In the meantime International had refused a request of respondent to' intervene in the State court proceeding for the purpose of dissolving the restraining order. The order was vacated before May 9,1949, when the proceeding in the State court were dismissed for reasons not appearing in this record. On February 23, 1950, respondent filed its application with this court for leave to adduce additional evidence before the Board to show that at all times since its execution the contract with Independent has continued in full force and effect, and that on June 21, 1949, the majority of the employees of the Clinton plant had notified, respondent of their desire to be represented by Independent in place of International. The motion was resisted by the Board on the ground that the additional evidence sought to be adduced was immaterial on any question before the court. The motion was denied with leave to respondent to renew it at the hearing on the merits, which respondent did, after amending the motion by a request to adduce additional evidence to show that due to business reasons wholly apart from the issues in the enforcement proceeding operations at its Clinton plant had been discontinued and the plant permanently closed on May 5, 1950. The Board has made no response to the allegations of the amended motion. On the Merits. Respondent resists the petition for enforcement on the grounds that: (1) the Board’s certification of International as bargaining representative of the employees at the Clinton plant was, on the facts in this case, arbitrary and unreasonable; (2) the contract between Independent and respondent in force at the time of the representation hearing was a bar to the certification of International; and (3) respondent had not in fact or law refused to bargain with International while restrained by an order of the State court. We are unable to agree with contentions numbered (1) and (2). For reasons stated later in this opinion, the third contention is no longer in the case. (1) The question of a proper unit for collective bargaining, whether plant, industry-wide, or craft, is committed to the wide discretion of the Board. The Board’s determination of the appropriate unit for collective bargaining purposes will not be disturbed by the courts unless clearly arbitrary and unreasonable. Bussman Mfg. Co. v. National Labor Relations Board, 8 Cir., 111 F.2d 783, 785 ; National Labor Relations Board v. May Department Stores, 8 Cir., 146 F.2d 66-70, affirmed 326 U.S. 376-380, 66 S.Ct. 203, 90 L.Ed. 145; Pittsburgh Plate Glass Co. v. National Labor. Relations Board, 8 Cir., 113 F.2d 698, 701-702, affirmed.313 U.S. 146, 156-158, 61 S.Ct. 908, 85 L.Ed. 1251; National Labor Relations Board v. Jones & Laughlin Steel Corp., 331 U.S. 416, 422, 67 S.Ct. 1274, 91 L.Ed. 1575. The question before the Board in the certification proceeding was not whether Independent or International should represent all of the employees of respondent at both plants, but whether, where a majority of the employees at the Clinton plant requested a separate representation by International, their request should be granted. The fact that Independent may have been an equally appropriate bargaining representative if a majority in each plant had requested its representation does not make the Board’s certification of a separate bargaining representative for the Clinton plant unreasonable or arbitrary. (2) The Board has the power to promulgate, rules and regulations of general application, designed to effectuate the purpose of the Act as amended. Its policy of requiring collective bargaining agreements to be reduced to writing and signed by the parties before acceptance by the Board as a valid and final completion of the collective bargaining process has been sustained by the Supreme Court. H. J. Heinze Co. v. National Labor Relations Board, 311 U.S. 514, 524, 61 S.Ct. 320, 85 L.Ed. 309. That this policy of the Board reasonably tends to effectuate collective bargaining requirements by requiring definite and certain in place of uncertain agreements which may become the subject of dispute between the parties as to terms is no longer open to question. The Board’s rule that the existence of a valid written and signed bargaining agreement between an employer and an appropriate bargaining representative is a bar to a certification proceeding for a different representation, if applicable to the facts in this case, is a procedural rule which the Board in its discretion may apply or waive as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements. The Board is not the slave of its rules. There is no merit in this contention. (3) We reject as unsound the Board’s ruling that respondent was required to ignore the restraining order issued by the State court. Collective bargaining with International under the Board’s order was useless unless it could proceed to agreement and the performance of the agreement when reached. Respondent’s effective obedience to the Board’s order required its violation of the restraining order of the State court. The Board could not require the respondent to put itself in this position, even if, as we agree, the ultimate dissolution of the restraining order was certain. At least respondent was entitled to a reasonable time in which to secure a modification or dissolution of the State court order. But it appears that the State court’s injunction was dissolved more than one year before the submission of the petition for enforcement in this court and approximately two months before the Board’s order commanding respondent to cease and desist in refusing to bargain with International. Respondent is no longer under restraint of the State court’s order. The Board’s order to cease and desist refusal to bargain is a continuing order valid when made, and a decree of enforcement by this court ■ operates in the future. The question presented on this assignment is moot. On The Motion For Leave To Adduce Additional Evidence. Section 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), provides: “* * * If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, * * * the court may order such additional evidence to be taken before the Board * * * and to be made a part of the transcript. The Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which, if supported by evidence, shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order. * * * ” An application under this section of the Act is addressed to the discretion of the court. National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 16, 63 S.Ct. 394, 87 L.Ed. 579; Southport Petroleum Co. v. National Labor Relations Board, 315 U.S. 100, 104, 62 S.Ct. 452, 86 L.Ed. 718; National Labor Relations Board v. Jones & Laughlin Steel Corp., supra, 331 U.S. at page 428, 67 S.Ct. 1274, 91 L.Ed. 1575. The application will not be granted unless it satisfactorily appears that the proposed additional evidence is material and that reasonable grounds existed for failure to adduce it at the hearing before the Board. National Labor Relations Board v. May Department Stores, 8 Cir., 154 F.2d 533, 540; National Labor Relations Board v. Blanton Co., 8 Cir., 121 F.2d 564. The materiality of new evidence unavailable at the time of the hearing before the Board will depend upon the terms of the order to be enforced, as well as upon the nature of the new evidence. If the evidence on remand to the Board shows that the Board’s order is obviously moot, the -court of appeals should deny enforcement. National Labor Relations Board v. Jones & Laughlin Steel 'Corp., supra. That a majority of employees at the Clinton plant have decided, since the Board’s order certifying International, to desert that union for Independent is not material on the question of enforcement of the Board’s order. National Labor Relations Board v. Mexia Textile Mills, Itic., 339 U.S. 563, 70 S.Ct. 826, 833. But if, as respondent alleges, the Clinton plant has been permanently closed since the order of the Board was entered, that fact, when established, presents to the Board and to this court the propriety of an order which cannot be enforced. Neither the Board nor this court may compel the respondent to continue the operation of its Clinton plant. Nor could this court punish for contempt the respondent’s failure to do the impossible —to bargain collectively with a bargaining representative which represents no employees because there are none and can be none in a permanently closed plant. A decree of a court of appeals enforcing an order of the Board is not a formality designed merely to place the court’s stamp of approval on an order of the Board valid when made, but which the facts show is now inoperative and impossible to enforce. In this case the order of the Board required respondent to bargain with International, to post the usual notices, and to notify the Regional Director of the Board of its compliance with the order. If it should appear on remand to the Board that respondent’s plant has been permanently dosed, an order of enforcement would be of no benefit to International or to the former employees of respondent, nor would it serve in any degree to effectuate the purposes of the Act as amended. The situation here is to be distinguished from the cases in which although, after the Board’s order, the employer has gone out of business, the order is in part possible of enforcement, or in which the employer is succeeded by another bound by the Board’s order. Compare National Labor Relations Board v. National Garment Co., 8 Cir., 166 F.2d 233, 239; Southport Petroleum Co. v. National Labor Relations Board, supra. In National Labor Relations Board v. Caroline Mills, Inc., 5 Cir., 167 F.2d 212, respondent in answer to the Board’s petition for enforcement alleged that it had gone out of business and that all employees had been discharged. The court, nevertheless, granted an order of enforcement, hut it does not appear that respondent had asked to adduce additional evidence before the Board to prove the facts alleged in its answer. The Board in this case ordered reinstatement of discharged employees with back pay. 71 N.L.R.B., No. 54. The back pay provision was enforceable although respondent had gone out of business. In Loveman, Joseph & Loeb v. National Labor Relations Board, 5 Cir., 146 F.2d 769, the court refused to enforce the Board’s order for the reinstatement of an employee where the proof showed the employee was dead. In National Labor Relations Board v. Reynolds Corp., 5 Cir., 155 F.2d 679, 681, 168 F.2d 877, the facts were that the Board’s order to respondent to cease and desist interfering with labor organization and bargaining rights of its employees was entered in May 1945, when respondent was operating a munitions plant under contract with the Navy. In November 1945 the contract with the Navy was terminated, the plant surrendered to the Navy, and respondent retired from business. The court said that it was manifest that the cease and desist parts of the Board’s order on the facts stated had nothing to operate on, that no person could be benefitted by them because there were no longer any employees. Enforcement was denied. It is apparent that the status of the Clinton plant may be speedily determined and the Board and this court advised of the facts without prejudice to any of the parties in interest. That this may be done we retain jurisdiction of this proceeding. The Board is directed to grant respondent a hearing upon the question and to report its findings of fact and recommendations, if any, for further proceedings herein.

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?

SISTERS OF THE PRESENTATION OF THE BLESSED VIRGIN MARY OF ABERDEEN, SOUTH DAKOTA, Petitioner, v. NATIONAL CREDIT UNION ADMINISTRATION BOARD, Respondent. No. 91-1516. United States Court of Appeals, Eighth Circuit. Submitted Oct. 16, 1991. Decided April 8, 1992. Gerald P. Laughlin, Omaha Neb., argued (David A. Karnes, Richard E. Putnam, Omaha, Neb., and Donald Bierle, Yankton, S.D., on the brief), for petitioner. Anthony J. Steinmeyer, Washington, D.C., argued (Stuart M. Gerson and Thomas M. Bondy, on brief), for respondent. Before WOLLMAN, Circuit Judge, and BRIGHT and ROSS, Senior Circuit Judges. ROSS, Senior Circuit Judge. This appeal is brought by the Sisters of the Presentation of the Blessed Virgin Mary of Aberdeen, South Dakota (Petitioner) from a decision of the National Credit Union Administration Board (the Board) denying Petitioner’s status and claims as a creditor of the Franklin Community Federal Credit Union (Franklin) of Omaha, Nebraska. In November 1988, Franklin was placed into involuntary liquidation by the National Credit Union Administration (NCUA). At that time, the Petitioner held share certificates in Franklin amounting to $2.45 million dollars. The Board rejected the Petitioner’s argument that it should be treated as a creditor for purposes of the priority payout schedule and instead ruled that it was a “member to the extent of uninsured shares.” We affirm the Board’s decision. I. The Federal Credit Union Act, 12 U.S.C. §§ 1751 et seq., provides for the chartering and incorporation of federal credit unions, which are defined as cooperative associations organized in accordance with the provisions of the Act for the purpose of promoting thrift and creating a source of credit for provident or productive purposes within the community. Id. at § 1752(1). Federal credit unions must be established to serve a particular defined group having a common bond of occupation or association, or a group within a well-defined neighborhood, community or rural district. Id. at § 1759. The Act also establishes a program of federal credit union share insurance, pursuant to which each member account is insured up to $100,000. Id. at §§ 1781(a), 1787(k)(l). The Act designates the NCUA as the agency with responsibility and authority for administering its provisions, including its insurance program. See generally id. at §§ 1752a(a), 1781(a), 1782(a), 1783(a). The Act provides that the NCUA shall be managed by the National Credit Union Administration Board, id. at § 1752a(a), which shall possess the authority to promulgate “rules and regulations for the administration of this chapter,” id. at § 1766(a), and shall have broad powers to oversee and supervise the operations of the federal credit unions. See, e.g., id. at §§ 1766, 1784. As part of its statutory duties, the Board has adopted the following Priority Schedule to be used whenever a federal credit union is involuntarily liquidated: a. Secured creditors to the value of their collateral; b. Costs and expenses of liquidation; c. Wages due employees of the Federal Credit Union; d. Costs and expenses incurred by creditors in successfully opposing release of the Federal Credit Union from certain debts; e. Taxes legally due and owing to the United States or any state or subdivision thereof; f. Debts due and owing to the United States, including the NCUA; g. General creditors and secured creditors to the extent that their claims exceed their security interest; and h. Members to the extent of uninsured shares and the National Credit Union Insurance Fund. 51 Fed.Reg. 43,383 (1986). The Franklin Community Federal Credit Union was chartered as a federal credit union in 1968 under the Federal Credit Union Act, and was established to serve the community of North Omaha in Omaha, Nebraska. Franklin was designated as a “credit union serving predominantly low-income members” within the meaning of the Federal Credit Union Act, 12 U.S.C. § 1757(6), as a consequence of which it was legally eligible to receive deposits from nonmembers, such as charitable and religious organizations, in order to increase the deposit base in a limited income credit union. Capitalizing upon its “low income” status, Franklin solicited funds from charitable and religious organizations nationwide, representing that shares in Franklin not only would constitute a sound investment, but also would contribute to Franklin’s stated aim of using its funds to help the disadvantaged community that it was established to serve. Over a period of years, a variety of charitable and religious organizations, and other groups, including local governmental units, purchased millions of dollars in share certificates in the Franklin Credit Union. Some of these entities, including Petitioner, obtained shares in excess of applicable insurance limits, apparently, in some cases, on the basis of assurances by Franklin officials that their shares were safe because they were “collateralized by government securities.” Eventually it was discovered that Franklin’s share certificate operation was a fraud. Money expended by charitable, religious, and other organizations in consideration for Franklin share certificates was not being used for legitimate purposes, but instead was being siphoned off for the personal and other improper use by certain individual Franklin officers and employees. In November 1988, the NCUA, acting pursuant to its statutory authority, placed Franklin into involuntary liquidation and appointed itself Liquidating Agent, on the ground that the credit union was insolvent. The Petitioner asserts that it did not seek out Franklin as a depository for its funds, but instead was solicited as a nonmember to place large sums of money in Franklin. For several years, the Petitioner transferred money to Franklin, receiving in each instance a letter from a representative of Franklin indicating that the funds had been received, that a certificate had been issued, and that such deposits were collateralized by United States government securities. The Petitioner claims that it was confident that its money was secure, notwithstanding the $100,000 limit of insurance, because of the collateralization by government securities. Only after the collapse of Franklin did the Petitioner learn that the statements concerning the collateralization were false. In December 1988, following the commencement of the liquidation proceedings, the Petitioner submitted an administrative claim for federal credit union share insurance. The NCUA determined that the certificates were insured by the National Credit Union Share Insurance Fund up to a total of $341,883.02, leaving an uninsured amount of $2,114,596.44. In conjunction with the written receipt of that determination by the NCUA, the Petitioner also received a certificate issued by the NCUA which indicated that the Petitioner was the holder of a claim equalling the uninsured amount. The Petitioner contends that as a result of Franklin’s representations that its deposits were collateralized, it should be considered a secured creditor entitled to first priority under category (a) of the Priority Schedule. The Petitioner argues that each letter from Franklin, signed by credit union officials, indicating that the Petitioner’s deposit was secured by United States government securities, was sufficient evidence of a security agreement. The Petitioner further contends that even if its interest is not deemed “secured,” its claim falls under category (g) as a general creditor. It has been the Petitioner’s consistent position that it is entitled to priority over members of Franklin and the NCUA, and that there are or should be funds available to pay the Petitioner its entire loss as a “creditor” of Franklin in accordance with the Priority Schedule. In the alternative, the Petitioner argues that even if it is not a “creditor,” it is entitled to a priority preference by virtue of equitable constructive trust principles. On March 8, 1990, the Liquidating Agent rejected the Petitioner’s claim for “creditor” status and found instead that the Petitioner was to be treated as a “member” of Franklin because its deposits were insured. On January 17, 1991, the Board upheld the decision of the Liquidating Agent, finding that the Petitioner was a “member to the extent of uninsured shares” within the meaning of the payout priority schedule. II. The Board’s conclusion that Petitioner is a “member” of the credit union for purposes of the payout schedule rested in part on its determination that Petitioner is an insured shareholder whose share certificates constitute “member accounts.” The language of the statute associates “insured accounts” with “members” in a variety of sections. For example, “the term ‘insured account’ means the total amount of the account in the member’s name (after deducting offsets) less any part thereof which is in excess of $100,000.” 12 U.S.C. § 1787(k)(l) (emphasis added). The statute also directs that, “in determining the amount [of insurance] due to any member, there shall be added together all accounts in the credit union maintained by him for his own benefit either in his own name or in the names of others.” Id. (emphasis added). Similarly, section 1781(a) states that the NCUA “shall insure the member accounts of all Federal credit unions.” (Emphasis added). It is undisputed that the Petitioner’s share certificates in Franklin gave rise to an “insured account” within the meaning of the statute. This is evidenced by the fact that the Petitioner applied for such insurance and received an insurance payout of about $350,000. The NCUA therefore contends, and the Board found, that because it is undisputed that the Petitioner held insured share certificates, which thereby constituted a “member account,” it necessarily follows that the Petitioner is in this sense a “member.” Because the Petitioner held shares that were insured in part but not in full, it follows that the Petitioner is a “member to the extent of uninsured shares,” which falls within category (h) of the NCUA’s Priority Schedule. The only provision defining the term “member” appears in 12 C.F.R. § 745, and supports a finding that members and nonmembers are to be treated identically for purposes of classification and treatment of an account. Section 745.1(b) provides in part, “[t]he terms member or members as used in this part mean those persons enumerated in the credit union’s field of membership ... including] those nonmembers permitted under the Act to maintain accounts in an insured credit union.” (Emphasis in original). The definition of “member account” similarly equates members and nonmembers for purposes of classification and treatment of an account: [ A] share, share certificate, or share draft account account [sic] of a member of a credit union ... and, in the case of a credit union serving predominantly low-income members (as defined by the Board), such terms (when referring to the account of a nonmember served by such credit union) mean a share, share certificate, or share draft account account [sic] of such nonmember which is of a type approved by the Board and evidences money or its equivalent received or held by such credit union in the usual course of business and for which it has given or is obligated to give credit to the account of such nonmember.... 12 U.S.C. § 1752(5). Section 1752(5) includes nonmember share certificate accounts in low-income credit unions in its definition of “member account.” Therefore, such insured nonmembers are treated as “members” of the credit union for purposes of classification and treatment of their accounts. We reject Petitioner’s claim that it is a “creditor” of Franklin for the simple reason that the express terms of the Act provide that the Petitioner’s shares constitute equity and not debt. The statute provides that where a federal credit union issues share certificates to a person or organization within or without its field of membership, those share certificates “represent^ equity.” 12 U.S.C. § 1757(6). Therefore, it is clear from the terms of the statute that the Petitioner is an equity holder of Franklin, and not a creditor. We also reject the Petitioner's argument that it cannot be a “member” because it is in fact a “nonmember” within the meaning of 12 U.S.C. § 1757(6). Section 1757(6) provides that where, as here, a federal credit union is designated by the NCUA as a “credit union serving predominantly low-income members,” the credit union may issue share certificates not only to the persons or entities within its limited field of membership, but also to “nonmembers,” such as charitable or religious organizations. The Petitioner correctly asserts that it is a “nonmember” within the meaning of this provision. As a nonmember, the Petitioner had no right to subscribe to shares of stock or to be elected to the membership. 12 U.S.C. § 1759. Further, the Petitioner was not entitled to vote, obtain loans or hold office in the credit union. Id. at §§ 1757(7), 1759, 1760. It is clear that for purposes of its participation in, and governance of, the various credit union activities, the Petitioner was a nonmember that did not share many of the rights and benefits otherwise enjoyed by credit union “members.” It does not follow, however, that the Petitioner is separate and distinct from “members” in all respects. In fact, the Petitioner, although a “nonmember” as defined by section 1757(6), was treated as a “member” with regard to the classification of its account, most notably with respect to the payment of insurance upon liquidation. It necessarily follows that for purposes of classification and treatment of the Petitioner’s account, the Petitioner was treated as a “member” of the credit union. That classification and treatment of Petitioner’s account logically extends not only to the payment of insurance upon the involuntary liquidation of the credit union, but also to the disbursement of the credit union’s assets upon liquidation. We simply cannot overlook the inconsistency in treating the Petitioner as a “member” of Franklin, thereby entitling it to the same insurance benefits as that enjoyed only by holders of “member accounts” and at the same time conferring upon the Petitioner priority creditor status to the detriment of all other insured accountholders whose accounts exceeded the insured limit. By applying for and accepting the insurance available for member accounts, the Petitioner impliedly agreed that its account was a member account and that it was to be treated as a member of Franklin for purposes of classification and treatment of its account. We conclude that the Petitioner was a “member to the extent of uninsured shares” for purposes of distribution under the priority schedule. Any other interpretation would be contrary to the Act and regulations and would result in a grossly inequitable distribution of the liquidation proceeds, at the expense of some of the other accountholders. III. We also reject Petitioner’s argument that it is entitled to the imposition of a constructive trust placed on the assets available at the time Franklin closed. The Petitioner asserts that equity dictates that a constructive trust is appropriate because it was induced by fraud to purchase share certificates in Franklin and because the NCUA was negligent in performing its duty to discover that fraud. Further, it asserts that it suffered harm unique from other depositors in that Franklin’s fraud harmed the Petitioner to a much greater extent than any other depositor, simply by virtue of the amount of its loss. We find Petitioner’s argument to be without merit. First, it has been held that the regulatory activities of a government agency do not give rise to a duty to discover and report possible fraud or wrongdoing. See, e.g., North Dakota v. Merchants Nat’l Bank & Trust Co., 634 F.2d 368, 379 n. 20 (8th Cir.1980) (en banc) (in regulating banks pursuant to the National Bank Act, the Comptroller of the Currency has no duty to a bank or its shareholders). The NCUA was under no duty to discover or warn Franklin shareholders of fraudulent activities, and the Petitioner has no equitable claim based on regulatory negligence. Second, the Petitioner fails to establish that it was the only accountholder of the credit union that was fraudulently induced to purchase share certificates in excess of applicable insurance coverage. Nor did Petitioner suffer a fraud unique from other accountholders by Franklin’s assurances that its certificates would be collateralized by government securities. The record establishes that at least one other account-holder, the Benedictine Sisters of the Annunciation, received similar assurances. Finally, there is no equitable basis for the Petitioner’s argument that it deserves priority over other accountholders because it stands to suffer the most substantial loss. We simply can find no basis in equity for giving the Petitioner a disproportionate advantage over other Franklin shareholders who also suffered losses. IV. Based on the foregoing, we conclude that the Petitioner was properly classified as a member to the extent of its uninsured shares and that it is not entitled to the imposition of a constructive trust in its favor. Accordingly, the judgment of the National Credit Union Board is affirmed. . We note that subsequent to the events occurring herein, the National Credit Union Administration promulgated new regulations governing the involuntary liquidation of federal credit unions. Effective November 7, 1991, the regulatory provision entitled "Payout priorities in involuntary liquidation," deletes the former reference to “members,” and instead provides that for purposes of payout priorities upon involuntary liquidation, “[sjhareholders to the extent of their respective uninsured shares and the National Credit Union Share Insurance Fund to the extent of its payment of share insurance” have equal priority with respect to each other, and have lower priority than either secured or general creditors. 56 Fed.Reg. 56,926 (1991) (to be codified at 12 C.F.R. § 709.5(b)(6)) (emphasis added). We do not rely to any extent upon this change in the regulations for the basis of our decision herein. . At no time did the Petitioner receive copies of the government securities allegedly collateraliz-ing the certificates or any other document identifying these securities or confirming their existence, other than the letters from Franklin.

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

This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". What subcategory of private association best describes this litigant?

Irving Joseph LEE, Appellant, v. UNITED STATES of America, Appellee. No. 18184. United States Court of Appeals Eighth Circuit. July 21, 1966. Rehearing Denied Aug. 24, 1966. Bernard J. Mellman, St. Louis, Mo., for appellant. Morris A. Shenker and Bernard J. Mellman, St. Louis, Mo., were on the brief. Robert J. Foster, Asst. U. S. Atty., St. Louis, Mo., for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief. Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges. GIBSON, Circuit Judge. Irving Joseph Lee was charged in an indictment with having, on the 29th day of September, 1964, received and concealed stolen securities having a value of more than $5,000, which were moving as and constituted interstate commerce from the state of Illinois to the state of Missouri and which he knew at the time of receiving and concealing the securities that they were stolen, all in violation of Title 18, U.S.C. § 2315. Following a verdict of guilty by a jury, he receive/! a three-year sentence of imprisonment. A timely appeal was filed by him. The facts giving rise to the indictment are as follows: The Fairview State Banking Company, Fairview, Illinois, was burglarized sometime between May 2 and May 4, 1964. The vault had been opened and nineteen safety deposit boxes were rifled, and upon examination certain United States Series E Savings Bonds and shares of corporate stock were found to be missing from some of the boxes. On September 18, 1964, the Federal Bureau of Investigation office in St. Louis received information from a confidential source that Lee was offering stolen securities for sale. Upon receipt of this information, the F.B.I. began a “loose” surveillance of Lee and ascertained where he lived, what kind of automobile he drove, learned that his house was up for sale and that he was an ex-bookmaker. During the following ten days more information was received about Lee from the same confidential source. The F.B.I. was informed that the securities which Lee was attempting to sell had been stolen from the burglarized bank in Illinois, and upon learning on September 28, 1964 that Lee would be in a certain restaurant on 12th Street in St. Louis, Missouri, again placed him under surveillance and found him in the company of another person, but he did not have any package, brief case or any type of folder that could have contained the stolen securities. The evening after that meeting in the restaurant, the F.B.I. received further information from the same confidential source, which had proved reliable in the past on other matters. Acting on this information, Agent Smith of the F.B.I., who for the first time saw Lee in the restaurant, went the next morning by Lee’s home and found Lee’s automobile there. During the afternoon of September 29, 1964, the F.B.I. received information that Lee was probably going to sell the securities or dispose of them at the St. Louis airport that evening. This was the first information that the F.B.I. had received that Lee would be at some specific place at a designated time with the securities actually in his possession. This information was disclosed to the United States Attorney in the late afternoon of September 29, 1964, but no application was made to the United States Commissioner for the issuance of a warrant for the arrest of Lee. At about 7:00 p. m. that same evening nine Special Agents of the F.B.I. proceeded to the airport in St. Louis, Missouri, and stationed themselves at various places inside and outside the airport building. At about 9:30 that evening Lee entered the airport lobby, carrying a tan leather brief case. He sat in a lounge chair for about five minutes, walked to a stairway, descended to a lower level and headed toward the east concourse, which contains rooms for departing and deplaning air passengers. At this point Agent Smith touched Lee on the shoulder, identified himself as an F.B.I. Agent, and asked Lee for identification. Lee responded he was “Irv Lee” and produced his credentials. Lee was then asked what he had in the brief case and he replied that he did not know. Agent Smith then placed Lee under arrest, took the brief case from him, handed it to Agent Morley, who opened the unlocked brief case, and briefly glanced at its contents. The agents escorted Lee to the First Aid room at the airport, where he was again informed that he was under arrest. The brief case was again opened and contained therein was found a number of United States Series E Savings Bonds and other securities, which had been in the safety deposit boxes in the Fairview Bank prior to the burglary. The face value of these securities was approximately $100,000.00. Lee was also searched and on his person were found a key to the brief case, a brown paper bag, and a white envelope on which was written “F 71”, “R 849”, “gate” and “Lee”. After this search Lee was taken to the F.B.I. office. All of these exhibits, the brief case, the key, the envelope, the paper bag, and the bonds and securities contained in said brief case were introduced and admitted into evidence over the objection of Lee. Evidence was also introduced that Transworld Air Flight 71, which originated in New York, was scheduled to arrive on September 29, 1964 at 8:49 p. m. but did not arrive until 9:58 p. m. It departed for Tulsa, Oklahoma, at 10:35 p. m. on the next leg of its flight. Prior to trial, Lee filed a motion to suppress the evidence obtained as a result of the search made of his person on September 29, 1964, on the basis that said search and arrest were made without warrant; that if probable cause existed for the arrest of Lee, the Government had ample time to obtain a warrant ; and that the subsequent arrest and search were violative of Lee’s rights under the Fourth and Fifth Amendments to the United States Constitution. This motion was overruled by the trial court, which ruling Lee claims to be in error. Lee also contends the Court erred in instructing the jury that it would be justified if it found that Lee was in possession of recently stolen property in inferring that Lee had knowledge that the property was stolen unless such possession was explained to the satisfaction of the jury, contending that such instruction improperly shifted the burden of proof and improperly required such explanation of possession to be proved to the satisfaction of the jury. The third and last error asserted by Lee is the Court’s failure to sustain Lee’s motion for judgment of acquittal for the reason that the evidence was insufficient to justify a conviction and did not show that the stolen property was moving as and constituted interstate commerce, from the state of Illinois to the state of Missouri. We affirm the conviction. I. The motion to suppress was properly overruled. F.B.I. Agent Smith had probable cause to arrest Lee as he had reasonable grounds to believe that Lee was committing a felony in his presence when he observed Lee at the time and place indicated by the previously reliable informant. The Agent certainly had facts and circumstances within his knowledge, and reasonable trustworthy information sufficient to warrant a man of reasonable caution to believe that an offense was being committed. Lee does not seriously contend the absence of probable cause for the arrest but complains about the absence of a warrant of arrest. Where there is probable cause for the arrest of a person for a felonious offense, the absence of a warrant is immaterial, and, the arrest being valid, the search and seizure that followed was incidental thereto and valid. The mere fact that the Government might have had sufficient time to obtain a warrant for his arrest would not invalidate an otherwise legal arrest with the ensuing reasonable search and seizure. Lee cites in support of his position Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Aquilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which cases deal with a search of the defendant’s dwelling or his residence. The Johnson decision is not applicable as it applies to the search of a person’s home admittedly made without probable cause where the Government attempts to justify the arrest by the search while justifying the search by the arrest. This was condemned by a 5-4 Court. But as noted in Johnson, pp. 14 and 15 of 333 U.S., p. 369 of 68 S.Ct. “There are exceptional circümstances in which, on balancing the needs for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with. But this is not such a case. *./* * No suspect was fleeing or likely to take flight. The search was oi permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction ♦X* * -X- ” Aquilar is not applicable as it is concerned with a defective conelusionary warrant for search of a private dwelling. Lee cites no cases that advance the proposition that the arrest of an individual in a public area and a search of his person incidental thereto, based upon probable cause, is invalid, without a warrant where it had been practicable to obtain a warrant. As noted in Lefkowitz v. United States, 285 U.S. 452, at 465 and 466, 52 S.Ct. 420, at 423, 76 L.Ed. 877 (1932): “The decisions of this court distinguished searches of one’s house, office, papers or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, * * -x- ” The Supreme Court in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) approved the subsequent search of the defendant’s business premises, which were open to the public, without a warrant after a valid arrest made with a warrant. The search and seizure were incidental to the valid arrest and the officers were not bound to procure a search warrant, even though they had time to do so. The Court in addressing itself to this point stated at page 65, 70 S.Ct. at page 435: “It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. * * * ” We find that Lee’s arrest in a public place based on probable cause and the subsequent search that was incidental to the arrest was not an unreasonable search and seizure in violation of the mandate of the Fourth Amendment to the United States Constitution, and the fruits of that search were properly admitted in evidence. An arrest warrant is not required even though there may be time to obtain one when the ensuing arrest is based upon probable cause. The test is one of probable cause for the arrest. See Ford v. United States, 352 F.2d 927 (D.C.Cir. 1965). F.B.I. officers and agents may make felony arrests “without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” 18 U.S.C. § 3052. It is interesting to note that the old § 3052 demanded as a condition to arresting felons without a warrant that there be “a likelihood of his escaping before a warrant can be obtained for his arrest.” United States v. Coplon, 185 F.2d 629, 28 A.L.R.2d 1041 (2 Cir. 1950), cert. denied 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 interpreted this section as requiring a warrant for arrest when there was time to obtain one. Following this decision, in 1951 Congress amended § 3052 and in doing so eliminated the requirement of “a likelihood of his escaping before a warrant can be obtained for his arrest.” This evinced an intent on the part of Congress to allow F.B.I. agents to effectively arrest without resort to a warrant whenever proper probable cause otherwise existed, and was undoubtedly enacted in the interest of more effective law enforcement. In discussing probable cause and the standard to be applied in determining probable cause for an arrest, the Supreme Court in Brinegar v. United States, 338 U.S. 160, at 175, 69 S.Ct. 1302, at 1310, 93 L.Ed. 1879 (1949) said: “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. “ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. De Armit, 99 Pa.St. 63, 69 quoted with approval in the Carroll opinion. 267 U.S. [132] at 161 [45 S.Ct. 280 at page 288, 69 L.Ed. 543, 39 A.L.R. 790]. And this ‘means less than evidence which would justify condemnation’ or conviction * * * [and] has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed. 543].” We realize as stated in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) that there are limits to the permissible scope of a warrant-less search incident to a lawful arrest but we proceed on the premise that if the arrest itself was lawful those limits were not exceeded in the case at bar. And again paraphrasing Beck, the constitutional validity of the search in this case, then, must depend upon the constitutional validity of Lee’s arrest, which depends in turn upon whether, at the moment the arrest was made the F.B.I. agent had probable cause to make it. We think the agent had reasonable, trustworthy information sufficient to warrant a prudent man in believing that Lee had committed and was committing the offense of transporting stolen securities in interstate commerce. II. Part of the Court’s charge to the jury is as follows: “Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may reasonably draw the inference and find in the light of surrounding circumstances that the person in possession knew the property had been stolen * * *» “If you find from the evidence beyond a reasonable doubt that the goods described in the indictment were stolen, and that while recently stolen, the property was in the possession of the accused, the jury would be justified in •drawing from these facts the inference that the goods were possessed by the accused with knowledge that the property was stolen, unless possession by the accused of the recently stolen ■.property is explained to the satisfaction of the jury by other facts and circumstances in evidence.” We think this is a fair statement of the law under the circumstances of this case. The Courts have uniformly held that the possession of the fruits of crimes by an individual recently after the commission of the crime justifies the inference that the possession is with knowledge that the property was stolen. This does not raise a presumption but only an inference from which the jury may find guilty knowledge, unless such possession is explained to the satisfaction of the jury by other facts and circumstances in evidence. See Rugendorf v. United States, 376 U.S. 528, 536-537, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Herman v. United States, 289 F.2d 362, 367 (5 Cir. 1961). The charge did not say that the defendant must explain the possession to the satisfaction of the jury but only that other facts or circumstances as shown in evidence are to be taken into consideration in determining whether possession of stolen property is consistent with innocence or justifies this inference of guilty possession. The Court specifically instructed that the burden of proof remains on the Government throughout the trial and does not shift at any time to the defendant. In Harding v. United States, 337 F.2d 254, 257 (8 Cir. 1964) we approved a similar charge and held that the charge did not have the effect of placing the burden on the defendant to prove his innocence and that the burden of proof did not shift by this type of charge “ * * * which only permitted, but did not require, the jury to infer from appellant’s possession of the [stolen] automobile that he had transported it in interstate commerce.” Lee also contends that the almost five-month lapse of time from the time of the burglary of the stolen securities until his apprehension in Missouri was too long a period to warrant a finding of guilty knowledge that the securities had been stolen. In Van Gorder v. United States, 21 F.2d 939 (8 Cir. 1927), the Court held that eighty-seven days lapse of time after the theft of a United States post office letter box key was too long a period to come under the doctrine of possession of recently stolen property. However, the possession of $100,000 of stolen securities is quite different from the possession of a letter box key. Whether possession is sufficiently “recent” to justify an inference of guilt is a question of fact solely for the jury. Chambliss v. United States, 218 F. 154 (8 Cir. 1914); Boehm v. United States, 271 F. 454 (2 Cir. 1921); United States v. Allegrucci, 299 F.2d 811 (3 Cir. 1962). The facts and circumstances of each case must determine whether the doctrine of possession of recently stolen property is to be applied. We think that five months lapse of time of stolen securities would be well within the permissible time limitation for the application of the doctrine under the circumstances of this case. III. The trial court did not err in overruling Lee’s motion for a judgment of acquittal. In order to find Lee guilty as charged under the indictment, the jury was required to find that the securities in question were moving in interstate commerce from Illinois to Missouri on or about September 29, 1964. The admittedly stolen securities had unquestionably at some time moved from Illinois to Missouri and were found in the possession of Lee at the St. Louis airport, and whether the securities were then moving in interstate commerce was a fact question for the jury’s determination. See Parsons v. United States, 188 F.2d 878 (5 Cir. 1951). The type of articles possessed, the time lapse from the date they were stolen, the type of possession and the manner in which the articles were handled and in the process of being transported are all factors that the jury, can consider in determining whether the articles in question were moving in interstate commerce. We are here concerned with non-negotiable United States Series E Savings Bonds, which require the signature of the owner for cashing and thus are undeniably difficult to dispose of in the ordinary channels of commerce, and which cannot be legally transferred or negotiated in any manner, thus making it doubly difficult to dispose of in some gainful fashion. This fact would have to be considered in dealing with the time lapse question, together with all the other facts and circumstances in evidence, in determining whether the securities were moving in interstate commerce. The only reason for transporting the securities in interstate commerce was to make a sale or some other disposition of them and the interstate character of the securities can and does continue until the reason therefor has been accomplished. The jury here could certainly reasonably find that the securities were still in interstate commerce, as Lee was in the possession of them at the airport with flight information on his person, while he was in the process of approaching the departure and deplaning gate of a scheduled interstate flight. The jury may reasonably conclude from these facts that the stolen securities were in Lee’s possession at the time of his arrest pursuant to an attempt by him to sell or otherwise dispose of them and that their interstate character had not terminated at that time. “The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” (Citations omitted) Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Lee had a fair trial and the evidence is certainly sufficient to warrant the jury in finding him guilty beyond a reasonable doubt. He had the assistance of able employed counsel who adequately represented him and secured for him every legitimate legal benefit to which he was entitled. The judgment is affirmed. . The Fourth Amendment to the Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” . For lapse of time between theft and discovered possession in which the inference of guilty knowledge was permitted to go to the jury, see: Boehm v. United States, 271 F. 454 (2 Cir. 1921) (4 & 9 months); United States v. Allegrucci, 299 F.2d 811 (3 Cir. 1962) (3 months); United States v. DiCarlo, 64 F.2d 15 (2 Cir. 1933) (3 months); Carson v. State, 230 Md. 356, 187 A.2d 103 (1963) (4 months); State v. Brightman, 252 Iowa 1278, 110 N.W.2d 315 (5 months); Mc-Henry v. State, 52 Okl.Cr. 20, 2 P.2d 597 (8 months); State v. Miller, 45 Minn. 521, 48 N.W. 401 (11 months); State v. Jenkins, 213 S.W. 796 (Mo.1919).

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the court declared any statute or administrative action unconstitutional. Only explicit statements in the opinion that some provision is unconstitutional should be used. Procedural violations of the constitution in the courts below are not counted as judicial review (e.g., if the trial court threw out evidence obtained in a search and seizure because of a 4th Amendment violation, the action would not count as judicial review).

Did the court declare any statute or administrative action unconstitutional?

MEREDITH CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and American Federation of Television and Radio Artists, Kansas City/Omaha Local, Intervenor. No. 79-2086. United States Court of Appeals, Tenth Circuit. June 1, 1982. Bruce R. Alper, Chicago, 111. (John P. Jacoby, and Vedder, Price, Kaufman & Kammaholz, Chicago, 111., of counsel, were also on the brief), for petitioner. Jerrold J. Wohlgemuth, Washington, D. C. (Andrew F. Tranovich, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on the brief), for respondent and cross-petitioner. C. David Whipple, Kansas City, Mo. (Julie Lynn Fry of Whipple, Eisler & Kraft, Kansas City, Mo., was also on the brief), for intervenor. Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges. HOLLOWAY, Circuit Judge. Meredith Corporation petitions for review of a decision and order of the National Labor Relations Board (NLRB or the Board) finding that Meredith engaged in unfair labor practices by refusing to bargain with the American Federation of Television and Radio Artists (the Union). The Board filed a cross-application for enforcement of its order and the Union was permitted to intervene. The sole issue is whether the Regional Director erred in finding that Meredith’s television directors and production assistants are not supervisors within the meaning of the National Labor Relations Act (the Act). I In September 1978 the Union filed a petition with the Board seeking an election among Meredith’s directors and production assistants to determine whether such employees desired to be included in the existing bargaining unit of on-air radio and television performers already represented by the Union. Meredith opposed the Union’s demand, contending that the directors and production assistants were supervisors within the meaning of § 2(11) of the Act, 29 U.S.C.A. § 152(11), and therefore not includible in the requested unit. Following a hearing on October 19 and 20 before a hearing officer of the Board, the Board’s acting Regional Director, hereafter referred to as the Regional Director, on November 9 issued his decision finding that the directors and production assistants were not supervisors and directing that an election be held. Meredith’s request that the Board review the Regional Director’s decision was denied. On December 5,1978, the Board conducted a representation election, which the Union won. On December 13 the Board certified the Union as the exclusive bargaining representative for the directors and production assistants and included them within the pre-existing unit already represented by the Union. On or about January 8,1979, and continuing thereafter the Union requested that Meredith bargain collectively with respect to the terms and conditions of employment of the directors and production assistants. Meredith refused to bargain on the ground that the Board’s decision holding that the directors and production assistants were not supervisors was erroneous as a matter of fact and law. On February 15 the Regional Director issued a complaint alleging that Meredith has engaged in unfair labor practices within the meaning of § 8(aX5) and (1) of the Act, 29 U.S.C.A. § 158(aX5) and (1), by refusing to bargain collectively with the Union. After Meredith answered, the Regional Director moved to transfer the proceeding to the Board and for summary judgment. The proceeding was transferred to the Board and the summary judgment was granted on July 9,1979. In its decision and order, 243 N.L.R.B. 323, the Board stated that Meredith was attempting in the unfair labor practice proceeding to raise issues which were specifically considered and resolved in the prior representation proceeding. The Board held that Meredith was not entitled to relitigate these issues and that summary judgment against the company was appropriate. Meredith petitioned for review and the Board made a cross-application for enforcement. The major contention by Meredith is that the directors and production assistants do “responsibly direct” other employees so as to be supervisors within the meaning of § 2(11) of the Act, which the Board denies. II Section 2(11), 29 U.S.C. § 152(11), defines supervisor as ... any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Since this section is framed in the disjunctive, the existence of any one of the listed powers, as long as it involves the use of independent judgment, is sufficient to support a determination of supervisory status. N.L.R.B. v. Dillon Stores, 643 F.2d 687, 691 (10th Cir.). The issue as to whether the directors and production assistants are supervisors was raised before the Regional Director and may be reviewed here. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct. 908, 913, 85 L.Ed. 1251; Bokum Resources Corp. v. N.L.R.B., 655 F.2d 1021, 1023-24 (10th Cir.). Thus the issue before us is whether there is substantial evidence in the record as a whole to support the Regional Director’s finding that directors and production assistants are not supervisors, but employees entitled to the protection of the Act. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456; N.L.R.B. v. Corral Sportswear Co., 383 F.2d 961, 964 (10th Cir.), cert. denied, 390 U.S. 995, 88 S.Ct. 1196, 20 L.Ed.2d 94. Since the determination involves the specific application of a broad statutory term by the agency administering the statute, the finding will be given appropriate weight; the agency must be permitted a large measure of informed discretion. See Marine Engineers Beneficial Assoc. v. Interlake Steamship Co., 370 U.S. 173, 179 n.6, 82 S.Ct. 1237, 1240 n.6, 8 L.Ed.2d 418; Corral Sportswear, 383 F.2d at 963; Furr’s Inc. v. N.L.R.B., 381 F.2d 562, 565 (10th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105; cf., Charles D. Bonanno Linen Service, Inc. v. N.L.R.B., - U.S. -, -, 102 S.Ct. 720, 723, 70 L.Ed.2d 656. The findings of the Regional Director, if not set aside by the Board, are, of course, entitled to the same weight as those of the Board. Bokum Resources, 655 F.2d at 1023. Ill A. The general background of Meredith’s operations Meredith operates two radio stations and a television station in Fairway, Kansas. The five directors and five production assistants, whose supervisory status is at issue, work in the,television operation which includes a commercial video operation. The television station is under the overall operation of the general manager and is divided into a number of separate departments including the engineering department and the production department. The engineering department is headed by the chief engineer and contains many of the employees who operate technical equipment. The directors and production assistants in question work in the production department, which is headed by the program manager. Directly under the program manager in the production department are the production manager and the assistant production manager. The directors and production assistants work under and directly report to all three persons — the program manager, the production manager and the assistant production manager. The only other members of the production department are five stagehands. The parties have stipulated that the general manager, the program manager, the production manager and the assistant production manager are supervisors within the meaning of the Act. As noted, there are five directors whose status is at issue. One directs the weekday newscasts, two direct commercial productions, and two direct the weekend newscasts and assist with the weekday newscasts and commercial production. The particular duties and responsibilities of the directors vary to some degree, depending on whether they are directing newscasts or commercial productions, but there are also some functions concerning personnel matters that are common to all of the directors. We will first discuss the distinct duties and responsibilities of the commercial and newscast directors and then their common functions concerning personnel matters. After the latter discussion we will describe the duties and responsibilities of the production assistants. We will first survey briefly the legal test of the power “responsibly to direct” other employees within the meaning of § 2(11). B. The test as to the power “responsibly to direct” The § 2(11) power which Meredith argues is possessed by the individuals in question is the power “responsibly to direct” other employees. Thus the issue before us is whether the directors and production assistants responsibly directed other employees, and in that connection, whether they exercised independent judgment. Responsibility is defined as being “ ‘answerable for the discharge of a duty or obligation. Responsibility includes judgment, skill, ability, capacity and is implied by power.’ ” Monongahela Power Co. v. N.L.R.B., 657 F.2d 608, 613 (4th Cir.), quoting from Ohio Power Co. v. N.L.R.B., 176 F.2d 385, 387 (6th Cir.), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553. It is not, however, responsibility per se or the exercise of independent judgment or discretion which identify a supervisor; the responsibility for directing other employees is the critical factor. Exxon Pipeline Co. v. N.L.R.B., 596 F.2d 704, 705 (5th Cir.). Moreover, in directing other employees, a person is a supervisor only if he directs qua employer or qua representative of the employer, such as a foreman might do. Westinghouse Elec. Corp. N.L.R.B., 424 F.2d 1151, 1156 (7th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62. We believe the test is clearly stated in Goldies, Inc. v. N.L.R.B., 628 F.2d 706, 709 (1st Cir.): “The test must be the significance of his judgments and directions.” [citation omitted]. This sounding is to be taken with respect to the fundamental twin principles that a supervisor represents the interests of his employer vis-a-vis other employees and is not “one of the gang who merely gives routine instructions.” C. The directors’ functions in commercial productions We turn first to the question whether the directors’ functions in commercial productions reveal the power “responsibly to direct.” When working on a commercial production, the director is assigned to a specific project by the production manager or assistant production manager, who also book these projects. Each production crew contains some individuals from the production department and the engineering department. Those from the production department are assigned by the production manager or assistant production manager. The chief engineer assigns the technicians from engineering. The director can request certain individuals for the project. The requests are usually honored by the production department, but not by engineering. The director contacts the client or the advertising agency to make any necessary pre-production plans. At least 95% of the commercials are done through an ad agency, which not only provides a producer who is not a Meredith employee but also prepares a script in advance. The script sets forth the format and content for the particular commercial. On some occasions the agency will also supply the director with a storyboard that visually explains the script. The storyboard contains actual drawings of how each frame of the commercial should look. In the cases where the customer does not go through an advertising agency, a station salesman provides the director with a script and acts as the producer. During actual filming of the commercial the director gives other members of the stage crew instructions. For example, he gives instructions concerning camera angle, lighting, the actor’s dress and makeup. The director, however, does not personally know how to operate all of the equipment used by the technicians. The director produces the commercial within the parameters of the script and storyboard and must ultimately meet the producer’s specifications and satisfaction. The director at times does suggest to the producer ways to improve the commercial product, but the authority to make changes lies solely with the producer. During taping of the commercial the director is primarily responsible for coordinating the efforts of the various production crew members to reach the result desired by the producer. The final responsibility of the program’s content, however, does not rest with the director, but the producer. The producer is present throughout the session, (III R. 86), and is constantly giving advice on what he likes and doesn’t like. Final responsibility and approval is with the producer. (Ill R. 88-99, 171). Beyond the issue of the power to determine the commercial’s content, there was evidence concerning the authority of the director to determine the work schedule of the production crew. The production manager, Carl Chance, testified that at the completion of a session the director “usually... tells the crew the session is over, releases the crew.” (Ill R. 21). He also stated that the director is the person who determines whether a production session will extend past normal working hours. According to Mr. Chance, a director does not have to get his approval to have the crew members from the production department work overtime, but crew members from the engineering department must obtain approval from their supervisor. When an overtime situation arises, a director on some occasions will notify Mr. Chance or his assistant, but at other times he won’t — prior approval according to Mr. Chance is not required. (III R. 21-23; 192-93; 200-03). The production manager testified similarly with respect to the decision to begin a production session prior to normal business hours. He stated that a director may determine, after talking with the agency producer, that a session may need to start early. In most instances the director will notify the production manager or his assistant of the change because the engineering department will have to be notified so they can adjust their schedules. Mr. Chance again stated that he did not require the director to obtain advance approval of the change. (Ill R. 192, 200). Mr. Chance also noted while it was preferable for him to personally notify the head of the engineering department to arrange a schedule change, less formal means of notification were acceptable. (Ill R. 200-201). Thus there was testimony from the production manager, Mr. Chance, that the directors had authority to determine the work schedules of the commercial production crew. There was, however, testimony from one director denying this authority. Lanny Ross testified that the agency producer makes the decision to extend the session past normal working hours; that the producer decides whether he is willing to pay the Meredith people for staying over. Mr. Ross then stated that if the producer decided to extend the session, the director would contact the production manager or his assistant and tell them the session would be extended. A member of the engineering crew, the production manager or the assistant production manager would then notify the chief engineer or his assistant. Mr. Ross also stated that he would inform his “production crew” that we are staying late, and that the “engineering crew” would get notification from their supervisors. (Ill R. 108-09). Mr. Ross gave similar testimony concerning the decision to cancel a session caused by some part of the production process not being ready on schedule. While Ross characterized the decision to cancel as a “dual decision” by the producer and the director, his subsequent testimony indicated that authority was actually held by the producer. (Ill R. 113-14). In resolving the conflict between the testimony of Ross and Chance, the Regional Director apparently placed more reliance on the testimony of the director Ross. In his findings the Regional Director stated (I R. 332): In the event production extends past normal working hours, the decision to do so rests with the client. For reasons discussed in Part IV, infra, we conclude that, under the proper test, the evidence as a whole concerning the directors’ functions in commercial productions supports the conclusion that the directors do not “responsibly direct” other employees. D. The directors’ functions in newscast productions The responsibilities of the news directors are similar to those of the commercial directors. Overall responsibility for organizing and producing newscasts rests with the news producer, who, unlike the commercial producer, is a Meredith employee. The director’s duty is to see that the show goes off smoothly. When the news director first arrives at the station he obtains a copy of a log listing all the programming and commercial material to be broadcast that day. Based on the log he prepares a commercial format and distributes copies to people that need to have it. The director then gets several copies of the show format from the news producer. This format contains specific instructions as to the order in which the news stories will be presented, the amount of time allocated to each story, and the anchor-person who will present the various videotapes or special features used to accompany each story. The director makes markings on the show format in a process called “blocking.” These markings describe which cameras and angles to use, when to insert graphic displays, and whether a specific microphone is needed. The director also obtains a copy of the script, which is prepared by the on-air performers, and discusses with them any special needs or problems that they may have with the broadcast. He also talks with the videotape editors to see if they have the correct tapes and if the equipment is working properly. At this time the director gives a copy of the show format and a copy of the tape list, to the videotape operator. During actual production of the newscast the news director sits in the control room and wears a headset through which he is able to communicate with all crew members. The control room contains several video monitors which display all the video sources that might be used including slides, videotapes, and cameras. The director gives verbal instructions to crew members as to what type of picture, sound or videotape will be needed for the upcoming news story. The producer sits next to the director in the control room. The producer is concerned with the timing of each story and is responsible for making decisions from the control room regarding the order of the stories presented. (Ill R. 49). Moreover, in the event of late-breaking news mandating a change in the content of the newscast, the producer makes the necessary decision. The responsibility to change the content of the newscast lies with the producer. Although the director may suggest an appropriate spot to place the late-breaking story, the decision is made by the producer. (Ill R. 68). Thus the director does not have authority over the content of the show, but is responsible for the visual quality or artistic balance of the show. (Ill R. 41, 70). In this connection he gives instructions to the technicians and on-air performers, but the producer is the person in charge. (Ill R. 165). Again, under the authorities discussed in Part IV, infra, we feel the record supports the conclusion that the functions of the directors in newscasts do not demonstrate that they “responsibly direct” other employees. E. The directors’ functions concerning personnel actions None of the directors attend management meetings. (Ill R. 96). They do not have the authority to handle grievances of other employees, nor do they hire, fire, discipline, transfer, promote, demote, assign or lay-off any of the other production crew employees they work with. The decision to take these actions lies solely within the control of the production manager or the assistant production manager. (Ill R. 55-57, 96-99, 173, 218-19; see id. at 75). The Regional Director also found that the directors did not effectively recommend such actions. (I R. 332). While there is some conflict in the testimony, this finding is supported by substantial evidence. Two of the directors who testified were asked to explain what action they took when a member of the crew was not properly performing his duties. Each testified that he complained about the problem, but that very little had been done as a result of his complaint to correct the problem. One of the directors testified that he had twice complained to chief engineer about problems involving a “technical person.” He stated that the complaints had “been recognized but not really acted upon.” (Ill R. 57; see III R. 56-57, 97-98). Carl Chance, the production manager, testified that directors had the responsibility to inform the production office of problems concerning equipment or personnel, and that they had written memos containing this type of information. (Ill R. 212; see II R. 299-300). Chance stated that after obtaining the information and gaining an understanding of the problem, he would contact the department in which the problem existed to effect a change. (Ill R. 214). Chance testified that the engineering department was out of his realm, and that he had to go through department heads in requesting a change. (Ill R. 218-19). Chance also related one instance where a cameraman was removed based upon complaints received from directors. Chance asserted that the input from the directors had caused the removal, but acknowledged that complaints had also come from an assistant production manager, which is a management and supervisory position. Chance had also received complaints from an advertising agency customer and from stagehands. (Ill R. 214-220, 238-245). We conclude that there was substantial evidence supporting the Regional Director’s finding that directors do not effectively recommend pérsonnel actions such as firing, disciplining or demoting. While there was evidence that the directors had the responsibility to bring problems to the attention of the production manager, the Regional Director could reasonably find that these complaints did not effectively result in actions to correct the problem. The record only contains evidence as to one occasion when directors had complained about an employee who was subsequently dismissed. In this instance, however, the production manager had received complaints from others including an assistant production manager who was a member of management, an advertising agency, and several stagehands. Moreover, the authority to dismiss the cameraman was held by the engineering department, which was not under the control of the production manager, much less the control of the directors. Under the authorities discussed in Part IV, infra, we feel the record supports the conclusion that the functions of the directors concerning personnel matters do not demonstrate that they effectively recommend personnel actions or “responsibly direct” other employees. F. The production assistants’ functions in commercial and newscast productions Production assistants perform various functions, one of which is to “floor direct” commercial sessions and newscasts. The floor director acts as an extension of the director, who is in the control room. Thus the floor director is in charge of the actual movements on the studio floor. He indicates what camera is on, determines whether the microphones are working and in the proper location, relates problems that arise on the floor to the control room and vice versa, and gives time cues to the talent. In addition, the production assistants act as director for all night-time production work, and some commercial sessions, newscasts, public service programs and station promotions. When engaged in directing, their basic functions and responsibilities are the same as a full-time director. Production assistants also perform other functions not involving the direction of other employees. They operate a chyron character generator, a computer which generates letters or graphics which are superimposed on the screen. Other duties include labeling tapes and producing photographic slides. As with full time directors, production assistants do not attend management meetings, schedule their own overtime, handle grievances of other employees, or hire, fire, transfer, promote, demote, lay-off, reward or take disciplinary action against other employees. (Ill R. 159-60). For reasons spelled out in Part IV, infra, we conclude that the record supports the determination that the production assistants’ functions do not show that they “responsibly direct” other employees. IV The validity of the conclusion that the directors and production assistants do not “responsibly direct” other employees We feel that Regional Director followed the correct principles in the findings he made. He cited two cases for the proposition that the directors and production assistants were not supervisors. They stand for the proposition that television directors with duties similar to those here do not responsibly direct others because their direction is either routine in nature or motivated by artistic effect, the director’s authority being limited by pre-existing production policies or the detailed guidelines of a script. In Westinghouse Broadcasting Co., Inc. (WBZ-TV), 215 N.L.R.B. 123, the issue was whether “producer/directors” were supervisors. These individuals acted as both producers and directors, but when acting as directors their duties were substantially the same as those of the directors in this case. There the Board stated, id. at 125-26: Producer/directors in the present cases do instruct members of a production crew in preparation for and during actual filming of a television show. The instruction given, however, is either routine in nature or motivated by artistic effect. It is clear that the producer/director is limited by preexisting production policies or the detailed guidelines of a script. Under such conditions producer/directors use no independent judgment and serve merely as conduits in issuing orders which crew members, each supplied with a script, already anticipate and are independently capable of achieving. Other directions which describe a desired artistic effect may not contain the precise information necessary for their technical fulfillment. In fact, the producer/directors are not themselves endowed with the technical expertise necessary to execute many of their own directions. * * 5k * * * We conclude from the entire record in these cases that producer/directors function not as supervisors, but as part of an integrated production team, each member of which is independently capable of executing his assignment. In Post-Newsweek Station WPLG-TV, 217 N.L.R.B. 14, the Board again held that producer/directors were not supervisors, stating, id. at 14 n.3: Programming at WPLG is essentially a collaborative effort, and while a producer/director may have considerable input into such effort his role is far short of exclusive control... The range of authority is circumscribed as in [Westinghouse (WBZ-TV) ]. The Board’s position was explained further in Westinghouse Broadcasting Co., Inc. (KDKA-TV), 216 N.L.R.B. 327, where it stated (id. at 329): The directions given by KDKA directors are routine technical or aesthetically motivated commands made pursuant to preconceived production guidelines which have been approved by higher authorities; the instructions are independently executed by technical personnel already acquainted with the production plan who are endowed with skills not generally native to the director. Moreover, the Board has denied supervisory status to directors with similar duties in several other cases. Taft Broadcasting Co., 226 N.L.R.B. 540, 542 (1976); Westinghouse Broadcasting Co., Inc. (WJZ-TV), 218 N.L. R.B. 693 (1975); Golden West Broadcasters, 215 N.L.R.B. 760, 761-62 (1974); and a Board decision on this issue was upheld by the Second Circuit. Westinghouse Broadcasting Co., Inc., KYW-TV v. N.L.R.B., 503 F.2d 1055 (2d Cir.), enforcing, 209 N.L.R.B. 788 (1974); see generally Annot., 48 A.L.R. Fed. 45, 87-97. We find no basis for distinguishing this case from these post-1974 Board cases, which we accept. The authority of Meredith’s directors is governed by the producer’s control over content. The news director must give instructions in accordance with the show’s format, which is prepared by the producer, and changes from the format must be approved by the producer. The directions given by the director relate to the type of picture, sound or videotape to be used for the upcoming story, but the producer is in charge. The same can be said with respect to the commercial director. He gives directions within the parameters of the script or storyboard given to him by the advertising agency producer. The director is responsible for coordinating the efforts of the various production crew members to reach the result desired by the producer. The evidence as to the director’s authority to begin a session before or extend a session after normal business hours is mixed. There was, however, substantial evidence showing that these decisions were made by the producer, not the director. The fact that the producer is not a Meredith employee is not significant because the producer’s control over production is clearly in accordance with Meredith company policy. We feel that the Regional Director could reasonably find that each director was merely “one of the gang who gives routine instructions.” Goldies, Inc. v. N.L.R.B., 628 F.2d at 709, and that they did not responsibly direct other employees as the employer or as his representative. Westinghouse Electric Corp. v. N.L.R.B., 424 F.2d 1151, 1156 (7th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62. The case before us is unlike American Broadcasting Cos., Inc. v. Writers Guild of America, West, Inc., 437 U.S. 411, 414-15 nn.1 and 2, 419 n.8, 421-22, 434, 98 S.Ct. 2423, 2426-2427 nn.1 and 2, 2428 n.8, 2429-2430, 2436, 57 L.Ed.2d 313, where the Court, in reversing the denial of enforcement, indicated that television and film directors with much greater authority and responsibility than the Meredith directors were supervisors. While the issue is troublesome here and the Regional Director might have reached a different result, we must remember that the Regional Director is permitted a large measure of informed discretion on such judgments. We cannot say there was an abuse of discretion here. There was substantial evidence tending to show that the directors functioned merely to coordinate other members of the production team. For example when one director was asked his relationship to a commercial production, he testified (III R. 176): [I]t’s a joint venture with the, six or seven professionals. I’m acting as a facilitator and just conveying information from the producer to these other professionals. While there was other evidence tending to show that the responsibility of the director was greater than this description, the evidence as a whole supports the finding that the directors were not supervisors. Meredith points to several older Board decisions finding television directors to be supervisors. Great Western Broadcasting Corp., 192 N.L.R.B. 1203 (1971); WTAR Radio-TV Corp., 168 N.L.R.B. 976 (1967); Radio & Television Station WFLA, 120 N.L.R.B. 903, 905 (1958); Northwest Publications, Inc., 116 N.L.R.B. 1578, 1579 (1956); WTOP, Inc., 114 N.L.R.B. 1236 (1955); American Broadcasting Co. (KGO-TV), 94 N.L.R.B. 100 (1951). The Board responds that these cases involved directors with far more control over the production crew employees and more authority over the actual production than is found in the instant case and are therefore factually distinguishable. The Board, in fact, distinguished its earlier opinions in Westinghouse Broadcasting Co. (WBZ-TV), 215 N.L.R.B. at 123, 125: Prior Board decisions which have found that Producer/directors or directors do responsibly direct other employees are factually distinguishable. The production roles of individuals considered therein typically involved authority tantamount to “full responsibility from the planning stage through the presentation on the air.” [Great Western Broadcasting Corp., 192 N.L.R.B. 1203]. The responsibilities of producer/directors at WBZ... are far more circumscribed. We have examined the older cases cited by Meredith, and do not find them persuasive here. Meredith also takes issue with the Board’s position as announced in its post-1974 decisions, that direction of employees which is motivated by “artistic effect” does not qualify as responsible direction within the meaning of § 2(11). Meredith points to statements made by the Board in Westinghouse Broadcasting Co., Inc. Co. (WBZ-TV), 215 N.L.R.B. at 125, one of the cases relied on by the Regional Director below, and Golden West Broadcasters, 215 N.L.R.B. at 761, both of which were noted above. In Westinghouse, the directors’ instructions were characterized as being “either routine in nature or motivated by artistic effect.” In Golden West the Board stated that the “instructions are routine or artistic in nature.” Meredith concedes that their directors are motivated by artistic considerations but argues that the directors’ responsible direction is not lessened thereby. Meredith places reliance on the dissent of Board Member Kennedy in Golden West. (Brief of Appellant at 20-22; Reply Brief at 8-11). Meredith also says that the “responsibly to direct” language was intended to be construed broadly to insure that management had the undivided loyalty of its supervisors, citing 93 Cong.Rec. 4804 (1947); H.R.Rep.No.245, 80th Cong., 1st Sess. 16, 17 (1947); Beasley v. Food Fair of North Carolina, 416 U.S. 653, 660-62, 94 S.Ct. 2023, 2027-2028, 40 L.Ed.2d 443; Ohio Power Co. v. N. L. R. B., 176 F.2d 385 (6th Cir.), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553. (Brief of Appellant at 12-14, 22-24; Reply Brief at 10-11). While it is troubling that the Board in its post-1974 decisions has failed to explain convincingly why an artistic motivation deprives directors of supervisory status, we feel the artistic motivation point is not of controlling importance here. It is only one of several factors noted by the Regional Director with respect to the commercial directors’ functions, and is not mentioned in connection with the news directors. The Regional Director expressly relies, as does the Board in its post-1974 decisions, on the limitations placed on the directors’ authority. In the post-1974 decisions the Board refers to limitations imposed by pre-existing production policies or detailed guidelines of a script. Although there is little evidence here as to pre-existing production policies, there was substantial evidence concerning the constriction of directors’ responsibility by scripts, storyboards and the ultimate authority of the producers. Thus the Regional Director could reasonably find that each director was merely “one of the gang who gives routine instructions.” Additionally, we are not persuaded by Meredith’s argument concerning legislative history. The Ohio Power Co. case relied on by Meredith states that the language of the statute is clear and that resort to legislative history is not required, although the court there held against the Board on a “responsible direction” of employees question. 176 F.2d at 387-88. Moreover, the Regional Director’s decision is consistent with the statute’s legislative intent, as asserted by Meredith. The statutory purpose is adequately served by recognizing supervisory status only in those who represent the interests of the employer vis-a-vis other employees and are not “one of the gang who merely gives routine instructions.” See Goldies, Inc. v. N. L. R. B., 628 F.2d at 709. In sum, we hold that Regional Director’s finding that the directors are not supervisors is supported by substantial evidence. What we have said about directors applies equally to the production assistants. When a production assistant directs other employees, he does so in a manner similar to that of a director. Thus the finding that production assistants

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"?

MOHAWK EXCAVATING, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents. No. 356, Docket 76-4068. United States Court of Appeals, Second Circuit. Argued Dec. 28, 1976. Decided Feb. 8, 1977. Thomas C. Marshall, New Britain, Conn. (Weber & Marshall, Barry L. Thompson, Jr., New Britain, Conn., of counsel), for petitioner. Nancy L. Southard, Atty., U.S. Dept, of Labor, Washington, D.C. (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, U.S. Dept, of Labor, Washington, D.C., of counsel), for respondents. Before SMITH, ANDERSON and TIMBERS, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: Mohawk Excavating, Inc. (“Mohawk”) petitions for review of a final order of the Occupational Safety and Health Review Commission (“the Commission”). The order finds that Mohawk violated the Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 651 et seq., and imposes a $75 penalty. Mohawk claims that the Commission’s finding is not supported by substantial evidence on the record and that the Act is unconstitutional. We find no merit in Mohawk’s claims and order the Commission’s order enforced. I. On June 24,1974 Harold Smith, the Commission’s Area Director, inspected a sewer trench that Mohawk was digging in En-field, Connecticut and then cited Mohawk for two “non-serious” violations of the Act; he proposed a civil penalty of $75 for each violation. Mohawk contested both violations, and on March 27, 1975 a hearing was held before an Administrative Law Judge (“ALJ”). On October 29, 1975 the ALJ affirmed one violation and its $75 civil penalty and vacated the other violation and its proposed penalty. On February 11,1976 the Commission approved the ALJ’s decision. Pursuant to § 660(a) of the Act, Mohawk petitions this court for review of the Commission’s final order. This appeal involves Mohawk’s alleged failure to have an adequate exit from the trench, in violation of 29 C.F.R. § 1926.-652(h). Section 660(a) of the Act says “the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record, considered as a whole, shall be conclusive.” The government relies on several photographs and the testimony of Smith to support the ALJ’s findings. The trench was approximately 35 feet long, 14 feet, 5 inches deep, 8 feet wide at the top, and 5 feet wide at the bottom. Inside the trench was a steel “trench box,” which was 16 feet long, 10 feet high, and weighed 6 to 7 tons. Its sides were constructed of steel plates which were framed vertically and horizontally with steel girders, or “I” beams. The vertical distance between the “I” beam supports was from 2 to 3 feet. The vertical distance from the bottom of the trench to the lowest “I” beam was 4 to 5 feet. There was no ladder in the trench. Workers left the trench by using the “I” beams as steps to climb up the side of the trench box. Based on these undisputed facts, the ALJ found “the ‘first step’ of this means of exit less than desirable or adequate.” (Appendix at 10). He suggested that Mohawk could weld a metal ladder to the inside of the trench box and observed that Mohawk had done this on some of its other trench boxes. Noting that Mohawk’s foreman had immediately put a ladder into the trench when Smith indicated the need for one on June 24 and that Mohawk had paid without protest penalties for a previous “serious” violation and a previous “non-serious” violation, the ALJ concluded that the $75 penalty for this violation was appropriate and reasonable. To refute the ALJ’s findings, Mohawk relies on the testimony of its President, two of its employees, and two engineers, all of whom said that climbing up the “I” beams was an adequate and safe way of leaving the trench. Mohawk says that Smith “did not go into the trench (or try to get out of it). . . . There is no evidence in the record that Mr. Smith bothered to have anyone try it or that the trial judge [ALJ] tried it. ... ” (Appellant’s Reply Brief at 1). There is no requirement that the trier of fact go to the scene of the alleged violation, especially when, as here, the condition of the trench at the time of the hearing was probably very different from its condition at the time of the alleged violation. The trier of fact — whether a judge or a jury — can weigh the photographs that are in evidence along with the testimony of Mohawk’s witnesses. We have examined all the evidence on the record and conclude that there is substantial evidence on the record considered as a whole that Mohawk violated 29 C.F.R. § 1926.652(h). The photographs and testimony of the height of the “first step” taken in conjunction with the statements of the foreman and the use of ladders in other boxes are quite sufficient to overbalance the evidence of Mohawk in this regard. II. We turn now to' Mohawk’s claims that the Act is unconstitutional. Section 658(a) of the Act authorizes the Secretary of Labor (“the Secretary”) to issue a citation before holding a hearing, and § 659 of the Act authorizes the Secretary to notify the employer, prior to a hearing, of the proposed penalty. Relying on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Mohawk argues that this procedure violates the due process clause of the fifth amendment by not providing for a prior hearing. Mohawk’s argument ignores more recent cases which hold that in some situations due process requires only a prompt, not a prior hearing. Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975); Arnett v. Kennedy, 416 U.S. 134, 157, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Mathews, supra, 424 U.S. 335, 96 S.Ct. 903, sets out three factors a court should consider in deciding whether the fifth amendment requires a prior hearing: “first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mohawk is unclear as to what interest is affected by the procedure authorized by the Act. At any stage of the proceeding an employer accused of violating the Act can voluntarily pay the proposed penalty. If the employer refuses to pay voluntarily, § 666(k) of the Act authorizes the government to bring a civil action in the United States District Court to recover the penalty. Mohawk has not yet paid the $75 civil penalty. The litigation costs to Mohawk are presumably the same whether the citation and proposed penalty are assessed before or after a hearing, since in either case Mohawk would presumably wish to present its evidence and legal arguments. Perhaps Mohawk’s interest in a prior hearing is in avoiding the stigma of being identified as an alleged violator of the Act. The ALJ affirmed one violation and vacated the other. There is, however, nothing in the record indicating what stigma, if any, has attached to Mohawk from the issuance of the citation which was vacated by the ALJ. On this record there is no indication of a risk of an erroneous deprivation of Mohawk’s interest. We have already pointed out that “the broad purpose of the Act [is] ‘so far as possible’ to assure ‘every working man and woman in the Nation safe and healthful working conditions. . . ' ' '' Brennan v. OSHRC, 513 F.2d 1032, 1038 (2d Cir. 1975). Considering this purpose along with the risk of an erroneous deprivation of Mohawk’s interest, we hold that §§ 658 and 659 of the Act do not violate the fifth amendment’s due process clause. Brennan v. Winters Battery Manufacturing Co., 531 F.2d 317, 324-325 (6th Cir. 1975), cert. denied sub nom. Winters Battery Manufacturing Co. v. Usery, Secretary of Labor, 425 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 (1976); Beall Construction Co. v. OSHRC, 507 F.2d 1041, 1045 (8th Cir. 1974); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 11 (4th Cir. 1974). III. Section 666 of the Act enumerates both civil and criminal penalties. Under § 666(c) of the Act, Mohawk was assessed a civil penalty of $75. Relying on the seven criteria for determining whether a penalty is criminal, as set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), Mohawk argues that this is actually a criminal penalty and thus, under the sixth amendment, a jury trial is required. We recently rejected a similar claim: that civil penalties imposed under the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 41 et seq., were in fact criminal. We said, “[W]hen Congress has characterized the remedy as civil and the only consequence of a judgment for the Government is a money penalty, the courts have taken Congress at its word. ... In the face of a long line of contrary authority, appellants have not directed our attention to any civil penalty provision that has been held sufficiently ‘criminal’ in nature to invoke the protections of the Sixth Amendment.” United States v. J. B. Williams, Inc., 498 F.2d 414, 421 (2d Cir. 1974). Mohawk has failed to meet the test set forth in J. B. Williams. We hold that the penalty authorized by § 666(e) of the Act is not a criminal penalty. Clarkson Construction Co. v. OSHRC, 531 F.2d 451, 455 (10th Cir. 1976); Brennan v. Winters Battery Manufacturing Co., supra, 531 F.2d 325; Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1205 (3d Cir. 1975), cert. denied on this issue, 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976); Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 994-1011 (5th Cir. 1975), cert. denied on this issue, 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976); Beall Construction Co. v. OSHRC, supra, 507 F.2d 1044. IV. Mohawk invites us to follow the dissenting opinion in the en banc decision in Frank Irey, Jr., Inc., supra, 519 F.2d 1219-1225, and to hold that the Act violates the seventh amendment because it does not provide for a jury trial. The government urges us to hold that the seventh amendment does not apply to any of the proceedings under the Act. The Supreme Court has granted certiorari on this question, 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976), and has heard oral argument on it, 45 U.S.L.W. 3412 (Nov. 29, 1976). We have considered whether we may avoid the constitutional question by so interpreting the Act that a jury trial is available. While an argument might be made to this effect in the light of the provision for collection proceedings in the district court and the failure of the legislative history to mention the issue, we conclude that the more likely interpretation is that the Congress meant that the determination of violation and penalty be made in the administrative process and that the district court action be solely a collection procedure. The provision in § 660(a) that the judgment and decree of the court of appeals shall be final, and the remarks of Representative Steiger (Legislative History of the Occupational Safety and Health Act of 1970, S. 2193, P.L. 91-596 at 1220, 91st Cong., 2d Sess., Subcommittee on Labor of the Senate Committee on Labor and Public Welfare (1971) [hereafter “Legislative History”]), referred to later herein, accord with that interpretation. The Act provides two routes for judicial enforcement of a final order by the Commission. Section 660 of the Act provides that either “any person adversely affected or aggrieved by an order” or the Secretary may petition a United States Court of Appeals for review of the Commission’s order. If the court of appeals enters a decree upholding the order, then § 660 contemplates the possibility of a contempt proceeding if the decree is not obeyed, and as part of the contempt proceedings, the court of appeals is authorized to assess the proposed civil penalty. Section 666(k) of the Act also authorizes the government to bring a civil action in a United States District Court to recover any civil penalties that are owed. These two sections of the Act reflect a compromise between the Senate bill and the House of Representatives bill, and the legislative history on their meaning is limited and not entirely clear. Section 10 of the Senate bill (S. 2193) provided for judicial enforcement only via a court of appeals and contempt proceedings. See S.Rep. No. 91-1282, 91st Cong., 2d Sess. (1970), reprinted at 1970 U.S.Code Cong. & Ad.News, pp. 5177, 5191, 5210-11. Section 11 of the Committee bill in the House of Representatives (H.R. 16785) provided for judicial enforcement only via a district court “by restraining order, injunction, or otherwise.” Both H.R. 16785 and the Committee’s analysis of it, H.R.Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in Legislative History, are silent as to whether there shall be a jury trial in the district court (see H.R.Rep. No. 91-1291, 24-26, 40-41, Legislative History, 854-56, 870-71). The House of Representatives did not adopt H.R. 16785. Instead it adopted H.R. 19200, which was offered as an amendment by Representatives Steiger and Sikes. Section 13 of H.R. 19200 provided for both review of the Commission’s order in a court of appeals and suits in a district court to collect civil penalties; it also gave the district court jurisdiction to provide “additional relief as the court deems appropriate” to carry out the Commission’s order. Nothing in the debate in the House of Representatives explained this provision of H.R. 19200 and why it differed from H.R. 16785. The Conference Report, No. 91-1765, 91st Cong., 2d Sess. (1970), reprinted at 1970 U.S.Code Cong. & Ad.News, pp. 5228, 5235, indicates that the House of Representatives agreed to contempt proceedings in a court of appeals and the Senate agreed to a suit in a district court to collect civil penalties. The provision in H.R. 19200 authorizing the district court to grant “additional relief” was deleted and the text changed. The only explanation of § 17(m) of the Conference bill, which is § 666(k) of the Act, during the Congressional debate on the Conference bill is Representative Steiger’s brief explanation: “It should also be made clear that the provision for judicial review and enforcement of the Commission’s orders contained in section 11 are exclusive. Section 17(m) authorizing actions in the name of the United States for the collection of penalties should be construed narrowly and is intended to be limited to any collection process which may be necessary in order to actually collect the penalty.” Legislative History, 1220. There is no reference to this provision during the Senate debate on the Conference bill. The government argues: It seems obvious that “jury trials would ‘dismember’ the statutory scheme” of OSHA [the Act] by inhibiting the development of safety and health expertise; dispersing enforcement determinations into hundreds of district courts creating manifold opportunities for delay and forum shopping; and injecting prohibitive costs into a streamlined procedure designed to afford cheap and easy adjudication to employers and employees alike. (Appellee’s brief at 19, footnotes omitted). The government’s fears of vast amounts of jury litigation and consequent crippling of safety enforcement may be overdrawn. However, the salutary health and safety purposes of the Act, the adaptability of the administrative process to their implementation and the relative meagerness of the penalties authorized lead us to adhere to the view we tentatively indicated in the Williams case and to join the Third Circuit in Frank Irey, Jr., Inc., supra, the Fifth Circuit in Atlas Roofing, supra, the Sixth Circuit in Winters Battery Manufacturing Co., supra, the Eighth Circuit in Beall Construction Co., supra, and the Tenth Circuit in Clarkson Construction Co., supra. We hold that a jury trial was not. contemplated by the Act and that the seventh amendment is no bar to the imposition of civil penalties through the administrative process without jury trial in the enforcement of this Act as provided in § 660, We order the Commission’s order enforced. . Section 666(j) of the Act says: For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. . 29 C.F.R. § 1926.652(h) says: When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel. . We have jurisdiction to consider the constitutionality of the Act, when an appeal is taken pursuant to § 660(a) of the Act. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Anniston Mfg. Co. v. Da vis, 301 U.S. 337, 345-346, 57 S.Ct. 816, 81 L.Ed. 1143 (1937). . Section 658(b) of the Act says “each citation . . . shall be prominently posted . . . at or near each place a violation referred to in the citation occurred.” . Mohawk does not mention any of the other consequences — such as double jeopardy and self-incrimination under the fifth amendment and speedy trial under the sixth amendment and the Speedy Trial Act, 18 U.S.C. § 3161 et seq. — of our determining that this is a criminal penalty. . Certiorari was granted on the question “assuming arguendo that such civil penalties and enforcement procedures are civil in nature and effect, whether such procedures deny the defendant employer his right to jury trial guaranteed by the Seventh Amendment to the Constitution.” 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976). . Cf. Brennan v. Gibson’s Products, Inc. of Plano, 407 F.Supp. 154, 162 (E.D.Tex.1976) (absent clear statutory language and legislative history, court concludes Congress intended § 657(a) of the Act to require a search warrant). But cf. Barlow's Inc. v. Usery, 424 F.Supp. 437, 440 (D.Idaho, 1976) (absent clear statutory language and legislative history, court concludes Congress did not intend to require a search warrant under § 657(a) of the Act, and § 657(a) violates fourth amendment). . Section 666(k) of the Act says: (k) Civil penalties owed under this chapter shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil action in the name of the United States brought in the United States district court for the district where the violation is alleged to have occurred or where the employer has its principal office. . Section 13 of H.R. 19200 says in pertinent part: (c) Civil penalties owed under this Act shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil suit in the name of the United States brought in the Federal district court in the district where the violation is alleged to have occurred or where the employer has its principal office. (d) The Federal district courts shall have jurisdiction of actions to collect penalties prescribed in this Act and may provide such additional relief as the court deems appropriate to carry out the order of the Occupational Safety and Health Appeals Commission. . Compare the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq., where § 819(a)(4) limits the district court, in a proceeding by the government to collect an unpaid civil penalty, to a de novo jury trial on “all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 816 . . . .” National Independent Coal Operators’ Ass’n v. Kleppe, 423 U.S. 388, 393, 96 S.Ct. 809, 46 L.Ed.2d 580 (1976). . See Olin Construction Co. v. OSHRC, 525 F.2d 464, 467 (2d Cir. 1975) (per curiam): “As for the penalties, we are amazed at their paucity, reflecting more of a license than a penalty.” . United States v. J. B. Williams, Inc., 498 F.2d 414, 430 (2d Cir. (1974): Perhaps it would be wiser for Congress to allow the FTC to impose penalties for violations of its orders, subject to limited judicial review, as it has done in some other cases, see, e. g., § 271 of the Immigration and Nationality Act, 8 U.S.C. § 1321,18 predecessors 18 See also Marine Mammal Protection Act, 16 U.S.C. § 1375(a); Occupational Safety and Health Act, 29 U.S.C. § 666(i); Natural Gas Pipeline Safety Act, 49 U.S.C. § 1678. of which were held valid in Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 [29 S.Ct. 671, 53 L.Ed. 1013] ... and Lloyd Sabaudo Societa v. Elting, 287 U.S. 329 . The Supreme Court will shortly pass on this seventh amendment question, as noted above. We think the matter properly one for administrative enforcement, not subject to the jury trial mandate of the seventh amendment. See Pernell v. Southall Realty, 416 U.S. 363, 383, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49 57 S.Ct. 615, 81 L.Ed. 893 (1937).

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?

Dorothy HINCHCLIFF, Individually and as Executrix of the Estate of Alfred W. Hinchcliff, Deceased, Plaintiff-Appellees, v. James M. CLARKE, Internal Revenue Agent and Frank S. Turbett, Jr., District Director of Internal Revenue, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Donald J. GRAF, Defendant-Appellee. No. 16703. United States Court of Appeals Sixth Circuit. Jan. 19, 1967. John M. Brant, Department of Justice, Washington, D. C., Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Roth-wacks, Joseph M. Howard, Attorneys, Department of Justice, Washington, D. C., on brief; Merle M. McCurdy, U. S. Atty., Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, of counsel, for appellants. Lewis Perelman, Cleveland, Ohio, William Patrick Clyne, Lewis Perelman, Cleveland, Ohio, on brief, for appellee, Dorothy Hinchcliff. Before EDWARDS and PECK, Circuit Judges, and TAYLOR, District Judge. Honorable Robert L. Taylor, Chief United States District Judge for the Eastern Distriet of Tennessee, sitting by designation. EDWARDS, Circuit Judge. We are concerned in these appeals with two cases generally related to the same issues. In the first, the government sought — and was denied — enforcement of an Internal Revenue Service summons addressed to an accountant named Graf. The summons required Graf to produce certain records in his possession pertaining to the income tax problems of his client, Dorothy Hinchcliff, and her deceased husband. The summons served upon Graf, under authority of Int.Rev.Code of 1954, § 7602, required production of the following: “All books, records, work papers, and files pertaining to the above-named taxpayers. These records should include all net worth statements, financial statements, and profit and loss statements, certified or not.” In addition to denying enforcement of this summons, the order of the District Judge for the Northern District of Ohio, Eastern Division, also directed return of certain evidence already acquired by the IRS and enjoined the government from using same or reacquiring it in any manner. The second action is a complaint filed by Mrs. Hinchcliff in the United States District Court for the Northern District of Ohio which alleged that an IRS agent named Clarke and his IRS District Director were threatening to re-examine the books of account and the income tax returns of the Hinchcliffs for the years 1945 through 1957, that such years had already been examined, and that the reexamination was barred by the Statute of Limitations and by Int.Rev.Code of 1954, §§ 7605(a) and (b), as amended. The taxpayer sought to quash the administrative summons previously referred to and to suppress any evidence which had previously been (allegedly illegally) turned over to the Department of Internal Revenue by Graf and to enjoin the government’s use of such evidence in any way. The District Judge’s order granted the relief sought. The section of the Internal Revenue Code of 1954 which is relied upon by the taxpayer and the District Judge reads as follows: “(b) Restrictions on Examination of Taxpayer.- — -No taxpayer shall be subjected to unnecessary examination for investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.” Int.Rev. Code of 1954; § 7605. The section of the Internal Revenue Code of 1954 relied upon by the government reads as follows: “§ 7602. Examination of books and witnesses “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; “(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and “(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.” Int.Rev.Code of 1954, § 7602. At trial the evidence disclosed that Clarke, who works on civil aspects of the Department’s endeavors, had been assigned to investigate the return of Mrs. Dorothy Hinchcliff for the years 1957, 1958 and 1959. Prior years as to this taxpayer and her now deceased husband and his estate had previously been reviewed and closed. No letter informing the taxpayer of intention to reopen had been sent by the Commissioner. In pursuance of this assignment, Clarke went to Graf, a certified public accountant, who had for many years been first a bookkeeper and then accountant for the Hinchcliffs. Clarke testified that he asked Graf to show him his working papers pertaining to the Hinchcliff account and warned him not to give him anything which pertained to the closed years and which represented the taxpayer’s own records. It is, however, undisputed that Graf, in pursuance of this request, turned over something over 100 papers, a substantial number of which were records belonging to the taxpayer, which had been left with the accountant. Some of these pertained to years prior to 1957. It appeared that some word of this reached Mrs. Hineh-cliff’s lawyer and that he called Graf and protested vehemently against Graf’s making any such disclosure of Mrs. Hinch-cliff’s affairs to the IRS. Whereupon Graf asked for the papers back. Clarke had already had them photostated, but he dutifully took them back and at the same time served on Graf a summons for all of them. The two dates involved here are May 3, 1961, when the papers were turned over by Graf to Clarke, and May 19, 1961, when Clarke served the summons. Graf then turned over the documents to Clarke, who sealed them in Graf’s office, where they still remain; and this litigation followed. The government in this appeal argues that § 7605 of the Revenue Code relied upon by the District Judge applies only to “the books of account” in possession of the taxpayer; that a summons, even for the taxpayer’s own records which are in the hands of a third party, was wholly appropriate and enforceable, and that a certified public accountant could not be found to be, as the District Judge had found Graf, an employee and agent of the taxpayer so that the taxpayer had standing to object to the summons served on him for her records. In this regard the government cited and relied on Deck v. United States, 119 U.S.App.D.C. 240, 339 F.2d 739 (1964), cert. denied 379 U.S. 967, 85 S.Ct. 660, 13 L.Ed.2d 560; In re Fahey, 192 F.Supp. 492 (W.D.Ky.), aff’d, 300 F.2d 383 (C.A. 6, 1961). These cases do indeed appear to say that the working papers of a public accountant are his own property and can be reached by a summons served on him, even though the information came from a taxpayer client. Further, there is an Ohio Statute which squarely holds that the working papers of a certified public accountant are his property. 47 Ohio Rev.Code § 4701.19 (1966 Supp.). Under what we deem to be settled law cited above, it appears clear to us that the documents which are the work product of Graf as a professional accountant clearly may be the subject of a summons and the District Judge was in error in quashing the summons as to these documents. Further, we believe that the District Judge was in error in holding that Int.Rev.Code § 7605 barred the summons issued by the IRS, or rendered illegal the visit by Clarke to Graf’s office, or his inspection of the documents voluntarily shown him by Graf. Section 7605 of the Int.Rev.Code by its express language is applicable only to the “taxpayer” and provides a limitation only upon inspection of “a taxpayer’s books of account.” The notice of reopening provided for is required “after investigation.” The logical construction of this section would be that it served as no bar to IRS investigation of closed years where its investigation pertained to information or records in the possession of third persons. In reaching a similar construction of § 7605, the Second Circuit said: “A construction limiting the section to its unambiguous language is not unfair to the taxpayer. It protects him from unnecessary examinations or investigations. An investigation, however, often requires a long period of time. There may be many ramifications which lead into many areas. Each new clue investigated is not a new investigation in a Section 7605(b) sense. A taxpayer cannot properly claim that because IRS has summoned six third parties it cannot summon six additional without showing good cause. The investigation continues until completed as one investigation.” Application of Magnus, 299 F.2d 335, 337 (C.A. 2, 1962), cert. denied, 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499 (1962). See also, In re Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (C.A. 2, 1962), cert. denied, 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed.2d 198 (1963); Hubner v. Tucker, 245 F.2d 35, 38-39 (C.A. 9, 1957). The congressional purpose, as revealed by the language of the statute, was not to prohibit all investigation of closed income tax accounts, but to guarantee that taxpayers whose accounts had been closed would not be subjected to “unnecessary” harassment by being required frequently to present their “books of account” to the income tax agency. What this appellate record discloses as to the documents and papers turned over by Graf to Revenue Agent Clarke is that few if any of them represent what may reasonably be construed as “books of account” of the taxpayer, within the meaning of Int.Rev.Code § 7605. Since no approach has been made to this taxpayer in person, and since, as we have previously held, an accountant is an independent contractor and not an agent or employee of the taxpayer, we find no violation of the statute in question. We also believe the District Judge was in error in holding that the summons was issued in violation of the United States Constitution, Amendment IY. Its language followed exactly the language of the authorizing statute, Int. Rev.Code § 7602. The constitutionality of a summons issued under this statute has been repeatedly upheld. Eberhart v. Broadrock Development Corp., 296 F.2d 685 (C.A. 6, 1961), cert. denied, 369 U.S. 871, 82 S.Ct. 1139, 8 L.Ed.2d 275 (1962); Foster v. United States, 265 F.2d 183 (C.A.2, 1959), cert. denied, 360 U.S. 912, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959). This brings us to consideration of the lengthy opinion which the District Judge wrote on the government’s motion for rehearing of his original order. In it the District Judge changed his emphasis from the statutory provision previously cited and planted his denial of rehearing primarily on the Fourth Amendment to the United States Constitution and by implication on the Fifth Amendment likewise. In this regard the District Judge placed great reliance on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The Boyd case stands generally for the proposition that the Fourth and Fifth Amendments of the United States Constitution read together forbid judicial warrants for searches and seizures of a person’s letters and papers in a search for evidence of fraud against the revenue laws. The District Judge appears to hold that this doctrine is effective in relation to a search for evidence in a civil proceeding for determination of income tax. The United States Supreme Court has squarely before it at present the problem of whether the Fourth Amendment prohibition on “unreasonable searches and seizures” bars evidence seized pursuant to a lawful search in a criminal proceeding where that evidence constitutes items claimed to have been of evidential value only. Hayden v. Warden, 363 F.2d 647 (C.A. 4, 1966), cert. granted, 385 U.S. 926, 87 S.Ct. 290, 17 L.Ed.2d 210 (1966). Whatever may be the result in the criminal proceedings in the Hayden case above, in the instant case we do not deal with a “criminal proceeding.” We decline to extend the Boyd doctrine to bar an administrative summons for financial records relevant to a civil proceedings for collection of income tax where that summons is authorized by a congressional enactment, and where the constitutionality of the statute has to date been repeatedly upheld. By brief and at oral argument the IRS seeks to assure this court (as it did the District Judge) that its investigation in the Hinchcliff matter has no purpose of possible criminal prosecution. It may be that such prosecution is effectively barred by the statute of limitations, as suggested by the IRS brief. However this may be, our decision in this case is squarely planted upon the representation made to us. Hence, no information secured as a result of this decision may be employed in any criminal prosecution. Finally, we note that some 300 papers have been impounded under the administrative summons and that the summons did not follow the 10-day notice rule of § 7605(a). Prior to the IRS gaining access to these documents, we believe that the District Judge should review them to ascertain whether or not any should be excluded because they are properly to be described as “books of account” of the taxpayer. See Int.Rev.Code § 7605. If the IRS had followed the 10-day notice requirement of the statute, clearly the taxpayer would have been able to repossess herself of anything properly described as her “books of account.” Reversed and remanded for further proceedings not inconsistent with this opinion.

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.

John Stanley WOJTOWICZ, Appellant, v. UNITED STATES of America, Appellee. No. 598, Docket 76-2106. United States Court of Appeals, Second Circuit. Argued Jan. 18, 1977. Decided Feb. 22, 1977. Edward M. Chikofsky, New York City, for appellant. Gary A. Woodfield, Asst. U. S. Atty, Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Bernard J. Fried and Cheryl M. Schwartz, Asst. U. S. Attys., Brooklyn, N. Y., on the brief), for appellee. Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges. LUMBARD, Circuit Judge: John Stanley Wojtowicz appeals from orders of the Eastern District, dated January 15, 1976 and February 26, 1976, in which Judge Platt denied without an evidentiary hearing appellant’s pro se petitions pursuant to 28 U.S.C. § 2255 to vacate or modify the sentence of 20 years imprisonment imposed by Judge Travia on April 23, 1973, after he pleaded guilty to one count of armed bank robbery. On appeal appellant contends that an evidentiary hearing was required to determine: whether he was competent at the time he entered the plea of guilty and at the time of his subsequent sentencing, whether his plea was rendered involuntary because of coercion by his family or was improperly influenced by a sentence promise made by his attorney, and whether he was denied the effective assistance of counsel. The court finds that, with the exception of his argument regarding his competency at sentencing, appellant’s claims are without merit; accordingly, we remand to the district court for a hearing limited to the issue of appellant’s competency at the time he was sentenced. On August 31, 1972 appellant and two confederates attempted to rob a Brooklyn branch of the Chase Manhattan Bank, located at Avenue P and East Third Street, of approximately $37,000. in cash and travelers’ checks. A short time after the bandits arrived at the bank one of Wojtowicz’s confederates fled the scene. Undaunted, appellant and his remaining comrade continued the robbery; however, before they could make their escape with the loot, the police arrived at the scene. Thereafter, a bizarre set of events unfolded. The police laid siege to the bank while the bandits held the bank employees hostage inside. Negotiations led to a plan by which the robbers were to be taken to Kennedy Airport, where an airplane was to be waiting to transport them to some unknown destination. This plan failed as well, however. Upon their arrival at Kennedy the FBI closed in; appellant was captured and his confederate was shot and killed. These events have been preserved for posterity in dramatic form by the film “Dog Day Afternoon.” Wojtowicz was subsequently indicted on three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and (e) and upon one count of conspiracy. Because hostages were taken, he faced the possibility of the death penalty on the third count. 18 U.S.C. § 2113(e). After arraignment Mark Landsman was appointed as appellant’s counsel. Landsman also represented appellant in negotiations involving the sale of the movie rights to “Dog Day Afternoon.” At Landsman’s request, on September 12, 1972 the court ordered that appellant undergo a psychiatric examination to determine his competency to stand trial, pursuant to 18 U.S.C. § 4244. Thereafter, appellant was confined to Kings County Hospital for three weeks, during which time he underwent psychiatric observation. The psychiatrist’s report, dated October 6, 1972, noted that appellant’s medical history indicated he had visited St. Vincent’s Hospital on three occasions, where he received treatment for chronic schizophrenia; however, the report stated that “[t]here is no psychosis or schizophrenia present in this defendant.” The report also recounted appellant’s homosexual entanglements and his claim that he committed the bank robbery in a desperate attempt to obtain money for his male paramour’s transsexual operation. The report concluded by stating that appellant appeared to be “a well educated, fairly intelligent male who is functioning above the average level. It is my opinion that the defendant is competent and fit to proceed.” On February 16, 1973 Wojtowicz offered to plead guilty before Judge Travia to count two of the indictment, which carried a maximum penalty of 25 years imprisonment and a $10,000. fine, pursuant to an agreement with the government under which the remaining counts of the indictment were1 to be dismissed. Before accepting the plea, Judge Travia conducted an extensive Rule 11 inquiry. It was brought out that appellant had attempted suicide some time early in 1972 and had been treated as an out-patient at St. Vincent’s Hospital and had visited a psychiatrist in March of 1972. In response to the court’s questioning, appellant indicated that he was aware of what he was doing at the time of the crime. The court queried appellant concerning his desire to plead guilty, his satisfaction with his attorney and whether he had been induced to plead guilty by threats or promises. Appellant also explained his understanding of the agreement with the government, which the court confirmed as correct. The court established that appellant understood the nature of the charges to which he would plead, the maximum penalty the court could impose, and the nature of the rights he would waive. The terms of the agreement with the government were laid out on the record and appellant described his participation in the crime and admitted his guilt. During the court’s inquiry it was brought out that up until that morning Landsman had been under the misimpression that the maximum penalty possible under count three was life imprisonment and was not aware of the possibility of the death penalty. Prior to imposing sentence on April 23, 1973, Judge Travia asked Wojtowicz about a letter he had written the court expressing dissatisfaction with his attorney. Appellant then explained that he felt counsel had failed to bring certain matters to the court’s attention, had failed to make certain motions, and had not released funds entrusted to him by appellant. In the course of this discussion appellant also stated that in making his decision to plead guilty his family had placed pressure upon him; particularly, appellant stated that Ernie, his male paramour, thought he should plead guilty in order to obtain a shorter sentence and that he thought Ernie might leave him if he did not plead guilty. After further discussion with counsel and appellant, Judge Travia indicated that while he was not disposed to relieve Mr. Landsman, he might consider granting an application to withdraw the plea. The court recessed until 2:00 that afternoon» to give appellant an opportunity to discuss matters with his attorney and his family. After the adjournment, appellant indicated that he was ready to be sentenced. Before accepting the plea the court again queried appellant concerning his understanding of the charges and the consequences of his plea. After counsel spoke on his behalf, appellant engaged in a rather eloquent, but bizarre allocution; he explained that he knew his acts to be wrong but that he desperately needed the money to obtain a transsexual operation for Ernie, in order to prevent Ernie from committing suicide. Judge Travia then sentenced appellant to imprisonment for twenty years. On August 15, 1973 Landsman filed a Fed.R.Crim.Pro. 35 motion for reduction of sentence, in which he averred, inter alia, that “just prior to sentence” appellant had inflicted injuries upon himself and was in poor physical condition and a “highly nervous state during which he made certain statements which may have inadvertently antagonized the Court.” On October 21, 1975 appellant, acting pro se, filed a petition (the basis of the present appeal) to have his sentence vacated pursuant to 28 U.S.C. § 2255 or, in the alternative, to have his sentence reduced pursuant to Rule 35. The petition alleged that counsel had induced appellant to plead guilty upon the understanding that he would be sentenced to no more than 10 to 15 years. In support of the petition, appellant’s wife, male paramour, and mother submitted affidavits averring, inter alia, that appellant had received psychiatric treatment at St. Vincent’s Hospital for an attempted suicide and that they had urged him to plead guilty after being told by his attorney that appellant would not receive a term greater than 10 or 15 years. In addition, appellant’s “jail-house lawyer” filed an affidavit stating that appellant had told him of Landsman’s sentence estimate and appellant’s reliance thereon. Landsman also submitted an affidavit in which he stated that he had not promised anyone connected with the case that Wojtowicz would receive a term of only 10 or 15 years. Judge Travia having resigned, the petition was referred to Judge Platt, who found in an opinion dated January 15, 1976, that examination of the sentencing minutes left no doubt that appellant had been made fully aware of the maximum penalties possible under count two of the indictment and that Judge Travia alone would determine the sentence within the maximum prescribed by statute. Noting that appellant had not claimed his plea was involuntary, the court pointed out that assuming there had been an incorrect sentence estimate, such estimate could not serve as the basis for a § 2255 attack unless measured by objective standards appellant would have been justified in relying on the estimate or unless the erroneous advice amounted to ineffective assistance of counsel. The court then found that appellant had been warned on no fewer than four occasions of the maximum penalty possible and that the record “conclusively demonstrated” that appellant could not reasonably have relied on Landsman’s alleged estimate; further, the court found that there was not even an allegation that Landsman’s estimate amounted to ineffective assistance of counsel. On January 30,1976 appellant, again acting pro se, filed papers with the court which were entitled “Motion for Reconsideration.” In this motion appellant disputed the court’s prior findings and challenged the loyalty of his attorney. Appended to this motion was a handwritten affidavit in which appellant alleged that at about 3:00 a. m. on the morning of sentencing, in despair because he thought that Ernie had left him, he attempted suicide. According to appellant, he first took 100 pills (consisting of Benedrals and Darvons) and when this did not appear to be effective, he slashed his wrists with a razor blade; apparently, appellant then passed out. When he regained consciousness appellant claims to have been taken to St. Vincent’s Hospital where he was sutured. After some discussion by the marshals it was decided that despite his physical and mental deterioration, he would be taken to court that morning for sentencing. Appellant claims that he has a poor memory of the events that transpired at sentencing and his condition was such that he faded in and out of consciousness during the proceedings. The minutes of sentencing are devoid of any comments by the court or Mr. Landsman that corroborate these claims. On February 26, 1976 Judge Platt denied appellant’s motion without opinion. In a letter to the court dated March 8, 1976, appellant acknowledged receipt of the February 26 order and requested that his letter be treated as a notice of appeal; this request was complied with. Appellant’s most substantial claim is that he was entitled to an evidentiary hearing to determine his competency at the time of sentencing. In United States v. Miranda, 437 F.2d 1255, 1258 (2d Cir. 1971), this court pointed out that where a claim of mental incompetency is raised in a § 2255 petition, if “the movant has raised detailed and controverted issues of fact, a hearing will be required.” See O’Neil v. United States, 486 F.2d 1034 (2d Cir. 1973). In the affidavit appended to appellant’s January 30 “Motion for Reconsideration” Wojtowicz claims that on the morning of sentencing he attempted to take a drug overdose and slashed his wrists; as a result, he claims that he appeared in court later that morning with his wrists wrapped in bloody bandages, unable meaningfully to comprehend the sentencing proceedings. Appellant’s claims find support in Landsman’s affidavit submitted in support of the August 15,1973 Rule 35 motion, which alleged that appellant had inflicted injuries upon himself pri- or to sentencing and was in a deteriorated state. Similarly, the affidavits submitted by appellant’s family in support of his § 2255 petition, appellant’s statements at sentencing, and the psychiatrist’s report indicate that appellant had attempted suicide on a previous occasion in early 1972 and, thus, lend some credence to his present claim. If appellant’s allegations are true they raise a serious question as to whether he was able meaningfully to exercise his right of allocution or rationally comprehend the nature of the proceedings. See Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976); United States v. Miranda, supra, 437 F.2d at 1237; cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The government contends that the sentencing minutes do not substantiate claims of unusual behavior on appellant’s part and that neither Judge Travia nor Mr. Landsman made any comments that would corroborate appellant’s claim. However, the apparent regularity of the proceedings cannot “conclusively show” that appellant’s claim, which is based on facts outside the record, is without merit. United States v. Miranda, supra, 437 F.2d at 1257-58; United States v. Malcolm, 432 F.2d 809, 813 (2d Cir. 1970). In sum, despite the fact that appellant raised his claim of incompetency for the first time in his “Motion for Reconsideration,” the court finds that appellant set out sufficiently detailed and controverted factual allegations to require that the case be remanded to the district court for a hearing on this issue. See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); United States v. Taylor, 487 F.2d 307, 308 (2d Cir. 1973). Appellant’s claim that he was incompetent at the time he pleaded guilty stands on much weaker footing. Reading appellant’s pro se papers liberally, neither his original § 2255 petition nor his motion for reconsideration contain any specific factual allegations in support of the claim he now raises on appeal. See O’Neil v. United States, supra, 486 F.2d at 1036. In United States ex rel. Curtis v. Zelker, 466 F.2d 1092 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 5. Ct. 1405, 35 L.Ed.2d 612 (1973), this court held that where, as here, a defendant has been found competent in an examination conducted pursuant to 18 U.S.C. § 4244, the district court is not required to hold a competency hearing before accepting a plea and “ ‘absent some unusual circumstances, ... a Section 2255 (28 U.S.C. § 2255) collateral attack on the sentence based on the same ground will not ordinarily be permitted.’ ” 466 F.2d at 1100, quoting Hanson v. United States, 406 F.2d 199, 202 (9th Cir. 1969). Neither the record nor appellant’s petitions indicate that there were any “unusual circumstances” that would warrant re-examination of Wojtowicz’s competency at the time of pleading. In between the time appellant was described in the October 6, 1972 psychiatrist’s report as “a well educated, fairly intelligent male who is functioning above the average level” and the time the plea was entered on February 16, 1973, the record does not indicate and appellant’s pro se papers do not allege any facts that would call into question his competency. Further, assuming that Wojtowicz’s suicide attempt occurred as alleged, the act took place and the motivation (appellant’s belief that his male paramour had deserted him) arose subsequent to the entry of the plea. Although appellant correctly cites Saddler v. United States, supra, for the proposition that under some circumstances a defendant’s apparent incompetency at sentencing may call into question his competency at the time of pleading, the court in Saddler was faced with a record which, unlike the present case, indicated that a “flurry of warning flags” should have alerted the sentencing court to the possibility that the defendant had been incompetent when he entered his plea, 531 F.2d at 87. In Saddler the defendant had an extensive history of narcotics addiction and mental illness, the record at sentencing made it apparent that the defendant was lacking in mental capacity, and the court had specifically refused to order a competency examination despite requests from both prosecution and defense that this be done. In sum, beyond the mere allegation of incompetency raised on appeal, appellant has not alleged any facts or pointed to any evidence in the record that would warrant reopening the issue of his competency to plead. See Dalii v. United States, 491 F.2d 758, 760 (2d Cir. 1974); O’Neil v. United States, supra, 486 F.2d at 1036. Appellant’s arguments that his plea was the product of family coercion and an erroneous sentence promise by counsel merit little discussion. At the outset, it is questionable whether the claim of family coercion was raised before the district court and has been properly preserved for appeal. See, e.g., United States v. Hermann, 524 F.2d 1103, 1104 (2d Cir.1975); Fields v. United States, 438 F.2d 205.(2d Cir.), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). However, reading appellant’s petitions most charitably, his claim of family coercion is based on two factors: first, that portion of the sentencing minutes in which Wojtowicz stated that his family had placed pressure upon him and that he had been afraid that his male paramour would not be willing to wait for him if he went to trial and was found guilty on all counts; and, second, the affidavits of appellant’s wife, male paramour, and mother stating that they urged him to plead guilty after being told of counsel’s sentence estimate. Taking all of these statements as true, they do not support appellant’s claim that his will was overborne by family pressure. Indeed, the affidavits and the portions of the record relied upon indicate that appellant’s family was concerned with the dim prospects of a trial and felt that he would fare better by entering a plea. In similar circumstances we have held that “[ajdvice — even strong urging — by those who have an accused’s welfare at heart, based on the strength of the State’s case and the weakness of the defense, does not constitute undue coercion.” Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.) cert. denied, 429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122 (1976). See United States ex rel. Brown v. LaValle, 424 F.2d 457, 460-61 (2d Cir. 1970), cert. denied, 401 U.S. 942, 91 S.Ct. 946, 28 L.Ed.2d 223 (1971). Similarly, as the district court found, taking appellant’s allegations regarding counsel’s “sentence promise” as true, the record conclusively establishes that appellant could not have been reasonably justified in relying on any such promise; accordingly, the district court correctly rejected this claim. See Mosher v. LaValle, 491 F.2d 1346, 1347 (2d Cir.), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); United States ex rel. Curtis v. Zelker, supra, 466 F.2d at 1098. Judge Travia exhaustively questioned appellant before accepting his plea and at sentencing, he fully advised him of his rights and warned him on no less than four occasions of the maximum penalties possible. Appellant’s final claim is that he was denied the effective assistance of counsel. Here too it is questionable whether this claim was raised in any recognizable form before the district court; however, the record in this case leaves no doubt that counsel’s advice was not “[outside] the ‘range of competence demanded of attorneys in criminal cases.’ ” Tollett v. Henderson, 411 U.S. 258, 264, 93 S.Ct. 1602 (1973), quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See Rickenbacker v. The Warden, Auburn Correctional Facility, 550 F.2d 62, at 66 (2d Cir. 1976). In evaluating claims of ineffective assistance of counsel it has long been the rule that “time consumed in oral discussion and legal research is not the crucial test The proof of the efficiency of such assistance lies in the character of the resultant proceedings, ...” United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). See United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 42 (2d Cir. 1972), cert. denied, 410 U.S. 917, 93 S.Ct. 977, 35 L.Ed.2d 279 (1973). In the present case appellant’s only possible defense was that of insanity. The record indicates that counsel made conscientious efforts to provide the psychiatrist conducting the 18 U.S.C. § 4244 examination (which counsel had requested) with information indicating that appellant was not mentally capable. Although the examination was only to determine competency to stand trial, the extensive psychiatrist’s report was dated barely six weeks after the robbery and cast in significant doubt the viability of an insanity defense. The record indicates that after examining the report counsel discussed the possibility of negotiating a plea with appellant and turned his efforts in that direction; under the circumstances, we cannot say this decision was unreasonable. See Lunz v. Henderson, supra, 533 F.2d at 1327, n.7; United States ex rel. Marcelin v. Mancusi, supra, 462 F.2d at 44. Likewise, counsel’s error as to the maximum penalty possible under count three of the indictment (which was dismissed) did not render his representation constitutionally defective, see e.g., United States ex rel. Scott v. Mancusi, 429 F.2d 104,109 (2d Cir. 1971), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971). Appellant asserts there was a conflict of interest from the fact that counsel’s fee and the expenses of the defense were to be paid from a fund created by the sale of the movie rights to “Dog Day Afternoon,” which counsel helped to negotiate. While we do not regard the practice as worthy of emulation, we cannot say that it rendered counsel’s representation constitutionally defective. As regards the alleged “sentence promise,” there is not even an allegation in the present case that counsel falsely promised that a bargain regarding the length of appellant’s sentence had been struck with the court or the prosecutor. See Mosher v. LaValle, supra. There is no indication in appellant’s petitions or elsewhere that counsel did anything more than express an honest opinion. See United States v. Horton, 334 F.2d 153, 155 (2d Cir. 1964). Finally, appellant contends that counsel’s failure to bring appellant’s suicide attempt to the court’s attention was inexcusable. Assuming there was such an attempt and that appellant’s condition was such that counsel should have sought an adjournment, we conclude that any prejudice suffered by appellant can adequately be cured on remand if the district court concludes that appellant was not competent to proceed on the morning of sentencing. The case is remanded to the district court for a hearing limited to the issue of appellant’s competency at sentencing, which at most can result in a re-sentencing of Wo-jtowicz at a time when he is competent. . The record indicates that some time in December, 1971 appellant engaged in a homosexual wedding ceremony. Wojtowicz also had a wife and two children. . The record does not indicate the disposition of the Rule 35 motion; evidently, it was denied. . Appellant also challenged federal jurisdiction over the offense, a challenge which has not been pursued on appeal. . As is often the case with pro se applications, it is somewhat difficult to comprehend the thrust of appellant’s arguments. However, it appears that appellant’s allegations regarding Landsman were aimed at showing that appellant had been apprehensive of bringing the alleged sentence promise to the court’s attention at sentencing, perhaps out of fear of jeopardizing the agreement with the government to drop the remaining charges or because he was unsure of counsel’s loyalty. . To a large extent the issue of appellant’s competency will turn upon whether the alleged suicide attempt actually took place. If the evidence shows that there was no such attempt, the court’s inquiry will be at an end. If the suicide attempt is found to have occurred, then it will become necessary for the court to order an examination to determine whether appellant was competent to be sentenced. While such retrospective examinations are frowned upon, they are necessary when no other reasonable alternatives remain. Saddler v. United States, supra, 531 F.2d at 87. . Many of appellant’s claims regarding events at both sentencing and the time of entering the plea are based on “contemporaneous press accounts” of Wojtowicz’s behavior. However, the article referred to was not presented to the district court until appellant filed his “Petition for Sentence Modification and Injunctive Relief’ on May 12, 1976 — approximately three months after the court’s rejection of his February 26 “Motion for Reconsideration.” The May 12 papers sought sentence reduction and a transfer pending appeal. Appended to the motion was the article upon which appellant now relies. Thus, for the first time on appeal appellant attempts to present this court with evidence which could not have been considered by the district court in conjunction with appellant’s present claims. In any event, this media report was hearsay, which, in making the threshold determination whether a hearing is required under 28 U.S.C. § 2255, ordinarily will not entitle the petitioner to a hearing. See Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 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 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?

STANOLIND OIL & GAS CO. et al. v. AMBROSE. No. 10238. Circuit Court of Appeals, Fifth Circuit. Dec. 2, 1942. Frank J. Scurlock, of Dallas, Tex., for appellants. J. N. Saye and W. T. Saye, both of Longview, Tex., for appellee. Before HOLMES and McCORD, Circuit Judges, and DAWKINS, District Judge. McCORD, Circuit Judge. On February 23, 1940, over the protest and objection of Stanolind Oil and Gas Company, the Railroad Commission of Texas granted to W. D. Ambrose a permit to drill eight additional oij wells on his lease in the East Texas Oil Field. Thereupon Stanolind brought suit against Am-brose and the Commission, and sought to cancel the permit and enjoin the drilling of the additional wells. At Stanolind’s request, and upon the filing of a $10,000 bond in court, a preliminary injunction was issued on March 16, 1940, and Ambrose was notified that he had been temporarily enjoined and restrained from drilling or producing from any of the eight wells allowed by the permit. After trial of the action on the merits, the court found for Ambrose, and on June 19, 1940, final decree was entered and the preliminary injunction was dissolved. On appeal the judgment of the District Court was affirmed by this Court. Stanolind Oil & Gas Co. v. Ambrose, 5 Cir., 118 F.2d 847. It is without dispute that for more than ninety days Ambrose was prevented by the injunction from drilling wells on his lease. He, therefore, brought this action against Stanolind and its bondsman to recover damages alleged to have been suffered because of this delay. On the trial the court permitted the evidence to take a wide range: The life of the wells, the number of barrels of oil to be captured each day under the rules of the Railroad Commission, and the cost of drilling and bringing in the wells. The life of the wells was fixed by experts at from twenty to twenty-two years, and the cost of drilling was established. The court made findings of fact and conclusions of law, and, after going into nearly every phase of the evidence which threw light on the issues, he found the number of days of production lost on account of the injunction, the number of barrels of oil lost by Ambrose as the result of such delay, and the market value of such oil in the stock tanks on the lease after deducting certain production costs in the way of production and pipe line taxes, royalty, etc. It was found that Ambrose had sustained a net loss of $5,357.43, and judgment for this amount was entered against Stanolind and its surety. Having been wrongfully enjoined, Ambrose was entitled to recover just and adequate compensation for the loss which was the natural and proximate result of the injunction. Galveston City R. Co. v. Miller, Tex.Civ.App., 38 S.W. 1132. While much of the evidence in the record is in dispute, there was substantial evidence to support the findings, conclusions, and judgment. The judgment is affirmed.

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

UNITED STATES of America v. Perry Imperatore CHICARELLI et al. Appeal of Eugene NAPOLITANO, in No. 19,190. Appeal of James Thomas GREEN-HALGH, in No. 71-1195. Appeal of Lawrence Robert GREEN-HALGH, in No. 71-1196. Nos. 19190, 71-1195, 71-1196. United States Court of Appeals, Third Circuit. Argued April 8, 1971. Decided July 1, 1971. John W. Yengo, Jersey City, N. J., argued for appellant Eugene Napolitano. Jeanne P. Gallagher, Jersey City, N. J., for appellants James Thomas Green-halgh and Lawrence Robert Greenhalgh. W. Hunt Dumont, Asst. U. S. Atty., Newark, N. J., for appellee. Before GANEY, VAN DUSEN and GIBBONS, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is an appeal from July 2, 1970, judgments and commitments of appellants in the United States District Court for the District of New Jersey following the entry of June 1970 orders of that court denying post-trial motions for judgments of acquittal or, in the alternative, a new trial. Eugene Napolitano, Lawrence R. Greenhalgh, James T. Greenhalgh, James F. Wood and Perry I. Chicarelli were prosecuted under a two-count indictment charging them with conspiracy to possess goods stolen from interstate shipment, knowing the said goods to have been stolen, and the possession of said goods, knowing them to have been stolen, in violation of 18 U.S.C. §§ 371 and 659, respectively. Perry I. Chicarelli subsequently pleaded guilty to Count I of the indictment and Count II was dismissed against him. He was severed from the case prior to trial and appeared as a witness for the Government at the trial of appellants. The other four defendants were tried before a jury, which returned a verdict of not guilty as to James Wood on both counts and not guilty on Count I and guilty on Count II as to the other three defendants. The appeals of Eugene Napolitano, Lawrence R. Greenhalgh and James T. Greenhalgh have been consolidated. These defendants raised a number of contentions allegedly requiring the grant of a new trial. After consideration of all these contentions in light of the record as a whole, we have concluded that no reversible error was committed and that the appellants had a fair trial. See United States v. Laurelli, 293 F.2d 830 (3rd Cir. 1961); United States v. Hohensee, 243 F.2d 367 (3rd Cir. 1957). As reaffirmed by the Supreme Court of the United States in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), quoting from Lutwak v. United States, 344 U.S. 604 at 619, 73 S.Ct. 481, at 490, 97 L.Ed. 593, “ ‘A defendant is entitled to a fair trial but not a perfect one.’ ” The following two contentions of appellants require discussion: I. Objection to witness for the Government acting as a bailiff for the jury on certain occasions. Appellants claim that a mistrial should have been granted because a deputy United States Marshal, William C. Ramoth, acted as bailiff on several occasions even though he was a witness for the Government. We disagree and do not think that the situation presented by this record is controlled by Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), which is relied on by appellants. In Turner, the Supreme Court reversed a conviction because the jury was placed under the care of two deputy sheriffs who were the key witnesses for the prosecution. The Court stated that the credibility of these witnesses “must inevitably have determined whether [the defendant] was to be sent to his death” and noted that they were in “continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity * * * to renew old friendships and make new acquaintances among the members of the jury.” 379 U.S. at 473, 85 S.Ct. at 550. Recognizing the factual limitations in Turner, several Circuit Courts of Appeals, most notably the Fifth Circuit Court of Appeals, have refused to reverse convictions where witnesses acted as bailiffs unless the witnesses’ testimony was central to the development of the Government’s case and their contact with the jury was continual and intimate. See e. g., Jackson v. Beto, 388 F. 2d 409 (5th Cir. 1968); Crawford v. Beto, 385 F.2d 156 (5th Cir. 1967); Shepherd v. Wingo, 414 F.2d 274 (6th Cir. 1969). In the present case, Ramoth fingerprinted each of the defendants at the time of their appearance before the United States Commissioner on March 17, 1969. He sent their respective fingerprint cards to the FBI Laboratory in Washington, D. C., for comparison purposes. He was called as a Government witness only for the formal, perfunctory purpose of identifying these cards. His testimony was not central to the Government’s case and was not controverted by defendants. Unlike the situation. in Turner, defendants’ fate was not dependent on the witness’ credibility. In addition, his two encounters with the jury did' not amount to “continuous and intimate association.” He testified in the presence of defendants’ counsel at the hearing held by the court on defendants’ motion to declare a mistrial that he had led the jury into the courtroom on two occasions, stayed with them for a total of several hours in the courtroom, and on one of the two occasions had also led the jury out of the courtroom. He testified that he neither had any conversations with the jurors nor heard any of their discussions. Under these circumstances, we find that this contention must be rejected as there was no prejudice to defendants requiring a new trial. II. Objections to procedure and statements of trial judge at the time jury requested certain testimony to be read back to them. After the jury had been deliberating more than an hour the jury came back to the court room with the request that three parts of the testimony be read to them and that “a renting slip that was supposed to be in evidence” be delivered to them. The trial judge stated (N.T. 71 of 4/21/70): “Members of the jury, you have made a request of the Court to have certain testimony read to you. Ordinarily we don’t do this, and you have to depend upon your own recollection of the testimony, but in view of the fact that this took place ten or eleven days ago, perhaps I should make an exception to it.” The judge then read from his own notes “so that the stenographer can search through his notes and come to it a little quicker rather than starting from the first day and spending a couple of hours reading through them. I am trying to help him locate where this particular inquiry is” (N.T. 72). The judge informed the jury that “no rent receipt [had ever been received] * * * in evidence” (N.T. 73) and that it would take the court reporter “fifteen or twenty minutes” to locate the portions of the testimony requested. The jury returned to its deliberations. Before the jury returned to the courtroom, counsel for the Greenhalghs asked “* * * would it be proper for the Court to ask the jury why they want this?” and “Assuming that this testimony was all read, could counsel ask that other portions be read too. * * The trial judge stated, “You can object to it. I won’t permit it to be read” (N.T. 74). All three counsel for the four defendants still on trial then objected to the reading of the testimony on “all three questions.” The transcript then contains this language at N.T. 74-75: “[Assistant U.S. Attorney]: In view of that, I wouldn’t want it read back for the protection of the record. “THE COURT: It won’t be read back. “(The jury returns to the courtroom.) “THE COURT: Members of the jury, in view of defense counsel’s objection to the reading of the testimony, as to that portion of the testimony that you requested, the Court will now have to direct you that you will have to use your own recollection of what the testimony was. “(The jury retires to continue deliberations.)” First, defendants contend that “the procedure was totally irregular.”2 A trial judge has wide discretion in deciding whether or not to read back testimony to the jury at their request. United States v. DePalma, 414 F.2d 394, 396-397 (9th Cir. 1969); see also United States v. Jackson, 257 F.2d 41, 43 (3d Cir. 1958); cf. United States v. Schor, 418 F.2d 26, 30-31 (2d Cir. 1969). This contention is rejected. For the guidance of the district courts and the bar on standards and considerations governing requests by the jury to review testimonial evidence, we call attention to Standards Relating To Trial By Jury (ABA Project on Minimum Standards of Criminal Justice), § 5.2 and Commentary at 134-38 (Approved Draft 1968). Second, at the oral argument before this court, counsel for appellants contended for the first time that defendants had been prejudiced because the trial judge told the jury they would have to use their own recollection of the testimony “in view of defense counsel’s objection.” After careful consideration, we have concluded that this contention must be rejected because of the well recognized principle that objections to language in the trial judge’s statements to the jury, which could have been remedied by curative instructions prior to the retirement of the jury for their deliberations resulting in the verdict, may not constitute the basis for a new trial where such objections are first made after the verdict has been returned, unless plain error is involved under F.R. Crim.P. 52(b). United States v. Mancuso, 423 F.2d 23, 29-30 (5th Cir. 1970); Spriggs v. United States, 133 U.S.App.D.C. 76, 408 F.2d 1279 (1969); White v. United States, 394 F.2d 49, 55-56 (9th Cir. 1968); United States v. Barrow, 363 F.2d 62, 67 (3d Cir. 1966); United States v. Laverick, 348 F.2d 708, 714 (3d Cir. 1965); United States v. Provenzano, 334 F.2d 678, 690 (3d Cir. 1964), cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964); Wegman v. United States, 272 F.2d 31, 34-35 (8th Cir. 1959). See F.R.Crim.P. 30 & 52(b); cf. United States v. Salas, 387 F.2d 121 (2d Cir. 1967), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1968). In the Provenzano case, Judge Biggs used this language at 690 of 334 F.2d: « * * * [A] s a general rule the failure to object to an instruction during a criminal prosecution on the ground urged on appeal, forecloses the party from raising the question before the reviewing court. * * * The manifest purpose of the rule is to avoid whenever possible the necessity of a time-consuming new trial by providing the trial judge with an opportunity to correct any mistakes in the charge.” In United States v. Grosso, 358 F.2d 154, 158 (3d Cir. 1966), this court said: “* * * [I] f appellant’s counsel was of the opinion that the errors were prejudicial it was his obligation to interpose a timely objection and seek corrective action by the Court. [Citing cases]. He should have taken this course when he learned of the errors, but failed to do so. A defendant may not sit idly by in the face of obvious error and later take advantage of a situation which by his inaction he has helped to create.” The language used by the trial judge did not affect “the substantial rights” of the appellants and this language of Grosso at page 158 is applicable here: “Although not required to do so, we are empowered to consider the alleged errors on the merits if they affected the ‘substantial rights’ of the appellant. Fed.Rules Cr.Proc., rule 52(b), 18 U.S.C.A.; [citing cases]. The power is discretionary and should be exercised only in those situations in which the failure to do so would result in a manifest miscarriage of justice. Ibid. We do not have such a situation in the instant case.” In federal appellate court cases ruling on challenges to the actions of trial judges on requests of jurors for the reading of portions of trial testimony to them or for submission of transcript or exhibits to them, the decisions have held there was no reversible error where counsel did not challenge such actions prior to the retirement of the jury for its ultimate deliberation resulting in the verdict. See United States v. Simon, 425 F.2d 796, 812-813 (2d Cir.), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed. 420 (1970); Turpin v. United States, 108 U.S.App.D.C. 274, 281 F.2d 637, 639 (1960). In Turpin v. United States, supra at 639, the Chief Justice of the United States (then a Circuit Judge) stated that even if the jury had known that defense counsel’s objection to their request to see a map which had not been offered in evidence had prevented them from receiving the map, “it is difficult to see how * * * this information, if known to the jury, prejudiced appellant. No objection was made by appellant at the time * * Certainly, there was no plain error requiring a new trial in the language used by the trial judge. The fact that the jury returned different verdicts as to different defendants and not guilty verdicts on Count I as to all the appellants indicates the lack of any prejudice arising from this incident. If defense counsel had objected to the language of the trial judge of which he now complains, a curative instruction could have been made, pointing out that (1) all counsel had ultimately joined in the objection, (2) it was the duty of defense counsel to assert the rights of their clients under applicable rules of law, and (3) the trial judge, in the exercise of his discretion, accepted the responsibility for not reading the requested testimony to the jury. Cf. Bland v. United States, 299 F.2d 105, 110 (5th Cir. 1962). Where hearsay incriminating testimony was given in a criminal trial and the trial judge directed that it be stricken on appellant’s objection, this court used this language in denying the contention that a new trial was required in United States v. Bogish, 204 F.2d 507, 508 (3d Cir. 1953): “No motion for a mistrial was made upon the basis of this testimony nor was the trial judge requested to give further instructions with respect to it. Under these circumstances it cannot be made the basis on appeal for convicting the trial judge of error.” For the foregoing reasons, the July 2, 1970, judgments and commitments of appellants will be affirmed. . These contentions include (a) improper instruction that Chicarelli’s building was rented by Wood, (b) misleading and inadequate instruction on circumstantial evidence, (c) incorrect and inadequate instructions on weight of evidence and inferences, (d) insufficient fingerprint evidence, (e) inadequate instructions on credibility, (f) improper charge on weight to be given to accomplice testimony, (g) incorrect statement in the charge of defense contentions, (h) prejudicial statement by the trial judge, in answer to defendant’s summation that “the case is not yet closed,” that the jury should not consider the fact that other individuals may be brought to trial but should confine its attention to the defendants presently on trial, and (i) inconsistent verdicts in light of the record. . The direct examination of Chicarelli regarding the visit of defendant Wood on the night of the 25th, “the direct examination of Napolitano regarding his examination of Greenhalgh’s roof, then from there on the trip to Rahway,” and the cross-examination of Napolitano regarding the date he went to Chicarelli’s (N.T. 71-74). . Counsel for defendants have pointed to no portion of the record supporting the language in its brief that there was a violation “of federal procedure which required that counsel be informed at all times of the requests made by the jury.” The record shows that counsel were informed by the trial judge of the requests in open court in the presence of the jury and that counsel never requested any proof of the jury requests. . We re-emphasize the consistent position of this court that discretion in the conduct of the trial must be given to the trial judge. See United States v. Angelo, 153 F.2d 247, 251-52 (3d Cir. 1946), where the court said: “ * * * the proper administration of justice requires the vesting of discretion in the trial judge. It would be both impossible and undesirable to delimit strictly the powers of the trial judge and to set detailed regulations for the conduct of every case. * * * On the judge rests the chief responsibility for the result; he is the cornerstone of any effective administration of trial by jury, and we are disposed to give him great leeway.” . The same principle has been applied to objections made after the verdict to remarks of opposing counsel, Hohensee v. United States, 243 F.2d 367, 372-373 (3d Cir.), cert. denied, 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136, rehearing denied, 354 U.S. 927, 77 S.Ct. 1376, 1 L.Ed. 2d 1441 (1957), and to improperly admitted evidence, United States v. Bogish, 204 F.2d 507 (3d Cir. 1953) ; Blodgett v. United States, 161 F.2d 47, 51-52 (8th Cir. 1947). Furthermore, this rule has been applied consistently where counsel have failed to object to portions of a supplemental charge until after verdict. See United States v. Manos, 340 F.2d 534, 540 (3d Cir. 1965) ; Maddox v. United States, 330 F.2d 1022, 1023 (5th Cir. 1964) ; Carroll v. United States, 326 F.2d 72, 84 (9th Cir. 1964) ; Wegman v. United States, supra; Daniel v. United States, 268 F.2d 849, 853 (5th Cir. 1959). . It is noted that an appellate court’s view that “it would be better to [discuss matters] outside the hearing of the jury” does not mean that discussion of such matters in their presence is reversible error, See United States v. Ross, 321 F.2d 61, 66 at n. 3 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963).

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?

Anthony L. MANNI, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 6956. United States Court of Appeals First Circuit. March 28, 1968. Joseph D. Steinfield, Boston, Mass., by appointment of the Court, with whom Hill & Barlow, Boston, Mass., was on brief, for appellant. John M. Callahan, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Albert F. Cullen, Asst. U. S. Atty., were on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is an appeal from a conviction on three counts of an indictment charging violation of the Federal Firearms Act, 15 U.S.C. § 902(e). The only question raised is the propriety of the court’s denial, after an evidentiary hearing, of defendant’s motion to suppress the firearms in question, together with some admissions made by the defendant. 270 F.Supp. 103. The court warrantably found the following. Treasury agents, one Ho-ban and another, learned that a man by the name of Anthony Manni, living at a certain address in Massachusetts, had purchased eleven small arms in New Hampshire. Hoban obtained a description and the maker’s numbers of the arms, and a photograph of Manni. He also learned from the state crimihal 'records that an Anthony Manni of the same address had been convicted of a felony, a necessary element of the offense stated in section 902(e). Even if this was the same Manni, however, Hoban did not know whether Manni had brought the arms into Massachusetts, another element of the offense, or, if so, where they were. On four occasions Hoban visited Manni’s house with another agent, but found only his wife. He told her that he was a Treasury Agent who wanted to talk to her husband, asked her (as he testified without contradiction) where Manni could be found, and tried without success to find him. On March 31, 1966 the agents called again, and Mrs. Manni informed them that Manni was out. They drove away and parked nearby. Ten minutes later they saw defendant Manni, recognizable from his photograph, enter the apartment building. They followed, and when they reached his door it was partly open. “Hoban knocked and the defendant turned toward him. Hoban held up his pocket commission and told the defendant he was from the Treasury Department and had been trying to get hold of him. Manni said: ‘Come in.’ ” 270 F.Supp. at 105. The agents entered, told defendant of their purpose, and stated that he need not answer questions and was entitled to the advice of a lawyer. In plain sight, in a cabinet with a glass door, Ho.ban could see a number of firearms, some of which, when asked, defendant admitted buying in New Hampshire, but added that he had brought them to Massachusetts disassembled. Hoban requested permission to inspect them, and on receiving it, discovered some on which the numbers coincided with his records. He then asked the defendant if he had done time in state prison, and upon receiving an affirmative answer arrested him, seizing the firearms in the cabinet. No other search was conducted. The court found that before the agents’ entry, conversation, and observation, they did not have probable cause to obtain a warrant. It also found that the purpose of the entry was to engage in the conversation the agents had been seeking for some time, and that Manni knew of this purpose. On this record defendant’s case is even less tenable than was the defendant’s in Robbins v. MacKenzie, 1 Cir., 1966, 364 F.2d 45, cert. denied 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140. While we do not say that the fact that the officers fail to explain to a householder that he need not admit them may not sometimes be relevant on the issue of voluntariness of the consent, the consent was clearly voluntary here unless such a warning must always be given. This entry took place before Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Cf. Stoval v. Denno, 1966, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Whether post-Mmmcto we would have to hold that the officer must not only inform the defendant that he need not talk, but must also inform him that he need not afford entry to talk although defendant has an apparent option to talk outside, we need not determine. See dissenting opinion of Mr. Justice White in Commonwealth v. Painten, 1968, 389 U.S. 560 at 566-567, 88 S.Ct. 660, 19 L.Ed.2d 770. Nor need we decide whether opening a glass door to reach a visible object, as distinguished from picking it up when lying loose, e. g., Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Fagundes v. United States, 1 Cir., 1965, 340 F.2d 673, is a search. What the officers had already seen and heard justified the arrest, and the arrest, in turn, justified the seizure. Affirmed. . Hoban did not offer to supply a lawyer, but when defendant later realized he was in trouble, he asked permission to call his lawyer and put through a call, but found him away. . This supported finding distinguishes our recent case of Niro v. United States, 1 Cir., 1968, 388 F.2d 535, even if we were to assume that the principle there enunciated applies when the agents were merely seeking to talk rather than to bypass the necessity of obtaining a warrant. . The problems in Commonwealth of Mass, v. Painten, 1 Cir., 1966, 368 F.2d 142, cert. dismissed, 389 U.S. 560, 88 S.Ct. 660, 19 L.Ed.2d 770 are not involved here. . The defendant’s ready complaisance may be wondered at, but the answer is found in his mistaken (see section 901(3)) belief that carrying disassembled guns was not interdicted. . We remain of the view that proving consent to a search after a voluntary entry requires a strong showing. See Robbins v. MacKenzie, supra, 364 F.2d at 49.

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 et al. v. SASKATCHEWAN MINERALS. No. 525. Decided November 14, 1966. Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn and Betty Jo Christian for the United States et al. in No. 625. Charles W. Burkett, W. Harney Wilson, Arthur A. Arsham and Willard P. Scott for appellants in No. 526. Wayne W. Wright for appellee in both cases. Together with No. 526, Great Northern Railway Co. et al. v. Saskatchewan Minerals, also on appeal from the same court. Per Curiam. These appeals are from an amended judgment of a three-judge district court, 253 F. Supp. 504, which set aside an order of the Interstate Commerce Commission dismissing appellee’s complaint, 325 I. C. C. 621, and remanded the case to the Commission “for further proceedings with instructions to grant relief” to the appellee “in accordance with the opinion heretofore entered by this court on December 8, 1965, and the Supplemental Memorandum Decision entered by this Court on March 3, 1966.” Accepting the District Court’s decision to set aside the Commission’s order on the merits, appellants challenge that portion of the judgment which instructs the Commission to grant relief to the appellee and precludes the Commission from reopening the proceedings for the receipt of additional evidence relevant to the question whether the rates challenged by the appellee are in fact unreasonably preferential in violation of § 3 (1) of the Interstate Commerce Act, 49 U. S. C. § 3 (1). We agree with the appellants that, under the circumstances present here, this restriction is an improper limitation on the Commission’s duty to reconsider the entire case. Arrow Transp. Co. v. Cincinnati, N. O. & T. P. R. Co., 379 U. S. 642. Accordingly, the. judgment of the District Court is vacated and the cases are remanded to the District Court with instructions to enter an order remanding the case to the Commission for further proceedings consistent with the District Court’s opinion of December 8, 1965. It is so ordered.

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?

RADIATOR SPECIALTY COMPANY, a Corporation, Appellant, v. Richard MICEK, Appellee. No. 18130. United States Court of Appeals Ninth Circuit. Jan. 15, 1964. Rehearing Denied April 1, 1964. Miketta, Glenny & Poms, Los Angeles, Cal., and Channing L. Richards, Charlotte, N. C., for appellant. Fulwider, Mattingly & Huntley, and Francis A. Utecht, Long Beach, Cal., and Horace B. Van Valkenburgh, Denver, Colo., for appellee. Before CHAMBERS, STEPHENS and JERTBERG, Circuit Judges. CHAMBERS, Circuit Judge. This is a patent and misuse of confidential information contest between the owners of two flushing devices in toilet tanks. Micek, plaintiff-appellee, owns POSITIVE FLUSH CONTROL. Radiator Specialty, defendant-appellant, owns SEAL-O-MATIC. Each is patented, Mi-cek filing first. The claims of each patent are set out in the appendix hereafter. The district court has held claims 1 to 7 of the POSITIVE FLUSH CONTROL infringed by SEAL-O-MATIC and that there was a misuse of confidential information by SEAL-O-MATIC’S owners. Also, attorney fees were awarded Micek (POSITIVE) against Radiator Specialty (SEAL-O-MATIC). But the court denied Micek any relief on his claim of unfair competition. As is standard procedure in patent cases, amounts of damage remain for future detei-mination. We affirm the district court. For many, many years the conventional outlet valve from the water closet to a toilet bowl involved a rubber ball on the bottom end of a perpendicular rod or wire (usually brass). In repose, the rubber ball sat in a collar on the top of the outlet pipe. If in good order, the ball sitting in the pipe collar blocked the exit of water to the toilet bowl as long as desired. To activate the water and flush the bowl, one would press the conventional handle on the outside of the water closet. This would lift a lever which raised the rod and ball and let the water out. In due time, after the departure of the water, the ball, still on its rod, would drop down and seal up the outlet. Then the process of refilling the tank would begin. When filled, the incoming water would be cut off by the inlet valve and float ball, the familiar hollow brass sphere (now often plastic) on a stiff long wire or arm. For residence use, the water tank type of bathroom fixture continues to be the conventional type, necessitating always inlet and outlet valves. As indicated, we deal here with the outlet valve. Over the years, both inlet and outlet valves have been sources of trouble and the subject of attempts by the householder to fix them, or perhaps a hurried call for the plumber. Apparently the conventional rod apparatus has too much “play” in its permissible movement, although anything which has been standard so long must have some merit. Of recent years, there has been a spate of new patents aimed at the outlet. Most seem to retain some sort of a ball to seat itself in the outlet pipe’s top collar. Adjacent to all outlet valves is an overflow drain pipe, which is convenient to fasten things to or around. Micek worked out a clamp bracket to go around the drain pipe. (Obviously that was easy.) The bottom of the clamp collar sits an inch or two above the bottom of the drain pipe. Then a yoke straddles the pipe. This is made of heavy wire which narrows as it reaches the area over the outlet collar. The rubber ball is suspended from the double arm formed by the yoke. Into the bracket the two wires turn as they are astraddle the pipe. Thus the pivot is formed by the two ends of the yoke as they hook into the bracket. At the loop on the yoke a chain is fastened which is connected to the conventional trip lever of the water closet. In use, when the chain lifts the ball and yoke out of the outlet collar the yoke and balls swing in a short are of approximately 90 degrees upward against the overflow pipe. (Thus, the movement contrasts from that of the usual vertical plunger and ball.) In due time, the arm yoke and ball swing down and the outlet pipe is again closed. Apparently both parties believe the device achieves a stability of function not known in the conventional type. The yokes of POSITIVE and of SEAL-O-MATIC are very, very much alike. The rubber ball itself, which is not part of the patent, fastens identically through the channel of the parallel arms. POSITIVE’S arms fasten into the clamp in behind the overflow pipe. SEAL-O-MATIC’s pivoting starts in the clamp at the point of maximum diameter of the pipe. The SEAL-O-MATIC device’s mounting is a little simpler, but if Micek’s patent is valid, copying in principal by Radiator Specialty seems obvious. We agree with the trial court that Radiator’s device infringes claims 1 to 7 of the Micek patent through .a substitution of equivalents. We have traced through all of the prior art patents placed in evidence by the parties and we do not find Micek’s patent anticipated by any of them. The presumption of validity, to us, remains unimpaired. Broken up into little parts, there is nothing new about any feature. But it is the combination of many old elements that has created something new (for the moment at least) beyond the ordinary mechanic’s skill. We find that the trial court's findings as to breach of a confidential relationship are well supported. There was something worse than merely tough competition. We hold that the principles of McKinzie v. Cline, 197 Or. 184, 252 P.2d 564, apply. At this point, it should be pointed out that any damage for this breach will probably all be included within the damage to be ascertained for the patent infringement. Radiator objects to the award of attorney fees to Micek. As we analyze appellant’s objection thereto (although it may not concur in the analysis) it really attacks the validity of the findings on the two causes of action which have been sustained. Of course, if someone has unwittingly infringed on another’s patent, we would not approve attorneys’ fees. But here there have been findings supported by substantial evidence that there was poaching on the product of Micek’s mind in a rather aggravated way. Under such findings, allowance of reasonable attorneys’ fees is within the discretion of the trial court. The judgment and decree are affirmed. APPENDIX A. The Positive Flush Control Patent. The Claims passed by the patent office on February 19, 1957, on Micek’s patent are as follows: “1. A valve ball mounting for a toilet flush tank having an overflow pipe and outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket mounted on said pipe, hinge means carried by the bracket, a resilient yoke straddling said pipe to extend at its forward end portion over said ball and having free rear ends held by the resiliency of the yoke in pivotal engagement with said hinge means, stop means on said bracket coacting with the rear ends of said yoke and disposed to space the rear end portions of the yoke away from said hinge means and limit the yoke against lateral play to swing in a straight path lying in a plane with the center of said seat, and means connecting the ball with the forward end portion of said yoke. “2. A valve ball mounting for a toilet flush tank having an overflow pipe and outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket mounted on said pipe, a resilient yoke straddling said pipe to extend at its forward end portion over said ball and having free rear ends provided with trunnions pivotally engaged with said bracket and adapted to be • spread for disconnecting the yoke from the bracket, said trunnions having terminal end faces, stop means on the bracket coacting with the end faces of said trunnions and disposed to limit the yoke against lateral play to swing in a straight path lying in a plane with the center of said seat, and means connecting the ball with the forward end portion of said yoke. "3. A valve ball mounting for a toilet flush tank having an overflow pipe and outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket mounted on said pipe, a yoke straddling said pipe to extend at its forward end portion over said ball and having free rear ends provided with trunnions pivotally engaged with said bracket, lugs carried by the bracket and abutting the ends of said trunnions for limiting the yoke against sidewise movement on the bracket to swing in a straight path lying in a plane with the center of said seat, and means connecting the ball with the forward end portion of the yoke. “4. A valve ball mounting for a toilet flush tank having an overflow pipe and outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket mounted on said pipe, a yoke provided at its forward end portion with a beak having closely spaced sides defining an unobstructed area therebetween extending over said ball and formed at their rear ends with diverging offsets provided with rearwardly extending legs straddling said pipe and having trunnions piv-otally engaged with said bracket, and means extending between the sides of said beak and connecting the ball with said yoke, said offsets being disposed to engage said pipe when the yoke is swung upwardly and limit the ball to a shortened upward throw determined by the arc of said offsets. “5. A valve ball mounting for a toilet flush tank having an overflow pipe and outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket fixed to said pipe and including a body plate having spaced hinge lugs thereon and provided between said lugs with stop lugs facing said hinge lugs, a yoke extending at its forward end portion over said ball and provided with legs straddling said pipe and having trunnions thereon pivotally engaged through said hinge lugs to abut said stop lugs for limiting the yoke against sidewise movement on the bracket to swing in^a straight path lying m a plane with the center . ■. , . ,. of said seat, and means connecting the ball with the forward end portion of said yoke. 6. As a new article of manufacture, a valve ball mounting for toilet flush tanks including a bracket hav-mg spaced hinge lugs thereon and provided with a clamp for connecting ... . . ... _ . said bracket with an overflow pipe, a , . , . , , , . yoke adapted to carry a valve ball and ... ... . ...... provided with spaced resilient side ,. ... • ,, portions having trunnions thereon . , ,, . ... .... pivotally engaged with said hinge . ,, .. .. „ ,, f lugs, the side portions of the yoke ,. . . . . , , . » being adapted to be spread for free- ., f . „ ... ing said trunnions from said lugs, ... ... ... ’ and stop lugs carried by said bracket , , , ,. , „ .. , . „ to abut the ends of said trunnions for ..... ,. , ..... hmiting the yoke against sidewise movement on the bracket to swing m a straight path. “7. A valve ball mounting for a toilet flush tank having an overflow pipe and an outlet provided with a valve ball seat, and a valve ball coacting with said seat, a hinge bracket mounted on said pipe, a yoke composed of a length of resilient material formed medially with a loop having straight sides defining a slot therebetween and provided at their rear ends with rearwardly diverging offsets terminating in spaced rear-wardly extending legs straddling said pipe and having trunnions extending in alignment at the rear ends of said legs and pivotally engaged with said bracket supporting the yoke to extend at the loop thereof over said ball, and means extending through said slot fixing the ball to said loop and adjustable longitudinally of said slot for centering the ball with respect to said seat, the offsets of the yoke being disposed to engage said pipe when the yoke is swung upwardly and limit the ball to a shortened upward throw determined by the arc of said offsets, «8. A valve baU mounting for a toilet flush tank having an overñow and an ouü t vided with a , . ,, , , , , „ valve ball seat, and a valve ball co- .. ... , acting with said seat, a hinge bracket including a body plate having lateral ears thereon, one of said ears being provided with an L-shaped slot hav-mg a vertical portion extending transversely of said ear and a horizontal tion extending lengthwise „ .. , ,. of said ear and cooperating with the ... ,. „ ., . , , , _ vertical portion of said slot to define , ... , , , a corner lug m the angle between .. ,. ... , , , said portions of the slot, a strap ,. ... ,, , , . , , cooperating with the body plate to ., . , . . provide a clamp embracing said pipe, ... , . , . , : said strap being formed at one end ... ... . , with a tongue having an unmter- ... . .. .. , , rupted lower edge and provided at ., . ... , . .. its upper edge with a notch, said , . . ° . .,,, tongue being of a major width sub-ual to ^ ^ of the verticle portion of said slot and be_ ing, without tilting the strap and while the width of the strap faces the width of said body plate, slidably receivable through the vertical portion of said slot to dispose of said notch opposite said lug as well as laterally shiftable in the horizonal portion of said slot to engage said lug in said notch and connect the strap.at one end thereof with said ear, means connecting the strap at its opposite end to the other of said ears and binding the bracket on said pipe, spaced rearwardly projecting hinge lugs carried by the body plate, a yoke extending at its forward end portion over said ball and provided with spaced legs straddling said pipe and having trunnions thereon piv-otally engaged through said hinge lugs, means connecting the ball with the forward end portion of said yoke, and means carried by the body plate to coact with said trunnions and limit the yoke against lateral play to swing in a straight path lying in a plane with the center of said seat.” B. The Seal-0-Matic Patent. The claims of the Branch patent, assigned to Radiator Specialty Company, passed by the patent office on January 29, 1957, are as follows:, “1. A flush control unit comprising a collar strap arranged for clamping around a flush tank overflow pipe, said collar strap having a pair of ears offset outwardly therein at diametrically opposite positions with diametrically aligned pivot apertures in said ears, a yoke member formed with a pair of symmetrical leg portions joined at one end and extending adjacent the joined ends thereof in relatively closely spaced parallel relation for a substantial length and then spreading to terminate at inwardly angled pivot arm portions fitting said pivot apertures, with the inwardly extending ends thereof abutting said overflow pipe and thereby preventing any lateral shifting of said yoke member, and a valve ball secured at the closely spaced length of said leg portions by fastening means extended between said leg portions and seated on a clamping washer having opposite downwardly rounded edges reaching over said leg portions and thereby preventing said leg portions from spreading. “2. A flush control unit comprising a collar strap arranged for a clamping around a flush tank overflow pipe, said collar strap having a pair of ears offset outwardly therein at diametrically opposite positions with diametrically aligned pivot apertures in said ears, a yoke mem-. ber formed with a pair of symmetrical leg portions joined at one end and extending adjacent the joined ends thereof in relatively closely spaced parallel relation for a substantial length and then spreading to terminate at inwardly angled pivot arm portions fitting said pivot apertures with the inwardly extending ends thereof abutting said overflow pipe and thereby preventing any lateral shifting of said yoke member, and a valve ball secured at the closely spaced length of said leg portions by fastening means extended between said leg portions and seated on a clamping washer having opposite downwardly rounded edges reaching over said leg portions and thereby preventing said leg portions from spreading. “3. A flush control unit for use in combination with a flush tank drain housing having a valve ball seat formed therein and fitted laterally of said seat with an overflow stand pipe, said unit comprising a collar strap arranged for clamping about the full circumference of said overflow stand pipe at an adjusted position, said collar strap having a pair of ears offset outwardly therein at diametrically opposite positions with diametrically aligned pivot apertures formed in said ears, a yoke member formed with a pair of symmetrical leg portions joined at one end and formed at the other ends thereof within inwardly angled pivot arm portions fitting said pivot apertures with the inwardly extending ends thereof abutting said overflow pipe and thereby preventing any lateral shifting of said yoke member, said leg portions extending adjacent the joined ends thereof in relatively closely spaced parallel relations for a length sufficient to reach across said housing valve seat when said arm portions are fitted in said pivot apertures, and said leg portions being crimped inwardly in relatively closely spaced relation from the joined ends thereof for forming an anchoring eye thereat, a valve ball secured at the closely spaced length of said leg portions at an adjusted position in relation to said housing valve seat by fastening means extended between said leg portions and seated on a clamping washer having opposite downwardly rounded edges reaching outwardly over said leg portions and thereby preventing said leg portions from spreading, and a lift chain secured at one end in said anchoring eye.”

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?

Lois LINQUIST and Alberta E. Burns, Appellees, v. Otis R. BOWEN, Secretary of the Department of Health and Human Services, and United States Railroad Retirement Board, Appellants. Nos. 86-1486, 86-1790 and 86-2075. United States Court of Appeals, Eighth Circuit. Submitted Sept. 8, 1986. Decided March 9, 1987. Rehearing and Rehearing En Banc Denied June 3, 1987. Frank A. Rosenfeld, Washington, D.C., for appellants. Gill Deford, Los Angeles, Cal., for appellees. Before LAY, Chief Judge, HEANEY and BOWMAN, Circuit Judges. LAY, Chief Judge. Lois Linquist, now 78 years old, receives retirement benefits under the Social Security Act (SSA) and the Railroad Retirement Act (RRA). Each Act provides for a fifty percent reduction in benefits if a recipient’s outside earnings exceed a certain level in a year. See 42 U.S.C. § 403(b) (1982) and id. § 403(f)(3) (the SSA provisions); 45 U.S.C. § 231a(g)(2) (1982) (the RRA provision). Linquist earned $3415 in 1977, when the amount of earnings exempt under the Acts was $3000. Pursuant to the RRA recoupment provision, the Railroad Retirement Board (the Board) notified Linquist that she had been overpaid by $207, fifty percent of her excess earnings. She repaid that amount to the Board. Seven months later, the SSA similarly informed Linquist that she owed it $207 because of the same $415 of 1977 excess earnings. The agency stated that it would withhold that amount from her future benefits. Linquist unsuccessfully challenged that action through the SSA’s administrative process. She then filed her complaint in district court, naming the Board and the Secretary as defendants.5 The district court, on January 31, 1986, ordered relief for a nationwide class both prospectively and retroactive to 1972. See Linquist v. Bowen, 633 F.Supp. 846, 866-67 (W.D.Mo.1986). On May 22, 1986, the court denied the defendants’ request for a stay and ordered full implementation of the remedial program. This court granted the government’s motion for a stay on July 17, 1986, pending the present appeal. On appeal, the government challenges the class certification, the district court’s jurisdiction over the Board, and the merits of the decision reached. For the reasons set forth below, we affirm the district court’s decision in all respects. I. Jurisdiction The district court based its jurisdiction on the mandamus power under 28 U.S.C. § 1361 (1982). See 633 F.Supp. at 853-57. The court also noted that 28 U.S.C. § 1337 (1982), which provides jurisdiction for civil cases under laws regulating commerce, was an alternative basis for its jurisdiction. See 633 F.Supp. at 857 n. 5. The defendants raise two distinct challenges to the district court’s exercise of jurisdiction. First, the defendants claim that the class members’ complaints were never properly “presented” to the Secretary, thus 42 U.S.C. §§ 405(g) and (h) precluded judicial review of all but Linquist’s claim. The defendants argue that resort to the mandamus statute to avoid the exclusive provisions of § 405(h) was improper. Second, the defendants challenge the district court’s exercise of jurisdiction over the Board, citing 45 U.S.C. §§ 355(f) and (g) (as incorporated by id. § 231g), which provide for exclusive review of Railroad Retirement Board decisions in the courts of appeals. A. Class Certification The district court certified a nationwide class, which includes the following: All persons who are receiving or who will receive both Social Security retirement benefits and Railroad Retirement benefits and who have been or will be denied the right to retain fifty percent of their excess earnings pursuant to the joint actions of the Social Security Administration and the Railroad Retirement Board. 633 F.Supp. at 861-62, 867. The agencies challenge this certification, as they assert that only plaintiff Linquist’s claim is properly advanced for judicial consideration. Under the SSA, the first prerequisite to judicial review is that the claimant “present” a claim to the Secretary; the second requires the claimant to exhaust fully the administrative process. Bowen v. City of New York, — U.S. --, 106 S.Ct. 2022, 2031, 90 L.Ed.2d 462 (1986); Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). According to the defendants, Linquist was the only person to meet the nonwaivable presentment requirement. The plaintiffs counter that presentment did take place, when the class members provided their earnings records to the agencies. As the defendants acknowledge, nearly all of the cases in this area deal with exhaustion, rather than with presentment. However, as the Ninth Circuit noted in Lopez v. Heckler, 725 F.2d 1489, 1503 (9th Cir.), vacated on other grounds, 469 U.S. 1082, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984), the courts that have dealt with presentment have interpreted the requirement “liberally.” Presentment is procedurally necessary to establish entitlement to benefits, and presentment of a claim is the natural first step that any individual seeking benefits would take. The members of the class certified below have taken this step, and they have received benefits. Subsequently, they have provided the Secretary records of their outside earnings. They thus have performed the affirmative acts required by law. Proper presentment in this nonentitlement case does not necessitate a further claim, one challenging the recoupment of benefits. The Secretary is quite aware of a recipient’s uninterrupted claim for the full benefits allowed by law, whether or not the particular recipient has actively challenged the double offset. We thus find the class members’ claims against the Secretary are properly before the court under § 405(g) of the SSA. B. Jurisdiction Over the Railroad Retirement Board The district court recognized that the RRA vests exclusive jurisdiction in the courts of appeals over appeals from Board decisions. Notwithstanding the provisions of 45 U.S.C. §§ 355(f) and (g) (incorporated by id. § 231g), the district court exercised jurisdiction over the Board under 28 U.S.C. § 1361. In challenging the district court’s jurisdiction, the defendants essentially conclude that this case never could be heard in a single court, given the differing modes of judicial review. They primarily cite Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1196-98 (7th Cir.1983) (rejecting district court jurisdiction over Board), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984). We agree, however, with the District of Columbia Circuit’s statement in Burns v. United States R.R. Retirement Bd., 701 F.2d 189 (D.C.Cir.1983), which the district court quoted, that “ ‘Congress did not intend to create a procedural conundrum of this kind.’ ” See 633 F.Supp. at 856 (quoting Burns, 701 F.2d at 192 n. 11). We think the district court properly resolved the dilemma by resorting to the mandamus statute. The presence of both defendant agencies in one case is essential to proper determination of this important issue. The district court’s exercise of mandamus jurisdiction allowed the Board to be joined, thus facilitating combined review of the agencies’ interpretations of their respective recoupment statutes. We find the present circumstances more than sufficient to reach the high level of necessity that mandamus jurisdiction requires. We conclude that the district court had proper jurisdiction to hear all aspects of this case. II. Statutory Construction Our objective in interpreting a federal statute is to achieve the intent of Congress. See United States v. American Trucking Ass’ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940); Groseclose v. Bowen, 809 F.2d 502, 505-06 (8th Cir.1987); Stribling v. United States, 419 F.2d 1350, 1352 (8th Cir.1969); Lambur v. Yates, 148 F.2d 137, 139 (8th Cir.1945). A primary rule of statutory construction is that when a court interprets multiple statutes dealing with a related subject or object, the statutes are in pari materia and must be considered together. United States v. Freeman, 44 U.S. (3 How.) 556, 564-65, 11 L.Ed. 724 (1845); N. Singer, 2A Sutherland Statutory Construction § 51.-01-.03 (C. Sands 4th ed. 1984). The proper comprehensive analysis thus reads the parts of a statutory scheme together, bearing in mind the congressional intent underlying the whole scheme. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 607-12, 99 S.Ct. 1905, 1910-13, 60 L.Ed.2d 508 (1979); United States v. Freeman, 44 U.S. (3 How.) at 564-65; Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325, 1332 (8th Cir.1985). There can be no question that the challenged provisions of the Social Security Act, 42 U.S.C. §§ 403(b) and 403(f)(3), and the Railroad Retirement Act provision, 45 U.S.C. § 231a(g)(2), are in pari materia. In fact, their language is identical due to the RRA incorporation of the SSA. In this situation, we must consider the legislative history of either Act as applying to both. And, more importantly, we must consider the congressional intent behind the entire worker retirement benefits scheme in determining how these Acts should be applied in tandem. When Congress amended the SSA — and thus the RRA — in 1972, the clearly articulated purpose was to encourage retired persons to work. This underlying intent is not disputed by the parties in this case, and it has been recognized by the court below, see 633 F.Supp. at 863-66, by the majority in Burns, see 701 F.2d at 196, and by Judge MacKinnon’s dissent in Burns, see id. at 209-10. Everyone agrees that the former deduction of one dollar for every one dollar in excess earnings discouraged recipients from working. Under the 1972 amendments, a person loses only one dollar for every two dollars of excess earnings. The House Report accompanying this change was strongly worded: [Y]our committee believes that the American people do not want a system which results in promoting welfare as a way of life. Your committee’s deliberations, therefore, have been aimed toward providing adequate assistance to those who cannot help themselves, while at the same time creating a system of assistance which will maximize the incentive and the obligation of those who are able to work to help themselves. H.R.Rep. No. 231, 92d Cong., 1st Sess. 2, reprinted in 1972 U.S. Code Cong. & Ad. News 4989, 4990. The Senate Report was equally definite: “The committee agrees with the President that work should be rewarded and its value to the worker increased. * * * A number of * * * provisions [including the excess earnings provision] are included in the committee bill which reflects the committee’s aim of increasing the benefits of working.” S.Rep. No. 1230, 92d Cong., 2d Sess. 28 (1972). As the district court and the Bums opinions have noted, no congressional intent was expressed either way regarding the 100% offset for dual beneficiaries. See Burns, 701 F.2d at 196, 198; id. at 210-12 (MacKinnon, J., dissenting); Linquist, 633 F.Supp. at 863. Congress apparently did not consider the question. Cf. Freeman v. Harris, 625 F.2d 1303, 1307 (5th Cir.1980) (“In essence, then, we are seeking to determine the intent of Congress as applied to a factual situation which obviously it did not foresee.”). To draw a negative inference of congressional intent from vague or missing legislative history would be hazardous at best. Nor should we speculate, as the government suggests that we should, that Congress intended to deny the amendment’s benefit to dual recipients like Linquist. Cf. St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 550, 98 S.Ct. 2923, 2934, 57 L.Ed.2d 932 (1978) (“If Congress had intended to limit its scope * * * it is not unreasonable to assume that it would have made this explicit.”). Furthermore, congressional inaction in the face of ongoing 100% offsets is not sufficient to demonstrate approval of the practice. Cf. Morton v. Ruiz, 415 U.S. 199, 230, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974) (rejecting implicit congressional ratification of agency policy when no proof that Congress knew of the policy); N. Singer, supra, § 49.10, at 408. Freeman v. Harris, 625 F.2d 1303 (5th Cir.1980), provides strong support for the district court’s decision in our case. Freeman presented a closely analogous situation involving benefit offsets by the Secretary of Health, Education and Welfare. The Secretary’s practice was to offset both social security disability payments and black lung benefits against state workers’ compensation benefits. Because both federal programs in Freeman allowed reduced benefits to workers’ compensation recipients, the plaintiff received less under the three programs than he would have without the state program. The Fifth Circuit overturned the Secretary’s literal application of the Acts involved. The court found it unacceptable to use Acts designed to help disabled miners to actually harm them. See id. at 1307-08. Even though Congress had not foreseen the exact situation that developed, the court honored the beneficent intent underlying the Acts. Like the Fifth Circuit in Freeman, we must construe in pari materia provisions in light of recognized legislative policy. Congress’ desire to encourage outside employment must be weighed heavily in our attempt to sort out the entire SSA and RRA scheme. This policy conflicts with the position of the Secretary and the Board. Congress would not want to encourage some, but not other, beneficiaries to work. It is clear that Congress intended to encourage all beneficiaries to work, including dual-source recipients like Lois Linquist and the other classmembers. The statutory scheme makes sense only if this overriding congressional intent is preserved. Cf. Heckler v. Edwards, 465 U.S. 870, 879-85, 104 S.Ct. 1532, 1537-41, 79 L.Ed.2d 878 (1984) (following intent of Congress despite literal language of statute). III. Conclusion For the reasons set forth above, we conclude that the district court properly ordered the SSA and RRB to coordinate their application of the excess earnings deduction. The Secretary and the Board together may not recoup more than a total of one dollar for every two dollars earned above the statutory amount. We reinstate the district court’s order to the agencies to produce a plan for this coordination and to devise procedures for retroactive relief. The judgment is affirmed. . Linquist's benefits under the SSA are based on her own work record. From the RRA she receives survivor benefits, derived from the work record of her deceased husband. . Section 403(b) provides: “Deductions * * * shall be made from any payment or payments under this subchapter to which an individual is entitled * * * if for such month he is charged with excess earnings, under the provisions of subsection (f) of this section * * . Section 403(f)(3) provides: "[A]n individual’s excess earnings for a taxable year shall be 50 per centum of his earnings for such year in excess of * * * the applicable exempt amount * * * >1 . Section 231a(g)(2) provides: "Deductions * * shall be made from any payments to which a survivor is entitled * * * if for such month such survivor would be charged with excess earnings under [42 U.S.C. § 403(f) ] * * *.’’ . The exempt amount has increased over time, and currently is approximately $6000. See 42 U.S.C. § 403(f)(8)(D) (1982) (instructing Secretary to publish new exempt amount to match cost-of-living benefits increases). . Plaintiff Loretta Burns intervened in this action. The agencies acted in reverse order in her case, but with the same result. The Board and the Secretary each sought to recoup $700, fifty percent of Burns’ excess earnings in 1975. The court below dismissed Burns’ claims on res judicata grounds, due to the adverse decision in Burns v. United States R.R. Retirement Bd., 701 F.2d 193 (D.C.Cir.1983). Burns has not appealed the dismissal of her claims, and we do not address the portion of the district court’s opinion relating specifically to her. . The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri, presiding. . The year 1972 is significant because until that year both the SSA and the RRA allowed 100% offset of excess earnings. See Pub.L. 92-603, § 105(a)(3), 86 Stat. 1329 (1972). . In 42 U.S.C. § 405(g) the SSA provides in part: Any individual, after any final decision of the Secretary made after a hearing to which he was a party * * * may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. . The exhaustion requirement, by contrast, is waivable. See Mathews, 424 U.S. at 328, 96 S.Ct. at 899. Courts often have not required exhaustion in cases like the present one, with or without formal waiver by the Secretary. See Bowen, 106 S.Ct. at 2031; Mathews, 424 U.S. at 330-32, 96 S.Ct. at 900-01; Mental Health Ass’n v. Heckler, 720 F.2d 965, 969-70 (8th Cir.1983). Given the lack of success in Linquist’s administrative appeals, we conclude that waiver of exhaustion is proper here for the entire class. . This case involves recoupment caused by excess earnings, not entitlement to benefits. The cases cited by the government are in the context of entitlement, either original or after a termination. See Heckler v. Lopez, 463 U.S. 1328, 1328-29, 104 S.Ct. 10, 10-11, 77 L.Ed.2d 1431 (1983); City of New York v. Heckler, 742 F.2d 729, 735 (2d Cir.1984), aff'd sub nom. Bowen, 106 S.Ct. at 2022. Those cases are inapposite in the present context. As we stated in the text, the plaintiffs have presented their claims for benefits, and the agencies have found them entitled to benefits. This status has never been terminated. Instead, the present dispute is outside the traditional scope of 42 U.S.C. § 405(h), which requires entitlement decisions to be finalized inside the agency before any suit in federal court. Once the entitlement decision has been made and settled, the original presentment and subsequent earnings reports suffice to invoke the district court’s jurisdiction. . Even if the claims were not properly presented, we think the district court's exercise of mandamus jurisdiction would have been permissible. See Ellis v. Blum, 643 F.2d 68, 77 n. 10 (2d Cir.1981) (indicating no presentment needed under mandamus provisions). The courts have long wrestled with the question of whether 42 U.S.C. §§ 405(g) and (h) preclude district court mandamus jurisdiction over the Secretary in Social Security cases. The Supreme Court has reserved the question several times. See Bowen, 106 S.Ct. at 2028 n. 9; Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984); Califano v. Yamasaki, 442 U.S. 682, 698, 99 S.Ct. 2545, 2556, 61 L.Ed.2d 176 (1979); Norton v. Mathews, 427 U.S. 524, 529-30, 96 S.Ct. 2771, 2774-75, 49 L.Ed.2d 672 (1976); Mathews v. Eldridge, 424 U.S. 319, 332 n. 12, 96 S.Ct. 893, 901 n. 12, 47 L.Ed.2d 18 (1976). Several courts of appeals, including this one, have held that § 405(g) does not preclude the exercise of mandamus jurisdiction. See Lopez v. Heckler, 725 F.2d 1489, 1507-08 (9th Cir.), vacated on other grounds, 469 U.S. 1082, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984); Mental Health Ass’n v. Heckler, 720 F.2d 965, 971 n. 17 (8th Cir.1983); Belles v. Schweiker, 720 F.2d 509, 512-13 (8th Cir.1963); Ellis, 643 F.2d at 78-82; Martinez v. Richardson, 472 F.2d 1121, 1125 (10th Cir.1973). Mandamus is an extraordinary means of federal court power, reserved for special situations of necessity. Ringer, 466 U.S. at 616, 104 S.Ct. at 2022. This is such a situation. First, mandamus is appropriate in a Social Security case when the dispute does not involve entitlement to benefits per se. Belles, 720 F.2d at 512-13; Mental Health Ass’n, 720 F.2d at 971 n. 17. This case involves a collateral issue — the propriety of double recoupment. This is not an issue that Congress delegated to the agencies. Cf. Mental Health Ass’n, 720 F.2d at 971 n. 17 (distinguishing procedural decision from eligibility determinations delegated to agency). We find that the court’s exercise of mandamus jurisdiction did not contradict sections 405(g) and (h). . This is not the first case in which a district court has exercised jurisdiction over the Board. See United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980); Yost v. Schweiker, 699 F.2d 438 (8th Cir.1983); Finnerty v. Cowen, 508 F.2d 979, 984 (2d Cir.1974). But see Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193 (7th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984). . We leave for another day the decision on the applicability of 28 U.S.C. § 1337 (1982) in cases of this type. We do note that some support for applying § 1337 is provided in Finnerty v. Cowen, 508 F.2d 979, 983-84 (2d Cir.1974). . The allusion to the President stemmed from President Nixon’s support of the amendments: A feature of the present social security law that has drawn much criticism is the so-called "retirement test,” a provision which limits the amount that a beneficiary can earn and still receive full benefits. * * * The present retirement test actually penalizes social security beneficiaries for doing additional work or taking a job at higher pay. This is wrong. In my view, many older people should be encouraged to work. Not only are they provided with added income, but the country retains the benefit of their skill and wisdom; they, in turn, have the feeling of usefulness and participation which employment can provide. President’s Message to Congress Transmitting Proposals for Welfare Reform and Social Security Amendments (Sept. 25, 1969), in House Comm, on Ways and Means, 91st Cong., 1st Sess., the President’s Proposals for Welfare Reform and Social Security Amendments 1969, at 12 (Comm.Print 1969). . We recognize the canon of construction giving some deference to an agency’s interpretation of a statutory plan that it is required to implement. See Young v. Community Nutrition Inst., — U.S. -, 106 S.Ct. 2360, 2364-65, 90 L.Ed.2d 959 (1986); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Department of Social Services v. Bowen, 804 F.2d 1035, 1037-38 (8th Cir.1986). Like the Fifth Circuit in Freeman, however, we refuse to give absolute deference to the agencies. This court often has interpreted statutes in a way contrary to the administrative viewpoint. See, e.g., Groseclose v. Bowen, 809 F.2d 502, 505-06 (8th Cir.1987); Missouri v. Andrews, 787 F.2d 270, 286 (8th Cir.1986); Costello v. United States R.R. Retirement Bd., 780 F.2d 1352, 1354-55 (8th Cir.1985). As the Supreme Court has said: "Although an agency’s interpretation of the statute under which it operates is entitled to some deference, ‘this deference is constrained by our obligation to honor the clear meaning of a statute as revealed by its language, purpose, and history.”’ Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 61 L.Ed.2d 980 (1979) (quoting International Bhd. of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979)).

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.

DEEPFREEZE APPLIANCE DIVISION, MOTOR PRODUCTS CORP. v. NATIONAL LABOR RELATIONS BOARD. No. 10997. United States Court of Appeals Seventh Circuit. March 29, 1954. Edward H. Hatton, Edward E. Lynn, Chicago, Ill., Johnston, Thompson, Raymond & Mayer, Chicago, Ill., of counsel, for petitioner. 5 David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Frederick U. Reel, George J. Bott, Gen. Counsel, Wiley M. Craft, Attys., National Labor Relations Board, Washington, D. C., for respondent. Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge. Petitioner seeks to set aside and respondent to enforce an order of the National Labor Relations Board entered in pursuance of a decision of a three-member panel, rejecting the trial examiner’s report, finding that petitioner’s employee Ower had been discriminatorily discharged, within the meaning of Sections 8(a) (8) and 8(a) (1) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 158(a) (1, 3), and 29 U.S. C.A. § 160(f), and directing his reinstatement. The complaint, filed in pursuance of a charge made by Ower, averred in substance that on November 21, 1952, the company, acting through its director of industrial relations, Greene, discrimina-torily discharged Ower. Petitioner admitted that it was subject to the Act and that it had terminated Ower’s employment but denied that it had done so discriminatorily or that it had engaged in any unfair labor practice. Having heard the evidence, the examiner filed an intermediate report recommending that the complaint be dismissed. Upon the general counsel’s exceptions thereto, the three-member panel of the Board, without additional evidence, disapproved the report and entered the order here involved. Member Peterson dissented. Petitioner is engaged in the manufacture of home appliances and certain products for the national defense. As the examiner found, its history of relationship with the several unions in its plant at various times has been one “wholly unmarked by any display of anti-union bias.” Contests between different unions had arisen from time to time, but these were laid to rest when, on August 15, 1952, the United Automobile, Aircraft and Agricultural Implement Workers, a CIO union, hereinafter referred to as UAW, obtained a majority of the votes cast in a representation election of maintenance and production employees, in a contest between that organization and the International Association of Machinists, an AFL association, hereinafter referred to as IAM. Following the election, UAW was certified as the representative and on September 2, 1952, entered into an interim collective bargaining agreement with the company, which continued in effect until February 7, 1953, when a final agreement was executed. In the five-months period between September 2, 1952 and February 7, 1953, petitioner and UAW’s representatives were engaged almost continuously in collective bargaining, negotiating the final agreement and hearing various grievances. Ower had been employed from January 15, 1951, as a maintenance machinist in the tool and die department. In 1952, he was reclassified as a tool and die maker. After the election he authorized petitioner to check off to UAW his dues in that union. He had formerly been a steward of IAM. Apparently his sympathies were still with the IAM, despite the fact that he had consented to have his dues checked off as a member of UAW. There was some discord among the employees, even though UAW had won the election, and this in turn had led to discussion in the plant during working time. As a result, as the examiner found, Farrell, the foreman, about November 7, 1952, called together the eight or ten men employed in the tool room and told them that there should be no more time spent on caucusing or union activities during working hours, and warned them specifically about loitering or wandering around the building in violation of the contract between the company and UAW and the plant rules. Some two weeks later, on November 20, 1952, Ower drafted petitions which he described as calling for a new election or for decertification of the UAW as collective bargaining agent. These he prepared partly on company time. After completing them he distributed some of them, on company time, among fellow-employees in the tool room. He admitted that he had at that time urgent work at his bench, to be completed as soon as. possible, for the aircraft engine division. His absence from work was unauthorized by his superior, and his activities in the respects mentioned were unknown to petitioner at the time of their occurrence. At a grievance meeting held that day or the day following, the UAW bargaining committee complained about Ower’s activities and said that something should 'be done because he was circulating petitions seeking to start another union, on company time, and that if something was not done a riot might occur. UAW’s .representative asserted that Ower should be discharged because he had violated the rules of the company and that he was no better than the stewards, who had to abide by the rules and who had to get permission if they, left their working places. Mr. Greene commented that “we just can’t discharge á man that quick” but said that he would “check into it further and find out” what the facts were. The meeting adjourned without final action, but Farrell and Greene spent some time going over the situation, and, after considering the fact that Ower had left his work and had loitered and wandered about the plant, finally tentatively agreed that he should be discharged. However, Greene desired “to sleep” on the proposition. The next day Greene called Ower and Farrell into his office and informed Ower that he was being discharged because of his loitering and wandering around the plant in violation of a previous warning, as well as for poor workmanship. Greene testified that Ower admitted that he had wandered about the plant and that he had received the prior warning. The notice of discharge mentioned two grounds for the action, one, loitering and wandering, after having been previously warned, and, two, poor workmanship. He was advised that he might appeal from his discharge through the grievance procedure. The existing contract between the company and the UAW provided that any employee should have “at least one warning notice of dissatisfaction.” Neither the contract nor the rule stated whether this warning should be oral or written. The evidence showed that both forms had been used in the past. The company rules stated that petitioner had no intention to impose unreasonable rules or regulations, yet that certain regulations must be observed. It was provided that deliberate violation of any of the rules would be cause for discharge. One of the regulations forbade ‘‘wandering about the plant during working hours.” The facts thus far recited are clearly sustained by the record. The examiner, •after hearing the evidence,; exonerated Ower from the charge of .defective workmanship and then proceeded to determine whether he had been discharged in violation of the Act. He found that the tool room employees had been .warned by Farrell, as we have stated; that the oral notice constituted a sufficient warning to Ower to refrain from violating company rules; that loitering or wandering around the plant was prohibited by company rules 'and regulations and was cause for discharge'.; He found no bias or prejudice on- the part of the petitioner against either the UAW or the IAM but said, that the controversy between the two “left the company in the middle.” He commented that “working time is for work” and found that Ower had prepared petitions and papers partly on his own time and partly on company time, had circulated them on company time, without permission to leave his bench to do so, and that he had violated the rule about wandering about the plant during working hours. Consequently he concluded that Ower had been discharged for cause, after warning, and recommended that the complaint be dismissed. The majority of the panel, on the contrary, found that the company had not followed contract procedure in discharging Ower, and that he had been discharged because of his anti-UAW activities and not for the reasons found by the examiner. In this situation we have been confronted with the necessity of determining whether the general counsel of the Board has affirmatively proved by substantial evidence on the record as a whole that petitioner was discharged solely because of his anti-UAW activities, entailing, of course, a careful examination of the record. It is apparent that the examiner and one member of the Board found that Ower had been discharged without violation of the law, whereas two members of the Board concluded that he had been discriminatorily discharged. Consequently we have found it necessary to determine which of these two findings is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Bearing in mind that frequently the most telling part of evidence on the issue of veracity is the bearing, the mien, the manner and the delivery of the witness, that these are usually the dominating factors and that, as has been said, “we are not to be reluctant to insist that an examiner’s findings on veracity must not be overruled without a very substantial preponderance in the testimony”. National Labor Relations Board v. Universal Camera Corp., 2 Cir., 190 F.2d 429, 430, we have examined the entire record. As a result, we conclude that the findings of the examiner were supported by the record as a whole before him, that not only is there no preponderance of the evidence in favor of the complaint but that the Board, wholly without justification in the evidence, has ignored the examiner’s finding and in effect reversed it. The record is undisputed that petitioner is wholly free of any unfavorable attitude toward any labor union and has dealt fairly and freely with the different unions with whom it has come in contact in its business experience. Indeed, the Board itself found that “respondent Deepfreeze discharged Ower not to satisfy any illegal purpose of its own * * * ”. In spite of this conclusion, however, the Board apparently was misled into a collateral inquiry wholly irrelevant to the actual facts. It inferred that the company, at the insistence of UAW, had discharged Ower because he was engaged in union activities. This was contrary to the examiner’s express findings of fact and ignores entirely the convincing character of the evidence to the contrary. It is clear from the record that Greene refused to discharge Ower at the insistence of the UAW and did not discharge him until learning that the employees in the tool room had been warned specifically that they should not be wandering or loitering around the workroom, on company time, for any purpose. Ower’s own statement is that he had left his work bench without permission of a superior. He had visited with other tool makers and submitted to them petitions that he had drawn partly on company time. These activities were clearly within the terms, loitering and wandering about the tool room, forbidden by the company rules. He was notified that this was one of the reasons for his discharge and that, if he was not satisfied, he could appeal the matter by way of grievance. This he failed to do. The Board seemed to think that the fact that the warning was not in written form was fatal to its validity, yet the rules of the company and the provisions of the contract included no stipulation that the warning should be in writing. In the absence of any requirement of written notice, it can not be said that oral notice to the eight or ten men in the tool room was ineffective. Indeed, it is not perceived how specific notice to each of the eight or ten men could have been any more significant than notice to them congregated together in one group addressed by the foreman. We agree with the examiner and the dissenting member of the Board that the warning given was sufficient under the contract and the rules of the company. It is perfectly clear that Ower did not exhibit the proper regard for his employer’s rights, for the contract or for the rules of the company. He failed to recognize that cooperation on the part of the employees and the company are essential to the healthful promotion of the business in which both are engaged and that all his working time belonged to the company. He wrongfully deprived his employer of part of his time, in wandering and loitering about during working hours after warning. We conclude that the examiner was correct in his findings and conclusions and that the general counsel failed entirely to sustain the burden of proving improper action upon the part of the petitioner. The examiner saw the witnesses; he observed their manner upon the stand; he heard their stories; he passed upon their creditability and in the end found and determined that the motivation of the company was entirely free of anything in violation of the Act. We agree. Accordingly the order is set aside and the petition to enforce it is denied.

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"?

HOWARD v. ST. LOUIS-SAN FRANCISCO RY. CO. et al. ST. LOUIS-SAN FRANCISCO RY. CO. v. HOWARD et al. Nos. 13899, 13900. United States Court of Appeals Eighth Circuit. Sept. 11, 1951. Victor Packman, St. Louis, Mo. and Joseph C. Waddy, Washington, D. C. (Henry D. Espy, St. Louis, Mo. and Charles H. Houston, Washington, D. C., on the brief), for Simon L. Howard, Sr. A. J. Baumann, St. Louis, Mo. (E. G. Nahler and M. G. Roberts, St. Louis, Mo., on the brief), for St. Louis-San Francisco Ry. Co., Charles R. Judge, St. Louis, Mo. (W. Donald Dubail, St. Louis, Mo., on the brief), for Brotherhood of Railroad Trainmen and C. O. Carnahan, General Chairman, etc. Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges. JOHNSEN, Circuit Judge. For more than 40 years, there has existed historically on the “Frisco” Railway a class of positions and employees known as “train porter.” The essence of the duties of this class or craft has always been the performance of the necessary braking work on the head end of Frisco’s passenger trains. The holders of the position have been required to undergo the same training and to possess the same qualification as those occupying the similar general position of brakeman. The job of train porter has been open only to negroes and, because the group has lacked the organizational strength and hold of the brakemen, the wage scale of the position (except during part of the period that the railroads were operated by the Government .in and immediately following World War I) has always been less tiran that of the position of brakeman. There have existed the further differences between the two separately established classes or crafts of employees, that the position of train porter is confined to passenger trains alone and its braking work limited solely to the.head end thereof,, and that its duties have also included the tasks of keeping the coaches clean and assisting passengers in getting on and off the train. These aisle-sweeping and passenger-assisting tasks, however, are simply minor and incidental, occupying only, as the record shows, approximately five per cent of a train porter’s time. In terms of railroad fact and job reality, inherent and incapable of misunderstanding, it is plain that the position of train porter has had existence only because of the braking duties attached to it and that only because it has made unnecessary the establishing of a head-end brakeman’s position on such trains has it had a 40-year survival. Economically and functionally, in free railroad operation, the establishment of the one of such positions on a passenger train necessarily will exclude the existence of the other on it. These facts are background in the controversy that is before us. The suit involved is one brought individually and representatively, by a train porter on the Frisco, holding that position since 1917, against the Railway, the Brotherhood of Railroad Trainmen and the General Chairman of the Brotherhood, to prevent an agreement made between the Brotherhood and the Railway from being used to oust him and the other Frisco train porters individually and as a class from their jobs ánd from the Railway — the agreement in its practical and understood' effect being alleged to have required the Railway to convert the position of train porter into the position of brakeman, with the Brotherhood refusing' to permit the Railway to treat the conversion as constituting merely a change in job nomenclature and- as effecting simply a consolidation of the two similar crafts and, as such, imposing upon the Brotherhood, under its statutory obligation as bargaining agent of the assimilating craft, the duty of protecting equally with its own members, those comprising the merged craft, in their inherent work right, attained employment status and resulting seniority incidents. More specifically stated, the complaint in effect sought (1) to have declared illegal, in its attempted use to strip the train porters of their jobs by abolishing their class or craft and establishing the position of brakeman for the work, with no change in essential duty or required skill for the job, an agreement made between the Railway and the Brotherhood that “Effective April 1, 1946, the practice of train porters performing work generally recognized as Brakeman’s duties will be discontinued;” (2) to prevent the members of the Brotherhood from claiming and taking over the positions of the train-porter group, to the latter’s exclusion, as a right created by the agreement; (3) to enjoin the Railway from ousting the train porters from their jobs and employment on the basis of the agreement; and (4) to have it declared that - in any event a notice given by the Railway to the train porters on March 9, 1946, immediately following and in consequence of the making of the agreement, that the-position of train porter was being abolished as of April 1, 1946, and that their employment would accordingly be terminated on that date, was of no effect, as being violative of the requirement of the Railway Labor Act, 45 U.S.C.A. § 156, that at least 30 days notice must be given of any intended change in agreements affecting working conditions. The agreement had been exacted from the Railway, as the only means open to it to avert a strike which the Brotherhood had called of its members. The Railway’s action in abolishing the position of train porter and terminating the employment of the group holding that position was admitted by it to have been taken solely because of and to enable it to carry out the exacted agreement. And in entering into the exacted agreement and undertaking to carry it out, the Railway did not recognize any right or basis in the brakemen to take over and hold the jobs involved, as against the train porters, except such as the agreement itself had created. The controlling question here is whether the agreement and its use, on the basis of its terms and making, present merely a situation of jurisdictional dispute, such as in the first instance would require an invocation by the train porters of the National Railroad Adjustment Board’s interpretative functions, for resolution of the existing rights, before any element of justiciability could properly be said to be involved. See Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. The trial court viewed the situation as being simply of that nature. Howard v. Thompson, D.C., 72 F.Supp. 695. From the recitation preceding, it will be noted that the agreement does not involve, as in the ordinary situation of jurisdictional dispute, an attempted shift in some mere incident of work as between two continued classes of positions or in some mere segment of individual jobs as between two preserved crafts of employees. The agreement reached out to take over, by forced action, without regard to basis, the entire positional field of another craft, with the industrially inevitable, and so legally intended, result that that 40-year established and recognized separate craft would be pushed off the Railway and cease to have existence. Only abolition of the historical position and craft of train porter could provide room for the position and craft of brakeman to move into the 40-year separately existing field. What the agreement therefore was meant to do was to compel the Railway to get rid of the position of train porter on its passenger trains and to establish the position of head-end brakeman in its stead. This implicit contractual reality the artful language used by the Brotherhood in the exacted agreement is not capable of concealing. Cf. Hunter v. Atchison, T. & S. F. Ry. Co., 7 Cir., 171 F.2d 594, 597, 598. And this total appropriation of previously separate-class positional field and abolition of established-craft historical existence was, as has been stated, proximately being made to occur on the basis of bare exaction alone. In neither terms nor circumstances of the contracting involved did the Railway deal with the Brotherhood on the basis of the brakemen having any right to the train porters’ positional field, except as a forced confiscation and turning over by the Railway of the train porters’ rights as the cost to it of having a Brotherhood strike called off. Further repeating, the only right which the Railway recognized in the brakemen to occupy the train porters’ field, in both its dealings and contractual consummation, was whatever the agreement itself had created. And the Railway’s action in abolishing the position of train porter and terminating the employment of those holding that position was taken solely to make possible the creation and effectuation in the brakemen of such a right of occupancy as an obligation imposed upon it by the exacted agreement. No dispute has ever existed or now exists between the Railway and' the train porters as to the latter’s right to continue to occupy their positional field, if the agreement in its making or its consequence, is invalid, so that the Brotherhood and its members would not be entitled to claim any exclusionary right on the basis of it. Again then, only the exacted agreement and the Brotherhood’s claim of right under it are therefore proximately responsible for what is being made to happen to the train porters. Thus, on the basis of the terms and circumstances of the parties’ dealings and in the carrying out of what they mutually arrived at, the situation stands contractually as one of attempted predatory seizure and appropriation, by one railroad craft, of another’s entire and 40-year established positional field, with the contemplated abolition of that craft as such, and with the assimilating craft refusing to regard its thus acquired right of positional absorption — involving no change in essential duty or skill as to the job but in industrial reality simply a change in nomenclature or designation of the position itself — as imposing any obligation upon it or its statutory representative to protect the historical and craft-orphaned holders of the positional field in their previous job right, acquired employment status and resulting seniority relationship. We think that all that such a naked contractual attempt by one craft to annex the entire positional field of.another craft and so to secure the latter’s abolition —as is here reflected by the circumstances of the parties’ dealings and the agreement reached, in their relation to the admitted nature of that positional field and the uncontrovertible fact that only its braking duties have been the basis of the craft’s 40-year industrial existence and recognition —could properly be regarded as effecting, within the purview and purposes of the Railway Labor Act, and in valid effect generally, would be a merging of the two previously separate but similar crafts and an accompanying assimilation of the members of the consolidated craft into the annexing craft. If the situation should not be s.o regarded and treated, then the bald predatory exaction from the Railway of an obligation to deprive the train porters of their positional field and jobs, not constituting a confirmation between the parties of something previously owed or having other proper and mutual dealt-on contractual basis, would be a violation of the fundamental right of the train porters not to be made to lose .their jobs and employment through artificial interference on the part of the Brotherhood or anyone else. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131. There is no contention by the train porters here that a merger of the two previous similar positions and crafts, with a proper recognition of the train porters’ existing status and rights, could not validly be made to occur, through an agreement on the part of the Railway with the Brotherhood, such as is here involved. And in so far as the making of such a merger agreement might perhaps otherwise require previous notice by the Railway to the train porters of an intention to make, in order to give it validity under the Railway Labor Act, if such an objection were raised, the train porters do not undertake to interpose any such objection to the validity of the agreement as effecting a mere merger of the two positions and crafts. They are willing that the agreement (be allowed to have the normal legal effect of which it would be capable, of having assimilated their positional field and themselves into the brakeman’s craft. Also, they recognize that the Brotherhood is entitled to the status of bargaining representative for the merged crafts, by reason of the majorityship in number of its previous membership. In this situation, it would seem only reasonable and proper that the agreement should be judicially accorded such valid legal effect as it is possible for it to have, in order that the parties involved — the Railway, the Brotherhood and the train porters — -all may have the opportunity to enjoy, to as full an extent as possible, the advantages which it is capable of affording to them respectively on that basis. Thus, on the ¡basis of the agreement, the Railway is legally privileged to reduce the kinds of positions and crafts involved in its operations, as against any otherwise possible right of objection, by consolidating the similar positions and crafts of train porter and brakeman into the single one of brakeman, leaving the members of both to occupy the unified positional field on the basis of and in relationship to their previous service status. And the Brotherhood and the brakemen similarly, by virtue of the agreement, will be able to have the position and craft of brakemen enlarged, which they apparently desire, through, absorption of the similar position and craff of train porter, but with the obligation, of course, resting on the Brotherhood, in its capacity of statutory bargaining representative for the consolidated crafts, to protect the minority assimilated-craft membership equally with its own membership, in accordance with the principles of Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. The Brotherhood naturally would prefer to have the broader advantages, which would accrue to its members from the action which the Railway has attempted to take under the agreement, enjoyed by them as long as possible, rather than the more limited advantages, as referred to above, which the agreement is legally capable of affording them. In an effort thus to hold on to all the advantages which it has undertaken to- make the Railway produce for its members from the agreement, both the invalid and the valid ones, for as long a period as possible, it seeks to becloud the plain legal situation to which the agreement of itself gives rise, as set out above, by asserting in effect that the brakemen have other rights, outside and beyond those created by the exacted agreement, to the train porters’ positional field, and that this claim of rights should prompt a court of equity to ignore the results which it is undertaking to make the agreement produce, however illegal they may be as a proximate consequence in relation to the agreement alone, until the train porters have assumed the burden of carrying the situation to the Railroad Adjustment Board and have succeeded in getting the brakemen’s claim of outside rights disproved. In other words, the Brotherhood asks that, for a period of 2 to 2yz years at least, it be allowed to inflict upon the train porters whatever consequences it is able to do, through the exacted agreement, by loosely calling the entire situation, in its unrelated aspects, a jurisdictional dispute. In addition to making the agreement serve to disrupt the admitted 40-year positional holding of the train porters, its use to deprive the entire class of their jobs and livelihood would of course also mean that the train porters would be without opportunity for any financial leaning by a part upon the rest in any attempt to vindicate their rights. Again, with the entire class thus thrown out of work, economically weak as it recognizedly is, and with all of the members faced with the need of -finding jobs reasonably promptly in order to subsist, it is obvious that 'but little chance would exist of preserving group solidarity or cohesion — important in any labor struggle — for the period of 2 to' 2% years or more which would be required to obtain administrative vindication. Still further, and repugnant to the basic concept of all labor in any situation, is the fact that the train porters as a labor group, through.the use of the agreement to wipe out entirely their employment, position and craft from the Railway, would have been completely disarmed of labor’s fundamental and most sacred weapon and the opportunity for its exercise — the power of defensive strike— and this indeed by another labor group itself. All of this might perhaps be capable of moratory judicial ignoring, if they were in fact incidents deriving from some regular assertion of a colorable claim of rights in a jurisdictional dispute. But when the Brotherhood said to the Railway, as it did in effect, that even though the position of train porter had had existence on the Railway’s passenger trains for over 40 years, with its industrially implicit and established underlying basis, the Railway now, without regard to the question of the position’s right otherwise to1 continued existence, would have to abolish it and convert it into a head-end brakeman’s position or else the members of the Brotherhood would engage in a strike — and on this basis alone obtained the agreement here involved — it could not be said to have thereby created such possible legal rights as might colorably be claimed in the present situation to give rise to a jurisdictional dispute. The only legal effect, as we have pointed out, which such a barren exaction, from the circumstances of its making and its terms, could properly be given, would be as a consolidation of the two previously existing but virtually identical positions and crafts, and of the membership of both — and this effect it is being fully accorded. And so the fact that the Brotherhood here claims that it has other extraneous rights against the train porters as a class, which it is not open to us to examine or determine, does not require that we allow the agreement, not made on the basis of any dealings related to or recognizive of such now-alleged rights, to be used to inflict the consequences which are being sought to be produced by the agreement alone and which when so* produced are beyond the legal effect which the agreement as such, on the basis of its making, is entitled to have. Since the agreement itself affords no legal basis for the brakemen to deprive the train porters of their 40-year positional field, their established employment status and their means of livelihood, there is no right to ask to have it given that effect, even for a period of 2 to 2% years, on the ground that the Brotherhood here claims other nonrelated, excluding rights and on their basis may have a jurisdictional dispute. Against the consequences to the train porters of discretionarily withholding present equitable relief from such invalid effects as the agreement is being used to produce to the train porters’ 40-year existing status, on the possibility that other extraneous rights capable ultimately of producing á similar result might perhaps exist, stands the consideration that the brakemen, with the invalid effects of the agreement judicially restrained, will occupy no different position as to enjoyment or assertion of their claimed extraneous rights than they have had at any time since the Railway Labor Act was enacted. Their extraneous rights, they say, rest on a so-calleS “schedule” or agreement, which antedates the passage of the Railway Labor Act, and yet, in the many years that have elapsed since the Act went into effect, they have apparently been unwilling to take any steps themselves to' have an administrative determination or establishment made of such alleged rights. What they now argue is that the train po-rters should be made to assume the burden of disproving these alleged extraneous rights, before a court of equity should undertake to give any protection against the consequences of their legally unrelated agreement. We would not want to prejudice in any way these alleged extraneous rights, if they exist, and indeed we shall go so- far as not to allow them even to be prejudiced by the legal effect of the exacted agreement, if they are successfully established. We shall assiduously avoid hampering or preventing the proper assertion or vindication of them. In the decree which will be entered herein, appropriate steps therefore will be taken to leave open the opportunity for safeguarding to them any victory as to their extraneous rights which they may succeed in establishing and to which they would be legally entitled, under the provisions of the Railway Labor Act. On the basis of what has been said, the trial court’s refusal to consider the exacted agreement and its use in relationship to the train porters’ status and rights, as constituting an attempted predatory appropriation thereof, except as a consolidation of the two positions, crafts and memberships, is reversed, and the cause is remanded with directions to enter an order of permanent injunction enjoining the Railway and the Brotherhood from using the agreement for any other purpose and from giving it any other effect than as accomplishing a consolidation of the positions and crafts of brakeman and train porter and of the membership of the two crafts, with the Railway being required to accord proper recognition to the service status or seniority of each in relation to the others, and with the Brotherhood being required to assume the responsibility as statutory bargaining representative of the merged crafts of protecting the former train porters in their individual and class rights equally with its own members — the foregoing prohibition, however, to be subject to the following protective reservations: (1) The injunction shall not operate in any way to prevent the Brotherhood and the brakernén as previously existing from taking steps to assert and vindicate their claimed extraneous rights before the Railroad Adjustment Board or from availing themselves of any other proper means open to them under the Railway Labor Act for securing recognition of such alleged previous rights, but only in this respect shall the ‘Brotherhood be relieved of its obligation meanwhile as statutory bargaining representative to look after the interest of the merged train porters; and (2) jurisdiction shall be reserved by the District Court in relation to- the injunction issued to enable the injunction to be set aside or modified in its further operativeness, in case the alleged previous rights are so established that the existence of the injunction thereafter might serve to prevent the according to them of their proper legal effect. Other questions have been argued which, on the disposition here made, it is unnecessary to discuss, except to say on the cross-appeal taken by the Railway from the holding of the trial court that the notice given to the train porters, in the attempted abolition of their position and termination of their employment as of April 1, 1946, was in any event invalid, as not satisfying the requirement of the Railway Labor Act, 45 U.S.C.A. § 156, for the giving of at least 30 days notice of any intended change in agreements affecting working conditions, that this holding is entitled to be affirmed. The Railway’s argued interpretation of the notice requirement of the Act is too refined and unrealistic to require comment. We should perhaps also add the observation that the disposition which we have made on the merits has been on the basis of the particular facts and their analysis, with the legal situation resulting therefrom, and we shall therefore not engage in any unnecessary distinction of the cases which the Railway and the Brotherhood have cited. The decree of the trial court is affirmed with respect to the invalidity of the notice given to the train porters. In all other respects it is reversed, and the cause is remanded with directions to enter an injunctive order in conformity urith this opinion. . The position of train porter is an entirely separate one from that of sleeping-car porter, day-coach porter, or other special car-attendant. . The Brotherhood is collective bargaining representative for the br'akeman’s craft on the Railway, under the provisions of the Railway Labor Act, 45 U.S.O.A. § 152, Fourth. . Pursuant to this view the trial court held that no justiciable controversy could he claimed to- exist, until the train porters had sought a determination by the National Railroad Adjustment Board of their right to perform the head-end braking work. The court accordingly dissolved an interlocutory injunction, which had previously been issued, but stayed dismissal of the cause as to all issues for a reasonable time to afford the train porters an opportunity to exhaust the administrative remedies of the Railway Babor Act, 45 U.S.O.A. § 151 et seq. The court did, however, declare that the notice given to the train porters of the abolition of their position and termination of their employment as of April 1, 1946, was invalid and that no action could be taken by the Railway on the basis thereof, because such notice failed to satisfy the requirement of the Act, 45 U.S.O.A. § 156, for the giving of at least 30 days notice of any intended change in agreements affecting working conditions, and it prohibited the Railway therefore from carrying such notice into effect. The Railway has cross-appealed from the holding that the notice was thus invalid. . Even the Brotherhood itself, as far back as 1928 had recognized the existence of the position of train porter and thus necessarily what that position inescapably implied, when it obtained an agreement from the Railway that, “in the future hiring of employees in train, engine and yard service but not including train porters, only white men shall bo employed.” This plainly invalid agreement was not abrogated between the Brotherhood and the Railway until after the present suit was instituted. It lends some support to the contention made by the train porters here that the present agreement was intended primarily as a further attempt on the part of the Brotherhood to keep their race out of railroad employment. Since the trial court did not reach a consideration of that factual question and the case is being disposed of here on a legal basis that would be controlling, regardless of what race might be involved, we need not further discuss this contention. . A recognition also made for many years by the Brotherhood itself. See footnote 4, supra. . We were advised on the argument of the case that under the present congested condition of the Railroad Adjustment Board’s docket there would have to be a wait of at least 2 to 2V2 years before any hearing could possibly be had before the Board. Thus the controversy involved in Missouri-Kansas-Texas R. Co. v. Randolph, 8 Cir., 164 F.2d 4, in which our opinion was rendered in 1947, and which after some further proceedings was taken before the Board, has apparently not yet been reached for hearing.

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?

GAHAGAN CONST. CORPORATION v. ARMAO. No. 4280. Circuit Court of Appeals, First Circuit. Jan. 6, 1948. Paul R. Frederick of Boston, Mass. (C. Petersen and Badger, Pratt, Doyle & Badger, all of Boston, Mass., on the brief), for appellant. Stanley H. Rudman, of Boston, Mass. (Joseph Schneider and Schneider, Reilly & Bean, all of Boston, Mass., on the brief), for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. ■ This is an action at law under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688. The plaintiff alleges that on November 11, 1945, while he was employed by the defendant as a deck hand and member of the crew of a dredge operated by the defendant on navigable waters of the United States in Boston Harbor, he sustained severe injuries because of the defendant’s negligence. At the time of the accident the defendant, the Gahagan Construction Corporation, was engaged in dredging operations for the Commonwealth of Massachusetts. The defendant was to dredge material from specified areas by the hydraulic method and to place this as fill on embankments at Logan Airport in East Boston. Dredge No. 5 on which the plaintiff was employed was one of the dredges used in this work. It pumped silt and sand from the bottom of the harbor and by means of a pipe line extending from the dredge to the shore deposited it on the airport. It had no motive power of its own and had to be towed by tugs or other vessels when coming from or going to the place of operations.. The only machinery aboard was steam turbine engines which operated the mechanisms for digging and hoisting and controlling the “spuds” which were used to hold the dredge in place during actual dredging operations. The spuds were also used in connection with lines attached to anchors, the spuds acting as pivots so that the dredge could move itself forward within short distances. At the time of the accident, about eight o’clock in the evening, the plaintiff had been directed to climb to a platform on the cutter arm to check the navigation lights. As he was about to descend, the cable which operated the arm began to move and his hand was drawn into a pulley block causing him to lose three fingers. The defendant denied that it was negligent. It also denied that the plaintiff was employed as a member of the crew, or that the accident occurred on navigable waters. Further it denied that this accident was within the maritime jurisdiction of the United States. It contended that the plaintiff’s sole remedy, if any, was under the Massachusetts Workmen’s Compensation Act, Mass.Gen.Laws, 1932, c. 152, or under the Longshoremen’s and Harbor Workers’ Act of the United States, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq. The defendant was insured under 'both of these acts. At the trial in the lower court, the District Judge refused the defendant’s motion, for a directed verdict.- He also refused to make certain rulings and give certain instructions requested by the defendant. The case was submitted to the jury, which returned a verdict for the plaintiff and final judgment was entered thereon. The defendant’s' motion to have the verdict set aside and judgment entered in accordance with its motion for a directed verdict was denied. The defendant appealed. It contends that the accident did not occur in navigable waters and, therefore, was outside of the admiralty jurisdiction. This contention is based largely upon testimony that at low tide the flats in the area where the dredge was operating were bare. There was also testimony that all the flats in this area were covered by water only four hours out of twelve. But there was ample testimony to sustain the jury’s conclusion that the dredge was plying in navigable waters. The plaintiff testified that at the time of the accident he was removed from the dredge by a tug boat and that it took fifteen to twenty minutes to go to the shore. There was testimony by disinterested witnesses that the average height of the water was approximately eight feet above low mean water-mark. Mr. O’Donnell, who was employed by the State Department of Public Works, as a supervisor, testified that he often went out to the dredge by means of a motor boat, and that there were often tugs around the dredge. He also testified that at the mean high water-mark he could go wherever he pleased with his boat. Mr. Metcalf, who was Coordinator of the Port of Boston during the war, testified that he had seen boats in the area where the dredge operated. He stated that at times there were eleven foot tides in this area and a ship drawing nine feet could navigate there. He also gave as his opinion that the area in which the dredge was operating in November, 1945, was an area of navigable water. The jury could justifiably believe the testimony of these witnesses and its conclusion that the dredge was plying in navigable waters at the time of the accident cannot be upset. The defendant also contends that even if the facts herein show a maritime tort to which the general maritime jurisdiction would extend, the state compensation law abrogates the right to resort to admiralty remedies since the matter is of mere local concern and regulation by the state would work no material prejudice to the characteristic features of the maritime law, and would not interfere with the proper harmony or uniformity of that law. The concept of local concern developed after Southern Pacific Co. v. Jensen, 1917, 244 U. S. 205, 137 S.Ct. 524, 61 L.Ed. 1086, L.R. A.1918C, 451, Ann.Cas.1917E, 900, and subsequent cases, which propounded the doctrine that state workmen’s compensation acts could not constitutionally be applied, even by state courts, to injuries incurred by maritime workers on navigable waters. Just when a matter is of local concern only so that the state law may be applied is a question that has long perplexed the courts. The only verbal test given in the cases is that if the employment has no direct relation to navigation and commerce, if state regulation will not prejudice the uniformity of the maritime law. then state laws may be applied and the general maritime jurisdiction abrogated. Millers’ Indemnity Underwriters v. Braud, 1926, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470; Grant Smith-Porter Ship Co. v. Rohde, 1922, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008. No more definite test has been laid down, with resulting confusion in the lower federal courts. The constitutional basis of the Jensen case has been severely questioned, but the idea of an exclusive maritime law not subject to state law has never been repudiated by the Supreme Court. As late as 1941, the Court in Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, stated that regardless of the constitutional basis of the Jensen and later decisions, Congress in the enactment of the Longshoremen’s and Harbor Workers’ Compensation Act had accepted them as defining the line between admiralty and state power. Some indication of what the Supreme Court considers to be of only local concern may be gathered from an examination of the decisions. Thus, a state workmen’s compensation act may be applied to a carpenter injured while working on a ship which has been launched but not yet completed, Grant Smith-Porter Ship Co. v. Rohde, supra; to a diver employed by a shipbuilding company to remove obstructions in the course of a river, Millers’ Indemnity Underwriters v. Braud, supra; to a longshoreman injured on land, Smith & Son v. Taylor, 1928, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520; to a lumber inspector temporarily aboard a "schooner checking a cargo of lumber being unloaded from another vessel, Rosengrant v. Havard, 1927, 273 U.S. 664, 47 S.Ct. 454, 71 L.Ed. 829; to a person trying to launch a small boat, Alaska Packers’ Ass’n v. Industrial Accident Comm., 1928, 276 U.S. 467, 48 S.Ct. 346, 72 L.Ed. 656; to men engaged in logging operations, Sultan Ry. & Timber Co. v. Department of Labor, 1928, 277 U.S. 135, 48 S.Ct. 505, 72 L.Ed. 820; and to an engineer working on a barge dismantling a bridge, Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. On the other hand the general maritime law is controlling and state laws can not constitutionally be applied to stevedores injured on navigable waters, Minnie v. Port Huron Terminal Co., 1935, 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631; Employers’ Liability Assurance Corporation v. Cook, 1930, 281 U.S. 233, 50 S.Ct. 308, 74 L.Ed. 823; Northern Coal & Dock Co. v. Strand, 1928, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232; Southern Pacific Co. v. Jensen, supra; State of Washington v. Dawson & Co., 1924, 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646; nor to repairmen working on ships, Baizley Iron Works v. Span, 1930, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819; Robins Dry Dock & Repair Co. v. Dahl, 1925, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372; Gonsalves v. Morse Dry Dock Co., 1924, 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228. The Supreme Court has indicated that within a shadowy area where it is unclear which law should apply, if either the Longshoremen’s Act or a state act is applied, the result will be upheld. See Davis v. Department of Labor, supra. But' it should be noted that the overlap is between the federal compensation act and the state acts. It has not been suggested that the Jones Act and the state acts overlap. In no case in the Supreme Court in which the injured person was a seaman performing a seaman’s duties on navigable water has state law been held applicable. Even those members of the Supreme Court who customarily dissented in the application of the Jensen rule, concurred in holding state acts inapplicable where the injured person was a seaman covered by the Jones Act. See Employers’ Liability Assurance Corporation v. Cook, supra, 281 U.S. at page 237, 50 S.Ct. 308, 74 L.Ed. 823; Northern Coal & Dock Co. v. Strand, supra, 278 U.S. at page 147, 49 S.Ct. 88, 73 L.Ed. 232. Summarily stated, their theory was that the Constitution itself did not prohibit state action in the silence of Congress, but after Congress had spoken there could be no state regulation. The defendant, however, relies upon a line of decisions in the Fifth Circuit that dredges engaged in digging new channels or improving the shore are not within the maritime jurisdiction. Fuentes v. Gulf Coast Dredging Co., 5 Cir., 1931, 54 F.2d 69; United Dredging Co. v. Lindberg, 5 Cir., 1927, 18 F.2d 453, certiorari denied, 1927, 274 U.S. 759, 47 S.Ct. 769, 71 L.Ed. 1337; see Kibadeaux v. Standard Dredging Co., 5 Cir., 1936, 81 F.2d 670, 672, certiorari denied, 1936, 299 U.S. 549, 57 S.Ct. 12, 81 L.Ed. 404. And this view that a dredge which is picking up silt from the bottom and piping it on to land for use as fill is not engaged in a maritime occupation is supported by a dictum in a case arising in this circuit. See Melanson v. Bay State Dredging & Construction Co., D.C.Mass.1943, 62 F.Supp. 482, 485. The Fifth Circuit cases perhaps may rest on the ground that the dredges were not in navigable water before the start of the dredging operations, as was suggested in the Kibadeaux case, supra, 81 F.2d at page 672. And later cases in that circuit may indicate a departure from this line. Cf. Standard Dredging Corporation v. Henderson, 5 Cir., 1945, 150 F.2d 78; Radcliff Gravel Co. v. Henderson, 5 Cir., 1943, 138 F.2d 549, certiorari denied, 1944, 321 U.S. 782, 64 S.Ct. 638, 88 L.Ed. 1074. But to the extent to which the Fuentes and Lindberg cases are not distinguishable, we decline to follow them. Perhaps the extension by the circuit courts of the local concern doctrine is understandable in view of the general disapproval of the Jensen rule. But even if this disapproval should result in extension of the applicability of state laws, it would not seem to justify using the exception to the Jensen rule to restrict the applicability of the maritime law in this case. Compare Davis v. Department of Labor, supra, with Parker v. Motor Boat Sales, supra. Since the Supreme Court has reaffirmed the Jensen line of demarcation between state law and admiralty, even if placing it on another theory than the constitutional one, and since this case comes to us after a jury finding that the Jones Act is applicable, we think that the local concern doctrine should not be used to nullify that verdict. So we conclude that if the plaintiff was a seaman injured on navigable waters, there is no place for the application of the doctrine of local concern. We thus turn to a consideration of whether the plaintiff is a seaman within the meaning of the Jones Act. In Carumbo v. Cape Cod S. S. Co., 1 Cir., 1941, 123 F.2d 991, we defined a seaman as one who does any sort of work aboard a ship in navigation. We think the plaintiff clearly comes within that broad definition. We have little difficulty then in concluding that the admiralty jurisdiction is not abrogated by the state compensation law. The plaintiff was engaged in a maritime occupation, on navigable waters, aboard a vessel on which he was regularly employed. Certainly, he was more closely connected with a maritime occupation and had a more direct relation to navigation than the decedent in Parker v. Motor Boat Sales, supra. In that case the Court stated that although the area in which admiralty jurisdiction is exclusive and state action forbidden is of shadowy limits, a janitor or porter employed by a motor boat sales company, who was killed while assisting another employee to test a motor in the James River, was clearly within the admiralty jurisdiction. If that case is considered as based on the policy of giving great weight to the findings of the deputy commissioner who there found that admiralty jurisdiction was not ousted, similarly this case may be rested on the finding of the jury that the plaintiff was a seaman on a vessel engaged in navigation on navigable waters. The defendant’s next contention raises a more difficult question. It urges that even if the state compensation act is not applicable, the Longshoremen’s and Harbor Workers’ Compensation Act of the United States is, and its exclusive remedy forecloses resort to the Jones Act. Defendant insists that the plaintiff was not a member of a crew of any vessel so as to be exempt from the Longshoremen’s Act. It is not disputed that Dredge No. 5 is a vessel within the meaning of the statutory definition of vessel, as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Rev. Stat.1875, § 3, 1 U.S.C.A. § 3. The captain of the dredge testified that it had come from New York to Boston with eleven men on board, and that all of them slepc and ate on the dredge during the voyage. It is immaterial that it has no motive power of its own. Norton v. Warner Co., 1944, 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed, 430. But the defendant does dispute that the plaintiff was a member of the crew. As the Supreme Court has stated, the word crew does not have an absolutely unvarying legal significance. Even if the facts are undisputed, the question of whether a party is a member of the crew is not necessarily one of law. If different conclusions may be drawn from the facts, the determination of the finder of facts must stand. South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732. Each case presents a different situation. No single factor is controlling, but the whole context must be considered. In Norton v. Warner Co., supra [321 U.S. 565, 64 S.Ct. 751], crew was defined as including those naturally and primarily on board to aid in navigation, but navigation was not limited to “putting over the helm”; it embraces duties essential for other purposes. The Court stated that crew includes all those who contribute to the labors about the operation and welfare of the ship when on the voyage. In the Carumbo case, we said: “The requirements that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation appear to us to be the essential and decisive elements of the definition of a ‘member of a crew’. It is most important to note that one is aiding in navigation even though he happens to be a cook or an engineer. The whole ship’s company is aiding in navigation.” 123 F.2d at page 995. If the jury found that the plaintiff was a member of the crew, the question before us is, can the plaintiff be considered a member of the crew taking the view of the evidence most favorable to him? But the defendant insists that the question of whether the plaintiff was a member of the crew was never submitted to the jury, and there was no finding on this point; thus we should either say as a matter of law that he was not a member of the crew and direct judgment to be entered for the defendant, or else remand for a new trial. It is true that the district judge refused to charge specifically that the jury must find that the plaintiff was a member of the crew; and in fact he did not use the expression “member of a crew” in his charge. But he did instruct the jury that for the plaintiff to recover, they must find that the dredge was plying in navigable waters and that the plaintiff was a seaman. The judge then defined seaman, as he was using the term, by stating that there must be a connection with a vessel, and that the person must play some part in connection with the labor about the operation and welfare of the vessel while in navigable waters. He repeated this two times stressing that the jury must decide whether this plaintiff’s labors had to do with the welfare and operation of Dredge No. 5 while it was plying in navigable waters. He also told the jury it could consider whether the plaintiff signed articles or had a license or slept on board or had his meals cooked on board, but that these were not absolutely binding. Although perhaps it would have been preferable for the trial judge to use the term “member of the crew” and then define it, there is no magic in that phrase that absolutely requires its use in a charge. The words are not such as to have any peculiar or particular significance to a jury. The judge would have to define the term in any ■event. If his definition was correct, there was no reverible error in failing to use the words themselves. A comparison of the judge’s definition with the definition in Norton v. Warner Co., above set forth, shows that he used almost the same words there used. And his charge meets the test we laid down in the Carumbo case. We think it clear the jury in substance found that the plaintiff was a member of the crew, although it did not consider those' exact words. ' The only question then is whether there is substantial evidence to support the finding of the jury. The defendant maintains that the plaintiff was employed as a laborer; that he had no duties of navigation except incidental ones such as throwing the line or making fast and unfast; that he signed no articles; that he slept off the dredge and was furnished no food on the dredge. Also he was paid on an hourly basis and he had had no previous nautical training. But on the other hand, the plaintiff testified that he was hired as a seaman; for purposes of payment he was classified as .a deckhand; and that he was told to take orders from the captain and mate of the dredge. His duties included picking up the line, repairing the line, fixing anchors, setting up navigation lights, working on the tugboat now and then, checking the running lights, washing the decks and serving coffee to the leverman. He had been hired to work on the dredge and had worked on it since his employement in July, 1945. The operator of the dredge testified that the plaintiff cleaned up around the dredge, worked on the pump in the hold, and took bearings on the lights which marked the course the dredge was to dig. The captain of the dredge testified that the deckhands helped clean out the pump and generally helped the mates. We do not think that in light of this evidence the jury’s conclusion can be upset. In the Carumbo case, we held there was substantial evidence to support a finding that the plaintiff there was a member of the crew, although he was paid by the hour, and ate and slept on shore. In Schantz v. American Dredging Co., 3 Cir., 1943, 138 F.2d 534, which involved a deckhand on a hoister who worked an eight hour day, was paid overtime, and lived and'boarded ashore, it was held that a conclusion that he was a member of the crew would be supported by the facts. And in Maryland Casualty Co. v. Lawson, 5 Cir., 1938, 94 F.2d 190, an employee who signed no articles, who was not shown to be an experienced seaman, but who worked a daily shift of eight hours attached to a tug and scow which attended a dredge, was held to be a member of the crew by the court which set aside a compensation award. See also Pariser v. City of New York, 2 Cir., 1945, 146 F.2d 431 and Melanson v. Bay State Dredging & Contracting Co., supra, holding employees on dredges to be members of the crew. The defendant cites in support of his contention South Chicago Coal & Dock Co. v. Bassett, supra, which affirmed a compensation award trader the Longshoremen’s Act. In that case, the employee was employed aboard a lighter used to fuel boats. His main job was to facilitate the flow of coal as other boats were being fueled. He had no real duties pertaining to navigation, except the incidental task of throwing íopts or making the boat fast, which could be performed equally well by a harbor worker. He was not on board to aid in navigation, since his primary duty was to aid in unloading while the boat was not in motion. His work thus resembled that of a stevedore. This evidence was held sufficient to sustain the deputy commissioner’s ruling that he was not a member of the crew of a vessel. That the Bassett case rests in large part upon the policy of giving great weight to the findings of the trier of fact is indicated by the Supreme Court’s subsequent reversal of a case in which the district judge, deciding that the employee was not a member of the crew, had dismissed a Jones Act suit The Supreme Court in a per curiam reversed on the authority of the Bassett case, thus indicating that the question was one of fact for the jury. Cantey v. McLain Line, 1941, 312 U.S. 667, 61 S.Ct. 829, 85 L.Ed. 1111; see Bowen v. Shamrock Towing Co., 2 Cir., 1943, 139 F.2d 674, 676. We do not think the Bassett case furnishes any support to the defendant’s contention that we should reverse the finding of the jury here. The defendant’s final contention is that the plaintiff by accepting payments under the Massachusetts Compensation Act is estopped or has waived his right to obtain relief under the Jones Act. There is no question but that the plaintiff did receive payment of compensation under the Massachusetts Act and that the compensation was paid under an agreement filed with the State Board. There is no evidence that the plaintiff was represented by counsel at the time the agreement was made although he was represented when later payments were received. We do not think the mere receipt of payments under the state act is sufficient to bind the plaintiff here and prevent his pursuing other remedies he might have on either the law or admiralty side of the court. Kibadeaux v. Standard Dredging Co., supra; cf. Bay State Dredging & Contracting Co. v Porter, 1 Cir., 1946, 153 F.2d 827; Bretsky v. Lehigh Valley R. R. Co., 2 Cir., 1946, 156 F.2d 594. In cases involving actual releases, the courts are scrupulous to see that the plaintiff fully understood the rights that he was giving up. Here, there was no actual release given by the plaintiff, and we do not think such a release should be implied from the receipt of payments. There is no question of double recovery here, since the amounts received under the state act were deducted from the verdict awarded him under the Jones Act. The judgment of the District Court is affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.

Are there two issues in the case?

In re IVEL DISPLAYS, Inc. PEOPLE OF STATE OF NEW YORK v. IRVING TRUST CO. No. 246. Circuit Court of Appeals, Second Circuit. Jan. 7, 1935. John J. Bennett, Jr., Atty. Gen. (Robert P. Beyer, Asst. Atty. Gen., of counsel), for claimant-appellant. Palmer, Barber, Matters & Merritt, of New York City (Walter H. Merritt, of New York City, of counsel), for respondent-appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The state of New York asserts a lien upon the assets of Ivel Displays, Inc., a bankrupt, for franchise taxes for the years commencing November 1, 1930, November 1, 1931, and November 1, 1932, amounting altogether to $1,260.49 and interest, in priority to expenses of administration and wage claims. In the very casual record before us we are not informed of the date when the petition in bankruptcy was filed or the adjudication was entered, but an examination of the proceedings in the District Court shows that the petition was filed on January 12, 1933, and the adjudication was made on January 27 succeeding. The court below apparently held that the state of New York had not acquired a lien, and, upon that hypothesis, under section 64b of the Bankruptcy Act, as amended (11 USCA § 9'6 (b), directed the payment of expenses of administration and wage claims prior to the taxes due the state. Section 209 of the New York Tax Law (Consol. Laws N. Y. c. 60) provides that every corporation shall annually pay in advance a franchise tax for the year beginning November 1st next succeeding the 1st of July to be computed by the tax commission upon the basis of its entire net income," as defined in subdivision 3 of section 208 for the calendar year next preceding. Section 211 provides that the corporation shall file its return before July 1st, or within thirty days after reporting its net income to the United States Treasury. Section 219-a requires that the tax commission shall audit and state the account of each corporation known to be liable to a tax, shall compute the tax thereon, and proceed to collect the same. Section 219-b provides that notice of the tax assessment shall be sent by mail to the address given in the return, and 219'-a that the tax shall be paid to the commission on or before the 1st day of January of each year, or within thirty days after notice thereof has been mailed to the taxpayer, if it is given subsequent to the 1st day of December of the year for which the tax is imposed. Section 219-e likewise says each such tax “shall be a lien and binding upon the real and personal property of the corporation liable to pay the same until the same is paid in full.” If the tax is not paid -within thirty days after the same becomes due, it is provided by section 219-e that the tax commission issue a warrant to the sheriff for its collection, who shall file a copy thereof with the clerk of the county, to be docketed by the latter in his judgment docket. Upon such docketing, the amount of the tax is to become a lien on the real and personal property of the corporation. While it is altogether probable that each tax was assessed and notice thereof was sent to the taxpayer in November of the year for which it was to be paid so that it became due on or before the 1st of January following, we cannot learn from the record whether this was actually the fact. If these taxes were assessed and notices thereof were given before the date of the filing of the petition in bankruptcy, they became liens on the assets of the bankrupt’s estate and had priority over wage claims and general expenses of administration, Dunn v. Interstate Bond Co., 68 F.(2d) 364 (C. C. A. 5); In re Brannon, 62 F.(2d) 959 (C. C. A. 5), though not over the reasonable expenses of preserving the property and bringing the fund into court, Dunn v. Interstate Bond Co. (C. C. A.) 68 F.(2d) 364, 365. In the case of In re Century Steel Co., 17 F.(2d) 78, we held such a, tax superior to the lien of a judgment though no warrant had been issued to the sheriff or docketed in the office of the county clerk under section 219-e of the New York Tax Law. The recent decision of the New York Court of Appeals in Engelhardt v. Alvino Realty Co., 248 N. Y. 374, 162 N. E. 287, seems to he in accord. In New York v. Maclay, 288 U. S. 290, 53 S. Ct. 323, 77 L. Ed. 754, where priorities between the United States under Rev. St. § 3468 (31 USCA § 191) and the state of New York wore involved and the right of the United States to payment before the state of New York depended on whether the latter had obtained a specific lien for franchise taxes due it, the opinion of Cardozo, J., laid stress on whether the taxes had been “assessed or liquidated” before the petition in bankruptcy was filed. If assessment and notice of the tax assessed had taken place before the petition was filed, a specific lien must have arisen that would meet the test laid down by Justice Cardozo in New York v. Maclay, 288 U. S. 290, 53 S. Ct. 323, 77 L. Ed. 754, and by Taft, C. J., in Spokane County v. United States, 279 U. S. 80, 49 S. Ct. 321, 73 L. Ed. 621. In view of the condition of the record before us, we think that we ought not to assume that the taxes were all assessed or liquidated prior to the date of bankruptcy. Upon a rehearing the state should prove just when each tax was assessed or liquidated. To the extent that each tax was so assessed or liquidated before bankruptcy, it ripened into a lien having priority over wage claims and ordinary expenses of administration. To the extent that any claim was not thus assessed or liquidated before bankruptcy, it would be subordinate to expenses of administration and wage claims. The order appealed from should be reversed, and the proceeding remanded, with direction to determine to wliat extent the franchise taxes were assessed or liquidated before the filing of the petition in bankruptcy and thereafter to marshal assets and direct payments in accordance with the views expressed in this opinion.

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?

Mrs. Estelle BYRD and J. N. Byrd, Jr., Appellants, v. Mrs. Willie Louis BATES et al., Appellees. No. 16332. United States Court of Appeals Fifth Circuit. April 12, 1957. Rehearing Denied May 3, 1957. Wyman C. Lowe, Atlanta, Ga., for appellants. Jackson C. Burroughs, Curtis White, John R. Carrell, Dallas, Tex., for appel-lees. Before HUTCHESON, Chief Judge, and CAMERON and JONES, Circuit Judges. JONES, Circuit Judge. Estelle Byrd, joined on this appeal by her husband, John N. Byrd, Jr., sought to recover damages for the wrongful death of her former husband, James Winchester. He was stabbed to death in the Stevens Hotel in Atlanta, Georgia, on April 21, 1951. The action was brought in the District Court for the Northern District of Texas. Jurisdiction was based on diversity of citizenship. The original complaint was filed on April 20, 1953, one day short of two years from the date of Winchester’s death. Over twenty defendants were named in the original complaint, some in representative capacities as executor, guardian and trustee. The plaintiff sought to charge that the defendants, as partners or in some other capacity, operated the Stevens Hotel and that Winchester had been killed by their employees and agents and that they were negligent in employing improper persons. The original complaint contained a prayer that summons issue as required by law. Two or three copies of the complaint were sent with the original to the clerk of the court at the time of filing. The letter of the plaintiff’s counsel, a resident of Atlanta, transmitting the complaint and the filing fee to the clerk in Dallas contained the request, “Please have summons issue on the day you receive the complaint from me”. On that day, April 20, 1953, the clerk wrote plaintiff’s attorney: “You request summons to issue upon receipt of the complaint, which summons have not been issued and cannot be issued until we have received a copy of your complaint (to be attached to each summons) upon each of the defendants you desire to serve. Also the marshal will request his fee for the service of each summons. “Kindly forward the list of defendants you desire to be served, together with a copy of your Complaint”. Plaintiff’s counsel replied: “I sent you only the original and one copy of the original of the complaint. Within the near future I shall mail enough additional copies for service of a copy, with summons attached, upon each of the defendants I desire to be served. “It is probable that I shall later amend the complaint in such a manner as to drop out some of the defendants. * * * ” The attorney wrote similar letters on three subsequent occasions. Summons issued on September 14, 1953. Two days later Mrs. Bates was served. John B. McCallum was served on October 2, 1953. He is a Catholic Priest who by his clerical vows is unable to participate in civil litigation. Nothing has been filed by him or on his behalf in the cause in the district court or in this court. The district court, of its own motion, dismissed the cause on the ground that no cause of action was stated. This court reversed. Byrd v. Bates, 5 Cir., 1955, 220 F.2d 480. After numerous pleadings were filed, the court ordered the plaintiff to replead and on November 18, 1955, an amended complaint was filed in which relief was sought against Mrs. Bates and Rev. McCallum in their various representative capacities but not against anyone else. Although not named as defendant in this last amended complaint, The United States Fidelity and Guaranty Company, which was surety on Mrs. Bates’ guardianship bond, filed an answer. It had never been served with summons. Mrs. Bates filed a motion for summary judgment on several grounds, most of which went to the merits of the plaintiff’s alleged cause of action. Among the grounds, not going to the merits, was one asserting, “That the plaintiffs’ cause of action, if any they ever had, is barred by the Two Year Statute of Limitations”. Affidavits were filed. Among these was one of the plaintiff’s attorney reciting that in a telephone call to the deputy clerk on April 25, 1953, he, the attorney, wished summons issued to Mrs. Bates and McCal-lum. Depositions and admissions were before the court. At the hearing the clerk’s correspondence was received in evidence. The court entered judgment for the defendants. It was there recited that the court was of the opinion that the plaintiff’s suit was barred by limitations. The plaintiff appellant has appealed from the summary judgment and asserts that thirteen errors were committed. The primary question is whether there is any disputed fact upon which the operation of the bar of the Texas two-year statute of limitation might depend. So much of that statute as is here pertinent is in these words: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: ******* “7. Action for injury done to the person of another where death ensued from such injury; and the cause of action shall be considered as having accrued at the death of the party injured.” Vernon’s Ann. Tex.Civ.Stat. Art. 5526. The plaintiff takes the position that Rule 3 of Fed.R.Civ.Proe., 28 U.S.C.A., providing that “A civil action is commenced by filing a complaint with the court”, fixes the date of filing the complaint as the time when the statute of limitation is tolled; and if, contends the appellant, there is any requirement that there be a bona fide intent that process be issued and served, that intent is shown by counsel’s letter to the clerk, and the rule relating to issuance of summons which provides: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it to the marshal or to a person specifically appointed to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendants.” Rule 4(a), Fed.Rules Civ.Proc. Prior to the adoption of the Federal Rules of Civil Procedure it had been held that in a suit brought in a state court and thereafter removed, the laws of the state would determine when the suit had been “commenced” or brought within the meaning of a statute of limitations. Goldenberg v. Murphy, 108 U.S. 162, 2 S.Ct. 388, 27 L.Ed. 686. In 1934 Congress gave the Supreme Court the power to prescribe rules of practice and procedure but forbade affecting substantive rights. 28 U.S.C.A. § 2072. The rules were adopted on December 20, 1937. 302 U.S. 783, 82 L.Ed. 1552. They became effective September 16, 1938. Between these two dates, on April 25, 1938, the Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, held that in eases involving rights having their origin under state law, the substantive law of the state would govern in Federal as well as state courts. In 1945 the Supreme Court held that state statutes of limitations should be applied. The court held that it was immaterial whether statutes of limitation were regarded as substantive or procedural. The court said: “Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result.” Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079, 160 A.L.R. 1231. A like question, and one with more factual similarity to that now before us, came before the Supreme Court of the United States. The Kansas statute of limitations provided that “An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, * * * ” G.S. 1949, 60-308. A suit was brought involving a highway collision occurring October 1, 1943. The complaint was filed September 4, 1945. The defendant was not served until December 28, 1945. The defendant moved for a summary judgment on the ground that under the Kansas statute the action was barred. The plaintiff asserted the suit was commenced when the complaint was filed and relied upon Rule 3, Fed.Rules Civ.Proc. The Supreme Court held the Kansas law applicable and that the action was barred. From its opinion we quote: “Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, was premised on the theory that in diversity cases the rights enjoyed under local law should not vary because enforcement of those rights was sought in the federal court rather than in the state court. If recovery could not be had in the state court, it should be denied in the federal court. Otherwise, those authorized to invoke the diversity jurisdiction would gain advantages over those confined to state courts. Guaranty Trust Co. of New York v. York applied that principle to statutes of limitations on the theory that, where one is barred from recovery in the state court, he should likewise be barred in the federal court. “It is conceded that if the present case were in a Kansas court it would be barred. The theory of Guaranty Trust Co. of New York v. York would therefore seem to bar it in the federal court, as the Court of Appeals held. The force of that reasoning is sought to be avoided by the argument that the Federal Rules of Civil Procedure determine the manner in which an action is commenced in the federal courts — a matter of procedure which the principle of Erie R. Co. v. Tompkins does not control. It is accordingly argued that since the suit was properly commenced in the federal court before the Kansas statute of limitations ran, it tolled the statute.” Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 1234, 93 L.Ed. 1520, rehearing denied 338 U.S. 839, 70 S.Ct. 33, 94 L.Ed. 513. This court has commented on the effect of the Guaranty Trust and Ragan cases, and has held: “All that Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832, mean in this area is that if the claim — that is the real subject matter of the litigation — would not support recovery in a state court — ■ if in the state court there is no means by which effective relief can be accorded — then it may not in a federal court, and this results whatever label the state jurisprudence may put on the infirmity that is, ‘procedural’ or ‘substantive’.” Travelers Indemnity Co. v. Bengtson, 5 Cir., 1956, 231 F.2d 263, 265. The doctrine of the Ragan case was well considered by Judge Hincks while Chief Judge of the District Court for the District of Connecticut. Speaking for the court he said: “Previous decisions in the federal courts as to this point apparently have turned on a distinction as to the wording of the various state statutes of limitations. 1 Barron and Holtzoff Sec. 163; 2 Moore’s Federal Practice (2d Ed.) Sec. 3.07. Where, as an integral part of the applicable statute of limitations, the legislature has specified what must be done to bring an action within the period of limitations, the courts have held that the statute is not tolled until the action is brought as the statute directed. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Zuckerman v. McCulley, 8 Cir., 1948, 170 F.2d 1015; Nola Electric Co. v. Reilly, D.C.S.D.N.Y. 1948, 93 F.Supp. 164; cf. Krisor v. Watts, D.C.E.D.Wis.1945, 61 F.Supp. 845. But where the statute merely specifies that the action may not be brought but within a specified period, without specifying by what acts an action is ‘brought’, federal courts have said that, pursuant to F.R.C.P. 3, the filing of the complaint tolls the statute. Cf. Isaacks V. Jeffers, 10 Cir., 1944, 144 F.2d 26, certiorari denied 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624, and cases cited therein; Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, certiorari denied 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400, rehearing denied 332 U.S. 845, 68 S.Ct. 266, 92 L.Ed. 416. The courts have proceeded thus on the theory that unless the statute of limitations specifically provides by what procedure an action must be so brought as to toll the statute, the manner of commencing the action and serving process is a matter of procedural law only. Merchants Transfer & Warehouse Co. v. Ragan, 10 Cir., 1948, 170 F.2d 987, 992.” Glebus v. Fillmore, D.C.Conn.1952, 104 F.Supp. 902, 903. In this case, as in the Ragan case, the controlling limitation period is that prescribed by the state law. In this court’s recent opinion in International Derrick & Equipment Co. v. Croix, 5 Cir., 1957, 241 F.2d 216, 219, we quoted the following statement of the Texas law: “ ‘Most of the articles of the Revised Statutes which prescribe periods of limitation for particular actions require that the action be ‘commenced and prosecuted’ within a designated time after the accrual of the cause of action. In cases to which such provisions are applicable, it is well settled that the running of the statute is not interrupted by the mere filing of a petition with the clerk. Not only must this initial step be taken, but there must be a bona fide intent that process shall be served at once upon the defendant. In the absence of a valid excuse for delay, the statute runs until citation is issued and service obtained, if the plaintiff by some affirmative act or declaration is responsible for delay in having citation issued and served, or if a bona fide attempt to obtain service is not made. A suit is not commenced by the issuance of process which cannot possibly bring the defendant before the court, or which may be served only in case the defendant may be found temporarily in the state. Needless to say, the running of the statute is interrupted where a suit is filed and the defendant is properly served with citation, showing the cause of action against him.’ 28 Tex.Jur. 192, Limitation of Actions, § 99.” In an earlier opinion we applied the Texas rule and declared that the filing of an action stopped the running of the statute of limitations “if it was filed with a bona fide intention, coupled with reasonable diligence on the part of the plaintiffs, to obtain service upon the defendants and to prosecute the suit with force and effect.” Pacific Employers Ins. Co. v. Parry Navigation Co., 5 Cir., 1952, 195 F.2d 372, 373. Cf. Digby v. United States Fidelity & Guaranty Co., 5 Cir., 1957, 239 F.2d 569. As to the factors to be considered in a determination of whether an action has been “commenced and prosecuted” we find references in the opinions of the Texas courts to the negligence of the plaintiff in procuring the issuance of citation and the fault of the plaintiff in delaying its issuance, Curtis v. Speck, Tex.Civ.App., 130 S.W.2d 348, Tribby v. Wokee, 74 Tex. 142, 11 S.W. 1089; to unreasonable delay in service of citation, Davis v. Adkins, Tex.Civ.App., 251 S.W. 285; to unintentional delay, Massie v. Ft. Worth, Tex.Civ.App., 262 S.W. 837; to reasonable diligence, Allen v. Master-son, Tex.Civ.App., 49 S.W.2d 855; to proper diligence, Wood v. Gulf, C. & S. F. R. Co., 15 Tex.Civ.App. 322, 40 S.W. 24; to bona fide intention that process be issued and served, Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; to reasonable excuse, Panhandle & S. F. Ry. Co. v. Hubbard, Tex.Civ.App., 190 S.W. 793; and to neglect of attorneys, Ferguson v. Estes & Alexander, Tex.Civ.App., 214 S.W. 465, 466. These elements, usually comprehended under the term “reasonable diligence”, present a fact question. San Saba Nat. Bank of San Saba v. Parker, 135 Tex. 136, 140 S.W.2d 1094. There were fact issues presented which should not have been decided by summary judgment under Rule 56, Fed.Rules Civ.Proc. Where an issue is as to reasonable diligence it must be determined by inferences drawn from facts admitted or proven. The question is similar to and includes intent and good faith. Where the evidence is such that conflicting inferences may be drawn with respect to such issues a summary judgment should not be granted. Paul E. Hawkin-son Co. v. Dennis, 5 Cir., 1948, 166 F.2d 61. Concluding, as we do, that the summary judgment was improper, it will be reversed. The motion for taxing costs need not be considered. For further proceedings the judgment is 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 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.

J. C. SNELL, Inmate, Plaintiff-Appellant, v. Herman SHORT, Police Chief, Houston Police Department, Defendant-Appellee. No. 76-3229 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 10, 1977. J. C. Snell, pro se. Joseph G. Rollins, Sr. Asst. City Atty., Otis H. King, City Atty., Houston, Tex., for defendant-appellee. Before BROWN, Chief Judge and GEWIN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Appellant Snell, a Texas prisoner, brought this pro se civil rights action under 42 U.S.C. § 1983, alleging that the defendants, who are or were officials of the Houston Police Department, wrongfully deprived him of a sum of money. The money was seized by the police as evidence in the robbery investigation that resulted eventually in Snell’s conviction. After Snell’s trial, the police turned the money over to the robbery victim’s insurer. Snell claims that the failure of the police to return the money to him deprived him of property without due process of law. The district court granted summary judgment for the defendants on the basis that the statute of limitations borrowed from state law had run. The parties agree that the applicable Texas statute provides a two year period within which suit must be brought, and there can be no dispute that the statute is triggered, barring some infirmity, when the cause of action accrues. The district court held that the statute began running against Snell when his common law wife went to the police and demanded return of the money. This demand occurred before Snell was taken into custody on the robbery charge. Snell contends that the refusal of the police to release the money at the time of the demand was not constitutionally impermissible, because the money was being held as evidence. Thus, argues Snell, his § 1983 action did not arise at that point. Instead, Snell suggests, the civil rights action accrued only when the police no longer had a legitimate interest in withholding the money from its true owner. Snell identifies that point as the termination of his robbery trial. The district court order does not explain the rationale behind the holding that the § 1983 action accrued at the time Snell’s wife demanded and was refused return of the money. Nor does the court cite any authority on point. The court may have rested its conclusion upon an analogy to the common law tort of conversion. When possession of property is lawful at the outset, as it was here, conversion occurs when the possessor refuses the owner’s demand for return of the property. We think the analogy is inappropriate on these facts. Under Texas law, an officer in possession of property alleged to have been stolen cannot release the property except upon the order of a court or magistrate. Tex.Crim.Pro. Code Ann. art. 47.01 (Vernon 1966). An officer’s lawful possession of property under article 47.01 during the pendency of a criminal prosecution does not become wrongful simply because demand has been made for return of the property. Cf. Southwestern Bell Telephone Co. v. Commercial Metals Co., 389 S.W.2d 116 (Tex.Civ.App.1965) (demand made after criminal case dismissed held to trigger conversion); Reiner v. Marceau, 338 S.W.2d 285 (Tex.Civ.App.1960) (demand made after officer’s failure to comply with procedural rules regarding custody of property held to trigger conversion). Thus, a Texas court would not have held the police conduct here to have been a conversion at the point when the officers refused Snell’s wife’s demand for return of the money. The conversion action could accrue only after the police lost the protection of article 47.01. We do not doubt that, in applying the sweeping mandate of § 1983 to the great variety of human conduct, a district court may seek the aid of common law analogues to the federal claim, but here we believe the grafting should be done anew to take account of the application of the state law concepts to the peculiar facts of this case. We therefore remand the case to the district court for a reconsideration of the statute of limitations issue. We decline to reach any of the other issues raised by the parties on this meager record. VACATED and REMANDED. . Snell claims he inadvertently left the money in a taxi cab and that the money was not robbery loot. The police apparently took the money from the cab company before Snell could claim it. The sum involved is alleged to be $3,553.34. . Section 1983 contains no statute of limitations, so the analogous state statute must be borrowed. Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976); Boshell v. Alabama Mental Health Board, 473 F.2d 1369 (5th Cir. 1973). . Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958). . When Snell’s wife went to the taxi cab company to get the money, see note 1 supra, a robbery detective who was there told her that the money already had been seized by the police. Snell alleges that his wife immediately proceeded to the police station and asked for the money.

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"?

WELSH v. ERIE R. CO. Nos. 5465, 5466. Circuit Court of Appeals, Sixth Circuit. April 11, 1930. C. J. Wall, of Youngstown, Ohio (John Ruffalo, of Youngstown, Ohio, on the brief), for appellant. B. D. Holt, of Cleveland, Ohio (Cook, McGowan, Eoote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for appellee. Before DENISON and HICKS, Circuit Judges, and COCHRAN, District Judge. HICKS, Circuit Judge. On January 7,1927, Welsh, deceased, was working as a helper to one Lyter, a blacksmith in the shops of appellee. These men had taken a steel bar 87^4 inches long, 6 inches wide, 1 inch thick, and weighing about 130 pounds, and, after heating one end thereof in a furnace, had placed it flat upon a bumping block, and had shoved it through the jaws or dies of an upsetting machine and about an inch and a quarter beyond, leaving about 4 feet of the bar upon the block on the side of the machine nearest the men. To operate the machine Lyter stepped upon a treadle, and thereupon the jaws (one move*able and one immovable) clamped the bar while a plunger struck and bent upward the extended end to form a gib. The jaws then automatically released the bar. This normally completed the operation, and the bar was ready for removal. To remove it from the machine Lyter and Welsh shoved the cold end thereof from 3 to 6 inches laterally toward the moveable jaw, but had not entirely removed it when the machine, on account of some mechanical" defect, suddenly repeated. The moveable jaw struck the bar, caused it to straighten, and it in turn struck Welsh in the abdomen with force sufficient to throw him backward against the furnace. His back came in contact with the fumaee. He exclaimed, “My God, I thought I was killed.” He did not cease working. However, when he went home that night he walked as if lame, and for three successive nights he crawled from his chair to his bed. There were red marks upon his back as if he had been hit by something. He continued to work until September 6th. He then quit, and complained of his back and of lameness in his hips. He became unable to walk, and called an unlicensed chiropractor who found a slight posterior displacement of one of the vertebra to the left. The chiropractor, after having partially readjusted the vertebra, gave him treatments and noticed an improvement. The pain ceased, the muscles were less rigid, and Welsh was able to walk. However, on September 27 he was taken to a hospital, remained there one week, went to his daughter’s, and remained there practically helpless under the care of this daughter and a physician until his death on December 28th following. On November 18th he sued for damages on account of his alleged injury. This suit (case No. 5465) was revived in the name of Mary Welsh, administratrix. The administratrix also brought suit (case No. 5466) for damages for the pecuniary loss sustained by reason of Welsh’s death. The eases were tried together. The court properly assumed, and appellee now practically admits, that there was substantial evidence tending to show that appellee was negligent in furnishing Lyter and Welsh a defective machine, but the court directed a verdict in both eases upon the ground that there was no substantial evidence indicating any causal relation between the occurrence on January 7, 1927, and the injuries sued for in- case No*. 5465 or the death of Welsh for which damages are claimed in suit No. 5466. Appellant challenges the correctness of these directed verdicts. As to case No. 5465, we think there was error. The measure of damages was physical pain and mental anguish. It was peculiarly for the jury to determine whether any such suffering was caused upon a consideration of the evidence tending to show the violence of the blow and the subsequent lameness and disability of Welsh for at least three nights. In other words, we think there was something more than a mere scintilla of evidence which, if believed by the jury, might sustain a verdict for damages in some amount. In view of the loss of plaintiff’s testimony by his death, we cannot say that there was no- good-faith expectation of recovering the minimum jurisdictional amount. As to ease No. 5466, the evidence presents a different aspect. The deceased worked steadily at his job from January 7th, the date of his alleged injury, for eight months. Barring the first three nights after he was struck, there is no further substantial evidence of his serious disability until he ceased work in September. The chiropractor then found only a slight subluxation of one of the vertebra. After its partial readjustment, improvement followed. Neither the attending physician nor any hospital attendant was called to testify. They doubtless could have given satisfactory evidence touching deceased’s physical condition and the cause of it. The burden of proof was upon plaintiff, and we conclude that the evidence is too meager to support a finding that death was caused by the blow received nearly a year before. As to both cases the applicable principles are fully stated in Hardy-Burlingham Min. Co. v. Baker, 10 F.(2d) 277 (C. C. A. 6), and Davlin v. Henry Ford & Son, Inc., 20 F.(2d) 317 (C. C. A. 6). Case No. 5465 is reversed and ease No. 5466 is affirmed.

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

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

John J. DAVIS, Appellant, v. McKINNON & MOONEY, a corporation, L. A. McKinnon, Mary Alice Lacey, Arthur N. Gosline, Jr., and Valeria Guest, Appellees. No. 13632. United States Court of Appeals Sixth Circuit. May 28, 1959. T. R. Zettelmeyer, Willoughby, Ohio, William E. Speer, Detroit, Mich., on brief, for appellant. James M. Pearson, Flint, Mich., for appellees. Before MARTIN, Chief Judge, ALLEN, Circuit Judge, and MATHES, District Judge. FLORENCE E. ALLEN, Circuit Judge. The United States District Court dismissed appellant’s complaint in this action on the ground that the cause set forth therein had been adjudicated by the courts of the State of Ohio. On October 23, 1954, in Lake County, Ohio, appellant was injured in an automobile accident. He filed an action against one Thomas Fitzgerald in the Common Pleas Court of Lake County and secured a judgment for $10,000 against Fitzgerald. Asserting that Fitzgerald was insured against casualty liability by Fireman’s Fund Indemnity Company, hereinafter called Indemnity Company, appellant, in accordance with Section 3929.06 Ohio Revised Code, filed a supplemental petition against the Indemnity Company seeking payment of the judgment. In that action the defense of the Indemnity Company was that, because of nonpayment of premiums, the policy issued to Fitzgerald had been canceled prior to the date of the accident. Appellant contended that the cancellation of the policy was fraudulent. The jury returned a special verdict answering numerous interrogatories submitted by the Indemnity Company, finding in substance that Fitzgerald had not paid the Indemnity Company monthly premiums in accordance with the contract, that the policy had been canceled October 17, 1954, in accordance with its terms, and that due notice had been mailed to and delivered at Fitzgerald’s last known address. The state court entered judgment for the Indemnity Company and against appellant and Fitzgerald, holding in substance that the policy issued by the Indemnity Company to Fitzgerald was properly canceled, effective October 17, 1954, in accordance with the condition contained in the policy and that by reason of such cancellation the policy was not in force or effect on October 23, 1954, the date of the automobile accident. In the action appealed from herein filed in the District Court appellant contends in substance that appellee McKinnon & Mooney fraudulently conspired to manufacture evidence depriving appellant of a recovery under the supplemental petition in the state court. Appellees pleaded res judicata in their affirmative defense and also filed a motion to dismiss the action on the ground of res judicata and estoppel by judgment. This motion was sustained by the District Court, which in its opinion stated that the “Issue of fraudulent evidence of policy cancellation was thoroughly argued in Ohio Circuit Court proceedings. That Court determined that there has been no prejudicial error in Common Pleas Court.” It was also shown that the Supreme Court of Ohio denied a motion for certiorari. The record in the Lake County, Ohio, court, together with appellant’s briefs in the appellate courts of Ohio, was filed in the office of the Clerk of the District Court prior to the hearing therein. Although new allegations as to fraud were made in appellant’s petition in the federal court, appellant’s briefs in the state courts .raised the specific question of fraudulent cancellation of the policy reiterated here. Appellant contends that the issue of fraud set forth herein was not presented in the Ohio courts, pointing out that his supplemental petition sounded in contract while the instant action sounds in tort, and also that the parties are not identical. This contention has no merit. The attack upon the cancellation of the policy made in the state court was based upon alleged fraud. The jury had appellant’s evidence on that issue before it when it found in the special verdict that the policy had been canceled in accordance with the contract. The doctrine of res judicata is applied to issues of fraud. Heiser v. Woodruff, 327 U.S. 726, 736, 66 S.Ct. 853, 90 L.Ed. 970. It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief. 30A Am.Jur. 411, Section 371. It is immaterial that in the interim between the Lake County trial, which terminated in October, 1955, and the hearing in the instant case, appellant restated his theory of the alleged fraud practiced in cancellation of the policy, setting forth further details and including different parties, namely, McKinnon & Mooney, conceded to be agent of the Indemnity Company, and McKinnon & Mooney's employees. The jury could not have rendered its special verdict in the Lake County case without disposing of the issue of fraud in the cancellation of the policy favorably to the Indemnity Company. The fact that appellant has changed his action from contract to tort is not controlling. 30A Am.Jur. 415, Section 371, note 4. Wolfson v. Northern States Management Company, 221 Minn. 474, 477, 22 N.W.2d 545. The fact that appellant advances new arguments here is also immaterial. Parnacher v. Mount, Okl.1956, 306 P.2d 302, 304. Cf. Metropolitan Life Insurance Company v. Pribble, Tex.Civ.App., 130 S.W.2d 332. Since the Indemnity Company’s defense against appellant was sustained in the state court, under the rule in force in a number of jurisdictions appellees may avail themselves of the doctrine of res judicata although they are not privies of the Indemnity Company. Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 122 P.2d 892, gives an excellent discussion of the entire question. The court declares, 122 P.2d at page 894: “The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. Coca Cola Co. v. Pepsi-Cola Co., supra [6 W.W.Harr. 124, 36 Del. 124, 172 A. 260], See cases cited in 24 Am. & Eng. Encyc., 2d Ed., 731; 15 Cinn.L.Rev. 349, 351; 82 Pa.L.Rev. 871, 872. He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. Ibid. There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation. “No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. See 7 Bentham’s Works, Bowring’s Ed., 171. Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. Coca Cola Co. v. Pepsi-Cola Co., supra; Liberty Mutual Ins. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 506; Atkinson v. White, 60 Me. 396; Eagle, etc. Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010; United States v. Wexler, D.C., 8 F.2d 880. See Good Health Dairy Products Corp. of Rochester v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401. The commentators are almost unanimously in accord. 35 Yale L.J. 607; 9 Va.L.Reg. (N.S.) 241; 29 Ill.L.Rev. 93; 18 N.Y.U.L.Q.R. 565, 570; 12 Corn.L.Q. 92. The courts of most jurisdictions have in effect accomplished the same result by recognizing a broad exception to the requirements of mutuality and privity, namely, that they are not necessary where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts. See cases cited in 35 Yale L.J. 607, 610; 9 Va.L.Reg. (N.S.) 241, 245-247; 29 Ill.L.Rev. 93, 94; 18 N.Y.U.L.Q.R. 565, 566, 567; 34 C.J. 988, 989. * * * The cases justify this exception on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries.” The judgment 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?

Anthony ZERILLI and Michael Polizzi, Appellants, v. The EVENING NEWS ASSOCIATION, et al. No. 79-1298. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 7, 1980. Decided June 11, 1980. Sol Z. Rosen, Washington, D. C., for appellants. E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty. at the time the brief was filed, John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief, for federal appellees. Richard L. Cys, Washington, D. C., for appellee The Evening News Association. Stuart F. Pierson, Washington, D. C., also entered an appearance for appellee The Evening News Ass’n. Before McGOWAN, TAMM and WALD, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM. TAMM, Circuit Judge: In this case, we must decide the merit of statutory and constitutional claims for monetary damages resulting from the disclosure of information originally obtained in violation of the fourth amendment. More specifically, we must determine whether 18 U.S.C. § 2520 (1976), which establishes a civil remedy for the disclosure of information obtained by unlawful surveillance, supports a cause of action when the surveillance occurred before, but the disclosure after, the effective date of the section. In addition, we must decide whether a private newspaper may be held liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for conspiring to have federal officials disclose information that had been obtained in violation of the Constitution. We conclude that neither section 2520 nor Bivens imposes liability in the circumstances of this case, and we therefore affirm the district court’s dismissal of the complaint. I. THE FACTUAL BACKGROUND On May 1,1978, plaintiffs Anthony Zerilli and Michael Polizzi filed an action in the United States District Court for the District of Columbia against the Attorney General and other, unknown agents of the United States Department of Justice (the federal defendants) and against The Evening News Association, the publisher of The Detroit News (the newspaper). Plaintiffs alleged that the Department of Justice, in the early 1960’s, had unlawfully “bugged” the office of the Home Juice Company in Detroit, Michigan, intercepting certain communications between plaintiffs and others. Some ten to fifteen years later, in 1976, agents of the Department allegedly disclosed the contents of these communications to the newspaper, which then published the material in a series of articles entitled “Organized Crime in Detroit.” Plaintiffs asserted three legal theories in seeking compensatory and punitive damages. First, they charged the defendants with violating 18 U.S.C. § 2511(l)(c) (1976), which prohibits certain disclosures of intercepted communications, and claimed that 18 U.S.C. § 2520 therefore entitled them to a civil recovery. Second, plaintiffs asserted a right to recovery against the federal defendants based directly on the fourth amendment. Finally, plaintiffs contended that they were entitled to relief against the newspaper on the ground that it had conspired with the federal defendants to violate plaintiffs’ fourth amendment rights. The federal defendants and the newspaper each moved to dismiss the complaint for “failure to state a claim upon which relief can be granted,” Fed.R.Civ.P. 12(b)(6). Judge Oliver Gasch granted the motions and dismissed the complaint. This appeal followed. II. PLAINTIFFS’ CLAIM UNDER 18 U.S.C. § 2520 In 1968, as title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, Congress enacted chapter 119 of title 18 of the United States Code, which addresses a variety of issues concerning wiretapping and other interceptions of wire and oral communications. See 18 U.S.C. §§ 2510-2520 (1976) (amended in part 1978). Chapter 119 “has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” S.Rep. No. 1097, 90th Cong., 2d Sess. 66, reprinted in [1968] U.S. Code Cong. & Admin.News, pp. 2112, 2153. As the Supreme Court has observed, “The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression.” United States v. United States District Court, 407 U.S. 297, 302, 92 S.Ct. 2125, 2129, 32 L.Ed.2d 752 (1972). Chapter 119 authorizes the interception of wire and oral communications only under specified conditions and only upon prior judicial approval. See 18 U.S.C. §§ 2516, 2518(l)-(8) (1976) (amended 1978). Interceptions not conforming to these requirements generally are unlawful, see id. § 2511, and the unlawfully obtained information may not be used as evidence in a legal proceeding, see id. § 2515 (1976); see also id. § 2518(9)-(10) (amended 1978). Moreover, the statute makes it a criminal offense to engage in an unlawful interception or to disclose or use information that was obtained by such means. See id. § 2511(1) (1976). Section 2520 of chapter 119, the section relied upon by plaintiffs here, provides a civil cause of action for the victim of an unlawful interception against any person who intercepts, discloses, or uses the plaintiff’s communications in violation of the chapter. Id. § 2520. A successful claimant may recover actual and punitive damages, as well as attorneys’ fees. Id. Section 2520, along with the rest of chapter 119, went into effect on June 19, 1968. In the case before us, the alleged disclosures — first by the federal defendants, and then by the newspaper — occurred in 1976, after chapter 119 was in force. The interception that allegedly produced the disclosed information, on the other hand, occurred in the early 1960’s, well before the statute’s effective date. Thus, the issue we must resolve is whether section 2520 provides a remedy for the post-enactment disclosure of information that was unlawfully obtained through a pre-enactment interception. The starting point in construing any statute is the language of the statute itself, see, e. g., Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980), and if that language is clear, the judicial inquiry ends, for a court must give effect to a statute’s unambiguous meaning. As the Supreme Court observed in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed . . Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion.” Id. at 485, 37 S.Ct. at 194. See also United States v. Davis, 617 F.2d 677 at 682 (D.C.Cir. 1979). Enforcing the literal language of Congress is especially important in the present case. Chapter 119 represents a “comprehensive scheme” for the regulation of wiretapping and other interceptions of wire and oral communications, see Gelbard v. United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972), a scheme that was drafted . . . with exacting precision. As its principal sponsor, Senator McClellan, put it: “[A] bill as controversial as this . . . requires close attention to the dotting of every ‘i’ and the crossing of every ‘t’ . . . .” [114 Cong.Rec.] 14751 [(1968)]. Under these circumstances, the exact words of the statute provide the surest guide to determining Congress’ intent, and we would do well to confine ourselves to that area. United States v. Donovan, 429 U.S. 413, 441, 97 S.Ct. 658, 675, 50 L.Ed.2d 652 (1977) (Burger, C. J., concurring in part and concurring in the judgment). Section 2520 provides a remedy when a person’s communications are “intercepted, disclosed, or used in violation of this chapter." 18 U.S.C. § 2520 (1976) (emphasis added). To identify such a violation in the present case, plaintiffs contend that defendants violated section 2511(l)(c) after the effective date of chapter 119 by making unlawful disclosures of information. A disclosure is unlawful under section 2511(l)(c), however, only if the information disclosed was “obtained through the interception of a wire or oral communication in violation of this subsection.” Id. § 2511(l)(c) (emphasis added). Thus, for a disclosure to be unlawful under chapter 119, the information disclosed must have been obtained through an interception that itself violated the provisions of the chapter. Obviously, the interception in the present case could not have violated chapter 119, for its provisions had not yet been adopted at the time the interception occurred. Because the interception did not violate the chapter, the subsequent disclosure also fell outside its provisions; therefore, no liability could arise under section 2520. See Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir. 1971) (denying recovery under section 2520) (“Since . . . the interception . . . was not obtained in violation of the Act, its subsequent use and disclosure was not a violation of the Act.”). See a iso Smith v. Cincinnati Post & Times-Star, 475 F.2d 740, 741 (6th Cir. 1973) (per curiam). Contrary to plaintiffs’ contention, our adherence to the plain meaning of the statute will not create a “carte blanche” for the liability-free disclosure of communications that were unlawfully intercepted prior to the effective date of chapter 119. In appropriate cases, other remedies for such disclosures may exist. For example, if all the elements can be shown, a common-law tort action may lie for invasion of privacy. See generaliy W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971); Restatement (Second) of the Law of Torts §§ 652A, 652B, 652D (1977). Moreover, section 605 of the Communications Act of 1934, as amended, 47 U.S.C. § 605 (1976), may provide a remedy in certain cases for the disclosure of wire or radio communications unlawfully intercepted before chapter 119 took effect. Plaintiffs do not contend that any such alternative theory of recovery could or should apply in the present case, but instead rely on chapter 119 as their exclusive nonconstitutional basis for relief. All we decide at this juncture is that plaintiffs’ theory under section 2520 does not state a claim upon which relief may be granted. III. PLAINTIFFS’ CLAIMS UNDER BIVENS As an alternative basis for the recovery of damages, plaintiffs assert a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that the federal defendants violated plaintiffs’ fourth amendment rights and that the newspaper participated with the federal defendants in a conspiracy to accomplish this fourth amendment violation. The district court dismissed these allegations as not stating claims upon which relief could be granted. We agree with this ruling. A. Claim Against the Federal Defendants Judge Gasch dismissed the Bivens claim against the federal defendants on the ground that “the count is precisely the same as a count pending in a related case [Zerilli v. Civiletti, Civ. No. 77-0546 (D.D.C. filed Mar. 28, 1977)] between the same parties before this Court.” Zerilli v. Detroit News, Civ. No. 78-0766, at 4 (D.D.C. Jan. 25,1979) (memorandum and order) [hereinafter cited as District Court Memorandum], reprinted in Joint Appendix (J.A.) at 12, 15. Judge Gasch did not err in dismissing this claim, for a plaintiff has “no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc). See also Washington Metropolitan Area Transit Authority v. Ragonese, 617 F.2d 828 (D.C.Cir. 1980). B. Claim Against the Newspaper In dismissing the conspiracy claim against the newspaper, the district court noted that a private person cannot violate the fourth amendment and that the newspaper was not involved in the early 1960’s when the federal defendants allegedly violated the fourth amendment by intercepting plaintiffs’ communications. See District Court Memorandum at 3-4, reprinted in J.A. at 14-15. Plaintiffs contend that their Bivens claim against the newspaper should not have been dismissed. They argue that Bivens liability should be imposed on private parties that assist or encourage governmental officials in the violation of constitutional rights and that the district court, in concluding that there was no constitutional violation at the time of the alleged conspiracy, erroneously refused to treat the government’s 1976 disclosure to the newspaper of plaintiffs’ intercepted communications as an independent violation of the fourth amendment. Bivens stands for the proposition that victims of constitutional violations committed by federal officials generally have a right to recover damages from the officials without the need for an authorizing statute. See Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15 (1980). The Supreme Court has never discussed the possibility that Bivens liability might extend beyond federal officials and reach private actors who in some way have participated in a governmental violation of constitutional rights. The Court has, however, indicated more generally that Bivens liability is inappropriate “[when defendants demonstrate] ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Id. (quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. at 396, 91 S.Ct. at 2005). Assuming without deciding that private parties may in some circumstances be held liable under Bivens for conspiring with federal officials, we believe there are three “special factors” that, taken together, preclude us from imposing such liability in the present case. First, the asserted violation of constitutional policy that would form the predicate for such liability — i. e., the alleged governmental disclosure of information originally obtained in violation of the fourth amendment — is well removed from the central thrust of that amendment. The fourth amendment is addressed only to “searches and seizures,” and the basic constitutional wrong has been fully accomplished when the unlawful search or seizure has been completed. Cf. United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 623, 38 L.Ed.2d 561 (1974) (“derivative use of the product of a past unlawful search and seizure . . work[s] no new Fourth Amendment wrong”). See also McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc) (court equally divided on question of whether federal officials, by transporting and using materials originally obtained through an unconstitutional search and seizure by state officials, had themselves engaged in an independent violation of the fourth amendment), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978). Second, even if private parties might be liable under Bivens in certain circumstances, we believe that a defendant’s private status should at least “counsel hesitation” in the creation of Bivens liability, for the primary purpose of the Bivens doctrine is to remedy abuses by those who act as agents for the sovereign. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. at 392, 91 S.Ct. at 2022 (“An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.”). Third, finding the newspaper liable in the present case would amount to holding a newspaper liable in damages for uncovering and publishing information that it deems newsworthy. The values served by a free and vigilant press militate against such a result. Cf. Martin v. Merola, 532 F.2d 191, 199 (2d Cir. 1976) (separate statement of Gurfein, J.) (first amendment may be implicated in holding newspaper liable under 42 U.S.C. § 1983 (1976) (amended 1979) based upon its publications). Based upon these considerations, we decline plaintiffs’ invitation to extend Bivens to reach their claim against the newspaper. IV. CONCLUSION Neither 18 U.S.C. § 2520 nor the fourth amendment affords civil relief to the plaintiffs in this case. The district court’s dismissal of their complaint is therefore Affirmed. . Plaintiffs’ second and third theories appeared in an “amended complaint.” See Joint Appendix (J.A.) at 7. It is unclear from the record whether this pleading was actually filed, although the district court did consider its contents in ruling on the motions to dismiss. See Zerilli v. Detroit News, Civ. No. 78-0766, at 3 — 4 (D.D.C. Jan. 25, 1979) (memorandum and order) [hereinafter cited as District Court Memorandum], reprinted in J.A. at 12, 14-15. Because we conclude that, even as amended, the complaint does not state a claim upon which relief may be granted, we need not decide whether the amended complaint would also fail for any procedural irregularity. . Section 2520 reads in its entirety as follows: Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications and (2) be entitled to recover from any such person— (a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (b) punitive damages; and (c) a reasonable attorney’s fee and other litigation costs reasonably incurred. A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law. 18 U.S.C. § 2520 (1976). See generally Annot., 25 A.L.R.Fed. 759 (1975). . Although, in a general sense, the issue we confront is one of “retroactivity,” our task actually is to determine whether conduct occurring after the effective date of ch. 119 — i. e., the disclosure of certain information — is conduct proscribed by the chapter and thereby conduct giving rise to civil liability under § 2520. Plaintiffs do not dispute that ch. 119 applies only to conduct occurring after the effective date of the enactment, see, e. g., United States v. American Radiator & Standard Sanitary Corp., 288 F.Supp. 701 (W.D.Pa.1968), but instead contend that the disclosure of plaintiffs’ intercepted communications, which disclosure occurred after that effective date, violated the chapter regardless of when the illegal interception occurred. To our knowledge, we are the first appellate court to deal with the issue of whether a post-enactment disclosure gives rise to liability under § 2520 when the communications were unlawfully intercepted before ch. 119 took effect. . Plaintiffs do not dispute that, as a general proposition, ch. 119 was intended to apply prospectively only. See note 3 supra. . Although we are not required to go beyond the words of the statute, our decision is supported by the relevant legislative history on this issue. In what the Senate Judiciary Committee called “a comprehensive and in-depth analysis of [ch. 119],” S.Rep. No. 1097, 90th Cong., 2d Sess. 88, reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2177, the committee’s discussion of §§ 2511(l)(c) and 2520 is entirely consistent with our ruling. See id. at 93, 107, reprinted in [1968] U.S.Code Cong. & Admin.News at 2181-82, 2196. . Plaintiffs argue that it was the intention of Congress ... to create a cause of action for the unlawful and unconsented disclosure of any warrantless interception of communication, regardless if made prior to the effective date of [ch. 119] . . A contrary position would . . . allow to private and public parties carte blanch[e] to disclose these materials, in violation of the legal and privacy rights of the aggrieved individual without fear of civil liability. It is hard to fathom the idea that Congress intended to allow such a harsh result. Brief for Appellants at 10-11 (emphasis in original). . Prior to 1968, at least according to some federal courts, the violation of § 605, which precluded the interception and disclosure of certain wire and radio communications, gave rise to civil liability. See, e. g., Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir. 1947). With the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, Congress amended § 605 and made it subject to the provisions in ch. 119. The Senate report accompanying the 1968 Act explained the intended relationship between § 605 and the new ch. 119: “The new provision is intended as a substitute. The regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code.” S.Rep. No. 1097, 90th Cong., 2d Sess. 107, reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2196. Arguably, in substituting the regulatory scheme of ch. 119 for that of § 605, Congress did not intend to foreclose the possibility of civil liability under § 605 for conduct occurring before the provisions of ch. 119 were fully operational. At no point in the present case, however, have plaintiffs sought to rely on § 605. In any event, because plaintiffs allege that the communications in question were “oral communications” that were “bugged,” see J.A. at 5 (complaint), it appears that there was no “interception” of a “communication by wire or radio” within the meaning of the pre-1968 version of § 605. See Communications Act of 1934, ch. 652, § 605, 48 Stat. 1103 (current version at 47 U.S.C. § 605 (1976)), construed in Goldman v. United States, 316 U.S. 129, 133-34, 62 S.Ct. 993, 995-996, 86 L.Ed. 1322 (1942), overruled in part on other grounds, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). . As we shall discuss, see pp. 222-224 infra, plaintiffs’ constitutional claims for damages in this case are without merit. We hasten to point out, however, that the Constitution may, in appropriate cases, provide a remedy for the disclosure of communications that were unlawfully intercepted before the effective date of ch. 119, and this potential constitutional remedy also tends to negate plaintiffs’ “carte blanche” contention. Indeed, our decision today does not foreclose the possibility that plaintiffs may have a constitutional remedy against the federal defendants on the very facts presented here. See note 12 infra. Whether in fact such a remedy exists is a question to be resolved in a related proceeding, Zerilli v. Civiletti, No. 79-2466 (D.C.Cir. filed Dec. 10, 1979), on appeal from Zerilii v. Civiletti, Civ. No. 77-0546 (D.D.C. Nov. 30, 1979) (memorandum and order granting summary judgment to defendants on plaintiffs’ fourth amendment claim). See p. 222 infra. . In Providence Journal Co. v. FBI, 602 F.2d 1010 (1st Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 752 (1980), a case arising under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976) (amended 1978), the court relied on the congressional policy against disclosure embodied in ch. 119 to find that the contents of unlawfully intercepted communications were exempt from disclosure, even -though the unlawful interceptions occurred before the effective date of ch. 119. The court concluded that Congress’s judgment, reflected in ch. 119, was dispositive on the applicability of FOIA Exemption 7(C), which permits an agency to withhold “matters that are . . . investigatory records compiled for law enforcement purposes ... to the extent that the production of such records would constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7)(C) (1976). The court did not address the issue we confront today, see 602 F.2d at 1012 n.2, and we do not believe its use of ch. 119 as a yardstick under FOIA Exemption 7(C) in any way undercuts the validity of our reasoning. . The complaint does not allege that the newspaper was in any way connected with the interception of plaintiffs’ communications in the early 1960’s. Instead, it claims that a conspiracy involving the newspaper existed when the federal defendants allegedly disclosed the communications in 1976. . We do not reach the difficult question of whether private persons can ever be held liable under Bivens for conspiring to have federal officials violate a plaintiffs constitutional rights, for we decide only that such liability is inappropriate in the present circumstances. As the district court noted, “it is well settled that a private person cannot violate the prohibition on unreasonable searches and seizures found in the Fourth Amendment.” District Court Memorandum at 3 (citing Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921)), reprinted in J.A. at 14. What remains unresolved, however, is whether private persons can be liable under Bivens for conspiring or acting in concert with governmental officials who themselves commit the constitutional infraction. Compare, e. g., Fletcher v. Rhode Island Hospital Trust Nat’l Bank, 496 F.2d 927, 932 n.8 (1st Cir.) (“While federal officers may, at times, be subject to suit for unconstitutional behavior, see [Bivens], there is no cause of action against private parties acting under color of federal law or custom.”), cert. denied, 419 U.S. 1001, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974), with, e. g., Writers Guild of America, West, Inc. v. American Broadcasting Co., 609 F.2d 355, 360 (9th Cir. 1979) (intimating that, in certain circumstances, it may be appropriate to “fashion] ] a cause of action for damages against . . . private defendants based on [Bivens]”). See generally McNally v. Pulitzer Publishing Co., 532 F.2d 69, 75-76 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Holodnak v. Avco Corp., 514 F.2d 285, 292 (2d Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975); Greenya v. George Washington Univ., 512 F.2d 556, 562 n.13 (D.C.Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-1606, 26 L.Ed.2d 142 (1970) (conspiracy with state officials can make private persons liable for damages under 42 U.S.C. § 1983 (1976) (amended 1979)). . Whether there could be independent Bivens liability for federal officials who themselves disclose information originally obtained in violation of the fourth amendment is an issue we do not reach. We deal only with the question of whether a private newspaper may be held liable for conspiring to receive the information disclosed. See also note 8 supra. . See note 11 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 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.

FEDERATION OF UNION REPRESENTATIVES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Ladies’ Garment Workers’ Union, AFL-CIO, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, AFL-CIO, Respondent. Nos. 407, 408, Dockets 28558, 28598. United States Court of Appeals Second Circuit. Argued June 10, 1964. Decided Nov. 20, 1964. Sanford M. Katz, New York City, for Federation of Union Representatives. Emil Schlesinger, New York City (Julius Topol, New York City, on the brief), for International Ladies’ Garment Workers’ Union. Robert G. Sewell, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Atty., N. L. R. B., on the brief), for National Labor Relations Board. Before FRIENDLY, SMITH and MARSHALL, Circuit Judges. SMITH, Circuit Judge. In ILGWU v. N. L. R. B., 339 F.2d 116, 2 Cir., a representation proceeding, in an opinion filed today, we upheld the Board’s determination in 131 NLRB 111 that Intel-national Ladies’ Garment Workers’ Union (ILGWU), itself an international labor organization, is an employer of employees and engaged in commerce within the meaning of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The present unfair labor practice case grew out of the efforts of Federation of Union Representatives, known as FOUR, to organize business agents, organizers, educational directors and other personnel in union label and political work in the employ of ILGWU. The structure and history of ILGWU and the make-up and organization of FOUR are fully set forth in the opinion in the representation proceeding. The complaint in the instant case was based on charges that the employer ILGWU engaged in unfair labor practices in violation of § 8(a) (1) and (3) of the Act by interrogations, threats, discriminatory transfers and discharges, reduction of allowances, increase of job duties, withholding of customary wage increases, establishment of a grievance and other committees and promise of benefits to encourage the use of the ■committees. The Board, held the discharges and reduction in allowances not discriminatory, but found coercion to induce employees to renounce FOUR by interrogation, solicitation, threats, creation of a grievance committee and by withholding customary wage increases. FOUR petitions to review the finding that the discharge of one Constantine Sedares was not as a result of union (FOUR) activity. The Board petitions for enforcement of its order, including back pay on the wage increase withholding. We find no error in the ruling as to ■Sedares, and dismiss FOUR’S petition for review. We find no error in the ruling as to the wage increase withholding, ■and will enforce that portion of the Board’s order. We find no substantial support in the record as a whole of the ■other findings of coercion and decline to enforce the Board’s order in those re.spects. I If Sedares was discharged partly because of participation in the •campaign to establish FOUR and partly because of some neglect or delinquency, a violation of the Act would be made out. N. L. R. B. v. Jamestown Sterling Corp., 211 F.2d 725, 2 Cir. 1954, N. L. R. B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 2 Cir. 1982. The record, however, supports the finding that the discharge was solely for cause, and not in any respect because of participation in the FOUR campaign. It is amply established on the record that Sedares, although possessed ■of considerable ability, was a headstrong, .and at times insubordinate union organizer. He was graduated from the ILG WU Training Institute in June 1958. Thereafter he worked for the ILGWU in the Upper South Department, the Northeast Department, the Dressmakers’ Joint Council, and from March 1960 until his ■eventual discharge December 9, 1960 with the Eastern Region. Kramer, a -vice president of the ILGWU was Gener-al Manager of the Eastern Region. An organizing campaign was in progress at Tiny Town Togs in Troy, New York under Walter De Young. Early in October Sedares was placed in charge of this campaign under De Young when De Young was needed in another organizing campaign. Sedares was told to clear leaflets and major expenses with Kramer. The ILGWU was successful in the election, but thereafter it was found that Sedares had run up an unauthorized bill of $250 for a dinner during the campaign, and without authorization had offered to pay the Tiny Town employees for time lost in voting at the off-plant election. He had yelled at Nash, manager of the Troy local, kicked over a chair and stormed out of the room when Nash attempted to open negotiations with Tiny Town after the election results were known. It was found also that Sedares had been rude to the clerical staff in the New-burgh office and had left an insulting note for the manager of that office. Kramer, checking on Sedares’ conduct, had difficulty getting in touch with him, but finally saw him on November 30, De Young and Kramer’s assistant Janis also being present. After discussing the complaints against Sedares, Kramer told him he was discharged. De Young, however, prevailed upon Kramer to give Sedares another chance at Newark, N. J. under one Detlefsen. Kramer agreed and returning to the room where Sedares was, told him he would be given a last chance, at Newark under Detlefsen. Sedares went to Newark. Detlefsen soon became annoyed at Sedares’ attitude and failure to obey instructions in reporting to the office, and before the end of the week called Kramer and asked him to take Se-dares back. Kramer, however, told Det-lefsen to inform Sedares that Kramer’s instructions were to discharge Sedares. Detlefsen then wrote a letter to Sedares informing him of his discharge. On receipt of the letter Sedares on December 13 went to see Detlefsen and was told he was discharged because he was not fitting into Detlefsen’s team. On December 14 Sedares went to see Kramer to find the “real reason” for his discharge and accused Kramer of firing him for union activity. The examiner and the Board found that Kramer had not at that time heard anything about union activity among staff members. Sedares had for some time been active in the group planning the formation of a staff union, which was formally organi2;ed as FOUR at a meeting in New York on December 11. De Young knew of the plans at least by November 22, but did not inform Kramer of them. The finding by the examiner of lack of knowledge by Kramer at the time of the firing and rehiring of Sedares on November 30 and his final discharge on December 9 is borne out both by Kramer’s rehiring of Sedares on the 30th and by Kramer’s reaction in apparent surprise to Sedares’ accusation on the 14th. Moreover, the finding as to lack of knowledge of Sedares’ union activity by Kramer and Detlefsen at the time of the firing is based partly on the examiner’s assessment of the credibility of the witnesses who testified before him. Such matters are peculiarly within the province of the trier of the facts. N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 407-408, 82 S.Ct. 853, 7 L.Ed.2d 829, N. L. R. B. v. Marcus Trucking Co., 286 F.2d 583, 590, 2 Cir. 1961. We would not be justified in upsetting his finding, accepted by the Board, merely because of the coincidence of the dates, suspicious as that may be. The finding must stand and it is dispositive of the issue of discriminatory discharge. The employer acted in the firing solely through Kramer and Detlefsen. De Young’s knowledge was found not to have been communicated to them. FOUR contends that De Young’s knowledge is that of the ILGWU. This, however, does not follow in any sense meaningful here. What we seek to determine is the cause of the firing. Knowledge by De Young or anyone else in the ILGWU not communicated to Kramer or Detlefsen, the sole actors in the firing, obviously could not have been a cause of the firing. FOUR’S petition for review with respect to Sedares’ discharge must be denied. II In addition to the discriminatory discharge claims, conduct of ILGWU after the existence of FOUR became known was claimed to be coercive in violation of § 8(a) (1) and (3) of the Act. It consisted of interrogations, conversations between supervisory personnel and staff members about the formation and desirability of a staff union, the formation of committees on grievances, wages and other matters and suspension of usual staff wage increases. There is no question but that the management of the employer, ILG WU, was shocked and upset by the development of the staff union, and argued eloquently and at length against it. This in itself, however, does not establish a violation of the Act. Mere expressions of views, argument or opinion are protected by § 8(c) of the Act. N. L. R. B. v. United Steelworkers of America, CIO, et al., 357 U.S. 357, 362, 78 S.Ct. 1268, 2 L.Ed.2d 1383 (1958). The official position taken by the employer was that there should be no discrimination in any way because of membership in or advocacy of. FOUR. There is no determination that this position was not taken in good faith by Dubinsky, President of ILGWU, and the examiner in the face of earlier disavowals by the General Counsel declined to consider a later claim of unlawful conduct by Dubinsky. However, there may be a violation even though bad faith is not established if the effect of management’s actions is necessarily coercive. We do have a situation here in the suspension of the automatic wage increases pending action of the General Executive Board of the employer on the relationship with FOUR, which was necessarily coercive, regardless of the good faith of the employer. ILGWU explains the action as prompted by fear of unfair labor practice charges based on any unilateral wage increase. Whatever possibility of accusations of discrimination there might have been in case of merit increases, no such possibility existed as to increases automatic as to time and amount, and their suspension pending determination of the relationship was inherently coercive. Had the merit increases alone been withheld, the action, if properly explained, might well have been held not coercive. Since their withholding was coupled with the unjustified withholding of automatic increases, however, the Board was justified in holding the entire wage increase withholding action coercive. The Board’s order based thereon must be enforced. We find a different situation, however, as to the findings of coercion by the employer in other respects by interrogations and solicitations of withdrawals from FOUR. On the record as a whole we find that the Board’s conclusion that these were coercive in intent or effect is not supported by substantial evidence, and deny enforcement of the portion of the Board’s order based thereon. The interrogations on learning of staff union activity, on which the finding of violation of the Act is in part based, were as follows: On December 14 Kramer first learned of the effort to organize the staff through a claim by Sedares that he had all of Kramer’s organizers signed up, and reported the conversation to General Secretary Stulberg, who said he did not believe it, but that they should look into it. Kramer interrogated Bramucci, his education director, on December 14, Bernard Cohen on the 15th about the men organizing. Rona, State Supervis- or of ILGWU at Fall River, asked Fon-taine and Leshyk, of the Fall River staff, around mid-December of their knowledge of FOUR and membership in it. Shore, State Supervisor in Pennsylvania, at the request of Chaikin, Manager of the Northeast Department, asked staff people what they knew about FOUR. After a call from Shore, Rosato of the Shamo-kin local asked Haugh, a business agent, if she had joined FOUR and whether the other business agents, Krepshaw and Crowley, had done so. Cerbone, manager of the Jamaica office of the ILGWU, on receiving a report around December 15 or 16 that Morton of his staff had received an application card from FOUR, asked Manenti, Kaufman, Taylor and Koozman of the staff what they knew of FOUR and whether they had signed for it. When Manenti said he intended to sign, Cerbone reminded Manenti that Cerbone had sent him to the Training Institute, and said he wasn’t to be trusted. When informed that Rogoff was a leader of FOUR, Cer-bone told Kaufman and Koozman that he thought Rogoff had more sense, that Sedares was just a “bum” and that if they were smart they would get out of FOUR. He also told his staff that in his opinion it was a violation of the ILGWU constitution to be a member of FOUR and that it constituted dual unionism. On another occasion he informed them that he did not “give a damn” whether they joined FOUR or not. Kramer reprimanded Koozman for engaging in an altercation in the office, questioned him as to his reasons for joining FOUR, agreed with him that it would probably be a long drawn out business, and told him the ILGWU felt so strongly about the issue whether its business agents were its officers or its employees that it would take the issue to the highest court. Aside from Cerbone’s remarks, none of the miscellaneous interrogations passed permitted limits. They merely sought information and expressed opposition. While some of Cerbone’s statements taken alone may be given a sinister meaning, his final reaction that he did not “give a damn” is borne out by the lack of any showing of discrimination against the FOUR members to whom he talked. They were in any case only remarks by one local manager in the face of the announced official policy of non-discrimination, carried out in practice. Interrogation is not coercive, unless the surrounding circumstances, taken as a whole, show that the interrogators threatened discrimination against those engaged in union activity or promised reward for opposition to such activity. N. L. R. B. v. Montgomery Ward & Co., 192 F.2d 160, 163, 2 Cir. 1951. The employees interrogated were not new to the concept of union organization and the right to he free from coercion. In this setting we see no substantial evidence of threat or promise, express or implied. Dubinsky on December 29 informed all regional directors of FOUR’S demand for recognition, stated that it was a matter for the General Executive Board, which had a meeting scheduled for January 30, and postponed the annual review of wages pending action at the meeting. Sedares and Rogoff asked a meeting with Dubinsky, complaining of the discharge of Sedares, threats of other discharges, systematic interrogation and threats of reprisals. Dubinsky replied that only the General Executive Board could act and stated his certainty that the Board would hear any individual or committee that wished to appear on the matter. On January 9 Rogoff and Se-dares met with President Dubinsky, General Secretary Stulberg, and Daniels of the ILGWU. The only specific claim of discrimination made was that of the discharge of Sedares. Dubinsky agreed to and did send a letter to all regional directors stating that a question of discrimination had been raised, that to his knowledge there had been none and that the policy of non-discrimination should be adhered to. The General Executive Board met January 30, rejected FOUR’S request for recognition and set up three committees, one on grievances, wages and other personnel problems, one on whether to continue staff people on the ILGWU payroll or distribute them to departments, regions and locals, the third to consider whether to continue to allow Training Institute graduates to become ILGWU members after one year and members of its retirement fund after 3 % years. Regional staff meetings were held by Kramer for Eastern Region personnel, by Chaikin for Northeast Department personnel, and by Kehrer for Southeast Region personnel. On February 17 at the Eastern Region staff meeting, Kramer told the staff that the issue of FOUR was one the ILGWU and himself felt very strongly about, that ILGWU was not an employer and they weren’t employees, that it was not a business, but a movement. Some of the managers attacked FOUR’S adherents as creators of an internal faction who ought to be kicked out of the union, a position which Kramer himself disavowed, as vicious for not keeping their grievances within the union, but going to the press, and for going to an outside organization. Kramer named those he thought were members of FOUR and pointed out that two others, members of the ILGWU, had once been communists, had seen the light, and returned to the fold and to union office. Dubinsky spoke of this also, and promised FOUR a long hard fight up to the Supreme Court. February 20, at a meeting of the Northeast Department staff, Chaikin outlined the grievance procedure to be set up and debated the merits of FOUR, contending the trade union movement was a cause rather than an employer in the usual sense. January 3, February 13 and 17 meetings were held of the Southeast Region staff. At the first meeting, Kehrer did not speak, pending policy determination at the GEB meeting, but some speakers attacked FOUR. At the subsequent meetings Kehrer denounced FOUR. These staff meetings were periodic affairs for the discussion of ILG WU problems. The formation of a union within the union was recognized by FOUR as involving a number of issues, which indeed FOUR itself stated and argued in its literature addressed to those it sought to enroll. So long as there were no threats or promises to interfere with FOUR’S organization, these debates, even though heated, are within the protection of § 8(c). Kehrer’s comments at the later Atlanta meetings may come close to the line, but taken in the setting of the entire picture and especially of the adopted policy of non-discrimination, we think them insufficient to constitute substantial evidence of coercion by ILGWU. Besides the meetings, individual solicitations are under attack. On February 25 Chaikin invited Ro-goff, FOUR’S secretary-treasurer, who was attached to Chaikin’s department, to his home for an overnight visit, during which FOUR, its relationship to its members and to ILGWU was discussed until 3:00 a. m., at which discussion Chaikin reminded Rogoff that Chaikin once recommended Rogoff for a promotion and said or implied that he would never do so again because Rogoff was stupid. Roberts, district manager of the Southern New England District, attended the February 20 meeting and subsequently separately called in Roussos, Leshyk and Fontaine, business agents under Roberts, and solicited their resignations from FOUR. Roussos and Fontaine refused, Leshyk eventually complied. Rona, supervisor of upstate New York and New England, also attended the February 20 meeting. Klitzman, one of Rona’s business agents, asked Rona how gracefully to get out of FOUR. Rona suggested Klitzman tell a regional meeting of FOUR how he felt and “why not take advantage of the grievance and financial committees set up by the GEB on January 30.” Rona made similar suggestions to Roussos. Klitzman made the suggested statement at the FOUR meeting suggesting that the grievance procedure set up by the GEB be used. Rosato, manager of the Shamokin local, asked one Krepshaw and one Haugh to resign from FOUR. Haugh finally agreed to resign and Rosato dictated the telegram to be sent. Kehrer, after the Southeast Region meetings, interviewed business agents Gross and Warren and organizers Temple, Sharp and Stafford briefly about FOUR, asking Warren and Temple to withdraw. The importance of Chaikin’s remarks, in the long evening discussion with Ro-goff, has been exaggerated out of proportion. Chaikin and Rogoff both knew of Dubinsky’s general instructions, and that he would not stand for discrimination. Chaikin’s statement that Rogoff’s disagreement with him on the desirability of such a union as FOUR was evidence of stupidity which would prevent him from again recommending Rogoff for promotion, in the setting of such a debate savors more of heated advocacy than genuine threat. Roberts’ and Rona’s solicitation of resignations from FOUR were unaccompanied by threats or promises. Haugh obviously did not consider Rosato’s interrogation coercive, as she testified (Tr. 1713) “Well, sir, you would have to know Mr. Rosato and I. We can be friends one minute. We will argue a little bit the next, and five minutes afterward we are friends again.” It is true that feelings were high, and the dispute as to the nature of the relationship was emotional. However, the official position was against discrimination. Evidence of reprisals is lacking. Indeed, quite the opposite is found in Temple’s case. Kehrer gave him extremely generous treatment in a time of injury and illness after the alleged threats. It may also be noted that ILGWU was not opposed in principle to unionization of those it considered its employees, and dealt with unions representing its clerical, janitorial and similar help. It was willing, in fact, to deal with a union representing some of those FOUR was seeking to organize, that is, its organizers, although strongly opposed to organization of its business agents. Of 92 regional directors and district managers, three, Rosato, Cerbone and Kehrer, were alleged and found to have warned or threatened staff members, without, we think, substantial evidence on the record as a whole. We conclude that on the record as a whole, substantial evidence of violation by ILGWU is lacking except in the withholding of pay increases. Enforcement is granted only of so much of the order as proscribes the failure to grant automatic annual and/or merit wage increases to its employees, in accordance with its past practices, because of FOUR’S recognition request, and ordering ILGWU to make whole its employees for loss of earnings suffered as a result of the unlawful withholding of automatic annual and/or merit increases in the manner set forth in the Decision and Order. (Revised paragraphs 1(f) and 2(c)). The Notice will be revised accordingly. The extent of back pay due, in view of a larger than usual increase on July 1, can be determined in compliance proceedings. . The expressing of any views, argument, or opinion, or the dissemination thereof whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subehapter, if such expression contains no threat of reprisal or force or promise of benefit.

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?

MARYLAND CASUALTY COMPANY, Appellant, v. Scott Nelson BURLEY, Jr., Donald Pete Mosteller and National Indemnity Company, Appellees. No. 9815. United States Court of Appeals Fourth Circuit. Argued April 6, 1965. Decided April 29, 1965. Wm. Rosenberger, Jr., Lynchburg, Va., for appellant. Henry M. Sackett, Jr., Lynchburg, Va. (Williams, Robertson & Sackett, Lynch-burg, Va., on brief) for appellee National Indemnity Co. Before SOBELOFF and BOREMAN, Circuit Judges, and STANLEY, District Judge. SOBELOFF, Circuit Judge: This proceeding was instituted to obtain a judgment declaring which of two insurance companies is obligated to assume the burden of defense and liability for any judgment in respect of suits growing out of damages sustained in an automobile accident involving Scott Burley, Jr. On August 10, 1963, Burley, while operating with consent an automobile owned by Brockman Chevrolet, Inc., collided in Virginia with a car driven by Donald Mosteller. Suit was brought against Burley by the mother and next friend of Donald Mosteller for personal injuries suffered by him in the accident. Maryland Casualty Company, the insurer of Brockman, brought this declaratory judgment action to determine whether it, or National Indemnity Company, is obligated to defend the suit. National is the insurer of the members of the Burley household. In the meantime, as often happens in such situations, neither insurance company was willing to assume the defense of the action for damages. Burley was compelled to advance the cost of defending the suit, .and although the injured plaintiff has recovered judgment the insurers decline payment to him while they litigate their dispute in the federal courts. Maryland issued a Garage Liability insurance policy to Brockman in which it agreed to pay all personal injury claims arising out of the use of any automobile owned by Brockman for the purpose of garage operations. An endorsement attached to the policy provides that the policy does not insure any driver, unless a member of a specified class, who has other valid and collectible automobile liability insurance available to him. If it were not for this limiting endorsement the policy’s coverage would clearly extend to Burley in an amount sufficient to cover all liabilities arising from the above accident. Under Virginia law every auto liability insurance policy must contain an “omnibus clause,” that is, “a provision insuring the named insured, and any other person responsible for the use of or using the motor vehicle with the consent * * * of the named insured, against liability for * * * injury * * * ” Code of Virginia, § 38.1-381 (1950). This provision has been interpreted by the Supreme Court of Appeals of Virginia in a somewhat analogous, but perhaps distinguishable, case to require that the “same coverage” be extended to any authorized person driving the insured car as is extended to the named insured. Lumbermens Mutual Casualty Co. v. Indemnity Ins. Co., 186 Va. 204, 213, 42 S.E.2d 298, 302 (1947). According to the terms of Maryland’s policy, however, the permissive driver, unlike members of the group specifically mentioned, is covered only when there is no other collectible and valid insurance available. The validity of the endorsement which makes this distinction between the named group and the permissive driver is in issue here. National contends that this provision is invalid as in conflict with section 38.1-381, above quoted, despite the fact that the State Corporation Commission has approved the form of endorsement here in question. As a federal court operating under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we would be bound to follow any interpretation given this section of the Virginia Code by the Supreme Court of Appeals of Virginia, but that court has never ruled explicitly on the validity of such an “escape” clause. It is regrettable that two insurance companies operating in Virginia should avoid resort to the only court that is empowered to give a final authoritative answer to this question of statutory construction. We note the frequency of litigation of this character in the federal courts when the state forum is the more appropriate one. A state trial court, however, has ruled that the clause is void because it violates § 38.1-381, Code of Virginia (1950). State Farm Mutual Automobile Ins. Co. v. Universal Underwriters Ins. Co., Charlottesville Corporation Court, July 22, 1964. While in the absence of a ruling by the highest court of the state we are not bound to follow this decision, we nevertheless join the District Court in deferring to the only available judicial interpretation of Virginia law and adopt it for the purposes of this case. We think this interpretation is consistent with the intimation in the Lumbermens Mutual case, cited above. While the statute is not concerned with how the insurance companies divide the risk among themselyes, it would not seem reasonable to interpret it as permitting an insurer to avoid liability altogether, an approach that could result in the injured party receiving less than full compensation. Affirmed. . “ * * * any employee, director or stockholder of the named insured, any partner therein and any resident of the same household as the named insured, such employee, director, stockholder or partner.”

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

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

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., Plaintiff-Appellant, v. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, and Maria Luisa A. Inocencio, Defendants-Appellees. No. 87-1158. United States Court of Appeals, Fifth Circuit. May 5, 1988. Edward F. Sherman, Austin, Tex., Stewart W. Forbes, El Paso, Tex., Robert H. Goldman, Alan M. Cohen, Lowell, Mass., for plaintiff-appellant. Bruce P. Heppen, Ronald P. McCluskey, El Paso, Tex., for defendants-appellees. Before RUBIN, KING, and WILLIAMS, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: “[Labor] representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions.” The certification contest between two unions from which this libel action arose was comparatively mild. The union seeking to supersede the incumbent bargaining agent did, however, publish a pamphlet stating in one paragraph that the incumbent union had refused to help an employee because she was not a union member and perhaps implying that the employee was consequently forced to return to her job while pregnant and later died as a result. The incumbent union thereupon brought a defamation action against the challenger and two persons who had participated in confecting the statement. The jury ruled for the defendants because the plaintiff union had not proven its case by “clear and convincing evidence.” The district court then imposed sanctions on the plaintiff for having brought the lawsuit, even though the court had earlier suggested both sides were at fault and should settle their dispute. We affirm the jury verdict for the defendants because the plaintiff failed to show “with convincing clarity” that the defendants had published the statement with “actual malice.” We find, however, that the district court abused its discretion in imposing sanctions, and we vacate that part of the judgment. I. The National Association of Government Employees was the collective bargaining representative of 1,600 civilian employees of the United States Army at Ft. Bliss, Texas. Seeking to displace the Association, the National Federation of Federal Employees petitioned for a representation election. The electioneering activity was intense. During its course, the Federation decided to publish a pamphlet containing employees’ criticisms of the incumbent Association. An employee supporting the Federation, Maria Inocencio, asked a fellow employee, Connie Dawkins, to give her a statement about the plight of a fellow employee, Marsha Kennedy, who had died recently. Dawkins testified that Inocencio had asked for a statement but had represented that it would be used to raise funds for Kennedy’s daughter, and that Inocencio had dictated most of the statement. Ino-cencio testified that she had not misinformed Dawkins and that Dawkins had provided the statement voluntarily. Whatever her motives, however, Daw-kins signed a statement that read: In 1981, my friend, Marsha Kennedy (6 mos pregnant) had to take sick leave, resultant of her pregnancy. She told me that she was harrassed at home about her use of sick leave, and that she had contacted the union (NAGE) for help, but was turned down, because she was not a member. Due to the pressure received, Marsha returned to her job, where she later passed, during pre-mature deliver. Inocencio delivered Dawkins’s statement to a Federation employee, Heather Newell. After a conference with Dawkins, Newell edited or altered the statement to read: In 1981, my friend, Marsha Kennedy (6 months pregnant), had to take sick leave due to her pregnancy. Her supervisor began harrassing her at home about her use of sick leave, so she contacted NAGE for help. NAGE refused to help her because she was not a member. Marsha was forced to return to her job and during pre-mature delivery, passed away. In fact, evidence adduced at trial showed that Kennedy had been a temporary employee and not a member of the bargaining unit represented by the Association. The Army had terminated her employment sometime after she had returned to work, and she had not died until five months after she left Ft. Bliss. She had been six months pregnant at the time she died, not at the time NAGE had allegedly refused to aid her. Furthermore, Dawkins testified, it had been Kennedy’s husband and friends who had harassed her for staying home, not her supervisor as the edited statement asserted. During the week before the election, a Federation representative told the Association’s Executive Secretary, “Tomorrow we are going to drop a bombshell on you.” The next day the Federation distributed a four-page pamphlet entitled “Your CoWorkers Speak Out: ‘Why I’m Voting for NFFE.’ ” The pamphlet, which had been assembled by Newell, contained statements by eleven employees critical of the Association, including the edited version of Daw-kins’s statement. Association witnesses testified that they considered Dawkins’s statement as published untrue and defamatory. According to the Association, Federation officials admitted the “wording [of the statement] was wrong” but refused to retract it. The Association’s Secretary immediately telephoned Dawkins and asked for a retraction, but according to the Secretary, Dawkins hung up the phone. Dawkins testified that she had hung up because she hadn’t known either that any statement had been published or that her own statement had been altered and she had not wanted to be bothered on the job. In the election, the Association received 94 votes more than the Federation but failed by four votes to obtain the required “50 percent plus one.” A runoff election was therefore required and was pending when this suit was filed. Association officials testified that the statement regarding Kennedy had been a “blow to us” that had affected the outcome of the election. Invoking diversity jurisdiction, the Association sued the Federation, Inocencio, and Dawkins for defamation. Dawkins filed cross-claims against Inocencio and the Federation, and Inocencio in turn filed a counterclaim against the Association. Before trial, the district court denied the defendants’ motions for summary judgment. Trial was scheduled and postponed five times. A month before trial, the case was reassigned to another district judge, who denied any further postponements and held a pretrial conference at which he attempted to convince the parties to settle the case. The court held a second settlement conference in chambers before beginning the trial. At the close of the Association’s case, the court denied the defendants’ motions for directed verdicts but warned the Association that he regarded its case as weak. Once more, however, the court proposed a settlement, recommending among other things that the Federation “ought to pull out; [it] ought not to have anything to do with Fort Bliss for at least five years” and “ought to apologize for its distribution [of the statement] for negligence.” The parties were again unable to agree. At the conclusion of the evidence, the court denied a second motion for directed verdict. In answer to special interrogatories, the jury decided that the statement published was defamatory but was not false in any “important factual aspect” and that there was “not clear and convincing evidence that the written statement was published with actual malice by any of the defendants.” The jury also rejected Dawkins’s cross-claims and Inocencio’s counterclaim. Upon receipt of the jury verdict, the court stated, in the presence of the jury, that it “would have done the very same thing”; the suit “should never have been filed”; the Association had misused the courts and the jurors; the Association had disserved its members, and they should sue it for the money spent in the case; and the defendants’ attorneys should submit their expenses and the court would determine “whether under Rule 11 or Rule 27 I can put every bit of this cost on the plaintiffs.” The court added, however, that the Federation had not been “all that innocent; they ought to know better than to print that thing from Connie Dawkins; they ought to check on it.” A week later, the district court entered a take-nothing judgment as to all claims and stated that it would enter such orders concerning sanctions under Federal Rule of Civil Procedure 11 as it deemed appropriate. Acting on its own motion, the court later entered an order stating that “plaintiff’s lawsuit was frivolous” and the plaintiff should pay the defendants the costs they had incurred in defending the case. It ordered the Association to pay $14,276 to the Federation’s attorneys, $8,276 for costs and $6,000 for fees. The court later entered “Findings of Fact and Conclusions of Law,” stating that: (1) it had suggested a possible settlement agreement at a pretrial conference, but the parties had not accepted it; (2) once it had heard testimony, the evidence had shown that the lawsuit had been brought “not because the plaintiff had a cause of action that truly had merit, but was brought more for the purpose of harassing the defendant and to serve as a campaign tactic”; (3) for the plaintiff to have prevailed, the jury would have had to conduct “extensive extrapolating and bootstrapping” and the plaintiff would have needed “a great deal of luck”; (4) at the close of the plaintiff’s case, the court had told the parties that the case should be settled, it was inclined to direct a verdict for defendants but was not willing to do so at that time, and it was considering imposing sanctions; and (5) at the close of all the evidence, the court had again suggested settlement and warned that it might take away any verdict rendered for the plaintiff, but “[o]nce again, the plaintiff refused to settle [its] cause.” The court’s “Conclusions of Law” stated that (1) the Association’s suit “was lacking in its factual and legal basis” and “was brought for the improper purpose of harassing defendants and for the purpose of gaining an advantage in an upcoming campaign”; and (2) Rule 11 allows imposition of sanctions “where a sufficient factual basis is wanting or where the filing is made for an improper purpose.” The Association appeals. Although both parties devote the major portions of their briefs to the propriety of the imposition of sanctions, we first review the jury’s verdict. II. The First Amendment prohibits a public official or public figure from recovering damages for defamation unless he proves that the defamatory statement was false and was published with “actual malice— that is, with knowledge that [the statement] was false or with reckless disregard for whether it was false or not.” The plaintiff must prove the requisite actual malice not by a mere preponderance of the evidence, but with “convincing clarity.” Because the policy of encouraging “uninhibited, robust, and wide-open” debate on matters of public concern extends to labor-management disputes, these standards apply in actions brought by a union for defamatory statements circulated during an election campaign. The Association contends that there was insufficient evidence to support the jury findings both as to falsity and malice. We consider the latter first, since the Association also argues that the instructions concerning falsity were incorrect. The parties have noted only in passing the proper standard of appellate review. Although we usually review a jury verdict deferentially, we must decide independently, in a libel case involving a public official or public figure, whether the record as a whole presents clear and convincing proof of “actual malice” — whether the trier of fact was the district judge or a jury and whether or not it found actual malice. The Supreme Court explained in Bose Corp. v. Consumers Union of U.S., Inc. that this rule is a principle of federal constitutional law and stems from the judges’ duty to interpret the Constitution by applying it in varying factual circumstances. In the context of labor elections, however, the “actual malice” standard applies “by analogy, rather than under constitutional compulsion”; it vindicates the federal policy, embodied in the labor statutes, of encouraging free debate in labor-management disputes but still accords weight to the states’ interest in protecting their citizens’ reputations. Because the “actual malice” standard applies here as a matter, at least formally, of statutory rather than constitutional interpretation, we would extend Bose’s rationale were we to hold that independent appellate review is required in this context as well. We will assume, however, without deciding, that we should exercise such independent judgment in this case, for in any event, the Association did not produce “clear and convincing evidence” that the defendants acted with actual malice in publishing Dawkins’s statement. The burden to present clear and convincing evidence is a heavy one, requiring more than that the preponderance of the evidence point to a finding of malice. When the testimony concerning “actual malice” has conflicted or could plausibly be interpreted either way, we have concluded that the plaintiff has not met his burden. Although the Association produced virtually no evidence that the defendants knew that part of the statement they were publishing was false, the record contains some evidence from which a jury might have inferred that they showed reckless disregard for its truth or falsity. There was evidence that Inocencio was angry at the Association because it had terminated her membership and that the Federation knew of her feelings. In addition, the Federation knew of the gravity of the charge in the statement but made no attempt to verify it before publication and refused to retract it thereafter, facts that may evince the requisite malice. Finally, the editing performed on the statement in some ways strengthened the negative inference readers might have drawn from it. The record as a whole, however, does not establish the defendants’ malice with convincing clarity. Evidence presented by the Federation tended to disprove Dawkins’s claim that Inocencio had misrepresented the statement and its purpose, and to prove that Inocencio had been unaware of the details of Marsha Kennedy’s death or, at most, had interpreted them mistakenly. The record also contains a great deal of testimony that the statement as published did not differ substantially from the version Dawkins had given and that Federation officials had no indication the statement was inaccurate before they published it. Finally, the Association’s Executive Secretary admitted that the placement of Dawkins’s statement in the campaign circular did not call particular attention to it. The evidence on both sides was testimonial, and much turned on the credibility of the witnesses, a matter on which, even after Bose, we must respect the jury’s conclusions. We therefore conclude that the Association failed to carry its burden of showing “actual malice” by clear and convincing evidence. III. The Association also contends that the district court abused its discretion by not granting it a new trial. The court could have ordered a new trial if, after weighing the evidence for itself, it had believed the jury’s verdict was contrary to the weight of the evidence. We may reverse its decision not to grant a new trial, however, only if there is an “absolute absence” of evidence to support the verdict. We need not determine whether Bose affects that standard in libel cases. For the reasons we have already given, we are not prepared to say that the jury’s verdict was contrary to the weight of the evidence. A court may also order a new trial if some misadventure at trial irreparably prejudiced the jury’s verdict. The Association contends that it was irreparably prejudiced when counsel for the Federation and its codefendant elicited and received answers pertaining to “prior-bad-act evidence” in violation of Federal Rules of Evidence 403 and 404. Counsel for the Federation was questioning one of the Federation’s witnesses, Elizabeth Molina. The pertinent part of the record reads: Q. Explain to the jury how you felt like, Ms. Molina, that you have been harassed by the NAGE Local here in El Paso. A. At the time when we had the petition we were trying to get people— Thereupon, the Association objected and asked for a mistrial. The district court stated: Insofar as a mistrial is concerned, I would grant same except I have six people over there who have two or three days invested, of their lives invested in this lawsuit, and I am going to deny the motion for mistrial. The objection is overruled but we are not going into previous acts with this witness. The court’s remark that it would have granted a mistrial but for the fact that the jury members would have wasted their time was not, as the Association suggests, a ruling that the question had been so prejudicial as to require a retrial. The question, even if improper, elicted no damaging testimony. The trifle of testimony given in answer to the question, so quickly interrupted, did not cause such prejudice as to warrant a mistrial or a sua sponte jury instruction. IV. Finally, we review the district court’s imposition of sanctions under Federal Rule of Civil Procedure 11. That rule provides in relevant part: The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction. Our recent en banc decision in Thomas v. Capital Security Services, Inc., an opinion not available to the district court at the time of trial, requires that we review the court’s imposition of sanctions only for abuse of discretion. The district court did not suggest that the Association or its counsel had signed any paper without complying with Rule 11 or had failed to investigate prior to filing the complaint. Instead, the court referred to the Association's conduct in bringing and prosecuting a meritless lawsuit. As we pointed out in Thomas, however, Rule 11 focuses on an attorney’s obligation “at the time a ‘pleading, motion, or other paper’ is signed,” and sanctions “should not amount to an ‘accumulation of all perceived misconduct, from filing through trial,’ resulting in a ‘single post-judgment retribution in the form of a massive sanctions award.’ ” Rule 11, therefore does not permit the imposition of sanctions simply for bringing a meritless lawsuit, without any finding that a party or his lawyer signed a paper in violation of the Rule. The district court might, however, have relied, in its reference to “Rule 27,” upon 28 U.S.C. § 1927, which authorizes the imposition of sanctions on any person who “multiplies the proceedings in any case unreasonably and vexatiously.” In Thomas, we noted that this section prohibits “the persistent prosecution of a merit-less claim.” In this regard, the district court stated that the Association’s suit lacked true merit and could have succeeded only with good fortune and “extensive extrapolation and bootstrapping” by the jury. The court, however, acted on the basis of the perceived lack of merit in the litigation despite the fact that it had thrice urged the defendants to pay something to settle it. If the litigation were frivolous, the court should certainly have known it by the time the Association had adduced all of its evidence and rested. There is patent anomaly then in its imposition of sanctions for filing a suit that it considered worthy of compromise. The court, in addition, denied directed verdicts both at the conclusion of the Association’s evidence and at the end of the case. While this may have been a prudent precaution against possible later reversal on appeal, the court did not merely reserve judgment or grant the motion after receiving the jury’s verdict. Instead it entered judgment on the verdict. As Judge William Schwarzer has stated: “One might well wonder how a case could be so frivolous as to warrant sanctions if it has sufficient merit to get to trial.” Moreover, in denying the Federation’s motion for a directed verdict at the close of the Association’s case, the court observed that the Federation “should have some responsibility in this,” because it had not checked the statement, and should “apologize for its distribution for negligence.” The court, therefore, found some merit, if not the requisite clear and convincing showing, in the Association’s allegation that the Federation had acted recklessly. Such negligence would constitute evidence of “actual malice.” In addition, the court proposed a sweeping remedy for the Federation’s carelessness — that it be barred from Fort Bliss for five years and apologize for distributing the statement — yet when the trial had ended, the court placed all the blame on the Association for the parties’ failure to settle before trial. As we have pointed out, the Association indeed produced evidence of malice although it failed to establish that element with convincing clarity. The Association, therefore, did not proceed so “unreasonably and vexatiously” as to warrant sanctions under 28 U.S.C. § 1927. As a second ground for sanctions, the court noted that the Association had not accepted the settlements the court had suggested at the pretrial conference or at the close of its case. Failure to compromise a case, however, even pursuant to terms suggested by the court, does not constitute grounds for imposing sanctions —especially when, as in this case, both parties make colorable arguments but the burden of sanctions falls entirely upon one. As a third reason for its action, the court concluded that the Association had brought suit “not because [it] had a cause of action that truly had merit, but ... more for the purpose of harassing the Defendant and to serve as a campaign tactic.” In these remarks, the court did not find either that the suit was totally lacking in merit or that it was brought solely to harass and gain a campaign advantage; it found that these were the major motives. We do not condone litigation instituted for ulterior purposes rather than to secure judgment on a well-grounded complaint in which the plaintiff sincerely believes. Yet the Rule 11 injunction against harassment does not exact of those who file pleadings an undiluted desire for just deserts. In Zaldivar v. City of Los Angeles, the Ninth Circuit held that the filing of a complaint that complies with the “well grounded in fact and warranted by existing law” prong of Rule 11 cannot, as a matter of law, “harass” the defendant as Rule 11 forbids, regardless of the plaintiff’s subjective intent. In a footnote in Robinson v. National Cash Register Co., a decision that was in another respect overruled by Thomas, a panel of this circuit agreed with Zaldivar that if an initial complaint passes the test of non-frivolousness, its filing does not constitute harassment for the purposes of Rule 11. The Zaldivar rule comports with the text and spirit of amended Rule 11. The history of the Rule, as traced by the Zaldivar court, indicates that “subjective bad faith” is no longer an element in Rule 11 inquiries. Instead, the court must focus on objectively ascertainable circumstances that support an inference that a filing harassed the defendant or caused unnecessary delay. As Judge Schwarzer has stated: “If a reasonably clear legal justification can be shown for the filing of the paper in question, no improper purpose can be found and sanctions are inappropriate.” Amended Rule 11 mandates the court to focus on objective circumstances in determining whether an attorney has conducted “reasonable inquiry” and a paper is “well grounded” in fact and law, and purely subjective elements should not be reintroduced into the determination concerning “improper purpose.” Like the Zaldivar court, we do not hold that the filing of a paper for an improper purpose is immunized from Rule 11 sanctions simply because it is well grounded in fact and law. The case can be made, for example, as Zaldivar noted, that the filing of excessive motions, even if each is “well grounded,” may under some circumstances constitute “harassment” sanctionable under the Rule. A plaintiff must file a complaint, however, in order to vindicate his rights in court. We find no indication that the filing here was unnecessary, for the Federation had refused to retract the statement. Under the circumstances, the Association had a proper interest in suing to attempt to vindicate its reputation. The court based its decision to impose sanctions on three district court cases, each of which is inapposite. In William Passalacqua Builders v. Resnick Developers South, the court, upon motion, awarded sanctions for the filing of two motions the second of which raised no new issues not raised in the first. In Day v. Amoco Chemicals Corp., the court, upon motion, imposed sanctions under 28 U.S.C. § 1927 and Rule 11 on a plaintiff who, after his complaint had been adjudged frivolous and malicious and had been dismissed with prejudice, filed a motion to correct an alleged misstatement in the record, a motion to disqualify the judge, and a second motion to vacate judgment. The court noted that the pro se plaintiff had filed several other suits in the Southern District of Texas and had in all but one filed a motion to disqualify the judge. In Taylor v. Prudential-Bache Securities, Inc., the plaintiff, likewise pro se, had filed six consolidated suits, all frivolous, against various defendants, and the court found that the plaintiff had engaged in “particularly egregious and unjustified litigiousness.” Each of these cases involved repetitious or excessive filings. The filing of an original complaint, as we noted above, presents no such redundancy and, therefore, when the allegations of the complaint are well grounded, cannot generally serve as a basis for imposing sanctions. We conclude, therefore, that the district court abused its discretion in imposing sanctions on the Association. For these reasons, the judgment is AFFIRMED insofar as it rejects the Association’s libel claim and REVERSED insofar as it imposes sanctions on the Association. Costs in the district court are taxed against the Association. Each party is to pay its own costs on appeal. . Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 58, 86 S.Ct. 657, 661, 15 L.Ed.2d 582 (1966). . See New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 285-86, 84 S.Ct. 710, 726, 728-29, 11 L.Ed.2d 686 (1964). . New York Times, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. . Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 162-66, 87 S.Ct. 1975, 1995-97, 18 L.Ed.2d 1094 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . New York Times, 376 U.S. at 279-80, 84 S.Ct. at 726. . New York Times, 376 U.S. at 285-86, 84 S.Ct. at 728-29; see also Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2508, 91 L.Ed.2d 202 (1986); Rotunda, Nowak, and Young, 3 Treatise on Constitutional Law: Substance and Procedure § 20.33(c) at 168 (1986). . Linn, 383 U.S. at 62-63, 65, 86 S.Ct. at 663, 664 (quoting New York Times, 376 U.S. at 270, 84 S.Ct. at 721); Old Dominion Br. No. 496, Nat'l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 272-73, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745 (1974). . Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). . Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984). . Levine v. CMP Publications, Inc., 738 F.2d 660, 674 (5th Cir.1984). . Bartimo v. Horsemen‘s Benevolent and Protective Ass'n, 771 F.2d 894, 897-98 (5th Cir.1985). . Bose, 466 U.S. at 510-11, 104 S.Ct. at 1965. . Linn, 383 U.S. at 62-63, 65, 86 S.Ct. at 662, 664; see also Austin, 418 U.S. at 272, 94 S.Ct. at 2775; National Labor Relations Act § 8(c), 29 U.S.C. § 158(c). . Nowak, Rotunda, and Young, 3 Constitutional Law at 168 (cited in note 6). . See McKinley v. Baden, 777 F.2d 1017, 1021-22 (5th Cir.1985). . See, e.g., Babb v. Minder, 806 F.2d 749, 756 (7th Cir.1986); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th Cir.1987). . Bose, 466 U.S. at 499-500, 104 S.Ct. at 1959; Zerangue, 814 F.2d at 1071; McKinley, 777 F.2d at 1022; Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 388 (5th Cir.1985). . United States v. An Article of Drug Consisting of 4680 Pails, 725 F.2d 976, 989-90 (5th Cir.1984). . Id. at 990 (citing Litherland v. Petrolane Offshore Construction Services, 546 F.2d 129, 132 (5th Cir.1977)). . Eximco, Inc. v. Trane Co., 737 F.2d 505, 512 (5th Cir.1984). . 836 F.2d 866 (5th Cir.1988) (en banc). . Id. at 872. . Id. at 874. . Id. at 881 (quoting In re Yagman, 796 F.2d 1165, 1183 (9th Cir.1986), cert. denied, — U.S. —, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987)). . 836 F.2d at 875. . William W. Schwarzer, Rule 11 Revisited, 101 Harv.L.Rev. 1013, 1019 & n. 7 (1988). . Bose Corp. v. Consumers Union of United States, 692 F.2d 189, 196 (1st Cir.1982), aff’d, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Goldwater v. Ginzburg, 414 F.2d 324, 342 (2d Cir.1969). . See Kothe v. Smith, 771 F.2d 667, 669-70 (2d Cir.1985); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir.1978). . 780 F.2d 823 (9th Cir.1986). . Id. at 832; Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir.1986). . 808 F.2d 1119, 1130 n. 20 (5th Cir.1987). . See 836 F.2d at 871-73. . Zaldivar, 780 F.2d at 829; William W. Schwarzer, Sanctions Under the New Federal Rule 11, 104 F.R.D. 181, 195 (1985). . Schwarzer, 104 F.R.D. at 195. . Id. at 196. . Id. at 191-92. . Zaldivar, 780 F.2d at 832 n. 10. . 611 F.Supp. 281, 285 (S.D.N.Y.1985). . 595 F.Supp. 1120, 1121-22 & n. 1 (S.D.Tex. 1984), appeal dismissed, 747 F.2d 1462 (5th Cir.1984), cert. denied, 470 U.S. 1086, 105 S.Ct. 1849, 85 L.Ed.2d 147 (1985). . Id. . 594 F.Supp. 226, 227 (S.D.N.Y.1984), aff'd, 751 F.2d 371 (2d Cir.1984).

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

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

John Wesley CLUTCHETTE et al., Plaintiffs-Appellees, v. Raymond J. PROCUNIER et al., Defendants-Appellants. No. 71-2357. United States Court of Appeals, Ninth Circuit. April 25, 1974. Rehearing Granted July 29, 1974. William D. Stein, Deputy Atty. Gen. (argued), Evelle J. Younger, California Atty. Gen., San Francisco, Cal., for def endants-appellants. William Bennett Turner (argued), San Francisco, Cal., John E. Thorne, San Jose, Cal., Floyd Silliman, Silliman & House, Salinas, Cal., Fay A. Stender, Franck, Hill, Stender, Hendon, Kelley & Larson, Berkeley, Cal., for plaintiffs-appellees. Fifth Circuit, sitting by designation. . No published criteria guiding the exercise of the Authority’s discretion have been discovered. The discretion committed to the Authority appears to be at least as broad as that conferred on a sentencing judge. See, e. g., Report of the Assembly Select Comm, on the Administration of Justice, Parole Board Reform in California 15-16 (interim study 1970) ; 3 California Bd. of Corrections, Correctional System Study: Parole Task Force Report 115 (1971). OPINION Before TUTTLE HUFSTEDLER and KILKENNY, Circuit Judges. HUFSTEDLER, Circuit Judge: Plaintiffs, who are inmates of San Quentin state prison, filed a civil rights class action challenging the constitutionality of the prison’s disciplinary procedures. The district court held that the procedures violated the due process and equal protection clauses of the Fourteenth Amendment and granted the plaintiffs declaratory, injunctive, and other relief. The prison authorities have appealed. The issues on appeal, phrased broadly, are these: (1) Did the district court lack jurisdiction either because 28 U.S.C. § 2281 compelled convening a three-judge court to consider the constitutional issues or because Preiser v. Rodriguez (1973), 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, required the plaintiffs to exnaust state remedies before resort to the district court? (2) Do the protections of the due process clause extend to prisoners who were subjected to the challenged disciplinary procedures? (3) What process is due these prisoners in the context of San Quentin’s disciplinary system? I. We agree with the district court that a three-judge panel did not have to be convened to hear the cause. Section 2281 does not apply to a suit to enjoin enforcement of regulations that have local, rather than “statewide application.” (Board of Regents v. New Left Education Project (1972), 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697; Moody v. Flowers (1967), 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643; Hatfield v. Bailleaux (9th Cir. 1961), 290 F.2d 632.) The plaintiffs’ attack is limited to procedures conducted within the walls of San Quentin, and San Quentin’s rules do not apply statewide. (Compare Hatfield v. Bailleaux, supra (three-judge court not required when regulation challenged applied only to single Oregon prison), with Gilmore v. Lynch (9th Cir. 1968), 400 F.2d 228 (three-judge court required where regulation challenged established rules for every prison in California). See also Sands v. Wainwright (5th Cir. 1973), 491 F.2d 417.) A more difficult question is whether the gloss of Wilwording v. Swenson (1971), 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418, by the Court in Preiser v. Rodriguez (1973), 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, compels the plaintiffs to seek relief via habeas corpus instead of using the Civil Rights Act (42 U.S.C. § 1983). If the plaintiffs’ sole recourse were to habeas, they could not maintain their federal suit because they have not exhausted state remedies. The prisoners in Rodriguez brought section 1983 actions seeking restoration of good time credits that had been revoked through disciplinary procedures that they claimed violated their due process and equal protection rights. The Court, stressing that relief would result in either immediate or more speedy release from confinement, held that a writ of habeas corpus was the exclusive federal remedy because the prisoners’ lawsuits were “within the core of habeas corpus in attacking the very duration of their confinement itself.” (411 U.S. at 487-488.) However, the Court expressly reaffirmed its earlier holding in Wilwording that state prisoners challenging on constitutional grounds the conditions of confinement, rather than the fact or length of custody, could properly bring section 1983 actions, thus eliminating the habeas corpus exhaustion requirement. (411 U.S. at 498-499.) The Clutchette plaintiffs attack neither the fact nor the duration of their confinement. No plaintiff seeks immediate or earlier release from prison. They challenge on constitutional grounds prison procedures which can result in sanctions ranging from loss of privileges enjoyed by the general prison population to prolonged isolation from other prisoners, all of which have a significant impact on the conditions of their confinement. The profile of their action thus appears to resemble Wilwording. However, a closer examination of the features of San Quentin’s disciplinary procedures in the context of California’s Indeterminate Sentencing Act (Cal.Penal Code §§ 1168, 3020-3035), to which these prisoners are subject, requires a reappraisal of their case under the Rodriguez doctrine. The line established by Rodriguez between proceedings seeking earlier release from confinement and actions challenging the conditions of confinement can be applied in a good time credit system because loss of credits has a direct and specific relationship to release dates. But in California, where good time credits are nonexistent, the line is blurred to the point of inapplicability because disciplinary sanctions have no fixed relationship to the fact or length of incarceration. Under California law, the Adult Authority is empowered within statutory limits to set and to reset the terms of imprisonment of adult male offenders sentenced to prison and to serve as the parole board for such offenders. (Cal. Penal Code §§ 1168, 3020, 5077.) All disciplinary actions against a prisoner are eventually reported to the Adult Authority. The Adult Authority has unfettered discretion to decide what effect, if any, a disciplinary sanction will have on the length of an inmate’s confinement. The Authority can and sometimes does cancel a previously set parole date or reset the inmate’s sentence to a statutory maximum on the basis of even minor disciplinary actions. (See 2 California Bd. of Corrections, Correctional System Study: Prison Task Force Report 36-37 (1971). The relationship between the imposition of a disciplinary sanction and cancellation or postponement of a prisoner’s release date cannot be more precisely identified. The Authority is not obligated to state reasons for its actions (See Parole Board Reform in California, supra note 5, at 16), and, therefore, the causal connection between a record of a disciplinary offense and an adverse response by the Authority is not always evident. Because the potential effect of disciplinary sanctions on parole dates and length of sentence is so nebulous, we do not think that Rodriguez should be extended to compel the Clutchette plaintiffs to seek all of their relief through habeas corpus. Nor should Rodriguez be read to require plaintiffs to separate somehow those disciplinary proceedings that affect only the conditions of their confinement from those than can have an impact on their release dates, bringing civil rights actions challenging one type and habeas petitions challenging the other. Of course, we could verbally circumvent the problem by limiting the scope of relief available in this civil rights action to those disciplinary hearings that do not affect the length of incarceration time, leaving to prisoners, prison authorities, and state courts the task of deciding which proceedings are within or without our judgment. That course is unacceptable. Rather, we acknowledge that San Quentin’s inmates cannot cast a habeas petition in Rodriguez’ mold because it would be exceedingly rare, if ever, that a prisoner could aver that he would have been entitled to immediate release or release on a date certain had he not been subjected to the disciplinary procedures that he attacks on constitutional grounds. We hold that the speculative and incidental effect of prison disciplinary procedures on the duration of plaintiffs’ sentences is not sufficient to bring any part of this action within the “core” of habeas corpus. Therefore, it was proper for the district court to permit plaintiffs to proceed with their civil action under section 1983 without their having exhausted state remedies. II. The plaintiffs retained a residuum of constitutionally protected liberty after they were convicted and incarcerated. Serious inroads on that liberty can be made only by following due process requirements. (Cf. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.) Accordingly, our circuit and others have held that those prison disciplinary proceedings that can result in the imposition of “significant” sanctions upon prisoners must be conducted with due process safeguards. (Allen v. Nelson (9th Cir. 1973), 484 F.2d 960, aff’g (N.D.Cal.), 354 F.Supp. 505; McDonnell v. Wolff (8th Cir. 1973), 483 F.2d 1059, cert. granted (1974), 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108; United States ex rel. Miller v. Twomey (7th Cir. 1973), 479 F.2d 701; Gray v. Creamer (3d Cir. 1972), 465 F.2d 179; Sostre v. McGinnis (2d Cir. 1971) 442 F.2d 178; See Palmigiano v. Baxter (1st Cir. 1973), 487 F.2d 1280.) When the district court decided this case, it had little guidance in drawing a due process line other than the general principle, derived from Mr. Justice Frankfurter’s concurring opinion in Joint Anti-Faeist Refugee Comm. v. McGrath (1951), 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, that procedural due process protections are due state prisoners subjected to disciplinary proceedings if, as a result of such proceedings, they will be “condemned to suffer grievous loss.” (Id. at 168, quoted in Goldberg v. Kelly (1970), 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287, and in Morrissey v. Brewer, supra, 408 U.S. at 481.) In applying the “grievous loss” concept, the district court recited instances in which deprivations were serious enough to require application of due process and implied that other, less significant disciplinary restrictions of a prisoner’s liberty or property interests might not warrant procedural protections. Other courts have made comparable efforts at defining, at least in part, those sanctions which constitute “serious deprivations” or “grievous loss” so as to outweigh any governmental interest in summary adjudication. (See, e. g., United States ex rel. Miller v. Twomey, supra, Sands v. Wainwright (M.D.Fla.1973), 357 F.Supp. 1062, vacated, 491 F.2d 417; Bundy v. Cannon (D.Md.1971), 328 F.Supp. 165.) The attempts thus to classify disciplinary sanctions that adversely change a prisoner’s status are predicated on an erroneous notion of due process. The “schedules” developed, of course, have great relevance to an evaluation of the “weight” of the prisoner’s interests affected by the imposition of disciplinary sanctions. And the relative weight of liberty or property interest has a significant impact on any determination of the formality and procedural requisites of the hearing required in particular circumstances by due process. (Board of Regents v. Roth (1972), 408 U.S. 564, 570, 92 S.Ct. 2701, 33 L.Ed.2d 548; Fuentes v. Shevin (1972), 407 U.S. 67, 90 n.21, 92 S.Ct. 1983, 32 L.Ed.2d 556.) “But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” (Board of Regents v. Roth, supra at 570-571, citing Morrissey v. Brewer, supra.) That is, we must see if the prisoner’s interest affected is within the Fourteenth Amendment’s protection of liberty and property (see id. at 571); for any prison disciplinary proceeding that impairs a prisoner’s residuum of liberty or adversely affects his property interest (and which is not de minimis) condemns a prisoner “to suffer grievous loss,” as that term is now understood. It is difficult to imagine any sanction that might be imposed by a prison disciplinary committee which would not constitute a further impairment of a prisoner’s already restricted interest in liberty (or in the case of a fine or a forfeiture of accumulated earnings, which would not constitute a deprivation of a property interest). All the sanctions considered by the district court to constitute “grievous loss” (see note 7 supra) involve an impairment of a prisoner’s surviving interests in liberty and property. Any entry in a prisoner’s permanent file which indicates that he has been found guilty of a violation of prison regulations, whether or not the file is forwarded immediately to the Adult Authority, has an incalculable effect on a prisoner’s eligibility for parole (see, ■ e. g., McDonnell v. Wolff, supra, 483 F.2d at 1064 & n.7; Hudson v. Hardy (1970), 137 U.S.App.D.C. 366, 424 F.2d 854, 856), an effect which without question impairs a prisoner’s interest in “liberty.” Finally, even a temporary suspension of “privileges,” by restricting the prisoner’s activities to a greater extent than the general prison population, constitutes an abridgment of the prisoner’s limited residuum of liberty. (See Palmigiano v. Baxter, supra, 487 F.2d at 1284; cf. Jackson v. Godwin (5th Cir. 1968), 400 F.2d 529, 535.) Indeed, “the distinction between a ‘right’ and a ‘privilege’ — or between ‘liberty’ and a ‘privilege’ for that matter — is nowhere more meaningless than behind prison walls.” (Sostre v. McGinnis, supra, 442 F.2d at 196 (footnote omitted)). III. Under the disciplinary procedures existing at the time of commencement of this lawsuit, an accused inmate was visited by a hearing officer within 24 hours of an alleged infraction. The officer orally informed the prisoner of the charges against him. The officer could impose sanctions for minor infractions without any further investigation or hearing, but serious offenses were referred to a disciplinary committee. At the committee hearing, the complaint and, in some cases, a summary of supplemental reports were read to the inmate (but not shown to him), and he was then given an opportunity to explain his conduct. The decision of the committee was recorded and forwarded to an associate warden for approval. The district court agreed with the plaintiffs’ contention that these procedures did not satisfy the minimum due process standards applicable to prison disciplinary proceedings. In addition to granting declaratory relief, the court enjoined defendants from conducting any further disciplinary proceedings at San Quentin so long as the procedures employed remained constitutionally infirm and ordered the defendants to submit a plan for the conduct of disciplinary proceedings consistent with the court’s opinion. The district court also ordered that the decisions of the disciplinary committee in the hearings of the named plaintiffs be set aside, that the plaintiffs be returned to their predisciplinary hearing status, and that the decisions of the disciplinary committee be expunged from the named plaintiffs’ records and not be referred to the Adult Authority. It is now axiomatic that the requisites of due process vary according to specific factual contexts. (E. g., Morrissey v. Brewer, supra, 408 U.S. at 481; Goldberg v. Kelly, supra, 397 U.S. at 262-263.) Fashioning the due process formula for each situation requires striking an appropriate balance by identifying and assessing the relative weights of the competing individual and state interests involved. (Cafeteria & Restaurant Workers v. McElroy (1961), 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230; see Hannah v. Larche (1960), 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307.) Every San Quentin disciplinary hearing threatens a prisoner’s small store of protected liberty and potentially his property as well. The severity of the sanction that may be imposed varies and, accordingly, the kind of process due will vary, at least in detail. The state’s interests in prison disciplinary procedures administered in San Quentin are multiple and also of varying importance. They range from its interest in rehabilitation of the offender, the primary goal of a corrections system which ultimately returns almost all offenders to society, through prison security and “efficient custody” to considerations of economy in using scarce public financial resources. The least weighty of these interests in the procedural due process scale is thrift. The need for conservation of public financial resources is real. However, the interest in savings that can be realized from depriving prisoners of minimum procedural safeguards designed to enhance fair fact finding is outweighed by the larger public interest in rehabilitating offenders and by the individual prisoner’s interest in clinging to the remnants of his liberty. The Supreme Court has recognized the linkage between the rehabilitative goals of corrections and the conduct of correctional hearings utilizing nonsummary procedures which are fair and which appear fair to the offender. (See, e. g., Morrissey v. Brewer, supra, 408 U.S. at 484; In re Gault (1967), 387 U.S. 1, 26, 87 S.Ct. 1428, 18 L.Ed.2d 527; Millemann, Prison Disciplinary Hearings and Procedural Due Process: The Requirement of a Full Administrative Hearing, 31 Md.L.Rev. 27, 42-44 (1971).) It has also held that an individual’s interest in an adequate hearing cannot be sacrificed to the state’s interests in saving time and money: “Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions [or liberties] are about to be taken.” (Fuentes v. Shevin, supra, 407 U.S. at 90 n. 22; accord, Goldberg v. Kelly, supra, 397 U.S. at 265-266.) The undeniable fact that the imposition of due process mínimums will increase the cost of maintaining San Quentin is not a basis for rejecting plaintiffs’ due process claims. Prison security and “efficient custody” of the inmates (Palmigiano v. Baxter, supra, 487 F.2d at 1285) are interests that must be accommodated. Without them, San Quentin could not be administered at all. The key word, however, is “accommodation,” not “sacrifice.” In emergency situations in which there is grave risk of physical harm to prison personnel or to inmates from outbreaks of individual violence or riots, immediate action can be taken. But, as the district court observed (328 F.Supp. at 782 n. 13), the state’s interest in achieving security through summary procedures is adequately vindicated by permitting prison officials temporarily to isolate potentially disruptive inmates. (Biagiarelli v. Sielaff (3d Cir. 1973) 483 F.2d 508; cf. North America Cold Storage Co. v. Chicago (1908), 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195.) Once the imminent threat of violence has passed, of course, the prison authorities have no cognizable interest in maintaining the suspected troublemakers in isolation status — or in imposing any other disciplinary sanctions — -without first providing an appropriate hearing. As we have earlier pointed out, the rehabilitative goal is improved, not impaired, by imposing procedural protections designed to thwart arbitrariness and to enhance the quality of fact finding. A prisoner who receives what he reasonably views as unfair or arbitrary treatment from prison authorities is likely to become a difficult subject for reformation or even for efficient custody. (E. g., United States ex rel. Miller v. Twomey, supra, 479 F.2d at 715; Task Force Report: Corrections, supra at 83.) We conclude that, except in emergency situations, the inmate’s interest in preserving his slight liberty and his property and the public interest in reaching the rehabilitative ends of corrections outweigh any competing interests that could be promoted by preserving summary proceedings in the conduct of San Quentin’s disciplinary hearings. IV. We turn to the task of defining specifically the minimal procedural safeguards that must be accorded to San Quentin’s inmates in all prison disciplinary proceedings. In doing so, we emphasize at the outset that we agree with the district court’s conclusion that our judicial role is properly limited to prescribing the constitutional minimums and requiring the San Quentin administrators to produce a plan which the district court can test against the basic constitutional criteria. 1. Notice — The defendants concede that an essential element in any system of minimum procedural safeguards is providing the accused inmate with specific notice of the charges against him. Adequate notice has been held by our circuit to be an indispensible ingredient of minimum due process in the prison context (Allen v. Nelson, supra), and it has been unanimously viewed as a necessáry safeguard in prison disciplinary proceedings. (See, e. g., McDonnell v. Wolff, supra, 483 F.2d at 1062-1063; United States ex rel. Miller v. Twomey, supra, 479 F.2d at 716, 718; Corrections at 51.) The notice must inform the inmate of the charges against him and of the details of his alleged offense (Morrissey v. Brewer, supra, 408 U.S. at 489); it must be promptly delivered to him and must be received sufficiently in advance of the hearing to enable him to prepare any defense he may have. (McDonnell v. Wolff, supra at 1062; see In re Gault, supra, 387 U.S. at 33.) Moreover, to permit presentation of an effective defense and to facilitate the therapeutic value of a fair and impartial disciplinary hearing, the prisoner should also receive a written explanation of the procedures that will be employed at the disciplinary proceeding and a statement of his rights (and the limitation of those rights) under the hearing rules. 2. The Right To Be Heard and To Present Witnesses — The fundamental guaranty of due process is the opportunity to be heard. Prior to- the imposition of disciplinary sanctions, an accused inmate must have an opportunity to show, if he can, that he did not violate the rule as charged or to explain that, although guilty of the charged infraction, there are mitigating circumstances. (Sostre v. McGinnis, supra, 442 F.2d at 198-199, 203; see Morrissey v. Brewer, supra, 408 U.S. at 489; American Correctional Assoc., Manual of Correctional Standards 409-10 (3d ed. 1966).) He also has a right to present witnesses and documentary evidence to support his contentions. (McDonnell v. Wolff, supra at 1062-1063; see Morrissey v. Brewer, supra at 489; Corrections at 52.) The ability to produce evidence other than his own testimony is necessary to assure that he will be heard “in a meaningful manner.” (Armstrong v. Manzo (1965), 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62.) Without such a right, relevant exculpatory evidence, not within the personal knowledge of the accused but nonetheless essential to a fair and accurate fact finding determination, may not be heard at all; relevant corroborative testimony and real evidence, frequently important for the defense of a possibly unreliable prisoner, may also be presented for the same purpose. The initial decision concerning the witnesses to be called in his defense should be made by the accused. However, the disciplinary committee has the power to limit the number of witnesses called to prevent repetitiousness and to control the admission of documentary evidence to avoid irrelevant or merely cumulative evidence. 3. The Right to Confrontation and Cross-Examination — Confrontation and cross-examination of witnesses at a hearing help guarantee that the fact finding process is as complete and reliable as possible. Accordingly, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Goldberg v. Kelly, supra, 397 U.S. at 269.) Prison disciplinary hearings, no less than parole revocation proceedings (Morrissey v. Brewer, supra at 489), involve factual determinations and thus must provide an opportunity for an accused inmate to demonstrate that the evidence against him is based on misperceptions or on faulty memories or that it is motivated by malice or prejudice. (McDonnell v. Wolff, supra at 1062-1063; Palmigiano v. Baxter, supra, 487 F.2d at 1290; cf. Greene v. McElroy (1959) 360 U.S. 474, 496-497, 79 S.Ct. 1400, 3 L.Ed.2d 1377. But see Sostre v. McGinnis, supra, 442 F.2d at 196-197.) Permitting an inmate to confront and cross-examine his accusers may threaten an erosion of traditional inmate-staff relationships. (Millemann, Prison Disciplinary Hearings and Procedural Due Process, supra at 53.) But this concern, based on a desire to isolate prisoners from the correctional staff and to shield the conduct of the latter from scrutiny and criticism, is premised on notions of authority that have recently been questioned. (See, e. g., Corrections at 485-86.) More importantly, to the extent that accommodating this interest is inconsistent with implementation of procedural protections necessary to insure fundamental fairness in those proceedings which threaten prisoners with the deprivation of constitutionally protected interests — such as the right to confrontation and cross-examination of adverse witnesses — the concern for administrative dislocation must yield. (See Fuentes v. Shevin, supra, 407 U.S. at 90 n. 22.) It is also true that identification of inmates testifying against the accused prisoner, obviously a necessary aspect of confrontation and cross-examination, may lead to reprisals against those testifying. (See generally American Correctional Assoc., Manual of Corrections, supra at 410.) But this concern for the safety of inmates does not justify a wholesale denial of the right to confront and cross-examine adverse witnesses. Rather, prison authorities must attempt to provide protection for testifying inmates in a manner which creates the least interference with the right of an accused prisoner to a fair and reliable disciplinary hearing. (See Palmigiano v. Baxter, supra at 1287-1288. See generally Shelton v. Tucker (1960) 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Dean Milk Co. v. City of Madison (1951), 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329.) When an actual, legitimate fear of retributive violence exists and usual methods of protecting the testifying inmate (e. g., temporary, protective segregation consented to by the inmate) are inadequate, however, a modification of the usual procedure of confrontation and cross-examination may be justified. But the exact procedures to be used under these circumstances for revealing to the accused inmate the substance of the adverse witness’ testimony to permit him to rebut the evidence and for providing the disciplinary committee with an opportunity to probe in camera the credibility of the witness should be, in the first instance, worked out by the prison authorities subject to the approval of the district court. (See Palmigiano v. Baxter, supra, at 1290; cf. Gagnon v. Scarpelli, supra, 411 U.S. at 778, 782-783 n. 5.) U. A “Neutral and Detached” Hearing Body — Basic to an accused prisoner’s constitutional guarantee of an accurate and fair fact finding determination prior to imposition of sanctions is the right to be heard by an impartial disciplinary committee. (Morrissey v. Brewer, supra at 489; Goldberg v. Kelly, supra at 271; see Corrections, supra at 52.) “[P]ersonal knowledge of, and sometimes bias toward, the inmate defendant, tendency to support staff, and reaction to inmate attitude toward the [disciplinary committee]” may affect the decisions of any prison administrator or staff member sitting on a disciplinary committee. (See Harvard Center for Crim. Justice, Judicial Intervention in Prison Discipline, 63 J.Crim.L. 200, 210 (1972).) And it is likely that most prison officials will have some awareness of at least the more significant disciplinary problems which have arisen within the institution. Nevertheless, provided that no member of the disciplinary committee has participated or will participate in the case as an investigating or reviewing officer, or either is a witness or has personal knowledge of material facts related to the involvement of the accused inmate in the specific alleged infraction (or is otherwise personally interested in the outcome of the disciplinary proceeding), a hearing board comprised of prison officials will satisfy the due process requirement of a “ ‘neutral and detached’ hearing body.” (See, e. g., Morrissey v. Brewer, supra at 489; Meyers v. Alldredge (3d Cir. 1974), 492 F.2d 296 at 305-306; Landman v. Royster (E.D.Va.1971), 333 F.Supp. 621, 653.) 5. A Decision Based on the Evidence Presented — Use of information not presented at the hearing leaves the inmate without any means of rebutting or seeking to mitigate the evidence against him. (See United States v. Abilene & S. Ry. (1924), 265 U.S. 274, 289, 44 S.Ct. 565, 68 L.Ed. 1016.) For the right to confront and cross-examine adverse witnesses to be meaningful, the disciplinary committee must be required to make its fact finding determinations based solely upon the evidence presented at the hearing. (See Goldberg v. Kelly, supra at 271; Corrections, supra at 52.) To insure compliance with this requirement, the committee must state briefly the reasons for its decision and indicate the evidence on which it relied. (Morrissey v. Brewer, supra at 489; Goldberg v. Kelly, supra at 271.) As we have already indicated, utilization of these procedural safeguards is necessary for any prison disciplinary proceeding to be consistent with the requirements of the due process clause of the Fourteenth Amendment, regardless of the sanction that is imposed. Because the procedures challenged in this case did not meet these mínimums, they ara unconstitutional. V. Utilization of the minimum procedural protections heretofore outlined will not be sufficient to satisfy the requirements of the due process clause in all prison disciplinary proceedings. As we have noted several times, the severity of the sanction imposed by a disciplinary committee may vary over a wide range. When the consequences of disciplinary action are most serious, for example, when the inmate is subject to prolonged periods of “isolation,” the balance between the accused prisoner’s interest in procedural protections which assure a fair hearing and the state’s interest in limiting the safeguards is altered, and more “process is due.” (See Morrissey v. Brewer, supra at 481. See also Boddie v. Connecticut (1971), 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113.) Thus, while not constitutionally required in every proceeding, in many cases prison officials must provide an accused inmate with either counsel or counsel-substitute. (See Corrections, supra at 52; Task Force Report: Corrections, supra at 86. See generally Gagnon v. Scarpelli, supra, 411 U.S. at 783-791.) The Supreme Court has long recognized that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” (Powell v. Alabama (1932), 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158.) The need for assistance to permit adequate presentation of a defense is particularly strong in the context of prison disciplinary proceedings because “penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” (Johnson v. Avery (1969), 393 U.S. 483, 487, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (footnote omitted).) Indeed, in large part because of the lack of education of parolees and probationers (most of whom are former prisoners), the Supreme Court last term held that the state’s interest in informality, flexibility, and economy in parole/probation revocation hearings, in most cases, must yield to an accused probationer’s need for appointed counsel whenever the probationer has a colorable claim that he has not committed the alleged infraction. (Gagnon v. Scarpelli, supra at 786, 790.) In the context of prison disciplinary hearings, as in the parole/probation revocation context, the question of a right to counsel involves a conflict between a prisoner’s interest in avoiding unwarranted restrictions of his liberty and the state’s competing interest in efficient and informal hearing procedures. The defendants have suggested no additional state interest, not present in parole revocation hearings, which, under the principles enunciated in Gagnon v. Scarpelli, justifies denial of legal assistance to an inmate who wishes to assert a factual defense or to present mitigating circumstances. However, in Johnson v. Avery, supra, the Supreme Court held that in some instances the assistance of fellow inmates is an acceptable substitute for the assistance of counsel or “paraprofessionals,” such as law students. (393 U.S. at 490.) Thus, we cannot formulate a per se rule that whenever assistance is required in prison disciplinary proceedings, it must be provided by a qualified member of the bar. (See Palmigiano v. Baxter, supra at 1290-1292.) Similarly, we cannot now specify precisely when legal assistance is required and when, if required, it must be rendered by a qualified attorney. It is no more appropriate for us than it is for the Supreme Court to write a code of procedure. (Morrissey v. Brewer, supra at 488.) In the first instance it is the responsibility of the prison officials— subject to approval by the district court ■ — to evaluate in the context of the rules of the particular institution the severity of the various sanctions imposed by disciplinary committees and, once some form of “schedule” has been formulated, to decide which types of disciplinary actions are sufficiently serious to require the assistance of a qualified attorney and which require at least “counsel-substitute.” In making these complex evaluations, the prison officials should consider, inter alia, the problems of

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the court declared any statute or administrative action unconstitutional. Only explicit statements in the opinion that some provision is unconstitutional should be used. Procedural violations of the constitution in the courts below are not counted as judicial review (e.g., if the trial court threw out evidence obtained in a search and seizure because of a 4th Amendment violation, the action would not count as judicial review).

Did the court declare any statute or administrative action unconstitutional?

CITTADINI v. COMMISSIONER OF INTERNAL REVENUE. No. 5131. Circuit Court of Appeals, Fourth Circuit. Nov. 15, 1943. C. Walter Randall, Jr., of Philadelphia, Pa., (Maurice Bower Saul and Saul, Ewing, Remick & Harrison, all of Philadelphia, Pa., on the brief), for petitioner. Louise Foster, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges. NORTHCOTT, Circuit Judge. This is a petition filed by Anastasie Irene Warden Cittadini, here called the taxpayer, to review a decision' of the Tax Court of the United States, here referred to as the Tax Court, and involves a deficiency determination by the Commissioner of Internal Revenue in the amount of $26,625.93, in petitioner’s income tax for the year 1939. The decision of the Tax Court was entered on February 15, 1943, and on May 11, 1943, it entered an order modifying the decision and denying the taxpayer’s motion to vacate it. The taxpayer, a resident of Philadelphia, Pennsylvania, filed her income tax return for the year 1939 with the Collector of Internal Revenue at Baltimore, Maryland. In her return the taxpayer claimed a deduction in the amount of $100,000, for a bad debt. The Commissioner of Internal Revenue disallowed this deduction and asserted a deficiency in the amount above stated. The taxpayer duly filed her petition with the United States Board of Tax Appeals contesting the disallowance. A hearing before the Board was held and evidence presented. The Tax Court rendered a decision on February 15, 1943, some months after passage of the Revenue Act of 1942, holding that while the evidence did establish the existence of a debt the retroactive provisions of section 124 of the Revenue Act of 1942, 26 U.S.C.A. Int.Rev. Code, § 23(k) (1), were applicable rather than Sec. 23 (k) (1) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 23 (k) (1), in effect at the time of the return. On February 22, 1943, the taxpayer filed a motion to vacate the Tax Court’s decision and a supplemental motion was also filed on March 18, 1943, requesting that if the motion to vacate should be denied the taxpayer be allowed a further hearing in order to present proof that the debt involved did not become worthless prior to the year 1939. This supplemental motion was afterwards withdrawn on the ground that no additional evidence could be produced if a hearing were granted. The question involved is whether the taxpayer was entitled to charge off the debt in her return for the year 1939 either as ascertained to be worthless and charged off in that year under sec. 23 (k) (1) of the Internal Revenue Code or under that section as amended by section 124 Revenue Act of 1942 (effective in respect to taxaable years beginning after December 31, 1938). Section 23 (k) (1) of the Revenue Code reads as follows: • “§ 23. Deductions from gross income. In computing net income there shall be allowed as deductions: * * * # * jfc “(k) Bad debts. “(1) General rule. Debts ascertained to be worthless and charged off within the taxable year (or, in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts); * * Section 124 of the Revenue Act of 1942, c. 619, 56 Stat. 798, reads in part as follows : “§ 124. Deduction for bad debts, etc. “(a) General rule. Section 23 (k) (relating to bad debts and securities becoming worthless) is amended to read as follows: “ ‘(k) Bad debts. “‘(1) General rule. Debts which become worthless within the taxable year; * ijc * i o In the year 1930 the petitioner was in Paris, France, and on November 16, of that year she loaned $100,000 to one Mark McCune, who was also at that time in Paris, and to whom the petitioner was engaged to be married. Mark McCune was a speculator on the New York Market and wanted the money to protect his brokerage account. At the time of the loan, no date was fixed for repayment and there was no agreement as to interest. At the request of her fiance the petitioner made the check payable to Raymond McCune, brother of Mark McCune. Under the same date, November 16, 1930, petitioner addressed a letter to Raymond McCune in which she stated that the check for $100,000 was in payment of indebtedness to him, Raymond McCune. Such statement was not a fact as petitioner was not then, nor ever had been, indebted to Raymond McCune. Shortly after this transaction the engagement between the petitioner and Mark McCune was broken. During the period 1931 to 1939, inclusive, the taxpayer made attempts to collect the debt and in the fall of 1931 took the matter up with her American attorney, who was then in Paris, and placed the claim in his hands for collection. In January 1935, an action was instituted in the courts of New York against Mark McCune and Raymond McCune on the ground that the brothers had conspired to defraud the taxpayer of the sum of $100,000. This action was discontinued by stipulation on December 27, 1939, no trial ever having been had. Mark McCune, who in 1929 had been very wealthy, lost all his money in the year 1930. Sometime between the year 1934 and 1936 he had approximately $100,000; in 1937 he had nothing and died in October or November, 1939, leaving no estate and no funds with which to pay burial expenses. He had lived on money furnished by his brother and sister for two or three years prior to his death. It is contended on behalf of the petitioner that her right to make the deduction in the year 1939 should be determined under section 23 (k) (1) of the Internal Revenue Code in force at the time the Board of Tax Appeals heard the case and that should it be held that section 124 of the Revenue Act of 1942 was applicable she still was entitled to make the deduction. The respondent contends that under neither of these Acts was the taxpayer entitled to make the deduction and that the Revenue Act of 1942 was passed before the decision of the court was made and amended section 23 (k) (1) so as to make it necessary for the taxpayer to prove that the debt became worthless within the year 1939. It is not necessary to quote authority to the effect that deductions allowed a taxpayer are privileges that can be withdrawn whenever Congress wishes to do so. A taxpayer has no vested right to a deduction not yet allowed, as was the case here. The Revenue Act of 1942, made applicable to the tax year 1939, amended section 23 (k) (1) and controlled the decision of the Tax Court when that decision was handed down. Retroactive provisions have been approved by the Supreme Court of the United States. Cooper v. United States, 280 U.S. 409, 50 S.Ct. 164, 74 L.Ed. 516; Milliken v. United States, 283 U.S. 15, 51 S.Ct. 324, 75 L.Ed. 809; Martz v. Commissioner, 9 Cir., 82 F.2d 110. But we do not think the decision of this question material to the issue here as we are of the opinion that the taxpayer was not entitled to the deduction in the year 1939 under section 23 (k) (1) of the Revenue Code in force at the time the deduction was claimed. In order to secure a deduction a taxpayer must show a statutory provision authorizing it. New Colonial Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; White v. United States, 305 U.S. 281, 59 S.Ct. 179, 83 L.Ed. 172. The taxpayer made the loan in the year 1930 and began endeavoring to collect it in the year 1931. She must have ascertained it to be worthless before the year 1939 when she claimed it as a deduction. Either the worthlessness of the debt was ascertained by her before the beginning of the year 1939 or was so apparent that she could not in good faith have closed her eyes to the fact. The burden was upon the taxpayer prior to the amendment of the Revenue Code to prove that the debt was ascertained by her to be worthless in the year 1939. She has not, we think, sustained that burden. Under the Internal Revenue Act of 1942, amending section 23 (k) (1), the burden was upon the taxpayer to prove that the debt became worthless within the year 1939. This she admitted she could not do. Under neither statute is the taxpayer entitled to the deduction claimed in the year 1939. The decision of the Tax Court is accordingly 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 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?

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

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

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

UNITED STATES of America, Appellee, v. Mills SKINNER, Appellant. No. 224, Docket 30821. United States Court of Appeals Second Circuit. Argued Nov. 21, 1966. Decided July 31, 1967. David M. Dorsen, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty., S.D. N.Y., for appellee. John A. Howson, New York City (Anthony F. Marra, New York City, on the brief), for appellant. Before WATERMAN, MOORE and HAYS, Circuit Judges. WATERMAN, Circuit Judge: Appellant Mills Skinner and his codefendant Haywood Williams were tried under an indictment filed in the United States District Court for the Southern District of New York charging violations of the federal narcotics laws, 21 U.S.C. §§ 173-174. The first count charged that from April 1, 1963 to the indictment date Skinner and Williams conspired to and did receive, conceal, sell and facilitate the transportation, concealment, and sale of approximately 17.70 grams of illegally imported heroin. The overt acts set forth as furthering this alleged conspiracy, and a substantive offense they were charged with in the second count, related to a transaction which occurred on April 26, 1963, involving the sale of approximately 17.70 grams of heroin hydrochloride handed to one John Coursey, an undercover agent of the Federal Bureau of Narcotics, by appellant. Williams was taken into custody on November 5, 1963; appellant on November 20, 1963. The indictment was filed June 1, 1964, the trial before Judge Metzner, sitting without jury, was held Nov. 24-Dec. 1, 1964, both defendants were found guilty on both counts, and both duly filed notices of appeal on Dec. 8, 1964. Williams timely perfected his appeal on February 5, 1965, it became No. 29486 on our court docket, and it was argued June 7, 1965. We affirmed the conviction of Williams on April 26, 1966, United States v. Williams, 384 F.2d 488, decision having been reserved until certain in banc cases were disposed of, see 384 F.2d 488 at 490, and footnote 3. Certiorari in Williams was denied Oct. 11, 1966, 385 U.S: 836, 87 S.Ct. 84, 17 L.Ed.2d 71. Appellant’s record on appeal was not filed in our court until November 10, 1966, though it was assigned a docket number, No. 30821, during the first week of the September 1966 Term. So, although both appellant and Williams were arrested and indicted prior to the decision of the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and were tried after that decision and before the decisions in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the appeal of Williams was heard between the Escobedo and Miranda decisions, and the present appeal was heard after Miranda and Johnson. The problems presented to us in Williams, supra, have therefore been greatly clarified when again presented to us in the present appeal. Appellant does not contest the sufficiency of the evidence supporting his conviction; his only ground for appeal is that his constitutional rights were violated because of the admission into evidence of post-arrest statements which he claims were not voluntary. Without any previous warning Williams had been arrested while seated in his automobile at 3 A.M. on November 5, 1963. Skinner was arrested at about 9 A.M. on November 20 on a street comer near his home at 145th St. ,in Manhattan, through a pre-arrangement worked out by Williams, who was on bail, the narcotic agents and appellant, that appellant would surrender himself at that time. At the time of his arrest he was warned that anything he said might be used against him. He did not ask for legal counsel and he was not told that he could have counsel if he wished. The agents questioned him as they drove the length of Manhattan downtown to the Bureau of Narcotics at 90 Church Street, and during the trip he admitted that he had made the delivery of narcotics for which he had been indicted. Skinner was processed at the Bureau and then was taken to the U. S. Court House where at about 12 noon he was interviewed by an assistant United States Attorney who fully informed Skinner of his rights, including his right to counsel. Yet, having been so informed, Skinner then, during a 17-minute interview, gave the rest of the incriminating statements he now claims were not voluntary. This procedure was like the procedure that was accorded to Williams two weeks previously, except that, of course, in Williams’s case he had been incarcerated in the Federal House of Detention from the early hours of the morning until he was taken to the Bureau for processing. There was no such custodial interference with appellant Skinner. The trial court considered all the factors involved in the situation when these statements were given, and concluded that Skinner had talked voluntarily. We accept this finding made by the district judge and agree that the appellant utterly failed to advance any credible evidence that his inculpatory remarks were coerced. It is true that the arresting agents did not inform Skinner of his right to counsel, but— under the interpretation placed upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, prior to Miranda v. State of Arizona, by the majority of our court in banc — he need not have been so informed, see United States v. Williams, supra, 384 F.2d at 490, United States v. Drummond, 354 F.2d 132, at 147 (1965), cert. denied, 384 U.S. 1103, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966). Certainly Skinner was not prejudiced by the omission, for he did not avail himself of the services of counsel when the suggestion was made to him in the subsequent interview with the assistant United States Attorney later that morning. Skinner claims he made his admissions because he was addicted to narcotíes and at the time of questioning was “sick” from lack of the drugs. This claim is refuted by the facts. Skinner voluntarily submitted to a daytime arrest and all the statements were made within about 3 hours of the arrest. Skinner’s only other claim of coercion was that he was visited by one of the arresting agents on the evening before the arrest and told that his bail would be set much higher if he failed to “cooperate” than if he did cooperate. The agent denied the meeting. The trial judge resolved this conflict in favor of the agent; and, indeed, in view of the fact that Skinner was not placed under arrest until the morning following this alleged visit and that on that occasion he voluntarily surrendered himself, it would strain one’s credulity to credit the appellant’s story. Affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.

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

Terry Lynn DUFF; Rose Ella Weese, mother and next friend of Dennis Wayne Weese, a minor; Rose Ella Weese, an individual; and Duane Henry Weese, Costello Means, father and next of kin of Merle C. Means, deceased; and Max McCall, guardian of the estate of Jimmy Shideler, a minor, Appellants, v. ALLIANCE MUTUAL CASUALTY COMPANY, a corporation, Appellee. No. 6723. United States Court of Appeals Tenth Circuit. Nov. 7, 1961. Howard K. Berry, Sr., Oklahoma City, Okl. (Collins, Moore & Sellers, Sapulpa, Old., Green & Feldman, Tulsa, Okl., Jack B. Sellers, Drumright, Okl., Charles A. Shadid, Oklahoma City, Okl., Wallace & Wallace, Sapulpa, Okl, Berry & Berry, Oklahoma City, Okl., were with him on the brief), for appellants. Dan A. Eogers, Tulsa, Okl. (Philip N. Landa, Tulsa, Okl., was with him on the brief), for appellee. Before MUEEAH, Chief Judge, and LEWIS and BEEITENSTEIN, Circuit Judges. LEWIS, Circuit Judge. This is an action brought by the Alliance Mutual Casualty Company under the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to determine that company’s rights and duties under a policy of automobile insurance issued to one Marvin O’Kelley as the name insured. The determinative question is whether Terry Lynn Duff, driver of the insured vehicle at the time of an accident giving rise to claims' of liability brought by the other appellants, was driving the insured car with the implied permission of the named insured, Marvin O’Kelléy. The trial court held that Duff’s use of the vehicle was without the permission of the named insured and that the company had no con■tractual obligation to defend the actions pending against Duff. This appeal chailenges such finding and our review is limited to a determination of whether the record indicates the finding to be clearly erroneous. Rule 52, F.R.Civ.P., 28 U.S.C.A. The subject policy designates as insureds under the contract: • (1) The named insured and any resident of the same household, (2) Any other person using such automobile, provided the actual use thereof is with the permission of the named insured The insured vehicle was a 1955 Pontiac and was one of two automobiles available for family use in the 0 Kelley household. On February 21, 1960, the Pontiac was driven to work by Pete 0 Kelley, ^ a son of the named insured, It is undisputed that Peie had authority to take the car as need required and that his use was permissive upon the particular occasion. While at work, Pete loaned the vehicle to Duff who, as indicated, was involved in an accident. The parties agree that Duff had the actual and unqualified permission of the son Pete to drive the car but did not have the actual permission of the named insured, Marvin O’Kelley. Appellants contend that the intimate relationship between the O’Kelley and Duff families, viewed in the light of the Oklahoma Safety Responsibility Act, 47 Okl.St.Ann. §§ 501-542, makes a finding of implied consent mandatory under the evidence and requires a reversal of the trial court’s judgment. For at least five or six years prior to the subject incident Duff and Pete O’Kelley had been intimate friends, neighbors and schoolmates. They had, to a great degree, enjoyed the free run of each other’s homes and had shared the many associations of teen-age boys. After obtaining their drivers’ licenses at age 16 they were each allowed use of their respective family cars and each boy had allowed the other to drive upon frequent occasions. The close friendship continued through the years as evidenced by the fact that Pete O’Kelley was best man at Duff’s wedding. On February 21, 1960, Duff was home from a college that he was attending at Stillwater, Oklahoma. On that afternoon he visited at work with Pete O’Kelley and told Pete that his ride back to Stillwater had disappointed him and asked to borrow ® -^edey car hunt up another ride- Pete twice loaned him the car for that purpose. During the second period that Duff was in possession of the car he was involved in the accident premising the controversy, The testimony of Marvin O’Kelley, owner of the car and named insured, forms the basis for the- trial court>s. finding. Mr. O’Kelley had never discussed with his son Pete the matter of allowing others to drive his car. He had no knowledge of any instance when Pete had loaned the car and did not know that Duff had been given possession of the car upon the day of the accident. He wag we¡¡ aware 0f the fact that his son and were close friends of several years’ standing, Such testimony is ample evi- ’ dence to support the judgment. The intimate friendship of the O’Kelley and Duff families does not, as a matter of law, carry with it the implied permission to borrow the family car absent knowledge ‘ of the existence of such a practice. And, since the particular purpose for which Duff borrowed the car and the actual use made of the car were not to serve any - purpose, benefit, -or advantage to either Mr. O’Kelley or his son, the case falls squarely within the rule set forth in Samuels et al. v. American Automobile Ins. Co., 10 Cir., 150 F.2d 221, 223, 160 A.L.R. 1191: “It has generally been held that where A, the owner of an automobile, gives general permission to B to use the automobile and B gives permission to C to use the automobile solely for C’s purpose, benefit, or advantage, and the automobile is involved in an accident while being so used by C, such use is not with the permission of the named insured.” We find no merit in appellants’ contention that the subsequent passage of the Oklahoma Safety Responsibility Act, 47 Okl.St.Ann. §§ 501-542, requires a re-examination of Samuels or a modification of the clear limitation placed upon coverage in the wording of the policy of insurance. The act does of course reflect a public policy to afford financial protection to injured parties by requiring insurance in certain instances from the operators of motor vehicles. But the act does not provide for compulsory insurance from all drivers and the subject policy was not purchased or issued with the compulsion of the act. The policy was voluntarily carried by Mr. O’Kelley. In such case the Oklahoma Supreme Court considering a case of non-coverage, has held, U. S. Fidelity & Guaranty v. Walker (Okl.1958), 329 P.2d 852, 853: “A policy of automobile liability insurance, voluntarily carried by an operator who has never been required to furnish proof of financial responsibility under provisions of the safety responsibility act, and not certified as such proof, is not ‘required by said law’ and the insurer is not precluded from relying on policy defenses because of the provisions of 47 O.S. 1951, § 521.” The judgment is affirmed. . On one specific occasion about three years prior Mr. O’Kelley had specifically .allowed Duff to borrow a pick-up truck. This was the only instance that the witness could recall of such an incident. . The Act provides, 47 Okl.St.Ann. § 521: “Requisites of motor vehicle liability policy “(a) A ‘motor vehicle liability policy’ as said term is used in this Act shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in Section 19 or Section 20 as proof of financial responsibility, and issued, except as otherwise provided in Section 20, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured. “(b) Such owner’s policy of liability insurance: I. shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and II. shall insure the person named therein and any other person, as insured, using any such motor vehicle or mother vehicles with the express or implied permission of such named insured, against loss from liability imposed by law for damages arising out of the ownership, maintenance * * Compare the broader provisions of North Carolina which require the policy to: “Insure as insured the person named, and any person using or responsible for the use of the motor vehicle with the permission, express or implied, of the named insured, or any other person in laioful possession." (Emphasis added.)

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.

ORDER OF RAILWAY CONDUCTORS OF AMERICA et al. v. SWAN et al. NO. 63. Argued December 10,11,1946. Decided January 13, 1947. V. C. Shuttleworth argued the cause for petitioners. With him on the brief were H. E. Wilmarth, Everett L. Gordon and Leo J. Hassenauer. Douglas F. Smith argued the cause for Carrier Members of the First and Fourth Divisions et al., respondents. With him on the brief were Kenneth F. Burgess, R. /. Flagman, Bryce L. Hamilton, Burton Mason and John A. Sheean. Anan Raymond argued the cause for the Railroad Yardmasters of America, respondents. With him on the brief was Conrad H. Poppenhusen. Mr. Justice Murphy delivered the opinion of the Court. Our attention here is directed to a determination of which division of the National Railroad Adjustment Board has jurisdiction over disputes involving railroad yardmasters. The four divisions of the Board and their respective jurisdictions are established by § 3, First (h), of the Railway Labor Act, as amended in 1934. Each division of the Board is composed of an equal number of representatives of carriers and of national labor organizations. The statute authorizes the carriers and the national labor organizations to select their respective representatives and to designate the division on which each such representative shall serve. § 3, First (b) and (c). The jurisdiction of the divisions relates to disputes growing out of “grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions ...” § 3, First (i). Disputes involving employees in certain specifically designated crafts are assigned to each division; the Fourth Division also has a “catch-all” jurisdiction over all disputes not assigned to one of the other three divisions. Appropriate provisions are made for hearings and for the entry of an award, to be followed by an order directed to the carrier if the award be in favor of the petitioner. In the event that the carrier fails to comply with the order, the petitioner or any person for whose benefit the order was made may seek enforcement of the order in a federal district court. §3, First (p). In such suits, “the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated ...” And the court is given power to take such action as may be appropriate to enforce or set aside the order. See Switchmen’s Union v. National Mediation Board, 320 U. S. 297, 305. Two of the national labor organizations are the Order of Railway Conductors and the Brotherhood of Railroad Trainmen, petitioners herein. Their membership includes a small portion of the total number of railroad yardmasters in the country, approximately 20% of the total on the basis of the railroad mileage represented. Each of these organizations has one representative on the First Division and each contends that all yardmaster disputes must be heard solely by that division. But that contention is contradicted by the Railroad Yardmasters of America, a national labor organization composed almost entirely of yardmasters and claiming to represent more than 70% of all the yardmasters in the country. That organization, which is an intervenor-respondent herein, has failed to place a representative on any of the four divisions. Along with certain other organizations representing the small balance of yardmasters, it claims that yardmaster disputes lie within the exclusive jurisdiction of the Fourth Division. Various carriers with representatives on both the First and the Fourth Divisions join in that claim. The result of this controversy is a stalemate so far as yardmaster disputes are concerned. The carrier and the labor members of the First Division are split evenly, the carrier members claiming that the division has no jurisdiction over these matters. The members of the Fourth Division are also evenly divided on the jurisdictional question, the labor members béing of the view that yardmaster disputes are outside that division’s jurisdiction. And since all the parties concede that neither the Second nor the Third Division has jurisdiction, no settlement of these disputes is possible under the present situation. The Order of Railway Conductors and the Brotherhood of Railroad Trainmen brought this action under 28 U. S. C. § 400 (1) to obtain a declaratory judgment to the effect that the First Division has sole jurisdiction over yardmaster disputes. Members of the First and Fourth Divisions were made parties defendant; and the Railroad Yardmasters of America, the Great Northern Railway Company and the Southern Pacific Company were allowed to intervene. The District Court, after a hearing, held that yardmaster disputes fall within the “catch-all” jurisdiction of the Fourth Division. The Circuit Court of Appeals agreed. 152 F. 2d 325. We granted certiorari because the issue raised is one of importance in the orderly administration of the Railway Labor Act. 327 U. S. 776. At the outstart it is important to note that judicial review of this matter is not precluded by the principles set forth in Switchmen’s Union v. National Mediation Board, supra, and companion cases, General Committee v. M.-K.-T. R. Co., 320 U. S. 323, and General Committee v. Southern Pacific Co., 320 U. S. 338. We are dealing here with something quite different from an administrative determination which Congress has made final and beyond the realm of judicial scrutiny. We are dealing with a jurisdictional frustration on an administrative level, making impossible the issuance of administrative orders which Congress explicitly has opened to review by the courts. Until that basic jurisdictional controversy is settled, the procedure contemplated by § 3 of the Railway Labor Act remains a dead letter so far as yardmasters are concerned and the statutory rights of such persons become atrophied. A declaratory judgment action is therefore appropriate to remove such an administrative stagnation. In other instances, we have left the problem of jurisdiction to be determined in the first instance by the administrative agency. Myers v. Bethlehem Corp., 303 U. S. 41. But here both the First and the Fourth Divisions of the Board, due to the evenly-matched membership of railroad and labor representatives, appear hopelessly divided on the jurisdictional issue, making a determination impossible. Judicial guidance at this stage is justified as long as such a condition exists. The issue is primarily one of statutory interpretation. The First Division is given jurisdiction over disputes “involving train- and yard-service employees of carriers; that is, engineers, firemen, hostlers, and outside hostler helpers, conductors, trainmen, and yard-service employees.” The Fourth Division’s jurisdiction extends to disputes “involving employees of carriers directly or indirectly engaged in transportation of passengers or property by water, and all other employees of carriers over which jurisdiction is not given to the first, second, and third divisions.” It is agreed that the only possible category under the First Division into which yardmasters might be placed is “yard-service employees.” But if they cannot be so placed, they must necessarily fall into the “catch-all” jurisdiction of the Fourth Division. The problem thus is to determine what Congress meant when it used the term “yard-service employees.” There is no statutory definition of “yard-service employees.” Nor is the term explained in any of the relevant legislative debates or reports; and it derives no meaning from the statutory policy or framework. Moreover, it is not in common or general usage outside of the railroad world. It is a technical term found only in railroad parlance. Evidence as to the meaning attached to it by those who are familiar with such parlance therefore becomes relevant in determining the meaning of the term as used by Congress. See O’Hara v. Luckenbach S. S. Co., 269 U. S. 364, 370-371. The parties, all of whom are well acquainted with railroad terminology, stipulated certain facts. It was agreed that a railroad yard is a system of tracks within defined limits over which movements of engines and cars not authorized by timetable or train order may be made, subject to prescribed signals and rules or special instructions. It was further agreed that the “yard-service employees” or “yardmen” working in a yard perform such functions as switching, making and breaking up trains, moving and storing cars, inspecting cars and freight, repairing cars, maintaining equipment, sending and receiving messages, keeping records and making reports. As to yardmasters, the stipulation stated: “All such yardmen and other employees performing work in a yard are directed and supervised in their work by a yardmaster, with the aid, if necessary, of one or more assistant yardmasters. Yardmasters do not and may not perform the work of yardmen and employees in train and engine service; they may perform some clerical work, if their entire time is not taken up with the direction and supervision of yardmen and other employees working in yards. ... In general, yardmasters run the yards, of which they are in charge, and they are responsible for conditions within the same. Necessarily, they exercise a substantial measure of individual initiative and responsibility.” All of the witnesses who testified at the hearing agreed that yardmasters are functionally different from other employees working in yards due to their supervisory activities and responsibilities. The evidence also indicated that yardmasters have supervision over some who work within the yards but who are not spoken of as “yard-service employees,” such as storekeepers, section men and clerks. On the crucial point, there was substantial agreement among the witnesses that yardmasters are not commonly designated in railroad parlance as “yard-service employees,” that term being reserved for the yardmen described in the stipulation who work under the supervision of the yardmasters. The documentary evidence submitted by the parties tends to bear out this testimony. Thus numerous past awards made by the First and Fourth Divisions speak of yardmasters as distinct from yardmen or yard-service employees. And the Interstate Commerce Commission, in making various classifications of railroad employees, recognizes a clear distinction between yardmasters and those over whom they have supervision. In addition, other documents introduced into the record and sources to which the parties have made reference either show the same distinction or are inconclusive on the matter. The District Court was therefore justified in finding as a fact that railroad usage has never included yardmasters and assistant yardmasters within the meaning of the terms “yard-service employees” or “yardmen.” That court was also correct in concluding that the history of the adjustment of disputes prior to the amendment of the present statute in 1934 affords no assistance in resolving the problem confronting us. As pointed out more fully by the Circuit Court of Appeals, 152 F. 2d at 327-328, disputes involving yardmasters and disputes involving yard-service employees were previously submitted to various adjustment boards, which had been created by agreement, primarily on the basis of membership in signatory labor organizations. Jurisdiction was not then grounded, as it is now, on a craft or job classification irrespective of the labor organization representing the particular employees involved. Hence there was no occasion giving rise to a consistent and unequivocal administrative interpretation of the term “yard-service employees” to include yardmasters — an interpretation which, had it existed, might have shed some light on the adoption of the term by Congress in 1934. Petitioners also urge that the jurisdiction of the First Division over yardmaster disputes is established by the settled administrative action of that division since its creation in 1934. There is a serious question whether the jurisdictional issue now before us was fully considered by the division in many of the cases to which reference is made; certainly none of the awards did more than recite perfunctorily that the division had jurisdiction over the particular dispute. And none of the awards involved the Railroad Yardmasters of America, which has consistently objected to the assumption of jurisdiction by the First Division. But aside from those factors, the present and prolonged administrative deadlock on the jurisdictional issue destroys whatever persuasive effect these prior adjudications by the First Division may have had. The administrative action has become anything but settled. Finally, petitioners point out that Congress has failed to amend § 3, First (h), so as specifically to exclude “yardmasters and other subordinate officers” from the jurisdiction of the First Division, despite the introduction of two bills to that effect in the Senate in 1940 and 1941. These bills were sent to an appropriate committee, but were never reported out. It does not appear whether the bills died because they were thought to be unnecessary or undesirable. No hearings were held; no committee reports were made. Under such circumstances, the failure of Congress to amend the statute is without meaning for purposes of statutory interpretation. We accordingly agree with the two courts below that yardmasters are not “yard-service employees” within the jurisdiction of the First Division of the National Railroad Adjustment Board. Yardmaster disputes fall exclusively within the “catch-all” jurisdiction of the Fourth Division. Affirmed. Mr. Justice Frankfurter. After the fullest consideration this Court recently held in two cases that jurisdictional disputes between railroad unions subject to the Railway Labor Act are not within judicial competence. Switchmen’s Union v. Board, 320 U. S. 297; General Committee v. M.-K.-T. R. Co., 320 U. S. 323. The decision in those cases derived from the fact that Congress “had not expressly authorized judicial review” and the history, the setting, and the implications of railway labor controversies counseled against inferring judicial review. Here we have a controversy between two divisions of the National Railroad Adjustment Board as to the disputes over which they respectively have jurisdiction. This controversy, however, entails consideration of technical problems in the railroad world and consequences in construing the distribution of authority among the divisions of the Adjustment Board for which judicial review seems no more appropriate than it did to settle jurisdictional conflicts between railroad brotherhoods. Not finding any command in the statute for judicial review of this controversy, it seems to me, therefore, appropriate to leave it to the mediatory resources of the Railway Labor Act. If it be said that thus far deadlock has resulted, it does not follow that it will continue, if the Court keeps hands off. In any event, because mediatory machinery may not be effective is not a sufficient reason for judicial intervention, unless the direction of Congress is much more clear than I find it in the Railway Labor Act. This view is reinforced by the fact that the decision of the Court may be no more than an advisory opinion. My doubts have not commended themselves to the Court, but since I am not alone in entertaining them it seemed to me that they should be expressed. 48 Stat. 1185, 1190-1191; 45 U. S. C. § 153, First (h). A decree was entered in the District Court in 1938 commanding the Fourth Division to hear and determine certain disputes involving yardmasters. That case arose on a petition for mandamus filed by the Railroad Yardmasters of America against the members of the Fourth Division. After issuance of summons, the members of the Fourth Division appeared and filed an answer stating that they were of the opinion that the Fourth Division did have jurisdiction. The decree was then entered with the consent of the parties to the action, but without argument and without the District Court being aware that a public question was involved and that other parties had an interest in the matter. The District Court and the Circuit Court of Appeals in the instant case held that this 1938 decree was not res judicata of the issue now presented in view of the circumstances under which it was entered. Petitioners’ sole witness testified: “Yardmen are usually men who have to do with the making up and breaking up of trains, switching in the yard, and supervising the work of the yardmen, which would include, in my opinion, yardmasters and assistant yardmasters.” But his opinion as to yardmasters in this respect was based upon his understanding of the law, not upon his own use or his knowledge of the use of the term “yard-service employees.” He explained his belief that “every tribunal that has decided a dispute for men engaged in yard service, such as yard engineers, firemen, hostlers, hostler helpers, road conductors, trainmen and yardmen, have also decided cases for yardmasters and assistant yardmasters. Division 1, set up under, by agreement, in 1918, the very first board in existence, did that. The Western Train Service Board, upon which I served, did that, as evidenced by Board decisions submitted here as an exhibit.” This witness also stated that yardmasters “fit more nearly in with the yard service employees than with any other class” — a recognition that yardmasters are different in fact from yard-service employees and that they do not fit precisely within that category. See National Railroad Adjustment Board, First Division, Award No. 1274 (July 13, 1936), Award No. 1464 (Oct. 7, 1936), Award No. 1603 (Dec. 14, 1936), Award No. 1648 (Jan. 21, 1937), Award No. 1728 (Feb. 11, 1937), Award No. 1896 (April 15, 1937), Award No. 2065 (July 16, 1937), Award No. 2364 (Nov. 12, 1937), Award No. 4466 (Jan. 15, 1940), Award No. 4548 (Feb. 8, 1940), Award No. 4584 (Feb. 20, 1940), Award No. 5816 (June 24, 1941), Award No. 7355 (Oct. 15, 1942); Fourth Division, Award No. 67 (July 25, 1940). See Ex parte No. 72 (Nov. 24, 1920, unreported); Ex parte No. 106, Six-Hour Day Investigation, 190 I. C. C. 750. The forms and classification plan to be used in reporting wage and compensation data of steam railroad employees to the United States Railroad Labor Board and the Interstate Commerce Commission place yardmasters under “Supervisory Skilled Trades and Labor Service,” while those performing yard-service work are placed under “Train and Engine Service.” Thus the method used by the National Railroad Adjustment Board in indexing awards of the First Division does not provide any helpful guide as to the usage of “yard-service employees” in the railroad world. See cases cited in footnote 4, supra. See footnote 2, supra. S. 4375, 76th Cong., 3d Sess.; S. 1660, 77th Cong., 1st Sess. Both bills were introduced by Senator Smith at the request of the American Short Line Railroad Association.

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?

Edward M. JOYCE, Plaintiff, Appellant, v. William FERRAZZI et al., Defendants, Appellees. No. 6170. United States Court of Appeals First Circuit. Oct. 30, 1963. Edward M. Joyce, Quincy, Mass., pro se. William A. Cotter, Jr., Boston, Mass., with whom Philander S. Ratzkoff and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for William M. MacPhee, appellee. Stephen T. Keefe, Jr., Asst. City Sol., for William Ferrazzi and another, appel-lees. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. The plaintiff, invoking the jurisdiction conferred by Title 28 U.S.C. § 1343, filed a complaint, subsequently amended, in the court below in two counts charging a mayor, a chief of police, a sergeant of police, a doctor in private practice and the superintendent of a Massachusetts institution for the care of the mentally ill with depriving him of rights, privileges and immunities secured by the Constitution and laws of the United States in violation of 42 U.S.C. § 1983, and with conspiracy to deprive him of the equal protection of the laws in violation of 42 U.S.C. § 1985(3). The court below, after hearing on cross-motions under Rule 56 Fed.R.Civ.P. supported by affidavits, entered a judgment granting the defendants’ motions and dismissing the plaintiff’s complaint with costs. The plaintiff appealed. Class or racial discrimination is not here involved. Stripped of irrelevancies, conclusory allegations and opprobrious epithets the plaintiff’s complaint and his affidavit in support of his motion for summary judgment boil down to the charge that the defendants acting in concert falsely arrested the plaintiff in his home and wrongfully committed him under Massachusetts General Laws, Chapter 123 § 79 for ten days to the state institution for the mentally ill of which one of the defendants was the superintendent. These basic facts emerge from the record: The defendant sergeant of police, with other subordinate officers, acting on orders of a police lieutenant based on independent telephone complaints made by the plaintiff’s wife and by a neighbor of a disturbance in the plaintiff’s home, went to the plaintiff’s house, were admitted by the plaintiff’s wife and found the plaintiff on the floor struggling with his 17-year-old son. These not being the first complaints of similar disturbances in the plaintiff’s home, and the officers, being of the opinion from their observation of the plaintiff that he was not behaving rationally, carried the plaintiff- — ■ he refused to walk — to a police vehicle and took him to the police station where, after he was searched and his outer clothing removed, he was put in a cell. The plaintiff’s wife followed the police to the station and asked the officer in charge to call the defendant doctor, who had treated various members of the plaintiff’s family for years. The doctor promptly responded by coming to the police station where he spoke to the defendant and then committed him under the Massachusetts statute mentioned above to the institution of which one of the defendants was superintendent. The plaintiff was kept in the institution for nine or ten days and then released. Section 1985(3), supra, by its terms, does not give a cause of action for conspiracy to deny federally guaranteed rights generally, including the right to due process of law. See Dunn v. Gazzola, 216 F.2d 709, 711 (C.A. 1, 1954). It clearly “ * * * does not attempt to reach a conspiracy to deprive one of rights, unless it is a deprivation of equality, of ‘equal protection of the law,’ or of ‘equal privileges and immunities under the law.’ ” Collins v. Hardyman, 341 U.S. 651, 661, 71 S.Ct. 937, 941, 95 L.Ed. 1253 (1951). That is to say, to recover under the section a plaintiff must show invidious discrimination. “But a discriminatory purpose is not presumed, Tarrance v. Florida, 188 U.S. 519, 520, [23 S.Ct. 402, 47 L.Ed. 572]; there must be a showing of ‘clear and intentional discrimination,’ Gundling v. Chicago, 177 U.S. 183, 186 [20 S.Ct. 633, 44 L.Ed. 725]..” Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944). In this the plaintiff has utterly failed. Not only has he made no adequate allegation in his complaint or showing in his affidavit in support of his motion for summary judgment of a conspiracy by the defendants, but he has also wholly failed to show that he was treated any differently than anyone else would have been treated under the same circumstances. Section 1983, supra, gives a broader right of action than § 1985(3) albeit against a restricted class. It provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Since it indisputably appears from the record that the defendant doctor acted as a private practitioner in committing the plaintiff to the mental institution under the Massachusetts statute, the constitutional validity of which is not challenged, it follows that his action was that of a private citizen. Spampinato v. M. Breger & Co., 270 F.2d 46, 49 (C.A. 2, 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1960), rehearing denied, 361 U.S. 973, 80 S.Ct. 597, 4 L.Ed.2d 553 (1960). He is not a member of the class exposed to liability under § 1983. The defendant superintendent is not charged with brutality. For all that appears he acted in good faith on the committal signed by the defendant doctor which was in all respects fair and regular on its face. All that he did was strictly in line with his official duty. To hold him liable in damages under § 1983 would be as much a “preposterous result” as this court in Francis v. Lyman, 1 Cir., 216 F.2d 583, 588 (1954), thought it would be to hold the superintendents of penal institutions acting on apparently valid warrants of commitment. The defendant mayor, for all that the plaintiff has made to appear in other than wholly conelusory allegations, had nothing whatever to do with the events of which the plaintiff complains.. The defendant police officers were certainly acting “under color” of law when they took the plaintiff into custody. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 et seq. (1945). But, disregarding conelusory allegations of the pleader, the plaintiff, and accepting as true the uncontradicted assertions of fact in the defendants’ affidavits, the plaintiff has failed to make out a case of deprivation of any federally secured right, privilege or immunity. For all that appears the police responded to a call for help from the plaintiff’s wife and when she admitted them to the plaintiff’s house, observing the plaintiff’s conduct to be irrational, even violent, took him into custody using no more force than circumstances warranted. It does not appear that the police made any mistake. But if they did, not every police error of law or fact arises to the dignity of a deprivation of a federally secured right, privilege or immunity. Agnew v. City of Compton, 239 F.2d 226, 230, 231 (C.A. 9, 1957), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957). Judgment will be entered affirming the judgment of the District Court.

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

UNITED STATES of America, Plaintiff-Appellant, v. Jose De Jesus Flores MARTINEZ, Defendant-Appellee. No. 91-30096. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1992. Decided Aug. 17, 1992. As Amended Sept. 17, 1992. Nina Goodman, Asst. U.S. Atty., U.S., Dept, of Justice, Washington, D.C., for plaintiff-appellant. Bryan E. Lessley, Asst. Federal Public Defender, Eugene, Or., for defendant-ap-pellee. Before: BROWNING, D.W. NELSON and CANBY, Circuit Judges. CANBY, Circuit Judge. This is an interlocutory appeal by the United States of an order suppressing a statement that defendant Jose Flores Martinez made to federal investigators. The central issue is whether Martinez’s request for counsel in his state proceedings prohibited a subsequent interrogation by federal officials outside the presence of counsel after the state charges were dismissed. We conclude that the resolution of this question depends on the degree of cooperation between federal and state authorities, which is not clear from the record before us. We therefore remand. FACTUAL BACKGROUND Martinez was arrested in March 1990 and was subsequently charged in the Circuit Court for Wasco County, Oregon with possession of a firearm by a convicted felon, theft of a firearm, and possession of a controlled substance. At his arraignment, he requested an attorney and completed a form entitled “Affidavit of Indigence and Order for Appointment of Counsel.” The state charges were dismissed, however, so no attorney was appointed. Martinez nonetheless remained in state custody, because his pre-existing parole had been revoked as a result of his arrest. On September 4, 1990, two days before Martinez’s custodial time on the parole violation was scheduled to elapse, a federal criminal complaint was filed alleging possession of a firearm by Martinez, a convicted felon. On September 6, state authorities released him into federal custody. The federal agents advised Martinez of his Miranda rights, which he waived, and then questioned him about the gun at issue. During that interrogation, Martinez admitted that he had knowingly purchased the handgun, and he executed an affidavit to that effect. On the same day, Martinez made his first appearance in federal court and counsel was appointed. After he was indicted, Martinez moved to suppress his statement to the federal agents, arguing that their initiation of interrogation after his request for counsel on the state charges violated his rights under the Fifth and Sixth Amendments. No evidence was introduced about the relationship between the state and federal investigations. The district court granted Martinez’s motion, and the United States now appeals. DISCUSSION The issue in this case is relatively straightforward: Did Martinez’s request for counsel at his arraignment on state charges preclude the federal officers from questioning him outside the presence of counsel on federal charges arising from the same incident, when the state charges had been dismissed? Martinez suggests two possible bases for an answer in the affirmative: the Miranda rights under the Fifth Amendment and the Sixth Amendment right to counsel. I. The Fifth Amendment Martinez argues that his request for an attorney at the state arraignment, which clearly triggered his Sixth Amendment right to counsel for the state charges, also invoked his Fifth Amendment right to an attorney under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), thereby preventing the federal agents (as well as the state officials) from questioning him about any offense outside the presence of counsel. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (if suspect invokes Miranda right to counsel, police cannot reapproach regarding different offense unless counsel is made available). The district court ruled in favor of Martinez on the Miranda ground. In doing so, however, the district court did not have the benefit of the later decision of the Supreme Court in McNeil v. Wisconsin, — U.S.-, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). In that case, McNeil requested an attorney at a bail hearing on an armed robbery charge (arising out of an incident in West Allis, Wisconsin), thereby triggering his Sixth Amendment right to counsel. Police subsequently interrogated him (after properly advising him of his Miranda rights) about a murder in Caledonia, Wisconsin, and he made several incriminating statements about the Caledonia crime. McNeil contended that his request for counsel at the bail hearing invoked both his Sixth and Fifth Amendment rights to counsel, and that the court accordingly should have suppressed the evidence arising out of the interrogations on the Caledonia murder. The Supreme Court rejected that argument, holding that McNeil’s invocation of his Sixth Amendment right to counsel did not also invoke his Fifth Amendment right to counsel. In so ruling, the court stated that application of Miranda and Edwards “requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.” McNeil, 111 S.Ct. at 2209 (emphasis in original). Martinez gives us no reason to distinguish his invocation of his Sixth Amendment right at his arraignment from McNeil’s similar invocation at his bail hearing, and there appears to be none. In both cases, the suspect requested assistance of counsel in defending himself at trial, and in neither case did the suspect express his “desire for the assistance of an attorney in dealing with custodial interrogation by the police.” We conclude, therefore, that McNeil applies to Martinez’s Fifth Amendment argument and compels us to reject Martinez’s assertion that the federal authorities’ interrogation violated his right to counsel under the Fifth Amendment. It was accordingly error for the district court to suppress Martinez’s statement on Miranda grounds. II. The Sixth Amendment In Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986), the Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The Court in Jackson had no occasion to consider the question of an interrogation for another crime, but the Supreme Court discussed the issue in Maine v. Moulton, 474 U.S. 159, 179-80, 106 S.Ct. 477, 488-89, 88 L.Ed.2d 481 (1985), and ruled on it in McNeil. In the latter case, as we noted above, McNeil had requested (and received) assistance of counsel with respect to the West Allis charge but was later interrogated about the Caledonia murder outside the presence of counsel. The Supreme Court found that the statements McNeil gave in the interrogations did not fall under the Jackson rule, because they concerned separate offenses. The Court stated that both the Sixth Amendment right and “its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews [are] offense-specific.” 111 S.Ct. at 2207; see also Moulton, 474 U.S. at 179-80 & nn. 15, 16, 106 S.Ct. at 488-89 & nn. 15, 16 (noting admissibility of post-arraignment statements if involving other crimes). The dispositive issue regarding the Sixth Amendment claim in the instant case, as both the United States and Martinez agree, is whether, in light of McNeil and Moul-ton, Jackson applies to the federal authorities’ interrogation of Martinez. Resolution of this question depends upon the significance of two factors: (1) that the state and federal charges arose from identical conduct, and (2) that the state charges had been dismissed at the time of the federal interrogation. With regard to the first factor, the Supreme Court offers no definitive signals. All of the relevant Supreme Court cases either involved interrogations regarding the charged offense (e.g., Jackson and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)) or interrogations concerning separate offenses arising from separate acts (e.g., McNeil and Moulton). None involved separate prosecutions for the same set of acts, which is what we have here. There is language in McNeil that can be read as supporting either the United States’s or Martinez’s position. It is true, as the United States notes, that McNeil states that Jackson’s effect is “offense-specific,” McNeil, 111 S.Ct. at 2207, and that this phrase could reasonably be interpreted as limiting Martinez’s Sixth Amendment protection to the state firearms offense. It is also true, however, that McNeil relied on Moulton, which in turn focused on the existence of “ ‘new or additional crimes.’ ” McNeil, 111 S.Ct. at 2207 (quoting Moulton, 474 U.S. at 179, 106 S.Ct. at 489). This language could reasonably be read as suggesting that Jackson does apply to Martinez, because the federal questioning concerned no new or additional crime of Martinez. This court has recently opined that “[a]n exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Certainly the state charges against Martinez and the federal charge were “inextricably intertwined,” for they involved the same conduct. Hines, then, supports Martinez’s view that the state and federal charges are so similar that they should be treated as the “same” for Sixth Amendment purposes. In Hines, however, we were dealing with interrogation concerning a second crime when charges for the first crime were still pending. Here, the state charge had been dismissed. Although Martinez was still in state custody because his parole had been revoked, there was no pending state charge for which he needed the assistance of counsel. That distinction brings us to a consideration of the second factor — the gap between the pendency of state charges and the interrogation on the federal charges. In urging that dismissal of the state charges totally ended Martinez’s Sixth Amendment right of counsel, the United States focuses on the Supreme Court’s statement that the Sixth Amendment right to counsel “arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him.” Roberson, 486 U.S. at 685,108 S.Ct. at 2100. The government argues that neither the state nor the federal prosecution satisfied the Roberson requirements to trigger Martinez’s Sixth Amendment rights at the time of the federal agents’ interrogation. The government relies on the fact that the state had dismissed its charges against Martinez months before he was interrogated by federal agents. With respect to Martinez’s arrest on the federal charge, the government notes that the Sixth Amendment right “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” McNeil, 111 S.Ct. at 2207 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (internal quotation omitted)); see also United States v. Pace, 833 F.2d 1307, 1312 (9th Cir.1987) (“We hold that Pace’s sixth amendment right to counsel did not attach upon the filing of the complaint by the FBI, the issuance of the warrant of arrest, or Pace’s arrest.”), cert. denied, 486 U.S. 1011, 108 S.Ct. 1742, 100 L.Ed.2d 205 (1988). Thus, the government asserts, neither the dismissed state charges nor the arrest by federal authorities was sufficient to trigger Sixth Amendment protections. Simply stated, the government argues that, because there were no pending charges against Martinez, he was not “facing a state apparatus that ha[d] been geared up to prosecute him,” Roberson, 486 U.S. at 685, 108 S.Ct. at 2100, and, therefore, he had no Sixth Amendment right to counsel. Martinez presents two arguments for a considerably broader construction of the Sixth Amendment’s protections. First, he contends that, despite the dismissal of the state charges, we should still focus on the conduct that the officers were investigating, not the specific charges that were brought. His position amounts to an argument that the doctrine of “inextricable intertwine[ment],” Hines, at 257, should be extended indefinitely in time. He argues that, once a defendant has been charged, he may not thereafter be interrogated about the subject matter of those charges unless his counsel is present. We are reluctant, however, to extend that doctrine indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime if, unbeknownst to the federal agents, the suspect had been charged for the same substantive act at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton and McNeil, which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations. Martinez’s second argument is that, even if there is no blanket prohibition on interrogations on the subject matter of previous charges, in this case the state and federal authorities cooperated so closely that Martinez was, in effect, subject to prosecution of a single offense by different sovereigns. Martinez suggests that the government’s position — that the state prosecution was dismissed and the federal not yet begun — ignores reality and does not comport with the policies underlying the Sixth Amendment right to counsel. Essentially, he argues that the federal authorities took over where the state left off, creating a seamless web of both incarceration and prosecution. Hines offers stronger support for Martinez’s second argument insofar as it focuses on collusion. In Hines, the state had originally charged Hines with an offense committed in December 1988. While that charge was pending, federal authorities interrogated him, outside the presence of his counsel, concerning an offense committed in January 1989. The state then dismissed its charge. The federal government thereafter indicted Hines for both the December and January offenses. He moved to suppress the statements made to federal authorities regarding the January offense. We held that the two offenses were distinct and therefore not “inextricably intertwined.” Hines, at 258. We also pointed out, however, that even without the necessary intertwining, Hines would be entitled to suppress his statements if “the government breached its ‘affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.’ ” Id. (quoting Moulton, 474 U.S. at 171, 106 S.Ct. at 484). We found no such breach by the government because “there [was] no evidence that the state’s dismissal of the January charges and the federal government’s subsequent joinder of the same charges were the result of collusion between the authorities.” Id. Hines therefore suggests that collusion by the prosecutorial authorities to circumvent the right to counsel may cause Sixth Amendment protection to bridge the gap between separate and non-intertwined offenses. If Martinez is correct in asserting that the federal and state authorities worked together in shuffling his charge from the state to the federal system, then the situation is analogous to that in Jackson and Martinez’s statements should be suppressed. When there is improper collusion, there is no danger that the second sovereign will unwittingly violate the Sixth Amendment by interrogating a suspect in ignorance that he or she was charged by another sovereign at some time in the past. There are, moreover, sound reasons for permitting suppression in cases of collusion, as Hines suggests. If the dismissal of state charges or the initiation of federal interrogation was a mutual endeavor in anticipation of a federal prosecution, then, as a practical matter, Martinez’s Sixth Amendment right not to be interviewed without his counsel was circumvented. He was prosecuted on a charge identical to that of the state, using a statement that the state could not have secured from him if it had proceeded with its prosecution. The key, of course, is the extent of coordination between the state and federal authorities. We have no record on that point. Because the district court granted the suppression motion without receiving any evidence concerning the level of the relevant state-federal cooperation, we cannot decide whether Martinez was entitled to an order suppressing his statement. We therefore vacate the district court’s order and remand for further fact-finding. In the absence of such a record, we do not rule on the precise acts of cooperative conduct that might amount to collusion to circumvent Martinez’s Sixth Amendment rights. Areas appropriate for factual inquiry include the degree of federal participation, if any, in the state’s decision to dismiss its charges; the degree of state participation, if any, in the decision of federal officers to interrogate and charge Martinez; and the degree of joint decisionmaking over the forum in which Martinez should be prosecuted. This list is not exhaustive; other areas of inquiry may well suggest themselves to the experienced district judge. The order of the district court granting the motion to suppress is vacated, and the cause is remanded to the district court for further appropriate proceedings. VACATED AND REMANDED. . Whether law enforcement officers may initiate interrogation of a suspect who previously requested counsel is a question of law that we review de novo. See United States v. DeSantis, 870 F.2d 536, 538 (9th Cir.1989). . Thus, implementation of this rule would mean that a federal agent could not question a suspect without first determining that no state had charged the suspect with a crime arising out of the same act(s).

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?

McCARTY v. HOLLIS. No. 2233. Circuit Court of Appeals, Tentli Circuit. May 31, 1941. Cornelius Hardy, of Tishomingo, Okl., for appellant. Wayne E. Wheeling, of Oklahoma City, Okl., for appellee. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. BRATTON, Circuit Judge. Tom McCarty sued Pauline Hollis in the United States Court for Eastern Oklahoma. The complaint disclosed these facts. Plaintiff is a full-blood, restricted Chickasaw Indian, duly enrolled as such, the parties are citizens of Oklahoma, and the amount in controversy exceeds $3,000, exclusive of interest and costs. Pauline Hollis filed two suits against Tom McCarty in the district court of Pontotoc County, Oklahoma, and one in the district court of Oklahoma County. She alleged in each suit that the parties were common law husband and wife, that the husband owned large wealth, consisting of real estate and personal property, and that he had wrongfully abandoned her; and she sought either a divorce and division of property, or separate maintenance and division of property. An order was entered in each suit for temporary maintenance and attorney’s fees. The two suits in Pontotoc County had been dismissed, but the one in Oklahoma County was still pending. The bill then alleged that the parties were never married, were not husband and wife, and had never lived together as such; and that an actual controversy existed between them in respect to whether they were husband and wife, and in respect to whether the defendant was entitled to maintenance or alimony, attorney’s fees, and court costs, out of the restricted lands and money of plaintiff. The prayer was for a declaratory judgment adjudicating that the parties were not husband and wife, that defendant be enjoined from claiming that such relation did exist, that she be enjoined from instituting any action or actions against plaintiff for divorce, separate maintenance, or division of property, and in the alternative if it should be held that the common law marriage relation did exist between them then such marriage be annulled. By answer the defendant pleaded that the parties were common law husband and wife; that they had lived together in that capacity; that they held themselves out as such; and that her real name was Pauline McCarty. And by counterclaim she sought temporary support money during the pendency of the action as well as attorney’s fees, and a final declaratory judgment adjudicating that the parties were husbancr and wife, and decreeing a property settle-merit between them for the purpose of providing her with separate maintenance. The court dismissed the cause for want of jurisdiction, and plaintiff appealed. A United States court is without jurisdiction to grant divorces or annul marriages. It has been consistently said without deviation that the field of domestic relations affecting husband and wife, or parent and child, belongs exclusively to the laws of the states. Barber v. Barber, 21 How. 582, 62 U.S. 582, 16 L.Ed. 226; In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 1500; Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115; De La Rama v. De La Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489. The United States, in its own behalf and in its capacity as guardian of Indian tribes or individual Indians, may institute and maintain in the federal courts appropriate suits for the enforcement of the rights or the protection of the property of its Indian wards. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Noble, 237 U.S. 74, 35 S.Ct. 532, 59 L.Ed. 844; United States v. Osage County, 251 U.S. 128, 40 S.Ct. 100, 64 L.Ed. 184; La Motte v. United States, 254 U.S. 570, 41 S.Ct. 204, 65 L.Ed. 410; Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622; United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539; Mars v. Mc-Dougal, 10 Cir., 40 F.2d 247, certiorari denied, 282 U.S. 850, 51 S.Ct. 28, 75 L.Ed. 753; Tiger v. Twin-State Oil Co., 10 Cir., 48 F.2d 509. The right to maintain such suits is the necessary complement to the obligations of guardianship which the United States bears toward its wards. Heckman v. United States, supra; La Motte v. United States, supra. The jurisdiction of a United States Court to entertain such a suit finds its source in section 2 of Article III of the Constitution of the United States which provides that the judicial power of the United States shall extend to all controversies to which the United States is a party. Barnett v. United States, 9 Cir., 82 F.2d 765, certiorari denied, 299 U.S. 546, 57 S.Ct. 9, 81 L.Ed. 402. But the United States was not a party to this action, within the intent and meaning of that constitutional provision. This was an action instituted by an Indian in his own behalf. And the suit concerned itself primarily with the domestic relation existing between the parties.. It was expressly alleged in the complaint “that there is an actual controversy between plaintiff and defendant as to the existence of a contract between plaintiff and defendant creating the common law relation of husband and wife and as to whether plaintiff ánd defendant bear toward each other the relation of husband and wife * * Plaintiff sought to invoke the jurisdiction of the court for the adjudication of that controversy. He prayed for a declaratory judgment adjudicating that the parties were not husband and wife; but if the court should determine otherwise, then that the marriage be annulled. The primary question for adjudication was whether the parties were husband and wife, and if so whether the marriage should be annulled. The subsidiary question whether the defendant was entitled to maintenance or a division of property depended upon a determination of the primary question. The action was clearly within the field of domestic relations. The declaratory judgment statute, section 274d of the Judicial Code, 28 U.S.C. A. § 400, is remedial, apd does= not create any new substantive right. Ohio Casualty Ins. Co. v. Marr, 9 Cir., 98 F.2d 973, certiorari denied, 305 U.S. 652, 59 S.Ct. 245, 83 L.Ed. 422; Utah Fuel Co. v. National Bituminous Coal Commission, 69 App.D.C. 333, 101 F.2d 426, affirmed, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483; Love v. United States, 8 Cir., 108 F.2d 43. “It does not purport to alter the character of the controversies which are the subject of the judicial power under the Constitution.” United States v. West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546; Board of Commissioners for Buras Levee District v. Cockrell, 5 Cir., 91 F.2d 412, certiorari denied, 302 U.S. 740, 58 S.Ct. 142, 82 L.Ed. 572. It “has not changed the jurisdictional requirements for suits in federal courts.” Davis v. American Foundry Equipment Co., 7 Cir., 94 F.2d 441, 442, 115 A.L.R. 1486; Mississippi Power & Light Co. v. City of Jackson, 5 Cir., 116 F.2d 924. It “does not attempt to change the essential requisites for the exercise of judicial power.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 473, 80 L.Ed. 688; John P. Agnew & Co. v. Hoage, 69 App.D.C. 116, 99 F.2d 349. The judgment is affirmed.

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

Victor DeCOSTA, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., et al., Defendants-Appellants. No. 74-1391. United States Court of Appeals, First Circuit. Argued March 5, 1975. Decided June 24, 1975. Certiorari Denied Jan. 19, 1976. See 96 S.Ct. 856. See also Cust. & Pat.App., 498 F.2d 1383. Eugene L. Girden, New York City, with whom Knight Edwards, Edwards & Angelí, Carleton G. Eldridge, Jr., Coudert Brothers, John M. Keene, III, Michael J. Calvey, New York City, and David Wolf, Boston, Mass., were on brief, for defendants-appellants. Alan T. Dworkin, Providence, R. I., with whom Leonard Michaelson, Providence, R. L, was on brief, for plaintiffappellee. Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges. COFFIN, Chief Judge. Plaintiff, a dozen years ago, began this suit against the Columbia Broadcasting System, Inc. and allied corporations (CBS) to seek compensation for their unauthorized use of a character concept he had developed, embodying a costume, slogan, name, and symbol. A mechanic living in Cranston, Rhode Island, his avocation had been to don an all black cowboy suit, with a St. Mary’s medal affixed to his flat crowned black hat, a chess symbol to his holster, and an antique derringer secreted under his arm, and make public appearances at rodeos and other events, meeting innumberable children, and passing out his card, inscribed with a chess set knight, proclaiming “Have Gun Will Travel, Wire Paladin, N. Court St., Cranston, R.I.” We described these events in greater detail when this case was before us on appeal from the first count in his complaint, Columbia Broadcasting System, Inc. v. DeCosta, (DeCosta I), 377 F.2d 315 (1967), cert. denied, 389 U.S. 1007, 88 S.Ct. 565, 19 L.Ed.2d 603 (1968). As every well-versed television viewer of the late fifties and early sixties knows, the gestalt conveyed by plaintiff’s costume and accessories found its way into defendants’ television series, “Have Gun Will Travel”, which enjoyed enormous popularity for over eight years in its initial run, grossing in excess of fourteen million dollars. The claim below, in the remaining counts two and three of the complaint, asserted a wilful and intentional infringement of plaintiff’s common law trademark and/or service mark and unfair competition. The plaintiff sought both injunctive and monetary relief, including an accounting for all profits made by defendants in broadcasting “Have Gun Will Travel”. The first count had been tried before a jury. When this court reversed the result obtained in that trial, the case was returned to the district court where the parties entered into a stipulation that counts two and three be determined by the district judge on the basis of the trial transcript, including all exhibits, together with a stipulation of additional testimony. 383 F.Supp. 326, 327. Subsequent to this stipulation the following order was entered by the district court on October 5, 1973: “Pursuant to stipulation of the parties on each side and of counsel on each side, the above captioned case is referred, under authority of 28 U.S.C. 636, to United States Magistrate Jacob Hagopian for hearing and determination to be had on or before November 5, 1973.” Six months later, on April 15, 1974, a report was filed by the magistrate setting forth his findings of fact and conclusions of law sustaining the plaintiff’s position. Five days after this report was filed, the defendants objected to the reference for the first time and argued that the parties were without authority to consent to reference and that the decision of the magistrate had been ultra vires. The district court ruled that the consensual reference granted the magistrate the power to “determine” the issues in the case. It therefore held the magistrate’s exercise of jurisdiction legitimate and restricted its own review to a search for “manifest error” of fact or law. Finding none, it affirmed the magistrate’s decision and entered judgment thereon. This appeal challenges both the propriety of the reference and the decision on the merits. I. The Reference. The defendants’ argument to the district court and to us on appeal may be reduced to the following syllogism: (1) the order of reference in effect authorized the magistrate to act as special master; (2) the United States Magistrates Act, 28 U.S.C. §§ 631-639 provides for appointment of magistrates as masters only under the auspices of the Federal Rules of Civil Procedure; (3) Rule 53(b) provides that “in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it”; (4) since there is not such exceptional condition here, the reference was improper and the magistrate was without jurisdiction to hear the case; and (5) since this is a jurisdictional matter, it cannot be waived by counsel. They further argue that even if the consent of the parties ratifies the reference, the district court employed an inappropriate standard of review, and the governing standard should not have been manifest error of fact or law, but errors of law and clearly erroneous findings of fact as provided in Rule 53. The district court’s analysis began with a holding that a consensual reference to a magistrate was not a reference to a special master within the meaning of 28 U.S.C. § 636(b)(1) and was instead governed by that part of § 636(b) which provides: “any district court may establish rules pursuant to which any full-time United States magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Reviewing the law governing the powers of non-Article III judges to hear and determine cases, it held that there was no statutory or constitutional bar to the magistrate adjudicating a civil case on the basis of the litigants’ consent. And to determine the scope of review, the district court examined Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764 (1889), which treated district court review as limited to the question of “manifest error” in law or fact. 383 F.Supp. at 336-337. Defendants argue that it is constitutionally impermissible for an Article III judge to abjure decision making responsibilities and that the judge is therefore without power to invest other non-Article III judicial officers or parajudges, such as magistrates, with broad authority. However persuasive such an argument may be where governmental sanction is threatened, indicating a strong public interest in the outcome of litigation and creating a countervailing necessity for extending the full measure of judicial process to the defendant, or where parties to civil litigation properly before the federal judiciary insist on judicial resolution, quite different policy and precedent should apply where the parties to a civil dispute themselves select another forum. Under such circumstances, it is inappropriate to evaluate the problem as one of the right of the judiciary to relinquish its authority. The issue is not the power of the judge to refer, but the power of the parties to agree to another arbiter, absent overriding constitutional considerations. There is old authority for consensual reference for decision after court proceedings have been instituted. In Heckers v. Fowler, 2 Wall. 123, 69 U.S. 123, 17 L.Ed. 759 (1864), the parties agreed to a reference under the terms of which the report of the referee was to “have the same force and effect as a judgment of the court.” Id. at 127, 17 L.Ed. 759. In responding to a challenge to the power of a federal court to authorize such a proceeding, the Court endorsed the holding of an earlier case that “a trial by arbitrators, appointed by the court, with the consent of both parties, was one of the modes of prosecuting a suit to judgment as well established and as fully warranted by law as a trial by jury....” Id. at 128-129, 17 L.Ed. 759. It also recognized that, assuming the preservation of exceptions to acceptance of the report and a sufficient record, the same scope of appellate review would be available as in the case of appeal from an ordinary trial court judgment. See also Newcomb v. Wood, 97 U.S. 581, 24 L.Ed. 1085 (1878). And, in Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764 (1889), the Court said: “A reference by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration — a proceeding which is governed by special rules — is a submission of the controversy to a tribunal of the parties’ own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law.” Id. at 524, 9 S.Ct. at 359. We would add that we find nothing in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) to cast doubt on the propriety of truly consensual reference. The Court in La Buy was concerned with the wholesale resort to references to private masters ordered, despite objection, by district courts attempting to deal with crowded dockets, such references having gained notoriety for their delay and high cost. We see none of these problems in truly consensual references to magistrates. Both Heckers and Kimberly spoke in terms of arbitration supervised by the Court even though both cases long antedated the present availability of authorization for binding private agreement to arbitrate future disputes. In that era, an agreement to arbitrate a dispute that might arise was not judicially enforceable, although an arbitration award, once granted, was treated as the equivalent of adjudication by the courts. There was a long history in the field of arbitration of unwillingness on the part of the judiciary to relinquish power to decide cases properly before the courts. With the adoption of the Federal Arbitration Act, 9 U.S.C. §§ 1 — 14, this judicial hostility toward enforcement of arbitration agreements had gradually changed to approval of this mode of dispute resolution. Under section 9 the court must enter judgment upon the award of the arbitrators unless certain abuses are apparent. The authority of the courts to relinquish their decision making authority in favor of the arbitrators to the extent described in a private contract has long been assumed to have passed constitutional muster. From a constitutional viewpoint, we can see no significant difference between arbitration and consensual reference for decision to magistrates. In both situations the parties have freely and knowingly agreed to waive their access to an Article III judge in the first instance. Or put another way, they have chosen another forum. Indeed, the decision to waive in the case of a consensual reference is more knowledgeable than in the case of an agreement to arbitrate a future dispute because it is made after the issue has crystallized. Both modes of conflict resolution serve the same goals of relieving scarce judicial resources and of accommodating the parties. If it be queried whether the dignity of Article III is being compromised by entering judgments on awards made by non-Article III personnel, the sufficient rejoinder is that judgments are entered on arbitrators’ awards. Defendants, however, urge that, even if there is no constitutional defect vitiating consensual references to magistrates, such are now proscribed by the Magistrates Act in light of its legislative history. It is true that the legislative history of the Act clearly demonstrates an intent to subject the court’s power to compel a reference of ordinary cases to the limitations of the Federal Rules (including Rule 53(b), preconditioning reference on a finding of exceptional conditions). That question, however, is not now before us. The question here is whether the legislative history indicates that the same strictures were to be placed on consensual reference. Very little was said on this subject. Most of the voluminous testimony and written presentations were concerned with the duties which, as of course, could be assigned to magistrates. But what little was said makes it clear that it was assumed as given that consensual references were available. Defendants have not seen fit to acknowledge the relevant legislative history. In the first place, the draft of the legislation which was to become the Magistrates Act was accompanied, as early as April of 1966, by a Senate subcommittee staff memorandum, quoted by the district court, stating: “The use of magistrates for duties that do not require the employment of an Article III judge, or in cases in which the parties consent to the use of a magistrate, may do much to increase the efficiency of the Federal Courts.” Hearing on S. 3475 before the Subcom. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 89th Cong., 2d Sess., at 14 (1966). A second indication of Congressional intent stems from the subcommittee’s concern over the challenge made by then Assistant Attorney General Fred M. Vinson, Jr. to the proposed assignment of magistrates to try minor offenses if the defendant knowingly and intelligently consented. The subcommittee then charged its staff to make a study, which resulted in a memorandum addressed to “The Constitutionality of Trial of Minor Offenses' by U. S. Magistrates”. Hearings on S. 945 before the Subcom. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 90th Cong., at 246 — 256 (1967). The memorandum concluded that the proposed minor offense provision of the Magistrates bill was constitutional, drawing on factors supported by three separate lines of authority: (1) the fact that the magistrate would be an officer of the court and subject to its control; (2) the necessity of consent [“If any ‘right’ to trial by a good-behavior tenure judge exists, it is a due process right, which is waivable like other due process rights.”]; and (3) the preservation of a right of appeal to the court. Id. at p. 254. In the course of the memorandum, a separate subsection entitled “Consensual reference to special master” noted that “In ordinary practice before the Federal district courts, the parties can also consent to delegation of judicial responsibility to a court officer — -a special master.” and quoted from Kimberly v. Arms, supra. Id. at p. 253. Finally, in the Senate Report presenting the legislation to the Senate, S.Rep.No. 371, 90th Cong., 1st Sess. (1967), the following passage,- quoted by defendants, appears at p. 25: “(1) A magistrate may be assigned to serve as a special master in an appropriate civil action, under the conditions imposed by pertinent provisions of Federal Rules of Civil Procedure. This latter requirement was added as a clarification in response to comments made by the Committee on the Administration of the Criminal Law of the Judicial Conference. In particular, rule 53(b) provides that a reference to a master shall be the exception and not the rule; that in actions tried by a jury a reference shall be made only when the issues are complicated; and that in actions tried without a jury, save in matters of account, a reference shall be made only upon a showing that exceptional circumstances require it. These conditions, which in essence reflect the rule laid down by the Supreme Court in La Buy v. Howes Leather Company, 352 U.S. 249 [77 S.Ct. 309, 1 L.Ed.2d 290] (1957), protect against any abdication of the decision-making responsibility that is properly that of the district courts.” Defendants omitted the subsequent sentence, which concluded the paragraph: “A memorandum entitled ‘Restrictions on the Use of Special Masters,’ prepared by the staff of the Subcommittee on Improvements in Judicial Machinery and published at pages 281 — 283 of the hearings before that subcommittee on the Federal Magistrates Act, provides an analysis of rules relevant to the assignment of magistrates as masters.” Recourse to the memorandum referred to reveals a paragraph entitled “General Restrictions”, which ends as follows: “Furthermore, a reference cannot be made to a master if it would result in an infringement of a party’s right to trial by judge and/or jury or on any other substantive right. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956). But a party can waive these rights by consenting to a reference. Allen Bradley Co. v. Local 3, IBEW, 51 F.Supp. 36 (S.D.N.Y.), reversed on other grounds, 145 F.2d 215 (2d Cir.), which was reversed, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1943); see Hart v. Williams, 91 U.S.App.D.C. 340, 202 F.2d 190 (1952).” Hearings on S. 945, supra at 282. We see no contrary references in the legislative history. It therefore seems clear to us that the Congressional intent was to leave untouched the tradition, as Congress understood it, that parties could, without violation of Article III freely consent to refer cases to non-Article III officials for decision. We see no suggestion in the committee reports and no reason of policy which would limit consensual reference to “some exceptional conditions” as required by F.R.Civ. Pro. 53(b). As we have indicated above, the factors triggering the decision in La Buy are not present when the parties knowingly and freely agree to a reference to a magistrate. Indeed, on occasion, perhaps when the legal issue is closely balanced and the stakes are not high, or when expedition and expense are dominating factors, parties may prefer prompt decision, through by a magistrate, to decision by a judge. This avenue ought not to be barred. But in order that such references not be subtly coerced by a harried court, intentionally or not, district courts should adopt a procedure such as requiring that the parties file with the clerk of the court a letter of consent to have the magistrate render decision in the case, the clerk being bound not to disclose the identity of any who consent or who withhold consent. That it is constitutionally and statutorily permissible to refer cases, with the consent of all parties, for initial decision is clear. What does not appear at all clear to us is whether the decision of the referee once rendered is by statute subject to very limited review or to review for any prejudicial legal error as required by F.R.Civ.Pro. 53(e)(4). Mr. Justice Black observed in Commonwealth Coating Corp. v. Casualty Co., 393 U.S. 145, 149, 89 S.Ct. 337, 339, 21 L.Ed.2d 301, (1968), in a case involving an arbitrator charged with partiality, “[W]e should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the fact and are not subject to appellate review.” If review of arbitration awards can be limited to issues involving the integrity of the process (not the correctness of the decision), it may well be that review could be similarly limited as to consensual references for decision. But the actual scope of review that has been provided in the past is unclear. Various references we have cited suggest that the report of a referee to whom a case has been consensually referred for decision stands in the same position as a district court decision, reviewable by a court of appeals for clearly erroneous factual findings and errors of law. This would avoid an added tier of decision, but at the expense of losing the benefit of the district court’s deliberation. The “manifest error” language in Kimberly would indicate a reduced standard, which the district court applied in this case. We have indicated our feeling that as applied to legal error, the term lacks content. It is possible that, following the analogy of arbitration, a truncated review to insure integrity of the process could be devised. But in the present state of the law we would be reluctant to approve even a clearly worded consensual reference to a magistrate which purports to finally bind the parties to his rulings of law. Until Congress, on reviewing the experience under the Federal Magistrates Act, fashions a review procedure for consensual reference for final (or semi-final) determination of all issues of law and fact, it might be better to rely on the formulation contained in Rule 53(e)(4). We need attempt no categoric answer to this issue since the reference in this case was not clear enough by its own terms to support the conclusion that the parties consented to a grant of power to the magistrate greater than that outlined in Rule 53 Fed.R.Civ.Pro. The district court relied on the language of the order indicating that the parties agreed to “hearing and determination”. But this language is fully compatible with the magistrate as trier of fact whose rulings on the facts are final under Rule 53(e)(4), but whose legal rulings have no binding force. We agree with the district court that the defendants’ motion for summary judgment is some evidence of an intent to have the magistrate rule on issues of law, but, in light of the absence of any specific court rule addressing itself to the effect of a magistrate’s decision and the failure to include in the order of reference a provision for entry of judgment upon the magistrate’s award, we do not find this sufficient. We must, therefore, treat the district court’s failure to review the magistrate’s decision on the law under Rule 53 as error. It may well be noted that, deciding that a different standard of review should be applied, logic should compel us to remand to the district court. But we would have to repeat the legal review and we see no favor to the parties in prolonging further these aging proceedings. We proceed, then, treating the factual findings of the magistrate adopted by the district court as subject to the clearly erroneous standard of Rule 52(a), and treating the legal decision of the magistrate as subject to the full review of this court. II. The Merits. We proceed to review the magistrate’s findings in the light of the pleadings, the evidence, and the law. In DeCosta I we considered only the first cause of action in the complaint — that for misappropriation of “the idea and character”, seeking damages based on defendants’ unjust enrichment. Before us now are plaintiff’s second and third causes of action, for trademark and/or service mark infringement and for unfair competition. In the second cause of action, plaintiff alleges that the slogan “Have Gun Will Travel”, together with a figure of a knight chess piece and the words “Wire Paladin”, as used in his calling cards, constituted his distinctive common law service mark or marks, which defendants intentionally infringed, appropriating the goodwill created by plaintiff, causing him serious financial damage. In the third cause of action plaintiff alleges that defendants intentionally copied plaintiff’s service marks and his manner of dress (black outfit, white tie, mustache, etc.),.and passed off their television character of Paladin as the original. Paladin portrayed by plaintiff, profiting and diluting plaintiff’s established goodwill, thereby deriving unjust profits. Plaintiff sought injunctive relief, an accounting for all profits, a trebling of “profits lost and damages suffered by plaintiff”, plus a separate item of $2,000,000 damages. The magistrate’s well ordered opinion on cross motions or summary judgment was divided into findings of fact, a discussion of preemption and other threshold legal issues, and conclusions of law. After rehearsing the general factual background described in DeCosta I, 377 F.2d at 316-317, he made the following critical findings: (1) As to secondary meaning — some 21 witnesses knew plaintiff as Paladin, 18 had seen him pass out his cards and plaintiff received cards and letters addressed to him as Paladin; (2) As to confusion — the card and costume marks and dress of plaintiff were identical to those used in defendants’ TV series, with attendant “great likelihood of confusion”; 21 witnesses discerned a similarity between plaintiff and the television Paladin, six first thought the television Paladin was plaintiff; (3) As to plaintiff’s commercial activity — he “commercially held himself out to be ‘Paladin’ ” and used his marks in interstate commerce to advertise his services as an entertainer, and in connection with his appearances at his pony ring where children paid for rides, and appearances at paid admission rodeos. In his legal discussion the magistrate held that DeCosta I had not precluded recovery on the second and third causes of action; that the Sears-Compco decisions had not preempted application of the common law of service marks and unfair competition or of the Lanham Act, 15 U.S.C. §§ 1125 and 1127; that a belated res judicata claim of defendants based on a trade mark administrative proceeding was not available; that plaintiff was not barred by laches in bringing this action six years after the alleged infringement; and that New York policy and law (as well as the Lanham Act, which is consistent therewith) applied. Finally, the magistrate concluded that plaintiff’s marks were not within the scope of copyright laws; that they had been used in interstate commerce, and had acquired a secondary meaning; and that, although^ there' was no direct competition involved defendants had infringed, had falsely advertised them to be their own, and had therefore unfairly competed. He held that defendants should account to plaintiff for all profits arising from the use of plaintiff’s service marks. We note at the outset of our analysis that two allegations of the complaint meet with no response in the findings of the magistrate; in the second cause of action the allegation of financial damage, and in the third cause of action, the allegation of “passing off”. Since plaintiff’s role-playing as Paladin was uncompensated, we think that any finding of financial damage would have been unsupported. We say the same about “passing off”; there is no evidence that the CBS nationwide television venture ever sought to draw luster from the Cranston paradigm. We recognize that precision of pleading no longer can be an absolute determinant of either liability or remedy. What, if any, effect these gaps between pleading and proof have we leave for later analysis. Picking our way through the cluster of issues in several related but different fields of the law, we start where we left off, at DeCosta I. We there gave what has since been characterized as an expansive reading to Sears and Compco. See, e. g., Comment, Copyright Pre-emption and Character Values; The Paladin Case as an Extension of Sears and Compco, 66 Mich.L.Rev. 1018 (1967— 1968). We held that “if a ‘writing’ is. within the scope of the constitutional clause, and Congress has not protected it, whether deliberately or by unexplained omission, it can be freely copied.” 377 F.2d at 319. Since the cards— including the photograph — “were unquestionably ‘writings’ within the meaning of the copyright clause, and arguably were copyrightable under the statute”, id. at 321, we concluded that plaintiff could prevent others from copying them. We now know, after Goldstein v. California, 412 U.S. 546, 560, 93 S.Ct. 2303, 2311, 37 L.Ed.2d 163 (1973), that “under the Constitution, the States have not relinquished all power to grant to authors ‘the exclusive Right to their respective Writings’.” In Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 478-479, 94 S.Ct. 1879, 1885, 40 L.Ed.2d 315 (1974), this holding was summarized: “at least in the case of writings, the States were not prohibited from encouraging and protecting the efforts of those within their borders by appropriate legislation.” Were we to take this literally, we would see no reason to look on Goldstein as relevant to this case; plaintiff relies on a common law service mark as subsumed also by a federal statute, 15 U.S.C. § 1125 (part of the Lanham Act), but not state legislation. Nevertheless, since the countervailing state law found sufficient in Kewanee was common law, not statutory law, we do not read its capsule of Goldstein literally. We face a dilemma. Goldstein tells us that we were, in our interpretation of the preemptive reach of the Copyright Clause, over-inclusive. And yet, what we decided in DeCosta I has settled, for this case, the issue of misappropriation. Had Sears and Compco remained unglossed, we might well rule that DeCosta I had predetermined our decision on the second and third causes of action. For if defendants could not be prohibited from copying the cards, which gave the defendants all that they took from plaintiff and incorporated in their series, would not any sanction, whether based on service mark infringement or unfair competition, denigrate their license? We do not, however, rest on any such implications of De Costa I, realizing that we do not have a tabula rasa to write upon. A starting point, of course, is the explicit domain left open in Sears, that a state “may protect businesses in the use of their trademarks, labels, or distinctive dress in the packaging of goods so as to prevent others, by imitating such markings, from misleading purchasers as to the source of such goods.” 376 U.S. 225, 232, 84 S.Ct. 784, 789. A second guideline is that in DeCosta I we dealt only with copying “simpliciter”; to the extent that other elements of other causes of action are relevant, we are free to consider them. In the context of the instant case, we are free to consider deception and passing off, secondary meaning and likelihood of confusion. Our first inquiry is whether plaintiff’s marks and dress are protectible under either the broad concept of unfair competition or that part of unfair competition dealing with trade and service mark infringement. As to plaintiff’s dress, this may have had less claim to protection against infringement than his card. For there is no question but that the photograph of plaintiff in full regalia which he widely distributed was copyrightable. 17 U.S.C. § 5(j), Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884). The card is less vulnerable on copyright preemption grounds. Its three components — the slogan, “Have Gun Will Travel”, the name in the phrase “Wire Paladin”, and the knight chess piece — are in categories protectible as common law trade or service marks. See, e. g., Call-man, The Law of Trademarks, Vol. 3, § 77.4(g) (slogans); § 66.1 (trade names). What is not clear is whether plaintiff’s activities in connection with his marks entitle him to the protection of trade and service mark law. As we said in DeCosta I, 377 F.2d at 316, “[t]his was perhaps one of the purest promotions ever staged, for plaintiff did not seek anything but the entertainment of others.” Plaintiff testified that he never used the name “Paladin”, the slogan or the chess piece for any business use, and never published any advertisements; that he did not even receive his expenses for appearances at horse shows and rodeos; and that the distribution and mailing of pictures and cards was costly to him. The closest point to commercialism that plaintiff came was in conducting a horse trading business at a ranch, where he stapled some of his cards to some beams near the ceiling of a barn. In 1953, he left that ranch and established a pony ranch, sold rides and, in costume, passed out cards and photographs to children. This business ended in September of 1957, when plaintiff had to move out. Ironically, this was the month when defendant’s television series commenced. From then through 1964 plaintiff continued to appear in parades, at hospitals, and at other gatherings, but was not, apart from his employment as a mechanic, associated with any business venture. While the magistrate found that plaintiff “commercially held himself out” to be “Paladin”, and that he used his service marks in interstate commerce to advertise his services, we interpret his holdings not as purely factual ones but as decisions combining both law and fact. That is, the findings could not, on this record, be that plaintiff was engaged in a remunerative business, sparked by the profit motive. Rather, they were findings that plaintiff regularly (on week-ends) held himself out as a personality and entertainer, appearing in various states, and that, even though he incurred expense without receiving income, his activity constituted the rendering of service in interstate commerce. The Lanham Act, 15 U.S.C. § 1127, is, for our purposes, delphic, that is, circular in its relevant definitions. It defines a service mark as “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.” “Commerce” means “all commerce which may lawfully be regulated by Congress” and a service mark is deemed to be used in commerce “when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or... in more than one State... and the person rendering the services is engaged in commerce in connection therewith.” Defendants rely on cases such as Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) and United Drug Co. v. Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918), for support of the proposition that a trade mark is inseparable from the goodwill of a business. Defendants also cite the recent case, Heinemann v. General Motors Corp., 342 F.Supp. 203 (N.D.Ill.1972), aff’d, 478 F.2d 1405 (7th Cir. 1973). In that case a plaintiff had “modified” an ancient Model A Ford and had named it “The Judge”, after the well known skit in “Laugh In”, a television show. He raced and exhibited his car, occasionally receiving a mileage allowance, radio advertising, and free entry in a race. He intended to open an automobile equipment shop and capitalize on the good will generated by the slogan. After defendant General Motors brought out a new Pontiac called “The Judge”, plaintiff adopted another name. The court rejected plaintiff’s claims for trade and service mark infringement and unfair competition, holding, citing only Rectanus, supra, that the slogan, to be profitable, must be used in connection with a trade or business at the time of the infringing activity. All plaintiff had was the desire to open a business in the future, together with the hobby of racing and displaying his automobile. From a policy point of view, the functions served by a trademark (or service mark) — an indication of origin, a guarantee of quality, and a medium of advertisement, 3 Callman, § 66.3, p. 36— suggest association with enterprises selling their goods or services. Callman refers to a service mark as “the mark of a business that only renders service and is not engaged in the manufacture or sale of goods.” Id. § 68.1, p. 69. And, again, “The service mark must, of course, be used as an identification mark, and it must perform the same functions in the selling and advertising of services that a trademark traditionally performs in respect of goods.” Id. § 68.1, p. 71. Our impression, derived from our scrutiny of the cases, the treatises with their myriads of citations, and the periodical literature including the Trade Mark Reporter, is that virtually all the litigation and doctrine center about the pursuit of economic gain. We say “virtually” because the law of unfair competition now protects “eleemosynary organizations [which] function in commerce and, in form, resemble business enterprises.. The happenstance that they are nonprofit-seeking ventures, and therefore removed, as such, from the rigors of business competition, neither eliminates the element of competition nor disentitles them to protection against the unfair competition of similar organizations.” Callman, Vol. 1, § 1.1, p. 4. See, e. g., The President and Trustees of Colby College v. Colby College — New Hampshire, 508 F.2d 804 (1st Cir

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?

MASSACHUSETTS v. WESTCOTT No. 75-1775. Argued January 17, 1977 Decided May 23, 1977 Per Curiam. Respondent Westcott was arrested for violating a Massachusetts statute that prohibits nonresidents of the Commonwealth of Massachusetts from dragging for fish by beam or otter trawl in Vineyard Sound during July, August, and September. After he was found guilty, he pursued his right to de novo review and filed a motion to dismiss the complaint. The Massachusetts Supreme Judicial Court granted direct appellate review and ordered the complaint dismissed on the ground that the statute violated the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 3, cl. 2. 344 N. E. 2d 411. We granted certiorari. 429 U. S. 815 (1976). Our decision today in Douglas v. Seacoast Products, Inc., ante, p. 265, suggests that there may be a statutory basis to provide respondent the relief he seeks, thereby making it unnecessary to decide the constitutional. question presented. Douglas holds that federal law pre-empts the States from denying vessels that are federally enrolled and licensed for the fisheries the right to fish in state waters on the same terms as state residents. Respondent’s vessel is federally enrolled and licensed “to be employed in carrying on the mackerel fishery,” .the same license that was held by appellees in Douglas. In accordance with our longstanding principle of deciding constitutional questions only when necessary, Hagans v. Lavine, 415 U. S. 528, 543 (1974); Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring), we decline to decide the privileges and immunities question presented in this case, and vacate the judgment and remand the case for further consideration in light of Douglas. See McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 (1940). It is so ordered. Justice Rehnquist concurs in the judgment on the authority of Douglas v. Seacoast Products, Inc., ante, p. 265. The Act of Feb. 20, 1923, c. 35, 1923 Mass. Acts 17, as amended by the Act of Mar. 13, 1962, c. 219,1962 Mass. Acts 107: “It shall be unlawful during the months of July, August and September for any person who has not been a legal resident of this commonwealth during the preceding year to use beam or otter trawls to drag for fish in that part of the waters of Vineyard Sound lying in the towns of Chilmark, Gay Head and Gosnold, and included between an imaginary line running from the extreme western point of Gay Head to the extreme western point of Nashawena island and another imaginary line running from Cape Higgon to Tarpaulin Cove Light. Violation of this act shall be punished by a fine of not less than five hundred nor more than one thousand dollars.” The fact that respondent holds such a license has been ascertained from the records of the Merchant Vessel Documentation Division of the Coast Guard. These records may be judicially noticed. See, e. g., Bowles v. United States, 319 U. S. 33 (1943); Tempel v. United States, 248 U. S. 121 (1918); Jones v. United States, 137 U. S. 202 (1890); cf. Fed. Rule Evid. 201 (b) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”). The parties were given, an opportunity to comment on the propriety of our taking notice of the license, and both sides agreed that we could properly do so. See supplemental briefs filed by the parties.

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.

What is the issue of the decision?

HAYDEN STONE, INC., Plaintiff-Appellant, v. George BRODE and Carl Jeppson Company, Defendants-Appellees. Nos. 73-1732, 73-1733. United States Court of Appeals, Seventh Circuit. Argued Nov. 19, 1974. Decided Dec. 13, 1974. George Brode, Samuel Morgan, Chicago, 111., for defendants-appellees. Michael B. Roche and Richard T. Zwir-ner, Chicago, 111., for Hayden Stone, Inc. Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WY-ZANSKI, Senior District Judge. . Senior District Judge Charles Edward Wyzanski, Jr. of the District of Massachusetts is sitting by designation. PER CURIAM. Hayden Stone, Inc., plaintiff below, appeals from the order of the district court denying recovery against defendants Brode and Carl Jeppson Company for conversion of a six percent convertible subordinated debenture of the McCulloch Oil Company. Brode and Jeppson cross-appeal from that portion of the district court’s order which awards costs of $3,949.70 in favor of Hayden Stone and against Brode and Jeppson pursuant to two sanction orders issued under Fed.R.Civ.P. 37(a)(4) during the discovery proceedings in this case. For the reasons which follow, we affirm the order below. I In Illinois, the elements of a cause of action for conversion are not in substantial dispute: To constitute conversion of a chattel there must be an unauthorized assumption of the right to possession or ownership. The essence of conversion is not the acquisition of the property by the wrongdoer, but a wrongful deprivation of the owner thereof;. and one claiming a conversion must show a tor-tious conversion of the chattel, a right of property in it, and a right to immediate possession, absolute and unconditional and not dependent upon some act to be performed. Hobson’s Truck Sales, Inc. v. Carroll Trucking, Inc., 2 Ill.App.3d 978, 276 N.E.2d 89, 91 (3d Dist. 1971). Although the record is by no means clear on the point, the district judge determined that the McCulloch Oil debenture in question was delivered by Hayden Stone, Inc., a brokerage firm, to defendant Brode, a regular customer, pursuant to an order placed by Brode. Since this determination depended in large part on the credibility of two trial witnesses, it cannot be set aside by this court unless it is clearly erroneous. Aunt Mid Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 715-716 (7th Cir. 1972). We do not believe that the clearly erroneous test requires this finding to be set aside, and we therefore proceed to analyze plaintiff’s claim on the premise that the debenture was purchased for and transferred to Brode in the normal course of Hayden Stone’s business. Since this transaction was a purchase by Brode on his account, Brode became the owner of the bond upon its delivery to him by Hayden Stone. Ill. Rev.Stat. Ch. 26, §§ 8-301(1), 8-313(1). From that point forward Hayden Stone had its remedy in an action for the price. Ill.Rev.Stat. Ch. 26, § 8 — 107. The facts as found will not support a cause of action in conversion for the simple reason that there was no “unauthorized assumption of the right to possession or ownership” as required by Illinois law. Hob-son’s Truck Sales, Inc. v. Carroll Trucking, Inc., supra. The original transfer and delivery to Brode was voluntary and made in the normal course of business. There was no fraud involved in this transfer and subsequent events cannot be relied upon since ownership had clearly passed to Brode when these events occurred. Hayden Stone’s claim for damages on the theory of conversion was therefore properly denied, and its contractual claims properly held to be satisfied by the return of the appreciated bond and accumulated dividends. II During the pre-trial proceedings in this suit, the parties engaged in a rather discouraging and protracted pattern of bickering and non-cooperation. As Judge Perry observed, this suit “was from the beginning fought with a maximum of personal bitterness and recrimination by the parties and their counsel.” Two sanction orders resulted from these unhappy circumstances, both directed against defendants Brode and Carl Jepp-son Company. In each case, the orders were issued by judges other than the ultimate trial judge, and in each case determination of the amount of the award was held for a later hearing. Judge Perry conducted a hearing on January 23, 1973 to determine the proper amounts to be assessed, and based on that hearing and the evidence there produced, a total award of $3,949.70 was made. Examination of the record reveals that each sanction order was clearly justified. The first order, issued by Judge Decker, concerned Mr. Brode’s evasive and uncooperative response to requests for documents specifically described in a notice of deposition filed by Hayden Stone. Brode’s refusal either to produce the requested documents or to verify their existence or nonexistence led to a useless and expensive resort to the courts by Hayden Stone. The second order, issued by Judge Bauer, concerned Brode’s clear misuse of the discovery process in the deposition of John K. Eggars, again necessitating a resort to the courts by Hayden Stone, this time to seek a protective order. In both cases the record clearly and convincingly supports the imposition of costs against Brode under the revised provisions of Rule 37(a)(4) of the Federal Rules of Civil Procedure. The district judges therefore acted well within the proper limits of their discretion. Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1970). Finally, defendants have been provided an “opportunity for hearing” within the meaning of Rule 37(a)(4). In each instance the imposition of sanctions was made on the basis of transcripts of the depositions involved and memoranda from Brode setting out the alleged justifications for his activities. Moreover, had Brode desired further hearing after the imposition of sanctions to present additional justification, he could have moved for such hearings. He did not do so, however, and we do not find error in Judge Perry’s decision not to go into these matters a full year after the sanction orders were issued. The order of the district court is therefore in all respects Affirmed.

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

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

Joseph A. CALIFANO, Jr., Secretary of the Department of Health, Education and Welfare, Defendant-Appellant, v. Ella HEINOL, Plaintiff-Appellee. No. 77-1552. United States Court of Appeals, Seventh Circuit. Argued Jan. 20, 1978. Decided May 15, 1978. Robert Varnum, Dept, of HEW, Washington, D. C., for defendant-appellant. Murray B. Woolley, Chicago, 111., for plaintiff-appellee. Before SWYGERT, CUMMINGS and TONE, Circuit Judges. PER CURIAM. Plaintiff, Ella Heinol, filed this suit in November 1975 to review defendant Secretary of Health, Education and Welfare’s denial of her application for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act (42 U.S.C. § 1381 et seq.). The essence of her claim is that because she lived in a house owned (but not occupied by) her sons, she was an “individual * * * living in another person’s household and receiving support and maintenance in kind from such person” and therefore was entitled as an aged individual to receive SSI benefits computed under 42 U.S.C. § 1382a(a)(2)(A)(i) infra. Mrs. Heinoi died in June 1976 and a month later her son Alois was granted leave to substitute himself as party plaintiff in his capacity as personal representative of his mother’s estate. The SSI program of the Social Security System was established to assure a minimum level of income for aged, blind or disabled persons who have insufficient resources to maintain a minimum income level standard of living. Mrs. Heinol’s application for SSI benefits based on age was filed with the Social Security Administration in February 1974. She was then admittedly receiving $135 per month in cash from her sons, $58 per month in social security benefits, and the rental value of the house, owned by her sons and in which she lived, was $200 per month, so that her total income per year was $4,716. This exceeded the statutory maximum allowance permitted, and therefore these benefits were disallowed on April 10, 1974. Upon reconsideration, the application was again denied on May 7, 1974. On February 20, 1975, Mrs. Heinol requested an administrative hearing. On the next day, the defendant mistakenly notified her that she was eligible for SSI benefits retroactive to October 1974, and shortly afterward she began receiving such benefits at the rate of $52.94 per month, for a total of $1,862.55. On April 23, 1975, the hearing examiner found Mrs. Heinol ineligible for SSI old age benefits, and the Appeals Council upheld his decision on September 18, 1975, thus prompting the present suit. On October 20, 1976, the district court granted summary judgment for the plaintiff and held that Mrs. Heinol had been eligible for the requested SSI benefits subject to the Vá reduction provided in 42 U.S.C. § 1382a(a)(2)(A)(i), which provides as follows: “(a) For purposes of this title, income means both earned income and unearned income; and — (2) unearned income means all other income, including— “(A) support and maintenance furnished in cash or kind; except that (i) in the case of any individual * * * living in another person’s household and receiving support and maintenance in kind from such person, the dollar amounts otherwise applicable to such individual [referring to the maximum income and resources per calendar year and, correspondingly, to the maximum amount of benefits] shall be reduced by 33'/3 percent in lieu of including such support and maintenance in the unearned income of such individual * * * as otherwise required by this subparagraph * * *.” Defendant appealed; we reverse the October 20 order. Mrs. Heinol was supported by her two sons who provided her with a home in which to live and gave her money to meet her living expenses. They did not live with her nor provide her with food. The house was held in a land trust and was their property. Plaintiff does not dispute that the rental value of the house was $200 per month, the monthly cash gifts from the sons were approximately $135 per month and her monthly social security check was approximately $58. The district court held that the alternative method of computing an individual’s income under the above statutory Section was applicable on the ground that*Mrs. Heinol was an “individual * * living in another person’s household and receiving support and maintenance in kind from such person.” We cannot agree because she was not “living in another person’s household” as required by the statute. She may have been living in her own household but she was not living in the household of another because she was not living with either son in his household. This conclusion is in accord with the applicable regulation of the Secretary which defines a household as one or more individuals living as a family unit in a single place of abode. 20 CFR 416.1003(b). There has been no showing that this regulation is arbitrary, capricious or an abuse of discretion and therefore deference is due. Mourning v. Family Publications Service, 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318; Kupiec v. Republic Federal Saving & Loan Association, 512 F.2d 147, 151 (7th Cir. 1975). We also cannot agree with the district court’s conclusion that Mrs. Heinol was “receiving support and maintenance in kind” from her sons. The Social Security Administration has defined “support and maintenance” as including shelter and food. Here Mrs. Heinol was receiving shelter from her sons but was not being provided with food and therefore her status does not satisfy the second condition in the above statute. To support its conclusion, the district court resorted to the statutory provision excluding from unearned income of an SSI benefit applicant what would otherwise be unearned income provided by a retirement home. Since Congress limited this provision to persons residing in nonprofit retirement homes or similar nonprofit institutions, it was an inappropriate analogy to Mrs. Heinol’s situation. Under a November 1975 regulation, persons living in their own household and receiving support and maintenance in kind are now treated as persons living in the household of another and receiving such support and maintenance. 20 CFR 416.-1125(d)(2). Even if this regulation were applied to the present case, Mrs. Heinol would not have been eligible for SSI benefits since her annual income still exceeded the statutory maximum allowance. Indeed, even if the rental value of the house was not included in her income under Section 1382a(a)(2)(A)(i), the monthly cash gifts and social security benefits she received alone constituted sufficient income to exceed the statutory maximum allowance. In a subsequent memorandum opinion and order of February 10, 1977, the district court refused to grant defendant relief under Federal Rule 60(b) of the Federal Rules of Civil Procedure with respect to its earlier judgment after the Government belatedly attacked the substitution of Alois Heinol for his late mother. Judge McGarr held the case had not become moot because: “This court undertook a proper exercise of jurisdiction in this case when the claimant herself initiated this action. The determination of the merits of this cause of action embraced more than the conclusion that benefit payments were due and owing to the claimant; the determination that the claimant was eligible for benefits also included a determination that payments made to her were not overpayments.” The court then concluded that although the statute (42 U.S.C. § 1383(b)) bars recovery by the claimant’s estate, its prior judgment “was and is intended to be a permanent bar against the assertion by HEW [the Department of Health, Education and Welfare] of any claim for overpayment.” Defendant’s notice of appeal encompassed the February 10 order as well as the earlier order. However, its brief expressly discusses only the merits of the earlier order; consequently defendant may have decided to waive the question of his claim for overpayment. We know of no reason why that claim should be barred against a proper representative of Mrs. Heinol’s estate. Therefore the February 10 order must be vacated so that the Secretary may assert his claim for repayment in an appropriate proceeding if he wishes to do so. The district court’s October 20,1976, decision granting summary judgment in favor of plaintiff is reversed. Its February 10, 1977, order is vacated, and the cause is remanded for further proceedings consistent herewith. . The Government did not oppose the substitution until after summary judgment was granted to plaintiff. If Alois Heinol is not in fact the duly appointed personal representative of his mother’s estate, the case became moot upon her death (as we npted at the oral argument) because under 42 U.S.C. § 1383(b) and 20 CFR 416.542(b) he could not receive her SSI benefits and, not being her true personal representative, of course could not be required to repay any SSI benefits she improperly received. Since the status of her estate, if any, is not of record, we have chosen to address the merits rather than delay this matter further. . During the first half of 1974, the statutory maximum was $1,680 per year. From July 1, 1974, to June 30, 1975, it increased to $1,752 per year, with additional increases thereafter. . In July 1976, plaintiff received notice that his Tnother was not entitled to those benefits and that the Department would seek repayment. That question was not dealt with in the district court’s October 20, 1976, memorandum opinion and order but was the subject of a later order discussed infra. . See the Social Security Administration’s Supplemental Security Income Claims Manual, CM Part 12349.3. . 42 U.S.C. § 1382a(a)(2)(A)(ii) provides in pertinent part: “in the case of any individual or his eligible spouse who resides in a nonprofit retirement home or similar nonprofit institution, support and maintenance shall not be included [in unearned income] to the extent that it is furnished to such individual or such spouse without such institution receiving payment therefor * * *.”

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?

In the Matter of AMERICAN NATIONAL TRUST and Republic National Trust, Debtors (Appellees), v. Neva M. SHANKLIN, etc., Appellant. Nos. 17641-17643. United States Court of Appeals Seventh Circuit. Jan. 14, 1970. Emanuel Nadnn, Dayton, Ohio, for appellant. Philip A. Loomis, Jr., Washington, D. C., J. Kirk Windle, Special Counsel, S.E. C., Chicago, 111., David Ferber, Solicitor, S.E.C., Washington, D. C., for S.E.C. Alan H. Lobley, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for the debtors. Alan I. Klineman, James M. Klineman, Klineman, Rose & Wolf, Indianapolis, Ind., for John I. Bradshaw, trustee in reorganization. Before DUFFY, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges. DUFFY, Senior Circuit Judge. American National Trust and Republic National Trust are real estate trusts which have been in operation in the State of Indiana. Their principal offices were in Indianapolis, Indiana. These two trusts had common trustees and shared the same offices. Appellant, Neva M. Shanklin, is the owner of certificates of beneficial interest in both the American National Trust and the Republic National Trust, having invested therein the sum of $30,600. Involuntary petitions for reorganization under Chapter X of the Bankruptcy Act were filed on February 13 and February 26, 1968, against the American National Trust and the Republic National Trust, respectively. A receiver was appointed. The debtors each filed an answer opposing the approval of the petitions. On April 4, 1968, Shanklin filed a motion to intervene and moved to dismiss the petitions and vacate the order appointing a receiver. A hearing on the approval of each Chapter X petition and on the motions of Neva Shanklin was set for April 26, 1968. On the morning of the day set for hearing (April 26), the alleged debtors each filed an amended answer consenting to the granting of the petitions, but denying that the petitioning “beneficial interest” holders were creditors. After a hearing at which Shanklin made no objections, the District Court approved the petitions and ordered the reorganization to proceed and appointed trustees. Petitioners introduced evidence to the effect that in the sale of the certificates of beneficial interest, representations had been made to them that the certificates would be redeemed by the trusts at any time. The Court ordered the petitions for reorganization approved and appointed trustees. Another hearing, pursuant to 11 U.S.C. § 569 was set for June 28,1968. On October 22, 1968, Neva Shanklin filed a suit in the Howard Circuit Court in the State of Indiana against Frank L. Gregory and Paul D. Hinkle in their capacity as trustees for each of the two real estate trusts. This suit sought to have set aside the trustees’ vote authorizing the trust consent to the granting of the petitions in reorganization under Chapter X. The District Court entered an order staying the suit in the Howard Circuit Court, and on December 5, the appellant Shanklin filed a notice of appeal from the order staying such suit. The Securities and Exchange Commission (S.E.C.) was a participant in the hearing before the District Court. The Commission agrees with and concurs in the arguments of the debtors and trustees with respect to three issues: 1) that the petitions for reorganization under Chapter X of the Bankruptcy Act were properly approved; 2) that the jurisdiction of the District Court has been conclusively determined by virtue of Section 149 of Chapter X (11 U.S.C. § 549), and 3) that the District Court had jurisdiction to stay the collateral attack on the debtors’ consent to the reorganization. However, the Commission disagrees with debtors and trustees in the view that appellant has presented no question with respect to the allowances of compensation to various persons. On this point, the Commission argues that the determination by the District Court of allowances to various persons may be reviewed by this Court, but that such a review is not necessary at this time. The attorneys for the trustees had also been attorneys for the receiver and prior thereto, had represented the petitioning creditors. The District Court made a total allowance of $31,500 as interim fees for the attorneys. The S.E. C. had recommended an allowance of $20,000. The District Court also allowed $24,000 to Bradshaw as receiver-trustee fees. The S.E.C. had recommended $15,000. The District Court also made allowance of $31,495.50 as fees to two accountants. The generous allowance of fees by the Court is shown by the fact that the allowance made by the Court exceeded the S.E.C. recommendations by the sum of $20,500. The District Court should and undoubtedly will take into consideration the generous amounts of the allowances heretofore made, at the time when the Court fixes the amounts of the final fees. We agree with the S.E.C. that there is no need, at this time, to review the order allowing compensation. Therefore, we make no determination as to our ability to do so under the circumstances of this case. On this appeal, Shanklin relies principally on her claim that the holders of beneficial interests of the trusts were not creditors and,, therefore, had no standing to sign petitions for relief under Chapter X, and that it follows the District Court had no jurisdiction. Any such objection should have been presented at the April 26th hearing at which Shanklin was present, or at the June 28th hearing at which the petitions were finally approved and trustees appointed. Pursuant to 11 U.S.C. § 537, Shanklin could have objected then but she did not until December 16, 1968. In the case of In re Hudson & Manhattan Railroad Company v. Stichman, 229 F.2d 616, 620 (2 Cir., 1956), the Court indicated that when objections are not timely or properly made, the Court’s determination of jurisdiction is final. They cited, as we do in the instant case, 11 U.S.C. § 549 — “An order, which has become final, approving a petition filed under this chapter [Chapter X] shall be a conclusive determination of the jurisdiction of the court.” We hold that the order of the District Court affirming the petitions asking for relief under Chapter X and appointing receivers became final. The next issue raised by appellant is that the District Court had no right or authority to enjoin the Howard Indiana Circuit Court. We disagree! In In re Muntz TV, Inc., 229 F.2d 314, 316 (7 Cir., 1956), we held “Under Section 116 of the Bankruptcy Act, Title 11 U.S.C.A. § 516, the bankruptcy court may enjoin the commencement or continuation of any suit against the debtor and restrain all persons from attempting to enforce a lien upon its property. * * * This is because, under the Constitution, a federal court’s jurisdiction in bankruptcy is paramount and exclusive * * *. Consequently, a bankruptcy court may properly stay any court proceeding which interferes with its exclusive jurisdiction, or violates its express orders. * * *” The orders of the District Court approving the petitions for reorganization under Chapter X, denying the motions to vacate and stay the collateral attack on debtors’ consent to reorganization, should be and are Affirmed.

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

HENRY et al. v. MARKESAN STATE BANK et al. No. 9755. Circuit Court of Appeals, Eighth Circuit. Jan. 5, 1934. Rehearing Denied Feb. 16, 1934. John D. Sullivan, of St. Paul, Minn. (Fowler, Carlson, Furber & Johnson, of Minneapolis, Minn., on the brief), for appellants. Edwin B. Murphy, of Minneapolis, Minn. (D. L. Simenstad, of Minneapolis, Minn., on the brief), for appellees. Before GARDNER, WOODROUGH, and VAN VALKENBÜRGH, Circuit Judges. VAN VALKENBURGH, Circuit Judge. May 12, 1919, J. E. Barr Pickling & Preserving Company became organized as a corporation by full compliance with the laws of the state of Minnesota. Its original capital stock was $300,000, and the purpose stated in its articles of incorporation was the following: “The purpose for which this corporation is formed and the general nature of its business shall he and is to manufacture, buy, sell, raise, grow, import, export and generally deal in all kinds of vegetables, fruits, and grains and the products thereof. To buy, sell, raise and otherwise acquire hogs, cattle, sheep, and all kinds of livestock, and to produce, buy, and sell all kinds of dairy products. To produce, manufacture, buy, sell, import, export, and generally deal in canned, bottled and bulk foods of all kinds, and any products used in the manufacture thereof as component parts. To buy, sell, lease, erect, and construct canneries, salting stations, storerooms, warehouses, cold storage plants and all necessary buildings, structures, and machinery which may be conducive to the interests of said corporation. To buy, sell, lease, mortgage and exchange and generally deal in real property, improved or unimproved, and to do all and everything necessary, suitable, and proper for the accomplishment of any of the purposes or attainments of any of the objects or for the furtherance of any of the powers hereinbefore set forth, and to do any other act or acts, thing or things, incidental or appurtenant to or coming out of or connected with the aforesaid business or powers, or any part or parts thereof.” June 18, 1925, it filed an amendment to its charter increasing its capital stock to $750,000. Proof of publication covering this amendment was duly filed June 27, 1925. March 4,1926, a special meeting of the stockholders was held for the purpose of considering an amendment to the articles of incorporation limiting the purpose and business of the corporation to that of canning vegetables and fruits and the doing of other things incidental thereto. An amendment to this general effect was voted by a majority in number and amount of the stockholders of said corporation, there being at that time 3,000 shares of outstanding stock, of which 2,010 were present and voted in favor of such amendment. At a prior meeting of stockholders, held December 28, 1925, it had been voted to change the name of the corporation to J. E. Barr Packing Corporation and to increase the capital stock to 10,000 shares of preferred stock of the par value of $100 each, and 10,-000 shares of common stock without nominal or par value. The result was that an amendment was duly filed in the office of the secretary of state of Minnesota on the 18th day of March, 1926. The certificate of the secretary of state, setting out the proposed amendment, discloses the change of name and authorized capital stock as aforesaid, and the following purpose clause: “The objects and nature of the business of this corporation shall bo and are the canning of vegetables.” The aforesaid amendment was duly executed, acknowledged, filed, and published as by law provided, but no affidavit of publication of the certificate of this amendment to the articles of incorporation was filed in the office of the secretary of state. The corporation continued its business under the changed name until it became insolvent in 1932. A receiver was appointed July 1,1932. lie also became trustee in bankruptcy. His testimony, uncontradicted, is that claims aggregating more than $340,000 have been allowed against the corporate estate and that its only assets remaining are about $200. The appellee bank in its own behalf and on behalf of all other creditors filed complaint against J. E. Barr Packing Corporation, praying an accounting and the appointment of a receiver to collect, for the creditors of the defendant corporation, the constitutional liability of its stockholders. A, hearing was held in due course and the court found that the relief prayed should be granted and ordered an assessment of $160 on each and every share of the capital stock of the defendant corporation having par value, and the sum of $50 on each share of such stock having no par value. The stock in question is that issued by J. E. Barr Packing Corporation. v. The contention of ’appellees, receiver, and creditors, is that the stockholders' are assessable under the purpose clause contained in the original articles of incorporation because the amendment which sought to convert the corporation into one engaged exclusively in manufacturing is void (a) because of the failure to file an affidavit of publication with the secretary of state; (b) the amendment of the purpose ¿elause was ultra vires for lack of unanimous consent by the corporate stockholders; (c) the amendment of the purpose elause is void because under the controlling laws of Minnesota a corporation is not empowered to effect, by amendment, a change from a corporation not exclusively manufacturing to one exclusively so; (d) because, even if the amendment be adjudged valid, nevertheless the purpose stated is not confined exclusively to manufacturing. A further contention is that the assessment of the stock issued by the J. E. Barr Packing Corporation is proper even though its issue was unauthorized because of the invalidity of the amendment. The points urged by appellant stockholders are: (1) That the amendment was properly and legally made and wasmot invalidated by the failure to file proof of publication with the secretary of state. (2) That even-though there were technical irregularities in reference to the amendment in question, nevertheless the creditors did business with the corporation while operating under the amended articles, which was a de facto, if not a de jure, corporation so operating, and are estopped from denying the legality of the amendment, which can be questioned only by the state of Minnesota in a quo warranto proceeding. (3) That the purpose stated in the amendment converted the -corporation into one engaged exclusively -.- in manufacturing, the stockholders of which are not subject to the assessment ordered. (4) That the no-par stock of the J. E. Barr Packing Corporation, if assessable at all, was not properly assessed on the basis of $50 per share. Article 10, section 3, of the Constitution of Minnesota, then in force, provides that: “Each stockholder in any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, shall be liable to the amount of stock held or owned by him.” The applicable provision respecting the publication of the certificate of original incorporation has found its way into section 7445 of Mason’s Minnesota Statutes, 1927, thus: “Every such certificate of incorporation shall be published in a qualified newspaper in the county of such principal place.of business, for two successive days in. a daily, or for two successive weeks in a weekly newspaper. Upon filing with the secretary of state proof of such publication, its corporate organization shall be complete.” The pertinent provisions in this regard .respecting amendments is found in section 7472 of Mason’s Minnesota Statutes, 1927, as amended by Laws Minn. 1929, c. 275, to wit: “Amendments to Certificates of Incorporation. — The certificate of any incorporation [of any corporation] now or hereafter organized and existing under the laws of this state may be amended so as to change its corporate name, or so as to increase or decrease its capital stock, or so as to change the number and par value of the shares of its'capital stock, or in respect to any other matter which an original certificate of a corporation of the same kind might lawfully have contained, by the adoption of a resolution specifying the proposed amendment, at a regular meeting or at a special meeting called for that expressly stated purpose, in either of the following ways: (1) by majority vote of all its shares, if a stock corporation; or if not, (2) by majority vote of its members; or, in either ease (3) by a majority vote of entire board of directors, trustees, or other managers within one year after having been thereto duly authorized by specific resolution duly adopted at such meeting of stockholders or members, and causing such resolution to be embraced in a certificate duly executed by its president and secretary, or other presiding and recording officers, under its corporate seal, and approved, filed, recorded, and published .in the manner prescribed for the execution, approval, filing, recording, and publishing of a like original certificate.” . Counsel for appellees sum up their argu■ment in the following language: “In affirming the decision it need only be found that (1) Failure to file the affidavit of publication resulted in an uncompleted amendment which was, because thereof, invalid; or (2) The amendment of the purpose clause was (a) fundamental and (b) violated the contractual right of stockholders, and was, therefore, ultra vires and void, or (3) No power exists in the State of Minnesota giving a corporation power to so amend its articles as to permit its change from a corporation not exclusively manufacturing to one exclusively so>, or (4) A corporation, the sole purpose of whieh is the canning of vegetables is not one exclusively manufacturing in nature.” We shall first consider Nos. 1 and 4. And first as to No. 4. The sole corporate purpose is thus stated in the amendment: “The objects and nature of the business of this corporation shall be and are the canning of vegetables.” To decide whether this language is sufficient to stamp the corporation sought to be created by the amended articles as one engaged exclusively in manufacturing, it is necessary only to determine the fair meaning of the word “canning” as accepted and generally understood in trade and commerce. It is firmly established in Minnesota that the articles of a manufacturing corporation are the sole ¡criterion for determining the purposes for which the corporation is formed, and unless it fairly appears therefrom that the exclusive purpose was for manufacturing, and such incidental business as may be reasonably necessary to effectuate the purpose, stockholders are liable for the debts of the corporation to the amount of the stock held by them. Merchants’ National Bank v. Minnesota Thresher Manufacturing Co., 90 Minn. 144, 95 N. W. 767; Meen v. Pioneer Pasteurizing Co., 90 Minn. 501, 97 N. W. 140; Kremer v. Tellin, 154 Minn. 267, 191 N. W. 735; West Duluth Land Co. v. Northwestern Textile Co., 176 Minn. 588, 224 N. W. 245. The word “canning” is thus defined in Think and Wagnall’s New Standard Dictionary: “The act, process, or business of preserving fruits, vegetables, or meats, by partial cooking, or other process, and hermetically sealing in tin cans, glass jars,” etc. In older editions of Webster’s Dictionary the verb “can” is defined as signifying: “To preserve by putting in sealed cans. Canned goods, a general name for fruit, vegetables, moat, or fish, preserved in hermetically sealed cans.” Appellees cite Webster’s New International Dictionary (1929) as follows: “Can, v. t., Canning — To put in a can or cans; to preserve by putting in sealed cans; to tin.” Mr. Barr, president of the defendant corporation, testified that: “The process of canning vegetables is the assembling of various vegetables and mixing them with condiments such as salt, sugar, etc., and putting them into cans and processing them so that they will keep. “Mr. Sullivan: Tell the Court a little more about that processing, what do yon do ? “The Court: Well, let us not go into that. He has stated it generally. I do not think it is necessary to go into the details of how that processing is carried on. I have seen a good many manufactories where they are canning fish, and so on.” The Supreme Court of Minnesota defines a manufacturer thus: “A manufacturer is one who by labor, art or skill transforms raw material into some kind of a finished product or article of trade.” Graff v. Minnesota Flint Rock Co., 147 Minn. 58, 179 N. W. 562, 563, cited with approval in Nortmann-Duffke Co. v. Federal Crushed Stone Co., 167 Minn. 333, 209 N. W. 17. The Minnesota rule of construction is thus announced in Sibley County Bank v. Crescent Milling Co., 172 Minn. 394, 396, 215 N. W. 521, 522: “It is true that in general, with respect to Minnesota corporations, liability is the rule and nonliability the exception. Arthur v. Willius [44 Minn. 409, 46 N. W. 851], supra; Carnegie Dock & Fuel Co. v. Kensington Mills, Inc. [152 Minn. 258, 188 N. W. 270], supra. But, as to manufacturing corporations, nonliability is just as definitely the constitutional rule and liability the constitutional exception. So there is nothing which justifies a resort to strained or hyperteehnical construction in order to arrive, if possible, at a conclusion in favor of liability. The ordinary rules for interpreting contracts and other writings obtain.” Under this rule, which we regard as reasonable and just, we think it fairly appears from the language of the proposed amendment that the exclusive purpose of the corporation, if its articles were so, amended, was to engage in the business of manufacturing. Coming now to specification No. 1 of ap-pellees’ concluding argument, supra, we should be slow to hold, under the facts and circumstances of this ease, that the mere failure to file the affidavit of publication rendered the amendment, filed with the secretary of state March 18, 1926, invalid. It will be observed that section 7472 of Mason’s Minnesota Statutes, supra, does not in terms, nor by necessary implication, make the filing of such proof essential to the completion and validity of an amendment, as does section 7445 with respect to the original certificate of incorporation. Furthermore, the Supreme Court of Minnesota looks with disfavor upon deciding the substantial rights of parties contrary to their mutual understanding as to the nature of their corporate contract “on the ground of a technical omission to file the affidavit of publication.” Christian v. Bowman 49 Minn. 99, 104, 51 N. W. 663, 664; Finnegan v. Noerenberg et al., 52 Minn, 239, 53 N. W. 1150, 18 L. R. A. 778, 38 Am. St. Rep. 552; Hause v. Mannheimer, 67 Minn. 194, 69 N. W. 810. In Christian v. Bowman, supra, there was evidence that the defendant corporators attempted to perfect a corporate organization under the name of Mouse River Land Company. They signed, filed, and published articles of incorporation in due form, but failed to file’the affidavit of publication required by statute. The situation was altogether the same as that before us, except that, there, original articles of incorporation were involved with respect to which proof of publication was expressly required. The action was , brought against the individual stockholders to recover on promissory notes on the ground that, the incorporation being incomplete, and, therefore, .invalid, they were liable as copart-ners. The court held as follows: “It would perhaps have been a serious question for the consideration of the court, under the evidence in the ease, if proper findings had been made, whether the defendants, for the purposes of this case, should not have been held to be a corporation de facto. So that if the plaintiff in these transactions dealt with the company as a corporation, and the deed, notes, and mortgage were given and received as corporate contracts by and between the parties, the individual members ought not to be charged with a joint liability, as partners or otherwise, contrary to the mutual understanding of all parties as to the nature of the contract, solely on the ground of a technical omission to file the affidavit of publication. “And it may be, if the record were such as to bring the case within the rule in respect to parties contracting with de facto corporations, and under whieh they are estopped to deny the corporate existence of an association claiming to be and acting as a corporation, a more equitable result might have been reached in this ease. But that question is not fairly in the case, and cannot be considered under the assignments of error. No reference is made in the pleadings to the existence of a corporation.” In Finnegan v. Noerenberg, 52 Minn. 239, 53 N. W. 1150, 1151, 18 L. R. A. 778, 38 Am. St. Rep. 552, the holding was that: “ ‘Color of apparent organization under some charter or enabling act’ does not mean that there shall have been a full compliance with what the law requires to be done, nor a substantial compliance. A substantial compliance will make a corporation de jure. But there must be an apparent attempt to perfect an organization under the law. There being such apparent attempt to perfect an organization, the failure as to some substantial requirement will prevent the body being a corporation de jure; but, if there be user pursuant to such attempted organization, it will not prevent it being a corporation de facto.” In Hause v. Mannheimer, 67 Minn. 194, 69 N. W. 810, it is held that one who reeog-nized, dealt with, and became a stockholder in a de facto corporation is “esto]rped from questioning its existence, or asserting that it ’ never -was legally organized, by reason of a failure to comply with the statute in filing with the secretary of state proof of the publication of its articles of incorporation, as required.” Compare Olson v. State Bank, 67 Minn. 267, 69 N. W. 904. Creditors dealing with a corporation are equally bound to take notice of the powers given, and of the limitations imposed by its charter. State ex rel. v. Mortgage Security Co., 154 Minn. 453, 457, 192 N. W. 348. From the foregoing it would appear that, under the Minnesota decisions, unless some fundamental defect compels a contrary view, the corporation, under the attempted amendment, had a de facto existence whieh stockholders and creditors alike would be esl topped to deny so far as the technical omission to file the affidavit of publication with the secretary of state is concerned. This brings us to a consideration of the charges against the validity of the amendment whieh sought to make a radical change in the purpose of the corporate organization. By article 10, § 3, of the Constitution of Minnesota, in force when this corporation was organized and this amendment was filed, two distinct hinds of corporations for profit were referred to, one , with so-called stockholders’ double liability and the other (manufacturing or mechanical) without such double liability. West Duluth Land Company v. Northwestern Textile Company, 176 Minn. 588, 589, 224 N. W. 245. Appellees attack the validity of the attempted amendment ofithe purpose clause of the original articles upon two major grounds: “1. No power exists in the State of Minnesota giving a corporation power to so amend its articles as to permit its change from a corporation not exclusively manufacturing to one exclusively so. “2. The amendment of the purpose clause was (a) fundamental and (b) violated ihe contractual right of stockholders, and was therefore ultra vires and void.” Taking up the first of these major attacks upon the validity of the amendment, to wit, that, under the laws of Minnesota, a corporation is without power so to amend its articles as to change from a corporation not exclusively manufacturing to one exclusively SO', wo must have recourse to the progressive legislation in Minnesota bearing upon that question. As stated by counsel for appellees in their brief, chapter 11 of the Laws of 1873, specifically authorized the organization of manufacturing corporations, but contained no provision for amendment. Chapter 8 of the Laws of 1879 was an amendment to chapter 11 of the Laws of 1873, and provided for amending articles (manufacturing) adopted under said chapter 11, by a majority vote of stockholders, provided that “no such new or amended articles shall change the general nature of its (corporate) business.” This was carried forward into the General Statutes of 1894. In the revision of 1905 provisions for amending articles of incorporation were grouped together under section 2871, now found in Mason’s Minnesota Statutes, 1927, as section 7472, hereinabove quoted. It is quite evident that this statutory prohibition against change by amendment in the general nature of corporate business applies only to manufacturing corporations. They are not permitted thus to expand into general mercantile corporations, while organized to conduct an exclusively manufacturing business. The Supreme Court of Minnesota in West Duluth Land Co. v. Northwestern Textile Co., 176 Minn. 588, 224 N. W. 245, as we read its opinion, so construes the applicable statutes. There was there an attempt to amend the articles of a manufacturing and mechanical corporation so as to permit it to engage in mercantile and trading business. This would subject the stockholders to so-called double liability, from which they were immune under the original charter. Thereafter tho corporation became insolvent and its receiver petitioned for authority to make assessment on stockholders. This petition was denied by the trial court, and the Supreme Court of Minnesota, in affirming this order, had occasion to review the statutory history involved. It said: “L. 1873, p. 121, c. 11, was enacted for the purpose of carrying into effect the constitutional immunity provision relieving stockholders of manufacturing and mechanical corporations from double liability. State ex rel. Clapp v. Minnesota T. Mfg. Co., 40 Minn. 213, 41 N. W. 1020, 3 L. R. A. 510. “L. 1875, p. 53, c. 17, provided for amendments of ihe articles of such corporation ‘in any respect which might have been lawfully made a part of such original articles.’ A provision permitting any business, other than manufacturing and mechanical, of such a corporation could not have been in the original articles. State ex rel. Clapp v. Minnesota T. Mfg. Co., 40 Minn. 213, 41 N. W. 1020, 3 L. R. A. 510. L. 1873, p. 121, c. 11, was amended by L. 1879, p. 22, c. 8, by providing that no such new or amended articles shall ‘change the general nature of its business.’ “E. L. 1905, § 2871, permits amendments ‘which an original certificate of a corporation of the same kind might lawfully have contained.’ It was not the purpose to thereby make a chango in the preceding law. Eeport of Statute Eev. Comm. 1905, p. 24. This same provision appeared in L. 1913, p. 338, c. 247, now found as G. S. 1923, § 7472. We agree with the trial court in holding that the words ‘of the same kind’ preclude an amendment of the articles of the defendant corporation as was attempted. * * * “There has been a manifest intent shown by the legislature to promote and foster manufacturing and mechanical corporations and to safeguard and protect a stockholder from a loss of his constitutional immunity from double liability (his contract right) whether the proposed amendment carried by a vote of 51 or 99 per cent, of the stock.” This assessment was resisted by stockholders, and the court in its decision protected their contract rights. There is nothing in this opinion, nor in any statute which has been brought to our attention, which would limit the power of a general trading corporation to convert itself into an exclusively manufacturing corporation. “The articles may be amended in any respect which might have been lawfully made a part of such original articles.” General mercantile powers cannot be made a part of the charter of an exclusively manufacturing company — one not subject to stockholder assessment. But manufacturing may legally be made a business purpose of a general trading corporation — in fact was so included in the purpose clause of the J. E. Barr Pickling & Preserving Company. No question of power under the laws of Minnesota was involved in the change from general trading to manufacturing by the amendment under consideration. The rights of stockholders, and perhaps of creditors, may be affected, but that brings us to an examination of another phase of the controversy. Accordingly, we consider need the point urged by appellees that the amendment of the purpose clause was void because it was fundamental in nature and violated the contractual rights of stockholders. The general principles of law governing this proposition are not new'and are well and explicitly stated in the decisions of the Minnesota Supreme Court. Articles of association of a corporation axe its fundamental and organic law. They fix the rights of stockholders and aré in the nature of á contract between the incorporators which neither party is at liberty to violate. Bergman v. St. Paul Mutual Building Association, 29 Minn. 275, 13 N. W. 120. Alterations which change the naturé and purposes of the corporation or of the enterprise for which it was created are fundamental, and amendments which effect such a fundamental change, to become binding upon the stockholders, must be accepted by the incorporators. Mower v. Staples, 32 Minn. 284, 20 N. W. 285; State ex rel. v. Mortgage Security Co., 154 Minn. 453, 192 N. W. 348; West Duluth Land Co. v. Northwestern Textile Co., supra. It will be recalled that the latter case concerned an attempt, by majority vote, to convert a manufacturing corporation, without stockholders’ liability, into one with a mercantile and trading business, subject to such liability, whereby a greater hazard^ in this respect, would have been imposed upon all stockholders. To the same effect are the holdings of courts and textwriters: Clearwater v. Meredith, 1 Wall, 25, 17 L. Ed. 604; Chicago City Railway Co. v. Allerton, 18 Wall. 233, 21 L. Ed. 902; Thompson on Corporations (3d Ed.) vol. 1, par. 390, pp. 501, 502; Morawetz on Private Corporations, par. 645, p. 613; 7 Ruling Case Law, par. 72, p. 97. It is conceded that the resolution purporting to authorize this amendment was adopted at a special meeting of stockholders by a majority vote only, and that the charter contained neither an express nor implied provision conferring suck authority upon a majority. It is true that a stockholder who has not assented to an amendment of the charter, materially changing the corporate objects, may not be liable for assessments resulting therefrom. Such is not the situation here presented; but, in any event, failure to authorize an amendment of this nature by unanimous vote is not necessarily fatal. Assent may be evidenced in ways other than by vote in stockholders’ meetings. It may be made by consent either express or implied. 1 Thompson on Corporations (3d Ed.) par. 400, p. 503. While directors have no authority in the first instance to accept for the corporation an amendment to the charter, “yet, if they do accept an amendment, and the corporation proceeds under it, the stockholders may be bound on the principle of acquiescence.” 1 Thompson on Corporations, par. 408, p. 513. Compare Venner v. Atchison, T. & S. F. R. Co. (C. C. Kan.) 28 F. 581. Acceptance of an amendment may be implied from user. It need not be proved by a vote of the stockholders. .1 Thompson on Corporations, par. 412, p. 520. “A stockholder may estop himself from taking any advantage of the unlawful or irregular acceptance of an amendment by the corporation or by the majority stockholders. Such estoppel may be raised either by express or implied acquiescence in the acceptance of the amendment. Generally he will be bound and his suit will be barred by any act on his part that would indicate an acceptance, or an intention on his part to accept the amendment.” 1 Thompson on Corporations, par. 413, p. 521. “A stockholder may be estopped from objecting to an amendment by his express or implied acquiescence therein. Any acts indicating an acceptance by him of the amendment bind him. * * * Acquiescence may sometimes grow out of his silence or delay under circumstances that called on him to dissent if he so intended. * * * Laches will not be tolerated by the courts, especially where important interests are involved. Stockholders are presumed to have assented to a change in the charter.” 2 Cdok on Corporations (8th Ed.) par. 503, p. 1675. That a change of this nature may be made by the implied as well as the express assent of the stockholders is held in Chicago City Railway Company v. Allerton, 18 Wall. 233, 21 L. Ed. 902, and it is intimated that a subsequent ratification or assent might be equally effective. Beyond question the change in name and purpose was ratified by the stockholders. Their acquiescence through a period of more than six years amounted to acceptance. During all this period no dissent appears. They accepted the stock issued under the charter as amended. They acquiesced in the changed operation of the corporate business. Naturally they are not complaining now. Palmer v. Bank of Zumbrota, 72 Minn. 266, 75 N. W. 380. Nor are the creditors in any position of greater advantage. So far as appears they dealt with the J. E. Barr Packing Company under its amended charter in presumed reliance upon its existence as a manufacturing corporation. There are no debts shown to be outstanding which were contracted prior to the amendment. They received constructive notice, at least, of the change. Publication was made. The amendment was duly filed and certified. The notes to the Markesan State Bank were executed by the J. E. Barr Packing Corporation March 11, 1930. This suit is brought against the corporation by that name. Evidently the rule with respect to parties contracting and dealing with de facto corporations applies here. Christian v. Bowman, 49 Minn. 99, 103, 51 N. W. 663; Hause v. Mannheimer, 67 Minn. 194, 69 N. W. 810; State ex rel. v. Mortgage Security Co., 154 Minn. 453, 457, 192 N. W. 348. Our conclusion, then, is that the J. E. Barr Packing Corporation became at least a de facto manufacturing corporation by the filing of its amendment of March 18, 1926; that by their subsequent course of dealings over a period of more than six years both stockholders and creditors are estopped to deny the corporate existence as thus amended; that no ground, therefore, exists for the assessment of stockholders as petitioned and ordered. For this reason it becomes unnecessary to pass upon the other errors assigned. The order and the judgment appealed from is reversed and the case remanded to the district court with directions to set aside the order of assessment made, and to dismiss the bill of complaint. 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 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?

GRUENINGER INTERNATIONAL TRAVEL, INC., Appellant, v. AIR TRANSPORT ASSOCIATION OF AMERICA et al. No. 76-1236. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 19, 1977. Decided Feb. 18, 1977. Rehearing Denied March 30, 1977. William W. Taylor, III, Washington, D.C., with whom J. W. Rosenthal and E. William Henry, Washington, D.C., were on the brief, for appellant. George W. Wise, Washington, D.C., with whom Philip C. Larson and Janet L. McDavid, Washington, D.C., were on the brief, for appellees. George W. Mayo, Jr., Washington, D.C., also entered an appearance for appellees. Before WRIGHT and TAMM, Circuit Judges, and GESELL, District Judge. Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1970). PER CURIAM: This is an appeal from an order of the District Court dismissing appellant’s antitrust suit on the ground that the allegedly anticompetitive acts of appellees Air Transport Association of America and its constituent Air Traffic Conference (ATC) were exempt from the antitrust laws under Section 414 of the Federal Aviation Act, 49 U.S.C. § 1384 (1970). We affirm, but for reasons somewhat different from those given by the District Court. The facts of this case are fully reported in the District Court’s opinion, Grueninger Internationa] Travel, Inc. v. Air Transport Ass’n of America, 405 F.Supp. 1241 (D.D.C. 1976). Therefore we sketch only those facts that are particularly relevant here. By agreement among domestic air carriers, no travel agent may receive commissions for the sale of air transportation unless that agent is approved by the ATC. Grounds for approval are generally proof of financial integrity and experience in the air travel field. The complex agreement embodying the details of qualifications and procedures to be followed to gain approval has been filed with, and approved by, the Civil Aeronautics Board (CAB) pursuant to its authority under the Federal Aviation Act. In this case, appellant became the owner of a Massachusetts travel agency when its previous owner defaulted on an obligation to appellant. Because the Massachusetts agent had similarly defaulted on various obligations owed to domestic carriers, ATC approval was withdrawn contemporaneously with appellant’s succession to ownership. When appellant applied for renewed approval, its application was turned down on two grounds. First, the ATC stated that certain employees of appellant had previously been employed in positions with the Massachusetts agent in which they had been “cognizant” of the financial misdeeds of the latter. Second, based on a letter from the Massachusetts agent which arrived at the ATC the very day on which appellant’s application was to be considered, the ATC concluded that appellant was at least partially responsible for the Massachusetts agency’s default on its obligations to ATC members. Appellant sought arbitration of this denial and was reinstated as an approved agent some 13 months after the ATC’s initial decision. Appellant charges that the ATC’s initial refusal was wrongful both because CAB-approved standards were intentionally misapplied in judging appellant’s qualifications and because the ATC committed a number of procedural errors which significantly delayed its approval, at great cost to it in terms of lost commissions. We agree with the District Court that Section 414 of the Federal Aviation Act, as construed in Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), exempts the ATC from the antitrust laws so long as the ATC follows procedures prescribed by the CAB, even if it later turns out that on the merits the ATC has improperly refused to approve an agent. At the time the CAB promulgated the procedural rules now in effect which govern approval and withdrawal of agent status, it was well aware that abuses had occurred under the ATC agreement. See generally ATC Agency Resolution Investigation, 29 CAB 258 (1959). Rather than disapproving the agreement or the rather vague standards for agency approval set out therein, however, the CAB required instead that the ATC state its reasons for disapproving or withdrawing agent status and that the ATC establish a binding arbitration procedure through which disappointed applicants could challenge the ATC’s stated reasons for disapproval. See id. at 264. It was the CAB’s view that, so long as all prescribed procedures were followed, arbitration would provide an effective remedy against “capricious committee action.” Id. Since the first part of appellant’s complaint alleges no more than capricious or mistaken action by the ATC, appellant’s sole remedy for this claim is the arbitration which it has already successfully invoked. Contrary to the District Court, however, we do not agree that the Hughes case disposes of appellant’s contention that the ATC violated procedures mandated by the CAB for processing agency applications. Unlike in Hughes, the CAB here has not only approved and supervised the ATC’s agency agreement, but it has also acted affirmatively to impose procedural limits on the ATC. See ATC Agency Resolution Investigation, supra. Since Section 414 does not grant immunity to the ATC or its member air carriers except to the extent their actions are approved or authorized, its protection plainly does not extend to acts taken in violation of the very procedural safeguards imposed by the CAB to ensure that ATC actions would be taken on approved grounds. See Lowe v. IATA, 1975-2 Trade Cas. ¶ 60,668 (S.D.N.Y.1976); Hefler v. IATA, 1970 Trade Cas. ¶ 73,190 (S.D.N.Y. 1970); Caceres v. IATA, 46 F.R.D. 89 (S.D.N.Y.1969). Moreover, the administration of the ATC agency resolution is an area in which the ATC must turn very square corners since, in the absence of Section 414, the agreement would be in blatant violation of the antitrust laws and since approval of a travel agency by the ATC is quite literally a “life or death” proposition for the travel agent involved. Nonetheless, ATC violation of CAB-imposed procedural rules is not actionable unless a travel agent is prejudiced thereby. See, e.g., Heñer v. IATA, supra. Applying this test in the case before us and construing the record most favorably to appellant, we cannot say that appellant has been prejudiced since it has not suffered any injury over and above that which would have been occasioned if the ATC had limited its actions to those which were undoubtedly proper under the agency agreement. For the reasons stated above, the judgment of the District Court is Affirmed. . Federal Aviation Act § 412, 49 U.S.C. § 1382 (1970). . See, e.g., Lowe v IATA, 1975-2 Trade Cas. 1160, 668, at 67, 928-67, 929 (S.D. N.Y.1976); ATC Agency Resolution Investigation, 29 CAB 258, 264-265 (1959). . Id. at 265.

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?

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

What follows is an opinion from a United States Court of Appeals. Your task is to determine 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-Appellant, v. STATE OF MISSOURI et al., Defendants-Appellees, Berkeley School District et al., Defendants-Appellees, Kinloch School District et al., Defendants-Appellees, Ferguson Reorganized School District R II, et al., Defendants-Appellees. No. 75-1434. United States Court of Appeals, Eighth Circuit. Submitted Sept. 12, 1975. Decided Oct. 2, 1975. John C. Hoyle, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellant. Norman C. Parker, St. Louis, Mo., and Marvin S. Wood, Clayton, Mo., for Kin-loch School District. Before MATTHES, Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges. PER CURIAM. The sole issue in this appeal is whether the district court on our remand (515 F.2d 1365) erred in directing that “[s]tudent and faculty desegregation required by the judgment of this Court of January 9, 1975 [388 F.Supp. 1058] shall be delayed until the commencement of the 1976-1977 school year, on or about September 1, 1976.” We remand with instructions. This litigation originated in September 1971 with the filing of a complaint by the United States of America pursuant to Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c-6, and the Four-_ teenth Amendment charging that defendants had created and maintained the Kinloch School District as an all-black district, denying equal educational opportunity to its students and thereby denying them equal protection of the law. In August 1973 the district court, in a decision reported at 363 F.Supp. 739, found that “the cumulative effect of the actions of the state and local defendants has been the creation, operation, support, and general supervision by the State of Missouri of a small school district which is unconstitutionally segregated and whose students are denied an equal educational opportunity.” 363 F.Supp. at 749. The court ordered “the state and other defendants to develop and implement a plan which will ‘achieve the greatest possible degree of actual desegregation, taking into account the practicalities of that situation.’ ” 363 F.Supp. at 750 (citations omitted). After considering proposed desegregation plans submitted by the parties, the court found that a three-district plan submitted by the State and St. Louis County Boards of Education “is the least disruptive alternative which is educationally sound, administratively feasible, and which promises to achieve at least the minimum amount of desegregation that is constitutionally required.” 388 F.Supp. at 1058—59. The district court’s judgment provided, among other things, that the Kinloch and Berkeley school districts be annexed to the Ferguson reorganized school district as of February 1, 1975, and ordered that student and faculty desegregation be implemented at the beginning of the 1975— 76 school year. 388 F.Supp. at 1061. On May 14, 1975, this court en banc, in an opinion reported at 515 F.2d 1365, affirmed the district court’s decision “except with respect to the maximum tax rate which shall be no higher than that of the annexing district, which is $5.38 per hundred. Upon remand, the court is empowered to fix new dates for accomplishment of the annexation and make other adjustments in accordance therewith.” 515 F.2d at 1373. On remand the district court, in an order dated June 7, 1975, directed that student and faculty desegregation required by its previous judgment be delayed until the commencement of the 1976— 77 school year. On June 13, 1975, the United States filed notice of appeal and moved for summary reversal of the district court insofar as that order delayed student and faculty desegregation from the beginning of the 1975 — 76 school year until the beginning of the 1976-77 school year. We denied the government’s motion for summary reversal but established an expedited briefing schedule and directed the parties to include in their briefs a discussion of the following: “Justification (or lack thereof) for (1) the delay in integration of students, (2) thé delay in integration of faculty, and (3) the immediate increase in the tax rate in the district without significant integration of students and faculty and other benefits related thereto.” The United States contends that no extraordinary circumstances that could justify delay in implementing desegregation have been shown in this case and that further delay is no longer constitutionally permissible. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969); Dowell v. Board of Education, 396 U.S. 269, 90 S.Ct. 415, 24 L.Ed.2d 414 (1969); Christian v. Board of Education, 440 F.2d 608 (8th Cir. 1971). The government urges that we reverse that part of the order which delays implementation of effective desegregation until the beginning of the 1976 — 77 school year and that we direct that implementation of the desegregation plan be required no later than the beginning of the second semester of the 1975 — 76 school year. Appellees, Ferguson Reorganized School District R II and Berkeley School District, urge that we affirm the district court’s order of June 7, 1975. They contend that (1) the order is in full compliance with our opinion and mandate; (2) there is no delay in carrying out the district court’s order of annexation as speedily as the circumstances permit; and (3) the Equal Educational Opportunity Act of 1974 prohibits transportation of students during the academic year 1975 — 76 and then only after all appeals have been exhausted. We are persuaded that the representations made by appellees with respect to the steps that have been taken and that are being taken to implement fully the desegregation plan should govern our present action herein. Appellees point out that this is not a single-district case; there are many more complications involved in the amalgamation of three separate heretofore autonomous districts. Further, the district court acted promptly upon receipt of our mandate: (1) By ordering the immediate annexation of Berkeley School District and Kinloch School District by the Ferguson Reorganized School District R II; (2) Berkeley and Kinloch were directed to deliver all property, records, books and papers and transfer all funds to the reorganized district by June 30, 1975; (3) Berkeley and Kinloch were prohibited from hiring any new employees or entering into any new contracts or obligations (except with respect to further appeals they might elect to take); (4) Designation of new school board members was to be reported to the court on or before June 30, 1975; (5) The 1975 school tax levy was set at a rate no higher than $5.38; (6) Administration of the reorganized district in 1975 — 76 was directed to include the present superintendent of Ferguson, with the superintendents of Berkeley and Kinloch serving as assistant superintendents; (7) Defendants were ordered to commence immediately all actions necessary to plan for successful student and faculty desegregation, including the establishment of a biracial committee pursuant to the provisions of the Revised Plan; the establishment of in-service training programs to prepare administrators, teachers, board members, students and the community for desegregation; the implementation of the community education requirements of the revised plan; the development of non-discriminatory regulations and procedures concerning student discipline; and the development of nonracial objective faculty evaluation criteria, required by Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970); further, that the biracial advisory committee shall actively participate in these efforts and shall be assigned such other duties by the school board as may be necessary to prepare for effective desegregation; (8) The Court retained jurisdiction to insure effective implementation of desegregation and to enter such further orders from time to time as it deemed necessary. During the course of oral argument, counsel for the Ferguson Reorganized School District R II advised us that since entry of the district court’s order of June 7, 1975, the following has been accomplished: (1) The annexation has been completed as directed — the new boundaries were fixed; (2) As of July 1, 1975, the new school board was organized as directed, with one member each from Kinloch and Berkeley, and it is functioning; (3) Additional buses required (17) have been ordered; (4) The biracial committee has been appointed, confirmed and ratified by the district' judge; (5) The administrative staff has already been completely merged; (6) Various programs formerly not available to Kinloch are open to them now; i. e., audio-visual presentations, swimming classes, and preschool courses; (7) Teacher orientation programs are in the process of being carried out; (8) Student orientation programs are planned for next semester; (9) Four new teachers have been assigned to Kinloch commencing with the present 1975-76 term, and the services of some 20 curriculum consultants have been made available; (10) Every reasonable effort is being made to bring the educational program in Kinloch up to the level in Berkeley and Ferguson — the money being spent in Kinloch this year will be several hundred thousand dollars more than Kinloch had in its budget last year; (11) The school board and other officials concerned recognize they must plan now in order to make desegregation completely effective by the beginning of the 1976-77 school year; (12) The order of January 9, 1975, required the school authorities to make a progress report on or before October 15, 1975, with respect to the accomplishment of desegregation. This report, although formerly geared to desegregation of students and teachers beginning with the 1975— 76 school year, will now cover the steps that have been taken to raise immediately the level of the educational program at Kinloch as well as accomplish the complete desegregation of the reorganized district commencing with the beginning of the school year 1976-77. It will include, among other things, the matters mentioned above. We conclude that this court should refrain from taking any further action in this case pending the filing of the October 15, 1975, progress report by the reorganized school district. The district court shall grant all parties a reasonable length of time in which to respond to the report, hold hearings if necessary, and make such further orders deemed appropriate to equalizing the level of the educational program at Kin-loch and accomplishing complete student and faculty desegregation commencing with the beginning of the school year 1976— 77. The district court, in order to insure that there is no delay in the full and timely implementation of the desegregation plan, is directed to require additional periodic reports prior to June 1, 1976. Remanded for further action consistent with this opinion. . The government also points out that it is difficult for it to respond to this court’s inquiries concerning the justification for delay in integration of students and faculty and the immediate increase in the tax rate because the district court without explanation delayed desegregation for one year. No hearings were held or evidence taken regarding the need for delay in implementing the desegregation ordered in January 1975. Appellees respond that although no formal hearings were held, extensive conferences were held, attended by government counsel and all other parties; further, that the only conduct on the part of the government indicating a negative attitude toward the order was at the time it was signed when counsel for the government indicated he could not bind the Department of Justice and may have added, “We may appeal.” Government counsel maintains that he made known the government’s view that the plan ought to be implemented with the beginning of the fall (1975-76) term. . Under explicit holdings of the Supreme Court, it is the obligation of every school district to terminate dual school systems at once. Delays pending appeals, absent extraordinary circumstances, will not be tolerated. Alexander v. Holmes County Board of Education, 390 U.S. 19, 96 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969). Nothing in the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1701 et seq., prohibits full and complete implementation of the desegregation plan by the beginning of the academic year 1976-77. See Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972) (Powell, J., in chambers).

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?

Herman HARMON, et al., Appellants, v. Calvin D. AUGER, Warden, et al., Appellees. No. 84-1784-NI. United States Court of Appeals, Eighth Circuit. Submitted June 10, 1985. Decided July 18, 1985. Philip Mears, Iowa City, Iowa, for appellants. John M. Parmeter, Asst. Atty. Gen., Des Moines, Iowa, for appellees. Before LAY, Chief Judge, PHILLIPS, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge. The HONORABLE HARRY PHILLIPS, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation. PHILLIPS, Senior Circuit Judge. This action under 42 U.S.C. § 1983 was filed by two inmates of the Iowa Men’s Reformatory at Anamosa, and two of their visitors, challenging two Reformatory policies. The first policy under attack is the suspension of contact visitation privileges of prisoners who, in disciplinary proceedings are found guilty of the possession of drugs. The Reformatory established a no-contact visitation area with a screen between the inmate and his visitor. The second policy relates to the use of the results of a urine drug detection system in finding inmates guilty of a disciplinary violation for possession of drugs. The case is before this court upon appeal from the final judgment entered by U.S. Magistrate James Hodges, Jr., sitting under authority of 28'U.S.C. § 636(c)(3). The jurisdiction of the Magistrate was based on 28 U.S.C. §§ 1331 and 1343. This court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1291. The Magistrate held that the imposition of no-contact visitation upon the plaintiff inmates who have been found guilty of possessing a controlled substance does not violate due process; and that the plaintiff inmates do not have a constitutionally protected liberty interest which is inherent in the Constitution of the United States or pursuant to Iowa statutes or administrative regulations. I The decision of this court in Hunter v. Auger, 672 F.2d 668 (8th Cir.1982) barred indiscriminate strip searches of visitors of Reformatory inmates. A practice then was adopted that when an inmate is found guilty of violating disciplinary rule 20 (possession of drugs), he is placed on a no-contact status with respect to all his visitors, with the right to automatic review of that status in ninety days. The Adjustment Committee has no discretion to determine whether the no-contact restriction is to be applied. It must be enforced in all eases of possession of drugs. If no drug problems occur within a ninety-day period, contact visits generally are restored. The comprehensive findings of fact of the Magistrate included the following: The purpose of this policy is to control the introduction of contraband drugs into IMR. The no-contact status, when imposed, applies to all of a violator’s visitors, regardless of their role, or lack thereof, in the rule 20 possession violation. The underlying rationale is that the rule 20 violators have the propensity or disposition to pressure their visitors to smuggle contraband into them, regardless of whether the visitors have done so in the past ... The introduction of contraband drugs into IMR is a problem pertaining to the order and security of the institution. Visitors are the largest source of introducing contraband drugs into the reformatory. In 1982 IMR had an average of 1,025 residents, and approximately 2,300 residents passed through in all. Each resident had approximately 5-6 visitors. It would be impracticable for IMR authorities to check each visitor’s background for drug abuse, because the reformatory lacks adequate manpower to do so. Also, a background check may be ineffectual to some extent where visitors abuse drugs but have no record of drug abuse. The implementation of the policy (hereinafter “no-contact policy”) has led to a reduction in drug abuse at IMR. In addressing a due process challenge, a court must determine whether a prisoner has a liberty interest protected by the fourteenth amendment. Vruno v. Schwarzwalder, 600 F.2d 124, 128-29 (8th Cir.1979). A liberty interest may be inherent in the Constitution or created by State law. Prison inmates retain only those rights consistent with legitimate penal objectives. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629 (1977). In Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984), the Supreme Court ruled that an inmate has no constitutional right to contact visitation. The Court held that if a restriction is not punitive but merely incidental to, and reasonably related to, a legitimate government objective, and not excessive to its purpose, there is no constitutional violation. Appellees emphasize that the restrictions relate to the legitimate interest in preventing unauthorized use of drugs in prisons. Visitors of inmates are viewed as the chief source of contraband and the prison officials believe inmates found to use marijuana are more likely to persuade their visitors to bring it to them. We agree with the Magistrate that the procedures do not run afoul of any liberty interests under the guidelines of Block. II In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that State laws or regulations expressed in mandatory language may create a liberty interest subject to due process protections. See also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Plaintiffs argue that State rules establish a liberty interest in contact visitation arising from limits placed on the warden’s discretion to deny such visits. In regard to visitation, the Iowa Code provides that certain public officials and religious officials shall be granted admission to State institutions; however, “No other person shall be granted admission except by permission of the warden.” Iowa Code § 246.46. Further, the Iowa Administrative Code provides: Individuals may have visiting privileges modified or terminated when: (a) the inmate or visitor engage in behavior that may in any way be disruptive to the order and control of the institution; (b) the visitor or inmate fails to follow the established rules and procedure of the institution; (c) the visitor and the inmate directly exchange any object or article. This does not apply to purchases from the canteen which are consumed during the visit; (d) the effect of alcohol or narcotic drugs is detected before, during or after the visit; (e) the visit or continued visiting is detrimental to the health of the inmate or visitor; (f) the visitor does not manage children to prevent them from interfering with or disrupting other visits. I.A.C. § 770-16.3(5). Additionally, Iowa Administrative Code § 16.3(6) provides: Visits with no physical contact may be granted when visits are beneficial for the inmate, visitor and the institution and the order or security of the institution may be threatened. I.A.C. § 770-16.3(6). Appellants argue these rules require some nexus between the visit and misconduct on the part of the visitor or inmate. Appellees stress that sections 246.46 and 16.3 make no reference to contact visits. Noting that § 246.46 makes visits discretionary with the warden, appellees argue that § 16.3(6), while referring to contact visits, does not contain any mandatory language that indicates prisoners are entitled to contact visitation. They cite Jones v. Mabry, 723 F.2d 590 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984) in support of their position that these provisions create no substantive limitation on the discretion of prison officials in granting no-eontact visitation. Appellants also cite language from general orders issued within the Reformatory. General Order Number 6, first issued February 19, 1979, provides: The use of the no contact visiting facilities is for the purpose of maintaining security of the institution primarily through the control of contraband. It will not be seen or used as a means of punishment per se. The use of the no contact facilities will be limited to the following instances: (1) Reinstated visitors who refuse personal searches. (See General Order — Institutional # 32) (2) Residents who have been found in possession of drugs in the institution will have their visits screened and no contact visits will be arranged for visitors who are suspects. (3) Visitors who are designated to be personally searched and staff is not on duty to perform the search. (This will avoid calling staff into the institution when off duty.) (4) Any resident who is designated by the Adjustment committee who represents a behavioral/control and/or security problem. Appellants also cite language from the employee manual, in effect before March 1982, providing that visiting privileges may be modified for disruptive conduct or intoxication before or during a visit. They maintain that prior to March 1982 administrative rules required a connection between misconduct and the visit itself or a particular suspicion regarding a prisoner in order to modify visitation privileges. On March 4,1983, a new General Order 6 was issued to reflect a new policy on no-contact visits. It provided that any time an inmate is found in possession of contraband, “his visits will be reviewed and no-contact visits will be instituted in those instances where control is deemed appropriate.” The order also provided for no-contact visits when the inmate presents a security problem or is in disciplinary detention. Shortly afterward, the employee manual was amended to mirror the language of I.A.C. § 770-16.3(5). Appellants argue that while the formal administrative rule has not been changed since it was adopted in 1981, the interpretations of this rule have changed dramatically. The new interpretation, first reflected in institutional practice and later in General Order # 6, authorizes no-contact visits even in the absence of visitor misconduct. Appellants were placed on no-contact status in December 1982. The practice of instituting the restrictions for drug use not connected with visitation formally was reduced to writing in 1983 under General Order # 6. Appellant Harmon was found in possession of a marijuana cigarette in June 1982 and was placed on no-contact status through December, when his urinalysis revealed THC. His no-eontact status then was continued indefinitely. Appellant Burton also was placed on no-contact status in December based on his own urinalysis. Appellants emphasize there was no evidence linking their drug use to visitors. They argue that administrative rules existing at the time established an expectancy of contact visits in the absence of misconduct relating directly to the visits. They argue that the specific reasons for modifying visitation set forth in administrative rules and institutional policy established a liberty interest in visitation absent certain behavior. Appellants contend that the current policy violates due process because visitation can be limited without suspicion or belief that a particular visitor is responsible for bringing contraband into the prison. They also argue the lack of notice or reasons for the decisions. They conclude that the no-contact visitation sanctions were arbitrary and capricious and violated the prison’s own rules. Appellants argue the current rules require a particular suspicion about a visitor prior to instituting no-contact visits. We conclude that plaintiffs did not have a liberty interest under State law. Existing State law and regulations did not prevent defendants from ordering no-contact visitation for drug use not directly connected to an inmate’s visitation. I.A.C. § 770-16.3(6) provided that no-contact visits could be ordered whenever “beneficial for the inmate, visitor and the institution and the order or security of the institution may be threatened.” Under the proper procedures mandated by the Magistrate, proven drug use by an inmate amounts to a threat to security that justifies the limited period of no-contact visitation imposed by Reformatory officials. The marijuana use need not be connected directly to the inmate’s visitors in order for the committee to impose the sanction. III Appellants argue that the rules on no-contact visitation violated the Iowa Administrative Procedure Act. Iowa Code § 17A.3(2) requires State agency rules to be made available for public inspection prior to adoption, to allow for public comment. Section 17A.4(3) of the Act provides that no rule adopted without this procedure is valid. Section 17A.2(7) defines “rules” subject to the Act. Section 17A.2(7)(k) provides that “rule” does not include a “statement concerning only inmates of a penal institution.” A federal court has authority to consider State law and administrative regulations to determine whether they provide a liberty or property interest affording due process protection. A federal court does not have jurisdiction, however, to award relief against a State based only on State law where violation of State law does not amount to a constitutional violation. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Iowa Administrative Procedure Act is a comprehensive procedural plan established by State law. Violation of the Act is a violation of State law and not of due process. Jurisdiction to construe the State statute is in the State Courts of Iowa. Accordingly, we vacate the Magistrate’s holding, issued prior to Pennhurst, that there was no violation of the Iowa Administrative Procedure Act. This is a question for determination by the State Courts of Iowa. IV Appellants argue that their due process rights were violated because the disciplinary committees failed to give a statement of the reasons for imposing the no-contact sanction. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) the Supreme Court held that prison disciplinary committees should provide a written statement of the evidence relied upon in making the decision and the reasons for the disciplinary action. Appellants note that the committees made no statements explaining why they imposed a no-contact sanction. They stress that Harmon was not provided a written statement of the reasons for imposing indefinite no-contact status on him, arguing the committee was not even aware his previous visits had been no-contact as well. We conclude that the decision of the Reformatory disciplinary committee stated sufficiently the reasons for placement on a no-contact status. The disciplinary decision sets forth clearly the facts upon which the violation of rule 20 were based. The inmates received an adequate statement of the reasons for sanctions, in compliance with Wolff v. McDonnell. Appellants also challenge the notice they received ordering them to respond to charges of violating prison rules. Noting that inmates must receive notice of the charges to which they are to respond, Wolff, 418 U.S. at 564, 94 S.Ct. at 2978, they argue that the reports they received were inadequate. Both inmates were charged with “possession of contraband.” They received reports stating that the urine samples obtained on particular dates in December 1982 were positive for THC. The Magistrate ruled that notices should state there was consumption of marijuana within 30 days of the test. Although the Magistrate held in favor of appellants on this issue, they appeal because they contend the notice requirements issued by the Magistrate do not go far enough. The Magistrate held as follows: ... where the exclusive evidence that prison authorities have that a prisoner is guilty of possessing drugs in violation of disciplinary rules is based on data from an EMIT-ST test, the notice of the charge need not contain the specific date and location on which the violation occurred. ... At least the general time of a drug possession offense must be specified when the only evidence of the offense consists of the results from an EMIT-ST test. The scientific testimony indicates that ingestion of THC must occur within thirty days prior to a positive result for THC from an EMIT-ST test. Thus, the disciplinary notice could have and should have stated a thirty day range in which the possession offense took place. Appellants note that the EMIT machine cannot locate with precision the date on which the subject smoked marijuana. They argue that the remedy proposed by the Magistrate is inadequate because it is almost impossible to present a defense when the date is not identified more precisely. They rely on Rinehart v. Brewer, 483 F.Supp. 165 (S.D.Iowa 1980) where the court held due process was not satisfied when a prisoner was charged with extorting sexual favors some time in the recent past. We conclude that appellant inmates have adequate notice of charges and can prepare defenses under the accommodation proposed by the Magistrate. Inmates can challenge the accuracy of test results and raise the defense of passive inhalation. The machine is about 95 percent accurate and will detect traces of THC up to 30 days after the subject ingests marijuana. Test results form a sufficient basis for disciplinary action and foster the objective of preventing drug usage at the Reformatory. Appellees assert that the requirement that authorities identify a specific date of possession would eliminate the usefulness of the urine analysis testing program as a tool to further the State’s interest. After the Magistrate ruled that the 1982 possession reports and hearings were unconstitutional and expunged appellants’ records, he held that retrial was not precluded so long as the defects were corrected. Appellants argue this ruling was erroneous because they would be unable to “reconstruct their activities” during the 30 day period before testing. They note that the test sample for Harmon now has too high a “ph” level to allow retesting. They also argue that a new proceeding would present the danger that the committee would retaliate or revert to the old conclusive presumption analysis. They note that another institution, the Iowa State Penitentiary, has adopted an automatic nonprosecution policy in cases of due process violations. Rinehart, 483 F.Supp. at 171. We conclude that the Magistrate’s order of expungement adequately assures that if the Magistrate’s procedures are followed, plaintiff inmates will not be subject to due process violations. Any reprosecution must comply with the requirements established by the Magistrate — adequate notice of the general time of the suspected violations and opportunity to rebut proof of the urinalysis. The disciplinary committee must consider defenses to the charges, including challenges to the reliability of EMIT-ST test results and must provide notice of the time frame within which marijuana use can be detected. Under these limitations, retrial after expungement does not violate due process. Sanctions for any violations found after reprosecution must not be imposed vindictively. Any disciplinary measures imposed must take into account the time the inmates already served on no-eontact status as a result of the earlier proceedings. V Finally, appellants challenge the Magistrate’s holding that defendants were entitled to qualified (good faith) immunity from liability for damages for the due process violations. These violations were the issuance of disciplinary reports without sufficient notice of a general date and the application of an irrebutable presumption at disciplinary proceedings. A public official is entitled to qualified or good faith immunity unless the official knew or reasonably should have known that his action would violate the constitutional rights of the plaintiff or if he took the action with the malicious intention to cause a deprivation of constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). See also Wycoff v. Brewer, 572 F.2d 1260, 1267 (8th Cir.1978); Ervin v. Ciccone, 557 F.2d 1260, 1262 (8th Cir.1977). In determining the reasonableness of an official’s belief that an action was constitutional, the court should look to whether the action violated a well-settled and unquestioned constitutional right. Although it was established that inmates are entitled to notification of the date of the violation, it was a case of first impression to consider the date based on results of urinalysis. Appellees concede that irrebutable presumptions are disfavored under due process. They assert, however, that the urinalysis machine was sufficiently reliable (95% reliable) to justify its use. After making thorough findings of fact and conclusions of law, the Magistrate found that defendants acted in good faith and are entitled to qualified immunity. We agree. We hold that the foregoing findings of fact of the Magistrate are not “clearly erroneous” and that his conclusions of law are correct. However, as hereinabove stated, we vacate the Magistrate’s holding, issued prior to the decision of the Supreme Court in Pennhurst, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67, that there was no violation of the Iowa Administrative Procedure Act. Otherwise, the judgment is affirmed. . The Magistrate disapproved the practices of the Reformatory of holding that positive results of the urinalysis created an irrebutable presumption before the disciplinary committee of possession of marijuana; and the practice of providing notices without indicating a general date of the alleged marijuana use. These holdings are not challenged on the present appeal. The Magistrate further held that the plaintiff inmates could be reprosecuted for drug violations under approved procedures.

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.

CALCOT, LTD., et al., Plaintiffs, Appellants, v. ISBRANDTSEN COMPANY, Inc., et al., Defendants, Appellees. No. 6022. United States Court of Appeals First Circuit. Heard Feb. 4, 1963. Decided June 18, 1963. Joseph S. Mitchell, Jr., Boston, Mass., with whom Patrick J. Wilson, Ponce, P. R., and Gadsby, Colson & Morin, Boston, Mass., were on brief, for appellants. Enrique Cordova Diaz, San Juan, P. R., with whom Walter L. Newsom, Jr., Brown, Newsom & Cordova, San Juan, P. R., and Foley & Grainger, New York City, were on brief, for Isbrandtsen Co., Inc., appellee. Miguel J. Rios Lugo, Santurce, P. R., for Luis A. Ayala Colon, appellee. Before WOODBURY, Chief Judge, and MARIS and ALDRICH, Circuit Judges. By special designation. WOODBURY, Chief Judge. This is an appeal from a judgment of the United States District Court for the District of Puerto Rico dismissing a complaint brought by Calcot, Ltd., and its insurer, Fireman’s Fund Insurance Company, both California corporations with their principal offices in that State, against Isbrandtsen Co., Inc., a New York corporation with its principal office in the City of New York, San Juan Mercantile Corporation, a Puerto Rican corporation of San Juan, Luis Ayala Colon, a citizen of Puerto Rico, and the Municipality of Ponce, Puerto Rico, to recover damages for the partial destruction by fire, allegedly due to the defendants’ negligence, of 175 bales of raw cotton while on the municipal pier at Ponce, Puerto Rico. Federal jurisdiction is correctly predicated upon either Sec. 1332 of Title 28 U.S.C. or 48 U.S.C. Sec. 863, the amount in controversy being $22,054.91 exclusive of interest and costs. Trial was by the court sitting without a jury, which, at the end of the presentation of the plaintiffs’ case, granted the defendants’ motion to dismiss for failure to prove a cause of action against any of the defendants. The following basic facts are not in dispute. On May 23, 1959, Calcot sold 400 bales of raw California cotton to Indian Head Puerto Rico, Inc., which owned and operated a textile mill in Ponce. The cotton was shipped under a bill of lading dated June 15, 1959, from Stockton, California, to Indian Head Puerto Rico, Inc., as consignee, on Isbrandtsen’s steamship “Flying Hawk.” Fireman’s Fund insured the cotton for the benefit of Caleot “until delivered to final Warehouse or Mill at the destination named in this policy [Ponce, Puerto Rico] or until the expiry of 15 days [after discharge] * * * whichever shall first occur.” The bill of lading insofar as material contained in Sec. 15 the following provisions with respect to delivery: “The Shipper, Consignee or owner of the goods, shall take delivery of the goods, whether sound or not sound, at the wharf or place of delivery of the Carrier at Carrier’s option: (a) within twenty-four hours after discharge or sooner, as circumstances and/or the nature and/or the condition of the goods may require; (b) within such time as is provided by the regulations and/or custom of the port. “If the delivery of the goods, whether sound or not sound, is not taken as aforesaid, they may be sent by Carrier to a warehouse, permitted to lie where landed or returned to port of shipment or elsewhere, all at the expense and risk of the Shipper, Consignee and/or owner of the goods. “When the goods have been discharged and possession of the goods is received or taken by Customs or other authorities, or by the operator or person in charge of any lighter, craft, dock, wharf, pier, store, warehouse, refrigerator, elevator or other facilities, whether selected by the Carrier, the Shipper, Consignee or owner of the goods, or whether public or private the goods shall be considered to have been delivered and at their own risk and expense subject to any lien of the Carrier thereon, and such authority or operator or person shall be considered as having received possession and delivery of the goods solely as agent of the Consignee or cargo owner. Such delivery shall terminate Carrier’s liability and Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or misdelivery, or any loss or damage occurring after discharge from the vessel.” The “Flying Hawk” arrived in Ponce on Sunday, July 5,1959, and on the same day the consignee was notified of the arrival of the shipment and the cotton was unloaded onto the municipal dock at Ponce. The unloading operation was conducted by Luis Ayala Colon, acting as the agent of Isbrandtsen’s local agent and representative, San Juan Mercantile Corp., who stacked the cotton in accordance with usual practice on the platform under the canopy or eaves of a shed as designated by the superintendent of the Ponce municipal docks and put it under 24-hour guard. It was not covered by a tarpaulin to protect it from the weather. On Monday, July 6, 1959, Francisco A. Delgado, a trucker under contract with Indian Head and its representative on the docks, surrendered the bill of lading to the shipper’s representative and began to remove the cotton from the dock. He loaded his truck with bales of cotton, took them first to a United States Department of Agriculture fumigation plant in the dock area where they were unloaded and fumigated in compliance with Department of Agriculture requirements, and then loaded the cotton onto his truck again and took it to Indian Head’s mill. By the end of the week the trucker had removed 225 bales and had signed cart receipts therefor, one on July 8 for 100 bales and two on July 10 for 100 bales and 25 bales respectively. On Sunday afternoon, July 12, the 175 bales of cotton remaining on the dock was substantially damaged by a fire of undisclosed origin. Caleot replaced the 175 bales of damaged cotton and Fireman’s Fund advanced the amount of the loss to Caleot on a “Loan Receipt” reciting that repayment was to be only out of any net recovery that might be had from any vessel, carrier, bailee or others for any loss or damage to the 400 bales of cotton originally insured. Eventually the damaged cotton was sold to Indian Head for its salvage value, and Caleot and Fireman’s Fund then brought this action to recover the net loss. The key findings of the court below are: (1) that at the time the 175 bales of cotton were damaged by fire they were in the “sole and exclusive” possession of the consignee, Indian Head, which had accepted delivery thereof through its agent, the trucker, and that at the time of the fire the cotton was on the dock by the “mere sufferance” of the Municipality of Ponce, which permitted the consignee to leave it there and remove it little by little at its convenience, and (2) that the plaintiffs had failed to show that the fire and the consequent damage to the cotton were caused by the negligence or fault of any of the defendants. The appellants assail the first finding on the ground that it is not supported by the evidence. They assail the second finding on the same ground and they also assert that it is erroneous because it puts the burden of persuasion on the issue of negligence upon them as the plaintiffs below instead of upon the defendant carrier, where they say the burden belongs under the Harter Act, 46 U.S.C. § 190 et seq. The basic question on this appeal is whether the risk of loss had passed by the time the cotton was damaged by fire, and this in turn is determined by whether or not the carrier, Isbrandtsen, through its agent and subagent, San Juan Mercantile and Ayala Colon, respectively, had delivered the 175 bales of cotton to the consignee, Indian Head. The appellants argue that the failure of the consignee’s agent to sign cart checks for the 175 bales that remained on the dock at the time of the fire shows clearly and conclusively that the consignee had not taken delivery of those bales. We do not agree, for we agree with the United States Court of Appeals for the Third Circuit in the comparable case of North American Smelting Co. v. Moller S. S. Co., 204 F.2d 384, 386 (1953), in which the court rejected the contention that giving receipts by an employee of the consignee to the agent for the steamship company during the course of removal of a shipment from a pier showed that the carrier was still in possession of the goods and responsible for them. It said: “We regard the receipt rather as a matter of orderly bookkeeping procedure having no significance on the question of whether the carrier had fulfilled its duty to the consignee.” And in the case at bar it is very evident that the parties themselves regarded the cart receipts as only a bookkeeping procedure, for the receipts were not signed coincidentally with the removal of the cotton. The receipts were signed on July 8 and 10, whereas the undisputed evidence is that removal of the cotton began on July 6 and except for one day proceeded throughout the week through Friday, July 10. The appellants also argue that the consignee had not taken delivery of the cotton within the time provided by either the regulations or the custom of the port of Ponce, so that Isbrandtsen’s partial reliance upon option (b) of the first paragraph of Sec. 15 of the bill of lading, quoted hereinabove, is misplaced. The “regulations” to which they refer are contained in a pamphlet of “Charges for Storing and Demurrage” approved by the Public Service Commission of Puerto Rico; and the so-called “custom” refers to the practice on the Ponce municipal pier of waiving storage charges for cotton cargo after expiration of the regulatory five-day “free period” on account of the delay occasioned by the fumigation process. Here, too, we are guided by the reasoning in the North American Smelting Co. case, supra, wherein the court said: “[The] issue was somewhat confused, we think, by references to the so-called five-days free time rule which prevails on this pier. * * * We think the question when a consignee must start paying additional charges to the proprietor of the pier for allowing goods to remain there has nothing whatever to do with the question whether a carrier has used reasonable care in discharging goods from his ship.” In other words, rules and customs concerning storage charges have no relevance to the question of what constitutes a proper delivery of the cargo. It has long been a settled rule of general maritime law that a sea carrier’s liability ends when delivery is on the wharf and suitable and reasonable notice of arrival is given the consignee so as to afford him a fair opportunity to remove the goods or put them under proper care and custody. The Eddy, 5 Wall. 481, 495, 18 L.Ed. 486 (1866); Galveston Wharf Co. v. Galveston, Harrisburg & San Antonio Ry. Co., 285 U.S. 127, 132, 134, 52 S.Ct. 342, 76 L.Ed. 659 (1932); The Bellingham, 57 F.2d 1015, 1018 (C.A. 3, 1932); and North American Smelting Co. v. Moller S. S. Co., supra. All this was here afforded the consignee, and his surrender of the bill of lading confirms consignee’s convenience. Thus, under the above rule of general maritime law, we think the court below correctly concluded that there had been an actual delivery of the cotton prior to its partial destruction by the fire. Nor do we think that reliance upon the above rule of general maritime law in any way conflicts with the delivery provisions of the bill of lading. It may be that alternative (a) of the first paragraph of Sec. 15 requires precise notification of reliance thereon rather than general notice of arrival and wharf discharge pursuant to the maritime rule. Nevertheless, the third paragraph of Sec. 15, quoted herein above, clearly evidences an intention to accelerate delivery to the earliest moment consonant with the general maritime rule; and to that extent we see no reason why the carrier should not have the benefit of this stipulation. In any event, as the case of Isthmian Steamship Co. v. California Spray-Chemical Corp., 300 F.2d 41, 43 (C.A. 9, 1962), clearly states, it is the general maritime rule which determines whether there has been “proper delivery” so as to terminate the applicability of the Harter Act. And, as noted earlier, the appellants’ argument that it was erroneously assigned the burden of proving the appellees’ negligence is based upon the applicability of the Harter Act and so must fall with it upon a finding of “proper delivery.” After proper delivery at the wharf Isbrandtsen’s duty as a carrier with respect to the goods was at an end. Thereafter it or its agents could be liable for damage to the cotton only in the same way and to the' same extent as any stranger to the contract of carriage. There being ample evidentiary support for the court’s conclusion that the plaintiffs had not affirmatively shown any negligence on the part of any of the defendants, its judgment was proper. Judgment will be entered affirming the judgment of the District Court. . This court before argument granted an unopposed motion of the Municipality of Ponce that the appeal be dismissed as to it. . The evidence is that at 7 A.M. on Friday, July 10, Ayala Colon removed the guards he had placed over the cotton and there is evidence that he gave notice of his action to the consignee’s trucker and dock representative. . The court below, in addition to its finding of “actual delivery,” found that the periods of time referred to in alternatives (a) and (b) of the first paragraph of See. 15 of the bill of lading “had transpired when the fire occurred.”

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?

Aldine ROCHESTER, Individually and on behalf of her minor child, Rose Gibson, Individually and on behalf of her seven minor children; Individually and on behalf of all others similarly situated, Appellants, v. Jack D. WHITE, Secretary of Health and Social Services, Individually and in his official capacity, and Miklos T. Lazar, Director of Social Services, Individually and in his official capacity, Defendants, Third-Party Plaintiffs, v. Caspar W. WEINBERGER, United States Secretary of Health, Education and Welfare and Francis D. DeGeorge, Administrator, Social and Rehabilitation Service, United States Department of Health, Education and Welfare, Third-Party Defendants. No. 73-2104. United States Court of Appeals, Third Circuit. Argued June 28, 1974. Decided Sept. 5, 1974. Peter M. Siegel, Community Legal Aid Society; Wilmington, Del., for appellants. Kent Walker, State Sol., Dept, of Justice, Wilmington, Del., for appellees. Before ADAMS, HUNTER and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This case raises jurisdictional issues under 28 U.S.C. § 1343(3) (1970) and 42 U.S.C. § 1983 (1970) and the Eleventh Amendment. The district court granted defendant-appellee’s motion for summary judgment holding that a state official was not a “person” under Section 1983 and, that as such, there was no jurisdiction in the court to grant either declaratory or monetary relief. The judgment with respect to the absence of declaratory judgment jurisdiction must be reversed. I. There is no dispute as to the facts in this case. Plaintiff-appellants challenge the propriety of defendant-administrator’s 1971 reduction in Social Security benefits under Delaware’s Aid to Families with Dependent Children (AFDC) public assistance program. In this class action, plaintiffs alleged that failure to give proper notice of the reduction in benefits violated the due process clause of the Fourteenth Amendment and federal regulations. The notice issue was fully litigated both in the district court of Delaware and in this court at which time the absence of jurisdiction was never raised. Speaking to the merits of the case in May of 1973, Judge Gibbons for this court found non-compliance with federal notice requirements and remanded the case to the district court for a determination of proper remedies. On remand, plaintiffs requested prospective declaratory and injunctive relief and retroactive monetary damages. Alleging that the Eleventh Amendment barred any retroactive monetary relief, the defendant moved for partial summary judgment. The district judge sua sponte granted a complete summary judgment for the defendant upon finding that the court was without jurisdiction to grant either monetary or declaratory relief, 365 F.Supp. 179, 183. The court avoided difficult Eleventh Amendment issues raised in defendant’s motion, 365 F.Supp. 179, 185. Reliance was instead placed on the notion that the defendant, as a representative of the state, was not a “person” under Section 1983. The court rightly cited Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) for the proposition that a city or a state is not a person subject to suit under Section 1983. As a corollary of this rule, the trial judge concluded that when a state official represents the state, he stands in the shoes of the state, and that like the state he is not a person under Section 1983. This conclusion is erroneous. II. When a state is named as a defendant under Section 1983, there are two impediments to suit. First, a state is not a person as required under Section 1983, and second, the Eleventh Amendment bars suit against a state. As written, the Eleventh Amendment prohibits suits in federal courts by citizens of one state against another state; the amendment, however, was early interpreted as a bar to suits in federal court by a citizen against his own state, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). If the State of Delaware had been named as a party to the instant action, the reasoning of the trial judge, that jurisdiction to redress a violation under Section 1983 was absent, would have been correct. Different results must obtain, however, when a state official, rather than the state itself, has been named as a party-defendant. PROSPECTIVE RELIEF The district judge’s ruling that he is without jurisdiction to grant prospective relief must be reversed since the public officials named as defendants are “persons” within Section 1983. In conjunction with Section 1343(3), Section 1983 has served as the basis for many suits against public officials acting in their official capacities. In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), Justice Harlan makes clear that when a complaint alleges the unconstitutionality of a state statute “the District Court sitting as a one-man tribunal .... [is] properly seised of jurisdiction over the case under §§ 1343(3) and (4) of Title 28. . . .” 397 U.S. 397, 403, 90 S.Ct. 1207, 1213 to redress grievances under 42 U.S.C. 1983. The defendant in Rosado was a New York State official who administered the same federally supported A.F.D.C. program as that in the present case. Although the opinion discusses jurisdiction in great detail, 397 U.S. 397, 402-407, 90 S.Ct. 1207, there is not the slightest implication that defendant’s status as a representative of the state is relevant under Sections 1343(3) and 1983. This use of Section 1983 as the means of suing state officials has gone unchallenged in both the Supreme Court and in this circuit court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), Ser-ritella v. Engelman, 462 F.2d 601 (3rd Cir., 1972), aff’g 339 F.Supp. 738 (D. New Jersey, 1972). If the trial judge’s interpretation of Section 1983 were correct, very few cases could ever have been successful under the statute. Section 1983 specifically requires that the “person” to be sued has acted under color of state law. When a person acts under color of state law he most often represents the state. Under the trial judge’s view, the state’s status as a non-“person” could be asserted by the state representative who is sued under Section 1983. 365 F.Supp. 179, 183. As the logical consequence of the trial judge’s view, Section 1983 would be used only where the state official had acted beyond the scope of his authority. At other times, a state official would represent the state whose status he could assert. Section 1983 clearly is not restricted to redressing abusive conduct beyond the scope of the authority of the person acting under color of state law. The district court’s jurisdictional analysis under Section 1983 is, in our view, incorrect. In addition, there is no Eleventh Amendment bar to granting prospective relief in the instant case. Following the reasoning of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar a suit against a state official acting under a state statute allegedly violative of the U.S. Constitution. The Eleventh Amendment does not prevent a “federal court from directing a state official to bring his conduct into conformity with federal law.” Rothstein v. Wyman, 467 F.2d 226, 236 (2nd Cir. 1972). This principle was most recently reaffirmed by the Supreme Court in Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edel-man, the Court does not question the view that Ex parte Young authorizes prospective relief. The court states: Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; [emphasis added] 415 U.S. 651, 663, 94 S.Ct. 1347, 1356. In light of these cases, the trial court’s denial of jurisdiction to grant prospective relief must be reversed. RETROACTIVE MONETARY RELIEF The trial judge was correct in granting summary judgment for defendant on plaintiff’s petition for retroactive monetary relief. In light of Edelman v. Jordan, decided subsequent to the district court’s opinion, the Eleventh Amendment bars an award of retroactive monetary relief against a state officiala unless the state has waived its Eleventh Amendment objection by consenting to suit. Since consent, according to Edelman, will not be inferred from state participation in a federal program, the Eleventh Amendment bars monetary relief. III. The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion. . The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any proper person : (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ; . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . Under Title IV of the Social Security Act of 1935, 42 U.S.C. §§ 601-644 (1970) as amended, the Aid to Families with Dependent Children Program was adopted by Delaware. 31 Del.C. §§ 321-331. . The district court initially granted defendant’s motion of summary judgment in 337 F.Supp. 350 (D.Delaware, 1972), Judge Gibbons’ reversal for failure to comply with proper notice requirements is found in 479 F.2d 603 (3rd Cir., 1973). On remand the Delaware district court issued a summary judgment which is the subject of the present appeal. 365 F.Supp. 179 (D.Del., 1973). . Plaintiff no longer seeks injunctive relief. . Meyer v. New Jersey, 460 F.2d 1252, 1253, (3rd Cir., 1972); United States ex rel. Cittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3rd Cir. 1969) cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); Fear v. Commonwealth of Pa., 413 F.2d 88, 89 (3rd Cir., 1969), cert. denied 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969). . The Eleventh Amendment of the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. . Although Justice Harlan’s remark mentions only Section 1343(3), the action was brought under both 28 U.S.C. 1343(3) and 42 U.S.C. 1983. Rosado v. Wyman, 304 F.Supp. 1356, 1361 (E.D.N.Y.1969). . The kind of Section 1983 relief resulting in individual liability for abuse of official authority was analyzed by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 171-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and in Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In the instant case the court ruled that defendants were not guilty of bad faith and therefore were not chargeable with any individual responsibility. Plaintiff-appellant has not challenged this holding. . The district court relied heavily on Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) and Francis v. Davidson, 340 F.Supp. 351 (D.Md.1972) (Three Judge Court) aff’d 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). Its reliance, however, was based on a misconception of these opinions. Judge Gignoux in the Wesfberry opinion indicated that if monetary relief is sought in a suit against a state official as the named defendant, the judgment must be enforced against the state treasury, unless there is proof that the individual official acted in bad faith. Although a challenge purports to be against the “person” of the state official, it is really an action against the state which must pay any money awards. The state is not a person and the suit is therefore barred. The district court in the instant case miseon-strued this Wesfberry theory by applying it with respect to prospective declaratory relief. Judge Gignoux was careful to conclude in Wesfberry that the Eleventh Amendment was also a major bar to a monetary recovery against a state official. Nowhere does the Wesfberry opinion apply the same rule with respect to prospective relief. The court in Francis v. Davidson reiterated the Westberry rationale. . Defendant appellee’s brief raises additional arguments for the denial of prospective relief. They also lack merit. First, appel-lee rightly indicates that denial of declaratory relief is a discretionary act which should be overruled only upon a finding of abuse of discretion. This contention is inajjpropriate in the instant case since the trial judge did not deny declaratory relief as a matter of discretion but because he felt compelled to do so under his reading of Section 1983. Additionally, appellee asserts that there is no case or controversy, a fallacious argument in light of the fact that members of plaintiff’s class are still welfare recipients and subject to defendant’s future interpretation of notice requirements. Defendant-appellee finally asserts that since Judge Gibbons’ earlier opinion was fully dis-positive of the merits of this case, the issue of notice has been resolved. As such, appel-lee claims there is no reason on the merits to deal with the problem of jurisdiction. This argument is specious. If it had been rendered, without proper jurisdiction, Judge Gibbons’ opinion would have been a nullity. . Appellant’s brief alleges in support of a request for monetary relief the fact t at some prospective orders may cost the state more money than do retroactive claims. In light of Justice Rehnquist’s majority opinion in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) this view is meritless. The Court states : As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State’s revenues, since the state law which t' e Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. . . . But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. [Emphasis added.] 415 U.S. 651, 665, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662. a. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) the Supreme Court dealt with a related issue. When a state official has been sued for monetary relief under Section 1983, a district court may not dismiss for want of jurisdiction on the basis of the Eleventh Amendment where the complaint can also be read to state a cause of action against the official in his individual capacity. . According to the Edelman majority, consent will not be inferred. The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity. ... In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171 [29 S.Ct. 458, 464, 53 L.Ed. 742] (1909) 415 U.S. 651, 671, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662. . The district court’s denial of retroactive monetary relief was based on the Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) theory that the state against whom a money judgment would be enforced is not a person under Section 1983. Unlike the district court in the instant case, Westberry then proceeded to ground its Section 1983 reasoning in the Eleventh Amendment (309 F. Supp. 12, 19). The Westberry interpretation of the Eleventh Amendment is reaffirmed in Edelman. There is no discussion of Section 1983 in Edelman.

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.

BOARD OF REGENTS OF STATE COLLEGES et al. v. ROTH No. 71-162. Argued January 18, 1972 Decided June 29, 1972 Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blacemun, and RehNQUist, JJ., joined. Burger, C. J., filed a concurring opinion, 'post, p. 603. Douglas, J., filed a dissenting opinion, post, p. 579. BrenNan, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 604. Marshall, J., filed a dissenting opinion, post, p. 587. Powell, J., took no part in the decision of the case. Charles A. Bleck, Assistant Attorney General of Wisconsin, argued the cause for petitioners. With him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General. Steven H. Steinglass argued the cause for respondent. With him on the brief were Robert L. Reynolds, Jr., Richard Perry, and Richard M. Klein. Briefs of amici curiae urging reversal were filed by Robert H. Quinn, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Morris M. Goldings for the Commonwealth of Massachusetts; by Evéíle J. Younger, Attorney General of California, Elizabeth Palmer, Acting Assistant Attorney General, and Donald B. Day, Deputy Attorney General, for the Board of Trustees of the California State Colleges; by J. Lee Rankin and Stanley Buchsbaum for the City of New York; and by Albert E. Jenner, Jr., Chester T. Kamin, and Richard T. Dunn for the American Council on Education et al. Briefs of amici curiae urging affirmance were filed by David Rubin, Michael H. Gottesman, George H. Cohen, and Warren Burnett for the National Education Association et al.; by Herman I. Orentlicher and William W. Van Alstyne for the American Association of University Professors; by John Ligtenberg and Andrew J. Leahy for the American Federation of Teachers; and by Richard L. Cates for the Wisconsin Education Association. Mr. Justice Stewart delivered the opinion of the Court. In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent completed that term. But he was informed that he would not be rehired for the next academic year. The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials. The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures. A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non-retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.” In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing. The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech. Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law. The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. 310 F. Supp. 972. The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. 446 F. 2d 806. We granted certiorari. 404 U. S. 909. The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not. I The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite. The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent’s interest in re-employment at Wisconsin State University-Oshkosh outweighed the University’s interest in denying him re-employment summarily. 310 F. Supp., at 977-979. Undeniably, the respondent’s re-employment prospects were of major concern to him — concern that we surely cannot say was insignificant. And a weighing processs has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. See Morrissey v. Brewer, ante, at 481. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property. “Liberty” and “property” are broad and majestic terms. They are among the “[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights. The Court has /'"also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process. Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words “liberty” and “property” in the Due Process Clause of the Fourteenth Amendment must be given some meaning. II “While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U. S. 497, 499-500; Stanley v. Illinois, 405 U. S. 645. There might be cases in which a State refused to reemploy a person under such circumstances that interests in liberty would be implicated. But this is not such a case. The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U. S. 433, 437. Wieman v. Updegraff, 344 U. S. 183, 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123; United States v. Lovett, 328 U. S. 303, 316-317; Peters v. Hobby, 349 U. S. 331, 352 (Douglas, J., concurring). See Cafeteria Workers v. McElroy, 367 U. S. 886, 898. In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s “good name, reputation, honor, or integrity” is at stake. Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. Por “[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . Joint Anti-Fascist Refugee Committee v. McCrath, supra, at 185 (Jackson, J., concurring). See Truax v. Raich, 239 U. S. 33, 41. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities “in a manner . . . that contravene [s] . . . Due Process,” Schware v. Board of Bar Examiners, 353 U. S. 232, 238, and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Committee on Character, 373 U. S. 96, 103. See Cafeteria Workers v. McElroy, supra, at 898. In the present case, however, this principle does not come into play. To be sure, the respondent has alleged that the non-renewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities. Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another. Cafeteria Workers v. McElroy, supra, at 895-896. Ill The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms. Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U. S. 254. See Flemming v. Nestor, 363 U. S. 603, 611. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U. S. 551, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U. S. 183, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle “proscribing summary dismissal from public employment without hearing or inquiry required by due process” also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U. S. 207, 208. Certain attributes of “property” interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so. Just as the welfare recipients’ “property” interest in welfare payments was created and defined by statutory terms, so the respondent’s “property” interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent’s employment was to terminate on June 30. They did not provide for contract renewal absent “sufficient cause.” Indeed, they made no provision for renewal whatsoever. Thus, the terms of the respondent’s appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment. IV Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution. We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Powell took no part in the decision of this case. [For concurring opinion of Mr. Chief Justice Burger, see post, p. 603.] [For dissenting opinion of Mr. Justice Brennan, see post, p. 604.] The respondent had no contract of employment. Rather, his formal notice of appointment was the equivalent of an employment contract. The notice of his appointment provided that: “David F. Both is hereby appointed to the faculty of the Wisconsin State University Position number 0262. (Location:) Oshkosh as (Rank:) Assistant Professor of (Department:) Political Science this (Date:) first day of (Month:) September (Year:) 1968.” The notice went on to specify that the respondent’s “appointment basis” was for the “academic year.” And it provided that “ [regulations governing tenure are in accord with Chapter 37.31, Wisconsin Statutes. The employment of any staff member for an academic year shall not be for a term beyond June 30th of the fiscal year in which the appointment is made.” See n. 2, infra. Wis. Stat. §37.31 (1) (1967), in force at the time, provided in pertinent part that: “All teachers in any state university shall initially be employed on probation. The employment shall be permanent, during efficiency and good behavior after 4 years of 'Continuous service in the state university system as a teacher.” Wis. Stat. §37.31 (1) further provided that: “No teacher who has become permanently employed as herein provided shall be discharged except for cause upon written charges. Within 30 days of receiving the written charges, such teacher may appeal the discharge by a written notice to the president of the board of regents of state colleges. The board shall cause the charges to be investigated, hear the case and provide such teacher with a written statement as to their decision.” The Rules, promulgated by the Board of Regents in 1967, provide: “RULE I — February first is established throughout the State University system as the deadline for written notification of non-tenured faculty concerning retention or non-retention for the ensuing year. The President of each University shall give such notice each year on or before this date.” “RULE II — During the time a faculty member is on probation, no reason for non-retention need be given. No review or appeal is provided in such case. “RULE III — 'Dismissal as opposed to 'Non-Retention’ means termination of responsibilities during an academic year. When a non-tenure faculty member is dismissed he has no right under Wisconsin Statutes to a review of his case or to appeal. The President may, however, in his discretion, grant a request for a review within the institution, either by a faculty committee or by the President, or both. Any such review would be informal in nature and would be advisory only. “RULE IV — When a non-tenure faculty member is dismissed he may request a review by or hearing before the Board of Regents. Each such request will be considered separately and the Board will, in its discretion, grant or deny same in each individual case.” While the respondent alleged that he was not rehired because of his exercise of free speech, the petitioners insisted that the non-retention decision was based on other, constitutionally valid grounds. The District Court came to no conclusion whatever regarding the true reason for the University President’s decision. “In the present case,” it stated, “it appears that a determination as to the actual bases of [the] decision must await amplification of the facts at trial. . . . Summary judgment is inappropriate.” 310 F. Supp. 972, 982. The courts that have had to decide whether a nontenured public employee has a right to a statement of reasons or a hearing upon nonrenewal of his contract have come to varying conclusions. Some have held that neither procedural safeguard is required. E. g., Orr v. Trinter, 444 F. 2d 128 (CA6); Jones v. Hopper, 410 F. 2d 1323 (CA10); Freeman v. Gould Special School District, 405 F. 2d 1153 (CA8). At least one court has held that there is a right to a statement of reasons but not a hearing. Drown v. Portsmouth School District, 435 F. 2d 1182 (CAI). And another has held that both requirements depend on whether the employee has an “expectancy” of continued employment. Ferguson v. Thomas, 430 F. 2d 852, 856 (CA5). Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, “except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Boddie v. Connecticut, 401 U. S. 371, 379. “While '[m]any controversies have raged about . . . the Due Process Clause,’ ... it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate [a protected] interest ... , it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” Bell v. Burson, 402 U. S. 535, 542. For the rare and extraordinary situations in which we have held that deprivation of a protected interest need not be preceded by opportunity for some kind of hearing, see, e. g., Central Union Trust Co. v. Garvan, 254 U. S. 554, 566; Phillips v. Commissioner, 283 U. S. 589, 597; Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594. “The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Boddie v. Connecticut, supra, at 378. See, e. g., Goldberg v. Kelly, 397 U. S. 254, 263; Hannah v. Larche, 363 U. S. 420. The constitutional requirement of opportunity for some form of hearing before deprivation of a protected interest, of course, does not depend upon such a narrow balancing process. See n. 7, supra. In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that public employment in general was a “privilege,” not a “right,” and that procedural due process guarantees therefore were inapplicable. Bailey v. Richardson, 86 U. S. App. D. C. 248,182 F. 2d 46, aff’d by an equally divided Court, 341 U. S. 918. The basis of this holding has been thoroughly undermined in the ensuing years. For, as MR. Justice BlackmuN wrote for the Court only last year, “this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right’ or as a ‘privilege.’ ” Graham v. Richardson, 403 U. S. 365, 374. See, e. g., Morrissey v. Brewer, ante, at 482; Bell v. Burson, supra, at 539; Goldberg v. Kelly, supra, at 262; Shapiro v. Thompson, 394 U. S. 618, 627 n. 6; Pickering v. Board of Education, 391 U. S. 563, 568; Sherbert v. Verner, 374 U. S. 398, 404. See, e. g., Connell v. Higginbotham, 403 U. S. 207, 208; Bell v. Burson, supra; Goldberg v. Kelly, supra. “Although the Court has not assumed to define ‘liberty’ [in the Fifth Amendment’s Due Process Clause] with any great precision, that term is not confined to mere freedom from bodily restraint.” Bolling v. Sharpe, 347 U. S. 497, 499. See, e. g., Stanley v. Illinois, 405 U. S. 645. The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons. The District Court made an assumption “that non-retention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career.” 310 F. Supp., at 979. And the Court of Appeals based its affirmance of the summary judgment largely on the premise that “the substantial adverse effect non-retention is likely to have upon the career interests of an individual professor” amounts to a limitation on future employment opportunities sufficient to invoke procedural due process guarantees. 446 F. 2d, at 809. But even assuming, arguendo, that such a “substantial adverse effect” under these circumstances would constitute a state-imposed restriction on liberty, the record contains no support for these assumptions. There is no suggestion of how nonretention might affect the respondent’s future employment prospects. Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of “liberty.” Cf. Schware v. Board of Bar Examiners, 353 U. S. 232. See n. 5, supra. The Court of Appeals, nonetheless, argued that opportunity for a hearing and a statement of reasons were required here “as a prophylactic against non-retention decisions improperly motivated by exercise of protected rights.” 446 F. 2d, at 810 (emphasis supplied). While the Court of Appeals recognized the lack of a finding that the respondent’s nonretention was based on exercise of the right of free speech, it felt that the respondent’s interest in liberty was sufficiently implicated here because the decision not to rehire him was made “with a background of controversy and unwelcome expressions of opinion.” Ibid. When a State would directly impinge upon interests in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Carroll v. Princess Anne, 393 U. S. 175. Similarly, we have indicated the necessity of procedural safeguards before a State makes a large-scale seizure of a person’s allegedly obscene books, magazines, and so forth. A Quantity of Books v. Kansas, 378 U. S. 205; Marcus v. Search Warrant, 367 U. S. 717. See Freedman v. Maryland, 380 U. S. 51; Bantam Books v. Sullivan, 372 U. S. 58. See generally Monaghan, First Amendment “Due Process,” 83 Harv. L. Rev. 518. In the respondent’s case, however, the State has not directly impinged upon interests in free speech or free press in any way comparable to a seizure of books or an injunction against meetings. Whatever may be a teacher’s rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest. Goldsmith v. Board of Tax Appeals, 270 U. S. 117, is a related case. There, the petitioner was a lawyer who had been refused admission to practice before the Board of Tax Appeals. The Board had “published rules for admission of persons entitled to practice before it, by which attorneys at law admitted to courts of the United States and the States, and the District of Columbia, as well as certified public accountants duly qualified under the law of any State or the District, are made eligible. . . . The rules further provide that the Board may in its discretion deny admission to any applicant, or suspend or disbar ^ny person after admission.” Id., at 119. The Board denied admission to the petitioner under its discretionary power, without a prior hearing and a statement of the reasons for the denial. Although this Court disposed of the case on other grounds, it stated, in an opinion by Mr. Chief Justice Taft, that the existence of the Board’s eligibility rules gave the petitioner an interest and claim to practice before the Board to which procedural due process requirements applied. It said that the Board’s discretionary power “must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.” Id., at 123. To be sure, the respondent does suggest that most teachers hired on a year-to-year basis by Wisconsin State University-Oshkosh are, in fact, rehired. But the District Court has not found that there is anything approaching a “common law” of re-employment, see Perry v. Sindermann, post, at 602, so strong as to require University officials to give the respondent a statement of reasons and a hearing on their decision not to rehire him. See, e. g., Report of Committee A on Academic Freedom and Tenure, Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, 56 AAUP Bulletin No. 1, p. 21 (Spring 1970). Section. 1983 reads as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.

What is the issue of the decision?

UNITED STATES v. MOORMAN et al., doing business as J. W. MOORMAN & SON. No. 97. Argued December 6, 1949. Decided January 9, 1950. Morton Liftin argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney. V. J. Bodovitz argued the cause for respondents. With him on the brief was F. A. Bodovitz. Mr. Justice Black delivered the opinion of the Court. The questions presented relate to the interpretation and validity of terms in a government construction contract providing that in contractual disputes the decisions of the Secretary of War or his authorized representative shall be final and binding. The respondent partnership entered into a standard form contract with the United States to grade the site of a proposed aircraft assembly plant. Article 1 of the contract provided for payment of 24 cents per cubic yard of grading, satisfactorily completed “in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof . . . .” A proposed taxiway was shown on the drawings but was not located within the plant site as described in the specifications. The present controversy concerns the question of whether the contract required respondent to grade this taxiway. On demand of the Government, respondent graded for the taxiway at the point shown on the drawings. It then filed a claim with the contracting officer asking extra compensation, 84 cents per cubic yard instead of the 24 cents specified in the contract. Upon investigation the contracting officer made findings of fact which led him to reject respondent’s claim. Appeal was taken to the Secretary of War, whose authorized representative also considered the facts and denied the claim. According to Par. 2-16 (a) of the specifications, such a denial is “final and binding upon the parties” when a contractor claims as here that work demanded is “outside the requirements of the contract.” Notwithstanding the foregoing provision that the Secretary of War’s decision is final and binding, respondent brought this action in the Court of Claims to recover the extra compensation. He there contended that his right to challenge such administrative findings was measured by Art. 15 of the contract, not by Par. 2-16 of the specifications. Article 15 makes a department head’s decision “final and conclusive upon the parties” only when such disputes are over “questions of fact.” Respondent, alleging that the dispute here was over the proper “interpretation” of the contract, argues that how a contract shall be interpreted is not a “question of fact” but a “question of law.” Adding this premise to his assumption that Art. 15 alone governed finality of this administrative decision, respondent contended that the Court of Claims could reconsider the facts, make new findings as a basis for its “interpretation,” and then overturn the administrative decision. The Court of Claims did all three. On the basis of its new findings and “interpretation,” the court entered a money judgment for respondent computed at 59.3 cents per cubic yard for the taxiway grading. 113 Ct. Cl. 159, 82 F. Supp. 1010. In petitioning for certiorari the Solicitor General represented that this decision plus previous ones of the Court of Claims had “weakened and narrowed the effectiveness of the well-established policy of the Government to settle, without expensive litigation, disputes arising under its contracts”; and that the total effect of the decisions was to “add further doubt and confusion to the authority of designated officers of the United States to make final decisions under government contracts.” We granted certiorari. 338 U. S. 810. First. Contractual provisions such as these have long been used by the Government. No congressional enactment condemns their creation or enforcement. As early as 1878 this Court emphatically authorized enforcement of contractual provisions vesting final power in a District Quartermaster to fix distances, not clearly defined in the contract, on which payment for transportation was based. Kihlberg v. United States, 97 U. S. 398. Five years later Sweeney v. United States, 109 U. S. 618, upheld a government contract providing that payment for construction of a wall should not be made until an Army officer or other agent designated by the United States had certified after inspection that “it was in all respects as contracted for.” And in Martinsburg & Potomac R. Co. v. March, 114 U. S. 549, this Court enforced a contract for railroad grading which broadly provided that the railroad’s chief engineer should in all cases “determine the quantity of the several kinds of work to be paid for under the contract, . . . decide every question which can or may arise relative to the execution of the contract, and ‘his estimate shall be final and conclusive.’ ” Id. at pp. 551-552. In upholding the conclusions of the engineer the Court emphasized the duty of trial courts to recognize the right of parties to make and rely on such mutual agreements. Findings of such a contractually designated agent, even where employed by one of the parties, were held “conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith.” Id. at p. 555. The holdings of the foregoing cases have never been departed from by this Court. They stand for the principle that parties competent to make contracts are also competent to make such agreements. The Court of Claims departed from this established principle in McShain v. United States, 88 Ct. Cl. 284, where it refused to recognize as final the decision of a contracting officer, even though the Government and contractor had agreed that his decision should be final. The Court of Claims’ holding was based on its conclusion that the contracting officer’s decision had been reached by “interpretation of the contract, drawing, and specifications,” and that parties were incompetent to make such decisions binding except as to questions of fact. Its holding was considered such a departure from established contract law that this Court summarily reversed in a per curiam opinion citing only two of the many prior cases on the subject. One of the cited cases had enforced a contract provision that “the decision of the Supervising Architect as to the proper interpretation of the drawings and specifications shall be final.” Merrill-Ruckgaber Co. v. United States, 241 U. S. 387, 393. Similar agreements have been held enforceable in almost every state. See cases collected in Note, 54 A. L. R. 1255 et seq. In one state, Indiana, the courts do seem to hold differently, on the ground that permitting engineers or other persons to make final determinations of contractual disputes would wrongfully deprive the parties of a right to have their controversies decided in courts. See cases collected in Note, 54 A. L. R. 1270-1271. In the McShain case we rejected a contention that this Court should adopt a rule like Indiana’s and we reject it now. It is true that the intention of parties to submit their contractual disputes to final determination outside the courts should be made manifest by plain language. Mercantile Trust Co. v. Hensey, 205 U. S. 298, 309. But this does not mean that hostility to such provisions can justify blindness to a plain intent of parties to adopt this method for settlement of their disputes. Nor should such an agreement of parties be frustrated by judicial “interpretation” of contracts. If parties competent to decide for themselves are to be deprived of the privilege of making such anticipatory provisions for settlement of disputes, this deprivation should come from the legislative branch of government. Second. We turn to the contract to determine whether the parties did show an intent to authorize final determinations by the Secretary of War or his representatives in this type of controversy. If the determination here is considered one of fact, Art. 15 of the contract clearly makes it binding. But while there is much to be said for the argument that the “interpretation” here presents a question of fact, we need not consider that argument. For a conclusion that the question here is one of law cannot remove the controversy from the ambit of Par. 2-16 of the specifications. That section expressly covers all claims by a contractor who, like respondent here, “considers any work demanded of him to be outside the requirements of the contract . . . .” The parties incorporated it into the specifications and made the specifications part of the contract, all of which they had a legal right to do. The section is neither in conflict with nor limited by Art. 15, for the latter expressly excepts from its coverage such special methods of settlement “otherwise specifically provided in this contract.” The oft-repeated conclusion of the Court of Claims that questions of “interpretation” are not questions of fact is ample reason why the parties to the contract should provide for final determination of such disputes by a method wholly separate from the fact-limited provisions of Art. 15. To hold that the parties did not so “intend” would be a distortion of the interpretative process. The language of Par. 2-16 is clear. No ambiguities can be injected into it by supportable reasoning. It states in language as plain as draftsmen could use that findings of the Secretary of War in disputes of the type here involved shall be “final and binding.” In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. “If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and in detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing, thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Secretary of War, whose decision or that of his duly authorized representative shall be final and binding upon the parties to the contract. . . .” Paragraph 2-16 of the specifications. “Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” Article 15 of the contract. These and other representations in the petition for certiorari in this case are substantially identical with representations made by the Solicitor General in asking this Court to review a former Court of Claims judgment reported in 88 Ct. Cl. 284. The case there, it was urged, seemed to be the “culmination of a recent tendency in the Court of Claims to whittle away the authority of designated officers of the United States to make final decisions under contracts.” It was insisted that “At least, we submit, the power of the Government to make effective contracts of this character should not be so circumscribed except by decision of this Court.” We granted that petition and reversed the judgment without oral argument in a per curiam opinion. United States v. McShain, 308 U. S. 512. United States v. McShain, 308 U. S. 512.

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.

What is the issue of the decision?

UNITED STATES of America, Plaintiff-Appellee, v. Noel Cesar CAMPOS-ASENCIO, Defendant-Appellant. No. 86-2910 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 9, 1987. Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Karin I. Converse, Asst. Federal Public Defenders, Houston, Tex., for defendant-appellant. James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, Frances H. Stacy, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee. Before REAVLEY, JOHNSON, and DAVIS, Circuit Judges. JOHNSON, Circuit Judge: Noel Cesar Campos-Asencio (Campos) appeals his conviction for illegal reentry into the United States after deportation. 8 U.S.C. § 1326. At trial, the district court denied Campos’ motion to dismiss the indictment on the ground that he lacked counsel at his prior deportation hearing. Because a recent Supreme Court case has changed this Circuit’s law on the viability of such challenges, we reverse and remand so that the district court may reconsider Campos’ deportation proceedings. I. BACKGROUND Campos, a citizen of El Salvador, was deported from the United States to his homeland on October 6, 1985. As discussed below, no other facts surrounding this 1985 deportation were established at trial. A deported alien may apply for the Attorney General’s consent to reenter, but INS records show no such application by Campos, and Campos does not claim that he did apply for reentry. Instead, on July 19, 1986, he crossed the border on foot and was apprehended the same night. Campos was convicted of illegal reentry following deportation and sentenced to time served and four years’ probation. Soon after Campos was deported to El Salvador. II. DISCUSSION A. The Indictment The statute under which Campos was convicted reads: Any alien who— (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both. 8 U.S.C. § 1326 (emphasis added). The indictment makes no explicit reference to a lack of Attorney General consent for reentry; it recites: That on or about July 19, 1986, NOEL CESAR CAMPOS-ASENCIO, an alien who had theretofore been arrested and deported from the United States on or about October 6, 1985, was found in the United States in the Southern District of Texas, being wilfully in the United States unlawfully, in violation of Section 1326, Title 8, United States Code. Record Vol. 1 at 1. The Government presented records, at trial, to show that Campos in fact lacked the Attorney General’s consent to reenter the country. Campos did not dispute this evidence. For the first time on appeal, Campos argues that this failure to explicitly allege lack of consent renders the indictment insufficient. While normally objections to an indictment are waived if not made before trial, a defendant may at any time claim that an indictment fails to “charge an offense.” Fed.R.Crim.P. 12(b)(2); United States v. Oberski, 734 F.2d 1034, 1035 (5th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985). However, when, as here, the defendant had notice of the issue, demonstrates no prejudice, and waits for appeal to assert his challenge, an appellate court will read the indictment liberally. Oberski, 734 F.2d at 1035; 2 W. LaFave & J. Israel, Criminal Procedure 445-51. A statutory citation cannot, by itself, substitute for setting forth the elements of the crime, but a citation may reinforce other references within the indictment. United States v. McLennan, 672 F.2d 239, 244 (1st Cir.1982). The indictment in the instant case both alleges that Campos was in the United States “unlawfully” and points to the specific statute containing the lack of consent requirement. Hence the indictment sufficiently alleges lack of consent. B. Attack on Prior Deportation Campos attacks the use of his 1985 deportation on the grounds that he was not represented by counsel at the deportation hearing, was not informed of his right to counsel and of the availability of free legal help, and did not waive counsel. At the time the district court heard Campos’ case, this Court prohibited such “collateral” attacks on deportation orders. United States v. De La Cruz Sepulveda, 656 F.2d 1129, 1131 (5th Cir.1981); United States v. Gonzalez-Parra, 438 F.2d 694, 697 (5th Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971). Relying on these precedents, the district court refused to consider Campos’ attack on his deportation. Between Campos’ trial and the instant appeal, however, the Supreme Court has authorized collateral attacks on deportation orders in prosecutions under 8 U.S.C. § 1326. United States v. Mendoza-Lopez, — U.S. -, 107 S.Ct. 2148, 95 L.Ed.2d 772 (U.S. 1987). The Court characterized prior deportation as an enhancement element, raising an illegal entry from a misdemeanor to a felony. Id., 107 S.Ct. at 2156 n. 18. An alien accused under section 1326 is in an analogous position to a defendant whose misdemeanor conviction is enhanced to a felony because of a prior uncounselled misdemeanor conviction. Id., citing Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). “[Wjhere a determination made in an administrative proceeding [, e.g., a deportation hearing,] is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” Id., 107 S.Ct. at 2154. The alien must be able to raise errors in the prior deportation proceeding if the errors are “so fundamental that they may functionally deprive the alien of judicial review.” Id., 107 S.Ct. at 2155 n. 17. If the alien can establish such errors, the prior deportation will not be overturned, but the Government may not use that deportation to increase the punishment for illegal reentry. Id. In Mendoza-Lopez, the Supreme Court accepted the district court’s finding that the defendants were not adequately informed of their rights to appeal and to request suspension of deportation. Id., 107 S.Ct. at 2151. The Court did not specify what other errors would support a collateral attack. Id., 107 S.Ct. at 2155 n. 17. The final issue before this Court is whether a failure to inform Campos of his right to counsel and of the availability of free counsel, if proven, would be the kind of error envisioned in Mendoza-Lopez. Because deportation is a civil proceeding, potential deportees have no sixth amendment right to counsel. Mantell v. United States Department of Justice, I.N.S., 798 F.2d 124, 127 (5th Cir.1986); Paul v. United States I.N.S., 521 F.2d 194, 197 (5th Cir.1975). However, an alien has a right to counsel if the absence of counsel would violate due process under the fifth amendment. Mantell, 798 F.2d 127; Paul, 521 F.2d at 197. Other circuits have reached the same conclusion. See, e.g., Magallanes-Damian v. I.N.S., 783 F.2d 931, 933 (9th Cir.1986); Cobourne v. I.N.S., 779 F.2d 1564, 1566 (11th Cir.1986); Castaneda-Delgado v. I.N.S., 525 F.2d 1295, 1300 (7th Cir.1975). Aliens also have a statutory right to counsel, although not at Government expense, and I.N.S. regulations provide that aliens be told of this right and given a list of free legal services. 8 U.S.C. § 1252(b)(2); 8 C.F.R. § 242.1(c) (1987). This Court has reversed a deportation order in a case where the alien, although informed of her right to counsel, “waived her rights without being provided with any understanding by the immigration judge of the complexity of her dilemma and without any awareness of the cogent legal arguments which could have been made on her behalf.” Partible v. I.N.S., 600 F.2d 1094, 1096 (5th Cir.1979). The Partible Court stressed that the laws and regulations determining Partible’s deportability were too complex for a pro se alien, and that “the outcome of the proceeding may have been different if counsel had been present.” Id. Ordinarily, a case overturning established precedent in this Circuit would be set for oral argument. However, at this stage of the case, an oral argument panel could do no more than reaffirm two now indisputable abstract propositions: that Mendoza-Lopez allows some collateral attacks on prior deportation orders, and that, under Partible, some deprivations of counsel justify reversal of deportation orders. In the instant case the difficult question is whether the deprivation of counsel, if any, amounted to denial of due process. The record before this Court at the present time is so sparse that this Court cannot even determine whether Campos in fact had counsel at his 1985 deportation hearing. In the interest of the proper administration of justice, it is preferable that the present case be remanded to the district court, without expressing an opinion on the ultimate outcome. Supplied with the facts, this Court may then properly review the district court determinations in an appeal after remand, should there be one. On remand, the district court must determine: whether Campos was in fact represented by counsel at his 1985 deportation hearing; if not, whether Campos was informed of his right to representation and given a reasonable chance to exercise that right; whether Campos competently waived that right; and whether these deprivations, if established, prejudiced Campos by rendering the deportation hearing fundamentally unfair or denying Campos judicial review under the new Mendoza-Lopez standard. Mendoza-Lopez overturned this Court’s precedents blocking attacks on prior deportation proceedings in criminal trials under 8 U.S.C. § 1326. Campos’ conviction is, therefore, REVERSED, and the case is REMANDED to the district court with directions to reconsider Campos’ claims concerning his 1985 deportation. . Having held that the indictment did adequately refer to lack of consent, we need not decide whether lack of consent is so essential an element of the crime that an omission would rise to failure to "charge an offense” under Fed.R. Crim.P. 12(b)(2). We note, however, that the requirement appears in a clause beginning "unless” and apparently operates as an exception to criminal liability. 8 U.S.C. § 1326(2). This Court has, in dicta, listed lack of consent as an element of the crime of reentry after deportation. United States v. Wong Kim Bo, 466 F.2d 1298, 1303 (5th Cir.1972). Courts in other circuits have not recognized lack of consent as an element of the crime. Pena-Cabanillas v. United States, 394 F.2d 785, 789 (9th Cir.1968). This Court has also held that an unobjected-to failure to mention lack-of-consent specifically in jury instructions did not rise to the level of plain error. United States v. Oris, 598 F.2d 428, 430 (5th Cir.), cert. denied, 444 U.S. 945, 100 S.Ct. 304, 62 L.Ed.2d 313 (1979). . The Government states that Campos conceded that he was informed of his right to hire a lawyer. However, Campos’ counsel stated oi.ly that Campos lacked the money to employ a lawyer at the earlier deportation hearing; counsel did not concede that Campos was informed of his right to counsel, was given a list of available free counsel, or waived counsel. Record Vol. 2 at 3. The district court found that there was no evidence that Campos had counsel or waived counsel. Record Vol. 2 at 71.

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?

NATIONAL INDIAN YOUTH COUNCIL, INTERMOUNTAIN INDIAN SCHOOL CHAPTER, an unincorporated association, et al., Plaintiffs-Appellants, v. Louis R. BRUCE et al., Defendants-Appellees. No. 73-1168. United States Court of Appeals, Tenth Circuit. Argued and Submitted Aug. 14, 1973. Decided Sept. 26, 1973. Richard L. Young, Native American Legal Defense & Education Fund, Inc., Albuquerque, N. M., for plaintiffs-appellants. Robert L. Klarquist, Dept. of Justice, Washington, D. C. (George R. Hyde, Dept. of Justice, Washington, D. C., C. Nelson Day, U. S. Atty., H. Ralph Klemm, Asst. U. S. Atty., Wallace H. Johnson, Asst. Atty. Gen., Salt Lake City, Utah, on the brief), for defendants-appellees. Before BARNES, BREITENSTEIN and BARRETT, Circuit Judges. Honorable Stanley N. Barnes, Senior Judge of the Ninth Circuit, sitting by designation. BARRETT, Circuit Judge. Plaintiffs below appeal from the dismissal of their amended complaint wherein they sought to close Intermountain School, a Navajo boarding school located in Brigham City, Utah, operated by the Bureau of Indian Affairs (BIA) of the Department of the Interior. Appellant National Indian Youth Council (NIYC), Intermountain School Chapter, was organized on January 28, 1971. It is a member of a national non-profit corporation with chapters located at BIA boarding schools and other schools across the United States. NIYC was organized to combat by peaceful, non-violent means, the discrimination, racism, and other social problems affecting Indians in general and Navajos at Intermountain School in particular. Appellant Teddy K. Austin and the other individual appellants were students at Intermountain School at the time this action was brought. They are four of the “16-30” NIYC members at Inter-mountain School. The individual defendants-appellees are officials and employees of the BIA, with the exception of E. A. Leopardi, who is an employee of the Public Health Service. Intermountain School was created by Congress, Act of March 17, 1949, c. 22, 63 Stat. 14. The premises include what was formerly Bushnell General Hospital, a World War II military facility. The 1949 Act transferred the premises from the War Assets Administration to the Department of the Interior. Attendance at the school is predicated on a written application submitted by a student or guardian accompanied by the parents’ consent. Approximately 1,500 Navajo students were enrolled at the school when this action was commenced. The school has been endorsed by the Navajo Tribal Educational Committee “as long as the need exists” for educating “retarded two or more grades” students at off-reservation federal schools. The original complaint alleged that the operation of Intermountain School was in violation of the Navajo Treaty of 1868, that it was racially segregated in violation of the Fifth Amendment, and that many of the practices and policies of the school were violative of appellants’ constitutional rights. This complaint was dismissed with leave to amend. In its order dismissing, the trial court held that the suit was improper because of the plaintiffs’ inability to escape the effects of the doctrine of sovereign immunity, their failure to exhaust available administrative remedies, and their failure to set forth allegations in “short and plain” statements as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure. The amended complaint presented seven causes of action. The first six were directed to the proposition that Inter-mountain School should be eliminated as a Navajo school and replaced with adequate school facilities on the reservation. The seventh was an attack on a “variety of school policies and practices which are illegal.” Again the trial court dismissed, holding that the amended complaint did not overcome the effects of the doctrine of sovereign immunity and for failure to exhaust available administrative remedies. The trial court noted that the amended complaint was “for the most part, merely a restatement of the original complaint, fraught with the same errors and imprecision.” Appellants have set forth numerous allegations of error on appeal. We will consider only whether the trial court properly applied the doctrine of sovereign immunity in ordering dismissal of the amended complaint. We hold that the Court did not err. See National Indian Youth Council v. Bruce, 366 F.Supp. 313 (D.Utah 1973). United States District Courts are courts of limited jurisdiction. McCord v. Dixie Aviation Corporation, 450 F.2d 1129 (10th Cir. 1971). No presumptions of federal jurisdiction exist. Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972). Courts may not entertain uneonsented suits which, though nominally against officers of the United States, are in reality against the Government itself. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971). The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” Land v. Dollar, 330 U.S. 731, 738 [67 S.Ct. 1009, 1012, 91 L.Ed. 1209] (1947), or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.” Larson v. Domestic & Foreign Corp., supra, [337 U.S. 682] at 704 [69 S.Ct. 1457, 93 L.Ed. 1628]; Ex parte New York, 256 U.S. 490, 502 [41 S.Ct. 588, 65 L.Ed. 1057] (1921). Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. at 1006. This action was clearly one against the United States, even though it was not sued in its' sovereign capacity. The judgment sought would expend itself on the federal treasury. The United States did not consent to be sued. The trial court was without jurisdiction. District courts are also without jurisdiction when confronted with nonjusticiable political questions, such as determining the status of Indian tribes. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Congress has exclusive plenary legislative authority over Indians and all of their tribal relations. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). This court has recognized the plenary power of Congress to control and manage the affairs of its Indian wards. Wolfe v. Phillips, 172 F.2d 481 (10th Cir. 1949), cert. denied 336 U.S. 968, 69 S.Ct. 941, 93 L.Ed. 1119 (1949); Taylor v. Tayrien, 51 F.2d 884 (10th Cir. 1931). The trial court’s dismissal is further buttressed by the rule that great deference should be afforded to interpretations by the agency charged with the duty of carrying out statutory mandates. Udall, Secretary of the Interior v. Tailman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968). Credence should be particularly accorded those who are working with treaties. Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961). Courts cannot substitute their judgment for that of those working with Indians, empowered to exercise discretion. Board of Com’rs of Pawnee County, Okl. v. United States, 139 F.2d 248 (10th Cir. 1943). In no event should a court direct the manner in which discretionary acts are to be performed, nor may it direct or influence the exercise of discretion in making that decision. McQueary v. Laird, supra,. Recognizing then, as we must, the lack of jurisdiction of the trial court in light of the sovereign immunity of the United States, the plenary legislative power of Congress over Indian affairs, and the discretionary authority delegated by Congress to those charged with carrying out statutory dictates relating to Indian affairs, we hold that the trial court did not err in dismissing the amended complaint. Affirmed. . Article VI of the Treaty provides : In order to insure the civilization of the Indians entering into this treaty, the necessity of education is admitted, especially of such of them as may be settled on said agricultural parts of this reservation, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent for said Indians to see that this stipulation is strictly complied with; and the United States agrees that, for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher. 15 Stat. 667

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?

CHESAPEAKE & OHIO RY. CO. v. MOORE. No. 4779. Circuit Court of Appeals, Seventh Circuit. March 16, 1933. Albert H. Cole, of Peru, Ind., for appellant. Chester L. Teeter and Lloyd Hartzler, both of Fort Wayne, Ind., for appellee. Before EVANS and SPARKS, Circuit Judges, and WTLKERSON, District Judge. SPARKS, Circuit Judge (after stating the facts as above). The first question presented for our consideration is one of jurisdiction. The first paragraph of complaint does not allege diversity of citizenship, but it alleges that the action is brought under aud by virtue of an Act of Congress, approved April 22, 1908, which is known as the Federal Employers’ Liability Act, §§ 1, 3, and 4, e. 149, 35 Stat. 05, 66; 45 USCA §§ 51, 53, and 51; and also section 6 of that act as amended April 5, 1910, § 1, c. 143, 36 Stats. 291, 45 USCA § 56. It is also alleged that the first paragraph is brought under and by virtue of an Act of Congress (approved March 2, 1893) known as the Federal Safety Appliance Act (sections 2 and 8, c. 196, 27 Stats. 531 and 532 [45 USCA §§ 2 and 7] ; and section 1, c. 976, 32 Stat. 943 [45 USCA § 8]), and the orders promulgated thereunder by the Interstate Commerce Commission (Order of March 33, 1911, Roberts’ Federal Liabilities of Carriers, Vol. 2, pp. 2010, 2016). It will be observed that the Employers’ Liability Act deals exclusively with acts of negligence, while the Safety Appliance Act is not based upon negligence of the employer, but it imposes a duty upon the employer with relation to ear couplers, the violation of which duty «aiders tho employer liable to tho employee for proximate damages arising therefrom, regardless of employer’s negligence. The jurisdiction and venue of causes of aetion brought under tho Safety Appliance Act are governed by section 51 of the Judicial Code, 28 USCA § 112, and in so far as it applies to this action is as follows: “ * " * No civil suit shall bo brought in any district court against any person by any original process or proceeding in any other district than that whereof ho is an inhabitant; but where the jurisdiction is founded only on tho fact that the action is between citizens of different States, suit shall he brought only in the district of the residence of either the plaintiff or the defendant.” Diversity of citizenship not having been pleaded in the first paragraph, the cause of action therein stated, in so far as it relies upon a violation of the Safety Appliance Act as a basis, must bo brought in the district of appellant’s residence. McCormick Harvesting Machine Co. v. Walthers, 134 U. S. 41, 10 S. Ct. 485, 33 L. Ed. 833; In re Keasbey & Mattison Co., 160 U. S. 221, 16 S. Ct. 273, 40 L. Ed. 402; Whittaker v. Illinois Central R. Co. (C. C.) 176 F. 130; Steidle v. Reading Co. (C. C. A.) 24 F.(2d) 299. Appellee, however, relics on amended section 6 of the Employers’ Liability Act, 45 USCA § 56 (supra) to sustain the trial court’s jurisdiction, which provides that actions under that Act may, in plaintiff’s discretion, be brought in a District Court of the United States in the district of defendant’s residence, or in which the defendant shall be doing business, or in which the cause of aetion arose. It was the duty of the trial court to determine tho theory of the complaint. It did so, and instructed the jury that the first paragraph was based upon tho Safety Appliance Act, and we think the court was right in this respect. Appellee alleged ■ in this paragraph that the cause of action was brought under and by virtue of both acts, and also under the rules promulgated by the. Interstate Commerce Commission under the Safely Appliance Act. Regardless of what might have been the opinion of the court as to the theory of this paragraph when it overruled the plea in abatement, if indeed at that time it could have definitely determined the theory, its instruction to the jury in this respect was abundantly justified by tho evidence, and was in no wise contrary to it; for every wrongful act complained of and supported by evidence, if trae, constituted a violation of the Safety Ap-plianee Act or the rulos of the Interstate Commerce Commission promulgated thereunder. In support of its contention in this respect, appellee relies upon San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U. S. 476, 36 S. Ct. 626, 630, 60 L. Ed. 1110. The cause of action therein stated was based upon the Employers’ Liability Act, and the evidence showed a failure to comply with the Safety Appliance Act with respect to a car coupler. It was there argued that in actions based upon the Employers’ Liability Act the defendant could not be held liable without evidence of negligence. The court held that that’Act and the Safety Appliance Act “are in pwi materia, and where the Employers’ Liability Act refers to ‘any defect or insufficiency, ckoe to its negligence, in its ears, engines, appliances,’ etc., it clearly is the legislative intent to treat a violation of the Safety Appliance Act as ‘negligence’ — what is sometimes called negligence per se.” That case originated in the State of Texas and came to the Supreme Court of the United States by writ of error to the Supreme Court of that state ([Tex. Civ. App.] 166 S. W. 24). No question of venue or jurisdiction was raised, and we find in that opinion nothing inconsistent with our ruling in this case. The second paragraph of complaint alleges diversity of citizenship, but does not allege that it is based on the Employers’ Liability Act. It alleges that it is brought under and by virtue of the Federal Safety Appliance Acts and the rules of the Interstate Commerce Commission promulgated thereunder, and also under and by virtue of the statutes of Kentucky. Notwithstanding those allegations appellee now contends that this paragraph should not and cannot be construed to have been founded on the Safety Appliance Act, and that his reference to it in this paragraph was only "to supply the negligence, with certainty, required by the Kentucky Employers’ Liability Act.” Assuming that the second paragraph is based exclusively upon the Kentucky Statutes, it then becomes quite clear that those statutes and the Safety Appliance Act cannot be considered pwi materia, because the requirements of the latter act and the orders promulgated thereunder by the United States Interstate Commerce Commission, apply only to interstate commerce, while the second paragraph alleges that at the time of the injury both parties were engaged in intrastate commerce. If under this paragraph, as suggested by appellee, he be permitted thus “to supply the negligence, with certainty, as required by the Kentucky Employers’ Liability Act,” this court would be thereby placed in the anomalous position of extending the benefits of the Safety Appliance Act to intrastate commerce. We are convinced that appellee in his second paragraph attempted to state a cause of action under the Federal Safety Appliance Act as well as under the Statutes of Kentucky, and he alleged facts therein which, if true, constituted a ground for Federal jurisdiction other than diversity of citizenship. Indeed, the court instructed the jury that appellee could not recover unless violation of the Federal Safety Appliance Act had been proven. That being the ease, jurisdiction and venue were in the district of appellant’s residence and not in the Northern District of Indiana. The judgment is reversed and the eause remanded with instructions to grant appellee permission to amend his first paragraph of complaint, if he so desires, to conform exclusively to the theory that the acts complained of constitute a violation of the Federal Employers’ Liability Act, and to amend his second paragraph of complaint, if he so desires, to conform exclusively to the theory that the acts complained of constitute a violation of the Employers’ Liability Act of the State of Kentucky, and for further proceedings not inconsistent with this opinion. Federal Employers’ Liability Act. 45 USCA § 51. “Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whale or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 USCA § 53. “In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, * * * the fact that the employee may have boon guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to iho amount of negligence attributable to such employee. '• * ” 45 USCA § 51. “In any action brought against any common carrier under or by virtu© of any of tho provisions of this chapter to recover damages for injuries to- * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to tho injury or death of such employee.” 45 USCA § 56. * * * Under this chapter an action may be brought in a district comt of tho United States, in the distinct of the residence of tho defendant, or in which the causo of action arose, or in which the defendant shall bo doing business at the time of commencing such action. * * * ” Safety Appliance Act. 45 USCA § 2. “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to bo hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without tho necessity of men going between the ends of the cars.” 45 CJSCA § 7. “Any employee of any common carrier engaged in interstate commerce by railroad who may be injured by any locomotive, car, or train in use contrary to the provision of this chapter shall not bo deemed thereby to have assumed tho risk thereby occasioned, although continuing in tho employment of such earner after the unlawful uso of such locomotive, car, or train had been brought to his knowledge.” 15 USCA § 8. “ H * * and the provisions and requiromenls relating to ^ •” automatic couplers *■* • shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars, and similar vehicles used in cone editon therewith * * V “Handles of uneoupling-lovers of tho ‘rocking’ or ‘push-down’ type shall be mot less than eighteen (•J8) inches from top of rail when lock-block has released knuckle, and a suitable stop shall b© provided to prevent inside arm from flying up in ease of breakage. Location: One (i) on each end of car. 'When single lever is used it shall be placed on left side of end of car.” (Roberts’ Federal Liabilities of Carriers, Append. 2, Vol. 2, pages 2010, 2016).

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?

FISH et al. v. WISE et al. No. 411. Circuit Court of Appeals, Tenth Circuit. Sept. 25, 1931. Robert L. Owen, of Washington, D. C. (Prank J. Boudinot, of Washington, D. C., D. H. Linebaugh, of Muskogee, Okl., and Henry G. Thomas, of Washington, D. C., on the brief), for appellants. Lloyd G. Owen, of Tulsa, Okl., and John T. Gibson, of Muskogee, Okl. (James A. Yeasey, of Tulsa, Okl., Ployd C. Dooley, of Okemah, Okl., C. P. Gotwals, W. A. Killey, and James D. Gibson, all of Muskogee, Okl., P. M. Goodwin, of Washington, D. C., H. G. House, and R. S. Cate, both of Muskogee, Okl., on the brief), for appellees. Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge. LEWIS, Circuit Judge. This bill purports to be a class suit. It was exhibited by several enrolled Seminole Indians and heirs of deceased enrolled Seminóles in "behalf of all “ ‘The Seminóles,’ comprising a group of citizens of the State of Oklahoma, and of the United States, composed of 3,119 persons on the finally approved Seminole rolls, or their heirs, * * *, and whether they be of Indian blood or not, * * It is alleged in the introductory clause that the Seminóles “own exclusively all of the coal, mineral, oil and gas in Seminole County in fee simple by an unbroken chain of title, * * The bill is directed against Walter Wise, Seminole allot-tee, and all other Seminole allottees who claim royalties from or the ownership of oil, gas and other mineral found in the lands allotted to them, also against their grantdes or lessees and against a named oil company and a pipe line company that produce or transport oil and gas from leased allotments. Some seventeen enrolled Seminole Indians and others who are heirs of enrolled Seminóles holding allotments as original allottees or as heirs, from which oil and gas is being produced •and from which they receive royalties, intervened as defendants. On defendants’ motions the bill was dismissed with prejudice as being without equity, and the plaintiffs appealed. The suit in practical purpose is in behalf of those who have non-mineral Seminole allotments against those whose allotments contain mineral to compel the latter to share per capita with the former all mineral produced. “The Seminóles” (plaintiffs) ask in the bill in its stating -part to be subrogated as lessors in all existing mineral leases made by Seminole allottees, their heirs or grantees, and to be recognized as owners of the coal, mineral, oil, and gas. It is alleged that “The Seminóles” do “not own this property by communal title but by ownership in common as an undivided whole by a grant from themselves as the then Seminole Tribe to themselves who were living on December 31, 1899, as individuals as grantees as of that date, and their heirs, * * *; that the second Seminole agreement was an action taken by the owners of the property as of December 31, 1899, at which time and on which day the Seminole tribe still owned the title to the mineral, oil, and gas, and as owners transferred that ownership of the mineral, oil, and gas as an undistributed whole to themselves by the simple process of declaring that the final rolls should be as of that particular day upon which the distribution of the allotted lands, the funds and the other property belonging to the Seminole Indians should be made. The right, therefore, to the undivided mineral, oil, and gas and to its distribution vested as a property right in the Seminóles as of that day and to their heirs.” The Seminole Agreement was approved by Act of Congress, July 1, 1898 (30 Stat. 567). The Supplemental Agreement with the Seminoles was approved by Congress, June 2, 1900 (31 Stat. 250). It is this supplemental agreement on which the bill relies as passing the communal title of the tribe in the mineral to the enrolled Seminóles as tenants in common; and perforce of that contention it must be established that it was not the intention of the tribal government in its agreement of July 1,1898, that the fee title in allotments should pass from the tribe to the allottees. We held in Moore v. Carter Oil Co., 43 F.(2d) 322, it was intended by the agreement that allottees should get full titles to their allotments, and that the agreement as executed, per its direction, vested in them titles in fee simple. Counsel are critical of our opinion in that case and say we went further on the subject of title than the issues and facts required. So, we put it aside for the moment and notice the principal points on which appellants contend that Seminole allottees acquired title only to surface rights in their allotments, and that the mineral estate was held by the tribe as communal property until the approval of the Supplemental Agreement on June 2, 1900. First, they say that when the Seminole Agreement was entered into and approved by Congress, as also the agreements with the other civilized tribes, it was then the settled policy of the United States to reserve the mineral estate, when mineral lands were allotted, to the tribe, and they, cite the Osage Allotment Act of Juno 28, 1906 (34 Stat. 539). The act relied on was passed eight years after the date it is claimed the policy existed. Indeed the General Allotment Act of February 8, 1887 (24 Stat. 388), is evidence to the contrary. That act provided that allottees to whom allotments might be made under it should have titles in fee simple. Moreover, the act which initiated the procedure for agreements with the five civilized tribes (27 Stat. 645, 616, § 16) did not contemplate, if tribal lands should be divided between the members thereof, that any tribal interest or estate should remain in those lands. There is no suggestion of a reservation. The act contemplated two methods of extinguishing tribal titles, — by a cession of the lands to the United States for a consideration or their division in severalty among the members of the tribe. No thought of reserving the mineral estate to the tribe as such is suggested or intimated in either event. It was intended by Congress that those agreements would extinguish the tribal title, and necessarily the whole of it. Second, in further support of the foregoing contention much reliance seems to be placed on a written proposition made to the Seminóles by the Dawes Commission on July 26, 1894. This proposition is set forth in the hill. The Commission, after refeiring to the act under which it was appointed, said to the Seminóles and so reported to Congress: We “propose to treat with the Seminole Nation on the general lines indicated below, to be modified as may be deemed wise by both parties after discussion and conference.” “First. To divide all lands now owned by the Seminole Nation, not including town sites, among all citizens according to the treaties now in force, reserving town sites, coal and mineral, for sale under special agreement. * * * “Third. Town sitos, and eoal and mineral discovered before allotment, to be the subjects of special agreements between the parties— * * * “Fifth. All invested funds, not devoted to school purposes, and all moneys derived from the sale of town sites, coal and minerals, as well as all moneys found due from the United States, to be divided per capita among the citizens according to their respective rights under the treaties and agreements. • * *» Identical written propositions were presented to the other four civilized tribes. It was a matter of common knowledge, we think, at that time that large mineral deposits, especially coal, had been opened and were being mined and sold in the territory of some of the tribes, but none had been found and developed in the territory of the Seminole Nation. Both counsel say that oil and gas was not discovered there in commercial quantities until more than twenty-five years thereafter. We think it too plain for argument that the proposition submitted was not to reserve coal and mineral under all tribal lands, but only to reserve from allotment lands on which coal and mineral had been or might be discovered before the allotments were to be made. Known mineral lands were not to be allotted between the members of the tribe. Those lands were to be sold, as the proposition expressly stated, and the moneys therefrom divided per capita. The first Choetaw-Chiekasaw Agreement, ratified three days prior to the ratification of the Seminole Agreement, is also cited to support the claimed policy of the United States. That agreement expressly provided that all coal and asphalt in and under allotments should be reserved and excepted from the allotments. Act June 28, 1898, § 29 (30 Stat. 505). However, this was changed by Supplemental Agreement made July 1, 1902 (32 Stat. 641) which, of course, was after the Seminole Agreement, wherein it was provided that the Secretary of the Interior should ascertain, so far as practical, what lands of those tribes were principally valuable because of the deposits of coal and asphalt; that such lands should be segregated and later sold, and the proceeds deposited in the Treasury of the United States to the credit of the tribe; and that “All coal and asphalt deposits, as well as other minerals which may be found in any lands not so segregated and reserved, shall be deemed a part of the land and shall pass to the allottee or other person who may lawfully acquire title to such lands.” 32 Stat. 654. Reference is also made to agreements with the other two tribes. They were both made after the agreement with the Seminóles, and both the Creek and Cherokee Agreements (31 Stat. 861, 32 Stat. 500, 716) made no reservation of minerals under allotments. Each of them clearly indicates that the allottee was to take the fee title. These contentions, singly and collectively and in connection with the Curtis Act (30 Stat. 495) and the claim that the Indians understood that “land” meant only the surface, are relied on in support of the claim that under the Seminole Agreement the mineral in the allotments was not to pass to the allottee. In fact, there are attached to the bill affidavits of a large number of Seminole Indians wherein they say that the written proposition submitted to the Seminóles in 1894 by the Dawes Commission was that they should allot their lands reserving coal and mineral from allotment; that in 1897 that Commission drew up an agreement for the Seminóles to carry out these purposes and it was explained to the Seminóles that the coal, mineral, oil, and gas were not to be allotted by that agreement but reserved to the tribe, and that no allotment should carry any title to the coal, mineral, oil, and gas to the allot-tee, but that the land allotted and for which deeds were promised excluded the mineral; that the Seminóles ratified the agreement with that understanding, and by the second Seminole Agreement they understood that they conveyed the undivided title to the coal, mineral, oil, and gas to their members who were living on December 31, 1899. The bill asks that the plaintiffs be allowed to call witnesses in the trial to establish by proof the facts stated in said affidavits. The bill is voluminous. It states other evidentiary facts. -It reviews and discusses the Goat Case, 224 U. S. 465, 32 S. Ct. 544, 56 L. Ed. 841, the De Graffenried Case, 238 U. S. 284, 35 S. Ct. 764, 59 L. Ed. 1310, and the Moore Case (C. C. A.) 43 F.(2d) 322. The Seminole Agreement and the supplement thereto are in simple words, plain in meaning and legal significance. It has been carried out in accordance with a common understanding of what it meant and was intended to accomplish, and we cannot now, more than thirty years after it was executed, consent that it be overthrown and thwarted in its purpose by testimony from witnesses that they thought it meant something else. U. S. v. Choctaw Nation et al., 179 U. S. 494, 531, 532, 533, 534, 21 S. Ct. 149, 45 L. Ed. 291. We are unable to accept as sound any of appellants’ contentions supra. The five tribes were neighbors, there were intermarriages and changes of residence from the territory of one tribe to that of another — especially so between Creeks and Seminóles — , and their several agreements bespeak a common wish and intention that the members of each should take titles as allot-tees in fee simple. We gave careful consideration to the Seminole Agreement (30 Stat. 567) in Moore v. Carter Oil Co. and reached the conclusion, for the reasons there stated, that Seminole allot-tees acquired full equitable title to their allotments when they were made, and that thereafter when they received deeds for them, which the agreement promised and said they should have, they thus acquired, as the agreement intended they should acquire, legal title in fee to said allotments, free from any claim on the part of the tribe as such or on the part of any other member of said tribe, his heirs •or grantees; and we adhere to that conclusion. We see nothing whatever in the Supplemental Agreement with the Seminóles which says that the tribe as such then claimed any interest whatever or had reserved any interest whatever in Seminole lands after they should be allotted, or that it was then disposing of any interest in said lands reserved to it to the enrolled members thereof as tenants in common. There are only two paragraphs or sections in that supplement, and the sole purpose of the first seems to be the fixing of a day on which Seminole rolls shall be closed for purposes of allotment. It provides that the Commission “shall place on said rolls the names of all children bom to Seminole citizens up to and including the 31st day of December, 1899, and the names of all Seminole citizens then living.” And the second'section seems to have no other purpose than to fix the line of descent of Seminóles who die after that day. There are no words of conveyance, present or future, or about titles of allottees. Those matters are all dealt with in the Seminole Agreement of July 1, 1898. The order of the trial court dismissing the bill 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 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?

McELHENNEY CO., Inc., W. F. Snipes, George Toole, Mac Toole, K. P. Swof-ford, Charles L. Gasque and Harry Clinkscales, Appellants, v. WESTERN AUTO SUPPLY COMPANY, Appellee. No. 7813. United States Court of Appeals Fourth Circuit. Argued March 18, 1959. Decided July 16, 1959. Chester D. Ward, Jr., Spartanburg, S. C., for appellants. James C. Wilson, Kansas City, Mo., and Alfred F. Burgess, Greenville, S. C. (Carl E. Enggas, Colvin A. Peterson, Jr., Kansas City, Mo., Wyche, Burgess & Wyehe, Greenville, S. C., and Watson, Ess, Marshall & Enggas, Kansas City, Mo., on the brief), for appellee. Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges. SOBELOFF, Chief Judge. A suit claiming various sums aggregating $2,241,000 as treble damages was brought against the Western Auto Supply Company charging it with having violated Section 3 of the Clayton Act, 15 U.S.C.A. § 14, and Section 2 of the Sherman Act, 15 U.S.C.A. § 2. The five individual plaintiffs are the owners of five stores in South Carolina and one in Georgia which in the past served as retail outlets for Western Auto merchandise, and the sixth plaintiff, Mc-Elhenney Co., Inc., is the former South Carolina distributor for Sylvania television sets who from time to time had made sales to the plaintiff-retailers. Western Auto is a nationwide distributor of products for automobile and home. Among the items which it sells are sporting goods, toys, electrical appliances, power and hand tools, lawn and garden equipment, radio and television sets, and, as its name suggests, automobile supplies. The amended complaint is quite long, containing over one hundred numbered paragraphs, dealing with defendant's actions in regard to each of the six plaintiffs. In essence, they allege that during varying periods prior to 1956 Western Auto threatened to stop selling to the plaintiff-retailers if they would continue to handle goods in competition with Western Auto lines, and that ultimately Western Auto carried out this threat and discontinued doing business with the plaintiff-retailers who did not abide by the defendant’s wishes. The District Court entered an order sustaining Western Auto’s motion to dismiss on the ground that the amended complaint failed to state a claim for which relief could be granted. This is an appeal from that order. Instead of making its merchandise available through a larger number of its own retail stores, or in hardware stores generally, Western Auto has in practice restricted its outlets to a network of some 350 company-owned stores and approximately 3,600 independently owned and operated “associate” stores. The company-owned stores are generally located in the larger cities, while the “associate” stores are found in smaller communities. As of December 31, 1956, Western Auto had seven company-owned and ninety-one associate stores in South Carolina. The contracts which Western Auto enters into with its associated stores authorize them to use the name “Western Auto Associate Store.” This is considered a valuable right because of the good will which the Western Auto Supply Company has developed. The contracts are cancellable at will by either party upon sixty days written notice. Each contract requires only that the associate shall purchase a stipulated amount of merehandise for an opening stock. Nothing in the contract itself prohibits the purchase and sale of items from other sources, and there is no provision for minimum purchases from Western Auto after the opening order. Beginning in 1950, however, Western Auto’s representatives, it is alleged, began to coerce certain of the associate stores in South Carolina and Georgia, including the plaintiff-retailers, to discontinue the sale of merchandise supplied by competitors. The announcement was made that associate stores should not sell “outside” seat covers, television sets and certain other products. From 1950 to 1956 Western Auto’s representatives continually threatened to cancel the franchises of dealers who did not handle Western Auto’s “Wizard” seat covers and its “Truetone” television sets. The principal controversy appears to have been over television sets; pressure was applied to some of the plaintiff-retailers to give up selling all competing television sets, while others were told to restrict their handling of outside sets. The plaintiff-retailers refused to accede fully to Western Auto’s demands because they had found that outside television sets, particularly Sylvania sets, sold better than Western Auto’s True-tone models. They did, however, limit their outside purchases to a degree in order to retain their franchises which were considered valuable because of Western Auto’s other lines. As a result, the plaintiff-retailers purchased some Western Auto merchandise they did not want and otherwise would not have purchased. Notwithstanding these additional purchases from the defendant, the franchises of these associates were eventually cancelled because of their refusal to respect Western Auto’s distribution policies. In their complaint, the plaintiff-retailers claimed damages for losses said to have resulted from pressure applied by representatives of Western Auto during the period prior to the cancellation of their franchises. In particular they charged that they (1) lost profits because of their inability to sell outside merchandise unfettered by defendant’s pressures, (2) lost profits as a result of being forced to stock and sell defendant’s inferior products, and (3) lost cash discounts and freight allowances which would have been available from outside wholesalers. The retailers also sought damages for (4) the ultimate cancellation of their contracts which was said to have resulted in (a) loss of good will and value attaching to their Western Auto franchises, and (b) loss of anticipated profits in the reasonable future. The plaintiff McElhenney Co., Inc., the former Sylvania distributor, claimed to have been damaged by the restrictions Western imposed upon its customers, as a result of which McElhenney’s market among such customers for television sets, and replacement parts which it also handled, was materially reduced. Generally speaking, the right of customer selection is sanctioned by both statute and case law. Absent conspiracy or monopolization, a seller engaged in a private business may normally refuse to deal with a buyer for any reason or with no reason whatever. Thus, the courts have until now not held a seller liable in damages for refusing to deal with one who is unwilling to enter into an unlawful vertical price agreement or an exclusive dealing arrangement. Clothed with this privilege, the seller not only may, but ordinary fairness would require that he should announce in advance the circumstances under which he will do business with others. This is not to say however that the course of dealing between seller and buyer may not go beyond mere customer selection and the independent announcement of policy and ripen into an implied or informal agreement or understanding. But whether there is such agreement is always a question of fact to be determined in light of all the circumstances when the case on a properly pleaded complaint is brought to trial (Cf. United States v. Colgate & Co., 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992; United States v. A. Schrader’s Son, Inc., 1920, 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471; Frey & Son, Inc., v. Cudahy Packing Co., 1921, 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892). To support a right of action for treble damages, the challenged agreement must be violative of one of the provisions of the several antitrust laws. Here the claim is that the defendant infringed Section 3 of the Clayton Act and Section 2 of the Sherman Act. Section 3 of the Clayton Act. In essence Section 3 of the Clayton Act prohibits leases, sales or contracts for the sale of goods and commodities made on the condition, agreement or understanding that the purchaser shall not use or deal in the goods and commodities of the seller’s competitors where the effect may be to substantially lessen competition or tend to create a monopoly. This section, like others of the Clayton Act, was intended to reach specific conduct which had been held by the courts to be outside the ambit of the Sherman Act and which the Congress felt must be proscribed in order to promote competition. The Congressional history, 51 Cong.Rec. 9161, indicates that while Congress was aware of other business practices which might also be harmful to the economy, it was attempting to outlaw only those with which the section expressly dealt. Neither in terms nor inferentially does the statute prohibit a unilateral refusal to sell. Its condemnations are directed against executed transactions of lease, sale or contract containing the forbidden condition, agreement or understanding. Quite correctly the District Court pointed out that a mere refusal by a manufacturer to deal with a retailer who will not confine his dealings to the goods of the manufacturer does not run afoul of the section. The cases are unanimous in this: Nelson Radio & Supply Co. v. Motorola, Inc., 5 Cir., 1952, 200 F.2d 911, certiorari denied 1953, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356; Leo J. Meyberg Co. v. Eureka Williams Corp., 9 Cir., 1954, 215 F.2d 100, certiorari denied 1954, 348 U.S. 875, 75 S.Ct. 113, 99 L.Ed. 689; Brosious v. Pepsi-Cola Co., D.C.M.D.Pa.1945, 59 F.Supp. 429, affirmed 3 Cir., 1946, 115 F.2d 99; Allied Equipment Co. v. Weber Engineered Products, 4 Cir., 1956, 237 F.2d 879. Appellants incorrectly interpret the ruling of the court below as limiting the reach of Section 3 to those instances where exclusive dealing is brought about by contract expressly imposing a “legal” obligation on the part of the buyer not to handle the goods of others. The District Court’s opinion will not sustain this reading. The court was differentiating between an agreement of exclusivity on the one hand, and a naked refusal to deal on the other. It did not suggest that the illegal condition, agreement or understanding may not be implied from a course of dealing between the parties. Probably nothing is more firmly settled in our antitrust jurisprudence than that an illegal contract may be inferred from all of the circumstances. Admittedly, the written agreement between the parties contains no provision requiring the franchisees to deal only in goods supplied by Western Auto. This, of course, merely means that the contract is not unlawful on its face. The writing could be supplemented by an extrinsic course of conduct from which the illegal condition or understanding might be found. This the trial judge fully understood. We have carefully examined the facts and circumstances upon which the plaintiffs predicate their claim of contravention of Section 3 through an implied understanding or course of dealing. There is no dispute about the fact that it was Western Auto’s policy to have its associated retail stores push its own products and that it frowned upon their handling of competing goods. Plainly enough Western Auto wanted its dealers to advance sales of its merchandise, and threatened with cancellation and actually cancelled dealers who patronized its competitors to an extent which it felt jeopardized the value to it of the franchises issued to associated stores. But so far as the complaint shows it exacted no agreement against the handling of competing merchandise. The complaint itself makes clear that the plaintiffs during the period when the asserted understanding was in effect actually handled competitive articles. While the plaintiffs in their brief and in oral argument earnestly contended that Western Auto compelled franchised retailers to handle its full line of products, we find no clear cut allegation in the complaint that this was pursuant to a condition, agreement or understanding viola-tive of the Clayton Act. This omission is sharply pointed up by the paragraphs relating to the individual plaintiffs, which disclose that they did not buy the defendant’s full line and, indeed, supplemented Western’s products with goods obtained from other sources. In short, plaintiffs’ own statement of claim not only fails directly to allege but actually tends to negate any condition, agreement or understanding that plaintiffs shall not use or deal in the goods, wares or merchandise of a competitor of Western Auto. The gravamen of a Section 3 violation is the forbidden condition, agreement or understanding of exclusivity, and a proper pleading should assert this ultimate fact. It makes no difference whether this is voluntary or is imposed by coercion, but without such agreement, condition or understanding, there can be no statutory infraction. It is only in the presence of this essential element that consideration must be given as to whether competition may be substantially, lessened or whether there is any tendency toward monopoly. Cf. Standard Oil Company v. United States, 1949, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371; Dictograph Products v. Federal Trade Commission, 2 Cir., 1954, 217 F.2d 821. A wide latitude would be afforded plaintiffs at a trial to prove their claim through direct or circumstantial proof. Whether the proof would support a finding of implied agreement or understanding is a question which we do not reach in the present posture of the case. We agree with the District Court that an obligation devolves upon the pleader to set out clearly and unambiguously the operative facts upon which he relies. Repeatedly the plaintiffs’ brief asserts that their complaint contains express and “implied allegations” sufficient to meet the requirements of the statute. It is not too much even under the liberal rules of pleading to require that the allegations be expressed in plain language, without such complete reliance as we have here upon mere implication. The complaint has been once amended, and apparently there was no application for further amendment. Under the circumstances, we might appropriately affirm without affording the plaintiffs any additional opportunity to plead over. However, in view of their strong insistence that they can establish from the course of dealing of the parties the condition, agreement or understanding which is the heart of the violation, we deem it just to remand the case to permit an application, to be addressed to the sound discretion of the District Judge, for permission to amend the complaint to state a violation of Section 3. The proposed pleading should accompany the application. This accords with the trend of the courts not to dispose finally of antitrust litigation upon the pleadings, without giving the plaintiff full opportunity to formulate his charges. Radovich v. National Football League, 1957, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456. Should there be a reformulation of the complaint the customary pretrial procedures may still be availed of by the defendant to lay bare any deficiency in the plaintiffs’ case. Section 2 of the Sherman Act. We agree with the District Court that the pleading is equally deficient in framing a violation of Section 2 of the Sherman Act. As we have seen, the plaintiffs have failed to meet the less exacting requirements of the Clayton Act; nevertheless they would have the Court accept the same essential facts as a statement of a case under Section 2 of the Sherman Act. Their argument on this count is not that the defendant attempted to monopolize commerce in any particular product, but rather that it attempted to monopolize what they denominated “a method of doing business” by having its goods sold exclusively in the only stores in certain towns carrying a complete line of automobile and home supplies. It is not charged that these items were unavailable in other stores in each of the named towns, but simply that all of them could not be purchased in any other single store. Such charges do not amount to a requisite allegation of monopolization or attempt to monopolize which Section 2 of the Sherman Act condemns. This count of the complaint thus is bereft of any averment of monopoly power in any defined market, or an intent to monopolize coupled with a dangerous possibility that a monopoly could be effectuated, or the improper employment of the defendant’s position to attain ends forbidden by law. Lorain Journal v. United States, 1951, 342 U.S. 143, 153, 72 S.Ct. 181, 96 L.Ed. 162; Swift & Co. v. United States, 1905, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518. All that the plaintiffs have done is to apply the Sherman law label to the same facts which they charge constituted a Clayton Act transgression. While we doubt that they could replead effectively, nevertheless should the District Court see fit to permit a further amendment of the first count of the complaint, it may be disposed to allow a like opportunity in respect of the Sherman Act count as well. While the rulings of the District Court are affirmed, the case is nevertheless remanded to it to permit further application to be made by the plaintiffs in conformity with this opinion. Affirmed and remanded. . Section 3 of the Clayton Act. “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, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the District of Co-Limbia or any insular possession or other place under the jurisdiction of the United States, 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, wares, merchandise, machinery, supplies, or other commodities 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 lesson competition or tend to create a monopoly in any line of commerce.” Oct. 15, 1914, c. 323, § 3, 38 Stat. 731. . Section 2 of the Sherman Act. “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall he punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.” July 2, 1890, c. 647, § 2, 26 Stat. 209. As amended July 7, 1955, c. 281, 69 Stat. 282. . Since we are reviewing an order sustaining the defendant’s motion to dismiss, the recitals of the complaint which were well pleaded are treated as facts. . Certain of the plaintiff-retailers also claimed damages resulting from the closing of their stores which they attributed to the defendant’s restrictive policies. All of the plaintiff-retailers are still in business. All those who closed their stores have opened new ones. Snipes who owned two stores has closed one of them, but continues to operate the other. Two of the plaintiff-retailers are now affiliated with Firestone.

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?

AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 998, et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al. No. 330. Argued January 9-10, 1951. Decided February 26, 1951. David Previant argued the cause and filed a brief for petitioners. Malcolm L. Riley and Beatrice Lampert, Assistant Attorneys General of Wisconsin, argued the cause for the Wisconsin Employment Relations Board et al., respondents. With Mr. Riley on the brief were Vernon W. Thomson, Attorney General, Thomas E. Fairchild, then Attorney General, and Stewart G. Honeck, Deputy Attorney General. Martin R. Paulsen argued the cause for the Milwaukee Electric Railway & Transport Company, respondent. With him on the brief was Van B. Wake. Briefs of amici curiae urging reversal were filed by Solicitor General Perlman, David P. Findling and Mozart G. Batner for the National Labor Relations Board; and J. Albert Woll, James A. Glenn and Herbert S. Thatcher for the American Federation of Labor. Briefs of amici curiae urging affirmance were filed by Harold R. Fatzer, Attorney General, for the State of Kansas; Clarence S. Beck, Attorney General, and Bert L. Overcash, Assistant Attorney General, for the State of Nebraska; and Theodore D. Parsons, Attorney General, and Benjamin C. Van Tine for the State of New Jersey. Mr. Chief Justice Vinson delivered the opinion of the Court. The parties to this case are the same transit workers, the same transit company, and the Wisconsin Employment Relations Board before the Court in No. 329, decided this day, ante, p. 383. This action arises out of the same threatened strike discussed in that case. After a restraining order had led to postponement of the strike, the Wisconsin Board appointed arbitrators to “hear and determine” the dispute in accordance with the terms of the Wisconsin Public Utility Anti-Strike Law. Wis. Stat., 1949, § 111.55. Upon the filing of the arbitrators’ award, petitioners filed an action in a state circuit court to review that award. Id., § 111.60. That court affirmed the award and the Wisconsin Supreme Court affirmed, 257 Wis. 53, 42 N. W. 2d 477 (1950). We granted certiorari in this case together with No. 329, 340 U. S. 874 (1950). In the courts below and in this Court, petitioners attack the arbitration award on the same grounds urged against the Wisconsin Act as a whole in No. 329, and, in addition, raise issues peculiar to the arbitration phase of that act. But we do not reach these issues since it is clear that this case has become moot. The arbitration, award became effective on April 11, 1949. Under the Wisconsin Act, that award “shall continue effective for one year from that date,” unless sooner terminated by agreement of the parties. Wis. Stat., 1949, § 111.59. We are informed that this award was superseded by agreement, and, in any event, the one-year period has elapsed. There being no subject matter upon which the judgment of this Court can operate, the cause is moot. It is argued that the Wisconsin courts have adopted a practice of deciding questions of importance even though the case has become moot, and we are urged to follow that same practice. But whatever the practice in Wisconsin courts, “A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. United States v. Alaska S. S. Co., 253 U. S. 113, 115-16, and cases cited; United States v. Hamburg-American Co., 239 U. S. 466, 475-77.” St. Pierre v. United States, 319 U. S. 41, 42 (1943). It appearing that the cause has become moot, the judgment of the Supreme Court of Wisconsin is vacated without costs and the cause is remanded for such proceedings as by that court may be deemed appropriate. It is so ordered. It has also been argued that No. 329 and No. 438 are moot by reason of the settlement of the immediate dispute which led to the strike action in each case. The injunction before us in No. 329 is "perpetual” by its terms so that the action does not become moot even though the decree be obeyed. J. I. Case Co. v. Labor Board, 321 U. S. 332, 334 (1944); Federal Trade Comm’n v. Goodyear Tire & Rubber Co., 304 U. S. 257, 260 (1938), and cases cited therein. As to No. 438, the judgment below imposes fines upon petitioners. No question of mootness can be raised so long as enforcement of that judgment is sought.

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?

BAETJER et al. v. UNITED STATES. No. 3933. Circuit Court of Appeals, First Circuit. June 26, 1944. E. T. Fiddler, of San Juan, P. R., for appellants. Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., Norman M. Littell, Asst. Atty. Gen., and Joseph F. McPherson, Sp. Asst, to the Atty. Gen., of San Juan, Puerto Rico, for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. WOODBURY, Circuit Judge. This is an appeal from a judgment of the District Court of the United States for Puerto Rico awarding the appellants, who are the trustees of Eastern Sugar Associates, a trust, $361,500 as compensation for two tracts of land on the island of Vieques condemned and taken possession of by the United States for war purposes under 40 U.S.C.A. § 258a. The land condemned consists of two non-contiguous parcels, denominated in the petition as “A” and “B”, aggregating 7,-936.6 acres. Parcel “B”, known as “Cabeza del Este”, consisting of about 1700 acres, constitutes the eastern tip of the island of Vieques and includes all lands owned by the appellants on that part of the island. Parcel “A”, consisting of about 6,300 acres, lies in the central part of the island and is five or six miles distant from parcel “B”. Parcel “A” in turn formed the eastern part of a larger tract, some 8,800 acres, owned by the appellants, so that, after the taking, there remained in the appellants’ ownership in the central part of the island approximately 2,500 acres. On this latter 2,500 acre tract are located the docks, buildings and railroad which the appellants had formerly used in operating their entire property on the island and still use in operating the part that remains. The appellants in their answer alleged that the lands condemned and taken constituted part of “a single integrated property” known as “Eastern Sugar Estates”; that this property consisted of approximately 30,000 acres of land, roughly two-thirds of which lay on the- island of Puerto Rico itself and the remainder on the island of Vieques; that upon it “are located four sugar mills, an extensive railway system, docks, warehouses and other dependencies”; that it is “devoted as an integrated whole” to the raising of sugar cane, pasture for raising and feeding livestock for use in the business of growing sugar cane and transporting it to the mills, and to the processing of cane into raw sugar; and that “the part of said Eastern Sugar Estates located in the island of Vieques including the area taken in these proceedings is devoted to the raising of sugar cane and the raising and maintaining of cattle for the needs of the enterprise as a whole”— the proportion of the lands devoted to sugar cane and to cattle, respectively, varying from year to year depending upon conditions and the requirements of the business. They then alleged that the amount deposited in court as estimated just compensation ($235,459) was wholly inadequate to compensate them for the land condemned and taken. As the answer just summarized indicates, the principal question raised on this appeal is the question of severance damages. At the trial below the appellants took the position that their entire holdings, including those on the island of Puerto Rico as well as those remaining in their ownership on the island of Vieques, had been depreciated in value by the severance of the property condemned and that they were entitled to compensation for this depreciation. Counsel for the United States, on the other hand, contended that no damages for severance can ever be allowed unless the property taken is physically contiguous to the property of the owner remaining after the taking, that is, that as a matter of law severance damages may be awarded only for the taking of the 6,300 acre tract from the larger 8,800 acre tract of which it had formed a part. After listening to arguments on the question whether the appellants were legally entitled to severance damages for properties not physically contiguous to those taken, the court below ruled that it would hear evidence tending to prove damages both to other properties on Vieques and to properties on the main island of Puerto Rico itself, but would later entertain a motion to strike. Such evidence was thereupon admitted and counsel for the United States, having reserved the right to cross examine thereon, moved at the close of the appellants’ evidence in chief that it be stricken. The court below granted this motion ruling “that the lands of the defendant located in Puerto Rico proper have not been severed in the legal sense from the lands taken by the United States in this case. Consequently, all the evidence adduced by the defendant purporting to show that the lands of the defendant located in Puerto Rico proper have been damaged by virtue of the taking in this case is stricken.” With respect to the lands of the defendant located in Vieques, the court ruled “that the taking of Cabeza del Este did not affect any of the remaining lands of the defendant in Vieques which were not taken.” The court then ruled that it was “still not in a position to determine” whether the lands remaining in the defendants’ ownership in the central part of the island had been “damaged in a compensable manner,” by the taking of the lands adjacent thereto and. consequently reserved its ruling on this question. The appellants admit that the evidence on this reserved question of damages is in conflict and that in consequence the court below could have decided it either way, but they say that it was error for the court below to have neglected to make specific findings and rulings in accordance with Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c and that its general finding on the subject of damages left the question unanswered. We do not agree. In the first place specific findings and rulings, although helpful to us on appeal, do not have to be made in cases of this nature. Rule 81 (a) (7) provides: “In proceedings for condemnation of property under the power of eminent domain, these rules govern appeals but are not otherwise applicable.” In the second place the finding made “That just compensation for said property condemned amounts to $361,500 which said amount includes all damages, past, present and future depreciation, if any there might be, to the remainder of the tract from which said parcel A of the lands condemned was taken” indicates that the court below had the question reserved in mind when awarding compensation. It, and the judgment which is worded in much the same terms, are unhappily phrased in that neither indicates whether any severance damages at all were given and if given how much was awarded therefor. This, however, is not a fatal defect. It is enough that it clearly appears that the point was not overlooked. We do not need to know how it was decided any more than we would need to know how a jury might have decided the question had the case been tried before such a tribunal under instructions permitting a general verdict. We come now to the appellants’ contention that the court below erred in striking their evidence which they say tended to show that their entire holdings on Vieques and Puerto Rico, although not contiguous, constituted a single unit made up of interdependent, related parts, and that the taking of the parts on Vieques reduced the value of the parts remaining to them on the main island of Puerto Rico. In United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 281, 87 L.Ed. 336, 147 A.L.R. 55, the Supreme Court, citing cases, stated the basic rule with respect to severance damages as follows: “If only a portion of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. Such damage is often, though somewhat loosely, spoken of as severance damage.” But “As respects other property of the owner consisting of separate traets adjoining that affected by the taking, the Constitution has never been construed as requiring payment of consequential damages.” The first question before us here, therefore, and the basic one in all severance damage cases, is what constitutes a “single” tract as distinguished from “separate” ones. The answer does not depend upon artificial things like boundaries between tracts as established in deeds in the owner’s chain of title, (see United States v. Powelson, 4 Cir., 118 F.2d 79, 86, 87, reversed on other grounds, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390), nor does it depend necessarily upon whether the owner acquired his land in one transaction or even at one time. Sharpe v. United States, 3 Cir., 112 F. 893, 57 L.R.A. 932. Neither does it wholly depend upon whether holdings are physically contiguous. Contiguous tracts may be “separate” ones if used separately (Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211) and tracts physically separated from one another may constitute a “single” tract if put to an integrated unitary use or even if the possibility of their being so combined in use irin the reasonably near future” (Powelson v. United States, 319 U.S. 266, 276, 63 S.Ct. 1047, 1053, 87 L.Ed. 1390) “is reasonably sufficient to affect market value.” Mc-Candless v. United States, 298 U.S. 342, 345, 56 S.Ct. 764, 765, 80 L.Ed. 1205. See also Stephenson Brick Co. v. United States, 5 Cir., 110 F.2d 360, 361; Grand River Dam Authority v. Thompson, 10 Cir., 118 F.2d 242, 244, 245; 18 Am.Jur., Eminent Domain, § 270. The Circuit Court of Appeals, Third Circuit, in the Sharpe case, (112 F. at page 896) in language approved by the Supreme Court on writ of error (191 U.S. 341, 354, 24 S.Ct. 114, 48 S.Ct. 211), stated the rule as follows: “It is not denied that in rendering the ‘just compensation’ secured by the constitution of the United States to the citizen whose property is taken for public uses it is right and proper to include the damages in the shape of deterioration in value which will result to the residue of the tract from the occupation of the part so taken. In applying this rule, however, regard is had to the integrity of the tract as a unitary holding by the owner. The holding from which a part is taken for public uses must be of such a character as that its integrity as an individual tract shall have been destroyed by the taking. Depreciation in the value of the residue of such a tract may properly be considered as allowable damages in adjusting the compensation to be given to the owner for the land taken. It is often difficult, when part of a tract is taken, to determine what is a distinct and independent tract; but the character of the holding, and the distinction between a residue of a tract whose integrity is destroyed by the taking and what are merely other parcels or holdings of the same owner, must be kept in mind in the practical application of the requirement to render just compensation for property taken for public uses. How it is applied must largely depend upon the facts of the particular case and the sound discretion of the court.” Integrated use, not physical contiguity, therefore, is the test. Physical contiguity is important, however, in that it frequently has great bearing on the question of unity of use. Tracts physically separated from one another frequently, but we cannot say always, are not and cannot be operated as a unit, and the greater the distance between them the less is the possibility of unitary operation, but separation still remains an evidentiary, not an operative fact, that is, a subsidiary fact bearing upon but not necessarily determinative of the ultimate fact upon the answer to which the question at issue hinges. The court below therefore erred in ruling that the appellants’ lands on Puerto Rico had not been severed in the legal sense from their lands on Vieques. Their evidence should have been considered in order to determine as a matter of fact whether, in spite of lack of physical contiguity, their holdings by reason of the uses to which they were being put, or would probably be put in the reasonably near future, constituted a single, integrated, unitary tract. But it does not follow that the appellants are necessarily entitled to severance damages if this question is answered in their favor. The “just compensation” guaranteed by the Fifth Amendment “is for the property, and not to the owner” (Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L. Ed. 463), that is to say, “the sovereign must pay only for what it takes, not for opportunities which the owner may lose” (United States v. Powelson, 319 U.S. 266, 282, 63 S.Ct. 1047, 1056, 87 L.Ed. 1390), so that, as a result, “There are numerous business losses which result from condemnation of properties 'but which are not compensable under the Fifth Amendment.” Id. 319 U.S. at page 281, 63 S.Ct. at page 1055, 87 L.Ed. 1390; Mitchell v. United States, 267 U.S. 341, 345, 45 S.Ct. 293, 69 L.Ed. 644, and cases cited. Under the constitution a land-owner is entitled to just compensation only for land taken, or for land remaining in his ownership but damaged by a taking of other' lands, all of which together had formerly constituted a unitary holding, and the amount of his compensation is to be measured by “fair market value” — “what a willing buyer would pay in cash to a willing seller.” United States v. Miller, 317 U.S. 369, 374, 63 S..Ct. 276, 280, 87 L.Ed. 336, 147 A.L.R. 55. So, given a single tract under the test of unitary use and a taking of part of it, there may or there may not be severance damages depending upon whether the taking of the part operates to reduce the market value of what remains. The landowner’s compensation is the difference between the fair market value of the entire unitary tract before the taking and the fair market value of the part of the tract remaining thereafter. With these general considerations in mind we turn to the evidence on damages introduced by the appellants at the trial below, but stricken at the end of their evidence in chief. This evidence was to the effect that in the past the appellants had raised sugar cane on the lands on Vie-ques which the government has taken ; that they had transported this cane to their mills on the main island of Puerto Rico for processing into sugar; and that, there being no other lands economically available upon which they could raise cane to keep their mills running at full ’ capacity, they had suffered a loss to the extent of $270,000 “in value of excess" equipment.” The meaning of the phrase just quoted is not altogether clear. If it means that aft.er the taking the appellants’ mills had an uneconomic over-capacity so that they could mot be operated by the appellants as efficiently and therefore as profitably as before the taking, then the stricken evidence shows only a loss to business which resulted as an unintended incident of the taking and so a loss not compensable under the doctrine of Mitchell v. United States, supra. On the other hand, if it means, and there is other evidence tending to show that this is what the witness who used the phrase meant by it, that the over-capacity of the mills with respect to cane lands available to supply them has depreciated their value on the market to the extent of $270,000, then thé evidence would tend to show a compensable loss. In short the stricken evidence would indicate a compensable loss only if it means that after the taking the appellants’ mills had an uneconomic over-capacity so that they could not be operated by anyone as efficiently and therefore as profitably as before the taking, this being a matter which a hypothetical willing buyer would consider in determining what he would pay for the property. The case must be remanded for the court below to consider the appellants’ evidence, and the evidence which the government says it can introduce to contradict it, in order to determine whether or not the appellants have suffered a compensable loss, and, if they have, its extent. The appellants’ next contention is that the court below erred in refusing to value the lands condemned in the light of its special and higher value to the appellants by reason of its combination with their other holdings. That is, the appellants contend that the most valuable use of the land taken was in combination with the balance of their property and that they are entitled to have the land valued on the basis of its most valuable use. The rule is well established that market “value may reflect not only the use to which the property is presently devoted but also that use to which it may be readily converted.” United States v. Powelson, 319 U.S. 266, 275, 63 S.Ct 1047, 1053, 87 L.Ed. 1390; Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206. But it does not follow from this that its value to the condemnee, even if more valuable to him than to anyone else; is the criterion. The test of market value is objective. It is what a hypothetical willing seller would part with the land for and what an equally hypothetical buyer would give for it. Value due to the strategic location of land is important, but important only in so far as that factor would influence the hypothetical bargainers whose behavior provides the test of value, and this, we think, is all the Supreme Court meant when it followed the above quotation from the Powelson case with the statement that “value may be determined in light of the special or higher-use of the land when combined with other parcels; it need not be measured merely by the use to which the land is or can be put as a separate tract.” We see no conflict between this statement and the statement in the Miller case, (317 U.S. at page 375, 63 S. Ct. at page 280, 87 L.Ed. 336, 147 A.L.R. 55) to the effect that the fact that an owner “may not want to part with his land because of its special adaptability to his own use * * * must be disregarded by the fact finding body in arriving at ‘fair’ market value.” This latter quotation seems to us applicable to the situation presented by the facts in the case at bar and determinative of this contention of the appellants. See United States v. Honolulu Plantation Co., 9 Cir., 122 F. 581, 585. Next the appellants contend that the court below erred in admitting certain deeds into evidence on the issue of the value of the lands taken. Th^ appellants suggest but do not press here the question whether the recitations of consideration in the deeds are accurate. However, since they did not raise the point below when it could have been covered by evidence it is not before us. On their faces the deeds show transactions, apparently at arm’s length, in lands on Vie-ques in the vicinity of those taken at about the time of the taking. Clearly such transactions have a tendency to show fair market value. In fact, in the absence of recent transactions of a like nature involving the land taken itself, they are the best evidence of market value. What comparable land changes hands for on the market at about the time of taking is usually the best evidence of market value available. In the absence of such evidence a determination of value becomes at best only a guess by informed persons. United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. The questions of whether such transactions are near enough in time, or involve substantially similar lands, or significant amounts of land are all questions of the remoteness of the evidence offered and in consequence are for the trial court. Here we cannot say that the court below abused its discretion. If the sales were not what they appear to have been, transactions at arm’s length, that is a matter for cross examination or rebuttal evidence. Only sales on foreclosure and similar forced transactions not on the open market are without probative force as a matter of law. The motivation behind other transactions can be shown, but only as affecting weight, not admissibility. What has just been said goes far to dispose of the appellants’ objection to the ruling of the court permitting a naval officer to testify as an expert on value, the only basis for his standing as such being his familiarity with sales of land on Vieques at about the time of the taking. Having made a study of the question of the value of the lands taken it was for the court below to say whether he was qualified to assist it by expressions of opinion on the subject. Other questions raised by the appellants on this appeal have been considered but in so far as they are not covered by what has been said d-o not call for discussion since they are not likely to arise at another trial. The judgment of the District Court is set aside and the case remanded to that court for further proceedings not inconsistent with this opinion. This island lies about ten miles to the east of the south-easterly corner of the island of Puerto Rico. The appellants’ dock on Vieques is seventeen nautical miles distant from their docking facilities on Puerto Rico proper. The question in the Sharpe case was not the question before us here. The question there was not one of damages for the taking of land, but one of damages resulting from the use to be made of land after it had been taken. But this does not impair the value of the case as an authority for us because in both situations the question raised is whether the land is a “separate” tract or part of a “single” one. As the Supreme Court in its opinion in the Sharp case (191 U.S. 341, 354, 24 S.Ct. 114, 117, 48 L.Ed. 211) pointed out: “If the remaining land had been part of the same tract which the government seeks to condemn, then the damage to the remaining portion of the tract taken, arising from the probable use thereof by the government, would be a proper subject of award in these condemnation proceedings. But the government takes the whole of one tract. If the evidence were such as to leave it a matter of some doubt whether the land owned by the plaintiff in error were one tract or separated into three separate and distinct tracts, it would be proper to leave that question to the jury, with the instruction that if they found that it was one tract, then damages might be awarded, and refused if they were separate and independent tracts.” “Of course actual physical separation by an intervening space between two parcels belonging to the same owner is ordinarily ground for holding that the parcels are to be treated as independent of each other, but it is not necessarily a conclusive test. If the land is actually occupied or in use the unity of the use is the chief criterion. When two parcels are physically distinct there must be such a connection or relation of adaptation, convenience andt actual and permanent use as to make the enjoyment of one reasonably necessary to the enjoyment of the other in the most advantageous manner in the business for which it is used, to constitute a single parcel within the meaning of the rule.” (2 Nichols on Eminent Domain, (2d ed.) p. 740.)

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?

MONTGOMERY WARD & CO. v. LAMBERSON et al. No. 10378. Circuit Court of Appeals, Ninth Circuit. June 30, 1944. Otto E. McCutcheon, of Idaho Falls, Idaho, and W. B. Powell and W. L. Schoener, both of Oakland, Cal., for appellant. William S. Holden of Idaho Falls, Idaho, and Walter H. Anderson and Clyde Bowen, both of Pocatello, Idaho, for appellees. Before WILBUR, DENMAN, and MATHEWS, Circuit Judges. MATHEWS, Circuit Judge. At all pertinent times, appellant, an Illinois corporation, operated a retail store in Idaho Falls, Idaho. The store faced west. In front of it a sidewalk ran north and south. The store had four front doors — - doors by which it could be entered from the sidewalk. On November 26, 1941, Lydia Lamberson, wife of Chester A. Lamberson, entered the store by one of its front doors, remained about 30 minutes and left by the same door. That door was seven feet from the sidewalk. A ramp extended from the door to the sidewalk. The ramp was made of rough tile. It was almost, but not quite, level, being one inch higher at the door than at the sidewalk. Upon leaving the store, Lydia Lamberson slipped and fell on the ramp and was injured. She and her husband, hereafter called appellees, brought an action against appellant for damages in the sum of $25,195, alleging that her injuries were caused by appellant’s negligence. Answering, appellant denied that allegation. Jury trial was waived, the case was tried by the court, findings of fact and conclusions of law were stated, and judgment was entered in appellees’ favor for $1,945. From that judgment this appeal is prosecuted. Appellees alleged and appellant admitted that Lydia Lamberson entered the store for the purpose of purchasing merchandise from appellant. Therefore she was an invitee, and appellant owed her the duty of maintaining its premises in a reasonably safe condition and of exercising reasonable care to protect her from injury. If appellant violated that duty, it was negligent; otherwise not. Appellees alleged, in substance, that while Lydia Lamberson was in the store, appellant, by its agents, servants and employees, threw water on the ramp; that the ramp was thereby made wet and slippery and was in that condition when Lydia Lamberson left the store; that by reason thereof, Lydia Lamberson slipped, fell and was injured; that appellant was negligent in throwing water on the ramp, failing to mop the water from the ramp, failing to put ashes or sand on the ramp, allowing the ramp to be in a wet and slippery condition, and failing to warn Lydia Lamberson thereof; and that appellant’s negligence was the proximate cause of Lydia Lamberson’s injuries. Appellant denied all these allegations. The court did not find, nor was there any evidence from which it could have found, that appellant or any agent, servant or employee of appellant threw water on the ramp, or put or placed any water on the ramp, or caused any water to be on the ramp. The court did find that the ramp had water on it when Lydia Lamberson left the store, and that by reason thereof, Lydia Lamberson slipped, fell and was injured. These findings are supported by evidence and hence are accepted by us as correct. How the water got on the ramp does not appear. The accident occurred on a bright, sunny day. There was no rain or snow. Lydia Lamberson entered the store about 3 p.m. and left about 3:30 p.m. The ramp was dry — had no water on it — when she entered the store. No one, so far as the evidence shows, saw any water on the ramp prior to the accident. The water had not been on the ramp more than 30 minutes when the accident occurred. It may have been there only a few seconds. The court did not find, nor was there any evidence from which it could have found, that the fact that the ramp had water on it was known or should have been known to appellant prior to the accident. The court nevertheless concluded that appellant was negligent in permitting the ramp to have water on it, failing to put ashes, sand, salt or matting on the ramp, and failing to notify Lydia Lamberson of the fact that the ramp had water on it— a fact of which appellant itself, so far as the evidence shows, had no notice, actual or constructive. The conclusion was unwarranted, for the rule is that, “In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to know of it.” In other words, the owner or occupant must have had actual or constructive notice of the dangerous condition. The rule is applicable and has often been applied to cases like the present one — cases in which it was sought to hold a storekeeper liable for injuries sustained by an invitee in slipping and falling on the storekeeper’s premises. Some of these cases are cited in the margin. Many others could be cited. In every such case, the plaintiff has the burden of proving that the defendant had actual or constructive notice of the dangerous condition which is claimed to have been the cause of the accident. So here, appellees had the burden of proving that appellant had actual or constructive notice of the fact that the ramp had water on it. The burden was not sustained. It would have been sustained if appellees had proved that appellant, by its agents, servants and employees, put the water on the ramp; for if appellant did that, it necessarily had notice of the fact. But there was no such proof. Mere proof of the fact that an accident occurred did not shift the burden of proof to appellant, nor did that fact create a presumption that appellant was negligent. Instead, the presumption was, and is, that appellant exercised reasonable care. The doctrine of res ipsa loquitur has no application to the facts of this case. The duty owing by appellant to Lydia Lamberson was not that of an insurer, but was merely that of maintaining its premises in a reasonably safe condition and of exercising reasonable care to protect her from injury. There was no evidence that appellant violated that duty. Judgment reversed. The Lambersons are citizens of Idaho. In the record, the ramp is called by various names — “entrance,” “entranceway,” “floor,” “ramp,” “tile,” “vestibule,” etc. Williamson v. Neitzel, 45 Idaho 39, 260 P. 689; Martin v. Brown, 56 Idaho 379, 54 P.2d 1157; Hall v. Boise Payette Lumber Co., 63 Idaho 686, 125 P.2d 311. Martin v. Brown, supra. 45 C.J., Negligence, § 245, p. 837. F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970; Sears, Roebuck & Co. v. Johnson, 10 Cir., 91 F.2d 332; Campbell v. F. W. Woolworth & Co., 8 Cir., 117 F.2d 152; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667; John Thompson Grocery Co. v. Phillips, 22 Colo.App. 428, 125 P. 563; Brown v. S. H. Kress Co., 66 Ga.App. 242, 17 S.E. 2d 758; Antibus v. W. T. Grant Co., 297 Ill.App. 363, 17 N.E.2d 610; J. C. Penney, Inc. v. Kellermeyer, 107 Ind.App. 253, 19 N.E.2d 882, 22 N.E.2d 899; Montgomery Ward & Co. v. Hansen, 282 Ky. 188, 138 S.W.2d 357; Powell v. L. Feibleman & Co., La.App., 187 So. 130; Tariff v. S. S. Kresge Co., 299 Mass. 129, 12 N.E.2d 79; McKeighan v. Kline’s, 339 Mo. 523, 98 S.W.2d 555; Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 189 A. 649; Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410; Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Gorman v. Simon Brahm’s Sons, 298 Pa. 142, 148 A. 40; DeVelin v. Swanson, R.I., 72 A. 388; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470; Lundgren v. Gimbel Bros., 191 Wis. 521, 210 N.W. 678. See cases cited in footnote 6. Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243; Hatfield v. Levy Bros., 18 Cal.2d 798, 117 P.2d 841; Kellogg v. H. D. Lee Mercantile Co., Mo.App., 160 S.W.2d 838; Westbrook v. Onondaga County, Sup., 36 N.Y.S.2d 494; Saunders v. A. M. Williams & Co., 155 Or. 1, 62 P.2d 260. F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra. F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra; Powell v. L. Feibleman & Co., supra; Thompson v. Giant Tiger Corp., supra. F. W. Woolworth Co. v. Ney, supra; Powell v. L. Feibleman & Co., supra; Thompson v. Giant Tiger Corp., supra; Pratt v. Great Atlantic & Pacific Tea Co., supra; Gorman v. Simon Brahm’s Sons, supra. F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra; F. W. Woolworth Co. v. Ney, supra; John Thompson Grocery Co. v. Phillips, supra; Brown v. S. H. Kress Co., supra; Antibus v. W. T. Grant Co., supra; J. C. Penney, Inc. v. Kellermeyer, supra; Montgomery Ward & Co. v. Hansen, supra; Pratt v. Great Atlantic & Pacific Tea Co., supra; S. S. Kresge Co. v. Fader, supra; Great Atlantic & Pacific Tea Co. v. Logan, supra. See cases cited in footnote 3.

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?

Jane Borda FEICK, Joseph L. Borda, Jr., Anthony Borda, Charles Borda, Jr., and Ann Borda Marin, Plaintiffs-Appellants, v. Charles J. FLEENER and Sally Fleener Cave, Defendants-Appellees. No. 972, Docket 80-9128. United States Court of Appeals, Second Circuit. Argued March 30, 1981. Decided June 22, 1981. Nicholas J. Zoogman, Anderson, Russell, Kill & Olick, P.C., New York City, for plaintiffs-appellants. Peter R. Sherman, Washington, D.C., (Michael F. Curtin and David Barmak, Washington, D.C., of counsel), Sherman, Fox, Meehan & Curtin, P.C., Washington, D.C., for defendants-appellees. Before WATERMAN, and MANSFIELD, Circuit Judges, and NEWMAN, Judge. Honorable Bernard Newman, Judge of the United States Court of International Trade, sitting by designation. NEWMAN, Judge: We are faced with a family dispute wherein appellants seek recovery from appellees of some fifty thousand dollars representing a portion of the legal fees paid by appellants for services rendered in connection with a decedent’s estate which allegedly benefited appellees. Appellants, who are brothers and sisters, also are cousins of appellees; appellees are brother and sister. This is an appeal from an order of the District Court, per Judge Whitman Knapp, dated July 31, 1979, dismissing the first cause of action in the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and from his order dated November 18, 1980 granting summary judgment, and dismissing the second and third causes of action in the complaint under Rule 56, F.R. Civ.P. We affirm. I. The material facts, although a maze of complexities, are not in dispute. Leopold Borda (“Leopold”) died testate on January 15, 1976. His will bequeathed the “net proceeds” of certain property located in Puerto Rico, known as “Esperanza”, to two nephews, Joseph L. Borda, Sr. (“Joseph, Sr.”) and Charles Borda, Sr. (“Charles, Sr.”), and to his niece Marguerite Borda Fleener (“Marguerite”), or their issue. Joseph, Sr. predeceased Leopold leaving five surviving children, appellants herein: Joseph Borda, Jr. (“Joseph, Jr.”), Anthony Borda, Charles A. Borda, Jane Borda Feick and Ann Borda Marin. Leopold’s niece, Marguerite, likewise predeceased Leopold, survived by two children, the appellees: Charles J. Fleener (“Fleener”) and Sally Fleener Cave. Charles, Sr. survived Leopold, and is still alive, but is not a party to this action. Although Leopold’s will named his nephews and niece as legatees, Susan Rogers (“Rogers”) claimed to be Leopold’s spouse, and Guillermina Martinez (“Guillermina”) purported to be Leopold’s daughter. Rogers and Guillermina both asserted claims against Leopold’s estate as superior to the interests of the designated beneficiaries. It further appears that on January 27, 1969 Leopold was adjudicated an incompetent, and Joseph, Sr. and Rogers were appointed co-committees' of his person and estate.' Thereafter, Charles, Sr. commenced an action in the New York Supreme Court, Westchester County to annul Leopold’s marriage to Rogers on the basis of Leopold’s incompetence at the time of the marriage ceremony. The marriage was annulled by the State Supreme Court on July 11,1972 (affirmed on appeal), thus eliminating Rogers’ claim to any portion of Leopold’s estate. Further, a settlement was negotiated with the alleged daughter, Guillermina, thus disposing of her claim against Leopold’s estate. In January 1971, Joseph, Sr. and Charles, Sr. executed and delivered to the law firm of Jaffe Cohen, Crystal & Mintz (“Jaffe Cohen”) a document dated January 29, 1971 wherein Joseph, Sr. and Charles, Sr. agreed: to retain the services of [Jaffe Cohen] in representing us in an Annulment-Divorce proceeding of Leopold Borda against Susan Borda, and all matters related thereto. We agree jointly and severally to pay you the following: 3. Twenty-Five (25%) percent of all monies inherited by us and/or any other nieces, nephews or descendents of nieces or nephews of Leopold Borda from the Estate of Leopold Borda will be paid immediately to you upon payment by the Estate. In addition to bearing the signatures of Joseph, Sr. and Charles, Sr. binding them “individually, jointly and severally”, the January retainer agreement was signed by Joseph, Sr. as “Attorney-in-fact” for appellees. At the time of executing the retainer agreement with Jaffe Cohen, Joseph Sr. possessed separate written powers of attorney dated June 5, 1970 from each of the appellees appointing Joseph, Sr. as their attorney— to act with regard to my one-eighteenth (Vis) undivided interest in the plantation in Manatí, Puerto Rico, known as “Esperanza”, including, without limitation, all real property interests therein, all buildings and other improvements erected thereon and all appurtenances thereto. [Emphasis added.] Joseph, Sr. died in May 1971 (terminal' his commission), and shortly thereat. Rogers was removed as a committee of Leopold’s person and estate. Thereupon, Frank Connelly, Esq. was appointed by the Supreme Court as sole committee and guardian ad litem to represent Leopold in the annulment proceeding. Connelly then intervened in the annulment action. Subsequently on September 28, 1971, Charles Sr. and each of the appellants signed and delivered to Jaffe Cohen a letter reaffirming the January 29, 1971 retainer agreement. The September letter specifically stated that Fleener had disclaimed authorization for any representation of his interest by Jaffe Cohen: On May 19, 1971 our agreement with you was confirmed by Charles Borda and by Joseph L. Borda, Jr. following the death of Joseph L. Borda, Sr. on May 5, 1971. Joseph L. Borda, Jr. was acting on behalf of all of the heirs of Joseph L. Borda, Sr. and Charles Borda was acting both in his individual capacity and as Executor of the Estate of his brother, Joseph L. Borda. At that time, we sought to obtain confirmation from Charles Joseph Fleener of his commitment to proceed with the various steps which your law firm had contemplated would be forthcoming. In the interim you have met with Mr. Fleener and with his attorney Michael Curtin, and as a result of your meeting, he has promised that he would advise us as to his position with regard to further litigation. Mr. Fleener has now taken the position that he does not want verbal [sic] litigation brought on his behalf. Regardless of the position taken by Charles Joseph Fleener, we wish to reconfirm our commitments as set forth in the letter of January 29, 1971 and as confirmed on May 19, 1971. [Emphasis added.] The September letter went on to state: We understand that your activities thus far have resulted in your law firm having already earned 25% of whatever inheritance we may receive from the Estate of Leopold Borda. Thus, in the event that at any point we should direct you not to continue with respect to any activities which you are performing on our behalf, nonetheless you will have earned the 25% deferred compensation by the activities which you have performed to date. Significantly, the September letter was not signed by either of the appellees. As mentioned, Leopold’s marriage to Rogers was annulled by the Supreme Court of New York in July 1972. The State Supreme Court awarded both Jaffe Cohen and Connelly substantial fees for their services in connection with the annulment litigation. About a month after the annulment of Leopold’s marriage, Fleener conferred with several of the appellants regarding various family matters. Either at or shortly after this meeting, Fleener provided Joseph, Jr. with a letter dated August 11, 1972, which reviewed various issues that were the subject of the family’s meeting. The letter offered “to present to [Joseph, Jr.], for the family’s consideration, the topics of discussion and possible solutions to these topics that have been the subject of our meetings and conversations for the past several months.” Charles Fleener went on to outline and discuss various “problems”. One such problem was the annulment litigation in New York, concerning which Fleener’s letter stated: The litigation in New York involving Susan Rogers [sic] and Uncle Leopoldo unfortunately, is and has been a bone of contention since the death of your father [Joseph, Sr.]. Neither Sally nor I were aware of the activity going on after mother’s death. It was not until after your father’s death that we came to understand the commitments made in undertaking the lawsuit. Without questioning or challenging the motives of either Uncle Charles [Charles, Sr.] or your father [Joseph, Sr.], we chose not to participate in the suit. Last fall you and your brothers and sisters chose a different path and committed yourselves to be obligated to Mr. Berman’s law firm [Jaffe Cohen] for the prosecution of the suit. We feel we have no obligation to Mr. Berman’s firm or any other lawyer or lawyers involved in this litigation. We made a conscious decision not to become financially obligated for any fees, costs or other expenses incurred in its prosecution. Mr. Berman, as all of you, has been well aware of this decision since last year. Continuing, the letter stated: Nonetheless, Sally and I do not want this decision to create an undeserved windfall for us. If, as the result of your efforts in pushing this litigation, we inherit from Uncle Leo’s estate any money or other property which, but for the lawsuit, we would not have inherited we will contribute up to one-third of that portion of our inheritance to you, your sisters and brothers, and Uncle Charlie to help defray the legal fees, expenses and costs incurred in your pursuing the litigation. You must understand that Sally and I made certain judgments about this litigation last year. As a result, we chose not to become obligated to anyone for its prosecution. Part of our judgment was based on the fact that we were advised by our lawyer that there was little likelihood that there would be any substantial inheritance coming from Uncle Leo’s estate, whether the lawsuit was successful or not. If, in fact, this proves not to be the case we are willing to help defray the expenses that have been incurred. On the other hand, if our judgment was correct and we only receive from Uncle Leo’s estate that which we would have gotten whether or not the suit was filed, we do not think it appropriate for us to contribute to the expenses. Fleener’s August 11, 1972 letter also discussed other matters of dispute among the family members. One such issue was the pending claim of Guillermina as the illegitimate daughter of Leopold. Fleener set forth appellees’ position regarding Guillermina’s claim in the August 11, 1972 letter: Last fall Mr. Berman asked our lawyer’s permission to negotiate with Guillermina’s lawyers on Sally’s and my behalf. He also asked for us to contribute to the expenses of the trip to undertake these negotiations. We chose not to acquiesce in either request. Nonetheless, we did indicate that if, in fact, an agreement was reached with Guillermina we would review same, and, if possible, go along with its terms. Fleener then stated that “if * * * your efforts create a benefit for Sally and me we would, of course, agree to the same terms in connection with that benefit as we have in connection with the Leopoldo lawsuit mentioned above.” Fleener concluded his letter: As you can readily appreciate, all of the foregoing is in the spirit of our discussions, i. e., an effort to accommodate various legal positions in an attempt to settle once and for all the family dealings covering these matters. You can also appreciate the fact that if these matters are to be settled, as outlined above, all those affected thereby must agree to the proposals. Accordingly, I would ask that you circulate this letter to Anthony, Ann, Janie, and Charles. Events are moving very rapidly and it will be to the family’s advantage if we can formalize our understanding as soon as possible. Considering my immediate schedule, and that of Mike Curtin’s, I would request that we have some response from you by Tuesday, September 5. Appellants never responded to Fleener’s letter. Guillermina’s claims were settled in February 1978. For the firm’s services relative to the settlement of Guillermina’s claim, Jaffe Cohen was awarded a fee of $37,500 from Leopold’s estate by the State Supreme Court. Jaffe Cohen never charged appellants, and appellants never paid, any fee for services rendered in connection with Guillermina’s claim. In due course, Leopold’s will was admitted to probate on April 6, 1976. Total distributions from Leopold’s estate to appellants, appellees and Charles, Sr. have exceeded one million dollars, representing principal and interest on the proceeds received from Puerto Rico’s expropriation of Leopold’s one-third interest in Esperanza. Conforming to their retainer agreement with Jaffe Cohen, appellants and Charles, Sr. ultimately paid 25 percent of the distribution plus disbursements to Jaffe Cohen. When Jaffe Cohen made an initial distribution of funds to appellants and Charles, Sr. in April 1978, Ernest Allen Cohen, a Jaffe Cohen partner, explained the computation of Jaffe Cohen’s fee and reiterated the fee arrangement: As was specified in the retainer agreements executed after the death of your father, Joseph, the Fleeners had taken the position that your father was not their attorney-in-fact and therefore was not authorized to execute a retainer on their behalf as he had done prior to his death. Thus, we had advised you, and you had acknowledged by executing the subsequent retainer agreement, that we would only proceed on the basis of each of the signatories taking full responsibility for the full amount of our fee so that we would not be cast in the position of having to dispute it with any of the members of your family, the Fleeners or otherwise. This arrangement has been confirmed many times since the retainer was originally executed. II. The first cause of action in appellants’ complaint seeks payment of a proportionate share of Jaffe Cohen’s legal fees and expenses on the ground that appellees breached an agreement retaining Jaffe Cohen made by Joseph, Sr., pursuant to powers of attorney allegedly authorizing him to act on their behalf. This was dismissed under Rule 12(b)(6), F.R.Civ.P. for failure to state a claim upon which relief could be granted. Appellants’ second cause of action seeks recovery of a proportionate share of Jaffe Cohen’s legal fees on the ground that appellees were unjustly enriched by reason of the alleged creation of a “common fund” through the legal services. The third cause of action alleged that Fleener’s August 11, 1972 letter to Joseph Jr. was a binding agreement or promise to pay a share of the fees, upon which appellants relied to their detriment. These two claims were dismissed by Judge Knapp, pursuant to appellees’ motion for summary judgment, on the ground that upon the undisputed facts appellants were not entitled to any recovery. III. Turning to the merits, we initially consider appellants’ contention that the District Court erred in dismissing their first cause of action under Rule 12(b)(6), F.R. Civ.P. The District Court based its decision on the ground that appellees’ powers of attorney did not authorize Joseph, Sr. to retain Jaffe Cohen in an effort to have Leopold’s marriage annulled, since Joseph, Sr.’s authority was restricted to appellees’ separate one-eighteenth interests in Esperanza, and “[tjhose interests would be completely unaffected by any change in the disposition of Leopold’s estate”. We find no error in that ruling. As the District Court aptly pointed out, Joseph, Sr.’s powers were expressly limited by the June 5, 1970 instruments executed by appellees to their one-eighteenth undivided interests in Esperanza. To appreciate the significance of this express limitation on the power granted to Joseph, Sr., several facts should be noted. Joseph, Sr., Charles, Sr. and appellees’ mother (Marguerite) jointly owned a one-third undivided interest in Esperanza. When appellees’ mother died, her one-ninth interest devolved to appellees in equal one-eighteenth undivided shares. In addition, Leopold owned a separate one-third undivided interest in Esperanza, and his will devised such interest (or the proceeds in the event of sale) to Charles, Sr., Joseph, Sr., and Marguerite, or to their issue. Consequently, appellees as the surviving issue of Marguerite, had two interests in Esperanza: first, each owned an undivided one-eighteenth share; and second, as potential legatees under Leopold’s will, each had an additional expectancy. The plain language of the powers of attorney granted to Joseph, Sr. affected only the undivided one-eighteenth interest in Esperanza which appellees then actually owned. There is not the slightest suggestion in those meticulously phrased instruments that the attomey-infact (Joseph, Sr.) was. authorized to take any action on behalf of appellees relating to their potential additional interests or expectancies as beneficiaries of Leopold’s estate. While ambiguities are to be construed against the grantor of a power, Silver Bay Ass’n for Christian Conferences and Training v. Landon, 121 Misc. 712, 201 N.Y.S. 868, (Sup.Ct.1923), aff’d, 215 A.D. 850, 213 N.Y.S. 910 (3d Dept. 1926), the District Court found that the powers of attorney cannot in these circumstances be construed to authorize Joseph, Sr.’s action. We agree. Since the documents upon which appellants based their claim show on their face absence of any grounds for relief, dismissal was proper. Jacksonville Newspaper Printing Pressman and Assistants Union No. 57 v. Florida Publishing Company, 340 F.Supp. 993 (M.D.Fla), aff’d, 468 F.2d 824 (5th Cir.), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1972). Accordingly, Judge Knapp’s dismissal of appellants’ first cause of action was correct insofar as it was predicated upon the powers of attorney. Appellants contend, however, that in dismissing the first cause of action the District Court erroneously disregarded the allegations concerning Joseph, Sr.’s role as appellants’ and appellees’ “attorney-in-fact”; concerning Fleener’s letter of August 11, 1972 which promised to pay appellees’ share of Jaffe Cohen’s fees; and concerning appellees’ ratification of Joseph, Sr.’s actions on their behalf by retention of substantial benefits received because of Jaffe Cohen’s efforts. Further, appellants insist that the District Court committed error by unduly restricting the powers of attorney. In this aspect, appellants maintain that they are entitled to prove at trial that the powers of attorney were intended by appellees to authorize Joseph, Sr.’s “efforts to conserve and increase the eventual funds available for distribution to defendants from the sale or other disposition of ‘Esperanza’. (Appellant’s brief, 22-23.) Appellants’ argument that they were entitled to show at a trial that Joseph, Sr. was appellees’ attorney-in-fact by virtue of his “course of conduct and consistent role over a period of many years” is completely without merit. The powers executed by appellees on June 5, 1970 expressly delineating Joseph, Sr.’s authority respecting Esperanza negate any theory of an implied general appointment encompassing some unspecified broader authority. Moreover, there is no indication in the complaint that appellants used the term “attorney-in-fact” in anything other than its ordinary sense, which connotes that the authority be “conferred by an instrument in writing, called a ‘letter of attorney’, or more commonly a ‘power of attorney’.” Black's Law Dictionary (Fourth ed., 1968), p. 164. Appellants’ ratification argument is untenable in light of appellees’ repeated disclaimers of any responsibility for Joseph, Sr.’s actions. Finally, appellants urge that the District Court should not have dismissed their first cause of action in view of their allegation that Fleener agreed in his August 11, 1972 letter that appellees would pay their share of Jaffe Cohen’s fees. While it is true that such allegation is encompassed by appellants’ first cause of action, the complaint pleads three distinct causes of action: the first, based on the January retainer letter signed by Joseph, Sr. as appellees’ attorney-in-fact (which was dismissed by Judge Knapp); the second, premised on an unjust enrichment theory; and the third, based on Fleener’s August 11, 1972 letter (which latter two causes were not dismissed). Despite the indication by the District Court that appellants’ “first cause of action” was dismissed, plainly the Court actually dismissed only that part of appellants’ case which related to the January retainer letter and the powers of attorney, while expressly finding that “plaintiffs’ third cause of action [viz., that based on Fleener’s letter of August 11, 1972] survives the motion to dismiss” (District Court’s July 31, 1979 Memorandum and Order, p. 5). Any confusion engendered by the District Court’s dismissal of appellants’ first cause of action pursuant to Rule 12(b)(6) notwithstanding the express survival of their cause of action based on Fleener’s letter of August 11, 1972, may be ascribed to the overlapping and confusing manner in which the causes of action were pleaded in the complaint. All of the substantive allegations are lumped under the heading “First Cause of Action”, and then are adopted by reference and applied to different theories under the headings “Second Cause of Action” and “Third Cause of Action”. Hence, appellants claim that the allegation regarding the August 11, 1972 letter (paragraph 8) was part of the First Cause of Action which was dismissed by the District Court. Nevertheless, it is obvious from the Court’s discussion of appellants’ claims that the “First Cause of Action” was treated as involving solely the January 1971 retainer agreement and the powers of attorney. In view of the foregoing considerations and all the facts and circumstances, we cannot perceive any benefit to appellants if they were permitted to file an amended complaint, as they have now requested in a footnote to their brief. Accordingly, the request is denied. IV. We now consider the District Court’s grant of summary judgment dismissing appellants’ second and third causes of action. Appellants insist that summary judgment was inappropriate in this case because of the existence of genuine issues of material fact. It is, of course, fundamental that on a motion for summary judgment the court cannot try issues of fact; it determines whether there are justiciable issues for trial. S.E.C. v. Research Automation Corporation, 585 F.2d 31 (2d Cir. 1978). Specifically, appellants advance the argument that summary judgment was inappropriate in the instant case respecting appellants’ second and third causes of action because they involve issues of motive and intent which preclude summary judgment. See e.g. Cali v. Eastern Airlines, Inc., 442 F.2d 65 (2d Cir. 1971). We are unable to agree with appellants’ position that there exist genuine issues of material fact in this case. On the contrary, this case represents a classic example of the effective use of the summary judgment procedure. This Circuit has observed that “just as trial by affidavit represents an unjustified diminution of the rights of plaintiffs, neither courts nor defendants should be subjected to trials which can be little more than harassment.” Applegate v. Top Assoc., Inc., 425 F.2d 92, 96 (2d Cir. 1970). Here, the applicable law applied to the undisputed facts shows that appellees were entitled to summary judgment dismissing the second and third causes of action, thus obviating the necessity of a trial. Courts, refusing to exalt form over substance, cannot be awed by procedural spectres, and cannot be swayed by feigned issues. The District Court, after carefully considering the applicable New York law, rejected appellants’ argument that appellees were unjustly enriched as a result of the services performed by Jaffe Cohen, and therefore by virtue of the “common fund” doctrine, appellants were entitled to a proportionate reimbursement for their payments to that firm. We are drawn to the conclusion that the District Court correctly held appellees should not be required to contribute to Jaffe Cohen’s fees on the basis of the “common fund” doctrine. The general rule in New York is that parties are not obligated to pay the fees of attorneys whom they have not retained, and a party who contracts for a lawyer’s services cannot compel contribution for benefits obtained by others as a result of those services. E.g., In Re Loomis, 273 N.Y. 76, 6 N.E.2d 103 (1937); Lynn v. Agnew, 179 App.Div. 305, 166 N.Y.S. 274 (1917), aff’d sub nom. Lynn v. McCann, 226 N.Y. 654, 123 N.E. 877 (1919). Under this general rule appellants are not entitled to contribution from appellees. Here, appellants retained Jaffe Cohen to provide legal services, and appellees declined to join in appellants’ efforts. Consequently, even if Jaffe Cohen’s services benefited appellees, liability for the fees cannot be imposed upon them in the absence of their agreement. Appellants, however, heavily rely upon the “common fund” doctrine which provides an exception to the Loomis rule. Under that doctrine, individuals who benefit from the creation or distribution of a fund may be charged with the fees of the attorney whose efforts created the fund, although they had no contract with that attorney. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 167 (1939); Realty Equities Corp. of New York v. Gerosa, 30 Misc.2d 481, 209 N.Y.S.2d 446 (Sup.Ct.1960). In this case, the undisputed facts show that no “fund” was created by Jaffe Cohen’s efforts. The money that was distributed to appellants and appellees, which might otherwise have been distributed to Rogers and Guillermina, stems from one source: the estate of Leopold. Obviously, Jaffe Cohen played no role in creating Leopold’s estate. Similarly, inasmuch as appellants and appellees were named as beneficiaries in Leopold’s will, Jaffe Cohen’s services played no role in creating their status as beneficiaries under the will. While Jaffe Cohen’s efforts helped eliminate the competing claims of Rogers and Guillermina, such efforts did not create a fund. Although no New York case precisely in point has been cited by the parties or found by the Court, the present case appears somewhat analogous to Baron v. Baron, 286 So.2d 480 (La.App.1974), cited in appellees’ brief. Baron grew out of an earlier suit by the plaintiff to declare approximately $22,-000 of gold certificates an asset in the estate of plaintiff’s aunt. The suit was successful, resulting in the receipt by plaintiff and his brother of an additional $5,500 each from the aunt’s estate, while their cousin received an additional $11,000. Plaintiff, an attorney, then sued his cousin to recover the fair value of plaintiff’s services rendered in successfully pursuing the earlier suit. The trial court awarded plaintiff legal fees of $2,500, but the Court of Appeals of Louisiana reversed, holding inter alia: [t]he present case would not fall under the ‘fund’ doctrine because the plaintiff did not create a fund; he merely secured judicial recognition of the ownership by the succession of an asset already owned by it. Here too, no fund was created by appellants’ or Jaffe Cohen’s efforts since the assets distributed were already part of Leopold’s estate. Nor were the assets of the estate enhanced by Jaffe Cohen’s efforts in the annulment proceeding, that merely eliminated a competing claim. Hence, even if the annulment had not been granted, but Rogers had predeceased Leopold, appellants and appellees would have received the same distributions which they have received with the granting of the annulment. Sprague v. Ticonic, relied upon by appellants, is readily distinguishable. There, Sprague’s money had been deposited in a bank’s commercial checking account and, complying with statute, bonds were set aside by the bank as collateral to secure the funds deposited. When the bank failed, Sprague sued to impose a trust on the proceeds of the bonds. After succeeding in impressing a trust for the amount due, Sprague applied for an order directing that her counsel’s fees be paid out of the proceeds of the bonds. The Supreme Court held that federal courts had the power to grant such a request, and that Sprague by establishing her claim, necessarily established the claims of others to the same bonds. But importantly, in Sprague, after the funds deposited in the commercial checking account were lost, Sprague’s efforts established a new, distinct and separate fund for the benefit of others, viz., the bonds held as collateral. In our situation, however, the right of appellees (and appellants) to succeed to Leopold’s estate was established by their designation as legatees in his will, which status was subject to the competing rights of Rogers and Guillermina. The issue, however, was never the creation of a fund, but rather concerned the parties to whom Leopold’s estate would be distributed. V. Lastly, we reach the problem of appellants’ attempt to hold appellees liable for contribution to Jaffe Cohen’s fees based upon Fleener’s letter of August 11, 1972. After a careful consideration of that letter, we determine that the District Court correctly ruled that such letter “is in no sense a contract” supported by consideration; and further that the Court properly rejected appellants’ alternative detrimental reliance theory. Fleener’s letter explicitly evinces his intent not to be contractually bound. The letter’s very first sentence points up that Fleener is reviewing “topics of discussion and possible solutions” (Emphasis added). Again, Fleener stressed the nonbinding nature of the letter when he urged that an attempt be made by the family to settle the matters discussed and “formalize our understanding as soon as possible.” Unfortunately for appellants, no such understanding ever materialized nor was any agreement ever formalized. Cf. Dunhill Securities Corp. v. Microtherma Applications, Inc., 308 F.Supp. 195 (S.D.N.Y.1969). In Dunhill, the Court observed: It is no doubt true that, even where a formal writing is contemplated by the parties, a binding contract may nevertheless arise before the execution of the writing. See Banking & Trading Corporation Ltd. v. Floete, 257 F.2d 765 (2d Cir. 1958). The intention of the parties is crucial. In a case in which the parties have agreed upon all material considerations and intend to become presently bound, the later writing serves merely as a formal, convenient memorial of previously agreed upon terms. Id. at 198 [Emphasis added]. In the instant case, plainly there was no agreement as to the matters raised in Fleener’s letter, and Fleener did not “intend to become * * * bound” until there was formalization of a settlement. More, since there is no ambiguity in Fleener’s letter that he did not intend it to be a formal contract, but rather an expression of hope that the parties would settle and “formalize [their] understanding as soon as possible”, the District Court was not called upon to resolve any ambiguity as to appellees’ intention by resort to sources external to the letter. Id. at 197. Even stretching the proposals in Fleener’s letter to be construed as an offer, a response was requested by September 5, 1972 and as we have seen, there was no response to Fleener’s proposals, nor was any understanding reached. Respecting appellants’ detrimental reliance theory, the undisputed evidence before the District Court shows conclusively that appellants could not have, and did not in fact, rely upon Fleener’s “promise” to contribute to Jaffe Cohen’s fees. Doubtlessly, appellants understood full well from the outset that appellees opposed participation in the payment of Jaffe Cohen’s fees, and that the Fleeners had retained their own counsel for advice regarding the annulment proceeding and other matters involving Leopold’s estate. Indeed, the September 1971 retainer agreement obligating appellants to pay Jaffe Cohen specifically acknowledged that Fleener did not wish litigation brought on his behalf and reconfirmed appellants’ commitments as set forth in the letter of January 29,1971. The short answer is appellants bound themselves to pay Jaffe Cohen’s fee almost one year prior to receiving Fleener’s “promise” to contribute. Moreover, in the September retainer agreement appellants not only agreed to pay Jaffe Cohen’s fee, but acknowledged that the firm had already earned the fee and would be paid, even if the litigation were terminated by appellants. Stated differently, therefore, appellants were obligated to pay their attorney’s fee whether or not they continued to retain Jaffe Cohen. The Jaffe Cohen letter of April 1978, quoted supra, further confirms that appellants were fully committed to the firm notwithstanding any action taken by the appellees. As a matter of law

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?

J. Raymond DYER and Jean Russell Dyer, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 17892. United States Court of Appeals Eighth Circuit. Dec. 1, 1965. J. Raymond Dyer, St. Louis, Mo., for petitioners. Harold K. Wilkenfeld, Atty., Dept, of Justice, Washington, D. C., for respondent. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews and Robert A. Bernstein, Attys., Dept, of Justice, Washington, D. C., were on the brief. Before MATTHES and BLACKMUN, Circuit Judges, and REGISTER, District Judge. BLACKMUN, Circuit Judge. J. Raymond Dyer (whom we shall call the taxpayer) and his wife petition for review of a Tax Court decision that there are deficiencies in their cash basis income taxes as jointly returned for the calendar years 1958 and 1959. The deficiencies amount to $417.04 and $362.19, respectively. Judge Black’s opinion, not reviewed by the full court, is T.C. Memo 1964-200. The challenged amounts are attributable to asserted deductions for numerous small expenditures incurred with respect to nine separate “controversies” with Union Electric Company and with the Securities and Exchange Commission. The parties have submitted substantial briefs in support of their respective positions. Judge Black, in his memorandum of 28 pages, has detailed the facts. The question is whether the expenditures are deductible under § 162(a) of the 1954 Code, 26 U.S.C.A. § 162(a), as “ordinary and necessary expenses paid * * * in carrying on any trade or business”, or, with respect to certain of them, under § 212 of the Code as ordinary and necessary expenses paid “for the production or collection of income”, or, in contrast, are personal expenses which, under § 262, are not deductible. Union in 1958 and 1959 had outstanding more than 500,000 shares of voting preferred stock and more than 10,000,000 shares of voting common. Its common shareholders exceeded 60,000. Taxpayer is a Saint Louis attorney. His daughter Nancy, born in October 1936, owned 100 shares of Union common which the taxpayer had purchased for her in April 1956. Nancy’s father represented her under power of attorney and, during her minority, as guardian. Taxpayer acquired 250 shares of Union common in his own right in January 1957. The nine controversies may perhaps be described as follows: Controversy A was a state court suit instituted in 1956 by Nancy, through the ^taxpayer as her next friend, against Union and others for the right to copy Union’s stock list and for three $250 statutory penalties (under Mo.Rev.Stat. § 351.215 (1949)) because of denials of that right. This proved unsuccessful. State ex rel. Dyer v. Union Elec. Co., 309 S.W.2d 649 (Mo.App.1958). However, during the suit’s pendency, Union did allow Nancy personally to have the copying privilege anyway. She exercised that privilege in part but was not able at the time to complete her copying. Controversy B was a 1957 state court action brought by the taxpayer, as Nancy’s natural guardian, against Union and others for like statutory penalties and for specific performance of an alleged agreement by which Union consented to let the taxpayer, as guardian, copy its stock list. This suit was also unsuccessful. Dyer v. Union Elec. Co., 318 S.W.2d 401 (Mo.App.1958). Controversy C was a state court mandamus action by taxpayer and by Nancy, through taxpayer as next friend. It was brought against Union and its proxy agents to compel the issuance, for Union’s 1957 annual meeting, of revised proxy cards containing bylaw changes proposed by the plaintiff shareholders and to enjoin the agents from voting proxy cards not containing those changes, and for a reasonable attorney's fee. This was unsuccessful. State ex rel. Dyer v. Union Elec. Co., 312 S.W.2d 151 (Mo.App.1958). Controversy D concerned a petition, filed in this court by taxpayer and Nancy, to review a March 1957 order of the SEC permitting Union’s 1957 proxy material to become effective, and the petitioners’ application for a stay of that order. Union intervened. This court denied the relief requested. Dyer v. SEC, 251 F.2d 512 (8 Cir. 1958). Certiorari was granted, however, and the case remanded for further consideration. 359 U.S. 499, 79 S.Ct. 1115, 3 L.Ed.2d 976. Half the certiorari costs were taxed against Union. 361 U.S. 803, 80 S.Ct. 40, 4 L.Ed.2d 52. The remanded case was argued and submitted in 1959. Eventual decision on the merits went .against the petitioners. Dyer v. SEC, 287 F.2d 773 (8 Cir. 1961). Controversy E was a federal suit instituted by the SEC against the taxpayer for injunctive relief with respect to what was claimed to be his solicitation of proxies for Union’s 1957 meeting without first complying with a February 1957 Commission order requiring approval of declarations. The taxpayer counterclaimed with a request that the Commission be ordered to make a specified investigation. The district court eventually dismissed the counterclaim for lack of jurisdiction and also dismissed the Commission's complaint for mootness. SEC v. Dyer, 22 F.R.D. 229 (E.D.Mo.1958). Nine months later this court issued its decision concerning proxy solicitation for Union’s 1958 meeting, Dyer v. SEC, 266 F.2d 33 (8 Cir. 1959), cert. denied 361 U.S. 835, 80 S.Ct. 86, 4 L.Ed.2d 75, rehearing denied 361 U.S. 911, 80 S.Ct. 253, 4 L.Ed.2d 181, referred to below. The district court, accordingly, then vacated its order which, in the 1957 case, had dismissed the Commission’s complaint for mootness and, instead, granted injunctive relief for the Commission on the merits. SEC v. Dyer, 180 F.Supp. 903 (E.D.Mo.1959). Later this court vacated that decree because of excessive breadth. We remanded the case, however, with directions to dismiss the Commission’s complaint for mootness; we also affirmed the dismissal of the counterclaim. Dyer v. SEC, 291 F.2d 774 (8 Cir. 1961). Controversy F centered in Union’s 1958 annual meeting. Union filed its declaration with the SEC, as required by an order the Commission had issued. This included some but not all of a number of proposals submitted to Union by taxpayer and Nancy. The Commission held a hearing in Washington and issued orders. Taxpayer attended that hearing. The taxpayer and Nancy filed with this court their petitions for review of those SEC orders and for a stay. Another shareholder, represented by the taxpayer, and Union were both permitted to intervene. Stay was denied and the 1958 meeting was held in due course. Later this court upheld the SEC orders. Dyer v. SEC, supra, 266 F.2d 33 (8 Cir. 1959). Controversy G concerned Union’s 1959 annual meeting and Union’s declaration of proxy material. Again the SEC held hearings. The taxpayer and Nancy participated. The Commission issued its order permitting Union’s declaration to become effective. The taxpayer and Nancy filed with this court their petition for review and for a stay. Union intervened. Stay was denied. The review was decided adversely to the petitioners. Dyer v. SEC, 289 F.2d 242 (8 Cir. 1961). (Controversy H was an unemployment compensation matter in which the taxpayer represented the claimant. Apparently it had nothing to do with Union or the SEC. At the Tax Court trial the Commissioner conceded the deductibility of expenditures claimed by the taxpayer with respect to that controversy). Controversy I concerned Union’s rates. In 1958 Union proposed increases and filed schedules with the Public Service Commission of Missouri. Hearings ensued. The taxpayer and Nancy intervened in opposition as domestic consumers. In July 1959 the Commission approved the increases. The taxpayer and Nancy sought a rehearing and then court relief. Union intervened. The petitioners were not successful. State ex rel. Dyer v. Public Serv. Comm’n, 341 S.W.2d 795 (Mo.Sup.1961), cert. denied 366 U.S. 924, 81 S.Ct. 1351, 6 L.Ed.2d 384. Controversy J had to do with the issuance by Union of additional common shares. The SEC approved Union’s declaration and denied a request by the taxpayer and Nancy for a hearing. The two then filed with this court their petition for review and for a stay. Union and two of its other shareholders, one represented by the taxpayer, were granted leave to intervene. The attack asserted preemptive rights in those shares which were not subscribed for on the offering and which Union proposed then to issue to employees at a discount. Stay was denied. The petition for review was unsuccessful. Dyer v. SEC, 290 F.2d 534 (8 Cir. 1961). The expenses paid by the taxpayer and which remain disallowed as deductions by the Commissioner and by the decision of the Tax Court were incurred, as we have said, in connection with these several controversies (other than H). They consist of certification and filing fees, court costs, expenses of transcripts, and briefs, and those of travel, stenographic, telephone, telegraph, stationery, auditing, photostating, multilithing, notary and postage charges, and the like. At this point, for what it may be worth, we note the following: 1. The case of J. Raymond Dyer, 36 T.C. 456 (1961), which concerned the taxpayer and Mrs. Dyer’s jointly returned income tax for the calendar year 1957. At issue were claimed deductions for business expenses, the expenses of prosecuting a libel suit against a Saint Louis newspaper, and travel and mimeographing expenses incurred in connection with hearings before the Joint Committee on Atomic Energy. The Commissioner had disallowed the deductions on the ground that the expenses were “disbursed by you for a fight and/or crusade by you and your daughter, Nancy Corinne Dyer, over proxies of Union Electric Company”. The Tax Court, in an opinion also written by Judge Black, held that some of the claimed business expenses were not attributable to the proxy contest and were allowable; that that portion incurred in the proxy contest was not deductible under § 162 and § 212 of the 1954 Code; that the libel suit expenses were allowable under § 162; and that the AEC hearing expenses were personal and not deductible. 2. Dyer v. SEC, 290 F.2d 541 (8 Cir. 1961), which was an unsuccessful challenge by the taxpayer and Nancy of action by the SEC with respect to Union’s proxy material for its 1960 meeting and with respect to proposals made by the Dyers. 3. Stadin v. Union Elec. Co., 309 F.2d 912 (8 Cir. 1962), cert. denied 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415, where the taxpayer represented an applicant (who was an intervenor in the case reported at 290 F.2d 534, supra) for intervention in an electrical equipment antitrust action in which Union was an original plaintiff. 4. Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570 (Mo.Sup.1964), where the taxpayer unsuccessfully appealed from an adverse jury finding in his newspaper libel action. The Tax Court in the present case ruled that the Commissioner’s plea of collateral estoppel by reason of the decided 1957 case, 36 T.C. 456, supra, was not to be upheld because “the facts and circumstances” of that case were not the same as those of this 1958 and 1959 case. See Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948). The Commissioner has not argued collateral estoppel on this appeal and we do not consider it. A. Deductibility. The parties concede that the deductibility of the expenditures involved in all the controversies except J is governed by § 162 (a). J concerns both § 162(a) and § 212. Judge Black in his decision found that the expenditures of Controversies A, B, C, D, and F were attributable to “what amounted to a proxy contest with Union” and were not deductible under § 162(a). He cited the taxpayer’s 1957 case as supporting that conclusion, for he had there held, p. 464 of 36 T.C., that the taxpayer’s proxy contest expenditures “were not ordinary and necessary expenses incurred and paid in his business as a lawyer”. Judge Black also held in the present case that the E expenses were not incurred in defending the taxpayer’s reputation as an attorney but only “his personal, self-help act” in his personal “fight or crusade” with Union; and that the expenditures of G and I were not deductible under § 162(a) or those of J under either § 162(a) or § 212. This court on several occasions has considered §§ 162(a) and 212. Recently, in Iowa Southern Util. Co. v. Commissioner of Internal Revenue, 8 Cir., 333 F.2d 382, 385-386 (8 Cir. 1964), cert. denied 379 U.S. 946, 85 S.Ct. 438, 13 L.Ed.2d 543, we observed that there is no “ready touchstone” for these cases, citing Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933); that the taxpayer has the burden of “clearly showing the right to the claimed deduction”, citing Interstate Transit Lines v. Commissioner of Internal Revenue, 319 U.S. 590, 593, 63 S.Ct. 1279, 1281, 87 L.Ed. 1607 (1943); that the question is one of fact, citing Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 475, 64 S.Ct. 249, 88 L.Ed.171 (1943) and General Bancshares Corp. v. Commissioner of Internal Revenue, 326 F.2d 712, 717 (8 Cir. 1964), cert. denied 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40; and that §§ 162(a) and 212 are in pari materia, citing Trust of Bingham v. Commissioner of Internal Revenue, 325 U.S. 365, 373, 65 S.Ct. 1232, 89 L.Ed. 1670 (1945), and United States v. Gilmore, 372 U.S. 39, 45, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963), both of which concerned the corresponding sections of the 1939 Code. We are also told that “the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test.” United States v. Gilmore, supra, p. 49 of 372 U.S., p. 629 of 83 S.Ct. With these rules in mind, the nondeductibility of the expenditures under § 162(a) or § 212 appears to be inevitable. To the extent that conclusions of law are involved — and they necessarily are — they flow from the facts found. To the extent findings of fact are concerned, they find ample and almost overwhelming support in the record. Indeed, the very listing of the nine separate controversies provides a vivid outline of the taxpayer’s running controversy with Union and with the SEC whenever that agency’s posture and duties necessarily propelled it onto the Dyer-Union battleground. This has been a personal struggle, almost a vendetta, with Union. In the present context, the possible existence of an appropriate original reason for one to question management, see footnote 1, p. 573 of 378 S.W.2d, supra, loses significance. And the Commissioner’s Exhibit D, hereinafter referred to, which was the SEC’s order of September 25, 1957, generally prohibiting proxy solicitation in connection with Union’s 1958 annual meeting, except pursuant to an effective declaration appropriately filed, recited: “The Commission has been informed by J. Raymond Dyer, a stockholder of Union Electric Company (“Union”), a registered holding company, that he proposes to continue to engage in a proxy contest with Union and in furtherance of this purpose periodically to send proxy solicitation material to Union’s other stockholders”. What this court itself has said in the decisions above cited characterizes the several phases of the prolonged controversy or, if one will, of the several controversies, and is in itself almost destructive of the taxpayer’s case. We said, in 266 F.2d at pp. 37, 46 and 47, “The result has been that contentions have been multiplied and refined to the point of creating artificiality and almost obsessive pitch”, and “the argument which petitioners here make * * * impresses as amounting simply to a desire not to pass up any opportunity to engage in more objections.” Further, “It has already been allowed to go beyond the point of any useful purpose that can legally be served, in a matter which increasingly impresses that it is more permeated with the fertility of crusade than the objectivity of advocacy”, and “it is apparent, from the three-year history which has up to this point preceded, that the fight of petitioners against the management of Union Electric is one that is going to have an unremitting and indefinite duration.” In 287 F.2d, at pp. 776 and 777, we observed that it had “become obvious that the controversy had a personal aspect so far as petitioners were concerned, and that it was likely to remain of a continuing nature”, and “This lack of objectivity on the part of petitioners permeates their contentions also in other areas of their sought review. Apparently, their feeling against the management of Union Electric has evolved into an attitude, so as instinctively to make of almost everything a crusader’s cause.” In 291 F.2d, at p. 775, we spoke of “the time that he [Mr. Dyer] took up the role of antagonist to Union’s existing management”, and at p. 780 we described the SEC’s suit as one “to stop Dyer, in his misguided notion of unqualified privilege of self-defense.” It is true that Mr. Dyer testified that “in the tax years 1958 and 1959 he spent no money whatsoever in a fight and/or crusade over proxies of Union Electric Company, and neither solicited any proxies nor opposed the granting by stockholders of their proxies to Union’s management”; that “In none of the controversies * * * were any of his expenditures of a personal nature”; and that all except E “were incurred in the course of petitioner’s business as an attorney with full expectation, if successful, of reimbursement along with attorney’s fees”. It is also true that he claims to have relied on a contingent arrangement with his client-daughter Nancy for fees and on the availability of fees and reimbursement in successful shareholder actions and SEC opposition matters. He cites Matter of Engineers Pub. Serv. Co., 221 F.2d 708 (3 Cir. 1955). But apart from the fact that much of this is the self-serving testimony of an interested witness, see Schoenberg v. Commissioner of Internal Revenue, 302 F.2d 416, 419 (8 Cir. 1962), it provides at best no more than a conflict in the record. It certainly does not serve to deny the adequate supporting character of the record for the Tax Court’s opposing findings. We are not impressed with the taxpayer’s argument that because it was stipulated that he “sought” fees and penalties, a conclusion that his expenditures were for a business end is inevitable; the conclusion does not flow from the premise. Although Graham v. Commissioner of Internal Revenue, 326 F.2d 878 (4 Cir. 1964), Surasky v. United States, 325 F.2d 191 (5 Cir. 1963), and Locke Mfg. Co. v. United States, 237 F.Supp. 80, 87 (D.Conn.1964), upheld deductions (the first two under § 212 and the last under § 162(a)) for proxy solicitation expense, we find nothing in these decisions which demands a like holding on the facts here. Those cases involved realistic struggles over corporate control and policy and not what is essentially solitary effort, by way of continuous critical approach to management, on the part of a very minor shareholder or shareholders. Actually, Graham is adverse to the taxpayer for, at p. 880 of 326 F.2d, the Fourth Circuit specifically distinguishes the taxpayer’s 1957 case as a situation “in which a person holding small stock interests in a large corporation takes it upon himself to crusade for a particular point of view on a particular issue.” The additional aspects suggested with respect to Controversies E, I and J are no more persuasive. The taxpayer asserts that in E he was defending himself against a charge of willful violation of an SEC order for which if found guilty, he could be disbarred. He cites Commissioner of Internal Revenue v. Heininger, supra, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, as supporting authority. In the rate case, I, he essentially asserts that his appearance there was not personal but was on behalf of Nancy, as well as himself, and of a class and with proper anticipation of a fee award. And in the preemptive rights matter, J, he notes that he also represented Nancy and another shareholder with fees and reimbursement of expenses anticipated. We agree, however, with the Tax Court when it says that, as to E, “So far as we can see, the SEC was not attempting to curb or attack petitioner’s professional reputation, as contended by him, but only his personal, self-help act of mailing the postcards”. We fail to see in that controversy any real jeopardy to the taxpayer’s status as a member of the bar. We see, as to I, despite the taxpayer’s representation of his daughter, nothing more than personal aspects and personal interest as a consumer-customer in the rate controversy, and we thus conclude that he encounters the barrier of § 262. And we arrive at the same result with respect to J, particularly in view of the fact that the claimed preemptive rights for all three shareholders were directed to a very few shares with small aggregate value. Realistically, the pursuit of substantial litigation for this meager end, in the light of all this record, can equate only with personal interest. B. Exhibits. The taxpayer’s second line of attack is that certain exhibits were erroneously admitted in evidence and that the record, appropriately deleted, would not support the Tax Court’s findings. The exhibits so challenged are Commissioner’s Exhibits D (the SEC order of October 1957 reciting that taxpayer had informed the Commission that “he proposes to continue to engage in a proxy contest with Union” and that he “has filed with the Commission * * * preliminary solicitation material”), C (a letter dated January 7, 1958, from Nancy and the taxpayer to Union’s vice president and general counsel reciting that “the present management of the company may expect a proxy contest at the 1958 annual meeting”), E and F (SEC notices and orders of February 1958 and February 1959, respectively), H, I and J (Union’s notices of annual meetings of 1958 and 1959 and accompanying proxy statements), and G (the stipulation and the transcript of oral testimony in the 1957 Tax Court file). The objections were on grounds of immateriality and irrelevancy and, although perhaps belatedly, hearsay. We think that each and all of these exhibits were material. They were integral parts of the controversies and they tended to disclose attitude and to shed appropriate light and color as to the nature of those controversies. Their admission in evidence was not error. Affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 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.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, Respondent. No. 88-4160. United States Court of Appeals, Fifth Circuit. Feb. 8, 1989. Judith Dowd, Aileen A. Armstrong, Deputy Ass’n. Gen. Counsel, NLRB, Paul J. Spielberg, Washington, D.C., for petitioner. Victor J. Van Bourg, Paul Supton, San Francisco, Cal, for respondent. Michael Dunn, Director, Region 16, NLRB, Fort Worth, Tex., for other interested parties. Before REAVLEY, HIGGINBOTHAM, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: In this case our task is a delicate one. We must carefully determine when and to what extent a union may discipline a member who has exercised his or her right of access to the National Labor Relations Board (“Board” or “NLRB”) where the union claims that its actions are based entirely upon other legitimate factors. In making this determination, we must take care to preserve the narrow, but important and well-established, freedom of a union to regulate its purely internal affairs in a case in which we perceive an attempt by the Board to expand its jurisdiction and power despite limiting precedent. I. Factual Background. Iron Workers Union Local 263 (“Local”) is a signatory to a multi-employer/multi-un-ion collective bargaining agreement between the North Texas Contractors’ Association and the Iron Workers District Council of Texas (“District Council”) (as representative for and on behalf of Local 263 and Local 481). The District Council, and not the Local, is the collective bargaining representative for local unions and their memberships. Negotiations on behalf of local unions are conducted by a representative of the District Council and the Business Managers of the respective local unions. Accordingly, the District Council is the authorized representative of the Local for collective bargaining purposes. The collective bargaining agreement with the Contractors’ Association was automatically extended on April 30, 1982, and was to run until April 30, 1984. However, because of unfavorable economic conditions in the construction industry, the Contractors’ Association sought various changes to the existing agreement. New collective bargaining negotiations ensued, resulting in a “Stipulation Agreement Under the Top Hand Program” (the “Stipulation”) on December 10, 1982. The Stipulation modified the existing agreement in the employers’ favor. James W. Stevens, the president of the Local, and much of its membership did not like the Stipulation and desired to abrogate it. At a membership meeting on January 24, 1983, Stevens took an unofficial vote of the members, following prior discussions both at this meeting and beforehand, which vote revealed widespread disapproval of the Stipulation. However, no responsive action was formally authorized by the Local’s membership or executive board. Nor was the question of filing of unfair labor practice charges by the Local put to a vote. On December 14, 1982, purporting to act on behalf of the Local, and despite the lack of formal authorization, Stevens filed in the Local’s name an unfair labor practice charge with the NLRB. That charge, which attacked the Stipulation, was withdrawn shortly thereafter. On March 10, 1983, Stevens filed another virtually identical complaint that was subsequently dismissed. The second charge, like the first, was filed in the Local’s name, even though Stevens had no formal authorization. During this period, Stevens became an owner, one of the two directors of, and a field supervisor for, the Joplin Erection Company. On September 13, 1982, this short-lived enterprise became the Campbell Construction Company (“Campbell Construction”), with Stevens retaining the same positions. During 1983, acting in his supervisory capacity for Campbell Construction, Stevens wrote to various local union officials throughout the State of Texas, identifying himself as a “field superintendent” for the company, representing that he was interested in bidding some work in the various geographical areas, and questioning these officials as to whether the Stipulation would be applicable to such work. Stevens admits that Campbell Construction neither performed work nor bid on any specific job in those areas. II. Procedural Posture and Prior Holdings. A. The Internal Union Investigation and Proceedings. Some time during June 1983, the International Association of Bridge, Structural and Ornamental Iron Workers (the “International”) decided to take action against Stevens for his conduct. He was suspended from the Local’s presidency pending an investigation and, by letter dated June 29, 1983, was charged with acting beyond his authority but was informed that he was not being charged with the filing of unfair labor practice charges against the International. James Martin investigated the charges for the International, specifically as to whether Stevens had the authority to file Board charges on behalf of the Local. Upon completing his investigation, Martin filed internal union charges against Stevens in a letter dated September 9, 1983. The charges were severalfold: Stevens was accused of filing unfair labor practice charges with the Board on behalf of the Local, “without any authorization from the Constitution of this International Association” and without the authorization of either the executive board or the membership of the Local. The charges again recited that the action was not being taken against Stevens for exercising his own access rights to the Board, but for filing in the Local’s name. Stevens was also accused of fraudulently identifying himself as a superintendent of Campbell Construction. Vague references were made to the International’s constitution and Stevens’s oath of office. A hearing was held on October 26, 1983, at which the charges were again read to Stevens, and the clarification reiterated that he was being tried for unauthorized conduct and fraudulent misrepresentation, and not because he had filed charges with the NLRB. At the hearing, Martin testified that he had inspected the Local’s records, examining the minutes of the membership and executive board meetings, and had found that the subject of Stevens’ filing unfair labor practice charges on behalf of the Local had not been brought before either body and had not been formally authorized. He also testified that Stevens had never been employed by Campbell Construction as the term “employment” is understood in the construction industry. On January 23, 1984, the International’s General Executive Board reviewed the record and recorded findings and conclusions in its minutes. On January 25,1984, Stevens was found guilty. He was consequently removed from office, fined $2,000 ($1,800 of which was suspended), and prohibited from either running for office, or attending any meetings of, any local union for four years. Stevens retained his Local membership and status as a statutory employee in the construction industry. B. The Board Proceedings. Stevens filed charges against the International with the Board, claiming that his prosecution and punishment violated the National Labor Relations Act (“NLRA” or “Act”) § 8(b)(l)(A)’s prohibition of union-imposed restraints on employees’ section 7 rights to utilize Board procedures. Specifically, Stevens averred that he was punished for bringing the prior Board charges and that this would deter employee exercise of their access rights in the future. The Administrative Law Judge (“AU”) of the Board, after receiving and evaluating the evidence, issued a decision on June 8, 1984, concluding that the Union did not violate the Act. Stevens then filed exceptions with the Board, which did not issue its decision and order until December 13, 1985. That order, 277 N.L.R.B. No. 99, adopted the AU’s findings of fact, but concluded that the International had violated section 8(b)(1)(A). Relying upon Charles S. Skura (Operating Engineers Local 138), 148 N.L.R.B. 79 (1964), the Board appeared to hold that even if the International had not, as alleged, disciplined Stevens because he filed charges with the Board, it nevertheless violated the statute, since its conduct restricted employees’ access to the Board. In so holding, the Board majority stated that a union may not “... even... protect its legitimate institutional interests if in so doing it limits access to the Board. The order also pronounced that it was of no significance that the International may have had lawful motives as well, since its conduct contravened the congressional policy of unimpeded access to the Board’s proceedings because the filing of unfair labor practice charges a priori creates a protected “public interest” in the matter. Finally, the Board held that the conduct of the International was unlawful since it was reasonably likely to have a chilling effect upon employees by fostering the belief that they, too, might be disciplined if they sought access to the Board. On June 24, 1985, while the matter was pending before the Board, the Local conducted its next regularly-scheduled election as required by its constitution, its by-laws, and statute, 29 U.S.C. § 481(b). Because this election had already occurred by the time the Board issued its decision, the International filed a motion for reconsideration of the Board’s proposed remedy ordering Stevens’s reinstatement as president. The International requested that the record be reopened to adduce additional evidence and to provide the opportunity to brief the remedial issue. The International also filed an almost-concurrent petition for review in this court. The Board considered the matter for another five months, and on May 13, 1986, issued its first supplemental decision and order, 279 N.L.R.B. No. 123, refusing the request to reopen the record and for additional briefing, and denying reconsideration. That order expanded the remedial measures to include vacation of the election held on June 24, 1985, and ordered Stevens’s reinstatement as president “for a period equal to the amount of time left in his term of office when he was unlawfully removed, and until such time as the unlawful sanctions imposed against him have been removed and he has had sufficient time to conduct a campaign to be nominated for and to run for the president of Local 263, if he so desires.” On June 27, 1986, the International filed with this court a petition for review, and the Board filed a cross-application for enforcement, and then, on August 27, 1986, moved to remand the matter for further consideration. We granted that motion on September 25, 1986. The Board issued its second supplemental decision and order on September 11, 1987, 285 N.L.R.B. No. 86, eliminating that portion of its remedy vacating the intervening Local election of June 24, 1985, but affirming its finding of an unfair labor practice. The second supplemental order instructed the International to direct the Local to waive any impediments to Stevens’s challenging his exclusion from the June 24, 1985, election through internal union mechanisms so that he could then protest that election to the Secretary of Labor. Finally, the second supplemental decision revised the Board’s theory of the underlying violation of the Act by holding that the International failed to meet its burden under the test set forth in Wright Line, 251 NLRB 1083 (1980), enforced on other grounds sub nom. N.L.R.B. v. Wright Line, 662 F.2d 899 (1st Cir.1981), cert. denied, 465 U.S. 989, 102 S.Ct. 1612, 71 L.Ed. 2d 848 (1982), that it did not discipline Stevens for engaging in protected activity. The Board also concluded that the Union’s conduct did not meet the internal union affairs exception to liability for disciplinary actions established by NLRB v. Industrial Union of Marine & Shipbuilding Workers of Am. (“Marine & Shipbuilding”), 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). The Board now petitions for enforcement of both its original and second supplemental orders. We affirm the Board’s conclusion that the International violated the Act but base our decision upon the reasoning set forth in the second supplemental decision and reject the reasoning of the original decision. We enforce only that component of the Board’s remedy that requires the International to reimburse Stevens for any fines paid, as we conclude that the issue of the other affirmative relief is now moot. III. Standard of Review. We will uphold a Board finding of a section 8(b)(1) violation if it is supported by substantial evidence on the record taken as a whole. United Ass’n of Journeymen, Local 198 v. NLRB, 747 F.2d 326, 330 (5th Cir.1984); International Union of Operating Engineers, Local 406 v. NLRB, 701 F.2d 504, 508 (5th Cir.1983). We consider substantial evidence to be “such relevant evidence which a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In considering the record, we examine all of the evidence, not just that supporting the Board’s conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491-97, 71 S.Ct. 456, 466-69, 95 L.Ed. 456 (1951). “[W]e will [also] defer to plausible inferences [the Board] draws from the evidence, even if we might reach a contrary result were we deciding the case de novo.” TRW, Inc. v. NLRB, 654 F.2d 307, 310 (5th Cir. Unit A Aug.1981). This deference encompasses inferences as to an actor’s motivations. Radio Officers’ Union v. NLRB, 347 U.S. 17, 48, 74 S.Ct. 323, 339-40, 98 L.Ed. 455 (1954). Finally, although we are free to follow our own view of the law, we will “consistently yield to the Board’s reasonable interpretations and applications of the Act.” NLRB v. Action Automotive, Inc., 469 U.S. 490, 496, 105 S.Ct. 984, 988, 83 L.Ed.2d 986 (1985). IV. The Board’s Original Order. As indicated above, the Board’s original decision and order relied upon the proposition that employees have an absolute right of access to the Board and that union disciplinary measures may not interfere with that right, even if they are directed toward unrelated conduct or involve a wholly internal matter. We agree with Board Member Dennis’s concurrence to the original order that “[t]he right of access... is not absolute, as the majority suggests, [and that] union discipline imposed because of the unauthorized filing of unfair labor practice charges in the union’s name is not necessarily unlawful.” Member Dennis correctly notes that fact situations such as this, involving apparently “mixed motive” disciplinary actions, are properly subject to the analysis established by Wright Line and approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 397-404, 103 S.Ct. 2469, 2472-76, 76 L.Ed.2d 667 (1983). We also note that the Board’s assertion that unions may not regulate even wholly internal affairs, if such regulation in any way interferes with Board access, blatantly contravenes the well-established internal-union-affairs exception established by Marine & Shipbuilding. We cannot help but read much of the original decision as a conscious attempt by the Board to expand its jurisdiction and power in disregard of obvious circumscribing authority. Accordingly, we reject the reasoning, although not the result, of the original order. V. The Board’s Second Supplemental Order. A. Applicable Law. Section 8(b)(1)(A) makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of their section 7 “right to utilize the Board’s processes — without fear of restraint [or] coercion.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740, 103 S.Ct. 2161, 2168, 76 L.Ed.2d 277 (1983). Moreover, “the overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are involved.” Marine & Shipbuilding, 391 U.S. at 424, 88 S.Ct. at 1722. The prohibition of “coercion against making complaints to the Board is important in the functioning of the Act as an organic whole.” Id. (quoting Nash v. Florida Indus. Comm’n, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967)). In situations in which an employee is disciplined after filing a complaint but the union contends that the actions were taken for wholly unrelated and legitimate reasons, the Board applies the two-part test established by Wright Line, and approved by the Supreme Court in Transportation Management, as noted above. First, the Board’s General Counsel must make a prima facie showing that the filing of the complaint was a motivating factor in the decision to discipline. Second, if this burden is met, the union must then show conclusively that it would have undertaken the disciplinary action even if the complaint had not been filed. Wright Line, 251 N.L.R.B. at 1087. In its second supplemental decision and order, the Board properly applied Wright Line in finding a section 8(b)(1)(A) violation. We therefore review its decision by testing the substantiality of the evidence. B. Substantiality of the Evidence. 1. General Counsel’s Prima Facie Case. Looking at the record as a whole, there is substantial evidence supporting the conclusion that the General Counsel met his initial burden under Wright Line. Stevens was without question a statutory employee who had engaged in protected activity shortly before being subjected to disciplinary action. The Board accepted the AU’s finding that Stevens was removed from office because he filed charges without authorization. The International argues that, because the lack of authorization was the key element, acceptance of this finding precludes the conclusion that impermissible coercion was a motivation. However, the record is somewhat ambiguous as to whether authorization was necessarily required to undertake the activities in question. Moreover, the International removed Stevens from office before investigating whether his conduct was authorized. Nor did the allegedly fraudulent use of the Campbell Construction letterhead, later asserted as a ground for discipline, appear to be a major initial concern of the International. The record shows that the International could be charged with knowledge of Stevens’s letters as early as February 1983, but it did not cite this conduct in its June suspension letter. There also was substantial evidence tending to mitigate the apparent outrageousness of this purported fraud. The Board could have found, drawing the inferences in favor of the International, that improper coercion did not figure in the decision to discipline Stevens. Yet the evidence was sufficient “to support the inference [drawn by the Board] that protected conduct was a ‘motivating factor.’ ” Wright Line, id. at 1089. We defer to the inferences drawn and will not freely substitute our own de novo review. TRW, 654 F.2d at 310. Accordingly, we conclude that the finding that the General Counsel met his burden is supported by substantial evidence. 2. The Union’s Burden. Since the General Counsel met his initial burden under Wright Line, the International had to prove that it would have taken the same disciplinary measures absent the protected activity. The two reasons asserted for the discipline are Stevens’s unauthorized conduct and the alleged fraud. The International presented, on the authorization issue, two documents that very generally indicate that Stevens’s conduct was unauthorized and for his own personal benefit. These documents could have been considered sufficient by the Board to meet the International’s burden. However, they were not. Instead, the Board chose to consider the reasons asserted for the firing and these documents to be either pretextual or revealing only a secondary motive. See Radio Officers, 347 U.S. at 48, 74 S.Ct. at 339-40. This view of the circumstances appears to be based upon the vagueness of the documents and the negative inferences drawn from the International’s failure to put on key witnesses within its control who could have added substance to the unclear documents. The International relies heavily upon various formal and informal statements made by its officials to Stevens that he had the right to bring charges before the Board and that his doing so was not a factor in the actions taken against him. As with the authorization issue, although these statements facially support the International’s case, in the absence of hearing testimony they amount to only a pro forma assertions which any well-counseled union would make. No union is going to announce that a member does not have or cannot exercise access rights to the Board, just as no employer is going to state that it fired or took other disciplinary action against an employee for engaging in protected activity. See Wright Line, 251 N.L.R.B. at 1083-84. The Board must look beyond formal pronouncements to substance. In this case, it found the reasons given to be pretextual. The International failed to introduce any of the testimony that would have precluded the Board from drawing the negative inferences that formed the basis of its decision. We are not free to substitute contrary inferences based upon the record before us. The allegedly fraudulent use of the Campbell Construction stationery similarly could be found, on the record, to be mere pretext. As stated above, the initial suspension letter did not even mention this issue, though the International had been aware of Stevens’s conduct for several months. The reason asserted for imposing penalties based upon this activity is that it could expose the International to potential liability for fraud. However, Stevens introduced testimony that he had business relations with Larry Campbell, the company’s president, and had sent the letters with his permission and possibly even at his behest. The International failed to introduce contrary evidence. Most notably, its investigator, Martin, who had intimate knowledge of the whole Campbell Construction affair, was not called. On the record, it did not appear that the International faced a serious prospect of liability, although the fear of liability need not have been enormous to justify taking disciplinary action. However, the evidence permits the inferences that the prospect of liability was not great, that the International was aware of this, and that any resulting punishment was not undertaken on this basis alone. As noted above, we may not interject our own inferences if those drawn by the Board are supportable. C. Application of the Internal-Interests Exception. An exception to the prohibition of disciplining employees for bringing Board charges exists where “plainly internal affairs of the Union are involved.” Marine & Shipbuilding, 391 U.S. at 424, 88 S.Ct. at 1722. The International asserts that its actions fall under this exception even if they cannot survive scrutiny under Wright Line, and that the Board, in its second supplemental order, misapplied the law concerning this exception. We find that it did not. Under our precedent, a Union must establish two elements in order to meet the internal-affairs exception: (1) The rule or policy by which the action is taken must be “consistent with federal labor policy”; and (2) the measures imposed must be narrowly tailored to “further ‘plainly internal’ union concerns.” NLRB v. International Brotherhood of Boilermakers, 581 F.2d 473, 476 (5th Cir.1978). The International failed to establish either element. In support of its actions, the International cites several provisions of its constitution that allegedly were breached by Stevens. However, none of these provisions specifically speaks to the authority of a local president to undertaken certain actions. In fact, many of these sections are so vague that they arguably could support a national policy prohibition on almost any conduct. As Member Dennis notes in her concurrence to the original decision, the International failed to introduce any evidence of specific rules or policies that support its position, even though the cases upon which it primarily relies required such clearly-articulated policies. In the absence of proof of such policies, it is permissible to infer that none exist. The Union also contends that it has a special interest in the loyalty of its officers and that where the charges brought are against the union rather than the employer, discipline becomes more permissible under Boilermakers, 581 F.2d at 477 (dictum). We do not read Boilermakers so broadly. That case turned on the fact that the member in question was a paid union employee who had clearly disregarded the duties for which he was compensated. Id. at 477-78. Under the authorities relied upon in Boilermakers, a heightened duty of loyalty exists only where the official is also a paid employee of the union. We note that there are many cases prohibiting discipline where charges are brought against unions by officers. Therefore, because Stevens was not a union employee and because we believe that an allegation of wrongful behavior such as that charged here falls within the range of protected grievances, we conclude that the first element of Boilermakers was not established. Although we need not address the issue, we note that the second condition, that punishment must be narrowly tailored, is not satisfied here either. Assuming that the International had a clear policy justifying discipline, a properly-measured punishment at most would have suspended Stevens from office. The fine imposed here constitutes an impermissible “pecuniary penalty” under Boilermakers, 581 F.2d at 477. Furthermore, the ban on running for office and attending meetings denied Stevens’s rights as a member without furthering any purely internal concerns. The only arguable interest advanced by the ban is that Stevens may have been reelected and continued to undertake unauthorized acts in the future. However, the national policy in favor of union democracy counsels that the members, rather than union elites, should decide whether one of their rank and file is unfit to hold office, especially where it is uncertain, as here, that he or she has violated any clearly-established policies. Suspension alone would have sufficiently removed any immediate threat and punished the transgression while properly leaving it to the members to decide future events. Finally, the suspension from attending meetings impermissibly affects membership status, is purely punitive, and has no conceivable justification. Permissible punishments must fit internal union concerns like a glove. The International cannot plausibly maintain that its punishment of Stevens even comes close to meeting this requirement. VI. The Remedies Imposed. Section 10(c) of the Act grants the Board broad remedial powers to order violators “to cease and desist from such unfair labor practice, and to take such affirmative action... as will effectuate the policies of the Act.” The Board has broad discretion in its choice of remedies. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215-16, 85 S.Ct. 398, 405-06, 13 L.Ed.2d 233 (1964). Board remedies are therefore “subject only to limited judicial review.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812, 81 L.Ed.2d 732 (1984); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 288-89, 97 L.Ed. 377 (1953). We will set aside an order only if “it can be shown that [it] is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943); J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 537 (5th Cir.1969). As noted above, the Board ordered the International to reimburse the fines paid by Stevens, to remove the sanctions on running for office and attending meetings, and to permit Stevens to use internal procedures to appeal his exclusion from the 1985 Local presidential election. To the extent possible, the Board has attempted to restore the status quo ante. Such remedies are generally considered valid. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Certainly, the repayment of fines and restoration of full membership rights cannot be seriously challenged. In any event, we need not enforce that portion of the order restoring full membership rights, as the limitations imposed upon Stevens by their own terms are no longer in effect. Only the order concerning the election appeal, were we to address it, presents any difficulty. However, since the term of office created by the 1985 election has expired, we consider this component of the remedy to be moot and accordingly, it is unnecessary to determine its validity. VII. Conclusion. We AFFIRM the finding of a section 8(b)(1)(A) violation based upon the existence of substantial evidence supporting the Board’s conclusion, and the correctness of the reasoning of the second supplemental order and decision, even though we flatly reject the reasoning of the original order and decision. In accordance with our decision, we order the enforcement of that portion of the Board’s remedy requiring the International to reimburse Stevens for any fines paid, but we do not address, and need not enforce, the other remedial measures imposed since we consider them to be moot. . The president of the Local is not its employee and performs largely administrative duties, presiding at meetings and providing a second signature on checks. The Business Agent of the Local is its “recognized representative.” . It is unclear exactly what Stevens hoped to achieve through this enterprise. He most likely was using it as a device to test general worker sentiment concerning the Stipulation. . The findings and conclusions read, in pertinent part, as follows: During the discussion and review of the charges, the recommendation of the hearing officer and the evidence set forth in the transcript of the trial, the members of the General Executive Board unanimously agreed that the evidence proved beyond any doubt that Brother Stevens had committed the acts as charged and by so doing he violated his obligation as a member, his obligation as an officer and other applicable sections of the Constitution of this International Association. The General Executive Board noted that Brother Stevens engaged in personal conduct, using his elected office to pursue his own goals, without knowledge or approval of the membership and without authority of the Constitution and ByLaws. During its deliberations, the General Executive Board carefully reviewed the evidence which was presented with respect to the charge of Brother Stevens, while serving as president of Local Union No. 263, Fort Worth, Texas, used the letterhead of Campbell Construction Company..., a company by which he was never employed, to correspond with several of the business managers of Texas Local unions. The General Executive Board noted that the evidence contained in the transcript clearly establishes that Brother Stevens did in fact send such correspondence fraudulently identifying himself as the superintendent of the Campbell Construction Company. The General Executive Board noted that by his action Brother Stevens had exposed Local Union No. 263 to potential legal litigation for fraudulent misuse of that company’s letterhead since he was president of the Local Union at that time. Each of these actions would independently and alone support the discipline imposed herein. The General Executive Board noted that Brother Stevens has an absolute right to file unfair labor practice charges as an individual against the International Union, the Local Union, or any other entity. (Emphasis added). . The Board does not seek enforcement of its first supplemental order, since that order was superseded by its second supplemental order modifying the remedy. . Although Wright Line involved an employer’s violation of § 8(a) of the Act, the same analysis is applied to alleged union violations of section 8(b)(1)(A). Service Employees Local 1-J, 273 N.L.R.B. 929, 937 (1984); Nation’s Capital Area Local, Am. Postal Workers, 278 N.L.R.B. 751 (1986). . The International may not dispute, for the first time on appeal, Stevens’s employee status. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2082-83, 72 L.Ed.2d 398 (1982). . A party’s failure to call rebuttal witnesses who are peculiarly within its control raises the inference that their testimony would not have been favorable to that party’s position. See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939); United States v. Roberson, 233 F.2d 517, 519 (5th Cir.1956). This adverse-inference rule is an important one that should be applied by the Board where appropriate. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 174, 94 S.Ct. 414, 420, 38 L.Ed.2d 388 (1973); International Union, UAW v. NLRB, 459 F.2d 1329, 1347 (D.C.Cir.1972). Moreover, the inference takes on added strength where, as here, a party’s witnesses fail to appear, notwithstanding that they are under subpoena. P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 388 (1st Cir.1978); International Union, UAW, 459 F.2d at 1338-39, and cases cited therein; International Union, UAW v. NLRB, 419 F.2d 686, 687 (D.C.Cir.1969) (per curiam). The two key figures in the International’s defense should have been Lyons, the International's general president, and Martin, the staff member who investigated the charges against Stevens and signed the complaint. Lyons was positioned to shed light upon such critical questions as just how Stevens’s actions had violated the International’s constitution; what difference it made to the International’s ability to function effectively whether Stevens had filed his charges in the name of the local or in his own name; and why the International decided to suspend Stevens before it inquired into the nature of his authority. Martin, for his part, could be expected to testify as to what his investigation disclosed as to Stevens’s authority from his executive board and from his members, and as to what Martin told Lyons in this regard. Although under subpoena from the General Counsel, neither Lyons nor Martin appeared at the hearing. Accordingly, the Board could reasonably conclude that, had Lyons and Martin appeared, their testimony would have supported its conclusion that the International would have disciplined Stevens even if he had obtained formal authorization from the membership of the Local and that the International’s complaint regarding Stevens’s alleged lack of authority was a reason fabricated after the fact to cloak the International’s true intent. The cases relied upon by the International for the proposition that such inferences may not be drawn under these circumstances are all inap-posite. Both NLRB v. Chester Valley, Inc., 652 F.2d 263, 271 (2d Cir.1981), and Larid Printing, Inc., 264 N.L.R.B. 369, 377 n. 121 (1982), held that negative inferences may not be used in establishing a prima facie case. In this case, however, the inferences operate only as to the International’s rebuttal, since the General Counsel met his initial burden without their benefit. Accordingly, their application here is entirely appropriate. . Under Wright Line, the reasons asserted may be permissible, and a violation still be found to have occurred, if the Union cannot show that it would have imposed the same punishment absent the protected activity. 251 N.L.R.B. at 1083 n. 4. . At the Union’s own hearing on the matter, Stevens tried to introduce an affidavit from Campbell that he had permission to send the letters, but this evidence was excluded on technical grounds. . Marine & Shipbuilding clarified and defined the parameters of the internal-union-affairs exception to § 8(b)(1)(A) liability previously recognized in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 184, 87 S.Ct. 2001, 2008-09, 18 L.Ed.2d 1123 (1967). . Scofield v. NLRB, 394

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"?

QUALITY EGG SHIPPERS, Inc. v. UNITED STATES. GROSS v. UNITED STATES. Nos. 14892, 14893. United States Court of Appeals, Eighth Circuit. April 23, 1954. Wiley E. Mayne, Sioux City, Iowa (Jesse E. Marshall, Sioux City, Iowa, Irving M. Wolff, Miami, Fla., on the brief; Shull & Marshall, Sioux City, Iowa, of counsel), for appellants. F. E. Van Alstine, U. S. Atty., Sioux City, Iowa (Richard W. Beebe, Asst. U. S. Atty:, Sioux City, Iowa, on the brief), for appellee. Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges. COLLET, Circuit Judge. Quality Egg Shippers, a corporation, and Herman Gross were convicted of violating Section 491, Title 7, U.S.C.A. and appeal. David Schiller had, for a considerable time prior to July, 1951, been selling eggs in Florida for Richard Swalve, doing business with his brother as the Swalve Produce Co., located at George, Iowa. In the latter part of July, 1951, Schiller and the defendant Gross went to George, Iowa, and made an oral agreement with Swalve, by which agreement Swalve was to ship eggs to Florida to Gross and a corporation to be formed by Gross. The corporation was created under the name of the defendant, Quality Egg Shippers, Inc. Gross was its president. The nature of that agreement is the crucial question in this case. A large number of cases of eggs were shipped to Quality Egg Shippers, Inc., at Miami, Florida, between the early part of August, 1951, and March, 1952. Swalve received payment for all eggs shipped except the last two truckloads, which were shipped February 22 and March 1, 1952. The defendants were indicted and convicted for knowingly, and with intent to defraud, failing to account to Swalve for these two truck loads. The pertinent portion of Section 491, Title 7, U.S.C.A., upon which the indictment was based is as follows: “ * * * any person, firm, association, or corporation receiving any * * * poultry products or any perishable farm products of any kind or character, * * * in interstate commerce, * * * for or on behalf of another, who without good and sufficient cause therefor, * * * shall knowingly and with intent to defraud fail truly ánd correctly to account therefor shall be guilty of a misdemeanor * * The defense was that the Quality Egg Shippers, Inc., was the purchaser of the eggs and not the agent of Swalve. If it was a purchaser, the statute does not apply. If it was an agent, the statute does apply. The trial court submitted the question of agency or purchaser to the jury. The jury found Quality Egg Shippers was the agent and convicted. Defendants contend that the evidence was undisputed on that issue and presented only a question of law which the court should have determined in their favor and directed a verdict of acquittal. In that manner the crucial question arises. If the evidence was undisputed and established a clear and unambiguous agreement concerning the relationship the parties bore to each other, its legal construction was a question of law. But if the language used and the facts and circumstances surrounding the transaction were such that conflicting inferences could reasonably be drawn as to the intent of the parties, a question of fact arose for the jury’s determination. From several circumstances and some conclusions stated by Swalve, an inference could have been drawn that the eggs were sold to the defendant corporation. But if Swalve’s testimony was believed, as it evidently was, the jury was justified in concluding that the corporate defendant and Gross were the agents of the shipper Swalve. Mr. Swalve’s testimony is to the effect that the corporation and Gross were to obtain customers for the purchase of the eggs in Florida. As those customers were obtained Gross called Swalve and informed him the quantity and quality of eggs to be shipped. As soon as Swalve obtained the desired quantity it was shipped. The amount to be remitted by defendants was to be the top quotation on the New York market the day of arrival of the eggs at Miami, less 3% cents per dozen, 3 cents of which was allowed for freight and y2 cent for commission. If cheaper transportation could be obtained, defendants were to get the benefit of the difference. The definite amount to be remitted, based on the New York market, was for the purpose of enabling the shipper to know how much he was to receive. It also made it possible for the defendants to sell in advance at whatever the New York price would be on the date of arrival in Florida, to sell at a price fixed in advance of arrival, or to order a larger amount than had actually been sold and hold a portion of a shipment on the prospect of selling it at a price greater than the New York price on the date of arrival. This arrangement gave defendants the opportunity to treat a portion of a shipment as if it was purchased by defendants, to remit to Swalve upon the price formula agreed upon, and speculate on getting more upon resale than the agreed commission. This appears to have been done on some occasions. But the possibility, under the arrangement made, for the defendant corporation in effect to purchase from itself and speculate on obtaining a profit greater than its commission did not necessarily make the arrangement primarily one of purchase and sale. The evidence shows that ordinarily the truckloads were delivered to predetermined customers from the truck to the customers’ places of business upon arrival in Florida. Occasionally a part of a truckload was placed in defendants’ cooler and sold later. But there was no fixed arbitrary time within which remittances had to be made. This again afforded an opportunity to defendants to speculate on being able to obtain more, before a reasonable time for remittance had elapsed, than the stipulated commission, without the necessity of maintaining the capital necessary to remit for all of the shipments upon arrival. But it does not appear that Swalve knew of any such practice or was concerned about whether defendants took the risk of speculation. He testified that his concern was only in receiving the New York price less the 3% cents. It further appears that the volume of sales had declined in February, 1952, to such an extent that Swalve went to Miami to see what was wrong. He was told by Gross that competition was rather keen and a larger commission should be allowed. Swalve agreed to increasing the commission to % of a cent per dozen. The two loads now involved were shipped under that commission rate. Swalve testified that it was agreed that when defendants obtained regular customers to whom shipments were made direct, a commission of % cent per dozen was to be paid defendants. Schiller had one such customer before the arrangement with the corporation and Gross was made. That customer was specifically mentioned at the time of the original agreement. Defendants contended that the reason for not remitting for the two loads in question was because Swalve owed them for commission on eggs shipped direct to many customers in Florida. In an effort to obtain payment for the two loads, Swalve agreed to pay commission on direct shipments he said he did not owe defendants, but that Gross flatly refused to pay for the eggs received unless Swalve would execute a written contract under which defendants would be the exclusive outlet of Swalve’s eggs in Florida and receive a commission on all eggs shipped into the State of Florida by Swalve. This Swalve would not agree to. The weight of the evidence of the witnesses was, of course, for the jury. But the very fact that defendants were claiming commission on shipments to customers, which did not pass through defendants’ hands, and that the parties agreed that there was for a time one such customer, were facts which the jury could consider in determining whether the arrangement was one of agency or of direct sale to defendants. Whether the defendants’ failure to remit was for the reason asserted by them or whether the failure to remit was for the purpose of compelling Swalve to execute a new contract was a question of fact to be determined by the jury. And the question of whether the agreement relating to the regular customers was, as contended by defendants, a separate and distinct contract from the agreement concerning eggs which were to be shipped direct to defendants or was merely an incident to the general agency contract between defendants and Swalve, rested upon the weight to be given the testimony of the witnesses. The question of whether defendants were agents or purchasers was also one of fact for the jury. The jury resolved these questions by finding that defendants were agents. The evidence adequately supported that finding. The judgments should therefore be and are 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?

Shirley RUGE, Personal Representative of Curt Manke, Deceased, v. CITY OF BELLEVUE, Appellee. No. 89-1258. United States Court of Appeals, Eighth Circuit. Submitted Oct. 10, 1989. Decided Dec. 26, 1989. John P. Grant, Omaha, Neb., for appellant. Brian D. Nolan, Omaha, Neb., for appel-lee. Before LAY, Chief Judge, SNEED, Senior Circuit Judge and WOLLMAN Circuit Judge. The HONORABLE JOSEPH T. SNEED, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation. LAY, Chief Judge. Shirley Ruge appeals the dismissal of her complaint under Fed.R.Civ.P. 12(b)(6). She alleges the City of Bellevue (hereinafter the City) violated the civil rights act under 42 U.S.C. § 1983, by causing the death of her son Curt Manke. We reverse and remand for further proceedings. Background Curt Manke was an employee of the City of Bellevue’s sewer department. He was killed when a fourteen foot ditch he was working in collapsed. Shirley Ruge, his mother and the personal representative of his estate, filed this lawsuit under section 1983 alleging the City had a deliberate policy of not shoring up ditches and then requiring employees to work in them without warning of the dangers. She alleges this policy deprived her son of his life in violation of his fifth amendment right to substantive due process. The City moved for dismissal under Fed. R.Civ.P. 12(b)(6), arguing the factual allegations contained in the complaint failed to establish a constitutional violation sufficient to state a claim upon which relief could be granted under section 1983. The district court held that in order for negligence to rise to the level of a constitutional violation sufficient to state a claim upon which relief could be granted under section 1983, the plaintiff must allege a policy of reckless disregard, deliberate indifference, or gross negligence on the part of the City. Finding Ruge’s petition to be merely con-clusory and lacking allegations of fact which could establish such a policy, the district court granted the City’s motion to dismiss. Discussion The dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is reviewed de novo. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). In conducting that review, we examine the complaint in the light most favorable to the plaintiff, Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir.1978) (citing Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974)), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979), to determine whether it is “beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. In Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities could be sued under section 1983 only where the municipality “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” or where “constitutional deprivations [occurred] pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id. at 690-91, 98 S.Ct. at 2035-36. In establishing municipal liability under section 1983, the plaintiff must prove that the City deprived the decedent of his constitutional rights through a governmental policy such that it is culpable for the resulting injuries. In City of Canton, Ohio v. Harris, — U.S. -, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court held that the failure to adequately train police officers could be the basis for municipal liability under section 1983 only where that failure amounted to a deliberate indifference to the constitutional rights of the victim. Id. 109 S.Ct. at 1204. In City of Canton, the Supreme Court determined that for a policy of a municipality to provide the basis for a violation of substantive due process it must be shown: (1) that the policy is inadequate; (2) the adoption of such a policy reflects a deliberate indifference to the constitutional rights of the plaintiff; and (3) the policy caused a violation of the plaintiffs constitutional rights. Id. 109 S.Ct. at 1205-07; see also Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.1989) (construing City of Canton, 109 S.Ct. 1197). Analyzing this complaint in light of the rule 12(b)(6) dismissal, the plaintiff alleged that the City has formulated and adhered to a long standing policy of not shoring up the walls of ditches into which it sends its employees, that the City knew of the dangers of such conduct, that it continued to require its employees to work in such ditches, and that it intentionally failed to warn those employees of the dangers involved in such work. Viewing these allegations in the light most favorable to the plaintiff, we cannot say that it is beyond doubt that the plaintiff will be unable to prove any set of facts in support of her claim that would entitle her to relief. The City argues additionally that the facts contained in the complaint are insufficient to support a claim under section 1983 because of the absence of allegations of improper state action. In support of this proposition the City relies upon McClary v. O’Hare, 786 F.2d 83 (2d Cir.1986), and Rankin v. City of Wichita Falls, Tex., 762 F.2d 444 (5th Cir.1985). In McClary, an employee of the county highway department was killed when a wire cable on a crane broke, causing the boom to fall and strike the decedent. The plaintiff brought a section 1983 action alleging that the county’s deliberate disregard and violation of state law had created a risk of injury or death and thus deprived the decedent of his life in violation of his substantive due process right to life. The Second Circuit affirmed the dismissal of the complaint for failure to state a cause of action upon which relief could be granted, finding that the decedent’s death was not caused by a constitutional violation. The McClary court found that reckless acts of a government employer are not actionable under section 1983 unless the conduct complained of is “uniquely governmental in character.” Id. at 89 n. 6. The McClary court stated: We do not think that improper actions taken by employers violate an employee’s substantive due process rights simply because that employer is a government official. This is simply not a case in which a government official, because of his unique position as such, was able to impose a loss on an individual. In sum, under these circumstances, the substantive component of the Due Process Clause does not provide a remedy to a public employee that would not be available to a private employee subject to identical conduct by his employer. McClary, 786 F.2d at 89 (citation and footnote omitted). In Rankin, the decedent worked at a municipal water treatment plant and drowned while attempting to save another employee who had fallen into one of the water treatment tanks. The plaintiff sued the municipality alleging that various safety defects in the work site were obvious and known, and existed pursuant to customs and practices of the municipality. The Fifth Circuit affirmed the dismissal of the complaint on the grounds that it failed to state a claim for relief under the Civil Rights Act. The City argues that McClary and Rankin stand for the proposition that in an employer-employee relationship where the plaintiff fails to show the state conduct complained of was of a “uniquely governmental character” there is no abuse of government authority and thus no improper state action. The City concludes, therefore, that the complaint in this case should be dismissed for lack of improper state action because it fails to allege the City’s conduct was of a “uniquely governmental character.” The City, however, has failed to fully analyze these cases. As explained by the McClary court, their holding would not preclude all actions against a municipality simply because the municipality was acting as an employer. The court stated that the uniquely governmental character test would not exclude “grossly negligent, reckless, or intentional abuses of governmental authority from the purview of section 1983.” 786 F.2d at 89 n. 6. “Where harms caused by government employers to their employees are attributable to the abuse of the government’s authority rather than to an ordinary tort, such harms would continue to be actionable under section 1983.” Id. The actual holding in McClary is that the decedent’s death was not caused by any established state procedure and therefore did not constitute a constitutional deprivation. 786 F.2d at 87. Thus, where the state abuses its governmental power through an alleged policy of actively placing a person into a situation of known danger the Constitution proscribes and limits such action. Cf. Bradberry v. Pinellas County, 789 F.2d 1513, 1517 (11th Cir.1986) (distinguishing between situations where a state actively places someone in danger and where the state fails to help someone already exposed to a risk not created by the governmental body, and holding that no liability under section 1983 arises in the latter situation). However, where the state simply commits a tort, there is no misuse of government power when “the event, however tragic, was an accident neither the occurrence of which nor the particular victim of which could have been predicted.” McClary, 786 F.2d at 87. We deem a policy, if adopted and proven, that would show a city actively pursued conduct which was deliberately indifferent to the constitutional rights of its citizens, would reach constitutional dimensions and be actionable under the Civil Rights Act. See City of Canton, 109 S.Ct. at 1204. In the present case, the plaintiff has alleged such a policy and, therefore, has satisfied the “state action” requirement for purposes of rule 12(b)(6). Conclusion For the reasons set forth above, we are satisfied the plaintiffs complaint is sufficient to survive a motion to dismiss under rule 12(b)(6). However, on this record we are unable to determine whether the action complained of was pursuant to a “policy” on the part of the City and whether the other elements of a section 1983 action, as discussed above, are present. We therefore remand to the district court for further proceedings not inconsistent with this opinion. For the reasons set forth above, we reverse and remand this case to the district court. . The Honorable William G. Cambridge, United States District Judge for the District of Nebraska. . We note that the complaint alleges conduct of the City being taken "by and through its agents.” However, as counsel acknowledged on appeal, liability for the actions or conduct of its agents cannot be extended to the City solely on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. . The district court found that the complaint failed to allege specific facts establishing that the City’s practice was more than a single set of circumstances relating to the decedent. However, while an inference of an unconstitutional policy may not be taken from a single incident, Oklahoma City v. Tuttle, 471 U.S. 808, 821-24, 105 S.Ct. 2427, 2435-37, 85 L.Ed.2d 791 (1985), a single incident may be enough to establish municipal liability. Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986) (finding that the decisions or conduct of municipal policymakers on a single occasion could constitute a "policy” and provide the grounds for section 1983 liability). The crucial question is whether the action taken that caused the loss was pursuant to a policy of the municipality. See Pembaur, 475 U.S. at 483-84, 106 S.Ct. at 1300-01. On the record before us, we are satisfied that the plaintiff has alleged sufficient grounds in her complaint to proceed. . If the conduct complained of by a plaintiff can be shown to have been taken pursuant to a "policy” of the municipality with the required degree of culpability, the fact a public employee is able to recover where a private employee could not is irrelevant. That the constitution prohibits such acts when taken by the state or municipality and not by private actors says no more than the obvious; the fourteenth amendment bars state action, not private action. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 365-66 (8th Cir. 1988); Pariser v. Christian Health Care Sys., Inc., 816 F.2d 1248, 1252 (8th Cir.1987). . The Rankin court assumed the municipality’s conduct rose to the level of negligence necessary to state a claim for relief under section 1983 but held; [Precedent indicates that for a complaint to state a constitutional claim under section 1983, the plaintiffs must at least make allegations sufficient to permit them to prove the abuse of a special authority or obligation of government. ****** Because [decedent’s] employment relationship with the City of Wichita Falls placed him in no more restraint than would have been entailed in an ordinary private employment relationship, and because the existence of the alleged workplace defects here did not amount to a misuse of government power, we hold that the complaint does not state a claim upon which relief may be granted. ****** We hold that the complaint here does not contain allegations sufficient to make out a claim of the sort of abuse of government power necessary to elevate an ordinary tort claim to constitutional status. Rankin, 762 F.2d at 448-49. .The distinction between these two situations is illustrated in this very case. The death of Curt Manke while working for the City does not, in itself, violate the constitution. The constitutional violation occurs when his death is caused by an inadequate municipal policy, adopted with the requisite culpability. It is then that an abuse of government authority arises sufficient to state a cause of action under section 1983.

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 "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 appellant. 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?

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle, Administrator, Respondent, Mercedes-Benz of North America, Inc., General Motors Corporation, Volkswagen of America, Inc., Intervenors. GENERAL MOTORS CORPORATION, Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Volkswagen of America, Inc., Natural Resources Defense Council, Inc., Mercedes-Benz of North America, Inc., Interve-nors. MERCEDES-BENZ OF NORTH AMERICA, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Natural Resources Defense Council, Inc., Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Automobiles Peugeot, Volkswagen of America, Inc., Intervenors. Nos. 80-1312, 80-1464, 80-1710 and 80-1712. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 28, 1980. Decided April 22, 1981. David D. Doniger, Washington, D.C., with whom Richard E. Ayres, Washington, D.C., was on the brief, for Natural Resources Defense Council, Inc., petitioner in Nos. 80-1312 and 80-1712 and intervenor in Nos. 80-1464 and 80-1710. William Weber, Jr., Detroit, Mich., with whom Thomas L. Arnett and Frazer F. Hilder, Detroit, Mich., were on the brief, for General Motors Corporation, petitioner in No. 80-1464 and intervenor in No. 80-1312. Jose R. Allen, Atty., Dept, of Justice, Boston, Mass., of the bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of Court, and Bruce Bertelsen, Atty., E.P.A., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of Court, Washington, D.C., with whom Angus MacBeth, Acting Asst. Atty. Gen., Donald W. Stever, Jr., Atty., Dept, of Justice, Patrick O’Hare and Gerald K. Gleason, Attys., E.P.A., Washington, D.C., were on the brief, for respondents. Nancy J. Marvel, Washington, D.C., also entered an appearance for respondents. Patrick M. Raher, Washington, D.C., with whom David M. Gische, Washington, D.C., was on the brief, for Mercedes-Benz of North America, intervenor in Nos. 80-1312 and 80-1464 and petitioner in No. 80 — 1710. Herbert Rubin, New York City, Thomas H. Truitt and Terrance Roche Murphy, Washington, D.C., were on the brief for Volkswagen of America, Inc., intervenor in Nos. 80-1312, 80-1464 and 80-1712. Richard deC. Hinds and Christopher Miller Klein, Washington, D.C., were on the brief for Automobiles Peugeot, intervenor in No. 80-1712. Before ROBB, MIKVA and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. Opinion concurring in part and dissenting in part filed by Circuit Judge ROBB. MIKVA, Circuit Judge: These consolidated cases present a variety of challenges to actions of the Environmental Protection Agency (EPA) in setting standards to govern emissions of particulate matter and oxides of nitrogen from diesel vehicles. The Natural Resources Defense Council (NRDC) argues that the agency’s actions do not adequately protect the public health; General Motors Corporation (GM) and Intervenors Mercedes-Benz of North America, Inc., and Volkswagen of America, Inc., assert that the EPA did not give adequate consideration to safety factors, and that, in a variety of ways, the standards are too strict. Finding that the agency has stated adequate reasons for its decisions, and that its actions are consistent with statute, we uphold the challenged regulations in their entirety. I. THE REGULATORY FRAMEWORK The EPA is authorized by the Clean Air Act (Act) to regulate emissions of harmful pollutants from motor vehicles. The Act itself specifies the quantity of acceptable emissions from light-duty vehicles for three classes of pollutants: carbon monoxide, hydrocarbons, and oxides of nitrogen. Act § 202(b)(1). Section 202(a)(1) of the Act confers on the EPA Administrator the general power to prescribe by regulation “standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” These provisions are supplemented and qualified by various specific provisions relating to particular classes of vehicles or pollutants. E.g., Act §§ 202(a)(3)(A)(i), 202(a)(3)(F), 202(b)(6)(A). The statutory standard for hydrocarbon emissions from light-duty vehicles is an absolute one. For models manufactured from 1977 to 1979, hydrocarbon emissions may not exceed 1.5 grams per vehicle mile; for those manufactured from 1980 on, the standards must require a reduction of at least ninety percent from the emission standards applying in 1970. Act § 202(b)(1)(A). The statutory standards for carbon monoxide and oxides of nitrogen are also absolute, but they are subject to a variety of waivers for certain manufacturers who lack the technological capacity to comply. See Act §§ 202(b)(1)(B), 202(b)(5), 202(b)(6). The emission standards set by the EPA under its general regulatory power, in contrast, are “technology-based” — the levels chosen must be premised on a finding of technological feasibility. Section 202(a)(2) of the Act provides that standards promulgated under section 202(a)(1) shall not take effect until “after such period as the Administrator finds necessary to permit the development and application of the requisite technology.” The requirement that emission standards be technologically achievable highlights the need for the EPA’s power to divide the broad spectrum of motor vehicles into classes or categories. See Act §§ 202(a)(1), 202(a)(3)(A)(iv). Manufacturers produce a wide variety of motor vehicles of different sizes, some using different engine technologies resulting in unusual emission characteristics. In particular, diesel engines use a different fuel, emit exhaust at a lower temperature, and produce a different distribution of pollutants than traditional gasoline engines. For example, diesel carbon monoxide levels are typically lower than those from gasoline vehicles, see 45 Fed. Reg. 5480, 5493 n.192 (1980), but diesel vehicles produce particulate emissions at thirty to seventy times the rate of gasoline vehicles, see 45 Fed.Reg. 14,496 (1980), and also produce higher levels of the unregulated pollutants sulfur dioxide and benzo(a)py-rene, see 45 Fed.Reg. 5480, 5489 (1980). The present challenges concern the EPA’s promulgation of standards governing particulate emissions from light-duty diesel vehicles and light-duty diesel trucks, and the EPA’s waiver of the statutory standard for oxides of nitrogen for light-duty vehicles. The EPA’s particulate standard and N0X decisions are appropriately linked in the present proceeding because current technology creates an unfortunate trade-off between particulate control and control of oxides of nitrogen. The primary technique used today for reducing NOx emissions is exhaust gas recirculation (EGR). While lowering the NOx content of the exhaust, EGR increases the particulate content, and “the greater the EGR rate, the greater the increase in particulate emissions.” Environmental Protection Agency, Regulatory Analysis [of] Light-Duty Diesel Particulate Regulations 33 (1980) [hereinafter cited as Regulatory Analysis], Joint Appendix (J.A.) 510. Thus the stringency of a technology-based particulate standard depends on the level of the NOx standard concurrently applied. We consider the EPA’s actions and the NRDC and industry challenges in turn. II. THE PARTICULATE STANDARDS The EPA announced its intention to promulgate standards for particulate emissions from light-duty diesels on February 1, 1979. See 44 Fed.Reg. 6650 (1979). The proposed standards would have limited diesel particulates to 0.60 grams per vehicle mile (gpm) in model year 1981, and to 0.20 gpm in model year 1983. The agency concluded that a single standard, governing all light-duty vehicles, was the preferable regulatory strategy, although 1979 certification data indicated that diesel particulate performance among those vehicles ranged from the 0.23 gpm achieved by the Volkswagen Rabbit to the 0.84 gpm emitted by the Oldsmobile 350. Id. at 6651. Furthermore, these restrictions would have applied equally to light-duty vehicles and light-duty trucks. Id. at 6654-55. After analyzing the comments elicited by its notice of proposed rulemaking, the EPA promulgated as final standards a modification of the rules originally announced. See 45 Fed.Reg. 14,496 (1980). The limit of 0.60 gpm was retained, but its effective date was postponed to model year 1982, because the rulemaking process had absorbed so much time that testing and certification of 1981 models was no longer feasible. Id. at 14,497. The agency concluded that the technology necessary to make the 0.20 gpm standard feasible would probably not be developed in time for implementation in 1983 model vehicles; 1984 was a more likely goal, but the effective date was postponed to model year 1985 to give sufficient margin for error. Id. at 14,498. Finally, the EPA believed that light-duty trucks would not be able to perform as well as light-duty vehicles, and the 1985 standard for light-duty trucks was therefore adjusted to 0.26 gpm. Id. at 14,497. The auto industry petitioners do not challenge the 1982 standard of 0.60 gpm, but they vigorously deny the likelihood that technology will be available to meet the lower standards in 1985. In setting the 1985 standards, the EPA predicted that a currently experimental particulate control device, known as a “trap-oxidizer,” would be perfected early enough to allow its mass production and installation in 1985 model diesel vehicles. The manufacturers argue that this prediction lacked a sufficient evi-dentiary basis, and that the agency’s action must therefore be invalidated as failing to meet the requirement of reasoned decision-making. They also argue that the EPA gave inadequate consideration to the safety risks involved in trap-oxidizer technology. NRDC insists that the EPA’s entire regulatory strategy is an inadequate response to the agency’s statutory mandate to protect the public health. The EPA deliberately set a single standard for all light-duty diesel vehicles, predicting that even the worst performing diesel could meet it. NRDC argues that that regulatory choice is inconsistent with the EPA’s statutory responsibilities; it urges a variable standard, imposing more rigorous requirements on better performing vehicles. NRDC also urges that the agency failed to consider the risks posed by diesel particulate as a carcinogen, and that in giving “appropriate consideration” to cost as a factor in standard-setting, it should have tried to discourage purchase of polluting vehicles through economic disincentives. Finally, NRDC attacks the postponement of the 0.20 gpm standard from 1984 to 1985 as unnecessary and irresponsible. In order to evaluate these claims, we first determine the applicable statutory directives. We then turn to light-duty vehicles and, after discussing the proper standard of review in this case, assess the manufacturers’ attack on the EPA’s prediction of technological feasibility. Next, we examine the NRDC’s claims and, finally, turn to light-duty trucks. A. The Source of the EPA’s Authority Before turning to the merits of the EPA’s rulemaking activities, we must consider a threshold question that has attracted attention sporadically throughout the course of the proceedings. Although none of the parties contests the EPA’s authority to regulate diesel particulate emissions, there is some disagreement as to the precise statutory provision conferring that authority. GM insists that the EPA’s particulate rule-making for non-heavy-duty vehicles may be viewed only as an exercise of its broad general power to prescribe motor vehicle emission standards under section 202(a)(1) of the Act; the EPA argues that "an explicit provision of the Act specifically directs it to promulgate particulate standards. In proposing the challenged regulations, the EPA cited as its statutory basis section 202(a)(3)(A)(iii) of the Act, added by the 1977 Clean Air Act Amendments, Pub.L.No. 95 — 95, § 224, 91 Stat. 685. That provision, set out more fully in the margin, requires that “[t]he Administrator shall prescribe regulations under [section 202(a)(1)] applicable to emissions of particulate matter from classes or categories of vehicles manufactured during and after model year 1981 (or during any earlier model year, if practicable).” GM maintains that this provision empowers the agency only to set standards for heavy-duty vehicles, while the EPA reads it as applying to any “classes or categories of vehicles,” including all light-duty diesels. The apparent meaning of the language of section 202(a)(3)(A)(iii), read in isolation, comports with the EPA’s view, but we_conclude that that language should not be read in isolation, see, e. g., Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1857). The structure of section 202 casts doubt on the validity of a literal reading, and after a closer examination of the section’s legislative history, we conclude that GM’s position is correct. The EPA’s power under section 202(a)(1) antedates the 1977 amendments— such authorization, to the agency and its predecessors, has been present in varying forms since the Clean Air Act Amendments of 1965, Pub.L.No.89-272, § 101, 79 Stat. 992. The legislative history of the 1970 amendments demonstrates that Congress “expected that section 202(a) authority would be used for regulation of particulate emissions.” S.Rep.No.1196, 91st Cong., 2d Sess. 24 (1970), reprinted in 1 Legislative History of the Clean Air Act Amendments 424 (1974) [hereinafter cited as Legislative History]. Congress did not write in a statutory particulate standard at that time, as it did for vehicular emissions of carbon monoxide, hydrocarbons, and oxides of nitrogen, because of technological obstacles: No present measurement techniques exist to evaluate or establish standards for such particulate emissions. Such standards cannot be established on the basis of 1970 vehicles as required by subsection (b) because measurement techniques will not exist until 1972. At such time as measurement methods are developed the Secretary would be expected to establish standards for particulate emissions under 202(a) authority. Id. By 1977, however, Congress had become impatient with the EPA’s failure to promulgate a particulate standard. The need for a standard for the pollutant particulate matter for motor vehicles was identified in the Senate report in 1970. None has yet been proposed, except for a smoke standard for heavy duty diesels. EPA should promulgate a standard requiring best available control technology for smoke from heavy duty diesels and other particulate emissions from heavy duty vehicles and motorcycles by model year 1978, if possible, or by model year 1979. S.Rep.No.127, 95th Cong., 1st Sess. 67 (1977), reprinted in 3 Legislative History 1441. Congress therefore adopted the mandatory language of section 202(a)(3)(A)(iii). The 1977 Senate report illustrates that congressional concern over vehicular particulate emissions focused on heavy-duty vehicles. They are the major source of the problem; as the EPA observed in the present rulemaking, light-duty “gasoline-powered vehicles with three-way catalysts emit very low levels of particulate.” Regulatory Analysis at 31, J.A. 510. Not surprisingly, then, the origin of section 202(a)(3)(A)(iii) can be traced to a provision in the 1977 Senate bill “applicable to emissions of carbon monoxide, hydrocarbons, particulates, and oxides of nitrogen from heavy duty trucks, buses, and motorcycles and engines thereof,” S. 252, 95th Cong., 1st Sess. § 19 (1977), see S.Rep.No.127, 95th Cong., 1st Sess. 193 (1977), reprinted in 3 Legislative History 1567. The Senate provision was compromised in conference with a less stringent House provision, and the contents of the Senate’s bulky paragraph were distributed among subparagraphs of paragraph 202(a)(3)(A) under circumstances suggesting that the omission of the words “heavy duty” from subparagraph 202(a)(3)(A)(iii) was inadvertent. The section of the act that emerged from conference bore the title, “Emission Standards for Heavy Duty Vehicles or Engines and Certain Other Vehicles or Engines,” Pub.L.No.95-95, § 224, 91 Stat. 685; the substance of that section indicates that the “certain other vehicles” are motorcycles. Subparagraphs 202(a)(3)(A)(i) and 202(a)(3)(A)(ii) still retain the limitation to heavy-duty vehicles. Subparagraph 202(a)(3)(A)(iv), which empowers the Administrator to establish “classes or categories of vehicles or engines for purposes of regulations under this paragraph,” is not so restricted, but the conference report is written as if it were: “The Administrator is specifically authorized to subdivide heavy duty vehicles into classes or categories for purposes of this section.” H.R.Rep.No.564, 95th Cong., 1st Sess. 164 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1502, 1544, 3 Legislative History 544. This accumulation of detail convinces us that Congress did not intend, in adding section 202(a)(3)(A)(iii), to mandate adoption of particulate standards for light-duty vehicles. Rather, Congress directed the EPA to give priority to establishing particulate emission standards for heavy-duty vehicles, and left the agency free to exercise its power under section 202(a)(1) to regulate light-duty automobiles, whether diesel-powered or otherwise. Our conclusion that the EPA cited the wrong section of the statute as authority for its rulemaking does not necessitate a remand, even though paragraph 202(a)(1) requires, as subparagraph 202(a)(3)(A)(iii) does not, a threshold finding that the regulated pollutant “may be anticipated to endanger public health or welfare.” Particulates have long been recognized as one of the major targets of the Clean Air Act. See, e. g., U.S. Dep’t of Health, Education, and Welfare, Air Quality Criteria for Particulate Matter (National Air Pollution Control Administration Publication No. AP — 49) (1969). And the EPA, in issuing the present regulations, made specific findings on the environmental impact of diesel particulates: Section 202(a)(3)(A)(iii) directs EPA to control particulate emissions; it does not require that the Agency first conduct an environmental impact assessment. Nevertheless, EPA has carefully examined the environmental impact of this rulemaking. ... Small particles, which are much more likely to be deposited in the alveolar region and which require much longer periods of time to be cleared from the respiratory tract, have a greater potential to affect human health than larger particles. Thus, control of diesel particulate, of which 100 percent is less than 15 micrometers in diameter and approximately 97 percent of which is less than 2.5 micrometers in diameter, is especially important with respect to human health. 45 Fed.Reg. 14,496, 14,498-99 (1980). Indeed, GM expressly concedes in its brief that “the Administrator considered and discussed the health risks of particulate emissions during rulemaking [and that his] determination that particulate emissions require priority control to protect human health would entitle him to prescribe particulate standards under § 202(a)(1) for light-duty vehicles.” Reply Brief for Petitioner General Motors Corp. at 6 [hereinafter GM Brief]. B. Technological Feasibility The EPA’s choice of the 0.20 gpm standard for light-duty diesels in 1985 was the result of adjusting current diesel particulate emission data by the percentage of reduction expected from certain technological improvements, most notably the trap-oxidizer. The manufacturers’ attack on the standard focuses on the EPA’s prediction concerning the probable pace of development of trap-oxidizer technology. Before examining the details of the agency’s reasoning and the industry challenges, however, we find it useful to discuss the legal standard that governs our inquiry. 1. The Standard of Review The standard of review in this case is the traditional one for judicial scrutiny of agency rulemaking: we are to set aside any action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Act § 307(d)(9)(A). As nonscientists, we must recall that “[o]ur ‘expertise’ is not in setting standards for emission control but in determining if the standards as set are the result of reasoned decisionmaking.” Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427, 434 (D.C.Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). Despite this limited role, our examination of the record must be searching, for the necessity to review agency decisions, if it is to be more than a meaningless exercise, requires enough steeping in technical matters to determine whether the agency “has exercised a reasoned discretion.”... We cannot substitute our own judgment for that of the agency, but it is our duty to consider whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 402 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). In the present case, GM attacks the EPA’s estimation of the period of time “necessary to permit the development and application of the requisite technology” to achieve compliance with the 1985 particulate standards, see Act § 202(a)(2). The agency has determined that the technology will be available in time, and now seeks to defend its conclusion as a product of reasoned decisionmaking. Such predictions inherently involve a greater degree of uncertainty than estimations of the effectiveness of current technology. If we judge the EPA’s action by the standard of certainty appropriate to current technology, the agency will be unable to set pollutant levels until the necessary technology is already available. The legislative history of both the 1970 and the 1977 amendments demonstrates that Congress intended the agency to project future advances in pollution control capability. It was “expected to press for the development and application of improved technology rather than be limited by that which exists today.” S.Rep.No.1196, 91st Cong., 2d Sess. 24 (1970), reprinted in 1 Legislative History 424; H.R.Rep.No.294, 95th Cong., 1st Sess. 273 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1077, 1352, 4 Legislative History 2740. In designing the particulate standard, the EPA recognized the uncertainty necessarily accompanying its duty to predict: When projecting a near-term standard when little time exists for technological advances, it is relatively simple for a regulatory agency to predict what the best available control technology will be, and to set a standard based on its application. It is more difficult to regulate on this basis in the long-term because of the uncertainty that inevitably surrounds expected technological improvements. Nevertheless,... EPA has concluded that it is absolutely necessary to issue standards which motivate the private sector to maximize its efforts in reducing particulate emissions from light-duty vehicles. Regulatory Analysis at 32, J.A. 511. This court has upheld the agency’s power to make such projections, while recognizing that it is “subject to the restraints of reasonableness, and does not open the door to ‘ “crystal ball” inquiry.’ ” International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 629 (D.C.Cir.1973). The Clean Air Act requires the EPA to look to the future in setting standards, but the agency must also provide a reasoned explanation of its basis for believing that its projection is reliable. This includes a defense of its methodology for arriving at numerical estimates. Id. The thoroughness and persuasiveness of the explanation we can expect from the agency will, of course, vary with the nature of the prediction undertaken. “Where existing methodology or research in a new area of regulation is deficient, the agency necessarily enjoys broad discretion to attempt to formulate a solution to the best of its ability on the basis of available information.” Industrial Union Dep’t v. Hodgson, 499 F.2d 467, 474 n.18 (D.C.Cir.1974). At one extreme, this court has recognized that the EPA’s decision to regulate potentially harmful pollutants involves a large element of policy choice that cannot be demonstrably “correct,” although it must have a genuine scientific basis. The Administrator may apply his expertise to draw conclusions from suspected, not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as “fact,” and the like. We believe that a conclusion so drawn — a risk assessment — may, if rational, form the basis for health-related regulations under the “will endanger” language of Section 211. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C.Cir.1976) cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976) (footnote omitted); see Environmental Defense Fund v. EPA, 598 F.2d 62, 83-85 (D.C.Cir.1978). We have also acknowledged the necessarily speculative nature of agency predictions in the social sciences, including judgments of the competitive impact of regulatory decisions. United States v. FCC, 652 F.2d 72, 100 (D.C.Cir.1980); National Small Shipments Traffic Conference v. CAB, 618 F.2d 819, 829-30 (D.C.Cir.1980). At the other extreme, this court’s inquiry into agency methodology in the physical sciences has been far more exacting “where the facts pertinent to [a] standard’s feasibility are available and easily discoverable by conventional technical means.” National Lime Ass’n v. EPA, 627 F.2d 416, 454 (D.C.Cir.1980). The present case lies between those two extremes. It does not involve questions at the frontier of physiological knowledge, but it does require a determination by the EPA of the likely sequence of further technological development. There is no known scientific technique for calculating when an as yet unsolved design problem will be ironed out. Thus, unlike the short-term feasibility assessments scrutinized in National Lime Association, the present determination presents the court with “the question how much deference is owed a judgment predicated on limited evidence when additional evidence cannot be adduced or adduced in the near future,” id. at 454. The time element in the EPA’s prediction affects our reviewing task in three distinct ways. First, it introduces uncertainties in the agency’s judgment that render that judgment vulnerable to attack. At the same time, however, the time element gives the EPA greater scope for confidence that theoretical solutions will be translated successfully into mechanical realizations, for “the question of availability is partially dependent on ‘lead time’, the time in which the technology will have to be available.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 391 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Finally, the presence of substantial lead time for development before manufacturers will have to commit themselves to mass production of a chosen prototype gives the agency greater leeway to modify its standards if the actual future course of technology diverges from expectation. The relevance of lead time, and of the ability to modify standards in light of future developments, to the degree of justification the agency must offer may be seen in this court’s opinion in International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir.1973). That case, despite numerous dissimilarities to the present one, provides a useful point of reference, and all the parties seek to claim it as their own. In International Harvester, the court reversed the EPA’s refusal to suspend for one year strict new 1975 model year emission standards that had been set by Congress in the 1970 amendments. This court, reviewing in early 1973 an EPA decision of May 1972, stressed the harm that would result from “a relaxation of standards, and promulgation of an interim standard, at a later hour — after the base hour for ‘lead time’ has been passed, and the production sequence set in motion.” Id. at 637. Too late a relaxation would penalize technologically advanced firms, like Ford, which would already have begun manufacture of vehicles that achieved better emission control at the expense of road performance. For this and other reasons, the hardship resulting if a suspension were mistakenly denied outweighed the risks from a suspension needlessly granted. Because of that balance of hardships, the court probed deeply into the reliability of the EPA’s methodology. The present case is quite different; the “base hour” for commencement of production is relatively distant, and until that time the probable effect of a relaxation of the standard would be to mitigate the consequences of any excessive strictness in the initial rule, not to create new hardships. The significance of the time factor in International Harvester was increased by the fact that the EPA was not predicting future technological advances, but rather was imposing an interpretation on current industry data. That data uniformly indicated that the standards were not being met, yet the EPA claimed that “adjustments” of the data demonstrated the likelihood of compliance. But the court concluded that the agency had failed to demonstrate the reliability of its methodology sufficiently to defend its reinterpretation of apparently adverse data. International Harvester has been cited frequently in cases involving presently-available-technology standards, as well as in other cases in which the agency’s “central argument is that the standard is achievable because it has been achieved,” National Lime Association, 627 F.2d at 432-33 (emphasis in original); Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977); Duquesne Light Co. v. EPA, 522 F.2d 1186 (3d Cir. 1975), vacated, 427 U.S. 902, 96 S.Ct. 3185, 49 L.Ed.2d 1196 (1976); CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). The defense of a projection methodology in such cases has required “that variables be accounted for, that the representativeness of test conditions b[e] ascertained, that the validity of tests be assured and the statistical significance of results determined.” National Lime Association, 627 F.2d at 452-53 (footnotes omitted). But statistically-based techniques for reviewing the methodology of contemporary projections do not translate well into rules for reviewing predictions of future progress. If the agency is to predict more than the results of merely assembling preexisting components, it must have some leeway to deduce results that are not represented by present data. The EPA has generally been granted “considerable latitude in extrapolating from today’s technology” when it predicts future technological developments for the purposes of the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. II 1978). See California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 288 (2d Cir. 1977). The courts have had numerous occasions to review EPA determinations that a given control technique constitutes the “best available technology economically achievable” in the 1980s. Most of the opinions, including our own American Paper Institute v. Train, 543 F.2d 328, 352-53 (D.C.Cir.1976), cert. dismissed, 429 U.S. 967, 97 S.Ct. 398, 50 L.Ed.2d 335 (1976), steer close by the shores of their factual contexts and yield little in the way of explicit doctrine. But their essential requirement is that the agency provide “a reasonable basis for belief that a new technology will be available and economically achievable.” Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 635 (2d Cir. 1976). When a technology is already in use in other industries, the court often expects more solid evidence that the technology can be transferred to the industry in question, or at least that relevant dissimilarities have been considered. American Meat Institute v. EPA, 526 F.2d 442, 465 (7th Cir. 1975). To apply these general considerations to our task of review in the present case, we must examine the nature of the EPA’s determination. The agency has predicted that the manufacturers will be able to develop a satisfactory version of the trap-oxidizer in the time remaining. This device was designed specifically for the purpose for which EPA intends it, and prototypes have achieved partial success. GM itself has characterized trap-oxidizers as “[t]he most promising particulate traps,” and has admitted that “current program status [would] indicate a possibility of 1985 model year production.” General Motors Response to EPA Notice of Proposed Rule-making 132, 175 (1979) [hereinafter GM Response], J.A. 279, 284. The EPA’s decision must be judged in terms of record evidence available in early 1980, allowing a “time frame of

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

This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". What subcategory of private association best describes this litigant?

SCHNELL et al. v. UNITED STATES. Circuit Court of Appeals, Second Circuit. February 4, 1929. No. 165. Charles H. Tuttle, U. S. Atty., of New York City (William E. Collins, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States. Joffe & Joffe, of New York City (Joseph Joffe, of New York City, of counsel), for appellees. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. MANTON, Circuit Judge. This suit seeks to recover cargo damages to onions shipped from Buenos Aires, Argentine, to New York City, N. Y., on March 3, 1922. The cargo arrived on March 24, 1922, and some of the 2,200 cases, although shipped in good condition, wore damaged when landed. We need not consider the merits of the controversy as to what caused the damage, or whether the vessel was negligent in the stowage, beeauso the failure to file this suit within three months after giving notice of claim, as required by a condition of the bill of lading, is fatal to its maintenance. Clause 15 of the bill of lading provides: “The carriers shall nob be liable for any claim whatsoever unless written notice thereof shall he given to the carrier before removal of the goods from the wharf. No suit to recover for loss or damage shall in any event be maintainable against the carrier unless instituted within three months after the giving of written notice, as above provided. No agent or employee shall have authority to waive any of the requirements of this clause.” Notice of claim was filed March 25, 1922. The libel was not filed until June 29, 1922. These dates are not in dispute. While the Admiralty Act of March 9, 1920 (chapter 95, § 5,41 Stat. 525 [46 USCA § 745]) grants two years after the cause of action, arises to institute suits, still the parties may contract to a lesser period, and sucli clauses found in the bills of lading are regarded as reasonable. M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 33 S. Ct. 397, 57 L. Ed. 690; Turret Crown (C. C. A.) 284 F. 439; The Susquehanna (C. C. A.) 296 F. 461. The Suits in Admiralty Act was not intended to invalidate existing contracts, good when made. Leigh Ellis & Co. v. Davis, 260 U. S. 682, 43 S. Ct. 243, 67 L. Ed. 460. The appellees are under the burden of showing compliance with this provision of the bill of lading before they can succeed. The Cudahy Packing Co. v. Munson 8. S. Line (C. C. A.) 22 F.(2d) 898; The General Geo. W. Goethals (C. C. A.) 298 F. 935; The San Guglielmo (C. C. A.) 249 F. 588; The Persiana (C. C. A.) 185 F. 396. The answer did not plead as a defense the commencement of the action after the three months period. But it was amply established at the trial that the suit was not commenced until after the three months period. An application was made and denied to amend the answer, so as to plead this defense. In view of the state of the record at that time, it was an abuso of discretion to refuse the amendment. The appellant’s delay in pleading this defense in no way prejudiced the appellees. Nor did it waive the defense. Correspondence or pending negotiations may have constituted a waiver. The W. R. Grace & Co. v. Panama R. Co. (C. C. A.) 12 F.(2d) 338. But there were none. The bill of lading, specifying the limitation of three months, was in the appellee’s hands when the pleadings wore drawn and the libel was filed. It is not enough to say that there was substantial compliance with the provisions of the bill of lading. The record established that the suit was brought too late, and it will not sustain the decree below. Atlantic Coast Line R. Co. v. Burnette, 239 U. S. 199, 36 S. Ct. 75, 60 L. Ed. 226; The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358. The decree is reversed, with direetions to dismiss the libel, with costs.

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

UNITED STATES of America ex rel. John SADOWY, Petitioner-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Respondent-Appellee. No. 140, Docket 26225. United States Court of Appeals Second Circuit. Argued Nov. 4, 1960. Decided Nov. 25, 1960. John Sadowy pro se for appellant. Louis J. Lefkowitz, Atty. Gen., of the State of New York, for appellee. Pax-ton Blair, Sol. Gen., Albany, N. Y., Irving Galt, Asst. Sol. Gen., New York City, and George K. Bernstein, Asst. Atty. Gen., of counsel. Before SWAN, CLARK and MEDINA, Circuit Judges. SWAN, Circuit Judge. In June 1954 appellant was convicted in the County Court, Queens County, New York, and was sentenced as a second felony offender to a term of imprisonment which he is still serving. On appeal the judgment was affirmed by the Appellate Division, People v. Mysholowsky [and Sadowy], 1 A.D.2d 1036, 152 N.Y.S.2d 252. Leave to appeal to the Court of Appeals was denied by Judge Fuld, and certiorari was denied Sadowy v. People of State of New York, 352 U.S. 933, 77 S.Ct. 237, 1 L.Ed.2d 168. Appellant also made two unsuccessful applications for writs of error coram nobis. Appeals taken in these two proceedings were dismissed by the Appellate Division for failure to perfect the appeal. The present petition for a writ of habeas corpus was filed in March 1960. Judge Cashin granted petitioner’s application to proceed in forma pauperis but denied issuance of the writ with a memorandum opinion which states 189 F.Supp. 151: “The only ground raised by the petitioner to support the contention that he is in custody in violation of the Constitution or laws of the United States, is that the trial court refused to allow into evidence at the trial testimony as to the result of 'lie detector’ tests he had taken, which tests would tend to show the innocence of the petitioner”. Thereafter Judge Cashin issued a certificate of probable cause limited to the ground stated in the above quotation. The alleged error of the trial court in excluding testimony of an expert as to the pathometer (“lie detector”) tests taken by the defendant, was urged in his state court appeals and in his coram nobis proceedings. It is the only point argued in the present appeal. He relies particularly upon the decision of Judge Colden in Queens County Court who admitted such evidence. People v. Kenny, 167 Misc. 51, 3 N.Y.S.2d 348. This opinion was rendered on March 29, 1938. Subsequently, on November 29, 1938, the Court of Appeals held in People v. Forte, 279 N.Y. 204, 18 N.E.2d 31, 32, 119 A.L.R. 1198, reargument denied 279 N.Y. 788, 18 N.E.2d 870, that such evidence was properly excluded, the record there being “devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy.” Appellant contends that in his case, as well as in Kenny’s, adequate proof of the efficacy of the pathometer was presented, and that the Kenny decision should have been followed rather than People v. Forte, although Dr. Burke, who administered the tests to appellant in evaluating the results, mentioned “certain irregularities” in appellant’s responses. It is not necessary for us to determine, as the defendant asks us to do, whether the Forte case should have been distinguished and the Kenny rule followed by the Queens County Court in his trial. In following Forte and holding the pathometer unreliable, the trial court was merely applying a rule of evidence in accordance with its interpretation of New York law. This raises no federal question. As stated in Buchalter v. People of State of New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 1131, 87 L.Ed. 1492, “the due process clause of the Fourteenth Amendment does not enable us to review errors of state law however material under that law.” See also Lisenba v. People of State of California, 314 U.S. 219, 226-229, 62 S.Ct. 280, 86 L.Ed. 166. If it is the defendant’s contention that, aside from its correctness under New York law, the Forte rule deprives him of due process, we agree with Judge Cashin that since the Forte rule is overwhelmingly, if not universally, followed in other jurisdictions, both state and federal, it cannot be said to violate due process, that is, to be repugnant to “the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. The defendant’s constitutional argument is predicated upon his theory of the pathometer’s reliability. Judge Colden’s eloquent opinion in Kenny may well be prophetic of the general recognition which courts may ultimately accord to lie detector tests. They have not yet done so, and any opinion we might express as to the desirability of so doing would be irrelevant. Due process certainly does not require them to do so now. We agree with Judge Cashin’s succinct opinion, 189 F.Supp. 150. Judgment affirmed.

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

PUERTO RICO TELEPHONE COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents, Comtronics, Inc., Intervenor. No. 76-1134. United States Court of Appeals, First Circuit. March 31, 1977. Alberto Pico Santiago and Alberto Pico Gonzalez, San Juan, P. R., with whom Brown Newsom & Cordova, San Juan, P. R., was on brief, for petitioner. John E. Ingle, Counsel, Washington, D. C., with whom Werner K. Hartenberger, Acting Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Donald I. Baker, Acting Asst. Atty. Gen., and Barry M. Grossman, Atty., Dept, of Justice, Washington, D. C., were on brief, for respondents. Sigfredo Irizarry, San Juan, P. R., for Intervenor, Comtronics, Inc. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. McENTEE, Circuit Judge. Until recently the Puerto Rico Telephone Company (PRTC) was a Delaware corporation operated as a subsidiary of the International Telephone & Telegraph Company. In 1974 the Commonwealth’s legislature established the Puerto Rico Telephone Authority and directed it to “acquire and operate, through the means that it finds most convenient to the public interest, all the telephone and telegraph communication systems in Puerto Rico, in order that said system can meet the actual and future communication needs of our People.” Law of May 6, 1974, Act No. 25. The Authority purchased the stock of PRTC shortly thereafter and commenced operation of the telephone system. At the time the Telephone Authority took over PRTC, Comtronics, Inc. was a supplier of telephone terminal equipment, viz. private branch exchange (PBX) equipment. PBX equipment, we are given to understand, includes intra-office and intra-hotel telephone systems including a privately owned switchboard which furnishes the link between the subscriber’s private system and the island-wide PRTC telephone system. After the Telephone Authority purchased PRTC it announced a policy of refusing to connect privately supplied PBX equipment with the PRTC telephone system. Comtronics sued PRTC in federal district court but suffered dismissal for want of jurisdiction. Several weeks later, Comtronics filed a complaint with the Federal Communications Commission (FCC) alleging that PRTC’s actions violated tariffs which bound PRTC to permit interconnection of PBX equipment such as that supplied by Comtronics. The FCC ruled that the tariffs were binding on PRTC, and construing PRTC’s defense as a request for a waiver, refused to relieve PRTC of the tariff requirements. However, the FCC denied the waiver without prejudice and requested PRTC to supply more detailed information in support of a renewed waiver request. PRTC petitions for review of the FCC’s declaratory order that it is bound by the tariff requiring PRTC to permit interconnection. At the threshold, however, the FCC suggests that its denial of a waiver is not a final reviewable order since PRTC may file a new waiver request and therefore has not exhausted its administrative remedies. The agency freely concedes, however, that the “part of the order declaring that PRTC is bound by the interconnection tariffs” is final and reviewable. We do not share the FCC’s perspective on how the issues are framed. PRTC does not contest the FCC’s finding that the telephone company’s concurrence in the interconnection tariff survived the sale of PRTC to the Puerto Rico Telephone Authority. However, PRTC does challenge the FCC’s order on grounds that the agency erred in failing to give controlling weight to the Puerto Rican legislature’s alleged direction that all telephone equipment be state-owned. In addition, PRTC argues that the FCC acted beyond its authority since PRTC’s actions related to intrastate facilities and therefore were exempted by the Communications Act from regulation. See 47 U.S.C. §§ 152(b), 221(b). Finally, PRTC claims that since the FCC’s policy of fostering maximum interconnection of PBX equipment and like facilities springs from a desire to enhance competition, a policy which PRTC considers to be alien to the regulatory scheme of the Communications Act, the FCC’s refusal to release PRTC from the tariff is arbitrary and capricious. Whether we view PRTC’s arguments as challenging the FCC’s ruling that PRTC is bound to the interconnection tariff or the Commission’s refusal to permit a waiver on the facts presently before it, we think that the issues outlined above are ripe for review. Hence, we do not agree with the FCC that its leaving the door open to reconsideration of the PRTC case on the basis of additional facts showing economic hardship should bar our review, for abuse of discretion, of its decision that on the basis of the facts available to it, a waiver was not warranted. The issues which PRTC raises here have been finally decided against it by the FCC, and, it appears, will not be open to reconsideration by that agency. Moreover, the FCC ruled that PRTC has been bound by the tariff since early 1974. A waiver granted on reconsideration will operate prospectively only, leaving PRTC potentially liable for past violations. Quite understandably, therefore, PRTC has retreated from its refusal to permit interconnection pending review by this court. Thus, it is clear to us that the FCC’s order is causing sufficient hardship to PRTC and is sufficiently final to present clearcut issues appropriate at this time for judicial resolution. Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Northeast Airlines, Inc. v. CAB, 345 F.2d 662, 664 (1st Cir. 1965). The statutory scheme involved in this case is fairly complex and we set out our understanding of it at this point as a basis for the discussion which follows. The Communications Act of 1934,47 U.S.C. §§ 151 et seq., vests the FCC with the power to regulate interstate telephone communications. While the FCC’s authority under the statute is comprehensive with respect to most interstate carriers, such as AT&T, its jurisdiction over PRTC is considerably narrower. Section 2(b) of the Communications Act, 47 U.S.C. § 152(b), provides that “nothing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to” a “connecting” carrier, such as PRTC “except that sections 201 through 205 of this Act, both inclusive, shall, except as otherwise provided therein, apply to” connecting carriers. Section 201(b), 47 U.S.C. § 201(b), requires in turn, that “[a]ll charges, practices, classifications, and regulations for and in connection with [interstate wire] communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful; . The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this act.” Section 3(a), 47 U.S.C. § 153(a), in turn, defines interstate “wire communication” as the “transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire . . . including all instrumentalities, facilities, apparatus and services . incidental to such transmission.” Finally, under § 203, a connecting carrier such as PRTC is required to post and adhere to tariffs governing its interstate rates and facilities. In this case the FCC’s refusal to permit PRTC to deviate from the tariff was based on a finding that “a blanket prohibition of the interconnection of customer-provided terminal equipment which did not adversely affect the telephone system was unreasonable and unlawful” under § 201(b). Comtronics, Inc. v. Puerto Rico Telephone Co., No. 76-126 (F.C.C. Feb. 13, 1976). The prohibition was ruled unreasonable since “it was an ‘unwarranted interference with the subscriber’s right reasonably to use his telephone in ways which are privately beneficial without being publicly detrimental.’ ” Id., quoting Carterfone, 13 F.C.C.2d 420, 424 (1968). PRTC challenges the FCC’s ruling first on the grounds that the prohibitions of § 201 and the FCC’s authority under the Act to enforce § 201 do not reach PRTC’s essentially local policy of refusing to permit interconnection of PBX equipment. PRTC argues that the literal reach of 47 U.S.C. §§ 153(a), 201(b), quoted above, is restricted by provisions of the Act exempting intrastate communication facilities from federal control. For example, section 2(b), 47 U.S.C. § 152(b), provides that “nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) . facilities ... for or in connection with intrastate communication service by wire ... of any carrier”. Furthermore, § 221(b), 47 U.S.C. § 221(b), provides that “nothing in this chapter shall be construed to apply, or to give the Commission jurisdiction with respect to charges, classifications, practices, services, facilities, or regulations for or in connection with wire . . . telephone exchange service . . . even though a portion of such exchange service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by a State commission or by local governmental authority." Read literally, these provisions do appear to preclude the federal jurisdiction extended elsewhere in the Act. However, we think that these sections sweep far less broadly than their language would indicate. The legislative history of § 221(b) is sparse but it is nonetheless unequivocal. Section 221(b) was intended to exempt from FCC regulation “exchange services in metropolitan areas overlapping State lines.” S.Rep. No. 781, 73d Cong., 2d Sess. 5 (1934); accord H.R.Rep. No. 1850, 73d Cong., 2d Sess. 7 (1934); 78 Cong.Rec. 10314 (remarks of Representative Rayburn). See 78 Cong. Rec. 8823 (remarks of Senator Dill). In light of this, we are convinced that § 221(b) was intended not as a general grant of autonomy to state commissions, but as a special grant of freedom from federal interference for those few, essentially local, telephone exchange services which'serve metropolitan areas embracing parts of several states. As such, § 221(b) was probably intended simply to provide the same degree of autonomy for state regulation of multistate metropolitan area exchanges as § 2(b) provides for wholly intrastate metropolitan exchanges. North Carolina Utilities Comm’n v. FCC, 537 F.2d 787, 795, (4th Cir. 1976). In any event, because we construe § 221(b) as applicable only to attempted FCC regulation of local service in a multistate metropolitan area, we hold that it has no bearing on this case. PRTC’s attempted monopolization of the supply of PBX equipment is, therefore, arguably exempted from FCC scrutiny only by § 2(b)(1), 47 U.S.C. § 152(b)(1). The conflicting statutory language leaves the matter far from free of doubt. Compare 47 U.S.C. § 152(b)(1) with id. §§ 153(a), 201(b). A great many, perhaps the majority of telephone facilities, practices and regulations affect both intrastate and interstate messages, yet the statute, in literal terms, appears to divide jurisdiction absolutely: § 201(b) permits the FCC to regulate matters “for and in connection with [interstate] communication service,” and § 152(b) excludes from federal jurisdiction matters “for or in connection with intrastate communication service”. Nevertheless; we conclude that § 2(b)’s exclusion of federal regulation of intrastate facilities does not deprive the FCC of jurisdiction, pursuant to § 201, over the PBX equipment in this case. That policies affecting the use of a subscriber’s terminal equipment are within the scope of § 201 follows, we think, from the Supreme Court’s 1945 decision, Ambassador, Inc. v. United States, 325 U.S. 317, 65 S.Ct. 1151, 89 L.Ed. 1637. In that case the Court upheld a tariff prohibiting hotels that used PBX equipment from imposing a surcharge on interstate calls made by their guests, holding that § 201(b) “clearly authorize^] [telephone] companies to promulgate rules binding on PBX subscribers as to the terms upon which the use of the facilities may be extended to others not themselves subscribers.” Id. at 323, 65 S.Ct. at 1155. While the case involved rates rather than facilities, the conclusion nevertheless turns on the assumption that FCC jurisdiction under § 201 extends to “interstate wire communication from its inception to its completion” and that “wire communication within the meaning of the Communications Act [does not end] at the PBX board . .” United States v. AT&T, 57 F.Supp. 451, 454-55 (S.D.N.Y.1944), aff’d mem. sub nom. Hotel Astor v. United States, 325 U.S. 837, 65 S.Ct. 1401, 89 L.Ed. 1964 (1945). This conclusion, we think, requires us to hold that § 201(b) vests the FCC with jurisdiction to determine the reasonableness of PRTC’s attempt to dictate the terms on which PBX subscribers might obtain and use their equipment. We think it significant also that the FCC has consistently construed the pertinent statutory provisions to reach tariffs governing the supply and use of equipment such as that involved here. See, e. g., Telerent Leasing Corp., 45 F.C.C.2d 204, 218-19 (1974), and cases therein cited. The construction placed on the statute over the years by the agency charged with its administration is entitled to some deference. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). See Levinson v. Spector Motor Service, 330 U.S. 649, 672, 67 S.Ct. 931, 91 L.Ed. 1158 (1947). Moreover, the courts have upheld FCC regulations in this and similar contexts. See, e. g., North Carolina Utilities Comm’n v. FCC, supra at 794 (upholding the same interconnection policy challenged here); GTE Services Corp. v. FCC, 474 F.2d 724, 736 (2d Cir. 1973) (connecting carrier bound by FCC rules governing relationship between data processing and communications services); Ward v. Northern Ohio Telephone Co., 300 F.2d 816 (6th Cir.), cert. denied, 371 U.S. 820, 83 S.Ct. 37, 9 L.Ed.2d 61 (1962) (connecting carrier required to furnish intrastate telephone lines to radio stations broadcasting interstate). Thus, we agree with the majority in North Carolina Utilities Comm’n, supra, 537 F.2d at 793, that, while § 152(b) deprives the FCC of power “over local services, fácilities and disputes that in their nature and effect are separable from and do not substantially affect” interstate communications, it does not “sanctio[n] any state regulation, formally restrictive only of intrastate communication, that in effect encroaches substantially upon the Commission’s authority under sections 201 through 205.” It may seem somewhat anomalous, as PRTC argues, that federal regulation should oust the Commonwealth of jurisdiction over PBX equipment which is used predominantly for intrastate calls. But we find it even more anomalous, in light of the FCC’s broad mandate to “make available so far as possible, to all the people of the United States a rapid, efficient Nation-wide . communication service with adequate facilities at reasonable charges . . . ,” 47 U.S.C. § 151, that § 152(b) ousts federal jurisdiction over all facilities that are also used for intrastate telephone service. As a practical matter, the consequence of such an interpretation would be to allow local telephone companies to control access to the interstate telephone system free of FCC regulation. We think that the clear import of the Communications Act, as it has been construed by the FCC and by the courts for many years, is that no matter how frequently or infrequently a subscriber places interstate calls, he is entitled to have the conditions placed on access to the interstate telephone system measured against federal standards of reasonableness under § 201. We are therefore led to the conclusion that § 201 displaced the residual state jurisdiction guaranteed by § 152(b) since the interconnection policies adopted by the FCC and PRTC are incompatible. Having concluded that the FCC had jurisdiction over this controversy, we have less difficulty in concluding that, on the merits, the agency did not err in holding PRTC bound to the AAC & R tariff. PRTC argues that the FCC should have given conclusive weight to the fact that the legislature of Puerto Rico in Act No. 25 directed that PRTC be sole supplier of equipment such as that involved in this case. We understand PRTC to argue first that the FCC’s actions in this case violate the immunity of state governmental functions which the Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), ruled were beyond the reach of the commerce power. We cannot agree. In National League of Cities v. Usery, supra, the Court held that “insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.” Id. at 852, 96 S.Ct. at 2474. The Court further stated that “the operation of a railroad engaged in ‘common carriage by rail in interstate commerce’ ” was not one of the “integral parts of [state] governmental activities.” Id. at 854 n. 18, 96 S.Ct. at 2474 n. 18, quoting United States v. California, 297 U.S. 175, 182, 56 S.Ct. 421, 80 L.Ed. 567 (1936). In light of this, we feel constrained to rule that PRTC’s ownership and control of the telephone equipment involved in this case are not exempt from FCC regulation pursuant to the Commerce Clause. PRTC also argues that the FCC abused its discretion in failing to give controlling weight to the legislature’s directive that the state exercise monopolistic control over the supply of PBX and other equipment. We do not believe that the FCC is free to ignore the Commonwealth’s substantial interests in the rapid expansion and improvement of an intrastate telephone network, which was portrayed in this case as having languished in a state of serious underdevelopment during the years of private ownership.. Rather, the FCC must determine whether a PTRC monopoly in this case will enhance the development of intrastate and interstate telephone service. Against that finding must be balanced the asserted countervailing interest of telephone subscribers “reasonably to use . telephone^] in ways which are privately beneficial without being publicly detrimental.” Carterfone, supra, 13 F.C.C.2d at 424. On this record we do not believe that the FCC erred in refusing to strike the balance in favor of PRTC. The Commission requested additional economic data from PRTC relative to the impact of interconnection policies on telephone service in Puerto Rico. We think that the FCC did not abuse its discretion in postponing the final denial of a waiver until more information had been submitted. Affirmed. . Comtronics’ appeal from that decision, Comtronics, Inc. v. Puerto Rico Telephone Co., 553 F.2d 701 was argued several months prior to this case. We postponed decision in order to consider that case in conjunction with the instant petition. Because Comtronics’ appeal is disposed of on grounds separate from those which control this case, we have dealt with Comtronics, Inc. v. Puerto Rico Telephone Co., supra, in a separate opinion. . The FCC listed 18 areas concerning which it requested more detailed economic information. . On November 15, 1973, PRTC, then an ITT subsidiary, concurred in All America Cables & Radio, Inc., Tariff No. 1. On March 4, 1974, All America Cables & Radio, Inc. rendered PRTC’s concurrence effective by formally filing it with the FCC. Before the FCC, PRTC argued that “[a]t the time of that filing, . . . ITT had already entered into an agreement in principle to sell the stock of PRTC to the Authority, which sale, when consummated, was to be retroactive to January 1, 1974. . . . [Ujpon the purchase of PRTC by the Authority, PRTC ceased to be a carrier fully subject to the Communications Act and became a connecting carrier under the terms of Section 2(b)(2) [47 U.S.C. § 152(b)(2)], The Rules and Regulations of the Commission do not permit connecting carriers to file concurrences, and specifically exclude connecting carriers from the definition of ‘concurring carriers.’ . . Thus, the purported concurrence by PRTC in AAC & R’s tariff was either void at the outset or became void by operation of the Commission’s Rules and Regulations.” The FCC ruled that the sale of PRTC and its new status as a connecting carrier did not operate to relieve it from concurrence in AAC & R Tariff No. 1. Petitioner PRTC does not challenge this aspect of the FCC’s order on appeal, and we therefore accept the agency’s finding. . Comtronics, Inc. v. PRTC, supra (F.C.C. Feb. 13, 1976), slip op. at 4 n. 4. . At oral argument and in a motion subsequently filed with this court, Comtronics, Inc., as intervenor, has argued that PRTC’s adoption of a tariff permitting interconnection of equipment sold by suppliers other than PRTC was voluntary and therefore undercuts its argument that Act No. 25 creating the Telephone Authority mandated ownership of all telephone facilities by the Commonwealth. This argument is without merit. It is clear to us from the record in this case that PRTC acquiesced in a liberalized interconnection policy as a result of the FCC’s declaratory order and in order to minimize its potential liability. PRTC’s actions in this context neither moot the controversy nor detract from the strength of its arguments based on the asserted intent of the Puerto Rican legislature. . 47 U.S.C. § 152(b)(2) defines a connecting carrier as “any carrier engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with such carrier.” The FCC does not dispute that PRTC is currently a “connecting” carrier under the Act. . The FCC’s policy on interconnecting has been developed in a series of cases dating back to 1957. E. g., Hush-a-Phone Corp., 22 F.C.C. 112 (1957), on remand from Hush-a-Phone Corp. v. United States, 99 U.S.App.D.C. 190, 238 F.2d 266 (1956); Carterfone, 13 F.C.C.2d 420, reconsideration denied, 14 F.C.C.2d 571 (1968); Telerent Leasing Corp., 45 F.C.C.2d 204 (1974), aff’d sub nom. North Carolina Utilities Comm’n v. FCC, 537 F.2d 787 (4th Cir. 1976); A.T.& T. — Mebane, 53 F.C.C.2d 473 (1975), aff’d mem. sub nom. Mebane Home Telephone Co. v. FCC, 175 U.S.App.D.C. 362, 535 F.2d 1324 (1976). . As some evidence that this allocation of power is consistent with Congressional priorities, we note that the Senate Report accompanying Act of Sept. 30, 1971, Pub. L. No. 92-131, amending 47 U.S.C. § 410, made it clear that Congress recognized that the federal and state regulatory commissions for purposes of rate-setting have coordinate jurisdiction over a wide range of telephone equipment, including household telephone instruments. S.Rep. No. 362, 92d Cong., 1st Sess., 2 U.S.Code Cong. & Admin.News, p. 1512 (1971). And, to the extent any conflict exists, the FCC's rate-making authority displaces the state’s ability to include that portion of the equipment’s cost in the intrastate rate base. Id. at 1513. From this we may conclude that Congress also regards the jurisdictional lines for tariff regulation as having been drawn in a similar fashion. . At oral argument we were informed that in 1973 intrastate calls originating in Puerto Rico generated five times the revenue generated by interstate telephone messages. . The parties strenuously contest the meaning of Act No. 25’s directive that PRTC own the communications facilities of the island. See Act No. 25, §§ 2, 3(b), 7(g). For purposes of this appeal, we assume without deciding that the legislature of Puerto Rico intended that PRTC have a monopoly over the supply of PBX equipment. . PRTC also challenges the FCC’s ruling in this case on grounds that the FCC’s policy of fostering competition is contrary to the regulatory scheme of the Communications Act and therefore cannot support a refusal to find that PRTC’s actions are reasonable within the meaning of § 201(a). We view the matter differently. The end to be achieved by the FCC’s policy is the maximization of consumer choice in quantity and quality of telephone interconnecting equipment. It would require the contradiction of some fundamental economic assumptions for us to conclude that this end cannot be achieved by the means of increased competition. The FCC’s policy is therefore rationally based. However, competition is not the only factor involved in this case. We are sympathetic to the unique position of PRTC as a state-owned utility seeking to improve a seriously deficient telephone service as one step toward the overall improvement of Puerto Rico’s economy. We expect that the FCC will give substantial weight to these interests in any future determination of the reasonableness of PRTC’s interconnection policies. We simply decide in this case that the FCC correctly concluded that it did not have sufficient data to strike the balance in favor of a waiver, and we expect that the FCC will now entertain a renewed, explicit request by PRTC for a waiver.

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 47. 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 47? Answer with a number.

Hayden J. WATTS, Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, and Paul L. Loeffelholz, in his full capacity as M.D., and Superintendent of the Iowa Medical Facility at Oakdale, Iowa, Appellees. No. 78-1275. United States Court of Appeals, Eighth Circuit. Submitted Nov. 15, 1978. Decided Dec. 18, 1978. Anne L. Spitzer, Iowa City, Iowa, for appellant. Gary L. Hayward, Asst. Atty. Gen., Des Moines, Iowa, for appellees; Richard C. Turner, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., Des Moines, Iowa, on brief. Before STEPHENSON, HENLEY and McMILLIAN, Circuit Judges. HENLEY, Circuit Judge. This is a civil rights suit commenced in the United States District Court for the Southern District of Iowa by two inmates of the Iowa State Penitentiary (ISP) which is located at Fort Madison in the Southern District of Iowa. Plaintiffs below were Hayden J. Watts and David George Dee. The original defendants were Lou V. Brewer, Warden of ISP, and Dr. Paul L. Loeffelholz, Acting Superintendent of the Iowa Security Medical Facility (ISMF) located at Oakdale, Iowa. The case was assigned to the docket of District Judge William C. Stuart, who appointed members of the Legal Aid Clinic of the University of Iowa College of Law to represent the plaintiffs. In due course, the complaint, which had been tendered by plaintiffs pro se, was amended, and additional state officers and employees connected with the Adult Corrections Division of the Iowa Department of Social Services were brought into the case as defendants. The genesis of the controversy is the fact that in the early 1970’s, probably in 1973, plaintiff Dee was convicted of rape in the District Court of Jefferson County, Iowa, and was sentenced to imprisonment in ISP for a period of fifty years. His conviction was affirmed on direct appeal. State of Iowa v. Dee, 218 N.W.2d 561 (Iowa 1974). Thereafter, Dee entered ISP to serve his sentence and became acquainted with the plaintiff, Watts. At that time Watts was what is known as an “inmate writ writer.” That is to say he was a convict who possessed or claimed to possess some knowledge of law and procedure in fields of interest to convicts and held himself out as being ready, willing and able to “write writs” to the courts on behalf of other inmates of the institution, and, of course, he might “write writs” on his own behalf. Dee engaged the services of Watts, and Watts prepared for Dee a petition for post conviction relief that was filed in the District Court of Jefferson County. While that petition was pending in the state court (and it may be pending there still), Dee was transferred temporarily from ISP to ISMF in 1976 for psychiatric evaluation. The evaluation having been completed, Dee was returned to ISP. Of course, Dee and Watts were physically separated while the former was in ISMF and the latter was in ISP. During his stay in ISMF Dee appears to have desired to prosecute his petition in the sentencing court, but he discovered that there is no law library in ISMF. He thereupon applied to the sentencing court to appoint a regular attorney for him, and such an appointment was made. The litigation in the United States District Court was commenced after Dee was returned to ISP. In their complaint as amended plaintiffs claimed that while Dee was confined in ISMF he suffered a number of constitutional deprivations including the loss of the writ writing services and legal advice of Watts, and Watts claimed that during the same period of time and perhaps thereafter he was denied an alleged constitutional right to provide legal services to Dee and that ISP personnel by means of threats undertook to deter him from providing any legal assistance to Dee. Plaintiffs sought declaratory, injunctive and monetary relief. Jurisdiction was based on 42 U.S.C. § 1983 as implemented by 28 U.S.C. § 1343. The defendants denied that plaintiffs were entitled to any relief and moved for summary judgment against both plaintiffs pursuant to Fed.R.Civ.P. 56. The district court overruled the motion as it applied to Dee, and his claim is still pending in the district court. The motion was granted as to Watts and his complaint was dismissed. Thereafter, the district court made a finding and certification under Fed.R.Civ.P. 54(b) which has enabled Watts to appeal at this time from the summary judgment granted against him. After the notice of appeal was filed by Watts, he was released from ISP, and is no longer confined in that institution or in any other institution operated by the State of Iowa. His release has mooted his claims for declaratory and injunctive relief but has not mooted his claim for monetary damages. In passing upon the defendants’ motion for summary judgment the district court was required, and we are required, to view the case in the light most favorable to Watts and to give him the benefit of all inferences in his favor that reasonably may be drawn from the evidence. Moreover, even though the facts in a case may be undisputed, it does not necessarily follow that summary judgment under Rule 56 is appropriate; the court must still consider the legal questions raised by the undisputed facts. See Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, Inc., 578 F.2d 1256, 1263 (8th Cir. 1978), and cases cited. We have carefully considered the record before us, and we affirm without difficulty the action of the district court in granting summary judgment against Watts and dismissing his complaint. First, let us point out that there are three things that this case does not involve. It does not involve the right of an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974); Finney v. Hutto, 410 F.Supp. 251, 262-63 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the services of an inmate writ writer, Johnson v. Avery, supra, the writ writer has no reciprocal constitutional right to provide the service. That contention certainly has arguable validity, but the district court did not base its decision upon it, nor do we. In our opinion the claim of Watts for an award of damages against the several defendants ultimately named in the case is simply insubstantial. What happened was that after Dee was transferred to ISMF, he and Watts undertook surreptitiously to correspond with each other with respect to the petition that Dee had pending in the sentencing court. In engaging in this surreptitious correspondence Dee and Watts used intermediaries including the wife of Watts. Apparently some of the communications passed unintercepted, but at least one or two letters from Watts to Dee were intercepted at ISMF and at least one communication from Dee to Watts was intercepted at ISP. As a result of the interceptions, Dee sustained a loss of two days good time, and Watts was reprimanded and warned that if he persisted in trying to communicate with convicts in other Iowa institutions in violation of prison rules, he would lose all of his communications privileges. A claim for damages, whether actual or punitive, or both based on the fourteenth amendment cannot successfully be bottomed on so frail a foundation. We recognize that today under ruling judicial decisions the inmates of prisons have a constitutionally protected right to reasonable correspondence with persons in the outside world. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). And that right was discussed in some detail in the opinion of this court in Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-12. That right, however, is not untrammeled. It is subject to reasonable and necessary restrictions properly geared to legitimate institutional interests. Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-11. We do not say that a state has an unqualified right to forbid an inmate of one of its penal institutions to correspond with an inmate of another penal institution in the same state or in a different state. We think it obvious, however, that where such correspondence is involved, the institutional authorities have a peculiar and compelling interest in the regulation of such communications and in prohibiting smuggled or surreptitious correspondence between inmates of different institutions. As far as this case is concerned, it does not appear that while he was confined in ISP Watts was denied his right to communicate on his own behalf with the courts or with counsel, or that he was forbidden to give legal assistance to other inmates of ISP. And all that happened to Watts as a result of his efforts to communicate with Dee while the latter was confined in ISMF was that the former was reprimanded and warned. Watts simply has sustained no damage. Cf. Wycoff v. Brewer, 572 F.2d 1260, 1266-67 (8th Cir. 1978). Affirmed. . Both Fort Madison and Oakdale are located in the southeastern part of the state. However, Oakdale is a substantial distance from Fort Madison. . To inmates and to lawyers and judges who are familiar with prisoner litigation terms like “writ,” “writ writer,” and “to throw a writ” have become terms of common speech. To the uninitiated it may be helpful to state that a “writ” as herein used is simply a petition to a court for judicial relief of one kind or another, to “throw a writ” is simply to file the petition or tender it to the court for filing, and the “writ writer” is the inmate who prepares the petition usually to be subscribed, sworn to, and mailed out of the prison by the inmate on whose behalf the petition has been prepared. While this use of the word “writ” is not generally acceptable, it is not without ancient historical basis, and in old English books, “ ‘writ’ is used as equivalent to ‘action;’ hence writs are sometimes divided into real, personal and mixed.” Black’s Law Dictionary, 4th ed., “Writ,” p. 1783. Moreover, in Scotland an individual holding a position equivalent to that of attorney at law in England and the United States is referred to as a “Writer to the Signet.” Ibid., “Writer To The Signet,” p. 1787. . The same contention was urged upon us by the State of Missouri in In re Green; 586 F.2d 1247 (8th Cir. 1978). There the district court had enjoined Green, an inveterate writ writer, from filing any further petitions for other inmates of the Missouri prison system and had held Green in contempt. We affirmed. However, the decision of the district court and of this court was not based on a premise that an inmate does not have a constitutional right to give legal assistance to other inmates but on the proposition that Green as an individual had grossly abused the process of the district court, and that that court had as much right to protect itself against an inmate writ writer as it had to protect itself against the conduct of an unscrupulous, unethical or irresponsible lawyer in the civilian world. . We refer, of course, to the claim of Watts. As stated, we are not here concerned with the claim of Dee that he was mistreated and suffered constitutional deprivations while confined in ISMF. That claim may or may not have substance. . At least most, and perhaps all, of the penal institutions in the United States today recognize that inmates have a practically unrestricted right to correspond privately and without censorship or inspection with courts, court officials and attorneys. That type of correspondence is generally described in prison rules and regulations as “privileged correspondence.” There was a qualified recognition of this right at ISP in 1974 following the Procunier decision, supra. See Wycoff v. Brewer, 572 F.2d 1260, 1263 (8th Cir. 1978). . For example, an inmate of one institution may engage in conduct that earns him the ill will and hatred of other inmates to, the extent that the inmate in question must be transferred for his own safety from one institution to another. The purpose of such a transfer would or might be frustrated if another inmate of the transferring institution is able to communicate secretly with one or more inmates of the transferee institution.

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"?

Emmett J. STEBBINS, Appellant, v. KEYSTONE INSURANCE COMPANY et al. Emmett J. STEBBINS, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA et al. Nos. 24658, 71-1043. No. 24658 United States Court of Appeals, District of Columbia Circuit. Argued Oct. 22, 1971. Decided June 5, 1973. Emmett J. Stebbins, appellant pro se. James F. Bromley, Washington, D. C., with whom James C. Gregg, Washington, D. C., was on the brief, for appellee, Keystone Ins. Co. and others in No. 24,-658. Thomas C. Matthews, Jr., and William R. Weissman, Washington, D. C., were on the brief for appellee, Ins. Co. of North America, and others in No. 71-1043. Charles L. Reischel, Atty., E. E. O. C., with whom Julia P. Cooper, Chief, Appellate Section, George H. Weiler and Philip B. Sklover, Attys., E. E. O. C., as amicus curiae urging reversal. Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges. LEVENTHAL, Circuit Judge: These are consolidated appeals in two separate actions brought by Emmett J. Stebbins, in which he alleged inter alia that the defendant insurance companies had refused to employ him on account of his race. Both claims were dismissed by the District Court, which relied on the res judicata effect of an earlier judgment that Stebbins was “so lacking in elementary financial prudence, candor, stability, meaningful interest in the business world, and definite career direction that no prudent insurance company could reasonably offer to employ him in a position of fiscal trust....” Finding that, in the context of this litigation, the doctrine of collateral estoppel was improperly applied in both of these cases, we reverse. 1. BACKGROUND: THE FIRST INA LITIGATION In late 1969, Stebbins filed a class action (Civil Action No. 2848-69) against the Insurance Company of North America (INA), claiming racially discriminatory denial of job opportunities to himself and other blacks, in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and section 16 of the Civil Rights Act of 1870, 42 U.S.C. § 1981. He alleged that, as part of INA’s discriminatory practices, the company had refused to employ him or provide him with information concerning the positions of Claims Examiner, Adjuster, Supervisor, Technical Representative, and Manager. On a record consisting of a deposition of Stebbins taken by INA, exhibits introduced by INA during this deposition, and affidavits from the company's officers, INA moved for summary judgment on three separate grounds: First, since Stebbins did not allege that he had ever applied for employment, he could not claim there had been a refusal to hire him. Moreover, the exhibits showed that INA had responded directly to his requests for job specifications and had repeatedly asked him to complete an application form, which had been mailed to him. Second, INA contended that the record demonstrated Stebbins was unemployable in any position of fiscal trust in the insurance industry. Third, it was claimed that Stebbins had no standing to represent a class of aggrieved persons unless he himself had been the subject of unlawful discrimination. The Equal Employment Opportunities Commission (EEOC) appeared at a hearing on June 17, 1970, as amicus curiae in support of INA’s motion for summary judgment. Its counsel stated in oral argument that, since Stebbins had never applied for a position, the record demonstrated no Title VII violation as to him. The Commission also agreed that Stebbins’ deposition showed he was unqualified for employment as an insurance adjuster or in a supervisory capacity. Finally, the EEOC argued that the court should strike the class action claims — not because Stebbins had failed to prove discrimination against himself — but because he was not a competent class representative as required by Rule 23(a)(4), Fed.R.Civ.P. INA recognized the heavy burden it carried in seeking summary judgment on the broad ground of Stebbins’ unemployability. It pointed out that Stebbins had not offered any counteraffidavits and had failed to respond to INA’s statement of undisputed material facts. In short, Stebbins failed to contest any of the issues upon which INA sought judgment, and his only opposition was based on his stated desire to conduct extensive discovery proceedings against INA — without intimating what relationship this might bear to INA’s proffered defenses. At the conclusion of the June 17 hearing, the trial court orally advised Stebbins that the motion for summary judgment would be granted on the grounds that Stebbins had not applied for a job and was “not employable in the insurance industry.” One June 30, 1970, the court issued a memorandum delineating the facts established by INA that were not in dispute. Based on these facts, the court concluded that the defendants had not engaged in unlawful employment practices under section 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e — 2(a) (1). Two separate grounds were cited for this conclusion: “by reason of the fact that plaintiff has refused to file an application for employment with INA,” and because “plaintiff is so lacking in elementary financial prudence, candor, stability, meaningful interest in the business world and definite career direction that no prudent insurance company could reasonably employ him in a position of fiscal trust.... ” Stebbins took no appeal from this judgment. II. THE PRESENT APPEALS A. The INA and EEOC Litigation On July 8, 1970, Stebbins filed an independent action, which he styled “Complaint in the Nature of a Bill of Review,” against INA and its subsidiaries, the EEOC, and certain of its officials (Civil Action No. 2036-70). He alleged that various improprieties had occurred in the earlier litigation, which vitiated its effect. In addition, he set forth a new claim, alleging that on June 18, 1970 — one day after the trial judge had stated from the bench that summary judgment would be granted in the first INA suit — he had filed a formal employment application with INA and that the company had refused to hire him. The District Court dismissed this action as to INA on November 9, 1970, relying on the res judicata effect of the June 30 judgment to bar Stebbins from relitigating the issue of his employability against the same defendants. Stebbins then filed a notice of appeal in for-ma pauperis, which the trial court denied as patently frivolous. Subsequently, when his claim against the EEOC was dismissed on January 5, 1971, Stebbins filed another notice of appeal and paid the filing fee on January 18. This case has consistently been treated as a joint appeal against both INA and the EEOC. We pass by the motions aseribable to Stebbins’ limited means, and examine the issues he has raised. B. The Keystone Litigation On December 19, 1969, Stebbins filed suit against the Keystone Insurance Company (Keystone) and its affiliates (Civil Action No. 3588-69), also alleging violations of Title VII and 42 U.S.C. § 1981. His complaint focused on two letters he had received from Keystone — in May of 1968 and in November of 1969 —refusing to employ him. This suit and Stebbins’ first action against INA were pursued concurrently in different trial courts. Stebbins and Keystone cross-moved for summary judgment; and their motions were heard on July 1, 1970 — the day after the memorandum was issued in the INA case. The court ruled orally — and in writing on July 8, 1970 — that Keystone’s refusal to hire, based on the fact that Stebbins had engaged in litigation against the company, violated 42 U.S.C. § 2000e— 3 (a); and Stebbins was granted partial summary judgment. But the remainder of Stebbins’ complaint was dismissed on the ground that, as a predicate to claiming discrimination in hiring, the plaintiff must be qualified for the position he seeks. The court held that the issue of Stebbins’ employability had been decided adversely in the first INA case and that Stebbins was therefore collaterally es-topped to relitigate the matter against Keystone, citing Lober v. Moore, 135 U.S.App.D.C. 146, 417 F.2d 714 (1969). Finally, the court stated that “plain-, tiff’s lack of qualifications deprive him of any right to claim damages under any aspect of the complaint.” Stebbins appeals from: (1) the ruling on collateral estoppel; (2) failure to award injunctive relief or punitive damages; and (3) failure to award counsel fees. III. THE ISSUES PRESENTED A. Collateral Estoppel The central question, common to both appeals, is whether the judgment entered on June 30, 1970, in the first suit against INA bars Stebbins from relitigating the issue of his employability in the cases presently before us, his second action against INA, and his action against Keystone. Both of these cases relate to instances of discrimination distinct from that involved in the first INA suit. This question must be settled under principles not of res judicata, but of collateral estoppel, the doctrine that governs the impact of the disposition of one controversy upon a different cause between the same parties, and which had led to an extension of that doctrine, invoked by Keystone (as a different party), that sameness of issue suffices if the party seeking to relitigate has already lost it after full opportunity to make his maximum effort. Broadly speaking, collateral estoppel bars a party from contesting in a subsequent proceeding any issue of fact actually litigated in and determined by a previous final judgment rendered by a court of competent jurisdiction. The judgment is not conclusive, however, as to issues that might have been litigated and determined in the earlier action, but were not; nor as to any matter not essential to judgment in the prior adjudication. For years, the commentators have put it that, when a judgment is expressly rested on two (or more) independent grounds, any ground that is sufficient to sustain the result may be used as the basis for a claim of collateral estoppel in a subsequent litigation. But the text writers have stated this proposition as though it were self-evident and have not offered any persuasive supporting rationale. The handful of precedents customarily cited, none recent and the most of them readily distinguishable, likewise provide a mere mechanical recitation of the purported rule. In 1970, the rule was called into question, thoroughly re-examined, and rejected by the Second Circuit in Halpern v. Schwartz, 426 F.2d 102, the only case in the past 20 years to consider the question. The court squarely addressed the issue of whether a judgment expressly rested on three independent grounds gave rise to collateral estoppel on each of the grounds, or none of them. It concluded that, under the circumstances-, no estoppel should be permitted. The court pointed out the inconsistency between the purported rule and the general principle limiting collateral estoppel to matters “essential to judgment.” It distinguished the authorities cited in the texts; and it noted that, when the judgment rests on multiple grounds: (1) the court initially rendering judgment is less likely to have given full consideration to all the alternative bases when it appears that one of the grounds advanced is unassailable; and (2) there is no incentive to appeal when the losing party recognizes that one of the grounds is “solid,” even if one or more of the alternative grounds is infirm. Collateral estoppel has shown itself to be an extremely useful device for reducing the crush of litigation in the trial courts, and it goes a long way toward eliminating inconsistent decisions in cases with identical fact patterns and a common party. In part for these reasons, the recent trend has been to broaden the scope of its application. Halpern, of course, runs against this current. The Halpern rule was evolved in the context of a bankruptcy case. We need not decide whether the Halpern approach is sound if applied as a general rule to a wide range of matters. We are convinced that it is properly applied in the situation before us, where one of the grounds urged by the prevailing party, and accepted by the court, was the failure of the losing party to make an extra-judicial request or demand, or pursue a non-judicial remedy, prior to presenting his claim to the court. In Stebbins’ initial suit for employment discrimination, brought on the ground that INA had refused to hire him because of his race, the District Court held that failure to plead and prove that he had sought employment with INA was fatal to his cause of action. The first INA judgment was not appealed; and we need not and do not consider on the merits the District Court’s ruling that, as a matter of law, a Title VII plaintiff must file a formal employment application as a precondition to bringing suit. That ruling, right or wrong, was of no crucial significance to Stebbins— he could readily cure the defect found by the trial court, as he did, by filing an employment application with INA and beginning another action upon the denial of employment. The settled rule that collateral estoppel applies only to matters that have ■been actually litigated, has plain justification: when the parties to a lawsuit actively contest an issue, the resulting judgment bears sufficient reliability to preclude subsequent inquiry; and re-litigation of the same issue would be wasteful of judicial resources. It is, however, standing that principle on its head to maintain, in effect, that a party must fully litigate each and every issue solely for the purpose of avoiding collateral estoppel. If the doctrine of collateral estoppel were applicable to this kind of case, it would compel extensive and unnecessary litigation in both the trial and the appellate courts. Though confronted with an easily remediable defense of failure to exhaust non-judicial remedies, a plaintiff would have to wage battle on the merits, both in the trial court with affidavits, proffers, discovery, motions, and trial if permitted, and in the appellate court. Here, INA’s exhaustion defense was at least plausible —it was supported by EEOC. But in any event it was remediable. We can see no merit in a doctrine of collateral estoppel that would require Stebbins to appeal an adverse judgment and say, in effect: “May it please the court, since I can institute a new action merely by filing an employment application, it is immaterial to me whether the judgment is affirmed or reversed on this ground; but I have taken this appeal to make certain that the affirmance will not give rise to collateral estoppel on the alternate ground of unemployability.” In our view, the doctrine of collateral estoppel is not applicable where, as in this case, one ground of the judgment does not finally adjudicate the case on its merits but operates, much like a common law plea in abatement, to permit continued or further litigation upon an appropriate amendment or refiling, if relief continues to be withheld. In that event, a party may acquiesce in the judgment and take whatever steps are necessary to keep alive or rekindle his prayer for relief without being bound or estopped by any alternative ruling on the merits, and without being required to burden the appellate courts with an essentially futile appeal. So stating, we do no more than to apply, with some difference in articulation and context, the approach laid down in Bland v. Connally, 110 U.S.App.D. C. 375, 293 F.2d 852 (1961), and Horner v. Ferron, 362 F.2d 224 (9th. Cir.) cert. denied, 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (1966). The initial action Stebbins brought against INA alleged a policy of racially discriminatory hiring. Although this claim carries overtones of continuing injury, the cause of action itself arose from a specific instance in which INA had allegedly refused to hire Stebbins. The defense that Stebbins failed to prove he had applied for employment, was sufficient, in the view of INA, EEOC, and the trial court for a final judgment of dismissal as to the particular instance of alleged discrimination. It did not put to rest the underlying grievance that Stebbins complained of. It permitted a kind of intermediate disposition similar, in effect, to the dismissal in Bland for failure to exhaust administrative remedies, and in Horner for the failure to make the statutorily required demand for cure. Stebbins remedied this defect forthwith by filing the formal application and demand for employment. INA’s refusal was likewise prompt and unequivocal; and Stebbins thereupon filed his action anew. Technically, this was a new cause of action, rooted in a different instance of alleged discrimination. Its practical effect was merely to continue Stebbins’ ongoing controversy with INA after a futile demand. -X- * * We are pleased to supplement our opinion by taking note of the subsequently-obtained Tentative Draft No. 1 of Chapter 3 of Restatement, Second, Judgments, approved not only by the Council of the American Law Institute, but also in principle by its membership, at a session held May 17, 1963, after the foregoing was set in type. The approach of the Tentative Draft on the exceptions to the rules of res judicata and issue preclusion is clearly supportive of both our approach and result in this case, though there may be divergences in our jurisprudence in other aspects of the problem. B. Other Issues * -X- -X- We concur in the trial court’s conclusion that the other issues raised by Stebbins in No. 71-1043 are without merit. 1. Stebbins’ challenge to the EEOCls authority to appear as amicus curiae at the hearing on INA’s motion to dismiss is frivolous. Section 705(h) of Title VII, 42 U.S.C. § 2000e — 4(g), specifically authorizes EEOC attorneys to represent the Commission as a party or as amicus curiae. This is in no wise undercut by the independent power to refer cases to the Attorney General under 42 U.S.C. § 2000e — 4(f)(6). EEOC did not exceed its authority in commenting, as it did on the legal consequences of the record before the District Court. It was not required to develop its own administrative record in order to proffer its expertise to the court as amicus curiae. The District Court properly dismissed Stebbins’ claim that EEOC’s counsel committed perjury in the District Court. The record is clear that counsel was appearing purely as an advocate presenting oral argument and was not offering testimony. 2. Matters relating to INA. a. Stebbins’ claim that INA committed fraud on the court, that INA had altered his deposition and had submitted fraudulent affidavits, was treated as a motion under Rule 60(b), Fed.R. Civ.P., for relief from judgment, and dismissed November 9, 1970, on the ground that Stebbins had consistently refused to specify what portions of these documents had been altered or falsified. We affirm. Stebbins had made similar claims of fraud, without particularity, in a motion to dismiss these documents; and he had been repeatedly instructed that his claims of fraud must be made specific. INA submitted affidavits that the documents in question had not been tampered with. It was within the discretion of the trial judge to dismiss claims of fraud consisting wholly of conclusory assertions without any supporting evidence. b. In the context of Stebbins’ ongoing litigation with INA, the trial court correctly found that there was nothing unreasonable, unfair, or retaliatory about the letter of June 19, 1970, from INA’s counsel, requesting that Stebbins conduct all further business with INA through its attorney. Nothing in this letter in any way inhibited Stebbins from seeking employment with or communicating with the defendant, so long as he proceeded through INA’s counsel. IV. DISPOSITION The judgments in both No. 24,658 and No. 71-1043 are reversed and remanded for further proceedings not inconsistent with this opinion. So ordered. . On October 22, 1971, this court heard oral argument in No. 24,658, Stebbins v. Keystone Insurance Co. At that time, it became apparent that the court would be materially assisted by examining the record and the issues raised in No. 71-1043, then pending, before determining the Keystone appeal. The court therefore consolidated the two appeals for disposition; and, on February 3, 1972, an order was issued that No. 71-1043 would be decided without oral argument. . Named as codefendants were two INA affiliates, the Life Insurance Company of North America and the INA Life Insurance Company of New York. . This provision was based on § 1 of the Civil Rights Act of 1866, 14 Stat. 27. . INA based this contention on Stebbins’ own statements taken by deposition. For example, “he testified that one of the prerequisites for any job that he would accept would be a good library so that he could continue his research for suits against [INA’s] competitors. He further testified that the... suit against INA is but one step in what he termed his ‘procedure plan’ to raise procedural disputes, to obtain conflicts between various courts, and ultimately to have the pleasure of arguing in the Supreme Court of the United States. INA also argued that “ [h] is testimony on deposition that he has held no steady job since 1966 [it then being 1970] demonstrates a lack of direction and interest in employment which would be necessary for a position as a responsible claims adjuster.” In addition, INA pointed out, “[Stebbins testified that he went to law school, spent two years there, not with any intent of learning to be a lawyer but because he ‘wanted to set up a criminal racket and I felt if I knew the law I would be able to do it much better.’ ” INA conceded, however, that the latter statement, though made under oath, may have been in jest. Transcript of June 17, 1970, Hearing on INA’s Motion for Summary Judgment, at 5, 7, 8 (Reproduced as Appendix B to Brief of EEOC in No. 71-1043). Finally, INA submitted an affidavit from its personnel specialist, which concluded that Stebbins was unemployable in a position of fiscal trust in the insurance industry. See id. at 6. . The EEOC was apparently concerned to avoid a ruling on standing that might hamper the bringing of test cases. See id. at 11-13. . Stebbins v. Insurance Co. of North America, 3 F.E.P.Cas. 246 (D.D.C., 1970). . The court rested its jurisdiction on § 706 of the 1964 Act, 42 U.S.C. § 2000e-5 (e), and intimated no view of whether the Civil Rights Act of 1870 provided an alternate basis for relief. Also, the District Court apparently declined to treat Stebbins as the representative of a class of aggrieved persons, though the court’s opinion is silent on this point; and the grounds for this decision are nowhere stated. . Concluding that INA had, in fact, furnished Stebbins with all the information he had sought as to job descriptions and employee selection criteria, the District Court rejected on the merits Stebbins’ assertion that INA had discriminatorily refused to provide him with employment information. . On May 27, 1971, INA moved to require Stebbins to file a supplemental appendix. By our order of June 15, 1971, this court directed Stebbins to file such an appendix including those items designated by INA and EEOC which had been omitted from the joint appendix. Stebbins moved on June 22 to vacate this order, but by per curiam order of July 21, 1971, we denied his motion. On July 23, Stebbins moved to require INA and EEOC to pre-pay the costs of printing the supplemental appendix; and on July 29, INA moved to compel Stebbins to file a cost bond. This court on October 15, 1971, issued a per curiam order denying Stebbins’ motion of July 23 and directing him to show cause why the appeal should not be dismissed. On October 12, Stebbins responded to the show cause order by stating, in summary, that he was appealing in forma pauperis and could pay no costs. By per curiam order of December 14, 1971, Stebbins’ reply to the show cause order, appellees’ response thereto, and Stebbins’ supplemental response were referred to the merits division. We resolve the matter by treating the appeal as one in forma pauperis, 28 U.S.C.. § 1915, except as to any fees or costs hitherto paid. . See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L. Ed. 1122 (1955) ; International Paper Co. v. Maddox, 203 F.2d 88 (5th Cir. 1953). Cf. Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948) ; People ex rel. Watchtower Bible & Tract Soc’y v. Haring, 286 App.Div. 676, 146 N.Y.S.2d 151 (3d Dep’t, 1955). . See Blonder-Tongue Labs., Inc. v. University of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) ; Lober v. Moore, supra, 135 U.S.App. D.C. at 148-152, 417 F.2d at 716-720 (and authorities cited therein) ; Smith v. Hood, 130 U.S.App.D.C. 43, 44, 396 F.2d 692, 693 (1968) (There is a “trend towards barring relitigation of an issue by a one-time loser.... ”). . See Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 24 L.Ed. 195 (1877) ; F. James, Civil Procedure § 11.19 (1965) ; Restatement of the Law of Judgments § 68 (1942) ; Developments in the Law— Res Judicata, 65 Harv.L.Rev. 818, 840 (1952). . IB J. Moore, Federal Practice ¶ 0.443 [5] ; Restatement of Judgments supra § 68, comment n; Polasky, Collateral Estoppel — Effects of Prior Litigation, 39 Iowa L.Rev. 217, n. 32 at 225 (1954) ; Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 10-15 (1942) ; Developments Note supra, 65 Harv.L.Rev. at 845. Application of the rule is confined to cases in which both issues were expressly relied on by the court in the earlier action. If the basis for the first judgment is uncertain, then no estoppel is created as to any of the issues, even though they were actually litigated. Russell v. Place, 94 U.S. (4 Otto) 606, 24 L.Ed. 214 (1877) ; Horner v. Ferron, 362 F.2d 224, 230 (9th Cir.), cert. denied, 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (19.66) ; Security Ins. Co. v. Johnson, 276 F.2d 182 (10th Cir., 1960). Similarly, when a judgment specifically rested on alternative grounds is appealed, only those issues expressly considered by the appellate court can be used, as the basis for a plea of collateral estoppel. International Refugee Organization v. Republic S.S. Corp., 189 F.2d 858, 862 (4th Cir., 1951) ; Restatement of Judgments supra § 69, comment b; IB J. Moore supra ¶ 0.443 [5] n. 10. See Allegheny County v. Maryland Cas. Co., 146 F.2d 633 (3d Cir., 1944), cert. denied, 325 U.S. 855, 65 S.Ct. 1184, 89 L.Ed. 1975 (1945). . E. g., Patterson v. Saunders, 194 Va. 607, 74 S.E.2d 204 (1953) (the most recent case) ; Bank of America v. McLaughlin Land & Livestock Co., 40 Cal.App.2d 620, 105 P.2d 607 (1940) (the next most recent). . Norton v. Larney, 266 U.S. 511, 45 S. Ct. 145, 69 L.Ed. 413 (1925) ; Eastern Foundation Co. v. Creswell, 154 U.S.App.D.C. 240, 475 F.2d 351 (1973) ; Fibreboard Paper Prods. Co. v. Machinists Local 1304, 344 F.2d 300, 306 (9th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 61, 15 L.Ed.2d 71 (1965) ; Restatement of Judgments supra § 68, comment o. . E. g., Lober v. Moore supra; Bernhard v. Bank of America Nat’l Trust & Sav. Ass’n, 19 Cal.2d 807, 122 P.2d 892 (1942) (per Traynor, J.) ; B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967). . Stebbins’ additional claim that INA refused to provide him with information concerning employment opportunities (see note 8 supra) has no bearing upon the collateral estoppel issue raised on this appeal. . Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 671, 64 S.Ct. 268, 88 L.Ed. 376 (1944) ; Cromwell v. County of Sac supra 94 U.S. at 353, 24 L.Ed. 195; Restatement of Judgments supra § 68(2) & comments c-f; IB J. Moore supra ¶¶ 0.443 [1] at n. 4, 0.443 [3], . In Bland we considered the merits of a challenge by a reserve officer to the Navy’s action in giving him a qualified discharge. The suit was held maintainable despite a prior ruling by the Ninth Circuit refusing to enjoin the Navy’s action on the ground that Bland had not exhausted his administrative remedies, even though the Ninth Circuit had also rejected on the merits plaintiff’s claim that his status as an inactive reservist deprived the Navy of jurisdiction to issue him a discharge under conditions other than honorable, Bland v. Hartman, 245 F.2d 311 (9th Cir., 1957). This court reversed a dismissal of the complaint that had been entered on grounds of res judicata and held that the judgment of the Ninth Circuit must be confined to the issue of exhaustion of remedies and that, this defect having been cured, Bland was free to proceed in a second action going to the merits of his claim. . In Horner it was held that suit could be maintained against certain District and National union officers for breach of fiduciary duties, even though, in a prior action against local officials, the District Court had refused to join the District and National officers as additional parties because the plaintiffs had failed to make a demand on these defendants to cure the alleged irregularities. The Ninth Circuit, citing Bland, held that the earlier judgment related to “a procedural [defect] which is capable of correction.” Assuming there was also a ruling on the merits, the court said this “could not, by operation of the doctrine of res judicata or collateral estoppel, prevent [the plaintiffs] from correcting the procedural mistake in a subsequent and independent action....” 362 F.2d at 230. . 29 U.S.C. § 501(b). Gf. Rule 23.1, Fed. R.Civ.P. (demand on directors as a precondition to instituting shareholders’ derivative suit) ; 3B J. Moore supra ¶ 23.-1.19. . The distinguished Reporters, Professors Benjamin Kaplan (now Associate Justice of the Supreme Judicial Court of Mssachusetts) and David Shapiro, have pertinent discussion at several places in the draft chapter. Concerning the bar effect of a prior judgment in favor of the defendant on the same claim (res judicata) : § 48.1 Judgment for Defendant — Exception to the General Rule of Bar. (2) A valid and final personal judgment for the defendant which rests on the prematurity of the action or on the plaintiff’s failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law, or the circumstances are such that it would be manifestly unfair to subject the defendant to such an action. And in the Comments: e. Alternative Determinations. A dismissal may be based on two or more determinations, at least one of which, standing alone, would not render the judgment a bar to another action on the same claim. In such a case, if the judgment is one rendered by a court of first instance, it should not operate as a bar.... Even if another of the determinations

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?

JOHN R. SAND & GRAVEL CO. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 06-1164. Argued November 6, 2007 Decided January 8, 2008 Jeffrey K. Haynes argued the cause for petitioner. With him on the briefs were Keith C. Jablonski and Gregory C. Sisk. Malcolm L. Stewart argued the cause for the United States. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Tenpas, Deputy Solicitor General Kneedler, and Aaron P. Avila Briefs of amici curiae urging reversal were filed for the National Association of Home Builders by Duane J. Desiderio and Thomas J. Ward; and for the Pacific Legal Foundation by Diana M. Kirchheim and James S. Burling. Thomas C. Goldstein, Patricia A. Millett, Robert Huffman, and Steven C. Nadeau filed a brief for the Metamora Group as amicus curiae urging affirmance. Justice Breyer delivered the opinion of the Court. The question presented is whether a court must raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the Government’s waiver of the issue. We hold that the special statute of limitations governing the Court of Federal Claims requires that sua sponte consideration. I Petitioner John R. Sand & Gravel Company filed an action in the Court of Federal Claims in May 2002. The complaint explained that petitioner held a 50-year mining lease on certain land. And it asserted that various Environmental Protection Agency activities on that land (involving, e. g., the building and moving of various fences) amounted to an unconstitutional taking of its leasehold rights. The Government initially asserted that petitioner’s several claims were all untimely in light of the statute providing that “[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U. S. C. §2501. Later, however, the Government effectively conceded that certain claims were timely. See App. 37a-39a (Government’s pretrial brief). The Government subsequently won on the merits. See 62 Fed. Cl. 556, 589 (2004). Petitioner appealed the adverse judgment to the Court of Appeals for the Federal Circuit. See 457 F. 3d 1345, 1346 (2006). The Government’s brief said nothing about the statute of limitations, but an amicus brief called the issue to the court’s attention. See id., at 1352. The court considered itself obliged to address the limitations issue, and it held that the action was untimely. Id., at 1353-1360. We subsequently agreed to consider whether the Court of Appeals was right to ignore the Government’s waiver and to decide the timeliness question. 550 U. S. 968 (2007). II Most statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims. See, e. g., United States v. Kubrick, 444 U. S. 111, 117 (1979). Thus, the law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver. See Fed. Rules Civ. Proc. 8(c)(1), 12(b), 15(a); Dag v. McDonough, 547 U. S. 198, 202 (2006); Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982). Such statutes also typically permit courts to toll the limitations period in light of special equitable considerations. See, e. g., Rotella v. Wood, 528 U. S. 549, 560-561 (2000); Zipes, supra, at 393; see also Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-453 (CA7 1990). Some statutes of limitations, however, seek not so much to protect a defendant’s case-specific interest in timeliness as to achieve a broader system-related goal, such as facilitating the administration of claims, see, e. g., United States v. Brockamp, 519 U. S. 347, 352-353 (1997), limiting the scope of a governmental waiver of sovereign immunity, see, e. g., United States v. Dalm, 494 U. S. 596, 609-610 (1990), or promoting judicial efficiency, see, e. g., Bowles v. Russell, 551 U. S. 205, 210-213 (2007). The Court has often read the time limits of these statutes as more absolute, say, as requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period. See, e. g., id., at 212-213; see also Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as “jurisdictional.” See, e. g., Bowles, supra, at 210. This Court has long interpreted the court of claims limitations statute as setting forth this second, more absolute, kind of limitations period. A In Kendall v. United States, 107 U. S. 123 (1883), the Court applied a predecessor of the current 6-year bar to a claim that had first accrued in 1865 but that the plaintiff did not bring until 1872. Id., at 124; see also Act of Mar. 3, 1863, § 10, 12 Stat. 767 (Rev. Stat. § 1069). The plaintiff, a former Confederate States employee, had asked for equitable tolling on the ground that he had not been able to bring the suit until Congress, in 1868, lifted a previously imposed legal disability. See 107 U. S., at 124-125. But the Court denied the request. Id., at 125-126. It did so not because it thought the equities ran against the plaintiff, but because the statute (with certain listed exceptions) did not permit tolling. Justice Harlan, writing for the Court, said the statute was “jurisdictionjal],” that it was not susceptible to judicial “en-grafting] ” of unlisted disabilities such as “sickness, surprise, or inevitable accident,” and that “it [was] the duty of the court to raise the [timeliness] question whether it [was] done by plea or not.” Ibid, (emphasis added). Four years later, in Finn v. United States, 123 U. S. 227 (1887), the Court found untimely a claim that had originally been filed with a Government agency, but which that agency had then voluntarily referred by statute to the Court of Claims. Id., at 229-230 (citing Act of June 25, 1868, § 7, 15 Stat. 76); see also Rev. Stat. §§1063-1065. That Government reference, it might have been argued, amounted to a waiver by the Government of any limitations-based defense. Cf. United States v. Lippitt, 100 U. S. 663, 669 (1880) (reserving the question of the time bar’s application in such circumstances). The Court nonetheless held that the long (over 10-year) delay between the time the claim accrued and the plaintiff’s filing of the claim before the agency made the suit untimely. Finn, 123 U. S., at 232. And as to any argument of Government waiver or abandonment of the time-bar defense, Justice Harlan, again writing for the Court, said that the ordinary legal principle that “limitation ... is a defence [that a defendant] must plead ... has no application to suits in the Court of Claims against the United States.” Id., at 232-233 (emphasis added). Over the years, the Court has reiterated in various contexts this or similar views about the more absolute nature of the court of claims limitations statute. See Soriano v. United States, 352 U. S. 270, 273-274 (1957); United States v. Greathouse, 166 U. S. 601, 602 (1897); United States v. New York, 160 U. S. 598, 616-619 (1896); De Arnaud v. United States, 151 U. S. 483, 495-496 (1894). B The statute’s language has changed slightly since Kendall was decided in 1883, but we do not see how any changes in language make a difference here. The only arguably pertinent linguistic change took place during the 1948 recodification of Title 28. See § 2501, 62 Stat. 976. Prior to 1948, the statute said that “[e]very claim . . . cognizable by the Court of Claims, shall be forever barred” unless filed within six years of the time it first accrues. Rev. Stat. § 1069 (emphasis added); see also Act of Mar. 3, 1911, § 156, 36 Stat. 1139 (reenacting the statute without any significant changes). Now, it says that “[e]very claim of which” the Court of Federal Claims “has jurisdiction shall be barred” unless filed within six years of the time it first accrues. 28 U. S. C. § 2501 (emphasis added). This Court does not “presume” that the 1948 revision “worked a change in the underlying substantive law ‘unless an intent to make such a change is clearly expressed.’” Keene Corp. v. United States, 508 U. S. 200, 209 (1993) (quoting Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957); alterations omitted); see also H. R. Rep. No. 308, 80th Cong., 1st Sess., 1-8 (1947) (hereinafter Rep. No. 308) (revision sought to codify, not substantively modify, existing law); Barron, The Judicial Code: 1948 Revision, 8 F. R. D. 439 (1948) (same). We can find no such expression of intent here. The two linguistic forms (“cognizable by”; “has jurisdiction”) mean about the same thing. See Black’s Law Dictionary 991 (4th ed. 1951) (defining “jurisdiction” as “the authority by which courts and judicial officers take cognizance of and decide cases” (emphasis added)); see also Black’s Law Dictionary 1038 (3d ed. 1933) (similarly using the term “cognizance” to define “jurisdiction”). Nor have we found any suggestion in the Reviser’s Notes or anywhere else that Congress intended to change the prior meaning. See Rep. No. 308, at A192 (Reviser’s Note); Barron, supra, at 446 (Reviser’s Notes specify where change was intended). Thus, it is not surprising that nearly a decade after the revision, the Court, citing Kendall, again repeated that the statute’s limitations period was “jurisdictionfal]” and not susceptible -to equitable tolling. See Soriano, supra, at 273-274, 277. III In consequence, petitioner can succeed only by convincing us that this Court has overturned, or that it should now overturn, its earlier precedent. A We cannot agree with petitioner that the Court already has overturned the earlier precedent. It is true, as petitioner points out, that in Irwin v. Department of Veterans Affairs, 498 U. S. 89 (1990), we adopted “a more general rule” to replace our prior ad hoc approach for determining whether a Government-related statute of limitations is subject to equitable tolling — namely, “that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95-96. It is also true that Irwin, using that presumption, found equitable tolling applicable to a statute of limitations governing employment discrimination claims against the Government. See id., at 96; see also 42 U. S. C. § 2000e-16(c) (1988 ed.). And the Court noted that this civil rights statute was linguistically similar to the court of claims statute at issue here. See Irwin, supra, at 94-95. But these few swallows cannot make petitioner’s summer. That is because Irwin dealt with a different limitations statute. That statute, while similar to the present statute in language, is unlike the present statute in the key respect that the Court had not previously provided a definitive interpretation. Moreover, the Court, while mentioning a case that reflects the particular interpretive history of the court of claims statute, namely, Soriano, supra, says nothing at all about overturning that or any other case in that line. See 498 U. S., at 94-95. Courts do not normally overturn a long line of earlier cases without mentioning the matter. Indeed, Irwin recognized that it was announcing a general prospective rule, see id., at 95, which does not imply revisiting past precedents. Finally, Irwin adopted a “rebuttable presumption” of equitable tolling. Ibid, (emphasis added). That presumption seeks to produce a set of statutory interpretations that will more accurately reflect Congress’ likely meaning in the mine run of instances where it enacted a Government-related statute of limitations. But the word “rebuttable” means that the presumption is not conclusive. Specific statutory language, for example, could rebut the presumption by demonstrating Congress’ intent to the contrary. And if so, a definitive earlier interpretation of the statute, finding a similar congressional intent, should offer a similarly sufficient rebuttal. Petitioner adds that in Franconia Associates v. United States, 536 U. S. 129 (2002), we explicitly considered the court of claims limitations statute, we described the statute as “unexceptional,” and we cited Irwin for the proposition “that limitations principles should generally apply to the Government in the same way that they apply to private parties.” 536 U. S., at 145 (internal quotation marks omitted). But we did all of this in the context of rejecting an argument by the Government that the court of claims statute embodies a special, earlier-than-normal, rule as to when a claim first accrues. Id., at 144-145. The quoted language thus refers only to the statute’s claims-accrual rule and adds little or nothing to petitioner’s contention that Irwin overruled our earlier cases — a contention that we have just rejected. B Petitioner’s argument must therefore come down to an invitation now to reject or to overturn Kendall, Finn, Soriano, and related cases. In support, petitioner can claim that Irwin and Franconia represent a turn in the course of the law and can argue essentially as follows: The law now requires courts, when they interpret statutes setting forth limitations periods in respect to actions against the Government, to place greater weight upon the equitable importance of treating the Government like other litigants and less weight upon the special governmental interest in protecting public funds. Cf. Irwin, supra, at 95-96. The older interpretations treated these interests differently. Those older cases have consequently become anomalous. The Government is unlikely to have relied significantly upon those earlier cases. Hence the Court should now overrule them. Basic principles of stare decisis, however, require us to reject this argument. Any anomaly the old cases and Irwin together create is not critical; at most, it reflects a different judicial assumption about the comparative weight Congress would likely have attached to competing legitimate interests. Moreover, the earlier cases lead, at worst, to different interpretations of different, but similarly worded, statutes; they do not produce “unworkable” law. See United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (internal quotation marks omitted); California v. FERC, 495 U. S. 490, 499 (1990). Further, stare decisis in respect to statutory interpretation has “special force,” for “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989); see also Watson v. United States, ante, at 82-83. Additionally, Congress has long acquiesced in the interpretation we have given. See ibid.; Shepard v. United States, 544 U. S. 13, 23 (2005). Finally, even if the Government cannot show detrimental reliance on our earlier cases, our reexamination of well-settled precedent could nevertheless prove harmful. Justice Brandéis once observed that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (dissenting opinion). To overturn a decision settling one such matter simply because we might believe that decision is no longer “right” would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations. IV The judgment of the Court of Appeals is affirmed. It is so ordered.

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?

FIFTH AVENUE BANK OF NEW YORK v. HAMMOND REALTY CO. et al. No. 8023. Circuit Court of Appeals, Seventh Circuit. Oct. 30, 1942. Joseph H. Schwartz, Edward A. Cooper, and Norman H. Nachman, all of Chicago, 111. (Schwartz & Cooper and Harry Adelman, all of Chicago, 111., of counsel), for appellant. Jay E. Darlington and Frederick C. Crumpacker, both of Hammond, Ind., and Walter Myers, of Indianapolis, Ind., for appellees. Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge. MINTON, Circuit Judge. The plaintiff, a New York corporation, as executor of the last will and testament of Isabel D. McHie, brought suit in the Northern District of Indiana against the Hammond Realty Company on certain past-due bonds, and against the defendant Sidmon McHie as a guarantor of the paymefit of said bonds under a written guaranty of April 11, 1933. The District Court found for the plaintiff and against the defendant Hammond Realty Company in the sum of $10,365.47 and costs; and declined to give judgment against Sidmon McHie and entered judgment for him on his counterclaim, holding that McHie was the equitable owner of all the property of which the testatrix died seized. Neither the plaintiff nor the defendant Hammond Realty Company appealed from the judgment against that company. The time for appeal has long since expired, and this judgment has become final and conclusive. The plaintiff did appeal from that part of the final judgment “that plaintiff recover no judgment against Sidmon McHie,” and which found fov Sidmon McHie on his counterclaim that he was the equitable owner of the property. After notice of this appeal had been given, an execution was issued against the Hammond Realty Company. Under that execution there was a levy upon certain property of the company, and the marshal collected one thousand dollars from the company on said execution. The defendant-appellee Sidmon McHie has made a motion in this court that the appeal be dismissed on the ground that the plaintiff cannot appeal from a judgment under which it has received a benefit, citing an Indiana statute and numerous Indiana cases to that effect. We recognize the existence of such a rule, but there is a well-known exception thereto, and we think the plaintiff-appellant comes within that exception. The rule and the exception are clearly stated by Judge Shake of the Indiana Supreme Court in State ex rel. Jackson v. Middleton, 215 Ind. 219, 224, 19 N.E.2d 470, 472, 20 N.E.2d 509, as follows: “The statute (§ 2-3201, Burns’ 1933, Sec. 471, Baldwin’s 1934) is merely declaratory of the common law rule that a party cannot accept the benefit of an adjudication and yet allege it to be erroneous. 4 C.J.S., Appeal and Error, § 216, p. 416. But, like most general rules, this has its exceptions and it is accordingly recognized that an acceptance of an amount to which the acceptee is entitled in any event does not estop him from appealing from or bringing error to the judgment or decree ordering its payment. City of Indianapolis v. Stutz Motor Car Co., 1932, 94 Ind.App. 211, 180 N.E. 497. The facts upon which the court below rendered judgment against the appellees for $249.33 were stipulated by the parties and are undisputed. The appellant has not challenged the propriety of that part of the judgment by cross-errors and, so far as the motion to dismiss the appeal is concerned, the case comes clearly within the exception to the rule stated above. Appellees’ motion to dismiss is therefore denied.” See, also, City of Indianapolis v. Stutz Motor Car Co., 94 Ind.App. 211, 180 N.E. 497. The judgment against the Hammond Realty Company became final and conclusive and was not appealed from, and the plaintiff on facts stipulated was entitled to the judgment against it in any event. What the plaintiff collected from the Hammond Realty Company was the plaintiff’s just due and in no wise prejudiced Sidmon McHie. If the case was affirmed, Sidmon McHie could not be hurt because the plaintiff would be holding the proceeds for the benefit of Sidmon McHie as the equitable owner thereof. If the case was reversed and Sidmon McHie held liable as a guarantor and not to be entitled as equitable owner, then the amount collected on the judgment against the Hammond Realty Company would reduce by that much the amount Sidmon McHie would have to pay as guarantor. The motion to dismiss is overruled. This brings us to a consideration of the judgment in favor of Sidmon McHie on his counterclaim, and the judgment that plaintiff do not recover against him as guarantor. Sidmon McHie and the testatrix were married in 1909 and lived together as husband and wife until December, 1925, when they separated. On May 12, 1919 Mr. and Mrs. McHie had entered into a written contract for reciprocal wills, each providing that if the other survived he or she would provide by will that such survivor would get the property of the deceased person. After the parties had separated, to wit, on March 22, 1926, they entered into a contract for the disposition and division of their property, and the agreement of May 12, 1919 was expressly rescinded. The contract of March 22, 1926 is a document covering five pages .in the record and disposing of many hundreds of thousands of dollars worth of property between the parties. It also provides that in addition to the property given to and confirmed to Isabel D. McHie under said agreement, the defendant Sidmon McHie was to pay her one thousand dollars a month for her support as long as she lived. The Sixth Covenant of this contract provides as follows: “Sixth: It is agreed that the parties shall live apart and separate and shall not annoy or molest each other.” All the provisions of the contract were executed except the monthly payments and the continuing obligation of the Sixth Covenant. In May, 1932 Sidmon McHie defaulted in his payments of support under the contract, and continued in default. Sidmon McHie filed suit for divorce against Isabel D. McHie in the Lake Superior Court, and decree was entered in his favor, granting him a divorce July 3, 1936. This judgment was affirmed by the Appellate Court of Indiana. The divorce decree was granted on the grounds of cruel and inhuman treatment, which included, among other things, annoyance and molestation of Sidmon McHie by Isabel D. McHie in violation of the covenant of the contract of March 22, 1926. Sidmon McHie’s counterclaim in the matter now before this court declared upon the contract for reciprocal wills of May 12, 1919. The plaintiff answered that this contract had been rescinded by the contract of March 22, 1926. The District Court found that because Isabel D. McHie had flagrantly violated the Sixth Covenant of the contract of March 22, 1926, the consideration for this contract had failed and Sidmon McHie had a right to treat it as no longer in effect; and the contract of May 12, 1919 was thereby revived, and under this contract Sidmon McHie was the equitable owner of the property of which the testatrix died seized. The court found that Sidmon McHie did guarantee the payment of the bonds in suit. The court further found that for a valuable consideration Sidmon McHie did on February 1, 1939, in writing, guarantee the payment of these bonds. The court declined to enter judgment against Sidmon McHie as such guarantor for the reason that the court had found he was the equitable owner of the bonds and it would be equivalent to entering a judgment in favor •of himself. The court did not declare whether Sidmon McHie was a guarantor of the bonds in suit under the written guaranty of April 11, 1933 or that of February 1, 1939. We put to one side the effect the divorce decree had upon the property rights of the McHies, and we shall examine the covenants of the contract of March 22, 1926, which the District Court found Isabel D. McHie had flagrantly breached by annoying and molesting Sidmon McHie. Because she had breached this covenant, the District Court held consideration for the contract failed and Sidmon McHie was entitled to consider the contract of March 22, 1926 as at an end, and the contract of May 19, 1919 restored. The essence of the contract of March 22, 1926 was the settlement of the extensive property rights of the parties, and this contract, as we have pointed out before, had been executed in every respect except as to the mutual obligations under the Sixth Covenant not to molest each other, and the covenant of McHie to pay one thousand dollars a month support, which he breached. The Sixth Covenant was an independent covenant, and it contained the mutual promise of each of the parties not to annoy or molest the other. The defendant Sidmon McHie, as we have pointed out, had breached the contract as to the payments for support. He never paid on it after May, 1932. This undoubtedly annoyed Isabel D. McHie, and was doubtless the reason why she exhibited her annoyance to and molested the defendant Sidmon McHie. Because the Sixth Covenant was an independent covenant and not the essence of the contract, we do not think its breach constituted such failure of consideration as to entitle the defendant Sidmon McHie to treat the contract as ended. Hughes v. Burke, 167 Md. 472, 175 A. 335, 337; Sabbarese v. Sabbarese, 104 N.J.Eq. 600, 146 A. 592. As to the liability of Sidmon McHie on his guaranty, we again lay to one side the effect of the divorce decree upon the written agreement of April 11, 1933. The trial court found that Sidmon McHie was the guarantor of the bonds in suit, and found that he had for a valuable consideration on February 1, 1939 guaranteed in writing the payment of these bonds. The evidence of this later guaranty was admitted in the trial court without objection and was considered by the court on the motion for summary judgment. While it is true that the plaintiff had declared in its pleadings upon the written guaranty of April 11, 1933 and not the one of February 1, 1939, still since the evidence of the guaranty of February 1, 1939 was admitted without objection and approved by the court in a special finding, such finding is sufficient to support the court’s conclusion of law that Sidmon McHie was the guarantor of the bonds in suit, and the pleadings will be deemed amended to meet the proof. Federal Rules of Civil Procedure, rule 15 (b), 28 U.S.C.A. following section 723c. Low v. Davidson Mfg. Co., 7 Cir., 113 F.2d 364. The judgment is reversed with instructions to vacate the judgment in favor of Sidmon McHie on the counterclaim, and to enter judgment against him on his written agreement of February 1, 1939 as' guarantor of the payment of said bonds.

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?

Althea G. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. No. 13707. United States Court of Appeals Ninth Circuit. Sept. 8, 1954. Henry C. Clausen, Richard G. Burns, San Francisco, Cal., for appellants. Warren E. Burger, Atty. Gen., Lester S. Jayson, Samuel D. Slade, Attys., Dept, of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee. Before MATHEWS, BONE and CHAMBERS, Circuit Judges. BONE, Circuit Judge. This is an appeal from a judgment denying delief in an action under the Federal Tort Claims Act, herein “the Act.” The decision of the lower court is reported in 105 F.Supp. 208. At all times here pertinent appellant was a civilian employed as a teacher by the Army Air Force, and also as a secretary by a private construction firm operating on the Island of Guam. She was injured on the night of March 3, 1949, at or about 10:30 p.m. while sitting in a vehicle then parked on a “turnabout” place located on the end of what was called the Crystal Breakwater, this being an area on the Island reserved for “parking” purposes, and a place where cars were customarily parked. At the time above mentioned an army vehicle then being driven by one Seabourn (a clerk in the Supply Department of the United States Army based on the Island) crashed his vehicle into the side of appellant’s car, causing the physical injuries upon which this action was based. There was overwhelming evidence that Seabourn was drunk at the time. Pertinent provisions of the Act, Title 28 U.S.C.A., read as follows: § 1346: «(b) * * * the district courts * * * shall have * * * jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal injury * * * caused by the negligent * * * act * * * of any employee of the Government while acting within the scope of his office or employment, under circumstances where * * * a private person, would be liable to the claimant in accordance with the law of the place where the act * * * occurred.” (Emphasis ours.) § 2671: “ ‘Acting within the scope of his office or employment’, in the case of a member of the military or naval forces of the United States, means acting in line of duty.” (Emphasis ours.) § 2674: “The United States shall be liable, respecting the provisions 0f this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” The Question Presented. Whether the United States is liable, under the terms of the Act, above quoted, for the negligent acts of a soldier which occur when the soldier is seeking personal recreation during the period he is off duty and away from his army base on a pass. Relevant and applicable provisions of the Civil Code of Guam apd Army Regulations are set forth in the margin. The Facts. There was credible and competent evidence of a convincing character from which the trial court could have inferred and concluded that the facts which we here summarize were fully established as true. Seabourn obtained an appropriate pass to leave the army base on and for the day of March 3, 1949. Accompanied by two other soldiers (Schmidt and Vincent) he spent the afternoon drinking beer. The three men returned to the base about 7 p.m. and while there, a Sergeant Stiles, a member of Seabourn’s company, gave Seabourn a so-called “trip ticket” for a % ton vehicle known as a “weapons carrier.” This ticket had been made out about 8 a.m. that morning to a driver named Cabera,* a soldier who also worked with Seabourn, and it discloses that the vehicle had been requested by a Lt. W. R. Werb, and use of the vehicle was therein authorized for “Official Business.” Listed on the ticket are the various official points to which the weapons carrier was driven that day.2 Neither Seabourn’s nor Stiles’ name appears on the ticket, nor was Seabourn’s use of the vehicle in anyway indicated thereon. By means of this “ticket”, Seabourn secured possession of the vehicle and in company with the two men named drove to the Enlisted Men’s Club on the Island where they drank more beer as well as some champagne, and then they decided to “go for a ride”. Thereafter, and pri- or to the accident here involved, Sea-bourn let his companions out of the vehicle and drove off alone. These companions later swore that Seabourn was then “definitely drunk,” and Seabourn himself swore that he remembered nothing further until the next morning when he awoke beside a road. Seabourn’s use of the vehicle while thus “off duty” and in quest of entertainment, was not a use in furtherance of any prescribed or indicated military duty. The vehicle was not being used in Seabourn’s “off duty” period to serve any prescribed or noted military purpose or interest of the government, nor was Sea-bourn’s use motivated by such a purpose. His superior military authorities had no knowledge of, or supervision over, the use of the vehicle while it was in Sea-bourn’s possession, nor any control over Seabourn after he had secured it from Stiles by using the Cabera ticket which had been previously issued by Lt. Werb (see footnote 2). Nor was any military order issued by a superior officer directing or authorizing Seabourn to use the vehicle for any purpose, military or otherwise (including “recreation”), or for the execution of any military order. The facts as we have outlined above are fully reflected in the record before us. On the material issues in this case the lower court found that the accident occurred on the date, at the place and under the conditions we have noted above; that Seabourn was a corporal in the United States Army stationed on the Island of Guam and assigned to Headquarters Base Service; that he was off duty and away from the base on a pass at the time; that he and two associates spent the afternoon of the day in question drinking beer and the three men returned to the army base about 7 p.m. of the day in question where Seabourn obtained unauthorized possession of the vehicle he used, after which Seabourn, accompanied by his two companions, Vincent and Schmidt, drove the vehicle to the Enlisted Men’s Club on the Island where they indulged in champagne as well as beer, after which they decided “to take a ride”; that some time prior to the accident Seabourn let both of these companions out of the vehicle, and that is all Seabourn remembered until the morning following the accident, when he awoke beside the road; that the bodily injuries of plaintiff resulted from the accident which was entirely due to the negligence of Seabourn; that Sea-bourn’s use of the weapons carrier was not for the purpose of transporting United States Army personnel under the direction of his commanding officer, nor for any purpose authorized by army regulations; that Seabourn was on a frolic of his own and used the vehicle as he might use his private automobile in seeking personal entertainment. On these findings the court entered conclusions of law setting forth that Seabourn, an employee of the defendant, was not acting within the course and scope of his employment and that plaintiff is not entitled to recover from the United States, and the respective parties should each bear their own costs. Judgment was thereupon entered in favor of the Government. Specification of Errors. It is sufficient to say that appellant’s specifications of error not only challenge all of the findings and conclusions of the lower court which are material to the issues posed on this appeal, but also the failure of the lower court to make certain proposed findings and conclusions tendered by appellant which reflect her theory of federal liability for Seabourn’s tort. Appellant’s Position. We summarize what appears to us to be the substance of appellant’s contentions on this appeal: She urges that despite the court’s findings, the fact remains that Seabourn was seeking “entertainment”; that such a “diversion” is essential to a soldier’s “morale,” and as a (legal) consequence, his late joy ride in the army vehicle was within his “scope of employment.” Relying on this theory, she sees a perfect analogy between the facts of the instant case and those discussed in our opinion in Murphey v. United States, 9 Cir., 179 F.2d 743, 745, and she also assures us that the case before us narrows to a consideration of only two points which are determinative here, these being the facts, and this Court’s views as expressed by the majority in the Murphey case. Appellant frankly states that she is content to “rest her case” on the Mur-phey decision, and accompanies this concession with a lengthy discussion of the holding in that case. We disagree with appellant’s contention that our decision in Murphey v. United States, supra, when laid off against the facts revealed by the record before us, is dispositive of the vital and controlling issue in the instant case. We are fully persuaded that the Murphey case is clearly distinguishable on the facts. There we pointed out that Sergeant Brander drove an army truck to the town of Klamath under specific authorization of his commanding officer. He was authorized to take it into the town “for pleasure,” under instructions that it might be used to carry some soldiers into the town “ ‘for entertainment, movies, etc.’ ” The majority of this Court thought that the official permission thus granted was broad enough to include a visit to an Indian dance (certainly in itself a harmless diversion) being held only a short distance outside the town, this because Brander’s “digression” to the place of the dance was with “knowledge of [his] superior officers”. The basic assumption on our part was that attending the dance was within the concept of allowable “recreation” because it was for “ ‘entertainment, movies, etc.’ ” Brander’s commanding officer testified that “it was supposed that the truck would be parked alongside a building in the town until it was to be returned to the army camp.” Brander was negligent in his driving but it was not contended that he was drunk at the time, or that drinking contributed in any way to his negligence. The accent in the Murphey opinion is on recreational use of the army vehicle for “improvement of [Brander’s] morale” and the majority of the court found support for this interpretation of “recreation” in an opinion of the Judge Advocate General that “engaging in allowed athletic exercise” is within a soldier’s “line of duty.” Then we proceeded to find a suitable analogy in an Admiralty case holding that in seeking allowed recreation, a seaman “was in the course of his [maritime] employment” when after going ashore, he injured himself while diving into a shallow swimming pool. No cases in the field of Admiralty are cited (and probably not one could be found) which support the view that a ship could be held legally liable in damages to a civilian who was the victim of a wholly independent tort committed against his person by a sailor while the latter was “recreating” ashore on leave from his ship. As the Admiralty case we cited points out, shore leave for a seaman is an old part of the business of sailing ships. The present day status of a sailor has also preserved his traditional right (as a ward of admiralty) to “cure and maintenance.” Even this ancient right is lost when his voluntary misdeed is the active cause of his physical disability or sickness. And certainly the historical legal status of a sailor is far removed from the military status of a soldier. In the Murphey case we carefully delimited the area of federal liability by the frank and illuminating statement that: “This case concerns specifically allowed amusements, here ‘movies, etc.’ in the town of Klamath. We are not holding that in any case where the soldier is on a frolic of his own he can make the government liable simply because he there found entertainment. “We think the overriding purpose in Brander’s employment in the use of the truck in the town of Klamath is the improvement of the morale of the soldiers in seeking ‘entertain* ment.’ The ‘movies, etc.’ certainly would include the Indian ceremonial. The government being liable as a private person in California, it is liable where the truck was in use for the broad purpose for which it was employed by Brander, even though he had instruction that he was not ‘free’ to use it in a particular manner accomplishing that purpose. ******* “Here Brander was seeking the specified entertainment which would improve his military morale. That he was ‘directly or indirectly serving his master’ in so doing is none the less within the scope of that employment, because he was serving his own desire and that of the other sergeant seeking recreation in taking the latter’s two lady friends to the ceremonial.” (Emphasis ours.) And we again emphasized the significance of such a holding in language used in United States v. Johnson, 9 Cir., 181 F.2d 577, 580 relative to the conduct of a driver of a navy vehicle. We specifically referred to the absence of evidence showing that the driver was on “a frolic of his own” at the time of the accident there involved. There this Court considered the case of a civilian in Guam who was injured when a navy vehicle in which he was riding overturned. The driver of the vehicle was a navy pharmacist’s mate. Our ultimate holding was that the doctrine of res ipsa loquitur was applicable, because the vehicle suddenly started to “shimmy” and quickly rolled off the road. Upon the assumption that this unexplained action of the vehicle (wholly within the control of the navy) spelled out careless inspection or construction (careless or “drunk driving” of the vehicle at the time was not evident) we applied the res ipsa loquitur doctrine and held the Government liable under the Act. Under the facts in the Johnson case (also relied on by appellant) we also held that the driver was on official navy business at the time (and therefore “acting ‘in line of duty’ ”) despite some “deviations” (for personal errands) from what would have been a normal time and route in delivering a navy report. We refused to accept the argument that these slight “deviations” indicated (in a legal sense) that the driver had (thereby) departed on “a frolic of his own.” This case is also clearly distinguishable from the facts in the Murphey case and the facts in the case at bar. Appellant also argues that in Murphey we held that an employer is held liable for “incidental” acts which he should reasonably have expected would be done though the particular act be “ ‘forbidden or done in a forbidden manner,’ ” to which is added the assertion that this Court “emphasized that the superior officers knew that the truck was employed for such [forbidden] purposes,” and that Brander’s activity “directly or indirectly” served “the master,” and were thus “within the scope of that employment”. We are reminded by appellant of our reference to the “paramount significance of morale in military life,” this morale to be achieved by recreational activity. And because such activity is authorized in Army Regulations, the employer is rendered responsible under the Act for the resultant negligence of the employee, this by application of the respondeat superior doctrine to this case as this doctrine is applied under California law to the “master and servant” relationship in the field of private employment. This emphasis justifies comment since both parties stress the doctrine in their briefs because of its assumed bearing on the crucial issue before us. The Respondeat Superior Doctrine. Appellant’s stress is on decisions of the California state courts where it was applied in cases involving the ordinary “master and servant” relationship in purely private employment. In none of the California cases cited does a court discuss (as indeed it could not) the question of federal liability for the tortious acts of a soldier. The status of a soldier or sailor in military or naval service is quite different from the status of either an employee serving a private employer or a civilian employee serving the United States, a fact which requires emphasis because of its importance in the case at bar. The novel status of a soldier arising from his peculiar relationship with his Government, was clearly pointed up by emphatic language of the court in United States v. Standard Oil Co. of California, 332 U.S. 301, 305, 306, 309, 310, 67 S.Ct. 1604, 91 L.Ed. 2067. That decision merely brought into sharp focus the controlling legal and constitutional factors underlying such a unique relationship. Congress did not lose sight of this obvious fact while considering the many problems wrapped up in the national defense program in connection with its surrender of immunity to suit under the Act. As we point out herein, one important problem was met and disposed of by a specific provision in the Act which carefully delimited the area of federal liability for a tortious act of (as here) a soldier, by providing that such liability would attach only when the act was committed while the soldier was “acting in line of [military] duty.” This careful delineation provides a clear line of demarcation between Government liability for a soldier’s torts and the area of general liability of a private employer for torts of his employees in classical “master and servant” cases where the rule of respondeat superior is normally applied. Comments of the court in Feres v. United States, 340 U.S. 135, 138, 141, 143, 71 S.Ct. 153, 95 L.Ed. 152, are pertinent as bearing on the peculiar status of a soldier. And see United States v. Sharpe, 4 Cir., 189 F.2d 239, 241, where the court indicates that when a question of statutory construction of federal legislation is involved, federal courts are not bound by local decisions but apply their own standards — this with respect to determining the relationship of the Government to its employees. On its face the Tort Claims Act appears to be a general act designed to cover all sorts of claims against the United States for money damages for tortious injuries to persons and property caused by the negligent or wrongful act or omission of any Government employee “while acting within the scope of his office or employment”. At first blush, some broad preliminary language in the Act would seem to embrace all categories of Government employees and servants (even including members of the military and naval forces of the United States) and serve to bring them and the United States within the orbit of the orthodox respondeat superi- or doctrine as applied under “the law of the place” where the tortious act was committed. But this view of the meaning of the Act is completely dissipated by an inspection of its full terms. It would do violence to reason to assume that Congress did not recognize the fact that a vast number of purely civilian employees are on the Government payrolls, and one of its obvious purposes was to bring these employees within the orbit of the Act. While we are not here concerned with the tort of a civilian employee of the Government, the status of such an employee (under the Act) becomes a matter of importance when the question of federal liability for his tor-tious act is involved. A most casual reading of the Act will make this fact very plain, and in this connection it may be assumed that as to such civilian employees, the familiar doctrine of respon-deat superior, as it has been applied under California law to the commonplace “master and servant” cases, would apply. But in dealing with the problem of federal liability for tortious acts of members of the military and naval forces a wholly different situation is presented because Congress saw fit to adopt a drastic modification of this “master and servant” doctrine. By carefully chosen language it delimited the area of federal liability for tortious acts of members of this group by specifically providing that so far as concerns such acts, the phrase “acting within the scope of his office or employment” shall mean “acting in line of duty.” By use of such plain, unambiguous and highly significant language, Congress made abundantly plain that federal liability can arise only when the tortious act was committed at a time when the tort feasor member of our military or naval forces was actually “acting in line of duty.” Unless we are prepared to utterly disregard this mandate and refuse to conform to its obvious meaning, we must (as we do in this case) hold that “acting in line of duty” means acting in line of military duty. If Seabourn was not acting in line of military duty at the time he injured appellant, the rule of respondeat superior (as applied in orthodox “master and servant” cases) loses its standardized forcé for that rule has been modified in the significant manner here noted. We need not stress the fact that when the sovereign waives its immunity from suit, it .may, as here, do so on its own terms. And as appellee points out, appellant cites no authority for the theory that a private employer could be held liable in damages for the tortious act of an employee occurring on an allowed “day off” while he is out driving on a joy ride while drunk. In stating her position on the issues, appellant asserts that since (under Army Regulations) a soldier may indulge in “recreation,” his “off duty” recreational activities are properly to be regarded as within the scope of his “military duty.” The assumption necessarily underlying this contention is that Seabourn was actually indulging in an authorized and permissible form of “recreation” at the time he crashed his army vehicle into appellant’s car. Upon no other basis can her position be sustained unless we close our eyes and agree that a loose post “practice” of “passing around” trip tickets issued only for official use, (when the actual use is not for official business) in some undisclosed way transformed the use by Seabourn into an authorized “official use.” The loose operation of “passing around” among enlisted men “tickets” which would give them possession of an army vehicle for joy riding and drinking bouts, all without the knowledge or approval of their superior officers, finds no sanction in applicable Army Regulations, but to the contrary, is a clear violation of these rules. A look at the regulations (footnote 1) will reveal that they refer only to authorized athletics, organized and supervised recreational welfare, and morale-building activities. Every recreational activity mentioned in the regulations is a far cry from a wild, reckless and wholly independent act of violence against a civilian, and we are unwilling to give sanction to appellant’s basic theory that irresponsible drunkenness and irresponsible driving late at night on a “lark” or “frolic” in a wholly independent venture entirely unrelated to what we conceive to be “acting in line of duty”, must be regarded by us as “recreational” conduct authorized by Army Regulations. But appellant’s view is that Seabourn’s night ride while drunk was a morale-builder, hence the government is liable in damages for the tortious act resulting from that exploit. Reduced to their simplest terms, the facts of this case show beyond any doubt that Seabourn was out on a wild frolic when he injured appellant; that he was then drunk and in an irresponsible mood; that he was not then executing any military order or on military business of any kind. And if resort be had to the California cases cited in our Murphey opinion which deal with the liability of a private employer (under the respondeat superior doctrine), we suggest that it would bankrupt the most exuberant imaginative powers to envision Seabourn’s criminal conduct as an activity which a private employer “ ‘should reasonably have expected would be done,’ ” or that such conduct was “ ‘serving his master.’ ”. There is a further consideration of vital importance. If there was not some rational limitation on so-called “recreational activities” such as those that led to the accident here involved, the Government could be held liable in damages for every wholly independent wrongful act of a soldier while he is away from the burdens of his official army duties on a “pass” despite the fact that such acts might range through the entire category of personal and property torts having no conceivable connection with the performance of any known military duty, and certainly not within the scope of any allowable and rational “recreational activities” referred to in the Army Regulations. The short of it is that a “right” to “recreate” does not carry with it a correlative right to “keep up morale” by negligently or wilfully destroying the rights of others (in activities wholly apart from permissible recreational sports and relaxation) and thereby fasten upon the Government a financial liability for such tortious acts. Appellee has cited certain cases thought to be apposite which bear on the question whether Seabourn was “acting within the scope” of his “office or employment” when he injured appellant. They concern activities which have relation to appellant’s basic premise that since “entertainment” is essential to a soldier’s “morale,” Seabourn’s joy ride was not only within the legitimate scope of his employment, but (under our Mur-phey decision) must be regarded as an activity which was in line of “military duty.” A brief reference to some of these cases is justified. A case presenting a situation somewhat comparable to one in the case at bar is King v. United States, 5 Cir., 178 F.2d 320, certiorari denied 339 U.S. 964, 70 S.Ct. 998, 94 L.Ed. 1373. The “ ‘line of duty’ ” language was used to “more correctly” describe the conduct of military personnel in acting for the Government. United States v. Eleazer, 4 Cir., 177 F.2d 914, 918, certio-rari denied 339 U.S. 903, 70 S.Ct. 517, 94 L.Ed. 1333. “Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respondeat superior”. United States v. Campbell, 5 Cir., 172 F. 2d 500, 503, certiorari denied 337 U.S. 957, 69 S.Ct. 1532, 93 L.Ed. 1757, where the “ ‘line of duty’ ” argument is considered. The Supreme Court has stated that while on leave, a soldier “is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” United States v. Williamson, 23 Wall. 411, 415, 90 U.S. 411, 415, 23 L.Ed. 89. The “leave” is a favor extended “for his sole accommodation” to permit him to “enjoy a respite from military duty.” Cf. Foster v. United States, 43 C.C. 170, 175. And see Hunt v. United States, 38 C.C. 704, 710. When a soldier is “off duty” his conduct is “subject to the control of no one but himself.” United States v. Sharpe, 4 Cir., 189 F.2d 239, 240, 241; United States v. Eleazer, supra, 177 F.2d at page 916; and see United States v. Williamson, supra. And the application of the doctrine of respondeat superior can no more suffice to make the Government responsible for the negligence of a soldier who is absent from his post of duty on a pass than it would suffice to impose liability for the acts of a soldier while AWOL. See United States v. Sharpe, supra, 189 F.2d at page 241. When he is off duty, he is “on his own.” Rutherford v. United States, D. C., 73 F.Supp. 867, 868, 869, affirmed per curiam in 6 Cir., 168 F.2d 70. A navy petty officer was here involved. Holding was that this enlisted man was not “acting within the scope of his office or employment” unless he was “ ‘acting in line of [naval] duty’ ” at the time of the accident. The above noted cases cited by ap-pellee serve to lend emphasis to the views we have expressed. We have examined the entire record with care and being convinced that a proper result was reached by the trial court its judgment must be, and is, affirmed. CHAMBERS, Circuit Judge, concurs in the result. . Section 2338 of the Civil Code of Guam provides as follows: “2338. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his wilfull omission to fulfill the obligations of the principal.” Army Regulations 700-105 (30 June 1948) provide in pertinent part as follows: “26. Use of vehicles. — * * * “b. Motor vehicles * * * will be operated * * * only if properly dispatched on TO Form 48 (Driver’s Trip Ticket and Preventive Maintenance Service Record), issued by the dispatching motor pool or under such instructions as the appropriate commander under existing authority may direct. “c. Motor vehicles will be used only for official business, including the special uses listed in paragraph 28. * * * # * “28. Special uses. — -Motor vehicles, when available without detriment to other official business * * * may be used by special direction of the commanding officer for the following purposes: “a. Authorized athletics. “b. Transporting personnel, including entertainers and party guests and supplies and equipment in connection with authorized, organized, and supervised recreational, welfare, and morale-building activities. * * * * * “29. Motor pools. — * * * “d. Vehicles will be dispatched from pools to perform specific tasks, and will not be permanently allocated or assigned to any agency or individual, except as prescribed herein.” Section 2338 of the Guam Code follows the language of a comparable section in the California Code, thereby adopting for Guam the rule of respondeat superior in force in California. It is thus “the law of the place,” i. e., Guam. . We do not look to a dictionary definition of the word “recreation” as determinative, for the unchallenged Army Kegula-tions must govern the meaning of the term since they define “recreational activities” in which army personnel may engage.

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. John C. ROCHE et al., Appellees. No. 79-1306. United States Court of Appeals, First Circuit. Argued Nov. 6, 1979. Decided Jan. 21, 1980. Frank J. Marine, Atty., Dept. of Justice, Washington, D.C., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., Jerome M. Feit, Atty., Dept. of Justice, Washington, D.C., and Martin D. Boudreau, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief, for appellant. Judith H. Mizner, Boston, Mass., with whom Martin G. Weinberg, Willie J. Davis, Boston, Mass., Thomas C. Troy, Troy & Collings, Dorchester, Mass., Ronald Chisholm, Boston, Mass., Rosemary B. Minehan, and Michael Reilly, Dorchester, Mass., were on brief, for appellees. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. COFFIN, Chief Judge. The government here appeals pursuant to 18 U.S.C. § 3731 from the district court’s suppression of evidence. The court ruled that the warrants sanctioning thirteen searches were invalid because they did not describe the items to be seized with sufficient particularity to meet the standards of the Fourth Amendment. Because we believe that the district court’s ruling correctly applied settled law within this circuit on the degree of particularity required in warrants authorizing searches of business records, we affirm. The thirteen warrants, issued in December 1976 and January 1977, empowered federal agents to search the offices of various insurance agencies owned by appellee John Roche. The other appellees were employees of the insurance agencies. As evidenced by an agent’s affidavit submitted to the magistrate with the warrant application, the government had probable cause to believe that the Roche agencies were engaged in an extensive fraud scheme, systematically charging customers more for motor vehicle insurance than was permitted by the Commonwealth of Massachusetts. The Roche agencies also allegedly retained automobile insurance premiums owed to the carrier, Aetna Life & Casualty, and often did not issue the automobile insurance policies to customers. The affidavit also detailed the means by which these frauds were allegedly accomplished. The warrants each authorized the seizure of: “books, records, documents, consisting of but not limited to insurance applications, premium notices, claims requests for recovery, correspondence relating to applications and claims, policies, ledger sheets, invoices, account journal, and office week ending progress reports which are evidence, fruits and instrumentalities of the violation of Title 18, United States Code, Section 1341.” The district court held that this description was too broad in that it did not limit the search to documents relating to motor vehicle insurance, but authorized the seizure of a far broader class of documents pertaining to all types of insurance. This conclusion is surely correct. In In re Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir., 1979), we affirmed the suppression of the fruits of a search where the warrant authorized seizure of an equally broad class of documents, but the government had probable cause to search for evidence of fraud of only one government program. The defect in the warrant under review here and that considered in Lafayette Academy are virtually identical: “[T]he warrant purports to authorize not just a search and seizure of [Federal Insured Student Loan Program] — related records . . but a general rummaging for evidence of any type of federal conspiracy or fraud. Here, at a minimum, the precise nature of the fraud and conspiracy offenses for evidence of which the search was authorized needed to be stated in order to delimit the broad categories of documentary material and thus to meet the particularity requirement of the fourth amendment.” (Footnote omitted.) Id. at 3. Here, the government could have limited the objects of search and seizure to documents and records pertaining to automobile insurance, but declined to do so. This impermissibly broadened the scope of the search beyond the foundation of probable cause. See also Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir. 1978). The government responds by pointing to various factors that, it contends, limit the warrant’s scope or obviate the need for limitation. First, the government contends that the language of the warrant limited the search to evidence of violations of 18 U.S.C. § 1341 and that this was sufficient particularity. However, section 1341 makes illegal all frauds that utilize the mails; limitation by so broad a statute is no limitation at all. In re Application of Lafayette Academy, supra, at 3-4. The warrant thus provided only a generic description of the items to be seized. The government argues, however, that under United States v. Cortellesso, 601 F.2d 28, 31 (1st Cir. 1979), a generic description provides adequate particularity if the supporting affidavit demonstrates that there was reason to believe that a large collection of similar items was on the premises and also explains to the magistrate the method by which the agents will differentiate the proper items to be searched and seized from the innocent items present. See United States v. Klein, 565 F.2d 183, 187-88 (1st Cir. 1977). The government’s position that this search passes the Corteliesso test is unpersuasive. Corteliesso addressed the problem of drafting effective warrants when the items to be searched are so similar to unoffending or irrelevant items that “for all practical purposes the collection could not be precisely described for the purpose of limiting the scope of the seizure.” 601 F.2d at 32. Here this problem did not exist; the warrant could have been limited to documents relating to automobile insurance. It follows that the books, documents and other insurance records on the premises were not sufficiently similar to bring Corteliesso into play. The district court thought that the affidavit submitted to the magistrate with the warrant application was so detailed and complete that if it had been incorporated into the warrant and served with the warrant it would have saved the searches and seizures. However, because it was neither incorporated into nor served with the warrant, it cannot provide the needed specificity. The district court again correctly applied settled law: “An affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit.” (Emphasis in original.) United States v. Klein, supra, 565 F.2d at 186 n. 3. Here, all agree that neither requirement was met. Therefore, the presumed particularity of the affidavit cannot save the warrant. Even assuming that knowledge of the affidavit in fact circumscribed the discretion of the executing officers, this would not eliminate the concerns that underlie the requirements that the affidavit be served with and incorporated into the warrant: “[T]he requirement that the warrant itself particularly describe the material to be seized is not only to circumscribe the discretion of the executing officers but also to inform the person subject to the search and seizure what the officers are entitled to take. . . Moreover, self-restraint on the part of the instant executing officers does not erase the fact that under the broadly worded warrant appellees were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established.” In re Application of Lafayette Academy, supra, at 5. The government contends that this requirement that the affidavit be incorporated into and served with the warrant does not apply when the requirements of United States v. Cortellesso, supra, are met. However, Corteliesso addresses the question when an affidavit may indicate that a generic description of the materials to be searched is sufficient, not when an affidavit may supply needed particularity without being attached to or incorporated in the warrant. Apparent confusion over this distinction leads the government to restate in this context the same argument based on Corteliesso rejected above. The argument does not gain new luster through repetition. Affirmed. . We need not express an opinion on whether further particularization would be required beyond the limitation by reference to motor vehicle insurance. Nonetheless we note that the detailed nature of the affidavit indicates that a further breakdown of the generic descriptions into “descriptions of particularized items”, such as automobile insurance applications bearing the code letters indicating the amounts of overcharges, may have been possible and would be desirable. See In re Application of Lafayette Academy, supra, at 4 n. 4. Furthermore, we are concerned because the warrants were not limited to records generated in a stated period of time. See United States v. Abrams, 615 F.2d 541, (1st Cir. 1980). . We summarily reject the government’s argument that Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), established that a less exacting standard of particularity will be applied to the search of business records than to searches for other objects. The court did state that the complexity of a fraud scheme should not redound to a defendant’s advantage by making the drafting of a search warrant impossible. However, the Court was there addressing the petitioner’s argument that the lengthy specific list of documents to be seized constituted a “general warrant” and was not in any way suggesting that general descriptions of the items to be searched or seized, standing alone, would be sufficient. Id. at 480-81 n. 10, 96 S.Ct. 2737. See United States v. Abrams, supra. . 18 U.S.C. § 1341 provides: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

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?