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Jessie McDONALD, Plaintiff-Appellant, v. John DOE, et al., Defendants-Appellees. No. 84-3412 Summary Calendar. United States Court of Appeals, Fifth Circuit. Dec. 20, 1984. Rehearing and Rehearing En Banc Denied Jan. 24, 1985. Oestreicher, Whalen & Hackett, David Oestreicher, II, New Orleans, La., for plaintiff-appellant. Lee, Martiny, Caracci & Bono, Metairie, La., Lloyd F. Schroeder, II, New Orleans, La., for defendants-appellees. Before RUBIN, RANDALL and TATE, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, confers the right to recover attorney’s fees on a party who prevails in an action to enforce provisions of the federal civil rights laws. This statute does not, however, authorize an award of fees to a party who recovers on a pendent state claim but loses on his civil rights claim. We, therefore, affirm the judgment of the district court denying attorney’s fees to such a plaintiff. Jessie McDonald sued the Sheriff of Jefferson Parish, Louisiana, two of his deputies, and other parties, alleging that he had been falsely arrested for and charged with first degree murder, without probable cause. He alleged both violation of his federal constitutional right to due process of law, a claim under 42 U.S.C. § 1983, and negligent injury, a state law tort. After trial, the jury responded to interrogatories that the defendants had not violated McDonald’s constitutional rights, but that one defendant had been negligent in violation of state law. The jury fixed the damages due McDonald, reduced by his own contributory negligence. The court thereafter denied McDonald’s claim for attorney’s fees and entered judgment only for the amount of the jury award. The verdict is not appealed and the only issue before us is McDonald’s claim for fees. In Maher v. Gagne the Supreme Court described the circumstances in which the plaintiff may qualify for a fee award when he succeeds on a non-fee federal statutory claim joined with a fee-generating federal constitutional claim that is not decided. If both claims arise out of a “common nucleus of operative fact,” the Court noted, the plaintiff may be considered the prevailing party if the constitutional claim is sufficiently substantial to support the invocation of federal jurisdiction. This approach acknowledges the reluctance of federal courts to decide constitutional questions if a nonconstitutional claim is dispositive. “Congress’ purpose in authorizing a fee award for an unaddressed constitutional claim was to avoid penalizing a litigant for the fact that courts are properly reluctant to resolve constitutional questions if a non-constitutional claim is dispositive.” “Congress,” the Court said, “did not intend to have that authority [given the courts to award attorney’s fees] extinguished by the fact that the case was settled or resolved on a nonconstitutional ground.” Following the reasoning of Maher v. Gagne, most courts have held that § 1988 authorizes awarding fees to plaintiffs who succeed on pendent state law claims that are related to undecided but substantial constitutional claims. The Court last term, in Smith v. Robinson, considered again the standards for awarding fees to a plaintiff in whose favor the court decides a non-fee federal claim without ruling on one or more joined federal fee-type claims. While that decision is not directly applicable to the joinder of state-law with federal claims, the considérations involved are relevant. The court affirmed the principle that a prevailing party who asserts substantial but unaddressed federal claims is entitled to attorney’s fees under § 1988. However, due regard must be paid also to the relationship between the claims. The claim for which fees are awarded must be “reasonably related to the plaintiff’s ultimate success.” If so, the district court may “assume that the plaintiff has prevailed on his fee-generating claim and ... award fees appropriate to that success.” A pendent state law claim may be joined with a federal claim only if both arise from a common nucleus of operative fact. The mere fact that the district court permits joinder demonstrates a relationship between the issues. Therefore, were the fee-generating federal claim undecided, the rationale of Maher v. Gagne and Smith v. Robinson would be applicable, and fees would be due to the plaintiff as prevailing party. That reasoning does not apply when the court has no basis to assume that the plaintiff might possibly have succeeded. The Civil Rights Attorney’s Fees Awards Act of 1976 was adopted because the actions in which fees are allowed vindicate rights based on the federal constitution or federal statutes. If it is determined that no constitutional right was violated, the predicate for the award of fees vanishes. There is neither the likelihood nor even the possibility that the court simply avoided a constitutional law decision. This circuit, in Raley v. Fraser, has recently held that the plaintiff does not, therefore, prevail for fee purposes under 42 U.S.C. § 1988 when his constitutional claim is decided adversely to him even though he obtains recovery on a pendent state law claim, joining the other circuits that have considered the question and have unanimously reached the same conclusion. Consequently, we affirm the district court decision and deny McDonald’s claim for attorney’s fees under 42 U.S.C. § 1988. For these reasons the judgment is AFFIRMED. . 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986, and 2000d; 20 U.S.C. § 1681 et seq. . 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). . Id. at 133 n. 15, 100 S.Ct. at 2576 n. 15, 65 L.Ed.2d at 663 n. 15. . Smith v. Robinson, — U.S. —, —, 104 S.Ct. 3457, 3467, 82 L.Ed.2d 746, 762 (1984), (citing H.R.Rep. No. 94-1558, p. 4, n. 7). . Id. at —, 104 S.Ct. at 3466, 82 L.Ed.2d at 761. . See, e.g., State of New York v. 11 Cornwell Co., 718 F.2d 22, 25 n. 3 (2d Cir.1983) (en banc); Williams v. Thomas, 692 F.2d 1032, 1036 (5th Cir.1982), cert. denied sub nom., Dallas County, Texas v. Williams, — U.S. —, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983); Kimbrough v. Arkansas Activities Ass'n, 574 F.2d 423, 426-27 (8th Cir. 1978); Allen v. Housing Authority, 563 F.Supp. 108, 110 (E.D.Pa.1983). . — U.S. —, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). . Id. at —, 104 S.Ct. at 3467, 82 L.Ed.2d at 762. . Id. at —, 104 S.Ct. at 3467, 82 L.Ed. at 762 (footnote omitted). . United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). . See cases cited supra note 6. . 747 F.2d 287 at 290-292 (5th Cir.1984). . See Gagne v. Town of Enfield, 734 F.2d 902, 904 (2d Cir.1984); Russo v. State of New York, 672 F.2d 1014, 1022-23 (2d Cir.1982); Reel v. Arkansas Dep't of Corrections, 672 F.2d 693, 697-99 (8th Cir.1982); Luria Bros. & Co. v. Allen, 672 F.2d 347, 356-58 (3d Cir.1982); Bunting v. City of Columbia, 639 F.2d 1090, 1095 (4th Cir.1981); Haywood v. Ball, 634 F.2d 740, 743 (4th Cir.1980); Huffman v. Hart, 576 F.Supp. 1234, 1235-38 (N.D.Ga.1983); see also Redd v. Lambert, 674 F.2d 1032, 1034-37 (5th Cir.1982) (holding that § 1988 attorney’s fees should not be awarded when the Tax Injunction Act, 28 U.S.C. § 1341, bars the plaintiff from obtaining § 1983 relief).

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?

GRANT et al. v. RICHARDSON, Superintendent of State Penitentiary of South Carolina, et al. No. 4965. Circuit Court of Appeals, Fourth Circuit. June 30,1942. Harold R. Boulware, of Columbus, S. C., for appellants. Robert McC. Figg, Jr., of Charleston, S. C. (John M. Daniel, Atty. Gen. of South Carolina, on the brief), for appellees. Before PARKER, SOPER, and DOBIE, Circuit Judges. PER CURIAM. This is an appeal from an order denying a writ of habeas corpus. No certificate of probable cause as required by 28 U.S.C.A. § 466 was issued by the judge below; but the appeal was heard along with an application for such certificate addressed to the judges of this court. We are of opinion that both the appeal and the application are without merit. Appellants were convicted and sentenced to death, for the crime of assault with intent to commit rape, by the Circuit Court of Berkeley County, South Carolina. After their conviction, questions with relation to the constitution of the grand jury which found the indictment and the petit jury which found the appellants guilty of the crime charged, as well as questions relating to the opportunity given the prisoners to secure counsel and the opportunity given counsel to prepare the case for trial, were fully considered on a motion for new trial. The motion for new trial was denied; and these questions were considered by the Supreme Court of South Carolina, together with questions raised on the trial, on an appeal in which the judgment of the lower court was affirmed. State v. Grant, 199 S. C. 412, 19 S.E.2d 638. Application for certiorari was made to the Supreme Court of the United States by a petition in which these questions were presented, and the application was denied by that court. Grant et al., Petitioners, v. State of South Carolina, 62 S.Ct. 942, 86 L.Ed.-. The petition for habeas corpus attempts to raise the same questions again and thus review the decision of the state court as to questions which the Supreme Court of the United States declined to review on application for certiorari. It is well settled that the writ of habeas corpus cannot be thus used as a writ of error. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. It is alleged in the petition that there is reason to believe that appellant Grant is insane and has been in that condition for some time. No such defense was asserted upon the trial or upon the motion for new trial, and the allegation furnishes no ground for issuing the writ of habeas corpus. If he is now insane, this is a matter which should be called to the attention of the Governor of the State in an application for executive clemency or made the subject of an application to the courts of South Carolina for stay of sentence pursuant to rule 28 of the Supreme Court of that state. Certainly the State of South Carolina will not permit a death sentence to be executed upon an insane person; but this is a matter to be dealt with by the Governor or the state courts. It does not furnish ground for release by a federal court under a writ of habeas corpus. For the reasons stated, the order denying the writ of habeas corpus will be affirmed. Affirmed.

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

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

Ruth DURRETT, et al., Plaintiffs, Appellants, v. HOUSING AUTHORITY OF the CITY OF PROVIDENCE, et al., Defendants, Appellees. No. 89-1608. United States Court of Appeals, First Circuit. Heard Dec. 5, 1989. Decided Feb. 14, 1990. John W. Dineen, Providence, R.I., for appellants. Stephen J. Reid, Jr. and Blish & Cav-anagh, Providence, R.I., on brief for the Housing Authority of the City of Providence, appellee. Edward B. Foley, David W. Ogden, Jenner & Block, Washington, D.C., Barbara R. Arnwine, Paul Holtzman, Lawyers’ Committee for Civ. Rights Under Law, John A. Powell, American Civ. Liberties Union Found., Herbert H. Henderson, Huntington, W.Va., Everald Thompson, NAACP Sp. Contribution Fund on brief for Lawyers’ Committee for Civ. Rights Under Law, American Civ. Liberties Union Found., Nat. Ass’n for the Advancement of Colored People, Nat. Council of La Raza, Civ. Liberties Union of Massachusetts, and Rhode Island Civ. Liberties Union, amicus curiae. Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge. COFFIN, Senior Circuit Judge. This case began as a complex class action brought under 42 U.S.C. § 1983 and the Fair Housing Act of 1968, 42 U.S.C. § 3604(b), by tenants in two public housing projects against various municipal and national entities, seeking relief from a wide variety of allegedly substandard conditions. After much bitterness, including a lengthy rent strike, and much negotiation, the parties crafted a comprehensive settlement agreement that satisfied all concerned, specifically the plaintiff tenants and their landlord, the Providence Housing Authority. The district judge, however, refused to approve the agreement. The questions before us are whether we have appellate jurisdiction to review the denial of an order enforcing the settlement and, if so, whether the court below committed reversible error. We answer both questions in the affirmative. Background This controversy arose out of the complaints of tenants of the Hartford Park and Mantón Heights housing developments concerning substandard conditions at the two developments, which offered public housing to largely minority occupants. Perhaps prophetically, it began in frustration with complaints lodged with the Providence Human Relations Commission (Commission) against the City of Providence (City) and the Providence Housing Authority (Authority), and also with efforts to process housing code enforcement requests under the City’s administrative procedures. Neither effort resulted in any relief. In yet a third attempt, the named plaintiffs intervened in an action brought before the Housing Court Division of the state District Court by the City against the Authority, naming the United States Department of Housing and Urban Development (HUD) as a defendant. HUD removed the case to federal court, which remanded to the Housing Court. The latter court then advised plaintiffs to pursue their federal claims in federal court. The plaintiffs accordingly dismissed their claims without prejudice and commenced the instant action in July of 1986, almost two years after lodging the initial complaints. The complaint, after amendment, consisted of three counts. The first, aimed at the Commission and the City, essentially raised an equal protection claim that the discrimination complaints of plaintiffs did not receive the orderly processing given others. The second count, aimed at the City and the Authority, alleged failure to enforce housing code provisions, violating both substantive and procedural due process. It also claimed violation of the Fair Housing Act of 1968 by denying plaintiffs’ rights to decent, safe, and sanitary housing. Count III, aimed at HUD, alleged that plaintiffs had been deprived of their rights to decent, safe, and sanitary housing, free from discrimination. The relief requested included injunctions (a) requiring the City to give full code enforcement protection to a class of all tenants of the two developments, (b) requiring the Authority to live up to city and state minimum standards, and (c) requiring HUD to conform to federal minimum standards and to establish and carry out a modernization and maintenance plan. The ensuing period of almost two and one half-years was notable for a rent strike accompanied by an arrangement for receiving and holding rental payments in escrow. Considerable discovery and negotiation also took place. On November 17, 1988 a detailed Settlement Stipulation and Consent Decree agreement between plaintiffs and the Authority was presented to the court. It contained 50 numbered paragraphs in 29 pages. The scope and tenor of the agreement can be appreciated from the cat-alogue of principal subjects covered, which we record in the margin. As requested, the court deemed the proposed consent decree reasonable and called for a motion for approval and submission of a form of notice. Three months later, on March 22, 1989, the court granted its preliminary approval and ordered notice to issue. At the noticed hearing on May 23, 1989, however, the court refused its approval, which would have given the agreement the status of a judgment. It gave two reasons. The first was that “the settlement stipulation is far more comprehensive than any relief that the Plaintiffs could secure if this matter was heard on the merits.” Noting the range of matters indicated in our footnote 1, the court concluded that they were not involved in the litigation, because, in its view, this was only a § 1983 suit and “the only relief that I can see being granted ... is some sort of an order that these tenants ... be treated like any other tenants” by being allowed to pay rent into an escrow account while charges of housing violations would be heard by the Housing Court. The court’s second reason was its fear that it would become “a super-superintendent of these two housing projects,” being called upon frequently to rule on petty, non-federal matters, such as inadequately functioning toilets. The court set the matter for trial but later, on July 18, 1989, recused itself. This appeal followed. Appealability After having raised the issue of the appealability of a denial of a proposed consent decree, we are satisfied that we do have appellate jurisdiction. Although prior to 1981 there was a split of opinion among the circuits, Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), made it clear that an interlocutory order denying a motion to enter a consent decree providing injunctive relief may be appealable under 28 U.S.C. § 1292(a)(1) as an order refusing an injunction. The threshold condition is that the proposed consent decree, either in its express terms or in its practical effect, “refuses” an injunction. Id. at 83, 101 S.Ct. at 996. That condition is clearly fulfilled in this case, for “prospective relief was at the very core of the disapproved settlement.” Id. at 84, 101 S.Ct. at 996. There is, however, an additional critical precondition to interlocutory appealability: a showing of “serious, perhaps irreparable, consequence.” Id. The Court found two such consequences in Carson: the lost opportunity to settle the case on the negotiated terms and the likelihood of irreparable injury from further delay. In the present case plaintiffs, and defendants also, are obviously in danger of suffering loss of “their right to compromise their dispute on mutually agreeable terms.” Id. at 88, 101 S.Ct. at 998. Moreover, although the complaint does not in so many words allege the possibility of suffering irreparable injury from further delay, such a consequence seems implicit in the multiple allegations of substandard housing combined with the persistence of such conditions for the four-year period between the lodging of complaints with the Commission and the denial of approval of the consent decree. Discussion of the Merits We approach the merits — the question whether the district court committed reversible error in refusing to approve the proposed consent decree — with two general considerations in mind. The first is the applicable standard of review. The ordinary approach of appellate courts in reviewing the appropriateness of settlement approvals has been to refrain from intervening unless there is found to be an abuse of discretion by the trial court. State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085 (2d Cir.1971). Apparently relying solely upon Pfizer, the Seventh Circuit, in United Founders Life Ins. Co. v. Consumers Nat’l Life Ins. Co., 447 F.2d 647, 655 (7th Cir.1971), stated that the abuse of discretion standard applied “in reviewing the appropriateness of the settlement approval or disapproval.” (Emphasis supplied.) Subsequently, the Eighth Circuit, in In re International House of Pancakes Franchise Litigation, 487 F.2d 303, 304 (8th Cir.1973), relying on the above cited cases, applied the abuse of discretion standard in affirming a district court’s refusal to approve a proposed settlement. In 1980 this case was identified by the Fifth Circuit as the only one in which a court of appeals had extended the abuse of discretion standard to apply to a review of a refusal to approve a settlement. United States v. City of Alexandria, 614 F.2d 1358, 1361 (5th Cir.1980). The Alexandria court refused to follow the Eighth Circuit and opted for a de novo review of a refusal to enforce a consent decree. Id. at 1362. Although the court’s expressed concern was the possibility that district courts might otherwise have “unchallengeable unilateral power to slow [the] pace” of affirmative action in employment discrimination cases, id., its de novo standard apparently was applicable generally to reviews of refusals to enforce proposed consent decrees. Plaintiffs in the case at bar urge us to follow Alexandria. Alexandria, however, in a case which escaped plaintiffs’ notice, has subsequently been rather narrowly confined to exceptional circumstances by its own circuit. In Williams v. City of New Orleans, 729 F.2d 1554, 1558-59 (5th Cir.1984), the Fifth Circuit, en banc, in reviewing another refusal to implement a Title VII consent decree, distinguished the situation in Alexandria, where the proposed settlement had been reached early in the pretrial process and the trial court had no special knowledge of the evidence. In the situation before it in Williams, the consent decree had been arrived at only after “a thorough- airing of the facts.” Id. at 1559. The court held: “We here recognize that a district court does play a significant role in exercising discretion when it is fully cognizant of the facts and circumstances surrounding the case.” Id. Alexandria, it further held, represented “an exception to the general rule of ‘abuse of discretion’ review.” Id. at 1558. See also Donovan v. Robbins, 752 F.2d 1170, 1177 (7th Cir.1985). While a case might arise under such exceptional circumstances that we would feel compelled to conduct a de novo review of either an approval or disapproval of a proposed consent decree, this is not such a case. Almost three years elapsed between the filing of the original complaint and the court’s denial of approval. The docket entries disclose substantial and frequent court involvement in ruling on motions to dismiss, holding hearings, and considering issues connected with the rent escrow account. Moreover, the court had been aware of the provisions of the proposed settlement for some six months. We therefore review only for abuse of discretion or error of law. In so reviewing a refusal to enforce a voluntary settlement we must also recognize, as a second guideline, that the district court’s discretion is restrained by “the clear policy in favor of encouraging settlements,” especially in broad-based public housing disputes. Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir.1980). Or, as the Seventh Circuit noted more recently: The policy of encouraging settlements can easily be factored into an abuse of discretion analysis by noting that the district judge is to exercise his discretion in accordance with what Judge Friendly (and this court) has called a “principle of preference.” Donovan v. Robbins, 752 F.2d at 1177. Subject to this principle, the district court must assure itself that the parties have validly consented; that reasonable notice has been given possible objectors; that the settlement is fair, adequate, and reasonable; that the proposed decree will not violate the Constitution, a statute, or other authority; that it is consistent with the objectives of Congress; and, if third parties will be affected, that it will not be unreasonable or legally impermissible as to them. See United States v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir.1981). In this case, none of the above factors is implicated. Adequate notice was given as ordered. No protesting third parties have appeared. There is no suggestion, or basis for one, that the proposed decree would violate any law or do other than further the objectives of Congress. Nor is the fairness, adequacy, or reasonableness of the agreement challenged as it will affect the parties. The most that we distill from the second ground relied on by the district court is that implementing the agreement might impose an unfair and unreasonable burden on the court. We shall examine this ground in due course. As we have earlier noted, the district court's first basis for rejecting the settlement was that it would give plaintiffs far more comprehensive relief than they could have achieved with a victory after trial. We first observe that the court’s reading of the complaint is unwarrantedly fragmentary in visualizing the only relief that could be given as an order that plaintiffs be treated equally with other public housing tenants insofar as processing complaints and taking advantage of rent escrow accounts are concerned. We have, with this point in mind, described in some detail the range and type of injunctive relief requested under not only section 1983 but, more pertinently, the Fair Housing Act of 1968. Accordingly, given the facts that the dispute indisputably falls within the court’s subject matter jurisdiction, that the proposed decree comes within the case made by the pleadings, and that it furthers the objectives of the law on which the complaint was based, we hold, as a ruling of law, that the first ground is untenable. As the Supreme Court stated in Local Number 93, Int’l Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 526, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986): [T]o the extent that the consent decree is not otherwise shown to be unlawful, the court is not barred from entering a consent decree merely because it might lack authority under [the governing statute] to do so after a trial. The second ground relied on by the district court was its conclusion that its enforcement duties under the decree would involve it in ruling on weekly or monthly motions relating to many non-federal matters of a petty nature, such as tenant complaints about malfunctioning toilets or evictions. As for this ground, we are compelled to conclude that this is not a viable interpretation of the proposed decree. As we have attempted to demonstrate by the lengthy catalogue of relief provisions set forth in footnote 2, supra, the obligations assumed by the Authority are systemic — to upgrade, replace, or repair categories of land, buildings, fixtures, and equipment, as well as to institute studies, policies, and procedures. The only provision relating to evictions proscribes evicting any tenant for participating in the now concluded rent strike so long as the amounts owed had been deposited in the escrow account or underpayments had been made current in accordance with the provisions of the settlement. In other words, the relief provisions of the decree not only fit within “all measures necessary and appropriate to protect federal rights and implement federal policies” under the Fair Housing Act, Metropolitan Housing Dev., 616 F.2d at 1011, but are contemplated within the statutory authority to order “such affirmative action as may be appropriate.” 42 U.S.C. § 3613(c)(1). Indeed, this view of the relief sought was obviously shared by the Housing Court of Rhode Island when it advised plaintiffs to pursue their relief in federal court. We would envisage at most minimal judicial involvement in helping facilitate the resolution of this longstanding controversy, which the parties themselves have so substantially advanced. We have every confidence in the ability of the district court to winnow out any attempted proceedings that belong in state court. There being no interest served in remanding this already overprotracted proceeding, we reverse the district court’s refusal to enter the consent decree, and remand to the district court only to enter the decree and for any further proceedings which may be necessary and consistent with this opinion. Reversed and remanded. . We note that no party opposed this appeal and that no appellee’s brief was filed. We nevertheless treated the issues seriously and endeavored to be thorough in our research. We note, in addition, that we found helpful the brief submitted by Amicus. . The agreement embraced the following undertakings by the Authority: eliminating all hazardous asbestos; landscaping around buildings; repairing or replacing all exterior lighting, roofs, and windows; replacing with new fixtures or equipment all refrigerators, stoves, cabinets, counters, sinks, showers, tubs, toilet fixtures, doors, and floor tiles; and installing modernized heating systems. Other provisions dealt with policies and procedures, such as those relating to a security deposit system, auto repairs on the premises, pets, management and maintenance staff, inspections, tenant screening and evictions, service programs, and the duty to meet and confer in good faith. . Although Carson v. American Brands, 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), is a Title VII case involving employment discrimination, and the case at bar is a Title VIII case involving discrimination in public housing, the principles announced are not confined to specific statutes. In identifying the conflict in the circuits on the issue, the Court cited cases involving the Investment Company Act of 1940, Norman v. McKee, 431 F.2d 769 (9th Cir.1970); Title VII, United States v. City of Alexandria, 614 F.2d 1358 (5th Cir.1980); stockholder derivative actions, Seigal v. Merrick, 590 F.2d 35 (2d Cir.1978); and the Sherman Anti-Trust Act, In re International House of Pancakes Franchise Litigation, 487 F.2d 303 (8th Cir.1973). Moreover, the strong policy favoring the voluntary settlement of Title VII claims, emphasized by the Court in Carson, 450 U.S. at 88, n. 14, 101 S.Ct. at 998, n. 14, finds its analogue in 42 U.S.C. § 3610(a), which encourages the Secretary, on receipt of fair housing complaints meriting resolution, to resort to “informal methods of conference, conciliation, and persuasion.”

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?

MOUNT v. NORFOLK SAVINGS & LOAN CORP. No. 6264. United States Court of Appeals Fourth Circuit. Argued Oct. 2, 1951. Decided Nov. 5, 1951. Israel Steingold, Richmond, Va. (Samuel A. Steingold and Steingold & Steingold, all of Norfolk, Va., on the brief), for appellant. Henry J. Lankford, Norfolk, Va., for ap-pellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. The trustee in bankruptcy of Legum Furniture Corporation brought this suit against Norfolk Savings and Loan Corporation, hereinafter called the bank, to set aside and avoid the assignment of certain conditional sales contracts pledged by Legum with the bank as collateral security for loans, and to recover, as voidable preferences under Section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96, certain moneys collected by the bank on assigned contracts. The District Judge gave judgment for the bank and dismissed both claims of the trustee. Legum was engaged in the retail sale of furniture in Norfolk, Virginia, under conditional sales contracts whereby the purchaser, having made an initial payment, was given possession of the goods, and agreed to pay the balance of the purchase price in monthly installments, and the seller retained title to the goods pending full payment with the right in case of default to repossess them. The contracts were valid and were duly docketed under the Virginia statutes. See Section 55-88 of the Virginia Code of 1950. A petition in involuntary bankruptcy was filed in the District Court against Legum on May 3, 1950 and was followed by an adjudication on May 16, 1950. The bankruptcy schedule showed assets of $42,638.02 and liabilities of $125,115.63. The trustee collected accounts receivable in the amount of $1600.95 and sold the remaining assets for $11,300. At the time of bankruptcy the bank held assigned accounts in the sum of $17,992.06. At the time of the hearing in the District Court it had collected $6206.95 on the accounts assigned to it and held assigned accounts of the face value of $11,785.11. Its claim at the time of bankruptcy amounted to $15,416. For six or seven years prior to bankruptcy Legum had been borrowing money from the bank on promissory notes payable in monthly or weekly installments, and had assigned, as collateral security, conditional sales contracts of its customers. The con» tracts were docketed as required by the state statute, and were then assigned by endorsement and delivered to the bank. Assignments were also stamped on the customers’ accounts on the Legum ledger. There was no other written agreement between the parties defining the procedure for the collection, control and distribution of the proceeds of the accounts; and the agreement in these respects can be ascertained only from the oral testimony of the officers of the participating corporations as to their understanding, and particularly from what was actually done in carrying on the business. The procedure may be described as follows : When Legum borrowed money from the bank it gave a promissory note for the amount of the loan payable in installments and assigned and delivered sales contracts to the bank in such an amount that the average weekly payments due on the contracts approximated the amount of the installment payments due on the note. The purchasers were not notified of the assignment of the accounts but the understanding was that Legum was to make the collections and to remit to the bank the amount of the installments due on its promissory note. If the amount collected was more than the installments due on the note Le-gum kept the balance and used it in its business; and if the amount was less Le-gum was expected to make up the deficiency. There was no specific agreement that Legum should make the collections and remit the proceeds to the bank; and in fact the moneys collected were not remitted to the bank; but the executive officers of both lender and borrower in charge of the transactions testified that Legum' collected the accounts as agent of the bank. There was no attempt by Legum to segregate its collections on the assigned accounts, which constituted about 25 per cent of all of its accounts, from its collections on other accounts. All collections were deposited by Legum in a national bank of deposit and used in Legum’s business. The bank exercised no control over the collections and required no accounting thereof. The judge found that it “was interested in these collections, and showed interest in the collections, only so far as it was necessary to obtain from the bankrupt the money sufficient to meet its obligations at the bank.” Legum did not report to the bank the collections on assigned accounts as they were made, or assign new accounts to the bank to take the place of those which were paid at the' time that they were closed out. Usually Legum’s representative brought new accounts to the bank, especially when Legum desired to renew a note, and on these occasions the bank’s agent would go to Legum and check the accounts on the ledger to ascertain whether the open accounts were sufficient in amount to secure the loans. There was no regularity about the procedure and no attempt on Le-gum’s part to segregate or hold the collections for the bank until such time as new accounts of equal amount were assigned. Legum repossessed purchased goods from delinquent customers and resold the goods whenever it saw fit to do so without notice to the bank. There is no evidence that it ever became necessary to bring suit against a defaulting customer on an assigned contract in the hands of the bank or to make use of the document to repossess the goods which it covered. Legum was supposed to substitute a new contract for repossessed goods but the substitutions for such accounts were made at irregular intervals in the same manner as substitutions for accounts closed by payment. The course of events during the year preceding bankruptcy gives evidence of the control and use of the moneys collected on the assigned accounts which Legum exercised with the bank’s consent. During this period Legum was continuously in default in its payments to the 'bank and continuously used the proceeds of the accounts in its business. For example, on September 16, 1948 Legum gave its collateral note to the bank for $3000 payable in installments of $300 per month; but the payments were not made as agreed, and on January 6, 1950 the note was renewed for $1050. On January 8, 1949 Legum gave its collateral note for $2500 payable in monthly installments of $500; but the only payment was $1000 on April 20, 1949 and thereafter nothing was paid but interest in the sum of $100 on September 15, 1949 and $31.75 on January 21, 1950. On April 8, 1949 Legum gave a collateral renewal note for $11,263 payable in weekly installments of $225, but paid thereon only $450 on June 29, 1949 and $216 as interest on September 3, 1949. On December 12, 1949 the last mentioned note wa» renewed for $11,663, payable in like manner, but only $450 was paid thereon on February 10, 1950 with interest in the sum of $83 on March 6, 1950. When this note was given Legum owed the bank $16,123, which was secured by assigned accounts in the sum of $13,679.26. A condition of the renewal was the promise of Legum to assign additional accounts as collateral, and accordingly accounts in the sum of $4312.50 for goods sold in January, 1950 were assigned to the bank in February, 1950. The District Judge found that there was no evidence to show that in February, 1950, within four months of bankruptcy, the bank had reasonable cause to believe that Legum was insolvent. It is, however, established by the evidence that in the latter part of March or the early part of April, 1950 Legum was called to account by the bank for his delinquencies on the notes, and informed the bank that it was unable to meet its obligations, and agreed with the bank that it should notify the purchasers to make their payments direct to it. The notice was given on April 10, 1950 and' thereby the bank for the first time assumed control of the collection and disposition of the proceeds of the accounts. Whatever may have been the knowledge of the bank in February, 1950, there is no doubt that it had positive knowledge of Legum’s insolvency before it received any part of the collections which it subsequently. made. From this recital it is obvious that the transactions between the parties may be summed up in the statement that the bank obtained and held in its possession assignments of contracts in an amount usually but not always sufficient to cover Legum’s indebtedness, and in form adequate to convey legal title to the accounts; that Le-gum collected and retained the proceeds of the accounts and used them at will in the course of its business with the knowledge of the bank; but that new accounts were not substituted for old when the latter were closed by payment or repossession, but from time to time the bank inspected the assigned accounts and obtained new accounts in place of those which were in default or had been paid off. The question for decision is whether the bank acquired good title to the assigned accounts in these circumstances under the law of Virginia because the rights of the parties depend primarily upon the law of that state. It is a principle of law in effect in Virginia and in certain other jurisdictions that a transfer of property as security which reserves to the transferor the right to dispose of the same or to apply the proceeds thereof for his own uses is fraudulent in law and void 'as to creditors. The rule “rests not upon seeming ownership because of possession retained, but upon a lack of ownership because of dominion reserved. It does not raise a presumption of fraud. It imputes fraud conclusively because of the reservation of dominion inconsistent with the effective disposition of title 'and creation‘of a lien.” Benedict v. Ratner, 268 U.S. 353, 363, 45 S.Ct. 566, 569, 69 L. Ed. 991. See also Mathews v. Bond, 146 Va. 158, 135 S.E. 689; Didier v. Patterson, 93 Va. 534, 25 S.E. 661; In re Spanish-American Cork Products Co., 4 Cir., 2 F.2d 203. In Mathews v. Bond, 146 Va. 158, 163-164, 135 S.E. 689, 691, the court said: “This court, in a long line of cases, has consistently held that a deed of trust executed by a debt or for the purpose of indemnifying certain named creditors, which reserves to the grantor a power of control and disposition inconsistent with the avowed purposes of the trust and adequate to defeat such purposes, is, by reason of such reservation, per se fraudulent and void as to creditors thereby postponed.” Valid transfers of open accounts as collateral security may nevertheless be made even in the 'absence of statute. In Virginia they are expressly authorized by Section 11-5 of the Virginia Code of 1950 which provides: “Assignment of <accounts receivable, etc., without notice to debtor.— All written assignments made in good faith, whether in the nature of a sale, pledge or otherwise, of 'accounts receivable and amounts due or to become due on open accounts or contracts shall be valid, legal and complete, and shall be deemed to have been fully perfected, without notice to the debtor of such assignment. Such assignments shall take effect according to their terms and be valid and enforceable, as of the respective dates thereof, against all persons whomsoever and in any event.” It does not follow, however, that an assignment of accounts is good and enforceable in the hands of the assignee because it is cast in a form recognized as sufficient to convey title by statute or by the decisions of the courts; for the rights of the parties are to be determined by what they actually do rather than by the provisions of a contract which they disregard in giving effect to the transaction. See Grimes v. Clark, 4 Cir., 234 F. 604, 607; In re Almond-Jones Co., D.C.Md., 13 F.2d 152, affirmed Union Trust Co. v. Peck, 4 Cir., 16 F.2d 986. Thus in the first case a provision in a chattel mortgage that the assignor might sell the mortgaged property as agent of the assignee and account to the assignee for the money received was held insufficient to save the assignment, because the obligation to account was disregarded with the consent of the assignee; and in the second case an assignment of open accounts was declared invalid as against the trustee in bankruptcy, although under the agreement the customers’ checks were deposited in the lending bank with the right on its part to apply the proceeds in reduction of the loan because the bank never exercised the right but permitted the assignee to use the money in its business. The opposite conclusion was reached in Chapman v. Emerson, 4 Cir., 8 F.2d 353, described by the court as a Aose case, where the proceeds of the accounts were under the control of an individual who was •an executive officer of both the lenders and the bankrupt corporation. It is, however, urged that the decisions show that assignments of open accounts are deemed valid even though the assignor collects the money and repossesses goods from defaulting customers, if the parties agree that new accounts shall be substituted for those that are closed, and this agreement is carried into effect. It will be found, however, that the determination as to whether a case falls on one or the other side of the line depends upon the extent to which the parties intended that the borrower should keep or relinquish control of the proceeds of the accounts and the extent to which the right of the assignee to control the collateral has been enforced or abandoned. See Lindsay v. Rickenbacker, 5 Cir., 116 F.2d 29; In re Pusey, Maynes, Breish Co., 3 Cir., 122 F.2d 606; In re Bernard & Katz, 2 Cir., 38 F.2d 40; Lee v. State Bank & Trust Co., 2 Cir., 38 F.2d 45; Parker v. Meyer, 4 Cir., 37 F.2d.556, 557. In the pending case it is clear that Legum’s control of the accounts assigned as collateral was substantially unrestricted and free. The occasional inspection of its ledgers and the occasional substitution of new accounts for old ones did not materially affect the situation, since each substitution merely replaced one invalid assignment by another equally defective without interfering with the free use by Legum of the moneys collected and the goods returned. Nor was the situation altered by the physical retention 'by the bank of the assigned contracts, for that circumstance could not interfere with Legum’s control over collections or repossession except in case of suit, and actually did not interfere at all with Legum’s operations. The judgment of the District Court is •reversed with directions to enter judgment setting aside the assignments of the uncollected accounts to the bank in favor of the trustee in bankruptcy and directing the bank to pay to the trustee the moneys collected on the assigned accounts since April 10, 19S0. Reversed and remanded. . The deed of trust or mortgage is void whether reservation of control in the grantor is contained on the face of the instrument, Gray v. Atlantic Trust & Deposit Co., 113 Va. 580, 75 S.E. 226; or is subsequently acquiesced or consented to in the actual performance of the arrangement, Boice v. Finance & Guaranty Corp., 127 Ya. 563, 102 S.E. 591, 10 A.L.R. 654; accord, United States v. Lankford, D.C.E.D.Va., 3 F.2d 52. “A conveyance under which any pecuniary benefit is reserved by the debtor” is fraudulent and void. Didier v. Patterson, 93 Va. 534, 538, 25 S.E. 661, 662. . Thus In re Bernard & Katz, 2 Cir., 38 F.2d 40, 44, it was held that a lender to whom accounts had been assigned as collateral was entitled to assert his lien against repossessed goods in the hands of the borrower because the evidence showed that the borrower was permitted to use the returned goods upon the condition, which was performed, that he substitute new accounts therefor, and hold the returned merchandise in trust until the substitution was made; but in Lee v. State Bank & Trust Co., 2 Cir., 38 F.2d 45, where the collateral agreement also provided that in the event of the return of merchandise it should be held by the borrower in trust for the lender, the lien was lost because in practice the returned goods were taken back without consultation with the lender and freely sold as the property of the borrower without the substitution of new accounts therefor. Similarly, assignments of accounts, where substitutions were allowed, were held valid in Lindsay v. Rickenbacker, 5 Cir., 116 F.2d 29, and In re Pusey, Maynes, Breish Co., 3 Cir., 122 F.2d 606, because the collections were held until the substitutions were made; but in Re Almond-Jones Co., D.C.Md., 13 F.2d 152, the assignments were held invalid because the assignee allowed the assignor to use the collections at will. In Mathews v. Bond, 146 Va. 158, 135 S.B. 689, upon which the bank in the instant case relies, the validity of a mortgage on personal property was upheld by sustaining a demurrer to a complaint which showed that the borrower was permitted to sell the goods pledged as security but was obliged to account each month for the proceeds of the sale and the proceeds were carefully guarded by a provision that a specific portion of the proceeds was to be paid monthly to the lender and applied to the liquidation of the debt. There was nothing to show breach of this provision.

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

COMPAGNIE DES BAUXITES DE GUINEE, a corporation, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, the Insurance Corporation of Ireland, Ltd., Mercantile & General Reinsurance Co., Ltd., Eagle Star Insurance Co., Ltd., Hanover Insurance Company, Continental Assurance Company of London, Ltd., the Century Insurance Co., Ltd., Yuval, the Insurance Company of Israel, Ltd., Home Insurance Co., Ltd., Slater, Walker Insurance Co., Ltd., Yasuda Fire & Marine Insurance Company (UK) Ltd., Nichido Fire & Marine Insurance Co., Ltd., Turegum Insurance Company, Sahar Insurance Co., Ltd., Excess Insurance Co., Ltd., Trident Insurance Co., Ltd., Vesta (UK) Ltd.,* Chiyoda Fire & Marine Insurance, Ltd., Tokyo,* Stronghold Insurance Co., Ltd., British Reserve Insurance Co., English & American Insurance Co., Ltd., Consolidated European Reinsurance Co., Ltd., and L’Union Atlantique S.A. D’Assurances, Brussels,* all being corporations. No. 83-5060. United States Court of Appeals, Third Circuit. Argued Sept. 12, 1983. Decided Dec. 22, 1983. Cloyd R. Mellott (argued), Dale Hershey, Robert W. Doty, Andrew M. Roman, Louis J. Moraytis, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant. Randall J. McConnell, Jr. (argued), Stephen R. Mlinac, Dickie, McCamey & Chil-cote, P.C., Pittsburgh, Pa., for appellee, Ins. Co. of North America. Thomas F. Weis (argued), David L. Beck, Weis & Weis, Pittsburgh, Pa., for appellees, excess insurers. Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges. The appellees marked with an asterisk (*) have been dismissed from this case by orders entered by the District Court on October 26, 1976 and August 19, 1982. OPINION OF THE COURT SEITZ, Chief Judge. Compagnie des Bauxites de Guiñee (CBG) is appealing an order of the district court granting summary judgment to the Insurance Company of North America (INA) and a number of foreign excess insurers (the excess insurers), in CBG’s action to recover on its business interruption insurance policies. This is a diversity action in which the district court, following a hearing, determined that Pennsylvania law was controlling, a ruling not challenged on appeal. The Court of Appeals has jurisdiction under 28 U.S.C. § 1291. I This appeal involves one of several suits filed by CBG against its insurers to recover for business interruption losses arising from various casualties at its bauxite mining and processing facility in the Republic of Guinea. A more complete statement of the facts as well as some of the history of this case can be found in our opinion in Compagnie des Bauxites de Guinee v. Insurance Company of North America, 651 F.2d 877 (3d Cir.1981), aff’d sub nom. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). CBG holds all-risk business interruption insurance policies, with a $10 million primary layer carried by INA and a $10 million excess layer carried, in varying percentages, by the excess insurers. At issue is whether CBG may recover from its insurers for the business interruption caused by the structural failure of its tippler building and crusherhouse. This facility raises freight cars loaded with bauxite ore and empties their contents into a feed hopper. Machinery within the structure separates chunks of ore too large to ship and transports them to hammermills where they are crushed to a consistency suitable for shipment. At some time in 1974, not long after the plant became operational, CBG became aware of serious damage to the concrete structural members of the tippler/crusher-house, as well as to the feeders onto which the ore cars are emptied. CBG alleges that it suffered a protracted and costly business interruption during the time needed to rebuild and reinforce the structure and machinery. The cause of the damage was the subject of much investigation and discovery. An early report by an adjuster for the insurer of the structure itself concluded that the damage was caused by blocks of bauxite much larger than anticipated being fed into the machinery. CBG claims that only after the damage occurred did it learn that the engineers for the conveyor system had not followed CBG’s specifications. The machinery had been designed to accommodate the weight of crushed bauxite, 84 lbs/cubic foot, rather than the weight of bauxite blocks, 159 lbs/cubic foot. It was also discovered that the structural engineers for the building and supports used an incorrect equation to compute the severe stresses to which the structure would be subjected. IN A and the excess insurers separately filed motions for summary judgment based on several grounds. First, they argued that the design defects in the equipment and structure meant that the structural failure and ensuing business interruption was inevitable rather than fortuitous, and that as a matter of law CBG could not recover for losses not caused by a fortuitous event. Second, they alleged that CBG did not file timely notice of loss as required by the terms of the insurance policy, and that they suffered prejudice from this delay. Third, they alleged that CBG did not file suit within 12 months of the date of the loss, also as required by the policy. The district judge ruled that factual disputes precluded entry of summary judgment based on the latter two grounds, but he granted summary judgment based on the first ground. He held that insurance covers only risks, not certainties, so that a loss must be caused by a fortuitous event in order to be covered. He then held that the design defects made the failure of the tippler/ crusherhouse inevitable, and thus that no fortuitous loss had occurred. He further held that regardless of the terms of the insurance contract or the knowledge of the parties at the time it is made, it would be contrary to public policy to cover losses not caused by a fortuitous event. Compagnie des Bauxites de Guinee v. Insurance Company of North America, 554 F.Supp. 1080 (W.D.Pa.1988). II We need not address the public policy rationale if we determine that CBG’s loss was fortuitous, and so we proceed directly to that issue. There appears to be no decision by any Pennsylvania court defining a fortuitous event. Thus, the duty of the district judge under the Erie doctrine was to predict what definition of a fortuitous event the Pennsylvania Supreme Court would apply if this case were before it. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981). The district judge made his prediction of Pennsylvania law based on cases from other jurisdictions and treatises on insurance law, although he characterized his holding as one of general insurance law rather than a prediction of Pennsylvania law. We must first determine what standard of review we should apply to the district court’s holding. We believe that we should review the district judge’s prediction as a determination of law, as to which our review is plenary, rather than as a finding of fact reviewed by the clearly erroneous standard of Fed.R.Civ.P. 52. Another panel of this court recently used this standard to review a district judge’s construction of a state statute not yet construed by the Pennsylvania Supreme Court. Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63, 65 (3d Cir.1983). Although our review is plenary, this does not mean that in discharging our function we will not take into consideration the district judge’s prediction of the law of the state in which he sits. Using a plenary standard of review is appropriate because the district judge in a diversity case is determining the law of the forum. The district judge’s holding is only a prediction of what law the state’s highest court would adopt, rather than an actual holding of state law that a state judge could give. There is nothing in this difference, however, that affects our standard of review. By predicting what law the state would adopt, the district judge announces the law which controls the case before him. We believe that this determination of law, like any other determination of law binding the parties to the case, should be reviewed by a plenary standard. Cf. Bernhardt v. Polygraphic Co., 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1955) (Frankfurter, J., concurring). Having determined the appropriate standard of review, it remains to decide whether the district court erred as a matter of law in holding that a loss arising from an unknown design defect is not caused by a fortuitous event. We hold that the district court did err, because we believe that the definition of a fortuitous event that Pennsylvania would adopt is that found in the Restatement of Contracts: A fortuitous event ... is an event which so far as the parties to the contract are aware, is dependent on chance. It may be beyond the power of. any human being to bring the event to pass; it may be within the control of third persons; it may even be a past event, such as the loss of a vessel, provided that the fact is unknown to the parties. Restatement of Contracts § 291 comment a (1932) (emphasis added). We believe for several reasons that Pennsylvania would adopt this definition of a fortuitous event. The illustrations accompanying this definition make it clear that it applies to insurance policies, and a number of courts have so applied it. See, e.g., Morrison Grain Co., Inc. v. Utica Mutual Insurance Co., 632 F.2d 424, 430 (5th Cir.1980); Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 564 (10th Cir.1978); Essex House v. St. Paul Fire & Marine Insurance Co., 404 F.Supp. 978, 989 (S.D.Ohio 1975); Mattis v. State Farm Fire & Casualty Co., 118 Ill.App.3d 612 at 622, 73 Ill.Dec. 907 at 914, 454 N.E.2d 1156 at 1163 (1983); Employers Casualty Co. v. Holm, 393 S.W.2d 363, 368 (Tex.Civ.App.1965). While we know of no Pennsylvania case which has considered the Restatement definition, we have already applied it to an insurance policy in a case controlled by Pennsylvania law. Panizzi v. State Farm Mutual Auto Insurance Co., 386 F.2d 600 (3d Cir.1967). Furthermore, the parties as well as the district court agree that “accident” is a synonym for “fortuitous event,” and the Restatement definition of a fortuitous event is consistent with Pennsylvania’s definition of an accident, which emphasizes its unplanned and unintentional nature. See Kraftsow v. Brown, 172 Pa.Super. 581, 94 A.2d 183, 185 (1953). Damage resulting from an unknown design defect is obviously unplanned and unintentional. We also disagree with the district court’s definition of fortuitousness because the court determined what was “certain” based on knowledge gained through hindsight. Since we are reviewing a summary judgment for the insurers, we must credit CBG’s statements that it had no knowledge of the design defects. We think it inappropriate to cause the insured to suffer a forfeiture by concluding, with the aid of hindsight, that no fortuitous loss occurred, when at the time the insurance took effect only a risk was involved as far as the parties were aware. See Millers Mutual Fire Insurance Co. v. Murrell, 362 S.W.2d 868, 870 (Tex.Civ.App.1962), writ ref. n.r.e.: It is true that all the expert witnesses, who, after the damage, examined the underlying structures of the earth, noted the capacity of the soil to absorb water and saw evidences of earth movement, said that damage similar to that which occurred was inevitable. We are not told "who, at the time the insurance contract was executed, had certain knowledge that this damage was inevitable. We perceive no error in the court’s refusal to hold ... that the peril was not a risk but a certainty that could not be insured against. See also Essex House, 404 F.Supp. at 990; Holm, 393 S.W.2d at 367. INA and the excess insurers cite numerous cases for the proposition that a loss caused by a design defect is an uninsurable certainty. None of these cases they cite address the Restatement definition of a fortuitous event, much less consider and reject it. Many of the cases cited by insurers’ counsel merely mention fortuitousness without any helpful analysis of the meaning of the requirement. See, e.g., C.H. Leavell & Co. v. Fireman’s Fund Insurance Co., 372 F.2d 784 (9th Cir.1967); J. Ray McDermott & Co., Inc. v. Fidelity & Casualty Co., 466 F.Supp. 353 (E.D.La.1979). In others the finding of non-fortuitousness was based on the insured’s own gross negligence or deliberate risk-taking. Aetna Insurance Co. v. Sachs, 186 F.Supp. 105 (E.D.Mo.1960); Newtown Creek Towing Co. v. Aetna Insurance Co., 163 N.Y. 114, 57 N.E. 302 (1900). The insurers rely heavily on Greene v. Cheetham, 293 F.2d 933 (2d Cir.1961), which involved an insured’s attempt to recover for a shipment of frozen catfish which was condemned as unfit for human consumption. The court stated that contaminated fish would inevitably be condemned, so that the insurance policy had to be construed to exclude coverage if contaminated fish were shipped. Id. at 937. The court, however, was not stating as a legal principle that coverage could not attach. Instead, the court was construing the policy’s “inherent vice” exclusion in order to harmonize it, according to the probable intent of the parties, with the policy’s coverage of “any and all risks.” The insurers also rely on language in two pre-Restatement cases. A passage in Gulf Transportation Co. v. Fireman’s Fund Insurance Co., 121 Miss. 655, 83 So. 730 (1920), states in dictum that coverage does not apply to a loss caused by a design defect even if it is unknown to the parties at the time of contracting. That case expressly does not decide the issue, however, holding instead that the loss was not caused by a covered “peril of the sea.” Id. 83 So. at 733. We have also determined that the Pennsylvania courts would not follow Mellon v. Federal Insurance Co., 14 F.2d 997 (S.D.N.Y.1926). In that case Judge Augustus Hand stated that insurance could only apply to a risk, not a certainty, and held that coverage would not extend to a ship’s boiler that cracked from unknown causes. Judge Hand did not consider the issue of fortuitousness in terms of the knowledge of the parties. He also interpreted the coverage of the policy narrowly rather than broadly, and based his holding on this narrow construction of the policy. In contrast, a Pennsylvania court today would interpret the coverage of an all-risks policy broadly. Miller v. Boston Insurance Co., 420 Pa. 566, 218 A.2d 275 (1966). Because we believe that the Supreme Court of Pennsylvania would hold that a loss arising from an unknown design defect is one caused by a fortuitous event, we will reverse the district court’s contrary conclusion. In view of this holding we need not address the district court’s ruling that public policy requires that a fortuitous event must occur. We note that our holding does not mean that the event causing CBG’s loss is within the coverage of the policy, since a loss can be caused by a fortuitous event and still fall within a contractual exclusion from coverage. See Goodman v. Fireman’s Fund Insurance Co., 600 F.2d 1040 (4th Cir.1979). In their answer to CBG’s complaint the insurers stated defenses based on the policy exclusions for inherent vice, latent defect, wear and tear and gradual degradation. Nothing in the rule of fortuitousness which we adopt today bars the district court from addressing the possible applicability of such exclusions during the proceedings on remand. Ill The insurers also claim that the district court’s grant of summary judgment can be sustained on appeal on two alternative grounds: first, that CBG failed to provide notice of its loss as required by the policy; and second, that CBG failed to file suit within the time required by the policy, even though the district court declined to grant summary judgment on either ground, holding that both involved material facts in dispute. We believe that the district court ruled correctly. We also believe that these alternative grounds involve questions of Pennsylvania law which we would be reluctant to decide in the first instance on appeal, preferring instead to have the benefit of the district judge’s rulings on these matters. We turn first to the notice of loss issue. Paragraph 12 of the INA policy requires that CBG give “immediate written notice” of any business interruption, and file within 60 days a written proof of loss. Under Pennsylvania law, the insurer must be given notice within a reasonable time under the circumstances, regardless of the word “immediate” or similar language in the policy. Windsor Manufacturing Co. v. Globe & Rutgers Fire Insurance Co., 277 Pa. 374, 121 A. 328 (Pa.1923). The insurers dispute the reasonableness of CBG’s notice. The reasonableness of the notice given cannot be determined until it is known when CBG’s duty to give notice arose. This involves disputed issues of law. First, the district court must determine whether “loss” refers to the inception of the business interruption or to the casualty from which it ensued. As to the excess insurers, who are liable for business interruption loss in excess of $10 million, the district court will have to determine whether the duty to notify arose immediately, or only when the loss became great enough to involve the excess insurers. Compare Gerrard Realty Corp. v. American States Insurance Co., 89 Wis.2d 130, 277 N.W.2d 863 (1979) with Greyhound Corp. v. Excess Insurance Co. of America, 233 F.2d 630 (5th Cir.1956). Probably the most important question not resolved is whether the insurers need to show that they were prejudiced by any late notice from CBG. In Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (Pa.1977), the Pennsylvania Supreme Court held that a showing of prejudice would be required before failure to comply with a notice provision would absolve an insurer of liability. The court so held because such provisions are usually dictated by the insurer and because absent actual prejudice, the insurer should not be permitted to rely on the clause to work a forfeiture against the insured. It must be determined whether the Brakeman rule applies to the INA and the excess insurance policies. If so, it must be determined that the insurers have met their burden of showing prejudice before they can avoid liability to CBG on the ground of late notice. We also agree with the district court that disputed issues of material fact prevent entry of summary judgment on the ground that CBG failed to file this action within the time stated in the policy. These same disputed issues of fact, as well as unanswered questions of law, prevent us from upholding summary judgment for the insurers on this ground. We have discussed at some length the factual and legal questions which prevent entry of summary judgment on the ground of late filing in our opinion in Compagnie des Bauxites de Guinee v. L’Union Atlantique S.A. D’Assurances, 723 F.2d 357, also filed today. Rather than repeat that discussion, we incorporate it by reference here. IV Because we have determined that the district court erred when it granted summary judgment to the insurers on the ground that a fortuitous event had not occurred, and that no alternative ground exists for sustaining summary judgment, at least at this stage, we will reverse the judgment of the district court and remand this case for further proceedings consistent with this opinion. . Three other excess insurers were dismissed from this case in a prior appeal because CBG had not demonstrated that they were amenable to suit in Pennsylvania. Compagnie des Bauxites de Guinee v. Insurance Company of North America, 651 F.2d 877 (3d Cir.1981), cert. denied sub nom. Compagnie des Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd., 457 U.S. 1105, 102 S.Ct. 2902, 73 L.Ed.2d 1312 (1982). CBG filed a new action against these three insurers, alleging the same cause of action and claiming that new contacts with Pennsylvania gave the district court in personam jurisdiction. The district court dismissed, holding that our prior decision was res judicata as to jurisdiction. Compagnie des Bauxites de Guinee v. L'Union Atlantique S.A. D’Assurances, 555 F.Supp. 1027 (W.D.Pa.1983). In our opinion in CBG’s appeal from that decision, also filed today, we have held that the prior appeal was not res judicata and have remanded to enable CBG to take discovery on the three excess insurers’ contacts with Pennsylvania. . Section 291 of the first Restatement notes that an aleatory promise is one based on a fortuitous event, and defines an aleatory promise indirectly by defining a fortuitous event. This provision was substantially carried over into the second Restatement. Like the first, the second Restatement provides that an aleatory promise is one based on a fortuitous event. Restatement of Contracts, Second, § 76 comment c. Language almost identical to the passage quoted in the text is used as the definition of an aleatory promise. Id. § 379 comment c. Thus the difference between the first and second Restatements is that the latter defines an aleatory promise directly, rather than indirectly by defining a fortuitous event. The second Restatement also notes that an insurance policy is a typical aleatory promise. Id. . CBG requests that, should we return this case to the district court for further proceedings, in the exercise of our supervisory power we direct that those proceedings be before a different judge because it alleges that the district judge demonstrated a lack of impartiality. We are not satisfied that the requested exercise of our supervisory authority is required to ensure impartiality in the proceedings on remand.

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?

SCHWERIN v. COMMISSIONER OF INTERNAL REVENUE. No. 8572. United States Court of Appeals. District of Columbia. Argued Dec. 6, 1943. Decided Jan. 10, 1944. Mr. Plenry G. Burke, of Baltimore, Md., for petitioner. Mr. John F. Costelloe, of Washington, D. C., pro hac vice, by special leave of Court, with whom Messrs. Samuel O. Clark, Jr., Assistant Attorney General, Sewall Key, and Miss Helen R. Carloss, Special Assistants to the Attorney General, were on the brief, for respondent. Messrs. J. P. Wenchel, Chief Counsel, and C. A. Ray, Special Attorney, Bureau of Internal Revenue, both of Washington, D. C., also entered appearances for respondent. Before MILLER, EDGERTON, and DOBIE, Associate Justices. Sitting by assignment of the Chief Justice of the United States, pursuant to the provisions of the Act of December 29, 1942, 56 Stat. 1094, 28 U.S.C.A. § 17(b), entitled “An Act to amend the Judicial Code to authorize the Chief Justice of the United States to assign circuit judges to temporary duty in circuits other than their own.” DOBIE, Circuit Judge. The Tax Court of the United States determined a deficiency in the income tax of Martin Schwerin (hereinafter called the taxpayer) for the years 1936 and 1937 in the respective amounts of $6,166.25 and $6,250.46. The taxpayer has duly appealed to this court. The only question presented for. our consideration is whether the taxpayer’s distributive share of the net income for the partnership firm of Outwater, Schwerin and Barnett, for the taxable years 1936 and 1937 was 50%, as is contended by the taxpayer, or 75%, as found by the Tax Court. The following findings' of fact were made by the court below: “The taxpayer is an individual residing in Tucson, Arizona, and is engaged in fluorspar mining near Elizabethtown, Illinois, which mining business is conducted as a partnership under the name of Outwater, Schwerin and Barnett. His income tax returns for the years 1936 and 1937 were filed with the Collector of Internal Revenue for the Eighth District of Illinois. “In 1920 the taxpayer acquired approximately 268-3/4 acres of land near Elizabethtown, Illinois, at $50 an acre. In addition he expended other sums to establish his title, thereby bringing the total cost of the land to about $23,000. He believed that a fluorspar mine could be operated on the land, and in 1923 began negotiations with Addison Outwater, of New York City, for financing the development of the property. These negotiations culminated in an agreement dated May 2, 1927, whereby Outwater was to supply $30,000 in cash for the purpose mentioned. Of this amount $5,000 was to be paid presently and the balance at the rate of $1,200 per month, with the provision that .the installments might be increased if the reasonable needs of development of the property should require it. .The agreement provided that when the entire $30,000 had been advanced by Out-water, or sooner if the parties agreed, the taxpayer should cause a corporation to be organized under the laws of the state of Illinois, to which the property should be conveyed, the mining operations thereafter to be carried on by the corporation. The authorized capital stock of the corporation was to consist of three classes: $50,000 par value of Seven Percent Cumulative First Preferred Stock, $330,000 par value of Second Preferred Stock, entitled to no dividends, and 1,000 shares of no par value common stock. The First Preferred Stock was to be issued only for additional capital. Of the $330,000 par value of Second Preferred Stock, $50,000 was to be held in the treasury, and of the remaining $280,000 par value of such stock the taxpayer was to receive $250,000 and Outwater $30,000. The 1,000 shares of no par value common' stock were to be divided equally between them. It was contemplated that out of the first proceeds from the operation of the property the $30,000 par value of Second Preferred Stock issued to Outwater and the $10,000 par value of such stock issued to the taxpayer should be redeemed contemporaneously. After the redemption of that stock, the proceeds from operations were to be allocated 50 percent to the redemption of the remaining $240,000 par value of Second Preferred Stock held by the taxpayer and 50 percent as dividends upon the common stock held equally by the taxpayer and Outwater. “The moneys to be advanced by Out-water were to be handled through Central Union Trust Company of New York, which later became’ Central Hanover Bank & Trust Company, and by a concurrent agreement dated May 2, 1927, between the taxpayer, Outwater and the bank, it was agreed that the mining property which had been conveyed to the bank as trustee should, upon the joint demand of the taxpayer and Outwater, be reconveyed to the corporation to be formed or to other nominees of the said parties: “The taxpayer proceeded in the development of the property according to the agreement. It became necessary to have development funds in excess of the $30,000 advanced by Outwater, and such funds were provided 50 percent by the taxpayer and 50 percent by Outwater. No corporation was formed, however, and on May 17, 1929, a new agreement was entered into between the taxpayer and Outwater revising to some extent the original plans for a corporation. Under this second agreement the common stock was to remain the same and was to be issued 501 shares to the. taxpayer and 499 shares to Outwater. All preferred stock was eliminated. It was contemplated that the proceeds from operations should be distributed under the heading of ‘royalties’ which were to be computed on the tonnage of fluorspar mined. The first $33,000 was to be distributed in equal amounts to the taxpayer and Out-water and was to cover the additional development funds provided by them in the interval. The next $40,000 was to be distributed 75 percent to Outwater and 25 percent to the taxpayer. Upon payment of the two amounts mentioned, the next $480,-000 to become distributable as ‘royalties’ was to be distributed 75 percent to the taxpayer and 25 percent to Outwater. After this amount had been paid, all subsequent payments were to be on the basis of one half to the taxpayer and the other half to Outwater. This agreement disclosed for the first time that C. M. Barnett, Jr., was the owner of one half of the interest previously indicated as belonging to Out-water. “The corporation contemplated by the agreement of May 27, 1929, was not organized and the mining operations were continued by the taxpayer as before, the proceeds therefrom being distributed, however, according to the ratios prescribed by the 1929 agreement. “Under date of May 1, 1933, the taxpayer, Outwater and Barnett executed a partnership agreement for the operation of the above-described properties. They were operating under this agreement during the years 1936 and 1937, the years here in question. In that agreement it was provided that ‘Out of profits and income of the co-partnership 75 percent should be the share of the taxpayer, 12-1/2 percent the share of Outwater and 12-1/2 percent the share of Barnett until aggregate payments of $460,000 had been made, after which the profits and income were to be divided 50 percent to the taxpayer and 25 percent each to Outwater and Barnett. The ninth paragraph of the partnership agreement provided as follows: “‘Ninth: It is understood and agreed that the copartnership hereby defined is not a new partnership but is a continuation of the partnership existing between the partners hereto since the year 1927, and is a definition of the rights and interests of the parties as created and covered by oral agreements dated May 2nd, 1927, and May 17th, 1929, and that the provisions of the said agreements dated May 2, 1927, and May 17, 1927, have been in part performed and in part modified and abrogated by such agreements, and it is understood and agreed that the present agreement supersedes the prior agreements between the parties, and particularly that the written agreements last mentioned are hereby can-celled and abrogated.’ “Title to the mining properties was conveyed to the partnership of Outwater, Schwerin and Barnett by the Central Hanover Bank & Trust Company on August 18, 1937. For the years 1933, 1934, 1935, 1936 and 1937 the taxpayer executed for the partnership and filed partnership returns of income showing the distributable shares of the partnership income to be 75 percent to the taxpayer and 12-1/2 percent each to Outwater and Barnett. “The actual distributions made by the partnership to the three partners for the years 1936 and 1937 were in excess of their distributable shares of income as shown on the partnership returns, the excess distributions being made from depletion and depreciation reserves. All distributions, however, were made on the basis of 75 percent to the taxpayer and 12-1/2 percent each to Outwater and Barnett. “For the above years up to and including 1936 the taxpayer reported on his individual returns as his income 75 percent of the net income of the partnership as his distributable share thereof. In his income tax return for 1937 he reported only 50 percent of the net income of the partnership as his distributable share of the partnership income. “For the year 1936 the taxpayer filed a claim for refund, the basis for the said claim being that he had reported 75 percent of the net income of the partnership as his distributable share thereof, whereas his distributable share amounted to only 50 percent. On some date not shown, the taxpayer was advised by the Commissioner that there was an overassessinent of his income tax for the year 1936 in the amount of $3,821.02. The amount of the over-assessment was credited in part to the tax years 1935 and 1937 and refunded in part. The Commissioner thereafter concluded that the taxpayer’s distributable share of the partnership income was 75 percent and determined the deficiencies here in question on that basis.” The relevant statutes and Treasury Regulations are as follows: Revenue Act of 1936, c. 690, 49 Stat. 1648: “§ 181. Partnership not taxable “Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. “§ 182. Tax of Partners “There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year. “§ 183. Computation of Partnership Income “The net income of the partnership shall be computed in the same manner and on the same basis as in the case of an individual.” 26 U.S.C.A. Int.Rev.Acts, page 897. Treasury Regulations 94, promulgated under the Revenue Act of 1936: “Art. 182-1. Distributive share of partner. — Individuals carrying on business in partnership are taxable upon their distributive shares of the net income of such partnership, whether distributed or not, and are required to include such distributive shares in their returns. * * * ^ ‡ ‡ ‡ ‡ “If the result of partnership operation is a net loss (excess of allowable deductions over gross income), the loss will be divisible by the partners in the same proportion as net income would have been divisible (or, if the partnership agreement provides for the division of a loss in a manner different from the division of a gain, in the manner so provided), and may be taken by the individual partners in their returns of income.” The taxpayer now contends that he is subject to an income tax on only 50% of the net income of the partnership; the remaining 25% received by him, he insists, was a return of capital constructively paid to him by his two partners. We think that this assertion is irreconcilable with the prior conduct of the taxpayer, and that it is also contrary to both the undisputed facts and the applicable law in this case. It is elementary that partnership profits may be distributed in whatever proportions as may be agreed by the partners and that the partnership agreement is determinative of the respective liabilities of the partners for federal income taxes. Hellman v. United States, 44 F.2d 83, 70 Ct.Cl. 498. The controversy in the instant case, therefore, springs from a construction of the agreement of May 1, 1933, which established the partnership of Out-water, Schwerin and Barnett, and which defined the rights and obligations of the individual partners during the taxable years in question. The third clause of this agreement specifically sets forth the distributive share to which each partner is entitled in the following' language: “Third: It is understood and agreed that the respective shares which the above-named partnership (sic) shall have in the income and profits of the partnership are as follows: “(a) Out of the profits and income of the copartnership 75% shall belong to and be the share of the said Martin Schwerin, 12-1/2% shall belong to and be the share of the said Charles M. Barnett, Jr., and 12-1/2% shall belong to and be the share of the said Addison Outwater. This proportionate share and division of the profits and income of the copartnership shall continue until the aggregate payments made under this subdivision shall amount to the sum of Four Hundred and Sixty Thousand Dollars ($460,000.00). * * * “(b) After said sum of Four Hundred and Sixty Thousand Dollars ($460,-000.00) has been divided and distributed among the partners as income and profits of the copartnership * * * thereafter the share of each of the aforesaid partners shall be.to wit: Martin Schwerin 50%, Addison Outwater 25%, Charles M. Barnett, Jr. 25%. “(c) It is the intent of this agreement that profits and income shall be divided and distributed among the partners as same may become available, retaining in the treasury not more than Fifty Thousand Dollars ($50,000.00) except by unanimous agreement of the partners.” Since the total distributions of the partnership had not aggregated $460,000 by the end of the taxable years under consideration, the clear and unambiguous language of the agreement itself indicates that the taxpayer was entitled to 75% of the net income of the partnership. That he should be taxable accordingly is further evidenced by the fact that the actual partnership practice was in express conformity with the terms of the third clause of the agreement. Thus, all distributions made by the partnership were divided in a ratio of 75% to the taxpayer and 12-1/2% to each of the other two partners. The parties were perfectly free to agree that this larger share of 75% was to be paid to the taxpayer only for a limited period (until the total distributions aggregated $460,000) and not indefinitely. Consequently, during this period in which the taxpayer was receiving the larger sum he was obviously receiving a distributive share of partnership profits. CF. Billwiller’s Estate v. Commissioner, 2 Cir., 31 F.2d 286, certiorari denied 279 U.S. 866, 49 S.Ct. 481, 73 L.Ed. 1003; Commissioner v. Banfield, 9 Cir., 122 F.2d 1017. We therefore need not concern ourselves with special “mortgage liens on the property” or special “royalty payments” or any other arrangement that the parties might have made had they intended to accomplish the results now desired by the taxpayer, i.e., that 25% of the 75% the taxpayer received represented profits constructively received by Outwater and Barnett and constructively paid to the taxpayer by them as their share of the purchase price which was to be paid by the partnership for the mining properties originally acquired by the taxpayer. Accordingly, we are here bound by what the parties actually did and not by what they might have done; we are controlled by the contract they signed, not by any contract into which they might have entered. See Weiss v. Stearn, 265 U.S. 242, 44 S.Ct. 490, 68 L.Ed. 1001, 33 A.L.R. 520; Clemmons v. Commissioner, 5 Cir., 54 F.2d 209; Bruce v. Helvering, 64 App. D.C. 192, 76 F.2d 442. The articles of partnership contained no mention whatever of payment to the taxpayer for capital assets; nor can these articles be so construed under any reasonable interpretation. The following additional circumstances are rather conclusively inconsistent with the contention of the taxpayer: (1) All of the partnership returns for the years 1933 through 1937 state that the taxpayer’s percentage of net income from the partnership was 75%, and each of these partnership returns was sworn to and signed by the taxpayer. (2) At no time did the taxpayer report that he had received a capital gain from the partnership, a gain which he would have realized and should have reported if we accept his present theory that 25% of the 75% he received constituted a return on his original capital invested in the mining property. (3) An examination of the 1935 partnership income tax return indicates a net loss of $7,463.41 for that year. Since this figure does not take into consideration a salary of $6,000 paid to the taxpayer, the total loss of the partnership for 1935 was, in reality, $13,463.41. In the computation of the distributive share of the losses of the respective partners, the loss shown for the taxpayer is listed as 75% of $13,463.41. Likewise, the loss shown for each of the taxpayer’s partners (Outwater and Barnett) is 12-1/2% of $13,463.41. It is thus beyond dispute that this allocation of loss is consistent only with the theory that the taxpayer’s distributive interest in the partnership was 75%. If we concede, arguendo, the correctness of the taxpayer’s present allegation that he had only a 50% income interest and a 25% return of capital gain interest, why would he, in point of fact, and how could he, in legal theory, take a full 75% of the partnership loss in his personal income tax return? As a “50%” partner he would have been entitled to take only 50% of the net partnership loss. Taxpayer’s own ante litem motam interpretation therefore corroborates our view that his distributive share of the net income of the enterprise was 75% and not 50%. We might also note that the partners of the taxpayer do not agree with the taxpayer’s interpretation of the articles of partnership. Accordingly, we affirm the determination of the Commissioner and the decision of the Tax Court that the taxpayer, for the years 1936 and 1937, is taxable on the basis of a distributive share of 75% of the net income of the firm of Outwater, Schwerin and Barnett. 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?

HAWAII HOUSING AUTHORITY et al. v. MIDKIFF et al. No. 83-141. Argued March 26, 1984 Decided May 30, 1984 Laurence H. Tribe, Special Deputy Attorney General of Hawaii, argued the cause for appellants. With him on the briefs for appellants in Nos. 83-141 and 83-283 were Kathleen M. Sullivan and David Rosenberg, Special Deputy Attorneys General, Tany S. Hong, Attorney General, Michael A. Lilly, First Deputy Attorney General, Dennis E. W. O’Connor, James H. Case, and A. Bernard Bays. Richard J. Archer and Corey Y. S. Park filed briefs for appellants in No. 83-236. Clinton R. Ashford argued the cause for appellees. With him on the brief were E. Barrett Prettyman, Jr., B. Evan Bayh III, Rosemary T. Fazio, G. Richard Morry, and Earl T. Sato Together with No. 83-236, Portlock Community Association (Maunalua Beach) et al. v. Midkiff et al.; and No. 83-283, Kahala Community Association, Inc., et al. v. Midkiff et al., also on appeal from the same court. Briefs of amici curiae urging affirmance were filed for the Office of Hawaiian Affairs by H. K. Bruss Keppeler; for the Pacific Legal Foundation by Ronald A. Zumbrun and Harold J. Hughes; and for the Queen Liliuokalani Trust et al. by Daniel H. Case. William A. Dobrovir and Joseph D. Gebhardt filed a brief for the Hou Hawaiians et al. as amici curiae. Justice O’Connor delivered the opinion of the Court. The Fifth Amendment of the United States Constitution provides, in pertinent part, that “private property [shall not] be taken for public use, without just compensation.” These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not. I A The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali’i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali’i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5. Beginning in the early 1800’s, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960’s, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State’s land, another 47% was in the hands of only 72 private landowners. See Brief for the Hou Hawaiians and Maui Loa, Chief of the Hou Hawaiians, as Amici Curiae 32. The legislature further found that 18 landholders, with tracts of 21,000 acres or more, owned more than 40% of this land and that on Oahu, the most urbanized of the islands, 22 landowners owned 72.5% of the fee simple titles. Id., at 32-33. The legislature concluded that concentrated land ownership was responsible for skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. To redress these problems, the legislature decided to compel the large landowners to break up their estates. The legislature considered requiring large landowners to sell lands which they were leasing to homeowners. However, the landowners strongly resisted this scheme, pointing out the significant federal tax liabilities they would incur. Indeed, the landowners claimed that the federal tax laws were the primary reason they previously had chosen to lease, and not sell, their lands. Therefore, to accommodate the needs of both lessors and lessees, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), Haw. Rev. Stat., ch. 516, which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees. By condemning the land in question, the Hawaii Legislature intended to make the land sales involuntary, thereby making the federal tax consequences less severe while still facilitating the redistribution of fees simple. See Brief for Appellants in Nos. 83-141 and 83-283, pp. 3-4, and nn. 6-8. Under the Act’s condemnation scheme, tenants living on single-family residential lots within developmental tracts at least five acres in size are entitled to ask the Hawaii Housing Authority (HHA) to condemn the property on which they live. Haw. Rev. Stat. §§ 516-1(2), (11), 516-22 (1977). When 25 eligible tenants, or tenants on half the lots in the tract, whichever is less, file appropriate applications, the Act authorizes HHA to hold a public hearing to determine whether acquisition by the State of all or part of the tract will “effectuate the public purposes” of the Act. §516-22. If HHA finds that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set either by condemnation trial or by negotiation between lessors and lessees, the former fee owners’ full “right, title, and interest” in the land. §516-25. After compensation has been set, HHA may sell the land titles to tenants who have applied for fee simple ownership. HHA is authorized to lend these tenants up to 90% of the purchase price, and it may condition final transfer on a right of first refusal for the first 10 years following sale. §§ 516-30, 516-34, 516-35. If HHA does not sell the lot to the tenant residing there, it may lease the lot or sell it to someone else, provided that public notice has been given. §516-28. However, HHA may not sell to any one purchaser, or lease to any one tenant, more than one lot, and it may not operate for profit. §§516-28,516-32. In practice, funds to satisfy the condemnation awards have been supplied entirely by lessees. See App. 164. While the Act authorizes HHA to issue bonds and appropriate funds for acquisition, no bonds have issued and HHA has not supplied any funds for condemned lots. See ibid. B In April 1977, HHA held a public hearing concerning the proposed acquisition of some of appellees’ lands. HHA made the statutorily required finding that acquisition of appellees’ lands would effectuate the public purposes of the Act. Then, in October 1978, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. Those negotiations failed, and HHA subsequently ordered appellees to submit to compulsory arbitration. Rather than comply with the compulsory arbitration order, appellees filed suit, in February 1979, in United States District Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees’ estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Clause. See 483 F. Supp. 62 (Haw. 1979). The District Court found that the Act’s goals were within the bounds of the State’s police powers and that the means the legislature had chosen to serve those goals were not arbitrary, capricious, or selected in bad faith. The Court of Appeals for the Ninth Circuit reversed. 702 F. 2d 788 (1983). First, the Court of Appeals decided that the District Court had permissibly chosen not to abstain from the exercise of its jurisdiction. Then, the Court of Appeals determined that the Act could not pass the requisite judicial scrutiny of the Public Use Clause. It found that the transfers contemplated by the Act were unlike those of takings previously held to constitute “public uses” by this Court. The court further determined that the public purposes offered by the Hawaii Legislature were not deserving of judicial deference. The court concluded that the Act was simply “a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B’s private use and benefit.” Id., at 798. One judge dissented. On applications of HHA and certain private appellants who had intervened below, this Court noted probable jurisdiction. 464 U. S. 932 (1983). We now reverse. We begin with the question whether the District Court abused its discretion in not abstaining from the exercise of its jurisdiction. The appellants have suggested as one alternative that perhaps abstention was required under the standards announced in Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), and Younger v. Harris, 401 U. S. 37 (1971). We do not believe that abstention was required. A In Railroad Comm’n v. Pullman Co., supra, this Court held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and “needless friction with state policies . . . .” Id., at 500. However, federal courts need not abstain on Pullman grounds when a state statute is not “fairly subject to an interpretation which will render unnecessary” adjudication of the federal constitutional question. See Harman v. Forssenius, 380 U. S. 528, 535 (1965). Pullman abstention is limited to uncertain questions of state law because “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813 (1976). In these cases, there is no uncertain question of state law. The Act unambiguously provides that “[t]he use of the power . . . to condemn ... is for a public use and purpose.” Haw. Rev. Stat. § 516-83(a)(12) (1977); see also §§516-83(a)(10), (11), (13). There is no other provision of the Act — or, for that matter, of Hawaii law — which would suggest that § 516-83(a)(12) does not mean exactly what it says. Since “the naked question, uncomplicated by [ambiguous language], is whether the Act on its face is unconstitutional,” Wisconsin v. Constantineau, 400 U. S. 433, 439 (1971), abstention from federal jurisdiction is not required. The dissenting judge in the Court of Appeals suggested that, perhaps, the state courts could make resolution of the federal constitutional questions unnecessary by their construction of the Act. See 702 F. 2d, at 811-812. In the abstract, of course, such possibilities always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather, “[w]e have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction.” Zwickler v. Koota, 389 U. S. 241, 251, and n. 14 (1967). These statutes are not of an uncertain nature and have no reasonable limiting construction. Therefore, Pullman abstention is unnecessary. B The dissenting judge also suggested that abstention was required under the standards articulated in Younger v. Harris, supra. Under Younger-abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests. See Middlesex Ethics Committee v. Garden State Bar Assn., 457 U. S. 423, 432-437 (1982). Younger abstention is required, however, only when state court proceedings are initiated “before any proceedings of substance on the merits have taken place in the federal court.” Hicks v. Miranda, 422 U. S. 332, 349 (1975). In other cases, federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them. In these cases, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal court. Appellees filed their federal court complaint in February 1979, asking for temporary and permanent relief. The District Court temporarily restrained HHA from proceeding against appellees’ estates. At that time, no state judicial proceedings were in process. Indeed, in June 1979, when the District Court granted, in part, appellees’ motion for a preliminary injunction, state court proceedings still had not been initiated. Rather, HHA filed its first eminent domain lawsuit after the parties had begun filing motions for summary judgment in the District Court — in September 1979. Whether issuance of the February temporary restraining order was a substantial federal court action or not, issuance of the June preliminary injunction certainly was. See Doran v. Salem Inn, Inc., 422 U. S. 922, 929-931 (1975). A federal court action in which a preliminary injunction is granted has proceeded well beyond the “embryonic stage,” id., at 929, and considerations of economy, equity, and federalism counsel against Younger abstention at that point. The only extant proceedings at the state level prior to the September 1979 eminent domain lawsuit in state court were HHA’s administrative hearings. But the Act clearly states that these administrative proceedings are not part of, and are not themselves, a judicial proceeding, for “mandatory arbitration shall be in advance of and shall not constitute any part of any action in condemnation or eminent domain.” Haw. Rev. Stat. § 516 — 51(b) (1976). Since Younger is not a bar to federal court action when state judicial proceedings have not themselves commenced, see Middlesex County Ethics Committee v. Garden State Bar Assn., supra, at 433; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 112-113 (1981), abstention for HHA’s administrative proceedings was not required. The majority of the Court of Appeals next determined that the Act violates the “public use” requirement of the Fifth and Fourteenth Amendments. On this argument, however, we find ourselves in agreement with the dissenting judge in the Court of Appeals. A The starting point for our analysis of the Act’s constitutionality is the Court’s decision in Berman v. Parker, 348 U. S. 26 (1954). In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a “public use,” id., at 31, the Court stated: “We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia ... or the States legislating concerning local affairs. . . . This principle admits of no exception merely because the power of eminent domain is involved. . . .” Id., at 32 (citations omitted). The Court explicitly recognized the breadth of the principle it was announcing, noting: “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established.” Id., at 33. The “public use” requirement is thus coterminous with the scope of a sovereign’s police powers. There is, of course, a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is “an extremely narrow” one. Id., at 32. The Court in Berman cited with approval the Court’s decision in Old Dominion Co. v. United States, 269 U. S. 55, 66 (1925), which held that deference to the legislature’s “public use” determination is required “until it is shown to involve an impossibility.” The Berman Court also cited to United States ex rel. TV A v. Welch, 327 U. S. 546, 552 (1946), which emphasized that “[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.” In short, the Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use “unless the use be palpably without reasonable foundation.” United States v. Gettysburg Electric R. Co., 160 U. S. 668, 680 (1896). To be sure, the Court’s cases have repeatedly stated that “one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” Thompson v. Consolidated Gas Corp., 300 U. S. 55, 80 (1937). See, e. g., Cincinnati v. Vester, 281 U. S. 439, 447 (1930); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 251-252 (1905); Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159 (1896). Thus, in Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896), where the “order in question was not, and was not claimed to be, ... a taking of private property for a public use under the right of eminent domain,” id., at 416 (emphasis added), the Court invalidated a compensated taking of property for lack of a justifying public purpose. But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause. See Berman v. Parker, supra; Rindge Co. v. Los Angeles, 262 U. S. 700 (1923); Block v. Hirsh, 256 U. S. 135 (1921); cf. Thompson v. Consolidated Gas Corp., supra (invalidating an uncompensated taking). On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs. The land oligopoly has, according to the Hawaii Legislature, created artificial deterrents to the normal functioning of the State’s residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978); Block v. Hirsh, supra; see also People of Puerto Rico v. Eastern Sugar Associates, 156 P. 2d 316 (CA1), cert. denied, 329 U. S. 772 (1946). We cannot disapprove of Hawaii’s exercise of this power. Nor can we condemn as irrational the Act’s approach to correcting the land oligopoly problem. The Act presumes that when a sufficiently large number of persons declare that they are willing but unable to buy lots at fair prices the land market is malfunctioning. When such a malfunction is sig-nalled, the Act authorizes HHA to condemn lots in the relevant tract. The Act limits the number of lots any one tenant can purchase and authorizes HHA to use public funds to ensure that the market dilution goals will be achieved. This is a comprehensive and rational approach to identifying and correcting market failure. Of course, this Act, like any other, may not be successful in achieving its intended goals. But “whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if. . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective.” Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U. S. 648, 671-672 (1981); see also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 466 (1981); Vance v. Bradley, 440 U. S. 93, 112 (1979). When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings — no less than debates over the wisdom of other kinds of socioeconomic legislation— are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Clause. B The Court of Appeals read our cases to stand for a much narrower proposition. First, it read our “public use” cases, especially Berman, as requiring that government possess and use property at some point during a taking. Since Hawaiian lessees retain possession of the property for private use throughout the condemnation process, the court found that the Act exacted takings for private use. 702 F. 2d, at 796-797. Second, it determined that these cases involved only “the review of . . . congressional determination^] that there was a public use, not the review of. . . state legislative determination^].” Id., at 798 (emphasis in original). Because state legislative determinations are involved in the instant cases, the Court of Appeals decided that more rigorous judicial scrutiny of the public use determinations was appropriate. The court concluded that the Hawaii Legislature’s professed purposes were mere “statutory rationalizations.” Ibid. We disagree with the Court of Appeals’ analysis. The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public. “It is not essential that the entire community, nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use.” Rindge Co. v. Los Angeles, 262 U. S., at 707. “[W]hat in its immediate aspect [is] only a private transaction may ... be raised by its class or character to a public affair.” Block v. Hirsh, 256 U. S., at 155. As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified. The Act advances its purposes without the State’s taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause. Similarly, the fact that a state legislature, and not the Congress, made the public use determination does not mean that judicial deference is less appropriate. Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power. State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman v. Parker, 348 U. S., at 32. Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use. IV The State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. But no purely private taking is involved in these cases. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii — a legitimate public purpose. Use of the condemnation power to achieve this purpose is not irrational. Since we assume for purposes of these appeals that the weighty demand of just compensation has been met, the requirements of the Fifth and Fourteenth Amendments have been satisfied. Accordingly, we reverse the judgment of the Court of Appeals, and remand these cases for further proceedings in conformity with this opinion. It is so ordered. Justice Marshall took no part in the consideration or decision of these cases. An eligible tenant is one who, among other things, owns a house on the lot, has a bona fide intent to live on the lot or be a resident of the State, shows proof of ability to pay for a fee interest in it, and does not own residential land elsewhere nearby. Haw. Rev. Stat. §§516-33(3), (4), (7) (1977). See § 516-56 (Supp. 1983). In either case, compensation must equal the fair market value of the owner’s leased fee interest. § 516-1(14). The adequacy of compensation is not before us. As originally enacted, lessor and lessee had to commence compulsory arbitration if they could not agree on a price for the fee simple title. Statutory formulae were provided for the determination of compensation. The District Court declared both the compulsory arbitration provision and the compensation formulae unconstitutional. No appeal was taken from these rulings, and the Hawaii Legislature subsequently amended the statute to provide only for mandatory negotiation and for advisory compensation formulae. These issues are not before us. The dissenting judge’s suggestion that Pullman abstention was required because interpretation of the State Constitution may have obviated resolution of the federal constitutional question is equally faulty. Hawaii’s Constitution has only a parallel requirement that a taking be for a public use. See Haw. Const., Art. I, §20. The Court has previously determined that abstention is not required for interpretation of parallel state constitutional provisions. See Examining Board v. Flores de Otero, 426 U. S. 572, 598 (1976); see also Wisconsin v. Constantineau, 400 U. S. 433 (1971). After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. See, e. g., Act of May 1779, 10 Henning’s Statutes At Large 64, ch. 13, § 6 (1822) (Virginia statute); Divesting Act of 1779, 1775-1781 Pa. Acts 258, ch. 139 (1782) (Pennsylvania statute). Courts have never doubted that such statutes served a public purpose. See, e. g., Wilson v. Iseminger, 185 U. S. 55, 60-61 (1902); Stewart v. Gorter, 70 Md. 242, 244-245, 16 A. 644, 645 (1889). We similarly find no merit in appellees’ Due Process and Contract Clause arguments. The argument that due process prohibits allowing lessees to initiate the taking process was essentially rejected by this Court in New Motor Vehicle Board v. Fox Co., 439 U. S. 96, 108-109 (1978). Similarly, the Contract Clause has never been thought to protect against the exercise of the power of eminent domain. See United States Trust Co. v. New Jersey, 431 U. S. 1, 19, and n. 16 (1977). It is worth noting that the Fourteenth Amendment does not itself contain an independent “public use” requirement. Rather, that requirement is made binding on the States only by incorporation of the Fifth Amendment’s Eminent Domain Clause through the Fourteenth Amendment’s Due Process Clause. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). It would be ironic to find that state legislation is subject to greater scrutiny under the incorporated “public use” requirement than is congressional legislation under the express mandate of the Fifth Amendment.

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Richard and Anita POLIQUIN, Plaintiffs-Appellants, v. GARDEN WAY, INC., Defendant-Appellee. Nos. 92-1115, 92-1116. United States Court of Appeals, First Circuit. Heard July 29, 1992. Decided March 24, 1993. Rehearing Denied April 20, 1993. Maurice A. Libner with whom Marcia 3. Cleveland and McTeague, Higbee, Libner, MacAdam, Case- and Watson, Topsham, ME, were on brief, for plaintiffs-appellants. Cheryl Flax-Davidson, San Juan, PR, and Bob Gibbins, Austin, TX, were on brief, for amicus curiae The Ass’n of Trial Lawyers of America. Mark L. Austrian with whom Collier, Shannon, Rill & Scott, Washington, DC, Roy E. Thompson, Jr., Glenn H. Robinson, arid Thompson & Bowie, Portland, ME, were on brief, for defendant-appellee. James D. Poliquin, Russell B. Pierce, Jr. and Norman, Hanson & DeTroy, Portland, ME, were on brief, for amicus curiae The Defense Research Institute, Inc. Before TORRUELLA and BOUDIN, Circuit Judges, and KEETON, District Judge. Of the District of Massachusetts, sitting by desig- . nation.. BOUDIN, Circuit Judge. Richard and Anita Poliquin, appellants in this court and plaintiffs below, challenge protective orders of the district court limiting access to certain discovery materials in this case. The plaintiffs’ underlying product liability claim has been settled. The discovery dispute lives on, consuming the time and energy of the courts, largely as a contest between plaintiffs’ counsel and the defendant-appellee, Garden Way, Inc. For reasons set forth below, we modify the orders under review in one important respect and otherwise affirm. I. PROCEEDINGS IN THE DISTRICT COURT In October 1990, Richard Poliquin was seriously injured while operating the Super Tomahawk, a chipper/shredder manufactured by Garden Way. He and his wife brought suit against Garden Way in the district court, charging that the injury was due to the defective design of the product. The Poliquins sought discovery from Garden Way including design specifications, sales data and information about other accidents involving the Super Tomahawk or similar equipment. In response, Garden Way sought a protective order limiting disclosure of answers and documents produced in response to specified discovery requests. The Poli-quins resisted, Garden Way submitted an affidavit from its general counsel Lucia Miller in support of its request. On August 2, 1991, after a hearing on discovery issues, a protective order was entered by the magistrate judge to whom discovery matters had been assigned. The protective order said that Garden Way did have “valuable trade secrets and other confidential information” which were sought in discovery but should not be made public. The order afforded confidential treatment to information obtained through some, but not all, of the interrogatories specified by Garden Way, and to other information that had been the subject of the hearing. The August 2 order also created a mechanism for resolving disputes about new discovery. It provided that if Garden Way produced other information or documents that it deemed confidential, it should mark them with a legend showing that they were “confidential” pursuant to court order in the case. If the Poliquins disagreed, they could contest the designation by motion within a fixed period, effectively 15 days from the production of the materials. The order provided that it “shall not terminate at the conclusion of this action” and within 90 days after the conclusion, all information and documents subject to the order “shall be destroyed” and a certificate of destruction provided by counsel. The Poliquins appealed the August 2 order to the district judge who affirmed it as “not clearly erroneous.” An appeal to this court was taken but dismissed as interlocutory. The interrogatory answers and documents provided by Garden Way under the protective order listed the names of other persons who had been injured by Garden Way equipment and included a number of complaints such persons had filed in other suits. The Poliquins later took depositions (under Fed.R.Civ.P. 31) of 23 other individuals who had suffered such accidents, as well as the -videotaped deposition of Jay Sluiter, a former employee of Garden Way. The protective order provided that confidential information within a deposition transcript was to be designated by underlining the lines in question and stamping the pages “confidential.” It is not clear that Garden Way did so in each instance. A pretrial hearing occurred on October 24, 1991. The district judge ruled that the Poliquins were free to offer information and documents at trial even if they had been designated as confidential during discovery. During this colloquy, plaintiffs’ counsel suggested that material offered in evidence would be freed from further restriction, so he could send such material to other plaintiffs who had similar cases. Defense counsel disagreed and concluded by saying that when trial is over “I will request that those exhibits be returned.” The court replied: “Correct.... When the trial is over, whatever rights you have ... to control the further dissemination of the material, you can invoke.” Trial began on October 28, 1991. During trial, the court permitted the Poliquins' counsel to read to the jury a portion of Garden Way’s interrogatory answers — relating to certain of the other accidents involving Garden Way equipment — but it did not allow the written interrogatory answers themselves to be offered as exhibits and excluded information about many of the other accidents altogether. None of the Rule 31 depositions of other injured persons was admitted or read to the jury, the court excluding them as prejudicial and of little value. A videotape of the Sluiter deposition was shown to the jury in its entirety. During trial, the parties agreed to settle the case, and the jury was discharged. Thereafter, on .November 13, 1991, defense counsel wrote to the Poliquins’ counsel listing 214 items claimed to be covered by the protective order, and requesting that the listed material be returned or destroyed. Some of the 214 items had not previously been designated as confidential. Included in the list were portions of the trial record. It appears that the Poliquins’ counsel did not immediately reply. On November 18, 1991, plaintiffs executed a “release and indemnity agreement” and received a check. The agreement stated that “[rjeleasors and their attorney acknowledge that they are still bound by the terms of the [August 2] Protective Order” as to disclosure of protected materials. In a signed addendum, the Poliquins’ counsel approved the agreement and “acknowledge[d] continuing applicability of the Protective Order and agree[d] to comply with the portions of this agreement which apply to him.” The counsel “further agree[dj” that he would instruct any expert or consultant shown confidential material not to disseminate it and to return all documents or other written materials to defense counsel. On November 27, 1991, the district court formally dismissed the case. Shortly before the dismissal, the Poli-quins on November 25, 1991, filed a motion “for determination of confidentiality” asking the court to rule that a number of items listed in the November 13, 1991, letter were not subject to any confidentiality restriction. The Poliquins argued that their counsel had independently learned the names of seven injury victims before the interrogatories were answered; that any information admitted into evidence at trial, {e.g., the Sluiter deposition) should not be protected; that it would be wasteful of resources to protect the unadmitted Rule 31 depositions of victims; and that court complaints filed in other cases, although furnished by Garden Way in discovery and not admitted at trial, were public documents. Garden Way opposed the motion and asked the court to seal pendente lite confidential material to the extent contained in the court’s file. By endorsements, the district judge on December 10, 1991, granted Garden Way’s request and denied the Poli-quins’ motion. Then, on January 17, 1992, the district court on further review of Garden Way’s request directed that material subject to the August 2 protective order be removed from the court file by counsel for Garden Way and the court then sealed “all testimony and arguments made during the trial dealing with the matters which are subject to” the August 2 order, unless and until otherwise ordered'by the, court. The Poliquins appealed to this court both the December 10, 1991, order denying its motion and the January 17, 1992, order sealing in part the trial record. An amicus brief supporting them has been filed by the Association of Trial Lawyers of America and another in opposition by the Defense Research Institute, Inc. There is no hint that the Poliquins themselves have any practical interest in the outcome of the appeal, but as they are formally subject to protective orders entered in their case, we see no lack of standing to seek appellate review. II. THRESHOLD ISSUES At the outset, we face arguments on both sides that important issues have been waived or relinquished. To raise an issue on appeal, a litigant must generally show the issue was raised in the trial court by a proper request or objection and that the right ground for the request or objection was given at the time. See generally Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (collecting waiver cases). Even then, a mistake in the ruling will be disregarded unless prejudice resulted from the error. E.g., Fed.R.Evid. 103(a). Finally, nothing prevents a party from consenting by stipulation or contract not to pursue a specific issue on appellate review. The reason for the rules is not that litigation is a game, like golf, with arbitrary rules to test the skill of the players. Rather, litigation is a “winnowing process,” Howell v. Federal Deposit Ins. Corp., 986 F.2d 569, 575 (1st Cir.1993), and the procedures for preserving or waiving issues are part of the machinery by which courts narrow what remains to be decided. If lawyers could pursue on appeal issues not properly raised below, there would be little incentive to get it right the first time and no end of retrials. Thus, while there are escape hatches—“plain error,” “miscarriage of justice,” and other rubrics—an argument not properly preserved in the trial court is normally unavailable on appeal. Garden Way argues that in the release the Poliquins agreed to be “bound” by the August 2 protective order, and so have relinquished their right to challenge the protective order on appeal. The argument may have more force as to some of the information in dispute (e.g., the answers to specifically protected interrogatories) and less as to other items (anything arguably “added” by Garden Way’s post-trial letter to previously protected information). But we need not resolve the matter because Garden Way made no such relinquishment argument to the district court when it opposed the Poliquins’ motion to determine confidentiality. Although appellate courts have discretion to resolve issues waived or abandoned at trial, Clauson, 823 F.2d at 666, this is and should be uncommon, especially where facts pertinent to the issue are not in the record. Here, the import of the release is less clear than Garden Way suggests. The release states that the Poli-quins are “still bound by the terms” of the August 2 protective order, but it is open to argument whether “the terms” apply to all of the disputed material. The parties’ intentions might be illuminated by facts incident to the negotiations, but those facts are absent. In all events, we conclude that Garden Way has itself waived the right to argue that the release bars this appeal. Garden Way next argues that the Poliquins cannot attack the protective order because they failed to file an affidavit of their own in opposition to the original request for that order. We think it plain that the Poliquins, having made and pursued a timely qbjection to the August 2 order, are free to argue that the order was itself unlawful ab initio. The burden of showing cause for the order was upon Garden Way and the Poliquins can argue that the burden was not met (or that the order was overbroad) without offering affidavits of their own. Finally, turning the tables, the Poli-quins themselves contend that Garden Way lost the protection of the August 2 order as to various depositions because they were not marked “confidential” ;and underlined as required by the order. Garden Way says in reply that some depositions were not received until the midst of trial, delaying the designation process. The facts are obscure but need not be determined. The Poliquins’ waiver argument was not made in their motion for a determination of confidentiality or the supporting memorandum. Accordingly, this fact-bound argument is itself unavailable on appeal. III. THE MERITS The August 2 Order. Protective orders of various kinds are employed in civil cases, ranging from true blanket orders (everything is tentatively protected until otherwise ordered) to very narrow ones limiting access only to specific information after a specific finding of need. See generally Francis H. Hare, Jr., James L. Gilbert & William H. ReMine, Confidentiality Orders, § 4.10 (1988). The magistrate judge’s order in this case fell between these poles: it was based on an affidavit cast in broad terms; it protected specific interrogatory answers; and it set up a mechanism allowing Garden Way to designate further confidential material subject to objection by the Poliquins. District judges need wide latitude in designing protective orders, and the Federal Rules of Civil' Procedure reflect that approach. Rule 26(c) generously permits “for good cause shown” the making of “any order which justice requires” to protect against annoyance, embarrassment or undue burden occasioned by discovery. The district court has “broad discretion” to decide “when a protective order is appropriate and what degree of protection is required,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984), and great deference is shown to the district judge in framing and administering such orders. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed,2d 970 (1989); 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2036 (1970). Here, we have no doubt that the magistrate judge was entitled to enter the August 2 order. Some trial judges take a stricter view of the showing needed to protect discovery. But, in coping with the torrent of material often discovered but never used at trial, other judges require some general showing by affidavit and then protect materials designated by one side, subject to challenge by the other. Apart from a few aspersions on the Garden Way affidavit, the Poliquins do not seriously renew their prior attack on the original August 2 order. To the extent they do so, we reject that claim, finding the Miller affidavit adequate to support the original protective order. This conclusion, however, does not even begin to dispose of the case. The Poli-quins’ main attack is directed not to the August 2 order of the magistrate judge but to the protection afforded or reaffirmed under the district judge’s own ancillary orders of December 10,1990, and January 17, 1991. These orders rejected the Poliquins’ request to release (1) the Sluiter deposition and certain excerpts from interrogatory answers (read into evidence at trial) relating to other accidents, (2) court complaints filed by certain victims (which were not admitted at trial), and (3) and the Rule 31 depositions of victims (which likewise were not admitted at trial). Admitted Evidence. Among the items protected by the district court’s orders are materials that were actually admitted into evidence at trial: the videotape of the Sluiter deposition and excerpts read into the record from interrogatory answers describing other accidents. There is no issue of waiver here, for (as earlier noted) Garden Way made clear its desire to enforce the protective order even for material admitted at trial, and the district court reserved decision on the matter. We conclude, however, that only the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial. That showing has not been made in this ease. We have no doubt that, in rare circumstances, material introduced at trial can be safeguarded against disclosure afterwards. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12 (1st Cir.1986). Material of many different kinds may enter the trial record in various ways and be considered by the judge or jury for various purposes. The subject could be national security, the formula for Coca Cola, or embarrassing details of private life. The evidence might be offered only at the bench and the transcript immediately sealed, or it might be provided in a closed hearing, or it might be offered in public but be hard to replicate without a transcript. It is neither wise nor needful for this court to fashion a rulebook to govern the range of possibilities. One generalization, however, is safe: the ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial. This dividing line may in some measure be an arbitrary one, but it accords with long-settled practice in this country separating the presumptively private phase of litigation from the presumptively public. See Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes, J.). Open trials protect not only the rights of individuals, but also the confidence of the public that justice is being done by its courts in all matters, civil as well as criminal. See Seattle Times Co., 467 U.S. at 33, 104 S.Ct. at 2207-08 (distinguishing discovery material, traditionally not available to the public, from trial evidence which normally is available). There is thus an abiding presumption of access to trial records and ample reason to “distinguish materials submitted into evidence from the raw fruits of discovery.” Littlejohn v. BIC Corp., 851 F.2d 673, 678, 684 & n. 28 (3d Cir.1988). As we have said elsewhere, “ ‘[ojnly the most compelling reasons can justify the non-disclosure of judicial records.’ ” FTC v. Standard Financial Management Corp., 830 F.2d 404, 410 (1st Cir.1987) (quoting In re Knoxville News-Sentinal Co., 723 F.2d 470, 476 (6th Cir.1983)). Accord, Joy v. North, 692 F.2d 880, 893-94 (2d Cir.1982). In this case, there are no separate findings by the district court explaining the need for post-trial protection of trial evidence. While in some cases “compelling reasons” might be apparent from the record, that is not so here. Considering first the description of other accidents in the interrogatory responses, we believe no basis exists for a finding of “compelling reasons.” Garden Way’s reason for protection of such incidents is set forth in the Miller affidavit. It amounts to a garden-variety claim that the company’s image among customers' will be damaged through the misuse or distortion of those accident claims. In our view, this threat may be adequate as a ground for protecting discovery material; but it is outweighed, after the material is introduced in evidence, by the public’s interest in access to trial records. See Littlejohn, 851 F.2d at 685. Trials after all commonly generate bad publicity for defendants. Specific pieces of evidence are only details of a larger picture, often a very disparaging one, created by reports of the case in the press. This publicity may be unfair or distorted, but the injury is the price paid for open trials. At least in the absence of extraordinary circumstances, commercial embarrassment is not a “compelling reason” to seal a trial record. We have examined the interrogatory answer excerpts at issue in this case and find nothing to alter our judgment. The videotape of the Sluiter deposition presents a different problem because Garden Way, in arguing about its confidentiality, made a proffer which goes somewhat beyond claims of embarrassment. Garden Way said that the deposition deal[s] with the internal procedures by which Garden Way evaluates a product, market tests products and ultimately purchases the product for incorporation into its product line. [Sluiter’s] testimony and exhibits deal with Garden Way’s specific business plan for shredders, business plans for other types of power equipment, as well as customer profile information. All this information is highly confidential and proprietary.... Needless to say, these assertions, no matter how accurate, could not provide a basis for protecting the entire videotape of the deposition after its introduction into evidence, but at most, only trade secret or like material of unusual importance. In any event, we see no need for a remand to consider any splicing of the tape. After reviewing the deposition transcript, this court finds that the videotape contains nothing remotely comparable to, say, the formula for Coca Cola or even an important trade secret. Garden Way’s business methods are discussed but there are no startling revelations. The disadvantages of disclosure relate to future litigation, not the conduct of Garden Way’s business. There is no “compelling reason” here to restrict access to a videotape already played in open court. We note that a litigant like Garden Way has a straightforward trial remedy, one apparently not used in this case. At the time that confidential information is offered in evidence, the trial judge has ample power to exclude those portions that have limited relevance but contain trade secrets or other highly sensitive information. Fed.R.Evid. 403. This approach will not solve every problem but, to the extent it applies, it can mitigate harm without any impairment of public access to the trial record. Public Records. The Poliquins next object to the protection after trial of copies of civil complaints filed in other courts against Garden Way by other accident victims in other cases. None of these complaints was accepted in evidence at trial. Nor do we understand the Poliquins to claim that their attorney obtained the complaints independently of discovery. The issue, then, is whether the character of the complaints as public records means that “good cause” cannot exist for protecting them under Rule 26 even though they were obtained by compulsory discovery from the party seeking protection. At first blush, it might appear odd to safeguard with a protective order “public” documents that anyone in the country can secure by visiting a government office and using the copying machine. Yet, one can easily imagine “public” archival material where difficulties of discovery and assembly represent a significant investment by the original finder and a barrier to easy replication. Indeed, most “trade secrets” are duplicable with enough time and effort. The futility of protecting a “public” document might persuade a court to deny protection. But we see no basis for a blanket rule forbidding Rule 26 protection in all instances where the “public” document is obtained through discovery under an otherwise justified protective order. The “public” character of the complaints is the only reason given by the Poliquins for ordering their disclosure. We therefore have no reason to consider whether the magistrate judge’s original inclusion of the complaints under the protective order was error for any other reasons. ■ A protective order may often specify categories of information for protection without document by document review, and the design of the order is in any event largely within the trial court’s discretion. The Rule 31 Depositions. The remaining documents in dispute are the Rule 31 depositions of 23 accident victims not admitted into evidence at trial. The issue before us is narrow. The Poliquins, as we have said, have waived any claim that protection for the depositions was not timely sought. Nor do the Poliquins assert that the depositions must be disclosed in order to advise the public, and especially the authorities, of an unknown danger. Cf. Anderson v. Cryovac, Inc., 805 F.2d at 8 (permitting plaintiffs to disclose to government authorities discovery information regarding toxic chemicals in the city’s water supply). In this case, nothing prevents the Poliquins from advising the government of their claim that the Super Tomahawk is defective. The Poliquins argue instead that disclosure of the depositions is warranted to avoid wasteful duplication of discovery in other cases. The argument has a surface appeal in a time of swollen litigation cost and crowded dockets, but it looks at only one element in the equation. Absent an immediate threat to public health or safety, the first concern of the court is with the resolution of the case at hand. Judges have found in many cases that effective discovery, with a minimum of disputes, is achieved by affording relatively generous protection to discovery material. Impairing this process has immediate costs, including the delay of discovery and the cost to the parties and the court of resolving objections that would not be made if a protective order were allowed. For these reasons, the district court under current law retains broad discretion to protect discovery material, despite the burden of re-discovery imposed on future litigants in future cases. There have been proposals in Congress for “sunshine” legislation to provide public access to discovery, Court Secrecy: Hearings Before the Subcomm. on Courts and Administrative Procedure of the Senate Ju-dietary Committee, 100th Cong., 1st Sess. (1990), but there has also been strong opposition to these proposals and few states have adopted them. See, e.g., Judicial Conf. of the United States, Report of the Federal Courts Study Committee 102-03 (1990); Arthur Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427, 477-502 (1991). In all events, Congress has not altered the law. Where the district court does protect material during discovery, it is common to provide, as the magistrate judge did here, for post-trial protection including the return or destruction of protected material. In most cases, the lubricating effects of the protective order on pre-trial discovery would be lost if the order expired at the end of the case or were subject to ready alteration. See Miller, supra, at 499-500. Nevertheless, a protective order, like any ongoing injunction, is always subject to the inherent power of the district court to relax or terminate the order, even after judgment. Public Citizen, 858 F.2d at 781-82. This retained power in the court to alter its own ongoing directives provides a safety valve for public interest concerns, changed circumstances or any other basis that may reasonably be offered for later adjustment. Where such a request is made to the district judge and an appeal thereafter follows, the standard of review broadly speaking is abuse of discretion. Id. at 790-92. Nothing in this case suggests that the district court abused its discretion in refusing to lift the protective order for discovery materials not introduced at trial. The orders of the district court under review are modified to exclude from their scope the videotape of the Sluiter deposition and the interrogatory answer excerpts to the extent read into evidence, and the district court’s orders are otherwise affirmed. No costs. . These latter orders were issued after the dismissal of the ease, and under Public Citizen, 858 F.2d at 781-82, the district court could not after dismissal expand the protective order to create new obligations. Examining this “jurisdictional” issue sua sponte, we find that the orders in question represent in part a declaration of the scope of the existing August 2 order as applied to disputed materials and in part a refusal to remove prior protection. Thus, the orders were within the district court's continuing authority over previously issued orders. . Some courts have questioned whether corporate reputation warrants protection at all under Rule 26, e.g., Smith v. BIC Corp., 869 F.2d 194 (3d Cir.1989). In our view, so long as the protective order permits the opposing litigant to reach the material — and use it as needed at trial — it is hard to see why the district court should not be allowed to safeguard reputation. . Their attorney asserts that he obtained the names of seven victims independently but then secured the complaints they had filed from Garden Way through compulsory discovery. In our view this makes the complaints themselves discovered material. Limiting use of independently obtained material would, of course, raise serious questions as to the scope of the court’s authority and under the First Amendment. See Seattle Times, 467 U.S. at 37, 104 S.Ct. at 2209-10; International Products Corp. v. Koons, 325 F.2d 403, 409 (2d Cir.1963) (Friendly, J.). . The Poliquins’ counsel also argues that he has invested $5,000 in taking the depositions and should be free to recoup his costs by using the depositions in other suits against Garden Way. This version of events overlooks the fact that counsel was not doing private research but was using the court’s compulsory process to secure the information from deponents compelled to attend and answer.

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?

COMMISSIONERS COURT OF MEDINA COUNTY, TEXAS, et al. v. UNITED STATES of America, Antonio Garcia, III, et al., Appellants. No. 82-2416. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 21, 1983. Decided Oct. 28, 1983. Norman J. Chachkin, Washington, D.C., with whom William L. Robinson, Washington, D.C., and Jose Garza, San Antonio, Tex., were on the brief, for appellants. Keith Rosenberg, Washington, D.C., for appellees Com’rs Court of Medina County, Tex., et al. Walter W. Barnett, Dept, of Justice, Washington, D.C., entered an appearance for appellee, U.S. Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge. Opinion PER CURIAM. PER CURIAM: Appellants seek review of the district court’s second peremptory rejection of their application for attorneys’ fees filed pursuant to 42 U.S.C. § 19731 (e) (1976) (authorizing fees to prevailing parties in litigation to enforce the voting guarantees of the Fourteenth or Fifteenth Amendments). We vacated the district court’s prior order denying the fee application because the district judge had given “determinative weight to an improper factor.” Commissioners Court v. United States, 683 F.2d 435, 437 (D.C.Cir. 1982). The same “improper factor” infects the district court’s disposition on remand. Moreover, that disposition displays other basic errors. We therefore vacate the district court’s order again and remand once more, this time with an explicit instruction to hold a hearing on the application for fees. In a motion for a new trial or to alter or amend the judgment, filed in the district court on October 4, 1982, appellants indicated the evidentiary showing they would make if afforded the opportunity to do so. We further instruct the district court that, if appellants make the proffered showing, they will be entitled to an award of reasonable attorneys’ fees. I. Our prior opinion sets out the background of this case, 683 F.2d at 437-39, which we summarize briefly here. Appellants are Mexican-American citizens residing and registered to vote in Medina County, Texas. They were defendant-intervenors in a declaratory judgment action brought against the United States by the Commissioners Court of Medina County (County), pursuant to section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c (1976); in that action, the County sought court approval of its 1978 and 1979 redistricting plans. During the pendency of the litigation, the County adopted a new redistricting plan (the 1980 plan) which the Attorney General precleared. Thereafter, the district court dismissed the County’s action as moot, but permitted appellants to file an application for attorneys’ fees. Without holding a hearing or awaiting the completion .of discovery appellants had initiated, the district court denied the fee application. “Defendant-intervenors did not prevail,” the district judge ruled. He noted a sole reason for his ruling: defendant-intervenors (appellants here) had opposed “the compromise settlement” (the 1980 plan precleared by the Attorney General) which occasioned dismissal of the County’s action. See 683 F.2d at 438. In vacating the district court’s original order denying fees, this court explained why the district court must focus “on the factors that led the County to abandon its litigation efforts [to gain approval for the 1978 and 1979 plans] ... and [to] submit [the] alternate [1980] plan.” 683 F.2d at 443. The district court erred, we held, in focusing instead “on the factors that led the Attorney General to give preclearance approval to the 1980 Plan.” Id. We pointed out that, “although interested parties may voice their opposition [to] or support of [a plan submitted to the Attorney General], the final decision is the Attorney General’s alone,” and “[i]f the plan is precleared, that decision is not itself subject to judicial review.” Id. at 440 (footnote omitted). Defendant-intervenors in such a situation, we observed, are “in an unusual position.” Id. They are “precluded [by statute] from having any actual impact on the approval or disapproval of ... a ‘compromise plan’ submitted to the Attorney General during the course of litigation.” Id. Nor may they force or even request continuation of the litigation by “presenting] to the court objections to the compromise [plan].” Id. at 441. They may, however, bring “a subsequent action to enjoin enforcement of such [plan].” Id. at 444 (quoting 42 U.S.C. § 1973c (1976)). Stressing the statutory right of defendant-intervenors to commence their own action “to enjoin the enforcement of a precleared plan," we stated: “When plaintiffs [such as the County here] seek to resolve the controversy they have raised in the declaratory judgment action by submitting a different plan to the Attorney General, defendant-intervenors should not be faced with a Hobson’s choice of acquiescing in the plan and possibly foregoing their right to seek an injunction or raising their objections and foregoing attorneys’ fees for which they are otherwise eligible.” Id. Despite this clear statement, the district court, on remand, twice recalled defendantintervenors’ objections to the compromise plan. First, the district court acknowledged that defendant-intervenors met the first prerequisite for “prevailing party” status set out in our prior opinion: “the objective sought to be accomplished by the intervention ha[d] been attained.” 683 F.2d at 441 (emphasis in original). The district court nonetheless commented that it remained “mindful that intervenors’ proposed plan was not adopted and that they opposed the 1980 plan precleared by the Attorney General.” Commissioners of Medina County Texas v. United States, No. 80-241, slip op. at 2 (D.D.C. Sept. 22, 1982) [hereafter, Mem. Op.]. Second, and of principal importance, the district court said that, assuming arguendo defendant-intervenors’ threshold “prevailing party” eligibility for attorneys’ fees, their opposition to the 1980 plan was a disqualifying factor: [N]ot only did [defendant-intervenors fail to] promote or assist in the settlement, they vigorously opposed it in a ffA page letter [to the Attorney General] dated December 4, 1980, claiming that the settlement ... was discriminatory in purpose and effect. They clearly and forcefully registered their objections. The Attorney General dismissed these objections Mem. Op. at 4 (emphasis in original). We reiterate and clarify our prior instruction and trust that the district court will observe it on this second remand: appellants’ opposition to the 1980 plan was a matter appropriately presented to the Attorney General, not to the district court; that opposition does not dilute appellants’ claim to “prevailing party” status, nor is there any indication in this case that the opposition renders “unjust” an award of fees for appellants’ participation, on the side of the United States, in the County’s declaratory judgment action. II. In its second look at the fee application at issue, the district court supplied additional reasons for deciding that appellants were not prevailing parties and, even if they were, that a fee award would be inappropriate. Primarily, the district court found that, as defendant-intervenors, appellants “were content to ride ‘on the coattails’ of the United States” and “played at most a passive role” in the litigation. Mem. Op. at 3, 4. As the County acknowledges, the district judge based this determination on his “review of the pleadings and observance of counsel at four docket calls.” Brief of Appellees at 14. Despite our direction that he regard the record “in conjunction with the submissions of the parties on this issue,” 683 F.2d at 442, the district judge wore blinders. He looked to the surface record and noted his impression gleaned from status calls. His Memorandum Opinion indicates that he ignored appellants’ submissions. Appellants asked the district court for an opportunity to show, at a hearing, that their role in defending against the County’s case “was not passive but crucial in determining the outcome.” Motion of Defendant-intervenors for New Trial or to Alter or Amend Judgment at 2 (filed Oct. 4, 1982). Their attorney’s affidavit averred, inter alia, that defendant-intervenors’ vigorous participation in the depositions of plaintiffs was “crucial in the [County’s] decision to abandon [its] efforts to preclear the 1978 and 1979 redistricting plans.” Affidavit of Jose Garza at 2 (dated Oct. 1, 1982). The affidavit further stated that “[t]he Government's] opposition to the 1978 and 1979 plans [was] larg[e]ly due to information submitted by Defendant-intervenors.” Id. But the district judge made no inquiry extending beneath the record’s surface into the efforts of appellants to defeat preclearance of the 1978 and 1979 plans. He allowed no hearing, and did not even invite the views of counsel for the Attorney General on the nature and quality of defendant-intervenors’ contributions during the pendency of the litigation. It was an abuse of discretion to proceed this way. At the hearing we instruct the district judge to hold on remand, appellants should be accorded a full and fair opportunity to show what they have repeatedly alleged— that their participation in the district court was a substantial factor in the County’s decision to terminate its attempt to gain, through litigation, preclearance for the 1978 and 1979 plans. If appellants make such a showing, there can be no tenable argument, in the circumstances of this case, that they failed to prevail or that a fee award would be “unjust”; instead, the district court’s responsibility would be to award reasonable fees in accordance with this court’s prior pronouncements. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir.1982); Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc). For the reasons stated, the district court’s order denying fees is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered. . The County commenced the declaratory judgment action on January 25, 1980. Appellants here (defendant-intervenors in the district court) had earlier filed an action in the United States District Court for the Western District of Texas (Garcia v. Decker, No. SA-79-CA-414 (W.D.Tex. filed Oct. 25, 1979)) seeking to enjoin 1980 elections for Medina County Commissioners because neither the 1978 nor the 1979 plan had been precleared by the Attorney General. On January 18, 1980, the Texas district court issued a preliminary injunction against holding 1980 elections under either the 1978 or the 1979 plan. . We noted that, “[although the issue has apparently never been litigated, it is arguable that if [defendant-]intervenors consented to, or formally gave approval to, the 1980 Plan they would be estopped to seek an injunction in a separate suit.” 683 F.2d at 444 n. 16. . We do not establish a per se rule that, under no circumstances, can opposition to a settlement be relevant to a fee determination. There may be situations, for example, in which objections of a disingenuous kind or totally at odds with the settlement could be a basis for disqualification or at least some discounting of the right to fees. and approved the settlement on December 16, 1980. . Moreover, in determining whether appellants qualified as prevailing parties, he applied a standard more stringent than the one we instructed. He posed as the critical question: Were defendant-intervenors “the catalyst which caused [the County] to reach a settlement with the United States[?]” Mem. Op. at 2. We had pointed out, in words difficult to misinterpret, that “in a case that involves multiple defendants that has not proceeded to trial, it is almost impossible for the court to determine whose efforts persuaded the plaintiffs to abandon their litigation endeavors and take action that, if successful, would moot the case.” 683 F.2d at 442. Therefore, the district court should not have looked for the catalyst; instead, to determine whether defendant-intervenors had “prevailed,” the district court should have asked only: Did they “in fact actively participate[ ] in the proceedings]?]” Id. . The district judge also stated that “[t]he 1980 settlement was in no real sense a victory for intervenors.” Mem. Op. at 4. We disagree. The 1980 plan provided one precinct with a minority population 10% higher than any precinct in either of the preceding years’ plans. Defendant-intervenors sought more, it is true, but the fact that the Attorney General settled for less than intervenors sought does not render the gain achieved in any sense unreal. . The County points to the overlap in discovery and other work in this case and in the one appellants instituted in the Texas district court. Brief of Appellees at 6, 10; see supra note 1. Appellants have already collected attorneys’ fees in the Texas case, Brief of Appellees at 12, and acknowledge that they are not entitled to double fees for the same work. Their counsel asserted at oral argument, however, that their fee application requests no double recovery. The overlap noted by the County, while it bears on calculation of reasonable fees in this case, is scarcely a reason to deny appellants’ fee application.

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?

Asahel ABRAMS, Appellant, v. UNITED STATES of America, Appellee. No. 13172. United States Court of Appeals District of Columbia Circuit. Argued June 15,1956. Decided Sept. 13, 1956. Petition for Rehearing Denied Oct. 30, 1956. Mr. John A. Shorter, Jr., Washington, D. C., for appellant. Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll and Thomas Flannery, Asst. U. S. Attys., were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, and Richard J. Snider, Asst. U. S. Atty., also entered appearances for appellee. Before EDGERTON, Chief Judge, and FAHY and BURGER, Circuit Judges. EDGERTON, Chief Judge. This appeal is from a conviction for assaulting a policeman. 67 Stat. 95, § 205, D.C.Code, Supp. IV (1955), § 22-505. The defendant contended that at the time of the alleged assault, which he denied making, the policeman was arresting him illegally. The policeman was badly injured. It was necessary to remove part of one rib; two ribs were broken; the collar bone was separated from the shoulder blade, and had to be fastened with a screw; and there were spinal injuries. If, as the jury found, the defendant struck the policeman, he inflicted these wounds. There is no contrary contention. The defendant asked the court to instruct the jury that if the police were attempting an illegal arrest the defendant “had full right to resist [the] officers and prevent them from placing him in unlawful custody, and for the purpose of said resistance, was at liberty to use such force as was at his command and necessary to prevent said arrest.” The court said this instruction was “inapplicable to the issues of this case” and refused to give it. The requested instruction was too broad and in a sufficient sense inapplicable. “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.” United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 228, 92 L.Ed. 210. But the right to resist arrest does not extend to killing the officer, though it may reduce a homicide from murder to manslaughter. John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874. Neither does it extend, in such circumstances as were shown here, to the infliction of the bodily harm proved. As the Second Circuit recently said, in approving refusal to give an instruction similar to the one the District Court refused in the present case, “the use of ‘reasonable force’ only would have been open to defendants.” United States v. Angelet, 231 F.2d 190, 193. 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?

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

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?

Richard A. HOWERTON, Appellant, v. Hugh F. RIVERS et al., Appellees. No. 17989. United States Court of Appeals District of Columbia Circuit. Argued Oct. 8, 1963. Decided Nov. 21, 1963. Mr. Morton E. Yohalem, Washington, D. C. (appointed by this court) for appellant. Mr. R. Daniel Devlin, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Robert B. Norris, Asst. U. S. Attys., were on the brief, for appellees. Before Prettyman, Senior Circuit Judge, and Wilbur K. Miller and McGowan, Circuit Judges. . This section provides: “A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.” PER CURIAM. In 1954 appellant was convicted on two counts of violating the federal narcotics acts (21 U.S.C. § 174 and 26 U.S.C. § 2553(a)) and was sentenced to concurrent terms of three to nine years. On July 21, 1960, after serving approximately six years of the sentence, the appellant was conditionally released; he had earned 864 days of mandatory good time pursuant to 18 U.S.C. § 4161, and 269 days of industrial good time pursuant to 18 U.S.C. § 4162. On June 7, 1962, having found that appellant had violated his parole, the District of Columbia Parole Board revoked his parole pursuant to 24 D.C.Code §§ 205-206; deprived him of all good time earned, namely, 1133 days; and committed him to serve the full term expiring May 2, 1965. The maximum sentence imposed in 1954 normally would have expired on July 30, 1963. The appellant sought to challenge his recommitment by writ of habeas corpus in the District Court. That court granted appellee’s motion for summary judgment. Appellant contends that the District Parole Board should have acted pursuant to 18 U.S.C. § 4205 and 18 U.S.C. § 4207, rather than 24 D.C.Code §§ 205-206, in revoking his parole, since appellant was convicted for a federal crime rather than for an offense made criminal by the District of Columbia Code. This distinction becomes important to the appellant because it is argued that the parole board would have had discretion under 18 U.S.C. § 4207 to recommit appellant for less than the full remaining sentence, while under 24 D.C.Code § 206 there is no such discretion. Therefore, it is contended, since the Board purported to act under the D.C.Code, the action taken by it in this case was without benefit of any assumption by it of the existence of such discretion; and this constituted error. Appellant also argues that, in so far as the recommitment extends beyond the date upon which the maximum term imposed would have expired, the recommitment is not authorized by statute or, if so authorized, contravenes the Fifth Amendment. We find no merit in either contention. It is clear that the 1932 act— the predecessor to the present provisions —establishing the D. C. Parole Board, transferred authority over prisoners held in District prisons to the D. C. Board. It is also clear that the provisions of the District parole act, rather than the federal parole law, were to be applied to these prisoners. Sims v. Rives, 66 App. D.C. 24, 84 F.2d 871, cert, denied, 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936). See also, Story v. Rives, 68 App. D.C. 325, 97 F.2d 182, cert, denied, 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377 (1938); Gould v. Green, 78 U.S.App. D.C. 363, 141 F.2d 533 (1944); Noll v. Board of Parole, 89 U.S.App.D.C. 206, 191 F.2d 653 (1951); and Clokey v. United States, 310 F.2d 86 (4th Cir. 1962). The Fourth Circuit case of Gilstrap v. Clemmer, 284 F.2d 804, does not point towards a different result, because the court was there dealing with the question of whether the federal parole law or the D. C. parole law applied to a person convicted under the D.C.Code. Congress presumably can handle these varying situations in varying ways. Although it might be more logical for Congress to prescribe uniformity in the parole treatment of all United States prisoners, whether “D. C.” prisoners or “federal” prisoners, it is not urged upon us in this proceeding that it has done so. As for the second contention, the question is not yet ripe for review. It is true that the maximum sentence would have expired on July 30, 1963, if it had run without interruption. However, the record shows that the appellant left this jurisdiction in violation of his parole sometime prior to August 18, 1961, and went to New York. Moreover, he was there convicted of a crime and imprisoned in a New York prison for at least eight months, being released on May 15, 1962. Under no theory could it be contended that his 1954 sentence ran during this period. Thus, the maximum time originally imposed would not expire until sometime in 1964, even if appellant’s contention were accepted. In any case, we consider this court!s opinion in Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311, as dispositive on the merits of the argument. Affirmed. . This section provides: “A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. “The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the 'terms and conditions thereof. “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” . Section 205 provides: “If said Board of Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the retaking of such prisoner. Any officer of the District of Columbia penal institutions, any officer of the Metropolitan Police Department of the District of Columbia, or any federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning or removing him to the penal institution of the District of Columbia from which he was paroled or to such penal or correctional institution as may be designated by the Attorney General of the United States.” Section 206 provides: “When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. The Board may then, or at any time in its discretion terminate the parole or modify the terms and conditions thereof. If the order of parole shall be revoked, the prisoner, unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after 1ns return to custody. For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence. The time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced. * * * ” . The appellant’s brief points out this variance between the two parole schemes and assumes that such difference exists. . The decision turned primarily upon the second paragraph of 24 D.C.Code § 206 which reads as follows: “In the event a prisoner is confined in, or as a parolee is returned to a penal or correctional institution other than a penal or correctional institution of the District of Columbia, the Board of Parole created by section 723a of title 18, U.S.Code, shall have and exercise the same power and authority as the Board of Parole of the District of Columbia had the prisoner been confined in or returned to a penal or correctional institution of the District of Columbia.”

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"?

UNITED STATES v. HUMBLE OIL & REFINING CO. No. 7057. Circuit Court of Appeals, Fifth Circuit. Feb. 14, 1934. Erwin N. Griswold, Sp. Asst, to Atty. Gen., R. P. Hertzog, Atty., Bureau of Internal Revenue, of Washington, D. C., and H. M. Holden, U. S. Atty., of Houston, Tex. John Q. Weatherly, Prank Andrews, and E. J. Fountain, Jr., all of Houston, Tex., for appellee. Before BRYAN, HUTCHESON, and WALKER, Circuit Judges. WALKER, Circuit Judge. This is an appeal from a judgment in favor of the appellee for the alleged amount ($330,393.91) of an overpayment by it of income and profits taxes of tlio appellee and an affiliated corporation for tho calendar year 1918, with interest on that amount. A jury was waived, and the issues were tried by the court. By successive waivers the appellee waived the statute of limitations and extended the time for assessing and collecting the tax for the year 1918 to a date later than that of the disallowance by the Commissioner of Internal Revenue of appellee’s filed claim for a refund of the amount of income and profits taxes for the year 1918 alleged to have been overpaid by the appellee. In July, 1924, a revenue agent to whom the matter had been assigned submitted to the Bureau of Internal Revenue a report and recommendations as to his audit and investigation of the books and returns of the appellee for the calendar years 1918, 1919, and 1920. In that report the revenue agent showed a net loss of appellee for the year 1919 which he deducted from the net income disclosed by that report for the year 1918, with a result that no taxable income was shown by that report for the year 19J8. On March 11, 1925, the appellee filed a claim for refund of taxes illegally collected for the year 1918, the amount claimed being $282,000, “or such greater amount as may be legally refundable.” The reasons stated in that claim for the allowance thereof was that tho tax which had been paid was computed and paid without making proper and lawful allowances for depletion and realized appreciation, the respects in which the computation of appellee’s invested capital was claimed to be incorrect being specified. In that claim for refund the subjects of deducting 1919 net loss from 1918 net income or of crediting the amount paid by appellee on taxes for 1918 with the amount of an overpayment made by appellee were not mentioned. Between the date of the filing of that claim for refund and December 19, 1929, the date when the Commissioner of Internal Revenue advised the appellee of the final computation of its tax liability for 1918, the appellee filed with the revenue agent in charge additional or supplemental protests relating to tho above-mentioned report made by the revenue agent in July, 1924, and also to a supplemental report made by that revenue agent in February, 1928, which also showed that the 1919 net loss was carried hack to the year 1918, as provided hi the 1918 Revenue Act. Letters of the Commissioner of Internal Revenue to appellee with reference to the Commissioner’s audit as to appellee’s tax liability for 1918 showed that in that audit the 1919 net loss was applied as “a deduction under section 204 of tho Revenue Act of 1918,” 40 Stat. 1060 (which is set out in the margin ), and that the Commissioner’s audit was based upon the revenue agent’s reports for the years 1918, 1919, and 1920. On December 19', 1929, the Commissioner of Internal Revenue by letter advised appellee of the final computation of the tax liability for 1918, which disclosed that the correct tax for that year was $61,043.82) and that an overassessment of $330)39'3.94 thereby resulted, but that said overassessment could not be refunded because the refund thereof was forbidden by the statute of limitations. Schedules attached to that letter of December 19, 1939) showed that, in arriving at the amount of the 1918 tax, the Commissioner, after determining the net loss for 1919) deducted that net loss from the 1918 net income. By notice dated January 7, 1930, the Commissioner of Internal Revenue formally rejected appellee’s claim for refund. On February 7, 1930) the appellee and said affiliated corporation entered into a written agreement with the Commissioner of Internal Revenue. That agreement, which was approved by the Secretary of the Treasury, provides as follows: “Whereas, the said taxpayers have paid income and profits taxes for the calendar year 1918 m the amount of three hundred and ninety-one thousand, four hundred and thirty-seven dollars and seventy-six cents ($391,437.76); and “Whereas, it has been determined by the said Commissioner that the taxpayers would be entitled to a refund or credit of three hundred and thirty thousand, three hundred and ninety-three dollars and ninety-four cents ($330,393.94) of the above stated tax payment were it not for the bar of the statute of limitations; and “Whereas, the taxpayers deny that the bar of the statute of limitations prevents such refund or credit- . ™.., ,, , “Now This Agreement Witnessed, that the said taxpayers and said Commissioner of Internal Revenue mutually agree that ri it is determined by any court whose decision becomes controlhng on the said Commissioner of Internal Revenue that the bar of the statute of limitations does not prevent the credit or refund of said three hundred and thirty thousand, three hundred and ninety-three dollars and ninety-four "($330',393.94), then the total amount of the taxpayers’ income and profits tax liability for the calendar year 1918 is sixty-one thousand, forty-three dollars and eighty-two cents ($61,043)82); but if it is determined by any court whose deeision becomes controlling upon the taxpayers that refund or credit of said three hundred and thirty thousand, three hundred and ninety-three dollars and ninety-four cents ($330)393.94) is barred by the statute of limitations, or if the Commissioner’s determination as to the statute of limitations is not contested in court (it being mutually agreed that no issue other than the bar of the statute of limitations may be contested in court), then the total amount of the taxpayers’ income and profits tax liability for the calendar year 1918 shall be eon-sidered to be three hundred and ninety-one thousand, four hundred and thirty-seven do-lars and seventy-six cents ($391,437.76), the amount determined under either alternative set forth above to be final and conclusive if this agreement is approved by the Secretary of the Treasury, or the Undersecretary, within six months from the date this agreement is signed by the taxpayers.” The of tbe above set out a^tm_ meilt wag tll0 exereise of tbe power or alltll0r_ ity conferred by a statute (Revenue Act 1928, § 606; 45 gtat. 874 [ae US0A § 2606]} wbieb provides that tbe Commissioner of Internal is authorized to enter into an agreement in writing ^ any person relating te tbe of sueb perS0n in respeet te ^ internal revenue tax for any taxable period ending prior to tbe date of tbe agreement. tbat sueb agreement, when approved as this one was, is final and conclusive, except upon a showing of fraud or malfeasance or misrepresentation of a material fact; and that, in any suit, action, or proceeding, such agreement, or any determination, assessment, collection, payment, abatement, refund, or eredit made in accordance therewith, shall not be annulled, modified, set aside, or disregarded, That agreement showed that it had been determined by the Commissioner that the tax-P^e0™^Íbe ^ of $330,398.94 of the $391,437.76 paid by the taxpayers, on account of income and profit taxeg f(jr the 19,18 were it not £or tb& of limitati and tbat agreement in effeet ,ovided tbat tbe credit or refmld of gaid $330 393.94 sbould be allowed if it is detennined b courfc wllose deeision be_ comes controlli on tbe Commissioner of In. temal Reyenue ^ ^ bar the statute of limitations does not yent sucb eredit or rpfnnd The statute (26 USCA § 156) which makes the right to maintain in any court a suit or proceeding for the recovery of any intemal revenue tax alleged to have been erroneously or illegally assessed or collected does not purport to create a time limitation on the exercise by the Commissioner of Internal Revenue of his power to determine the amount of income or profits taxes due for any year and to allow a refund of the amount of taxes found to have been illegally collected. Tho Revenue Act of 1926, 44 Stat. 66, § 284 (a), (b) (1), (g), 26 USCA § 1065 (a), (b) (1), (g), contains the provisions set out in the margin. Those provisions are not affected by the Revenue Act of 1928, as shown by the first section of that act, 45 Stat. 795 (26 USCA § 2001). The provisions of the Revenue Act of 1926 which are set out in the margin show that it is the duty of the Commissioner of Internal Revenue, where there lias been an overpayment of any income or profits tax imposed by the Revenue Act of 1918, to credit tho amount of such overpayment against any income or profit taxes then due from the taxpayer, if the taxpayer has, within- the time prescribed, filed a claim therefor. Nothing in those provisions indicates that, as to the time of its exorcise, the power of the Commissioner of Internal Revenue in reference to crediting or refunding overpaid taxes is dependent upon anything except the filing by the taxpayer, within the time prescribed, of a claim therefor, those provisions containing no requirement that the prescribed claim contain a statement of the facts or theory upon which the claim is based. It seems that to authorize the Commissioner to allow the refund of overpaid taxes he need only have a timely filed claim therefor before him, whether that claim does or does not state the facts upon which an allowance of the claim may be based. Factors’ & Finance Co. v. United States (Ct. Cl.) 56 F.(2d) 902. But even if the quoted provisions of the Revenue Act of 1926 as to the filing of a claim are to be understood as referring to such a claim for refund as is in conformity with the Treasury Regulation as to claims for refund which was in force when appellee’s claim was filed (Regulations 69, art. 1304), the result is the same. Though the claim for refund filed by the appellee properly may bo regarded as failing to comply with the requirement of the regulation that “all facts relied upon in support of the claim * * * be clearly set forth in detail under oath,” it was open to the Commissioner to waive compliance with that regulation, to dispose of the claim on its merits, and in doing so to consider any fact having a bearing on the question whether the taxpayer is or is not entitled to a refund. Tucker v. Alexander, 275 U. S. 228, 48 S. Ct. 45, 72 L. Ed. 253; United States v. Memphis Cotton Oil Co., 288 U. S. 62, 71, 53 S. Ct. 278, 77 L. Ed. 619; Snead v. Elmore (C. C. A.) 59F. (2d) 312. It plainly appears that the Commissioner of Internal Revenue considered on its merits the question of overpayment by the appellee on its 1918 income and profits taxes, that, in computing the amount of sneh taxes for that year payable by the appellee, the Commissioner deducted the ascertained net loss of the appellee in the yea i-1919 from the ascertained net income of the appellee in the year 1918, and determined the amount of the overpayment made by the appellee on account of its income and profits taxes for the calendar year 1918. No statute of limitations affected the power or right of the Commissioner to -allow a refund to appellee of the amount of the overpayment so ascertained. Furthermore, the failure of appellee’s claim for refund to mention or refer to the subject of crediting on the amount of taxes due from appellee for the year 1918 the amount of an overpayment made by it on account of income and profits taxes for that year was not a failure to comply with the requirement of the above-mentioned regulation. Tho fact that appellee was entitled to such deduction or credit was not one relied upon in support of its claim for refund. It was not made to appear that in any computation hv a tax official of appellee’s income and profits taxes for the year 1918 was there a failure to credit tho amount paid by tho appellee on ae-count of its 1918 income and profits taxes with the amount of the ascertained overpayment. The claim of a right to a refund was based, not on a failure.of tax officials to allow a credit for an overpayment, but on an alleged failure to allow the amount of credit to which the appellee was entitled. At the time appellee’s claim for refund was filed it had been disclosed that the tax officials in computing appellee’s tax liability for the year 1918 allowed a credit for an overpayment of taxes for that year. It seems plain that, when appellee’s claim for refund was filed, appellee did not believe, and had no reason to believe, that a failure to allow such credit had occurred or would occur. The provision of the Treasury regulation as to setting forth in a claim for refund all facts relied on in support of that claim cannot reasonably be understood to require the setting forth of a fact not so relied on, or of a nonexistent fact which the taxpayer did not believe existed. The Commissioner of Internal Revenue having determined that appellee was entitled to a refund or credit of $330,393.94 if there is no statute of limitations barring such refund or credit, and there being no statute of limitations creating such a bar, the judgment under review was not erroneous. That judgment is affirmed. “If for any taxable year beginning after October 31, 1918, and ending prior to January 1, J920, it appears upon tho production of evidence satisfactory to the Commissioner that _ any taxpayer has sustained a net loss, tho amount of such net loss shall under regulations prescribed by the Commissioner with the approval oí the Secretary be deducted from the net income of the taxpayer for the preceding taxable year; and the taxes imposed by this title and by Title III for such preceding taxable year shall be redetermined accordingly. Any amount found to be due to the taxpayer upon the basis of such rodotormination shall be credited or refunded to tho taxpayer in accordance with the provisions of section 252. If such net loss is in excess of the net income for such, preceding taxable year, the amount of such excess shall under regulations pro-, scribed by the Commissioner with the approval of the Secretary be allowed as a deduction in computing tho net income for the succeeding taxable year.** Section 204 (b). “Sec. 284. (a) Whore there has been an overpayment of any income, ivar-profits, or excess-profits tax imposed by * * * the Revenue Act of 1918 * * the amount of such overpayment shall * * * be credited against any income, war-profits, or excess-profits tax or installment thereof then due from tho taxpayer, and any balance of such excess shall be refunded immediately to tho taxpayer. (b) (1) No such credit or refund sha.ll he allowed or made after three years from the time the tax was paid, in the ease of a tax imposed by this Act (Act Feb. 26, 1926), nor after four years from the time tho tax was paid in the case of a tax imposed by any prior Act, unless before tho expiration of such period a claim therefor is filed by the taxpayer. (g) If the taxpayer has, within five years from the time the return for tho taxable year 1917 was due, filed a waiver of his right to have tho taxes duo for such taxable year -determined and assessed within iive years alter the return was filed, or if he has, on or before June 15, 1924, filed such a waiver in re-si>oot of the taxes due for the taxable year 1918, then such credit or refund relating to the taxes for the year in respect of which the waiver was filed shall be allowed or made if claim therefor is filed either on or before April 1, 1925, or within four years from tho time tho ta.x was paid. * * * If any such waiver so filed has, before the expiration of the period hereof, been extended either by the filing of a new waiver or by the extension of the original waiver, then such credit or refund relating to the taxes for the year, in respect of which the waiver was filed shall be allowed or made if claim, therefor is filed ralrr (1) within four years from the time the tax lía s paid, or (2) on or before April 1, 1926, in the case of credits or refunds relating to the taxes for the taxable years 1917 and 1918. » » *»•

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?

Dr. Finn F. L’ORANGE, Plaintiff-Appellant, v. The MEDICAL PROTECTIVE COMPANY, Defendant-Appellee. No. 17605. United States Court of Appeals Sixth Circuit. May 2, 1968. Theodore R. Cubbison, Youngstown, Ohio, for appellant. George I. Meisel, Cleveland, Ohio, for appellee, Squire, Sanders & Dempsey, Cleveland, Ohio, on the brief. Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges. PHILLIPS, Circuit Judge. Appellant is a dentist practicing his profession in Cleveland, Ohio. For more than a quarter of a century he carried a policy of medical malpractice insurance with the appellee insurance company. This policy was purchased in 1938 and had been renewed each year. The insurance company cancelled the policy in 1965 after appellant had testified under subpoena in a malpractice suit resulting in a $25,000 verdict against another dentist who practiced in Youngstown, Ohio. The Youngstown dentist also was covered by a policy of medical malpractice insurance issued by the appellee insurance company. Appellant’s insurance policy was cancelled shortly after the return of the verdict of the jury and while a motion for a new trial was pending in the Youngstown suit. The cancellation of this insurance coverage gives rise to the present action for breach of contract. The question presented on this appeal is whether the use of a contractual power of cancellation for the purpose of intimidating a witness in a lawsuit contravenes public policy, and if so, does the insurer’s cancellation for such a purpose breach the contract. Jurisdiction is based on diversity of citizenship. Ohio law controls. The District Court sustained a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Rule 12(b) (6), Fed.R.Civ.P. On this appeal the facts as alleged in the complaint must be taken as true. For purposes of determining whether a cause of action has been stated, the complaint will be construed liberally. 2A, Moore, Federal Practice, 12.08. According to the terms of the cancellation clause of the policy the only two requirements for cancellation by the insurer were the giving of at least ten days’ notice and the refunding of the unearned premium. Appellant admits that in cancelling the policy the insurer complied with both of these requirements. The complaint alleges that the policy was cancelled to injure the plaintiff in his profession and, specifically, that “[s]aid cancellation was further intended to constitute coercion and intimidation of the plaintiff against future court appearance in ease No. 173254 or any other case. Said act was designed to impede and obstruct justice.” Excerpts from the complaint are made an appendix to this opinion. Appellant’s theory is that the cancellation of his malpractice insurance policy before its normal expiration for the purpose of coercing and intimidating him as a witness in a pending lawsuit, as well as future lawsuits, is contrary to the public policy of the State of Ohio and, as such, constitutes a breach of contract. The theory of the insurance company is that under Ohio law when the terms of an insurance contract give an insurer an unconditional right to cancel, the insurer has an absolute right to cancel without regard to purpose or motive, notwithstanding an attempt to affect either the willingness of a witness to testify or the substance of his testimony. In Ohio the courts have held that an insurance policy is to be treated as a voluntary contract which is subject to the public policy of the state. In John Hancock Mutual Life Insurance Co. v. Hicks, 43 Ohio App. 242, 247, 183 N.E. 93, 95, the Ohio Court of Appeals said: “A policy of insurance is a voluntary contract, and may be made upon such terms and conditions as are agreed upon by the parties thereto so long as they are not in conflict with public policy. The gist of many of the decisions of our Supreme Court in recent pronouncements has been to direct attention to the fact that policies of insurance are but simple contracts, and that it is the obligation of the courts to interpret them as such.” (Emphasis supplied.) The term “public policy” is not susceptible of precise definition. The Supreme Court of Ohio has stated that “public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good * * Porter v. Trustees of Cincinnati Southern Railway, 96 Ohio St. 29, 33-34, 117 N.E. 20, 21. This Court has held that the test of whether an insurance contract is void as against public policy under Ohio law is whether “it is injurious to the public or contravenes some established interest of society.” McCullough Transfer Co. v. Virginia Surety Co., Inc., 213 F.2d 440, 443 (6th Cir.). In Porter the Court made it clear that the violation of public policy is measured by the tendency of the contract to injure the public good rather than by actual injury under the particular circumstances. When contract litigation requires Ohio courts to determine public policy, the courts look to these sources: “Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man.” Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Kinney, 95 Ohio St. 64, 68, 115 N.E. 505, 507, L.R.A. 1917D, 641. The appellant dentist relies upon three sources for public policy against intimidating a witness. In addition to the “customs and conventions of the people,” appellant looks to judicial decisions and to the policy expressed in the Ohio Code which prohibits the intimidation of a witness: “Intimidating witness, juror, or officer. “No person shall, corruptly or by threats or force, attempt to influence, intimidate, or impede a person whose name has been drawn for jury service, a juror, witness, or officer of any court in the discharge of his duty, or corruptly or by threats or force obstruct or impede, or attempt to obstruct or impede, the due administration of justice therein.” Ohio Rev. Code § 2917.07. Imprisonment for as much as three years may be imposed on anyone who violates this statutory provision. In dismissing the complaint the District Court found that “the considerations which allegedly motivated the defendant to cancel plaintiff’s insurance policy would seem to constitute a corruption of the judicial process. * * *” Nevertheless, the District Court interpreted the Ohio case law as holding that where an insurance policy gives the insurer an unconditional right to cancel, a cancellation cannot be rendered invalid because of an attempt to threaten a witness, contrary to the public policy of the State. Both the insurance company and the District Court rely primarily on Gibbons v. Kelly, 156 Ohio St. 163, 101 N.E.2d 497, in support of the proposition that under Ohio law a cancellation clause giving the insured an unconditional right to cancel is valid, regardless of the motive or reason for the cancellation. The insurer would have this Court apply to the present case the proposition set forth in the second syllabus of Gibbons: “In the absence of legislation the rights of the parties on cancellation of an insurance policy pursuant to its terms are as fixed by the contract as set forth in the policy.” We agree that this syllabus is a correct statement of the holding of the Court in that case. Assuming the premise that the cancellation of the policy is to be “pursuant to its terms” it obviously follows that the rights of the parties are “fixed by the contract as set forth in the policy.” For reasons hereinafter stated we hold this rule to be inapplicable in the present case. According to the statement of the Ohio Court, the issue in Gibbons was whether the refund of unearned premium to the insured was a condition of effective cancellation of the particular policy of insurance under consideration. The Court held that under the terms set forth in the policy the refund of unearned premium was neither a condition precedent nor a condition subsequent to cancellation; the insurer was merely indebted to the insured for the amount of any unearned premium. The insurance company also relies on the ease of Plotner v. Buckeye Union Casualty Co., 94 Ohio App. 94, 114 N.E.2d 629, which follows the rationale of Gibbons v. Kelly. The cases of Gibbons v. Kelly and Plotner v. Buckeye Union state and apply the law of Ohio applicable to the refund of unearned premium upon the cancellation of insurance policies. We conclude, however, that the principles announced in those cases are inapposite to the present ease. In Gibbons and Plotner the Ohio courts were called upon to construe the contract language in order to determine whether the policy had been cancelled effectively. In the present ease appellant contends that public policy, a matter completely extrinsic to the contract language, renders the cancellation ineffective. The issue of the effect of public policy on the cancellation of an insurance policy is not raised in any of the Ohio cases cited by the insurer. The basic distinction between Gibbons and Plotner and the present ease is that in the former any injury caused by cancellation was economic and was limited to the particular individuals involved in the litigation; in the present case the injury which allegedly renders the cancellation ineffective is an injury to the public. It is re-emphasized that, as this Court previously has interpreted Ohio law, in order for an insurance contract to be void as against public policy it must either be injurious to the public or contravene some established interest of society. McCullough Transfer Co. v. Virginia Surety Co., Inc., supra, 213 F.2d 440, 443. In Gibbons and Plotner the party whose policy was cancelled did not assert any injury to the public nor any harm to an established interest of society. Under the allegations of the complaint in the present case, the plaintiff charges that the cancellation was undertaken for the purpose of undermining the integrity of the fact-finding process of the Ohio State courts. Sullivan v. Wilkoff, 63 Ohio App. 269, 26 N.E.2d 460, involved a contract in which a material witness in a lawsuit agreed to forbear in assisting a party to the lawsuit in the preparation of his case. The Ohio Court of Appeals held that the contract was against public policy and void “as being an agreement upon the part of the [witness] to obstruct, impede, and interfere with the administration of public justice.” 63 Ohio App. at 273, 26 N.E.2d at 462. Under the allegations of the complaint, appellant charges that the defendant attempted to threaten and intimidate him as a witness and that the cancellation of his malpractice insurance policy was the means by which the threat was effectuated. The insurance company argues that where jurisdiction is based on diversity of citizenship, federal courts should not declare the public policy of a state. However, in view of the statutory policy against intimidating a witness as well as the case law discussed above, the complaint does not present a situation in which this Court is required to speculate concerning the public policy of Ohio. The virtual necessity of expert testimony in medical malpractice cases plus the recognized reluctance of members of the medical profession to give such testimony render the public policy against intimidating a witness even more compelling in the present case. It cannot be doubted that the effective administration of justice requires that expert testimony be available in malpractice actions. Rush v. Akron General Hospital, Ohio App., 171 N.E.2d 378, 84 Ohio Law Abst. 292; Oleksiw v. Weide-ner, 8 Ohio App.2d 199, 195 N.E.2d 813; Modrzynski v. Lust, Ohio App., 88 N.E.2d 76, 55 Ohio Law Abst. 106. The philosophy of the Ohio Courts is set forth in 42 O.J.2d § 158: “The issue as to whether a physician has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts, on the theory that what is or is not proper practice in the examination and treatment of a patient, or what is or is not the standard of practice, or the usual practice and treatment in the community, is a question for experts, and must generally be established by their testimony.” In view of the hazards of malpractice actions, the availability of malpractice insurance is of extreme importance to dentists, physicians, and other professional men, and likewise important to their patients and clients. A member of the medical profession could hardly be expected to appear in court and testify for a plaintiff in any litigation if the penalty might be the cancellation of his own malpractice insurance. It manifestly is contrary to public policy to permit an insurance company to use policy cancellation as punishment against a doctor or dentist who appears as a witness to protect the rights of a plaintiff who has been wronged by another member of the profession. If the insurance industry can use the cancellation procedure to keep members of the medical profession from testifying as witnesses, malpractice litigation can be stifled. Having concluded that the insurer’s cancellation of appellant’s medical malpractice policy violates Ohio public policy insofar as it tends to threaten him as a witness in pending and future lawsuits, we come to the issue of whether the cancellation breached the contract. Appellant does not argue that the cancellation provision of the insurance policy is void. The contention is that the particular purpose for which the power of cancellation was exercised renders the cancellation void. The insurer argues that the insurance contract provided for cancellation by either party at any time upon the giving of appropriate notice and the refund of unearned premium. It is contended that, notwithstanding a violation of public policy, the insurer’s exercise of the power of cancellation did not breach the contract. A short answer to such a contention is well stated in Sullivan v. Wilkoff, supra, 63 Ohio App. 269, 273, 26 N.E.2d 460, 462: “ ‘The law guards with jealousy every avenue to its courts of justice, and strikes down everything in the shape of a contract which may afford a temptation to interfere with its due administration.’ ” The general rule is that an insurance contract is illegal and void when its purpose is to promote, encourage or effect a violation of law. Couch on Insurance 2d § 39.14. The following statement sets forth the controlling test under Ohio law as to whether a contract is void as against public policy: “The test by which it is to be decided whether the act upon which a penalty is imposed is also absolutely prohibited * * * is whether the act prohibited is detrimental to the welfare and morals of the public * * Warren People’s Market Co. v. Corbett & Sons, 114 Ohio St. 126, 138, 151 N.E. 51, 54. An attempt to threaten a witness is prohibited by criminal statute. Under the test set forth in Warren the threatening or intimidation of a witness is detrimental to the public welfare. In Warren the Court distinguishes between acts which are malum in se and acts which are malum prohibitum. See also Couch on Insurance 2d § 39.8. Acts which are malum in se are absolutely prohibited. Therefore, where the result is an act which is absolutely prohibited, it would be meaningless to distinguish between the creation of a contract and the use of an existing contractual power to accomplish such a purpose. A situation somewhat analogous to the present case is reported in Petermann v. International Brotherhood of Teamsters, etc., Local 396, 174 Cal.App.2d 184, 344 P.2d 25. In Petermann the Court recognized that where the term of employment is not fixed, the employment relationship is terminable at the will of either party. The Court held, however, that the right to discharge an employee may be limited by public policy. Thus, in order to effectuate a public policy against perjury, when the reason for the dismissal of an employee is his refusal to give false testimony, an employer could not discharge an employee even though the term of employment was not fixed. This Court also has had occasion to consider in the light of public policy a contract in which one of the parties attempted to use a power of eviction to accomplish a proscribed purpose. In United States v. Beaty, 288 F.2d 653 (6th Cir.), the government charged that in contravention of the Civil Rights Act certain landowners sought to interfere with the rights of their Negro tenants to register and vote by threatening to evict them under the terms of sharecropping agreements. The District Court concluded that it had no right to deal with the contracts or property interests of the parties. This Court held to the contrary, saying: “The statute does proscribe threats, intimidation, coercion or attempts to do so for the purpose of interfering with the right of a person to vote for any candidate for federal office. The threats, intimidation or coercion may take on many forms. If sharecropper-tenants in possession of real estate under contracts are threatened, intimidated or coerced by their landlords for the purpose of interfering with their rights of franchise, certainly the fact that the coercion relates to land or contracts would furnish no excuse or defense to the landowners for violating the law.” 288 F.2d at 656. We conclude that under the allegations of the complaint, if proved, the insurer’s cancellation of the appellant dentist’s medical malpractice insurance policy would constitute a breach of contract. To hold otherwise would enable the insurer to invoke the cancellation clause for the purpose of intimidating and threatening a witness, an act which is prohibited by the public policy of Ohio. Reversed and remanded for further proceedings not inconsistent with this opinion. APPENDIX EXCERPTS FROM COMPLAINT 5. On or about the 6th day of January, 1965, a subpoena was issued by the Clerk of Courts for the Court of Common Pleas, Mahoning County, Ohio and duly served upon Dr. Finn F. L’Orange, commanding him to appear at Mahoning County Common Pleas Court Room No. 5 as a witness. Said subpoena was caused to be issued by Mona Heschelman, plaintiff in case No. 173254. Mona Heschelman had commenced legal action against a Doctor-Dentist. Said case being one for alleged negligence or medical malpractice in treating the plaintiff. In response to said subpoena Dr. Finn F. L’Orange presented himself as commanded and was called by and did testify for and on behalf of plaintiff, Mona Heschelman against the doctor-dentist defendant. The jury on the 19th day of January, 1965 returned a verdict in favor of plaintiff, Mona Heschelman against the doctor-dentist for the sum of Twenty-Five Thousand Dollars ($25,000.00) and court costs. 6. At the time of the complained of breach of contract by defendant, Medical Protective Company, a Motion for a new trial had been filed and was pending in the Mona Heschelman ■ case. 7. Plaintiff says further that the defendant, Medical Protective Company in addition to having a contract of medical malpractice insurance with him also had a similar contract of medical malpractice insurance with the doctor-dentist defendant in Mahoning County Common Pleas Court Case No. 173254 filed by Mona Heschelman. On or about the 10th day of February, 1965 plaintiff, Dr. Finn F. L’Orange received a written notice from the defendant, Medical Protective Company that it was cancelling the aforementioned medical malpractice insurance, contract No. 372353 effective February 22, 1965. 8. Plaintiff further says that said cancellation was done willfully, with malice and with the purpose and intent to hurt, harm and injure the plaintiff in the practice of his profession. 9. Said cancellation was done for revenge and was intended to punish the plaintiff for responding to the aforementioned Court subpoena in Mahoning County Common Pleas Court Case No. 173254 and for testifying in behalf of the plaintiff in a medical malpractice case against a “fellow doctor.” 10. Said cancellation was further intended to constitute coercion and intimidation of the plaintiff against future court appearance in case No. 173254 or any other ease. Said act was designed to impede and obstruct justice. Said wrongful cancellation was intended as a threat and a warning to every member of the medical profession insured by this defendant that they could expect similar cancellation of their medical malpractice insurance if they testified in Court for a plaintiff in a medical malpractice case against a “fellow doctor.” Said threat and warning was for the purpose of impeding and obstructing the administration of justice in cases as yet unfiled and untried. 11. The cancelled insurance contract was for a specialty type of insurance protection and not readily obtainable wherefore it was difficult for the plaintiff to secure a replacement insurance contract, all of which has reflected upon and has damaged his professional reputation in his community. The delay in securing a replacement insurance contract created a period when it was necessary for plaintiff to practice his profession of dentistry without the protection afforded by said medical malpractice insurance, all of which caused him to suffer mental anguish, anxiety, humiliation, physical pain and suffering. 12. Because of the defendant’s wrongful cancellation of this contract, the plaintiff’s patients were denied the financial protection he attempted to provide for them in the event he was negligent in his treatment of them and caused them harm. 13. The insurance contract secured by the plaintiff to replace the contract wrongfully terminated by the defendant was at an increase in premium cost for the same protection. 14. Plaintiff says further that cancellation of the contract by the defendant, as an act of revenge and punishment for responding to a Court subpoena and testifying for a plaintiff in a medical malpractice case against a “fellow doctor” is in violation of public policy and constitutes a breach of contract. . Ohio Rev.Code 2917.07, supra. . This reluctance has been described as the “conspiracy of silence.” Cohn, Medical Malpractice Litigation, 52 A.B.A.J. 32 (1966).

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?

GENERAL DYNAMICS CORPORATION, QUINCY SHIPBUILDING DIVISION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor and Edith S. Murphy, Respondents. No. 78-1128. United States Court of Appeals, First Circuit. Submitted Sept. 7, 1978. Decided Nov. 7, 1978. Norman P. Beane, Jr., and Murphy & Beane, Boston, Mass., on brief, for petitioner. Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Gilbert T. Re-naut, Atty. and Mark C. Walters, Atty., U. S. Dept. of Labor, Washington, D. C., on brief, for respondent, Director, Office of Workers’ Compensation Programs. David G. Hanrahan and Gilman, McLaughlin & Hanrahan, Boston, Mass., on brief, for respondent, Edith S. Murphy. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. This is an appeal from an order of the Benefits Review Board (Board) of the United States Department of Labor affirming an Administrative Law Judge’s (ALJ) award of death benefits on a claim under the Longshoremen’s and Harbor Workers’ Compensation Act (Act), as amended, 33 U.S.C. §§ 901 et seq. Jurisdiction for this appeal is conferred by 33 U.S.C. § 921(c). The issue is whether claimant-respondent, Edith S. Murphy, is entitled to the benefits provided by the Act under section 909(b) as the “widow” of James V. Murphy, as that term is defined under section 902(16): The term “widow or widower” includes only the decedent’s wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time. Edith and James Murphy were married on March 4, 1947, and, thereafter, took up residence in Quincy, Massachusetts, where they lived together for seven years. This relationship was abruptly terminated when Murphy decamped after being found in bed at their home with another woman by the respondent. During the period 195A-1957, a pattern emerged in which Murphy would periodically return to live at the Quincy home and then leave again. In 1956, a son, Kevin, was conceived and born to the couple. Six weeks after the boy’s birth, Murphy left home again and never returned to live with his wife. During the following seventeen years, respondent did not see her husband often, although she usually heard from him around Christmas each year. During the last ten years of that period, respondent received no support from her husband, relying instead on employment and public assistance. Murphy was killed on December 27, 1974, in a work-related accident at petitioner’s shipbuilding yard. Respondent’s status as the legal wife of the decedent is not contested. Petitioner contends, however, that the spouses were not living apart “by reason of his desertion.” The term “desertion” is not defined in the Act and petitioner suggests that this court look to state domestic relations law to determine whether there was, in fact, a desertion at the time of decedent’s death. Petitioner relies on Gibson v. Hughes, 192 F.Supp. 564 (S.D.N.Y.1961), and Powell v. Rogers, 496 F.2d 1248 (9th Cir. 1974), for its position that state law governs the situation. We note that both of those cases presented the question of whether claimant and decedent were legally married, a threshold issue not present in this case. There is no need to refer to state domestic relations law, since the issue here is respondent’s eligibility for benefits under the Act and not the existence of grounds for divorce under state law. Thompson v. Lawson, 347 U.S. 334, 336, 74 S.Ct. 555, 98 L.Ed. 733 (1954). The application of state domestic relations law, developed in other contexts, to the solution of problems under workmen’s compensation statutes, produces results which at best have only a fortuitous relation to the remedial purposes of the compensation acts, and often are in direct conflict with them. When the state law does provide a definition of marital status deliberately shaped to compensation act purposes alone, there is no reason why that definition should not be applied under the federal statute in preference to one drawn from the state’s general domestic relations law. Albina Engine and Machine Works v. O’Leary, 328 F.2d 877, 879 (9th Cir. 1964). If we look to the state’s workmen’s compensation statute and case law for guidance, we find that the complete cessation of the husband’s visits to his home without the wife’s consent could be found to be a desertion many years later. Allen’s Case, 318 Mass. 640, 63 N.E.2d 356, 357 (1945). In Thompson v. Lawson, supra, 347 U.S. 334, 74 S.Ct. 555, 557, the Supreme Court stated, in reference to the precise question of whether one was a “widow” for purposes of the Longshoremen’s and Harbor Workers’ Compensation Act: Considering the purpose of this federal legislation and the manner in which Congress has expressed that purpose, the essential requirement is a conjugal nexus between the claimant and the decedent subsisting at the time of the latter’s death, which, for present purposes, means that she must continue to live as the deserted wife of the latter. Id. at 336-337, 74 S.Ct. at 557. The question is whether the requisite “conjugal nexus” could be found to exist seventeen years after the decedent ceased to live with respondent. Our review of the Board’s decision is limited to “errors of law, including the question of whether the Board adhered to the substantial evidence standard in its review of factual findings” by the ALJ. Bath Iron Works Corp. v. White, 584 F.2d 569 at 574 (1st Cir. 1978). See also Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Moreover, the Board’s decision supporting the ALJ’s application of a broad statutory term or phrase to a specific set of facts will be upheld if a reasonable factual and legal basis for it exists. Cardillo v. Liberty Mutual Co., 330 U.S. 469, 478-479, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Bath Iron Works Corp., supra, 584 F.2d at 574. In his decision, the AU relied on the fact that respondent, after the original separation, had continued to live at the same residence and received telephone and gas bills and filed income tax returns under her married name. The ALJ also relied on respondent’s uncontradicted testimony that she never considered obtaining a divorce, had no marital or meretricious relations with other men, and had not sought support from her husband for fear that he would be arrested. The record, furthermore, supports a conclusion that respondent was willing to resume the marital relationship. Not only did she allow him to stay whenever he returned home during the early years of the separation, but also received his calls each year around Christmas, went out to dinner with him, and accepted visits from him on two occasions as recently as two years before his death. Our review of the record leaves no doubt that the Board properly adhered to the substantial evidence standard in making its determination that respondent lived as the deserted wife of Murphy up to his death. Petitioner maintains that the facts lend themselves to the inference that respondent consented to the separation and adopted a separate and independent life-style. Such an inference is far-fetched. Unlike the situation in Thompson v. Lawson, supra, there was no evidence here at all of any attempt or desire by the respondent to terminate the conjugal relationship. But even if such an inference were tenable, “that the facts permit diverse inferences is immaterial; if supported by the evidence, the inferences drawn by the administrative law judge are conclusive.” Bath Iron Works, supra, at 573. The order is affirmed. . Mass.Gen.Laws Ann. ch. 152 § 32 provides: The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: la) A wife upon a husband with whom she lives at the time of his death, or from whom, at the time of his death, the department shall find the wife was living apart for justifiable cause or because he had deserted her.

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.

HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFL-CIO, et al., Respondents, Appellants, v. Ana DEL VALLE et al., Petitioners, Appellees. No. 6133. United States Court of Appeals First Circuit. March 6, 1964. Jonas B. Katz, Cincinnati, Ohio, with whom Brown & Gettler, Cincinnati, Ohio, was on brief, for appellants. Ginoris Vizcarra, San Juan, P. R., with whom Sarah Torres Peralta, Federico Rodriguez Pagan and Torres Peralta & Vizcarra, San Juan, P. R., were on brief, for appellees. Before WOODBURY, Chief Judge, and MARIS and ALDRICH, Circuit Judges. Sitting by designation. ALDRICH, Circuit Judge. The Puerto Rico local of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, found itself in the trusteeship of its International Union. The eighteen months presumptive period, section 304 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 464(c), having expired, certain members of the local brought a petition in the district court against both unions praying for dissolution of the trusteeship. Petitioners requested substantial interim relief, including the appointment of a monitor and the ordering of an election, under his supervision, of new directors of the local. Following a hearing on an order to show cause the district court denied all other interim relief, but appointed a monitor with authority to conduct “the election of the officers and the Board of Directors of the union who are to take over its affairs upon the termination of the present trusteeship * * The monitor was further to “supervise * * * the complete cessation of the trusteeship immediately upon the election and installation of the said officers and Board of Directors.” Respondents did not object to the order insofar as it involved the cessation of the trusteeship (in fact they so stipulated), but they did complain of and now appeal from, the court’s assumption of authority to appoint a monitor and thus supervise the election. Appellees raise, at the outset, the question of our jurisdiction. Appellants state that jurisdiction is based upon 28 U.S.C. § 1292(a) (1), asserting that the court’s order in effect constituted the granting of an injunction. Their position is that implicit in the order appointing a monitor to supervise “the” election was an implied directive that there be no election not so supervised. While we believe that implied injunctions are not readily to be found it is nevertheless difficult not to envisage appellants’ interpretation of the district court’s order as the practical one, or to think that any responsible union would have believed itself free to adopt a contrary course. Therefore, while we caution counsel in other cases not to take this one broadly, we do think that in “substantial effect” (Ettelson v. Metropolitan Life Ins. Co., 1942, 317 U.S. 188, 192, 63 S.Ct. 163, 87 L.Ed. 176) there was an injunction here. Turning to the merits, appellees assert that the district court has equitable powers, and that such include the appointment of a monitor. While monitorships may be an acceptable equitable device, see Monitors: A New Equitable Remedy? 70 Yale L.J. 103 (1960), the record discloses no special reasons for invoking that relief here. Indeed, none are even alleged. The court seems to have proceeded on the basis that the burden was upon respondents to show the contrary. We cannot infer from a statute containing no such affirmative provisions that the appointment of a monitor to supervise an election in connection with the dissolution of a trusteeship is automatic. The fact that petitioners had statutory authorization to bring a suit for termination of the trusteeship (we are persuaded by Judge Watkins’ excellent analysis in Executive Board, Local Union No. 28, I. B. E. W. v. I. B. E. W., D.C.Md.1960, 184 F.Supp. 649) does not go to the merits of the relief. Judgment will be entered vacating that portion of the court’s order appointing a monitor and directing an election. Final judgment to be entered in accordance with this opinion. . “The rights and remedies provided by this subehapter shall be in addition to any and all other rights and remedies at law or in equity.” 29 U.S.C. § 466. . The statutory scheme would appear to be the reverse. Of. 29 U.S.C. §§ 482, 483.

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"?

PARKER v. DELANEY. No. 4519. United States Court of Appeals First Circuit. Dec. 28, 1950. Edward C. Thayer, Boston, Mass., for appellant. Mamie S. Price, Sp. Asst, to Atty. Gen. (Theron Eamar Caudle, Asst. Atty. Gen., Ellis N. Slack and Lee A. Jackson, Sp. Assts. to Atty. Gen., George F. Garrity, U.S. Atty., and Philip T. Jones, Asst. U.S. Atty., both of Boston, Mass., on the brief), for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and FAHY Circuit Judges. Circuit Judge, District of Columbia Circuit, sitting by special designation. FAHY, Circuit Judge. Appellant paid a federal income tax for • 1945 -on the basis of a long term capital gain which he then thought he had realized from the disposition of certain apartment houses during that year. Thereafter, becoming of a different view, he applied for refund of the amount paid. Six months having elapsed without action on his application he brought suit in the District Court against the Collector of Internal Revenue, as authorized by United States Code Annotated, Title 28, § 1340. He appeals from judgment rendered for the Collector. The essential facts were stipulated. In 1933, 1934 and 1936, taxpayer made arrangements with two banks to take over and manage four apartment house properties held by the banks after foreclosure proceedings. The same general factual pattern of transactions applies to each property. It was deeded.by the bank to a straw man who acted for taxpayer. The straw gave the bank a note in a stated amount secured by a first mortgage on the property. He gave taxpayer second mortgages on each of the properties, and powers of attorney to operate the same. He also gave the taxpayer a deed to each of the properties, but these deeds were not recorded. Appellant for tax purposes reported each year all income and took all deductions to which he would be entitled as owner, including deductions for depreciation. In 1945 the mortgages were in default and by agreement the banks took back the properties, the straw giving quitclaim deeds. The second mortgages upon such properties were discharged of record. In his federal income tax return for 1945 appellant stated the sale prices to the banks to be the face amounts of the mortgages at the time of the conveyances to the banks. He reported the excess of these amounts over the amounts of the mortgages when he acquired the properties, less depreciation, as a long term capital gain. Appellant’s position essentially is that he realized nothing when the properties were reconveyed to the banks in 1945 and so there was legally nothing to tax as a gain under the applicable provisions of the Internal Revenue Code. These provisions are §§ 111 and 113. The former reads as follows: “(a) Computation of gain or loss. The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain, and the loss shall be the excess of the adjusted basis provided in such section for determining loss over the amount realized. “(b) Amount realised. The amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received.” 26 U.S.C.A. § 111. That there was a disposition of the properties by appellant in 1945 seems clear. The quitclaim deeds to the banks, though executed by the straw man, covered properties to which title had been conveyed to appellant though the deeds to him were unrecorded. The straw acted for him in transferring the properties to the banks. Appellant had regularly reported for tax purposes all income and had taken all deductions, including those for depreciation, to which he would be entitled as owner. The serious question is not whether there was a disposition within the meaning of § 111, as to which we are clear, 'but whether a gain was realized from such disposition. To state this question by paraphrasing sub-paragraphs (a) and (b) of § 111 with § 113 (b), referred to in the former, the question is whether taxpayer received from his disposition of the apartment houses money or other property of a value in excess of the amount of their adjusted basis, that is, in excess of the cost of the properties less depreciation. In applying the foregoing formula to the facts we may conveniently consider first the question of the cost of the properties to appellant. During the years of his operation of them he took deductions for depreciation on a cost basis equal to the amount of the first mortgage liens. In this court he expressly disclaims any contention that their value for depreciation purposes was less than those liens. These mortgages represented the prices paid, or the consideration, for the properties. The properties became subject to these liens and appellant considered them as the cost in deducting depreciation. Nothing appears to the contrary and we must, as did the court below, accept these figures of cost used by appellant. Indeed we do not understand him to dispute this treatment of the cost question. The depreciation deductions, taken on the basis discussed above, amounted to $45,280.48. We come to the time of disposition, therefore, with that amount having been set aside from gross income and put in capital account for replacement purposes, the justification for permitting depreciation deductions in computing taxable income. Detroit Edison Co. v. Commissioner, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286; see, also, Virginian Hotel Corp. v. Helvering, 319 U.S. 523, 63 S.Ct. 1260, 87 L.Ed. 1561. The adjusted basis in 1945 accordingly was $273,000 less $45,280.48, or $227,719.52. The question is whether more than this was realized from disposition of the properties in that year. If so it was taxable gain under § 113. It is here the real controversy arises. Appellant contends that he realized nothing or in any event nothing in excess of the adjusted basis of $227,719.52, though the amount of the mortgages then was $31,291.10 in excess of said adjusted basis. See footnote 2, supra. The burden of deciding whether or not the last named figure was gain we think has been assumed by Crane v. Commissioner, 331 U.S. 1, 67 S.Ct. 1047, 91 L.Ed. 1301. In that case there was a sale of improved real estate to a third party subject to the amount of the mortgage, plus $3,000 boot ■paid to the seller. The latter, like appellant here, was not personally liable on the mortgage. In the instant case the disposition was to the mortgagees instead of to a third party purchaser and no boot was paid. In the Crane case the taxpayer contended that all she received was the boot, and that its amount, less expenses of the sale, was the amount of gain realized. But the Supreme Court held that the taxpayer received benefit in the amount of the mortgage as well as the boot. We see no logical or practical distinction which takes the present case out of the rationale of that decision. If the amount of the unassumed mortgage in the Crane case was properly included in the amount realized on the sale, the amounts of the unassumed mortgages should be -held to have been realized on the disposition in this case. In both, such amounts had 'been considered in determining the unadjusted basis. Since in the Crane case taxpayer obtained the property by devise, the basis was the fair market value at the time of acquisition. § 113 (a) (5). In the case at bar the basis was cost. § 113(a). Depreciation had been computed and deducted on such amounts; and their relationship under § 113 to the question of gain realized under § 111 requires that account be taken of such value or cost in determining the realization on disposition. Furthermore, the property in the hands of appellant was relieved at the time of disposition of the mortgage liens and obligations. So far as appellant was concerned as owner these were paid even though he was not personally liable for them. The matter was so treated in the Crane case, 331 U.S. at page 13, 67 S.Ct. at page 1054. The added factor there, not present here, that boot was paid over and above the mortgage, is not material so long as the value of the properties was not less than the liens. Boot served to show this in the Crane case, but the payment of boot is of course not the only means of showing whether or not value is equal to or more than the liens on the property disposed of. This brings us to appellant’s contention that in fact the value was less and the Crane doctrine accordingly does not apply. He points out that the Supreme Court, in such a situation, reserved decision: “Obviously, if the value of the property is less than the amount of the mortgage, a mortgagor who is not personally liable cannot realize a benefit equal to the mortgage. Consequently, a different problem might be encountered where a mortgagor abandoned the property or transferred it subject to the mortgage without receiving boot. That is not this case.” Footnote 37, 331 U.S. at page 14, 67 S.Ct. at page 1054. This statement is predicated upon a situation where the value of the property when disposed of is less than the mortgage. There is no evidence to that effect in this case. The District Court treated the value as equal to the mortgages and we have no basis for doing otherwise. The critical point is that the value equaled the mortgages, not that it exceeded them, and on this factual matter we must on the record support the conclusion of the District Court. Appellant also contends that the property was abandoned to the banks and accordingly that there could be no capital gain within the terms of § 117, which govern the amount to be taxed as gain on the sale or exchange of a capital asset. Commissioner of Internal Revenue v. Hoffman, 2 Cir., 117 F.2d 987, affirming 40 B.T.A. 459; Warner G. Baird, 42 B.T.A. 970; Stokes v. Commissioner, 3 Cir., 124 F.2d 335. Under § 111, however, the gain maybe from the “sale or other disposition” of property and the property might not be a capital asset. The result is that while the tax of which refund is now sought was computed as though it had been a capital gain under § 117 (see footnote 2, supra) and not an ordinary gain, this advantage to the taxpayer does not alter the fact that a gain was realized within the meaning of § 111. We are not concerned with the computation of the amount to be taxed, that is, whether it was properly computed as a gain on the sale or exchange of a capital asset or should have been computed as an ordinary gain. The appellee Collector concedes that it is too late to make an additional assessment on the theory of ordinary gain. Accordingly it does not help appellant to term the transaction an abandonment if it was nevertheless a disposition within the meaning of § 111 upon which a gain was realized and if, as we hold, it was then of a value equal to the first mortgage liens. In these circumstances the unpaid amount of the liens is carried forward, as it were, from the time of acquisition to the time of disposition. They are treated as cost at the earlier time and so must be treated as value at the later time. The result in the end is that the taxpayer accounts to the taxing authorities for the gain realized by his deductions for depreciation in excess of his own investment. The judgment of the District Court is affirmed. . The transactions involved were those of a partnership, to the full interests of which taxpayer has succeeded. For convenience tbe transactions of the partnership are referred to in this opinion as those of the taxpayer, sometimes also referred to as the appellant. . The first mortgage liens totaled $273,-000 at the time of appellant’s acquisition of the properties. During the period of his operation he paid on these mortgages a total of $13,989.38. He charged and deducted depreciation in the amount of $45,280.48. When, therefore, the apartments were conveyed to the banks in 1945 the gain was $31,291.10. The disputed tax resulted. It was paid on 50 per cent-um of the excess, namely, $15,645.55, as the amount upon which a tax on a long term capital gain is levied under § 117 of the Internal Revenue Code, 26 U.S.C.A. § 117. The tax and interest for which refund is sought amounted to $4,533.31. . Under § 113(a) and (b), read with Treasury Regulation 111, particularly Sec. 29.-113(b) (1)-1, thereof, the adjusted basis for determining gain from the disposition of property is, in so far as here material, ■ the cost of the property decreased by the amount deducted for depreciation.

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.

UNITED STATES v. ROSENBLUM. Nos. 10127, 10128 and 10129. United States Court of Appeals Seventh Circuit. June 22, 1950. Albert Ward, Palmer K. Ward, Indianapolis; Ind., for appellant. Matthew E. Welsh, U. S. Atty., B. Howard -Caughran, Asst. U. S. Atty., Indianapolis, Ind., for appellee. Before- MAJOR, Chief Judge, ICERNER and DUFFY, Circuit Judges. DUFFY, Circuit Judge. Defendants Rosenblum, Stryk, and Weiss were indicted separately for the offense of having willfully and knowingly attempted to defeat and evade a large "part of his income and victory tax for the calendar year 1943, in violation of Sec. 145(b), Title 26 U.S.C.A., by filing a false and fraudulent income and victory tax return. A fourth indictment jointly charged these defendants with a conspiracy to evade his own as well as his co-defendants’ income taxes for the year 1943. The four indictments' were consolidated for trial, a jury was waived, and a trial had before the court, and a judgment of conviction was entered on each of the four indictments. Upon an appeal to this court the convictions on the three indictments charging income tax evasion were unanimously affirmed, but the judgment of conviction charging conspiracy was reversed by a divided court. 176 F.2d 321. Each of the three defendants unsuccessfully petitioned the Supreme Court for a writ of certiorari. Certiorari denied 338 U.S. 893, 70 S.Ct. 239, rehearing denied 338 U.S. 940, 70 S.Ct. 344. On January 31, 1950, this court amended its order and judgment dated June 13, 1949, by directing a judgment of acquittal in the conspiracy case. Judge Lindley of this court, who had presided at the trial of the defendants in the district court, was assigned to dispose of any matters pending in that court. He sentenced each defendant upon the substantive charge of whi-ch he had been convicted. After they were committed, each defendant filed a motion to cancel the judgment of conviction against him on the ground that the judgment was void and the sentence illegal because of their acquittal on the conspiracy count. These appeals are from a denial of these motions. Defendants argue that their acquittal on the conspiracy charge is res judicata against prosecution or punishment on their substantive offense. Each defendant claims that the points, questions and issues presented for determination in the substantive charge against him were identical with those litigated in the conspiracy charge, and that acquittal on the conspiracy charge is a bar to prosecution or punishment on the substantive offense. The members of this court did not have any difference of opinion as to the guilt of any of the three defendants upon the substantive offense of attempting to defeat and evade a part of his income tax for the calendar year 1943. The record fairly shrieked of their guilt. Two of the judges of this court who heard the former appeal held that the conspiracy indictment was good as against the attack made that it was practically identical to the indictment for the substantive offense, pointing out that conspiracy to commit a crime is a different offense than the crime which may be the object of the conspiracy. Two of the judges cited Pinkerton et al. v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, where the Supreme Court refused to accept the proposition that the substantive offenses were merged in the conspiracy. The only reason that the judgment of guilty on the conspiracy charge was reversed was that two judges of this court thought that the district court had received and relied upon ex parte statements, and admissions made by the defendants long after the conspiracy had ended; but we were all in agreement that any such statements or admissions made by any defendant could be considered in determining whether that defendant was guilty of the substantive offense. Judge Lindley was entirely correct in denying the motions to cancel the judgment of conviction of each defendant. We reach the further contention of the defendants that the district court’s retaxation of costs against them was beyond its power, and, therefore, illegal. In addition to the terms of imprisonment and fines, the district court, in imposing its sentences upon the defendants, exercised the discretion reposed in it under 28 U.S.C., 1940 Ed., Sec. 822, and ordered that the defendants each pay one-third of the costs of prosecution of the four cases. The ascertainment of such fractional amounts was not made on the basis of the taxation of costs separately in each of the four cases. Instead, the clerk ascertained the total costs and entered the same in the one case in which the three defendants were charged with conspiracy. In so handling the matter, the clerk committed the error of failing to tax the individual liability of the defendants for one-third of the costs in the other cases as required by the sentences imposed. Under Rule 36 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., however, this mistake or error could be corrected by the district judge at any time. The rule provides: “Clerical mistakes in judgments, orders or other parts of the record .and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” The court’s power to correct mistakes or errors accordingly is to be read into and to form a part of every sentence, judgment, order or other part of the record in any criminal case. In order to correctly tax the costs and effect their correct distribution in all of the cases, retaxation thereof by the district court was necessary, and on February 21, 1950, in connection with other proceedings in the cases, it took action to that end. On that date the district court effected retaxation by entering the following orders: “It is ordered that the items of costs taxed in the conspiracy case, No. 8832, as follows: Clerk’s costs, $65.10 and the attorneys’ fee of $20.00 are eliminated and cancelled; that the'items aggregating $2,-158.88 in said cause No. 8832, consisting of U. S. Marshal’s fees of $126.38 and witness fees of $2,032.50, be retaxed as . follows: one-fourth thereof is hereby re-taxed as costs in No. 8832 and, in view of defendants’ acquittal therein, defendants are relieved and discharged from any and all liability therefor. “It is further ordered that the other three-fourths of said sum of $2,158.88 be retaxed as costs as follows: One-third of said three-fourths of said sum shall be re-taxed as costs and added to the costs now taxed against each defendant in Causes No. 8829, 8830 and 8831.” The district court’s corrective action in so-retaxing the costs involved nothing more than the fixing and establishment of the liability for costs of the defendants individually in the several cases and on the basis originally prescribed and intended, with proper allowance for the defendants’ •acquittal in the conspiracy case. As it was proper for the district court to take such action “at any time,” the validity of the retaxation is not affected by the fact that when it was made the defendants had already begun service of their terms of imprisonment. The retaxation involved no increase, but rather a decrease, in defendants’ liability or punishment, since the sentences always included the provisions that each defendant pay one-third of a larger Sum, viz., the aggregate of the costs in all of the cases. It is considered that the retaxation of costs as made by the district court is valid and proper in every respect. The orders of the district court denying the motion of each defendant to cancel the judgment of conviction against him, and the order correcting the taxation of costs are Affirmed. . 28 U.S.C., 1940 Ed., Sec. 822 provides: “When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, ho shall be subject to the payment of costs; and on every conviction for any other offense hot capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution.” This statute, while in effect when the sentences were imposed, was superseded by 28 U.S.C.A. § 1918, effective September 1, 1948.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

AMERICAN MUT. LIABILITY INS. CO. OF BOSTON, MASS., v. COOPER. No. 6542. Circuit Court of Appeals, Fifth Circuit. Nov. 3, 1932. Geo. W. Yancey and Whit Windham, both of Birmingham, Ala., for appellant. It. H. Scrivner, of Birmingham, Ala., for appellee. Before BRYAN, FOSTER, and WALKER, Circuit Judges. Rehearing denied December 16, 1932. BRYAN, Circuit Judge. Appellee, against whom a judgment for $13,500 was obtained by Mrs. Alice Auman in an aetion for injuring her as a result of negligently driving his automobile (Cooper v. Auman, 219 Ala. 336, 122 So. 351), satisfied that judgment with interest, and recovered judgment over against appellant for the full amount, less $5,000 paid by it as the limit of its liability under a policy .of automobile liability insurance which it had issued to appellee and which was in force at the time of the accident to Mrs. Auman. The ground of recovery in the present suit was appellant’s failure and refusal to avail itself of the opportunities it had to settle Mrs. Auman’s claim for damages within the $5,000 limit named in the policy. There are many assignments of error, but it may safely be stated that no reversible error is made to appear unless the trial court erred in refusing appellant’s request for a peremptory instruction. Originally appellee’s cause of action was based Tapón appellant’s negligence in refusing to settle Mrs. Auman’s claim; but, upon a ruling by the trial court that the insured was not entitled to recover on the ggound of mere negligence, the declaration was amended so as to allege only that the insurer acted in bad faith toward the insured in refusing to effect a settlement within the $5,000 limit named in the policy. By the terms of the policy the insured was required to give written notice to the insurer as soon as practicable of any accident covered by the policy, and, upon request, to render any assistance in his power in the investigation, settlement, or defense of any case, aid in securing witnesses, and in prosecuting an appeal; but it was therein provided that he should not, unless at his own expense, pay or settle any claim, incur any expense, voluntarily assume any liability in respect of any such accident, or interfere in any negotiations for settlement or in any legal proceeding, without the insurance company’s written consent. In the event of legal proceedings to enforce any claim for damages arising from any accident covered by the policy, the insurer agreed to assume, “in the name and on behalf of the insured, but at its own cost and expense, and irrespective of the indemnity hereinafter provided for the entire management and defense of same.” The insurer reserved the right to settle within the limits of the policy. The accident occurred in the afternoon, while the insured was driving his automobile up a steep hill in a southerly direction on a street 40 feet in width, which at the time was not being much used. Shortly before the accident occurred, Mrs. Auman alighted from the automobile of a lady friend near the curb on the easterly side of the street, and, in crossing, away from a street intersection, to her home on the other side, according to at least one of the witnesses who testified in her behalf, she was dragged more than the length of the automobile. There was evidence for Mrs. Auman to the effect that the automobile in which she had been riding had moved away, and that there was no obstruction to prevent the insured from seeing her in ample time to avoid the accident. The insured testified that he did not see her until just at the very moment of the accident, although he said that he stopped his automobile within a distance of about 18 inches from the point where it struck her; but he did not claim that his view was obstructed by another automobile coming between him and Mrs. Auman. The insured promptly reported the accident to the insurer, upon a blank form furnished by it for that purpose, giving the names of three people who he said lived in the same block in which Mrs. Auman lived, and stated that there were several other important witnesses whose names he did not learn. Mrs. Auman, before she brought her suit, made an offer to the insurer to settle her claim for damages against the insured for $3,000. Up to that time no witnesses had been interviewed, and no investigation concerning the merits of the case had been made by or on behalf of the insurance company, although it was informed by the report of the insured that both Mrs. Auman’s forearms had been fractured, and that her right knee had been dislocated. Nevertheless the insurance company rejected Mrs. Auman’s offer of settlement, and countered with the proposition to pay her either $200 or the amount of her doctors’ bills in full settlement of her claim for damages. About a month before the trial of Mrs. Auman’s ease, the insurance company was advised by its attorney, who had taken charge of the litigation for the insured, that the case was a very serious one because of the severe nature of the injuries sustained, and that in the attorney’s opinion it should be settled for a reasonable amount; and, during that trial, though before the ease had been submitted to the jury, Mrs. Au-man’s attorney offered to accept in settlement either $4,000 oí $4,500. But the representatives of the insurance company who attended the trial said that they were not authorized to pay more than $3,500. Without communicating with the home office for authority to pay more, they insisted that, if a settlement were to be made, the insured would have to pay the balance; and this the insured declined to do. The present suit was brought within one year .after the Auman Case was affirmed by the Supreme Court of Alabama and the satisfaction of that judgment by the insured, but it was brought after the lapse of more than a year from the entry of that judgment in the state trial court. Pending the appeal, the insured paid two premiums of $175 each as his proportion of the cost of furnishing a supersedeas bond. It is well settled in cases of limited liability insurance that the insurer may so conduct itself as to be liable for the entire judgment recovered against the insured, although that judgment exceeds the amount of liability named in the policy. But the courts that have considered the question are not in agreement as to the nature and kind of proof which it is incumbent upon the insured to make in an action against the insurer for the excess which the insured has been compelled to pay over the amount named in the policy. Some of these eases hold that the insured is entitled to recover upon proof that the insurer in refusing to settle a claim for damages covered by the policy was guilty of negligence. Cavanaugh Bros. v. General Accident Fire & Life Assurance Corp., 79 N. H. 186, 106 A. 604; Douglas v. U. S. F. & G. Co., 81 N. H. 371, 127 A. 708, 37 A. L. R. 1477; G. A. Stowers Furniture Co. v. American Indemnity Co. (Tex. Com. App.) 15 S.W.(2d) 544; Attleboro Mfg. Co. v. Insurance Company (C. C. A.) 240 F. 573. Other decisions impose a heavier burden upon the insured, and deny recovery unless he can show that the insurer in refusing to make settlement acted in bad faith. New Orleans, etc., R. Co. v. Maryland Casualty Co., 114 La. 154, 38 So. 89, 6 L. R. A. (N. S.) 562; Wisconsin Zinc Co. v. Fidelity, etc., Co., 162 Wis. 39, 155 N. W. 1081, Ann. Cas. 1918C, 399; Auerbach v. Maryland Casualty Co., 236 N. Y. 247, 140 N. E. 577, 28 A. L. R. 1294. There are cases of the latter class which exonerate the insurer if, considering its own interest only and ignoring entirely the interest of the insured, it acts in good faith; but the prevailing rule seems to be that the insurer must act in good faith toward the insured. Brassil v. Maryland Casualty Co., 210 N. Y. 235, 104 N. E. 622, L. R. A. 1915A, 629; Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 231 N. W. 257, 235 N. W. 413. We are not concerned here with tbe question whether appellee could have recovered on the ground of mere negligence, since recovery is now sought only on the ground that appellant did not act in good faith toward him. In our opinion' the insurer cannot escape liability by acting upon what it considers to be for its own interest alone, but it must also appear that it acted in good faith and dealt fairly with the insured. The insurer, as it had a right to do under the policy, assumed exclusive control of the elaim against tbe insured, and took unto itself the power to determine for the insured all questions of liability, settlement, of defense and management before and during trial, and of appeal after final judgment. Wé are of opinion that this relationship imposes upon the insurer the duty, not under the terms of the contract strictly speaking, but because of and flowing from it, to act honestly and in good faith toward the insured. It was open to the jury to find that the insurer did not perform this duty. The insurer failed to interview the witnesses, or to make any effort to determine, whether there was any liability upon the elaim asserted against the insured for damages. It did not attempt to acquaint itself with the extent of Mrs. Au-man’s injuries. It was not in'position to act intelligently, or in fairness to the insured in considering the offer of settlement made before suit was brought. It ignored the advice of its counsel to settle before the case came on for trial. During the trial it offered to settle for $3,500, thus apparently admitting the liability of the insured for substantial damages; but it failed to havé a representative at the trial with authority to settle within the limit of liability named in the policy. It finally rejected a reasonable offer of settlement within that limit because the insured would not assume a part of its contractual liability. The jury were therefore warranted in finding that the insurer did not act in good faith toward the insured in considering Mrs. Auman’s elaim for damages, in refusing to settle, and in demanding that the insured contribute to the settlement which it could and should have made at its own expense. It is suggested that the case of the insured was barred by the statute of limitations of one year, which it is agreed is applicable to this case. The cause of action did not accrue until the judgment in favor of Mrs. Auman was affirmed by the Supreme Court of Alabama and was satisfied by ap-pellee, both of which events occurred within less than one year prior .to the bringing of suit. Jones’ Ex’rs v. Lightfoot, 10 Ala. 17; Attleboro Mfg. Co. v. Insurance Co., supra. The contribution by appellee to the cost of the supersedeas bond was made more than a year before the suit was brought, but it did not set in motion the statute of limitations. Appellee was bound by his policy to aid in prosecuting the appeal, and could not have sued before the suit against him was finally determined. 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?

UNITED STATES v. LOUISIANA et al. No. 10, Original. Decided May 31, 1960. Final Decree Entered December 12, 1960. FINAL DECREE. This cause having come on to be heard on the motion of the plaintiff for judgment and to dismiss the cross-bill of the State of Alabama, and having been argued by counsel, and this Court having stated its conclusions in its opinions announced on May 31, 1960, 363 U. S. 1, 121, and having considered the positions of the respective parties as to the terms of this decree, it is ordered, adjudged and decreed as follows: 1. As against the respective defendant States, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico more than three geographic miles seaward from the coast lines of Louisiana, Mississippi and Alabama, and more than three leagues seaward from the coast lines of Texas and Florida, and extending seaward to the edge of the Continental Shelf. None of the States of Louisiana, Texas, Mississippi, Alabama or Florida is entitled to any interest in such lands, minerals or resources, and each of said States, their' privies, assigns, lessees and other persons claiming under any of them are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. As used in this decree, the term “coast line” means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. 2. As against the United States, the defendant States are respectively entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico, extending seaward from their coast lines for a distance of three leagues in the case of Texas and Florida and three geographic miles in the case of Louisiana, Mississippi and Alabama, and the United States is not entitled, as against any of such States, to any interest in such lands, minerals or resources, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U. S. G. § 1313. 3. Whenever the location of the coast line of any of the defendant States shall be agreed upon or determined, such State shall thereupon promptly render to the United States a true, full, accurate and appropriate account of any and all sums of money derived by such State since June 5,1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands or resources described in paragraph 1 hereof which lie opposite to such coast line so agreed upon or determined, and, after said account has been rendered and filed with and approved by the Court, shall promptly pay to the United States a sum equal to such amounts shown by said account as so derived by said State; provided, however, that as to the State of Louisiana the allocation, withdrawal and payment of any funds now impounded under the Interim Agreement between the United States and the State of Louisiana, dated October 12, 1956, shall, subject to the terms hereof, be made in accordance with the appropriate provisions of said Agreement. 4. The cross-bill of the State of Alabama is dismissed. 5. All motions to "take depositions and present evidence are denied without prejudice to their renewal in such further proceedings as may be had in connection with matters left open by this decree. 6. The motion of the State of Texas for severance is dismissed. 7. The motion of the State of Louisiana to transfer the case to a district court is denied. 8. Jurisdiction is reserved by this Court to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree. The Chief Justice and Mr. Justice Clark took no part in the formulation of this decree.

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?

James Kenneth BALE, Plaintiff-Appellee, v. GLASGOW TOBACCO BOARD OF TRADE, INCORPORATED, Defendant-Appellant. No. 15670. United States Court of Appeals Sixth Circuit. Dec. 8, 1964. John M. Berry, New Castle, Ky., Carroll M. Redford; Redford & Redford, Glasgow, Ky., Berry & Floyd, New Castle, Ky., on brief, for appellant. Paul R. Huddleston, of Huddleston & Huddleston, Bowling Green, Ky., for ap-pellee. E. Gaines Davis, Jr., Frankfort, Ky., Clifford E. Smith, Smith, Reed, Yessin & Davis, Frankfort, Ky., on brief, amici curiae Danville Tobacco Board of Trade, Inc., and Carrollton Tobacco Board of Trade, Inc. Before CECIL and PHILLIPS, Circuit Judges, and McCREE, District Judge. CECIL, Circuit Judge. This appeal by the defendant-appellant, Glasgow Tobacco Board of Trade, Inc., is from a judgment of the United States District Court for the Western District of Kentucky, enjoining it from enforcing a provision of its by-laws against James Kenneth Bale, plaintiff-appellee. The plaintiff-appellee alleged and the court found that defendant-appellant’s system of alloting selling time to plaintiff-appellee in his new tobacco warehouse was an unreasonable restraint of trade in violation of the Sherman Act. (Sections 1 et seq., Title 15 U.S.C.) The parties will be referred to as plaintiff and defendant, as they were in the District Court. The facts were stipulated and are undisputed. The parties made a joint motion for summary judgment upon the pleadings, admissions and stipulation of facts. The court granted judgment to the plaintiff upon the motion. The action was properly brought in the District Court, jurisdiction being conferred on the court by Section 26, Title 15, U.S.C., and venue being established under Section 22, Title 15 U.S.C. Virtually all of the burley tobacco grown in the United States is sold at sixty-one tobacco auction markets, thirty of which are in Kentucky. The Glasgow tobacco auction market was established in 1909, and has been in continuous operation since that time. On August 11, 1937, the defendant was incorporated under Section 248.015, KRS, as a nonprofit-nonstock corporation. The incor-porators were the individuals and corporations then operating warehouses on the Glasgow market. All of the markets or boards of trade are subject to certain restrictions, statutory or otherwise, over which each individual board of trade has no control. These restrictions are not in issue here and we are not concerned with them, except as the method of selling tobacco at auction furnishes background for the presentation of the question involved on this appeal. After the tobacco is harvested by the farmers, it is delivered by them to a warehouse at one of the auction markets. It is at this point that the operators are in competition with each other. They seek the patronage of the producers of tobacco through the facilities and services they have to offer. “Producers in the area generally desire and undertake to deliver their tobacco to the warehouses as soon as possible during each selling season in order to gain the advantages of warehouse insurance and protection and to secure sales during the time that best prices prevail.” Stipulation, defendant appendix, pp. 20a-21a. Sales of tobacco at the markets begin in late November, usually about the 25th, and continue until all of the tobacco in the area served by the market is sold. This generally takes from four to six weeks. The basket is the unit of measurement in the warehouse for sales purposes. A “basket” is a stack of tobacco which may not exceed five feet in height or contain more than seven hundred pounds. (KRS 248.390.) The United States government requires all tobacco to be inspected and graded before it is sold. (Sections 511 et seq., Title 7 U.S. C.) The United States Tobacco Inspection Service assigns to each market graders who are referred to as “sets” of graders. The buying companies assign buyers to each market. One such buyer from each of the companies buying tobacco on a maket is known as a “set” of buyers. During the seasons 1961-62 and 1962-63, two sets of graders and two sets of buyers were assigned to the Glasgow market. “The amount of tobacco that can be sold on one market in a day depends ultimately on the capacity of the processing machinery located within convenient range of the market. After tobacco has been removed from the sales floor, it must first be sorted and cleaned, the moisture content must be precisely regulated, the stems must be removed, all in preparation for compressing the leaf into hogsheads for further curing and storing. Since the buying companies have only limited space for storage of the tobacco in loose-leaf form, these processes must be carried out shortly after it is purchased.” Opinion trial judge, 223 F.Supp. p. 741. For these reasons the two sets of graders and buyers on the Glasgow market will not grade and buy more than 2520 baskets per day. Consequently, it has been determined that the sales capacity of the Glasgow market is limited to 2520 baskets per day, or 1260 baskets per set of graders and buyers. Section 248.370 KRS provides that the rate of sales shall not exceed 360 baskets per hour and that the operating day of every warehouse shall be limited to five hours. At the maximum rate of sales per hour, with two sets of graders and buyers, 2520 baskets can be sold in three and one-half hours. This means that a basket is sold every ten seconds. The duration of sales per day is usually three and one-half hours and is set on a beltwide basis by the Burley Auction Warehouse Association. The market has no control over these restrictions, and, as heretofore indicated, they are not in issue here. Given this method of selling, which is a product of certain natural and economic forces, accepted by the parties hereto, the crucial element in tobacco sales on a market is the selling time allocated to each warehouse. KRS 248.015 authorizes a tobacco board of trade to adopt regulations for the conduct of the market including the allocation of selling time and selling space. KRS 248.035 requires that every warehouse offering tobacco for sale at auction must be a member of its local board of trade and membership in good standing is a condition precedent to the business of operating a tobacco warehouse. The defendant had adopted a by-law requiring each member of the Glasgow Board of Trade to conform to and observe all rules, regulations and bylaws of the corporation. On November 1, 1961, the defendant adopted a resolution providing for the allocation of selling time and selling space among the warehouses then doing business on the Glasgow market. At this time and until the entry of the plaintiff, hereinafter described, there were ten warehouses in the Glasgow market, the operators of which were all members of the Glasgow Tobacco Board of Trade. Article I of this resolution allocated selling time and space among the warehouses, on the basis of the proportion that the floor space of each warehouse bore to the total available floor space. Article II, as amended prior to the opening of the 1961-62 season, limited new warehouses and new additions to existing warehouses to twenty percent of the selling time and space to which they would otherwise be entitled under Article I. Each succeeding year the new warehouse or new addition was to receive an additional allocation of twenty percent until its total available floor space was allocated. It is this regulation that is challenged by plaintiff’s action. On Monday, April 22, 1963, plaintiff and his counsel met with the members of the Glasgow Tobacco Board of Trade and informed them of plaintiff’s intention to build a new warehouse on the Glasgow market. They requested an allocation of selling time and space for the 1963-64 season in the proportion that the floor space of his new warehouse would bear to the total available floor space, including his new warehouse, on the Glasgow market. Plaintiff offered to become a member of defendant corporation and to abide by all of the regulations, except the amended Article II. On May 28, 1963, plaintiff formally repeated his request by letter. This request was denied and plaintiff was informed that Article II would be enforced for the 1963-64 and subsequent selling seasons. With this knowledge in mind, plaintiff built a new warehouse which was ready for operation for the 1963-64 season. Plaintiff’s new modern warehouse, with adequate facilities in every respect, contained about 250,000 square feet of selling space. It was appraised at $500,-000 by representatives of the Owensboro National Bank, and the plaintiff borrowed $350,000 for its construction. Of this loan $140,000 was borrowed from the Owensboro National Bank and $210,-000 from the Small Business Administration. Half of the bank loan, with interest at six percent, was payable on demand. The remaining $70,000 of the bank loan, with interest at six percent, was payable in ten equal annual installments. The Small Business Administration loan was repayable in ten equal annual installments, with interest at four and one-half percent. Plaintiff’s commitments for the first year were: interest $17,850 and minimum principal payments $28,000 for a total of $45,850. Plaintiff’s warehouse was the first completely new warehouse to be built since 1956. Two existing warehouses built 46,495 square feet of additional space in 1961. This space was subjected to the limitation of Article II as amended. With the plaintiff’s new warehouse, the total available space on the Glasgow market for the selling season of 1963-64 was 991,624 square feet. Under the twenty percent provision of Article II, only 773,046 square feet was considered as qualified space. Under the defendant’s regulation, the plaintiff would have been allocated selling time in the proportion that twenty percent of his total space, or 50,000 square feet would bear to the total qualified space of 773,046 square feet. This would amount to approximately 6.77 percent of the total selling time for the first season. Without the limitation of Article II, the plaintiff would be entitled to selling time in the proportion that 250,000 square feet bears to the total space of 991,624 square feet, or approximately twenty-five percent of the selling time. Under the defendant’s restrictive regulations, the plaintiff’s commissions for the first year could not have exceeded more than $35,-000 or $36,000. The marketing of tobacco by auction is a method of marketing peculiar to the crop of burley tobacco, the principal money crop of the Kentucky farmer. These markets grew up over the years and certain customs, practices and usages became established. In later years, the legislature recognized these markets and wisely enacted legislation for the organization and operation of them to' the end that the product could be processed and marketed in an orderly way, with fairness to the producer, the warehouse operator and the buyer. (Sections-248.010-248.990 KRS.) The question presented here is whether the restraint imposed by Article II of defendant’s resolution of November 1, 1961, is an unreasonable restraint off trade, in violation of the Sherman Act. (Section 1, Title 15 U.S.C.) It should be noted here that we are-not concerned with a statute passed by-the Kentucky legislature, but rather with: a regulation adopted by the defendant in pursuance of the statute. The argument, therefore, that the Sherman Act does not restrain state action, as decided in Parker v. Brown, 317 U.S. 341, 63 5. Ct. 307, 87 L.Ed. 315, is not applicable to the facts of this case. It is claimed on behalf of the defendant that the tobacco auction warehouse business is a unique business and that because of certain limitations imposed on the warehouse operators, over which they have no control, the restraint here involved limiting the selling time of new warehouse operators is reasonable. In support of the restraint imposed herein as being a reasonable one, it is argued: that one with large financial resources, either cash or credit, can enter the market with a large warehouse and commandeer the limited selling time of the market to the point of usurping the rights of established businesses and eliminating them from the market; that the inevitable consequence of putting no restraint on new building operators is the destruction of competition rather than its preservation; and that the market should be given an opportunity to assimilate the shock of additional space in order to minimize as much as possible the injurious effects of such new buildings. In Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, the Court read into the Sherman Act the “rule of reason”; that is, unless the restraint complained of unreasonably restrained trade or commerce among the several states, there could be no violation of the Act, except in those cases of per se violations, not here applicable. That rule has been consistently followed. Whether or not a restraint is reasonable is a question of fact. Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683; White Motor Co. v. United States, 372 U.S. 253, 261, 83 S.Ct. 696, 9 L.Ed.2d 738. In Sugar Institute v. United States, 297 U.S. 553, at page 600, 56 S.Ct. 629, at page 643, 80 L.Ed. 859, the Court said of the Sherman Act: “Thus in applying its broad prohibitions, each case demands a close scrutiny of its own facts. Questions of reasonableness are necessarily questions of relation and degree.” In the Chicago Board of Trade case, the Court said, 246 U.S. at p. 238, 38 S.Ct. at p. 244: “The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” The Court said further: “To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.” We must, therefore, look to the. facts of this ease to determine whether the restriction imposed by Article II of defendant’s resolution was unreasonable. Here the plaintiff or any new entrant into the Glasgow market, or an existing member who might wish to enlarge his business, is prevented from utilizing his full investment for five years. Only twenty percent of it can be effectively used for the first year. This limitation on the fruitful use of a new investment would in the natural course of events discourage new investors rather than encourage them. It is pointed out that under the facts of the plaintiff’s investment, due to borrowed capital, that he could not hope to meet his commitments for interest and principal the first year. On the other hand, it is contended on behalf of the defendant that with a valuation of $350,000, alleged without proof to be more nearly the real value of plaintiff’s investment, under the twenty percent rule the anticipated profits for the first year would gross 10.7 percent profit. We do not think either of these calculations is determinative of the question presented here. As stated by the trial judge: “The regulation allotting selling time in accordance with only twenty percent of the new construction makes it problematical whether the addition to the market can be economically feasible.” It is not the purpose of the Sherman Act to guarantee an investor a profit but it is concerned that he not be handicapped by unnatural market restraints. We are of the opinion that the purpose and intent of the twenty percent rule was to preserve the status quo and suppress competition. Under the rule, the plaintiff was denied equality of opportunity to compete with the other warehouse operators for the business of the market. A substantial part of the market was foreclosed to him for the first years of his entry into the market. See International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; American Federation of Tobacco Growers v. Neal, 183 F.2d 869, C.A. 4; Gamco, Inc. v. Providence Fruit & Produce Building, Inc., 194 F.2d 484, C.A. 1. Reference has been made to Wilson v. Shelbyville Tobacco Board of Trade, Eastern District of Kentucky, No. 174 on the Frankfort Docket. The district judge in this case had knowledge of that case but commented that it was dismissed by agreement of the parties and that he did not know what the real basis of the controversy over the resolution in question may have been. Counsel for the Carrollton Tobacco Board of Trade in their brief amicus curiae and appendix thereto have set forth the record of this case at great length, together with a purported summary of the evidence taken before the trial judge on a motion for preliminary injunction. There is no published opinion in this case, the record is not before us, and we do not take judicial notice of cases on the dockets of District Courts. The district judge who decided the case now before us was not bound to follow the decision of his associate district judge, nor is it authority for us, except as the judge’s reasoning might be persuasive. Since we are not favored with a written opinion of the trial judge, we do not know what the specific facts of that case were which moved him to decide as he allegedly did. Counsel for the Carrollton Board in their amicus curiae brief have cited several district court cases in which restrictions have been found to be reasonable. It is claimed that Judge Swinford in deciding this case is out of step with his fellow district judges. Each of these cases, while having some facts in common with the case at bar, dealt with a restriction unlike the one before this Court. Other cases, cited on behalf of defendant are not in point for the same reason. Nor are cases cited by plaintiif dispositive of this matter, for they deal with the total exclusion from markets, monopolization of markets, or the abuse of monopoly power. As heretofore stated, the question of whether a restraint is reasonable or unreasonable depends on the particular facts of each case. As stated in the Sugar Institute case, supra, “each case demands a close scrutiny of its own facts.” The restriction in each case must be viewed in the light of all the facts and circumstances surrounding that case. The issue presented to the trial judge was a question of fact. He found that the conduct of the members of the Glasgow Board in adopting Article II of the resolution in question constituted an unreasonable restraint of trade. This conclusion drawn from the undisputed facts, in our opinion, is correct and not clearly erroneous. The function of the courts is not to formulate reasonable restraints of trade, but to enjoin the enforcement of those restraints that unreasonably restrain trade. The scope of this Court’s review is limited to determining whether the trial judge’s findings of fact, including the inferences drawn from undisputed facts, are clearly erroneous. Rule 52, Federal Rules of Civil Procedure; Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218. By the judgment of the District Court, the defendant was “enjoined from enforcing against the plaintiff a system of allotting selling time which provides that •only 20% of his floor space will be taken into account in the allocation during the first year with increments thereto of '20% as to subsequent years.” The defendant was “further enjoined from conducting any system of allotting selling time that discriminates against the plaintiff’s warehouse on the sole ground that .Tie is a new warehouse operator on the ‘Glasgow market.” This judgment was conditioned on the plaintiff’s performance of all conditions imposed by the laws of the Commonwealth of Kentucky. Judgment of the District Court is affirmed. . “A Tobacco Board of Trade shall be organized on every market at which tobacco is offered for sale at auction and each board shall have the objects, purposes, and powers to: promote a more orderly market for the sale of tobacco at auction; prevent market gluts by arranging for a more orderly flow of tobacco through the warehouses; encourage ethical practices in the auction system; support the continuation of the production control program; adopt bylaws or regulations defining voting rights of the tobacco board of trade members; collect dues and initiation fees to cover the operating expenses of the tobacco board of trade; adopt regulations for the conduct of the tobacco market including the allocation of selling time and selling space.” . See Footnote 1. . “Article II: Any new warehouse or warehouses, or any new additions to any warehouse or warehouses, or additional sales space which may have been built, completed, remodeled, and ready for use after the dose of any sales season and before the opening of the next sales season will be allotted for the first sale season after completion 20% of the number of baskets which the added floor space will provide, excluding allowance for driveways. Such allocation will be 20% of the total basket space available in the new or added or approved floor space for the next ensuing sale season, and the number of such additional baskets allotted for each succeeding year to be added to the previous allocation for each of the next four (4) years shall be the same as the number determined and allocated for the first year of such allocation. For clarity, with respect to additional floor space constructed by any of the warehouses now operating which additions have been or may be constructed subsequent to the 1960-61 sales season, there shall be added to the base number of baskets allocated to such warehouse as set forth in Article I herein 20% of the total basket space of the new addition for each year until 100% of the total basket space of the new addition is allocated to such warehouse and added to its present base allocation as set forth in Article I herein. The same basis of allocation of baskets shall be applied to any new warehouse which may be constructed subsequent to the date of the passage of this resolution.” . See Footnote 3. . “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or -with foreign nations, is declared to be illegal: * * . Cf. United States v. Trenton Potteries, 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (price fixing); Klor’s, Inc. v. Broadway Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (group boycotts); and United States v. Addyston Pipe & Steel Co., 85 F. 271, C.A. 6, aff’d 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (division of markets). . Robertson et al. v. Henderson (N.C.) Tobacco Board of Trade et al., U.S. Dist.Ct. for E.Dist. of N.C., Civil Action No. 342: Danville Tobacco Ass’n v. Bryant-Buehner Assoc. Inc., U.S.Dist.Ct. for W.Dist. of Va., Civil Action No. 518 (affirmed in part only 333 F.2d 202, C.A. 4); Winn Ave. Warehouse, Inc. v. Winchester Tobacco Warehouse, Inc., et al., E.D.Ky., 220 F.Supp. 741 (on appeal to this Court, decision rendered this same day, 339 F.2d 277) ; and Roberts et ux. v. Fuquay-Varina Tobacco Board of Trade, et al., D.C., 220 F.Supp. 608, 223 F.Supp. 212. . Rogers v. Douglas Tobacco Board of Trade, 244 F.2d 471, C.A. 5, 266 F.2d 636, C.A. 5; and Asheville Tobacco Board of Trade, Inc. v. F.T.C., 263 F.2d 502, C.A. 4. . American Federation of Tobacco Growers v. Neal, 183 F.2d 869, C.A. 4; Gamco, Inc. v. Providence Fruit & Produce Bldg., Inc., 194 F.2d 484, C.A. 1; American Tobacco Co. v. United States, 147 F.2d 93, C.A. 6, aff’d 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Aluminum Co. of America, 148 F.2d 416, C.A. 2; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L. Ed. 20; and United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236

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?

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. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.

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

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

What follows is an opinion from a United States Court of Appeals. 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"?

Edward O. LOEHRER, Appellant, v. Brady R. HARCLERODE, Jr., Appellee. Brady R. HARCLERODE, Jr., Appellant, v. Edward O. LOEHRER, Appellee. Nos. 8414, 8415. United States Court of Appeals Tenth Circuit. Oct. 31, 1966. Murrah, Chief Judge, dissented. Carleton A. Lathrop, Cheyenne, Wyo. (Carl L. Lathrop, Cheyenne, Wyo., with him on the brief), for Edward 0. Loehrer. Byron Hirst, Cheyenne, Wyo. (James L. Applegate and Richard B. Thomas, Cheyenne, Wyo., with him on the brief), for Brady R. Harclerode, Jr. Before MURRAH, Chief Judge, PHILLIPS, Circuit Judge, and CHILSON, District Judge. CHILSON, District Judge. On July 28, 1963, Brady R. Harclerode, Jr. was injured in an automobile accident while riding as a passenger in an automobile owned and driven by Edward 0. Loehrer. Harclerode instituted this action to recover damages from Loehrer for the injuries he sustained. The jury returned a verdict in favor of Harclerode in the amount of $13,500, and both parties have appealed. Defendant Loehrer’s appeal is docketed as 8414 and plaintiff’s appeal is docketed as 8415. The appeals have been consolidated for hearing and disposition and to avoid confusion we refer to the parties as they were in the lower court, that is, Harclerode, Jr. as plaintiff, and Loehrer as defendant. The accident occurred in Wyoming which at the time had a “guest statute” (§ 31-233 Wyoming Compiled Statutes 1957) which reads as follows: “Liability of owner to guest. — No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.” The plaintiff’s complaint contained two statements of claim, the first alleging ordinary negligence and based upon the theory that the plaintiff was not a guest but a paying passenger within the meaning of the Wyoming Guest Statute. The second claim alleged “gross negligence and wilful and wanton misconduct” and obviously was designed to state a claim if the plaintiff was determined to be a “guest” within the meaning of the Wyoming Statute. Briefly summarized, the evidence discloses that the plaintiff and one Trapanese had planned to go to the Frontier Days show at Cheyenne on July 28, 1963; the defendant, who was acquainted with the plaintiff but not with Trapanese, had planned to go to Estes Park the week-end of July 28, and asked plaintiff to go with him; plaintiff told defendant of his previous arrangements with Trapanese; the defendant replied that he would be interested in changing his plans, and proposed that all three, plaintiff, defendant and Trapanese, go to the rodeo together in his Corvette; plaintiff said that it was all right with him, but they should check with Trapanese; plaintiff introduced defendant to Trapanese who said it was “okay” with him. During the course of these conversations between the plaintiff, defendant and Trapanese, there was some conversation concerning the sharing of expenses which we will discuss in more detail later. The trial court submitted to the jury questions for special findings as well as a general form of verdict. The jury’s special findings were: 1) that there was an agreement between the plaintiff and the defendant to share the expenses of the trip and that plaintiff was a paying passenger and was not a guest in defendant’s car; 2) that the accident was not caused by either the gross negligence or the wilful and wanton misconduct of the defendant; 3) that the accident was caused by the ordinary negligence of the defendant. The jury returned a general verdict in favor of the plaintiff and against the defendant in the amount of $13,500. The defendant’s sole ground of appeal is that there is no competent evidence to sustain the jury’s finding that the plaintiff was a paying passenger and not a guest. The parties recognize the governing rule of law to be that the agreement to share expenses must have been a motivating factor for the transportation by defendant of the plaintiff in order to make plaintiff a paying passenger and not a guest. The trial court so instructed the jury without objection by either party. The question here involved is whether or not there is evidence from which the jury could reasonably infer that the agreement to share expenses (which the jury found existed) was a motivating factor in the defendant’s transporting the plaintiff from Denver to Cheyenne and return. If there is no substantial conflict in the evidence bearing on this question the determination of the question is not for the jury but is a question of law for the court’s determination. American Smelting & Refining Co. v. Sutyak, 175 F.2d 123 (10th Cir. 1949). A careful review of the evidence in this case discloses no substantial conflict in the evidence as it relates to the foregoing question. Both the plaintiff and the defendant testified in considerable detail as to the arrangements under which they, together with Trapanese, made the trip to Cheyenne. Trapanese did not testify. The plaintiff testified he and Trapanese were friends and fellow employees at the May D & F department store in Denver; about two weeks prior to July 28, 1963, he and Trapanese talked about going to the rodeo in Cheyenne; neither of them had an automobile in Denver; Trapanese made arrangements to rent a Volkswagen, and they were going to share the expense of the trip. The plaintiff testified further that he had become acquainted with the defendant four or five weeks before the accident and saw him occasionally thereafter; during the week before July 28 the defendant was shopping in the May D & F; he stopped by the plaintiff’s counter and since it was about lunch time they had lunch together. The plaintiff continued, “While we were having lunch he asked me if I had any plans for the next week-end, would I like to go to Estes Park in Colorado. I said it would be very enjoyable, but I’d already made arrangements to go to the rodeo with Mr. Trapanese upstairs. So he said at that time that it was possible for the three of us to go in his Corvette, and would I be interested in going * * * that he would be interested in changing his plans; instead of going to Estes Park, he would go to the rodeo, the three of us could go together. So I said that it was quite all right with me but we would check with Mr. Trapanese, and which we did, and I introduced Loehrer to Trapanese at that time and, of course, it was okay with Trapanese that we should go together, the three of us, to the rodeo. Q. What arrangements did you make for this trip at that time? — A. The matter of sharing expenses was discussed, and Mr. Trapanese and I decided that we would pay for the gas and oil and * * * if we came together in Lt. Loehrer’s car. Q. Did Mr. Loehrer agree to this? A. Yes, he did.” The plaintiff further testified that they had breakfast in Cheyenne; Trapanese paid for it; on the way home they stopped for gas just south of Cheyenne; he (plaintiff) paid for the gasoline and that it amounted to between $3 and $4. The plaintiff also testified that the sole purpose of the trip was to see the Frontier Days Rodeo and that “it was a pleasure trip altogether.” The defendant testified that his first contact with the plaintiff regarding the trip to Cheyenne was at the May D & F the Saturday before they went to Cheyenne. He testified further: “Q. Would you explain who was present and what was said? — A. We were downstairs in the coffee shop of May D. & F., Mr. Harclerode and myself. And I was thinking of going to Estes Park and I offered to — if he wanted to come along, since he was new in town, if he wanted to go along to Estes Park. And he said, well, no, that him and Mr. Trapanese had already had plans to go to Cheyenne, Wyoming for rodeo days. And I said, ‘Well, if you don’t mind, I will go along, I will drive up,’ since he said they were going to rent the car from May D. & F. And, well, he said this was fine with him, if it would be okay with Mr. Trapanese. And then he went upstairs and checked with him and he said it was okay. Q. Did you have any agreement at that time? — A. There was a discussion, sir, but as an agreement to specifics, no. Q. As to sharing expenses? — A. Yes, there was no specific — we had a discussion, but who was going to pay what or anything like this, no.” He further testified: “As close as I can recall, as I know, we each paid for our own individual breakfast” and that after the rodeo they got in the car and drove a short distance to a gas station and he pulled into the gas station to fill the gas tank. “Q. Was this your idea, or somebody else’s, to pull in for gasoline ? — A. Well, I told them what to put in the tank and to fill it up. Q. And was there any discussion about payment or who was going to pay? — A. Well, I offered to pay, and then Mr. Harclerode insisted and Mr. Harclerode paid for the gas.” This evidence does not support an inference that the agreement to share expenses was a motivating factor in the defendant’s undertaking to transport the plaintiff, Trapanese and himself from Denver to Cheyenne and return. The trial court should have determined as a matter of law that the plaintiff was a guest within the meaning of the Wyoming Guest Statute. Since the jury found the accident was not caused by gross negligence or wilful and wanton misconduct of the defendant, judgment should be entered in favor of the defendant unless the trial court committed error requiring a new trial. To determine this question we consider the plaintiff’s appeal. The plaintiff contends that the trial court erred in refusing to admit evidence which was offered for the purpose of showing that the defendant entered a plea of guilty to reckless driving in a criminal proceeding. If the trial court did in fact err in refusing to admit this evidence the case should be remanded for a new trial for such evidence if it had been admitted at the trial might have changed the jury’s determination of the question of whether or not the defendant was grossly negligent or that he was guilty of wilful or wanton misconduct. The plaintiff, to show that the defendant had pleaded guilty to reckless driving called Mr. Garfield, a Justice of the Peace in Cheyenne, Wyoming, to testify that criminal proceedings were instituted in his court against the defendant as a result of the accident, and to identify the docket containing the entries made in those proceedings. If the defendant did in fact enter a plea of guilty to reckless driving, evidence thereof was admissible under Wyoming case law as an admission against interest. Friesen v. Schmelzel, 78 Wyo. 1, 318 P.2d 368. Severin v. Hays, Wyo., 372 P.2d 1017. The docket was identified as Exhibit 26 offered by the plaintiff and refused by the trial court after hearing, out of the presence of the jury, the testimony of the Justice of the Peace and statements of counsel. From these proceedings it was developed that on July 30, 1963, charges of negligent homicide were filed against the defendant; on August 5, 1963, the defendant appeared with his counsel and requested a preliminary hearing; the preliminary hearing was held on September 21, 1963, at which time testimony was taken; the Justice of the Peace determined the evidence was insufficient to hold the defendant on the charge of negligent homicide and stated that he “would be willing to reduce the charge to reckless driving and find the defendant guilty; ” and defendant’s counsel advised the Justice of the Peace “That will be all right with us.” The docket entries originally made showed the following with reference to the hearing on September 21, 1963: “9/21/63 Defendant present with his attorney, James A. Tilker. State is represented by John Pattno, County Attorney. Witnesses sworn in, testimony given. On motion of John Pattno, County Attorney, Count #1 is dismissed. On motion of the Court, Count #2 is reduced to reckless driving. Defendant is sentenced to pay a fine of $96.00 plus $4.00 court costs.” On June 14, 1965, the Justice of the Peace made the following amendments to the docket: 1) The name of James A. Tilker as attorney for the defendant was stricken and in place thereof was inserted Carleton A. Lathrop; 2) At the bottom of the docket was added: “6/14/65 — Defendant consented to guilty plea. (Entered nunc pro tunc). Arthur L. Garfield J. P. #1.” The trial of this action started in the lower court on the same day as the amendments to the docket and the amendments resulted when plaintiff’s counsel pointed out to the Justice of the Peace that the docket showed no plea by the defendant to the reckless driving charge and the law required the docket to show the plea. The Justice of the Peace in his testimony before the trial court in answer to the court’s direction to tell what happened at the hearing on September 21, 1963, testified as follows: “Well, it please the Court, the defendant was represented by counsel, Mr. Lathrop, at the actual preliminary hearing, and the state was represented by Mr. Pattno, the county attorney. The evidence presented the Court was, in my opinion, insufficient to bind the defendant over. I made a statement, as I recall, from the bench, to the effect that this Court would be willing to reduce the charge — reduce the charge to reckless driving and find the defendant guilty. As I recall, Mr. Lathrop consulted with his defendant — with his client and said to the Court, ‘That will be all right with us.’ THE COURT: Well, did he plead? THE WITNESS: The defendant did not make any statements in my court. THE COURT: Well, was a plea entered ? THE WITNESS: To the best of my recollection, Your Honor, that was exactly what happened, and then I proceeded to fine the defendant and the fine was paid, and that is all that occurred.” This testimony discloses no arraignment of the defendant on a reckless driving charge and no plea thereto. His testimony of what took place at the hearing did not justify the amendment of the docket to include “Defendant consented to guilty plea.” The most that can reasonably be inferred from this testimony is that the Justice of the Peace after hearing the evidence determined that evidence did not justify a charge of negligent homicide but did justify a finding that the defendant was guilty of reckless driving; that the Justice of the Peace proposed to reduce the charge to reckless driving and find the defendant guilty thereof and the defendant through his lawyer advised the Justice of the Peace he had no objection to this procedure. This does not permit a conclusion that the defendant pleaded guilty to reckless driving. It is a general rule of law that a court may correct errors in its docket and Wyoming follows this general rule, (Bales v. Brome, 56 Wyo. 111, 105 P.2d 568) but we note that the Wyoming Supreme Court in that case at page 573 of the Pacific Report recognized another general rule which is that in the exercise of the power of amendment the court is not authorized to do more than make its records correspond to the actual facts. In this case the docket was amended some twenty months after the hearing was held; the amendment was made solely upon the memory of the Justice of the Peace without any supporting written memoranda or documents or records made at the time; the amendment was made without notice to the defendant who was a party to that proceeding and without an opportunity on his part to be heard, and the amendment made does not correspond with what the Justice of the Peace himself testified occurred at the hearing. We conclude that in these circumstances the trial court properly refused the offer into evidence of Exhibit 26 or the portion thereof which states the defendant “consented to guilty plea.” Plaintiff contends in his brief that the plea of guilty at the hearing on September 21, 1963, could be proven by oral testimony of the Justice of the Peace as well as the docket. Assuming this to be true we point out that the Justice of the Peace did not testify that the defendant entered a plea of guilty to reckless driving nor does his testimony of what took place justify the drawing of an inference that he entered such a plea. The case is remanded to the District Court with directions to enter judgment notwithstanding the verdict in favor of the defendant and against the plaintiff and defendant have judgment for his costs.

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?

THOMPSON v. FEDERAL FARM MORTG. CORPORATION et al. No. 12656. Circuit Court of Appeals, Eighth Circuit. Feb. 10, 1944. R. Brown, of Crestón, Iowa, for appellant. Clair L. Kintz, of Omaha, Neb. (G. Belvel Richter, of Waukon, Iowa, Lewis W. Bicknell, of Webster, S. D., and Harold J. Reed, of Omaha, Neb. on the brief), for appellees. Before STONE, JOHNSEN, and VAN VALKENBURGH, Circuit Judges. VAN VALKENBURGH, Circuit Judge. In March 1936, appellant purchased the land involved, aggregating 360 acres, situated in Allamakee and Winneshiek Counties, Iowa, where appellant resides. The purchase price for the land was found by the court to be nominally $11,800. The farm was encumbered by mortgages in the principal sum of $10,800 with accumulations of interest. The deed to appellant conveyed the land subject to thése encumbrances without assumption by the grantee. Debtor appellant paid the difference in cash, — between $700 and $800. The said mortgage indebtedness consisted of a first mortgage of $7,000 to appellee Federal Land Bank, and a second mortgage of $3,800 to appellee Farm Mortgage Corporation, which latter appellee foreclosed its mortgage in the state court, and purchased the real estate at foreclosure sale February 27, 1942, for the sum of $3,000, subject to said first mortgage. February 26, 1943, appellant filed her petition under Section 75, subs, a to r, of the Bankruptcy Act, 11 U.S.C.A. § 203, subs, a to r. April 10, 1943, appellee Federal Farm Mortgage Corporation filed in the said district court a petition asking for a denial and dismissal of appellant’s petition on the ground- that appellant was not a farmer as defined by the Act. A hearing was had on this petition before Judge Scott on April 29, 1943. On May 12, 1943, the district judge entered his findings of facts and conclusions of law, judgment that appellant was not a farmer, and dismissed her petition. May 27, 1943, appellant appealed from this judgment. October 12, 1943, appellees filed with this court a motion to dismiss this appeal upon the ground that it was then moot, appellant having permitted the lands to pass from the jurisdiction of the bankruptcy court. The court denied this motion without determination of the merits, which might be considered in connection with the jurisdictional question presented. Appellant has urged nominally a number of points of error upon which she has elected to rely, but the entire controversy resolves itself into the question of whether she was a farmer within the meaning of Section 75, sub. r, when she filed her petition and sought relief under the provisions of that Act. Neither appellant nor her husband had'ever engaged in farming prior to the purchase of this land. The record is barren of information as to appellant’s prior activities except that, in 1940 and 1941, she says that she served as a caterer for parties in her home in Waukon. Her husband testified at the hearing that since 1938 he had been employed continuously away from Waukon, with State and Federal Employment Service, except during vacation periods. That during 1939, 1940 and 1941, his wife had the supervising of farming operations in co-operation with himself. A careful examination of the testimony at the hearing discloses that such alleged supervising was confined to week-end visits on Saturday afternoons and Sundays, with occasional days in addition thereto. Mr. Thompson testifies that “the ultimate object of Mrs. Thompson and I in purchasing this farm was to make it our home”. However, the fact that during the six years intervening between the purchase and the foreclosure sale on February 27, 1942, appellant and her husband took no steps .to establish a home and residence upon the farm, confining their operations and so-called supervisions to week-end and vacation visits, tends to discredit this testimony. During all this period, as found by the court, appellant and her husband maintained their home at Waukon, with the exception of one period at Dubuque, when the employment in State and Federal Employment Service demanded. The evidence at the hearing does not support appellant’s statement that they lived “half and half on farm and in town”. ' Debtor, through her husband, paid only between $700 and $800 of the purchase price in cash. No records of farming operations were presented and they conceded that they made very little profit on the farm. At the time the purchase was made the farm was highly encumbered, and without prospect of successful operation. The agricultural portions were rented for short periods to several parties during some of the years. Mr. Thompson testifies that in 1937 and 1938 the farm was managed on stock-share lease to one Gilman Reed. That in 1939, 1940 and 1941, his'wife and he operated the farm themselves. But Mr. Oscar Christopherson occupied the crop land during most of these years; Thompson was continuously engaged in his Employment Service, and he and his wife visited the farm only occasionally on weekend periods. In his argument counsel for appellant “contends she is a farmer within the special definition of Section 75, sub. r, as defined in the Beach case”. That case is found in First Nat. Bank & Trust Co. v. Beach, 301 U.S. at page 435, 57 S.Ct. 801, 81 L.Ed. 1206. Subsection r of Section 75 defines the term “farmer” as follows: “The term ‘farmer’ includes not only an individual who is primarily bona fide personally engaged in producing products of the soil, but also any individual who is primarily bona fide personally engaged in dairy farming, the production of poultry or livestock, or the production of poultry products or livestock products in their unmanufactured state, or the principal part of whose income is derived from any one or more of the foregoing operations * * *; and a farmer shall be deemed a resident of any county in which such operations occur.” In the Beach case [301 U.S. 435, 57 S.Ct. 803, 81 L.Ed. 1206] the Supreme Court says: “In every case the totality of the facts is to be considered and appraised. We pass to that appraisal here. “Beach, the respondent, must be held, when the facts are viewed in combination, to have been ‘personally’ and ‘primarily’ engaged in farming operations. “He was in that business or in none. He was either a farmer or a man of leisure. Cf. In re Glick [7 Cir.], 26 F.2d 398, 400. But the stipulation makes it clear that this last he certainly was not. He was in direct or personal possession of forty-eight acres, one-fourth of the large farm which had been in his family for years. A substantial part of this acreage he cultivated with his own labor, or applied, again with his own labor, to other agricultural uses. He did this, not for diversion or only in spare hours, but as an engrossing occupation, consuming in the words of the stipulation, ‘the major portion of his time.’ The products of his toil were food for him and his dependents, and the farmhouse was a home.” This description of Beach has no application to appellant and her husband. Neither of them had theretofore been farmers in any sense of the word. Neither of them was personally and primarily bona fide engaged in farming operations, as an engrossing occupation, nor for the major portion of their time. The products of their “toil” furnished no food for them or their dependents, nor was the farmhouse their home. We join both husband and wife in this discussion because, while he claims to have been in exclusive authority for and on behalf of his wife during this farm program, appellant herself confined her activities to those of a normal housewife. In no branch of the statutory definition does appellant qualify as a farmer within the contemplation of the Act. The trial court had overwhelming support for its findings and conclusions. The provisions of this Act for agricultural composition or extension was intended as a temporary measure for relief of hard pressed farmers by affording an opportunity for rehabilitations. McLean v. Federal Land Bank of Omaha, 8 Cir., 130 F.2d 123. The test in determining whether a debtor seeking relief under this Act is a farmer within its meaning, is whether he is, or was, either primarily bona fide personally engaged in the prescribed agricultural operations, or whether the principal part of his income is derived from such activities. In re Horner, 7 Cir., 104 F.2d 600. In the McLean case, supra, this court further held: “In order to qualify as a ‘farmer’ entitled to benefits of Bankruptcy Act provision for agricultural composition or extension proceedings, some actual connection with the farm besides a mere equity therein newly acquired for the purpose of taking advantage of the act is necessary, and what will establish such connection is a matter of fact to be determined upon consideration of the entire situation presented in a particular case.” Where the evidence in proceeding for agricultural composition or extension supports the finding that the debtor is not a farmer, the district court is without jurisdiction to adjudicate the debtor a bankrupt. Mulligan v. Federal Land Bank of Omaha, 8 Cir., 129 F.2d 438, 441. We are convinced that the cases are generally consistent upon this point when read with due relation to the facts. First National Bank & Trust Co. v. Beach, 301 U.S. 435, 441, 57 S.Ct. 801, 81 L.Ed. 1206. In his brief counsel for appellant charges that the trial court erred in holding that the vocation of the husband controlled and fixed the vocation of the wife, appellant herein. We find no such holding by the court, and appellees expressly concede that in Iowa a married woman may conduct business in her own name as though she were unmarried. That specification may therefore be disregarded. In view of our conclusion upon the jurisdictional question presented by this appeal, we find it unnecessary to pass upon the motion to dismiss upon the ground urged in appellees’ motion filed October 13, 1943. The trial court found that appellant was not a farmer within the meaning of Section 75 of the Bankruptcy Act at the time of filing her petition; • concluded therefore that the court was without jurisdiction of the matter and dismissed the petition. The record contains full support of this action, and the judgment appealed from 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?

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

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

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Robert Y. MOFFAT, Sr., and Grace S. Moffat, Respondents. No. 15867. United States Court of Appeals Third Circuit. Argued Oct. 31, 1966. Decided March 6, 1967. William A. Friedlander, Atty., Dept, of Justice, Tax Div., Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Attys., Dept, of Justice, Washington, D. C., on the brief), for petitioner. David B. Buerger, Pittsburgh, Pa. (William Y. Rodewald, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., on the brief), for respondents. Before GANEY, SMITH and FREEDMAN, Circuit Judges. OPINION OF THE COURT GANEY, Circuit Judge. The Commissioner of Internal Revenue seeks a review of the Tax Court's decision allowing the taxpayer an ordinary deduction of $544,000 as a business bad debt for the year 1960. The issues posed are: (1) Was the taxpayer’s leasing of coal lands to a corporation a business within the meaning of the Internal Revenue Code of 1954? And if so, (2) Was his pledging of a future award for the repayment of loans made by the corporation proximately related to that leasing business within the meaning of § 166(d) (2) of that Code? The underlying facts are not in dispute. In 1953, taxpayer purchased tracts of coal and surface lands and coal mining structures and equipment located thereon in Lackawanna County, Pennsylvania. From that time to September 30,1957, he engaged in the business of mining and selling coal from these lands as a sole proprietorship under the name Moffat Coal Company. In 1954, the Pennsylvania Turnpike Commission, by right of eminent domain, acquired title and possession of certain portions of that land,, estimated to be worth over a million dollars. In 1955, the taxpayer raised $3,000,-000 by borrowing (a) $2,500,000 from a bank secured by a first mortgage on the lands and coal mining structures and equipment, and a security interest in the proceeds to be received by the taxpayer from the condemnation award, and (b) $500,000 from the Glen Alden Coal Company secured by a second mortgage on the same properties set forth under (a) above. In 1956, the Glen Alden Coal Company transferred the second mortgage to taxpayer’s son and daughter for $400,000. In 1957, to reward and retain the servr ices of eighteen key employees by giving them an interest in the business, the taxpayer decided to form a corporation to take over the active operation of mining and selling the coal. On September 30, 1957, he formed the Moffat Coal Company, Inc., and transferred to it all of the structures, equipment, inventories and accounts receivable, but retained title to the lands and the coal reserves thereunder. The value of the assets transferred over the debts relating to that business was $880,000. The corporation issued 88,000 shares of stock in exchange for these assets, 58,000 of which were issued to the taxpayer and the remaining . 30,000 were distributed among the eighteen key employees. Each of these employees executed a promissory note to the taxpayer in the amount of $10 for each share of stock received. At all times relevant hereto, the taxpayer was the majority stockholder and chairman of the board of the corporation. On September 30, 1957, the taxpayer leased the coal lands to the corporation for a term of 51 years, plus such additional time as would be required to remove all the merchantable coal thereunder. In return the corporation agreed to pay all the taxes assessed against the land and a royalty of 50 cents for each ton of coal mined and shipped. The Royalty rate of 50 cents per ton was common in the area at that time. One month later the lease was amended to provide that the royalty would not be payable for any period in which the corporation was unable to meet all of its maturing obligations. In December of 1957, the corporation borrowed $300,000 on a line of credit from the bank. On January 2, 1958, taxpayer and his son and daughter organized a partnership under the name of Moffat & Company. The son and daughter contributed the second mortgage to the partnership in return for each receiving a 20% interest in the firm. The taxpayer conveyed to the partnership his title to the coal lands subject to the first and second mortgages. In return he received a 60% interest in the partnérship. From the time of its incorporation to the end of 1959, the corporation paid $832,790 in royalties. During 1960, the corporation was unable to make payment on a series of loans, the balance of which amounted to $800,-000, given by the bank. On February 4, 1960, the taxpayer gave his check for $200,000 to the corporation. The latter in turn paid its check in that amount to the bank. The amount was entered in the corporate books as a loan payable to the taxpayer and he was given a demand note. Similar treatment was accorded several other payments made later by him to the corporation in the aggregate of $180,000. Still later in that year, upon demand from the bank, the taxpayer paid the balance of $420,000 on the loans. In this year the partnership, after receiving demand from the local taxing authorities, remitted $422,319 in taxes which the corporation had failed to pay over the years. No dividend had ever been paid by the corporation and its stock became worthless in 1960. No payments were ever made on any of the notes given by the eighteen key employees and in 1961 they were canceled by the taxpayer and the shares of stock were returned to him. The total of the payments made by the taxpayer to the bank on behalf of the corporation amounting to $800,000 was claimed by him in his income tax return for 1960 as a deduction for a business bad debt. The Commissioner of Internal Revenue disallowed the entire deduction on the determination that the debt was non-business in character, and since it was partially worthless in 1960, was not deductible in any amount. The Tax Court found that the taxpayer’s pledge and his subsequent payments thereunder were directly related to his owning and leasing of the coal lands to the corporation and therefore such payments were of a business nature. It also found that the claim against the corporation was partially worthless in 1960 to the extent of $544,000 or 68% of $800,000. As a consequence, the taxpayer was permitted to claim that sum as a deduction for a business bad debt in his income tax return for 1960. The Commissioner does not dispute that the taxpayer was legally bound to make the payments totaling $800,000 or that the debt arose from those payments and became worthless in the amount of $544,000 in 1960. However, he asserts that in order for this taxpayer to be entitled to a deduction for a business bad debt, he must have shown that he as an individual or the partnership was in a business and that the debt was created or acquired in connection with that business or that the loss resulting from the debt’s becoming worthless bore a proximate relation to that business. In Whipple v. C. I. R., 373 U.S. 193, 203-204, 83 S.Ct. 1168, 1175, 10 L.Ed.2d 288 (1963), the Supreme Court was unwilling to disturb the determinations of the Tax Court, affirmed by the Court of Appeals for the Fifth Circuit, that the taxpayer in that case “was not engaged in the business of money lending, of financing corporations, of bottling soft drinks or any combination of these” since the Court could not say, citing C. I. R. v. Duberstein, 363 U.S. 278, 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), that the determinations were clearly erroneous. Additionally, the Court of Appeals for the Third Circuit stated in C. I. R. v. Stokes’ Estate, 200 F.2d 637, 638 (1953), “The question whether the activities of a taxpayer constitute carrying on a trade or business is largely one of fact the solution of which ‘requires an examination of the facts in each case’. Higgins v. Commissioner [of Internal Revenue], 1941, 312 U.S. 212, 217, 61 S.Ct. 475, 478, 85 L.Ed. 783.” Also see Wineberg v. C. I. R., 326 F.2d 157, 160 (C.A. 9, 1963). The Commissioner contends that the taxpayer’s activities as lessor of the coal lands did not constitute a “business” within the meaning of the 1954 Revenue Code. We cannot say that the Tax Court’s determination is clearly erroneous. As to the finding that the taxpayer’s guaranteeing of the corporation’s repayment of loans as well as his payment of the indebtedness in 1960 arising from the loans were “not only proximately but directly related” to the taxpayer’s leasing business, there was substantial evidence to support such finding. The president of the corporation who was in charge of the coal mining operations testified that following the organization of the corporation, the taxpayer spent seventy-five per cent of his time on the coal lands and from the questions he asked about the property, the president knew that he was talking to the taxpayer as the owner of the property. The secretary of the company likewise testified that the taxpayer devoted most of his time to the business of leasing and operating coal properties which was his partnership business. In the alternative, the Commissioner argues that it is not possible for an appellate court to determine whether the Tax Court applied the correct legal standard under § 166(d) (2) of the 1954 Revenue Code in evaluating the factual evidence. Concerning the crucial issues, the Tax Court stated in its opinion: “The evidence clearly shows, however, that [the taxpayer] was very actively and constantly engaged in the business of owning, leasing and seeing to the proper operation of his coal lands at all times material hereto, first as sole owner and later as a 60 per cent partner in Moffat & Company. His guarantee of the [corporation] borrowing as well as his payment of the indebtedness in 1960 were not only proximately but directly related to that business * * (Emphasis supplied.) The insertion of the words “and seeing to the proper operation” was perhaps unfortunate. However, the intention of the Tax Court is eminently clear from a reading of its opinion. The words “that business” refers to the business of owning and leasing of the coal lands, not to “seeing to the proper operation” of the coal lands. The decision of the Tax Court will be affirmed. . Although a joint income tax return was filed, we refer to the husband as being the taxpayer. . On July 3, 1960, the award for the land condemned by the Turnpike Commission was made in the amount of $1,195,000. An advance payment against the award had been made in 1959; the balance was paid in full in 1960. . See § 1.166-5 (b) of Treasury Regulations on Income Tax (1954 Code), 26 C.F.R., § 1.166-5 (b). . See Walter v. Dunlap et al., 368 F.2d 118, 120 (C.A.3, 1966), where Judge Hastie made the following observation: “ * * * In common parlance and understanding, after the space in a commercial building has been rented to tenants, the structure is described and viewed as being used in the business of the tenants and not in the business of the landlord. It is the leasing of property to produce income rather than the use made of it while rented which constitutes the lessor’s business. Any control the lessor may reserve over the premises and any employment of a building superintendent and staff are for the maintenance and protection of his property and do not constitute a proprietary involvement in the current use of the building.”

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?

EDGMON et al. v. UNITED STATES. No. 1446. Circuit Court of Appeals, Tenth Circuit. Dec. 14, 1936. W. B. Wall and J. Fred Green, both of Sallisaw, Old., for appellants. Earl Pruet, Asst. U. S. Atty., of Muskogee, Old. (Cleon A. Summers, U. S. Atty., of Muskogee, Old., on the brief) r for the United States. Before LEWIS, PHILLIPS, and. BRATTON, Circuit Judges’. PHILLIPS, Circuit Judge. Edgmon and Denton were convicted and sentenced on an indictment charging a violation of 27 U.S.C.A. § 123 (48 Stat. 316, § 12) and have appealed. Sentence was imposed on June 24,. 1936. While section 123, supra, was expressly repealed on June 25, 1936, § 9 (49 Stat. 1930, 27 U.S.C.A. § 123 note) it must be “treated as still remaining in force”' with respect to this prosecution and the judgment therein by virtue of the saving provisions of 1 U.S.C.A. § 29. Ex parte Lamar (C.C.A.) 274 F. 160, 172; U. S. v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480; Hertz v. Woodman, 218 U.S. 205, 217, 30 S.Ct. 621, 54 L.Ed. 1001. Ira Wofford, a constable of Sequoyah county, Oklahoma, and one Lewis observed the defendants drive in a Pontiac coupe to-the loading dock of the Ft. Smith Wholesale Liquor Company, in Ft. Smith, Arkansas, load into the coupe four pasteboard cartons of the size and appearance of whisky cartons, and then drive down Second street in Ft. Smith and across the-bridge into Oklahoma. Wofford and Lewis followed defendants for a distance of about two miles into Sequoyah county, Oklahoma, when Wofford stopped defendants and searched their automobile. He-found therein four cartons of whisky and arrested defendants. Wofford turned the-defendants, their automobile and the whisky over to one Wilson, a deputy United States Marshal. Defendants were residents of Sequoyah county, Oklahoma. No federal officer participated in the-search or arrest of defendants; Wofford: and Lewis were not acting in conjunction with or under the direction of federal officers; and the search and seizure were not made solely in behalf of the United-States. Motions to quash the indictment and suppress the evidence secured by the search were overruled by the trial court. The prohibition of the Fourth Amendment applies only to the national government and its agencies. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Aldridge v. U. S. (C.C.A.10) 67 F. (2d) 956; Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.l915C, 1177; Schroeder v. United States (C.C.A.2) 7 F.(2d) 60; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Rettich v. U. S. (C. C.A.1) 84 F. (2d) 118. Evidence secured through unlawful search and seizure by state officers not acting directly or indirectly in behalf of the United States, is admissible in a prosecution in the national courts. Burdeau v. McDowell, supra; Aldridge v. U. S., supra ; Lerskov v. United States (C.C.A.8) 4 F.(2d) 540; Miller v. United States (C. C.A.3) 50 F. (2d) 505; Schroeder v. United States, supra. Evidence secured through an unlawful search-and seizure by state officers is not admissible in a prosecution in the national courts where federal officers directly or indirectly participated in the search (Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Aldridge v. U. S., supra; Sloane v. United States (C.C.A.10) 47 F.(2d) 889), or where the search and seizure were solely on behalf of the United States to secure evidence of a violation of federal law. Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381; Hall v. United States (C.C.A.9) 41 F.(2d) 54. Here the state officers were not acting in behalf of the United States and no federal officer participated in the search and seizure. Furthermore, there was probable cause for the search. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Husty v. U. S., 282 U. S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L. R. 1407. We conclude the motion to suppress was properly denied. Counsel for defendants contend that section 123, supra, was repealed by the provisions of 26 U.S.C.A. § 1397, which reads: “Any person who shall carry on the business of a rectifier, wholesale liquor dealer, retail liquor dealer, * * * without having paid the special tax as required by law shall, for every such offense, be fined not less than $100 nor more than $5,000 and imprisoned not less than thirty days nor more than two years.” In Wainer v. U. S., 57 S.Ct. 79, 80, 81 L.Ed. - (decided November 9, 1936), the court said: “The difficulty of paying the excise upon the privilege of carrying on a business which is prohibited does not preclude the prescription of sanctions for nonpayment. Petitioners insist it is a contradiction in terms to say the laws of the United States, at the same time prohibit and license an occupation. The contention is based on misconception of the nature of the exaction. The United States has not licensed the liquor business but, as clearly within its power, has laid an excise upon the doing of the business whether lawfully or unlawfully conducted.” See, also, U. S. v. Constantine, 296 U. S. 287, 293, 56 S.Ct. 223, 80 L.Ed. 233. Since section 1397, supra, applies where the business, the carrying on of which is taxed, is unlawful as well as where it is lawful under local law and is not to be construed to exempt from any penalty or punishment provided by state law (see 26 U.S.C.A. § 1407), there is neither conflict nor inconsistency between section 123 and section 1397, supra. Error is assigned on certain remarks made and questions propounded to witnesses by the trial court during the progress of the trial. No objection was interposed nor exception reserved thereto. Alleged trial errors should be called to the trial court’s attention by specific objections and exceptions in order that it may have the opportunity to correct the errors. In the absence of such specific objections and exceptions, they will not ordinarily be reviewed upon appeal. Kelly v. U. S. (C.C.A.10) 76 F.(2d) 847; Addis v. United States (C.C.A.10) 62 F.(2d) 329; Order of United Commercial Travelers of America v. Greer (C.C.A.10) 43 F.(2d) 499; Hoffman v. United States (C.C.A.10) 68 F.(2d) 101; Aldridge v. United States (C.C.A.10) 67 F.(2d) 956; Trefone v. United States (C.C.A.10) 67 F.(2d) 954; Strader v. United States (C. C.A.10) 72 F. (2d) 589. There is a well recognized exception to this general rule that, in criminal cases involving the life or liberty of the accused, the appellate courts of the United States may notice and correct plain errors in the trial of the accused which appear to have seriously prejudiced his rights, although those errors were not challenged or reserved by objections, motions, exceptions or assignments of error. Kelly v. U. S., supra; Strader v. United States, supra; Addis v. United States, supra; Bogileno v. United States (C.C.A.10) 38 F. (2d) 584; Jaramillo v. U. S. (C.C.A.10) 76 F.(2d) 700; Kelly v. U. S. (C.C.A.10) 76 F. (2d) 847. A careful examination of the record leads us to the conclusion that the alleged errors last above adverted to fall within the general rule rather than the exception thereto. Affirmed. Section 123, supra, reads: “Whoever shall * * * cause intoxicating liquors to be transported in interstate commerce, * * * into any State, * * * the laws of which prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be fined not more than $1,000 or imprisoned not more than six months, or both.”

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.

PRESSTEEL COMPANY, a copartnership composed of Preston A. Jones and Wallace D. Runswick and Marvin Electric Manufacturing Company, Appellants, v. HALO LIGHTING PRODUCTS, INC., and Halo Lighting of California, Inc., Appellees. No. 17716. United States Court of Appeals Ninth Circuit. March 6, 1963. Gardner & Zimmerman, Joseph B. Gardner and Harris Zimmerman, Oakland, Cal., for appellants. Max R. Kraus, Chicago, Ill., and Francis A. Utecht, Los Angeles, Cal., for appellees. Before BARNES and HAMLIN, Circuit Judges, and TAYLOR, District Judge. BARNES, Circuit Judge. This is an action for infringement of United States Patent No. 2,561,986, entitled “Recessed Light Fixture with Separate Outlet Box." Jurisdiction of the district court was based upon Title 28, United States Code, Section 1338(a). Jurisdiction of this court is based upon Title 28, United States Code, § 1291. Plaintiffs-appellants, owners of Patent No. 2,561,986, brought this action against appellees charging infringement of' their patent, issued in the name of Preston A. Jones (hereinafter referred to as Jones), a partner of Pressteel Company, one of the appellants, and assigned to the four plaintiffs-appellants (hereinafter referred to as appellants). Jones’ patented recessed light fixture consisted of a rectangular shaped box enclosure (called a lamp housing), containing a lamp socket and bulb. A conduit extended from the lamp housing to the outlet box, which were spaced one inch apart and enclosed the electric wiring between the two. Two removable covers, one on the side portion of the lamp housing, and opposite and adjacent thereto a like covering on the outlet box facilitated access to the outlet box from the interior of the lamp housing. Jones’ testimony was that he designed his patented light fixture to eliminate the following difficulties of prior similar fixtures: (1) To lessen installation difficulties and attendant expenses; (2) to decrease the temperature at the wiring connection below 60° centigrade, and thereby avoid the installation requirements of the National Electric Code. The latter was achieved by spacing the outlet box one inch from the housing instead of the usual one foot or more. The court below held the patent invalid because it failed to disclose any inventive advance over the prior art. For this reason, the court held that no finding on the question of infringement was necessary, and made none. This, together with the positive finding of a lack of invention, is urged as error. Appellants’ various specifications of errors can be summarized to form a single question: Did the court below err in finding and concluding that the patent in suit was invalid as failing to disclose any inventive advance over the prior art and therefore was not an invention requiring inventive faculties because the “invention” was obvious at the time made to any person having ordinary skill in the art? We hold the court did not err. Appellants cite 35 U.S.C. § 282: “A patent shall be presumed valid. The: burden of establishing invalidity of a patent shall rest on a party asserting it”,, and contend that appellees failed to overcome the presumption of validity of the patent. Appellants contend that appellees’ proof of the existence of appellants” own 1945 and 1947 fixtures is not enough. The court found it was. “Whether an improvement patent amounts to invention is a question of fact;” Pointer v. Six Wheel Corporation, 9 Cir., 1949, 177 F.2d 153 at 159 (cases cited); and, “So-is the determination of the fact whether the improvement presents some uncommon advance in the art or mere exercise of ‘the skill of the calling.’ ” (cases cited) Unless exceptional circumstances exist,, such a factual determination has great weight with this court. Appellees contend that neither the 1945 nor the 1947 fixtures of appellants; or the National Electric Code were before the patent office and were not considered by it before allowance of the-patent in suit. If this contention be true, and the 1945 and 1947 fixtures show the claimed invention, and are “pertinent art,” the usual presumption of validity which attaches to a patent is dissipated. In Jaybee Mfg. Corp. v. Ajax Hardware Mfg. Corp., 9 Cir., 1961, 287 F.2d 228, the court, per curiam, at page 229 said: “Generally, the action of the Patent Office in allowing the patent creates a presumption of validity. However, even one prior art reference which has not been considered by the Patent Office may overthrow this presumption. [Citing cases.] When the most pertinent art has not been brought to the attention of the administrative body the presumption is largely dissipated. [Citing cases.] The facts in the present case justify the invocation of such rules.” Appellants urge the presumption of validity is strong. The exception to the general rule of presumption of validity of a patent was followed by this court in Jacuzzi Bros. v. Berkeley Pump Co., 9 Cir., 1951, 191 F.2d 632, 634-635, where we said: “The presumption of validity of administrative grant has been in recent years almost reduced to nullity in patent cases.” Appellants urge that appellees did not produce a single witness to support their .asserted defense of lack of invention, but produced only prior patents. Appellants •cite several old cases which are convincing. However, this case falls within an ■exception recognized in all three of appellants’ cited cases: (1) In Waterman v. Shipman, 2 Cir., 1893, 55 F. 982, the court stated: “To sustain the defense of want of novelty the defendants have set up in their answer, and offered in evidence, a large number of patents prior in date of those of the complainant. In the absence of any expert testimony to explain these patents, or indicate what they contain tending to negative the novelty of the complainant’s patents, we do not feel called upon to examine them. There may be cases in which the character of the invention has so little complexity that such expert testimony is not necessary to aid the court in understanding whether one patent, or several patents considered together, describe the devices or combination of devices which are the subject-matter of a subsequent patent; but this is not one of them.” (Emphasis added.) (2) In Charmbury v. Walden, C.C.D. N.J., 1905, 141 F. 373, 377, the court reiterates the Waterman rule, supra; (3) In General Electric Company v. Germania Electric Lamp Company, C.C. D.N.J., 1905, 174 F. 1017, the court relied on Waterman and Charmbury, supra, and adopts the same reasoning. The record discloses that the subject matter is simple, the prior art was explained by appellants’ witness and by both counsel. The court asked numerous questions throughout the trial, showing a thorough understanding of the subject matter and issues. In the case of Armour & Co. v. Wilson & Co., 7 Cir., 1960, 274 F.2d 143, the court heard an appeal on very similar issues en banc in order to resolve the standards to be applied in determining the validity of a patent within the scope of appellate review. After an extensive survey of case law the court concluded that: “ * * * the rules governing the trial of patent cases are no different than in other types of civil litigation, and further, that the scope of. our review on appeal follows the same pattern. We look at the findings of fact as to invention in the way that such factual determinations are generally reviewed. We examine the standard of invention applied to these facts as a question of law, as we have done in other areas. If anything we have said in prior opinions strays too far from this conclusion, such holdings are now modified to conform to the views expressed herein.” “The standard of patentability is a constitutional standard; and the question of validity of a patent is a question of law.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 155, 71 S.Ct. 127, 95 L.Ed. 162. “Whether the thing patented amounts to a patentable invention” is “a question of law,” Mahn v. Harwood, 1884, 112 U. S. 354, 358-359, 5 S.Ct. 174, 6 S.Ct. 451, 28 L.Ed. 665; Lincoln Engineering Co., etc., v. Stewart-Warner Corp., 1938, 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008, but the case may turn on a question of fact. This court in the recent case of National Sponge Cushion Co. v. Rubber Corp. of Cal., 1961, 9 Cir., 286 F.2d 731, reversed a judgment notwithstanding the verdict saying: “In this case, as in many other cases where a claimed invention is attacked on the ground that the claims of patented devices were anticipated by earlier patents, the decision as to validity may turn upon a question of fact.” See Judge Pope’s discussion in his concurring opinion in Bergman v. Aluminum Lock Shingle Corp., 9 Cir., 1958, 251 F.2d 801, 809. Oriental Foods, Inc. v. Chun King Sales, 9 Cir., 1957, 244 F.2d 909, 913; Kwikset Locks, Inc. v. Hillgren, 9 Cir., 1954, 210 F.2d 483; Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971, 973. The test of invention is, as set forth in the case of Cuno Engineering Corp. v. Automatic Devices Corp., 1941, 314 U.S. 84, at pages 89 and 90, 62 S.Ct. 37, 86 L.Ed. 58: “ * * * [that] more must be done than to utilize the skill of the art in bringing old tools into new combinations [cases cited]. * * We may concede that the functions performed by Mead’s combination were new and useful. But that does not necessarily make the device patentable. * * * [T]he device must not only be ‘new and useful,’ it must also be an ‘invention’ or ‘discovery.’ ” Reckendorfer v. Faber, 92 U.S. 347 at pages 356-357, 23 L.Ed. 719, put it this way: “Perfection of workmanship, however much it may increase the convenience, extend the use, or diminish expense, is not patentable.” What was said there is equally applicable here. The finding of fact in the district court was: “9. There was and is no substantial difference between the subject matter disclosed in the patent in suit and the prior Pressteel fixtures made in 1945 and the Marvin fixtures made in 1947 except for the spacing and that spacing would have been obvious, at the time the claimed invention was made, to any person having ordinary skill in the art. Said patent No. 2,561,986 is invalid for lack of invention.” A comparison of the 1945 Pressteel fixture and the 1947 Marvin fixture (P. 9, Appellees’ Brief) with the patent in suit shows an element for element likeness, except for the spacing. The National Electrical Code requires some spacing between lamp housing and outlet box. (See note 2, this opinion.) This spacing is not added by the claimed invention, but only the amount thereof. According to the inventor’s testimony, one thirty-seconds of an inch spacing would not work — two inches would. No required space is set forth in the patent. As this court said in Aetna Steel Products Corp. v. Southwest Products Co., 9 Cir., 1960, 282 F.2d 323: “* * * [W]e are committed to the rule announced by the Supreme Court in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 [citing other cases.]” The rule in the Great Atlantic case is: “Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in .an assembly of old elements. The function of a patent is to add to the •sum of useful knowledge. Patents ■cannot be sustained when, on the •contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites •old elements with no change in their respective functions, such as is presented here, obviously withdraws ~what already is known, into the field •of its monopoly and diminishes the resources available to skillful men. ’This patentee has added nothing to ■the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly.” The record amply supports the district court’s findings of noninvention, and we •agree with it. Appellants point out that along with Prescolite Manufacturing Corp., a related corporation, 3,342,279 lighting fixtures were sold in the period between 1947 and June of 1961 (R. 85, 86), compared to 1,316,540 sales of the 1945 type fixture (R. 86). Appellants’ position is as stated by one of their cited cases at page 532: “So great and immediate a success speaks strongly of invention adding emphasis to the strong presumption of invention, raised by the issuance of the patent.” Due to what has been said before regarding noninvention, this argument is not available to appellant. The Jaybee case, supra, restates the rule: “It is true that commercial success may be taken into consideration in determining the validity of the patent. The trend is to use such success in determining the validity of a patent as a makeweight only where the patentability question is close. * * * Such success should not be relied upon to establish patentability except in cases that are otherwise doubtful. * * * [W]here invention is plainly lacking, a commercial success cannot fill the void.” (287 F.2d 230.) The judgment is affirmed. . Throughout this opinion, Letters Patent No. 2,561,986 (Exhibit 1), as the sole patent in suit, is referred to as the “patent,” or the “patent in suit.” . The 1947 National Electric Code required that the outlet box be spaced “at least one foot” from the lamp housing and that “at least four feet” of metal conduit or raceway extend between the lamp housing and outlet box for passage of asbestos covered wire (rated at 150° centigrade), connected to household wire (rated at 60° centigrade). . Appellants’ Specifications of Errors: 1. The district court erred in finding and concluding that the patent in suit is invalid' as failing to disclose any inventive advance over the prior art. 2. The district court erred in failing ' to find and hold that the defendants’ recessed structure infringes upon the claims of the patent in suit. 3. The district court erred in finding that the things described and patented in and by the patent in suit were not an invention. 4. The district court erred in finding that the things described and patented in and by said patent did not require any exercise of the inventive faculties for its production. 5. The district court erred in finding that there was and is no substantial difference between the subject matter disclosed in the patent in suit and the 1945-type of fixture made by plaintiff-appellant Pressteel Company, and the same type of fixture made by plaintiff-appellant Marvini in 1947. 6. The district court erred in finding that the spacing between the junction-box and lamp housing would have been-obvious at the time the invention was-made to any person having ordinary skill’ in the art. 7. The district court erred in finding and concluding, on any grounds, that the patent in suit is invalid. 8. The district court erred in adjudging that the action be dismissed. . Appellants omit any reference in their brief to support this statement and it is not apparent from the transcript of record what foundation this statement has. . The patent deals with two simple components and their relation to each other. . Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A. The appellate court is not at liberty to review a finding of fact of the district court unless “clearly erroneous.” . See Oriental Foods, Inc. v. Chun King Sales, Inc., 9 Cir., 244 F.2d 909, 913. . Tr. p. 26, 35 U.S.C. § 103. Griffith Rubber Mills v. Hoffar, Note 11, 9 Cir., 313 F.2d 1, decided February 4, 1903. . Research Products Co. v. Tretolite Co., 106 F.2d 530.

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?

WHITMORE, individually and as next friend of SIMMONS v. ARKANSAS et al. No. 88-7146. Argued January 10, 1990 Decided April 24, 1990 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 166. Arthur L. Allen, by appointment of the Court, 493 U. S. 804, argued the cause and filed a brief for petitioner. J. Steven Clark, Attorney General of Arkansas, argued the cause for respondents. With him on the brief for respondent State of Arkansas was Clint Miller, Assistant Attorney General. John Harris filed a brief for respondent Simmons. Gary B. Bom, Daniel J. Popeo, and Paul D. Kamenar filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance. William Webster, Attorney General of Missouri, John M. Morris and Stephen D. Hawke, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, Jim Jones, Attorney General of Idaho, Hal Stratton, Attorney General of New Mexico, Anthony J. Celebrezze, Jr., Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, and Mary Sue Terry, Attorney General of Virginia, filed a brief for the State of Missouri et al. as amici curiae. Chief Justice Rehnquist delivered the opinion of the Court. This case presents the question whether a third party has standing to challenge the validity of a death sentence imposed on a capital defendant who has elected to forgo his right of appeal to the State Supreme Court. Petitioner Jonas Whitmore contends that the Eighth and Fourteenth Amendments prevent the State of Arkansas from carrying out the death sentence imposed on Ronald Gene Simmons without first conducting a mandatory appellate review of Simmons’ conviction and sentence. We hold that petitioner lacks standing, and therefore dismiss the writ of certiorari. I On December 28, 1987, Ronald Gene Simmons shot and killed two people and wounded three others in the course of a rampage through the town of Russellville, Arkansas. After police apprehended Simmons, they searched his home in nearby Dover, Arkansas, and discovered the bodies of 14 members of Simmons’ family, all of whom had been murdered. The State filed two sets of criminal charges against Simmons, one based on the two Russellville murders and the other covering the deaths of his family members. Simmons was first tried for the Russellville crimes, and a jury convicted him of capital murder and sentenced him to death. After being sentenced, Simmons made this statement under oath: “T, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence. It is further respectfully requested that this sentence be carried out expeditiously.’ ” See Franz v. State, 296 Ark. 181, 183, 754 S. W. 2d 839, 840 (1988). The trial court conducted a hearing concerning Simmons’ competence to waive further proceedings, and concluded that his decision was knowing and intelligent. As Simmons’ execution date approached Louis J. Franz, a Catholic priest who counsels inmates at the Arkansas Department of Corrections, petitioned the Supreme Court of Arkansas for permission to proceed as Simmons’ “next friend” and to prosecute an appeal on his behalf. The court held that Franz did not have standing as “next friend,” because he had not alleged facts showing that he had ever met Simmons, much less that he had a close relationship with the defendant. It also rejected both his argument for standing under the Arkansas Constitution as an aggrieved taxpayer and his assertion that he should have standing as a concerned citizen to prevent an important legal issue from going unresolved at the appellate level. In dicta, the court went on to state that Arkansas law does not require a mandatory appeal in all death penalty cases. It did note, however, that a defendant sentenced to death in Arkansas will be able to forgo his direct appeal “only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.” Id., at 189, 754 S. W. 2d, at 843. After reviewing the record of the trial court’s competency hearing, the Supreme Court held that Simmons had made a knowing and intelligent waiver of his right to appeal. Franz and another Arkansas death row inmate, Darrel Wayne Hill, then applied in Federal District Court for a writ of habeas corpus to prevent Simmons’ execution, but the petition was denied on the ground that Franz and Hill did not have standing. Franz v. Lockhart, 700 F. Supp. 1005 (ED Ark. 1988), appeal pending, No. 89-1485EA (CA8). The State subsequently tried Simmons for the murder of his 14 family members, and on February 10, 1989, a jury convicted him of capital murder and imposed a sentence of death by lethal injection. Simmons again notified the trial court of his desire to waive his right to direct appeal, and after a hearing, the court found Simmons competent to do so. The Supreme Court of Arkansas, pursuant to the rule established in Franz, reviewed the competency determination and affirmed the trial court’s decision that Simmons had knowingly and intelligently waived his right to appeal. Simmons v. State, 298 Ark. 193, 766 S. W. 2d 422 (1989). The court commended the trial court and Simmons’ counsel for doing “an exceptional job in examining and exploring [Simmons’] capacity to understand the choice between life and death and his ability to know and to intelligently waive any and all right he might have in an appeal of his sentence.” Id., at 194, 766 S. W. 2d, at 423. The court also noted that Simmons’ counsel “thoroughly discussed seven possible points that could be argued for reversal on appeal” and that Simmons acknowledged those points but “rejected all encouragement and suggestions to appeal.” Ibid. Three days later, petitioner Jonas Whitmore, another death row inmate in Arkansas, sought permission from the Supreme Court of Arkansas to intervene in Simmons’ proceeding both individually and “as next friend of Ronald Gene Simmons.” The court concluded that Whitmore had failed to show he had standing to intervene, and it denied the motion. Simmons v. State, 298 Ark. 255, 766 S. W. 2d 423 (1989). Whitmore then asked this Court to stay Simmons’ execution, which was scheduled for March 16, 1989. We granted a stay pending the filing and disposition of a petition for certiorari, 489 U. S. 1073 (1989), and later granted Whitmore’s petition for certiorari. 492 U. S. 917 (1989). II A This is not the first time we have encountered a third party seeking to prevent the execution of a capital defendant who has decided to forgo further judicial proceedings. In Gilmore v. Utah, 429 U. S. 1012 (1976), we considered an application for a stay of the execution of Gary Mark Gilmore, filed by his mother Bessie Gilmore after the defendant declined to request relief. A majority of the Court concluded that Gilmore had made a knowing and intelligent waiver of any federal rights available to him and, accordingly, allowed the execution to go forward. Four Members of the Court, however, felt that the standing and other constitutional issues raised by the application were substantial and would have given the matter plenary consideration. Since Gilmore, we have been presented with other applications from third parties for stays of execution, see Lenhard v. Wolff, 443 U. S. 1306, stay of execution denied, 444 U. S. 807 (1979); Evans v. Bennett, 440 U. S. 1301, stay of execution denied, 440 U. S. 987 (1979), but until the present case, we have not requested full briefing and argument and issued an opinion of the Court on this recurring issue. Petitioner Whitmore asks this Court to hold that despite Simmons’ failure to appeal, the Eighth and Fourteenth Amendments require the State of Arkansas to conduct an appellate review of his conviction and sentence before it can proceed to execute him. It is well established, however, that before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue. Article III, of course, gives the federal courts jurisdiction over only “cases and controversies,” and the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 471-476 (1982). Our threshold inquiry into standing “in no way depends on the merits of the [petitioner’s] contention that particular conduct is illegal,” Warth v. Seldin, 422 U. S. 490, 500 (1975), and we thus put aside for now Whitmore’s Eighth Amendment challenge and consider whether he has established the existence of a “case or controversy.” Although we have acknowledged before that “the concept of ‘Art. Ill standing’ has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it,” Valley Forge, supra, at 475, certain basic principles have been distilled from our decisions. To establish an Art. Ill case or controversy, a litigant first must clearly demonstrate that he has suffered an “injury in fact.” That injury, we have emphasized repeatedly, must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is “distinct and palpable,” Warth, supra, at 501, as opposed to merely “[abstract,” O’Shea v. Littleton, 414 U. S. 488, 494 (1974), and the alleged harm must be actual or imminent, not “conjectural” or “hypothetical.” Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983). Further, the litigant must satisfy the “causation” and “redressability” prongs of the Art. Ill minima by showing that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 38, 41 (1976); Valley Forge, supra, at 472. The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. Ill standing requirements. A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing. See Warth, supra, at 508, 518. B As we understand Whitmore’s claim of standing in his individual capacity, he alleges that the State has infringed rights that the Eighth Amendment grants to him personally and to the subject of the impending execution, Simmons. He therefore rests his claim to relief both on his own asserted legal right to a system of mandatory appellate review and on Simmons’ similar right. Under either theory, Whitmore must establish Art. Ill standing, see Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 956 (1984); Singleton v. Wulff 428 U. S. 106, 112 (1976), and we find that his allegations fall short of doing so. Whitmore’s principal claim of injury in fact is that Arkansas has established a system of comparative review in death penalty cases, and that he has “a direct and substantial interest in having the data base against which his crime is compared to be complete and to not be arbitrarily skewed by the omission of any other capital case.” Brief for Petitioner 21. Although he has already been convicted of murder and sentenced to death, has exhausted his direct appellate review, see Whitmore v. State, 296 Ark. 308, 756 S. W. 2d 890 (1988), and has been denied state postconviction relief, Whitmore v. State, 299 Ark. 55, 771 S. W. 2d 266 (1989), petitioner suggests that he might in the future obtain federal habeas corpus relief that would entitle him to a new trial. If, in that new trial, Whitmore is again convicted and sentenced to death, he would once more seek review of the sentence by the Supreme Court of Arkansas; that court would compare Whitmore’s case with other capital cases to insure that the death penalty is not freakishly or arbitrarily applied in Arkansas. Petitioner asserts that he would ultimately be injured by the State Supreme Court’s failure to review Simmons’ death sentence, because the heinous crimes committed by Simmons would not be included in the data base employed for Whit-more’s comparative review. The injury would be redressed by an order from this Court that the Eighth Amendment requires mandatory appellate review. Petitioner’s alleged injury is too speculative to invoke the jurisdiction of an Art. Ill court. Whitmore’s conviction and death sentence are final, and his claim that he may eventually secure federal habeas relief from his conviction is obviously problematic. Nor, although the odds may well be better, can petitioner prove that if he were to obtain habeas relief, he would be retried, convicted, and again sentenced to death. And even were we to follow Whitmore this far down the path, it is nothing more than conjecture that the addition of Simmons’ crimes to a comparative review “data base” would lead the Supreme Court of Arkansas to set aside a death sentence for Whitmore, whose victim died after he stabbed her 10 times, cut her throat, and carved an “X” on the side of her face. 296 Ark., at 317, 756 S. W. 2d, at 895. In its comparative review of Whitmore’s current sentence, the Arkansas court simply noted that defendants in similar robbery-murder capital crimes had also been sentenced to death. Ibid. Whitmore provides no factual basis for us to conclude that the sentence imposed on a mass murderer like Simmons would even be relevant to a future comparative review of Whitmore’s sentence. Whitmore’s theory of injury is at least as speculative as others we have found insufficient to establish Art. Ill injury in fact. In O’Shea v. Littleton, supra, we held there was no case or controversy where residents of an Illinois town sought injunctive relief against a Magistrate and a Circuit Court Judge whom the plaintiffs claimed were engaged in a pattern and practice of illegal bondsetting, sentencing, and jury-fee practices in criminal cases. The allegation of respondents (plaintiffs) in that case amounted to a claim “that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed.” Id., at 497. That contention, which we think is analogous to Whitmore’s, took us “into the area of speculation and conjecture,” ibid., and beyond the bounds of our jurisdiction. We have likewise thought inadequate allegations of future injury contingent on a plaintiff having an encounter with police wherein police would administer an allegedly illegal “chokehol[d],” Los Angeles v. Lyons, 461 U. S., at 105, on the prospective future candidacy of a former Congressman, Golden v. Zwickler, 394 U. S. 103, 109 (1969), and on police using deadly force against a person fleeing from an as yet uneffected arrest. Ashcroft v. Mattis, 431 U. S. 171, 172, n. 2 (1977). Recently in Diamond v. Charles, 476 U. S. 54 (1986), we rejected a physician’s attempt to defend a state law restricting abortions, because his complaint that fewer abortions would lead to more paying patients was “‘unadorned speculation’ ” insufficient to invoke the federal judicial power. Id., at 66 (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S., at 44). Each of these cases demonstrates what we have said many times before and reiterate today: Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be “ ‘certainly impending’ ” to constitute injury in fact. Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923)). See also Lyons, supra, at 102; United States v. Richardson, 418 U. S. 166, 177-178 (1974). Probably the most attenuated injury conferring Art. Ill standing was that asserted by the respondents in United States v. SCRAP, 412 U. S. 669 (1973). There, an environmental group challenged the Interstate Commerce Commission’s approval of a surcharge on railroad freight rates, claiming that the adverse environmental impact of the ICC’s action on the Washington metropolitan area would cause the group’s members to suffer “ ‘economic, recreational and aesthetic harm.’” Id., at 678. The SCRAP group alleged that “a general rate increase would... cause increased use of nonrecydable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area.” Id., at 688. The Court held that those pleadings alleged a specific and perceptible harm sufficient to survive a motion to dismiss for lack of standing, but also indicated that the United States could have been entitled to summary judgment on the standing issue if it showed that “the allegations were sham and raised no genuine issue of fact.” Id., at 689, and n. 15. Even under the analysis of the standing question in SCRAP, which surely went to the very outer limit of the law, petitioner’s asserted injury is not enough to establish jurisdiction. In SCRAP, the environmental group alleged that specific and perceptible harms — depletion of natural resources and increased littering — would befall its members imminently if the ICC orders were not reversed. That bald statement, even if incorrect, was held sufficient to withstand a motion to dismiss, because the plaintiffs in SCRAP may have been able to show at trial that the string of occurrences alleged would happen immediately. But Whitmore does not make — and could not responsibly make — a similar claim of immediate harm. We can take judicial notice of the fact that writs of habeas corpus are granted in only some cases, and that guilty verdicts are returned after only some trials. It is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case. Thus, unlike the injury alleged in SCRAP, there is no amount of evidence that potentially could establish that Whit-more’s asserted future injury is “ ‘real and immediate.’” See O’Shea, 414 U. S., at 494. Moreover, as noted above, even if Whitmore could demonstrate with certainty that he would be retried, convicted, and sentenced, he has not shown that Simmons’ convictions would be pertinent to his proportionality review in the Supreme Court of Arkansas. Whitmore also contends that as a citizen of Arkansas, he is “entitled to the public interest protections of the Eighth Amendment,” and has a right to invoke this Court’s jurisdiction to insure that an execution is not carried out in Arkansas without appellate review. This allegation raises only the “generalized interest of all citizens in constitutional governance,” Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208, 217 (1974), and is an inadequate basis on which to grant petitioner standing to proceed. To dispose of this claim, we need do no more than quote our decision in Allen v. Wright, 468 U. S. 737, 754 (1984): “This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Accord, Valley Forge College v. Americans United, 454 U. S., at 482-483, and 489-490, n. 26 (“Were we to recognize standing premised on an ‘injury’ consisting solely of an alleged violation of a ‘ “personal constitutional right” to a government that does not establish religion,’ a principled consistency would dictate recognition of respondents’ standing to challenge execution of every capital sentence on the basis of a personal right to a government that does not impose cruel and unusual punishment”) (quoting Americans United for Separation of Church & State, Inc. v. United States Dept. of Health, Education and Welfare, 619 F. 2d 252, 265 (CA3 1980) (citation omitted)); Schlesinger, supra, at 216-227; United States v. Richardson, supra, at 176-177. Perhaps recognizing the weakness of his claim for standing, petitioner argues next that the Court should create an exception to traditional standing doctrine for this case. The uniqueness of the death penalty and society’s interest in its. proper imposition, he maintains, justify a relaxed application of standing principles. The short answer to this suggestion is that the requirement of an Art. Ill “case or controversy” is not merely a traditional “rule of practice,” but rather is imposed directly by the Constitution. It is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction in an appealing case. We have previously resisted the temptation to “import profound differences of opinion over the meaning of the Eighth Amendment to the United States Constitution into the domain of administrative law,” Heckler v. Chaney, 470 U. S. 821, 838 (1985); id., at 839-840, n. 2 (Brennan, J., concurring), and restraint is even more important when the matter at issue is the constitutional source of the federal judicial power itself. We hold that Whitmore does not have standing in his individual capacity to press an Eighth Amendment objection to Simmons’ conviction and sentence. C As an alternative basis for standing to maintain this action, petitioner purports to proceed as “next friend of Ronald Gene Simmons.” Although we have never discussed the concept of “next friend” standing at length, it has long been an accepted basis for jurisdiction in certain circumstances. Most frequently, “next friends” appear in' court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves. E. g., United States ex rel. Toth v. Quarles, 350 U. S. 11, 13, n. 3 (1955) (prisoner’s sister brought habeas corpus proceeding while he was being held in Korea). As early as the 17th century, the English Habeas Corpus Act of 1679 authorized complaints to be filed by “any one on... behalf” of detained persons, see 31 Car. II, ch. 2, and in 1704 the House of Lords resolved “[t]hat every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents, or friends, to apply for, and tíbtain a Writ of Habeas Corpus, in order to procure his liberty by due course of law.” See Ashby v. White, 14 How. St. Tr. 695, 814 (Q. B. 1704). Some early decisions in this country interpreted ambiguous provisions of the federal habeas corpus statute to allow “next friend” standing in connection with petitions for writs of habeas corpus, see, e. g., Collins v. Traeger, 27 F. 2d 842, 843 (CA9 1928); United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 (SDNY 1908), and Congress eventually codified the doctrine explicitly in 1948. See 28 U. S. C. § 2242 (1982 ed.) (“Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf ”) (emphasis added). A “next friend” does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest. Morgan v. Potter, 157 U. S. 195, 198 (1895); Nash ex rel. Hashimoto v. MacArthur, 87 U. S. App. D. C. 268, 269-270, 184 F. 2d 606, 607-608 (1950), cert. denied, 342 U. S. 838 (1951). Most important for present purposes, “next friend” standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action. Wilson v. Lane, 870 F. 2d 1250, 1253 (CA7 1989), cert. pending, No. 89-81; Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F. 2d 1050, 1053 (CA8), cert. denied, 483 U. S. 1033 (1987); Weber v. Garza, 570 F. 2d 511, 513-514 (CA5 1978). Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, see, e. g., Morris v. United States, 399 F. Supp. 720, 722 (ED Va. 1975), and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest. Davis v. Austin, 492 F. Supp. 273, 275-276 (ND Ga. 1980) (minister and first cousin of prisoner denied “next friend” standing). The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court. Smith, supra, at 1053; Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949, 952 (MD Tenn. 1984). These limitations on the “next friend” doctrine are driven by the recognition that “[i]t was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends.” United States ex rel. Bryant v. Houston, 273 F. 915, 916 (CA2 1921); see also Rosenberg v. United States, 346 U. S. 273, 291-292 (1953) (Jackson, J., concurring with five other Justices) (discountenancing practice of granting “next friend” standing to one who was a stranger to the detained persons and their case and whose intervention was unauthorized by the prisoners’ counsel). Indeed, if there were no restriction on “next friend” standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. Ill simply by assuming the mantle of “next friend.” Whitmore, of course, does not seek a writ of habeas corpus on behalf of Simmons. He desires to intervene in a state-court proceeding to appeal Simmons’ conviction and death sentence. Under these circumstances, there is no federal statute authorizing the participation of “next friends.” The Supreme Court of Arkansas recognizes, apparently as a matter of-common law, the availability of “next friend” standing in the Arkansas courts, see Franz v. State, 296 Ark., at 184, 754 S. W. 2d, at 840-841, but declined to grant it to Whitmore. Without deciding whether a “next friend” may ever invoke the jurisdiction of a federal court absent congressional authorization, we think the scope of any federal doctrine of “next friend” standing is no broader than what is permitted by the habeas corpus statute, which codified the historical practice. And in keeping with the ancient tradition of the doctrine, we conclude that one necessary condition for “next friend” standing in federal court is a showing by the proposed “next friend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability. That prerequisite for “next friend” standing is not satisfied where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded. See Gilmore v. Utah, 429 U. S., at 1017 (Stevens, J., concurring). Although we are not here faced with the question whether a hearing on mental competency is required by the United States Constitution whenever a capital defendant desires to terminate further proceedings, such a hearing will obviously bear on whether the defendant is able to proceed on his own behalf. The Supreme Court of Arkansas requires a competency hearing as a matter of state law, and in this case it affirmed the trial court’s finding that Simmons had “the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.” Simmons v. State, 298 Ark., at 194, 766 S. W. 2d, at 423. At oral argument, Whitmore’s counsel questioned the validity of the waiver, but we find no reason to disturb the judgment of the Supreme Court of Arkansas on this point. Simmons was questioned by counsel and the trial court concerning his choice to accept the death sentence, and his answers demonstrate that he appreciated the consequences of that decision. He indicated that he understood several possible grounds for appeal, which had been explained to him by counsel, but informed the court that he was “not seeking any technicalities.” Tr. 15. In a psychiatric interview, Simmons stated that he would consider it “ ‘a terrible miscarriage of justice for a person to kill people and not be executed,’ ” id., at 29, and there was no meaningful evidence that he was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision. See Rees v. Peyton, 384 U. S. 312, 314 (1966). We therefore hold that Whitmore, having failed to establish that Simmons is unable to proceed on his own behalf, does not have standing to proceed as “next friend” of Ronald Gene Simmons. * * * At the beginning of this century, the Court confronted a situation similar to this in which a concerned citizen sought to bring an ordinary civil action to secure relief for a condemned man. The Court’s response on that occasion is equally apt today: “However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.” Gusman v. Marrero, 180 U. S. 81, 87 (1901). Jonas Whitmore lacks standing to proceed in this Court, and the writ of certiorari is dismissed for want of jurisdiction. See Doremus v. Board of Education of Hawthorne, 342 U. S. 429 (1952). It is so ordered. In addition to the constitutional requirements of Art. Ill, the court has developed several now-familiar prudential limitations on standing. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472-475 (1982). These limitations are not involved in this ease. The eases relied upon by petitioner to establish that the strict requirement of standing, in some circumstances, is only a “rule of practice” that can be relaxed in view of countervailing policies are inapposite, because they concern prudential barriers to standing, not the mandates of Art. III. See Eisenstadt v. Baird, 405 U. S. 438, 445 (1972); Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965); United States v. Raines, 362 U. S. 17, 22 (1960). Because we conclude that petitioner has not established Art. Ill standing, we need not decide whether it would be appropriate in this type of action to relax the general prudential rule that a litigant “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U. S. 490, 499 (1975). One section of the former habeas corpus statute provided that “[alpplication for writ of habeas corpus shall be... signed by the person for whose relief it is intended.”

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TRI-CROWN, INC.; John Ventimiglia; WVS Investment Joint Venture; Richard Walker; Lee E. Pittle; Michael Stanley, Plaintiffs-Appellants, v. AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION; AmFed Financial Corp.; Centurion Development Corp., Defendants-Appellees. No. 89-1124. United States Court of Appeals, Tenth Circuit. July 11, 1990. Patrick J. Canty of Bruce Wright P.C., Colorado Springs, Colo., for plaintiffs-appellants Tri-Crown, Inc. and WVS Inv. Joint Venture. J. Gregory Walta, Colorado Springs, Colo., for plaintiff-appellant John M. Ven-timiglia. Dan S. Hughes of Trott, Kunstle & Hughes, Colorado Springs, Colo., for plaintiff-appellant Michael F. Stanley. Richard L. Walker, pro se. Lee E. Pittle, pro se. Gregory B. Kanan and Elizabeth T. Wald of Rothgerber, Appel, Powers & Johnson, Denver, Colo., for defendants-appellees American Federal Sav. & Loan Ass’n and Centurion Development Corp. Bruce N. Warren of Hecox, Tolley, Keene & Beltz, P.C., Colorado Springs, Colo., for defendant-appellee AmFed Financial Corp. Before ANDERSON, BARRETT and BALDOCK, Circuit Judges. PER CURIAM. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. Plaintiffs-appellants instituted the underlying action against defendants-appellees to recover damages for an alleged violation of the antitying provisions of the Thrift Institutions Restructuring Act (TIRA), 12 U.S.C. § 1464(q)(1). The district court dismissed plaintiffs’ case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. I. As an initial matter, we must address defendants’ contention that we lack jurisdiction over this appeal because plaintiffs’ notice of appeal failed to “specify the party or parties taking the appeal” as required by Fed.R.App.P. 3(c). Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285, 292 (1988). Failure to comply with the specificity requirement constitutes a jurisdictional bar to an appeal. Id. The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the opposition and to the court of the identity of the appellant or appellants .... The specificity requirement of Rule 3(c) is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal. Plaintiffs’ notice of appeal named each plaintiff in the caption and recited in the body of the notice: “Notice is hereby given that the Plaintiffs above-named hereby appeal to the United States Court of Appeals from (sic) the Tenth Circuit from the Order of Dismissal entered in this action on the 12th day of April 1989.” The notice also contained separate signature blocks for each plaintiff or his attorney. Defendants argue that the notice of appeal does not comply with Rule 3(c) because “the litigants are not named in the body of the notice and Appellants’ reference to ‘Plaintiffs above-named’ is ... misleading. ... It is a generic reference that does not specify which of the plaintiffs named in the caption are also appellant parties.” Memorandum Brief in Support of Dismissal of Appeal at 4. We disagree. The caption of the notice of appeal named each plaintiff specifically, and the body of the notice incorporated the caption by reference. “[T]he intent to appeal of the parties] named in the caption was manifest from a reading of the body of the notice of appeal and the caption.” Maria-ni-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.1989). We agree with the First Circuit that “[t]he caption should be looked at as part of the entire notice.” Id. In this case, the existence of a signature block for each plaintiff also clearly indicated which parties were appealing. Under the circumstances, we hold that plaintiffs’ notice of appeal was sufficient “to provide notice both to the opposition and to the court of the identity of the appellant or appellants.” Torres, 487 U.S. at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. We therefore have jurisdiction over plaintiffs’ appeal. II. The antitying provisions of the TIRA provide as follows: (1) An association shall not in any manner extend credit, lease, or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement— (A) that the customer shall obtain additional credit, property, or service from such an association, or from any service corporation or affiliate of such association, other than a loan, discount, deposit, or trust service; (B) that the customer provide additional credit, property, or service to such association, or to any service corporation or affiliate of such association, other than those related to and usually provided in connection with a similar loan, discount, deposit, or trust service; and (C) that the customer shall not obtain some other credit, property, or service from a competitor of such an association, or from a competitor of any service corporation or affiliate of such association, other than a condition or requirement that such association shall reasonably impose in connection with credit transactions to assure the soundness of credit. 12 U.S.C. § 1464(q)(1). An “association” under the TIRA is “a Federal savings and loan association or a Federal savings bank chartered by the [Federal Home Loan Bank] Board under [12 U.S.C.] section 1464.” 12 U.S.C. § 1462(d). Although the three subsections of section 1464(q)(1) set forth above are listed in the conjunctive, they are interpreted in the disjunctive, i.e., a complaint need only allege a violation of one of the subsections to state a claim for relief. Bruce v. First Fed. Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 717 (5th Cir.1988). Plaintiffs alleged in their complaint the following pertinent facts. In 1985, TriCrown, Inc. and WVS Investment Joint Venture (WVS) applied for and received from American Federal Savings and Loan (American Federal) two loans for the acquisition of thirty-eight acres in Colorado Springs, Colorado, for a project known as “Centennial West.” Messrs. Ventimiglia, Stanley, Pittle, and Walker personally guaranteed the acquisition loans. Centennial West was to be built in two phases, the first of which was to be the “Shoppette.” Plaintiffs built the Shoppette in 1986 using a construction loan from American Federal. The second phase (Phase II) was to be a shopping center, the anchor tenants of which were to be Albertson’s Food Store (Albertson’s) and Longs Drug Store (Longs). In November of 1985, Tri-Crown, Albert-son’s, and Longs signed a joint development agreement which, among other things, obligated Tri-Crown to commence construction of Phase II within ninety days after Longs and Albertson's issued notices to proceed, so long as the notices were issued within three years of execution of the joint development agreement. Plaintiffs alleged that beginning in 1985 and continuing thereafter, American Federal repeatedly assured plaintiffs it would provide the construction financing for Phase II. In 1987, one or more agents of American Federal began urging Mr. Walker to push Albertson’s and Longs to issue the notices to proceed so that construction of Phase II could begin. Mr. Walker advised the agents that he would do so but that American Federal must be prepared to advance construction money shortly thereafter since Tri-Crown was obligated to commence construction within ninety days of the notices to proceed. Mr. Walker also advised the agents that American Federal must be prepared to back the project fully once Albert-son’s and Longs committed themselves to construction. Plaintiffs alleged that an agent of American Federal repeatedly assured Messrs. Walker and Pittle that American Federal supported the project and would be ready to fund the construction. In January of 1988, Albertson’s indicated it was ready to proceed with construction and wanted to move in by Thanksgiving. In July of 1988, Albertson’s and Longs both issued formal notices to proceed. At American Federal’s insistence, WVS was restructured in July to make Mr. Ventimig-lia the sole managing partner, with whom American Federal could negotiate all loans. Plaintiffs specifically alleged that “[i]n July of 1988, all details of all loans had been negotiated and the parties were ready to extend all loans, except that the amount to be guaranteed by Ventimiglia had not yet been set.” Rec. Vol. I, Doc. 1, at 4. Plaintiffs further alleged: “In meetings from July through September, 1988, American Federal repeated that it was prepared to close, if the guarantee of Ventimiglia was signed.” Id. Also in July, immediately after Albert-son’s and Longs issued their notices to proceed, an agent for Centurion, an affiliate of American Federal, approached a partner of Mr. Ventimiglia and proposed that their partnership assume certain nonperforming loans held by American Federal. Mr. Ventimiglia and his partners ultimately refused to assume these loans. They conveyed their decision to American Federal on August 27, 1988. Plaintiffs alleged that in retaliation for Mr. Ventimig-lia’s refusal to assume American Federal’s loans, beginning on September 1, 1988, American Federal made additional demands for collateral from plaintiffs which it knew plaintiffs could not meet. Plaintiffs further alleged that “[b]y refusing to advance construction funds to Plaintiffs unless other non-performing loans of American Federal were assumed by Ventimiglia and other of his partners, and knowing Plaintiffs have no other financing available, American Federal is forcing Tri-Crown to default upon the Joint Venture Agreement.” Id. at 5. Plaintiffs alleged that the foregoing actions of defendants violated the provisions of 12 U.S.C. § 1464(q)(1)(A) and (B). Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) on several grounds, including that plaintiffs had not alleged that defendants extended credit on .a requirement or condition that constituted a tying arrangement and an unusual banking practice. Specifically, defendants contended that plaintiffs failed to allege that defendants actually extended them credit, and that the requirement that WVS restructure its partnership was not an unusual banking practice. The district court granted the motion to dismiss on the ground that since plaintiffs refused to accept the construction loan on the conditions defendants attempted to impose, there was no “extension of credit" as required by the TIRA, so plaintiffs failed to state a claim thereunder. Rec.Vol. I, Doc. 5, at 2. We review the dismissal of an action for failure to state a claim pursuant to Rule 12(b)(6) de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). We must accept all the factual allegations as true and must draw all reasonable inferences in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). A case should not be dismissed for failure to state a claim unless the court determines beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). To state a claim for relief under 12 U.S.C. § 1464(q)(1)(A) or (B), a plaintiff must allege that an association (1) extended credit (2) on the condition or requirement (3) that its customer obtain or provide some additional credit, property, or service. See Bruce, 837 F.2d at 718; cf. Sharkey v. Security Bank & Trust Co., 651 F.Supp. 1231, 1232 (D.Minn.1987) (setting forth same elements as necessary to state claim under antitying provisions of Bank Holding Company Act, 12 U.S.C. § 1972(1)); Nordic Bank PLC v. Trend Group, Ltd., 619 F.Supp. 542, 552 (S.D.N.Y.1985) (same). The primary issue on appeal is whether plaintiffs sufficiently alleged the existence of the first element, an extension of credit. The TIRA does not define what constitutes the extension of credit. The legislative history of the TIRA does not shed much light on the issue but does provide: Under Section 331 of the bill, federal thrift institutions are made subject to the anti-tying restrictions generally comparable to those applicable to bank holding companies. The provision prohibits an association from conditioning the availability or the terms of credit, property or services on a potential customer’s agreement to: a. Obtain other credit, property, or services from the association, its service corporation or affiliates; b. Provide other property, credit, or services to the association, its service corporation or affiliates; or c. Refrain from obtaining other credit, property or services from a competitor of the association, its service corporation or affiliates. S.Rep. No. 536, 97th Cong., 2d Sess. 17, reprinted in 1982 U.S.Code Cong. & Admin.News 3054, 3071 (emphasis added). Since the antitying provisions of the TIRA are based on those of the Bank Holding Company Act (BHCA), which apply to banks and single- and multi-bank holding companies, we may look to cases concerning the antitying provisions of the BHCA, as well as that act’s legislative history, for guidance. The Senate Report that accompanied the bill that added the antitying provisions to the BHCA, provides as follows: During its deliberations, the committee was concerned that there be adequate safeguards against the possibility of misuse of economic power of a bank.... The provision approved by the committee is intended to provide specific statutory assurance that the use of the economic power of a bank will not lead to a lessening of competition or unfair competitive practices.... The language of the bill makes clear that the availability to a poten' al customer of any credit, property, or service of a bank may not be conditioned upon that customer’s use of any other credit, property, or service offered by the bank ...; upon the provision by such customer of any other credit, property, or service to the bank ...; or that the potential customer shall not obtain some other credit, property, or service from a competitor of the bank.... S.Rep. No. 1084, 91st Cong., 2d Sess. 16-17, reprinted in 1970 U.S.Code Cong. & Admin.News 5519, 5535 (emphasis added). The House Conference Report notes that “[t]he House conferees agreed to this [anti-tying] provision, particularly because of the necessity for protecting small independent businessmen from unfair and predatory business practices by banks, bank holding companies and subsidiaries thereof.” H.R. Conf.Rep. No. 1747, 91st Cong., 2d Sess. 29, reprinted in 1970 U.S.Code Cong. & Admin.News 5519, 5580. The court in Nordic Bank PLC, noting that the legislative history of the BHCA does not define the term “extension of credit,” determined that the term “must be construed to accord with the underlying purpose of the anti-tying provisions. A particular practice should be considered an ‘extension of credit’ if it manifests the improper economic leverage that the Act seeks to prevent.” 619 F.Supp. at 554. Accord Amerifirst Properties, Inc. v. FDIC, 880 F.2d 821, 823-24 (5th Cir.1989). This court has never addressed directly the issue of what constitutes an extension of credit under either the BHCA or the TIRA. In Clark v. United Bank of Denver National Association, 480 F.2d 235, 236-37 (10th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240 (1973), we were concerned with the propriety of entering summary judgment against the plaintiffs on their antitrust claims under the Sherman and Clayton Acts, 15 U.S.C. §§ 1, 2, and 18. One of the plaintiffs’ arguments was that their oral promise, made during negotiations with the bank, that they would maintain an interest-free deposit of $1,500,000 in the bank if the loan were approved, constituted a tying arrangement and a per se violation of the Sherman Act. 480 F.2d at 238. We rejected the plaintiffs’ argument on the basis of the legislative history of the BHCA concerning permissible banking practices, and noted in passing that “the complained about tying arrangement never became part of a final agreement. It was only discussed and considered as a part of the negotiating process.” Id. The district court, below, relied on this language in holding that because plaintiffs refused to accept the construction loan on the conditions American Federal attempted to impose, the tying arrangement never became part of a final agreement and there was no extension of credit. A further reading of Clark, however, shows that it is factually distinguishable from the present ease. In discussing the extent of the parties’ negotiations, we said: [I]n the extensive depositions the evidence is entirely lacking to show even that loan negotiations ever reached the point of a formal written application for a loan by appellants. Nor is there any evidence of an oral agreement between the parties concerning even any phase of a loan agreement. In fact, there were only conversations had between appellants and officers of [the appellee] concerning the possibility of a loan. Id. Plaintiffs’ allegations in the present action are more akin to those of the plaintiff in Bruce v. First Federal Savings and Loan Association of Conroe, Inc., supra, at 580. The plaintiff in Bruce alleged that the defendant made the plaintiff’s partnership three secured loans which the plaintiff personally guaranteed. The defendant subsequently extended the maturity dates of two of the loans and, the plaintiff alleged, offered to extend the maturity date of the third loan, originally due on November 20, 1984, if the partnership paid additional interest through the end of 1984. The partnership paid the additional interest by transferring, at the defendant’s suggestion, a principal payment originally made on one of the other loans to an interest payment on the subject loan. Nonetheless, in January of 1985, the defendant refused to execute a written loan extension unless the partnership found a participating lender to fund part of the loan extension. The partnership found a participating lender and so informed the defendant, but the defendant refused to extend the loan or cooperate in its refinancing. 837 F.2d at 713. The district court dismissed the plaintiffs complaint for failure to state a claim for relief under the TIRA. Id. The Fifth Circuit reversed the dismissal as to the plaintiffs claim under 12 U.S.C. § 1464(q)(l)(B), which was based on the allegation that the defendant conditioned the extension of the loan’s maturity date on the partnership authorizing the transfer of the principal payment on another loan to an interest payment on the subject loan. 837 F.2d at 717-18. The appellate court noted that to state a claim under 12 U.S.C. § 1464(q)(1)(B), the plaintiff had to allege that the defendant (1) extended credit (2) on the condition (3) that the plaintiff provide an additional service to the defendant. 837 F.2d at 718. The court held that the plaintiff “satisfie[d] the extension of credit requirement by alleging that [the defendant] orally agreed to extend or refinance the loan.” Id. (emphasis added). The Fifth Circuit has since commented on its ruling in Bruce as follows: In Bruce, we held that “Bruce [the plaintiff] satisfies the extension of credit requirement by alleging that First Federal orally agreed to extend or refinance the loan.” Thus, the bank’s agreement, regardless of its actual performance concerning the agreement, was enough to satisfy the requirement that the bank “extend credit.” We also stated in Bruce that “First Federal’s offer to refinance the loan if a participating lender could be found may constitute an extension of credit.” The language in Bruce indicates that an offer of a tied loan satisfies the term “extension of credit” and is not dependent upon the fate of the actual loan itself. Amerifirst Properties, Inc., 880 F.2d at 824-25 (citations omitted) (emphasis in original). Keeping in mind Nordic Bank PLC’s suggestion that “[a] particular practice should be considered an ‘extension of credit’ if it manifests the improper use of economic leverage that the Act seeks to prevent,” 619 F.Supp. at 554, and the statements in the legislative history of both the TIRA and the BHCA that the antitying provisions were intended to prohibit the placement of improper conditions on the availability of credit to a potential customer, see S.Rep. No. 536, 97th Cong., 2d Sess. 17, reprinted in 1982 U.S.Code Cong. & Admin.News 3054, 3071 (TIRA); S.Rep. No. 1084, 91st Cong., 2d Sess. 16-17, reprinted in 1970 U.S.Code Cong. & Admin. News 5519, 5535 (BHCA), we conclude that a loan need not actually be consummated in order for there to be an “extension of credit” under the TIRA. As plaintiffs suggested below, it makes little sense to interpret the TIRA in such a fashion as to provide protection only to those customers who actually participate in an improper tying arrangement with a thrift institution by accepting the conditions imposed. Plaintiffs here alleged that American Federal orally agreed to give them a construction loan and that after all but one minor term were agreed upon, the thrift attempted to impose a condition that Mr. Ventimiglia and his partners assume certain nonperforming loans of American Federal. American Federal disputed both below and on appeal plaintiffs’ assertion that American Federal orally agreed to give plaintiffs the construction loan. We are concerned only with the sufficiency of plaintiffs’ complaint at this stage in the proceedings, however, not the adequacy of their proof. In accordance with their theory, plaintiffs will need to prove that American Federal agreed to make them the loan and that the loan was, in fact, conditioned upon the assumption of other nonperforming loans to unrelated or incidentally related customers, but they have pled sufficient facts demonstrating an “extension of credit” to state a claim for relief. See, e.g., Swerdloff v. Miami Nat’l Bank, 584 F.2d 54 (5th Cir.1978) (allegation that bank conditioned any further advancement of funds under an existing accounts receivable financing agreement upon plaintiffs’ transfer of capital stock to another bank customer was sufficient to state a claim for relief under antitying provision of BHCA). American Federal also contends that plaintiffs failed to state a claim for relief because they did not allege sufficient facts to show that the conditions allegedly imposed upon the construction loan constituted an unusual banking practice proscribed by the TIRA. We disagree. In Palermo v. First National Bank & Trust Co. of Oklahoma City, 894 F.2d 363, 369 (10th Cir.1990), we discussed permissible and impermissible banking practices under the antitying provisions of the BHCA and stated that “[conditioning the extension of credit to a bank customer on the requirement that the customer participate in the bank’s bad loans to an unrelated customer surely is an anticompetitive practice proscribed by [12 U.S.C.] § 1972.” Such a practice is equally proscribed by the TIRA. The judgment of the District Court for the District of Colorado is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion. Plaintiffs’ motion to include supplemental exhibits in their brief on appeal that were not before the district court is DENIED. . Tri-Crown, Inc., is a Colorado corporation. WVS is a Colorado partnership, the partners of which are Mr. Ventimiglia, Mr. Stanley, and Colorado Investment Co., a Colorado partnership, the partners of which are Mr. Pittle and Mr. Walker. . Both Centurion and American Federal are subsidiaries of AmFed Financial Corporation. Centurion was organized primarily to hold and deal in real estate.

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?

Leon S. DOLATA and Robert A. Dolata, Petitioners, v. RAILROAD RETIREMENT BOARD, Respondent. No. 299, Docket 84-4093. United States Court of Appeals, Second Circuit. Argued Oct. 19, 1984. Decided Jan. 8, 1985. Edward J. Taublieb, Buffalo, N.Y. (Barth, Sullivan & Lancaster, Buffalo, N.Y., of counsel), for petitioners. Marguerite P. Dadabo, General Atty., Railroad Retirement Board, Chicago, Ill. (Steven A. Bartholow, Deputy General Counsel, Edward S. Hintzke, Asst. General Counsel, Railroad Retirement Board, Chicago, Ill., of counsel), for respondent. Before OAKES and WINTER, Circuit Judges and CLARIE, District Judge. The Honorable T. Emmet Clarie, Senior United States District Judge for the District of Connecticut, sitting by designation. WINTER, Circuit Judge: Petitioners Leon S. Dolata and Robert A. Dolata seek review of a decision of the Railroad Retirement Board (“Board”) denying them a residual lump-sum death benefit payable to them as survivors of their brother, Michael R. Dolata, under Section 6(c)(l)(v) of the Railroad Retirement Act, 45 U.S.C. § 231e(c)(l)(v) (1982). We reverse and remand with directions to award them the benefit. Background The pertinent facts of this case are not in dispute. Leon S. Dolata and Robert A. Dolata are the only siblings and, except for a natural child, the only close relatives of Michael R. Dolata. In 1959, Elizabeth Marie Dolata was born of Michael Dolata’s marriage to Marianne Elizabeth Ptak. Michael and Marianne were divorced in 1965. On January 13, 1970, an order of adoption was entered in the Erie County, New York Surrogate’s Court, under which Elizabeth was adopted by her natural mother and her new husband, Charles F. Fraresso. Under New York law, N.Y.Dom.Rel.L. § 117 (McKinney 1977), that adoption terminated the legal relationship of parent and child between Michael Dolata and Elizabeth Fraresso. Michael Dolata, who was a railroad employee insured under the Railroad Retirement Act, died on December 4, 1979, leaving a lump-sum death benefit to be paid under Section 6(c) of the Railroad Retirement Act, 45 U.S.C. § 231e(c). He left no surviving widow, parent, grandchild, or grandparent. Elizabeth Fraresso applied for the lump-sum benefit on June 1, 1981, and the petitioners applied for the same benefit on November 23, 1981. The Bureau of Retirement Claims paid Elizabeth the benefit and denied the petitioners’ claim. On May 16, 1983, petitioners filed an appeal of their claim to the Board’s appeals referee who denied it by memorandum opinion. Petitioners then exhausted all further administrative remedies and sought review in this court pursuant to 45 U.S.C. § 231g and § 355(f). Discussion This appeal thus raises a pure question of law. Since no spouse, grandchild, or parent survived Michael Dolata, it is clear that under Section 6 of the Railroad Retirement Act, 45 U.S.C. § 231e(c), the Dolata brothers would be entitled to the benefit if there is no legal child. The Railroad Retirement Act adopts the provisions of the Social Security Act for purposes of determining whether an applicant is the child of a deceased employee, which in turn provides that the question is to be governed by the law of the state where the employee was domiciled at the time of his death. Michael Dolata died while domiciled in New York. New York Domestic Relations Law § 117 provides that adoption terminates the right of a natural child to take from his natural parent in intestate succession: § 117 Effect of Adoption 1. After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated. The rights of an adoptive child to inheritance and succession from and through his natural parents shall terminate upon the making of the order of adoption except as hereinafter provided____ 2. This section shall apply only to the intestate descent and distribution of real and personal property and shall not affect the right of any child to distribution of property under the will of his natural parents ... or under any inter vivos instrument heretofore or hereafter executed by such natural parent ... or kindred. See also In re Bielinski v. Herman Unger-man, Inc., 103 A.D.2d 73, 479 N.Y.S.2d 585 (1984). However, New York law simultaneously confers on the child the right to take in intestate succession from his or her adoptive parent. N.Y.Dom.Rel.Law § 117. In affirming the award to Elizabeth Fraresso, the Board did not apply New York State law but relied instead on the so-called “deemed child” provisions of the Social Security Act. Those provisions, entitled “Qualification of Children Not Qualified Under State Law,” were enacted in 1965, as part of a series of extensive amendments to the Social Security Act. The deemed child amendment provides: (3) An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the child of such insured individual if: ... (C) in the case of a deceased individual— (i) such insured individual— (I) had acknowledged in writing that the applicant is his or her son or daughter, (II) had been decreed by a court to be the mother or father of the applicant, or (III) had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter, and such acknowledgment, court decree, or court order was made before the death of such insured individual, or (ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died. 42 U.S.C. § 416(h)(3). The Board argues that Elizabeth falls under part (ii) of this section, citing a Board General Counsel Opinion, Quinton v. Garrett, No. L-78-264.3. We disagree. We first consider whether the deemed child provisions apply to legitimate children such as Elizabeth who are later adopted by someone else. We conclude that they do not and that they were enacted to provide rules of eligibility for benefits, uniform across state lines, with regard to illegitimate children. The pertinent legislative history describes this purpose of the amendment: (j) Definition of child The bill provides that a child be paid benefits based on his father’s earnings without regard to whether he has the status of a child under State inheritance laws if the father was supporting the child or had a legal obligation to do so. Under present law, whether a child meets the definition for the purpose of getting child’s insurance benefits based on his father’s earnings depends on the laws applied in determining the devolution of interstate (sic) personal property in the State in which the worker is domiciled. This provision would be effective for the second month after the month of enactment. It is estimated that 20,000 individuals (children and their mothers) will become immediately eligible for benefits under this provision. 10. Definition of Child Under present law, whether a child meets the definition of a child for the purpose of getting child’s insurance benefits based on his father’s earnings depends on the laws applied in determining the devolution of intestate personal property in the State in which the worker is domiciled. The States differ considerably in the requirements that must be met in order for a child born out of wedlock to have inheritance rights. In some States a child whose parents never married can inherit property just as if they had married; in others such a child can inherit property as the child of the man only if he was acknowledged or decreed to be the man’s child in accordance with requirements specified in the State law; and in several States a child whose parents never married cannot inherit his father’s intestate property under any circumstances. As a result, in some cases benefits must be denied where a child is living with his mother and father in a normal family relationship and where neither the child nor his friends and neighbors have any reason to think that the parents were never married. The committee believes that in a national program that is intended to pay benefits to replace the support lost by a child when his father retires, dies, or becomes disabled, whether a child gets benefits should not depend on whether he can inherit his father’s intestate personal property under the laws of the State in which his father happens to live. The committee has therefore included in the bill a provision under which benefits would be paid to a child on the earnings record of his father, even though the child cannot inherit the father’s intestate property, if the father had acknowledged the child in writing, had been ordered by a court to contribute to the child’s support, had been judicially decreed to be the child’s father, or is shown by other evidence satisfactory to the Secretary of Health, Education and Welfare to be the child’s father and was living with or contributing to the support of the child. S.Rep. No. 404, 89th Cong., 1st Sess. 1, 17, 109-110, reprinted in 1965 U.S.Code Cong. & Ad.News, 1943, 1958, 2049-50. The Supreme Court, in upholding the constitutionality of the deemed child provisions in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), recognized that these provisions were intended to provide illegitimate children who were dependent on a parent with a means of establishing paternity after that parent’s death. In contrast to the Board, we do not read these provisions to provide an additional mechanism for establishing paternity when a child already has legitimate parents under state law under § 416(h)(2)(A). Such a strained reading would allow a child who was subsequently adopted to take from two sets of parents, a result surely not intended by the 1965 amendment. We thus regard the purpose of the deemed child provisions to be that of setting forth uniform rules for establishing a parent-child relationship where one has not previously existed. We also note that the structure and relationship of the provisions in question fully supports our conclusion that the statute does not apply to legitimate children of an insured later adopted by another. We recognize that a hypertechnical reading of Section 416(h) might seem to allow an adopted child who was not entitled under state law to take from his or her natural parent under' § 416(h)(2)(A) to resort to § 416(h)(3)(C), which literally covers sons or daughters not deemed to be children under § 416(h)(2). We are unconvinced, however, that such language applies to children other than those who have never had a legally recognized parent-child relationship with the insured. Moreover, Elizabeth appears to be expressly barred from taking the lump sum award by the terms of the statute. Although the Board argues on appeal that its award to Elizabeth falls under part (ii) of the subsection, that provision explicitly requires that Michael Dolata be living with or contributing to the support of the applicant at the time of his death. Michael Dolata was doing neither, and we are not persuaded by the Board’s contention that since the lump sum award is in effect a refund of contributions rather than income support, the requirement of dependency is either irrelevant or may be waived by the Board. As described above, the legislative history clearly indicates otherwise. We thus believe that such a showing of dependency is a necessary condition to a lump sum award under § 416(h)(3)(C)(ii). Other provisions of § 416(h)(3)(C) confirm our view. Part I requires an acknowl-edgement of paternity in writing, which was neither provided here nor is seemingly relevant to the case of a natural and legitimate child at birth such as Elizabeth. Part II requires a court decree stating that the insured is the parent. No such decree is possible where a later adoption by another has occurred. Part III requires. a court ordered support decree, which was rendered impossible under New York law by Elizabeth’s adoption so far as Michael Do-lata is concerned. N.Y.Dom.Rel.L. § 117. Thus, while the clear ineligibility of Elizabeth under the deemed child provisions is an independent ground for reversal, we also note that the structure and relationship of the statutory provisions supports our conclusion that they were not intended to apply to legitimate children later adopted by another and eligible to take from the adoptive parent under § 416(h)(2)(A). We therefore reverse and remand with directions to award the benefits in question to petitioners. . 45 U.S.C. § 231e(c) provides, in pertinent part: (c) Payments in the absence of further benefits (1) Whenever it shall appear, with respect to the death of an employee, thafno benefits, or no further benefits (other than benefits payable to a widow, widower, or parent under either this subchapter or the Social Security Act [42 U.S.C. § 301 et seq.] upon attaining the age of eligibility therefor at a future date) will be payable under this subchapter or under the Social Security Act, a lump sum in an amount computed under subdivision (2) of this subsection shall be paid to such person or persons as the deceased employee may have designated by a writing filed with the Board prior to his or her death, or if there be no designation, to the following person (or, if more than one, in equal shares to the persons) whose relationship to the deceased employee will have been determined by the Board and who will not have died before receiving payment of the lump sum provided for in this subdivision— (i) the widow or widower of the deceased employee who was living with such employee at the time of such employee’s death; or (ii) if there be no such widow or widower, to any child or children of such employee; or (iii) if there be no such widow, widower, or child, to any grandchild or grandchildren of such employee; or (iv) if there be no such widow, widower, child, or grandchild, to any parent or parents of such employee; or (v) if there be no such widow, widower, child, grandchild, or parent, to any brother or sister of such employee; or (vi) if there be no such widow, widower, child, grandchild, parent, brother or sister, to the estate of such employee. . 45 U.S.C. § 231e(a)(7) provides: (7) In determining for purposes of this subsection and subsections (c) and (d) of this section whether an applicant is the widow, widower, child, or parent of an employee as claimed, the rules set forth in section 216(h) of the Social Security Act [42 U.S.C. § 416(h) ] shall be applied. . 42 U.S.C. § 416(h)(2)(A) provides; (2)(A) In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this sub-chapter, the Secretary shall apply law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

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, Appellee, v. Seymour BEITSCHER and James E. Riley, Appellants. Nos. 71-1669, 71-1670. United States Court of Appeals, Tenth Circuit. Oct. 3, 1972. Charles F. Brega, Denver, Colo., for appellants. W. Allen Spurgeon, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee. Before SETH and HOLLOWAY, Circuit Judges, and LANGLEY, District Judge. SETH, Circuit Judge. This is a direct appeal from convictions of mail fraud in violation of 18 U. S.C. § 1341 by defendants, Seymour Beitscher and James E. Riley. On October 18, 1965, Air-Way Saniti-zor, Inc., an Ohio corporation which manufactures vacuum cleaners, entered into a franchise agreement with Seymour Beitscher, dba Air-Way of Colorado, for the distribution of the Air-Way Sanitizor vacuum cleaner and related parts, accessories, and attachments. The franchise was cancelled on September 27, 1966, and reference herein to Air-Way in no way relates to the Ohio manufacturer. Appellant Beitscher, as president and chief executive officer of Air-Way of Colorado, was responsible for the hiring and training of the company’s salesmen. Among the salesmen were appellant, James Riley, and defendants, Newton Paletz, John Broyles, and Albert Grey. Numerous other salesmen were employed at different times, having been trained by Beitscher, Riley, and Paletz. Larman Blanchaert, secretary-treasurer of AirWay, was also named as a defendant, but was acquitted on all counts. The indictment arose out of the referral selling plan devised by Mr. Beitscher. Prospective purchasers were initially contacted by either a telephone solicitor or through a classified advertisement for employment with Air-Way. Typically the advertisements stated that married women were needed “to make over $200 a month” in their spare time at home. The advertisements noted that each woman would receive a cash advance as high as $50.00, plus a bonus and free training at home. None of the advertisements mentioned the necessity of purchasing a vacuum cleaner prior to being hired. In all of the advertisements a phone number was listed through which a prospective employee could reach a representative of Air-Way, and accordingly interviews were arranged. The majority of women contacted by Air-Way were in some financial difficulty and in need of additional income. Each interview was to take place at the woman’s home and in the presence of her husband. The record shows that the employment interviews were in fact “openers” for vacuum cleaner sales. Provided with a stock sales pitch prepared by Beitscher, a salesman would appear at the prospective purchaser’s home, and would seek to ingratiate himself by explaining the prospects of earning money soliciting sales appointments over the telephone. A salesman would ordinarily commend his individual ability to consummate a sale, further suggesting the likelihood of a profitable working relationship. As the interview progressed it would become apparent that employment with Air-Way was conditioned on the purchase of a vacuum cleaner, but by this time the prospect was so interested in the prospect of being gainfully employed that the purchase seemed insignificant. In this atmosphere a sale would be made, formalized by a chattel mortgage and a Purchaser Employee Agreement. The cash price of the vacuum cleaner was $289.50. The majority of vacuum cleaners as shown by the record, however, were sold on a time payment plan, usually with a total price of $396.00, requiring monthly payments of $16.50. More often than not the paper was sold by Air-Way of Colorado to Nationwide Finance Company in Denver. When the vacuum cleaner was purchased, Air-Way then used one of several different “AirWay Purchaser Employee Agreements” to accomplish the referral selling plan. The first agreement provided for a payment of $50.00 for every appointment the purchaser arranged which resulted in an “approved” purchase of a vacuum cleaner. Also, it was agreed that in the event no purchase was made during any given month the employee would be paid $25.00 per month plus the amount of the employee’s monthly payment, provided further that the employee had arranged a sufficient number of “qualified” appointments from which twenty or more completed demonstrations resulted. An “approved” purchaser, was one who met certain indicia of acceptable credit enumerated in the Purchaser Employee Agreement; a “qualified” appointment, as well, was defined in terms of credit, though the ultimate decision as to whether an appointment was qualified and a sale or purchase approved was reserved to Beitscher. The second contract provided that a woman would receive $25.00 for the first appointment made by her which resulted in an approved purchase and $35.00 for each approved purchase thereafter. The agreement also provided that the company would make the employee’s monthly payment if the woman’s telephone solicitation resulted in one approved purchase per month. Absent a sale, the employee would receive $25.00 per month if she arranged twenty qualified appointments. The other three contracts were essentially the same, though payment was to be made in Gold Bond stamps instead of cash. Each of the contract forms was prepared by Beitscher and a Denver attorney. The chattel mortgages were unmistakably chattel mortgages, and the record shows that the numerous purchasers, including the Government’s twelve court witnesses, were aware that their “employment” was conditioned on the purchase of vacuum cleaners. It was also emphasized that if the phone solicitation was unproductive the employee would be responsible for the monthly payments. Finally, as a part of the overall sales scheme, the employee-purchasers were to receive a nonnegotiable advance payment coupon ranging in value from $25.00 to $50.00. The coupon could be exchanged at the company offices for a negotiable check of like amount once it had been established that the employee-purchaser’s credit was satisfactory. The advance was actually in the nature of a loan, however, as the amount of the payment check was included in the purchase price of the vacuum cleaner and was to be paid back with interest. Few employee-purchasers made any money, and the few who did made little. Appellants assert six contentions. The offenses charged in the indictment occurred between August 1965 and October 1967; the indictment, however, was not filed until April 8, 1970. As more than three years had elapsed between the last alleged offense and the commencement of trial on February 8, 1971, appellants first contend that the delay was inherently prejudicial, constituting a denial of their Fifth and Sixth Amendment rights to due process and to a speedy trial. Noting that the Sixth Amendment right traditionally has been limited to the time between arrest and trial, appellants nevertheless assert that the entire time between the date of the initial offense and sentencing should be considered. It is further urged that without explanation such a lengthy delay by the Government can be assumed to be inherently prejudicial. The law, however, is clear: the rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain tactical advantage or to harass the defendants. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. There has been no such showing here. The Sixth Amendment’s guarantee of a speedy trial is applicable only after the defendant has been accused, which is ordinarily when he has been charged with a crime. This matter has been fully discussed in the Marion case. The indictment was returned well within the applicable five year statute of limitations. 18 U.S.C. § 3282; cf. United States v. Blosser, 440 F.2d 697 (10th Cir.). Appellants' second contention is that the trial court’s failure to grant motions for severance constitutes reversible error. Pursuant to Rule 14, Fed.R. Crim.P., either severance of defendants or separate trials of counts may be granted if it appears that a defendant is prejudiced by a joinder of offenses or defendants. The gist of the argument here is that because most of the defendants were not associated with Air-Way during the entire period covered by the indictment there was confusion as to what evidence pertained to which defendant. Our reading of the record, however, shows that the task of segregating certain testimony was not confusing but simply cumbersome. The jury was frequently reminded of the limited applicability of certain evidence, and was carefully instructed to consider the guilt of each defendant only as to the counts applicable to him during his period of employment. Both Beitscher and Riley testified, relying on the defense of good faith, and their relationship during trial did not foster mutual antagonism or prejudice. No problem was raised under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, as initially contemplated by appellants’ motions for severance, and we find no manifestation of vicarious incrimination. The record does not indicate that the denial of the motions was an abuse of discretion. Lowther v. United States, 455 F.2d 657 (10th Cir.); United States v. Harris, 441 F.2d 1333 (10th Cir.); Bailey v. United States, 410 F.2d 1209 (10th Cir.). Thirdly, appellants assert that the evidence cannot support convictions of mail fraud under 18 U.S.C. § 1341. Appellants’ argument on this point does not go so much to the sufficiency of the evidence, but rather to the question of whether appellants’ conduct fairly deserves to be legally characterized as fraud. See e. g. United States v. Rabinowitz, 327 F.2d 62 (6th Cir.). Exaggerated sales talk, it is suggested, is not fraud, and it is urged that proof of mere questionable behavior cannot support a conviction of mail fraud. Cf. United States v. Lynn, 461 F.2d 759 (10th Cir.). The conduct in the case at bar, however, was more than questionable. The offense of mail fraud lies in the use of the mails in furtherance of a scheme to defraud or obtain money or property by fraudulent means. Marvin v. United States, 279 F.2d 451 (10th Cir.). A scheme to defraud is one which is reasonably calculated to deceive persons of ordinary prudence and comprehension. United States v. Seasholtz, 435 F.2d 4 (10th Cir.). In this regard we are satisfied that the evidence was more than ample to present a jury question, and under the applicable standard of review we are convinced that it was sufficient to sustain a jury finding that the sales scheme was calculated to deceive prospective purchasers. Glazer-man v. United States, 421 F.2d 547 (10th Cir.). We also take note that section 1341 was designed to protect the credulous as well as the skeptical. United States v. Sylvanus, 192 F.2d 96 (7th Cir.). Appellants’ suggestion that their use of the mails was somehow remote in time and not incident to an essential part of the scheme to defraud is without merit. Appellants’ fourth assertion is that the trial court committed reversible error by inadequately instructing the jury on the defense of good faith. We have held that an instruction on good faith in a prosecution for mail fraud must adequately and sufficiently apprise the jury of the defendant’s theory of defense. Beck v. United States, 305 F.2d 595 (10th Cir.). In the case at bar we believe that the instruction was clear and complete, fully satisfying acceptable standards. Sparrow v. United States, 402 F.2d 826 (10th Cir.). The trial court’s rejection of appellants’ instructions on the issues of good faith and intent, which additionally suggested that a favorable inference could be drawn from appellants’ reliance on legal counsel, does not constitute error. The sufficiency of the instructions is not determined by the giving or failure to give particular instructions, but rather by viewing all of the instructions as a whole. Beck v. United States, supra. Appellants also assert that the verdicts of not guilty with regard to defendants Blanehaert, Grey, and Broyles were so inconsistent with the verdicts of guilty as against themselves and defendant Paletz that the guilty verdicts cannot stand. However, assuming that the verdicts were inconsistent or logically incompatible, the verdicts are not thereby rendered invalid. Lowther v. United States, 455 F.2d 657 (10th Cir.); United States v. Cowley, 452 F.2d 243 (10th Cir.); Speers v. United States, 387 F.2d 698 (10th Cir.). Finally, appellants assert that publicity adverse to their trial attorney effectively denied them their rights to a fair trial and to effective counsel. Trial lasted fourteen days. On the ninth day of trial counsel for defendant Broyles moved for the admission of a newspaper clipping relating to appellants’ counsel's contemporaneous conviction for the misapplication of bank funds. Over a weekend about midway in the trial the Denver radio, television, and newspapers had given publicity to the conviction and a possible suspension from the practice of law. When the matter was brought to the attention of the court, the trial judge did not poll the jury as to whether they were aware of the publicity and whether it would affect their decision in the matter before them. Accordingly, it is urged that a new trial must be granted because the effect of the adverse publicity was unknown and no steps were taken to ascertain the extent of the prejudice. While as a general proposition the trial court has an affirmative duty to assess the extent to which the jurors’ impartiality has in fact been persuaded by extraneous influence, Silverthorne v. United States, 400 F.2d 627 (9th Cir.), the argument here rests upon three assumptions: (1) it first assumes that the jurors were actually aware of the publicity; (2) it assumes that publicity adversely reflecting on an attorney will be imputed to a client; and (3) it further assumes that there was sufficient probability of prejudice to warrant polling the jurors. During the colloquy between the court and counsel on this matter no request was made by any of the attorneys to question the jurors, and appellants’ counsel himself stated that he would object to a polling. The trial court was presented with the possibility that questioning the jurors would bring the matter to the attention of jurors who had not heard of it and unnecessarily emphasize it to the jurors who may have been familiar with it. Bearing this in mind, as well as the consideration that the publicity was unrelated to the issues being tried, no attempt was made to poll the jury. In our opinion despite these circumstances the matter remained within the sound discretion of the trial court. We find no abuse of discretion. 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 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.

The BOARD OF MANAGERS OF the ARKANSAS TRAINING SCHOOL FOR BOYS AT WRIGHTSVILLE et al., Appellants, v. Mrs. Nona Mae GEORGE et al., Appellees. No. 18536. United States Court of Appeals Eighth Circuit. May 23, 1967. Rehearing Denied June 21, 1967. Jack L. Lessenberry, Sp.Asst. Atty. Gen., Little Rock, Ark., for appellants; Bruce Bennett, Atty. Gen., Fletcher Jackson and H. Clay Robinson, Asst. Attys. Gen., Little Rock, Ark., were on the brief. Sheila Rush Jones, NAACP Legal Defense & Educational Fund, Inc., New York City, for appellees; Jack Green-berg, James M. Nabrit, III, Michael Meltsner, New York City, and John Walker, Little Rock, Ark., on the brief. Franklin E. White, Atty., Civil Rights Div., Washington, D. C., for the United States as amicus curiae and John Doar, Asst. Atty. Gen., David L. Norman, Atty., Washington, D. C. and also Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., on the brief. Before MATTHES, LAY and HEA-NEY, Circuit Judges. LAY, Circuit Judge. This action comes to us as an interlocutory appeal under Tit. 28 U.S.C. § 1292 (b), from an order overruling appellants’ motion to dismiss. The district court granted the appeal since our decision may advance the ultimate termination of the litigation. We granted leave to file the appeal and have heard oral arguments from the respective parties. Plaintiffs, Mrs. Nona Mae George and her minor son, Roy Lee Lewis, are Negro citizens who reside in Gould, Lincoln County, Arkansas. The complainants seek relief under the Civil Rights Statutes, 28 U.S.C. § 1981 and § 1983. The suit was brought as a class action for all persons similarly situated pursuant to Fed.R.Civ.P. 23(a) (3). An interlocutory and permanent injunction under Tit. 28 U.S.C. § 1343(3) and (4) is sought against the respective Board of Managers of the Arkansas Training School for Boys at Wrightsville and at Pine Bluff from the maintenance of a separate “training” school for white and Negro juveniles. Similarly, an injunction is sought against Lincoln County, Juvenile Court Judge, E. G. Brockman and all other “juvenile court” judges similarly situated from assigning or sentencing minor Negro juveniles to the Training School at Wrightsville on the basis of race or color. The two training schools, Wrightsville, known as the Negro Boys Industrial School, and Pine Bluff, known as the White Boys School, are set up and operated pursuant to § 46-301-360 of the Arkansas Statutes Annotated. Relevant portions of the Arkansas Statutes read as follows: Section 301: “Names of training schools. — Hereafter, (a) the Arkansas Boys’ Training School shall be known as the ‘Arkansas Training School for Boys at Pine Bluff,’ (b) the Negro Boys’ Industrial School shall be known as the “Arkansas Training Schools for Boys at Wrightsville,’ * * *” Section 305: “Nature of institution. — It is hereby declared to be the purpose of this Act [§§ 46-305 — 46-318] that hereafter the Boys’ Industrial School of the 'State of Arkansas [Arkansas Training School for Boys at Pine Bluff] be ■deemed a training and educational institution, and shall be entitled to all the rights and privileges of any other accredited educational institution of this state. It is further the purpose of this Act to declare that the Boys’ Industrial School [Arkansas Training School for Boys at Pine Bluff] is not, and shall not be a part of the penal system of this State, nor shall it be construed as a penal institution.” Section 306: “Commitment of delinquent boys.— Any white male child under 18 years of age who has or shall be legally adjudged to be a delinquent or neglected juvenile as defined by law may be committed to the Boys’ Industrial School [Arkansas Training School for Boys at Pine Bluff] by any juvenile or circuit court having jurisdiction over said juvenile. The order of commitment shall be for an indefinite period but in no case shall a child be retained in the School after he reaches majority." Section 321: “Nature of institution. — It is hereby declared to be the purpose of this Act [§§ 46-321, 46-326 — 46-329] that hereafter the Negro Boys’ Industrial School of the State of Arkansas [Arkansas Training School for Boys at Wrightsville] be deemed a training and educational institution, and shall be entitled to all the rights and privileges of any other accredited educational institution of this State. It is further the purpose of this act to declare that the Negro Boys’ Industrial School [Arkansas Training School for Boys at Wrightsville] is not, and shall not be a part of the penal system of this State, nor shall it be construed as a penal institution.” Section 330: “Commitment by juvenile or circuit court. — Any colored male child under eighteen (18) years of age who has or! shall be legally adjudged to be a delinquent or dependent juvenile as defined by law may be committed to the Negro Boys’ Industrial School [Arkansas Training School for Boys at Wrightsville] by any juvenile or circuit court having jurisdiction over said juvenile. The order of commitment shall be for an indefinite period but in no case shall a child be retained at the School after he reaches majority. However, only such dependent children may be committed to said School as in the opinion of the court cannot be placed in a good home.” Commitment to one school or another is limited to adjudication of a juvenile being “dependent or delinquent.” Plaintiffs allege that Roy Lee Lewis was adjudged by Judge Brockman to be delinquent and was sent to the “Negro Boys School.” The commitment was pursuant to “the state law” above set forth. It is alleged that plaintiffs have been déprived of their equal right to equal treatment, privileges and opportunities by the State of Arkansas solely because of their race or color; it is alleged these rights are in violation of the due process and equal protection clauses of the Fourteenth Amendment. Appellants assert that the statutes of Arkansas cannot be properly attacked in the present proceeding since (1) they are not pleaded or specifically attacked in plaintiffs’ complaint, and (2) they cannot be declared unconstitutional without involving a three-judge court under Tit. 28 U.S.C. § 2281. Rule 8(f) Fed.R.Civ.P. requires us to construe “[a] 11 pleadings * * * to do substantial justice.” The complaint alleges that the Arkansas juvenile judges have acted pursuant to “state law.” The complaint thus necessarily incorporates the statutes by reference. Likewise, the motion to dismiss raises the validity of the statutes since appellants rely on the statutes in their brief to support their motion. Cf. Bynum v. Schiro, E.D.La., 219 F.Supp. 204. It would clearly be a “contradiction of reason” to attempt to enjoin the state from enforcement of a statute and at the same time not pass upon the constitutionality of the statute. Cf. United States ex rel. McNeill v. Tarumianz, 3 Cir., 242 F.2d 191. Moreover it is not necessary to attack statutes by specific pleading which on their face are unconstitutional. Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762. We are also mindful that the present appeal comes to us on a motion to dismiss with a limited record. Appellant has not even filed its answer. We adhere to the proposition that it would be improper to consider “grave constitutional questions” where there exists “reasonable likelihood” that further proceedings could help clarify the issues. Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, at 213, 55 S.Ct. 187, 79 L. Ed. 281. However, in the present proceeding no further pleadings or evidence is necessary for “refinement or clarification of issues.” United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. Fabro, Inc., M. D.Ga., 206 F.Supp. 523. And we should dispose of all controversies “as expeditiously as is consistent with proper judicial administration.” Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762. Section 2281 requiring a three-judge court is not mandatory where the statute invokes clear governmental discrimination. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. Segregation of public institutions or facilities is no longer a substantial constitutional question. United States v. Guest, 383 U.S. 745, see n. 6 at 754, 86 S. Ct. 1170, 16 L.Ed.2d 239; Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195. However, it is initially urged that appellees have not stated a claim for relief since the Arkansas training schools are not “educational” but “penal” institutions, and therefore the “policy” of federal court non-interference with “penal” institutions should be applied. Although we do not base our decision upon a determination that these training schools are educational institutions, we only comment that it is the legislative declaration of the Arkansas people that these schools are not to be considered as “penal” in nature. Ark.Stats. Anno. §§ 46-305, 46-321. By legislative fiat these schools are an integral part of the educational system in the State of Arkansas. Their responsibilities are equal to any other public institutions of learning in educating young people to assume useful roles in society. “ * * * [I] n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Brown v. Board of Education, 347 U.S. 483, at 495, 74 S.Ct. 686, at 692, 98 L.Ed. 873. However, to adopt the appellants’ pernicious brand that these institutions are “penal” in nature leads nowhere. Penal institutions are public institutions and are not exempt from constitutional limitations. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. Our holdings in Lee v. Tahash, 8 Cir., 352 F.2d 970, and Harris v. Settle, 8 Cir., 322 F.2d 908, do not authorize discrimination in violation of constitutional prohibitions. Wholesale and arbitrary discrimination by state statutes is far removed from disciplinary administrative matters by prison officials. As was stated in the recent decision of Washington v. Lee, M.D.Ala., 263 F.Supp. 327, at 331: “ * * * In this regard, this Court can conceive of no consideration of prison security or discipline which will sustain the constitutionality of state statutes that on their face require complete and permanent segregation of the races in all the Alabama penal facilities. We recognize that there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period. However, recognition of such instances does nothing to bolster the statutes or the general practice that requires or permits prison or jail officials to separate the races arbitrarily. Such statutes and practices must be declared unconstitutional in light of the clear principles controlling.” See, also, Singleton v. Board of Comms. of State Institutions, 5 Cir., 356 F.2d 771; Bolden v. Pegelow, 4 Cir., 329 F.2d 95; Dixon v. Duncan, E.D.Va., 218 F.Supp. 157; Ferguson v. Buchanan, S.D.Fla., 10 R.R.L.R. 795 (1965). See also, Edwards v. Sard, D.D.C., 250 F.Supp. 977. To the extent that §§ 46-301-46-360 of the Arkansas statutes require segregation of juveniles to white schools or colored schools, based solely upon the race of the individual involved, the statutes are clearly unconstitutional; to the extent that the statutes require commitment to segregated facilities, they are clearly unconstitutional; to the extent that the statutes require maintenance of segregated facilities they are clearly unconstitutional. No injunction need issue to an individual judge, board manager or any person in light of our holding at the present time. The statutes are not void in their entirety and commitment of juveniles for dependency and delinquency may still be enforced thereunder. However, under no circumstance should race become a determinative factor in assignment. All children, white or colored, must be assigned to either school- in accordance with any approved plan of desegregation. The Board of Managers shall prepare a plan for desegregation of the facilities and present it to the district court for approval. Such plan should be filed within a reasonable time as set by the district court and should set forth a reasonable time within which said institutions will become completely desegregated. The trial court shall retain jurisdiction until the desegregation plans have been fulfilled. Judgment is affirmed, the cáse is remanded for further proceedings in accordance with this opinion. . Arkansas likewise maintains a similar segregated system of training schools for girls, one known as the Training School for Girls at Alexander for white girls, and the other is Fargo Training School for Negro girls. Ark.Stats.Anno. §§ 46-366 to 46-385. Although we have no jurisdiction over the girls’ facilities under §§ 46-366 to 46-385, it is similarly obvious that these provisions do not conform to constitutional standards. . Plaintiffs likewise allege: “The Arkansas Boy’s Training School at Pine Bluff operated for white delinquent or dependent juveniles offers and afford grossly superior facilities, rehabilitation programs, opportunities, etc., to those offered and afforded at the Negro Boys’ Training School. “The Arkansas Legislature appropriates far greater amounts of money, on a per pupil basis, for the operation of the white Boy’s Training School than it does for the Negro Boy’s Training School.” . Section 17 of Acts 1955, No. 398, p. 1032: “It has been found and is declared by the General Assembly of the State of Arkansas that the Boys’ Industrial School of this State is a training and educational institution for juveniles of this State; that the present law includes this School as a part of the penal system of this State; that such a continued status is detrimental to the welfare of the juveniles of this State; and, further, that such a status prohibits the School from receiving needed assistance from the Federal Government which it can obtain if classified and treated as an educational institution; and that this Act is necessary to alter and define the status of the Boys’ Industrial School. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, it shall take effect and be in full force and effect from and after the date of its passage and approval.” Section 16 of Acts 1955, No. 400: “It has been found and is declared by the General Assembly of the State of Arkansas that the Negro Boys’ Industrial School of this State is a training and educational institution for juveniles of this State; that the present law includes this School as a part of the penal system of this State; that such a continued status is detrimental to the welfare of the juveniles of this State; and, further, that such a status prohibits this School from receiving needed assistance from the Federal Government which it can obtain if classified and treated as an educational institution; and that this Act is necessary to alter and define the status of the Negro Boys’ Industrial School. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, it shall take effect and be in full force and effect from and after the date of its passage and approval.” . The Director of the United States Bureau of Prisons issued the following policy statement on February 7, 1966: “The policy of non-discrimination and full integration in Bureau of Prisons institutions is clear and of long standing. The policy applies to all aspects of institutional management relating to inmates and personnel.” Bulletin 1001.1, Bur. of Prisons. . Maryland’s training school statutes were “primarily geared * * * toward educational objectives rather than toward custody * * Segregation declared unconstitutional under. Maryland law. Myers v. State Board of Public Welfare, et al., Md.1960, Cir.Ct. of Balt. City, 20 Md.L.Rev. 375 (1960), affirmed State Board of Public Works et al. v. Myers, 224 Md. 246, 167 A.2d 765. For an interesting discussion of the problems and solutions in integrating the Maryland training schools see, Manella, Racially Integrating A State’s Training Schools, Children, Mareh-April 1964 (pp. 49-54) (United States Government Printing Office, Washington, D. C.). . In Arkansas both County and Circuit Judges may make the commitment of any juvenile under the statutes. Even though Circuit Judges are not joined as a class, the invalidity of the statutes makes discussion of this problem moot.

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 "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 appellant. 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?

Benjamin F. WASHINGTON, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES. No. 82-5572. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) ' Sept. 29, 1983. Decided Oct. 11, 1983. Benjamin F. Washington, pro se. W. Hunt Dumont, U.S. Atty., Newark, N.J., Jerome B. Simandle, Asst. U.S. Atty., Trenton, N.J., for appellee. Before HUNTER, GARTH and MARIS, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. The plaintiff, Benjamin F. Washington, an inmate of the New Jersey State Prison at Trenton who is serving a sentence imposed following his conviction of a felony, appeals from the decision of the district court dismissing his complaint against the defendant, the Secretary of Health and Human Services, for terminating, pursuant to the mandate of the amendatory Act of October 19, 1980, Pub.L. No. 96-473, 94 Stat. 2263, 2265, his disability payments under the Social Security Act. For the reasons hereinafter stated we affirm. The plaintiff argues in this court that he has been denied both procedural and substantive due process of law by the defendant’s action terminating his disability payments. So far as concerns procedural due process, the claim is utterly devoid of merit. The plaintiff was given notice and an opportunity to submit relevant facts and thereafter to have an evidentiary hearing before an administrative law judge. Instead, he chose, as he was authorized to do by relevant regulations, to waive such administrative procedure, accept the factual determination of the defendant and proceed at once to an expedited hearing before the district court on his legal claims. Having agreed in writing to this waiver and expedited procedure, he cannot now be heard to contend that he has been denied the procedural right to an administrative hearing which he formally waived. We turn then to the plaintiff’s claim that the defendant’s action deprived him of property without due process of law. The statute under which the defendant terminated the disability payments which had been previously granted to the plaintiff was the Act of October 19, 1980, Pub.L. No. 96-473, 94 Stat. 2263, 2265, which amended section 223 of the Social Security Act by adding, inter alia, subsection (f)(1) reading as follows: Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section, or under section 402(d) of this title by reason of being under a disability, to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of an offense which constituted a felony under applicable law, unless such individual is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for such individual by a court of law and, as determined by the Secretary, is expected to result in such individual being able to engage in substantial gainful activity upon release and within a reasonable time. 42 U.S.C.A. § 423(f)(1). In Senate Report No. 96-987, 96th Cong., 2nd Sess., upon the bill, H.R. 5295, which became the Act of 1980, the committee stated: The committee believes that the basic purposes of the social security program are not served by the unrestricted payment of benefits to individuals who are in prison or whose eligibility arises from the commission of a crime. The disability program exists to provide a continuing source of monthly income to those whose earnings are cut off because they have suffered a severe disability. The need for this continuing source of income is clearly absent in the case of an individual who is being maintained at public expense in prison. The basis for his lack of other income in such circumstances must be considered to be marginally related to his impairment at best. The committee bill therefore would require the suspension of benefits to any individual who would otherwise be receiving them on the basis of disability while he is imprisoned by reason of a felony conviction. This suspension would apply except to the extent that a court of law specifically provides to the contrary as a part of its approval of a plan of vocational rehabilitation services for that individual, and only for so long as the individual continues to participate satisfactorily in an approved vocational rehabilitation program which is expected to result in his return to substantial gainful employment. 1980 U.S.Code Cong. & Ad.News 4787, 4794-4795. It is settled that participation in the social security system is a noncontractual benefit under a social welfare program. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Such benefit is noncontractual, as the Supreme Court has explained, because the amount a worker or his dependents may be entitled to receive is not in any true sense dependent upon the degree to which he was called upon to support the system by taxation. Social security is, however, nonetheless an earned program and not a welfare program for the benefit of needy persons. Califano v. Jobst, 434 U.S. 47, 52, 98 S.Ct. 95, 98, 54 L.Ed.2d 228 (1977). But that fact does not limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). In considering the withholding of a noncontractual benefit under a social welfare program such as this, “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960). We are satisfied that the classification which is here involved was not an arbitrary one. On the contrary, as pointed out in the Senate committee report from which we have quoted, the exclusion of felons from disability payments while they are incarcerated and not engaged in a rehabilitation program has a perfectly rational justification in the fact that the expenses of shelter, food, clothing and medical care, which it is the purpose of the disability payments to help defray, are, in the case of an incarcerated felon such as the plaintiff, being provided for him free of charge by the prison authorities. The plaintiff’s claim to have been denied due process of law by the operation of the statute in question is thus seen to be wholly without merit. Finally, the plaintiff presents in this court an equal protection contention. It is that, while the Act permits the continuance of disability payments to any incarcerated felon who is participating in an approved rehabilitation program, he, the plaintiff, can never again while in prison receive his disability payments because of the defendant’s action. This contention is without merit. The statute in question merely provides for the nonpayment of disability payments for any month during which an individual is confined pursuant to his conviction of a felony and is not participating in an approved rehabilitation program. There is nothing in the statute which would prevent an inmate from being admitted to a rehabilitation program, approved by the appropriate court, at any time during his incarceration. There would, therefore, appear to be no reason why the plaintiff’s previously approved disability allowance would not again become due and payable to him if in any subsequent month he should be admitted to and actively and satisfactorily participate in such an approved program which is expected, as determined by the Secretary, to result in his being able to engage in substantial gainful activity upon release and within a reasonable time. The judgment of the district court will be affirmed.

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

Casper A. MAROTTA et al., Appellants, v. Philip MILESTONE et al., Appellees. No. 17072. United States Court of Appeals District of Columbia Circuit. Argued Dec. 5, 1962. Decided Jan. 3, 1963. Mr. Wallace McGregor, Washington, D. C., for appellants. Mr. Thomas J. Pearson, Washington, D. C., also entered an appearance for appellants. Mr. Stanley B. Frosh, Washington, D. C., for appellees. Before Bazelon, Chief Judge, and Wilbur K. Miller, and Fahy, Circuit Judges. PER CURIAM. Appellants, three in number, Peter, Casper and Angela Marotta, filed suit against appellees in the District Court for damages allegedly due to fraud practiced upon them in a real estate transaction. Misrepresentations with respect to the boundary of property being purchased by them from appellees were alleged. In the same complaint two other groups of plaintiffs sued the defendants, the present appellees, for damages due to like fraud in sales to those plaintiffs of other real estate in the same vicinity. The three causes of action joined in the complaint were independent of each other, although of similar character. Appellees’ motion to dismiss the Marotta complaint was granted April 26, 1962. The other causes of action had not then been disposed of, but by July 23, 1962, they had been ended with finality. In the meantime a Notice of Appeal had been filed bringing the present appeal to this court, although no express determination under Rule 54(b) was made by the District Court, for which reason appellees suggest that this court is without jurisdiction. See David v. District of Columbia, 88 U.S.App.D.C. 92, 187 F.2d 204; and Chvala v. D. C. Transit System, Inc., 110 U.S.App.D.C. 331, 293 F.2d 519. Since, however, the other controversies have been finally disposed of and, moreover, the order of the District Court now before us could not, because of the nature of the other claims, have been on their account “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties,” we think Rule 54(b) does not apply, and that we need not disclaim jurisdiction. Appellants are respectively the widow and two children of Alfonso Marotta. It appears that the motion to dismiss was granted on the theory they were not parties to the transaction involved in the alleged fraud because, it is contended, the alleged fraud related to performance of a contract between Alfonso and appellees, not between appellants or any of them and appellees. The complaint, however, alleges otherwise, and in this respect it gains some support from the appellees’ answer in the District Court, a pretrial order, and an affidavit which was before that court. On the other hand a written contract made an exhibit to the pretrial order and which appellees assert was displayed to the District Court during argument of the motion to dismiss, and which appears to have been signed only by Alfonso and appellees, gives support to the contention of the latter. The sum of it is that there was a factual and legal issue as to the right of appellants to maintain the action. The issue could not be resolved against them on the pleadings. Accordingly, dismissal of their complaint on motion was precluded. 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 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?

Joe Willie CHILDS, Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Ohio State Penitentiary, Respondent-Appellant. No. 71-1103. United States Court of Appeals, Sixth Circuit. Dec. 10, 1971. Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant; William J. Brown, Atty. Gen., Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, on brief. Donald F. Kelch, Jr., Columbus, Ohio, for petitioner-appellee; Mayer, Tingley, Hurd & Emens, Columbus, Ohio, on brief. Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge. WEICK, Circuit Judge. Appellee, Joe Willie Childs, was convicted by a jury in the Common Pleas Court of Franklin County, Ohio, on May 14, 1964, on counts of an indictment charging him with armed robberies and assault with intent to kill. He was sentenced to consecutive terms in the Ohio state penitentiary. One of the robberies was of the Miller Market in Columbus, Ohio, on December 17, 1963. The Miller Market was owned by Harold Johnson and operated by him and his wife, Evaline Gay Johnson. During the robbery Mr. Johnson was shot and wounded by one of the two robbers. The bullet creased Johnson’s cheek bone, fracturing it and his jaw bone in two places, and rendering him unconscious. Childs was positively identified by both Mr. and Mrs. Johnson as one of the robbers. The store was well lighted. The other robbery took place in Simon’s Market in Columbus, Ohio, two days later, on December 19, 1963. Two employees of the Market, Sandra Sue Sullivan and her husband, Ray Sullivan, positively identified Childs as one of the robbers. This store also was well lighted. The other robber was Robert Jarrett, who entered a plea of guilty and was sentenced to imprisonment in the Ohio state penitentiary. The state subpoenaed Jarrett from the penitentiary and he was present at the trial, but he was not called as a witness by either the state or Childs. Detective Fred Jansen testified as to a statement made to him by Jarrett in the presence of Childs, as follows: “A ... I called Mr. Jarrett’s attention to the night of the 19th of December and the Simon’s robbery. I asked him if he was one of the two men involved in this robbery, and he said that he was; I asked him at the time could he name the second man involved with him and he said that he could and he indicated the man seated in the room with him. I asked him who that man was and he said ‘Willie Joe Childs.’ ” (App. 119a) Jansen further testified that Childs, at this confrontation with Jarrett, denied that he participated in the robbery. Child’s court-appointed attorney made no objection to this testimony and cross-examined Jansen. The defense was an alibi. Defendant called his mother and stepfather, who lived in the same house with him, and also three friends, two of whom lived in the same house. Childs testified in his own defense. On cross-examination he admitted that he was convicted of burglary in 1959 and sentenced to the penitentiary, and that he was convicted of uttering a forged check in 1962 and again sentenced to the penitentiary. Childs’ conviction in the present case was affirmed by the Court of Appeals of Franklin County, Ohio, and by the Supreme Court of Ohio, with one Judge dissenting. The Supreme Court of the United States denied certiorari. State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), cert. denied, 394 U.S. 1002, 89 S.Ct. 1596, 22 L.Ed.2d 779 (1969). Childs then filed in the United States District Court an application for a writ of habeas corpus, claiming that his constitutional rights had been violated in a delay of 121 days in the appointment of counsel for him, while he was incarcerated in jail without bond, and in the admission of hearsay evidence at the trial. These identical issues were presented to the Supreme Court of Ohio and resolved against Childs by that Court. The District Court, 320 F.Supp. 1365, reviewing the trial record, found no prejudice to Childs in the delay in the appointment of counsel. The District Court found, however, that the testimony of Detective Jansen was hearsay, and that it deprived Childs of his right of confrontation in violation of the Confrontation Clause of the Sixth Amendment. The Court granted the writ unless the state should proceed to try Childs within sixty days. We agree with the decisions of the Supreme Court of Ohio and the District Court with respect to the first ground, that Childs was not prejudiced by the delay in the appointment of counsel. Only the second ground requires our discussion. In its opinion, the Supreme Court of Ohio, addressing itself to the hearsay issue said: “The problem with this question of law is that counsel for the defendant did not object when that testimony was given, and he did nothing thereafter to call the attention of the trial court to this alleged hearsay error. It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court. Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471 [, 166 N.E.2d 379.] We do not believe that defendant has shown adequate reasons to disregard this rule. “Defendant asserts that his constitutional right of confrontation of the witnesses against him was denied by the admission of this hearsay. This deprivation is not peculiar to this case, as it would seem to be the obvious result of the admission of hearsay in any criminal case where the declarant was not put on the stand or otherwise subject to cross-examination. Constitutional rights may be lost as finally as any others by a failure to assert them at the proper time. State v. Davis, 1 Ohio St.2d 28 [, 203 N.E.2d 357.] “The legitimate state interest in requiring timely objection to improper evidence has been well recognized by courts, including the United States Supreme Court. Douglas v. Alabama, 380 U.S. 415, [85 S.Ct. 1074, 13 L.Ed. 2d 934] Henry v. Mississippi, 379 U.S. 443 [, 85 S.Ct. 564, 13 L.Ed.2d 408.] This interest is founded on the desirability of avoiding unnecessary delay and discouraging defendants from making erroneous records, allowing them an option to take advantage of favorable verdicts or to avoid unfavorable ones. Unlike the case of Henry v. Mississippi, supra, the state interest was not served here by any motion or objection which would call the attention of the trial court to the error that is urged. “In view of the considerations above and the additional fact that the hearsay evidence was corroborated by two eyewitnesses who testified at the trial, we do not believe defendant has discredited the fairness of his trial or otherwise given sufficient justification for disregarding the requirement of timely objection.” (14 Ohio St.2d at 61-62, 236 N.E.2d at 549) In State v. Davis, 1 Ohio St.2d 28, 203 N.E.2d 357 (1964), Chief Justice Taft said: “Defendant contends that Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, requires this court to reverse his conviction because those suits were erroneously admitted in evidence against him. “However, footnote 9 to the majority opinion in Mapp states: “ ‘As is always the case . . . , state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.’ ” (Id. at 30, 203 N.E.2d at 359) “In our opinion, protection of a defendant does not require giving him such a procedural advantage over the state. Cf. State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379, where a defendant was not permitted to rely upon an error which counsel for the defendant could have called but did not call to the court’s attention at a time when such error might have been avoided or corrected.” (Id. at 31, 203 N.E.2d at 360) It is apparent to us that the state has insisted on compliance with its procedural requirements. In Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), the Court in an opinion written by Mr. Justice Brennan recognized the “familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, even where those judgments also decide federal questions.” The principle applies in cases involving both state substantive and procedural grounds. Also, “ . . .we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver.” Id. at 452, 85 S.Ct. at 570. Ohio certainly has an interest in requiring a litigant in its courts to object to evidence which he contends is incompetent and inadmissible in order that the trial court may have opportunity to pass thereon and correct any error. It is not fair to the trial court for issues to be raised for the first time in the appellate court. Proper practice would require defense counsel, if he desired to question the admissibility of the testimony of Detective Jansen, to have interjected an objection to it and to have moved for a mistrial. He did neither. Adverting to the so-called hearsay testimony of Detective Jansen, it should be noted that Jansen was cross-examined on it by defense counsel. In addition, the state produced Jarrett in court and he could have been called by the defense as a witness and cross-examined as a “hostile witness.” United States v. Holsey, 414 F.2d 458 (10th Cir. 1969); United States v. Ghaloub, 385 F.2d 567 (2d Cir. 1966); United States v. Duff, 332 F.2d 702 (6th Cir. 1964); Union Pac. R. R. v. Ward, 230 F.2d 287 (10th Cir. 1956); Gariepy v. United States, 189 F.2d 459 (6th Cir. 1951). This is the rule in Ohio and is applied generally. 56 Ohio Jur.2d Witnesses § 305, p. 734; 58 Am.Jur. Witnesses § 618, p. 342; 98 C.J.S. Witnesses § 333, p. 47. We do not hold that either the state or the defense is required to call a hostile witness to the stand, or that any inference may be drawn from their failure to do so. We merely point out that if the testimony of such a witness was essential to prove a necessary element of their case, the witness was available to them for cross-examination. Actually there was confrontation when Childs met with Detective Jansen and Jarrett. Jarrett made the statement implicating Childs, who did not remain silent ; on the contrary, he voluntarily spoke out and denied his involvement in the robbery. The State did produce Jarrett in court. Production of the witness is all that ought to be required, particularly when there is a right to cross-examine. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), concurring opinion by Mr. Justice Harlan. Dutton v. Evans, 400 U.S. 74 at 96, fn. 3, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). At the time this case was tried in the Common Pleas Court, testimony of this kind would not have been hearsay, and such testimony would have been admissible to prove an admission against interest of the defendant if he had remained silent when the statement implicating him was made. Murphy v. State, 36 Ohio St. 628 (1881). It was not until Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the prosecution may no longer “use at trial the fact that he [defendant] stood mute or claimed his privilege in the face of accusation” during police custodial interrogation. Id. at 468, fn. 37, 86 S.Ct. 1602, Miranda is not retroactively applied. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Perhaps the fact that Childs at the confrontation denied his involvement in the robbery motivated defense counsel to not object to the question or the answer and to rely on his alibi defense. Lawyers may make tactical determinations on how to try a case and adopt trial strategies; see Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). In Henry v. Mississippi, supra (379 U.S. 443, 85 S.Ct. 564) the Court said: “Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcorn, 333 F.2d 496 (C.A.5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.” (Id. at 451-452, 85 S.Ct. at 569) Certainly it was permissible for the state to prove that such a conversation took place. The only question is whether it was prejudicial to admit it as evidence of guilt. Here again it must be remembered that defense made no objection to its admission and gave the trial court no opportunity to correct the error which was alleged for the first time in an appellate court. If Childs thought there was an improper reason for Jarrett to involve him in the robberies, he could have cross-examined Jarrett in order to bring out that fact. It should be kept in mind always that the fundamental purpose of a trial is to ascertain the truth. We regard the testimony' of Jansen as of “peripheral significance at most.” Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The District Court, in granting the writ, relied principally on Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The state court which tried Childs in 1964 did not have the benefit of these decisions, and we doubt that it could have foreseen the drastic changes in criminal and constitutional law which were made by federal courts in the years which followed. In our opinion, both Pointer and Bruton may be distinguished from the present case. The Supreme Court in Dutton did distinguish Pointer, as follows: “In the Pointer case it appeared that a man named Phillips had been the victim of a robbery in Texas. At a preliminary hearing, Phillips ‘as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint.’ 380 U.S., at 401 [, 85 S.Ct. 1065.] Pointer had no lawyer at this hearing and did not try to cross-examine Phillips. At Pointer’s subsequent trial the prosecution was permitted to introduce the transcript of Phillips’ testimony given at the preliminary hearing. Thus, as this Court held, the State’s ‘use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel’s cross-examination of the principal witness against him.’ 380 U.S., at 403 [, 85 S.Ct. 1065.]” (400 U.S., at 84, 91 S.Ct. at 217) In the present case, Childs had counsel who made no objection to the testimony. Further, Pointer involved an entire transcript of testimony of the witness at the preliminary hearing. That witness testified extensively and was not cross-examined by defendant, who did not have counsel. In our case the testimony consisted of only a few lines, and defendant was represented by competent counsel. In Bruton, a postal inspector testified in a joint trial involving Bruton and his co-defendant Evans, that Evans had confessed to the armed postal robbery and implicated Bruton as his accomplice. The alleged confession took place in the absence of Bruton. The District Court held that the confession was admissible only against Evans, and instructed the jury to disregard the testimony against Bruton. The Supreme Court held that Bruton had been denied his right of confrontation and that the instruction did not wipe out the error. It should be noted that the Court of Appeals held that the Evans confession was also inadmissible in violation of the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since Evans was a defendant, he could not have been compelled by either the Government or Bruton to testify. Hence the postal inspector’s testimony could not be refuted. In our case Jarrett had already been convicted and was serving his sentence. He could have been called by Childs and cross-examined as a hostile witness. Childs was positively identified by the four eye witnesses who were the victims of the two robberies. The State did not need the hearsay evidence as there was substantial evidence without it to sustain the conviction. The evidence of guilt was overwhelming. Childs was not helped by his attempt to establish a phony alibi. His witnesses did not stand up on cross-examination. In our opinion, the error complained of was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Clayton, 418 F.2d 1274 (6th Cir. 1969). It should be observed that the confrontation issue applied only to the count charging the December 19, 1967 robbery, and not to the count charging the robbery on December 17, 1967. In our opinion, the judgment in the case involving the December 17th robbery was not affected. We close with the admonition contained in the plurality opinion in Dutton, which we think is appropriately stated here: “Almost 40 years ago, in Snyder v. Massachusetts, 291 U.S. 97, [54 S.Ct. 330, 78 L.Ed. 674,] Mr. Justice Cardozo wrote an opinion for this Court refusing to set aside a state criminal conviction because of the claimed denial of the right of confrontation. The closing words of that opinion are worth repeating here: “ ‘There is danger that the criminal law will be brought into contempt— that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.’ 291 U.S., at 122 [, 54 S.Ct. 330.]” (400 U.S., at 89-90, 91 S.Ct., at 220) The judgment of the District Court will be reversed and the cause remanded with instructions to deny the application for a writ of habeas corpus. The robber who shot Johnson was not the one identified as Childs. . After the cross-examination the prosecutor asked Jansen on redirect examination to relate the conversation again. Defense counsel objected on the ground that it “is a matter that should have come out on direct; this is redirect, and it’s just merely contradicting what he has given on cross-examination.” . The other friend “was arrested about the same time and apparently for one of the same offenses, for which defendant was indicted.” State v. Childs, 14 Ohio St.2d 56 at 60, 236 N.E.2d 545 at 548.

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?

BATES et al. v. STATE BAR OF ARIZONA No. 76-316. Argued January 18, 1977 Decided June 27, 1977 BlacKmtjN, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined, and in Parts I and II of which Burger, C. J., and Stewart, Powell, and RehNquist, JJ., joined. Burger, C. J., filed an opinion concurring in part and dissenting in part, post, p. 386. Powell, J., filed an opinion concurring in part and dissenting in part, in which Stewart, J., joined, post, p. 389. Rehnquist, J., filed an opinion dissenting in part, post, p. 404. William C. Canby, Jr., argued the cause for appellants. With him on the briefs was Melvin L. Wulf. John P. Frank argued the cause for appellee. With him on the brief was Orme Lewis. Deputy Solicitor General Friedman argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Bork, Assistant Attorney General Baker, and Barry Grossman. Briefs of amici curiae urging reversal were filed by John B. Schmidt for the Chicago Council of Lawyers; by Peter H. Schuck and Alan B. Morrison for the Consumers Union of United States, Inc., et al.; and by Philip L. Goar for the Mountain Plains Congress of Senior Organizations et al. Briefs of amici curiae urging affirmance were filed by Justin A. Stanley and H. Blair White for the American Bar Assn.; by Peter M. Sfikas for the American Dental Assn.; by Ellis Lyons, Bennett Boskey, and Edward A. Groobert for the American Optometric Assn.; by James W. Rankin and Donald E. Scott for the American Veterinary Medical Assn.; by Alfred L. Scanlan and George W. Liebmann for the Maryland State Bar Assn., Inc., et al.; by Andrew P. Miller, Attorney General of Virginia, Stuart H. Dunn, Deputy Attorney General, and John J. Miles, Assistant Attorney General, for the Virginia State Bar; and by Roger P. Stokey, pro se. Briefs of amici curiae were filed by the American Medical Assn.; by John J. Relihan and Martin J. Solomon for the Arizona Credit Union League, Inc.; by Edward L. Lascher, Herbert M. Rosenthal, and Stuart A. Forsyth for the State Bar of California; and by Rufus L. Edmisten, Attorney General of North Carolina, Andrew A. Vañore, Jr., Senior Deputy Attorney General, Norma S. Harrell, Associate Attorney General, and Harry W. McGalliard for the State Bar of North Carolina. Mr. Justice Blackmun delivered the opinion of the Court. As part of its regulation of the Arizona Bar, the Supreme Court of that State has imposed and enforces a disciplinary-rule that restricts advertising by attorneys. This case presents two issues: whether §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, forbid such state regulation, and whether the operation of the rule violates the First Amendment, made applicable to the States through the Fourteenth. I Appellants John R. Bates and Van O’Steen are attorneys licensed to practice law in the State of Arizona. As such, they are members of the appellee, the State Bar of Arizona. After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221. In March 1974, appellants left the Society and opened a law office, which they call a “legal clinic,” in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. Id., at 75. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Id., at 97. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume. Id., at 122-123. After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and, in particular, fees were advertised. Id., at 120-123. Consequently, in order to generate the necessary flow of business, that is, “to attract clients,” id., at 121; Tr. of Oral Arg. 4, appellants on February 22, 1976, placed an advertisement (reproduced in the Appendix to this opinion, infra, at 385) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering “legal services at very reasonable fees,” and listed their fees for certain services. Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101 (B), incorporated in Rule 29 (a) of the Supreme Court of Arizona, 17A Ariz. Rev. Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part: “(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.” Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. App. 16. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Id., at 482. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court’s Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. App. 486-487. Appellants, as permitted by the Supreme Court’s Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P. 2d 640 (1976). The plurality may have viewed with some skepticism the claim that a restraint on advertising might have an adverse effect on competition. But, even if the rule might otherwise violate the Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule “is an activity of the State of Arizona acting as sovereign.” Id., at 397, 555 P. 2d, at 643. The regulation thus was held to be shielded from the Sherman Act by the state-action exemption of Parker v. Brown, 317 U. S. 341 (1943). Turning to the First Amendment issue, the plurality noted that restrictions on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co., 348 U. S. 483 (1955), and Semler v. Dental Examiners, 294 U. S. 608 (1935). Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976), and Bigelow v. Virginia, 421 U. S. 809 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 773 n. 25; id., at 773-775 (concurring opinion); Bigelow v. Virginia, 421 U. S., at 825 n. 10. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101 (B) passed First Amendment muster. Because the court, in agreement with the Board of Governors, felt that appellants’ advertising “was done in good faith to test the constitutionality of DR 2-101 (B),” it reduced the sanction to censure only. 113 Ariz., at 400, 555 P. 2d, at 646. Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of “the right of the public as consumers and citizens to know about the activities of the legal profession,” id., at 402, 555 P. 2d, at 648, rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public: “Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered.... The rule at issue prevents access to such information by the public.” Id., at 402-403, 555 P. 2d, at 648-649. Although the dissenter acknowledged that some types of advertising might cause confusion and deception, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his “personal dislike of the concept of advertising by attorneys,” id., at 402, 555 P. 2d, at 648, he found the ban unconstitutional. We noted probable jurisdiction. 429 U. S. 813 (1976). II The Sherman Act In Parker v. Brown, 317 U. S. 341 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith, 195 U. S. 332, 344-345 (1904). In Parker a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers and thereby to maintain prices in the raisin market. The Court held that the State, “as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit.” 317 U. S., at 352. Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree. Of course, Parker v. Brown has not been the final word on the matter. In two recent cases the Court has considered the state-action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975); Cantor v. Detroit Edison Co., 428 U. S. 579 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here. In Goldfarb we held that § 1 of the Sherman Act was violated by the publication of a minimum-fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services and thus constituted a classic example of price fixing. Both bar associations argued that their activity was shielded by the state-action exemption. This Court concluded that the action was not protected, emphasizing that “we need not inquire further into the state-action question because it cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent.” 421 U. S., at 790. In the instant case, by contrast, the chai-lenged restraint is the affirmative command of the Arizona Supreme Court under its Rules 27 (a) and 29 (a) and its Disciplinary Rule 2-101 (B). That court is the ultimate body wielding the State’s power over the practice of law, see Ariz. Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is “compelled by direction of the State acting as a sovereign.” 421 U. S., at 791. Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the cost in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association, appellants argue by analogy to Cantor that no immunity should result from the bar’s success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state interest in regulating the bar. See 428 U. S., at 595. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary. See id., at 596 n. 34, and 597. We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party. Here, the appellants’ claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P. 2d 441 (1970). Although the State Bar plays a part in the enforcement, of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision. Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. 428 U. S., at 584-585; id., at 604-605, 612-614 (concurring opinions). There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State’s regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State’s power to protect the public. Indeed, this Court in Goldfarb acknowledged that “[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” 421 U. S., at 792. See Cohen v. Hurley, 366 U. S. 117, 123-124 (1961). More specifically, controls over solicitation and advertising by attorneys have long been subject to the State’s oversight. Federal interference with a State’s traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor. Finally, the light-bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State’s incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. See 428 U. S., at 594, and n. 31. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State’s policy with régard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed re-examination by the policymaker — the Arizona Supreme Court — in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State’s supervision-is so active. We conclude that the Arizona Supreme Court’s determination that appellants’ Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed. I — I hH The First Amendment A Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of “unprofessional conduct” if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: “T will sell you the X prescription drug at the Y price.’ ” Id., at 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment. Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U. S. 1 (1976); New York Times Co. v. Sullivan, 376 U. S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U. S. 147 (1959); Murdock v. Pennsylvania, 319 U. S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U. S. 296 (1940). If commercial speech is to be distinguished, it “must be distinguished by its content.” 425 U. S., at 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction. Even though the speaker’s interest is largely economic, the Court has protected such speech in certain contexts. See, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575 (1969); Thornhill v. Alabama, 310 U. S. 88 (1940). The listener’s interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U. S. 809 (1975). And commercial speech serves to Inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Camble Co., 386 U. S. 568, 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U. S., at 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that adyertising would create price competition that might cause the pharmacist to economize at the customer’s expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician’s advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist’s effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman — an image that was said to attract talent to the profession and to reinforce the good habits of those in it — to that of a mere shopkeeper. Id., at 766-768. Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id., at 768. And we observed that “on close inspection it is seen that the State’s protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance.” Id., at 769. But we noted the presence of a potent alternative to this “highly paternalistic” approach: “That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Id., at 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice “that the First Amendment makes for us.” Ibid. See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 97 (1977). We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona’s disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. In the instant case we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys. B The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants’ advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or “runners.” Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee’s criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney’s name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, in the classified section of the telephone directory. DR 2-102 (A) (6) (1976). We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment. The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn: 1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney’s sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession’s service • orientation, and irreparably damage the delicate balance between the lawyer’s need to earn and his obligation selflessly to serve. Advertising is also said to erode the client’s trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client’s welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession. We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. And rare is the client, moreover, even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach “a clear agreement with his client as to the basis of the fee charges to be made,” and that this is to be done “[a]s soon as feasible after a lawyer has been employed.” Code of Professional Responsibility EC 2-19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office. Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession’s failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services or because of an inability to locate a competent attorney. Indeed, cynicism with-regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients. It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id., at 211. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow “above” trade has become an anachronism, the historical foundation for the advertising restraint has crumbled. 2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill. We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like — the very services advertised by appellants. Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price. The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: The appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. The second component of the argument — that advertising ignores the diagnostic role — fares little better. It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself. The third component is not without merit: Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative — the prohibition of advertising— serves only to restrict the information that flows to consumers. Moreover, the argument assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 769-770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar’s role to.assure that the populace is' sufficiently informed as to enable it to place advertising in its proper perspective. 3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. The judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose. There is even a suggestion of barratry. See, e. g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674, 675-676 (1958). But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. As the bar acknowledges, “the middle 70% of our population is not being reached or served adequately by the legal profession.” ABA, Revised Handbook on Prepaid Legal Services 2 (1972). Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and 23, supra. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar’s obligation to “facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.” ABA Code of Professional Responsibility EC 2-1 (1976). 4. The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar’s established members. These two arguments seem dubious at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 768, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer. The entry-barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry-barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market. 5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given “package” of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it 'fits the client’s needs. Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed-fee schedule of appellee’s own prepaid Legal Services Program. Even if advertising leads to the creation of “legal clinics” like that of appellants’ — clinics that emphasize standardized procedures for routine problems- — -it is possible that such clinics will improve service by reducing the likelihood of error. 6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome. It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We

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

What follows is an opinion from a United States Court of Appeals. 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"?

UNITED STATES v. LOUISIANA et al. (LOUISIANA BOUNDARY CASE) No. 9, Orig. Decided March 17, 1975 — Decree entered March 17, 1975- — -Supplemental decree entered June 16, 1975 SUPPLEMENTAL DECREE On March 17, 1975, this Court overruled the exceptions of the United States and the State of Louisiana to the Report and recommendations of the Special Master, accepted the Report of the Special Master and directed the parties “to prepare and file a decree for entry by this Court, establishing ‘a baseline along the entire coast of the State of Louisiana from which the extent of the territorial waters under the jurisdiction of the State of Louisiana pursuant to the Submerged Lands Act can be measured.’ ” 420 U. S. 529, 530. The parties have agreed on a proposed decree establishing the coastline (baseline) of Louisiana in accordance with the Court’s decision of March 17, 1975. That baseline i§ described in Exhibit A below. Accordingly, the joint motion for entry of supplemental decree is granted. It Is Ordered, Adjudged, and Decreed : 1. As against the defendant State of Louisiana and all persons claiming under it, the United States has exclusive rights to explore the area of the Continental Shelf lying more than three geographical miles seaward of the line described in Exhibit A hereof, and to exploit the natural resources of said area and the State of Louisiana is not entitled to any interest in such lands, minerals, and resources, and said State, its privies, assigns, lessees, and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. 2. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, and derived from leases of lands lying wholly within the area referred to in paragraph 1 hereof are hereby released to the United States absolutely, and in accordance with the terms of the Interim Agreement, as amended, and the United States is hereby relieved of any obligation under said Agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area. 3. As against the plaintiff United States and all persons claiming under it, the State of Louisiana has exclusive rights to explore the area lying within three geographical miles seaward of its coastline described in Exhibit A hereof, and to exploit the natural resources of said area, with the exceptions provided by Section 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313. The United States is not entitled to any interest in such lands, minerals, and resources and said United States, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the State of Louisiana in such lands, minerals and resources. 4. All sums now held impounded by the State of Louisiana under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands lying wholly within the area referred to in paragraph 3 hereof are hereby released to Louisiana in accordance with the Interim Agreement of 1956, as amended, and Louisiana is hereby relieved of any obligation under said Agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area. 5. Within 90 days after the entry of the Decree— (a) The State of Louisiana shall pay to the United States or other persons entitled thereto under the Interim Agreement of October 12, 1956, as amended, all sums, if any, now held impounded by the State of Louisiana under said Agreement, derived from or attributable to the lands, minerals or resources described in paragraph 1 hereof; (b) The United States shall pay to the State of Louisiana or other persons entitled thereto under the Interim Agreement, as amended, all sums, if any, now held impounded by the United States under said Agreement, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof; (c) Failure of either party to agree on correctness of the sums due the other shall in no way be reason to retard payment of sums which are admittedly due by the paying party’s own calculations. 6. Within 60 days after the entry of this Decree — • (a) The State of Louisiana shall render to the United States and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the State of Louisiana since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands, minerals or resources described in paragraph 1 hereof; (b) The United States shall render to the State of Louisiana and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the United States either by sale, leasing, licensing, exploitation or otherwise from or on account of the lands, minerals or resources described in paragraph 3 hereof; (c) Within 60 days after receiving the account provided for by paragraph 6 (a) or 6 (b) hereof, a party may serve on the other and file with the Court its objections thereto. Thereafter either party may file such motion or motions at such time as may be appropriate to have the account settled in conjunction with the issues concerning the areas still in dispute. If neither party files such an objection within 60 days, then each party shall forthwith pay to any third person any amount shown by such accounts to be payable by it to such person, and the party whose obligation to the other party is shown by such accounts to be greater shall forthwith pay to the other party the net balance so shown to be due. If objections are filed but any undisputed net balance is shown which will be due from one party to the other party or to any third person regardless of what may be the ultimate ruling on the objections, the party so shown to be under any such obligation shall forthwith pay each such undisputed balance to the other party or other person so shown to be entitled thereto. The payments directed by paragraphs 5 (a) and 5 (b) hereof shall be made irrespective of the accountings provided for by paragraphs 6 (a) and 6(b). 7. All sums heretofore impounded pursuant to the Interim Agreement of 1956, as amended, shall be fully accounted for and paid within the 90 days provided in paragraph 5, except as to split leases that accounting and payment may be deferred on royalty revenue from (a) non-unitized wells with completion points at unidentified locations or locations controverted by the parties; and (b) units partially shoreward of the three-mile boundary as to which there is no present agreement that participation is on a surface acreage basis. Funds from split leases not accounted for and paid pursuant to the preceding sentence shall be the subject of the accounting to follow the next decree of this Court in this case, unless the parties agree on a prior distribution. Except as provided above for accountings and payment, pending further order of the Court, leases of land lying partly within three miles of the line described in paragraph 9 hereof shall be in no way affected by anything contained in this Decree. 8. The parties may by agreement modify the time for accounting and payment in whole or part as the progress of technical work may indicate is necessary. It is understood that the parties may be unable to agree on whether offsets are permitted or whether interest may be due on funds impounded pursuant to the Interim Agreement of October 12, 1956, or upon calculations or audits, and these issues, as well as others not expressly treated herein, shall in no way be affected by this Decree. 9. The coastline or baseline referred to in paragraphs 1 and 3, supra, is described by coordinates in the Louisiana plane coordinate system, south zone, as set forth in Exhibit A, appended to this Decree. This coastline supersedes all prior coastline descriptions of former decrees in this case and is the past and present coastline and shall constitute the coastline as of the date of the final decree in this case. 10. Notwithstanding the provisions of paragraph 9, for limited time periods relevant to this Decree, certain of the points or lines contained in the above baseline description were not part of the Louisiana coastline, and for other periods additional points or lines must be added to that coastline. These variations are described in Exhibit B, which for the sectors and times given, describes portions of the baseline. Otherwise, the Louisiana coastline is to be taken as the same as the present coastline for all relevant times and purposes. 11. The parties are directed to establish lines three geographical miles seaward of the coastlines described in Exhibits A and B to be employed in accountings and submitted in the proposed final decree hereafter, delimiting the seaward limit of the State of Louisiana’s rights under the Submerged Lands Act. The parties are directed to prepare a final decree for entry by this Court in the near future resolving the additional issues required to be dealt with that this litigation may be terminated, to include, but not necessarily be limited to, matters related to unresolved issues, if any, concerning accountings and payments, offset claims, payments to others, ambulatory boundary complexities or administrative problems. 12. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this Decree or to effectuate the rights of the parties in the premises. 13. Nothing in this Decree or in the proceedings leading to it shall prejudice any rights, claims or defenses of the State of Louisiana as to its maritime lateral boundaries with the States of Mississippi and Texas, which boundaries are not at issue in this litigation. Nor shall the United States in any way be prejudiced hereby as to such matters. Nor shall anything in this Decree prejudice or modify the rights and obligations under any contracts or agreements, not inconsistent with this Decree, between the parties or between a party and a third party, especially, but not limited to, the Interim Agreement of October 12, 1956, as amended, which Agreement remains in effect except as explicitly modified hereby. 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'2630660 116450 THROUGH. 2628680 113190 THROUGH. 2625550 109560 THROUGH. 2624995 108700 THROUGH. 2624760 108445 THROUGH. 2624045 107660 THROUGH. 2621925 105355 THROUGH. 2620655 104065 THROUGH. 2618380 102265 THROUGH. 2615885 99131 THROUGH. 2615196 98279 THROUGH. 2611843 94130 THROUGH. 2610160 92050 THROUGH. 2609785 91750 THROUGH. 2609180 91445 THROUGH. 2607290 93040 THROUGH. 2607400 93175 THROUGH. 2607455 93710 THROUGH. 2608665 95870 THROUGH-2610650 98640 TO__________ 2614224 105206 A POINT AT_____________________________ 2614270 110615 A POINT AT_____________________________ 2614553 111404 A LINE FROM. 2615475 113900 THROUGH_____ 2615450 157770 THROUGH_____ 2615135 159890 THROUGH_____ 2614790 160765 THROUGH_____ 2614865 161005 THROUGH_____ 2613550 164745 THROUGH_____ 2613585 166700 THROUGH_____ 2613485 167600 X Y THROUGH_____. 2613960 170145 THROUGH_____. 2614070 171910 TO_____________. 261149Q 176505 A POINT AT—. 2610755 176310 A POINT AT—. 2609880 177025 A LINE FROM-. 2608270 178325 THROUGH_____. 2607710 178665 THROUGH_____ - 2606370 180190 THROUGH_____. 2605125 182710 TO_________,____. 2605025 183315 A LINE FROM. _ 2604220 184790 THROUGH_____ _ 2603355 186915 THROUGH_____ _ 2602860 188615 THROUGH_____. 2602425 189395 THROUGH_____ _ 2601940 190595 THROUGH_____ _ 2600780 192900 THROUGH_____ _ 2598335 196450 THROUGH_____ _ 2594900 199935 THROUGH_____ _ 2593875 201260 THROUGH_____ _ 2593340 201660 THROUGH_____. 2590100 203860 THROUGH_____. 2589100 204125 TO_____________ _ 2587400 205250 A LINE FROM. _ 2585000 206975 THROUGH_____ _ 2583790 207010 THROUGH_____ _ 2576450 210023 THROUGH_____ _ 2576174 209790 THROUGH_____ _ 2575992 21Q090 THROUGH_____ _ 2574890 210450 THROUGH_____ _ 2574712 210767 THROUGH_____ _ 2571725 211744 THROUGH_____ _ 2568736 212548 THROUGH_____ _ 2566991 212986 TO_____________._ 2565940 212988 X A LINE FROM-2563010 214045 THROUGH_____ 2562149 214046 THROUGH_____ 2561385' 214258 TO___-__________ 2556172 215383 A LINE FROM-2550402 216158 THROUGH_____ 2406890 189733 THROUGH______ 2398175 182359 THROUGH_____ 2393610 178130 THROUGH______ 2385833 171938 THROUGH______ 2381527 168671 THROUGH______ 2376521 164696 TO____________ 2374875 163200 A POINT AT_____________________________ 2376485 164409 A LINE FROM-2374875 163200 THROUGH______ 2373613 162597 THROUGH______ 2369709 160120 TO______________ 2367695 158943 A LINE FROM-2366789 158537 THROUGH______ 2365337 157918 TO______________ 2364392 157349 A LINE FROM-2362830 157339 TO______________ 2356733 154323 A LINE FROM-2354070 152599 TO______________ 2353875 152659 A LINE FROM-2347871 158564 THROUGH_____ 2342108 151526 TO______________ 2339651 150598 A LINE FROM. 2337450 149987 THROUGH_____ 2335471 149301 THROUGH_____ 2327933 146251 THROUGH_____ 2322466 144396 TO______________ 2320164 143811 X Y A LINE FROM... 2319608 143421 THROUGH-.. 2317663 142869 THROUGH_____.. 2313902 141865 THROUGH_____.. 2312204 141813 THROUGH_____.. 2310546 141903 THROUGH-.. 23Q8552 142401 THROUGH—.. 2307414 143059 THROUGH—.. 2306697 143789 THROUGH-.... 2300326 139954 THROUGH____. 2298538 139073 THROUGH..-... 2296041 138519 THROUGH-.. 2295144 138550 THROUGH—.. 2294383 138846 THROUGH_____.. 2293148 139498 THROUGH-.. 2291503 139861 THROUGH_____.. 2286402 140499 THROUGH_____. 2281202 141484 THROUGH_____.. 2274749 143161 THROUGH—.. 2270205 145091 THROUGH-.. 2264450 147674 THROUGH-___.. 2260236 150105 THROUGH.___.. 2256191 151946 THROUGH.___.. 2254031 153153 THROUGH-___.. 2253306 154102 THROUGH.—.. 2222957 146695 THROUGH-—.. 2221937 146Q04 THROUGH-.. 2219935 144971 THROUGH.—.. 2218146 144160 THROUGH.—.. 2215009 143380 THROUGH.___.. 2207126 141266 THROUGH-— '2198296 138515 THROUGH-— - 219233.0- 136944 THROUGH.—.. 218659.6 135997 THROUGH-218478.8 135611 THROUGH____.. 2183331 135055 THROUGH-___.. 2182166 135368 THROUGH-___ 2180645 185457 THROUGH,___ 2179937 135695 THROUGH____ _. 2170035 135500 Y THROUGH_____.. 2169680 135315 THROUGH_____.. 2167836 134922 TO__________— - 2164477 134753 A LINE FROM.. 2162430 135112 TO_____________ - 2157920 135521 A POINT AT—. 2155349 135847 A LINE FROM.. 2148929 136962 THROUGH_____. 2147751 136599 THROUGH_____. 2143589 136276 THROUGH_____. 2139529 136276 TO_____________. 2138231 136387 A LINE FROM.. 2134210 136726 THROUGH_____. 2133089 136940 THROUGH_____. 2128819 138694 THROUGH_____. 2126697 139353 THROUGH_____. 2122523 140238 THROUGH_____. 2118829 141971 THROUGH_____. 2118065 142532 THROUGH_____. 2117317 143491 TO_____________. 2117632 143583 A POINT AT—. 2131078 175500 A POINT AT—. 2128430 178049 A POINT AT—. 2127239 179020 A POINT AT—.. 2124878 180545 A POINT AT—.. 2111697 183677 A POINT AT—. 2106412 183216 A LINE FROM.. 2103313 183605 THROUGH_____. 2102167 184610 THROUGH_____. 2100222 185315 THROUGH_____. 2099609 185125 THROUGH_____. 2098954 185105 THROUGH_____. 2087767 187497 THROUGH_____. 2087027 187342 THROUGH_____. 2086261 187177 TO_____________. 2085370 187372 X Y A LIME FROM 2077417 189409 THROUGH— 2076201 189799 TO_____________ 2075295 190530 A POINT AT— 207T131 195080 A LINE FROM 2062055 199555 THROUGH____ 2058700 200495 THROUGH____ 2057430 200980 THROUGH____ 2055610 201415 THROUGH-___ 2054750 201215 THROUGH____ 2053190 201320 THROUGH_____ 2051090 201230 THROUGH.___ 2049230 201255 THROUGH-— 2045960 201470 THROUGH-___ 2042475 201660 THROUGH-___ 2037075 203200 THROUGH-— 2035775 203405 THROUGH-— 2033385 204235 THROUGH-___ 2029630 205680 THROUGH.— 2026640 206660 THROUGH.___ 2023042 208270 THROUGH-— 2021155 208850 THROUGH-— 2017453 210475 THROUGH.___ 2016243 211245 THROUGH-___ 2014384 213268 THROUGH____ 2010960 216566 THROUGH-___ 2008873 218388 THROUGH-___ 2008058 219434 THROUGH-___ 2006991 221401 THROUGH-2006256 222432 THROUGH.___ 2004384 224474 THROUGH-___ 2000030 228573 THROUGH-___ 1998568 230370 THROUGH— 1996506 233983 TO_____________ 1995220 235805 A POINT AT-. 1987818 240892 A POINT AT-. 1987371 241272 X A. LINE FROM-1993420 241930 TO______-______ 1863474 298772 A POINT AT_ 1933172 264238 A POINT AT_ 1924399 268936 A POINT AT_ 1914373 270380 A POINT AT-1896827 275747 A POINT AT_ 1882306 270590 A POINT AT_ 1872418 277460 A POINT AT-1843467 275912 A POINT AT_ 1835344 270839 A POINT AT_ 1834019 270301 A POINT AT_ 1833527 271423 A POINT AT_ 1820994 291804 A POINT AT_ 1809845 296285 A POINT AT_ 1791584 307545 A POINT AT_ 1783067 321331 A POINT AT_ 1782391 321876 A POINT AT. 1778769 324757 A LINE FROM-1763190 333540 TO — ____________ 1762420 333590 A POINT AT_____________________________ 1758630 333490 A LINE FROM-1755535 335045 THROUGH______ 1748380 334810 THROUGH______ 1743691 334373 THROUGH______ 1738236 333686 THROUGH______ 1735850 333066 THROUGH______ 1730831 330886 THROUGH______ 1726542 329268 THROUGH______ 1724713 328326 THROUGH______ 1722884 327774 THROUGH______ 1721682 327214 THROUGH-1720140 326402 THROUGH______ 1717114 324303 THROUGH______ 1711532 320881 THROUGH______ 1709968 319818 THROUGH______ 1708756 318661 X THROUGH-1706790 317870 THROUGH.. 1703080 316885 THROUGH-1700680 316390 THROUGH-1696359 315965 THROUGH-1692568 315990 THROUGH-1689980 316170 THROUGH-1687270 316510. THROUGH-1678545 318408 THRQUGH1675346 319196 THROUGH-1671018 320396 THROUGH-1669012 321069 THROUGH-1667091 321595 THROUGH-1665833 321916 THROUGH-1663290 322457 THROÜGH— 1659960 323169 THROUGH-1658887 323134 THROUGH-1657050 323540 THROUGH-1655896 323305 THROUGH-1653430 323751 THROUGH-1651294 324333 THROUGH-1650220 324644 THROUGH-1649308 324684 THROUGH-1648656 324985 THROUGH-1639027 326645 THROUGH-1629147 327939 THROUGH-1622420 328555 THROUGH-1617090 329300 THROUGH-1616760 329510 THROTTGH— 1613Í90 329780 THROUGH-1609300 330480 THROUGH-1608080 330835 THROUGH-1605965 331030 THROUGH-1605565 331280 THROUGH. -1603140 331540 THROUGH. -1600765 332140 THROUGH..1599740 332390 THROUGH. -1595210 333090 THROUGH..1594770 333270 THROUGH. -1594075 333290 X Y THROUGH______________________________1593910 333645 THROUGH______________ — ________________1593010 333520 THROUGH_______-— ____________________1591685 383785 THROUGH_______________________________1589460 334525 THROUGH________________________________1586780 335220 THROUGH________________________________1581450 336800 THROUGH________________________________1576170 338670 THROUGH________________________________1571630 340335 THROUGH________________________________1570480 340905 THROUGH________________________________1567695 341990 THROUGH________________________________1566890 342490 THROUGH________________________________1566375 342810 THROUGH________________________________1564160 343480 THROUGH________________________________1562680 344195 THROUGH________________________________1558720 345375 THROUGH________________________________1555105 346865 THROUGH________________________________1553840 347150 THROUGH--------------------------------1551670 348170 THROUGH________________________________1550645 349050 THROUGH________________________________1546740 350600 THROUGH________________________________1546195 350910 THROUGH________________________________1539270 354040 THROUGH________________________________1536505 355610 THROUGH________________________________1536245 356080 THROUGH________________________________1535690 356465 THROUGH________________________________1532515 357575 THROUGH________________________________1531970 858080 THROUGH--------------------------------1531240 358190 THROUGH________________________________1524550 361675 THROUGH________________________________1513280 366930 THROUGH--------------------------------1502470 372625 THROUGH________________________________1496700 375770 THROUGH________________________________1492040 378110 THROUGH-------------------------------1489725 379370 THROUGH________________________________1479730 384090 THROUGH________________________________1471240 387390 THROUGH________________________________1467685 388820 THROUGH--------------------------------1460435 391260 THROUGH--------------------------------1454105 393050 X Y THROUGH______.1449935 394700 THROUGH______ 1444715 396930 THROUGH______.1441485 398150 TO ______________.1436899 399820 A LINE FROM—.1431526 400742 THROUGH______.1431465 400740 TO ______________.1429020 401485 A LINE FROM—.1429035 401760 THROUGH ______.1425600 402610 THROUGH______.1424630 403175 THROUGH______.1416365 405700 THROUGH______.1410175 407090 THROUGH______.1402525 408365 THROUGH______.1397220 408870 THROUGH ______.1392000 409180 THROUGH______.1391954 409243 THROUGH______.1386636 409216 THROUGH______.1383990 409136 THROUGH______.1380235 408500 THROUGH______.1376515 407966 TO ______________.1372945 406862 A LINE FROM-.1363392 397870 TO,-_____________.1362416 397822 A LINE FROM-.1354310 403875 THROUGH______.1351162 404620 THROUGH______.1341917 405967 THROUGH______.1333745 406888 THROUGH______.1328473 407126 THROUGH______.1323205 407138 THROUGH______.1317944 407045 THROUGH______.1312617 406742 THROUGH______.1307312 406260 THROUGH______.1296747 405049 THROUGH______.1291413 404205 THROUGH______.1286154 403467 THROUGH______.1280760 402836 X Y THROUGH.1275467 4Q2375 THROUGH.1264910 401500 THROUGH.1259600 400971 THROUGH.1254211 400226 THROUGH.1248971 399421 THROUGH____.1248670 398400

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?

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

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

PARR et al. v. SCOFIELD, Collector of Internal Revenue. No. 13160. United States Court of Appeals Fifth Circuit. Dec. 7, 1950. Muckleroy McDonnold, San Antonio, Tex,, for appellants. Carlton Fox, Ellis N. Slack, and Lester L. Gibson, Special Assts. to Atty. Gen., Theron Lamar Caudle, Asst. Atty. Gen., Henry W. Moursund, U. S. Atty. San Antonio, Tex., for appellee. Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges. HOLMES, Circuit Judge. This appeal is from a judgment denying appellants relief in an action to recover deficiency income taxes and interest paid by them for the year 1944 in the respective amounts of $93,173.34 and $94,323.98. These are the pertinent facts: In 1936, George B. Parr obtained an oil and gas lease which he transferred to Hamill & Smith, a partnership, with the oral understanding that he was to have a one-fourth interest in the lease and equipment, and that Hamill & Smith were to operate the property, pay all expenses, and pay to him one-fourth of the net profits from the property. After production was obtained under the lease, Hamill & Smith disputed the existence of the agreement, and Parr brought suit against them in the state court. Parr assigned 45% of his interest in the property and accumulated income to his lawyers. The suit was ultimately decided in Parr’s favor, and he was adjudged to possess a one-fourth interest in the lease and equipment, and to be entitled to be reimbursed for one-fourth of the profits earned in the prior years, as well as to receive a similar portion of the profits earned in the future. As a result of the suit, Parr and his wife, who were divorced after this suit was filed, received the following sums of money from Hamill & Smith during the year 1944: 55% of 25% of net income from the lease,............ $165,554.30 55% of 25% of interest allowed on the judgment, .......... 22,868.58 Total, .............. $188,422.8o In 1945, Parr and his wife filed separate returns for the year 1944, in which they reported one-fourth of the net income from the 1944 operations of the lease. They did not report any income from the lease attributable to operations prior to 1944; but they filed amended returns for the years 1940 to 1943, inclusive, in which they reported their distributive share of net income from the lease. During the year 1945, they filed delinquent partnership income tax returns in the name of Hamill & Smith & Parr for the years 1936 to 1943, inclusive. Upon examination of appellants’ 1944 income tax returns, the Commissioner found that the amount collected on the state court judgment, plus the fair market value of appellants’ interest in the lease and equipment, constituted income from litigation for the year 1944 not subject to any depletion allowance. As a result of this finding, the Commissioner assessed additional taxes and interest against George B. Parr and Thelma D. Parr in the respective amounts of $93,219.40 and $93,370.06. Appellants paid the additional assessments, and then filed claims for a refund, which were rejected. Then they filed this suit in the court below to recover the amounts alleged to be illegally assessed against them. The lower court denied recovery, holding that the taxpayers were required to report in 1944, as income, the sums recovered by them in 1944 in the state court. In so holding, the court rejected the taxpayers’ contention that, because Parr was a member of a partnership, the income should have been taxed in the years when earned, as well as their contention that they were entitled to a deduction for depletion under Section 23 (m) of the Internal Revenue Code, 26 U.S.C.A. § 23 (m). We think that the lower court was correct in concluding as a matter of law that the determination of the Commissioner, resulting in the deficiency assessments, was correct. Appellants base their case on the contention that Parr had an undivided one-fourth interest in the property from date of its acquisition; that Hamill & Smith received the income and made disbursements for themselves and Parr; and that such relationship established a joint venture for income tax purposes under Section 3797(a) (2) of the Internal Revenue Code, 26 U.S.C.A. § 3797(a) (2). In Farrell v. Commissioner of Internal Revenue, 5 Cir., 134 F.2d 193, certiorari denied in 320 U.S. 745, this court held that the essential issue concerning the existence of an asserted joint venture was a question of fact for decision by the trial court. The court below has resolved this issue of fact against the appellants; and, since we are not convinced that it is clearly erroneous, we are not at liberty to disturb the finding of the trial court. Even if Parr had been able to establish a partnership or joint venture, he would not be entitled to a recovery, because our decision in Farrell v. Commissioner of Internal Revenue, supra, also held that income recovered by litigation was taxable in the year recovered, rather than in the prior years when earned by the alleged partnership. Parr had no recognized right to any partnership property or earnings during the time Hamill & Smith were actually contesting liis claim; and he had no distributive share of partnership earnings that could be reported for income until the termination of the litigation. The appellants are entitled to no depletion deduction, because they had no known, established, or legally recognized interest until the litigation in the state court was determined. The amount paid to Parr by Hamill & Smith representing past profits, earned by them before his interest in the property was established, was not depletable income in Parr’s hands. See Massey v. Commissioner of Internal Revenue, 143 F.2d 429, 431. During the time Hamill & Smith were contesting the existence of Parr’s interest in the property, they were required to report the entire income from the property as their taxable income, and were entitled to depletion deductions thereon. The government dealt with them, and allowed such deductions. The judgment appealed from is affirmed. Affirmed. RUSSELL, Circuit Judge. I concur in the judgment of affirmance.

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?

COMPANARO v. GONDOLFO et al. No. 4714. Circuit Court of Appeals, Third Circuit. July 27, 1932. IPu-vey T. Satterthwaite, of Trenton, N. J., for appellant. ffm. Reich, of Trenton, N. J., for ap-pellees Gondolfo and Costognola. I. Herbert Levy and Forma n & Levy, all of Trenton, N. J., for appellee Pinto. Before BUFFINGTON and THOMPSON, Circuit Judges, and THOMSON, District Judge. THOMPSON, Circuit Judge. This is an appeal from an order of the District Court reversing the order of a referee in bankruptcy and adjudging the ap-pellees entitled to priority in the distribution of funds derived from the sale of the bankrupt’s ]©al estate. The facts, stated in chronological sequence, may be summarized as follows: On. October. 33, 3924, one Caponigro, later adjudged a bankrupt, contracted with Gondolfo and Costognola to have repairs and alterations made to premises possessed by him in Trenton, N. J. About November 7, 1924, Caponigro received a deed for the premises, which was duly recorded. On November 11, 1924, he contracted with Pinto to do the plumbing and heating work. December 15, 1924, Caponigro conveyed the premises to one Lettiere, subject to a first mortgage of $6,000. At that time, Gondolfo, Costognola, and Pinto, the appellees, were engaged upon their work. Lettiere created two additional mortgages, a second mortgage of $5,000 and a third mortgage of $5,000. The second mortgage was dated December 15, 1924, but was not recorded until January 24, 1925. Pinto completed his work about December 22, 1924, and Gondolfo and Costognola completed theirs in February,-3925. On January 24, 1925, Caponigro sold the second mortgage to Companaro for the sum of $3,800, and the assignment was acknowledged and recorded the same day. At the time of the purchase of the second mortgage, Companaro knew that Gondolfo, Cost-ognola, and Pinto, the appellees, were making repairs and alterations to the premises. Caponigro promised Companaro to make settlement with the mechanics’ lien creditors for the alterations and repairs not later than April 1, 1925. On February 24, 1925, two of the appellees, Gondolfo and Costognola, filed a mechanics’ lien against the premises for $2.,892. On April 35', 1925, Lettiere re-conveyed the property to Caponigm. On April 16, 1925', the appellee Pinto filed a mechanics’ lien for $2,589.50'. On July 8, 1925, Caponigro was adjudged a bankrupt. On October 25, 1925, the trustee in bankruptcy, in accordance with a prior authorization, sold the property at public sale. Com-panaro purchased it, subject to the first mortgage of $6,000, for the sum of $7,000’. He paid $2,000' in cash and secured the balance by giving a mortgage on other property owned by him. The proceeds of the sale were held by the trustee subject to the order of the court as to the validity, order of priority, and amount due Companaro and the appel-lees. The referee in bankruptcy made an order that the $5,000 second mortgage held by Companaro was prior in lien to that of the appellees, the mechanics’ lien creditors. The District Court vacated the order of the referee and adjudged the mechanics’ liens of the appellees to be prior to the lien of Compan-aro’s second mortgage. The referee based his conclusion on his interpretation of section 10 of the New Jersey Mechanics’ Lien Act of 1898 (Comp. Stat. of N. J. 1910', vol. 3, p. 3301), which reads: “The lien giveñ by this act shall be and is hereby extended to all buildings of whatever description erected or to be erected in this state and the lots or curtilages whereon the same áre erected, for all debts contracted by the owners thereof, or by any other person with the consent of the owner or owners in writing, for work done or materials furnished in and for the repairing or alteration of any such building; provided, however, that said lien shall not be valid against a bona fide purchaser or mortgagee before said lien is filed in the office of the clerk of the county in which said lot or curtilage is situate; and provided further, that work done or materials furnished under contract in and for such repairs or alterations shall be liable to the said contractor alone, in the manner provided by the second section of this act.” The section, as we interpret it, means that a mortgagee, in order to successfully assert priority over mechanics’ lien creditors, must establish his status as a bona fide mortgagee. The term “bona fide” requires more than the giving of a valuable consideration. Two additional elements must be present, namely, the absence of notice and the presence of good faith. See United States v. California & O. Land Co., 148 U. S. 31, 42, 13 S. Ct. 458, 462, 37 L. Ed. 354, where the Supreme Court said: “The essential elements which constitute a bona fide purchase are, therefore, three: a valuable consideration, the absence of notice, and presence of good faith.” Companaro, the purchaser of the mortgage, visited the property several times prior to the purchase and saw the men at work. His testimony that the men told him that they were being paid off each week was flatly denied by them, and is inconsistent with his own testimony that he had agreed with Caponigro that the latter was to pay for all the work by a specified date. It is therefore apparent that Companaro knew the lien creditors had not been paid at the time of the assignment to him of the mortgage. We are of the opinion that Companaro failed to qualify as a bona fide mortgagee under the terms of the Mechanics’ lien Act. We perceive no error in the order of the District Court. Order 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?

OCEAN ELECTRIC CORPORATION, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents. No. 76-1060. United States Court of Appeals, Fourth Circuit. Argued May 1, 1978. Decided March 16, 1979. Charles R. Waters, II, Norfolk, Va., Henry H. Mansbach, Thomas E. Cabaniss, Norfolk, Va., Conrad M. Shumadine, Richmond, Va., David Y. Paggert, Kaufman & Oberndorfer, Norfolk, Va., on brief, for petitioner. Dennis K. Kade, Atty., Dept, of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for App. Litigation, U. S. Dept, of Labor, Washington, D. C., on brief), for respondents. ' Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge. WIDENER, Circuit Judge: This case comes to us on a grant of petition for rehearing. The Occupational Safety and Health Review Commission found that Ocean Electric Corporation had committed a serious violation of OSHA* Regulation 29 C.F.R. § 1926.957(a)(3) by failing to provide a barricade or barrier between its employees and energized electrical bus bars. We previously filed an opinion affirming the Commission, but a petition for rehearing was granted, and the case was reargued before a reconstituted panel. We now withdraw the first opinion and reverse the Commission. Ocean Electric is a Virginia corporation engaged in business as an electrical contractor. Pursuant to contract, it was installing an additional switch gear unit at a Navy electric power station in Virginia Beach, Virginia. The job was to be done in two parts. The first part required setting the new unit in place adjacent to an existing unit. The second part would have involved energizing the new unit by tying it to its adjacent unit, which required de-energizing the adjacent unit. On the day the first part of the job was to be performed, J. W. Kistler, the job superintendent, inspected the jobsite, drew up a work plan, and assigned three men to the project, Jack Watson, Marcel Burger, and the decedent, Jerry Kephart. Watson, the foreman, was an experienced journeyman electrician who had a perfect safety record prior to this accident. Burger also was an experienced electrician who had first aid training. Kephart was an apprentice electrician of outstanding ability with three years’ experience, at least twelve months of which were with Ocean. When the men began work, Watson noticed that a ground bus bar extended some six inches out from the base of the existing switch gear unit. To facilitate placement of the new unit, Watson decided to remove this unenergized ground bus bar. In order to determine how to accomplish this task, Watson opened the door on the existing switch gear unit. The ground bus bar ultimately was removed, but the last time Watson opened the door he neglected to close it. The new unit was lowered into place by crane. The cables attaching the unit to the crane became slack when the unit touched the ground, and Watson ordered his assistants to grab them. Kephart grabbed the cables with his right hand, and at the same time stuck his left hand through the open door of the existing unit and touched an energized bus bar. He was electrocuted. The case was tried on a stipulated statement of facts, and, in addition to the basic facts related above, the parties made the following stipulations among others: The decision to remove the unenergized ground bus bar was made at the last minute and was not contemplated by the superintendent; Watson’s act in leaving the door open was accidental, not intentional, and purely a human error; the accident was caused solely by human error; and all three employees were all acquainted with the dangers involved in handling energized bus bars. An OSHA compliance officer visited the jobsite and cited Ocean for failure “to provide a barricade, a barrier, or insulating equipment that would prevent accidental contact by employees with conductors energized by high voltage electricity.” This failure, it was alleged, violated OSHA Regulation 29 C.F.R. § 1926.957(a)(3) which in turn is a breach of the employer’s duty under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(2). Since an employee was killed, Ocean was cited for a serious violation of the Act. 29 U.S.C. § 666(j). A penalty of $700 was assessed. The original penalty was $1000, but this amount was reduced by ten percent for good faith and twenty percent because Ocean had no past history of violations under the Act. Ocean contested the violation, and the Secretary of Labor filed a complaint to have the citation affirmed. 29 U.S.C. § 659(c). Ocean argued that the accident was unforeseeable and unpreventable, and that it should not be held responsible for the human error of its foreman. The administrative law judge rejected this argument, applied the common law doctrine of respondeat superior, and held Ocean responsible for the negligent act of its foreman. 1974-75 CCH OSHD § 18,422. The Occupational Safety and Health Review Commission (OSHRC) affirmed the holding of the hearing examiner, but for a different reason. It recognized Congress did not intend to hold employers to absolute responsibility for acts of their supervisors in each instance, although such may be the general rule, and where a company “has done everything reasonably possible to assure compliance, but a supervisor nevertheless creates a violation which was unforeseeable and therefore unpreventable,” no liability should attach. 1974-75 CCH OSHD § 20,-167, at 23,993. The Commission obviously viewed this exception, however, as an affirmative defense and held Ocean responsible for Watson’s acts because it had not carried its burden of proof by showing the adequacy of its safety program. The basic issue in this case is the extent of a company’s responsibility for its foreman’s actions under OSHA. Resolution of this issue requires a consideration of a variety of contexts in which the issue can arise. In this case alone, the issue is raised in three different settings. First, Ocean argues that it, in fact, complied with the regulation by providing a proper barrier between the bus bar and its employees. The Secretary disagrees and argues that a violation occurred when Ocean’s foreman left the door open which the Secretary says removed the barrier. The issue is Ocean’s responsibility for the foreman’s act. If the responsibility for Watson’s negligent act is imputed to Ocean, it violated the regulation. If not, Ocean complied. Second, Ocean argues that it lacked the knowledge required for a serious violation of the Act. 29 U.S.C. § 666(j) states that an employer will not be guilty of a serious violation if it “did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” If Ocean is not responsible in law for the act of its foreman, if it did what it normally could to prevent it, then it is difficult to say that Ocean had actual or constructive knowledge of the violation. On the other hand, if Watson is the personification of Ocean, then his knowledge will be imputed to Ocean and the requirements of § 666{j) will be satisfied. Finally, Ocean argues that nothing it could have done would have prevented this accident or would prevent future similar accidents; and that to hold it liable for unpreventable accidents would undermine the purpose of the Act. The administrative law judge rejected this formulation of the issue and held Ocean liable on a strict application of respondeat superior. The Commission, as noted, agreed with Ocean’s formulation of the issue, but held that Ocean had not met its burden of proof by introducing evidence showing the sufficiency of its safety program. The issue here, once again, is the type of steps Ocean must take in order to separate itself from the negligent acts of its supervisory employees. Ocean may not escape all responsibility for the acts of its supervisors. A corporation can only act through its agents and to excuse Ocean simply because its foreman was negligent would emasculate the Act. However, an imputation of a supervisor’s acts to the company in each instance would frústrate the goals behind the Act. As the Commission correctly stated: “Such a holding would also not tend to promote the achievement of safer workplaces. If employers are told that they are liable for violations regardless of the degree of their efforts to comply, it can only tend to discourage such efforts.” 1974-75 CCH OSHD § 20,167, at 22,993. Further, it does not appear that Congress intended the employer to be an insurer of employee safety. “The Congress declares it to be its purpose and policy ... to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . .” 29 U.S.C. § 651(b) (emphasis supplied). And, as stated in the Act’s legislative history: “An employer’s duty under [the general duty clause] . is not absolute.” H.R.Rep.No.92-1291, at 21, cited in National Realty and Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 142, 489 F.2d 1257, 1266 (1973). We are of opinion that Ocean must accept some, but not unqualified, responsibility for the acts of its foreman. Both the Commission and the Courts of Appeals now accept this basic proposition, but there is not complete agreement as to where to draw the line on an employer’s responsibility. In several cases, the Commission gave a fairly broad reading to the unforeseeable/isolated incident limitation on liability. In Secretary v. Otis Elevator Co., 17 OSAHRC Rep. 926 (1975), a company was cited when its employee failed to wear a proper safety belt. The Commission vacated the citation when it was shown that the employee’s act was an isolated incident done on the spur of the moment in violation of company safety policies. The Commission applied the same rationale to supervisory employees in Secretary v. Bechtel Power Corp., 9 OSAHRC Rep. 762 (1974), where a foreman was killed as a result of his own negligence. In Secretary v. R. Zoppo Co., Inc., 20 OSAHRC Rep. 389 (1975), a company driver was electrocuted when he drove into overhanging power lines. OSHA cited the company for operating its equipment without providing proper clearance for the truck. Based on the driver’s excellent past safety record, the company’s safety program and direct warnings given to the employee, the Commission vacated the citation. A company’s safety instructions can be hollow words, however, and the Secretary has taken the position that in certain circumstances even direct warnings may not make an accident unforeseeable. The Secretary raised this argument in Secretary v. Butterowe, Inc., 6 OSAHRC Rep. 543 (1974). In Butterowe, an employer specifically instructed two employees not to use a hoist to lift roofing cement to the roof of a building because of the proximity of electric wires but to carry the cement up to the roof themselves. The two employees used the hoist anyway, and one of them was electrocuted. The Secretary argued that carrying the cement to the roof was so much more difficult and time consuming than using the hoist that employee disobedience was foreseeable. The Commission disagreed and held that the Secretary had failed to show either a violation of the general duty clause or the requisite knowledge for a serious violation. Butterowe, at 550-51. The same result was reached in Secretary v. Shea-Ball, 10 OSAHRC Rep. 719 (1974). Finally, in Secretary v. Engineers Construction, Inc., 20 OSAHRC Rep. 348 (1975), a company was charged with a specific violation of the Act because one of its supervisory employees was seen working in a trench without a trenchbox or sheeting as was required by company safety rules. The Commission vacated the citation because the Secretary had not shown what Engineers could have done to prevent the isolated incident of idiosyncratic behavior of the supervisor. In two recent cases, however, the Commission has attempted to restrict the line of cases discussed above. In Secretary v. Floyd S. Pike Electrical Contractor, Inc., 15 OSAHRC Rep. 302 (1975), a foreman was electrocuted when he failed to properly ground a hoist truck. In affirming a finding of a serious violation of the specific duty clause, the Commission reversed the administrative law judge who had held the accident unforeseeable, and imputed both the act and the knowledge of the foreman to the company. Floyd Pike appealed the Commission’s decision, and we remanded the case for reconsideration in light of the apparently conflicting holding in Engineers we have referred to above. 557 F.2d 1045 (4th Cir. 1977). Before the Commission decided Floyd Pike on remand, it decided the case at bar. The concepts of foreseeability and preventability were recognized but not held binding or even persuasive because of a new rule it adopted which makes the quality of a safety program an essential item in each case of idiosyncratic behavior of a supervisor and which transforms the safety program issue into an affirmative defense with the burden on the employer. No specific effort was made to distinguish Engineers. On remand in Floyd Pike the Commission found that its earlier decision was inconsistent with Engineers, and, following the affirmative defense language of its own decision in Ocean Electric, held the employer not responsible for an unpreventable accident. Floyd Pike, 1978 CCH OSHD § 22,805. Thus, at the present time it is clear that the Commission has abandoned the respondeat superior argument and has recognized limits on an employer’s liability, but has placed the burden on the employer to prove the accident was unpreventable. The Courts of Appeals also have recognized there are limits on an employer’s responsibility for the acts of its supervisors. In National Realty, supra, the District of Columbia Circuit refused to find a serious violation of the general duty clause because the Secretary of Labor had not proven what the company could have done to foresee or prevent one of its employees from riding on the running board of an earth loader. In Brennan v. OSHRC, 502 F.2d 946 (3d Cir. 1974), the Third Circuit applied the National Realty test in a case concerning a serious violation of the general duty clause. It found that there was an unresolved question as to whether the company had done all it could to prevent the accident in that it had allowed the employee to work alone in a situation where two employees might have provided more safety. The court remanded the case to the Commission to resolve the question and to decide whether the Secretary had met his burden. In REA Express v. Brennan, 495 F.2d 822 (2d Cir. 1974), the Second Circuit also applied the National Realty test and found a serious violation of the general duty clause where the company’s, supervisory personnel permitted untrained employees to attempt repairs in this basement room on a wet concrete floor, the day after a three-inch rainfall, without boots, insulated shoes, rubber gloves or rubber mats. These employees were not electricians was no evidence that they had ever been instructed or qualified to handle or repair equipment which had such a potential for mortal injury. This was not a case of idiosyncratic or unexpected employee behavior. The plant had lost electric power and the repairs were attempted with the full knowledge of REA supervisory personnel in a setting which presented maximum peril and was devoid of rudimentary safety equipment. 495 F.2d at 826. There In Brennan v. OSHRC, 501 F.2d 1196 (7th Cir. 1974), the Seventh Circuit affirmed the Commission’s finding of no serious violation of the general duty clause because the accident was unforeseeable. The employee in that case had not been trained, but he was given specific instructions not to participate in the operations. His presence on the job-site, in itself, was not enough to make it foreseeable that he would join in the work and be injured. Finally, in Floyd S. Pike Electrical Contractor, Inc. v. OSHRC, 576 F.2d 72 (5th Cir. 1978), the Fifth Circuit upheld the Commission’s finding of liability where an inexperienced foreman in charge of an inexperienced crew worked in an improperly shored trench in violating a specific regulation, and the company had taken no action to enforce a company rule against such conduct despite knowledge of violations by some employees. The cases discussed above clearly indicate that if a violation by an employee is reasonably foreseeable, the company may be held responsible. But, if the employee’s act is an isolated incident of unforeseeable or idiosyncratic behavior, then common sense and the purposes behind the Act require that a citation be set aside. Although the courts and the Commission now agree that employer liability for unforeseeable accidents should be limited, the Commission in this case now seeks to depart from its former rulings as to who should bear the burden of proof on this issue. In Secretary v. Shea-Ball, 10 OSAHRC Rep. 719 (1974), the employer was charged with a serious violation of specific OSHA Regulations because its employee was not wearing protective goggles. The company furnished goggles but the record did not show that the company required them to be worn. The Commission vacated the citation and stated: Complainant [Secretary of Labor] has the burden of proof and he must discharge that responsibility in every case, even one that reaches the decisional stage, as does this one, without a formal hearing where testimony and other evidence is normally adduced. . . .No part of the Secretary’s burden can be left to speculation or conjecture. An isolated violation of a standard by an employee which is unknown to the employer and contrary to the employer’s orders does not necessarily constitute a violation of 29 U.S.C. 654(a)(2). In the case before us, however, the Commission placed the burden on the company to show unforeseeability and unpreventability, and affirmed the citation because no evidence was presented on the adequacy of Ocean’s safety instruction program. In our judgment, an employer who would otherwise be found in violation due to the actions and knowledge of a supervisor should be permitted to defend on the basis that it took all necessary precautions to prevent the occurrence of the violation. . . . We will require a showing by the employer that the supervisory employee with knowledge of the violation was himself adequately supervised with regard to safety matters. 1974-75 CCH OSHD § 20,167, at 23,993-94. The Commission made it clear that it referred to the adequacy of the safety program. We believe that the Commission erred, and that the burden of proof should be on the Secretary. This is more especially true in this case where the issue of the adequacy of a safety program was not before the administrative law judge. 29 CFR Part 2200 provides rules of procedure for all proceedings before the OSHRC. 29 C.F.R. § 2200.2(a). Section 2200.73(a) states that “[i]n all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.” (Italics added). In Brennan v. OSHRC, 511 F.2d 1139 (9th Cir. 1975), the Ninth Circuit placed the burden of proof on the Secretary to show the knowledge required for a serious violation of a specific regulation, the same situation presented to us here. And, in National Realty the District of Columbia Circuit placed the burden on the Secretary to show what particular measures a company could have taken to improve its safety program. Any deficiencies in the record on this point were charged to the Secretary. 160 U.S.App.D.C. at 143, 489 F.2d at 1267. The Secretary would distinguish National Realty as a general duty case. He argues that the broad scope of the general duty clause justifies placing the burden of proof on the government. He particularly relies on the following language from National Realty: Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere, and the Secretary has an awesomely broad discretion in selecting defendants and in proposing penalties. To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures. 160 U.S.App.D.C. at 144, 489 F.2d at 1268. We do not believe the Secretary’s argúment should prevail. We begin by recalling that the stated issue in this case was failure “to provide a barricade, a barrier.” The issue was made in the citation and repeated in the complaint which adopted the citation by reference. The complaint did not elaborate as it might have. See REA Express, 495 F.2d at 826. Following the company’s answer, which denied the violation, the parties entered into the stipulation we have before referred to. The answer did allege that Ocean had taken all reasonable precautions in planning the work, had trained its employees to avoid unsafe practices, and had taken all practical steps to insure the safety of its employees. However, the matter was never mentioned again in the trial before the administrative law judge. The issue of the adequacy of a safety program was first brought into the case in the Commission’s opinion when it found against the employer for failure to bear the burden of proof. That the program was never at issue before is illustrated by the statement of the government’s attorney before the administrative law judge: “The vast bulk of OSHA case law [ijmputes the knowledge and actions of the foreman to the Respondent. * * * * * * “Respondent’s counsel has cited cases holding that a violation of a standard is not established where an employee failed to follow safety procedures directed and enforced by the employer. “That is not the situation here. It was the ultimate responsibility of the foreman to require sufficient protective equipment to prevent accidental contact of the body with energized conductors or parts. “It was the foreman representing management who was not adhering to respondent’s own safety rules.” (Italics added). Thus, not only was the safety program not mentioned at the trial, it was fairly understood at the trial by both parties, as well as the judge, that the question being tried was whether Ocean was responsible for Watson’s act, which it was understood was in violation of Ocean’s own safety rules and was stipulated to be “accidental, not intentional, and purely a human error.” The administrative law judge found Watson’s act to be “contrary to established procedures” but held Ocean liable on the theory of respondeat superior without mentioning a safety program or its adequacy. On review, the Commission disagreed with the administrative judge as to liability of Ocean on the theory of respondeat superior, but held against Ocean because it had not carried its burden of proof as to whether or not its safety program was adequate. The Commission itself has ruled in a quite similar case, Shea-Ball, supra, at p. 723, that “[fjurnishing personal protection equipment and requiring the same to be worn are quite different, and the respondent was not charged with the latter.” In our case, furnishing a barrier or barricade and closing the door to the barricade are quite different, and Ocean was not charged with the latter. Passing, however, the defect in the charge, if Ocean’s safety program had been put in issue when it became obvious to all that the matter which was actually to be tried was the act of Watson in failing to close the door to the barricade, we might have a different case. But the program was not put in issue although Ocean had mentioned the same in its answer. Rather, the stipulation was entered into and the case was tried on the theory of respondeat superior. To repeat: “It was the foreman representing management who was not adhering to respondent’s own safety rules.” This very subject was considered in National Realty, 160 U.S.App.D.C. at 139-143, 489 F.2d at pp. 1263-1267, following the rule that administrative pleadings are liberally construed and easily amended. Thus, although the barricade was extant, and the charge might be said to have been facially refuted by the stipulation, the Secretary, to only slightly paraphrase National Realty, despite the awkwardness of his charges and pleadings, could properly have produced evidence at the hearing on the question of whether Ocean’s safety policy failed to meet the required standards. This the Secretary did not do, and we do not fault him for it, for no one had contemplated the safety policy as an issue to be tried. When the Commission later found against Ocean because of Ocean’s failure to bear its burden of proof, we think it erred as a matter of law in two respects. First, as we have demonstrated, we think the burden of proof is on the Secretary. Second, we do not think that Ocean was fairly apprised that the adequacy of its safety policy was an issue in the proceeding on review. In some instances we might remand the case for further consideration as to the adequacy of the safety program, cf. Brennan v. OSHRC, 502 F.2d at 953, but here the Secretary alleges a serious violation of a specific regulation. Ocean may .not be found guilty of a serious violation if it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. 29 U.S.C. § 666(j). It has been stipulated that Watson’s action in leaving the door to the barricade open was “accidental, not intentional, and purely a human error;” that Ocean “did not anticipate the actual course of events.” Nothing is suggested to show Ocean could have foreseen the accident. Watson was an experienced journeyman electrician with a perfect safety record, and Kephart, while of considerably less experience, was a man of extraordinary ability, who it is stipulated, when he stuck his hand in the open door, “violated the principles of his training.” In these circumstances, when the case was tried on one theory, and decided on another on review, the Secretary having had the opportunity to introduce the matter of the adequacy of the safety program at the hearing, and having not done so, it cannot be said that anything in the record indicates that it was in any way foreseeable that Watson would leave the door to the barricade open. Accordingly, it is the Secretary who has not borne the burden of proof, not Ocean. The judgment of the Commission is accordingly REVERSED. . Judge Craven was a member of the first panel was replaced by Judge Widener. but died during the pendency of the case. He . Section 654(a)(2) states that each employer “shall comply with occupational safety and health standards promulgated under this chapter.” OSHA Regulation 29 C.F.R. § 1926.957(a)(3) provides that “extraordinary caution shall be used in the handling of bus bars, tower steel, materials, and equipment in the vicinity of energized facilities. The requirements set forth in § 1926.950(c) shall be complied with.” 29 C.F.R. § 1926.950(c) is a statement of required clearances. . At the first hearing of this case before us we received the impression, in response to an inquiry to counsel, that the employment, of the outside safety firm was all the proof concerning its safety program Ocean could offer. On reargument, however, we were advised by counsel that our first impression was a mistake, that Ocean could present the details of its safety program, and that the attorney who first argued the case was under the impression that he should reply to our question only from matters already in the record. Our decision, however, has not been determined by the matters related in this footnote. . There is no reason, of course, that, when a question concerning the adequacy of a training program is under consideration by the Secretary, he may not require the employer to produce all relevant information as in any other civil case.

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"?

TRAFFICANTE et al. v. METROPOLITAN LIFE INSURANCE CO. et al. No. 71-708. Argued November 7, 1972 Decided December 7, 1972 Douglas, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, in which BlackmuN and Powell, JJ., joined, post, p. 212. Stephen V: Bomse argued the cause for petitioners. With him on the briefs were George H. Clyde, Jr., and Margaret D. Brown. Richard J. Kilmartin argued the cause and filed a brief for Metropolitan Life Insurance Co. Robert M. Shea argued the cause and filed a brief for respondent Park-merced Corp. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Norman, and Frank E. Schwelb. Briefs of amici curiae urging reversal were filed by Robert Keith Booth, Jr., for the City of Palo Alto, California, and by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Michael Davidson, William Bennett Turner, and Alice Daniel for the NAACP Legal Defense and Educational Fund, Inc. Me. Justice Douglas delivered the opinion of the Court. Two tenants of Parkmerced, an apartment complex in San Francisco housing about 8,200 residents, filed separate complaints with the Secretary of Housing and Urban Development (HUD) pursuant to § 810 (a) of the Civil Rights Act of 1968,82 Stat. 85,42 U. S. C. § 3610 (a). One tenant is black, one white. Each alleged that the owner of Parkmerced had discriminated against nonwhites on the basis of race in the rental of apartments within the complex in violation of § 804 of the Act. HUD, pursuant to §810(c) of the Act, notified the appropriate California state agency of the complaints and the state agency, for lack of adequate resources to handle the complaints, referred the charge back to HUD. Since HUD failed to secure voluntary compliance within 30 days, petitioners brought this action in the District Court under § 810 (d) of the Act. The complaint alleged that the owner had discriminated against nonwhite rental applicants in numerous ways, e. g., making it known to them that they would not be welcome at Parkmerced, manipulating the waiting list for apartments, delaying action on their applications, using discriminatory acceptance standards, and the like. They — the two tenants — claimed they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being “stigmatized” as residents of a “white ghetto.” The District Court did not reach the merits but only held that petitioners were not within the class of persons entitled to sue under the Act. 322 F. Supp. 352. The Court of Appeals affirmed, construing § 810 (a) narrowly to permit complaints only by persons who are the objects of discriminatory housing practices. 446 F. 2d 1158. The case is here on a petition for a writ of certiorari, which we granted, 405 U. S. 915. We reverse the judgment below. The definition of “person aggrieved” contained in § 810 (a) is in terms broad, as it is defined as “[a]ny person who claims to have been injured by a discriminatory housing practice.” The Act gives the Secretary of HUD power to receive and investigate complaints regarding discriminatory housing practices. The Secretary, however, must defer to state agencies that can provide relief against the named practice. If the state agency does not act, the Secretary may seek to resolve the controversy by conference, conciliation, or persuasion. If these attempts fail, the complainant may proceed to court pursuant to § 810 (d). Moreover, these rights may be enforced “by civil actions in appropriate United States district courts without regard to the amount in controversy,” if brought within 180 days “after the alleged discriminatory housing practice occurred.” §812 (a). In addition, §813 gives the Attorney General authority to bring a civil action in any appropriate United States district court when he has reasonable cause to believe “that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted” by the Act. It is apparent, as the Solicitor General says, that complaints by private persons are the primary method of obtaining compliance with the Act. Hackett v. McGuire Bros., Inc., 445 F. 2d 442 (CA3), which dealt with the phrase that allowed a suit to be started “by a person claiming to be aggrieved” under the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5 (a), concluded that the words used showed “a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.” Id., at 446. With respect to suits brought under the 1968 Act, we reach the same conclusion, insofar as tenants of the same housing unit that is charged with discrimination are concerned. The language of the Act is broad and inclusive. Individual injury or injury in fact to petitioners, the ingredient found missing in Sierra Club v. Morton, 405 U. S. 727, is alleged here. What the proof may be is one thing; the alleged injury to existing tenants by exclusion of minority persons from the apartment complex is the loss of important benefits from interracial associations. The legislative history of the Act is not too helpful. The key section now before us, i. e., § 810, was derived from an amendment offered by Senator Móndale and incorporated in the bill offered by Senator Dirksen. While members of minority groups were damaged the most from discrimination in housing practices, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered. The Assistant Regional Administrator for HUD wrote petitioners’ counsel on November 5, 1970, that “it is the determination of this office that the complainants are aggrieved persons and as such are within the jurisdiction” of the Act. We are told that that is the consistent administrative construction of the Act. Such construction is entitled to great weight. Udall v. Tollman, 380 U. S. 1, 16; Griggs v. Duke Power Co., 401 U. S. 424, 433-434. The design of the Act confirms this construction. HUD has no power of enforcement. So far as federal agencies are concerned only the Attorney General may sue; yet, as noted, he may sue only to correct “a pattern or practice” of housing discrimination. That phrase “a pattern or practice” creates some limiting factors in his authority which we need not stop to analyze. For, as the Solicitor General points out, most of the fair housing litigation conducted by the Attorney General is handled by the Housing Section of the Civil Rights Division, which has less than two dozen lawyers. Since HUD has no enforcement powers and since the enormity of the task of assuring fair housing makes the role of the Attorney General in the matter minimal, the main generating force must be private suits in which, the Solicitor General says, the complainants act not only on their own behalf but also “as private attorneys general in vindicating a policy that Congress considered to be of the highest priority.” The role of “private attorneys general” is not uncommon in modern legislative programs. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 402; Allen v. State Board of Elections, 393 U. S. 544, 556; Perkins v. Matthews, 400 U. S. 379, 396; J. I. Case Co. v. Borak, 377 U. S. 426, 432. It serves an important role in this part of the Civil Rights Act of 1968 in protecting not only those against whom a discrimination is directed but also those whose complaint is that the manner of managing a housing project affects “the very quality of their daily lives.” Shannon v. United States Dept. of Housing & Urban Dev., 436 F. 2d 809, 818 (CA3). The dispute tendered by this complaint is presented in an adversary context. Flast v. Cohen, 392 U. S. 83, 101. Injury is alleged with particularity, so there is not present the abstract question raising problems under Art. Ill of the Constitution. The person on the landlord’s blacklist is not the only victim of discriminatory housing practices; it is, as Senator Javits said in supporting the bill, “the whole community,” 114 Cong. Rec. 2706, and as Senator Mondale who drafted § 810 (a) said, the reach of the proposed law was to replace the ghettos “by truly integrated and balanced living patterns.” Id., at 3422. We can give vitality to § 810 (a) only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute. We reverse and remand the case to the District Court, leaving untouched all other questions, including the suggestion that the case against Metropolitan Life Insurance Co. has become moot. Reversed and remanded. Section 810 (a) of the Act provides in relevant part: “Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter 'person aggrieved’) may file a complaint with the Secretary. Complaints shall be in writing and shall contain such information and be in such form as the Secretary requires. Upon receipt of such a complaint the Secretary shall furnish a copy of the same to' the person or persons who allegedly committed or are about to commit the alleged discriminatory housing practice. Within thirty days after receiving a complaint, or within thirty days after the expiration of any period of reference under subsection (c), the Secretary shall investigate the complaint and give notice in writing to the person aggrieved whether he intends to resolve it. If the Secretary decides to resolve the complaint, he shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion.” The owner at the time the suit was started was Metropolitan Life Ins. Co. After the suit was commenced, Parkmerced Corp. acquired the apartment complex from Metropolitan, and it was joined as a defendant. Section 810(c) provides: “Wherever a State or local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title, the Secretary shall notify the appropriate State' or local agency of any complaint filed under this title which appears to constitute a violation of such State or local fair housing law, and the Secretary shall 'take no further action with respect to such complaint if the appropriate State or local law enforcement official has, within thirty days from the date the alleged offense has been brought to his attention, commenced proceedings in the matter, or, having done so, carries forward such proceedings with reasonable promptness. In no event shall the Secretary take further action unless he certifies that in his judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.” Section 810 (d) provides in relevant part: “If within thirty days after a complaint is filed with the Secretary or within thirty days after expiration of any period of reference under subsection (c), the Secretary has been unable to obtain voluntary compliance with this title, the person aggrieved may, within thirty days thereafter, commence a civil action in any appropriate United States district court, against the respondent named in the complaint, to enforce the rights granted or protected by this title, insofar as such rights relate to the subject of the complaint.” Less than 1% of the tenants in this apartment complex are black. Note 1, supra. Note 4, supra. We find it unnecessary to reach the question of standing to sue under 42 U. S. C. § 1982 which is the basis of the third cause of action alleged in the petition but based on the same allegations as those made under the Civil Rights Act of 1968. The Dirksen substitute, 114 Cong. Rec. 4570-4573 retained the present language of § 810 (a) which Senator Mondale had previously introduced, id., at 2270, and it was in the bill passed by the Senate, id., at 5992, which the House subsequently passed, id., at 9621. The “aggrieved person” provision that was in Senator Mondale’s bill and carried into the Dirksen bill can be found id., at 2271 (§ 11 (a) of the Mondale bill). See Hearings before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency on S. 1358, S. 2114, and S. 2280, 90th Cong., 1st Sess. (1967).

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Kathryn J. SHANKLES, et al., Plaintiff, Appellee, v. COSTA ARMATORI, S.P.A., et al., Defendants, Appellees. Isolina Vazquez Gaston, Plaintiff, Appellant. No. 83-1078. United States Court of Appeals, First Circuit. Argued Sept. 13, 1983. Decided Nov. 23, 1983. Harry A. Ezratty, San Juan, P.R., for plaintiff, appellant. Roberto Moreno, Old San Juan, P.R., with whom Jimenez & Fuste, San Juan, P.R., was on brief, for Costa Armatori, S.P.A., et al. Before CAMPBELL, Chief Judge, ALD-RICH and COWEN , Senior Circuit Judges. Of the Federal Circuit, sitting by designation. COWEN, Senior Circuit Judge. Appellant, Isolina Vazquez-Gaston, appeals from an order of the United States District Court for the District of Puerto Rico (Jaime Pieras, Jr., District Judge) granting the motion for summary judgment of defendant-appellee, Costa Armatori, S.P.A. (Costa, defendant, appellee). She instituted this action against Costa for losses incurred and personal injuries sustained as a result of a fire aboard a ship chartered by Costa and on which she was a passenger. She sought recovery of $65,000, the estimated value of personal property lost in the fire, and $100,000 for physical pain, discomfort, and mental anguish allegedly caused by the fire. At issue in this appeal is whether the district court correctly held that appellant’s action was time-barred due to her failure to comply with the notice and filing provisions of her ticket/contract of passage. Appellant urges several reasons why this court should overturn the district court’s ruling. Because we do not find appellant’s arguments convincing, we affirm the judgment of the district court. I. THE FACTS AND PRIOR PROCEEDINGS The district court summarized the main facts of this case in its opinion as follows: On March 30, 1979, the Italian cruise ship “ANGELINA LAURO” was engulfed by a fire while in port at Charlotte Amalie harbor in St. Thomas, U.S. Virgin Islands. The fire initially broke out in the ship’s crew galley and spread throughout the vessel destroying or otherwise rendering useless the inside structure. With the exception of two minor injuries, no human casualties resulted from the fire, however, most of the personal property owned by passengers and crew were either lost, irreparably damaged by fire or were later subjected to vandalism and looting. Both plaintiffs herein were passengers on the ANGELINA LAURO and for this ill-fated trip had purchased passage tickets from Costa Ar-matori S.P.A. [Costa] * * * Plaintiff brought a complaint against Costa and its underwriters on March 28, 1980, almost a year after the casualty. In this complaint she claimed loss of personal property found aboard and damages predicated on physical and mental duress suffered as a result of the fire. Civil No. 80-0693, at 1, 2 (footnotes omitted). Defendant’s successful motion for summary judgment was based on Article 30 of the ticket/contract, which required that: (1) For property losses, notice of the claim be filed with the company within 10 days of the loss and suit be commenced not later than 6 months therefrom. (2) For personal injuries, notice of the claim be filed within 6 months and suit be commenced within 1 year. Attached to Costa’s motion for summary judgment was an affidavit which stated in substance that the appellant’s claim for loss of personal property was not submitted until after Costa wrote her on April 6, 1979, but she dated it March 31, 1979; that her suit for the value of the personal property was not filed within the 6-month time limitation provided in Article 30, and that she gave Costa no notice of her claim for personal injuries until the suit was filed, more than 6 months after the claimed injury. The affidavit was not controverted by appellant. To the contrary, her opposition to the motion for summary judgment stated that the facts stated in Costa’s motion for summary judgment were substantially correct and could be accepted by the court. On the basis of Costa’s affidavit, a supporting memorandum, and the admissions by appellant, the district court found that appellant did not comply with either the notice of loss or the commencement of suit provisions of the ticket with regard to the claimed property losses, and that although the personal injury action was commenced 2 days before the end of the contractual 1-year period, no notice of that claim (required by the ticket to be given within 6 months) had been given to Costa. Thus, the district court ruled that Costa was entitled to summary judgment as a matter of law. II. ANALYSIS A. The Reasonable Notice Issue In seeking reversal of the district court’s judgment, appellant has advanced several arguments. With one exception, we find that they deserve only brief discussion. The exception is the appellant’s contention that the ticket/contract did not meet the standard of “reasonable communicativeness” first espoused in Lipton v. National Hellenic American Lines, 294 F.Supp. 308 (E.D.N.Y.1968). Beginning almost a century ago with the case of The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), courts have struggled to divine standards by which to determine whether steamship passengers are to be held bound by “boilerplate” conditions located in the fine print of adhesion contracts of passage. Although some discernible standards have begun to emerge in the past two decades, this is still largely a case-by-case determination. Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger in another case. The basic inquiry is whether, and to what extent, a passenger, who in almost all cases does not actually bargain for a particular term or condition of a contract of passage, but who nevertheless accepts or signs the ticket before embarkation, is bound by the fine print of the ticket. Recent cases reflect that courts examine the entire ticket to answer the question: Does the contract reasonably communicate to the passenger the existence therein of important terms and conditions which affect legal rights? DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981); Silvestri v. Italia Societa Per Azione di Navigazione, 388 F.2d 11 (2d Cir.1968); McQuillan v. “Italia” Societa Per Azione di Navigazione, 386 F.Supp. 462 (S.D.N.Y.), aff’d 516 F.2d 896 (2d Cir.1975), and Lipton v. National Hellenic American Lines, supra. In Silvestri, Judge Friendly phrased the test in terms of whether the company has “done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights.” 388 F.2d at 17. 1. Physical Characteristics of the Ticket/Contract The test which they have applied has led courts to the tedious and detailed examination of ticket coupons, booklets of conditions, and surrounding documentation on a ease-by-case basis. Features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question, are all called into question by reviewing courts in their assessment of a ticket’s “reasonable communicativeness.” See DeNicola, supra; Miller v. Lykes Brothers Steamship Co., 467 F.2d 464 (5th Cir. 1972); Silvestri, supra; Raskin v. Compania de Vapores Realma, S.P., 521 F.Supp. 337 (S.D.N.Y.1981); McQuillan, supra, and Lipton, supra. The Costa ticket purchased by appellant is contained in a %lh" X Ph!' booklet, bound on the left edge, and identified on the cover as “Passage Ticket,” in regular Roman type, under the Costa logo, both in Italian and in English. Inside the booklet are ten pages of terms and conditions set out in small but legible type in two columns — Italian on the left, English on the right. In bold print on the top of the first page (but not on the cover) appears the following legend: “Terms and Conditions of Contract of Passage.” Immediately before the listing of the terms and conditions, in regular Roman print, is a statement that the terms and conditions thereafter are known to and agreed to be complied with by the passenger “owing to the mere fact of having booked and/or purchased the passage ticket.” Thereafter, there are 35 terms and conditions, each identified by a boldfaced caption. Article 30, which limits and qualifies passengers’ ability to bring tort actions, is on page 10 (of 10 pages) of the terms and conditions. At the bottom of that 10th page, the following legend appears in bold print (all grammatical and punctuation errors in original): THE HOLDER OF THIS PASSAGE TICKET, DO HEREBY DECLARE TO THE EFFECTS AND UNDER PROVISIONS OF ARTS. 1341 and 1342 OF THE ITALIAN CIVIL CODE IN FORCE, THAT HE IS AWARE AND ADHERES TO ALL CONDITIONS AND CLAUSES SET FORTH IN THIS PASSAGE CONTRACT AND THAT HE SPECIFICALLY APPROVES CLAUSES Nos. 1, 2, 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, and 35. Next appears a foldout page consisting of a passenger declaration form to be filled out and signed by the passenger. Near the end of the booklet, is the coupon portion of the ticket, which contains blanks for relevant information such as the passenger’s name, schedule, berth, and fare. In the upper left hand corner, in regular Roman type, is the following legend: By accepting or using this ticket the passenger agrees to the terms and conditions appearing on pages 2/10. If the only consideration in determining whether the applicant had reasonable notice of Article 30 of the ticket/contract was the physical characteristics of the ticket, this would be a close case. The facts respecting the form of the ticket in this case seem to fall squarely between those where notice is virtually nonexistent (Silvestri, supra, and Raskin, supra) and those where the ticket clearly and conspicuously alerts the reader to the presence of important terms and conditions (McQuillan, supra, and Lipton, supra). Here, there is no facial warning on the cover of the booklet, nor is there any language such as “Notice” or “Warning” to explicitly call attention to the terms and conditions of the ticket/contract. The relevant contractual condition limiting the passenger’s ability to maintain a tort action against the company is # 30 of 35 and is on the last of ten pages of terms and conditions. The ticket does, however, exhibit some efforts to alert passengers of the presence of terms and conditions: the boldfaced inscription at the foot of the terms and conditions, along with a reference set in regular type on the coupon itself to the preceding pages of terms and conditions. The district judge found that although the terms and conditions of the contract were set out in fine print, they were not unduly burdensome to read or understand. Also, he stated that these conditions preceded the actual ticket coupon and he concluded that the conditions “must be inevitably read or in the very least, the passenger is made aware of their presence or importance before getting to the ticket coupon itself.” 2. Other Circumstances Although we recognize the utility of comparing examinations by different courts of various tickets, we are also mindful of Judge Friendly’s admonition in Siivestri: To be sure, it can be said that all this is legalism, since Silvestri should have known the Italian Line had not gone to the trouble of printing the Terms and Conditions for the fun of it and would not have read them no matter what was said; and we confess some doubt how far the intensity of ticket reading by steamship passengers correlates with the strength of the invitation to indulge in it. * * * [388 F.2d at 18] Aside from a realistic and somewhat humorous insight into the real world of consumer decision making, this dictum points up a very important factor that has been, at least implicitly, a second prong of the “reasonable communicativeness” standard. That is, that the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract may be of equal importance as the prominence of warnings and clarity of conditions in deciding whether a provision should be held to bind a particular passenger. Although a passenger may almost never read all of the fine print on the ticket upon purchase, or as pleasure reading in the berth the first night at sea, the same passenger might very well be expected to consult the multifarious terms and conditions of the ticket/contract in the event of an accident resulting in a loss or injury. Thus, we think that the question of whether the passenger is bound by the ticket provisions should also take into account the circumstances of the passenger’s possession of and familiarity with the ticket. Consideration of circumstances beyond the ticket/contract itself has been apparent in some of the cases cited above. In Lipton, supra, noting the fact that the passenger had retained the ticket at all relevant times, the court stated: In view of the function of the clause, the type-size in which it is printed is not the significant matter; there is both ample time and a powerful incentive to study the passage contract ticket promptly after a loss has occurred * * *. [294 F.Supp. at 311] In DeNicoIa, the court emphasized the fact that the passenger had retained possession of the ticket during her trip and for 4 years thereafter. In addition, the company advised the passenger’s attorney of the company’s intended reliance on the contractual limitation period in a letter sent just 2 weeks after the accident. 642 F.2d at 11. It would appear then, that the proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake. It is the surrounding circumstances that lead us to the conclusion here that the district court correctly applied the contractual limitation provisions of Article 30. These circumstances are as follows: (a). It is undisputed that appellant had possession of the passenger ticket before embarking on the cruise, and that she had the ticket after the fire. (b). In addition to the ticket, Costa distributed to the passengers, prior to embarkation, a booklet in clearly legible print which, under the title “Baggage Insurance” contained the following statement: “We recommend insuring your baggage and personal effects, since the liability of the carrier is strictly limited by the terms of the passage contract.” (c). When she disembarked at the port of San Juan on March 31, 1979, the day following the fire, appellant was handed a form on which she was requested to list articles lost on the Angelina Lauro. As the district court found, the purpose of this form was to give passengers the opportunity to establish their claims and to eventually settle them. However, appellant did not submit the form at that time, nor did she take any action to give notice of her claim until after April 6, 1979, when Costa wrote her reminding her that she had not submitted her list of lost articles. Enclosed in Costa’s letter was another form which she was requested to complete and submit at her earliest convenience. She filled out that form, dated it March 31, 1979, and mailed it. The district court found that it was not submitted by appellant, although antedated by her, until after April 6, 1979, or later than the 10-day period specified in the ticket for submitting claims for loss of personal property. (d). Promptly after she received Costa’s letter of April 6, 1979, there existed a strong incentive for the appellant to review and study her ticket contract to determine what steps she should take on her claim for personal injuries, or to consult a lawyer for that purpose. However, it is established that Costa had no notice of her claim for personal injuries until her suit was filed on March 28, 1980. The 6-month period prescribed for giving notice of her claim for personal injuries expired September 30, 1979. Before ending the discussion of this issue, we take cognizance of two recent decisions which reached a contrary result. However, we think that both are factually distinguishable. The first case is Cada v. Costa Lines, Inc., 547 F.Supp. 85 (N.D.Ill.1982), which is relied upon by appellant. It is a class action which arose from the same fire and involved a ticket/contract identical to the one before us. The district court denied Costa’s motion for summary judgment, holding that a factual issue existed as to the reasonable communicativeness of the warnings on the ticket. The major factual difference is that in Cada, the disputed clause in the ticket/contract limited to $150 the carrier’s liability for loss of or damage to baggage. The district court there noted that where contractual limitations are at issue, a passenger “may have considerably more time to apprise himself of the time limitation provision than to protect himself against a limitation of liability.” The case illustrates the logic of a rule requiring consideration of surrounding circumstances in addition to the provisions of the ticket. After a disaster such as the fire on the Angelina Lauro, it would seem entirely natural that any passenger suffering a loss or damage would consult the ticket and its accompanying terms and conditions. Upon doing so, the plaintiffs in Cada would discover that they were out of luck because of the limitation of liability. However, if after appellant had returned home and received Costa’s letter of April 6, 1979, she had promptly examined her ticket/con tract or had consulted an attorney, she would have learned that she had ample time to file suit for the loss of her personal property and to give notice of her claimed personal injuries. ! The second case is Barbachym v. Costa Lines, Inc., 713 F.2d 216 (6th Cir.1983). There the plaintiff was traveling as a part of a group tour and pursuant to a different version of the Costa Lines ticket than is in evidence in the instant case. Prior to boarding, the plaintiff was given a travel folder entitled “Group Boarding Pass.” The following was written on the pass: “Conditions of Transportation as per Ticket No. - Held by Group Leader.” Folded and stapled to the travel folder was an 8V2" X 11" document entitled “Terms and Conditions of Contract of Passage and Baggage.” The plaintiff was never informed of the importance of the document and was never told to read it or to sign the ticket. In addition to the vague and confusing statements, the court concluded that even if the plaintiff had been able to deduce from the language on the pass that there might be additional terms and conditions govern-, ing the trip, he would naturally assume that only the group leader had access to any material containing such terms. Accordingly, the Sixth Circuit held that Article 30 of the terms and conditions, which required the passenger to file suit for personal injuries within 1 year, did not provide reasonable notice and that plaintiffs untimely suit was not barred by Article 30. The “reasonableness” of notice to passengers is a question of law to be determined by the court. DeNicola, supra, 642 F.2d at 11; Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir.1979). In the light of the undisputed facts before the district court, we conclude that the appellant had reasonable notice of the contractual conditions in issue in this case and that the district court properly granted summary judgment. B. The Excusable Delay Issue In her appeal, appellant argues, as she did in the district court, that her failure to give Costa notice of her claim for personal injuries within the specified period of 6 months should be excused under the provisions of 46 U.S.C. § 183b. She asserts that since Costa was aware of her injuries and was not prejudiced by her failure to give notice within the 6-month period, she should be allowed to proceed with her claim. With respect to the ticket/contract provision requiring notice of injuries to be given within 6 months, section 183b provides in pertinent part as follows: (b) Claims not barred for failure to give notice Failure to give such notice, where lawfully prescribed in such contract, shall not bar any such claim— (1) If the owner or master of the vessel or his agent had knowledge of the injury, damage or loss and the court determines that the owner has not been prejudiced by the failure to give such notice; nor (2) If the court excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor (3) Unless objection to such failure is raised by the owner. Clearly, appellant has failed to meet the requirements of this statute. As previously stated, she did not controvert the affidavit accompanying Costa’s motion for summary judgment, which stated that Costa had never received notice of her claim for personal injuries. The fire was investigated by the United States Coast Guard and by the National Transportation Safety Board. Their reports stated that only two persons had sustained minor injuries; appellant was not one of them. Additionally, the district court found that appellant’s failure to give notice within the prescribed period “effectively precluded defendant from investigating the claim or preparing for its defense.” Appellant has not demonstrated that this finding was clearly erroneous and we hold that her failure to comply with the notice-of-claim provision of Article 30 cannot now be excused. C. The Class Action Issue Appellant also contends that the existence of the class action in the District Court for the Northern District of Illinois (Cada, supra), which involved the same ship fire, tolled the time limitation provision of the contract with respect to her claim for loss of property and required denial of the motion for summary judgment. Relying on American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) and Escott v. Barchris Constr. Corp., 340 F.2d 731 (2d Cir.1965), she maintains that if she had intervened in the class action in Illinois, more than 6 months after her cause of action in the district court in Puerto Rico arose, her claim would not be barred by limitations. We reject this contention for several reasons. Although she was not served with notice of the class action, she was aware of that suit when she filed her opposition to the motion for summary judgment on June 15, 1982, and interposed the class action as a defense to the motion. However, she made no effort, to intervene in the Cada case at that time. Further, she did not advise the district court that she proposed to join in that action, and her brief in this appeal contains no statement of her intention to do so. In American Pipe and Escott, the parties asserting a suspension of the statute of limitations filed motions to intervene in the class actions involved in those cases. Appellant has not shown that the class action has any bearing on her private suit here. As already indicated, the issue in Cada is the validity of a provision limiting to $150 Costa’s liability for loss of and damage to baggage. Here her claim for loss of personal property is much broader. It includes the estimated value of 10 pieces of jewelry and about $500 in money which, according to appellant’s deposition, were in the ship’s safety deposit box and were there destroyed when the fire occurred. She concedes that the class action has no relevance to her suit for personal injuries. For these reasons, we think that the rule of American Pipe and Escott should not be applied in this case, and that the pendency of the class action does not excuse her untimely filing of her suit for loss of personal property. D. Issues Not Raised Below In her appeal, appellant makes the following additional contentions which were not raised in the district court: 1. She looks to Costa’s letter of April 6, 1979, in which she was requested to submit her notice of property losses, and asserts that Costa was thereby estopped from raising the contractual time limitation as a defense to her action, and 2. She argues that general maritime law contains no statute of limitations and that her suit should be considered timely under the doctrine of laches. Since these contentions were not presented to the district court, appellant is not entitled to have them considered for the first time on this appeal. We do not find that this is one of those “exceptional” or “horrendous” cases where the court will reverse the judgment of the district court on grounds that were not presented to that court. Newark Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir.1976); Dobb v. Baker, 505 F.2d 1041 (1st Cir.1974). Finally, appellant urges reversal on the ground that whether she submitted her claim for the loss of personal property withf in the required 10-day period is a question of fact which should have been submitted to a jury for determination. Although the district court found that she did not comply with the notice requirement, the question of when the notice was submitted is immaterial. It is undisputed that her suit for the property loss was filed after the expiration of the 6-month period required by Article 30 of the contract. ,¡ Affirmed. . Kathryn J. Shankles, originally a co-plaintiff in the district court case, entered into a stipulation of settlement which was approved by the court'and her suit was dismissed. . As the district court noted, at least two other courts have dismissed claims arising from the Angelina Lauro fire. The suits were filed after the expiration of the contractual limitations period. Aetna Casualty Co. v. Costa Armatori, S.P.A. 1982 A.M.C. 2090 (Cir.Ct.N.Y.C.1980); Morack v. Costa Armatori, S.P.A., No. 80-0652 (E.D.N.Y.1981), which apparently was not published. . Our statement that the case is distinguishable on its facts is not to be taken as an implied agreement with its correctness, a question we do not reach.

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?

GEORG JENSEN HANDMADE SILVER, Inc., v. GEORG JENSENS SØLVSMEDIE A/S et al. No. 6392. United States Court of Appeals for the District of Columbia. Argued April 9, 1935. Decided June 24, 1935. Rehearing Denied July 25, 1935. Axel V. Beeken, of Washington, D. C., for appellant. Walter C. Clephane, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. PER CURIAM. Appeal from a decree in the Supreme Court of the District quashing service of a subpcena and the .return thereon, and dismissing the bill for want of jurisdiction. A brief statement showing the relation'ship of the parties will be helpful. The defendant Georg Jensens S{!>lvsmedie A/S (which we shall refer to as the Silver-smithy) is a Danish corporation engaged in Denmark in the manufacture of gold and silverware and jewelry. The defendant Pedersen is a Danish subject, a resident of Denmark, and an officer of the Silver-smithy. The defendant Georg Jensen & Wendel A/S (the Jensen & Wendel corporation) is also a Danish corporation located in that country and engaged in the sale of the products manufactured by the Silversmithy. The defendant Miller is also a subject and resident of Denmark and an officer of the Jensen & Wendel corporation. In August, 1923, a contract (an exhibit to plaintiff’s bill) was entered into between the Silversmithy, Pedersen, Miller, Georg Jensen (designer of Silversmithy’s products), and Frederik Lunning. Lunning thereby secured for a definite term of years for himself and his assigns the exclusive right to sell in the United States articles manufactured by the Silversmithy. from designs made by the artist, Jensen. Lunning was to make a specified minimum volume of sales yearly, and he was to be allowed the use of all patents, trade-names, and trade-marks in connection with the business. As protection to Lunning the other parties undertook for a period of twenty years to refrain from selling the same wares in the United States, Lunning’s exclusive territory. Lunning was to sell only the products of the Silversmithy. In January, 1925, and April, 1926, supplementary agreements were entered into whereby the 20-year term was extended and Lunning’s obligation was modified as to the volume of sales required of him. The 1926 supplementary contract also modified Lunning’s prior obligation to purchase solely from the Silversmithy. The Jensen & Wendel corporation was not a party to any of these contracts. In June, 1928, Lunning assigned his entire business in the United States, including his contract rights, to Georg Jensen Handmade Silver, Inc., a New York corporation, and plaintiff below (appellant here), which is engaged in the sale in the United States of the Silversmithy’s products. Thereafter, in 1934, the present suit was initiated, the object of which, broadly-stated, is to establish the validity of the contracts above referred to as well as the assignment by Lunning to appellant, and to secure equitable relief against their alleged violation. Since all the defendants were, as above stated, subjects and residents of Denmark and not doing business within the District, jurisdiction was sought to be obtained by, service of subpcena upon Herbert R. Kerslake (a resident of the District of Columbia), who had been designated in three trade-mark registrations as a special process agent of the Silversmithy and the Jensen & Wendel corporation under the provisions of section 3 of the Trade-Mark Act of 1905 (15 U. S. C. § 83, 15 USCA § 83). That section provides that every applicant for the registration of a trade-mark, or its renewal, who is not domiciled within the United States, “'shall, before the issuance of the certificate of registration * * * designate, by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings affecting the right of ownership of the trade-mark of zvhich such applicant may claim to be the ozrner, brought under the provisions of this act or under other laws of the United States, may be served, with the same force and effect as if served upon the applicant or registrant in person.” (Italics ours.) The court below, after stating that neither of the defendants, Pedersen and Miller, was designated as process agent under the Trade-Mark Act, and that while the bill claims that the corporate defendants represent the individual defendants, being as the bill expresses it each an “alter ego” of the individual defendants, held that a suit against an agent is- not a suit against , the principal; that the service provided by statute brings before the court the person who appoints the process agent, and not any third person whose agent the appointing party may be; that an agent cannot be sued upon a cause of action arising from the acts of the principal; and that it is not necessary to determine whether the “proceedings” referred to in the Trade-Mark Act were limited to proceedings in the Patent Office, because the court was without jurisdiction in the case even if the provisions of the statute were not so limited; that the agency of Kerslake is limited in its scope to proceedings “affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner”; that the only matters in the bill which could be considered as coming within this provision is that part of the bill which seeks to cancel the .Silversmithy Registration No. 148928, “and the bill on its face shows that the trade-mark is no longer in force”; and that under this pretext the defendants cannot be brought before the court for purposes not within the statute. Section 3 of the Trade-Mark Act 1905 is of limited application. Maya Corporation v. Smith (D. C. Del.) 32 F.(2d) 350; Erickson v. Macy, 231 N. Y. 86, 90, 131 N. E. 744, 16 A. L. R. 1322. The provision requiring a nonresident applicant to designate some person residing within the United States on whom process may be served is restricted to “proceedings affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner.” In the present case an examination of the bill and exhibits fails to disclose that any one of the defendants claims to be the owner of any registered mark claimed by appellant, or which so nearly resembles such mark as to be likely to be mistaken therefor by the public. Section 7, Trade-Mark Act 1905, 15 U. S. C. § 87, 15 USCA § 87. There is, therefore, no basis for the contention that the defendants had submitted to the jurisdiction of the court below. Appellant further contends that the attempted special appearance was in fact a general appearance by which the defendants submitted themselves to the jurisdictions of the court. There is no merit in this contention. In Jones v. Gould (C. C. A. 6) 149 F. 153, 156, the claim was that the defendants invoked the exercise of jurisdiction upon the merits by requiring the court to pass upon the facts of the case in order to determine the nature of the relief prayed. The court answered the contention as follows: “But we think this is a forced construction of the language employed. It was indeed necessary for the court to look into the bill and ascertain from its allegations and the prayer for relief whether the nature of the case was such as to authorize it under the provisions of section 738, Rev. St., and of section 8, Act March 3, 1875, c. 137, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513 [see 28 USCA § 118]), to obtain jurisdiction of the defendants by publication of notice or service of process outside of its territory, for service could not be had within it. * * * The defendants, therefore, properly referred to the nature of the relief sought by the bill as a reason for denying the jurisdiction of the court over their persons, for as they were neither citizens of the state nor residents therein, personal service could not be had, and the question for the court would then be whether the nature of the case was such that the substituted service- authorized by the statute could be resorted to.” In Gage v. Riverside Trust Co. (C. C.)' 156 F. 1002, 1003, the court said: “There is no question but that, on a motion ■to vacate an -order for ■ substituted service .made under said section [section 8, act of March' 3, 1875, IS Stat. 472], the court must examine the bill in order to ascertain whether or not the case is within the statute. ' * * * Facts, which would otherwise be heard only on the merits, must necessarily ■ be considered in determining the legality of the service.” The decree was right, and is affirmed. Affirmed.

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

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 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?

ERIE R. CO. v. KAZANECKI et al. (Circuit Court of Appeals, Third Circuit. December 29, 1925. Rehearing Denied February 2, 1926.) No. 3342. 1. Trial- <^=>260(1) — Refusal of charge, which in substance was already given, not error. Refusal of trial court to give requested charge, which was qualified and in substance already charged, held not error. 2. Railroads <§=3358(2) — Care required as to children playing in yards with company’s acquiescence. . Railroad company has right to exclusive use of its tracks; yet, when children of community have for many years constantly used railroad yard as playground with company’s knowledge and acquiescence, there arises duty to exercise care towards them as persons whose presence is permitted, and therefore to be anticipated. 3. Railroads @=398(1) — Permissive use of yard as playground may be proved by witness observing children playing. , Permissive use of railroad yard by children as playground may be proved by testimony that witness had played there as a child, and for 20 years had observed children doing so. 4. Railroads @=400(2) — Permissive use of yard by children as playground held for jury. In action for injury to child playing on track and struck by car, evidence held sufficient to submit issue of permissive use of railroad yard by children as playground to jury. 5. Railroads @=398(1) — Finding of negligence as to child permissibly on track sustained. Evidence held sufficient to submit case and sustain verdict, based on railroad company’s lack of care and caution to a child permissibly on its track. In Error to the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge. Suit by John Kazaneeki, Jr., a minor, by his parent and next friend, John Kazaneeki, Sr., and another against the Erie Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Thomas Patterson, J. M. Graham, and Patterson, Crawford, Miller & Arensberg, all of Pittsburgh, Pa., for plaintiff in error. Ruff alo, Drake & Wall,, of Cleveland, Ohio, and Robbin B. Wolf and MeCreery & Woli, all of Pittsburgh, Pa., for defendants in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. The child in this ease went upon a track of the defendant railroad company and was injured. After suit he had the judgment to which this writ of error is directed. Except the refusal of the trial court to charge one of its points (which was qualified and in substance already charged and therefore is without error), the defendant (below) raises on this review but two questions: First, whether there was sufficient evidence of permissive use to take the case out of the operation of the general rule of law that a trespasser, though an infant, cannot recover for an injury sustained on the land of another, except when the act is wanton or willful; and second, if the evidence of permissive use was sufficient, whether there was evidence of negligence on the part of the defendant, that is, evidence of a violation of its duty to give warning of danger to a child permissibly on its tracks. The central question in this ease therefore is one of permissive use. From the thorough discussion of the law of that subject, based upon an extended citation of authorities, we gather that the defendant does not question the law but challenges the sufficiency of the evidence in this ease to invoke its operation. In pressing this line of attack the defendant made careful comparisons of the facts of this ease with the facts of other cases where courts have found, and have not found, the evidence sufficient to submit to juries and to sustain verdicts. While such comparisons may be helpful, the instant ease cannot be decided by its resemblance or lack of resemblance to other eases on the facts but must be decided on the law as applied to its own facts. One of the leading eases in Pennsylvania on the law of permissive use is O’Leary v. P. & L. E. R. R. Co., 248 Pa. 4, 93 A. 771, followed by this court in D., L. & W. R. R. Co. v. Baltrushitis, 247 F. 474, 159 C. C. A. 528, and based on the earlier cases of Kay v. P. R. R. Co., 65 Pa. 269, 3 Am. Rep. 628; Henderson v. Continental Refining Co., 219 Pa. 384, 68 A. 968, 123 Am. St. Rep. 668; Millum v. L. & W. Coal Co., 225 Pa. 214, 73 A. 1106; Steele v. L. S. & M. S. R. R. Co., 238 Pa. 295, 86 A. 201. While the learned trial court entertained a doubt as to the decision-of that case, it followed it, as we shall do, assuming'that it correctly states the law of the Commonwealth of Pennsylvania. The substance of that decision is that a railroad company has the right to the exclusive use of its tracks, and that any stranger, an infant or an adult, going upon them is a trespasser; yet when the children of a community have for many years constantly used a railroad yard as a' playground, with the company’s knowledge and acquiescence, the rights and duties of the parties change; children so using the yards and tracks are not trespassers, and there arises in the railroad company the duty to exercise care towards them as persons whose presence is permitted and therefore to be anticipated. Mr. Justice Stewart, in Francis v. Railroad Co., 247 Pa. 425, 93 A. 490, tersely made the distinction on which turns the instant ease by stating that: “The purpose [of the testimony as to permissive use], however, was not to show any right in the boy, but a duty resting on the defendant, because of its acquiescence in a use by the public of a path upon its track, to take notice of conditions, it had suffered to arise, and exercise that degree of care which the law requires when such conditions exist.” Whether in a given case the conditions existed and whether, accordingly, the duty to exercise such care arose, the learned justice, continuing, said: “Where a higher degree of care is demanded under some circumstances than others, and where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligent, and whether it has been proved.” With these brief observations on the law we come to the facts and, taking up the first question, inquire whether there was sufficient evidence of permissive use to justify the submission of the ease to the jury. From the testimony — limited in amount, but clear, direet and positive in character — the jury, if they believed the witnesses, could have found these facts: The defendant owns and controls in Oil City, Pennsylvania, a freight yard of considerable size. Track No. 7 is parallel to and contiguous with Stevens Street. No fence or other thing marks the line between the street property and the railroad property. There is nothing but the track itself to indicate where the street ends and the railroad yard begins. To a casual observer it would appear that the track is on the street. The plaintiff resides in a house on the side of Stevens Street opposite that of the track. The neighborhood is large and contains many children who continually play upon the track. One witness testified that, when a child, he had played in and about the yard and that for twenty years he had observed children doing so. On a ruling that the testimony of use must be restricted to the place of the accident, thereafter this witness and others testified, by reference to a photographic exhibit showing the place of the accident, that children for a long time and as a matter of habit played upon the street and over and upon the track. Permissive use may be proved by testimony of this character. In kind and amount we think it was sufficient to show the defendant’s knowledge of the use to which the children put its property and its acquiescence therein, and sufficient to raise on its part a duty of due care and caution toward those whom it might expect would'be upon its premises. Accordingly, it was enough to submit to the jury on the issue of permissive use. The next question is whether, assuming the fact of permissive use, there was enough evidence on the issue of the defendant’s negligence to warrant submission. As to the care and caution which the railroad company exercised on this occasion, the evidence is negative for the reason that (according to the testimony for both parties) its conduct was negative. The story of the accident is short. The child was on the street playing ball with other children when the defendant shunted or kicked several freight cars upon the track. The ball was thrown in the direction of the track and the child, following the ball, stooped to pick it up when the wheels of one of the cars ran over his arm. Witnesses were asked questions such as these: “Did you see any brakeman or anyone else riding on these cars? Did you see any brakeman or any railroad man standing around there? Did you hear any bell or any whistle sounded on any engine that may have been there? Did you hear any warning of any description before you saw Johnny running for home?” All answers were in the negative. When the defendant came to its case, its evidence as to care and caution on the part of any of its employees was equally negative. No one testified that he saw the child or that a warning of any kind was given. On the record the jury might have found, as evidently they did, that the ears were being shunted back without a warning and without a trainman being on them. The evidence, we- think, was sufficient to submit the case and to sustain the verdict básed on the defendant’s laek of care and caution to a child permissibly on its track. The judgment below 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 "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.

In re The SPECIAL FEBRUARY, 1975 GRAND JURY. In re The SPECIAL APRIL, 1977 GRAND JURY. Appeal of James E. BAGGOT. No. 80-1999. United States Court of Appeals, Seventh Circuit. Argued Feb. 10, 1981. Decided June 25, 1981. Supplemental Opinion Nov. 20, 1981. Samuel J. Betar, David K. Schmitt, Betar & Petit, Chicago, 111., for appellant. Scott R. Lassar, Asst. U. S. Atty., Chicago, 111., for appellee. Before PELL and WOOD,- Circuit Judges, MARKEY, Chief Judge. The Honorable Howard T. Markey, Chief Judge of the United States Court of Customs and Patent Appeals, is sitting by designation. HARLINGTON WOOD, Jr., Circuit Judge. The disclosure of grand jury related materials is the issue. Respondent James E. Baggot became one of the targets of the Special February, 1975 Grand Jury which continued with the Special April, 1977 Grand Jury in an investigation of commodities futures trading on the Chicago Board of Trade. No indictment resulted against Baggot, but in accordance with a plea agreement, Baggot pleaded guilty to a two count information charging him with engaging in rigged commodity trades, misdemeanor violations under the Commodity Exchange Act. Subsequently, the Internal Revenue Service (“IRS”) sought certain evidence generated by the grand jury investigation to assist its determination of Bag-got’s civil tax liability. After two prior unsuccessful attempts to secure the district court’s approval of the request, the United States Attorney on February 27, 1979 filed another motion, based on a letter from the Internal Revenue Service seeking authority to disclose certain materials to IRS “for use preliminarily to or in connection with judicial proceedings relating to the civil tax liability” of Baggot. The motion seeks to take advantage of an exception added in 1977 to the general rule of secrecy required by Rule 6(e)(2) Fed.R.Crim.P. See Pub.L. 95-78, § 2, 91 Stat. 319. That exception, Rule 6(e)(3)(C)(i), permits disclosure of matters occurring before the grand jury with court approval “preliminarily to or in connection with a judicial proceeding.” Background Before examining the specific items sought to be disclosed, some additional background must be explained. In May 1977, two IRS agents called on Baggot at his home, questioned him and then served him with a grand jury subpoena requiring his appearance before the Special April, 1977 Grand Jury on May 4, 1977. In accordance with the subpoena, Baggot appeared at the office of the United States Attorney. Baggot was advised by an Assistant United' States Attorney that if he would tell , the truth he would not have to appear before the grand jury, but instead would be interviewed by the Assistant United States Attorney. Baggot consented and made admissions of wrongdoing to the Assistant United States Attorney. When leaving Baggot was advised “to get a lawyer,” which he did. After the interview, Assistant United States Attorney Lassar, who was present at the interview, prepared a “Memorandum to File” which is one of the items now sought to be disclosed. After Baggot secured counsel the plea negotiations began which led to his misdemeanor guilty plea. As part of those negotiations a statement was prepared by the government which Baggot agreed to read to the grand jury on June 8, 1977. The statement would constitute his only testimony before the grand jury. That statement which was read as agreed is also sought to be disclosed. In addition to those two items, the following specific materials are also sought to be disclosed: a letter to Baggot from Pacific Trading Company showing his net profit for the year 1975; all purchase and sale statements for accounts 21, 22, 4100 and 4101 in the name of James Baggot at Pacific Trading Company for the year 1975; all purchase and sale statements at Central Soya, Inc. for account 509 of James Kerrins, account 608 of Katherine Michalski and account 605 of Guenther Kromminga for the year 1975; transcripts of the grand jury testimony of Robert Meyer, James Kerrins, Katherine Michalski and Guenther Krom-minga; and the IRS Special Agent’s Report on Baggot. Chief Judge Parsons fully considered the matter each time the government sought disclosure under a different theory. He concluded in his final order entered on July 2, 1980, which is the subject of this appeal, that Baggot’s statement which he read to the grand jury and the Lassar “Memorandum to File” were not matters occurring before the grand jury and therefore were not subjéct to Rule 6(e) secrecy limitations. The remaining items sought to be disclosed were found to be classifiable as occurring before the grand jury. Disclosure, however, was denied for those items on the basis that their use was not “preliminarily to or in connection with a judicial proceeding.” Disclosure, nevertheless, was permitted under the court’s “general supervisory powers.” The justification for use of the court’s common law supervisory powers was explained to be to prevent the United States Attorney’s office from becoming a storehouse for documents used before grand juries long since discharged and to put the material to some good use commensurate with a governmental purpose. The trial court further noted that the criminal proceedings were closed and that the material was needed to determine the tax liability of Baggot. Under these circumstances the court held Rule 6(e) was not implicated. The government in this court argues alternative positions to support Judge Parsons’ order. First, it is contended that all of the items, except the testimony of the named witnesses before the grand jury and part of the Special Agent’s Report, are not matters occurring before the grand jury so as to be subject to Rule 6(e). Admittedly certain other parts of the Special Agent’s Report were derived from grand jury material and therefore would be within Rule 6(e). Secondly, it is urged that the testimony of the witnesses and the grand jury derived portions of the Special Agent’s Report, together with any of the other items determined to be, but not conceded to be, within Rule 6(e), should be authorized to be disclosed as preliminary to a judicial proceeding under the exception to Rule 6(e). That judicial proceeding is said to be the usual judicial proceeding that might be initiated by Baggot in the Tax Court if he chose not to pay any deficiency assessment, or in the district court if he chose to pay the deficiency assessment and then seek its return. Third, the U. S. Attorney supports the use of general supervisory power by Judge Parsons in authorizing disclosure. It is argued that since the criminal proceedings are closed there is at best a minimal need for further grand jury secrecy. Baggot argues that everything sought to be disclosed is a matter occurring before the grand jury, governed by Rule 6(e). He further argues that the “preliminarily to or in connection with a judicial proceeding” exception is not applicable as there is no present judicial proceeding, and whether there may ever be a judicial proceeding in the future depends on whether any deficiency may be assessed, and then whether he decides to pay or contest it. Judge Parsons agreed that the judicial proceeding exception did not apply, labeling the presently intended use by IRS as only administrative. The Trial Court’s Use of Its Supervisory Powers The court in rare situations may have some discretion to slip entirely around Rule 6(e) and permit disclosure, but that discretion in any event is strictly limited. In In re Biaggi, 478 F.2d 489 (2d Cir. 1973), disclosure determined to be in the “public interest” was affirmed, one judge dissenting, despite a finding that the disclosure could not be justified by any Rule 6(e) exception. The court considered it a unique case because both the U. S. Attorney and the witness Biaggi, a candidate at the time for mayor of New York, sought limited release of Biaggi’s testimony because of certain campaign publicity. It was in the public political controversy surrounding Biaggi’s campaign that the majority found the “public interest” disclosure justification. Judge Hays, in dissent, preferred a stricter interpretation of Rule 6(e) to a judge-made exception in the “public interest.” The government also directs our attention to In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.1974). In that proceeding, Judge Sirica authorized the disclosure to the House of Representatives for use in its impeachment investigation of a “Watergate” grand jury report concerning the President. Rule 6(e) was found to be no barrier since few reasons for secrecy remained, the President did not object, and the release and disclosure were mandated by the “ends of justice.” The determination and collection of any tax deficiency Baggot may owe cannot be considered a compelling need in “a matter of the most critical moment to the nation.” 370 F.Supp. at 1229-30. The government also relies on In re Bullock, 103 F.Supp. 639 (D.D.C.1952). That court permitted disclosure of the grand jury testimony of a witness policeman to the Police Board of Commissioners for the purpose of determining whether that officer had been guilty of a dereliction of duty. The testimony of other witnesses, however, was not permitted to be disclosed. The court avoided a literal interpretation of Rule 6(e) by finding disclosure to be within the court’s discretion if the furtherance of justice so required. We may not always be bound by a strict and literal interpretation of Rule 6(e) in the situation where there is some extraordinary and compelling need for disclosure in the interest of justice, and little traditional need for secrecy remains but as important as taxes are, their determination, assessment and collection does not satisfy that standard. The IRS has other effective statutory means to accomplish its civil purposes which are generally sufficient. It should be remembered that that statutory authority, 26 U.S.C. § 7602, which authorizes the Internal Revenue Service to examine any books or records and to cause persons liable for tax and other payments to appear and give testimony, is to be liberally construed in recognition of the vital public purposes served. United States v. Continental Bank & Trust Co., 503 F.2d 45, 50 (10th Cir. 1974); De Masters v. Arend, 313 F.2d 79, 86-87 (9th Cir.), cert. dismissed, 375 U.S. 936, 84 S.Ct. 341, 11 L.Ed.2d 269 (1963). The government argued to the district court, however, that in this case the Internal Revenue Service was stymied in its efforts to determine Baggot’s additional tax obligations, if any. That may be, but the failure of civil process has not been demonstrated in the record. The issue also has significant impact, the government argues, because of the practical concerns which an adverse ruling would have on IRS’s future cooperation with subsequent grand jury tax investigations if subsequent disclosure for the civil or other IRS purposes is restricted. Our conclusion about the applicability of the Rule 6 exception in this case is a long way from holding that testimony or documents presented to a grand jury are forever foreclosed from future revelation to proper authorities. United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). It is admitted that the government has alternative independent civil means to use for the purpose, but it is argued it will take longer. “It is almost,” the United States Attorney argued, “as though you have two different governments, one working against the other, rather than a single unified government of the United States trying to accomplish collection of taxes and prosecution for those who wilfully violate the tax laws.” That may seem to be the case, but there are other considerations, however, beside taxes. One consideration which remains is the possible impact upon future grand juries, as wholesale subsequent disclosure might discourage free and untrammeled disclosures by persons having information with respect to the commission of crimes. United States v. Rose, 215 F.2d at 628-29. A liberal disclosure policy in tax eases would no doubt facilitate tax collection but it would also create a temptation to abuse the grand jury process. Perhaps few, if any, other countries would restrict the flow of information within the government as we do in various areas, but few other countries are so zealous in protection of the individual rights of its citizens. The government’s practical short cut is viewed approvingly in In re Grand Jury Subpoenas, April, 1978, 581 F.2d 1103, 1110 (4th Cir. 1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979), and in In re December 1974 Term Grand Jury Investigation, 449 F.Supp. 743 (D.Md.1978). But see United States v. Bates, 627 F.2d 349, 351 n.1 (D.C.Cir.1980). The Application of Rule 6(e) The trial judge found the first two items, the statement Baggot read to the grand jury and the Lassar “Memorandum to File,” not to be matters occurring before the grand jury under Rule 6(e), and that therefore those two items were disclosable by the government. The trial court made a distinction between Baggot’s prepared statement which he read to the grand jury and the transcript of the grand jury proceedings which contained the statement as he read it. The latter, under that view, would not be disclosable. The government argues that disclosure is for a legitimate purpose and not an effort by the Internal Revenue Service to determine what transpired before the grand jury. Baggot’s statement, the government explains, was actually prepared outside the grand jury and is nothing more than an acknowledgment of certain facts about the ease. The test, according to the government, is whether the document being sought by the Internal Revenue Service for a legitimate purpose will reveal “what took place before the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d at 54. In that case the Interstate Commerce Commission sought to examine the financial records being held under a federal grand jury subpoena duces tecum. The records belonged to persons subject to regulation by the Interstate Commerce Commission. Permitting that examination was held not to be a “disclosure of matters appearing before the grand jury” because the Interstate Commerce Commission had statutory purposes and was not seeking to learn what use the grand jury had made of the records. Baggot’s statement, however, is no ordinary business document. It is a statement prepared by the government as a part of a plea agreement for the purpose of having it constitute the bulk of Baggot’s testimony when read by him to the grand jury. The statement resulted from an interview with an Assistant United States Attorney when Baggot responded to a grand jury subpoena. Baggot’s statement is too grand jury related to be artificially distinguished from the transcript of its reading to the grand jury. We hold the statement is governed by Rule 6(e). It appears to us that the trial judge may have had a different understanding about the factual background of the Lassar “Memorandum to File.” Chief Judge Parsons, in his opinion, indicates he considered the memorandum to reflect only information which the government had learned through its prior non-grand jury investigation of Mr. Baggot, independent of his grand jury appearance one month later. We understand the memorandum to be the documentation for the government file of the first government interview with Baggot when he appeared and was interviewed in response to the grand jury subpoena. At that interview he was admonished that if he “told the truth” he could avoid his actual grand jury appearance. He chose to avoid the grand jury and made admissions of wrongdoing. Those admissions are memorialized in the “Memorandum to File.” Making notes for the file in these circumstances may be considered a good administrative procedure, but Rule 6(e) is not thereby necessarily avoided. We are not prepared to hold that the memorandum, although not read to the grand jury, is any less grand jury related than the Baggot statement itself. The file memorandum was used to assist the government in preparation of the Baggot statement which was read to the grand jury. We consider the file memorandum also to be governed by Rule 6(e). The Special Agent’s Report is characterized by the government as consisting of the agent’s summary of the case and recommendations, analysis of documents and summaries of witness interviews. Some parts of the report admittedly summarize grand jury testimony and that part is conceded to be governed by Rule 6(e), but not the other contents of the report. Since it appears that the agent’s report was prepared after the grand jury had concluded its investigation and summarizes grand jury testimony, it is difficult to see how the report’s summary, recommendations, and analysis of documents is sufficiently divorced from the grand jury not to be subject to Rule 6(e). We assume the documents which were analyzed were the documents subpoenaed before the grand jury. Included in the report are also witness interviews. If those interviews resulted, as did Baggot’s, from grand jury subpoenas, then we would view them likewise. Our ruling in this case, however, shall not apply to so much of the report, if any, as may be clearly divorced from the grand jury proceedings. Our holding shall be without prejudice to the government to sort out parts of the report not falling within the restricting views expressed in this opinion and upon approval of the district court to disclose limited portions of that report to the Internal Revenue Service for civil purposes. Therefore, with that possible limited exception regarding the agent’s report, we view all the additional materials sought to be disclosed, the business records, letter and witness testimony as also being “matters occurring before the grand jury” and therefore subject to Rule 6(e). Rule 6(e) Exception Rule 6(e) secrecy may be breached when “directed by the court preliminarily to or in connection with a judicial proceeding.” Rule 6(e)(3)(C)(i). The government argues alternatively that the customary civil tax collection procedures which ultimately may result in litigation in the Tax Court or United States District Court satisfy the “preliminarily to or in connection with a judicial proceeding” exception. The district court found those civil procedures in their present status to be only administrative. The option of litigation rests with the taxpayer who may choose to pay any deficiency assessed if one is even assessed. At least at the present time before any deficiency has even been assessed, the disclosure sought clearly cannot be considered as being in connection with an actual judicial proceeding. The only possibility is that disclosure might be considered to be preliminary to a judicial proceeding. We agree with Chief Judge Parsons that the present Internal Revenue Service civil investigation of Baggot’s possible additional tax liabilities is too embryonic, speculative, and uncertain to firmly say that it is “preliminarily to” a judicial proceeding. See In re April 1977 Grand Jury Proceedings, 506 F.Supp. 1174 (E.D.Mich.1981) (and the cases cited therein). It is at best, with no judicial proceeding now pending and with the possibility that none may result only preliminary to and in connection with, not a judicial proceeding, but a type of administrative proceeding or investigation. See In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962), a case decided before the addition of the “specific judicial proceeding” exception to Rule 6(e). The government relies on Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894 (7th Cir. 1973). That case may be distinguished. In that case the Chicago Police Board sought grand jury transcripts of certain policemen’s appearances before the grand jury for use in disciplinary proceedings against those same police officers. The Board was seeking to determine that the officers failed to give testimony before the grand jury on the grounds it might tend to incriminate them. If that privilege had been claimed, it would have been in violation of departmental rules. We concluded that the Board hearing was “preliminary” to judicial review because the statutory scheme contemplated judicial review of the Board’s findings. Charges had been made by the Superintendent of Police and the matter was to be heard before the Board. At that type of proceeding a policeman may appear with counsel, present witnesses and evidence in his own behalf and cross-examine witnesses. A record of the hearing is kept and the matter may be reviewed in the state courts. In the present case we have no comparable situation. Similarly, in Matter of Disclosure of Testimony, 580 F.2d 281 (8th Cir. 1978), limited grand jury disclosure to the Council for Discipline of the Nebraska State Bar Association and the Nebraska Commission on Judicial Qualifications was permitted in a disciplinary investigation of a former prosecutor and possibly a judge allegedly involved in the obstruction of enforcement of the state gambling laws. It was held that proceedings for disciplining lawyers and removal of judges were designed to culminate in a judicial proceeding and therefore were “preliminarily to or in connection with a judicial proceeding.” Obviously, there is some flexibility evident in what may be viewed as qualifying for the exception, but the rule is not so flexible as to cover the present Internal Revenue Service administrative interest in the taxes of Baggot. See In re 1978-1980 Grand Jury Proceedings, 503 F.Supp. 47 (N.D.Ohio, 1980). The Conlisk case, cited by the government, rather than being a signal for liberal disclosure, instead reaffirmed our respect for grand jury secrecy under Rule 6(e). 490 F.2d at 895-96. If Congress had intended that grand jury materials could generally be used for the convenience of the government to facilitate its other legitimate purposes, particularly after the grand jury’s legitimate criminal function had terminated, it could easily have provided for it. As it is, Congress specified only three exceptions, Conlisk, 490 F.2d at 896, none of which helps the government in this case. As the government correctly points out, however, there was no intent discernible in the legislative history to generally preclude the use of legitimate gfrand jury developed evidence for civil law enforcement purposes that is evident from the remarks of Congressman Wiggins of the House Judiciary Committee: There will come a time when a grand jury uncovers violations of civil laws, or state or local laws. It then becomes the duty of the attorney for the government, if he or some other attorney for the government cannot act on that information, to turn it over to the appropriate governmental agency so that such agency can do its duty. However, the attorney for the government may do this only after successfully seeking an order of the court. 123 Cong.Rec. 15196 (1977). What should not be overlooked in those remarks is the “However” segment which conditions disclosure upon the attorney for the government successfully seeking an order of the court. What the Congress then legislated for judicial guidance was not a general grant of broad discretion to permit the courts to authorize disclosure for any good government purpose. Instead, traditional grand jury secrecy was specifically provided subject only to certain limited exceptions in which the court’s discretion might properly be exercised. There may be compelling situations necessitating disclosure to satisfy the “ends of justice,” Douglas Oil Co. v. Petrol Shops Northwest, 441 U.S. 211, 219-20, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979); United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940), but Baggot’s possible tax deficiency although of importance and worthy of civil pursuit, is not of such consequence as to justify the fashioning of a special judicial exception to grand jury secrecy. CONCLUSION In our view all of the items sought to be disclosed are items “occurring before the grand jury,” with the possible exception of limited portions of the agent’s report, and do not qualify at the present stage of Internal Revenue Service administrative proceedings for any exception to Rule 6(e). Reversed and remanded for possible further consideration of such parts of the agent’s report as still may be claimed to be matters not occurring before the grand jury in accordance with the views expressed in this opinion. . Numerous indictments in the Northern District of Illinois resulted against commodity traders charging violations of the Commodity Exchange Act, 7 U.S.C. § 1 et seq., Internal Revenue laws, in addition to conspiracy and mail fraud violations. . 7 U.S.C. § 6c(a)(A). The government claims the purpose of the rigged trades was to evade income taxes. By the scheme, the government explains, Baggot intentionally sustained losses which he deducted in full on his tax returns. However, Baggot recovered part of the loss as a cash kickback which he did not report. He was fined $30,000 and placed on probation for one year. . This civil situation is to be distinguished from disclosure to Internal Revenue agents who are assisting the United States Attorney in the presentation of the criminal case to the grand jury under Fed.R.Crim.P. 6(e)(3)(A)(ii). United States v. Thomas, 593 F.2d 615, 623, modified on rehearing on other grounds, 604 F.2d 450 (5th Cir. 1979) (per curiam). . The letter from the Chief of the Examination Division of IRS referring to copies of certain proceedings in open court in Baggot’s criminal case with which IRS had been supplied, stated in part: * * * * * * The documents do not contain the names or statements of individuals who returned the cash to BAGGOT, nor do they identify the commodity firms which had prepared the records concerning the fraudulent trades of BAGGOT or if there were any other fraudulent losses or unreported income which could be used to determine the correct tax liability of BAGGOT for 1975. Therefore, I am requesting that a Rule 6(E) order for civil purposes be obtained for 1975 due to the following reasons: (1) to obtain the information and documents which would be needed to determine the correct liability of BAGGOT for 1975; (2) the names and statements of the witnesses and the documents prepared by the commodity firms in order to substantiate the civil fraud penalty; (3) if a Rule 6(E) order is not obtained a substantial amount of tax revenue would not be collected; and (4) the statements of the witnesses and the documents would be needed in a judicial proceeding if the taxpayer does not agree to the additional tax being assessed. The judicial proceeding as mentioned in item four pertains to Tax Court proceedings. When a taxpayer does not agree with Revenue Agent’s tax adjustments and after a statutory notice has been issued, the taxpayer will petition the Tax Court for judicial determination. It is our belief that the Internal Revenue Service procedures which provide that every non-agreed case goes to the Tax Court for settlement (unless the taxpayer decides to agree at any stage of the legal proceedings) constitutes a judicial proceeding within the meaning of the Federal Rules of Criminal Procedure and in particular Rule 6(E)(C). The point being that if we do not have the necessary information preliminary to the Tax Court docketing, under IRS procedures we cannot go forward with our position to the Tax Court. In order to prove the tax adjustments based upon fraudulent trades and to sustain the fraud penalty the evidence must be clear and convincing. The evidence in the instant case which would be required is the statements of the witness and all pertinent trading records. If the Rule 6(E) order is not obtained the civil adjustments would be based solely upon the information document and limited court proceedings. These documents would be insufficient to sustain the tax adjustments and fraud penalty in Tax Court proceedings. . Rules 6(e)(2) and 6(e)(3) Fed.R.Crim.P. provide in part: (e) Recording and Disclosure of Proceedings. (2) General Rule of Secrecy. — A grand jur- or, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not ■ disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court. (3) Exceptions. (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to— (i) an attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. (B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made. (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist ’ for a motion to dismiss the indictment because of matters occurring before the grand jury. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. . The materials sought to be disclosed as listed have not been treated confidentially in the briefs, and were mentioned at oral argument, but any additional information about those items has not been made known publicly. In any event IRS presumably has that much upon which to initiate an independent civil investigation supplemented by a copy of the criminal information and the proceedings in open court at the time of Baggot’s plea and sentencing. Even though we view it as unnecessary, those proceedings in open court were the subject of an order permitting disclosure transmission to the IRS. . A stay of the disclosure was granted on July 7, 1980 pending appeal. . The general justification for grand jury secrecy is set forth in United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954), cited with approval in United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82 n.6, 78 S.Ct. 983, 985-86 n.6, 2 L.Ed.2d 1077 (1958). . See generally United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). . If the grand jury had had sufficient evidence to indict Baggot for tax violations, then but for the plea agreement to the commodity violations, that tax evidence would have been publicly disclosed in open court as a basis for the acceptance of a plea of guilty or otherwise revealed at trial. In that situation the present disclosure problem would not have arisen. . See also In re J. Ray McDermott & Co., Inc., 622 F.2d 166 (5th Cir. 1980); and In re Grand Jury Investigation of Uranium Industry, 1979-2 Trade Cases (CCH), ¶ 62,798 (D.D.C.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 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?

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

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

John D. GRAY and Elizabeth N. Gray, John R. Gray, First National Bank of Oregon, Guardian, Joan E. Gray, First National Bank of Oregon, Guardian, Janet L. Gray, First National Bank of Oregon, Guardian, Laurie J. Gray, First National Bank of Oregon, Guardian, Anne L. Gray, First National Bank of Oregon, Guardian, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Nos. 75-1041 to 75-1046. United States Court of Appeals, Ninth Circuit. Sept. 21, 1977. Michael Waris, Jr., Washington, D. C., argued, for petitioners-appellants. Stephen M. Gelber, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C., argued, for respondent-appellee. Before GOODWIN and SNEED, Circuit Judges, and BLUMENFELD, District Judge: Hon. M. Joseph Blumenfeld, Senior United States District Judge, for the District of Connecticut, sitting by designation. SNEED, Circuit Judge: Taxpayers appeal from a decision of the Tax Court holding that what in form was a sale of taxpayers’ stock in a wholly owned corporation was in substance a liquidation of the corporation. John D. Gray, 56 T.C. 1032 (1971). The case demonstrates anew the need to elevate substance over form in interpreting a sophisticated code of tax laws where slight differences in a transaction’s design can lead to widely divergent tax results. It also demonstrates, however, the difficulties in determining the substance of a transaction when dealing with complex business arrangements in which the items of commerce frequently are legal abstractions such as corporate entities and shares. The present transaction has at least five plausible characterizations, all with substantially different tax results. According to their theory, taxpayers sold their shares in a wholly owned corporation, containing only cash and preferred stock in another of taxpayers’ corporations, to an unrelated party in an arm’s-length transaction; the preferred stock was then redeemed from the corporation after the sale was completed and, thus, after taxpayers’ control over the redeeming corporation could no longer be attributed to the sold corporation through section 318 of the Internal Revenue Code (hereinafter Code). The Tax Court, however, focusing on the purported sale, held that taxpayers had in substance liquidated the corporation following which the preferred stock was redeemed directly from the hands of the taxpayers. We take a third position. We accept the sale format in which taxpayers chose to cast their transaction. At the same time, however, we believe that the redemption of the preferred occurred before rather than after the sale was effectuated. I. THE FACTS. In 1960, taxpayers John D. Gray and family were the principal shareholders of two corporations profitably engaged in the manufacture and sale of saw chains both here and abroad. Domestic operations were centered in Omark Industries Inc. (hereinafter Omark), of whose stock all but about 10 percent was held by taxpayers. Foreign sales were handled by Omark Industries (1959) , Ltd. (hereinafter Omark 1959), a Canadian corporation owned entirely by taxpayers. In an effort both to prepare Omark for an eventual public offering and to avoid disputes with the minority shareholders of Omark, taxpayers in late 1960 decided to realign the Omark-Omark 1959 relationship into that of parent-subsidiary. This was accomplished by Omark forming a Canadian subsidiary, Omark Industries (1960) Ltd. (hereinafter Omark 1960), and having the subsidiary acquire the assets of Omark 1959 and assume its liabilities. Omark 1959 in exchange received $10,000 in cash, a $82,604 line of credit, and 15,000 shares of Omark 1960 $100-par, noncumulative preferred. The name of Omark 1959 was then changed to Yarg, Ltd. (hereinafter Yarg). Following the acquisition of Yarg’s assets by Omark 1960, taxpayers attempted to convert Yarg into a real estate investment corporation. Gray actively investigated a variety of real estate investments during 1961 and 1962. Gray’s efforts to find suitable investments, however, were unsuccessful. While Yarg did make a series of investments in Oregon corporations, no real estate was ever purchased. By 1962, several factors had convinced taxpayers to terminate their ownership of Yarg as expeditiously as possible. Because of the failure to find satisfactory real estate investments for Yarg, the IRS was likely to classify Yarg as a foreign personal holding company subject to sections 551 et seq. of the Code. Under the foreign personal holding company provisions, taxpayers would be taxed at ordinary income rates on any undistributed investment earnings of Yarg. To make matters worse, legislation had been introduced into Congress which, if passed, would tax as dividend income- any gain recognized on the liquidation of a controlled foreign corporation such as Yarg. Taxpayers considered a variety of means for terminating their interest in Yarg — including transferring their stock in Yarg to Omark in exchange for Omark stock in a nontaxable section 351 transaction, contributing the Yarg stock to a capital exchange fund, and liquidating Yarg. Each of those alternatives, however, had distinct disadvantages and taxpayers ultimately decided to sell their stock in Yarg to an outside buyer. Although two investment banking firms were commissioned to find a buyer, it was Gray’s attorney who ultimately located a purchaser. Frank H. Cameron (hereinafter Cameron), a Canadian businessman, offered to purchase the Yarg stock for “net book value less 4VÍ2 percent of undistributed income”; he insisted, however, that prior to purchase, all of Yarg’s assets be reduced to cash and Yarg’s liabilities be reduced to only capital and surplus. At this point, Yarg’s assets consisted of a small amount of cash, minor investments in three Oregon corporations, and the 15,000 shares of Omark 1960 preferred. In line with the all-cash requirement in Cameron’s offer, Gray purchased Yarg’s Oregon investments at book value in cash. However, taxpayers balked at reducing the Omark 1960 preferred to cash prior to the sale. Cameron’s insistence on cash was understandable. There was no guarantee that the Omark 1960 preferred would be redeemed in the near future. And, while the book value and redemption price of the Omark 1960 preferred was $1,500,000, its fair market value was considerably less, taxpayers once in the course of this litigation having stipulated a value of only $1,000,000. From taxpayers’ standpoint, however, a redemption of the Omark 1960 preferred prior to the sale of the Yarg stock would lead to foreign personal holding company income, taxable to Gray and his family as ordinary income. Ultimately, it was agreed between the parties that Cameron would purchase the Yarg stock while Yarg still held the Omark 1960 preferred, but that the purchase would be subject to a condition subsequent negating the transaction if the Omark 1960 preferred was not redeemed within six days after the purchase. Cameron would be free to waive the condition subsequent if he wished. To ensure that Omark 1960 would be able to redeem the preferred shares, Gray arranged for Omark and another Omark subsidiary to lend approximately $1.3 million to Omark 1960 four days prior to the planned sale. On September 21, 1962, Cameron, acting through two wholly owned Canadian corporations, gave two certified checks totalling $1,681,400 to personal representatives of taxpayers in exchange for all the outstanding Yarg stock. The checks, the Yarg stock, the Yarg corporate records and the Omark 1960 preferred stock,' all properly endorsed, were then placed in escrow with the Bank of Montreal. By the terms of the escrow, the Bank was to return the checks to Cameron and the other excrow items to taxpayers if the Omark 1960 preferred had not been redeemed by September 26, 1962 and Cameron had not waived the condition. On September 22, with Cameron and two associates purportedly installed as Yarg’s new directors, Yarg requested that Omark 1960 redeem its preferred stock; the request was made by means of a letter previously drafted by Gray’s Canadian attorney. The stock was redeemed on September 25, 1962, and the escrow was closed. Taxpayers treated the 1962 transaction as a sale of the Yarg stock, reporting their profit on the transaction as capital gains. The Commissioner assessed deficiencies against taxpayers contending that the transaction was in reality a constructive dividend to taxpayers of the assets of Yarg followed by a second constructive dividend on the redemption of the Omark 1960 preferred; both dividends would be taxable at ordinary income rates. The Tax Court held that both characterizations were wrong. According to the Tax Court, the 1962 dealings constituted a constructive liquidation of Yarg on September 21 followed by a redemption of the Omark 1960 stock from the hands of taxpayers on September 25. II. ANALYSIS. We agree with the Tax Court that the taxpayers’ characterization of the transaction must be rejected. We believe that the controlling issues are when and from whom the redemption was made, however, and not whether the taxpayers liquidated or sold their stock. Assuming that taxpayers are correct in characterizing their transaction as a sale rather than a liquidation, the facts indicate that the substance of the sale followed rather than preceded the redemption of the 1960 preferred. The fact that the agreement was cast in the form of a sale subject to condition subsequent, which may be considered a completed sale under Canadian law, is irrelevant for purposes of federal taxation. We must look to the relevant concepts of federal tax law to determine when the sale occurred. Commissioner v. Tower, 327 U.S. 280, 287-88, 66 S.Ct. 532, 90 L.Ed. 670 (1946); Hudspeth v. United States, 471 F.2d 275, 277 (8th Cir. 1972); Estate of Starr v. Commissioner, 274 F.2d 294, 294-95 (9th Cir. 1959). For tax purposes, sale is essentially an economic rather than a formal concept. Our task is to examine all of the factors to determine the point at which the burdens and benefits of ownership were transferred. It is settled that when a person agrees to sell property subject to certain conditions, and the property is placed in escrow until those conditions are fulfilled, no sale occurs until those conditions have been fulfilled. Dyke v. Commissioner, 6 T.C. 1134 (1946); see Texon Oil & Land Co. v. United States, 115 F.2d 647 (5th Cir. 1940); Big Lake Oil Co. v. Commissioner, 95 F.2d 573 (3d Cir. 1938). Here, the Yarg stock was placed in escrow, subject to the condition that the “sale” would be undone if the redemption did not occur. Completion of the transaction was subject to real contingencies; the seller was not free to demand his proceeds until the redemption occurred, Carpenter v. Commissioner, 34 T.C. 408, 409, 414 (1960). Buttressing our conclusion that the sale was not completed until the redemption occurred is the fact that the condition imposed was not insignificant or remote; rather, the redemption supplied the economic substance needed to complete the sale. The purchase price of the Yarg stock was computed by adding to Yarg’s cash assets a sum of $1.5 million attributable to the Omark 1960 preferred. But the preferred would be worth that amount only upon redemption. Its value in the absence of redemption was considerably less. If the Omark 1960 preferred were redeemed, the escrow would be closed and the sale completed. If the preferred were not redeemed, Cameron would be free to abandon the sale, and would have no economic incentive to do otherwise. See generally Estate of Franklin v. Commissioner, 544 F.2d 1045 (9th Cir. 1976). The stubborn fact is that without the redemption there would have been no sale. The facts also demonstrate that it was Gray, through Yarg, who initiated and received the benefits from the redemption of the Omark 1960 preferred. The only reason suggested in the record why Omark 1960 chose to redeem its preferred on September 25, 1962 was that it was necessary to effectuate taxpayers’ sale of the Yarg stock. Gray was in complete constructive control of Omark 1960. It was Gray who arranged the financing for the redemption. It was even Gray’s attorney who drafted the letter requesting the redemption. As for the proceeds of the redemption, the sales price of the Yarg stock reflected these proceeds. Taxpayers received the redemption value of the preferred rather than its fair market value. Thus, it was taxpayers, not Cameron, who received the economic benefit from the redemption of the Omark 1960 preferred. To hold that the preferred was only redeemed after the Yarg stock was sold and taxpayers’ relationship with the corporation ended would ignore how and why the redemption was made. Such a holding would also defeat Congress’ purpose in passing sections 301, 302, 316 and 318 of the Code, taxing as ordinary income redemptions that are essentially equivalent to a dividend, even when they are only indirectly made to a shareholder through a related entity. Cf. B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 1110.07, at 10-13 to 10-14 (1971). The Tax Court’s characterization of the 1962 transaction as in substance a liquidation followed by a redemption suffers from the same defect as does the taxpayers’ theory. Under the Tax Court’s theory, the September 21, 1962 “sale” was a “liquidation.” But this “liquidation,” like the “sale,” was contingent on the redemption of the Omark 1960 preferred. If the redemption had not occurred, Yarg’s cash assets and the Omark 1960 preferred would have remained in corporate solution. Thus, what the Tax Court viewed as the liquidation was contingent on the redemption. Such a contingency is inconsistent with the premise that a liquidation was then and there completed. Until the assets of a corporation have been irrevocably removed from their corporate solution, a complete liquidation has not occurred. Turning to the issue of who received the redemption, the Tax Court’s theory holds that the Omark 1960 preferred was redeemed from the hands of taxpayers rather than Yarg. The facts indicate to the contrary. The redemption was from Yarg. The preferred was at all times registered to Yarg prior to the preferred’s redemption on September 25; the usual powers of ownership were vested entirely in Yarg; taxpayers would not have been free to sell or pledge the preferred. Furthermore, the re-demption proceeds were paid directly to Yarg. While the proceeds ultimately flowed to taxpayers, they took the form of sale proceeds from the transaction with Cameron. Of course, the Tax Court would have been free to reject the form of the redemption if tax substance so dictated. But it does not. Under sections 302 and 318 of the Code, if a redemption that would be essentially equivalent to a dividend in the hands of the taxpayers is received instead by a wholly owned corporation, the redemption is still taxed as a dividend but to the corporation. Congress was free in drafting these provisions to tax the redemption directly to the taxpayers, but it purposefully did not. The tax court was not free, under the instant circumstances, to reject corporate separateness when Congress has chosen to preserve it. It matters not whether the Tax Court’s conclusion that the taxpayers received the redemption be regarded as a mistake of law or an erroneous finding of fact. If it is the former, which we believe it to be, it is our duty to correct it; if it is the latter, we hold it not only erroneous but clearly so. Therefore, there was a redemption of the Omark 1960 preferred from the hands of Yarg followed by what appears in form to have been a sale of the Yarg stock to Cameron. There is no reason to reject the sale form in favor of a liquidation theory. By selling their stock to Cameron, taxpayers have incurred a higher tax than if, following the redemption of the Omark 1960 preferred, they had liquidated Yarg. Having cast the transaction in the form of a sale, however, taxpayers cannot now be heard to complain. See Commissioner v. National Alfalfa Dehydrating, 417 U.S. 134, 149, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974); Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406 (1940). We, therefore, remand to the Tax Court for further proceedings in line with this court’s determination that there was a redemption of the Omark 1960 preferred followed by a sale of the Yarg stock. REVERSED AND REMANDED. . Under I.R.C. § 302, if a corporation redeems stock from a shareholder who owns 50 percent or more of the voting power in the corporation both before and after the redemption, the redemption proceeds will typically be treated as a dividend and taxed at ordinary income rates to the shareholder. Under I.R.C. § 318(a)(3)(C), similar treatment will be accorded to the redemption of stock from a corporation whose majority shareholder owns 50 percent or more of the voting power in the redeeming corporation both before and after the redemption. The redemption will be treated as a dividend and taxed as ordinary income to the corporation. In essence, the shareholder and the corporation are treated as the same entity for purposes of deciding whether the redemption should be viewed as equivalent to a dividend. . At trial, the Commissioner argued that Omark 1959 had received less than the fair market value of its assets upon their transfer to Omark 1960, thus resulting in a constructive dividend of the difference to taxpayers. The Tax Court disagreed and the Commissioner has not appealed. . A foreign corporation is defined by I.R.C. § 552(a) as a foreign personal holding company if more than 60 percent of its gross income is “foreign personal holding company income” as defined by I.R.C. § 553. Section 553, in turn, defines foreign personal holding company income as most forms of passive investment income, including rents except when the rents constitute 50 percent or more of the gross income. If Yarg, therefore, had located satisfactory real estate investments and received more than 60 percent of its gross income in the form of rents from those investments, foreign personal holding company status could have been avoided. However, in 1962, Yarg was receiving all of its income from passive investments in Oregon corporations and, therefore, was apparently by definition a foreign personal holding company. . Such investment earnings would include any returns on Yarg’s investments in Oregon corporations and any proceeds from the redemption of the Omark 1960 preferred if viewed as equivalent to a dividend. I.R.C. § 553. . The legislation was ultimately enacted in amended form as I.R.C. § 1248. . Under I.R.C. §§ 302 & 318, discussed supra note 1, if the preferred were redeemed from Yarg prior to the sale, the redemption proceeds would be treated as equivalent to a dividend. Dividends, in turn, are included in foreign personal holding company income under I.R.C. § 553(a)(1). See note 4 supra. Finally, under I.R.C. § 551(a), any undistributed foreign personal holding company income must be included in the gross income of the corporation’s United States shareholders. . The Commissioner no longer urges the adoption of his characterization of the 1962 transaction but instead supports the Tax Court’s interpretation of the events. . Cases in which a sale is completed with buyer receiving proceeds unconditionally, subject to an agreement to repurchase part or all of the property if certain conditions occur later, e. g., William Davey v. Commissioner, 30 B.T.A. 837 (1934), are distinguishable from cases in which proceeds are placed in escrow and never disbursed until the conditions occur. Seller in the former case never has the right to demand the proceeds, Carpenter v. Commissioner, 34 T.C. 408, 409, 414 (1960). “It is the fixation of the rights of the parties which is controlling”, Commissioner v. Cleveland Trinidad Paving Co., 62 F.2d 85 (6th Cir. 1932). . Prior to trial, the parties stipulated that the Omark 1960 preferred had a fair market value of $1,000,000. Taxpayers argue on appeal that the stipulation was only for purposes of resolving an independent issue not on review. The stipulation is absolute on its face. We, therefore, accept it for purposes of this appeal. . See note 1 supra. . E. Keith Owens, 64 T.C. 1 (1975), and Estate of Edwin C. Weiskopf, 64 T.C. 78 (1975), aff’d per curiam, 37 A.F.T.R.2d 1427 (1976), cited by the Commissioner in support of the Tax Court’s theory, are inapposite. In both those cases the central and only issue was whether there had been a sale or liquidation of taxpayers’ corporation. As developed above, the central issue in this case is whether the taxpayers’ transaction with Cameron, whether viewed as a sale or liquidation, was completed before or after the redemption of the Omark 1960 preferred. Furthermore, the facts in both of the cited cases fully support the Tax Court’s theory that there was a liquidation. In both cases, the corporation was liquidated immediately after the purported sale. In Estate of Weiskopf, the “sales agreement” even provided that the “sale” was contingent on the purchaser obtaining a favorable tax ruling “before the date on which liquidation . . commences.” 64 T.C. at 87-88. In this case, the facts conflict in important respects with the Tax Court’s theory. Finally, there were strong policy reasons in both Owens and Estate of Weiskopf for holding that a liquidation, rather than a sale, had occurred. In Owens, taxpayers were attempting to assign the corporate profits to individuals with large unused tax losses. In Estate of Weiskopf, to have held the transaction a sale rather than a liquidation would have been “in complete derogation of section 1248 and its legislative history," providing for the full imposition of United States tax when income earned abroad is repatriated. 64 T.C. at 101. As noted in the text, there is no comparable reason for rejecting the taxpayers’ formulation of the instant transaction as a sale. . The issue is whether the taxpayers have recast merely in form what in substance Congress segregated for special treatment. The taxpayers’ transaction may meet the dictionary definition of one tax provision but squarely come within the substance of a different provision; under such circumstances, the substance must win out over the form. See generally Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 266-67, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958); Helvering v. F. R. Lazarus Co., 308 U.S. 252, 255, 60 S.Ct. 209, 84 L.Ed. 226 (1939); Helver-ing v. Gregory, 69 F.2d 809, 811 (2d Cir. 1934), affd, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). . This court has recognized that when erroneous legal conclusions have been attached to undisputed facts by trial courts it may draw different and correct ones on its own. Wener v. Commissioner, 242 F.2d 938 (9th Cir. 1957). The facts here are not in dispute; it is the legal characterization of those facts which has been the subject of this long dispute. The reverse is true when tax consequences turn on a state of mind. The determination of that state of mind is a question of fact to be overturned on appeal only if clearly erroneous. This is the true teaching of Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1959). See Estate of Franklin v. Commissioner, 544 F.2d 1045, (9th Cir. 1976) n.3; Olk v. United States, 536 F.2d 876 (9th Cir. 1976). . The “clearly erroneous” standard is not a wall that cannot be breached. It is so breached when, to quote Duberstein, supra, n. 13, “the -reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 363 U.S. at 291, 80 S.Ct. at 1200. In this instance, if we must assume that the Tax Court made a finding of fact, we possess the requisite conviction. . As developed earlier, the redemption proceeds received by Yarg would be treated as equivalent to a dividend and included in Yarg’s foreign personal holding company income. If undistributed, the amount of the proceeds would be included in the gross income of taxpayers. See note 6 supra. Since taxpayers sold their Yarg stock, the redemption proceeds remained “undistributed” for purposes of the code provisions and taxpayers must be taxed thereon. However, in 1962, section 562(b) of the Code provided that a liquidation was a distribution of the corporation’s income. Thus, following a liquidation, there would have been no undistributed foreign personal holding company income and taxpayers would therefore only have been taxed on the liquidation at capital gains rates. See J. Sitrick, Foreign Personal Holding Companies, Tax Management Foreign Income Portfolio No. 103, at A-44 (1965).

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?

UNITED STATES of America, Plaintiff-Appellee, v. SCHOOL DISTRICT 151 OF COOK COUNTY, ILLINOIS, et al., Defendants-Appellants. No. 17754. United States Court of Appeals, Seventh Circuit. Sept. 8, 1970. Ronald M. Glink, Louis Ancel, Marvin J. Glink, Chicago, 111., and John M. Van Der Aa, South Holland, 111., for appellants. William J. Bauer, U. S. Atty., Chicago, 111., J. Harold Flannery, Department of Justice, Washington, D.C., Thomas A. Foran, U. S. Atty., Jack B. Schmetterer, First Asst. U. S. Atty., Jerris Leonard, Asst. Atty. Gen., Robert Pressman, Atty., Department of Justice, Washington, D.C., for appellee. Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KILEY, Circuit Judge. KILEY, Circuit Judge. This is the second appeal in this proceeding by the United States Attorney General for desegregation of School District 151 in Cook County, Illinois. In the first appeal we affirmed, 404 F.2d 1125, the preliminary injunction order substantially implementing desegregation Plan C proposed by the District 151 Superintendent of Schools. 286 F.Supp. 786. Upon remandment for hearing upon the government’s application for a permanent injunction, the district court conducted a hearing from January 13 to February 17, 1969, adopted the government’s desegregation Plan I and ordered defendant Board to implement that Plan. 301 F.Supp. 201. The Board appealed. We affirm, with one modification of the order. We refer to the three decisions, above cited, for the detailed geographical and political description of the 4% mile square school district and the demographic development of the racial patterns which prior to 1964 had made Coolidge School in the city of Phoenix entirely Negro, and Eisenhower, Madison and Roosevelt Schools outside of Phoenix non-Negro. United States v. School District 151 of Cook County, Illinois, 286 F.Supp. 786; 301 F.Supp. 201; and 404 F.2d 1125. The common holding of these three opinions was that the policies, practices and decisions of the School Board members have been based upon unconstitutional racial discrimination depriving Negro pupils of equal protection of the law in violation of the Fourteenth Amendment with respect to the drawing of attendance zones, pupil and teacher assignment, busing of pupils and selection of sites for additional schools. At the conclusion of the hearings on remand, the district court, having found unlawful discrimination in the above-mentioned respects, permanently enjoined the Board from continuing its discriminatory practices, policies and decisions. It further ordered the Board to convert the Coolidge-Kennedy school complex into a combined upper grade center for all sixth, seventh and eighth grade pupils in the District and to bus White pupils in these grades to Coolidge-Kennedy; and to bus Kennedy-Coolidge kindergarten to fifth grade pupils (K-5) to various other schools in the District. A comparison of the arguments in the first appeal and in this appeal shows clearly that for the most part defendants have arrayed against the permanent injunction substantially the very arguments that were leveled against the preliminary injunction and which were rejected by this court. We are not disposed to rehash in this opinion the decisions made in our first opinion. We further find unworthy of discussion in this opinion the Board’s contentions that the district court had erroneous views of the applicable law which infected the proceedings with error, or that the court’s questions put to witnesses showed bias, or that the court denied the Board a fair opportunity to present its case or denied it due process by introducing the original findings into the record instead of considering the application for permanent injunction de novo. Nor shall we discuss the fact findings which defendants challenge generally on the basis of testimony of Board witnesses which the district court was not compelled to accept as true, in view of the objective facts as to which there can be no controversy. We turn then to the findings of fact of the district court which have been specifically challenged by the Board on this appeal. These are findings of fact Nos. 16-20 dealing with busing, Nos. 21-23 relating to the selection of new sites and the construction of new schools, Nos. 24-34 dealing with the drawing of attendance zones, and Nos. 35-38 with respect to the restructuring of the School District. These findings underlie ultimate finding of fact No. 39 and form the basis for conclusions Nos. 11 and 13. Each specific finding of fact states the relevant objective facts, and each group of findings ends with the inference that the purpose and effect of the pertinent policies and decisions of the Board either wholly or partially were based on the purposeful segregation of pupils in the District on the basis of race. In view of the extensive record already made in this case, we need only highlight the facts found to show that there is no merit to the claim that the findings are clearly erroneous. Concerning findings 16-20, the record shows White children living closer to Coolidge and Kennedy than to Roosevelt School were bused to Roosevelt, where only White pupils attended, and the busing was not justified by considerations of safety; no White pupils were bused to Coolidge and Kennedy and no Negro pupils were bused to the four schools outside of Phoenix. There was testimony that the busing program could be explained only in the aspect of the total racial segregation “which it produced.” In support of findings 21-23 the record shows that a referendum was conducted in the District in April, 1964 for the purpose of obtaining the District’s authority for the construction of a new school. Residents were told the school would relieve crowding at Coolidge and Roosevelt, with resulting integration. The vote was against the proposal. The proposal for a new school was again submitted to a referendum in December, 1964, but this proposal required that the Kennedy School be located adjacent to Coolidge, and that the Taft School be built in the “White” area below Phoenix. This proposal, which continued the residential-based school segregation, was approved. One Board member testified that he took into consideration in the proposal subject of the referendum “the effect of an integrated school I felt would have an effect on the passage of the bond issue.” The record relevant to findings 24-34 shows that formal attendance zones were first drawn in 1964 and were again formalized in 1966 after Kennedy and Taft were built. Before these formal zones were drawn, White children outside of Phoenix attended Coolidge and its predecessor school in Phoenix, but several Phoenix Negro families were not permitted to enroll their children at Roosevelt. From 1956 to 1967 increasing numbers of White children living closer to Coolidge than to Roosevelt were assigned to and walked to Roosevelt. The zones were drawn by a committee of Board members, two members of which asked to be appointed to make sure that only changes that “had to be made” would be made. And the three committee members told the president of the Board they wanted to keep Coolidge Negro. A recommendation of the committee indicated that one of the reasons for drawing the zones was that neighborhood schools were desirable and that neighborhood schools should serve a “like socio-economic level.” Finally, as to findings 35-38 the record shows that Plan C’s upper grade recommendation, i. e., the education of seventh and eighth grade students at one location, was approved in principle by educators and Board members. There was testimony that Coolidge was the only school in the District large enough to accommodate all upper grade students, that it was better to have a center for these students instead of scattering them throughout the other schools, and that it was the most educationally sound proposal. And there was testimony — considered in the light of the foregoing testimony — which justified the inference that Plan C’s recommendation of Coolidge as the upper grade center was rejected because of hostility of the residents of the District to desegregation. We think there was ample support in these findings for the ultimate finding of fact that the pupils in School District 151 have been segregated on the basis of race, the result of which has been a dual system of schools identifiable because of racial composition. We reaffirm our conclusion on the first appeal of this case that the district court was not clearly in error in finding the Board has practiced unconstitutional invidious discrimination with respect to student busing, selection of school sites, drawing of attendance zones and adoption of an educational structure for the District. . . Here, as on the first appeal, much of defendants’ arguments against the findings, relying again on Bell and Deal, presuppose that the defense testimony required the district court to find that because the racial pattern of the area was an innocent development, the racial discrimination and segregation in the school system likewise was the result of innocent good faith performance of defendants in fulfilling their duties. There is no merit to the Board’s argument based upon financial difficulty of the District in implementing Plan I as ordered by the court. It is a matter of common knowledge that other school districts in Cook County, the Chicago Public School System, and the Illinois Legislature are suffering under the necessity of meeting expanding educational costs. We pointed out in our opinion in the first appeal that the claimed financial difficulty is no bar'to enforcement of valid desegregation orders. The increased busing cost problems urged upon us are unpersuasive in the District which is but 4y% miles square and additional cost expected under the order is $15,000. In remanding the cause in its first appeal, this court stated that the burden would be upon the Board to present a plan which promised “meaningful and immediate progress toward disestablishing the existing unconstitutional discrimination.” This was effectually a direction to disestablish the segregated school system and reform it into a unitary system. See Alexander, swpra. We see no sound basis for defendants’ claim that the district court committed error in imposing upon them the burden of proving justification of their policies and decisions. We decided in the first appeal that the district court had an ample basis for fact findings which would justify a reasonable forecast that the government would ultimately prevail in this suit. We need not go beyond the objective, uncontrovertible facts to find again an ample basis for the similar findings before us. The record required defendants to go forward — after the government rested its case in chief — to show that the objective facts were not the result of the unconstitutional discriminatory policies and decisions of the Board. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567. After this court’s mandate issued in the first appeal, defendants offered substantially no plan of desegregation, and up to almost the end of the hearing after remand had not even inquired of the Superintendent of Schools with respect to a plan or to alternatives to those offered by the government. This situation in itself justified the district court’s adoption of a government plan. See Alexander, supra. At the hearing the government presented two plans for desegregating the district. Defendants were “unwilling” to adopt either plan. The government plans were supported by testimony of those who had drawn the plans and proposed them. The court found that government Plan I was educationally sound, but would involve additional busing in 1969-70: the K-5 students from Kennedy and Coolidge would be bused to schools outside of Phoenix, and sixth, seventh and eighth grade students from outside Phoenix would be transported to Coolidge. We approve the district court’s order, with one exception. The court ordered that all students in grades 6-8 be assigned to the Coolidge-Kennedy complex as upper grade center, with Eisenhower, Madison, Roosevelt and Taft serving grades K-5, and K-5 pupils residing in Phoenix assigned to Eisenhower, Madison, Roosevelt and Taft. We modify the order with respect to K-2 children. We are not disposed to compel transfer of Phoenix K-2 pupils unless parents of the children desire. There is nothing in the record which requires our approval of that part of the decree. In our opinion, the parents of these small children are best suited to determine whether it is more beneficial to the children to be close to home or bused to other schools. We think the busing of those children should be done only if their parents consent. We approve the district court’s reservation of jurisdiction over the cause in order that it may require, and take, such action as from time to time may be needed to the end that the court’s decree directed at undoing the effects of the unconstitutional segregation in School District 151 on the basis of race be fully complied with and without delay. See Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Alexander, supra. Affirmed as modified. . 42 U.S.C. § 2000c-6(a) and (b). . At oral argument this court, with agreement of the parties, held decision under advisement pending negotiations between the parties toward a constructive settlement of the issues. We expressed impatience at the intransigent positions of the adversaries and the continued arguments directed at justifying each party’s position at the expense of the other’s, with the important legal-racial and pupil-parent interests lost sight of. After several weeks during which the parties exchanged, criticized and finally rejected proposals, a Joint Report of failure of settlement was made to the court and is now of record before us. . The desegregation of teachers has been completed and the district court has retained jurisdiction to pass upon the location and construction of new schools in the District. We need not, therefore, deal further with these aspects of the district court’s injunctive orders. . Briefly, and so far as still relevant to the present appeal, our opinion sustaining the preliminary injunction established that Bell v. School City of Gary, 324 F.2d 209 (7th Cir. 1963), cert. den. 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964), and its progeny, including Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert. den. 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), are not controlling here, where the segregation has been found to be de jure, since Bell “presupposes an ‘innocently arrived at’ de facto segregation with ‘no intention or purpose’ to segregate Negro pupils from White.” 404 F.2d at 1130. Further, as to the drawing of attendance zones, we found Taylor v. Board of Education, 294 F.2d 36 (2d Cir.), cert. den. 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961), indistinguishable in principle since “in both cases, the Board was found to have drawn lines to effectuate and perpetuate a purposeful, discriminatory condition, and race was made the basis for school districting with the purpose and result of segregating public schools.” 404 F.2d at 1132. Concerning the restructuring of the School District, we approved the finding of the district court that the Board rejected a proposed plan that would have eliminated the effects of past discrimination because of the Board’s and the community’s opposition to the desegregation that would have resulted from its implementation. We rejected, on the basis of Griffin v. County School Board, 377 U.S. 218, 231, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), the Board’s contention that the government’s reliance upon the psychological motivations of the Board to establish the unconstitutionality of its conduct was improper. . Twelve witnesses testified at the hearing on the preliminary injunction, and twenty-four witnesses at the hearing on the permanent injunction. Three witnesses, McGovern, Wiersma and Graff, testified at both hearings. . The plan of student assignment directed in the order before us was based upon a study of the District conducted by the Department of Health, Education and Welfare at the suggestion of the government and upon request of the defendants, in accordance with Section 403 of the 1964 Civil Rights Act, 42 U.S.C. § 2000c-2. This is approved procedure. See Alexander v. Holmes County Board of Education, 396 U.S. 1218, 90 S.Ct. 14, 24 L.Ed.2d 41 (1969). . Any reliance by the Board upon the recent Swann et al. v. Board of Education, 397 U.S. 978, 90 S.Ct. 1099, 25 L.Ed.2d 389 (1970), is misplaced. Defendants argue that approximately 55% of the pupils in School District 151 are to be bused while in North Carolina’s Charlotte-Meeklenburg school district, subject of the Swann case, less than 50% were to be bused and that nevertheless the court of appeals there vacated the district court’s order. The court there decided the “board * * * should not be required to undertake such extensive additional busing to discharge its obligation to create a unitary school system.” The school system there served a population of over 600,000 covering an area of 550 square miles with 84,500 pupils attending 106 schools. The district court’s elementary school plan disallowed by the court of appeals would have required transporting 9,300 pupils in 90 additional buses with an average daily round trip of 15 miles through “central city and suburban traffic.” The district court there estimated the additional cost for the first year at $1,011,200. The court applied the test of reasonableness in its disapproval, applying the same test here the district court could well find Plan I requirements reasonable, with the exception as to K-2 children, noted later in this opinion. . This with some “amelioration” was a suggestion of the government according to the Joint Report filed with the 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 appellant. 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 appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?

GENERAL CHEMICAL CORPORATION, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Atchison, Topeka and Santa Fe Railway Company, et al., Intervenors. No. 85-1347. United States Court of Appeals, District of Columbia Circuit. Argued April 22, 1986. Decided May 1, 1987. Evelyn G. Kitay, I.C.C., with whom Robert S. Burk, Gen. Counsel, and Ellen D. Hanson, Associate Gen. Counsel, I.C.C., Douglas H. Ginsburg, Asst. Atty. Gen. at the time the brief was filed, and John J. Powers, III and George Edelstein, Dept, of Justice, Washington, D.C., were on the brief, for respondents. Robert B. Batchelder, Omaha, Neb., with whom John M. Edsall, James V. Dolan, Washington, D.C., Louise A. Rinn, Omaha, Neb., John A. Daily, Philadelphia, Pa., John C. Danielson, Detroit, Mich., John Doeringer, Chicago, Ill., Albert Laisy, Baltimore, Md., William L. Phillips, Chicago, Ill., Michael E. Roper, Dallas, Tex., Alice C. Saylor, Pittsburgh, Pa., William H. Teasley, Atlanta, Ga., Stuart E. Vaughn, and Dennis W. Wilson, Chicago, Ill., were on the joint brief, for intervenors. John K. Maser, III, Washington, D.C., with whom Michael M. Briley, Toledo, Ohio, John F. Donelan, and Richard D. Fortin, Washington, D.C., were on the brief, for petitioners. Nicholas J. diMichael, Washington, D.C., entered an appearance for petitioners. Before SCALIA and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge. Opinion for the court Per Curiam. Circuit Judge SCALIA was a member of the panel at the time this case was argued, but did not participate in the decision. He became an Associate Justice of the Supreme Court of the United States on September 26, 1986. PER CURIAM: Petitioners, producers and receivers of soda ash, challenge the reasonableness of rates assessed by the intervenor railroads for transportation of soda ash produced in Green River, Wyoming. The Interstate Commerce Commission (ICC) decided that the railroads were not “market dominant” as the Railroad Revitalization and Regulatory Reform Act (“4-R” Act) requires for the Commission to have jurisdiction to consider the reasonableness of rail rates. The Commission accordingly dismissed petitioners’ complaint. It is the ICC’s conclusion about market dominance that is at issue in this case. The Commission based its conclusion of no market dominance on the existence of effective geographic competition in the relevant soda ash market. We find the Commission’s analysis of geographic competition to be internally inconsistent and inadequately explained, and thus we conclude that its ultimate finding of no market dominance was arbitrary and capricious and not supported by substantial evidence on the record considered as a whole. Although the Commission’s analyses of product and intra- and intermodal competition were not similarly flawed, the Commission was careful not to rest its holding on these sources of competition. They therefore cannot themselves support the conclusion of no market dominance. Hence, the Commission’s decision on the issue of market dominance must be vacated and the case remanded to the agency for reconsideration. I. Factual and Procedural Background Soda ash or sodium carbonate is the ninth most widely used chemical in the United States. It is an essential raw material in several industries, particularly the manufacture of glass. There are three methods of producing soda ash. The first is by mining trona ore. This is the method used by the petitioner producers in this case, and it accounts for 80 percent of total United States production capacity. The world’s largest deposit of trona ore is located in Green River, Wyoming. The second method of producing soda ash is by distilling spring or lake brine. This method of production is used by facilities located at Searles Lake, California, and it accounted for approximately 11 percent of domestic production capacity in 1982. The third method of producing soda ash is by synthetic production. Although this was at one time the most popular method of producing soda ash, use of synthetic plants has decreased markedly in recent years because of more stringent environmental regulation and increasing energy costs. Synthetic production accounted for only 6.6 percent of total United States production capacity in 1982. Green River soda ash, the subject of petitioners’ challenge, is moved from Wyoming almost exclusively by rail. There is only one originating railroad — Union Pacific — with an average length of haul of over 900 miles. The intervenor railroads’ share of total Green River soda ash shipments exceeds 95 percent. The gist of petitioners’ complaint is that they are captives of the railroads. Because they have no realistic alternative for transportation of soda ash, they argue, they are forced to pay whatever the railroads choose to charge. Essentially the Green River producers claim that they are surrendering their profits from garnering 80 percent of the national soda ash market to the railroads, who have gained 95 percent of the market for transportation of Green River soda ash. The 19 petitioners (4 producers of soda ash and 15 receivers) allege in a complaint filed in March 1981 that the rates assessed by the intervenor railroads on Green River soda ash over 238 specified routings to 157 destinations are unreasonably high in violation of the Interstate Commerce Act. They seek both prescription of reasonable rates for the future and reparations for past shipments. Forty-nine intervenors (39 railroads and 10 belt or terminal operators) contest this allegation. The complaint was adjudicated in a bifurcated procedure. Before it can reach the second stage of assessing the reasonableness of rail rates, the ICC must clear two preliminary jurisdictional hurdles. First it must determine that the challenged rates exceed a specified revenue/variable cost ratio, set on a graduated scale chronologically. See 49 U.S.C. § 10709(d)(2) (1982). Second, it must find that the railroads have “market dominance,” defined as “the absence of effective competition from other carriers or modes of transportation, for the traffic or movement to which a rate applies.” 49 U.S.C. § 10709(a) (1982). Therefore the Administrative Law Judge (AU) assigned to the instant case made two separate decisions: in Phase I he decided that the railroads did have market dominance over those movements for which the rates exceeded the revenue/variable cost threshold, but in Phase II he concluded that they nonetheless were not charging unreasonable rates. This separation of market dominance determinations from assessments of rate reasonableness reflects Congress’ conscious rejection of perfect competition as the governing norm in railroad regulation. Rail regulation under the 4-R Act does not require regulation of rates merely because of market imperfection. See H.R.Conf.Rep. No. 781, 94th Cong., 2d Sess. 148 (1976). Rather, the bifurcated procedure permits the conclusion that effective competition is lacking and therefore the railroads have market dominance, but that the rates assessed by the railroads are nonetheless “reasonable.” See H.R.Conf.Rep. No. 768, 94th Cong., 1st Sess. 121 (1975). The isolation of the market dominance inquiry thus is central to Congress’ plan of structured deregulation in the rail industry. In deciding whether the railroads have market dominance, the AU applied the guidelines promulgated by the ICC in 1981. See Ex Parte No. 320 (Sub-No. 2), Market Dominance Determinations and Consideration of Product Competition, 365 ICC 118 (1981), aff'd sub nom. Western Coal Traffic League v. United States, 719 F.2d 772 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 953, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984). Prior to 1981, market dominance determinations were conducted according to rebuttable presumptions based on market share, rail-related investment, and revenue/variable cost ratios. See 49 C.F.R. § 1109.1; P. Dempsey & W. Thoms, Law and Economic Regulation in Transportation 165 & n. 50 (1986). The 1981 guidelines replaced these “on/off” quantitative presumptions with qualitative guidelines that are, in the ICC’s words, “broader and more flexible.” Market Dominance Determinations, 365 ICC at 119. These guidelines call for the agency to assess the existence of four types of competition: geographic, product, intramodal, and intermodal. Geographic competition is “a restraint on rail pricing stemming from a shipper’s or receiver’s ability to get the product to which the rate applies from another source, or ship it to another destination.” 365 ICC at 128. Product competition exists “when a receiver or shipper can use a substitute(s) for the product covered by the rail rate.” Id. Intramodal competition is “competition between two or more railroads transporting the same commodity between the same origin and destination,” whereas intermodal competition is “competition between rail carriers and other modes for the transportation of a particular product between the same origin and destination.” Id. at 132-33. The railroads bear the burden of identifying where product or geographic competition exists. Once the railroad has made this identification, the shipper in turn has the burden of proving that the product or geographic competition identified by the railroad is not effective. In his Phase I decision the AU first considered the revenue/variable cost jurisdictional threshold and found that all but eight destinations had revenue/variable cost ratios above the then-current statutory threshold of 160 percent. To arrive at this conclusion the AU apparently accepted petitioners’ evidence regarding cost. See Phase I Decision at 5. The AU then moved to consideration of qualitative evidence of market dominance and concluded that the railroads were market dominant. He first determined that the geographic competition alleged by the railroads was not effective and had not affected the railroad rates from the Green River origins. Id. at 8. He similarly found that the record as a whole did not support a finding that there is effective product or inter- or intramodal competition. Id. at 9, 10-11. Having concluded that the railroads had market dominance, the AU went on to consider the reasonableness of the rail rates. He held that the rates had not been shown to be unreasonable, primarily because the railroads had not yet achieved “revenue adequacy” — i.e., a system-wide return on investment equal to the railroad industry’s current cost of capital. Phase II Decision at 14. The AU thus refused to prescribe rates for the future and denied reparations. The complaints were dismissed. To reach his conclusion the AU apparently accepted the railroads’ cost evidence as the best evidence of record. See id. at 15. The railroads appealed to the Commission the Phase I finding that they have market dominance, and petitioners appealed the Phase II finding that none of the assailed rates are unreasonable. The Commission reversed the AU’s finding of market dominance. As a threshold matter, it adopted the railroads’ cost evidence for determination of the statutory revenue/variable cost ratio and thus dismissed several more complaint movements with regard to reparations and/or future rate prescription. See ICC Decision at 5. It then held that it lacked jurisdiction to consider the reasonableness of the remaining rates because “the totality of the evidence shows that there is competition for [soda ash] traffic moving between the many points involved in the complaint and that this competition effectively constrains the railroads from charging unreasonable rates on the traffic at issue.” Id. at 7-8 (footnote omitted). The Commission based its holding primarily on its finding of “substantial” geographic competition from three alternative sources of soda ash, which in its eyes was “strong enough, standing alone, to warrant a finding that there is no market dominance.” Id. at 9. It also found that product competition “enhances” and “fortif[ies]” its finding of effective geographic competition, and that evidence of intra- and intermodal competition “strengthens [its] view that market dominance is lacking.” Id. at 14-15. The Commission thus concluded that it did not have jurisdiction over the rate reasonableness issues reached by the AU below. The petitioners have appealed this final decision by the agency. II. The Standard of Review Our review of the ICC’s decision that the intervenor railroads are not market-dominant is governed by Section 10 of the Administrative Procedure Act, 5 U.S.C. § 706 (1982). The APA requires us to vacate the agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law * * * [or] unsupported by substantial evidence.” Id. § 706(A) & (E). The Supreme Court has explained that “[t]o make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) (citations omitted). This standard of review ensures that the agency has engaged in reasoned decisionmaking, see Cross-Sound Ferry Services, Inc. v. ICC, 738 F.2d 481, 483 (D.C.Cir.1984), that is both adequately explained, see Center for Science in the Public Interest v. Dep’t of the Treasury, 797 F.2d 995, 999 (D.C.Cir.1986), and supported by substantial evidence in the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). III. Cost Evidence and the Statutory Revenue/Variable Cost Ratio Petitioners challenge as arbitrary and capricious the Commission’s rejection of their cost evidence for assessing revenue/variable cost ratios. As noted above, the Commission must find that the railroads’ operations on a given route exceed a statutory revenue/variable cost threshold before it has jurisdiction to reach the issue of market dominance. See 49 U.S.C. § 10709(d)(2) (1982). The Commission concluded that the railroads had presented the best evidence of cost. It thus dismissed several complaint movements for failure to meet the then-current statutory threshold of 1.6. Although the Commission rejected petitioners’ cost evidence across the board, it explicitly objected to only two specific areas within those calculations. Petitioners challenge the Commission’s reasoning in both areas. A. The Rail Car Cost Controversy Rail car costs come in two varieties: online costs, incurred by a railroad when it uses its own cars to transport cargo on its own lines, and off-line costs, incurred when a road leases cars from another road or from private investors. At issue is the proper method of calculating off-line car costs. The Commission rejected petitioners’ “annuity” method for arriving at these costs on the ground of inadequate (and illegible) documentation. Petitioners respond that the Commission’s action was arbitrary and capricious because it was based on review of only part of the documentation present in the record. In lieu of petitioners’ annuity-based evidence, the Commission accepted the railroads’ evidence of off-line costs, which are based on the per diem charges paid by lessee roads to lessor roads for the use of rail cars. Petitioners object to this evidence because they feel it overstates the actual cost to the lessor roads. They point out that the per diem charge includes some margin of profit for the lessor, and that the charge is therefore inaccurate as a measure of costs. Be that as it may, the per diem method is the traditional approach to assessing the costs of off-line rolling stock. Absent a stronger showing of unreasonableness, the court will not label that method per se “arbitrary and capricious.” In addition, petitioners argue that the Commission failed to consider all the evidence on the record. Petitioners claim that the Commission ignored documents that clearly established the process by which the annuity-based cost figures had been calculated. The record does not bear out this charge. In fact, a close examination of the ICC’s Financial Analysis Section memorandum on the matter reveals several comments on precisely the documents petitioners claim the Commission ignored. See ICC Memorandum, June 18, 1984, at 4, Joint Appendix (JA) 1312, referring to Verified Statement of William W. Whitehurst, Jr., Workpapers 566, 569, JA 1198-99. Clearly, those documents were considered before any final decision was made on the overall usefulness of petitioners’ cost calculation evidence. Finally, petitioners argue that the Commission acted unreasonably in rejecting petitioners’ cost evidence because of illegibility without giving them the opportunity to submit clarifying material, and in requiring them to offer an additional “narrative” explanation of their annuity calculations. Although petitioners may find the Commission’s requirements burdensome, the ICC clearly has the power to determine what constitutes acceptable and unacceptable legibility and elaboration in evidence presented, and to penalize those who submit documents that fall on the wrong side of that line, as long as it does not do so in a discriminatory fashion. See Airmark Corp. v. FAA, 758 F.2d 685, 691-95 (D.C.Cir.1985). It is difficult to see how the Commission’s actions on these matters could be deemed discriminatory in this case, and we thus refuse to find them arbitrary and capricious. B. The Maintenance of Way Costs Controversy The controversy in this area centers around the use of two formulas for maintenance costs: the venerable “Rail Form A” formula (RFA), and the new “Speed Factored Gross Tonnage” formula (SFGT). The AU below accepted petitioners’ use of the SFGT formula in the Phase I determination of market dominance. See Phase I Decision at 8. But when time came to consider the reasonableness of the rail rates in Phase II, the AU rejected the SFGT formula on the ground that “some of the co-efficients expressed in the formula are not verifiable.” Phase II Decision at Appendix C, p. 11. The Commission adopted the AU’s Phase II reasoning and thus rejected the SFGT approach not only for any Phase II considerations, but also for the Phase I market dominance determination. ICC Decision at Appendix D, p. 3. Petitioners have offered no evidence that the Commission failed to act reasonably in choosing the controlling formula. The merits and demerits of the two competing formulas are matters for the Commission’s expertise, not ours. We decline petitioners’ invitation to attempt an independent assessment of this matter. Because reasonable Commissioners might differ on the appropriate formula, we defer to the ICC’s expertise on this second aspect of the cost controversy as well. IV. Market Dominance As noted above, the ICC in 1981 replaced its quantitative rebuttable presumptions of market dominance with a qualitative test centering on presentation of evidence of four types of competition. The Commission offered general guidelines for submission of evidence regarding the effectiveness of these types of competition. Unfortunately, it has failed in this case to explain adequately its conclusions on competition and market dominance. The Commission based its holding of no market dominance primarily on its finding of effective geographic competition, but it failed to adhere to its own guidelines regarding evidence of geographic competition and failed to explain satisfactorily its conclusion that geographic competition was effective in light of the record as a whole. The Commission’s more cursory analyses of product, intra- and intermodal competition, while not similarly flawed, were not held by the Commission to be sufficient to sustain its ultimate conclusion in the absence of a finding of effective geographic competition. The agency’s decision thus falls below the standard of reasoned decisionmaking. We cannot say, and it is not our role to say, that the railroads are market dominant. We do not hesitate to conclude, however, that the ICC’s decision that the railroads are not market dominant is arbitrary and capricious and not supported by substantial evidence on the record considered as a whole. The ICC’s decision is therefore vacated and the case remanded to the agency for further consideration and much-needed elucidation. A. Geographic Competition In its 1981 Market Dominance Determinations the ICC offered the following guidelines for submission of evidence concerning geographic competition: To establish the potential for geographic competition, evidence should be submitted concerning the following: (1) the number of alternative geographical sources of supply or alternative destinations available to the shipper or receiver for the product in question; (2) the number of these alternative sources or destinations served by different carriers; and (3) that the product available from each source or required by each destination is the same. Such evidence is sufficient only to indicate whether effective geographic competition is possible. To determine whether effective geographic competition actually exists, evidence showing the feasibility of each source or destination and the likelihood of competition should be presented. 365 ICC at 134 (emphasis added). In its opinion, however, the Commission failed to account for evidence in the record that casts doubt on the existence of the second and third evidentiary criteria for a prima facie showing of geographic competition. In fact, the Commission ignores its own guidelines, of which it makes no mention, and the record evidence that undermines its finding of market dominance. The Commission has no difficulty finding that the railroads cleared the first evidentiary hurdle. It notes the uncontroverted existence of three alternative sources of soda ash: Searles Lake, California, which refines lake brine to make soda ash, and Solvay, New York and Amherstburg, Ontario, Canada, which manufacture soda ash synthetically. The Commission’s treatment, however, of the second and third criteria in its guidelines for a showing of geographic competition is seriously flawed. The second criterion is a showing of “the number of * * * alternative sources * * * served by different carriers.” 365 ICC at 134. The purpose of this criterion is apparent: if the same carrier serves both the complainant source and the alternative sources, the alternative sources might not provide geographic competition because the railroad might be indifferent to competitive “losses.” Normally, when geographic competition exists the receivers of soda ash can simply order their soda ash from a different supplier if rail rates from the complainant source are too high. This possibility of losing shipping business will, in theory, keep the railroad that serves the complainant source from charging excessive rates to begin with. But if the same railroad serves the alternative sources as well as the complainant source, the railroad presumably will be indifferent to the loss of business from shipping the complainant source’s product, because the business is not really lost, just shifted to another of the railroad’s clients. The competitive restraint on the railroad’s rates is thus undermined. The Commission seems to refer to this aspect of its guidelines in its opinion by noting that “[t]he soda ash from these alternative origins moves by different transportation than the soda ash from Green River.” ICC Decision at 10. The Commission goes on to cite the railroads’ own evidence to list the various rail carriers serving the alternative origins. However, it neglects to note that many of these carriers also serve the Green River complainants. The only transportation listed by the Commission for Solvay soda ash is Conrail. But Conrail is one of the defendants named by the Green River producers. In fact, Conrail’s average length of haul of Green River soda ash is 850-900 miles — almost as long as that of Union Pacific, the sole originating railroad for Green River soda ash. See Brief of Petitioners at 10. The Commission notes that the alternative source at Amherstburg is served by “the Essex Terminal Railway, a short line that connects at Windsor, Ontario with five major railroads.” ICC Decision at 10. The Commission fails to mention that three of these five railroads are defendant railroads in this case (Conrail, C & O, and N & W). The Commission notes that Searles Lake soda ash moves by ocean vessel and motor carriers as well as by rail. But its rail carrier is the Trona Railway Company, a 31-mile railroad owned by Kerr-McGee, which brings it to an interchange with the Southern Pacific — another defendant railroad in this case. The Commission’s assertion that the alternative origins are served by different carriers is suggestive of the considerations outlined in its guidelines but does not adequately explain its decision in light of them. The Commission’s inexplicable failure to make any mention of the overlap between the carriers it lists to “support” its assertion and the carriers of Green River soda ash falls short of the reasoned decision-making required of the agency. It may well be that some of the rail carriers that serve the alternative sources are independent of the Green River carriers, or that the different carriers still compete with each other even though they also serve alternative sources, or that the alternative sources are served by means other than rail. But the Commission advances none of these explanations. It simply lists without explanation the rail carriers serving the alternative sources, seemingly oblivious to their demonstrable connection to Green River. The Commission’s own guidelines and judicial precedent clearly establish that any overlap between the carriers to a complainant source and those that serve allegedly competitive sources is relevant to a determination of the existence of geographic competition. See Arizona Public Serv. Co. v. United States, 742 F.2d 644, 654 (D.C.Cir.1984). The Commission impermissibly failed to consider this relevant factor in its opinion. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 46-57, 103 S.Ct. 2856, 2868-74, 77 L.Ed.2d 443 (1983). The third evidentiary criterion in the guidelines on geographic competition is a showing “that the product available from each source * * * is the same.” The Commission seems to refer to this aspect of its guidelines by concluding in a footnote that “[tjhere is no evidence * * * that synthetic soda ash [produced at Solvay and Amherst-burg] is not essentially the same product as natural soda ash. Accordingly, we will treat synthetic soda ash as a close substitute for what is being mined and processed at Green River.” ICC Decision at 9 n. 13. But there is much evidence on the record that Green River produces primarily dense soda ash, whereas the synthetic plants at Solvay and Amherstburg produce both light and dense ash. See Verified Statement of T.J. Kessler at 21, JA 108; Verified Statement of David A. Westerlund at 7, JA 220; Rebuttal Verified Statement of Robert H. Richards at 23, JA 766; Rebuttal Verified Statement of Donald E. Watson at 4, JA 780. Moreover, one of the railroads’ own witnesses conceded during cross-examination that light and dense soda ash differ in terms of their use: Q: You are not comparing dense and light? You are not equating the two, are you, sir? A: No. But if something was locked in, if some industry was locked into the use of light ash in the past, it seems as though an adjustment either in their plant or in a product in Wyoming could be made to use dense ash rather than to be locked into the use of light ash. Q: But the, to use your word, “adjustment” would have to be made somewhere along the line, either in the type of ash that is produced or refined, I suppose the term is, or, as a raw material, what it is being used for at a given destination? A: Sure. Oral Testimony of Railroad Witness Foley, JA 886-87. We cannot determine whether the Commission considered this evidence or whether it impermissibly ignored it in concluding that there is “no evidence” that synthetic soda ash, some of which is light ash, is not “essentially the same product” as Green River mined soda ash. The Commission failed to explain what it meant by “essentially the same product” or “close substitutes.” To the extent that light and dense ash differ, the light soda ash produced at Solvay and Amherstburg is not directly in competition with the dense soda ash produced at Green River, and one of the three criteria for a finding of geographic competition is not met. The Commission’s ultimate conclusion — that natural and synthetic soda ash are close substitutes — may be correct. But the Commission’s failure lies in neglecting to address directly the testimony on the record about the differences between light and dense soda ash in order to explain its conclusion that the two are “essentially” the same. See Amoco Oil Co. v. EPA, 501 F.2d 722, 741 (D.C.Cir.1974) (“Where [the agency’s actions] turn crucially on factual issues, we will demand sufficient attention to these in the statement to allow the fundamental rationality of the [actions] to be ascertained.”). In addition to neglecting its own evidentiary guidelines to determine whether geographic competition is even possible, the Commission also failed to explain adequately its conclusion that geographic competition is effective. According to the Commission’s guidelines, the railroads bear the burden in a market dominance proceeding of identifying sources of geographic and product competition. The shippers then bear the burden of demonstrating that the identified competition is not effective. 365 ICC at 132. But the railroads offered no evidence of geographic competition at 27 of the 157 destinations complained of by the petitioners. See Defendants’ Initial Submission Identifying Sources of Geographic and Product Competition, JA 54; Brief of Petitioners at 30 n. 1 (listing by number the destinations for which defendants identified no geographic competition). Five of these 27 destinations were later dismissed by the Commission for falling below the statutory revenue/variable cost ratio. See ICC Decision at Appendix C, pp. 1-9 (destinations 30, 41, 112, 140, and 142 were dismissed). That leaves 22 destinations or 14 percent of the total number unaccounted for. The Commission makes no mention of these destinations and fails to explain how its conclusion that geographic competition is “strong enough standing alone” to support its holding can be maintained in light of them. We do not suggest that the Commission must consider each complainant destination individually. It is within the Commission’s discretion to use a “grouping approach,” as it explained in its opinion, “differentiatfing] among different routes or movements only to the extent that the factual assertions and legal and economic arguments raised by the parties are not common to them all.” Id. at 8 n. 12. The problem is that the Commission did not adhere to its own approach. Clearly, the 22 destinations for which no evidence of geographic competition was offered by the railroads should be treated separately from the other destinations according to the Commission’s own criteria. These unaccounted-for destinations deserve at least some mention by the Commission, since it relies almost exclusively on its finding of geographic competition. Moreover, the Commission ignored the defendants’ own acknowledgment that geographic competition is not effective for 72 destinations or 46 percent of the total number. The ALJ asked the parties to submit briefs for his Phase I decision in the form of proposed opinions. Defendants’ brief conceded the lack of effective geographic competition at almost half of the complainant destinations. The Commission’s opinion did not mention this concession by the defendants. This omission is disturbing because the opinion rests upon a conclusion— that geographic competition alone could support the Commission’s finding — that even the railroads did not urge. When the agency wishes to base its conclusions on arguments not endorsed even by the party in whose favor it rules, it owes a duty of adequate explanation. The Commission’s failure even to note its divergence from the railroads’ own contentions prevents us from being able reasonably to discern “the agency's path.” Bowman Transportation v. Arkansas-Best Freight Sys., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). In an attempt to explain their apparent concession, the railroads argue in their brief on appeal that Appendix A to their proposed opinion contained evidence of rate concessions, labelled there as intramodal competition, which should be considered evidence of geographic competition as well. They note that the Commission treated it as such. Joint Brief of Intervenor Railroads at 30 n. 21. There are two problems with this way of rationalizing the railroads’ concession on the geographic competition point. The first is that the railroads consistently argued the rate concession point as intramodal evidence, see Joint Verified Statement of Richard J. Barker and Thomas E. Schick at 10-20, JA 263-74; Verified Statement of John R. Sunnygard at 3-16, JA 501-14; Defendants’ Proposed Initial Decision on Market Dominance at 52, JA 931, and in any case the text of their submission should overcome any contrary suggestion in an appendix. The second problem runs deeper and points to an internal inconsistency in the Commission’s opinion. It is true that the Commission did cite evidence of rate concessions and mere cost recovery rate increases (as opposed to revenue-based increases) as evidence of geographic competition. See ICC Decision at 10 & nn. 15 & 16, 11. But the Commission earlier in its opinion denied petitioners’ request for official notice of rate increases to certain destinations because such evidence dealt only with intramodal competition (which the Commission found was not effective) and therefore was merely cumulative. Id. at 4. The Commission cannot have it both ways. If evidence regarding rate concessions or increases is probative of geographic competition, as the Commission maintains at one point, then petitioners’ request for official notice should have been granted. If such evidence is solely relevant to intramodal competition, as the Commission maintains elsewhere in its opinion, then the Commission should not have cited it to support its conclusion regarding geographic competition. The Commission is free to regard evidence of rate concessions as evidence of either geographic or intramodal competition or both. But it must do so in a rational and consistent manner that is fair to the parties involved. Finally, the Commission supports its finding of effective geographic competition by concluding without explanation that “Searles Lake is the low cost producer of soda ash.” Id. at 9. The low cost producer controversy is quite significant to the issue of geographic competition. Essentially, petitioners claim that their cost advantage over other producers of soda ash is being appropriated by the railroads. The railroads and the Commission respond to this claim in part by citing evidence that the delivered price of soda ash from alternative sources is competitive with that from Green River. See Joint Brief of Intervenor Railroads at 30-36; ICC Decision at 10. But this focus on delivered prices is unresponsive to petitioners’ claim. Petitioners argue that the railroads are appropriating through excessive rates the profits that the petitioner producers would ordinarily reap from their low cost soda ash. Because the delivered prices already include the amount paid to the railroads, the fact that other sources can sometimes offer competitive delivered prices does not determine whether the rates the railroads charge are excessive. It could be that the railroads are simply effective monopolists, already charging the maximum rates that their monopoly will bear. Evidence that delivered prices from alternative sources are competitive can be evidence of geographic competition only if Green River is not the low cost producer. Thus yet another aspect of the Commission’s opinion — its emphasis on competitive delivered prices — depends on its unexplained assertion that Searles Lake is the low cost producer of soda ash

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?

URQUHART et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 9793. Circuit Court of Appeals, Ninth Circuit. Feb. 17, 1942. Rehearing Denied March 18, 1942. Rosenshine, Hoffman, Davis & Martin, Albert A. Rosenshine, Elbert W. Davis, and Walter Shelton, all of San Francisco, Cal., for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Joseph M. Jones, and Harry Marselli, Sp. Assts. to Atty. Gen., for respondent. Before MATHEWS, HANEY, and STEPHENS, Circuit Judges. STEPHENS, Circuit Judge. Petition to review the decision of the United States Board of Tax Appeals determining deficiencies in petitioner taxpayers’ income tax for the years 1935 and 1936. Taxpayers are the testamentary trustees of a trust created by the will of E. H. Edwards, deceased. In computing their income taxes for the years involved, they took a deduction for certain payments which they had made to the Bank of California National Association, another trustee under the will, on the theory that they were ■ distributions to a beneficiary within the meaning of Section 162 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code, § 162. The deficiency found by the Board arises from a disallowance of the deductions. The pertinent provisions of the decree of distribution setting up the terms of the trust may be summarized as follows: “Unless sooner terminated, these trusts and this trust estate” shall continue until George Sterling Edwards becomes thirty years of age, when “the corpus or principal of said trust estate” is to be divided in half, and one-half vests in him and the other half is to continue in trust for Cynthia Ann Edwards. If she dies without issue prior to that time “then the other remaining half of said trust estate, that is, said entire trust shall” go to George; and if he dies without issue prior to that time his half is to continue in the trust estate “and be „ held for and distributed to the remaining beneficiaries as herein decreed”. The decree further provided: “That it is the purpose and intention of this decree that the two branches represented by George Sterling Edwards and Cynthia Ann Edwards shall take and share said trust estate equally and that if either of said branches shall have become extinct before taking, the same shall go to and vest in the other and that George Sterling Edwards shall take his half or the whole thereof in the event of the prior death of Cynthia Ann Edwards without surviving issue when he shall have attained the age of thirty (30) years, and the surviving issue of Cynthia Ann Edwards shall take the other half thereof upon her death or the whole thereof if George Sterling Edwards shall have died without surviving issue born in lawful wedlock prior to attaining the age of thirty (30) years.” There is a provision that “the net income of said trust estate shall go and be paid to George Sterling Edwards and Cynthia Ann Edwards, share and share alike and in the event of the death of either of them, his or her share thereof shall go and be payable to his issue born in lawful wedlock, or her issue, share and share alike by right of representation and not individually; and in the event of the death of George Sterling Edwards or Cynthia Ann Edwards during the term of these trusts without issue of lawful wedlock surviving him or issue surviving her, then his or her share of said net income shall go and be payable to the survivor of them.” The decree continued: “That it is the purpose and intention of this decree that the two beneficial shares of this trust estate represented by George Sterling Edwards and Cynthia Ann Edwards shall share equally in the net income thereof so long as both beneficial shares are extant; and further that if one of said beneficial shares or branches should become extinct, the income thereof shall go to the other by right of representation and not individually, and that no descendant shall take while his or her ancestor shall be living.” The trustees were “authorized and empowered to accumulate” all the share of each of the named beneficiaries in excess of $200 per month, and it is provided that ■the accumulations of income for George Sterling Edwards shall be paid and delivered to him when he shall have attained the age of thirty years, and that Cynthia Ann Edwards’ accumulated income shall be paid to her when she shall have reached the age of 21 years or shall have married in the meantime. With respect to this accumulated income it is provided that: “said trustees shall hold, invest, control and manage said share or shares of said accumulated net income, if any, in the like and same manner as if the same were a part of the principal of this trust estate and pay the same to said George Sterling Edwards on his 30th birthday, and said Cynthia Ann Edwards when she shall have attained her majority or when she shall have married if prior to attaining the age of 21 years; or to their successors in interest if they should be entitled to take * * *»' The petitioner taxpayers were named trustees of certain shares of capital stock owned by the decedent, and the Bank of California National Association was named trustee of “all the rest, residue and remainder of the trust estate”. During the tax years in question, the taxpayers as trustees of the stock received dividends thereon. After payment of various allowable expenses they paid in the year 1935 to George Sterling Edwards $20,-600 and to Cynthia Ann Edwards $45,-800. They paid to the Bank of California as trustee the sum of $30,000 for accumulation for George S. Edwards. In 1936 taxpayers as trustees of the stock paid to George Sterling Edwards $32,-475.56; to Cynthia Ann Edwards $67,475.-55, and to the Bank of California for accumulation for George Sterling Edwards $35,000. The payments to the Bank of California for accumulation for George Sterling Edwards, in the amounts of $30,000 and $35,-000 respectively are the payments for which the taxpayers claimed deductions, and with which we are here concerned. The theory of the taxpayers is that the testator by the trust above outlined created two trusts, one for the capital stock and one for the accumulation of income; that when the taxpayers as trustees of the first trust paid the income to the second trustee they “distributed” the same to a beneficiary within the meaning of the Act. The Commissioner, on the other hand, contends, and the Board held, that only one trust was created, committed to the care of collective trustees. It is argued alternatively that even though there were two trusts, still any “distribution” that was made was not made to a “beneficiary” within the meaning of the Act. Of course, if there was only one trust, there was no “distribution” at all, and the second point becomes unnecessary to decide. In Lynchburg Trust & Savings Bank v. Commissioner, 4 Cir., 1934, 68 F.2d 356, certiorari denied Helvering v. Lynchburg Trust & Savings Bank, 292 U.S. 640, 54 S.Ct. 773, 78 L.Ed. 1492, which is the chief reliance of the taxpayers in this connection, the will creating the testamentary trust provided that the income in question was to be paid over to the grandchildren as it was earned, with a further provision that the trustees were authorized to invest part of such income for said grandchildren. There was a specific provision that the accumulated income might be used in the improvement of the property of the grandchildren. The Court in construing the will found it to provide that the accumulated income was no longer held in trust for the purposes set out in the will in regard to the residue. In reaching this construction the Court was impressed with the provision of the will above referred to which empowered the trustees to invest the income in the improvement of the property of the grandchildren, saying, at page 361 of 68 F.2d: “This expression would have no meaning if applied to unidentified shares of the grandchildren in the common fund constituting the residue of the estate. It must have referred either to property of the grandchildren outside of the estate (as to the existence of which the record is silent), or to the retained portions of the income as invested by the trustees.” The Court also called attention to the fact that there was no express provision in the will for the final distribution of the accumulated income. The provisions relating to distribution applied only to the corpus of the residue and the income accruing thereon between quarterly payments. In these circumstances, the income accumulated for the grandchildren, although intended to be withheld from them for a period of time specified, still vested in the grandchildren as their individual property, free from the terms of the trust. Likewise in Willcuts v. Ordway, 8 Cir., 1927, 19 F.2d 917, the trust provided for accumulation of income for minor beneficiaries, with no provision which indicated that it was the testator’s intent that the income so accumulated should be subject to the terms of the trust. On the contrary the trust directed the trustees to keep separate books covering the cumulative profit of the minor beneficiaries. The Court held that when the income was allotted to the respective minor beneficiaries, it no longer formed a part of the trust. Under the facts of these cited cases it is clear that it was the intent of the respective testators that the income as accumulated should belong to the beneficiaries absolutely, subject only to the delayed possession and enjoyment thereof. Let us examine the trust involved in this appeal in the light of the cited cases. It is true that the trustees are directed to pay the income to the son and daughter of the decedent, which standing alone might indicate that these beneficiaries were intended to have a vested interest in this income as earned. However, the testator added a provision giving the trustees discretion to accumulate a portion of the income, and then provided that this accumulated income should be held by the trustees “in the like and same manner as if the same were a part of the principal of this trust estate”. Then to make it clear that it was his intent that the accumulation should be distributed in the same manner as the corpus of the trust, the testator provided that it should be paid to George Sterling Edwards on his 30th birthday and Cynthia Ann Edwards when she shall have attained her majority or when she shall have married prior to attaining that age, “or to their successors in interest if they should be entitled to take”. These “successors in interest” are identified in the remaining portions of the trust and above referred to. It thus appears that by the trust provisions, George Sterling Edwards has no dominion over the income accumulated for his benefit, nor does he have any testamentary right over it unless and until he attains the age of thirty years; instead in case of his death before his thirtieth birthday it would go in the same manner as the corpus of the trust estate, that is, to his lawful issue if any, or if none then to his sister. It cannot be said therefore that George Sterling Edwards has a present vested interest in the accumulations, as was a fact in the Lynchburg and Will-cuts cases, supra. The cited cases are therefore inapplicable. We find no error in the Board’s decision that it was the testator’s intent to create one trust, (See 1 Bogert on “Trusts and Trustees” § 122, p. 372; State Savings Loan & Trust Co. v. Commissioner, 7 Cir., 1933, 63 F.2d 482,) in the care of collective trustees for the benefit of his children. There being only one trust, there was no “distribution” in the transfer of funds from the taxpayer trustees to the Bank trustee, and hence no deduction was allowable. Affirmed. Section 162 provides : “The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that * * * “(b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries * * * but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not. * * * “(c) * * * in the case of income which, in the discretion of the fiduciary, may be either distributed to the beneficiary or accumulated, there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary.” It is the decree of distribution to which we must look for the terms of the trust. Moor v. Vawter, 84 Cal.App. 678, 258 P. 622; Shipley v. Jordan, 208 Cal. 439, 274 P. 745. Before the years in question Cynthia Ann Edwards had attained the age of majority, therefore the provisions in the trust regarding accumulations of income for her were no longer applicable. There is no question in this appeal concerning payments of income to her.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

Jane DOE and Herbert F. Sandmire, M.D., Plaintiffs-Appellees, v. BELLIN MEMORIAL HOSPITAL et al., Defendants-Appellants. No. 73-1396. United States Court of Appeals, Seventh Circuit. Argued May 30, 1973. Decided June 1, 1973. Alexander R. Grant, Gregory B. Conway, Green Bay, Wis., for defendants-appellants. Paul L. Jonjak, Sturgeon Bay, Wis., for plaintiffs-appellees. Before KILEY, PELL and STEVENS, Circuit Judges. STEVENS, Circuit Judge. The district court ordered the defendant hospital to make its facilities and staff available to the plaintiff doctor for the immediate performance of an abortion on the plaintiff, Jane Doe. We stayed that order and expedited defendants’ appeal. The ultimate issue is whether the defendants, who are regulated by the State of Wisconsin and have accepted financial support pursuant to the Hill-Burton Act, 42 U.S.C. § 291, may refuse to perform abortions without offending the Civil Rights Act, 42 U.S.C. § 1983. We hold that they may, since the record does not indicate that their refusal was directly or indirectly influenced by the State or by persons acting under color of State law. On April 26, 1973, plaintiff filed a verified complaint, together with the affidavit of Dr. Sandmire, plaintiff Doe’s attending physician and a member of the staff of the defendant hospital. For purposes of decision we accept the facts as stated in those documents notwithstanding defendants’ objection to the district court’s refusal to hear their witnesses. These facts are fairly summarized in plaintiffs’ brief from which we quote: “This case arises from Beilin Memorial Hospital’s refusal to permit use of its facilities for an abortion for Jane Doe and its enforcement of abortion-restricting rules. “Jane Doe, a resident of Shawano County, Wisconsin, became pregnant on February 4, 1973, and was scheduled for an abortion in a Madison, Wisconsin, clinic on April 4, 1973, but could not keep the appointment because of a severe snow storm. Her pregnancy had advanced too far to permit a clinic abortion, so Jane Doe’s personal physician referred her to Dr. Herbert F. Sandmire, who performed an examination on April 19, 1973. Dr. Sandmire determined, after consultation with his patient, that in his medical judgment, the patient’s pregnancy should be terminated in a hospital. “Practical considerations, such as time, distance, and expense, normally limit Dr. Sandmire’s practice to Green Bay hospitals and he has practiced his profession at Beilin Memorial Hospital for a number of years. He contacted St. Vincent Hospital, St. Mary’s Hospital, and Beilin Memorial Hospital, the only Green Bay hospitals with suitable facilities, to request their use for the operation, but in each instance his request was refused. “Bellin Memorial Hospital informed Dr. Sandmire it was enforcing rules restricting abortions to cases where pregnancy would: seriously threaten the health or life of the mother, or re-suit in delivery of an infant with grave and irreparable physical deformity or mental retardation, or if the pregnancy has resulted from legally established rape or incest. These rules make no provision for seeking consent from a putative father. All abortions are to be reviewed by a medical committee which then reports to the staff and Board of Directors. “Beilin Memorial Hospital is regulated by the state, has received funding under the Hill-Burton Act from the federal government and has been an agency through which the State of Wisconsin and the United States Government have provided medical services for residents of Northeastern Wisconsin, but the hospital is now denying Jane Doe and Dr. Sandmire use of its facilities by enforcing abortion-restricting rules virtually identical to those [required by portions of the Georgia statute] declared unconstitutional [in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, on January 22, 1973]. In the past it has denied Dr. Sandmire use of its facilities for an abortion restricted by these rules, it has denied the facilities for Jane' Doe because of these rules, and apparently it intends to continue to enforce these rules against Dr. Sand-mire’s patients in the future. “Every passing day increases the medical risk to Jane Doe and at the time of Dr. Sandmire’s examination, she was nearing the end of her first trimester of pregnancy on May 4, 1973, at which point medical risks increase dramatically. “Dr. Sandmire and Jane Doe, therefore, brought this action against Bel-lin Memorial Hospital and certain of its officials and agents seeking: [an injunction restraining defendants from denying the use of their facilities for an abortion to be performed on Jane Doe or any other patients of Dr. Sandmire in the future, and for certain other relief].” On May 2, 1973, the district court granted a preliminary injunction. Because we seriously doubted that plaintiffs would ultimately succeed on the merits, and saw a practical risk that immediate performance of the abortion might result in a termination of the litigation in advance of appellate review, we granted defendants’ application for a stay on May 3. We now reverse. I. Defendants argue that we should pot reach the merits because plaintiffs have failed (a) to join the putative father as a party, or (b) to establish irreparable harm. We are not persuaded by either of these arguments^ In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that the right to make the “abortion decision” is an aspect of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. In both Mr. Justice Blackmun’s opinion for the Court and Mr. Justice Stewart’s concurring opinion, the possessor of that right is plainly identified as the woman; no reference is made to the putative father. The analysis in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L.Ed.2d 349 from which Mr. Justice Stewart quoted, plainly indicates that the constitutionally protected right of privacy is an individual rather than a joint right. He stated: “As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, [92 S.Ct. 1029, 1038, 31 L.Ed.2d 349], we recognized ‘the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. -!v vr X *X* vr X “Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.” 410 U.S. at 169, 93 S.Ct. at 735 (Mr. Justice Stewart concurring). We find nothing in these opinions to support the suggestion that the woman’s right to make the abortion decision is conditioned on the consent of the putative father. In fact, the conclusion that the word “person,” as used in the Fourteenth Amendment, does not include the unborn (at p. 729), points in the other direction and serves to distinguish Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, on which defendants rely. The putative father, whoever he may be, is not an indispensable party. Defendants argue that plaintiff has not proved irreparable injury because the record does not foreclose the possibility that she could travel to another community and obtain the care she needs. But if she has a federal right to have the operation performed in Bel-lin Memorial Hospital, where her doctor is a member of the staff, and if, as her doctor has attested, there are increasingly serious hazards associated with the performance of the abortion, it is doubtful that the recovery of purely monetary damages would provide her with an adequate remedy. The quality, rather than the magnitude, of the potential risks supports the district court’s evaluation of the character of her possible injury as “irreparable”. In view of the sensitive interests at stake, we are persuaded that the record contains an adequate showing of the element of irreparable damage needed for preliminary injunc-tive purposes. We therefore turn to the merits. II. A woman’s right to make the abortion decision is protected by the Fourteenth Amendment from deprivation by a state. For that reason a statute which makes the performance of an abortion a crime, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 1471 (1973), or which requires the medical profession to observe unnecessary abortion-restricting rules, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), is invalid. The rationale of those cases has also been applied to rules adopted by the Worcester City Hospital, Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), and by the New York Commissioner of Social Services, Klein, et al. v. Nassau County Medical Center, et al., 347 F.Supp. 496 (E. D.N.Y.1972). The rationale of those cases is, however, inapplicable to private institutions. There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions. We think it is also clear that if a state is completely neutral on the question whether private hospitals shall perform abortions, the state may expressly authorize such hospitals to answer that question for themselves. The Georgia abortion statute which was reviewed in detail in Doe v. Bolton, supra, contained such a provision. The Supreme Court did not expressly pass on the validity of that provision, but since it was attacked in one of the amicus briefs, and since the Court reviewed the entire statute in such detail, it is reasonable to infer that it considered such' authorization unobjectionable. After summarizing the other provisions of the Georgia statute, the Court noted: “There is also a provision (subsection (e) ) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds not to participate in the procedure.” 410 U. S. at 184, 93 S.Ct. at 743. And in connection with its discussion of the statutory requirement of approval for abortions by a hospital committee, the Court stated: “We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202(e) the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202(e) affords adequate protection to the hospital and little more is provided by the committee prescribed by § 26-1202(b)(5).” 410 U.S. 197, 93 S.Ct. 750. Thus, we assume that there is no constitutional objection to a state statute or policy which leaves a private hospital free to decide for itself whether or not it will admit abortion patients or to determine the conditions on which such patients will be accepted. Plaintiffs contend, however, that the hospital’s right to make that decision has been limited by two federal statutes, the Hill-Burton Act and § 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. We are not persuaded that either of those statutes, or the two in combination, have that effect. No doubt the defendant hospital agreed to abide by a variety of regulatory terms related both to its operations and to the use of the Hill-Burton funds in connection with its acceptance of benefits under that Act. There is no evidence, however, that any condition related to the performance or non-performance of abortions was imposed upon the hospital. Unlike the fact situation in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), on which plaintiffs place heavy reliance, this record does not reflect any governmental involvement in the very activity which is being challenged. We find no basis for concluding that by accepting Hill-Burton funds the hospital unwittingly surrendered the right it otherwise possessed to determine whether it would accept abortion patients. Nor do we believe that the implementation of defendant’s own rules relating to abortions is action “under color of” state law within the meaning of § 1983. The State of Wisconsin is not a beneficiary of those rules and cannot be characterized as a “joint participant” in their adoption or enforcement. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 724-725, 81 S.Ct. 856, 6 L.Ed.2d 45. There is no claim that the state has sought to influence hospital policy respecting abortions, either by direct regulation or by discriminatory application of its powers or its benefits. Insofar as action of the State of Wisconsin or its agents is disclosed by the record, the State has exercised no influence whatsoever on the decision of the defendants which plaintiffs challenge in this litigation. The facts that defendants have accepted financial support, as alleged, from both the federal and state governments, and that the hospital is subject to detailed regulation by the State, do not justify the conclusion that its conduct, which is unaffected by such support or such regulation, is governed by § 1983. In Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), we rejected a stronger argument for application of that statute to a public utility. We stated: “The ‘under color of’ provision encompasses only such private conduct as is supported by state action. That support may take various forms, but it is quite clear that a private person does not act under color of state law unless he derives some ‘aid, comfort, or incentive,’ either real or apparent, from the state. Absent such affirmative support, the statute is inapplicable to private conduct. “We believe that affirmative support must be significant, measured either by its contribution to the effectiveness of defendant’s conduct, or perhaps by its defiance of conflicting national policy, to bring the statute into play. There is no such significant affirmative state support of Wisconsin Electric’s proposed termination of plaintiff’s service.” 466 F.2d at 654-656. See also Bright v. Isenbarger, 445 F. 2d 412 (7th Cir. 1971); Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968); Mulvihill v. Butterfield Mem. Hosp., 329 F. Supp. 1020 (S.D.N.Y.1971). Contra, Citta v. Delaware Valley Hosp., 313 F. Supp. 301 (E.D.Pa.1970). Plaintiffs argue that if Hill-Burton funds had not been allocated to defendant and other private hospitals, those funds would have been used to expand or construct public facilities which could not refuse to admit abortion patients. Even if this be true, the availability of alternate public hospitals would not vindicate the right plaintiff asserts in this case. She claims, in essence, the right to compel Beilin Memorial Hospital to make its facilities available to her. Her claim of irreparable injury forecloses any assumption that a hypothetical substitute would be adequate to serve her needs. Her claimed right to have the •abortion performed at the hospital of her choice has not been impaired by that hospital’s acceptance of Hill-Burton funds. The order of the district court is Reversed. . We assume that the witnesses tendered by the defendants would have amplified or explained plaintiffs’ version of the facts, but since they did not submit any affidavits of their own, and we find no offer of proof contradicting the plaintiffs’ statements, we conclude that defendants were not prejudiced by the abbreviated character of the record. The question is whether the record which plaintiffs made is adequate to support the injunc-tive relief granted by the district court. . We have supplied the bracketed words. . On May 4, the United States Supreme Court denied appellees’ motion to vacate the stay. . “This right of privacy whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” 410 U.S. at 153, 93 S.Ct. at 727. . We note, however, that the Supreme Court expressly reserved decision on any question relating to rights of the putative father, “if any exist in the constitutional context.” See Roe v. Wade, 410 U.S. 113, at 165, 93 S.Ct. 705, at 733. 35 L.Ed.2d 1471. . We note in this connection that plaintiff Jane Doe intended to go to Madison on April 4 for a clinic abortion but was unable to do so because of the. weather. There is nothing in the record indicating that she could not now travel to Madison or some other city containing adequate hospital facilities. . Brief amici curiae on behalf of National Legal Program on Health Problems of the Poor, pp. 48-52. . The full text of subsection (») reads as follows: “(e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or .associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person. . 42 U.S.C. §§ 291-29lz. . Section 1983 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 Consitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . In that case the Fourth Circuit pointed out: “Significant duties are imposed on the Surgeon General with respect to the ‘Non-Discrimination Report.’ 42 C.F.R. § 53.112 provides that a state agency’s findings must be approved by the Surgeon General. Consequently, the Surgeon General has the duty of determining whether the state agency has properly applied the ‘separate-but-equal’ formula, i. e., whether the state’s plan actually makes ‘equitable provision’ for all population groups. The ‘Non-Discrimination Report’ submitted by the North Carolina Medical Care Commission on January 3, 1962, was approved by the Surgeon General on January 22, 1962. “The point of present interest is not the equality or lack of equality ‘separate-but-equal,’ but the degree of participation by the national and state governments in the geographical proration of hospital facilities throughout the state. * * * * * “Moreover, the Government’s argument stresses the fact that the challenged discrimination has been affirmatively sanctioned by both the state and the federal government pursuant to federal law and regulation. 42 U.S.C.A. § 291e(f) ; 42 C.F.R. § 53.112. It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with ‘state action.’ ” 323 F.2d at 965, 968. . Judge Friendly there stated : “The contention that New York’s regulation of educational standards in private schools, colleges and universities, e. g., Education Law §§ 207, 215, 305(2), makes their acts in curtailing protest and disciplining students the acts of the State is equally unpersuasive. It overlooks the essential point — that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint. See Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, 6 L.Ed.2d 45; Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 548 (S.D. N.Y.1968). When the state bans a subject from the curriculum of a private school, as in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), its responsibility needs no elucidation. State action would be similarly present here with respect to all the students if New York had undertaken to set policy for the control of demonstrations in all private universities or in universities containing contract colleges. Cf. Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 461-463, 72 S.Ct. [813] 96 (sic) L.Ed. 1068 (1952). But the fact that New York has exercised some regulatory powers over the standard of education offered by Alfred University does not implicate it generally in Alfred’s policies toward demonstrations and discipline.”

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?

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1228, AFL-CIO, Plaintiff, Appellee, v. FREEDOM WLNE-TV, INC., Defendant, Appellant. No. 84-1821. United States Court of Appeals, First Circuit. Heard March 6, 1985. Decided April 22, 1985. Arthur M. Brewer, Baltimore, Md., with whom William J. Rosenthal, Earle K. Shawe, Baltimore, Md., Charles Hieken, Waltham, Md., and Shawe & Rosenthal, Baltimore, Md., were on brief, for defendant, appellant. Joseph G. Sandulli, Boston, Mass., for plaintiff, appellee. Before COFFIN and TORRUELLA, Circuit Judges, and RE, Judge. Chief Judge, of the United States Court of International Trade, sitting by designation. COFFIN, Circuit Judge. Freedom WLNE-TV, Inc. (Freedom) appeals from a district court order compelling it to submit to binding arbitration the question of whether Freedom’s contract with the International Brotherhood of Electrical Workers, Local 1228, AFL-CIO (the Union), by its own terms, continues in effect beyond its stated expiration date. 590 F.Supp. 1228. The issue, one of contract interpretation, was appropriately referred, in the first instance, to the arbitrator for determination. Accordingly, we affirm. Freedom and the Union entered into a collective bargaining agreement (the Agreement) on November 16, 1982 which was to remain in effect through August 15, 1983, and from year to year thereafter “unless changed or terminated in the manner hereinafter made and provided.” Art. 22.1. The contract required the party wishing to terminate the Agreement to notify the other in writing at least 60 days prior to the expiration date. The Agreement further provided that, “[pjending and during the negotiation of a new contract or amendments to this contract, business of the Employer shall continue in accordance with all the terms of this contract.” Negotiations to renew the contract began in May, 1983, when the Union advised Freedom of its desire to amend the current contract, and apparently continued through at least mid-September with each side proposing, although never agreeing upon, different versions of an extension agreement. On September 22, 1983, the Union filed a grievance which challenged Freedom’s alleged use of non-union employees for certain broadcasting work. Freedom refused to process the grievance because it concerned work which was undertaken after the expiration of the contract. The Union filed a subsequent grievance on September 28, claiming that Freedom’s refusal to process the earlier grievance unilaterally terminated the contract. Freedom again declined to process the grievance. On October 3, the Union sought to arbitrate the question, “[t]o what extent the contract, by its own terms, (Article 22) continues in effect beyond August 15, 1983 and what is the proper remedy.” Freedom refused arbitration claiming that its obligation to arbitrate, like its obligation to process grievances, expired with the contract on August 15 due to the parties’ failure to reach an extension agreement. On cross-motions for summary judgment, the district court ordered Freedom to submit to binding arbitration. It is from that order that Freedom appeals. Discussion There is no duty to submit labor disputes to arbitration absent a contractual agreement between the parties to be so bound. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Generally it is up to the court to determine, in the first instance, whether the parties have entered into a contract which imposes the duty to arbitrate, id., and whether that contract is still binding upon them, see e.g., Rochdale Village, Inc. v. Public Service Employees Union, 605 F.2d 1290, 1295 (2d Cir.1979); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. International Telephone and Telegraph Corp., 508 F.2d 1309, 1313 (8th Cir.1975). Where, however, the determination of whether a contract is still in effect depends solely upon construction of the collective bargaining agreement, the issue of contract termination may appropriately be decided by the arbitrator. Corallo v. Merrick Central Carburetor, Inc., 733 F.2d 248, 253 (2d Cir.1984); Rochdale Village v. Public Service Employees, 605 F.2d at 1296-1297. Parties to a collective bargaining agreement are contractually bound to arbitrate only disputes which properly come within the scope of the agreed upon arbitration clause. It is our task, therefore, to determine whether the arbitration clause in this Agreement governs disputes regarding the termination of the contract. We are guided in our analysis of the scope of the arbitration clause by the Second Circuit’s decision in Rochdale Village, Inc. v. Public Service Employees, 605 F.2d at 1295-1296: “If a court finds that the parties have agreed to submit to arbitration disputes ‘of any nature or character,’ or simply ‘any and all disputes,’ all questions, including those regarding termination, will be properly consigned to the arbitrator: ‘With that finding the court will have exhausted its function, except to order the reluctant party to arbitration.’ In dealing with a narrower arbitration clause, a court’s inquiry is not so circumscribed, and it will be proper to consider whether the conduct in issue is on its face within the purview of the clause. For example, if an arbitration clause covers only employee grievances, the court should not compel arbitration of questions of contract termination. But if the arbitration clause covers disputes as to contract interpretation, and the termination is alleged to have occurred on a basis ‘implicit in [the] contract,’ the termination question is arbitrable.” The arbitration clause in the collective bargaining agreement between Rochdale and the Union covered “any and all disputes” arising under the agreement, but did not cover disputes collateral to the agreement. Id. at 1296. The court found, therefore, that the issue of contract termination based on application of the contract’s duration clause was arbitrable because it involved interpretation of that contractual provision, whereas the question of termination by a separate agreement was properly to be decided by the court. Freedom and the Union contracted to a broad arbitration clause which applies to “[a]ll problems arising out of grievances or out of the application or interpretation of this Agreement or the performance of any party under it.” We believe that this arbitration clause reflects the parties’ agreement to arbitrate any dispute involving construction of the substantive provisions of the contract, United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 571, 80 S.Ct. 1343, 1364, 4 L.Ed.2d 1403 (1960) (Brennan, J. concurring), and covers the question submitted in this case. The Union asked the arbitrator to determine the extent to which the Agreement’s open-ended duration clause continued the Agreement in effect. By its own phraseology, this question exclusively addressed an issue of contract interpretation and was appropriately referred to the arbitrator for determination. As we find all remaining arguments unpersuasive, the judgment of the district court is Affirmed. . On the record before it the Second Circuit concluded that it was possible that the parties had entered into a collateral agreement to terminate their contract. The court identified correspondence between the parties which indicated an October 31 termination date, and noted each party's claim during state court proceedings that the contract was terminated on that date. Freedom concedes that it did not argue below that there was a collateral agreement between it and the Union to terminate the contract.

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"?

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. W. MAYS, INC., Respondent. No. 76, Docket 29497. United States Court of Appeals Second Circuit. Argued Nov. 12, 1965. Decided March 2, 1966. Leonard M. Wagman, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, NLRB, on the brief), for petitioner. Seymour W. Miller, New York City (Miller & Seeger, New York City, on the brief), for respondent. Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: The National Labor Relations Board petitions under § 10(e), 29 U.S.C. § 160(e), for enforcement of its order against respondent Mays. The Board found that Mays violated § 8(a) (1) of the National Labor Relations Act by threatening employees with loss of employment if they engaged in union activities, and by offering an employee inducements to abandon union activity, and that the company violated § 8(a) (3) and (1) of the Act through discriminatory discharges and transfers. It ordered Mays to cease and desist from the violations, with provisions for reinstatement and back pay, and the usual record keeping and notice posting. 147 NLRB No. 104. We hold the findings supported by substantial evidence on the record as a whole except as to employee Richardson, modify to strike the portion of the order referring to her, and the reference to “any other labor organization,” and as modified order enforcement of the Board’s order. Early in February 1963, the union began organizing respondent’s store and warehouse in Brooklyn, New York. Union meetings were attended by a supervisor, Wolf, who expressed an interest in unionization of his class of employees. When the union did not show any interest in Wolf, he aligned himself with the company. He had been accompanied to the. meeting by four employees, Filosa, Reid, Cohen, and Cecero. Within three days after the meeting, all four were discharged or laid off. Additionally, one employee, Segarra, recently rehired, was fired one-half hour after being seen handing out union cards, and after the warehouse manager, Kromash, pointed him out and said, “That’s the kid that’s handing out the union cards.” Later, Cohen, while engaged in picketing, entered the store and was told by Katz, the General Manager, “I had a lot of promise for you * * * We had a lot of things in store for you,” and that if he would abandon the picket line, “We will see about taking you back in a better position.” Buckley, an employee at respondent’s Massapequa store, signed a union card, distributed others, and then met with union officials, where he was seen by a company salesman, brother-in-law of the board chairman, who reported the incident to supervisory personnel. The employee was discharged that night, and was told that his work was all right, “but you have been seen and reported talking to the union men.” After signing a union card and picketing, employee Richardson was transferred to another department, and promptly said, “I quit,” and submitted her resignation. She believed the transfer was designed to curb union activity. After putting up union posters, and joining a picket line, another employee, Portas, was told her work was unsatisfactory, and that she was being transferred. She refused, and eventually was discharged. After two employees at the Massape-qua store signed union cards, one consulted Military, a minor supervisor, who advised them not to let his superior, Pi-cone, see them, and they tore up the cards. The Board’s order affirmatively requires reinstatement, with back pay except for Richardson, of all employees discharged or transferred, and includes cease and desist provisions. The first issue is the discharge of the four employees who attended the meeting. All worked in the warehouse receiving department, managed by Kro-mash, with, in order of authority, Tab-roff, Rosenberg, and Wolf under him. Wolf was the one who attended the meeting with the four, and who was claimed to have reported the meeting to his superiors. The NLRB case for a discriminatory discharge of these four employees depends to a high degree on an alleged admission by Tabroff to Segarra. Segarra testified that he noticed while standing near a window with Tabroff that Reid, Cohen, Filosa, and others were passing out union cards. He said, “There is Benny [Filosa],” and Tabroff said, “Yes.” Segarra asked why Filosa had been fired, and Tabroff, pointing down to them, said, “For that.” Segarra asked, “Isn’t it against the law to fire people for joining the union?,” and Tabroff replied, “Yes, but we fired them for a different reason.” (The Trial Examiner concluded he meant “him,” not “them.”) The NLRB case on this issue rests, first, on the timing of the discharges; second, on the knowledge by Kromash, who did the firing, that they had attended the meeting, that is, on a finding that Wolf reported, and that the report reached Kromash prior to the discharges; third, on the Tabroff admission (specifically as to Filosa, and by extension to the others); and fourth, on the statement by Katz to Cohen, also alleged to be an § 8(a) (1) violation, to the effect that the management had high hopes for him. Timing alone is an inadequate support; and as to the second element of the NLRB case, the Trial Examiner’s finding that Wolf reported, and that Kromash knew of the meeting, does not appear to arise out of any evidence except disbelief of Kromash and Wolf, and belief in Segarra’s testimony concerning the Tabroff admission. The Katz-Cohen conversation may show attempted inducement to abandon union activities, but it does not argue forcefully for a § 8(a) (3) violation, except incidentally to show hostility to the union. Respondent, moreover, forcefully contends that there are legitimate reasons for the discharge. With respect to Fil-osa, it appears that the third floor, his responsibility, had been found “a shambles” on previous occasions, that Katz found this condition again, and Kromash discharged Filosa. Reid was chronically absent, and was warned that he would be fired if he missed another Saturday; before the next Saturday, after missing a Monday night (to attend the meeting), he was fired by Kromash, who was not a party to the previous warning, and refused to be bound by it. Cohen was allegedly fired for loitering after receiving permission to leave early for illness and Cecero was laid off for lack of work without any replacement being obtained. Although the Examiner might have been justified in crediting Reid’s testimony that he never agreed to work on the Monday night of the meeting and could have concluded that Cohen was fired for his union actiyity, the Tabroff admission is crucial to the NLRB case. See NLRB v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (2 Cir. 1962). Respondent claims that the admission is incredible, that Sagarra was a known union supporter, and that Tabroff never would have made such an admission, even in an attempt to persuade Segarra to abandon his pro-union position. (The admission is the basis of an § 8(a) (1) violation.) But such a motive, to dissuade Segarra from pro-union views, could well explain the admission. Respondent attacks certain underlying facts of the admission: it was too dark to see who was below, or what they were doing; testimony by union sympathizers indicates union cards were not passed out at the time of the admission, and those supposedly seen were not passing out handbills either; and it appears that Cohen, one of those whom Segarra says he and Tabroff observed, may have been absent then; there was no evidence to show that Tabroff knew or had any reason to know why Kromash fired Filosa and the other union men. This turns on credibility and cannot be said to be unsupported by the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Tabroff admission, central to the whole issue, is not without doubt, but the Trial Examiner gave convincing reasons, based on the corroborating testimony of the discharges, to support his crediting Segarra and discrediting or ignoring any impeaching testimony, even though he did not rely on Segarra’s demeanor. And the Board agreed. We find no reversible error here. The next issue is the discharge of Se-garra. This, again, depends in part on a statement which Segarra testified was made by management (Kromash), indicating motive of the company. Respondent again points to factors making this testimony less credible: that Kromash would have no reason to say what he did in Segarra’s hearing, and would not be likely to associate with him; that the firing was amicable; that Segarra admitted lying previously, to get time off. The Trial Examiner said he relied on the fact that Segarra’s story was not likely invented, since all the witnesses included in it were most unfavorable, and on the fact that Segarra was likely to be honest in his testimony, since he admitted he was a liar. While neither of these reasons is very impressive, the testimony is not necessarily incredible. Furthermore, the Trial Examiner did not credit the reasons offered by the company for the discharge of these employees. As for Segarra, the Trial Em-aminer noted that he was given a $5 “merit increase” at a time his work was alleged to have been unsatisfactory; respondent’s claim that this increase resulted solely from the arrest of a thief in the store caught by Segarra, is not any more believable. The Examiner found that Segarra was not a model employee, but was tolerated, and only fired after his union activities became known. The next issue is the discharge of Buckley. In this issue, like the other discharges, a statement of company intent is central testimony. Here it is the statement by Serpenti, a personnel officer, to Buckley, that he was being fired not for unsatisfactory work, but because he had “been seen and reported talking to the union men.” Respondent claims this testimony was greeted by laughter, but it was credited, and is not inherently improbable. Furthermore, as the Examiner noted, the reason offered for the discharge, that his duties were over, conflicts with the testimony that he was kept on three more weeks after these duties ended, and with testimony that other jobs were assigned him. The next issue is the transfer of Richardson and Portas, shortly after each picketed. The Trial Examiner credited Richardson when she testified that her shortcomings in her job were not of recent development, and disbelieved Kro-mash’s statement that the transfer was for reasons of recent deterioration in her work. Concerning Portas, the Trial Examiner concluded that Kromash decided on her transfer after rather than before she engaged in picketing, of which Kromash was aware. Kromash had denied all. Portas’ record was excellent. She had just returned from a one-month vacation. Kromash testified that he first noticed a change in her work the day she returned, not the day after she picketed. Even this seems to be a suspect ground for transfer in view of her excellent record. And Kromash vacillated in determining when he first noticed a change in her work. The Trial Examiner said that Kromash was nervous in testifying. With respect to the discharges, the Trial Examiner credited the Tabroff admission, and this supports a finding that Kromash had knowledge of the union meeting. While it is true that admissions made by management to known union sympathizers are “suspect,” as respondent says, they are not wholly unbelievable. A more troublesome issue is presented concerning the reinstatement of Richardson, who quit immediately after being told of her transfer. The Trial Examiner and Board concluded that this amounted to a constructive discharge, in violation of § 8(a) (3) because discriminatory. An employee faced with a discriminatory transfer even to a more desirable job need not file with the Board, and may, like Portas, resist and be discharged. South Bay Daily Breeze, 130 NLRB 61, enforced as modified NLRB v. Southern California Newspapers, 299 F.2d 677 (9 Cir. 1962). The discharge violates § 8(a) (3) if a significant motive for the transfer was union activity. Richardson testified to the effect that she quit because she was resisting the company’s efforts to transfer her for union activity. The order, insofar as it reinstates her, may not be enforced. Her own suspicion of company intent is not enough. She should have resisted and been discharged. Since any violation requires a finding of company intent, the better policy is to require that the employee await a discharge, if any, especially where, as here, the Richardson incident preceded the Portas discharge, and Richardson thus could not reasonably predict discharge. The next issue is the § 8(a) (1) violations. The first example is said to be the Tabroff admission. Certainly a description of past conduct can also be a threat of future action. NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6 Cir. 1963). The limits on the review of the Board’s inferences from facts appear to be the same as on the review of the facts, NLRB v. Marcus Trucking Co., 286 F.2d 583 (2 Cir. 1961); NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 107, 62 S.Ct. 960, 86 L.Ed. 1305 (1942). If the inferences may reasonably be drawn, we may not substitute other inferences even though equally reasonable. The second and third examples said to be violations of § 8(a) (1) are more clearly violations. They are the Katz-Cohen conversation and the warning or advice by Military that discharge would result if Picone, Receiving Manager, saw the union cards. The Katz-Cohen conversation raises only questions of credibility. The Military advice raises two issues. First, it does not appear that a court has passed on the question whether advice by a minor supervisor that his supervisor would take action can be an § 8(a) (1) violation. The Examiner found that the necessary and foreseeable effect of the advice was to make the employee feel he was likely to be discharged for engaging in union activities. Perhaps a critical factor would be the manner in which the advice is given; as to this the Examiner is in a better position than the Board or a reviewing court. Second, there is a dispute concerning Military’s status. Unlike the employees, Military did not punch a time-clock, was salaried, and had about 50% higher rate of pay. His duties included requesting extra help, and assigning and recommending overtime, and instructing employees concerning work assignments. This is enough to make Military a supervisor. Respondent claims that the Examiner’s questioning of witnesses and reopening of the case amount to bias. In A. O. Smith Corp. v. NLRB, 343 F.2d 103 (7 Cir. 1965), on which respondent relies, the court appears to have focussed especially on the use of intemperate or emotion-charged words. In any case, the court concluded that the bias, as demonstrated in the intermediate report, was not such as to require a new hearing. No such bias was shown here, in any degree. Respondent claims the order is too broad, relying on Communications Workers of America, AFL-CIO v. NLRB, 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896, where the order required the unions to cease and desist restraining or coercing employees of a certain firm or “any other employer,” and the Court deleted “or any other employer” because the unions’ activities which led to the order had been directed exclusively at the one employer. We agree that the order here is likewise too broad. Here acts directed against other unions are not shown, and the order should be correspondingly narrow. The order is modified by eliminating in parts 1(a) and (c) of the order the words “or in any other labor organization” and from Appendix A attached thereto the name Frances Richardson, and as modified is ordered enforced. . “Sec. 8(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; ls) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

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"?

LOCAL 1477 UNITED TRANSPORTATION UNION and Lodge 666 United Transportation Union, Plaintiffs-Appellees, v. George P. BAKER et al., Defendants-Appellants. No. 72-1478. United States Court of Appeals, Sixth Circuit. Argued Nov. 27, 1972. Decided June 21, 1973. Patrick E. Hackett, Detroit, Mich., for def endants-appellants. Ernest Goodman, Detroit, Mich., for plaintiffs-appellees; Goodman, Eden, Millender, Goodman & Bedrosian, Ernest Goodman, Detroit, Mich., on brief. Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and HASTIE, Senior Circuit Judge. The Honorable William H. Hastie, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation. HASTIE, Circuit Judge. The trustees of Penn Central Transportation Co., a common carrier by railroad, have taken this appeal from an order of the District Court for the Eastern District of Michigan, Southern Division, that permanently enjoined the railroad from disciplining employees who elect to absent themselves from work frequently without justifying reason, so long as they shall work at least one day a month and there are sufficient employees available on a reserve or part-time list to fill all work assignments. The district court prefaced its injunction with a jurisdictional finding that the matter in controversy was justicia-ble as a “major dispute” within the in-tendment of the Railway Labor Act, 45 U.S.C. ch. 8. The correctness of that jurisdictional finding and the judicial action to which it led are disputed on this appeal. The rights and obligations of the railroad and its employees who are involved in this case are controlled by a collective bargaining agreement between the railroad and the plaintiff unions and by mutually recognized “Railroad Rules for Conducting Transportation”. Section 61 of Article 26 of the firemen’s labor contract and Rule 26 of the trainmen’s contract both specify that employees “may have 30 days layoff on receipt of permission from proper official without written leave of absence”. General Rule T of the Rules for Conducting Transportation requires that “[ejmployees must report for duty at the required time” and that “[n]o employee will be allowed to absent himself from duty without proper authority . . ..” There is also a general provision that the “service demands the faithful . . . discharge of duty”. Employees are classified as “regular” or “extra”. For a regular employee the railroad guarantees employment on a scheduled shift for a five day work week. Employees on the “extra” list are guaranteed the opportunity to work four out of every seven working days. General Rule 8 provides that “[rjegular men will be permitted to lay off when extra men are available”. Section 35 of the firemen’s contract provides that “extra” employees who lay off when they are called shall be moved to the bottom of the list of available “extras”. The district court gave the parties a full hearing at which it appeared that over the years numbers of men, regular and extra, had absented themselves without justifying reason with such frequency that they put in only a small fraction of the normal work time guaranteed them. It also appeared that for years the railroad tolerated this, though from time to time it had complained to the union of improper and excessive “marking off” (notifying a supervisor that the employee does not choose to work). However, in recent years, the issue has become sharply drawn, with the employer insisting that the contract and rules contemplate and require work with some degree of regularity subject to absence with permission and for good cause, while the union contends that an employee has the right of lay off at will without penalty, so long as he shall work at least one day in thirty and an “extra” is available to take his place. This suit was filed when the railroad threatened to discipline particular employees who were said to have absented themselves very frequently without justification. The answer to the jurisdictional question in this case depends upon the application of a recognized distinction that governs the administration of the Railway Labor Act. Under that Act, the courts have classified disputes as either “major” or “minor”. In the leading case of Elgin J. & E. Ry. v. Burley, 1945, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886, the Supreme Court described major disputes as those “over the formation of collective agreements or efforts to secure them. They arise where there is no agreement or where it is sought to change the terms of one ..” The Court then contrasted those minor disputes “in which no effort is made to bring about a formal change in terms or create a new [agreement, but rather the] dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case”. Recognizing that distinction, this court has said: “A ‘major dispute’, as that phrase is known in the parlance of the Railway Labor Act, results when there is a disagreement in the bargaining process for a new contract. A ‘minor’ dispute is a controversy over the meaning of an existing collective bargaining agreement in a particular fact situation.” Brotherhood of Railway Trainmen v. New York Central R. R., 6th Cir. 1957, 246 P.2d 114, 118, cert. denied, 355 U.S. 877, 78 S.Ct. 140, 2 L.Ed. 2d 107. If a dispute is minor and the parties are unable to resolve it through negotiation or prescribed grievance procedures, the National Railroad Adjustment Board then has primary and exclusive jurisdiction under section 3 of the Railway Labor Act, 45 U.S.C. § 153, to interpret the agreement of the parties and make an appropriate award. Order of Rail Conductors v. Pitney, 1945, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Brotherhood of R.R. Trainmen v. Chicago River and Indiana R. Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; and to the same effect see very recent decisions of courts of appeals in Baker v. United Transportation Union, AFL-CIO, 3d Cir. 1971, 455 F.2d 149, 154; Brotherhood of Locomotive Firemen and Enginemen v. Southern Pacific Company, 5th Cir. 1971, 447 F.2d 1127, 1132; United Transportation Union v. Burlington Northern, Inc., 8th Cir. 1972, 458 F.2d 354, 356. Thus generally stated, these concepts are settled law with which no party to this appeal takes issue. However, difficulty arises when, as in this case, one party views the controversy as a dispute over the proper interpretation of the existing contract and agreed rules, while the other charges its adversary with an attempt to impose unilaterally a new requirement that changes the existing agreement. Confronted by such opposing characterization of particular disputes, the courts of appeals have consistently ruled that if the disputed action of one of the parties can “arguably” be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not “obviously insubstantial”, the controversy is within the exclusive province of the National Railroad Adjustment Board. Railway Express Agency v. Brotherhood of Railway, Airline and Steamship Clerks, 5th Cir. 1971, 459 F.2d 226, 231, cert. denied 409 U.S. 892, 93 S.Ct. 115, 34 L.Ed.2d 149 (“arguable”); Switchmen’s Union v. Southern Pacific Co., 9th Cir. 1968, 398 F.2d 443, 447 (“arguably predicated on the terms of the agreement”); Airline Stewards Assn. v. Caribbean Atlantic Airlines, Inc., 1st Cir. 1969, 412 F.2d 289, 291 (not “obviously insubstantial”); Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen, 1967, 127 U.S.App.D.C. 371, 384 F.2d 323, 327 (not “obviously insubstantial”). In our view, the concept expressed in these formulations is sound. We apply it to this case. In their briefs and orally the opposing parties have argued at length the meaning, interrelation and proper interpretation of the provisions of their labor contracts and related rules, from which we have quoted early in this opinion. The unions argue that the provision relating the privilege of lay off to the availability of extra men implies an absolute right of lay off so long as a qualified extra employee is available as a replacement. The railroad contends that the work time it agrees to provide is inferentially the normal work week and that the rules requiring “faithful discharge of duty” and prohibiting absence from duty “without proper authority” authorize it to discipline employees who “mark off” with great frequency without justifying excuse. The parties also argue the historic facts concerning the extensiveness of marking off over the years and the railroad’s acquiescence or objection in particular cases. Without elaboration of these arguments, we think it clear that this controversy presents a minor dispute. The formal documents, which both parties view as controlling, do not unambiguously answer the presently disputed question. The competing inferences which the parties draw from the documents and from past practice thereunder are “arguable” and cannot fairly be characterized as clearly unreasonable or “obviously insubstantial”. This then is the very type of dispute that lies within the special competence of the National Railroad Adjustment Board and was intended by Congress to be decided, in first instance at least, by that special tribunal rather than by a court. It follows that in this case the district. court has exceeded its jurisdiction by undertaking to interpret a labor contract and related rules, the impact of which upon the matter in dispute is unclear, and then permanently enjoining the railroad from taking any disciplinary action inconsistent with the court’s interpretation of the controlling agreements. The judgment is reversed. . This holding is fully consistent with our recent decision in United Transportation Union, Local 63E v. Penn Central Co., 6th Cir. 1971, 443 F.2d 131, 136, cert. denied 404 U.S. 938, 92 S.Ct. 271, 30 L.Ed.2d 251, where we ruled that an entirely different type of controversy over a unilateral change of working conditions was not “a mere dispute over contract interpretation”. In that case we approved a temporary injunction to maintain the status quo pending resort to the Mediation Board.

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

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

Charles COLLINS and James Woody McNeely, Appellees, v. Tommy ROBINSON, Sheriff of Pulaski County, Arkansas, Individually and in his Official Capacity, and Pulaski County, Arkansas, Appellants. No. 83-2400. United States Court of Appeals, Eighth Circuit. Submitted May 17, 1984. Decided June 4, 1984. Henry & Duckett, Stephen L. Curry, Little Rock, Ark., for appellants. Mays & Crutcher, P.A., Richard L. Mays, Little Rock, Ark., for appellees. Before HEANEY, McMILLIAN and JOHN R. GIBSON, Circuit Judges. PER CURIAM. The defendant, Sheriff Tommy Robinson, appeals from the district court judgment in favor of James Woody McNeely and Charles Collins on their race discrimination claims brought under Title VII, 42 U.S.C. §§ 2000e et seq., and in favor of Collins on his action brought under 42 U.S.C. § 1983 for violations of his first amendment right to free speech and his fourteenth amendment right to due process. See Collins v. Robinson, 568 F.Supp. 1464 (E.D.Ark.1983). We affirm. Sheriff Robinson fired Collins after he wrote a memorandum to his superiors describing the inappropriate conduct of a superior officer. On the evening of November 10, 1981, Collins, who is black, was the ranking officer at the Pulaski County Jail. While at a meeting of the local legislative body, the sheriff heard a rumor that the personnel at the jail were planning a walkout. He dispatched his second in command, Major Mark Bowman, to the jail to investigate. When Bowman arrived at the jail, he threatened and cursed Collins in front of other jail personnel. Collins submitted a memorandum to his superiors protesting the incident. The memorandum was also widely distributed among jail personnel, although the district court specifically found Collins was not responsible for distribution of the memorandum outside the chain of command. Sheriff Robinson subsequently fired Collins without a pretermination hearing. Collins filed a grievance with the Pulaski County Grievance Board. After a hearing, the Board recommended Collins be given reinstatement with full back pay and an apology. Sheriff Robinson refused the Board’s recommendation. Collins filed an EEOC charge and, after receiving a right-to-sue letter, he commenced this action on May 17, 1982. McNeely joined the sheriff’s department in 1977. He left the department for a short time to work as an investigator for the Alcoholic Beverage Control Board, but returned in September, 1980. In June, 1981, McNeely’s platoon leader recommended McNeely and two white deputies for promotion to corporal. In April, 1982, McNeely was the only black on a list of five persons recommended for such a promotion. A group of superiors interviewed each of the five candidates and ranked them in the recommended order of promotion. Although McNeely was ranked third, the white candidate who had been ranked fifth was promoted ahead of him. McNeely filed an EEOC charge on August 10, 1982. Thereafter, he received a right-to-sue letter and the district court gave him permission to intervene in Collins’ suit on April 7, 1983. The district court held that Collins’ memorandum to his superiors was speech protected by the first amendment. The court then submitted to the jury the question of whether the memorandum was a substantial or motivating factor in Collins’ discharge. The jury found in the affirmative and awarded Collins $5,927 in damages, the back pay Collins lost between his discharge and the verdict date. The court also held Collins’ discharge without a pretermination hearing violated due process. Finally, the district court held that Collins had established a prima facie case of race discrimination and had shown Robinson’s articulated reasons for discharging him were pretextual, thus proving his Title VII claim. The court also found Robinson’s articulated reasons for not promoting McNeely were pretextual. The court ordered McNeely promoted and paid damages consisting of the difference between a deputy’s pay and a corporal’s pay from May 15, 1982. On appeal, Robinson contends: (1) that Collins’ memorandum is not protected speech; (2) that Collins had no protected property interest in continued employment; (3) that both Collins and McNeely failed to establish their discrimination claims; and (4) that in the event this Court reverses the district court’s determination on the merits, the award of attorneys’ fees should also be set aside. After reviewing the decision below, the record, and the briefs on appeal, we are convinced the court committed no error of law or fact. We therefore affirm on the basis of the well-reasoned opinion of the district court. See 8th Cir.R. 14.

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

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

UNITED STATES of America v. Louis BERTUCCI, also known as “Toots”, Glenn Doherty, Morris Abrams, William McCabe, also known as William G. Smith, and John Zoroiwchak, also known as John Zuroick, Appellants in Nos. 14351, 14345, 14352, 14353, 14354, respectively. Nos. 14345, 14351-14354. United States Court of Appeals Third Circuit. Argued March 17, 1964. Decided June 16, 1964. Certiorari Denied Oct. 12, 1964. See 85 S.Ct. 75. Raymond W. Bergan, Washington, D. C. (Edward Davis, Philadelphia, Pa., Williams & Stein, Washington, D. C., on the brief), for appellants. Harry T. Alexander, Dept. of Justice, Crim. Div., Washington, D. C. (Drew J. T. O’Keefe, U. S. Atty., Edmund E. DePaul, Asst. U. S. Atty., Philadelphia, Pa., Shellie F. Bowers, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee. Before McLAUGHLIN, GANEY. and SMITH, Circuit Judges. McLAUGHLIN, Circuit Judge. Appellants, with Jerry Barsuglia, were indicted and tried for conspiracy to commit offenses in violation of Sections 101 (a) (1), 101(a) (2), 101(a) (5) and 610 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. §§ 411(a) (1), 411(a) (2), 411(a) (5) and 530 and of sixteen related substantive offenses in violation of Section 530. Rita Maneini was named in the indictment as an unindicted co-conspirator. At the conclusion of the trial, on motion of the Government, the indictment against Barsuglia was dismissed. All of the appellants were found guilty on Count One, the conspiracy count. On the substantive counts Bertucci was found guilty on Counts Two and Six, involving Flounders and Axler; not guilty on Counts Seven and Eight, involving Mrs. McKay and Mrs. Corr Doherty was found guilty on Counts Twelve, involving Graf-figna; not guilty on Counts Eleven and Thirteen, involving Campbell and Kropp. Abrams guilty on Count Three, involving Flounders. McCabe guilty on Counts Four, Fourteen, Fifteen and Sixteen, involving Flounders, Kay, Corr, Campbell and Quirk. Zoroiwchak guilty on Count Five, involving Flounders. The offenses of which appellants were convicted involved infringement of the civil rights of the persons noted under Sections 101(a) (1), 101(a) (2) and 101(a) (5) of the said Act and in violation of Section 610 thereof in that they conspired to and did prevent by the use of force and violence those persons from exercising their right to attend and participate in a membership meeting of Transportation, Checkers, Receivers and Clerical Workers Union, Local 161, on February 22, 1962 at 105 Spring Garden Street, Philadelphia, Pennsylvania, and to express their views, etc. upon matters properly before the meeting and of conspiring to so prevent them. Local 161, consisting principally of employees of the Philadelphia Transportation Company (PTC), was organized in 1955 and is affiliated with the Teamsters Union. It has always been tightly controlled by Lawrence J. Mullen as Business Manager and Secretary-Treasurer. Until 1960, he and the Executive Board appointed the Local’s officers and trustees. In 1960 there was an election of officers at which Mullen and his group were unopposed. Mullen alone has always possessed the power to name the union’s shop stewards. Sometime prior to August 1961 some of the members, including a majority of those whose rights were found to have been infringed by appellants, sought to obtain changes in the union which would give the membership generally a voice in its affairs. Those efforts were unsuccessful in August and September of that year. In October they helped in inducing Mullen to call the first meeting of the membership to be held in a year. The proposal to have the stewards elected rather than appointed got nowhere at that meeting. The President of the Local as chairman and Mullen who took over as chairman, refused to listen to it; the latter peremptorily adjourned the meeting. The minority, by then called Sweep, went into the district court seeking protection of the members’ rights, inter alia, that regular meetings be held and that the court designate a meeting at which the supposedly proposed PTC contract could be passed upon. Prior to any action by the court, Mullen negotiated a collective bargaining agreement with PTC on January 23, 1962 which the latter considered “a bona fide contract. * * * As of February 1st.” Mullen then sent out a letter calling for a vote by mail on a proposed collective bargaining agreement with PTC with the ballots to be counted February 2, 1962. The letter fixed February 22, 1962 for a membership meeting; it stated “All explanations concerning the procedures will be made. All questions will be answered.” The district court on February 1, 1962, by agreement of the parties, fixed general membership meetings to be held February 22 and 24, 1962 with ballots cast by mail to be received not later than February 28, 1962. All of the above brings us to the meeting of February 22, 1962. The five appellants were present in and about the meeting hall. Bertucci and Doherty were employees of the Local. Six days before the meeting Bertucci’s salary had been raised from $95 a week to $140 and Do-herty’s from $60 to $100 a week. Mc-Cabe, Abrams and Zoroiwchak were shown to be members of the Teamsters Local 107, the first two were salaried employees of same at $150 per week apiece. There was trial testimony by Edmund Flounders, a member of the Local and of Sweep, that on February 22, 1962, the date of the meeting his dues were paid up and that he sought admission to the meeting from appellant Bertucci who was at a table just inside the entrance door of the hall. He said that he showed his union card to Bertucci “ * * * and he [Bertucci] said ‘Uh-uh’ ”. As the witness admitted later, Bertucci would not allow him to enter the hall. The witness stated that he said, “I don’t understand why * * * ”, continuing, he testified that “ * * * I don’t know whether I was shoved into Toots [Bertucci] or whether I took the first punch at Toots or not but a melee followed.” At that point the Government pleaded surprise to the testimony “because it is at variance with prior statements given to the Government by the witness.” The motion to cross-examine Flounders was granted. The witness was asked, “ * * '* did you ever mention taking the first punch to Mr. Mahlon Price of the F.B.I.?” A. “No, I did not.” Q. “Did you ever mention it at any time during the testimony under oath before Judge Luongo?” A. “I don’t remember.” The witness was shown his testimony before Judge Lu-ongo where he had testified that Bertucci had said to him, “Look, God damn it, if you are looking for trouble you are going to get it.” Regarding this he stated “If it is in the record I did.” He was also shown the Grand Jury notes where he had made the same statement and said, “I said that.” He testified that he was knocked down and slugged, that “somebody hit me with a pipe on this shoulder and somebody hit me with a baseball bat over here * * * I was unconscious”. He identified appellants McCabe and Abrams as two of the men who hit him. There was testimony by Andrew J. Quirk that Bertucci, McCabe and another had refused Flounders admission; that Flounders came out of the door backwards ; that a punch missed him and hit someone else; that Flounders started to run towards the street and that McCabe “a big man in a sweater was chasing him”; that McCabe hit Flounders and knocked him down; that Flounders was picked up, his nose and mouth all bloody, put into a car and taken to the hospital. Mr. Quirk said he did not see Flounders punch anyone at the door. Daniel W. Haag testified he saw Flounders while the latter was trying to obtain admission. He thought he was talking to Barsuglia, “ * * * after that I heard the commotion and I saw him coming back toward me.” He did not see Flounders do anything. Mrs. McKay testified that prior to the meeting Bertucci was behind a desk and gave Mrs. McKay and the people with her, including Mrs. Corr, attendance slips to fill in with names, addresses and telephone numbers; that Doherty and another man later advised them that they had to go “ * * * he had orders * * * they had to leave”; that McCabe came up to them and told a Mr. Campbell who was in the group that it was none of his business [why Mrs. McKay and Mrs. Corr had to leave] and for Campbell to mind his business “or he’d leave too”. Mrs. McKay said she left because she “was afraid to stay longer”. Mrs. Corr, as a witness, told how Rita Mancini a member of the Local who sits with the Board had pointed out Mrs. McKay and herself to appellants Doherty and McCabe who advised those people they had to leave the hall. Mrs. Corr left because she was afraid. Mr. Campbell corroborated the two women to a large extent. He was stopped by Doherty who told him he would have to leave because he had been expelled or suspended. He heard Doherty say the same thing to Mrs. McKay and Mrs. Corr. _ _ ., . , T . , Nathan Axler, a Local member, on „ , i x- ^ xt tu. oo j the day and time of the February 22nd ,. , . ,. , ,, x meeting observed the hall entrance ., , , , „ . . „ ,. , blocked by Bertucci, Barsuglia and Rita Mancmi seated at a table. He saw and heard Bertucci holler at him, Messrs. Donnelly and Braubitz that they had been suspended and weren t allowed to attend the meeting He saw Haag whom he had brought to the hall reeling back holding his mouth * * - he was bleeding from the mouth * * * he has a heart condition, * * I grabbed him, pushed him against the wall of the building and stood over him to prevent him being hit again.” He said Mr. Barsuglia said to me that I ought to leave before somebody got hurt and Mr. Bertucci was hollering at me and he said, 111 get you, you s.o.b. * * *’ He used the full words He saw Flounders on the ground, bleeding from the face and head. He was being helped to his feet by Mr. Donnelly and somebody else, I don’t remember who. Doímelly, a Local member, on the 22nd went to the hall doorway where Bertucci was standing. The latter told him, “You are not allowed in * * * you were expelled.” Donnelly told Bertucci he had not been expelled. Bertucci replied, “Well, you were told you are not getting in.” Donnelly saw Flounders come out of the hall backwards with his hands extended over his head. He saw men following Flounders “ * * * and Flounders went down against this parked car. * * * A member of the Labor Squad came down and this one fellow was leaning over a car like hitting — to hit Flounders •• * The officer pushed this man back. He said, That s enough, Bill. ’ There was most substantial further testimony by witnesses Martone, Coughlin, Kropp, Maier, Braubitz along the same general lines. Police Officer Gordon said that he and other officers were patrolling the meeting area. Some 15-20 feet from the entrance door they saw Abrams, McCabe, Zoroiwchak and Joseph McCreel standing on the northeast corner of Hope and Spring Garden Streets in a group of fifteen to twenty men “what we thought were Teamster members * * A group of about . , , _ „ x xi. ™ ■, six to eight men came over to them and -j j . sai(i they had been denied admission to ,, , ,. „ ... ... , , the hall. The officer believed they had Md Mm ftey were Loca] m members. Then officers «heard some type of ^ * * * somebody yelling or ghouti or whatever it was that caused ug ^ Jook aroun(L„ The location of ^ noige wag cloger to the other entrance to the hal]. Th then gaw ,<a of people aU ^ Qr gom6 them waMng) a lot of them runnin towards ^ gcene or ^ ^ of attention. , * * Some of the people running were the game people j had seen on the corner_ * * * William McCabe, Morrig Abrams> John Zoroiwchak and others * * * j believe : saw Bertucci.” Gor(jon went to the scene, saw a man lying on the ground. He observed McCabe and Abrams c¡ose him and pushed ^bem hack. After that Gordon requested rad;0 beip an(j “probably at least six to eight police vehicles of various types” responded. Gordon and his partner saw a group of Teamsters including McCabe, Abrams and Zoroiwchak walking toward Second and Spring Garden and ordered them to walk back towards Hope Street and Spring Garden. Gordon put in another call for assistance. The group of Teamsters reached their parking lot at Hope and Spring Garden. “ * * * they all hollered nobody can go on their parking lot because it was theirs.” The police ordered the Teamsters group from the parking lot and they went into the union ban. Gordon recalled that just about 8 ;00 P,M, the evening of the meet¿ng 0f February 22nd, he saw Bertucci -n tbe doorway 0f the union auditorium. Appellants’ main point, argued at considerable length, is that the district court erred in refusing to review the Grand Jury testimony of Government witnesses and to make such testimony available if inconsistencies appeared. It will be remembered that the Government pleaded surprise to the trial evidence of the witness Flounders as inconsistent with his statements to the Grand Jury. All of Flounders Grand Jury testimony was at that time given the defense. What the defense then did was make a motion for the trial court “ * * * to examine in camera the Grand Jury testimony of all persons who testified for the Government and if inconsistencies are found to turn them over to the defense to utilize in cross-examination.” The trial judge ruled the all inclusive request was improper and denied it. He expressly stated that, as with the Flounders’ testimony, he would have turned over to the defense the Grand Jury testimony of any other trial witness where the Government pleaded surprise. Appellants cite United States v. Giampa, 290 F.2d 83, 85 (2 Cir.1961) as the legal basis for their request. With all respect, we think that decision misconceives the problem and fails in its attempted resolution thereof. The Supreme Court in this kind of a situation tells us in unmistakable language that “The burden * * * is on the defense to show that .‘a particularized need’ exists for the minutes which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 403-404, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). This court in United States v. Boyance, et als, 329 F.2d 372 (1964) faced the exact question which here confronts us and in an opinion by Judge Staley, held: “We think that the rule of the Second Circuit as expressed in United States v. Giampa, supra, equates the right of the defense to an examination of Grand Jury testimony to the right to the production of a Jencks Act statement. The only distinction is that the trial judge must first examine the Grand Jury transcript. But the Supreme Court has expressly held that the rationale of Jencks is not to be applied to Grand Jury testimony, and that the defendant has the burden of establishing a particularized need for such testimony. Pittsburgh Plate Glass Co. v. United States, supra. The question then is whether such a need has been shown in the ease at bar.” As we have seen, the need for supplying the defense with Flounders’ Grand Jury testimony was immediately recognized and taken care of. Appellants would have it that, even assuming their above general request was properly refused, they should have been allowed access to the testimony of Officer Kaczur. The complete answer to this is that in the judgment of the trial court the particularized need of it was not shown. Without question, this was a matter for the discretion of the judge. Our own examination of the trial record gives no indication that the court abused its discretion. St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936 (1894). United States v. Socony-Vacuum Oil Co., Inc., et al., 310 U.S. 150, 233, 60 S.Ct. 811, 84 L.Ed. 1421 (1940). Berry v. United States, 295 F.2d 192, 195 (8 Cir.1961). Appellants argue that the convictions are not supported by sufficient evidence; that judgments of acquittal should have been granted. We have briefly stated a general outline of the Government evidence. While this is by no means all inclusive, the raw material from the record without inference or comment does reveal that the Government presented a case both on the conspiracy and substantive counts against all of the appellants that fully justified its submission to the jury. It was specially stressed on oral argument that the convictions of Abrams and Zoroiwchak are unsupported by evidence. This is not in accord with the record. Flounders testified that he remembered Abrams hitting him at the time, as he said, “When I was knocked out of the Union Hall? * * * Physically knocked out * * * And the only thing I remember before I became unconscious was these men hitting me.” He identified the men who hit him as being present in the court room. He was asked, “Will you point them out by number?” He answered “I remember Bill McCabe hitting me.” He was next asked “Which other?” A. “I remember Abrams.” Q. “Which one is Abrams ?” A. “Next to Toots Bertucei.” Flounders was also asked “With reference to your testimony before the Grand Jury you refer to a person called John Zoroiwchak. Is he in the courtroom?” A. “Yes, he is.” Q. “Will you point him out sir?” A. “The third man from the end.” Officer Kaczur who was outside the union hall at the time of the meeting identified Zoroiwchak as one of a group of men wearing Teamster 107 jackets standing on the corner of Spring Garden and Hope Streets adjacent to the hall. He said there was a big commotion and the men with the 107 insignia ran in the direction of the commotion. He identified McCabe, Abrams and Zoroiwchak as in that group. Kac-zur and his partner Gordon followed and “By the time we broke this what you call mob, got in the center of the circle, there was a man lying on the highway.” That man was Flounders. A half hour later he saw the same group heading for Second and Spring Garden Street. He said “That crowd was going to 2nd and Spring Garden St. and they were going after four men and got out of a car at 2nd and Spring Garden * * Kaczur testified that he and Gordon told the extra police who had come on the scene “on the assist call” to disperse that crowd. The crowd dispersed and stood on the union parking lot. Kaczur and Gordon told the other police to disperse, the crowd out of the area or have them go into the union hall. The crowd “Approximately the crowd that was hanging on the corner, about 15, 20 men. * * * They all went — started going to their cars and they were taking baseball bats out of their cars and they were taking the baseball bats into the union hall.” He specifically saw McCabe, Abrams and Zoroiwchak in that crowd and had seen them prior to that, running between the parked cars. He stated that he saw them enter the union hall with baseball bats. Officer Gordon, who testified even more carefully than Kaczur, substantially corroborated the latter’s evidence. Gordon was the one whom the witness Don-nelly said he saw, pushing a man back who was “ * * * like hitting — to hit Flounders.” Donnelly stated that Gordon said to the man “That’s enough, Bill.” It seems to us, as we have above noted, that with reference to Abrams and Zoroi-wchak, as with the other appellants, the evidence and the fair inferences therefrom called for submission to the jury of the charges remaining against them.' The 17th count of the indictment, a substantive charge against Zoroiwchak involving Mrs. McKay, had been dismissed by the court at the conclusion of the testimony. Appellants would have it that Bertucei and McCabe struck Flounders in self-defense and not with the specific intent of enjoining him from attending the meeting. In addition to Flounders’ trial testimony, the other evidence above noted concerning the episode was before the jury for its consideration. The evidence as a whole, to say the least, was quite sufficient for that body to decide as it did that the expressed purpose of Bertucei and the others involved in the Flounders incident was to attempt to bar him from the meeting and the exercise of his membership rights, which attempt was entirely successful. The effort to suggest that what Bertucei and McCabe did to Flounders was in self-defense was before the jury in connection with all the other evidence as to the episode. Appellants’ requests to charge their requests 20, 21 and 22, dealing with that situation did not accurately present the actual legal and evidential picture. They were rightly denied. 23 and 27 are broader in scope; they suffer from the same basic defects. Request 25 was substantially covered in the enarge. There was no specific objection to the refusal to charge it or 27. Neither one of them is legitimately before us. Appellants contend that their requests for instructions 10 and 24 were erroneously refused. These dealt with advice of counsel to the Local. The trial record does not support those requests. There was no error in refusing request 26 that neither the union nor Mullen was on trial. The charge made it very clear just who was on trial. Request 19, with reference to testimony previously given by Flounders, was erroneous as presented. We find no material error in the court’s handling of the reading of Flounders’ Grand Jury testimony. There was no objection by the defense to the use of the testimony, it participated in that use. The judge specifically told the jury: “Ladies and gentlemen of the jury, by agreement of counsel and you are ordered by the Court that the reading of the testimony of this witness before the Grand Jury is not evidence but is purely for the purpose of refreshing this witness’ recollection of his testimony at that time as to what he said, as to his testimony before the Grand Jury.” There was no objection to this by the defense or suggestion of additional language, etc. United States v. 5 Cases, etc., 179 F.2d 519 (2 Cir.1950). Appellants assert that the conclusion of Judge Luongo in Axler v. Transportation Checkers, etc. (C.A. 30762 E.D.Pa.) should have precluded prosecution. The theory of this seems to be that any concept of wilfulness was eliminated from the case by Judge Luongo, therefore the judgment in Axler bars this action. No real support is produced for that view. What is offered is an involved speculative theory which cannot be accepted as authority for holding that Axler controls this prosecution. The Government was not a party to that civil litigation. The judgment there cannot be res judicata or estoppel of the prosecution in this case “ * * -x- because the parties plaintiff in the two suits are neither the same nor in privity * * * and the nature of the actions are entirely different.” Dranow v. United States, 307 F.2d 545, 557 (3 Cir.1962). And see Sam Fox Publishing Co., Inc. v. United States, 366 U.S. 683, 689-690, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). United States v. Leven-thal, 114 U.S.App.D.C. 340, 316 F.2d 341, 346 (D.C.Cir.1963). The plaintiffs in the Axler suit were concerned with equitable remedies as related to their private rights. Here the Government sought to punish appellants for their public offenses. Even the immediate issues before the court in Axler did not touch the criminal violations of the Local’s members rights under the Labor Management Act upon which this prosecution is based. And the court there specifically stated in the very order upon which appellants rely that it was not passing upon “ * * * whether the individual rights of those persons were violated such as to give them individual causes of action under the Act.” Appellants assert that the statute, 29 U.S.C.A. § 530, under which appellants were convicted, does not govern their conduct as revealed by the record. The further claim is made that if it does, it is unconstitutional. It is said that Section 530 which makes it unlawful for any person through threats or the use of force and violence to attempt to or to in fact interfere with or prevent the exercise of any or all rights that a union member may have under any of the titles of the Act, must be read in some sort of restrictive fashion which would eliminate Bertucci and Doherty as paid employees of the Local and McCabe, Abrams and Zoroiwchak as nonmembers. We have held expressly to the contrary in Tomko v. Hilbert, 3 Cir., 288 F.2d 625, 627 (1961). There we distinguish sharply between the civil enforcement provisions of the bill of rights under Title I of the Act, Section 102, 29 U.S.C.A. § 412 and Title II of the Act which is what governs this appeal. We say 288 F.2d pp. 626-627: “In contrast, Title II, 73 Stat. 524, 29 U.S.C.A. § 431 et seq., which imposes a duty on labor organizations, their officers and employees, and employers to prepare and file certain enumerated reports, can be enforced by a civil action under section 210, 29 U.S.C.A. § 440, against any person. Also, criminal sanctions are contained in section 610, 29 U.S.C.A. § 530, which makes it unlawful for any person through threats or the use of force or violence to attempt to or to in fact interfere with or prevent the exercise of any or all rights that a union member may have under any of the titles of the LMRDA.” We say further 288 F.2d pp. 628-629: “To sum up, the LMRDA gives to the individual union members certain rights which when interfered with by a union, its officials or its agents, can be redressed civilly against them. In addition, there are criminal sanctions imposed against any person who interferes with those rights.” Our above view was followed in United States v. Roganovich, 318 F.2d 167 (7 Cir.1963), cert. den. 375 U.S. 911, 84 S.Ct. 206, 11 L.Ed.2d 150 (1963). There a member at a meeting of his local commented adversely on a report from the Business Representative. One of the defendants, a member of the local, and the other, a member of another local, attacked the speaker. The first one hit him with his fist and staggered him, the other one jumped on his back, brought him to the floor and then kicked him. Neither of the defendants was charged as being in any way connected with any officer or agent of the union. Both were charged merely as individuals. They were indicted, as here, under 29 U.S.C.A. §§ 411(a) (2) and 530, and thereafter convicted. The court held 318 F.2d p. 170: “We cannot agree with defendants’ construction of § 530 as merely the criminal counterpart of, and no broader than, the civil enforcement section, § 412. Section 412 refers to infringement of rights by ariy violation of the subchapter. Section 530 deals only with use or threat ‘of force or violence, to restrain’ etc. “As urged by both parties, we have studied the legislative history of the Act. We conclude that Congress was seeking to preserve for union members the right of free expression secure from interference by force or threat of force from any person, not merely from union agents or those acting on behalf of, or in concert with, them. Thus we must also conclude that § 530 as construed by the Trial Court, contrary to defendants’ assertions, does bear a reasonable relationship to the ends sought to be achieved by Congress.” Appellants idea of the unconstitutionality of the statute is based upon their unwarranted hypothesis that in this appeal criminal sanctions were imposed as a result of “a brawl among members”. The so-called “brawl” was found by the jury to have arisen out of appellants’ conspiracy to prevent and actually preventing persons named in the indictment from exercising their right to attend and participate in the membership meeting of Local 161 and to express their views upon matters properly before the meeting. Similar circumstances were present in Roganovich. Both indictments and trials were directly under Title II of the Act and in accord with its letter and spirit. This appeal has been presented and argued most competently and thoroughly on behalf of appellants. The latter were given a meticulously fair trial in the district court by Judge Bohanon and the jury. There were no trial errors of any substance. The evidence adequately sustains the jury verdicts in all instances. The judgment of the district court will be affirmed. . “§ 411. Bill of rights ; constitution and bylaws of labor organizations “(a) (1) Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. “(2) Freedom of speech and assembly. —Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” * * * # “§ 530. Deprivation of rights by violence ; penalty “It shall be unlawful for any person through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled under the provisions of this chapter. Any person who willfully violates this section shall be fined not more than $1,000 or imprisoned for not more than one year, 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?

JEFFERSON STANDARD LIFE INSURANCE COMPANY, Appellee, v. UNITED STATES of America, Appellant (two cases). JEFFERSON STANDARD LIFE INSURANCE COMPANY, Appellant, v. UNITED STATES of America, Appellee (two cases). Nos. 12326-12329. United States Court of Appeals Fourth Circuit. Argued Oct. 31, 1968. Decided March 13, 1969. Fred W. Peel, Washington, D. C., and Wm. J. Adams, Jr., Greensboro, N. C. (Charles G. Powell, Jr., Adams, Klee-meier, Hagan & Hannah, Greensboro, N. C., and Miller & Chevalier, Washington, D. C., on brief), for Jefferson Standard Life; Ins. Co. Thomas L. Stapleton, Atty., Dept, of Justice (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Gilbert E. Andrews, Attys., Dept, of Justice, and William H. Murdock, U. S. Atty., on brief), for United States. Fred C. Scribner, Jr., Thomas C. Thompson, Jr., Washington, D. C., William C. Smith, Portland, Me., David A. Sutherland, Washington, D. C., and Bruch A. Coggeshall, Portland, Me., Scribner, Hall & Casey, Washington, D. C., and Pierce, Atwood, Scribner, Allen & McKusick, Portland, Me., on brief, for American Life Convention and Life Ins. Assn, of America as amici curiae. Before BRYAN and WINTER, Circuit Judges, and McMILLAN, District Judge. WINTER, Circuit Judge: These appeals present myriad issues as to the application and interpretation of the Life Insurance Company Income Tax Act of 1959. 26 U.S.C.A. § 801 et seq. For the taxable years 1958 and 1959 Jefferson Standard Life Insurance Company (“taxpayer” and sometimes “Jefferson”) filed consolidated returns with its wholly-owned subsidiary Pilot Life Insurance Company (“Pilot”). After assessment and payment of taxes beyond those self-assessed, taxpayer filed timely suits for refund. From judgments favorable in part to taxpayer and favorable in part to the government, these appeals and cross-appeals for the two taxable years have been taken. We defer further statement on the facts until discussion of the issue to which they relate. I The Life Insurance Income Tax Act of 1959 was a comprehensive revision of the scheme of imposing income taxes on life insurance companies, other than mutual life insurance companies. In recognition that a part of the premiums charged, and a part of the income derived from investments, will be repaid to policyholders at a future date, in satisfaction of a contractual obligation, the Act purports to tax only the portions of premium income and investment income which represent profit to the company, available legally for distribution to policyholders or stockholders as dividends, as distinguished from those gains which, under state law, must be set aside to meet the company’s future contractual obligations. “In arriving at taxable investment income and gain from operations, the 1959 Act, consistent with prior law in this regard, recognizes that life insurance companies are required by law to maintain policyholder reserves to meet future claims, that they normally add to these reserves a large portion of their investment income and that these annual reserve increments should not be subjected to tax.” United States v. Atlas Life Ins. Co., 381 U.S. 233, 235-236, 85 S.Ct. 1379, 1381, 14 L.Ed.2d 358 (1965). To accomplish this objective, “[t]he Act establishes a statutory framework directed to the measurement of life insurance company total income on an annual basis for use in the application of an annual tax.” Franklin Life Ins. Co. v. United States, 399 F.2d 757, 758 (7 Cir. 1968), cert den., 393 U.S. 1118, 89 S.Ct. 989, 22 L.Ed.2d 123 (March 3, 1969). The determination of the final tax base, to which ordinary corporate rates of taxation are applied, involves a series of multiple computations which may be referred to as “phases.” Phase I involves the measurement and determination of taxable investment income. § 804. The computations incident to Phase I are, in the main, devoted to dividing up the investment income for the taxable year between a nontaxable “policyholders’ share,” deemed necessary for policyholder reserve obligations, and a taxable “life insurance company’s share.” The division is made up by dividing the company’s “investment yield,” by the assets of the company to produce an earnings rate. This rate, which is subject to a slight downward adjustment if the earnings rates in prior years are lower, is then multiplied by a figure representing the company’s adjusted life insurance reserves for policyholders. The product of the adjusted earnings rate and adjusted reserves equals the exclusion from taxes attributable to life insurance reserves. The exclusion so obtained is then increased by additional sums attributable to special pension plan requirements and certain interest payments. The final total exclusion figure is referred to as total “policy and other contract liability requirements.” § 805. The ratio of policy and other contract liability requirements to total investment yield constitutes the ratio upon which each and every item of investment yield is to be divided between the excludable policyholders’ share and the company’s share. The company’s share constitutes the Phase I tax base. The Phase II computation is directed to determining gain or loss from operations, and is intended to reflect the insurance company’s income from all sources less certain specified deductions. These sources include premium or underwriting income. Premium income results when the price charged for the policy is in excess of the cost to the insurance company for providing the coverage, and such cost may be less than estimated, because actual mortality may turn out to be less than tabular mortality, and expenses incident to the sale and servicing of the policies may be less than estimated. Under Phase II, all sources of company income are recognized. Items to be taken into account include the company’s share of investment yield computed in a manner similar (but not identical) to its computation in Phase I. The essential difference is that, for purposes of Phase II, the interest rates assumed by the company in setting up its reserves are used, rather than the actual earnings rates used in Phase I. This assumed rate is multiplied by a figure representing not only life insurance reserves, but reserves set aside for supplementary contracts without life contingencies, dividend accumulations, premiums paid in advance and premium deposit funds. § 810(c). The result, referred to as the share of investment yield set aside for policyholders (or the “required interest”), is subtracted from total investment yield. The remainder constitutes the company’s share of investment yield for purposes of Phase II and is includable in the tax base. Also included in the Phase II base are gross premiums, decreases in certain reserves and other amounts not relevant here. § 809(c). The sum of these items constitutes gross income for purposes of Phase II. From gross income, certain specified deductions are allowed. § 809(d). These include deductions for underwriting expenses, salaries and other operating expenses, as well as charitable contributions. Also included are deductions for losses on insurance and annuity contracts, as well as for the company’s share of tax-exempt interest and dividends received. Additionally, the company is allowed a deduction for increases in reserves during the taxable year. § 809(d) (2). When the various deductions are taken, the final result is the gain or loss from operations — the Phase II tax base. Life insurance company taxable income consists of (1) the smaller of taxable investment income or the gain from operations, plus (2) 50% of the excess, if any, of gain from operations over taxable investment income, to which is added any amount subtracted from the policyholders’ surplus account. § 802 (b). This final amount is subject to taxes at normal corporate rates. § 802 (a) (1). We turn to the particular problems which these cases present arising from application of the framework thus summarized. II Prior to 1958, taxpayer acquired by purchase all of the outstanding stock of Pilot. During each of the years 1958 and 1959, Pilot paid cash dividends out of current earnings and profits to taxpayer in the amount of $1,250,000. For the years 1958 and 1959, these companies filed consolidated income tax returns. In both returns taxpayer and Pilot were treated as a single taxable entity. At every step in the computations required to determine the Phase I and Phase II taxable investment income, the figures for both companies were consolidated on an item-by-item basis, and there was eliminated from all computations the above-described investment of taxpayer represented by the Pilot stock, together with the dividends paid by Pilot to taxpayer. The district court approved taxpayer’s treatment of the consolidated returns and the elimination of the Pilot dividend. In this we think there was error, and on this issue we reverse. Although the Act specifies how taxpayer’s investment in other corporations and how dividends received by taxpayer from other corporations are to be treated, the Act makes no special provision for the treatment of dividends received by one life insurance company from its investment in another or the treatment of the investment of one life insurance company in another. Such a determination is, of course, crucial to the Phase I and Phase II computations which have been described. The Treásury Regulations governing the filing of consolidated income tax returns antedate the Act. They provide that consolidated taxable income is the combined taxable income of the affiliated corporations and that the taxable income of each corporation shall be computed in accordance with the provisions covering the determination of taxable income of separate corporations except that “there shall be eliminated * * * dividend distributions from one member of the group to another member of the group.” 26 C.F.R. § 1.1502-31A(b) (1) (i). While the Regulations establish the principle that intercompany dividends are to be eliminated, they do not establish how they are to be eliminated in the case of taxpayers under the Act, or, more specifically, at what stage of the Phase I and Phase II computations the elimination is to be made. We think that the answer is supplied by analogy to United States v. Atlas Life Ins. Co., supra, which considered a similar question in regard to tax-exempt interest on municipal bonds. Before analyzing Atlas, we reiterate that the basic philosophy of the Act is to tax an insurance company only on the portion of its investment income not required to be set aside in a reserve for future policy liabilities. If Pilot’s dividend to taxpayer is to be eliminated at the outset of the Phase I and Phase II computations, in effect, the Act would be construed as if liabilities to taxpayer’s policyholders were to be satisfied solely by other income. Such a result does not comport with fact because both taxpayer’s investment in Pilot and the income derived therefrom are available and legally liable for the satisfaction of taxpayer’s liabilities to its policyholders. Atlas approved the concept that tax-free income was to be afforded its immunity only to the extent of the “life insurance company’s share,” and that such immunity did not extend to the “policyholders’ share,” otherwise nontaxable. True, Atlas reached this result under sections of the Act which specifically deemed the interest on municipal bonds tax-free, but it did so in a context in which there was a colorable argument that the interest constitutionally was tax-free. We think that the same reasoning applies where, as here, the tax-exempt feature is supplied by the Regulation. To turn specifically to Atlas, the questions presented were how to treat interest on municipal bonds which was rendered tax-free in the computation of taxable investment income by § 804(a) (6), and in the calculation of gain from operation by § 809(b) (4). A second question presented was whether such treatment violated any implied constitutional immunity of interest on municipal bonds from income taxes. In arriving at its result, the Court pointed out that Congress properly treated a major portion of investment income not as income to a life insurance company, but as income to the policyholders The Court then went on to approve the Act’s allocation of a share of tax-free interest to the policyholders, with recognition of its tax-free character of only that part of the interest on municipal bonds which was allocated as the “life insurance company’s share.” Thus, Atlas held that interest income which was exempt from taxation was exempt only to the extent that it constituted income to the life insurance company otherwise subject to tax. The rationale of Atlas is that the two formulae for determining the policyholders’ share exclusion constitute only a measurement for tax purposes of the claim of each company’s policyholders against its investment income. In applying these formulae, the tax-exempt character of the income is not recognized at the outset of the computation, but is recognized at its conclusion, when the life insurance company’s share of investment income is determined. A life insurance company receives special and substantial tax benefit, based upon the concept of the division of its income in accordance with its own relationship to its policyholders. As a corollary, all of its investment income — intercorporate or otherwise — is to be taken into account in computing the investment income and assets to which the policyholders of the life insurance company may look. We hold, therefore, that the intercorporate distributions rendered nontaxable by the regulation are only those intercorporate distributions which constitute a portion of the insurance company’s share of investment income after the full intercorporate distribution has been included in the computation from which that share is determined. Ill Taxpayer and Pilot made charitable contributions during the tax years in question. Both allocated the contributions between the investment and underwriting functions — the Phase I and Phase II computations. While the government does not challenge the reasonableness of the allocations, the government asserts that the entire amount of charitable contributions should have been deducted in the computation of underwriting income and no part was deductible as an investment expense. The district court sustained taxpayer’s position. We disagree, and on this issue of the case, we also reverse the district court. While § 804(e) (1) broadly permits the deduction, inter alia, of “investment expenses” from gross investment income in determining “investment yield,” § 804, overall makes no specific mention of the deductibility of charitable contributions in determining taxable investment income — the Phase I computation. By contrast, § 809, which prescribes the Phase II computation — the determination of underwriting income or gain or loss from operations — specifically allows, inter alia, the deduction from the gross amount of premiums, etc., of “all other deductions allowed under this subtitle for purposes of computing taxable income to the extent not allowed as deductions in computing investment yield” in the determination of (§ 809(d) (12)) of “gain from operations.” Section 809(d) (12) is,- in turn, modified by § 809(e) (3), which states that the limit in applying § 170 — the general statute allowing deductions for charitable contributions — '“shall be 5 percent of the gain from operations” computed without regard to certain items not relevant here. Without more, a comparative reading of these statutes leads to the inference that Congress intended that charitable deductions be recognized — and recognized solely — in the computation of gain from operations and not recognized in the computation of the life insurance company’s share of investment income. To escape this result, taxpayer advances three arguments, none of which we think possesses merit. First, we do not find persuasive the argument, which taxpayer seeks to bolster by reference to New World Life Ins. Co. v. United States, 26 F.Supp. 444 (Ct.Cl.1939), aff’d, 311 U.S. 620, 61 S.Ct. 314, 85 L.Ed. 393 (1940), that charitable contributions are “general expenses.” Prior to the enactment of the 1939 Internal Revenue Code, charitable contributions were considered general expenses, but with the enactment of that Code, they were excluded from the category of expenses otherwise deductible as ordinary and necessary business expenses and made the subject of separate treatment. Jefferson Mills, Inc. v. United States, 259 F.Supp. 305, 311 (N.D.Ga.1965), aff’d, per curiam, 367 F.2d 392 (5 Cir. 1966). That under current law a charitable deduction is a charitable deduction and not a general expense is the stumbling block which destroys taxpayer’s second argument that charitable deductions are not controlled soiely by § 809(d) (12) because that section purports to apply only to deductions “to the extent not allowed as deductions in computing investment yield.” The implied exclusion in § 809(d) (12) is meaningless here, because there is no basis to say that a charitable deduction is allowable under § 804, the investment yield provision. The “to the extent, etc.” language, rather than implying that something allowable under it must also be allowable under § 804, means simply that an item allowed under other provisions may not be allowed a second time under it. Taxpayer’s third argument is that allocation of charitable deductions between gross investment income and gross gain from operations is recognized by the method of accounting prescribed by the National Association of Insurance Corn-missioners (NAIC) in accordance with which taxpayer makes reports to the states which regulate its operations and which taxpayer followed strictly in preparing its tax returns for the years in question. This argument is also made with regard to other issues in these cases and merits full consideration. The district court held that the “form of the Annual Statement prescribed by N. A. I. C. may only be used * * * in computing taxable income when it does not conflict with an accrual method of accounting and is not inconsistent with the provisions of the Internal Revenue Code or the regulations thereunder.” To like effect is Franklin Life Ins. Co. v. United States, supra, at p. 760. We think the district court was correct. Section 818(a) permits resort to methods of computation as approved by NAIC for required annual statements provided that the computations be made on an accrual basis or another method fixed by the Regulations combining the accrual and other forms of accounting (and except the cash receipts and disbursement method). Nothing in the legislative history of § 818 (a) indicates that annual statement computations have other than a limited role — that they may be used only when “not inconsistent with the provisions of the 1954 Code and an accrual method of accounting.” A text writer is candid in admitting, as a general proposition, that there “are several areas where differences exist between the accrual basis used for the annual statement and the general rules of accrual for tax purposes” because “the emphasis of the annual statement has been on the solvency of the company.” And the life insurance industry itself has recognized that the differences are so marked that revision of the annual statement blanks to conform to tax accounting concepts is precluded. We think that the conclusion in Franklin Life with regard to “loading” is equally applicable to charitable deductions : “The careful and detailed attention given by Congress, throughout Sections 801 through 820 to definition of the particular items utilized as factors in the tax formula and in specifying and enumerating the permissible deductions and exclusions negates the existence of any intent on the part of Congress to relegate the substantive matter of offsetting or excluding loading on deferred and uncollected premiums, with its concomitant impact on the resulting tax, to the NAIC.” (emphasis supplied.) Franklin Life Ins. Co. v. United States, supra, p. 760. We thus conclude that the NAIC form cannot create an extra-statutory deduction for charitable contributions. IV Taxpayer and Pilot “strengthened” all life reserves in the year 1959. This is to say, the reserves for life insurance policies were increased. Increases in life insurance company reserves may be attributable to additions required when a method or assumption used by the insurance company is changed so as to produce a higher reserve, as well as normal additions made each year to meet existing and increasing obligations under policies in force. It was the former method, commonly called “reserve strengthening,” which taxpayer and Pilot pursued. The 1959 reserve strengthening included nonparticipating contracts, which are life insurance contracts in which the policyholders do not participate in company earnings or receive dividends. At issue is the question of what portion of the reserve strengthening for nonparticipating contracts for 1959 is deductible in that year in the computation of gain or loss from operations (the Phase II computation). The question arises because § 809(d) (5) permits, so far as relevant here, the deduction from gross gain for operations of 10% of the increase for the taxable year in the reserves for nonparticipating contracts. Section 810(d) establishes the so-called “spread rule,” and it requires that certain increases in reserves may be taken into account only to the extent of Vioth of the increase for each of the succeeding ten taxable years following the year in which the increase is experienced. Thus, to be decided is the question of whether § 810(d) is applicable to the special situation for which provision is made in § 809(d) (5), or whether § 809 (d) (5) is to be applied without reference to § 810(d). The district court concluded that the § 809(d) (5) deduction based upon 10% of increase in reserves for nonparticipating contracts is not subject to the § 810 (d) “spread rule” to the extent that such increase was attributable to reserve strengthening. We think the district court was correct. At the outset, we note that § 809(d) (5) makes no reference to § 810. By contrast, § 809(d) (2), which permits deductions for the “net increase in reserves” limits the deduction to that “required by section 810 to be taken into account for purposes of this paragraph.” Manifestly, § 810(d) refers to all types of increases in reserves, and is not limited to the strengthening of reserves for nonparticipating contracts. Hence, as a matter of statutory construction, § 810 may, but need not, refer to § 809(d) (5) and, if § 810 is held not to apply to § 809 (d) (5), the former is not rendered nugatory. From the reference in § 809(d) (2) to § 810, and the absence of such a ref-erenee in § 809(d) (5), we conclude that the “spread rule” prescribed by § 810(d) is not applicable to the special deduction for strengthening reserves for nonparticipating contracts permitted by § 809 (d) (5). Our conclusion is supported by the legislative history of § 809(d) (5). In regard to it, the Senate Finance Committee stated its support of the proposal, which originated in the House, as follows: “Policyholder dividends in part reflect the fact that mutual insurance is usually written on a higher initial premium basis than nonparticipating insurance, and thus the premiums returned as policyholder dividends, in part, can be viewed as a return of redundant premium charges. However, such amounts provide a ‘cushion’ for mutual insurance companies which can be used to meet various contingencies. To have funds equivalent to a mutual company’s redundant premiums, stock companies must maintain relatively larger surplus and capital accounts, and in their case the surplus generally must be provided out of taxable income. To compensate for this, the House bill allows a deduction for nonparticipating insurance equal to 10% of the increase in life insurance reserves attributable to nonparticipating life insurance (not including annuities). Your committee has recognized the validity of the reasons for providing such a deduction and has therefore continued it in your committee’s version of the bill. * * *” S. Rep. No. 291, 86th Cong., 1st Sess., (1959-2 Cum.Bull. 786), U.S.Code Cong. & Admin.News 1959, p. 1597. An earlier significant statement contained in the report follows: “Thus, a special 10 percent reduction is allowed with respect to the reserves on nonparticipating life insurance business (or, alternatively, a deduction of 3 percent of the premiums on these policies). This deduction is designed to compensate stock life insurance companies for the fact that they do not have the ‘cushion’ of redundant premiums (which, if the business does not got well, a mutual company can use to offset losses but otherwise are subsequently paid back as policyholder dividends).” S.Rep. No. 291, 86th Cong., 1st Sess. (1959-2 Cum.Bull. 778), U.S.Code Cong. & Admin.News 1959, p. 1586. Income tax laws are not always designed with the same reason and logic brought into play in other branches of the law, such as the test of the reasonable man in the law of torts, but reason and logic support the result which we reach. If increases resulting from the strengthening of reserves for nonparticipating contracts were held subject to § 810, the amount deductible in any year following that in which the increase was experienced would be Vio of the 10% of such increase rendered deductible by § 809(d) (5). Yet, in the case of other increases in reserves, including increases from the strengthening of reserves for participating contracts, the full amount of the increase would be deductible over a period of ten years. It would seem more reasonable to us that if Congress concluded to permit only 10% of the increases in reserves from nonparticipating contracts to be deductible, there would be little need for application of the spread rule. Therefore, reason would seem to indicate that the spread rule was to come into play only when the deduction was more substantial in nature. Especially is this so when Congress appeared to be concerned with the redundancy in the premiums charged by mutual insurance companies and their ability to reduce their tax obligations as compared to a stock company which would need real incentive to strengthen reserves at the expense of its surplus. Y When taxpayer filed consolidated income tax returns with Pilot, its wholly-owned subsidiary, for the years 1958 and 1959, it computed its tax according to the rates specified in the corporate income tax returns for life insurance companies. Those rates were 2% higher for life insurance companies filing consolidated returns than for life insurance companies filing separate returns. At a later date, taxpayer took the position that life insurance companies are entitled to file consolidated returns without payment of the 2% higher rate. This legal issue was resolved against taxpayer by the district court, and we think correctly so. Section 802(a) (1), before it was amended in 1964, imposed a tax on the taxable income of every life insurance company and provided that “[s]uch tax shall consist of — (A) a normal tax on such income computed at the rate provided by section 11(b), and (B) a surtax, on so much of such income as exceeds $25,000, computed at the rate provided by section 11(e).” Section 11 is divided into several subsections. Section 11(a) imposes a tax “for each taxable year on the taxable income of every corporation. The tax shall consist of a normal tax computed under subsection (b) and a surtax computed under subsection (c).” Section 11(c) prescribes that the surtax shall be “equal to 22 percent of the amount by which the taxable income * * * exceeds $25,000.” Section 11(d) specifically excepts from the application of § 11 (a) corporations subject to a tax imposed by § 801 et seq. (life insurance companies). However, for the years in question § 1503 provided that in any case in which a consolidated return was made or required to be made “ * * * the tax imposed under section 11(c) * * * shall be increased for any taxable year by 2 percent of the consolidated taxable income of the affiliated group of includible corporations.” The basic argument advanced by taxpayer is that, since § 1503 refers to the tax “imposed under section 11(c)” and since the tax upon life insurance companies is imposed by § 802, with only a cross-reference to § 11(c) to determine the manner of computation, the taxpayer does not fall within the “tax imposed under section 11(c)” language of § 1503 for purposes of the additional 2% tax. Literal acceptance of taxpayer’s argument would render § 1503 a'complete nullity because § 11(c) does not impose the surtax; the surtax is imposed by § 11(a) and § 11(c) merely states the method of computation of its amount. We do not find convincing the government’s argument that “imposed under section 11(c)” is broader than the more usual language of “imposed by” and no authority to support this conclusion is cited. Cf., United States v. Wigglesworth, 28 Fed.Cas. 595, 596, No. 16,690 (Cir.Ct.D.Mass.1842). Overall, however, we think that the arguments on this point are overtechnical and overrefined. The basic purpose of enactment of the Act was to establish “a statutory framework directed to the measurement of life insurance company total income on an annual basis for use in the application of an annual tax.” Franklin Life Ins. Co. v. United States, supra. Substantial concessions were made to life insurance companies to insure that only income not presently or prospectively needed to meet policy liabilities would be taxed, but with respect to life insurance company taxable income the intent of Congress that life insurance companies be taxed at the same rate as other corporations was oft expressed. Both the House and Senate Reports emphasize that the rate of tax on life insurance companies was to be “a normal tax on such income, computed at the regular corporate normal tax rate provided by section 11(b) of the 1954 Code, and * * * a surtax * * * computed at the regular corporate surtax rate provided by section 11(c).” Indeed, the Congressional intent could not be more clearly stated than as set forth in Senate Report No. 291, 86th Cong., 1st Sess., p. 127 (Supplemental Views on H.R. 4245) : “After a determination of the proper tax base, the life insurance company would be taxed on its corporate profits at current rates as is any other corporation. To do less would be unfair to other taxpayers who would be thus required to bear a disproportionately greater share of the tax burden.” (emphasis supplied.) U.S.Code Cong. & Admin.News 1959, p. 1658. We conclude that the only reasonable overall interpretation of the statutory language is that when the surtax imposed by § 11 on ordinary business corporations was increased by § 1503, that increase was equally applicable to life insurance companies by virtue of the provisions of § 802(a) (1). It seems to us that the cross-reference to § 11(c), the computation subsection of § 11, contained in § 1503, indicates that the increase in rates provided for in § 1503 was applicable to any taxpayer for which the rates of tax previously established by § 11(c) were applicable. Taxpayer was within that group. Certainly, the legislative history of § 802(a) (1) does not indicate that taxpayer was to receive treatment any different, and specifically, taxed at any different rate, from that afforded non-life insurance company taxpayers. Equally certain, § 1503 should not be rendered meaningless in regard to all classes of taxpayers. VI We are next concerned with whether, in determining gain from operations un~ der § 809, taxpayer may take a deduction for “increase in loading on deferred and uncollected premiums,” and whether, in determining investment income under §§ 804 and 805, taxpayer is entitled to exclude “loading on deferred and uncollected premiums” from its assets. The gross annual contract premium, which is the beginning point for computing “gain from operations” under § 809, is the amount paid by an insured to the taxpayer for coverage for a full policy year. The gross contract premium is made up of two parts, a net valuation portion and a loading portion. The net valuation portion (sometimes called the net valuation premium) is the amount which, on the basis of legally required interest and mortality assumptions, is estimated to be required each year for reserves for policyholder claims. The difference between net valuation premium and the gross contract premium is referred to as the “loading.” A purpose of loading is to pay for expenses incurred in writing and caring for the policy and to provide a margin for possible contingencies. Although many insureds pay their gross contract premium in one lump sum annually, it is not unusual for an insured to pay the gross contract premium in semi-annual, quarterly or monthly installments over the policy year. As a result, portions of gross contract premiums may remain outstanding and not as yet received by taxpayer as of the end of the taxable year. Deferred payments are the portions of gross contract premiums on policies with premiums payable in installments that become due after December 31 of the calendar year and before the next policy anniversary date. Uncollected premiums are annual or installment premiums which, as of December 31 of a calendar year, have become due but have not as yet been paid. Usually the insured has a 31-day grace period after the due

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

LOCAL 453, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO, an unincorporated Labor Organization, Appellant, v. OTIS ELEVATOR COMPANY, a corporation, Appellee. No. 227, Docket 27767. United States Court of Appeals Second Circuit. Argued Jan. 24, 1963. Decided Feb. 27, 1963. Irving Abramson, New York City, (Abramson & Lewis, New York City, on the brief); Donald Grody, New York City, of counsel), for appellant. Louis Newman, New Yox'k City (Guggenheimer & Untermyer, New York City, on the brief), for appellee. Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges. MARSHALL, Circuit Judge. This is an appeal by the plaintiff below, Local 453, International Union of Electrical Workers, from an order entered by the United States District Court for the Southern District of New Yox'k, Cashin, J., granting summary judgment in favor of the defendant, Otis Elevator Compaxxy. The effect of the order was to vacate, set aside, and deny enforcement to an ax'bitration award which had directed Otis to reinstate an employee whom it had discharged for violating a company rule prohibiting gambling. The facts underlying the controversy are not in dispute. Joseph Calise, an employee of Otis who was represented by Local 453, was convicted on December 1, 1960, in the County Court of Westchester County oxx two counts of knowingly possessing policy slips in the Otis plant in Yonkers on December 28, and 29, 1959, in violation of New York Penal Law, § 974, which makes such conduct a misdemeanor. He was fined a total of $250. There was testimony at the trial that four other Otis employees were “working for” Calise in handling policy slips within the plant, but apparently none of the four was prosecuted by the public authorities or disciplined by Otis. During the eleven months that elapsed between the date of Calise’s arrest and the date of his conviction, Otis took no disciplinary action against him and he remained on the job without evidence of further transgression. However, on December 5,1960, four days after Calise’s conviction was entered, he was discharged for violating the company’s rule against gambling on its premises during wox'king hours. The union challenged the discharge and after the exhaustion of grievance procedures under the collective bargaining agreement the parties submitted the dispute to arbitration. The applicable provisions of the collective bargaining agreement gave the employer “the right to discharge any employee for just cause” and the union “the right to challenge the propriety of the discharge of any employee” as a grievance. The agreement further provided that when an issue was submitted to arbitration, the decision of the arbitrator “shall be final and binding upon the parties.” In submitting the present controversy to arbitration, the parties stipulated that the question for decision was, “Has Joseph Calise been discharged for just cause, and if xxot what shall the remedy be?” The arbitrator concluded that under all of the circumstances Calise had not been discharged for just cause. He ordered Otis to reinstate Calise to his fox'mer position on July 3,1961, but without back pay or accrual of seniority or other benefits flowing from the collective agreement for the seven-month period of disciplinary layoff, although his prior-accrued seniority and pension rights were to be preserved and not to be affected by the layoff. The arbitrator made plain that Calise had been guilty of serious misconduct and that his award was in no way to be taken as condoning “such illegal activities as policy numbers gambling.” Substantial disciplinary action sufficient to serve as a deterrent would have been permissible, he said, but “outright and final discharge is a disciplinary action with effects too harsh upon the grieving employee.” He based his decision upon the facts that Calise had already been punished once for his offense by the public authorities, that he had undergone a seven-month layoff without pay or unemployment compensation, that he had 24 years of 'unbroken seniority and satisfactory service at the company, that he had “heavy family obligations involving four young innocent children and a wife,” that as a result of discharge he would lose considerable pension rights “built up after decades of service,” and that the company had not disciplined the four other men who “were guilty also of violating the same rule against gambling in the plant.” The union subsequently brought suit in the United States District Court for the Southern District of New York to confirm the arbitration award and to compel Otis to comply with it, asserting jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185. By an order to show cause, the union moved for a preliminary injunction to compel compliance pending final disposition of the action. The motion was denied by the District Court, MacMahon, J., in an opinion reported at 201 F.Supp. 213 (S.D.N.Y.1962), on the ground that the arbitrator’s award was “void and unenforceable” because violative of an “overriding public policy.” The court said that the award “indulges crime, cripples an employer’s power to support the law, and impairs his right to prevent exposure to criminal liability.” Id. at 218. The union then moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The District Court, Cashin, J., in an opinion reported at 206 F.Supp. 853 (S.D.N.Y. 1962), denied the motion. At the same time, since there was no genuine issue of fact, it exercised its right to grant summary judgment to the defendant, vacating and setting aside the arbitration award, without the filing of a formal cross-motion. See Local 33, International Hod Carriers, etc., Union of America v. Mason Tenders District Council, 291 F.2d 496 (2 Cir., 1961); United States v. Cless, 150 F.Supp. 687 (M.D.Pa.1957), affirmed, 254 F.2d 590 (3 Cir., 1958); 6 Moore, Federal Practice ¶ 56.12, pp. 2088-89 (2d ed. 1953). In entering summary judgment for the defendant, Judge Cashin said that he agreed with “Judge MacMahon’s determination that the arbitrator had the power to settle the dispute involved. I also agree that this court is foreclosed [by the arbitrator’s decision] from considering the question of whether or not the commission of a crime by an employee upon the premises of the employer is just cause for discharge as a matter of law.” 206 F.Supp. at 854. But he nevertheless felt bound to deny enforcement to the arbitrator’s award. “However, as Judge MaeMahon found, the misconduct involved here is not just an infraction of a company rule. It is a misdemeanor under § 974, McK. Consol. Laws, c. 40, of the N. Y. Penal Law. This same statute also provides that a ‘person who * * * is the owner * * * of any place * * * where policy playing or the sale of what are commonly called “lottery policies” is carried on with his knowledge or after notification that the premises are so used, permits such use to be continued, or who aids, assists, or abets in any manner, * * * is a common gambler, and guilty of a misdemeanor.’ Thus, the responsibility for the observance of this law rests upon the owner of the premises and exposes him to criminal prosecution. “In the instant case, Calise was not just gambling himself, but he was carrying on organized professional gambling and had four other employees working for him. Under these circumstances I cannot compel the defendant to comply with the arbitration award.” Id. at 855. It is from the decision of Judge Cashin that the union has taken this appeal. The decision of Judge Cashin expressly adopted the conclusions of Judge MacMahon that the grievance that arose between Local 453 and Otis over the discharge of Calise was an arbitrable one and that the arbitrator had the power to settle the dispute involved. These conclusions were clearly correct. The terms of the collective bargaining agreement provide that the employer may discharge an employee for “just cause” and that the union may challenge the “propriety” of a discharge as a grievance. They further provide that the arbitrator shall have the authority to make a “final and binding” decision on all grievances between the parties. The agreement nowhere defines what conduct constitutes “just cause” for discharge or what criteria shall govern the “propriety” of a discharge. That the parties intended to leave such definition to the arbitrator is made plain both by the “plenary grant” of power made to him, 201 F.Supp. at 217, and by the broad scope of the stipulated question, framed only in terms of “just cause”, which accompanied the submission. Although the scope of an arbitrator’s authority is not unlimited, Textile Workers Union of America v. American Thread Co., 291 F.2d 894 (4 Cir., 1961), the terms of the contract and of the submission in the present case, underscored by the rule that courts must uphold the arbitrator in the exercise of the broadest jurisdiction in the absence of specific contractual limitations on that jurisdiction, clearly bespeak arbitrability. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Hays, “The Supreme Court and Labor Law, October Term, 1959,” 60 Colum.L. Rev. 901, 920 (1960). Having bargained for the decision of the arbitrator on the question of whether Calise’s conduct and criminal conviction constituted “just cause” for discharge, the parties are bound by it, even if it be regarded as unwise or wrong on the merits; “so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). To separate the just causes for discharge from the injust was precisely what the parties clothed the arbitrator with the authority to do. If the employer wanted the automatic right to discharge an employee for violation of certain company rules or for the commission of certain crimes, whether on or off the company premises, it had the opportunity to seek such an explicit exclusion from the general arbitration clause when the collective agreement was negotiated, as it may do when the collective agreement expires. In the absence of such a clause, the decision of the arbitrator in the present case must be taken as conclusively establishing as a matter of contract interpretation that the discharge of Calise was not for just cause and as foreclosing judicial review of the merits of the question. Despite his recognition of the force and applicability of these principles, Judge Cashin nevertheless concluded, for the same reasons for which Judge MacMahon had concluded, that the award of the arbitrator was judicially unenforceable because of its repugnance to public policy. The precise nature of the public policy which the award was thought to-offend is not made clear by either opinion in the District Court. Apparently the Court was concerned with the fact that the possession of policy slips “is regarded' by responsible law enforcement officials, state and federal, as the incubator of most, and more sinister, organized crime,” 201 F.Supp. at 218, and with the fact that since an employer is responsible for knowingly permitting policymaking on his premises, “[t]o deny him the power to discharge for the commission of such a crime upon his property exposes him to criminal prosecution.” Id. at 217. See 206 F.Supp. at 855. We think that the District Court’s analysis of the public policy issue was inadequate. Accordingly, we reverse, with instructions that an order issue compelling the employer to comply with the terms of the arbitrator’s award. It is no less true in suits brought under § 301 to enforce arbitration awards than in other lawsuits that the “power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States. * * * ” Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 852-853, 92 L.Ed. 1187 (1948). The public policy to be enforced is a part of the substantive principles of federal labor law which federal courts, under the mandate of Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), are empowered to fashion. Cf. Local 174, Teamsters, etc., v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). Thus, when public policy is sought to be interposed as a bar to enforcement of an arbitration award, a court must evaluate its asserted content. Of course there is a public policy which condemns gambling by an employee on the premises of his employer; it is a policy expressed by the section of the New York Penal Law which Calise was convicted of violating. But that policy has been vindicated in the present case in the very manner that the State of New York contemplated, by a criminal conviction and the judicial imposition of a penalty. Parenthetically, it may further have been vindicated, beyond any demands of the State of New York, by the seven-month layoff without compensation or accrual of seniority benefits which Calise sustained and which the arbitrator upheld. There is no federal policy that requires greater vindication of the public condemnation of gambling than this. The law is not that Draconian. To enforce the arbitrator’s award in these circumstances cannot fairly be looked upon as judicial condonation of Calise’s offense. Moreover, in light of the important role which employment plays in implementing the public policy of rehabilitating those convicted of crime, there can hardly be a public policy that a man who has been convicted, fined, and subjected to serious disciplinary measures, can never be ordered reinstated to his former employment, particularly when the conviction was for his first offense and when the arbitrator found no indication that reinstatement would result in repetition of the illegal activity. Indeed, the arbitrator in effect took into account the importance of rehabilitation when he concluded that the criminal conviction, the sentence imposed as a result of that conviction, and the seven-month layoff without pay or unemployment compensation were appropriate punishment under the circumstances. The argument, persuasive to the District Court, that reemployment of Calise may subject Otis to prosecution under New York Penal Law, § 974 if Calise resumes his criminal activity is open to serious doubt. As one commentator has said in criticizing the result reached by the District Court in the present case, “It is hard to imagine that an employer who had specifically indicated his disapproval of gambling on the premises, had penalized the employee found guilty, and had warned the employee against any such conduct in the future could be found guilty of violating the statute.” Fleming, “Arbitrators and the Remedy Power,” 48 Va.L.Rev. 1199, 1209 (1962). The award of the arbitrator was regular in every respect. There is no substantive principle of federal labor law which authorizes denial of enforcement on the present facts for reasons of public policy. Accordingly, the judgment below is reversed, with instructions that an order issue compelling Otis to comply with the terms of the arbitration award. Reversed.

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

W. J. USERY, Jr., Secretary of Labor, Petitioner, v. KENNECOTT COPPER CORPORATION and the Occupational Safety and Health Review Commission, Respondents. No. 76-1735. United States Court of Appeals, Tenth Circuit. Submitted Nov. 14, 1977. Decided Dec. 23, 1977. Dennis K. Kade, U. S. Dept. of Labor, Washington, D. C. (Alfred G. Albert, Benjamin W. Mintz and Allen H. Feldman, Washington, D. C., on the brief), for petitioner. James B. Lee, Salt Lake City (Kent W. Winterholler, Salt Lake City, on the brief), of Parsons, Behle & Latimer, Salt Lake City, Utah, for respondent Kennecott. Before SETH, HOLLOWAY and BARRETT, Circuit Judges. BARRETT, Circuit Judge. The Secretary of Labor (Secretary) petitions for review of an order of the Occupational Safety and Health Review Commission (Commission), which vacated an administrative law judge’s decision that Kenne-cott Copper Company (Kennecott) had violated certain OSHA regulations. In reversing the decision of the administrative law judge, a divided Commission found that Kennecott had not failed to comply with occupational health and safety standards promulgated by the Secretary. Jurisdiction for review is derived from 29 U.S.C. § 660(b) of the Occupational Safety and Health Act (the Act), 29 U.S.C. § 651, et seq. The facts are basically undisputed. Ken-necott, a large mineral mining and processing concern, employs some 1200 persons at its Magna, Utah, smelting plant. In addition to smelting copper ore at its Magna plant, Kennecott captures the fumes produced in the smelting process and, by passing them through “mist treaters,” produces sulphuric acid. The “mist treaters,” which are large cylindrical vats, several stories high, encircled by protruding horizontal ribs, occasionally spring leaks. When such difficulties occur, skilled workmen, known as “leadburners,” repair the leaks by standing on temporary scaffolds in order to reach the troublesome areas. The citations issued against Kennecott grew out of an accident which occurred at the Magna plant in November of 1974. Nick Laboa, a highly skilled and experienced “leadburner,” constructed a makeshift scaffold to reach a leak 10 to 11 feet above the ground. He took a six-foot long wooden plank with cleats in both ends and hooked it onto an angle-iron bracket attached to the inside of one of the “mist treaters.” There were no guard rails or toeboards on this scaffold and he did not use a ladder in order to gain access to the scaffold. While either working on the scaffold or ascending to it, he fell. After a routine investigation of the accident by a representative of the Secretary, Kennecott was cited for failing to comply with OSHA regulations relating to scaffolds: He had not been furnished with a scaffold which was erected in accordance with the promulgated standards. The scaffold he used, which was approximately 11 feet 10 inches above the floor, was not provided with guardrails installed on the open side and across the two ends of the scaffold platform. [R., Vol. Ill, p. 1.] Further, Kennecott was cited for not providing a ladder for Laboa to use in gaining access to the scaffold: In addition, the employee gained access to the scaffold by unsafe means in that a ladder or equivalent safe access had not been provided. [R., Vol. Ill, p. 1.] Kennecott filed notice of intent to contest the citations and proposed penalty. Following a hearing, the administrative law judge found that Kennecott had violated the Act by failing to comply with occupational safety and health standards. He fined Kenne-cott $350. The judge specifically found that standards requiring guardrails on scaffolds had been properly promulgated and that Kennecott should have required the use of access ladders when its employees were ascending to scaffolds. Kennecott appealed to the Commission, which reversed the judge’s decision. In exonerating Kennecott, the Commission ruled that Kennecott had not violated the regulation requiring the use of guardrails on scaffolds because the regulation had been improperly promulgated and was, therefore, not binding on Kennecott. The Commission also found that Kennecott had not violated the regulation dealing with providing access ladders. In petitioning for review, the Secretary contends that: (1) the Commission erroneously declared that the regulation dealing with guardrails was unenforceable because of improper promulgation and (2) the Commission erred in concluding that Kennecott had satisfied its OSHA obligations by providing its employees scaffold access ladders without requiring their use. The Act was passed in 1970 to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” To effect this objective the Secretary of Labor was empowered to promulgate mandatory occupational safety and health standards which would be applicable to any “person engaged in a business affecting commerce who has employees.” In order to ensure that the Secretary would be able to swiftly promulgate safety and health standards, Congress empowered him to adopt existing industry standards for the first two years following enactment of the Act. These standards, known as “national consensus standards,” could be promulgated by the Secretary without any rulemaking procedures if they: . had been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope of provisions of the standard have reached substantial agreement on its adoption. After the two year period allowed for promulgation of these interim standards any new standards or modification or revocation of standards could be enacted only by following the formal rulemaking procedure outlined in the Act. I. The first citation charged'Kennecott with failing to comply with a standard mandating the use of guardrails and toeboards in scaffolds: Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. (Emphasis supplied.) 29 CFR 1910.28(a)(3). This regulation was promulgated shortly after passage of the Act. Accordingly, the Secretary was not required to follow the Act’s rulemaking procedures. The Commission found that there had been no violation of this regulation by Ken-necott because it had not been promulgated in accordance with the provisions of the Act and was, therefore, unenforceable. As noted above, the Secretary was granted broad powers to adopt necessary standards during the first two years of the Act’s life so that safer working conditions would be provided American employees in a short time. In preparing the interim safety standards for scaffolds, the Secretary turned to standards which had been formulated by the American National Standards Institute (ANSI), which read: Guardrails and toeboards should be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. (Emphasis supplied.) (American National Standard Safety Requirements for Scaffolding, American National Standards Institute, 1969, p. 9.) In promulgating this standard the Secretary changed the language concerning guardrails on scaffolds so that it assumed a mandatory, rather than advisory, character: Mandatory rules of this standard are characterized by the word shall. If a rule is of an advisory nature it is indicated by the word should or is stated as a recommendation. (Ibid, p. 7.) It is the Secretary’s adoption of the regulation by use of the word shall rather than the word should which poses the problem presented here. We must determine whether this usage constitutes such a substantial change that the regulation is not to be considered as a national consensus standard. The Secretary contends that the change from should to shall is not significant, in that it is simply a pro forma change, having no substantive effect on the regulation. The Secretary points to the statute which requires an employer to follow health and safety standards promulgated by the Secretary: Each employer shall comply with occupational safety and health standards promulgated under this chapter. 29 U.S.C. § 654(a)(2). Because of the mandatory nature of the standards under the Act, the Secretary asserts that the substitution of mandatory for advisory language in the adoption of the guardrails and toeboards interim standards was valid. The Secretary argues that if the standards are to be complied with, it makes no difference whether the actual language is advisory or mandatory. Employers are, of course, required to comply with standards properly established by the Secretary. The Act accords its special interim treatment exclusively to “any national consensus standard and any established Federal standard.” The usual procedural due process safeguards accorded to persons who might be adversely affected by government regulations were relaxed only to the extent that standards, which had already been scrutinized and recognized by those to be affected and upon which there existed substantial agreement, would be considered acceptable for adoption as “national consensus standards.” If, however, standards which were to be adopted during the two year interim involved modifications of established standards, then a formalized procedure had to be followed. This procedure included: recommendations to the Secretary from an advisory committee, publication of a proposed rule in the Federal Register, allowance of time for comments from interested persons, and public hearing if objections are raised. These procedures are designed to provide those who might be affected the opportunity to acquaint themselves with the proposed rule and to voice any possible opposition thereto. These procedural due process requisites have long been recognized as part of our system of jurisprudence. We hold that the Secretary did not comply with the statute by reason of his failure to adopt the ANSI standard verbatim or by failure to follow the appropriate due process procedure. The promulgation of the standard with the use of shall rather than should did not constitute the adoption of a national consensus standard. It is, therefore, unenforceable. In order for the Secretary to have rendered the standard enforceable with the change in language, he was obliged to observe the rulemaking procedures contained in the Act. Administrative regulations are not absolute rules of law and should not be followed when they conflict with the design of the statute or exceed the administrative authority granted. National Labor Relations Board v. Boeing Co., 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973); Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959); Reardon v. United States, 491 F.2d 822 (10th Cir. 1974). The Commission, in a decision which posed the same issue as that before us here, articulated the view that only standards which are national consensus standards are valid. Secretary v. Oberhelman-Ritter Foundry, Inc., OSAHRC Docket No. 1572 (July 31, 1973). Further, we observe that the Secretary has recognized that only mandatory standards should be seen as national consensus standards: The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. [ANSI and National Fire Protection Association.] The standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910. Fed.Register 36 No. 165, p. 10466. We hold that the Secretary improperly promulgated the standard dealing with mandatory guardrails. We affirm the decision of the Commission that Kennecott could not be held to be in violation of an unenforceable standard. II. Kennecott was also charged with violating an OSHA standard which required that when workers were on scaffolds, “An access ladder or equivalent safe access shall be provided.” In holding that Kennecott had not violated this regulation, the Commission interpreted “provided” as being synonymous with “made available.” The Secretary contends that this interpretation is incorrect because it is in derogation of the underlying purpose of the Act. The Secretary maintains that the Commission erred in finding that Kennecott had complied with this regulation by simply providing its employees scaffold access ladders without requiring that they use them. There is undisputed testimony that ladders were available to Kennecott’s employees. It was also shown that some of the “leadburners” did not use them when ascending to their scaffolds and that Kenne-cott did not insist that such workers use the ladders for access to the scaffolds. We hold that the Secretary’s interpretation of the regulation is erroneous. Kennecott did comply with the regulation by providing ladders. It was not the purpose of the Act to make an employer the insurer of his employees’ safety. Dunlop v. Rockwell, International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. OSAHRC, 511 F.2d 1139 (9th Cir. 1975). The ultimate aim of the act was not to prevent all accidents, but to provide American employees with safe and healthful working conditions “so far as possible.” Certainly the Act requires employers to be diligent in protecting the health and safety of its employees; however, it does not hold the employer responsible for the prevention of all accidents. In addition, the act does impose some responsibility for their safety on the employees, for “Each employee shall comply with occupational safety and health standards.” We do not agree that the Secretary may read “shall be provided” to mean “shall require use.” In interpreting regulations, one must look at the plain meaning of the words used. The meaning usually attributed to the word provide is to furnish, supply or make available. If the Secretary had determined to require that employees use ladders, he could have done so only by complying with the rulemaking procedure outlined in the Act. He did not do so. Accordingly, Kenneeott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A regulation cannot be construed to mean what an agency intended but did not adequately express. United States v. Ray, 488 F.2d 15 (10th Cir. 1973); Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976). If the Secretary were to be permitted to interpret regulations by employing the unusual meaning of words, employers would be deprived of fair notice of that which is expected of them in violation of their due process rights. Brennan v. OSAHRC, 505 F.2d 869 (10th Cir. 1974). In Diamond Roofing, supra, this concern was succinctly expressed: An employer, however, is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. 528 F.2d at p. 649. Kenneeott did not violate the regulation. We affirm the Commission’s decision. The relief prayed for is denied. We direct enforcement of the Commission Order. . 29 U.S.C. § 651(b). . 29 U.S.C. § 665. . 29 U.S.C. § 652(5). . 29 U.S.C. § 655(a). . 29 U.S.C. § 652(9). . 29 U.S.C. § 655. . 29 U.S.C. § 655(b). . 29 CFR § 1910.28(a)(12). . 29 U.S.C. § 651(b). . 29 U.S.C. § 654(b). . American Heritage Dictionary of the English Language, Houghton-Mifflin, 1976, p. 1053.

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"?

TALLMAN v. LADD et al. (Circuit Court of Appeals, Fourth Circuit. April 14, 1925.) No. 2313. 1. Equity <©=>418, 419 — Entry of decree pro oonfesso held warranted", and court’s refusal to open default or suspend decree not abuse of discretion. ■ Decree pro confesso held properly entered, under rule 29, in suit for accounting and removal of executrix of estate, on defendant’s failure to answer within 5 days after denial of her motion to dismiss, nor was court’s refusal to open the default, or to suspend, alter, or rescind the decree pro' confess.o, an abuse of his discretion, under rules 5 and 17. 2. Executors and administrators <§=>35(19)— Order denying motion to dismiss, heard after entry of decree appointing receiver, held adjudication of duly contested matter, reviewable on appeal from decree. Where, after entry of decree removing executrix and appointing receiver, decree was operied to extent of motion of executrix to dismiss on ground that testator’s daughter took property to exclusion of plaintiffs, held, refusing motion to dismiss was an adjudication of a duly contested matter, properly reviewable on appeal from order removing executrix and appointing receiver. 3. Wills <§=>681 (I) — Testator’s daughter held not to take absolute fee in estate, to exclusion of possible remaindermen. Where testator gave all of estate to wife and daughter, share and share alike, but provided that, if wife survived daughter, daughter’s interest in estate should go to certain others, brothers and sisters of testator, held, daughter did not take an absolute fee simple, to exclusion of possible remaindermen, which was inherited by her mother. 4. Appeal and error <§=>865 — On appeal from default decree, defendant can only question sufficiency of bill to warrant decree. On appeal from default decree, defendant cannot urge want or insufficiency of testimony, but can contest decree on ground that it was unwarranted by bill. 5. Executors and administrators <§=>35(0— Removal of executrix for failure to keep accounts free from confusion held unwarranted. Where testator appointed wife as executrix .of his estate, without bond, security, or ap-praisement, her mere failure through mistake to keep her accounts free from confusion held insufficient to warrant her removal, and appointment of receiver. 6. Receivers <§=>14 — Receiver of estate not appointed, except where clear necessity appears. Receiver will not be appointed to take charge of an estate intrusted by testator to executrix or trustee, except where it clearly appears necessary to protect and preserve trust property, in which case clear proof of misconduct or fraud, or danger of loss, is required. Appeals from tbe District Court of tbe United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.- Suit by George T. Ladd and others against Caroline G. Tallman, executrix of the will of Albert P. Tallman and guardian of Helen Tallman, personally and in her own right. Decree for plaintiffs, and defendant appeals. Decree modified. 1 Henry M. Russell, of Wheeling, W. Va. (Hubbard & Hubbard, of Wheeling, W. Va., on the brief), for appellant. George R. E. Gilchrist, of Wheeling, W. Va., for appellees. Before WOODS, WADDILL, and ROSE, Circuit Judges. WOODS, Circuit Judge. The will of Albert P. Tallman, dated October 10,1903, was as follows: “Eirst. I give and bequeath all of my personal and real property to my beloved wife Carrie and to my blessed child Helen, one half to each, share and share alike. I wish no appraisement nor inventory made. “Second. Should my beloved wife Carrie survive my little daughter Helen, then Helen’s share is to go to her mother for the latter’s use during her life and at the mother’s death said share (Helen’s) is to be divided equally between my brother Wilbur, my sisters, Mary Topping, Elen English and my sister Cornelia Ladd’s estate. Should my brother Wilbur be not living at the date when the' distribution just mentioned b-e made if made at all, then said share (Helen’s) is to be divided into three equal parts, one going to my sister Mary or her estate, one to my sister Ellen or hér estate and the remaining one to the estate of my sister Cornelia Ladd that is to say, this last named third is to be divided equally between George, Louis and Elizabeth Ladd, her children. “Third. I hereby appoint my beloved wife administratrix of this my last will and testament without bond or security and I would suggest that she act as guardian of our little daughter Helen without bond, security or ap-praisement.” The testator died in 1904, and his widow, Caroline G. Tallman, qualified as executrix and as guardian of her daughter, Helen, giving a bond without security in the former capacity of $150,000, and in the latter of $75,000. Helen died in 1919, unmarried, at the age of 20. Mary Topping died in 1909, and Wilbur Tallman in 1914. There is no dispute that the plaintiffs are the persons entitled to one-half of the corpus of the estate under the second clause of the will, unless under the first clause one-half went to Helen in fee, and was inherited by her mother as her sole heir. Plaintiffs filed their bill on- October 12, 1922, alleging that they were entitled to a remainder in one-half of the estate after the death of Caroline G. Tallman; that Caroline G. Tallman had qualified as executrix and had mismanaged her trust, in that she had not made an inventory of the estate; that she had not kept the corpus and income separate; that she had improperly so'ld securities; that she had made incorrect application of a number of items; that she had not on request given plaintiffs an account of her management of the estate and the amount and condition of the trust funds. The bill asked for the removal of Caroline G. Tallman as executrix, the appointment of a receiver of the estate, and an accounting. The proceedings under the bill were as follows : Defendant moved to dismiss the bill May 12, 1923; the motion was denied August 11, 1923; decree pro confesso was entered November 26, 1923, for failure to answer within five days as required by rule 29. After presentation by the plaintiffs of the bill and evidence in support of it on May 5, 1924, a deeree of the District Judge was made May 13, 1924, removing Caroline G. Tallman “as trustee for plaintiffs as remaindermen,” appointing the National Bank of Wheeling receiver of certain securities aggregating in value about $115,000, embraced in a list submitted by defendant to plaintiffs as representing the trust estate, and appointing a special master to take the accounts of the executrix and ascertain the amount and status of the prpperty in controversy. On May 20,1924, the defendant again tendered a motion to dismiss the bill on the specific ground that testator’s daughter, Helen, took under his will an absolute interest in one-half of the estate, which upon her death went by descent to her mother, Caroline G. Tallman. The court, as we understand the record, opened the default to the extent of hearing the motion to dismiss, and after argument again refused to dismiss the bill. The defendant then moved the court to open the decree pro confesso as to the appointment of a receiver. This motion was refused. A motion to open the default and allow the defendant to answer was also refused. No answer having been filed in 5 days after the motion to dismiss was denied, the decree pro confesso was properly entered under rule 29. The District Judge had discretion under rule 5 to suspend, alter, or rescind the deeree pro confesso entered by the clerk. If, as defendant’s counsel said, they were unable to restate the accounts so as to make a proper answer within the time, application should have been made to the District Judge to suspend the decree pro eonfesso for the requisite time. No such application having been made, and 30 days having elapsed from the entry of the deeree pro confesso, the court rightfully heard the case on the bill and ex parte proof, and made the decree absolute against the defendant. There is no ground to say that the discretion conferred on the District Judge by rule 17 was arbitrarily exercised to the extent that he refused to open the default. When the District Judge opened the decree of May 13, 1924, to the extent of allowing defendant’s counsel to move to dismiss the bill on the new ground that the daughter Helen took an absolute estate in fee simple to the exclusion of the plaintiffs, the order refusing the motion to dismiss was the adjudication of a duly contested matter which is properly here for review on appeal from the deeree of May 13, 1924. The correctness of this ruling of the court on the construction of the will was necessarily involved in the order appointing the receiver, for, if the plaintiffs have no interest in the estate, of course they have no right to a receivership. We agree with the District Judge in the construction of the will. Its language seems perfectly plain, and we are referred to no technicalities of construction in West Virginia which deny effect to the expressed intention of the testator. In the first clause the testator gives his estate to his wife and child, one-half to each, and then he said in the second clause, if his wife should he the survivor, she should have the use of the daughter’s share for her life, and that it should then go to the persons now represented by the plaintiffs. The gift of the absolute estate appearing from the first clause was thus cut down to a life estate by plain and unequivocal language, intended to be read with the first clause. Henry v. Haymond, 77 W. Va. 173, 87 S. E. 78; Criner v. Geary, 78 W. Va. 476, 89 S. E. 149. It follows that the widow took one-half of the estate absolutely, that she had the right as executrix and guardian of her daughter to the custody and control of the other half, both corpus and income, on the trust to apply the income for the benefit of her daughter Helen until her death, and after that event on the trust to take the income of that half for herself, and to safely keep the corpus for the remaindermen entitled to receive it at her death. The other important action of the District Judge was the appointment of a receiver of securities in the hands of the executrix of the value of $115,000. We consider first to what extent the decree of May 13, 1924, entered upon the default of the defendant, is reviewable on appeal. In Ohio, etc., R. R. v. Central Trust Co., 133 U. S. 83, 91, 10 S. Ct. 235, 237, 33 L. Ed. 561, the court said as to the proceedings under the bill after default: “If the' allegations are distinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of the complainant is in its- nature uncertain, the requisite certainty must be afforded by proof.- But in either event, although the defendant may not be allowed, on appeal, to question the want of testimony or the insufficiency or amount of the evidence, he is not precluded from contesting the sufficiency of the bill, or from insisting that the averments contained in it do not justify the decree.” The same rule is laid down in Thomson v. Wooster, 114 U. S. 104, 114, 5 S. Ct. 788, 29 L. Ed. 105, and in Winters v. United States, 207 U. S. 564, 575, 28 S. Ct. 207, 52 L. Ed. 340. We are therefore required to decide whether the facts set out in the bill, taken as true, justify breaking into the trust which the testator reposed in the defendant by the appointment of a receiver. There is no averment of insolvency; on the contrary, it - appears from the bill that one-half of the estate, which is alleged to be worth more than $350,000, belongs absolutely to the executrix. The utmost inference that could be drawn against the executrix from the charges is that she had made serious mistakés in her accounts, resulting in confusion, that she has mistaken her right in selling securities, and that she is unable to straighten out her accounts, so as to show the plaintiffs the amount of the trust fund. The accounting ordered before a master, to rectify the accounts and ascertain the trust fund in the hands of the executrix, is a sufficient remedy for these conditions. The ample solvency of the executrix and her ability to respond to any order of the court concerning the trust fund prevent any apprehension of the danger of loss of any part of it. -The plaintiffs themselves affirmatively proved by the correspondence the desire of the executrix to make a proper accounting, and her offer of all of her books and accounts for the scrutiny of plaintiffs’ counsel, to the end that he might aid in correcting mistakes. Defendant’s husband, whose chief solicitude was manifestly for his wife and daughter, placed his entire estate in her hands without security. He reposed in her, as he had the right to do, the confidence and trust of holding and managing one-half of the estate, in which she had only a life interest until her depth. Under these circumstances, the trust fund will not be taken from her under a bill which alleges nothing more than mistakes in management, without any showing of peril to the remaindermen under the trust. Appointment of a receiver of an estate intrusted by testator to an executor or trustee is a very strong measure, and will be made only when it clearly appears necessary to protect and preserve the trust property. There should be clear proof of misconduct or fraud, and danger of loss. Wise v. Hinegardner (W. Va.) 125 S. E. 579; 23 R. C. L. 28; 34 Cyc. 63; note, 72 Am. St. Rep. 63. We think, therefore, that the bill did not make a case for the appointment of a receiver, and the decree in this respect must be modified. The modification of the decree of the District Judge, however, is without prejudice to the right to plaintiffs to apply for the appointment of a receiver, and to the power of the District Judge to make the appointment, if at any time in the progress of the ease the receivership should be necessary for the preservation of the estate in remainder. Modified.

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?

Dennis J. DOMEGAN, Plaintiff, Appellee, v. Michael V. FAIR, et al., Defendants, Appellants. No. 88-1142. United States Court of Appeals, First Circuit. Heard July 26, 1988. Decided Oct. 20, 1988. Stephen G. Dietriek, Deputy Gen. Counsel, Dept, of Correction, with whom Nancy Ankers White, Sp. Asst. Atty. Gen., and Lena M. Wong, Counsel, Dept, of Correction, were on brief, for defendants, appellants. Paul E. Nemser with whom Paula M. Bagger, Helene Kazanjian and Goodwin, Procter & Hoar, were on brief, for plaintiff, appellee. Before BOWNES, NOONAN, and SELYA, Circuit Judges. Of the Ninth Circuit, sitting by designation. SELYA, Circuit Judge. Because this is an interlocutory appeal which involves us but peripherally in the merits of the case, we offer an abbreviated account of the proceedings and a decurtate explanation concerning the lone matter which lies within our present ken. I Plaintiff-appellee Dennis J. Domegan, a state prisoner, sued various administrators and correctional officials at the Massachusetts Correctional Institute — Walpole (MCI-Walpole), claiming that they had run afoul of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, Mass.Gen.Laws ch. 12, §§ 11H & 111 (West 1986), in several ways: (1) inflicting cruel and unusual punishment upon him in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the Massachusetts Declaration of Rights, (2) depriving him of liberty without due process of law contrary to the Fourteenth Amendment, and (3) interfering with rights secured by state law. Defendants (appellants before us) sought partial summary judgment on the basis that they were quali-fiedly immune from the prayers for money damages. See generally Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court denied their motion and simultaneously granted plaintiff partial summary judgment in connection with his due process claims. After reconsideration was denied, this appeal followed. II Defendants want to bite off far more than we can allow them to chew. They profess to seek immediate review of (1) the grant of partial summary judgment in plaintiffs favor, (2) the denial of their cross motion for brevis disposition on qualified immunity grounds, and (3) the rebuff of their effort to obtain reconsideration and clarification. Yet all three of these rulings are interlocutory; none are “final decisions” within the meaning of 28 U.S.C. § 1291. Because finality is lacking, they are not immediately appealable “unless appellate jurisdiction attaches in some other fashion.” In re Recticel Foam Corp., 859 F.2d 1000, 1003-1004 (1st Cir.1988). The middle item in this list of three —the order refusing partial summary judgment on the ground of qualified immunity —is properly before us under the collateral-order exception to the finality rule. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987). But the jurisdiction so conferred is severely restricted. Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127 (1st Cir.1987); Bonitz v. Fair, 804 F.2d 164, 166-67, 173-76 (1st Cir.1986). The pendency of a Mitchell appeal gives us no purchase to entertain appellants’ remaining assignments of error. Notwithstanding that we have jurisdiction to review the denial of qualified immunity midstream, “[a]ny additional claim presented to and rejected by the district court must independently satisfy the collateral-order exception to the final-judgment rule in order for us to address it on an interlocutory appeal.” Bonitz, 804 F.2d at 173. It is too plain to warrant citation of authority that the district court’s grant of partial summary judgment in Domegan’s favor — a grant which left unresolved his Eighth Amendment and state-law claims, and which, as to due process, adjudicated only liability and not damages — is not a final order; it cannot be said to “resolv[e] the contested matter, leaving nothing to be done except execution of the judgment.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 14 (1st Cir.1988). And that order fails at least three of the four requisites for invocation of the collateral-order exception: it lacks separability, finality, and urgency. The order declining reconsideration is even more clearly outside the scope of interlocutory review. Thus, although we consider the refusal of appellants’ Mitchell motion, we take no view of any unrelated rulings of the district court. Rather, we focus at this intermediate stage of the litigation exclusively upon (1) the question of whether appellants were erroneously deprived of the benefits of Harlow immunity, see infra Part III, and (2) certain procedural niceties related to the lower court’s decision on qualified immunity, see infra Part IV. III On the main issue, we conclude that the record amply supports the district court’s rejection of appellants’ Rule 56 motion. To explicate our thinking, we look first at the facts as pleaded, and then at the applicable law. In the course of this exposition, we undertake neither to resolve conflicts in the record nor to effectuate credibility determinations. We instead “accept[ ] at face value the facts as presented by [the nonmov-ant],” Bonitz, 804 F.2d at 167, to determine whether they “support a claim'of violation of clearly established law.” Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. at 2816 n. 9. A. Factual Mosaic. Plaintiff’s relevant factual averments, repeated under oath, are as follows. During the spring of 1983 Domegan was housed in the departmental segregation unit at MCI-Walpole. The prison then had a policy, known as the Alternate Feeding Program (AFP), which placed inmates who had thrown food or human waste on a specially administered diet for several successive days. While subject to AFP, the affected inmate’s solid steel cell door was shut. During the currency of an AFP impost, the door was opened only when necessary for administrative purposes. This was contrary to the usual practice which prevailed in the segregation unit. The AFP utilized a steady, unvarying diet of bread and cheese, supplemented solely with the tap water available in the cells. To receive these rations, an inmate was required to turn on the cell’s light and lie face down on his cot. Prison officials styled the AFP as an “administrative remedy;” under that rubric, inmates were afforded neither notice nor any prede-privation procedure by which they could challenge the imposition of the regimen. Domegan was twice placed on AFP after prison officials unilaterally determined that he had thrown food or waste. During the May confinement (which lasted 7V2 days), Domegan received only four meals. That July, during 5 days under the AFP regimen, he received none. The reason for this enforced asceticism, appellee claims, was that defendants shut off the supply of water and electricity to his cell while he was subject to the AFP. Because he could not switch on the light in order to comply with requirements for receiving even the Spartan fare which the AFP permitted, he went hungry. Appellant further alleges that, even had he received his stipulated allotment of bread and cheese, his diet would still have been nutritionally inadequate. B. Discussion. In this posture of the case, the denial of partial summary judgment evidences the district court’s conclusion that, “if the facts are as asserted by the plaintiff, the defendants] [are] not immune.” Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816. Here, such a conclusion cannot be faulted. Qualified immunity is an affirmative defense which, if successfully pleaded and maintained, discharges officials from the need to stand trial on damage claims. The defense is unavailable when an official has violated a “clearly established” right. Harlow, 457 U.S. at 819, 102 S.Ct. at 2738. In this context, the phrase “clearly established” has a precise definition: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 107 S.Ct. at 3039. Put another way, “in the light of preexisting law the unlawfulness must be apparent.” Id. Although the standard may be regarded as “purely legal,” it — like so many other “legal” concepts — is informed by the factual parameters of a given case. Prison officials must act “within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The punishment meted out by the sentencing courts provides the minimum treatment and maximum punishment to be accorded the inmate, within the en-cincture set by the state’s allowable rules. In other words, the discretionary acts of prison officials are bounded by the terms of the sentence. Thus, prison officials are free to transfer inmates from one facility to another within the correctional system, provided state rules allow it and the inmate could have been sent to any of the facilities upon commencing his sentence. See, e.g., Meachum, 427 U.S. at 224-27, 96 S.Ct. at 2538-40. Prison officials may not, however, punish an inmate beyond the terms of confinement set by the court and the state’s rules for prisons. Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). When prison administrators undertake to do something to an inmate on a temporary, but non-emergency, basis that they might not do to an inmate regularly or permanently, due process concerns are implicated. The Commonwealth concedes that the AFP could not have been permanently or regularly imposed upon a prisoner. Dome-gan has alleged facts sufficient to give credence to his plaint that the programmed diet failed to meet minimum requirements for daily nutritional adequacy. Moreover, taking his sworn allegations as true, as Rule 56 requires, the AFP was imposed under conditions that isolated Domegan for lengthy periods, behind a windowless and constantly closed steel door, without water or electricity. We have scant doubt that in 1983 the state of the law was such that reasonable prison officials should have known that they lacked authority to place an inmate on a nutritionally inadequate diet and simultaneously isolate him for many days without electricity or water without affording him even the thinnest sliver of due process. Certainly the statutes and regulations pertaining to state prisoners and prison conditions did not empower appellants to undertake such acts. Quite to the contrary, the Commonwealth’s laws, as applicable at the time, specified that each inmate “shall” be provided a “full” meal each day, even in “isolation units.” Mass.Gen. Laws ch. 127, § 40 (West 1974). Even when in “segregated units,” inmates “shall” be provided “regular meals.” Mass.Gen.Laws ch. 127, § 39 (West 1974). The statutory framework hollowed out no interstice wherein an inmate might be deprived of both “regular” and “full” meals. And the drafters’ use of the imperative form is telling; the statutes undeniably embody “language of an unmistakably mandatory character....” Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. As the Hewitt Court noted, “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” Id. at 472, 103 S.Ct. at 871. In this case, the Commonwealth has not only employed mandatory language, but it has employed language which, on its face, does not contemplate that an inmate may be deprived under any circumstances of the substantive predicate. Thus, not only does the substantive right to a “full” or “regular” meal appear to be guaranteed, but such a right also appears to be virtually absolute. The statutory scheme is clear: at least in non-exigent circumstances, prison officials must provide regular meals to an inmate in segregation and full meals to one in isolation. In neither case was it within their discretion to provide inadequate meals — let alone meals constrained by conditons precedent that a prisoner could not hope to meet. Appellants’ discretion to deny a convict electricity and water were, at the time, similarly circumscribed. Statutes in force required that cells be outfitted with “light, ventilation and adequate sanitation facilities.” Mass.Gen.Laws ch. 127, § 40 (West 1974). And if the officials had any doubt concerning the statute’s meaning, they need only have consulted the relevant regulations. Had they done so, the requirements of electric light, Mass.Regs.Code tit. 105, §§ 450.340, 450.343 (1979), working toilet and sink, Mass.Regs.Code tit. 105, § 450.113 (1979), and “... a safe and sanitary supply of water ...,” Mass.Regs.Code tit. 105, § 450.126 (1979), would have been apparent to them. We need not belabor the obvious. Mitchell teaches that, on an inquiry such as this, we are not to “consider the correctness of the plaintiff’s version of the facts....” 472 U.S. at 528, 105 S.Ct. at 2816. So long as the pleaded facts, substantiated sufficiently to survive conventional Rule 56 muster, see supra note 2, make out a paper case, “we must assume that there is liability upon the part of the defendants.” Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 466 (1st Cir.1985). If plaintiff’s right to be free from the claimed harm was clearly established — and in this case, we think that is so — then the defendants do not enjoy Harlow immunity. See, e.g., Bonitz, 804 F.2d at 166-68. That, in turn, given the circumscribed nature of interlocutory review on a Mitchell appeal, see supra Part II, ends our present inquiry. Let us add one further observation. Faithful to this circuit’s exposition of the Mitchell protocol, we make no distinction at this stage which depends upon the extent to which any individual defendant’s conduct may or may not have contributed to the described harm. See Bonitz, 804 F.2d at 167-68. That sort of inquiry is essentially a question not of immunity but of causation — and it may be raised by any defendant in an appropriate fashion through resort to Fed.R.Civ.P. 56, or by motion for directed verdict, or on appeal from final judgment. Moreover, even if it can be argued that the Court’s later opinion in Anderson v. Creighton, supra, has undercut this aspect of the Bonitz model — a matter as to which we presently essay no view — it would not avail appellants. All of their pertinent filings below spoke exclusively to their collective liability. No meaningful attempt at individuation was made. It is too familiar to warrant string citation that we will not consider arguments which could have been, but were not, advanced below. See, e.g., Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987). For both of these reasons, the matter of differentiated liability is not properly before us at this moment. And because the record, as we read it, contains sworn, fact-specific allegations which demonstrate the unquestionable clarity of the right violated, the district court did not err in denying appellants’ motion for partial summary judgment on qualified immunity grounds. IV Appellants have made an additional request which we address briefly. They say that because the district court denied their motion without oral argument and without delineating specific findings and conclusions, we should remand for correction of these perceived shortcomings. In this case, we decline to do so. As we have stated with echolalic regularity, the district courts have considerable discretion in deciding whether or not to allow oral argument on a dispositive motion. E.g., Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 411 (1st Cir.1985) (discussing trial court’s “wide latitude,” especially in instances “[wjhere affidavits, depositions, and other documentary material indicate that the only issue is a question of law, and where the briefs have adequately developed the relevant legal arguments”); accord Spark v. Catholic University of America, 510 F.2d 1277, 1280 (D.C.Cir.1975) (per curiam) (due process does not encompass right to oral argument on motion). See also D.Mass.Loc.R. 17(d) (hearing on motion within discretion of district court). In this case, eschewal of oral argument was well within the pale: the question was an essentially legal one, the matters pertaining to qualified immunity were adequately documented, and the parties’ contentions were fully developed. Ordinarily, a district court will not be held to have misused its discretion in refusing argument when the complaining party can “point[ ] to no single, definable aspect of its position which could not have been adequately presented by a written submission.” HMG Property Investors, Inc. v. Parque Industrial Rio Canas, Inc., 847 F.2d 908, 915 (1st Cir.1988); see also Dougherty v. Harper’s Magazine Co., 537 F.2d 758, 761 n. 3 (3d Cir.1976) (Fed.R.Civ.P. 78 authorized district court to use written submissions in lieu of live hearings). As we have said before in a different — but, we think, analogous — context, “hearings cannot be convened at the whim of a suitor, made available like popsicles in July, just because a passerby would like to have one.” United States v. DeCologero, 821 F.2d 39, 44 (1st Cir.1987). Nor does the lack of specific findings constitute a meaningful assignment of error. The Civil Rules specifically direct that “[fjindings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56_” Fed.R. Civ.P. 52(a). The rationale for this provision is patent: by definition, summary judgment can be granted only upon a showing that “there is no genuine issue as to any material fact,” FecLR.Civ.P. 56(c), thus rendering district court “factfinding” pleo-nastic. We do not mean to suggest that written opinions or bench decisions which explicate a trial judge’s reasoning are not useful to an appellate tribunal. We value such insights. Without them, we are sometimes forced to remand in order to apprehend the basis for decision below. E.g., Pearson v. Fair, 808 F.2d 163, 165-66 & n. 2 (1st Cir.1986) (per curiam); accord Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (5th Cir.1984). But the need for such articulation is, as a general rule, greater when a nisi prius court grants a dispositive motion than when it denies one. In any event, the district judge’s reasons for refusing to hon- or the qualified immunity request in this case were, we suggest, self-evident from the face of the record. We conclude, therefore, that the absence of an explicit statement of the court’s reasons for denying appellants’ Rule 56 motion was not fatal. V We need go no further. Defendants’ motion for partial summary judgment based on the doctrine of Harlow immunity was appropriately rejected at this stage of the proceedings. Moreover, it was within the district court’s discretion to determine that motion without either (1) oral argument, or (2) the filing of a written opinion. And, as we explain in the text, we do not have jurisdiction to consider presently any of the other matters which appellants seek to raise. The order denying partial summary judgment on qualified immunity grounds is affirmed. The case is remanded to the district court for further proceedings. Costs to appellee. . As we have said before, our collateral-order jurisdiction depends on the existence of four essentials: 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. United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979); accord Boreri v. Fiat S.p.A., 763 F.2d 17, 21 (1st Cir.1985). We have styled the four requisites as comprising "separability, finality, urgency and importance." In re Continental Investment Corp., 637 F.2d 1, 5 (1st Cir.1980). . We acknowledge that our precedents are somewhat murky as to whether we must, on a Mitchell motion, go beyond the complaint to ascertain whether the record as a whole presents some genuine issue as to a material fact sufficient to bar qualified immunity. Compare, e.g., Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 44-45 n. 5 (1st Cir.1987) (considering entire record) and Emery v. Holmes, 824 F.2d 143, 147 (1st Cir.1987) (similar) with Roure v. Hernandez Colon, 824 F.2d 139, 143 (1st Cir.1987) (such an inquiry would be "outside the scope of our limited review") and Bonitz v. Fair, supra (similar). We need not resolve that question today. In this case, plaintiff, having personal knowledge of the circumstances of his confinement, has reiterated the key allegations of his complaint under oath, by affidavit and in a deposition. Thus, even if we were to go outside the complaint as Feliciano-Angulo suggests, the result would be unaffected. .The AFP, as described herein, has not been used at MCI-Walpole since November 1, 1983. It has been replaced by modified versions which, at last glance, bore little resemblance to the original. . Although this is so, the procedural due process requirements which attend administrative confinement are considerably less formal than those which attend disciplinary segregation. Compare, e.g., Hewitt v. Helms, 459 U.S. at 472-76, 103 S.Ct. at 871-74, with Wolff v. McDonnell, 418 U.S. 539, 563-70, 94 S.Ct. 2963, 2978-82, 41 L.Ed.2d 935 (1974). Given the present setting of the case, we leave to the district court in the first instance any decision as to which of these models better suits this situation. . We express no opinion as to whether or not the mandated menu of bread, cheese, and water was so nutritionally deficient as to transgress either the Constitution or applicable statutes and regulations. We note merely that Domegan has alleged such a deficiency and has created a genuine issue of fact as to it. This allegation, given the stipulated diet, is not so implausible that it can be disregarded at this stage of the proceedings. . Insofar as the request implicates rulings other than the denial of qualified immunity, it is beyond the scope of our interlocutory reconnaissance, and we take no view of it.

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

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

CROTHERS v. SOPER et al. In re STEELE. (Circuit Court of Appeals, Fourth Circuit. January 12, 1926.) No. 2421. Bankruptcy 184(2)— Claim under mortgage withheld from record, so as not to affect mortgagor’s credit, properly expunged and disallowed. Where mortgage was withheld from record, so as not to affect mortgagor’s credit, claim thereunder was properly disallowed and expunged from record of trustee in bankruptcy. Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy. In the matter of the bankruptcy of J ames Groome Steele. The claim of Omar D. Crothers was disallowed and expunged from the record of Morris A. Soper and others, trustees, by the referee and the District Court, and claimant appeals. Affirmed. Isaac L. Straus, of Baltimore, Md., for appellant. William J. Bratton and Albert D. Mae-key, both of Elkton, Md. (Clarence K. Bowie and Bowie & Clark, all of Baltimore, Md., on the brief), for appellees. Before WADDILL and PARKER, Circuit Judges, and WATKINS, District Judge. PER CURIAM. Having regard to the peculiar facts and circumstances of this ease, the relations existing between the mortgagor and the mortgagee, especially that the contested mortgage for $5,225, assuming the same to have been given originally for a valid consideration and effective as between the parties, was by understanding, if not by agreement, withheld from the record, so as not to affect the mortgagor’s credit, the conclusion of the court is that the action of the District Judge and the referee, expunging and disallowing the said claim from the list of those upon the trustee’s record, should be approved and affirmed. We are led to this view, moreover, by the fact that the case seems to be ruled by those of National Bank of Athens v. Shackelford, 36 S. Ct. 17, 239 U. S. 81, 60 L. Ed. 158 (in the Circuit Court of Appeals, 208 F. 677, 678, 125 C. C. A. 575); In re Lamie Chemical Co. (C. C. A.) 296 F. 24, 28; Millikin v. Second National Bank, 206 F. 14, 19, 124 C. C. A. 148 (both decisions of this court). 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?

Jack CORTNER and Jon Silberman, Plaintiffs-Appellants, v. Robert ISRAEL, Score Productions, Inc., American Broadcasting Music, Inc., and ABC Sports, Inc., Defendants-Appellees. No. 598, Docket 83-7789. United States Court of Appeals, Second Circuit. Argued Jan. 25, 1984. Decided April 5, 1984. Robert C. Osterberg, New York City (Abeles, Clark & Osterberg, New York City, of counsel), for plaintiffs-appellants. Michael J. Calvey, New York City (Peter M. Nelson, Coudert Bros., New York City, of counsel), for defendants-appellees American Broadcasting Music, Inc. and ABC Sports, Inc. Zissu, Stein & Mosher, New York City (James Mosher, New York City, of counsel), for defendants-appellees Robert Israel and Score Productions, Inc. Before MANSFIELD, PIERCE and WINTER, Circuit Judges. MANSFIELD, Circuit Judge: This appeal illustrates the confusion that can occur when lawyers indiscriminately use multiple contracts (some on standard forms) in the transfer of copyright interests without giving careful consideration to the consequences of their action. Plaintiffs-appellants, authors of an original musical work used as a broadcast theme by defendant ABC Sports, Inc. (ABC), appeal from an order of the Southern District of New York, Gerard L. Goettel, J., granting summary judgment dismissing their claim for copyright infringement. We affirm on the ground that plaintiffs assert only a claim for breach of contract over which, absent diversity of citizenship, we have no jurisdiction. In 1976 plaintiffs and Joe Sicurella composed an original musical piece, later called “ABC’s Monday Night Football Theme,” which they assigned to a company called “The SST Group, Inc.” (SST), apparently their own corporate vehicle. On September 1, 1976, SST simultaneously entered into three written agreements: one typewritten agreement with ABC Sports, Inc., consented to in writing by the three composers (Ex. A), a second printed agreement with the three composers, signed by American Broadcasting Music, Inc. (hereinafter referred to collectively with ABC Sports, Inc. as “ABC”) (Ex. B), and a third (also on a printed form entitled “Uniform Popular Songwriters Contract”) with the three composers, witnessed by Ron Schubert, ABC’s Director of Music and Music Publishing (Ex. C). By the third contract (Ex. C) the composers assigned to SST their rights, including copyrights, in the theme (described as a “heretofore unpublished original musical composition”) in exchange for its agreement to pay them specified royalties for the various rights granted, including small performing rights through the music rights organizations of which they were members (e.g., ASCAP or BMI), sheet music publishing rights, orchestrations, licenses for mechanical reproduction, and television broadcasting. The rights were granted to SST subject to certain specified conditions. For instance SST obligated itself to render periodic royalty statements to the composers together with remittances of royalties due. The composers reserved the right to examine SST’s books and, upon its failure to make them available, to terminate the contract. SST was granted the right to assign or transfer to another the rights assigned to it only upon the composers’ written consent and upon the assignee’s agreement to be bound by all of the obligations assumed by SST. The second of the contracts (Ex. B) purported to be an agreement between the composers and SST, also signed by ABC, in which the composers represented that they had written and composed the original musical composition “ABC’S Monday Night Football Theme” and agreed to assign all rights in it to SST. In return SST agreed to pay the composers specified royalties for piano-forte and other copies that might be published and a percentage of revenues received from the licensing of the mechanical, electrical, motion picture and TV rights to the theme. The composers were also to receive from their performing rights societies such payments as might be due them for performance rights. The composers consented to the assignment of the contract, the composition, or any copyright therein, to a third party, “subject, however, to the payment of the royalties herein specified.” The agreement was signed by the three composers, SST and ABC. Under the first contract (Ex. A) SST agreed to furnish to ABC for its Monday Night Football television program music materials composed by the three individuals in exchange for payment by ABC to SST of $9,000 for costs, expenses and services incurred by SST in composing and delivering the materials plus such payments as might be required to be made by ABC to the three composers under the attached songwriter’s contract (Ex. B above). It was further agreed that in consideration of these express obligations, ABC was granted all publishing and mechanical rights in the musical materials as its sole and exclusive property, with no obligation to broadcast them. Payments under the attached songwriter’s contract were to be made by ABC to SST for the three composers. The composers expressly consented to such a payment plan. On November 8,1976, ABC filed with the U.S. Copyright Office a claim to the copyright in the theme composed by appellants, listing them and Sicurella as the authors. From 1976 to 1980 ABC used the theme as part of its Monday Night 'Football broadcasts. In 1980 it commissioned the defendants Robert Israel (Israel) and Score Productions, Inc. (Score) to write a new, similar derivative theme for future use on the same program, which it subsequently registered with the Copyright Office in its own name, listing Israel and Score as employees for hire. Since that time ABC has broadcast the new theme on its Monday night program, discontinuing use of the theme composed by appellants. On December 1, 1982, appellants instituted the present action for infringement of their alleged interest in the 1976 copyright, claiming that the defendants Israel and Score had infringed plaintiffs’ copyright interest by copying plaintiffs’ theme and by recording and performing the replacement. The appellants joined ABC, the legal owner of the copyright in plaintiffs’ theme, as a party-defendant because it refused to join in the action as a plaintiff. The complaint seeks injunctive relief and an accounting for royalties due. The defendants filed answers denying the alleged infringement and asserting among their affirmative defenses that the court lacked jurisdiction over the subject matter. On March 3, 1983, the defendants moved for summary judgment on the ground that they had not infringed the 1976 copyright because ABC is the sole and exclusive owner of all right, title, and interest in the copyright of the musical composition created by the plaintiffs and that as such it properly employed Israel and Score as “writers for hire” to create the 1980 derivative work, of which it is also the sole owner. On August 19, 1983, Judge Goettel handed down an opinion granting summary judgment dismissing the complaint on the ground that under the contracts entered into by the parties the plaintiffs transferred their entire copyright interest to SST and ABC and the plaintiffs did not retain any beneficial or equitable interest in the copyright entitling them to sue for infringement. DISCUSSION The initial question is whether ABC acquired from appellants the entire copyright interest in the musical theme composed by them or whether they retained some beneficial interest in the copyright. If they retained no interest in the work the dismissal of their infringement claim must, of course, be affirmed. If, on the other hand, they retained some beneficial interest we must determine whether that interest is enforceable against the defendants. Appellants argue that they have a sufficient beneficial interest in the original copyright to give them standing to sue infringers and that the district court erred in ruling to the contrary. We agree. It is true that Exhibit A, the agreement between ABC and The SST Group, Inc., which was consented to in writing by the three composers, provides that the music composed by them and all rights therein shall be ABC’s “sole and exclusive property to do with as we [ABC] wish, free of any obligation other than as set forth expressly herein” (Par. 2), and expressly relieves ABC of any obligation to use or broadcast the materials composed by appellants (Par. 8). However, ABC, as assignee, simultaneously assumed SST’s obligation as publisher in the other two contracts to pay the appellants such royalties as might be earned from the exploitation of the theme. Although ABC had the right not to exploit the property, the parties clearly contemplated that it would do so, as indeed it did, resulting in the payment of royalties to the composers by the performing rights society of which they were members. Otherwise there would have been no point in negotiating lengthy contracts dealing with the royalties they might realize from the publication and performance of their work. Under these circumstances we are satisfied that their right to royalties, although contingent on ABC’s exploitation of the theme, gave them a sufficient beneficial interest in the copyright to give them standing to seek judicial relief under the copyright law against infringement, both under the 1909 Copyright Act, see Manning v. Miller Music Corp., 174 F.Supp. 192 (S.D.N.Y.1959), and under the 1976 Act, 17 U.S.C. § 501(b). When a composer assigns copyright title to a publisher in exchange for the payment of royalties, an equitable trust relationship is established between the two parties which gives the composer standing to sue for infringement of that copyright. Manning v. Miller Music Corp., supra, 174 F.Supp. at 195-97; Alexander v. Irving Trust Co., 132 F.Supp. 364, 369 (S.D.N.Y.), aff'd, 228 F.2d 221 (2d Cir.1955), cert. denied, 350 U.S. 996, 76 S.Ct. 545, 100 L.Ed. 860 (1956); Hoffman v. Santly-Joy, Inc., 51 F.Supp. 778, 778-79 (S.D.N.Y.1943). Otherwise the beneficial owner’s interest in the copyright could be diluted or lessened by a wrongdoer’s infringement. As the Supreme Court of New York, Appellate Division, First Department, noted in Nelson v. Mills Music, 278 App.Div. 311, 104 N.Y.S.2d 605 (1951), concerning the duties of the publisher towards the songwriter: “While defendant was not obligated to promote the sale of plaintiffs’ song, it was certainly obligated to exercise good faith towards plaintiffs and not use plaintiffs’ composition for the purpose of fashioning a competing song to be sold in place of plaintiffs’ song.” Id. at 607. Prior to the adoption of the 1976 Copyright Act, 17 U.S.C. §§ 101, 501(b), the beneficial owner, in order to have standing to sue the infringer, was required to join the owner of the copyright as a defendant, alleging that the latter had refused after demand to sue. See, e.g., Kriger v. MacFadden Publications, Inc., 43 F.Supp. 170 (S.D.N.Y.1941); Schellberg v. Empringham, 36 F.2d 991 (S.D.N.Y.1929). The 1976 Copyright Act merely codified the case law that had developed under the 1909 Act with respect to the beneficial owner’s standing to sue. Section 501(b) of the 1976 Act provides that “[tjhe legal or beneficial owner of an exclusive right under a copyright” is entitled to sue for infringement. 17 U.S.C. § 501(b). The legislative history accompanying the Act notes: “A ‘beneficial owner’ for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 159, reprinted in 1976 U.S. Code Cong. & Ad.News 5659, 5775. Nimmer notes that the 1976 codification of the standing of beneficial owners “follows the law established by the courts under the 1909 Act.” 3 Nimmer on Copyright § 12.02. We therefore conclude that appellants have standing to sue for infringement of their beneficial interest in the copyright, regardless whether the case is governed by the 1909 Copyright Act or the 1976 Copyright Act. It thus becomes unnecessary for us to resolve the issue of which Act applies. A more troublesome question is whether ABC and those commissioned by it to compose the replacement theme (Israel and Score) can be charged with infringement of appellants’ beneficial interest in the original copyrighted theme. Infringement is the violation of an owner’s copyright interest by a non-owner. 17 U.S.C. § 501(a). The purpose of an infringement suit is to protect the owner’s property interest. It is elementary that the lawful owner of a copyright is incapable of infringing a copyright interest that is owned by him; nor can a joint owner of a copyright sue his co-owner for infringement. Richmond v. Weiner, 353 F.2d 41, 46 (9th Cir.1965), cert. denied, 384 U.S. 928, 86 S.Ct. 1447, 16 L.Ed.2d 531 (1966); Donna v. Dodd, Mead & Co., 374 F.Supp. 429, 430 (S.D.N.Y.1974); Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 646 (S.D.N.Y.1970), aff'd, 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). The copyright owner possesses the rights to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, 17 U.S.C. § 106, and he may employ others to produce derivative works for hire, in which event, the owner, in the absence of a contrary agreement, acquires the copyright to the new material in the derivative work, 17 U.S.C. §§ 103(b), 201(b); Russell v. Price, 612 F.2d 1123, 1128 (2d Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2919, 64 L.Ed.2d 809 (1980). Moreover, when a derivative work, whether or not it falls within the types that may be the subject of a “work made for hire,” see 17 U.S.C. § 101, is commissioned by the copyright owner of the work from which it is derived and produced with that owner’s consent, the derivative composition does not infringe the preexisting composition. 1 Nimmer on Copyright § 3.06 (1983) (“the consent of the copyright owner of the pre-existing work is necessary in order to render the derivative or collective work non-infringing”). Applying these principles here, it is clear that ABC, being the owner of legal title to the underlying copyrighted theme, cannot be held liable for infringement under the Copyright Act and that defendants Israel and Score, being either employees for hire in the production of ABC’s replacement theme or persons commissioned by ABC as owner of the legal title to create a work derived from the pre-existing theme, cannot be liable for infringement. It may well be, as Judge Goettel suggested, that ABC might be liable to appellants in a state court action at common law for breach of an implied obligation not to use the musical theme in a way that would deprive appellants of their right to royalties. See, e.g., Nelson v. Mills Music, 278 App.Div. 311, 104 N.Y.S.2d 605 (1951). But we lack diversity jurisdiction over such a contract action since the plaintiffs are all New York citizens and the defendant companies are incorporated under New York law. The order and judgment of the district court are affirmed. . Although ABC mildly suggests that appellants created the 1976 theme as employees for hire, 17 U.S.C. §§ 101, 201(b), and that it is therefore presumed to be the author, see Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567 (2d Cir.1966), 1 Nimmer on Copyright § 5.03[D] (1983), we are satisfied from its copyright registration naming appellants as the authors, from its own references to them in its brief as the authors, and from its negotiation of royalty terms with them, that they are legally the authors of the theme.

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?

Shelton C. SHARPE, Appellant, v. PHILADELPHIA HOUSING AUTHORITY, Appellee. No. 82-1050. United States Court of Appeals, Third Circuit. Argued July 21, 1982. Decided Nov. 15, 1982. Vernon A. Mclnnis, (argued), Philadelphia, Pa., for appellant. Harold L. Frank, (argued), Philadelphia, Pa., for appellee. Before ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge. Honorable Hubert I. Teitelbaum, United States District Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This is an appeal from the district court’s dismissal of the plaintiffs complaint under the Age Discrimination in Employment Act (ADEA), Pub.L. 90-202, 81 Stat. 602 (1967), as amended, Pub.L. 95-256, 92 Stat. 189 (1978), 29 U.S.C. § 621 et seq. (1982). The district court’s granting of the defendant’s motion to dismiss was based upon its conclusion that the plaintiff’s filing of a charge of unlawful age discrimination with the Equal Employment Opportunity Commission (EEOC) was untimely under 29 U.S.C. § 626(d)(2). We will affirm the district court in part, but we must remand for further proceedings on one aspect of the case. We accept as true the allegations of the plaintiff’s complaint, as we must in reviewing the granting of a motion to dismiss under Rule 12(b)(6), F.R.Civ.P. Plaintiff Shelton C. Sharpe alleges that he was hired by defendant Philadelphia Housing Authority (PHA) in 1970, as a Housing Patrolman. By 1973, Sharpe, then fifty years old, had attained the rank of Captain in the Housing Police Department. However, in 1975, Sharpe was demoted to Lieutenant, allegedly because such a reduction in rank was, according to his employer, “good for an old man.” On January 19, 1979, Sharpe was again demoted, from Lieutenant to Sergeant. Finally, on August 1, 1979, Sharpe was informed of PHA’s intention to terminate his employment, effective August 15, 1979. Sharpe left work as of August 15, 1979, but continued an administrative appeal of his discharge within PHA. Nearly a year and a half later, on January 29, 1981, PHA offered to reinstate Sharpe as a patrolman, which offer Sharpe rejected. PHA then denied Sharpe’s appeal of his termination and notified him on January 29, 1981, that the August 15, 1979 discharge would stand. Sharpe was fifty-eight years old at that time. On July 1, 1981 Sharpe filed a charge with the EEOC alleging age discrimination in employment, and on August 14, 1981, he filed this civil action in the district court. The defendant moved to dismiss on the grounds that (1) Sharpe’s administrative charge was not timely filed; (2) service of process was defective; (3) the complaint failed to state a claim on which relief could be granted. The district court granted the motion to dismiss on the first ground only, that is, for the plaintiff’s asserted failure to file timely a charge with the EEOC. The ADEA includes time limits during which administrative charges must be filed and during which civil suits must be commenced. The time limits for commencing suit were not asserted as defenses in this case; rather, the defendant relied upon the limitation periods governing administrative filing, 29 U.S.C. § 626(d)(1) and (2). Those sections read as follows: § 626(d). No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which § 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. 29 U.S.C. § 633(b) provides in pertinent part: (b) In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. ... It is undisputed that Pennsylvania is a “deferral” state for purposes of § 633(b), and that the plaintiff was therefore entitled to the longer limitations period set forth in 29 U.S.C. § 626(d)(2). We are obliged, therefore, to determine whether Sharpe’s charge was filed with the EEOC within 300 days of the alleged discriminatory acts, as required by § 626(d)(2). Sharpe argues (1) that his discharge from employment was not a final decision, and hence not a completed discriminatory act, until January 29, 1981, the date his appeal was denied; and (2) the limitations period should be tolled for that period of time that PHA, by permitting appeal of its decision, held out hopes of re-employment. Cf., Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). He thus asserts that his July 1, 1981 administrative charge was timely in all respects. Sharpe’s argument, however logical it may be, is foreclosed by Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), which held: In sum, the ... alleged discrimination occurred — and the filing limitations therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later. [The College’s] entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.... The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer’s decision is made.... 449 U.S. at 258, 261, 101 S.Ct. at 504-505, 506 (footnotes and citations omitted, emphases in original). Although Ricks does not squarely dispose of Sharpe’s tolling suggestion, we find no allegations of induced reliance on promises, lack of clarity in’ communicating the termination, or other conduct on the part of PHA which would permit even an inference that equitable tolling might be proper in this case. See, Hart v. J.T. Baker Chemical Corp., 598 F.2d 829 (3d Cir.1979); Bonham v. Dresser Industries, Inc., supra. Thus, Ricks cannot be meaningfully distinguished on the limitations question. Indeed, Sharpe’s argument for the later date is not even as strong as that made by Ricks, because Sharpe was not working for PHA while his “in-house” appeal was pending, and thus he had begun to suffer the effects of PHA’s August, 1979 decision to terminate him nearly two years before his administrative charges of discrimination were filed with the EEOC. Because every discriminatory event alleged by Sharpe, save one, occurred before September 5, 1980 (300 days before July 1, 1981), all but one of Sharpe’s allegations of discrimination were, under current law, correctly held by the district court to be time-barred. The one exception requires us to remand for further proceedings. Sharpe alleged in paragraphs 16, 17 and 18 of his complaint as follows: 16. On January 29, 1981, plaintiff was informed by defendant ■ that plaintiff would be reinstated to patrolman, however, only on the condition that plaintiff waive back pay compensation, and without making a determination on plaintiff’s original appeal regarding his demotion to Sergeant. Plaintiff rejected this offer. 17. Defendant does not treat younger men in a similar manner. 18. In 1979, Joseph Kennedy, approximately thirty years of age, was demoted from Sergeant to Patrolman for being intoxicated on duty. He protested his demotion and was promoted by defendant to Lieutenant. Sharpe thus squarely alleges that he was discriminated against on the basis of his age with respect to the “conditions ... of [his] employment”, 29 U.S.C. § 623(a)(1), i.e., the manner in which the appeals of his last demotion and his discharge were treated. Ricks makes clear that such a claim is actionable: In order for the limitations period to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who had also been denied tenure. 449 U.S. at 258, 101 S.Ct. at 504 (emphasis supplied). Although Sharpe’s complaint was not a model of clarity, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Sharpe’s allegations concerning PHA’s treatment of his appeal could conceivably support recovery under the ADEA. We emphasize that Sharpe will not be permitted to prove that age discrimination motivated PHA’s decision to terminate him in August, 1979. Rather, Sharpe’s claim is now limited to PHA’s allegedly discriminatory acts within the limitations period with respect to his “in-house” appeals. Whatever obstacles there may be in establishing such a claim, Sharpe nevertheless should be afforded the opportunity to proceed upon it. We will affirm the order of the district court in part, but we will remand for further proceedings consistent with this opinion. . 29 U.S.C. § 255(a) (as adopted for application to ADEA suits by 29 U.S.C. § 626(e)) requires ADEA suits to be brought within two years of the accrual of the cause of action. The principal act of discrimination of which the plaintiff complains (his discharge) occurred in August, 1979 (either on August 1, 1979, or August 15, 1979), and suit was filed on August 14, 1981. The defendant, however, did not challenge the timeliness of suit under 29 U.S.C. § 255(a), either here or in the district court. The ADEA also prohibits the bringing of suit until 60 days after the filing either of a federal or state administrative charge. 29 U.S.C. §§ 626(d), 633(b). Although the plaintiff did not wait for 60 days to elapse after his administrative charge was filed before he filed his civil suit, the defendant did not expressly challenge the plaintiffs failure to wait the required 60 days. Rather, PHA cited § 626(d) to the district court in connection only with its argument that the plaintiffs claim was barred for failure to file an administrative charge within 180 days of the alleged discriminatory acts. The defendant, in short, did not challenge the timeliness of suit at all. Moreover, PHA’s motion to dismiss was filed after 60 days had elapsed from the filing of administrative charges, and the district court’s ruling on the motion was rendered some five and one half months after the Pennsylvania Human Relations Commission would have been advised of Sharpe’s charges. Thus, we conclude: (1) The district court effectively complied with the mandate of Oscar Mayer & Co. v. Evans, 441 U.S. 750, 764-65, 99 S.Ct. 2066, 2075-2076, 60 L.Ed.2d 609 (1978) (requiring the district court to defer to the state agency for up to 60 days where that period has not elapsed at the filing of suit); (2) the district court did not err in finding that § 255(a) did not bar suit, and in not addressing the 60-day pre-suit waiting period, because the defenses, if available, were waived. See, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 811 n. 9, 100 S.Ct. 2486, 2490 n. 9, 65 L.Ed.2d 532 (1980). . Section 2 of President Carter’s 1978 Reorganization Plan No. 1, 43 F.R. 19807, 92 Stat. 3781, transferred all functions related to age discrimination administration and enforcement from the Secretary of Labor to the Equal Employment Opportunity Commission. . We agree with the district court that “[s]ince EEOC regulations require that all complaints of discrimination received by the Agency must be forwarded immediately to appropriate state agencies, deference to deferral state administrative procedures would appear to be automatic.” App.16. Because the defendant has not challenged the district court’s presumption, and because the plaintiff would, if necessary, have the opportunity on remand to cure any failure on the part of the EEOC to forward the complaint to the appropriate state agency, see Oscar Mayer & Co. v. Evans, supra note 1, 441 U.S. at 764-65, 99 S.Ct. at 2075-2076, we will assume that the Pennsylvania Human Rights Commission did indeed receive the plaintiff’s administrative charge pursuant to the EEOC regulations. . As we view the record, the plaintiff cannot assert a claim under the ADEA for any discrimination which took place prior to September 5, 1980 (300 days before Sharpe’s July 1, 1981 complaint was filed with the EEOC). Thus the only issue remaining is whether any act by PHA on or after September 5, 1980, violated the ADEA.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

Daniel BARNIER, Plaintiff, Marie Barnier, Plaintiff-Appellee, Cross-Appellant, v. William SZENTMIKLOSI, Peter Campbell, City of Milan Police Department, and City of Milan, Defendants-Appellants, Cross-Appellees. Nos. 83-1265, 83-1311. United States Court of Appeals, Sixth Circuit. Argued Sept. 29, 1986. Decided Feb. 10, 1987. Keith, Circuit Judge, filed concurring opinion. John B. Collins, Collins and McCormick, Ypsilanti, Mich., Michael McCormick, argued, for defendants-appellants, cross-ap-pellees. James A. Evashevski, Hooper, Hathaway, Price, Beuche and Wallace, Ann Arbor, Mich., David J. Hutchinson, Lead Counsel, Bruce T. Wallace, Robert South-ard, argued, for plaintiff-appellee, cross-appellant. Before KEITH and WELLFORD, Circuit Judges, and TODD, District Judge. The Honorable James D. Todd, United States District Court for the Western District of Tennessee, sitting by designation. WELLFORD, Circuit Judge. Defendants, police officers Szentmiklosi and Campbell, the police department, and the City of Milan, Michigan, appeal a malicious prosecution judgment in favor of plaintiff, Marie Barnier, on two grounds: (1) erroneous admission of a polygraph test, and (2) insufficient evidence to support the verdict. Barnier cross-appeals, challenging the district court’s denial of treble damages against the City on her malicious prosecution claim and the district court’s dismissal of her § 1983 claim. We hold that the admission of the polygraph test was reversible error and therefore REVERSE and REMAND for a new trial on the state law malicious prosecution claim. In all other respects, we AFFIRM the district court judgment. I. In the early morning hours of May 30, 1981, appellants, two Milan police officers, were pursuing a suspect for driving while intoxicated, Timothy Barnier, son of plaintiff. Timothy was attempting to evade police and finally stopped at his parents’ home. According to Mr. and Mrs. Barnier, they were awakened by police car sirens and flashing lights. The couple ran to the front yard in sleepwear to discover the police officers wrestling with their son, and Mrs. Barnier believed one officer was choking her son. Mrs. Barnier then intervened and grabbed the arm of the officer who she believed was “choking” her son. She testified that she only held the officer’s arm for a minute or so despite the officer’s warning to “get away.” Mr. Barnier testified that he never touched either officer, and his wife denied that she made any additional physical contact with either officer. The Barniers also claimed that the police officers pushed Mrs. Barnier, chased both of them into the house, and tried to knock down the door. The officers’ version was entirely different. They testified that they had to engage in a “wrestling” match to subdue Timothy and eventually resorted to a chokehold. The officers claimed that when Timothy’s parents came out of the house, the Barniers grabbed and pulled on them, struck at them in the back, and generally interfered with their attempts to effect Timothy’s arrest. One officer claimed that Mr. Barnier struck him in the face. The officers subsequently prepared a report stating their version of the circumstances surrounding Timothy’s arrest. The officers concluded: “Officers will seek a two count warrant on each subject [parents] for Assault on Police officer and Interfering with arrest from the county prosecutors [sic] office.” This report was submitted to their superiors for review, but the defendant officers testified that they had no further knowledge of subsequent events in respect to action against the Bar-niers. Based on the officers’ report, the prosecutor’s office issued a criminal complaint charging the Barniers with criminal assault and battery, a maximum ninety day misdemeanor offense. A summons was then mailed to the Barniers to give notice of a court appearance on the charge. Prior to that hearing, the local newspaper mentioned a hearing with respect to an alleged assault and battery at the Barniers’ address, but did not mention their name. The Barniers made the required appearance and later claimed that the presence of several acquaintances at the hearing embarrassed them. On the advice of their counsel, the Barni-ers took a lie detector test, apparently to encourage the prosecution to dismiss the charges. Defendants and defense counsel knew nothing about the lie detector test. Meanwhile, Timothy pleaded no contest to the DWI charge. The Barniers attended three other hearings during the next two months before the judge dismissed the complaint on the prosecutor’s motion. Mr. and Mrs. Barnier and son Timothy then filed suit based on a § 1983 claim for alleged deprivations under the due process and equal protection clauses as well as eighth amendment violations. Plaintiff and her family also raised numerous pendent state law claims for assault and battery, malicious destruction of private property, false arrest, malicious prosecution, and intentional infliction of emotional distress. At trial the district court directed a verdict in defendants’ favor on the § 1983 claims in a published opinion. See Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D. Mich.1983). The only state claims submitted to the jury concerned the charges of assault and battery, false arrest, and malicious prosecution. The jury returned a verdict in Mrs. Barnier’s favor only on the malicious prosecution claim, awarding her $5,500.00 compensatory damages against the City. Because of a Michigan statute, the district judge trebled the damages award against the remaining individual defendants. The judge declined, however, to treble the damages award against the City. The jury verdict was in favor of defendants on all other claims. II. Defendants’ first assignment of error concerns the trial court’s admission of evidence that the Barniers took a lie detector test. Plaintiffs asserted that taking the test was emotionally stressful, and they purported to introduce evidence of the polygraph test only for the purpose of showing, damages. The district court admitted the evidence, limiting its use to the damages issue. Generally, the use of polygraph results to prove a party’s innocence is prohibited. See, e.g., United States v. Murray, 784 F.2d 188 (6th Cir.1986); Poole v. Perini, 659 F.2d 730, 735 (6th Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 450 (1982). Under certain limited circumstances, however, the fact that such a test was taken may be relevant and admissible for purposes other than establishing the truth or falsity of a disputed fact. See Murphy v. Cincinnati Ins. Co., 772 F.2d 273 (6th Cir.1985) (insured’s willingness to take lie detector test admissible for the limited purpose of showing insurer’s bad faith in denying insured’s claim). Under the circumstances of this case, we conclude that the district court’s admission of evidence that the Barniers took a lie detector test was reversible error. The manner in which the evidence was introduced was prejudicial because it allowed, if not encouraged, the jury to draw improper inferences from the evidence. Immediately following Mr. Barnier’s testimony describing the test, his attorney asked: Q. All right, at some point after this test, did you go back to court? A. Yes, I did. Q. Okay, and what happened to the charges against you and your wife? A. The charges was dropped against me and the wife____ Similarly, immediately following Mrs. Bar-nier’s description of taking the lie detector test, her attorney asked: Q. Back to the criminal charges now, were those eventually dismissed? A. Yes, they were. Once again, in cross-examining the prosecutor, the Barniers’ attorney asked: Q. You’re aware that a lie detector test was taken by Dan Barnier and Marie Barnier? A. That’s correct. Q. You say you dismissed the case. In fact ... the Honorable Ken Bronson dismissed the case, did he not? A. I made a motion to dismiss; it was ... based on my motion to dismiss____ This repetitive line of questioning clearly gave rise to the inference that the prosecutor dropped the charges because of the results of the lie detector test. More importantly, this testimony implied that the test demonstrated that the Barniers’ story was true. Using evidence of a lie detector test in this manner with the effect of bolstering the Barniers’ credibility was highly prejudicial, particularly since the entire case hinged on whether the jury believed the Barniers’ version of the facts and the burden cast was on plaintiff. The verdicts rendered for defendants on other claims of misconduct and wrongful activity arising out of the confrontation in controversy indicate that the version of events claimed by plaintiff and her family were not otherwise accepted by the jury. The purported use of this evidence for the purpose of showing damages was dubious at best, because the Barniers voluntarily submitted to the polygraph test at the advice of their own counsel, not at the request of the prosecution or these defendants. Defendants and their counsel did not even know the test was being taken, let alone encourage or agree to a polygraph test. We doubt that the Barniers would volunteer to take the test unless for the purpose of reporting its results to the prosecutor if the results were deemed by their attorney to be favorable. If unfavorable, presumably the results would not have been revealed. To claim that defendants were somehow responsible for the emotional stress the test caused them under these circumstances is questionable in our view. We have difficulty seeing the causation between the voluntary submission to the test and any damages attributable to defendants. In sum, we doubt that the evidence of the polygraph was properly admissible for any purpose, and the repeated line of questioning implying that the polygraph supported the Barniers’ credibility far outweighed in prejudice the dubious probative value on the damages issue. The district court should not have admitted this evidence under Federal Rule of Evidence 403. See United States v. Ridling, 350 F.Supp. 90, 95 (E.D.Mich.1972) (“The Court must always be alert to prevent the use of evidence that has marginal utility in the process of truth seeking if it is of such a nature so as to over-impress the jury.”) With respect to defendants’ second assignment of error, we find the evidence sufficient to support a jury verdict in favor of the Barniers on the malicious prosecution charge, and to support the judgment for defendants on all the other charges. III. Mrs. Barnier has also raised several assignments of error on her cross-appeal. Plaintiff’s first assignment of error concerns the issue of treble damages. After the jury rendered a favorable verdict on plaintiff’s malicious prosecution claim, plaintiff moved for treble damages pursuant to Mich.Comp.Laws § 600.2907. The district judge granted this motion in part, allowing treble damages as to the individual defendants only, but not against the municipal defendants. The district court determined that the City of Milan did not “for vexation and trouble or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against.” Mich.Comp.Laws § 600.2907. The court concluded that the statute was intended to apply to persons who were the actual wrongdoers. Because the City of Milan could only be liable vicariously for the actions of its employees, treble damages were not appropriate against the City. No Michigan court has expressly decided whether a municipal employer can be held liable for treble damages when its liability is founded solely on respondeat superior. In determining whether treble damages against the municipality are appropriate, we look to the statute and its purposes. The Michigan Court of Appeals recently held that the treble damages provision in this statute is intended to punish a defendant rather than to compensate a plaintiff. See Camaj v. S.S. Kresge Co., 143 Mich. App. 604, 372 N.W.2d 359 (1985), rev’d on other grounds, 426 Mich. 281, 393 N.W.2d 875 (Mich.1986). Camaj, however, cited cases holding that the treble damages provision was compensatory in purpose. See 143 Mich.App. at 606, 372 N.W.2d at 360. Regardless of whether the purpose is punitive or compensatory we find no error in the result reached by the district judge, an experienced Michigan jurist. If the purpose of the treble damage provision is to provide exemplary damages, the well-reasoned majority view prohibits courts from imposing punitive damages on a governmental body for the act of one of its agents or employees. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 260, 101 S.Ct. 2748, 2756, 69 L.Ed.2d 616 (1981) (municipalities not liable for punitive damages under § 1983) (“Judicial disinclination to award punitive damages against a municipality has persisted to the present day in the vast majority of jurisdictions.”). See also J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice, § 5.13 (1985). In Newport the Supreme Court explained the policy reasons disfavoring municipal liability for punitive damages. See 453 U.S. at 263, 266-71, 101 S.Ct. at 2759. First, punitive damages are designed to punish the wrongdoer. Assessing these damages against the municipality rather than the offending official punishes the wrong party. Id. at 267, 101 S.Ct. at 2757, 2759-62. Here the municipality is not the wrongdoer. “Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself. To the extent that the purposes of § 1983 have any bearing on this punitive rationale, they do not alter our analysis.” 453 U.S. at 267, 101 S.Ct. at 2760. Second, punitive damages are intended to deter wrongdoing. Treble damages against the City miss the mark. The individual police officer is not likely to be deterred by the knowledge that punitive damages could be assessed against the municipality by reason of his excessive or wrongful activity. Assessing damages against the offending official is a more direct and effective means of deterrence. Id. at 268-69,101 S.Ct. at 2760. In addition, imposing punitive damages on municipalities may create a serious risk to the municipalities’ financial integrity. Id. at 270-71,101 S.Ct. at 2761-62. Imposing punitive damages potentially results in a windfall to the complaining party and may have a substantial impact on the local treasury, and, consequently, on services available to the public. Id. Even if the treble damages imposition were deemed compensatory in purpose, a reasonable statutory construction would permit us to affirm. As the district court noted, the statute’s focus is on the wrongdoer who actually caused the injury. Thus when a municipality is vicariously and not directly liable for the injury, the municipality is not one who “cause[d] or procure[d]” the malicious prosecution. See Mich.Comp. Laws § 600.2907. The district court, therefore, properly refused to treble the damages with respect to the municipality. IV. The final argument advanced by plaintiff (and amicus curiae) is the alleged erroneous dismissal of plaintiff’s § 1983 claims. As a threshold matter, we note that plaintiff did not allege or demonstrate any practice or custom on the part of the City of Milan or its police department with respect to any of the individual officers’ actions. A § 1983 action is therefore unavailable against the City, because “the touchstone of a § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of [constitutional] rights.” Monell v. New York City Dept, of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). A municipality cannot be held liable under § 1983 on a respondeat superior theory. Id. at 691, 98 S.Ct. at 2036. “The ‘official policy’ requirement [of Monell ] was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, — U.S.-, 106 S.Ct. 1292,1298, 89 L.Ed.2d 452 (1986) (emphasis in original). Moreover, we hold that on the basis of the rationale expressed by the district court, and by virtue of Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the district court properly dismissed the § 1983 claims under the circumstances of this case. The conduct of the defendant City of Milan, in any event, being “once removed” from the alleged “on the scene” malicious action of the police officers, and being negligent at most, does not rise to any claim of municipal conduct that “shocks the conscience.” Insofar as the actions of the police officers are concerned, being involved in an altercation with parents who sought to intervene in the arrest of their son, they were vindicated by the triers of fact against plaintiffs’ charges of assault and battery and false arrest. That they submitted in their official report a different and later questioned and controverted version of facts and circumstances, deemed by the city prosecutor to be a basis for a misdemeanor prosecution, would also not be the kind of conduct that would “shock the conscience” with regard to the due process and malicious prosecution claims of the Barniers. In addition, the rationale of this court expressed in the recent Wilson v. Beebe decision, 770 F.2d 578 (6th Cir.1985) (en banc), supports the district court’s decision. We decline the invitation of plaintiff and amicus curiae to create a constitutional requirement that the City prosecutors conduct a hearing before pursuing a misdemeanor charge. Such a requirement would be especially inappropriate on these facts. The charge was based on what appeared to be reasonable cause information submitted in formal reports by police officers who arrested a DWI suspect, who subsequently in substance admitted the charge of being intoxicated. Furthermore, plaintiff has not shown that no adequate postdeprivation state remedy was available in the event the officers who made the report were later determined to be malicious in implicating plaintiff in a misdemeanor offense. Accordingly, we REVERSE and REMAND for further proceedings the judgment for plaintiff on the malicious prosecution claim. In all other respects, judgment for defendants is AFFIRMED. . The statute provides: Every person who shall, for vexation and trouble or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or civil or criminal action, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall be liable to the person so arrested, attached or proceeded against, in treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained aiid incurred by him; and shall be liable to the person in whose name such arrest or proceeding was had in the sum of $200.00 damages, and shall be deemed guilty of a misdemeanor, punishable on conviction by imprisonment in the county jail for a term not exceeding 6 months. Mich.Comp.Laws § 600.2907.

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"?

DOUD et al., doing business as BONDIFIED SYSTEMS, et al. v. HODGE, AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS, et al. No. 129. Argued February 29, 1956. Decided March 26, 1956. John J. Yowell argued the cause and filed a brief for appellants. William C. Wines, Assistant Attorney General of Illinois, argued the cause for appellees. With him on the brief was Latham Castle, Attorney General. Raymond S. Sarnow, Assistant Attorney General, was also on a Motion to Affirm. Mr. Justice Minton delivered the opinion of the Court. The appellants are a partnership and its agent, all residents of Illinois. The partnership was engaged exclusively in the business of selling and issuing money orders in the State of Illinois. This business activity was to be conducted through agents who are principally persons engaged in operating retail drug, hardware and grocery stores. Appellant Derrick, a drug store proprietor, contracted with the partnership to act as its agent for the sale of money orders which it issued. Illinois, by statute, has sought to license and regulate community currency exchanges. Section 1 of the Community Currency Exchanges Act defines a community currency exchange as “any person, firm, association, partnership or corporation, except banks incorporated under the laws of this State and National Banks organized pursuant to the laws of the United States, engaged ... in the business or service of, and providing facilities for, cashing checks, drafts, money orders or any other evidences of money acceptable to such community currency exchange, for a fee or service charge or other consideration, or engaged in the business of selling or issuing money orders under his or their or its name, or any other money orders (other than United States Post Office money orders, American Express Company money order, Postal Telegraph Company money orders, or Western Union Telegraph Company money orders), or engaged in both such businesses, or engaged in performing any one or more of the foregoing services.” Subsequent sections of the Act provide for the licensing and comprehensive regulation of such businesses. Appellants brought this suit in the Northern District of Illinois seeking to enjoin the appellees, who are the Auditor of Public Accounts, the Attorney General of the State of Illinois and the State’s Attorney of Cook County, Illinois, from enforcing the Community Currency Exchanges Act against them. Jurisdiction was asserted under 28 U. S. C. § 1331. Appellants argued that a permanent injunction should be issued on the ground that the Act denied them equal protection of the laws in violation of § 1 of the Fourteenth Amendment to the Federal Constitution in that appellants are required to obtain a license and submit to regulation in the conduct of their money order business in the State while the American Express Company, which is engaged in the identical business activity in Illinois, is excepted from the operation of the Act. Since the complaint attacked the validity of a state statute under the Fourteenth Amendment to the Federal Constitution, the suit was tried before a three-judge District Court pursuant to 28 U. S. C. §§ 2281 and 2284. The District Court heard the case at length and made findings of fact, the material portions of which we have set forth above. The District Court dismissed the complaint, holding that it lacked jurisdiction to determine the constitutional question presented in the absence of an authoritative determination by the Supreme Court of Illinois as to whether the exemption of the American Express Company from the terms of the Act is unconstitutional as applied to these appellants. 127 F. Supp. 853. We noted probable jurisdiction. 350 U. S. 814. It is clear that the District Court had jurisdiction to entertain appellants’ complaint by virtue of the authority vested in it by 28 U. S. C. §§ 2281 and 2284. This Court has never held that a district court is without jurisdiction to entertain a prayer for an injunction restraining the enforcement of a state statute on grounds of alleged repugnancy to the Federal Constitution simply because the state courts had not yet rendered a clear or definitive decision as to the meaning or federal constitutionality of the statute. We hold that the District Court has jurisdiction of this cause. It was error to dismiss the complaint for lack of jurisdiction. The judgment of the District Court is vacated and the case is remanded to it. We do not decide what procedures the District Court should follow on remand. It is so ordered. Ill. Rev. Stat., 1955, c. 16½ §§ 30-56.3. Ill. Rev. Stat., 1955, c. 16½, § 31.

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?

MONROE STREET PROPERTIES, INC., an Arizona corporation, Appellant, v. Orville S. CARPENTER, Trustee, etc., Appellee. No. 22228. United States Court of Appeals Ninth Circuit. Feb. 12, 1969. Rehearing Denied March 19, 1969. Allen B. Bickart (argued), of Kanne, Bickart & Crown, Phoenix, Ariz., for appellant. Mark Wilmer (argued), of Snell & Wilmer, Phoenix, Ariz., for appellee. Before JERTBERG, BROWNING, and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: Appellant, Monroe Street Properties, Inc. (“Monroe”), appeals from a judgment in favor of the defendant Carpenter entered after Carpenter’s motion for a summary judgment was granted. Carpenter is a party in his capacity as a trustee for Western Equities, Inc. (“Western”). Federal jurisdiction is based upon diversity of citizenship. Monroe’s action is for claimed breach of a written contract between Monroe and Western in which Western agreed to buy from Monroe ten insured first mortgages and notes having a face value of $1,250,000 in exchange for $1,000,000 worth of Western’s common stock. The District Court granted summary judgment on the ground that the uncontroverted facts showed that Monroe neither performed nor tendered performance on its side and, therefore, Western was not in breach of contract. Monroe contends that there was a genuine issue of material fact within the meaning of Rule 56 of the Federal Rules of Civil Procedure: Could Monroe have performed its agreement by delivering clear insured title to the first mortgages during the life of the contract? We reject Monroe’s contention and affirm the judgment. The following facts are undisputed. On March 27, 1962, Western submitted its written offer to Monroe to buy the ten first mortgages and notes. Monroe promptly accepted the offer. Western’s offer was expressly subject to “verification by Union Title Company that the ten first mortgages * * * are valid first mortgages.” The offer further provided that Monroe would secure a policy of title insurance at its expense, would take the Western stock “as investment stock without plans for redistribution,” and would execute voting proxies for the stock .in favor of the Executive Committee of Western for three years. Western agreed to have the stock listed on the American Stock Exchange and to seek with due diligence registration of the stock with the Securities and Exchange Commission. Pursuant to the contract the parties opened an escrow with Union Title Company on March 30, 1962. The escrow agreement provided that the terms and conditions of the agreement were to be complied with “on or before the date upon which [Western] stock has been listed on the American Stock Exchange, and delivered to Union Title Company.” The Western stock was listed on the American Stock Exchange sometime before June 29, 1962, although the precise date of the listing is not clearly stated in the affidavits filed in connection with the motion for summary judgment. Monroe never deposited into escrow ten valid first mortgages or the policy of title, and Western never deposited its stock. Monroe did deposit the mortgage instruments in the escrow, but a preliminary title report received by Western on May 7, 1962, revealed that the properties subject to the ten mortgages were also subject to heavy prior encumbrances. After Monroe deposited those instruments in escrow, Monroe sent a demand to Western to deposit the stock. Western did not comply with the demand. Nothing further was done by either of the parties to perform the agreement and Monroe brought this action in October 1966. According to the facts presented by Monroe in its own affidavits, which are uncontradicted in this respect by Western’s affidavits, the only means by which Monroe could have delivered clear title to the first mortgages and could have obtained the policy of title insurance was to hypothecate Western stock to raise the money to pay off the prior encumbrances. Monroe had no ability or means to perform its part of the agreement unless Western deposited its stock in escrow before Monroe performed. The District Court correctly decided that Monroe never made an adequate tender of its own performance. Monroe’s duty to deposit the insured first mortgages and Western’s duty to deposit its stock were concurrent conditions. (Wilhorn Builders, Inc. v. Cortaro Management Co. (1957), 82 Ariz. 48, 308 P.2d 251; Groobman v. Kirk (1958), 159 Cal.App.2d 117, 323 P.2d 867.) Neither party could place the other in breach for failure to perform without a tender of its own performance. “Tender” as used in this connection means “ ‘a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.’ ” (Emphasis added. 6 Williston, Contracts (3d ed. 1962) § 833, p. 105.) Monroe’s offer to perform its concurrent condition upon condition that Western perform first was not an adequate tender and could not be relied upon by Monroe to place Western in breach of contract. The judgment is affirmed. . The cases cited by Monroe do not-assist it. The cases support the principle that a vendor’s failure to have title to property, which is the subject of the sale, before the vendor’s performance is due, is not a breach of contract by the vendor. (Walker v. Estavillo (1952), 73 Ariz. 211, 240 P.2d 173; Glad Tidings Church of America v. Hinkley (1951), 71 Ariz. 306, 226 P.2d 1016; Steward v. Sirrine (1928), 34 Ariz. 49, 267 P. 598; Back-man et al. v. Park et al. (1910), 157 Cal. 607, 108 P. 686.) Monroe’s problem is not to avoid a charge based on breach attributed to it, but to establish a breach by Western.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Freeman MONGER, Defendant-Appellant. No. 87-5731. United States Court of Appeals, Sixth Circuit. Argued Jan. 26, 1988. Decided July 12, 1989. Rehearing and Rehearing En Banc Denied Aug. 21, 1989. Robert M. Friedman (argued), Memphis, Tenn., for defendant-appellant. W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza (argued), Memphis, Tenn., for plaintiff-appellee. Before JONES and BOGGS, Circuit Judges, and LIVELY, Senior Circuit Judge. The Honorable Pierce Lively took senior status effective January 1, 1989. NATHANIEL R. JONES, Circuit Judge. Defendant-appellant, Freeman Monger, appeals the district court’s judgment and order of commitment. He contends that since the Government failed to bring him to trial within the seventy day period provided for by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1982 & Supp. Ill 1985) (“Act”), the district court was required to dismiss the indictment. For the reasons that follow, we affirm the judgment of the district court. I. In February 1986, Special Agents of the Drug Enforcement Administration (“DEA”) investigated claims that Monger used his business, Memphis International Realtors, to distribute cocaine. As a part of this investigation, a DEA agent arranged to purchase cocaine from Monger and the Government obtained court approval to intercept Monger’s telephone conversations. In the course of the three month investigation, DEA agents wrote a summary of the conversations, and identified the parties involved in each conversation. During the investigation, the DEA intercepted over three thousand calls which allegedly evidenced illegal acts. On July 10, 1986, Monger was arrested and charged with participation in a conspiracy to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The following day, Monger made his initial appearance before the magistrate and on July 15, 1986, a preliminary hearing was held. Probable cause was established and Monger was ordered to be held in custody. On August 1, 1986, the Government filed a motion for a sixty day continuance of the normal thirty day limit for obtaining an indictment, once the defendant has been arrested. See 18 U.S.C. § 3161(b). The Government requested the continuance in order to complete transcription of all tapes before seeking an indictment. When the Government filed this motion, the magistrate was on vacation. The record does not indicate whether the Government attempted to present the motion to another magistrate or to a district court judge. On August 29, 1986, the magistrate held a hearing on the Government’s motion, and Monger’s motion to dismiss and for sanctions. On September 3, 1986, the magistrate granted the Government’s motion, noting that the “ends of justice” required a forty-five day continuance because of the complexity of the case; the large quantity of wire tap evidence under review; the possibility of a large number of co-conspirators; and the possibility of a continuing criminal enterprise charge. The magistrate specifically found that the Government's motion for a continuance tolled the thirty day period for bringing an indictment pursuant to 18 U.S.C. § 3161(b). On September 22, 1986, a federal grand jury indicted Monger and eleven co-defendants on twenty-two counts including charges of a conspiracy to distribute cocaine and marijuana, and of possession of cocaine with the intent to distribute it. On February 20, 1987, the district court held a hearing on Monger’s motion to dismiss, and subsequently upheld the magistrate’s order and denied Monger’s motion. The district court reasoned that the Speedy Trial Act did not require that a motion for a continuance be granted within the thirty day period. Furthermore, the district court agreed with the magistrate’s conclusion that the ends of justice outweighed the interests of the public and the defendant in a speedy trial. The district court also held that given the inherent complexity of the case, the number of persons implicated in the conspiracy, the tasks involved in transcribing the tapes, and the process of determining whether to seek a continuing criminal enterprise indictment, it was never reasonable to expect the Government to return the indictment within the thirty day period prescribed in section 3161(b). II. .The Speedy Trial Act requires that a defendant be brought to trial within seventy days following (1) his indictment or (2) first appearance before the court, whichever occurs later. If this deadline is not met, the district court must dismiss the indictment, either with or without prejudice. 18 U.S.C. § 3162(a)(2). The Act further requires that an indictment be filed within thirty days from the date upon which the defendant was arrested or served with a summons in connection with the charges in the indictment. Id. at § 3161(b). If the Government fails to file an indictment within the required time limit, the charges must be dropped. Id. at § 3162(a)(1). However, certain periods of delay are excluded from calculation of the seventy and thirty day time periods. Id. at § 3161(h). There are two exclusions in the Act relating to pretrial motions. Section 3161(h)(1)(F) specifically excludes periods of “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Likewise section 3161(h)(l)(J) excludes up to thirty days during which “any proceeding concerning the defendant is actually under advisement by the court.” In United States v. Pelfrey, 822 F.2d 628 (6th Cir.1987), we noted that section 3161(h)(l)(J) creates a presumption of 30 excludable days for either considering a motion after a hearing has been held, or for considering a motion which does not require a hearing. This presumption is rebutted if, within the 30-day period, the motion is granted or denied, or if the record shows objectively that the motion is not under advisement. This would ordinarily be the case, for example, if the court expressly declined to consider the merits of a motion until after the occurence of a certain date or event. This would not be the case, however, if the anticipated event were the filing of post-hearing briefs.... Id. at 633-34 (emphasis in original). Section 3161(h)(8) of the Act specifically excludes from the statutory time limits any delay resulting from a continuance which is granted based on a judge’s finding that the “ends of justice” outweigh the interest of the public and the defendant in a speedy trial. The district court is required, however, to provide either oral or written reasons for granting an “ends of justice” continuance; if this condition is not satisfied, the time is not excludable. Id. at § 3161(h)(8)(A). See also United States v. Brooks, 697 F.2d 517, 520 (3rd Cir.1982), cert. denied, 460 U.S. 1071, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983). The Act requires the district court to consider several factors when determining whether to grant a continuance under section 3161(h)(8). For example, the court must determine whether the failure to grant the continuance in the proceeding would be likely to make a continuation of such proceeding impossible or result in a miscarriage of justice; whether the case is so complex, due to the number of defendants or the existence of novel questions, that it is unreasonable to expect adequate preparation for pre-trial proceedings within the time limits set forth in the Act; whether the failure to grant the continuance would deny the defendant time to obtain counsel, or would deny the Government or the defendant continuity of counsel, or would deny counsel reasonable time necessary for effective preparation. Id. at § 3161(h)(8)(B)(i)-(iv). District courts should not, however, grant a continuance because of general congestion of the court’s calendar, or the Government’s lack of diligent preparation or failure to obtain available witnesses. Id. at § 3161(h)(8)(C). III. Monger claims that the magistrate improperly granted an “ends of justice” continuance under sections 3161(h)(8)(A) and (B). Monger contends that the magistrate’s order failed to weigh his interests in a speedy trial and that the district court did not consider the impact that the continuance would have on him. In particular, Monger claims that the district court erroneously ignored testimony that he was ill, that he had lost many friends and business relationships, that his business relationship had been destroyed, and that he was emotionally “shook up” the entire time he was in jail. Monger asserts that these factors were not considered or weighed by the magistrate, either orally or in writing, in its decision to grant the “ends of justice” continuance. Monger also argues that the magistrate erred in granting the “ends of justice” continuance because the only factual basis for granting the motion was the complex nature of the case. Since the other factual bases, the possibility of numerous co-conspirators and a charge of continuing criminal enterprise, were not specific underlying factual circumstances, Monger claims they could not support the granting of an “ends of justice” continuance. In reviewing the district court’s granting of an “ends of justice” continuance, we must first determine whether the district court set forth its reasons that the interests served by the continuance outweighed the defendant’s and society’s interests in a speedy trial. In the September 3, 1986 order, the magistrate listed four justifications for its finding that the “ends of justice” were served by the continuance: (1) that the facts of the case were complex, (2) that a large quantity of wiretap evidence had to be processed; (3) the possibility of a large number of co-conspirators; and (4) the possible addition of a charge of a continuing criminal enterprise. J. App. at 29. We note that the plain language of the statute indicates that the list of factors is not intended to be exhaustive. See § 3161(h)(8)(B) (“The factors, among others, which a judge shall consider_”). Since the magistrate in this case properly considered the factors set forth in section 3161(h)(8)(B), along with additional considerations, i.e., the possibility of numerous co-conspirators and the possibility of additional charges, we find that he did not rely upon an impermissible factor in granting the continuance. We further note that the decision whether to grant a continuance under the Act is within the discretion of the district court. See United States v. Vega, 860 F.2d 779, 787 (7th Cir.1988); see also United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir.1980). In order to obtain a reversal of the district court’s decision, a defendant is required to prove actual prejudice. Vega, at 787 (citations omitted). We find nothing in the record to warrant a conclusion that the magistrate abused his discretion in granting the continuance. In particular, we hold that Monger’s vague allegations of anxiety, illness and loss of business due to his continued incarceration are not sufficiently prejudicial to warrant dismissing the charges against him. Because the magistrate properly determined that the complexity of the case, and other permissible factors, outweighed the public and private interests in a speedy trial, and because Monger failed to show that actual prejudice resulted from the delay, we reject his arguments in this regard. Finally, Monger contends that even if the magistrate did not otherwise err in granting a forty-five day “ends of justice” continuance, he erroneously granted the continuance after the expiration of the original thirty-day period. Monger specifically argues that retroactive “ends of justice” continuances are contrary to the Act; that the number of days retroactively applied could not be excludable days under the Act; and that he was therefore not properly brought to trial within the time limits set by the Act. The Supreme Court held in Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), that if a pretrial motion requires a hearing, then section 3161(h)(1)(F) automatically excludes all time between the filing of the motion and the conclusion of the hearing on that motion. Id. at 330, 106 S.Ct. at 1876. See also United States v. Mentz, 840 F.2d 315, 326 (6th Cir.1988); Pelfrey, 822 F.2d at 633. In the instant action, Monger was arrested on July 10, 1986, and on August 1, 1986, the Government filed a motion for a continuance. Thus, pursuant to section 3161(h)(1)(F), as interpreted in Henderson, the filing of the pre-trial motion tolled the thirty-day deadline for filing the indictment. On August 29, 1986, the magistrate concluded the hearing on the Government’s motion which ended the section 3161(h)(1)(F) exclusion. However, since the order granting the continuance was not entered until September 3, 1986, we hold that section 3161(h)(l)(J) excluded the period during which the motion was under advisement. Not counting the forty-five day continuance, September 11, 1986 would have been the final day for the Government to obtain an indictment; however, when the continuance is considered, October 26, 1986 was the actual deadline. The indictment was therefore timely filed on September 22, 1986. IV. In sum, because the Government’s pretrial motion triggered the statutory exclusion under 3161(h)(1)(F) and tolled the speedy trial clock, and because the magistrate did not err in granting the Government a forty-five day continuance (in addition to the thirty days mandated by section 3161(b)), we conclude that the Act was not violated. For these reasons, the decision 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 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?

Stanley KAHN and Courtney Kahn, co-partners trading as Kahn Brothers, Appellants, v. The MAICO COMPANY, Incorporated, a body corporate of the State of Minnesota, Appellee. No. 6786. United States Court of Appeals Fourth Circuit. Argued June 4, 1954. Decided Oct. 13, 1954. Isidore Ginsberg, Baltimore, Md. (Hyman Ginsberg and Ginsberg & Ginsberg, Baltimore, Md., on brief), for appellants. Stuart S. Janney, Jr., Baltimore, Md. (Robert M. Thomas and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PARKER, Chief Judge. This is an appeal from an order dismissing an action for lack of jurisdiction. The plaintiffs, residents of Maryland, constituted a partnership which held a franchise contract to act as exclusive distributor in certain Maryland counties of hearing aids manufactured by defendant. The action was to recover damages of defendant for alleged breach or wrongful termination of this contract. It was dismissed on the ground that defendant, a foreign corporation, was not doing business in the State of Maryland within the meaning of the applicable Maryland statute, Code Art. 23, sec. 88(a), which provides: “Every foreign corporation doing intrastate or interstate or foreign business in this State shall be subject to suit in this State by a resident of this State or a person who has a usual place of business in this State, (1) on any cause of action arising out of such business, and (2) on any cause of action arising outside of this State.” The evidence shows clearly that plaintiffs were more than mere dealers in or distributors of defendant’s products. Defendant was engaged in the manufacture and sale of hearing aids which it advertised and guaranteed to purchasers. It entered into a contract, designated a franchise contract, with plaintiffs under which plaintiffs were given the exclusive right to deal in these aids within certain counties in Maryland. While the contract speaks of the right of plaintiffs to purchase and resell the aids within the territory granted, other provisions of the contract and the evidence adduced at the hearing before the District Judge show clearly that much more than sale and resale were involved and that the business of plaintiffs was in fact controlled and directed by defendant. The prices at which plaintiffs made sales were fixed by defendant. Every sale was made on an order form provided by defendant, was reported to defendant and defendant wrote the purchaser with regard thereto. Advertisements were furnished and paid for by defendant under an arrangement which virtually precluded the use of other advertising by plaintiffs. Inquiries with respect to hearing aids were referred by defendant to plaintiffs, who were required to report to defendant action taken thereon. Plaintiffs were called upon by defendant to make deliveries of hearing aids to government agencies on sales negotiated within the state by another representative of defendant. Defendant gave a written guaranty on every aid sold by plaintiffs and authorized plaintiffs to make the contract of guaranty in its behalf. It authorized plaintiffs to adjust complaints made under the guaranty, and consigned to plaintiffs repair parts with which to make the adjustments. It required plaintiffs to take out insurance against damages arising out of malpractice in the fitting of hearing aids, for protection of both plaintiffs and defendant, in a company which defendant designated. It had plaintiffs to insure the instruments sold against loss or damage and make report to it with regard thereto. It arranged for purchasers from plaintiffs to finance their purchases through a company with which it contracted. It had its representatives to visit plaintiffs and advise and direct plaintiffs as to the management of their business. Plaintiffs were authorized to use the defendant’s trade name “Maico” in connection with their business and did so use it, and defendant referred to them in correspondence as “Maico Hearing Service of Baltimore”. They were listed in the telephone directory as “Maico Hearing Service.” Defendant relies upon the fact that it was not incorporated in Maryland and has never registered or qualified to do business in that state, that its office and factory are in Minnesota and that it has no warehouses and owns no property in Maryland, except small amounts of new parts for hearing aids consigned to the plaintiffs until paid for, that none of its officers or directors live in Maryland and that the goods shipped to plaintiffs by defendant with the exception of the small amount of consigned parts represent outright sales of products, shipped f. o. b. defendant’s factory in Minneapolis. Upon the evidence taken as a whole, however, it is impossible to escape the conclusion that, through the plaintiffs, defendant was advertising and selling its hearing aids in the State of Maryland, that the business was in effect done in defendant’s name and that it was as completely controlled by defendant as it would have been if plaintiffs had been mere selling agents. Furthermore, there can be no doubt but that defendant actually participated in the sales made by plaintiffs, since the guaranty given in connection with the sale of a hearing aid was a part of the sale, and in making the guaranty the plaintiffs were unquestionably acting as agents of defendant. They were also acting as agents of defendant in adjusting complaints made under the guarantees. On these facts, we think that defendant was clearly doing business in the state within the meaning of the statute. In La Porte Heinekamp Motor Co. v. Ford Motor Co., D.C., 24 F.2d 861, and the very recent case of Thomas v. Hudson Sales Corp., Md., 105 A.2d 225, 228, in both of which jurisdiction was sustained, it was pointed out that, while it did not constitute doing business within the state for a foreign corporation to make sales outside the state to distributors who carried on business therein, even though a district superintendent, might visit them and advise with respect to selling policies, nevertheless such foreign corporation would be held to be doing business within the state if it went beyond this pattern and exercised substantial control over the business of the local distributor. Here the defendant not only controlled the business policies of the distributor, but also regulated the details of the business almost as completely as if the distributor had been an agent in all respects. No one would contend that what was done did not constitute doing business by defendant if plaintiffs had been compensated on a commission basis instead of by discounts allowed from the sale price which defendant fixed; but the method of compensating the one who carries on the business cannot defeat jurisdiction when it appears that it was in reality defendant’s business that was being carried on. The case is not one where sporadic or occasional transactions are relied on to establish the doing of business within the state; but one in which it is shown that business of defendant was regularly carried on. See Dobie on Federal Procedure pp. 488-489 and opinion of Mr. Justice Peckham in Pennsylvania Lumberman’s Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 415, 25 S.Ct. 483, 49 L.Ed. 810. The only question is whether defendant’s connection with the business was established; and we think that it unquestionably was. In Thomas v. Hudson Motor Corp., supra, which is controlling here, the Court of Appeals of Maryland said that prior decisions of that court were not helpful in the decision of the question there presented which is essentially the question before us, and the court proceeded to base its decision that the foreign corporation was “doing business” in the state within the meaning of that language as used in the Maryland statute largely upon the reasoning in Judge Soper’s decision in La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, and the. later decisions of the Supreme Court of the United States in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485. The court quoted the following passages from the opinion in the International Shoe Company case in the discussion of what constituted doing business: “ ‘ * * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair ;play and substantial justice’. * * Finally, although the commission of .some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372, other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit. * * * It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. * * * to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.’ ” After quoting the foregoing passages, the court said of the International Shoe Company case: “This case has been looked upon as announcing a new principle in determining whether a corporation was ‘doing business’ for the purpose of jurisdiction and that suit in the foreign state would not violate the due process clause.” The Court of Appeals also quoted the following passage from the opinion of Judge Soper in the case of La Porte Heinekamp Motor Co. v. Ford Motor Co., supra: “ ‘Summarizing this recital of the relations between the Ford Motor Company and the residents of Maryland, who handle its products, it appears that, while the company does not maintain within the state an agent with power to bind it by contract, nevertheless the actual supervision and control exercised by it through its traveling representative is almost as complete as if the dealers were its agents in all respects. The privilege of handling Ford cars and other products is evidently valuable, and, since the company may withdraw it at any time, it is not difficult to prevail upon the dealer to comply with the company’s demands. The work of the local representative in this connection is of substantial benefit to the defendant. He not only stimulates the dealers to do their utmost in distributing the company’s products, but incidentally secures information which enables the company to regulate its output in conformity to the demands of the public. Much of this he accomplishes through an almost daily contact with the various sellers of Ford products within the state; and, when the importance of the problem of distribution in this great business is considered, it becomes clear that the activities of the company within the state, as distinguished from those of the dealers, are not negligible.’ ” In relying upon the decision in the cases of International Shoe Company v. State of Washington, supra, Perkins v. Benguet Consolidated Mining Co., supra, and La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, when dealing with the question of doing business in the state within the meaning of the Maryland statute, the Court of Appeals of Maryland clearly held that the “doing of business” sufficient to satisfy the due process clause of the federal Constitution was sufficient to satisfy the jurisdictional requirements of Art. 23, sec. 88(a) of the Maryland Code; for it will be noted that the court held on the basis of those decisions, not only that suit in Maryland did not offend the due process clause, but also that the activities relied on constituted doing business within the meaning of the state statute. The court said: “The exercise by Hudson Sales of the privilege of conducting activities within this State and the benefits and protection of the laws of this State which it enjoys, appear to give rise to the obligations of one who does business here and that it is reasonable and just according to ‘traditional notions of fair play and substantial justice’ to hold that Hudson Sales is ‘doing business’ in Maryland and that suit here does not offend the due process clause. International Shoe Company v. State of Washington, supra; Perkins v. Benguet Consolidated Mining Co., supra; Kilpatrick v. Texas & P. R. Co., supra [2 Cir., 166 F.2d 788]; State v. Ford Motor Co., 1946, 208 S.C. 379, 38 S.E.2d 242; Atlantic National Bank v. Hupp Motor Car Corp., 1937, 298 Mass. 200, 10 N.E.2d 131; Wilson v. Hudson Motor Car Co., D.C.Neb.1928, 28 F.2d 347.” (Italics supplied.) This is in accord with the spirit of the statute, which is to extend the jurisdiction of the Maryland courts over suits by citizens of the state or contracts made within the state as far as constitutionally possible. Cf. Compania de Astral S. A. v. Boston Metals Co., Md., 107 A.2d 357. It is in accord, also, with the sound public policy that foreign corporations engaging in business in a state either directly or through others should be subject to the jurisdiction of its courts, so that citizens of the state having claims arising out of such business may not be required to resort to the courts of an alien and distant jurisdiction to obtain justice. As said by Mr. Justice Black in his dissenting opinion in Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 669-670, 73 S.Ct. 900, 904, 97 L.Ed. 1331: “A large part of the business in each and every state is done today by corporations created under the laws of other states. To adjust the practical administration of law to this situation the Court in recent years has refused to be bound by old rigid concepts about ‘doing business.’ Whether cases are to be tried in one locality or another is now to be tested by basic principles of fairness, * In this case it is in accord with the basic principles of fairness that this defendant, which has carried on the business of selling its hearing aids in Maryland through the plaintiffs whose business it has controlled and dominated, should be held to answer to plaintiffs in the courts for alleged breach of contract in connection with that business. For the reasons stated, the order of dismissal for lack of jurisdiction will be reversed and the case will be remanded for further proceedings not inconsistent herewith. Reversed. . In the last cited case the court said [105 A.2d 228] : “It appears that manufacturers of automobiles and other manufacturers who have followed more or less the following pattern in foreign states had been held not to be ‘doing business’ in those foreign states. A foreign corporation which has its principal business in another state, sells its products to distributors outside of that state, and the products are shipped f.o.b. with drafts attached. A district superintendent is employed whose territory includes foreign states. He visits distributors and dealers and advises them how to sell the products, how to keep up theii stock of goods, and selects new dealers subject to the approval of the company. All contracts are executed by an officer of the corporation outside of the foreign state, the district superintendent having no authority to finally ratify any contracts. Among cases so holding are Holzer v. Dodge Bros., 1022, 233 N.Y. 216, 135 N.E. 268; Zimmers v. Dodge Bros., D.C.N.D.Ill.1927, 21 F.2d 152; Hinchcliffe Motors, Inc., v. Willys-Overland Motors, Inc., D.C.Mass.1939, 30 F.Supp. 580; Johns v. Bay State Abrasive Products Co., D.C.1950, 89 E. Supp. 654; Harrison v. Robb Mfg. Co., D.0.1953, 110 F.Supp. 848.” . In the case cited it was held that jurisdiction under Art. 23, sec. 88(d) might he based upon the making of a single contract within the state. Sec. 88(a) was not involved in the decision, but nothing was said therein, which would in any wise limit the breadth of the decision under sec. 88(a) in Thomas v. Hudson Sales Corp., 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 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?

Charles CUNNINGHAM, Petitioner-Appellee, v. E. P. PERINI, Supt., Respondent-Appellant. No. 80-3794. United States Court of Appeals, Sixth Circuit. Argued June 12, 1981. Decided July 27, 1981. Rehearing and Rehearing En Banc Denied Sept. 10, 1981. Richard David Drake, Asst. Atty. Gen., of Ohio, Columbus, Ohio, for respondent-appellant. Richard L. Aynes, University of Akron, School of Law, Akron, Ohio, for petitioner-appellee. Before EDWARDS, Chief Circuit Judge, ENGEL, Circuit Judge, and BERTELSMAN, District Judge. Hon. William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation. PER CURIAM. The respondent appeals from a judgment of the district court granting a writ of habeas corpus to petitioner, Charles Cunningham. The writ was granted by the district court, which adopted the magistrate’s finding that comments made by the prosecutor in Cunningham’s state trial for first degree murder referred to petitioner’s failure to testify on his own behalf. Thus, according to the magistrate, these comments were violative of Cunningham’s rights under the Fifth and Fourteenth Amendments, as articulated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The improper prosecutorial statement occurred during the government’s rebuttal argument before the jury. It referred to the defendant’s demeanor at the counsel table while he observed a principal witness, one Paulette Hardge, testify against him: MR. SPERLI: As this man sat in this courtroom put yourselves in his position. Can you imagine yourself an innocent man sitting in this chair as you saw Paulette Hardge testify? Was there any indignation manifested here or did he just sit there and stare? MR. FLEMING: Objection. MR. TOLLIVER: Objection. That’s all he has to do. THE COURT: Objection overruled. MR. SPERLI: When you looked at him what impression did he give you? A contemporaneous objection to the comments was overruled in the presence of the jury. The state trial court, however, in its regular instructions, later advised the jury of the defendant’s right to remain silent. The court also gave the usual precautionary instruction that no adverse inference should be drawn from the defendant’s failure to testify. The same point had been clearly argued by Cunningham’s counsel during his own closing argument. Whether prosecutorial comments are to be construed as relating to the defendant’s exercise of his Fifth Amendment right to remain silent has recently been carefully articulated for our circuit by Circuit Judge Nathaniel R. Jones in United States v. Robinson, 651 F.2d 1188, at 1197 (6th Cir. 1981): To reverse a conviction for improper comment on the criminal defendant’s Fifth Amendment right to remain silent, “we must find one of two things: that ‘the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or that the remark was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977); United States v. Wells, 431 F.2d 434, 435 (6th Cir. 1970), cert. denied, 400 U.S. 997, [91 S.Ct. 475, 27 L.Ed.2d 448] (1971). “We cannot find that the prosecutor manifestly intended to comment on the defendant’s failure to testify if some other explanation for his remark is equally plausible.” Rochan, supra, at 1249. Whether the jury “necessarily construes” a prosecutor’s remark as a comment on a defendant’s failure to testify requires a probing analysis of the context of the comment, and the likely effect of the district court’s curative instruction, if any. Applying the guidelines set forth by Judge Jones in Robinson, the court is of the opinion that the remarks to which Cunningham objects do not amount to a comment on the failure of the accused to testify. Instead, they were directly related to the conduct of the defendant while another witness was on the stand. Even the magistrate appears to have recognized at least in part that the comments related to the defendant’s demeanor in court, although he found that such comments were within the “spirit of the self-incrimination clause of the Fifth Amendment,” as reflected in Griffin v. California, supra. Therefore, the court is of the opinion that the petitioner’s reliance upon Griffin v. California, supra, is misplaced. Under other circumstances, a prosecutor’s comment upon a defendant’s demeanor might be scrutinized under the Due Process Clause. Until a defendant has placed his own demeanor in evidence by taking the stand to testify, his personal appearance at the trial is irrelevant to the question of his guilt or innocence. If the defendant remains impassive during the testimony of his accuser, he is only conforming to that standard of deportment which the courts have a right to expect from all participants in the trial process, including the parties. That issue was not raised in this appeal, however, and does not appear to be appropriate here given the isolated nature of the prosecutor’s comments in the overall context of the trial. Any error that might have occurred here which was not fully corrected by the curative instruction of the state trial judge does not rise to constitutional proportions. See Borodine v. Douzanis, 592 F.2d 1202, 1209-12 (1st Cir. 1979); Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975), cert. denied, 425 U.S. 980, 96 S.Ct. 2186, 48 L.Ed.2d 806 (1976). This is not to say, of course, that the prosecutor’s commentary on the petitioner’s demeanor, if made in a federal court, might not be subject to correction by an appellate court in the exercise of its supervisory powers. See United States v. Wright, 489 F.2d 1181 (D.C.Cir.1973). Accordingly, The judgment of the district court, granting the writ of habeas corpus, is 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 "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, Appellee, v. Lawrence P. SMITH et al., Appellants. No. 72-1657. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided Aug. 3, 1973. Edward L. Simmons, Kansas City, Mo., for appellants. Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for appellee. Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge. Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation. TALBOT SMITH, Senior District Judge. The matter before us involves Social Security payments. Specifically it is a suit by the government for the return of an alleged overpayment of disability insurance benefits paid pursuant to the provisions of Title II of the Social Security Act, as amended, 42 U.S.C. § 423 et seq. It is a case of first impression. Neither the diligence of counsel nor our own independent research has disclosed precise prior precedent. We will note at the outset that the recovery of overpayments to indigent, or semi-indigent, beneficiaries poses unique problems, particularly to the chancellor, arising out of the fact, among others, that such recipients are rarely in a position to make restitution of substantial funds, mistakenly or erroneously paid them, without suffering severe hardship. Thus it is that we find in the Social Security Act, in 42 U.S.C. § 404, a section relating to “Overpayments and underpayments” providing, in part, that there shall not be recovery back by the United States from “any person who is without fault if such adjustment or recovery would defeat the purpose of this sub-chapter or would be against equity and good conscience.” In May of 1962 defendant Lawrence P. Smith filed an application for Disability Insurance Benefits based on an alleged physical impairment. He asserted blindness in one eye and multiple sclerosis. Upon the showings made and under the applicable statutes, disability payments were awarded, effective February, 1962. These benefits, however, were stopped on March 25, 1968 upon the ground that Mr. Smith had returned to work. Thereafter he was informed that he had been overpaid for the period May 1, 1964 through March, 1968. Mr. Smith requested reconsideration, as a result of which the original determination was affirmed and repayment requested. A hearing before a Hearing Examiner was thereafter requested, and held in St. Joseph, Missouri, at which hearing defendant Lawrence Smith appeared in person, with counsel. The issues before the Hearing Examiner were whether the claimant's disability continued, and, if not, whether overpay-ments had been made and in what, if any, amounts, and whether recovery of the overpayments would defeat the purpose of 42 U.S.C. § 404(b), or be against equity and good conscience. The Hearing Examiner’s decision was adverse to the defendants and formed the basis for the government’s motion in the District Court for summary judgment. Further administrative appeals were sought by the defendants, but were without rulings favorable to them, and the judicial review available to claimants was not sought. There the matter rested until the filing of this action by the United States in August, 1971. In the suit filed, and before us, the government, as plaintiff, brings action against defendant Lawrence Smith, his wife Virginia, individually and as fiduciary for the minor children, alleging an indebtedness to the government arising out of the aforedescribed overpayments in the sum of $13,673. Defendants’ answers denied the debt, and set up waiver and estoppel, as well as other defenses, against the government. Plaintiff thereupon brought a motion for summary judgment, asserting that no judicial review of the Secretary’s decision had been sought by defendants and that “By virtue of the doctrine of res judicata, the issues of whether or not an overpayment was made, and if so, the amount of the overpayment, are not open to controversy.” Defendants, in opposition, urged that the facts relied upon by the plaintiff were without support in the record; that the provisions of § 405, relating to procedures to be followed by claimants in making claims against the government, had no application to the case at bar, since they were making no claim, but rather were being sued for a debt owed as parties-defendant; and, in substance, that “this case should be reopened under Section 404.-958 and in the interest of justice.” The District Court’s ruling was the grant of the government’s motion for summary judgment. In the context of the facts before us, and the statutory provisions relating thereto, there is no need for us to exhaust the application of the doctrine of res judicata as applied to the decisions of administrative tribunals, or, as it is sometimes termed, “administrative res judicata.” Hughes v. Finch, 432 F.2d 93 (4th Cir. 1970). It is pertinent to observe, however, that the earlier view of some courts that the doctrine does not apply to administrative proceedings has been largely discredited. The Supreme Court, in United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) took occasion to point out that its decision therein was harmonious with general principles of collateral estoppel, stating, in part, that “Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” 384 U.S. at 421, 86 S.Ct. at 1559. [footnotes and citations omitted] See, also, Davis, Administrative Law Treatise, § 18.02, et seq., and cases there cited. Although application of the doctrine of res judicata to administrative decisions does, indeed, serve a useful purpose in preventing the relitigation of issues properly determined administratively it is not, where applicable, applied with the same rigidity as its judicial counterpart. “[Practical reasons may exist for refusing to apply it,” held the court in Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969), and, continuing, “[I]n any event, when traditional concepts of res judicata do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958).” Particularly appropriate are such considerations to the case before us, requiring, as we have noted, that the government shall not recover an overpayment “if such recovery . . . would be against equity and good conscience.” But however guarded the application of the doctrine of administrative res judicata generally, its application in the case at bar is specified in the regulations of the agency before us. These, it is clear, do not demand administrative finality. The matter was the subject of extensive examination in Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971), the court pointing out that 20 C.F.R. § 404.957 permits an administrative determination to be reopened within four years after the date of notice thereof “upon a finding of good cause for reopening,” and that “good cause” included, inter alia, error in the determination or decision apparent on the face of the evidence on which it is based. The Leviner court also held that although the regulation “is couched in terms of reopening a decision otherwise final, it also serves to identify decisions that should not be interposed to deny subsequent applications. A decision that is subject to being reopened provides an inappropriate bar.” We agree. The government, in support of its position, cites to us a number of cases assertedly holding that where judicial review is not sought by a claimant within the time prescribed by 42 U.S.C. § 405, “the adverse decision of the Agency is final and is res judicata." e. g., Gardner v. Moon, 360 F.2d 556 (8th Cir. 1966). Whatever may be the dimensions of “res judicata” in this situation, which we will not explore, such cases are not in point on any issue before us. We do not have a claimant seeking judicial review under the act. On the contrary we have the government, as plaintiff, seeking to reduce a debt to judgment and thereafter to collect, presumably by the usual process of levy and execution. In this situation, as we noted in Burrow v. Finch, 431 F.2d 486, 491, n. 5 (8th Cir. 1970), “Where the Secretary asserts the claim of overpayment by reason of ‘fault’ under § 404(b) . . . there is no logical reason why the party asserting the claim should not bear the traditional burden of proving it,” and proving it, by a party moving for summary judgment, means under the Rules of Civil Procedure, that he has the burden of showing the absence of a genuine issue as to any material fact. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). So here. The government relies for its proofs, in its motion for summary judgment, upon administrative res judicata, citing the hearing examiner’s decision, which found, inter alia, fault in the claimant and no waiver of the overpayment by the government. Such reli-anee will not suffice in the face of the defense, however inartistically pleaded, of error manifest on the face of the record, a well recognized exception to the res judicata doctrine, codified, in fact, in the Social Security Regulations. Such defense the defendants may pursue and make their showings with respect thereto. Reversed and remanded for further proceedings not inconsistent herewith. . Graham, Public Assistance: The Right to Receive: The Obligation to Repay, 43 N.R.U.L.R. 451 (1968) ; Comment: Re-coupment of Welfare Overpayment, 7 Houston L.R. 635 (1970). . 42 U.S.C. § 404(b): “In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.” . The breakdown of the figures comprising the asserted overpayment is as follows : Lawrence P. Smith, $6,001; Virginia M. Smith, his wife, $1,096; Virginia M. Smith in her fiduciary capacity as payee for minor children, $6,576, all plus interest as allowed by law, totaling $13,673.00. . “DECISION Based on the foregoing findings of fact and conclusions of law, it is the decision of the Hearing Examiner that the claimant, Lawrence P. Smith, is entitled to the establishment of a period of disability beginning July 10, 1961, which terminated March 31, 1964. It is further the decision of the Hearing Examiner that all disability insurance payments made to this claimant beginning with the month of April of 1964 and thereafter constitute an overpayment of benefits. It is further the decision of the Hearing Examiner that recovery of the amount of the overpayment from this claimant cannot be waived for the reason that tiie claimant was. not without fault and recovery of said overpayment would not defeat the purpose of Title II of the Social Security Act or be against equity and good conscience.” . 42 U.S.C. § 405(g) : “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy may obtain a review of such decision by a civil action commenced within sixty clays after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall bo brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district in the United States District Court for the District of Columbia. ...” . 42 U.S.C. §§ 402(b), 402(d) ; 20 C.F.R. §§ 404.313(a), 404.314, 404.320(a). . 42 U.S.C. § 405 Section (b) thereof provides, in part, that “The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for payment under this subchap-ter.” . This reference is to 20 C.F.R. § 404.958, defining “good cause” and must be read in conjunction with § 404.957, referring to the reopening of a “final” decision for “good cause.” . See Lawlor v. National Screen Service Corp. 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955): “The term res judicata is used broadly in the Restatement to cover merger, bar, collateral estoppel, and direct estoppel.” See, also, Moore’s Federal Practice, Vol 1B, § 0.405 et seq. . Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940). . e. g., United States v. Stone and Downer Co., 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013 (1927). . Note 1, supra. . 20 C.F.R. § 404.957: “An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final . may be reopened: (b) [Wjithin 4 years after the date of the notice of the initial determination . upon a finding of good cause for reopening such determination or decision. . 20 C.F.R., § 404.958: “ ‘Good cause’ shall be deemed to exist where: (c) there is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.” See, also, § 404.958(a) relating to new and material evidence. . 20 C.F.R. § 404.958(c).

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

WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Paul SPERLING dba Sperlings Dress Shop, Appellee. No. 22836. United States Court of Appeals Ninth Circuit. Jan. 13, 1970. Gene Groff (argued), Bolton, Groff & Dunne, Los Angeles, Cal., Morse & Graves, Las Vegas, Nev., for appellant. J. Charles Thompson (argued), David Goldwater, of Wiener, Goldwater & Ga-latz, Las Vegas, Nev., for appellee. Before HAMLEY and MERRILL, Circuit Judges, and POWELL, District Judge. The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation. PER CURIAM: This is an appeal from a judgment of the District Court of Nevada in a diversity case. Jurisdiction is under 28 U.S.C. § 1332. The sole issue is whether the action against the appellant insurance company is barred by the time limitations set out in the policy. On January 28, 1965 a burglary of the appellee’s dress shop was discovered. This action was commenced February 18, 1966, which was one year and 21 days after the discovery of the burglary. Ap-pellee was awarded judgment for $23,-267.94. Appellant contends that the appellee has not complied with the following provision of the insurance policy: “No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after the discovery by the insured of the occurrence which gives rise to the claim * * *.” The policy also contained a provision on presentation of proof of loss as follows: “ * * * [claim shall be payable] within sixty (60) days after presentation and acceptance of satisfactory proof of interest and loss at the office of the company.” The District Court determined that since the plaintiff could not commence suit until sixty (60) days after filing of a properly executed proof of loss, the intent of the policy was to afford plaintiff a full 12 months after the 60 day period within which to commence suit. The court relied on Steel v. Phoenix Ins. Co., 51 F. 715 (9th Cir. 1892), aff’d 154 U.S. 518, 14 S.Ct. 1153, 38 L.Ed. 1064 (1893). That Oregon decision construed a fire insurance contract with provisions similar to those in the policy here. The court applied the general common law of commercial contracts as required by Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865 (1842). Appellant argues that Steel should no longer be followed and cites Bell v. Quaker City Fire & Marine Ins. Co., 230 Or. 615, 370 P.2d 219 (1962). That case holds that under the present state of the law of Oregon suit is to be commenced within twelve months after the “inception of the loss” notwithstanding a 60 day no suit clause. Since Erie Railroad Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (overruling Swift v. Tyson, supra), federal courts in diversity cases have been required to follow the law of ■the state in which the district court is held. The Nevada courts have not up to this date decided the issue presented here. We must anticipate how a Nevada court will decide this issue. Tavernier v. Weyerhaeuser Company, 309 F.2d 87, 91 A.L.R.2d 1286 (9th Cir. 1962). Since Steel, supra was decided under like circumstances and before the rule of Erie Railroad Co. v. Thompkins, supra, the considerations of the court there are persuasive in our present inquiry. Provisions like those involved here are generally in fire insurance and general casualty insurance policies. A division of authority on the interpretation to be given these provisions appears in both types. In the former, the weight of authority supports appellant’s position. In the latter, the opposite is true. See Annot., 95 A.L.R.2d 1023 (1964). The difference in weight of authority is significant. In varying degree, the decisions construing fire insurance policy provisions such as the ones in issue have given weight to the circumstance that the language of the standard policy is one imposed on the insurer by statute. See Annot., 95 A.L.R.2d 1023 (1964) and eases cited therein. But see Finkelstein v. American Ins. Co., 222 La. 516, 62 So.2d 820 (1952); Kirk v. Firemen’s Ins. Co., 107 W.Va. 666, 150 S.E. 2 (1929). In the absence of a statutory requirement the weight of authority supports the view that provisions of the policy on computing the period for bringing suit must be construed together and that the period of limitation does not begin to run until the loss is payable and an action might be brought against the insurer i. e., after the 60 days has expired. See 29A Am.Jur. § 1797 and eases cited therein; Appleman on Insurance, Vol. 20A, § 11612, pp. 4-8. “ * * * a policy of insurance which contains conditions reducing the statutory time for the commencement of any suit thereon ought, in justice and equity, to be so construed — if reasonable under its terms — as to give the full period of time mentioned in the policy, freed from the provisions of all other clauses of the policy, or from the conduct of the insurance company, limiting, or attempting to limit, the time actually given in the limitations clause. This, it appears to us, is the consistent and logical view that ought to be taken of such policies of insurance. * * * It would prevent either party from taking any undue or improper advantage of the other.” Steel, supra, 51 F. at 721. It is our judgment that the decision of the trial court was correct. We would also comment on appellant’s conduct. The appellee was not notified until January 17, 1966 that the appellant insurance company had rejected its claim. Adopting appellant’s theory, this gave appellee 11 days within which to com-menee suit. Prior to this time appellee had made repeated efforts to find out what the insurance company was going to do about his proof of loss. Each time the appellee was told through appellant’s agents that they had not been notified as to any decision on his claim. This indicates that appellant considered its policy as allowing 12 months in which to commence suit after the running of the 60 days allowed to file a proof of loss. Failure of the insurer to take action has been held to be a waiver of contractual limitations on the commencement of actions. See Dolsen v. Phoenix Preferred Acc. Ins. Co., 151 Mich. 228, 115 N.W. 50 (1908). We affirm. . Appellant also cites two 9th Circuit decisions. Bankers Trust Company v. Pacific Employers Ins. Co., 282 F.2d 106 (9th Cir. 1960), and Quon v. Niagara Fire Ins. Co. of New York, 190 F.2d 257 (9th Cir. 1951). Neither case touches upon the narrow issue with which we are concerned.

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?

UNITED STATES v. DISTRICT COURT FOR SOUTHERN DISTRICT OF NEW YORK. Docket No. 19396. United States Court of Appeals Second Circuit. Dec. 1, 1948. Leonard J. Emmerglick of Washington, D. C., for petitioner. William Watson Smith, of Pittsburgh, Pa., opposed. Before L. HAND, Chief Judge, and SWAN and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. We dismissed the plaintiff’s petition on October 28, 1947, because we thought that it was properly a part of a second possible appeal in the action, over which we should have no jurisdiction. The Supreme Court granted certiorari, and reversed our order, holding that, regardless of whether it would have jurisdiction over a second appeal — a question as to which it reserved judgment— the petition raised only the question whether the district court had acted in accordance with our mandate; and that this was not so inextricably enmeshed in a second appeal that we should not decide it, even though we shall not have jurisdiction over a second appeal itself. It remitted the case without any expression of opinion, for us to decide the petition on the merits. The prayer for relief is twofold: (1) That we direct the district court to strike out from Article XII of the judgment a clause, which gives leave to “Alcoa” to apply to the district court “for a determination of the question whether it still has a monopoly of the aluminum ingot market in the United States”; and (2) that we direct the court to dismiss “Alcoa’s” petition, filed in accordance with the leave so granted. The purport of the article as a whole may be compressed as follows: after the Surplus Property Administrator shall have propounded an overall plan for the disposal of government owned aluminum plants, the Attorney General may ask the district court (1) to dissolve “Alcoa” in whole or in part; (2) to enforce the plan, “if the same shall establish competitive conditions” in the industry; (3) for such other relief as will “establish” such conditions, if the plan does not; and, on its part “Alcoa” may ask the court to decide “whether it still has a monopoly of the aluminum ingot market.” The plaintiff’s position, as we understand it, is that the clause which gives leave to “Alcoa” to ask the court to decide whether it still has a monopoly, is equivalent to making that issue determine the question of dissolution. We do not so interpret it; it must be read in harmony with the leave given to the Attorney General which we have just quoted, and, when it is so read, the article as a whole conforms 'with our mandate, in which we tried to make it plain that the final judgment must secure the establishment of those “competitive conditions” which the Anti-Trust Acts, 15 U.S. C.A. § 1 et seq., demand. Dissolution is one remedy which may be necessary to that end; and in any event it will not depend upon the single issue whether “Alcoa” at thé time of the judgment shall have a monopoly of the ingot market. On the contrary, it will depend upon what is “Alcoa’s” position in the industry at that time: i. e., whether it must be divided into competing units in order to conform with the law. The continuance of the monopoly in ingot aluminum may in the court’s judgment be enough to justify dissolution; but its absence will forbid neither dissolution, nor any other remedy. We, therefore, deny the prayer for the deletion of the challenged clause in Article XII. We also deny the prayer to direct a dismissal of “Alcoa’s” petition. The plaintiff apparently wishes the initiative to rest in its hands alone; but we know of no principle, either at law or in equity, that a defendant may not bring on an action or any proceeding in an action, for determination, when the plaintiff unreasonably delays doing so. If it be the plaintiff’s understanding that it stands in this respect upon a footing different from that of a private suitor, we cannot agree. Only by virtue of the challenged passage in Article XII does “Alcoa” retain any power to stir the plaintiff to action; and it was within its rights to avail itself of that power as it did. Now that the Attorney General has also made use of the leave given him to move under Article XII, there is no reason why the court should not proceed to decide the two petitions together. The petition is denied. United States v. Caffey, 2 Cir., 164 F.2d 159. 334 U.S. 258, 68 S.Ct 1035.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

Lanceda RICHARDSON, Individually and on behalf of all others similarly situated, Appellant, v. The PENNSYLVANIA DEPARTMENT OF HEALTH, Leonard Bachman, M. D., Individually and in his capacity as Secretary of Health of the Commonwealth of Pennsylvania, Morton D. Rosen, Individually and in his capacity as Deputy Secretary for Administration of the Department of Health, Milton J. Shapp, Individually and in his capacity as Governor of the Commonwealth of Pennsylvania, Ernest P. Kline, Individually and in his capacity as the Lieutenant Governor of the Commonwealth of Pennsylvania, James Wade, Individually and in his capacity as Secretary of the Governor’s Office of Administration, Samuel Begler, Individually and in his capacity as Director of the Bureau of Personnel, John McCarthy and C. Herschel Jones, Individually and in their capacity as Commissioners for the Pennsylvania State Civil Service Commission, and Richard C. Ro-senberry, Individually and in his capacity as Executive Director of the Pennsylvania State Civil Service Commission. No. 76-2263. United States Court of Appeals, Third Circuit. Argued May 5, 1977. Decided Aug. 16, 1977. David Kraut, Mark B. Segal, Community Legal Services, Inc.,--Philadelphia, Pa., for appellant. David Max Baer, Norman J. Watkins, J. Justin Blewitt, Jr., Deputy Attys. Gen., Chief, Civ. Litigation, Robert P. Kane, Atty. Gen., Pa. Dept. of Justice, Harrisburg, Pa., for appellees. Before GIBBONS, MARIS and HUNTER, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge: This is an appeal from an order of the district court granting defendants’ motion to dismiss the complaint of Lanceda Richardson. against certain officials of the Pennsylvania Health Department for failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). We reverse. Richardson, a black woman, filed a complaint on her own behalf and on behalf of a class of similarly situated persons, alleging that in violation of 42 U.S.C. § 1981 and § 1983 and of the fourteenth amendment she had been improperly discharged from her employment. The defendants are state officers responsible for personnel policies and practices of the Pennsylvania Department of Health. Richardson charges that defendants’ practice of using Pennsylvania civil service exam No. 08493 (the “exam”) for testing and ranking job applicants for the positions of Laboratory II and Laboratory III Technicians violates her constitutional rights. She alleges that the exam had a discriminatory racial impact on minority job applicants and that the exam was not job-related. On October 27, 1965, Richardson was given a provisional appointment as a Laboratory Technician II within the Pennsylvania Health Department. Under Pennsylvania law “[a] provisional appointment shall continue only until an appropriate eligible list can be established' and certification made therefrom.” 71 P.S. § 741.604 (Supp.1976). After several unsuccessful attempts to establish an eligibility list, the State Civil Service Commission established one in the spring of 1975. Richardson competed in the examination which was used to create this eligibility list, and, in fact, was placed on the list. Pennsylvania law, however, requires that only the three highest ranking individuals on the eligibility list be certified for appointment to the position. See 71 P.S. § 741.601 (Supp.1976). As Richardson was not one of the top three persons on the list of eligibles she was not certified, and on May 13, 1975, her provisional appointment was terminated. In her complaint charging that the exam was invalid Richardson alleges: (1) that during her nine and one-half year employment with the Health Department her performance as a Laboratory Technician II was constantly evaluated by her superiors as “Very Good”; (2) that the exam has not been validated to predict success on the job of Laboratory Technician II and III with a reasonable degree of accuracy; (3) that the use of the exam to determine hiring for the position of Laboratory Technician II and III violates 29 C.F.R. § 1607, a regulation of the federal Equal Employment Opportunity Commission; and (4) that the exam has a discriminatory impact on minority applicants in that proportionately fewer minority applicants pass than do whites. The complaint also alleges: 18. The defendants knew or reasonably should have known that the use of this Laboratory Technician II and Laboratory Technician III civil service examination to determine hiring for the job in which plaintiff was engaged, would violate her constitutional rights. 20. Despite their knowledge that the examination for Laboratory Technician II and Laboratory Technician III was not job-related and not validated to predict with a reasonable degree of accuracy success on the job in which plaintiff was engaged and despite their knowledge that the named plaintiff had successfully performed her job for 9% years, the defendants, acting in bad faith, or with reckless disregard for the named plaintiff’s constitutional rights, dismissed .the named plaintiff. (Emphasis added). In granting defendants’ Rule 12(b)(6) motion the district court wrote no opinion. Thus we are somewhat in the dark as to the reasoning behind the court’s ruling. We do know, however, that the defendant state officials, in moving for a dismissal, relied on Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), holds that “if an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited [under Title VII].” A discriminatory intent on the part of the employer need not be proved to show that a testing practice violates Title VII. Id. at 432, 91 S.Ct. at 853. Under Title VII exams having a substantially disproportionate disqualifying effect on minorities must be validated in terms of job performance, and such validation requires a probing judicial review of the choices made by those responsible for the test. See, e. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-36, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In Washington v. Davis, supra, plaintiffs alleged that defendants had utilized employment testing procedures which were racially discriminatory and violated the due process clause of the fifth amendment and 42 U.S.C. § 1981. As in the case sub judice no Title VII violations were asserted. The Court held that as plaintiffs’ claims were based on asserted violations of the fifth amendment, rather than Title VII, plaintiffs were required to prove not only a discriminatory impact, but also a discriminatory intent on the part of the defendant employers. Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this. 426 U.S. at 246-48, 96 S.Ct. at 2051 (footnote omitted). Since the case was before the Supreme Court in the posture of an appeal from a motion by the defendants for summary judgment, and it was undisputed that there was no intentional or purposeful discriminatory action, the Court held that the grant of summary judgment for defendants was proper. At the same time, however, the Court made clear that in cases where intentional or purposeful discriminatory action was charged, discriminatory impact is evidence of such purpose. As Justice White states in the opinion of the Court: Necessarily, an invidious discriminatory purpose may often be inferred from the totality of relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. Id. at 242, 96 S.Ct. at 2049. This view, that evidence of discriminatory impact is probative for purposes of establishing discriminatory intent, was also endorsed in Justice Stevens’ concurring opinion: Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decision making, and of mixed motivation. Id. at 253, 96 S.Ct. at 2054. The instant case, unlike Washington v. Davis, is before us on an order granting a Rule 12(b)(6) motion. The standard for reviewing such an order is quite different from that for reviewing Rule 56 orders. The latter may be affirmed if, as in Washington v. Davis, there is no dispute as to material facts. The former may be affirmed only if it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of his claim. 2A Moore’s Federal Practice ¶ 12.08, at 2274 (1975 ed.); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, in considering such a motion we are to give the pleadings a liberal construction. See Fed.R.Civ.P. 8(f); Conley v. Gibson, supra. Judging the sufficiency of Richardson’s complaint by the appropriate Rule 12(b)(6) standard, we are unable to say that it appears to a certainty that she could not prove facts which would bring her within the intentional or purposeful discrimination test of Washington v. Davis. She charges that the defendants knew that the selection procedures (the exam and its scoring) have a discriminatory impact on minority job applicants and that it was not job-related. She also charges that defendants used these procedures knowing that she had nine and one-half years of successful performance on the job, that they acted with knowledge that use of the test would violate her constitutional rights, and that they acted “in bad faith.” She is entitled to the opportunity to offer proof that the “bad faith” referred to was an intentional and purposeful discriminatory intention in using the test. And as Washington v. Davis makes clear, the actual results of an employment selection exam, which according to her complaint were anticipated by the defendants, may be evidence of discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Thus it was premature for the district court to conclude that Richardson could prove no set of facts from which a factfinder could infer intentional and purposeful discrimination. Richardson also suggests that the holding in Washington v. Davis requiring a showing of discriminatory intent is limited to cases based on the fifth or fourteenth amendments. She urges that 42 U.S.C. § 1981, having its separate genesis in the Civil Rights Act of 1866, should be construed consistently with Title VII since, like that title, it is a statutory grant of substantive and remedial rights, rather than a remedy for the enforcement of minimum constitutional requirements. It is not clear whether the Supreme Court intended such a distinction to survive Washington v. Davis, but there is no need for us to meet that question now. If Richardson proves intentional discrimination to the satisfaction of the factfinder, her fourteenth amendment claim, brought pursuant to § 1983, will afford full relief. If she proves no more than disparate impact, the district court initially, and we on a full record, can consider the § 1981 issue when it must be decided. The order of the district court dismissing the complaint will be vacated and the cause remanded for further proceedings. . A motion filed by Richardson requesting class action certification was never ruled upon by the district court. . The complaint alleges no cause of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. . In examining the record the Court observes: Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.” [Davis v. Washington ] 348 F.Supp. [15], at 18. 426 U.S. at 246, 96 S.Ct. at 2051. . E. g., Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

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

Florence QUEEN, Appellant, v. UNITED STATES of America, Appellee. No. 18035. United States Court of Appeals District of Columbia Circuit. Argued Feb. 20, 1964. Decided June 29, 1964. Mr. William B. Bryant (appointed by this court), Washington, D. C., for appellant. Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee. Before Bajzelon, Chief Judge, and Fahy and Wright, Circuit Judges. PER CURIAM. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (decided May 18, 1964) on review of a conviction of a federal offense, secured in part by the admission at trial of incriminating statements of the petitioner, the accused, the Court held that his right to the assistance of counsel guaranteed by the Sixth Amendment had been violated by the admission of the statements: “We hold that the petitioner was denied the basic protections of that guarantee when there was used j against him at his trial evidence of his own incrimininating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203. The opinion states that the most elemental concepts of due process of law contemplate that an indictment be followed by trial in a courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. The Court contrasted these elemental concepts of due process with the use at trial of incriminating statements obtained after indictment and prior to trial in such extra-judicial proceedings as secret interrogation by the police. In the present case also the convictions were obtained by use at trial of self-incriminating statements of the accused elicited by extra-judicial secret police interrogation prior to trial. It is true appellant had not been indicted; but other circumstances present in this case compel the same result as in Mas-siah. See Escobedo v. Illinois, 84 S.Ct. 1758. These circumstances are as follows: Appellant had been arrested March 14 and taken the next day before a United States Commissioner. He admitted her to bail and continued the proceedings to allow her to obtain counsel, as she requested opportunity to do. On the continued date, March 28, she reappeared, as of course she was required to do, at the offices of the Commissioner, but without counsel. The police officer who had arrested her approached her in the witness room where she was awaiting appearance before the Commissioner. With two other officers he escorted her into another room, he says with her assent, to be questioned, alone with the officers. He also said he advised her of her right not to make a statement and that if she did so it might be used against her. He testified, however, that he knew she had asked for the continuance to obtain a lawyer, and he asked her if she had obtained counsel, to which she replied either that she had obtained a lawyer, was in the process of obtaining one, or was going to do so. He was not sure which of these answers she gave. He said he talked to her to try to get to the truth of the matters involved in the charge: “I didn’t feel that she had told me the truth on the 14th,” the date of the arrest, “so I wanted to talk to her on this occasion to find out the whole truth if I could.” In the course of this secret interrogation, in the absence of counsel, and during the continuance granted for the very purpose of enabling counsel to be obtained, the self-incriminating statements were elicited. The result of this intervention by the officers was to frustrate the right of the accused to have the assistance of counsel until by reason of these extra-judicial proceedings such assistance would be rendered fruitless if the statements thus obtained could be used to convict. For this reason, and notwithstanding the absence of an indictment, the case clearly comes within the reasoning which led to the exclusion of the evidence in Massiah and Escobedo. And see Ricks v. United States, 118 U.S. App.D.C.-, 334 F.2d 964. Reversed and remanded. . She had been so advised by the Commissioner on the 15th.

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?

Richard RUNYAN, Plaintiff-Appellant, v. NATIONAL CASH REGISTER CORP., Defendant-Appellee. No. 83-3862. United States Court of Appeals, Sixth Circuit. Argued Dec. 16, 1985. Decided April 7, 1986. C. Daniel Karnes, Glen D. Nager, Cleveland, Ohio, for amicus curiae Eaton Corp.,, Firestone Tire and Rubber Co., & TRW. Samuel Estreicher, Cahill Gordon & Reindel, New York City, for amicus curiae Center for Public Resources in support of District Court Affirmance. Paula J. Connelly, Nat. Chamber Litigation Center, Washington, D.C., for amicus curiae Chamber of Commerce of the U.S. in support of appellee (NCR). Paul H. Tobias (argued), Tobias & Kraus, Cincinnati, Ohio, for plaintiff-appellant. Armistead W. Gilliam, Jr. (argued), Smith & Schnacke, Dayton, Ohio, for defendant-appellee. Douglas S. McDowell, McGuiness & Williams, Washington, D.C., amicus curiae EEAC. Before LIVELY, Chief Judge and EN-GEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY, WELLFORD, MILBURN, GUY and NELSON, Circuit Judges. WELLFORD, Circuit Judge. Richard Runyan appeals an order of the District Court for the Southern District of Ohio granting National Cash Register Corporation’s (NCR) motion for summary judgment. The court dismissed Runyan’s allegation that his discharge was discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1982). Applying Title VII analysis, the district court concluded that a general release knowingly signed by Runyan on November 25, 1977, was a complete bar to Runyan’s ADEA claim, that a bona fide dispute existed respecting the reason for Runyan’s termination, and that the consideration Runyan received for signing the release was adequate and not contrary to public policy. Runyan argued on appeal that his unsupervised release cannot bar his private ADEA cause of action because the ADEA incorporates the enforcement provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 216, 217 (1982). A panel of this court agreed and reversed the district court. Runyan v. National Cash Register Corp., No. 83-3862 (6th Cir.Apr. 22, 1985). The panel majority held that a release of rights under the ADEA, unsupervised by the Equal Employment Opportunity Commission or by a court, is void as a matter of law. A majority of judges in active service voted to rehear the case en banc, thus vacating the panel opinion and the previous judgment of the court. Rule 14, Rules of the Sixth Circuit. Following supplemental briefing, the case was argued before the full court. For the reasons that follow, we hold that a private unsupervised release under the circumstances of this case may waive ADEA rights, and thus affirm the district court. I. BACKGROUND While we adopt the facts set forth in the district court’s opinion, see Runyan v. NCR Corp., 573 F.Supp. 1454, 1456-57 (S.D.Ohio 1983), we set out a further summary. NCR hired Runyan, who was born in 1918, at age fifty-three as an assistant general counsel in NCR’s corporate legal department. In early 1977, James E. Rambo, vice president and general counsel at NCR, informed Runyan the company was going to terminate him for unsatisfactory performance. During the meeting, Runyan, then fifty-nine and an experienced labor lawyer, told Rambo that he felt his “termination was related to age discrimination.” After several subsequent discussions between Runyan and various representatives of NCR, the parties executed a written “Consulting Agreement,” which became effective on June 1, 1977, but was to terminate on May 31, 1978. This agreement provided that Runyan would receive $150 per day, with a guaranteed minimum of $2,333 per month, in exchange for Runyan’s continuing legal services as a consultant. In November 1977 Runyan approached Rambo and requested that NCR extend the agreement beyond May 31, 1978, and increase the compensation Runyan was receiving under the agreement. After discussing Runyan’s requests with other officials of NCR, Rambo told Runyan that the company would not extend the agreement, but that it would increase Runyan’s compensation to a guaranteed minimum of $4,000 per month from November 1,1977, through May 31,1978. NCR conditioned this increased compensation, however, on Runyan’s executing a release of all claims he had or may have against NCR relating to his employment and termination. On November 25, 1977, the parties entered into a written amendment to the prior consulting agreement, increasing Runyan’s compensation to a guaranteed monthly minimum of $4,000 to the time of termination. At the same time, Runyan signed an “Accord and Satisfaction, Release and Discharge,” which provided: In consideration of the “Amendment to Consulting Agreement” executed by NCR on November 25, 1977, receipt of which is hereby acknowledged and which I acknowledge to be in full accord and satisfaction of any and all claims I may have against NCR arising out of the course of my employment and/or the termination of any employment and in further consideration of the said “Amendment to Consulting Agreement,” I, Richard V. Runyan, hereby release and forever discharge NCR, its successors, assigns, transferees, officers, employees, representatives and agents from all manner of action and actions, cause and causes of action, suits, debts, contracts, controversies, agreements, promises, damages, and demands whatsoever in law or in equity, which against NCR, I, Richard V. Runyan, ever had, now have, or which I hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents, save and except the aforementioned “Amendment to Consulting Agreement” of November 25, 1977, and the underlying “Consulting Agreement of June 1, 1977.” I have read this release and understand all of its terms. I execute it voluntarily and with full knowledge of its significance. (Emphasis added.) On May 31, 1978, the consulting agreement expired by its own terms and Runyan’s working relationship with NCR ended. Runyan accepted the increased compensation promised him. On November 27, 1978, Runyan filed a charge of age discrimination against NCR with the Secretary of Labor, and on May 22, 1980, commenced this ADEA action in the district court. II. WAIVER UNDER THE FLSA AND ADEA Runyan’s principal argument on appeal is that an unsupervised waiver of his statutory rights cannot bar his private action under the ADEA. This argument is based on Congress’ incorporation into the ADEA of the enforcement provisions of the FLSA, and the issue raised is one of first impression in this court. To resolve this issue, we review the historical development of the FLSA and the ADEA. In 1938 Congress enacted the FLSA to provide for a standard minimum wage and to require additional compensation for overtime work. Section 216 provides in part: Any employer who violates the provisions ... of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. 29 U.S.C. § 216(b) (1982). The FLSA is silent on whether an employee can release his or her right to wages or liquidated damages. Seven years after enactment, however, in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), the United States Supreme Court considered whether an employee subject to the FLSA could waive or release his right to liquidated damages under § 216. In each of three consolidated cases before the Court, the employer had obtained a release from its employee in exchange for an amount less than the employee’s full FLSA entitlement. The Court, influenced by its perception of legislative intent, held that an employee cannot privately waive his right to liquidated damages, at least when no bona fide dispute exists between the parties regarding the FLSA’s coverage: The statute was a recognition of the fact that due to the unequal bargaining power as between employer and employee, certain segments of the population required federal compulsory legislation to prevent private contracts on their part which endangered national health and efficiency ____ To accomplish this purpose, standards of minimum wages and maximum hours were provided. Neither petitioner nor respondent suggests that the right to the basic statutory minimum wage could be waived by any employee subject to the Act. No one can doubt but that to allow waiver of ■ statutory wages by agreement would nullify the purposes of the Act. We are of the opinion that the same policy considerations which forbid waiver of basic minimum and overtime wages under the Act also prohibit waiver of the employee’s right to liquidated damages. Id. at 706-07, 65 S.Ct. at 902 (footnote omitted) (emphasis added). The Court did not decide whether an employee can waive the right to liquidated damages when a bona fide dispute regarding FSLA’s coverage does exist. The Supreme Court partially resolved the question left open in O’Neil in Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946). The Court addressed whether the FLSA precludes a bona fide settlement of a bona fide dispute over the Act’s coverage on a claim for overtime compensation and liquidated damages when the employee received the overtime compensation in full. The Court concluded: We think the purpose of the Act, which we repeat from the O’Neil case was to secure for the lowest paid segment of the Nation’s workers a subsistence wage, leads to the conclusion that neither wages nor the damages for withholding them are capable of reduction by compromise of controversies over coverage. Id. at 116, 66 S.Ct. at 929 (footnote omitted.) Although the Court in Gangi held that settlements of bona fide disputes as to coverage of the Act are invalid, it specifically did not “consider ... the possibility of compromises in other situations which may arise, such as a dispute over the number of hours worked or the regular rate of employment.” Id. at 114-15, 66 S.Ct. at 928-29 (footnote omitted). The Court cited Strand v. Garden Valley Telephone Co., 51 F.Supp. 898 (D.Minn.1943), as addressing the remaining issue it left open. 328 U.S. at 115 n. 10, 66 S.Ct. at 928 n. 10. In Strand, the district court distinguished bona fide disputes over legal issues — for which settlement agreements are not valid — from bona fide disputes over factual issues — for which compromises or settlements are valid and binding. 51 F.Supp. at 904-05; accord Rigopoulos v. Kervan, 47 F.Supp. 576 (S.D.N.Y.1942) (settlement not bar to recovery of liquidated damages absent allegation that an honest dispute existed respecting whether employees had worked overtime hours); Weiss v. Testrite Instrument Co., 272 A.D. 696, 74 N.Y.S.2d 673 (1947); Cassese v. Manufacturers Trust Co., 182 Misc. 344, 46 N.Y.S.2d 621 (N.Y.City Ct. 1943). Congress enacted the ADEA in 1967. In § 7(b) of the Act, as codified at 29 U.S.C. § 626(b), Congress expressly incorporated the enforcement provisions of the FLSA: The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title ____ Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter____ 29 U.S.C. § 626(b) (1982). Neither the Act nor its legislative history explicitly addresses whether ADEA rights may be privately released. The purposes behind enactment of the ADEA and the earlier enactment of the FLSA are, however, obviously different. The latter pertained to all workers governed by a national standard setting minimum compensation for workers and to secure “the lowest paid segment____a subsistence wage.” Gangi, 328 U.S. at 116, 66 S.Ct. at 929. The ADEA, on the other hand, addressed itself to an entirely different segment of employees, many of whom were highly paid and capable of securing legal assistance without difficulty. Congress intended to protect this group from discrimination in favor of younger employees. In accordance with the distinction between FLSA and ADEA claimants, a practice, even if not officially sanctioned, has developed that permits effectuating and recognizing settlements of ADEA disputes that employees and employers have worked out in good faith without agency involvement. III. WAIVER IN THIS CASE In applying the law to the facts of this case, we are mindful that we must assume that Congress, by referring to the FLSA enforcement provisions in enacting the ADEA, was aware of judicial interpretation of the FLSA. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). But we are satisfied that the present case concerns an issue that the Supreme Court in Gangi specifically left undecided. In this case, a bona fide dispute does exist concerning whether NCR discharged Runyan in violation of the ADEA. The dispute is not over legal issues such as the ADEA’s coverage or its applicability. Rather, the parties contest factual issues concerning the motivation and intent behind NCR’s decision to discharge Runyan. This case presents the precise issue not resolved in O’Neil and Gangi. It presents an issue analogous to the factual dispute discussed in Strand and the other cases cited earlier, respecting which those courts would have found settlements valid and binding. Accordingly, we hold that an unsupervised release of a claim in a bona fide factual dispute of this type under these circumstances is not invalid. In this case it is clear that Runyan is not among the “lowest paid segment of the nation’s workers” who likely have little education and little understanding of their legal rights, a factor which the Court in O’Neil and Gangi deemed very important. Rather, Runyan is a well-paid, well-educated, labor lawyer with many years of experience in this area. Indeed, evidence in the record suggests Runyan tried to take advantage of NCR by taking the full benefit of a reasonable and understood bargain, while attempting to part with what he thought might be only illusory consideration in return. The release in this case was knowingly and deliberately executed by an attorney knowledgeable in labor law and employment discrimination matters. It is very different from cases concerning releases of FLSA claims by lay persons seeking payment of minimum wages, in amounts ascertainable by uncomplicated methods, usually with little knowledge of their legal rights. IV. WAIVER IN ADEA CASES We have decided that under particular circumstances employers and employees may negotiate a valid release of ADEA claims. We recognize, however, that in accord with concerns expressed in O’Neil and Gangi courts should not allow employers to compromise the underlying policies of the ADEA by taking advantage of a superior bargaining position or by overreaching. Justice Frankfurter, in his Gangi dissent, 328 U.S. at 121-22, 66 S.Ct. at 931-32, noted the importance of good faith in entering settlements and in approving a waiver of rights in this type of situation: Before a hitherto familiar and socially desirable practice is outlawed, where overreaching or exploitation is not inherent in the situation, the outlawry should come from Congress. ... Strict enforcement of the policy which puts beyond the pale of private arrangement minimum standards of wages and hours fixed by law does not call for disregard of another policy, that of encouraging amicable settlement of honest differences between men dealing at arm’s length with one another. Id. at 122, 66 S.Ct. at 932. In determining whether an ADEA settlement and release is valid, a court should apply the principles expressed by Justice Frankfurter that encourage “amicable settlement of honest differences ... where overreaching or exploitation is not inherent in the situation.” Ordinary contract principles would apply in such a situation as stated in footnote ten. We note that the EEOC has specifically proposed “allowing for non-EEOC supervised waivers and releases of private rights under the ADEA.” Draft Notice of Proposed Rulemaking, reprinted in 141 Daily Lab.Rep. (BNA) A-6, A-7 (July 23, 1985). The agency’s expressed basis for this proposal is its preference to encourage voluntary resolution of disputes under the ADEA. We share these expressed views of the agency charged with responsibility of enforcement of the ADEA. Accordingly, we hold that Runyan’s release is valid and the district court’s judgment is AFFIRMED. . Under the 1977 Reorganization Act, the President transferred authority over ADEA claims from the Secretary of Labor to the Equal Employment Opportunity Commission (EEOC). We have held that the transfer, accomplished through the use of a legislative veto, was constitutional. See Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir.1984). This change does not affect this appeal. . 29 U.S.C. § 206 provides for a standard minimum wage for employees engaged in commerce or in the production of goods for commerce. 29 U.S.C. § 207 requires that such employees be compensated at a rate equal to one and one half times the regular rate for hours worked in excess of a forty hour workweek. . Brooklyn Savings Bank employed O’Neil as a night watchman for its eleven-story office building. He claimed to have worked several overtime hours, but had not received compensation at the FLSA-prescribed time and a half rate. Brooklyn Savings offered O’Neil, and he accepted, a check for $423.16 in exchange for a release of all claims. The check covered the appropriate statutory overtime amount, but no liquidated damages under § 216(b). In the second consolidated case, a box factory employee worked certain hours of statutorily defined overtime. His employer offered him a check for $500.00, an amount less than the overtime compensation to which the employee was entitled, in exchange for a release of all FLSA rights. Both parties were aware that under the FLSA more than $500.00 was due to the employee. The employee sued for the balance of statutory compensation due and liquidated damages. In the last of the consolidated cases, the employee accepted a delayed payment of statutory overtime compensation, which the employer asserted was a release of any claim to liquidated damages under the FLSA. . Gangi concerned building and maintenance employees. Each had put in varying hours of overtime for which no payment had been made prior to the Supreme Court's decision in Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942), in which service and maintenance employees in buildings tenanted by manufacturers producing for interstate commerce were held to be covered by the FLSA. The employees then made claims for overtime compensation and liquidated damages. The employer refused to pay on the grounds that its tenants did not ship their products directly into interstate commerce. Under threat of suit, the employer paid the overtime compensation and obtained a release of further claims from the employees. . It was this strong language that prompted Congress to enact the Portal-to-Portal Act in 1947. 29 U.S.C. § 260 (1982). That statute gave courts the discretion to withhold an award of liquidated damages upon the employer's satisfactory showing that the act or omission giving rise to the FLSA claim was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of the FLSA. . Plaintiff maintains that Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), and Tony & Susan Alamo Foundation v. Secretary of Labor, — U.S.-, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985), require application of the no waiver rule to all unsupervised ADEA releases. But Barrentine and Alamo are clearly distinguishable from the present case. First, they both concerned the waiver of legal coverage under the FLSA. In Barrentine the issue was whether the FLSA required the employer to pay employees for time they spent complying with safety requirements. 450 U.S. at 730-32, 101 S.Ct. at 1439-40. The issue was not whether the employees made the safety inspections or how many hours they worked. Rather, the issue was whether the FLSA requires compensation for this kind of work performed by these employees. In Alamo the workers wanted to stipulate that their work was "voluntary" and therefore not covered under the FLSA. 105 S.Ct. at 1962. Neither of these cases concerned the resolution of the type of factual issue referred to in Gangi. Second, Barrentine and Alamo concerned an FLSA claim, not an ADEA claim as in the present case. In Barrentine and Alamo the Court reiterated the well known problems arising from the unequal bargaining positions of employers and employees, 105 S.Ct. at 1962, and "substandard wages and oppressive working hours,” 450 U.S. at 739, 101 S.Ct. at 1444. FLSA cases implicate these concerns to a significantly greater degree than do ADEA cases. . The Fifth Circuit's decision in United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976), supports our narrow reading of O'Neil and Gangi. In AlleghenyLudlum, the court declined to extend the highly protective public policy rationale of O'Neil and Gangi to the Title VII context. Id. at 861. The court alluded to the viability of the Strand limitation on Gangi. It held that O'Neil and Gangi do not prohibit employees from "accept[ing] compromise payments and waiv[ing] their claims for further relief in situations where the fact of liability or the amount thereof is disputed.” Id. at 860. . It is not surprising that courts have found FLSA releases unenforceable given the nature of the factual issues they concern. In FLSA cases the factual issues concern the number of hours worked and the base pay rate — both of which are amenable to determination with some precision. In ADEA cases, on the other hand, the factual issues frequently concern determination of motive and intent, controversies that are more difficult to resolve. . Several previous cases in this circuit have pointed toward the result we reach today. In Ott v. Midland-Ross Corp., 600 F.2d 24 (6th Cir.1979), defendant argued that a valid release barred plaintiffs ADEA claim. The plaintiff argued that the court should estop defendant from enforcing the release because it was fraudulently induced. The court did not indicate that the release was void as a matter of law. It assumed the release would be valid if not fraudulently induced. 600 F.2d at 30 n. 6. See also Ackerman v. Diamond Shamrock Corp., 670 F.2d 66 (6th Cir.1982) (held waiver of ADEA claim valid without discussing the need for EEOC supervision; the facts as discussed in the opinion suggest that the EEOC did not supervise the release). . We reject plaintiff's argument that the waiver does not apply to ADEA claims because it did not specifically refer to the ADEA. In determining whether plaintiff knowingly and voluntarily waived his ADEA claims, we apply ordinary contract principles. . The EEOC notes that this is similar to the policy encouraging settlement of cases concerning rights under Title VII of the Civil Rights Act of 1964.

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?

SUPER MOLD CORPORATION OF CALIFORNIA v. AMERICAN TIRE MACHINERY CO. No. 9253. Circuit Court of Appeals, Ninth Circuit. Sept. 20, 1940. Percy S. Webster and Roger B. Webster, both of Stockton, Cal., for appellant. Frank L. A. Graham, of Los Angeles, Cal., for appellee. Before WILBUR, DENMAN, and MATHEWS, Circuit Judges. MATHEWS, Circuit Judge. This was an action by appellant, Super Mold Corporation of California, against appellee, American Tire Machinery Company, for contributory infringement of two patents, Nos. 1,907,026 and 1,928,404, owned by appellant. Defenses were (1) that the patents were invalid and (2) that, if they were valid, appellee had not infringed them or contributed to their infringement. Trial was by the court sitting without a jury. Evidence was heard, findings of fact and conclusions of law were made and filed and, thereupon, judgment was entered dismissing the action. From that judgment this appeal is prosecuted. The trial court found that appellee had not infringed or contributed to the infringement of patent No. 1,907,026. That finding is not challenged. Patent No. 1,928,404 was applied for by Herbert J. Woock, Charles J. Peterson and Jacob S. Caufield on August 20, 1928, and was issued to their assignee (appellant’s assignor) on September 26, 1933. It is for a method and apparatus for retreading tires. The complaint does not state which of the ten claims of the patent were infringed, but the case was tried below and argued here upon the theory that claims 8 and 9 were the only claims involved. The trial court held that claims 8 and 9 were invalid. That holding is specified as error. Claims 8 and 9 read as follows: “8. That method of fitting a tire to a full circle retreading mold adapted to receive the tread portion of the tire comprising the step of moving the bead portions of the tire axially thereof until the tread properly fits the mold and then confining the beads against further movement. “9. That method of fitting a tire of a certain tread diameter into a full circle retreading vulcanizing mold of a different tread diameter, comprising the step of moving .the bead portions of the tire axially and in opposite directions, whereby to vary the tread diameter of the tire until it equals that of the mold, and then confining the bead portions of the tire against further movement.” The evidence establishes that the methods described in claims 8 and 9 were known and used by others in this country before the alleged invention or discovery thereof by Woock, Peterson and Caufield. Therefore, claims 8 and 9 are invalid for lack of novelty. Revised Statutes, § 4886, 35 U.S.C.A. § 31. Appellant’s brief states that prior to the teaching of patent No. 1,928,404 it was standard practice, in retreading a tire, to mount it upon a rim of standard width, such as would be used in road service, but that this practice produced unsatisfactory results, and that— “Woock et al. discovered they could overcome and correct the unsatisfactory and disastrous conditions experienced by their predecessors in the art by departing from the old practice which consisted in mounting all tires irrespective of their diameters upon the same standard width of road rim. This practice Woock et al. discarded, and m place thereof mounted the tires, depending upon their diameters, upon rims of varying width, thereby bringing about an increase or decrease in the over-all diameter of the tires being retreaded so as to bring such tires into correct vulcanizing relation with the casting surfaces of the mold. “By this clever and novel discovery, Woock et al. were able to provide for the manipulation of the beads of the tire in such a manner as to effect a change in the over-all diameter of the tire. * * . This discovery is not mentioned in either of the claims in suit. The claims in suit relate, not to rims or other apparatus, but to methods only; and these were old when Woock, Peterson and Caufield discovered them. Judgment affirmed. Appellant’s brief states: “Since the user of the mold [a person other than ap-pellee] is the actual infringer of the method of [patent No. 1,907,020], appellant elects at this time to waive its charge of contributory infringement of that patent by appellee. Therefore, only the one question of validity of [patent No. 1,928,404] is left for this court to determine.” Appellant’s brief states: “Patent [No. 1,928,404] contains a number of claims, some to structure and others to method. Plaintiff [appellant] elected at the trial to stand on the two broad method claims 8 and 9.” Including, inter alia, the following patents : Batcheller, No. 1,113,925, October 3, 1914; Harris, No. 1,353,042, September 14, 1920; Thompson, No. 1,354,-227, September 28, 1920; Borman, No. 1,354,595, October 5, 1920; Hughes, No. 1,524,866, February 3, 1925; Miller, No. 1,585,933, May 25, 1926; Gregg, No. 1,-643,493, September 27, 1927; Barre, No. 1,643,869, September 27, 1927; Smith, .No. 1,662,035, March 6, 1928; Smith, No. 1,710,804, April 30, Í929; Smith, No. 1,750,867, March 18, 1930; Burch, No. 1,751,392, March 18, 1930; Glynn, No. 1,760,944, June 3, 1930; Wirgman, No. 1,779,385, October 21, 1930; Hudson, No. 1,836,850, December 15, 1931.

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?

S & S LOGGING CO., Inc., Appellant, v. B. G. BARKER and Jane Doe Barker, his wife, Bob Jones and Jane Doe Jones, his wife, Ivan O. Jones and Jane Doe Jones, his wife, Harold C. Chriswell and Iris E. Chriswell, his wife, Wm. O. Benecke and Ruth Benecke, his wife, Summit Timber Company, a Washington corporation, and Eclipse Timber Co., a Washington corporation, Defendants, Lewis Hovde and Jane Doe Hovde, his wife, and the Bank of Sumas, a banking corporation, Additional Defendants, (Harold C. Chriswell et ux. and Wm. O. Benecke et ux. of Defendants), Appellees. No. 19896. United States Court of Appeals Ninth Circuit. Aug. 24, 1966. Joseph T. Pemberton, Bellingham, Wash., for appellant. John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Edward Berlin, Attys., Dept, of Justice, Washington, D. C., Wm. N. Goodwin, U. S. Atty., Seattle, Wash., for appellees. Before POPE, BARNES and MERRILL, Circuit Judges. POPE, Circuit Judge. Appellant brought suit against appellees and others under section 4 of the Clayton Act, 38 Stat. 731 (1914), 15 U.S.C. Sec. 15 (1964), charging a conspiracy to monopolize and control the sale of National Forest Sérvice timber in Mount Baker National Forest, Washington, in violation of Sections 1 and 2 of the Sherman Act, 26 Stat. 209 (1890), 15 U.S.C. Secs. 1, 2 (1964). Appellee Chriswell is Supervisor and appellee Benecke is Timber Staff Assistant of the Mount Baker National Forest. It is charged in the complaint that pursuant to the alleged conspiracy appellees canceled an auction sale of timber on which appellant was successful bidder and thereafter awarded the contract of sale to other named conspirators, also joined as defendants. The appellees moved for dismissal of the complaint, pursuant to F.R.Civ.P. 12 (b) (6), on the ground that the complaint failed to state a claim upon which relief could be granted. In the alternative appellees asked for summary judgment. The action was dismissed as to appellees. I As we shall note hereafter the motion for summary judgment was supported by affidavits and depositions, which raises the question whether the whole motion should not be treated as one for summary judgment. But before reaching that question, it is appropriate to consider whether the complaint, on its face, and taken by itself, states a claim against these appellees. The trial Judge, in sustaining the motion, relied upon the case of Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434. There the opinion of Mr. Justice Harlan, for four Justices, held that governmental officers have an absolute privilege and immunity against suits for damages against them arising out of actions taken by them “within the outer perimeter of [their] line of duty * * * despite the allegations of malice in the complaint.” In announcing this rule the Court quoted at length what it said Judge Learned Hand had “admirably expressed” in Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581, as follows: “ ‘It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the ease has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * * “ ‘The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * (360 U.S. 571, 572, 79 S.Ct. 1335, 1339.) Judge Hand’s statement was again alluded to with approval in the recent case of Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125. The complaint here states clearly just what it is claimed that the defendants did. What they actually did was to reject all bids at the first sale and arrange for another sale of the same timber. These were acts which were clearly within the perimeter of those defendants’ duties, or, as put by the Fifth Circuit in Norton v. McShane, 332 F.2d 855, 857, they were “acting within the scope of their authority or in the discharge of their duties.” This immunity from suit granted to governmental employees, is not limited to those of cabinet rank, nor to those exercising judicial or quasi-judicial functions. As stated in Barr v. Matteo, supra, 360 U.S. pp. 572-573, 79 S.Ct. p. 1340: “We do not think that the principle announced in Vilas [Spaulding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780] can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.” And in O’Campo v. Hardisty, 9 Cir., 262 F.2d 621, 625, a suit against employees of the Internal Revenue Service, we said: “At an early date the rule was extended to protect legislative and administrative officers. * * That minor governmental officers are within the scope of the immunity is well established.” The allegations of the complaint using the words “conspired with each other and with the defendants” and “conspired to and arranged for another sale” and a “conspiracy to injure the plaintiff” do not operate to take this case out of the Gregoire rule. In Bershad v. Wood, 9 Cir., 290 F.2d 714, the wrongful levy by the defendant officers in that case was alleged to have been done “wrongfully, maliciously, without probable cause, and in willful disregard of the rights of plaintiff.” This court affirmed a judgment for the defendant officers relying upon a substantial number of decisions which rejected similar claims. This court there expressly approved and adopted the Gregoire rule. The allegations here, as to “conspiracy” can mean no more than the allegations in Bershad, or in Gregoire where it was asserted that the defendants “conspired together and maliciously and wilfully entered into a scheme to deprive the plaintiff * * * of his liberty contrary to law.” We cannot say that it was not within the power of these defendants to reject all bids on the first sale. Such power is granted to these officers by the Forest Service regulations found in 36 CFR (1960 ed.) 221.10(a) (1). The actual basis for the action here is necessarily the cancellation of the first sale by the rejection of the bid and the re-advertising of the property. No basis for depriving the officers of the absolute immunity granted to them can be found here through an allegation that this was done through a “conspiracy” with others. The so-called conspiracy would not result in harm to plaintiff if nothing were done pursuant to it. What was done here was an act specifically authorized by the regulations. That that act is motivated by a conspiracy adds nothing to plaintiff’s claim and makes no stronger case than the case mentioned by Judge Hand in Gregoire where the officer used his power to “vent his spleen” upon others or for any other personal motive “not connected with the public good” or where he exercises a power “dishonestly”, or where, as in our Bershad case, the officer acts “wrongfully, maliciously, without probable cause and in willful disregard of the rights of plaintiff.” In Bershad, supra, we cited with approval the case of Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 239. The very proposition just expounded is discussed there by the court and dealt with in an appropriate manner. The plaintiff in that case had pleaded that the defendant officer had conspired with other defendants to prosecute the plaintiff maliciously, and, in furtherance of the plan, “confederated and agreed” that the officer would do the things with which he was charged in the complaint. The pleading contained “other allegations concerning the details of the plan of conspiracy.” The court, in noting that this reference to a conspiracy no more takes the case out of the ordinary rule than would an allegation that the acts were performed wilfully and maliciously, stated as follows : “This raises the question whether the immunity which attaches, as we hold it does, to a prosecuting officer, applies to shield one who conspires wilfully and maliciously to get himself appointed as prosecutor, in order that he may wilfully and maliciously indict and prosecute the person he seeks to punish. In our opinion, the reasons which compel us to hold that one who obtains an appointment as a prosecuting officer of the government is immune from civil liability for acts done by him in the discharge of his official duties apply in like manner to protect him against such a charge as that he was governed by improper motives in securing the appointment. The important fact is that he was appointed to the office, and, having been appointed, the public interests require that he shall be free and fearless to act in the discharge of his official duties. If he cannot be charged with acting willfully and maliciously after he gets appointed to the office, no more can he be charged with having conspired to get into the office in order to act willfully and maliciously after he gets his appointment. The one charge is as much to be feared as the other, and is equally derogatory to his public character and usefulness in the office. We are unable to distinguish between the two cases in principle.” To permit this salutary rule relating to public officers to be thrown out the window by a mere allegation that the act was done pursuant to a conspiracy with others and a design to harm plaintiff, would frustrate all the purposes of such a rule as outlined by Judge Hand in the Gregoire case, supra. It would fly in the face of what this court has held in other comparable cases. See Harmon v. Superior Court, 9 Cir., 329 F.2d 154 and Agnew v. Moody, 9 Cir., 330 F.2d 868, 869, in each of which a “conspiracy” was alleged. As Judge Hand indicated, the justification for the rule is that it is impossible to know before trial whether the claim is well founded and that officials should not be put to the burden of a trial because such a rule would “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” In this connection the Fifth Circuit case of Norton v. McShane, supra, is a useful and helpful one. It discusses the history of absolute immunity which began with cases involving judges and then was extended to minor government employees as noted in Barr v. Matteo, supra. Most of the cases cited in footnote 5 of that case, (see footnote 2, supra), are common law wrongs but there is no reason why the same rule should not apply here to a statutory wrong. This is apparent from Cahn v. International Ladies’ Garment Union, 3 Cir., 311 F.2d 113, where the rule of immunity was applied to an officer sought to be charged under the antitrust laws. II There is another reason why the order of the district court must be affirmed. The motion before the court is in the alternative: for a dismissal pursuant to Rule 12 and in the alternative for summary judgment. The order of the court notes the alternative character of the motion and orders that the amended complaint “is dismissed with prejudice” against the two defendants, appellees here. The court had before it affidavits and depositions. This necessitated the situation mentioned in Rule 12(b) as follows: “[I]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Under that Rule the motion must be treated as one for summary judgment when the matters outside the pleading are “not excluded by the court.” Nothing in the court’s order dismissing the complaint with prejudice suggests that the court was excluding anything. The trial Judge filed no opinion and he had no occasion therefore to discuss all the bases for his ruling. For all that appears here he may well have said in an opinion, had he written one, that he based his ruling not only on the decision in Barr v. Matteo, supra, but upon facts set forth in the affidavits and depositions as well. Precisely in point here is Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir., 185 F.2d 196, 205, where we noted that Rule 12(b) “requires a motion to dismiss (for failure to state a claim) to be treated as a motion for summary judgment if matters outside the pleadings are presented to, and are not excluded by, the court.” (Emphasis added) Rule 56 relating to summary judgments recites as follows: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” There was no valid response to defendants’ showing in support of their motion for summary judgment. What demonstrates conclusively that the Judge was basing his ruling upon all grounds presented by the motion and by the affidavits is the fact that he dismissed with prejudice. If the motion to dismiss alone were being sustained, the normal procedure would be to sustain the motion with leave to amend. Even if we were to assume, contrary to the facts here, that the court wrote an opinion saying “I base my opinion solely upon the insufficiency of the complaint and I exclude all matters connected with the motion for summary judgment” we should affirm. “In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.” Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224. (Emphasis added) Here the affidavits and the depositions are in the record. They are not contradicted and since no counter showing was made as required by Rule 56(e) we who can read the affidavits and depositions as well as anybody are in a position to follow the mandate contained in the last sentence of Rule 56(e). The whole case is before us and as stated in the last footnote, supra, it would be “wasteful” to remand for the consideration of the summary judgment motion. If, as stated in Suckow Borax Mines Consol, v. Borax Consolidated, supra, we were to reject the argument that the complaint states no claim, we are required to treat the motion as a motion for summary judgment. An examination of the affidavits and depositions upon which the motion for summary judgment was based discloses that the facts are clear and uncontradicted. They are as follows: (1) The call for bids on the timber in question, as required by the regulations, recited “The right to reject any and all bids is reserved.” The applicable regulations (36 C.F.R. Sec. 221.10) provide for rejection of all bids as follows: “(a) Advertised timber will be awarded to the highest bidder upon satisfactory showing by him of ability to meet financial requirements and any other conditions of the sale offer unless: (1) Determination is made to reject all bids. * * * (c) If the highest bid is not accepted and the sale is still deemed desirable, all bids may be rejected and the timber readvertised.” Here the Forest Service also had utilized what is referred to as a “Handbook” (apparently ’ not a public document) which directed that where a sale includes minor quantities of certain species “It is desirable to advertise the minor species or the deteriorating species at a fixed rate.” (2) When this sale was advertised, for some reason a minor species, cedar, was not offered at a fixed rate in accordance with the Handbook. When these bids were received S & S Logging bid for the cedar $107.10 per thousand (as compared with $4.60 per M for Douglas Fir and $2.30 per M for Hemlock and others.) (3) The Handbook provided that rejection of all bids would require the action of “higher authority”. (4) This higher authority was Assistant Regional Forester for Region 6 U.S. Forest Service, Walter H. Lund. His deposition is a part of the record and he tells precisely how and why it happened that he himself made the determination to reject all bids. He testified that “the initial suggestion that we might want to reject all bids came from me.” He suggested to the defendants Benecke and Chriswell that they consider whether “we should respect all bids”. He testified that the bid was an unrealistic bid; that when he learned about the $107 bid “I immediately thought that there is something funny here.” He referred to the policy of having minor species like this advertised at a fixed rate and said “I think one of my earliest thoughts in this case was ‘My Lord, why didn’t the Forest advertise those at a fixed rate at the beginning and avoid this sort of thing?’ ” This witness testified that he did not consider objections or complaints in connection with this sale or the bids. “I thought it was a bad thing myself.” He had heard of some complaints “but I did not think that was until after I had already taken my initial action.” Lund had information that people were “bidding upon cedar and then with the idea of destroying part of it by felling it across stumps, and so forth, as you can do if they are intent on destroying cedar because it breaks rather readily.” This witness explained at some length why an excessive bid on a minor species, as in this case, is unrealistic and gives rise to suspicions of irregularity. The witness described what prompted his action as follows: “I don’t know what the bidder had in mind — but the thought immediately occurred to me that there has to be either one of two things: either that the cruise is inaccurate or that there is substantially less cedar there than the estimate indicated, or he has some design of destroying part of the cedar or hiding it someway that he would not pay for it. Now, those would be the two things which would ordinarily cause somebody to bid the way the bidding went on this first sale. There would be no other logical reason for it.” (5) After Lund had written to Chris-well, as indicated above, he received the latter’s recommendation in accordance with his own recommendation agreeing that cedar should be advertised at a fixed rate and that it would be to the Government’s best interest to reject all bids and readvertise the sale and also agreeing that the price for cedar was completely unreasonable and could lead to serious losses. Lund then made this decision advising Chriswell exactly how to notify the plaintiff of the rejection of all bids. It is perfectly obvious that what the Forest Service officials did was to exercise the reserved right to reject all bids in circumstances which suggested that the bids were unrealistic and calculated to give an opportunity to cause loss to the Government. There is not a particle of proof to contradict this showing of the defendants. The only affidavit that was filed on behalf of the plaintiff was that of the attorney for the plaintiff who quoted from the Forest Service Handbook mentioned above. The affidavit was devoted solely to an effort to show that the rejection of all bids was not within the authority or discretion of the Forest Service officials. The key to that affidavit is found in the following sentence: “It will be noticed that there is no provision to reject bids on claimed grounds on which the plaintiff’s original highest bid was rejected.” It is perfectly plain that at the time this matter was first presented to the trial court plaintiff was simply taking the position that the defendants had taken action rejecting all bids under circumstances which were not specified in the regulations as a basis for such action. Obviously plaintiff cannot maintain that position, first, because under the regulations there is no limitation on the unqualified discretion of the Forest Service to reject all bids with or without reason; and second, the action in rejecting all bids was the action of Lund and not that of these two defendants or either of them. Another fatal flaw in plaintiff’s case is that there is a complete lack of anything to show that the plaintiff would not be a bidder at the readvertised sale or that the defendants had any reason to suspect it would not be bidding then. The depositions of Chriswell and of Benecke show positively that they both thought that plaintiff would attend and bid on the second sale. As stated by Chriswell: “We thought Mr. Schuett (representing plaintiff) would be at the sale, and I think that Mr. Benecke attended that sale and he was rather surprised that Mr. Schuett was not there.” Benecke testified that persons had inquired whether plaintiff was going to be permitted to bid at the second sale and “I advised them he certainly would be permitted to bid.” In fact, the record shows that the Forest officials gave every consideration in an effort to work out a plan which would permit plaintiff to get the timber. The deposition of Lund shows that plaintiff’s attorney discussed the matter with him after the bids had been rejected and Lund discussed the attorney’s suggestion then made as follows: “ * * * part of what you suggested was that you felt that your client would agree to pay for the estimated volume of cedar as a condition of our making the award to him, and I said, ‘Well now, have you gotten your client to say that?’ And you said, ‘No.’ I said, ‘Well, it would be very-’ To me that was very unusual, and I think I expressed the opinion that he probably would not agree to that. And your reply was, ‘Well, if he won’t agree to it, why, I am through with him. Then I would agree you have a right to be suspicious.’ ” Chriswell, after plaintiff’s attorney had then gone to him and discussed the possibility of reconsidering the cancellation of the bids and letting plaintiff get the timber, testified that he and the attorney were discussing the latter’s suggestion that they find the basis for reopening and reconsidering the matter but plaintiff never came forward with any acceptable proposal. “You suggested that Mr. Schuett might deposit the total amount of the value of the cedar before logging, and we said that we thought that would be acceptable, and Mr. Schuett stated that it was too much of a risk to do that.” It is plain from the record that both parties contemplated that the court on this appeal would deal not merely with the sufficiency of the complaint but would pass upon the sufficiency of the showing in support of a summary judgment. Thus, on February 1, 1965, the appellant filed its designation of the contents of the record on appeal. In this designation are included requests for certification of the affidavits of Benecke, Chriswell, and Lund, and the affidavit of Joseph T. Pemberton, who was attorney for plaintiff and who made the affidavit above referred to. These and other papers were specified to become a part of the record on appeal. The defendants then made cross-designation calling for inclusion of four depositions as well as interrogatories and answers to interrogatories. Most of these matters would have been left out of the record here were it not that the parties contemplated that we would pass upon the motion for summary judgment. We hold that for both of the reasons herein stated: the insufficiency of the complaint, and the demonstrated right to a summary judgment, the decision below must be affirmed. It is so ordered. . That case was not one of the type we have here, but the Court cites Barr v. Matteo and Gregoire v. Biddle, supra, as illustrative of a sound principle dealing with what it called “an absolute privilege.” . “The federal courts have applied the doctrine of official immunity to suits against numerous officials for many different torts.” Norton v. McShane, 5 Cir., 332 F.2d 855, 859. Footnote 5 in that opinion contains an extensive list of administrative officers who have been held immune from suit. In Robichaud v. Ronan, 9 Cir., 351 F.2d 533, this court held that a prosecuting attorney who acted, not as such, but as a policeman, was not immune from suit under the Civil Rights Acts. As that suit arose under those Acts (42 U.S.C. Secs. 1983, 1988, and 28 U.S.C. § 1343) the case is not in point here. In its general discussion of the immunity rule, the court assumed that the immunity was related to acts “committed by the officer in the performance of an integral part of the judicial process.” This apparent assumption that the immunity is so limited was unnecessary to that decision, and it must have been inadvertent for it is plainly contrary to the statements quoted above from Barr v. Matteo and O’Campo v. Hardisty and contrary to the other cases listed in Norton v. McShane, supra. . “Appellant argues that ‘the doctrine of judicial immunity is never a valid defense as to a charged conspiracy, since taking part in a conspiracy is outside of the judicial function.’ But conspiracy was alleged in Harmon v. Superior Court, 329 F.2d 154, * * *. And although conspiracy is an essential element of the offense under 42 U.S.C.A. Sec. 1985, the doctrine of immunity nonetheless applies to actions under that section.” . In Bauers, Jr. v. Heisel, Jr., 3 Cir., 361 F.2d 581 (May 19, 1966) the officer’s immunity was upheld in a statutory suit under the Civil Rights Act. Many similar decisions are collected in footnote 7 to that opinion. . “It would be wasteful to send a ease back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate.” Securities and Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626. . If appellant were right in its assertion that the rejection of all bids was unauthorized by law or by rule, its remedy would be by action for review of an administrative order under See. 10 of the Administrative Procedure Act (5 U.S.C. Sec. 1009). However, it is plain that the agency action here taken was one “committed to agency discretion” within the meaning of the exception stated in the first sentence of that section. . In addition to the affidavit thus described, the plaintiff through one of its officers filed answers to certain interrogatories propounded by these defendants. Rule 56 provides that a summary judgment may be based upon answers to interrogatories and affidavits may be opposed by answers to interrogatories. The answers thus made by the plaintiff to defendants’ interrogatories are wholly insufficient to counteract or contradict the facts shown on behalf of the defendants. In the first place these answers are in substance no more than a bill of particulars of the allegations of the complaint. Like the affidavit they are devoted mainly to a futile effort to challenge the authority of the Forest Service officials to reject all bids. The statements are self-serving and taken by themselves would be inadmissible in evidence. (The typical ease of proper use of answers to interrogatories is American Airlines v. Ulen, 87 U.S.App.D.C. 307, 186 F.2d 529, where the court sustained plaintiff’s motion for a summary judgment on the basis of defendants’ answers to interrogatories. There, of course, the answers were in the nature of admissions by the opposing party.) The main reason why these answers are completely insufficient here is that they failed to conform to the requirements of subdivision (e) of Rule 56 which provides that supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The answers here in question were sworn to but are wholly insufficient because there is a complete failure to show that the person answering had personal knowledge or was competent to testify to any of the matters stated. In substance the answers were no different than the answer to Question No. 7, as follows: “7. State with whom, when and how the defendants, Chriswell and Benecke, participated in the conspiracy to prevent any oral bids at the second Green Mountain sale. Answer. It is believed that Chriswell and Benecke were doing the bidding of Summit Timber Company, Eclipse Timber Company and defendants, Barker, Bob Jones and Ivan Jones, commencing with the time that the Eclipse Timber Company was the second high bidder at the first Green Mountain sale.” (Emphasis added.) Directly in point is State of Maryland for the Use of Barresi v. Hatch (D.C.Conn.), 198 F.Supp. 1, 2-3. . It is apparent from one of the answers to the interrogatories made by the plaintiff that there were also counter-interrogatories propounded to Chriswell. and answers by him. The fact that neither party asked that these answers by Chris-well be incorporated in this record sufficiently indicates that neither party thought they would be of any importance or significance in connection with a review of the ruling on the motion for summary judgment. To verify that conclusion, we requested the Clerk to obtain from the Clerk of the district court the original interrogatories to Chriswell and his answers thereto. They are now in the custody of the Clerk of this court. A reference to them shows that they have no significance, one way or another, with respect to the matters here discussed.

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 v. FIRST NATIONAL CITY BANK. No. 59. Argued November 16, 1964. Decided January 18, 1965. Assistant Attorney General Oberdorfer argued the cause for the United States. With him on the briefs were Solicitor General Cox and' Harold C. Wilkenfeld. Henry Harfield argued the cause for respondent. With him on the brief were William Harvey Beeves and John E. Hoffman, Jr. Boy C. Haberkern, Jr., and Edward J. Boss filed a brief for the Chase. Manhattan Bank et al., as amici curiae, urging affirmance. Theodore Tannenwald and A. 'Chauncey Newlin filed a memorandum for Omar, S. A. Me.. Justice Douglas delivered the opinion of the Court. This case presents a collateral phase of litigation involving jeopardy assessments of some $19,000,000 made by the Commissioner of Internal Revenue against Omar; S. A., a Uruguayan corporation. The assessments charged that income had been realized within the United States on which a tax was due. On the same day respondent was served with notice, of levy and notice of'the federal tax lien. At the same time petitioner commenced ¡an action in the New York District Court naming Omar, as well as respondent and others, as defendants. Personal jurisdiction over respondent was acquired; but as of the date of argument of the case here, Omar had not yet been served. That action requested, inter alia, foreclosure of the tax lien upon all of Omar’s property, including sums held for the account or credit of Omar in foreign branch offices of respondent. It also requested that, pending determination of the action, respondent be enjoined from transferring any property or rights to property held for the account of Omar; and affidavits filed with the complaint averred that Omar was removing its assets from the United States. The District Court, on the basis of the affidavits, issued a temporary injunction enjoining respondent from transferring any property or rights to property of Omar now held by it or by any branch offices within or without the United States, indicating it would modify the order should compliance be shown to violate foreign law. 210 F. Supp. 773. The Court of Appeals reversed by a divided vote both by a panel of three, 321 F. 2d 14, and en banc, 325 F. 2d 1020. The case is here on a writ of certiorari. 377 U. S. 951. Title 26 U. S. C. § 7402 (a) gives the District Court power to grant injunctions “necessary or appropriate for the enforcement of the internal revenue laws.” Since it has personal jurisdiction over respondent, has it power to grant the interim relief requested? We are advised that respondent’s only debt to Omar is payable at respondent’s branch in Montevideo. It is said that the United States, the creditor, can assert against respondent in New York only those rights that Omar, the debtor, has against respondent in New York and that under New York law a depositor in a foreign branch has an action against the head office only where there has been a demand and wrongful refusal at the foreign branch. Sokoloff v. National City Bank, 239 N. Y. 158, 145 N. E. 917, 250 N. Y. 69, 164 N. E. 745. The point is emphasized by the argument that any obligation of respondent to Omar is due only in Montevideo — an obligation apparently dis-chargeable in Uruguayan currency, not in dollars. Therefore, the argument runs, there is no claim of the debtor (Omar) in New York which the creditor can reach. We need not consider at this juncture all the refinements of that reasoning. For the narrow issue for us is whether the creditor (the United States) may by injunction pendente lite protect whatever rights the debtor (Omar) may have against respondent who is before the court on personal service. If it were clear that the debtor (Omar) were beyond reach of the District Court so far as personal service is concerned, we would have quite a different case — one on which we intimate no opinion. But under § 302 (a) of the New York Civil Practice Law and Rules, 7B McKinney’s Consol. Laws Ann., § 302, personal jurisdiction may be exercised over a “non-domiciliary” who “transacts-any business within the state” as to a cause of action arising out of such transaction, in which event out-of-state personal service may be made as provided in § 313. The Federal Rules of Civil Procedure by Rule 4 (e) and Rule 4 (f) allow a party not an inhabitant of the State or found therein to be served with a summons in a federal court in the manner and under the circumstances prescribed by a state statute. See United States v. Montreal Trust Co., 35 F. R. D. 216. To be sure, this cause of action arose, the complaint was filed, and the temporary injunction was issued before the New York statute became effective. The New York Court of Appeals has, however,'indicated that where the suit is instituted after the effective date of the statute, the statute will normally apply to transactions occurring before the effective date. Simonson v. International Bank, 14 N. Y. 2d 281, 290, 200 N. E. 2d 427, 432. That court has further indicated that where, as in the instant case, the suit based on the prior transaction was pending on the effective date of the statute, “the new act shall— except where it ‘would not be feasible or would work injustice’ — apply ‘to all further proceedings’ in such actions . ...” Ibid. It seems obvious that a future attempt by the Government to serve process on Omar would be considered a “further proceeding” in the instant litigation. Accordingly, we judge the temporary injunction, which has only a prospective application, as of now and in light of the present remedy which § 302 (a) affords. And our review of the injunction as an exercise of the equity power granted by 26 U. S. C. § 7402 (a) must be in light of the public interest involved: “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to. go when only private interests are involved.” Virginian R. Co. v. Federation, 300 U. S. 515, 552. And see United States v. Morgan, 307 U. S. 183, 194; Hecht Co. v. Bowles, 321 U. S. 321, 330. If personal jurisdiction over Omar is acquired, the creditor (the United States) will be able to collect from respondent what the debtor (Omar) could collect. The opportunity to make that collection should not be lost in limine merely because the debtor (Omar) has not made the agreed-upon demand on respondent at the time and place and in the manner provided in their contract. Whether the Montevideo branch is a “separate entity,” as the Court of Appeals thought, is not germane to the present narrow issue. It is not a separate entity in the sense that it is insulated from respondent’s managerial prerogatives. Respondent has actual, practical control over its branches; it is organized under a federal statute, 12 U. S. C. § 24, which authorizes it “To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons” — as one entity, not branch by bratich. The branch bank’s affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the home office. Once personal jurisdiction of a party is obtained, the District Court has authority to order it to “freeze” property under its control, whether the property be within or without the United States. See New Jersey v. New York City, 283 U. S. 473, 482. That is not to say that a federal court in this country should treat all the affairs of a branch bank the same as it would those of the home office. For overseas transactions are often caught in a web of extraterritorial activities and foreign law beyond the ken of our federal courts or their competence. We have, however, no such involvement here, for there is no showing that the mere “freezing”' of the Montevideo accounts, pending service on Omar, would violate foreign law, cf. Societe Internationale v. Rogers, 357 U. S. 197, 211, or place respondent under any risk of double liability. Cf. Western Union Co. v. Pennsylvania, 368 U. S. 71. The District Court reserved power-to enter any protective order of that character. 210 F. Supp. 773, 775. And if, as'is argúed in dissent, the litigation might in time be embarrassing to United States diplomacy, the District Court remains open to the Executive Branch, which, it must be remembered, is the moving party in the present proceeding. The’temporary injunction issued by the District Court seems to us to be eminently appropriate to prevent further dissipation of assets. See United States v. Morris & Essex R. Co., 135 F. 2d 711, 713-714. If such relief were beyond the authority of the District Court, foreign taxpayers facing jeopardy assessments might either transfer assets abroad or dissipate those in foreign accounts under control of American institutions before personal service on the foreign taxpayer could be made. Such a scheme was underfoot here, the affidavits aver. Unlike De Beers Mines v. United States, 325 U. S. 212, there is here property which would be “the subject of the provisions of any final decree in the cause.” Id., 220. We conclude that this temporary injunction is “a reasonable measure to preserve the status quo” (Deckert v. Independence Shares Corp., 311 U. S. 282, 290) pending service of process on Omar and an adjudication of the merits. Reversed. These branches are not separate corporations but parts of respondent’s single, federally chartered corporation. See 12 U. S. C. §§ 601-604; First National City Bank v. Internal Revenue Service, 271 F. 2d 616. There is also of course the possibility that Omar might enter a-general appearance as it apparently did in the Tax Court when it filed its petition of May 20, 1963, for a redetermination of the deficiencies on the basis of which the present jeopardy assessments were made. Rule 4 (e), effective July 1, 1963, reads in relevant part: “Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, or (2) for service upon or notice to Kim to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule.” Rule 4 (f), also effective-July 1, 1963, reads in relevant part: “All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of'that state.” The Court of Appeals reached these conclusions on the basis of Civil Practice Law and Rules, § 10003, 7B McKinney’s Consol. Laws Aim., § 10003: “This act shall apply to all actions hereafter commenced. This act shall also apply to all further proceedings in pending actions, except to the extent that the court determines that application in a particular pending action would not be féasibje or would work injustice,-in which event the former procedure applies. Proceedings pursuant to law in an action taken prior to the time this act takes effect shall not be rendered'ineffectual or impaired by this act.” That the Government has not yet attempted to obtain personal jurisdiction over Omar is not significant in light of the fact that until now the Government’s primary contention has been that the ■District Court’s personal jurisdiction over the respondent bank was by itself an adequate basis for the issuance of the temporary injunction. As the Government said in its petition for rehearing before the Court of Appeals: “The jurisdictional basis, then, for the injunction issued by the District Court was personal jurisdiction over the Bank. Certainly, at this stage of the proceeding, it is inconsequential whether the District Court has jurisdiction over a res of over the taxpayer.” The Government went on to say that if this contention was rejected, then it wished tó argue that the tax lien had attached to Omar’s deposits and that these deposits “constitute rights to property which were within the jurisdiction of the District, Court.” Finally the Government stated: “It is only in the event that the Court concludes that the lien does not attach to such deposits that personal jurisdiction over Omar becomes relevant. In such event'the Government should be afforded an opportunity to obtain personal jurisdiction over Omar and the injunction should stand pending such efforts.” Even before this Court the Government argues alternatively that “the District Court had authority to enter the temporary injunction to preserve funds over which it had jurisdiction quad in rem,” a contention upon which, as noted previously, we do not pass.

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?

NORTH AMERICAN SOCCER LEAGUE: Orange County Pro Soccer; Chicago World Soccer Inc.; Caribous of Colorado, Inc.; Michigan Soccer, Limited; Houston Professional Soccer Club, Ltd.; Aztec Professional Soccer Club; Memphis Soccer Club, Inc.; Minnesota Soccer, Inc.; Lipton Professional Soccer, Inc.; Cosmos Soccer Club, Inc.; Oakland Stompers, Ltd.; Philadelphia Soccer Associates; Oregon Soccer, Inc.; Blue & Gold, Ltd.; San Diego Professional Soccer Club; San Jose Earthquakes, Limited; Tampa Bay Soccer Club, Inc.; Pro Soccer, Ltd.; Tulsa Roughnecks, Ltd.; Vancouver Professional Soccer Club, Ltd.; and Washington Diplomats Soccer Club, Inc., Plaintiffs-Appellants-Cross-Appellee. v. NATIONAL FOOTBALL LEAGUE: San Francisco 49ers; Oakland Raiders; New England Patriots Football Club, Inc.; Minnesota Vikings Football Club, Inc.; The Five Smiths, Inc.; Baltimore Football, Inc.; Highwood Service, Inc.; Chicago Bears Football Club, Inc.; Cincinnati Bengals, Inc.; Cleveland Browns, Inc.; Dallas Cowboys Football Club, Inc.; Empire Sports, Inc.; The Detroit Lions, Inc.; Green Bay Packers, Inc.; Houston Oilers, Inc.; Los Angeles Rams Football Co.; New Orleans Saints; New York Football Giants, Inc.; New York Jets Football Club, Inc.; Leonard H. Tose, d/b/a Philadelphia Eagles Football Club; Pittsburgh Steelers Sports; Chargers Football Company; Chicago Cardinals Football Club; Pro-Football, Inc.; and Tampa Bay Buccaneers, Inc., Defendants-Appellees-Cross-Appellant. Nos. 11, 30, Dockets 80-9153, 81-7003. United States Court of Appeals, Second Circuit. Argued Oct. 19, 1981. Decided Jan. 27, 1982. Ira M. Millstein, New York City (James W. Quinn, Irwin H. Warren, Jeffrey L. Kes-sler, Kenneth L. Steinthal, Weil, Gotshal & Manges, New York City, of counsel), for plaintiffs-appellants-cross-appellee. William E. Willis, New York City (James H. Carter, Howard D. Burnett, James W. Dabney, Sullivan & Cromwell, New York City, of counsel), for defendants-appellees-cross-appellant. Before LUMBARD, MANSFIELD and VAN GRAAFEILAND, Circuit Judges. MANSFIELD, Circuit Judge: The North American Soccer League (NASL) and certain of its member soccer teams (collectively referred to herein as “the NASL”) appeal from a judgment of the Southern District of New York, Charles S. Haight, Jr., Judge, dissolving a preliminary injunction and dismissing a complaint seeking a permanent injunction and treble damages for alleged violations of § 1 of the Sherman Act, 15 U.S.C. § 1, by the defendants, the National Football League (“NFL”) and certain of its member football clubs (collectively referred to herein as “the NFL”). The NFL cross appeals from the dismissal of its counterclaim, which sought an injunction barring owners of NASL member teams from cross-ownership of NFL teams. Because the conduct complained of by the NASL — an NFL ban on cross-ownership by NFL members of other major professional sports league teams (the “cross-ownership ban”) — violates the rule of reason under § 1 of the Sherman Act, we reverse. We affirm the dismissal of the NFL’s counterclaim. The central question in this case is whether an agreement between members of one league of professional sports teams (NFL) to prohibit its members from making or retaining any capital investment in any member of another league of professional sports teams (in this case NASL) violates the antitrust laws. The answer requires an analysis of the facts and application of governing antitrust principles. Most of the facts are not in dispute. The NFL is an unincorporated joint venture consisting of 28 individually owned separate professional football teams, each operated through a distinct corporation or partnership, which is engaged in the business of providing public entertainment in the form of competitive football games between its member teams. It is the only major league professional football association in the United States. Upon becoming a member of the NFL a team owner receives a non-assignable franchise giving him the exclusive right to operate an NFL professional football team in a designated home city and “home territory,” and to play football games in that territory against other NFL members according to a schedule and terms arranged by the NFL. See NFL Constitution and By-laws, §§ 3.4, 4.1, 4.2. The success of professional football as a business depends on several factors. The ultimate goal is to attract as many people as possible to pay money to attend games between members and to induce advertisers to sponsor TV broadcasts of such games, which results in box-office receipts from sale of tickets and revenues derived from network advertising, all based on public interest in viewing games. If adequate revenues are received, a team will operate at a profit after payment of expenses, including players’ salaries, stadium costs, referees, travel, maintenance and the like. Toward this goal there must be a number of separate football teams, each dispersed in a location having local public fans willing to buy tickets to games or view them on TV; a group of highly skilled players on each team who are reasonably well-matched in playing ability with those of other teams; adequate capital to support the teams’ operations; uniform rules of competition governing game play; home territory stadia available for the conduct of the games; referees; and an apparatus for the negotiation and sale of network TV and radio broadcast rights and distribution of broadcast revenues among members. To perform these functions some sort of an economic joint venture is essential. No single owner could engage in professional football for profit without at least one other competing team. Separate owners for each team are desirable in order to convince the public of the honesty of the competition. Moreover, to succeed in the marketplace by attracting fans the teams must be close in the caliber of their playing ability. As one commentator puts it “there is a great deal of economic interdependence among the clubs comprising a league. They jointly produce a product which no one of them is capable of producing alone. In addition, the success of the overall venture depends upon the financial stability of each club.” J. Weis-tart & C. Lowell, The Law of Sports § 5.11, at 757-58 (1979). Earlier in this century various professional football leagues existed, outstanding of which were the NFL and AFL (American Football League). In 1970 the AFL merged into the NFL, after receiving Congressional approval to avoid violation of antitrust laws that would otherwise occur. Since then the NFL has assumed full responsibility for national promotion of professional football, granting of team franchises, negotiation of network TV contracts for broadcast rights with respect to its members’ games, employment of referees, adoption of game rules, scheduling of season games between members leading up to the league championship game known as the Super Bowl, and many other matters pertaining to the national sport. Although specific team profit figures were riot introduced at trial, the record is clear that the NFL and most of its members now generally enjoy financial success. The NFL divides pooled TV receipts equally among members. Pre-season gate receipts from each game are shared on a 50/50 basis between opposing teams, and regular season gate receipts are divided on the basis of 60% for the home team and 40% for the visiting team. Although NFL members thus participate jointly in many of the operations conducted by it on their behalf, each member is a separately owned, discrete legal entity which does not share its expenses, capital expenditures or profits with other members. Each also derives separate revenues from certain lesser sources, which are not shared with other members, including revenues from local TV and radio, parking and concessions. A member’s gate receipts from its home games varies from those of other members, depending on the size of the home city, the popularity of professional football in the' area and competition for spectators offered by other entertainment, including professional soccer. As a result, profits vary from team to team. Indeed as recently as 1978, the last year for which we have records, 2 of the 28 NFL teams suffered losses. In 1977 12 teams experienced losses. Thus, in spite of sharing of some revenues, the financial performance of each team, while related to that of the others, does not, because of the variables in revenues and costs as between member teams, necessarily rise or fall with that of the others. The NFL teams are separate economic entities engaged in a joint venture. The National American Soccer League (“NASL”) was founded in 1968 upon the merger of two pre-existing soccer leagues. Like the NFL, the NASL is an unincorporated association of professional soccer teams whose members are separately owned and operated, and are financially independent. Its raison d’etre and the needs of its member teams are essentially the same as those of members of other major professional sports leagues, including the NFL. However, professional soccer is not as mature or lucrative as professional football. Just as was the case with NFL member teams a quarter of a century ago, NASL is struggling to achieve wider popularity and with it greater revenues. Consequently, the risk of investing in an NASL team is considerably greater than that of investing in the NFL. Soccer was not a widely followed or popular sport when the NASL was founded, and several earlier attempts to put together a professional soccer league failed due to lack of fan interest. The NASL has been the most successful soccer league to date. The district court found that since the NASL was organized “professional soccer has experienced substantial and accelerated growth in fan interest, media following, paid attendance, number of franchises and geographic scope.... ” 505 F.Supp. 659 at 666-67. With this success NASL teams have become increasingly more effective competitors of the NFL teams. The two sports are somewhat similar. Their seasons substantially overlap. The teams have franchises from their respective leagues in the same locations and frequently use the same stadia. An increasing, although small, percentage of the public are switching their interest as fans and TV viewers from professional football to professional soccer, threatening to reduce revenue which NFL teams derive from gate receipts and TV broadcast rights. Competition between NFL and NASL teams has not only increased on an inter-league basis but also between individual NFL and NASL teams. On the league front both organizations compete for a greater share of finite national and regional TV broadcast and advertising revenues. At the local level NFL teams compete against NASL teams for greater fan support, gate attendance, and local broadcast revenues. In spite of its success relative to other leagues that have attempted to make soccer a viable competitor, the NASL and its member teams have been, to this point, financially unsuccessful. Last year the teams collectively lost approximately $30 million. Individual NASL franchises have been very unstable; for example, since the trial of this case 8 of the 24 NASL teams have folded. Thus the NASL is the weakest of the major professional sports leagues (the NFL, the NASL, the National Basketball Association, the National Hockey League, and Major League Baseball). Because of the interdependence of professional sports league members and the unique nature of their business, the market for and availability of capital investment is limited. As the district court found, the economic success of each franchise is dependent on the quality of sports competition throughout the league and the economic strength and stability of other league members. Damage to or losses by any league member can adversely affect the stability, success and operations of other members. Aside from willingness to take the risk of investing in a member of a league in which members have for the most part not demonstrated a record of profits, the potential investor must be reasonably compatible with other members of the league, with a sufficient understanding of the nature of the business and the interdependence of ownership to support not only his newly-acquired team but the sports league of which it is a member. As the district court further noted, these conditions have tended to attract individuals or businesses with distinct characteristics as distinguished from the much larger number of financiers of the type prevailing in most business markets. Although, as the district court observed, the boundaries of this “sports ownership capital and skill” market are not as confined as NASL contends and not limited strictly to present major league sports owners, the sources of sports capital are limited by the foregoing conditions and existing sports league owners constitute a significant source. In short, while capital may be fungible in other businesses, it is not fungible in the business of producing major league professional sports. Regardless of the risk involved in the venture, which may vary greatly from league to league, league members look not merely for money but for a compatible fellow owner, preferably having entrepreneurial sports skill, with whom the other members can operate their joint business enterprise. League members recognize, for example, that if the owner of one team allowed it to deteriorate to the point where it usually lost every game; attendance at games in which that team was playing would fall precipitously, hurting not just that team, but every other team that played it during the season. In view of this business interdependence team owners, through their leagues, are.careful about whom they allow to purchase a team in their league and leagues invariably require that the sale of a franchise be approved by a majority of team owners rather than by the selling owner alone. For these reasons individuals with experience in owning and operating sports teams tend to be the most sought-after potential owners. Indeed, the NFL made clear that it values proven experience in a potential owner. When in 1974 it expanded by 2 teams, 5 of the 8 prospective owners it considered seriously had professional sports team ownership experience; a sixth had experience in non-team sports. The two ownership groups to whom it awarded franchises included individuals with prior professional sports team ownership experience, and the NFL did not award the franchises to the highest bidder, a procedure that would have provided the most immediate financial reward to its owners. The attractiveness of existing owners of major sports teams as sources of potential capital is further evidenced by the large number of members of major sports leagues who control or own substantial interests in members of other leagues. The record reveals some 110 instances of cross-ownership and some 238 individuals or corporations having a 10% or greater interest in other teams. Over the last 13 years there have been 16 cross-ownerships between NFL and NASL teams. Indeed, since the NASL was organized Lamar Hunt, the owner of the NFL’s Kansas City Chiefs, has been involved as an NASL team owner, first of the Dallas Tornado team, then of the Tampa Bay team, and as a promoter of NASL. Since 1975 Elizabeth Robbie, the wife of the NFL’s Miami Dolphins owner Joseph Robbie, has been the majority owner of the NASL’s Fort Lauderdale franchise. Mr. Robbie has apparently been the actual operator of the soccer team as well as the football team. In the words of the district court, these cross-owners have provided the NASL with an “important element of stability,” 465 F.Supp. 665 at 669, which led to professional soccer’s becoming a major league sport, and withdrawal of their interests “would have a significantly adverse effect on the NASL,” 505 F.Supp. at 668. Beginning in the 1950’s NFL commissioners had a policy against a team owner maintaining a controlling interest in a team of a competing league, which was first put in writing by the owners themselves in January 1967, at a time when 12 owners of old NFL or AFL teams (the leagues had by then agreed to merge to form the present NFL) were involved in the formation of the predecessors of the NASL. The resolution, which was approved at an owners’ meeting, called for the drafting of amendments to the NFL constitution and bylaws prohibiting cross-ownership, but nothing was ever done to comply with it. In 1972 the NFL owners passed another resolution providing that NFL owners were not to acquire operating control of a team in a competing league. The participants agreed that any member holding such a controlling interest would make a “best effort” to dispose of it. For the next five years the NFL members repeatedly passed the same resolution at meetings, except through inadvertence in 1975. During this period the NASL, which had come close to disbanding in 1968, grew more successful, due in no small part to the efforts of Hunt, who worked tirelessly to promote professional soccer and raise capital for it. NFL owners began to feel competition from the NASL. Leonard Tose, the owner of the Philadelphia Eagles, became one of the most vocal opponents of Hunt’s soccer holdings. At approximately the same time the NASL Philadelphia Atoms were leading that league in attendance, and Tose’s NFL football team, the Philadelphia Eagles, was losing money. (The Eagles lost money from at least 1969 to 1974, and in 1976 and 1977.) Tose became particularly incensed when Hunt began doing promotional work for the NASL. For example, at one NFL owners’ meeting Tose denounced Hunt for allegedly stating in an interview that soccer is the sport of the future. Tose later explained one of the reasons for his concern, stating, “in my view when our truck drivers [fans] have X number of dollars to spend for entertainment in sport, and [sic] any dollar that they spend in another sport could affect what they spend for football.” In short, Mr. Tose’s business, the NFL Philadelphia Eagles, was suffering from the competition from the NASL Philadelphia Atoms. Tose was not the only NFL owner upset by competition from a soccer league team. Max Winter, the owner of the NFL’s Minnesota Vikings, became concerned about competition from the Minnesota Kicks, an NASL member. As Tose had done, Winter complained about Hunt’s NASL soccer team interest at NFL owners’ meetings. At his deposition he stated, “I think I said it to the league, in the room, that I object very much that an American Football Conference President [i.e., Hunt] is going to Minneapolis to advance soccer, introduce soccer in my city.” Winter discussed Hunt’s activities with Tose, stating that he felt that the Kicks “are hurting us, the sports dollar, that they are drawing very well, that we are losing ground as far as media exposure, fan participation. [It generally hurts us.” Finally in 1978 the NFL owners moved to take strong action against Hunt and Robbie. An amendment to the NFL by-laws was proposed that would require both to divest their soccer holdings if they wished to continue to own an NFL team. The proposed amendment, which was to have been voted on at an October 1978 NFL owners’ meeting, would also have prevented all majority owners, certain minority owners, officers and directors of NFL teams, and certain relatives of such persons from owning any interest in a team in a “major team sport.” The proposal was to amend Article IX of the NFL Constitution and By-laws by adding a new Section 9.4 as follows: “9.4(A) No person (1) owning a majority interest in a member club, or (2) directly or indirectly having substantial operating control, or substantial influence over the operations, of a member club, or (3) serving as an officer or director of a member club, nor (4) any spouse or minor child of any such person, may directly or indirectly acquire, retain, or possess any interest in another major team sport (including major league baseball, basketball, hockey and soccer). “(B) The prohibition set forth in subsection (A) hereof shall also apply to relatives of such persons (including siblings, parents, adult children, adult and minor grand children, nephews and nieces, and relatives by marriage) (1) if such person directly or indirectly provided or contributed all or any part of the funds used to purchase or operate the other sports league entity, or (2) if there exists between such person and any such relative a significant community of interest in the successful operation of the other sports league entity. “(C) The Commissioner shall investigate, to the extent he deems necessary or appropriate, any reported or apparent violation of this Section and shall report his findings to the Executive Committee pri- or to imposition of disciplinary action by the Committee. “(D) Beginning on February 1, 1980, any person who, after notice and hearing by the Executive Committee, is found to have violated subsection (A) or (B) above will be subject to fines of up to $25,000 per month for each of the first three months of violations; up to $50,000 per month for each of the next three months; and up to $75,000 per month thereafter. In addition, violations of more than six months’ duration may be dealt with by the Executive Committee pursuant to Article VIII, Section 8.13(B). “(E) If such person does not pay such fine to the League Treasurer within 20 days of its assessment, the unpaid amount thereof may be withheld, in whole or in part, by the Commissioner from available funds in possession of the League Office belonging to the member club with which the person in violation is affiliated.” As the district court found, the cross-ownership ban “has a concededly anticompetitive intent and, in its impact on the NASL, will probably have an anticompetitive effect.” 505 F.Supp. at 689. The purpose of the ban was to weaken the NASL and its member teams so that they could not compete as effectively against the stronger, more mature, and lucrative NFL teams as they might be able to do with the aid of capital investment by NFL team owners. On September 28, 1978, the NASL and various of its members commenced this action by serving the NFL with a complaint and an order to show cause why it should not be preliminarily enjoined from adopting the proposed amendment. On February 21, 1979, after hearing oral argument, Judge Haight issued a preliminary injunction prohibiting the enactment of the amendment. The judge found that the NASL would be irreparably injured if the NFL were allowed to adopt the amendment, that there were serious questions going to the merits, and that the balance of the hardships tipped in favor of the NASL. 465 F.Supp. 665. The NFL did not appeal the injunction. A lengthy trial followed, and on November 17, 1980, Judge Haight issued his decision. 505 F.Supp. 659. Although he found that the purpose and impact of the NFL cross-ownership ban was to suppress competition in interstate commerce on the part of NASL and its members, he denied relief on the ground that in competing against NASL and its members the NFL and its members must be regarded as a “single economic entity,” rendering § 1 of the Sherman Act inapplicable for the reason that it is limited to a plurality of actors. Recognizing that individual NFL teams compete with individual NASL teams for the consumer’s dollar in their respective localities, the district court nevertheless concluded that this NFL team-member versus NASL team-member competition is subsumed in league versus league competition in the general entertainment market, which he described as “the primary economic competition in professional sports,” 505 F.Supp. at 678, stating that in all relevant markets the competition is “between two single economic entities uncomplicated by any relevant competition between the member clubs of a league,” id. at 685. Decisions rejecting sports leagues’ contentions that they should be treated as “single economic entities” were distinguished on the ground that they involved different types of markets in which the members of a sports league were competing individually against each other (e.g., for players’ services, hiring availability and terms, reserve clauses, college drafts, etc.), whereas here the court considered them to act monolithically as one joint enterprise. Supreme Court decisions in non-sports antitrust cases rejecting arguments that business trade restraints were justified on the ground that two or more participants had acted as a joint venture or “single business entity,” e.g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951), and Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), were distinguished on the ground those combinations, unlike sports leagues, were unnecessary to the successful production and marketing of the product involved, the district judge here stating, “No interdependence or joint action is necessary to make a bearing or a muffler.” 505 F.Supp. at 686. Because individual teams acting alone could not produce “Pro Football,” Judge Haight reasoned, the combination of those teams through the NFL was justified by its “dominant purpose,” the production of the league sport, and was legal under Timken and Perma Life. For the same reason the judge refused to apply the rule of reason as articulated in National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978). Judge Haight further concluded that, while a sports ownership capital market may exist as a submarket of the broad capital funds market, the NASL and its members had failed to prove that the sub-market was, as claimed by them, limited to present owners of major sports league teams. He declined to make any finding as to the scope of the submarket and whether the NFL cross-ownership ban foreclosed NASL teams from access to any significant share of it or restrained them from competing against NFL teams in the entertainment market. Instead he chose to rest his decision on the “single economic entity” theory. NFL’s two counterclaims were both rejected as without substance. With respect to the first counterclaim, which sought an injunction prohibiting the NASL and its member teams from engaging in cross-ownership with the NFL on the ground that such activity was analogous to interlocking directorates linking horizontal competitors, the judge ruled that the NFL had not shown any threat of injury from the alleged violation and, assuming that it had proved a threat of injury, an injunction would be mere surplusage because the NFL had the power to end cross-ownership itself. DISCUSSION The first issue is whether § 1 of the Sherman Act, which prohibits “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations...” applies to the cross-ownership ban adopted by NFL and its members. The NFL contends, and the district court held, that § 1 does not apply for the reason that the NFL acted as a “single economic entity” and not as a combination or conspiracy within the meaning of that law. We disagree. As the Supreme Court long ago recognized, the Sherman Act by its terms applies to “every” combination or agreement concerning trade, not just certain types. Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). The theory that a combination of actors can gain exemption from § 1 of the Sherman Act by acting as a “joint venture” has repeatedly been rejected by the Supreme Court and the Sherman Act has been held applicable to professional sports teams by numerous lesser federal courts. See, e.g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 141-42, 88 S.Ct. 1981, 1985-86, 20 L.Ed.2d 98 (1968); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951); Radovich v. National Football League, 352 U.S. 445, 449-52, 77 S.Ct. 390, 392-94, 1 L.Ed.2d 456 (1957); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Linseman v. World Hockey Association, 439 F.Supp. 1315 (D.Conn.1977); Robertson v. National Basketball Association, 389 F.Supp. 867 (S.D.N.Y.1975); Philadelphia World Hockey Club Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462 (E.D.Pa.1972); Smith v. Pro-Football, Inc., 593 F.2d 1173 (D.C.Cir.1978); Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Los Angeles Memorial Coliseum Commission v. NFL, (“Coliseum II”), 484 F.Supp. 1274 (C.D.Cal.), rev’d on other grounds, 634 F.2d 1197 (9th Cir. 1980); Los Angeles Memorial Coliseum v. NFL,(“Coliseum I”), 468 F.Supp. 154, 164 (C.D.Cal.1979); Bowman v. NFL, 402 F.Supp. 754 (D.Minn.1975); Kapp v. NFL, 390 F.Supp. 73 (N.D.Cal.1974), appeal vacated, 586 F.2d 644 (9th Cir. 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). Cf. San Francisco Seals Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974); Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974). We are unpersuaded by the efforts of the district judge to distinguish these cases from the present one. Although many involved player relations or playing sites, which affect competition between member teams, at least one raised issues between leagues. In Radovich v. National Football League, supra, the issue was whether an NFL boycott of a player who had previously accepted employment with a competing pro-football league, the All America Conference, violated § 1 of the Sherman Act. The Court held in Radovich that it did, even though that boycott might not, in the words oí the district court, “implicate [or] impinge[] upon competition between member clubs.” 505 F.Supp. at 677. The characterization of NFL as a single economic entity does not exempt from the Sherman Act an- agreement between its members to restrain competition. To tolerate such a loophole would permit league members to escape antitrust responsibility for any restraint entered into by them that would benefit their league or enhance their ability to compete even though the benefit would be outweighed by its anticompetitive effects. Moreover, the restraint might be one adopted more for the protection of individual league members from competition than to help the league. For instance, the cross-ownership ban in the present case is not aimed merely at protecting the NFL as a league or “single economic entity” from competition from the NASL as a league. Its objective also is to shield certain individual NFL member teams as discrete economic entities from competition in their respective home territories on the part of individual NASL teams that are gaining economic strength in those localities, threatening the revenues of such individual teams as the NFL Philadelphia Eagles, owned by Leonard Tose, because of competition by the NASL’s Philadelphia team, and the revenues of the NFL Minnesota Vikings because of competition by the successful NASL Minnesota Kicks. The NFL members have combined to protect and restrain not only leagues but individual teams. The sound and more just procedure is to judge the legality of such restraints according to well-recognized standards of our antitrust laws rather than permit their exemption on the ground that since they in some measure strengthen the league competitively as a “single economic entity,” the combination’s anticompetitive effects must be disregarded. Having concluded that § 1 of the Sherman Act is applicable, we next must decide whether the NFL teams’ cross-ownership ban violates that statute. The plaintiffs, characterizing the ban as a “group boycott” and “concerted refusal to deal,” contend that the conduct is a species of the patently pernicious anticompetitive kind that must be condemned as per se unlawful without further proof. See, e.g., United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (agreements between horizontal competitors to maintain price of their product); United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972) (allocation of market territories between horizontal competitors); United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966) (conspiracy between manufacturers and distributors to eliminate price competition by discounters); Klor’s, Inc. v. Broadway-Hale Store, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (agreement between 10 competing national manufacturers and their distributors not to sell products to petitioner or to sell only at discriminatory prices and unfavorable terms); United States v. Koppers Company, Inc., 652 F.2d 290 (2d Cir. 1981) (agreement between competitors to rig bids and allocate market territories). We disagree. Combinations or agreements are per se violations of the Sherman Act only if they are so “plainly anticompetitive,” National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978), and so lacking in any “redeeming virtue,” Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), that “because of [their] unquestionably anticompetitive effects,” United States v. United States Gypsum Co., 438 U.S. 422, 440, 98 S.Ct. 2864, 2875, 57 L.Ed.2d 854 (1978), “they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases,” Broadcast Music, Inc. v. CBS, 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). Examples are agreements between competitors fixing prices at which they will sell their competing products, limiting their respective marketing areas, or restricting customers to whom their products will be sold or from whom they will be purchased. The cross-ownership ban, though anticompetitive, does not meet these stringent conditions. Although competition exists between NFL members in various respects (e.g., on the playing fields, for players’ services and for fans within a home territory where two or more teams are franchised), that competition is not restrained by the cross-ownership ban. Indeed, it is irrelevant to that ban, which is designed to restrain competition by NASL teams against NFL teams, not competition between NFL teams. Bearing in

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?

Cocheyse J. GRIFFIN et al., Appellants and Cross-Appellees, v. BOARD OF SUPERVISORS OF PRINCE EDWARD COUNTY and J. W. Wilson, Jr., Treasurer of Prince Edward County, State Board of Education of the Commonwealth of Virginia and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia and County School Board of Prince Edward County, Virginia, and T. J. McIlwaine, Division Superintendent of Schools of said County, Appellees and Cross-Appellants. No. 8837. United States Court of Appeals Fourth Circuit. Argued Jan. 9, 1963. Decided Aug. 12, 1963. J. Spencer Bell, Circuit Judge, dissented. Robert L. Carter, New York City (S. W. Tucker, Henry L. Marsh, III, Richmond, Va., Barbara A. Morris, New York City, Frank D. Reeves, Washington, D.C., Otto L. Tucker, Alexandria, Va., on brief), for appellants and cross-appellees. Burke Marshall, Asst. Atty. Gen. (St. John Barrett, Harold H. Greene and Alan G. Marer, Attys., Dept. of Justice, on brief), for the United States, as amicus curiae. Collins Denny, Jr., Richmond, Va. (John F. Kay, Jr., Richmond, Va., C. F. Hicks, Gloucester, Va., Denny, Valentine & Davenport, Richmond, Va., and DeHardit, Martin & Hicks, Gloucester, Va., on brief), for appellees and cross-appellants County School Board of Prince Edward County and T. J. McIlwaine, Division Superintendent of Schools of said County. J. Segar Gravatt, Blackstone, Va., Sp. Counsel for Board of Supervisors of Prince Edward County (Frank Nat Watkins, Commonwealth’s Atty. of Prince Edward County, on brief), for appellee and cross-appellant Board of Supervisors of Prince Edward County. R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, and Frederick T. Gray, Sp. Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellees and cross-appellants State Board of Education and Superintendent of Public Instruction of Commonwealth of Virginia. Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges. HAYNSWORTH, Circuit Judge. Transmuted, this old case, in its new flesh and pregnant with questions, comes again before us. As Davis et al. v. County School Board of Prince Edward et al., D.C., 103 F.Supp. 337, it began in 1951 as a suit to effect the desegregation of the public schools maintained by Prince Edward County, Virginia. It was one of the four school cases decided by the Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. As Allen et al. v. County School Board of Prince Edward County, Virginia et al., the case was again before this Court in 1957 and, still again, in 1959 In our opinion filed in May 1959, when this case was last here, we directed the entry of an injunction requiring the then defendants to receive and consider, on a nondiscriminatory basis, applications by Negro pupils for enrollment in high school for the school term beginning in September 1959. We also directed the entry of an order requiring the School Board to make plans for the elimination of discrimination in the admission of pupils to the elementary schools at the earliest practicable date. On remand to the District Court, no order was entered until April 22, 1960, when the District Court entered a formal order requiring the immediate elimination of discrimination in the admission of Negro applicants to high schools and the formulation of plans for the elimination of discrimination in the admission of applicants to elementary schools. Meanwhile, however, all public schools in Prince Edward County had been closed. During the summer of 1959, the Board of Supervisors of Prince Edward County, though it had received from the School Board budgets and estimates of the cost of operating the schools for the 1959-1960 school year, did not levy taxes or appropriate funds for the operation of the schools during that year. Though certain funds have come into the hands of the School Board, out of which it has been able to meet certain maintenance and insurance expenses and debt curtailment, it has received no funds with which it could operate the schools, for, annually, the Board of Supervisors has failed, or declined, to levy taxes or appropriate funds for the operation of the schools. In September 1960, the present plaintiffs obtained leave to file a supplemental complaint, which was supplanted by an amended supplemental complaint filed in April 1961. By these supplemental pleadings, the County Board of Supervisors, the State Board of Education and the State Superintendent of Education were brought in as additional defendants. By the amended supplemental complaint, the plaintiffs sought an order requiring the defendants to operate an efficient system of free public schools in Prince Edward County, forbidding tuition grants to pupils attending private schools practicing segregation, forbidding tax credits to taxpayers for contributions to private schools practicing segregation, and forbidding a conveyance or lease of any property of the School Board of Prince Edward County to any private organization. The District Court entered an injunction against payment of tuition grants to pupils attending the schools operated by the Prince Edward School Foundation and against the allowance of tax credits by Prince Edward County on account of contributions to that Foundation. Initially, it abstained from deciding the questions of state law upon which the reopening of the free public schools depended, but, after the plaintiffs had aborted the effort to have the relevant questions decided by the state courts, the District Court undertook to decide them itself. It ordered the schools reopened, but postponed the effectiveness of that order pending this appeal. There was no evidence that anyone had any idea the school buildings and property owned by the School Board would be sold or leased, and no order was entered affecting their disposition. For the District Court to get to the merits, it had to bypass a number of preliminary questions, including the very troublesome question arising under the Eleventh Amendment, all of which are brought up before us. On the merits of each of the three main issues, the parties advanced innumerable alternate offenses and defenses, but it is obvious that the answer on the merits, in one instance exclusively and in other instances largely, rests upon interpretations of state law. It is also apparent that a proceeding in the state courts will avoid most of the technical procedural difficulties which must be disposed of before the merits can be determined in this action. Under these circumstances, we think the District Court properly decided, in the first instance, that it should abstain from deciding the merits of the principal issue until the relevant questions of state law had been decided by the state courts. We think it should have adhered to its abstention when resolution of the state questions by state courts was delayed because the plaintiffs, themselves, chose to withdraw them from state court consideration. We think too that abstention on the other two issues, where the answers are so closely related to the principal issue, was the proper course. Insofar as there are federal questions present which are independent of state law, as will presently appear, we conclude that the plaintiffs have shown no ground for relief, so that abstention is not inappropriate. In 1959, after the Board of Supervisors of Prince Edward County failed to levy taxes for the operation of the schools during the school year 1959-1960, a corporation known as Prince Edward School Foundation was organized for the purpose of operating private schools in the county. It was launched by private contributions of $334,712.22. With the receipt of tuition charges and continuing private contributions, it has successfully operated primary and secondary schools in Prince Edward County which are attended solely by white pupils. It has used none of the facilities of the School Board. Until the District Judge enjoined their payment, pupils attending schools of the Prince Edward School Foundation, generally, received tuition grants paid jointly by Virginia and Prince Edward County, which approached but did not equal the tuition charges they had to pay. Negro citizens of Prince Edward County at first made no effort to provide schools for their children. They declined proffered assistance in such an undertaking. Some of their children obtained admission to public schools in other counties of Virginia and, since 1960, obtained, or were eligible for, tuition grants when they did so. The great majority of Negro children, however, for a time, went with no schooling whatever. Later, certain “training schools” were established and a substantial number of Negro pupils, but far from all, have attended those training schools. On the principal issue, the question whether the plaintiffs have a judicially enforceable right to have free public schools operated in Prince Edward County, the plaintiffs contend that the closure of the schools, taken either alone or in conjunction with the subsequent formation of the Prince Edward School Foundation and its operation of private schools for white pupils only, was the kind of “evasive scheme” for the perpetuation of segregation in publicly operated schools which was condemned in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. The United States, as amicus curiae advances a different principle, contending that there is a denial of the Fourteenth Amendment’s guarantee of equal protection of the laws when the Commonwealth of Virginia suffers the schools of Prince Edward County to re-, main closed, while schools elsewhere in the state are operated. As to the plaintiffs’ contention, it may be summarily dismissed insofar as it is viewed as a contention that the Fourteenth Amendment requires every state and every school district in every state to operate free public schools in which pupils of all races shall receive instruction. The negative application of the Fourteenth Amendment is too. well settled for argument. It prohibits discrimination by a state, or one of its subdivisions, against a pupil because of his race, but there is nothing in the Fourteenth Amendment which requires a state, or any of its political subdivisions with freedom to decide for itself, to provide schooling for any of its citizens. Schools that are operated must be made available to all citizens without regard to race, but what public schools a state provides is not the subject of constitutional command. The plaintiffs’ theory may also be summarily dismissed insofar as it is viewed as a contention that the closure of the schools was a violation of the order of the District Court entered in compliance with the direction of this Court. The injunctive order, entered when the School Board and its Division Superintendent were the only defendants, required them to abandon their racially discriminatory practices. Without funds, they have been powerless to operate schools, but, even if they had procured the closure of the schools, they would not have violated the order for they abandoned discriminatory admission practices when they closed all schools as fully as if they had continued to operate schools, but without discrimination. The impact of abandonment of a system of public schools falls more heavily upon the poor than upon the rich. Even with the assistance of tuition grants, private education of children requires expenditure of some money and effort by their parents. One may suggest repetition of the often repeated statement of Anatole France, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” That the poor are more likely to steal bread than the rich or the banker more likely to emr bezzle than the poor man, who is not entrusted with the safekeeping of the moneys of others, does not mean that the laws proscribing thefts and embezzlements are in conflict with the equal protection provision of the Fourteenth Amendment. Similarly, when there is a total cessation of operation of an independent school system, there is no denial of equal protection of the laws, though the resort of the poor man to an adequate substitute may be more difficult and though the result may be the absence of integrated classrooms in the locality. This we held in a different context in Tonkins v. City of Greensboro, 4 Cir., 276 F.2d 890, affirming D.C., 162 F.Supp. 549. Faced with the necessity of desegregating the swimming pools it owned, the City of Greensboro, North Carolina, chose instead to sell them. Upon findings that the sale of the pool, which the City had theretofore reserved for use by white people only, was bona fide, it was held that there had been no denial of the constitutional rights of the Negro plaintiffs, though the pool was thereafter operated on a segregated basis by its private owners. Similarly, when a state park was closed dui'ing pendency of an action to compel the state to permit its use by Negroes on a nondiseriminatory basis, we held that closure of the park mooted the case requiring its dismissal. Other courts have clearly held that a municipality which had been ordered to desegregate facilities which it had operated, may abandon the facilities without violating the injunctive order or the rights of the Negro plaintiffs. The only limitation of the principle is that a municipality may not escape its obligations to see that the public facilities it owns and operates are open to everyone on a nondiseriminatory basis by an incomplete or limited withdrawal from the operation of them. If the municipality reserves rights to itself in disposing of facilities it formerly owned and operated, subsequent operation of those facilities may still be “state action.” Nothing to the contrary is to be found in James v. Almond. There, the Court had ordered the admission of seventeen Negro pupils into six of Norfolk’s schools theretofore attended only by white pupils. Under Virginia’s “Massive Resistance Laws,” the Governor of Virginia thereupon seized the six schools, removed them from Norfolk’s school system and closed them. All other schools in Norfolk and elsewhere in Virginia remained open. It was held, of course, that the statutes under which the Governor acted were unconstitutional, for Virginia’s requirement that all desegregated schools be closed while segregated schools remained open was a denial of equal protection of the laws. There was no suggestion that Virginia might not withdraw completely from the operation of schools or that any autonomous subdivision operating an independent school system might not do so. The decision in Hall v. St. Helena Parish School Board is not a departure from the principle. There, it appeared that, confronted with court orders to desegregate schools in certain parishes in Louisiana, the Governor of that State called an extraordinary session of the Legislature, which enacted a number of statutes designed to frustrate enforcement of the court’s orders. One of the statutes provided for the closure of all schools of a parish upon a majority vote of the parishioners. It was accompanied by other statutes providing for the transfer of closed schools to private persons or groups, providing for educational co-operatives and regulating their operations, providing tuition grants payable directly to the school and not solely to the pupils and their parents, providing for general supervision of the “private schools” by the official state and local school boards, and providing, at state expense, school lunches and transportation for pupils attending the “private schools.” Construing all these statutes together, as it was required to do, the Court, with abundant reason, concluded that the statutes did not contemplate an abandonment of state operation of the schools but merely a formal conversion of them with the expectation that the schools would continue to be operated at the expense of the state and subject to its controls. Desegregation orders may not be avoided by such schemes, but there is nothing in the Hall case which suggests that Louisiana might not have withdrawn completely from the school business. It was only because it had not withdrawn that the statutes which composed its evasive scheme of avoidance were struck down. The plaintiffs largely content themselves with assertions that closure of the schools was motivated by the filing of our opinion in May 1959, from which it was apparent that the District Court would be required to enter a desegregation order. They emphasize a resolution adopted in 1956 by a predecessor Board of Supervisors expressing an intention to levy no tax and appropriate no funds for the operation of desegregated schools. More broadly, they contend that closure of the schools, with the effect of avoiding the operation of integrated schools, is a violation of the Fourteenth Amendment or of the injunctive order. Facially, what we have said will dispose of the plaintiffs’ contention, but the matter does not necessarily end there. As we have seen, if Virginia or Prince Edward County can be said to be still operating schools through the Prince Edward School Foundation, then the principles of Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, would require a remedial order. If Prince Edward County has not completely withdrawn from the school business, then it cannot close some schools while it continues to operate others on a segregated basis. The plaintiffs do not contend that Prince Edward County or Virginia had a hand in the formation of the Prince Edward School Foundation. There is no suggestion that any agency, or official, of Virginia, or of Prince Edward County, has any authority to supervise the operation of the schools of the Prince Edward School Foundation, except insofar as Virginia exercises a general police supervision over all private schools and except that Virginia accredited the schools of the Foundation when they met the requirements applicable to all private schools. Indeed, during the first year of operation, the schools of the Foundation appear to have been as independent of governmental authority as any sectarian or nonsectarian private school in Virginia. Beginning with the school year 1960-1961, pupils attending schools of the Foundation did receive tuition grants. One of Virginia’s statutes providing for the tuition grants authorized participation by the counties. If a particular county does not participate in the tuition grant program, the state will pay the maximum allowable grant but will deduct a portion of its payment from other state funds distributed for purposes unrelated to schools to the nonparticipating county. It was apparently for that reason that in 1960 the Board of Supervisors of Prince Edward County provided for tuition grants which would take the place of a portion of the state grant but would not supplement the funds otherwise available to the pupil. In its effect upon Prince Edward County, its participation in the state-wide program of tuition grants amounted to no more than taking dollars from one of its pockets and putting them into another. As for pupils who were residents of Prince Edward County attending schools of Prince Edward Foundation, or any private school, or a public school outside of the county, they got no more by reason of the county’s participation in the program. In 1960, the Board of Supervisors of Prince Edward County also adopted an ordinance providing for credits to taxpayers, not exceeding twenty-five per cent of the total tax otherwise due, for contributions to non sectarian schools not operated for profit located in Prince Edward County, or to be established and operated in that county during the ensuing year. During the school year 1960-1961, credits aggregating $56,866.22 were allowed by Prince Edward County on account of contributions made to the Foundation. The allowance of such tax credits appears to be an indirect method of channeling public funds to the Foundation. They are very unlike Virginia’s program of tuition grants to pupils which has a lengthy history. The allowance of such tax credits makes uncertain the completeness of the County’s withdrawal from the school business. It might lead to a contention that exclusion of Negroes by schools of the Foundation is county action. Their allowance, however, during the second of the four years that the Foundation has operated its schools does not require a present finding on this record that the County is still in the school business, and that the acts of the Foundation are its acts. Bearing in mind the fact that the Foundation established and operated its schools without utilization of public facilities and, during the first year, without any direct or indirect assistance of public funds, and the clear showing of the independence of the Foundation from the direction and control of the defendants, the allowance of the tax credits is at least equivocal. Inferences of power to influence, if not to control, may follow such encouragement of contributions, though the allowance of income tax deductions by the State and United States for contributions to religious and charitable organizations is not thought to make state or nation a participant in the affairs and operations of the beneficiaries of the contributions. Indeed, their allowance has come in recognition of public interest in encouragement of private contributions to religious, educational and charitable institutions and organizations. Here, however, the allowance of the tax credit comes in a more particularized context, and that context is not complete without consideration of Virginia’s tuition grants. As indicated above, Virginia’s tuition grants had a considerable history. That program has not been attacked in this case. Its constitutionality has not been questioned. Elsewhere, apparently, it has not been utilized to circumvent the segregation of public schools. In the school year just closed, thirty-one school districts in Virginia were desegregated to some degree. The basic program of tuition grants, however, its antecedents and its operation and effect were not examined by the court below. Moreover, the effect of tax credits and tuition grants ought to be determined only in the light of the correlative duties and responsibilities of the Commonwealth and the County in connection with the operation of schools in the County. What they are and how they are distributed turn entirely upon the proper construction of a number of constitutional and statutory provisions of the Commonwealth. If, as the District Court found, Virginia’s Constitution requires the Commonwealth as such to open and operate schools in Prince Edward County, what Prince Edward County does in the allowance of tax credits for contributions to otherwise independent educational institutions may be of little moment. On the other hand, if Prince Edward County should be held to have a duty under state law to operate free public schools, then its allowance of tax credits might be a basis for a conclusion, in light of the tuition grant program, that it was undertaking to discharge its duty by indirection and, in effect, was operating the schools of the Foundation. Such a determination can be made only when the underlying questions of state law have been settled. The two branches of the principal issue are closely interrelated. As appears above, the question of whether or not Prince Edward County, or Virginia, has such a hand in the operation of the schools of the Foundation as to result in a Fourteenth Amendment requirement that they operate free, public schools on a nondiscriminatory basis for all pupils in the county is dependent, in large measure, upon a determination of Virginia’s distribution of authority, duty and responsibility in connection with the schools and their control and operation. Applicability of the principle advanced by the United States as amicus curiae depends entirely upon the answers to those questions of state law, for no one questions the principle that if Virginia is operating a state-wide, centralized system of schools, she may not close her schools in Prince Edward County in the face of a desegregation order while she continues to operate schools in other counties and cities of the Commonwealth. Application of the constitutional principle turns solely upon a determination, under state law, of Virginia’s role in the operation of public schools in Virginia. The answers to these questions are unresolved and unclear. On the one hand, the United States points to Section 129 of Virginia’s Constitution, which provides, “The General Assembly shall establish and maintain an efficient system of public free schools throughout the State,” and to those constitutional and statutory provisions providing for a State Board of Education and a Superintendent of Public Instruction, and defining their duties and responsibilities. On the other hand, the defendants point to Section 133 of Virginia’s Constitution which provides that supervision of schools in each county and city shall be vested in a school board and to other constitutional and statutory provisions which, unquestionably, vest large discretionary power in local school boards and in the governing bodies of the counties and cities in which they function. By Section 130 of the Constitution, the.State Board of Education has “general supervision of the school system.” It has the power to divide the state into school divisions, though no school division may be smaller than one county or one city. When a Division Superintendent of Schools is to be appointed, the State Board of Education certifies to the local board a list of qualified persons, and the local board may appoint anyone so certified. It selects and approves textbooks for use in the schools. It is required to manage and invest certain school funds of the state, and the General Assembly is empowered to authorize the State Board to promulgate rules and regulations governing the management of the schools. Section 135 of Virginia’s Constitution requires the application of receipts from certain sources to schools of the primary and grammar grades. These “constitutional funds” are apportioned among the-counties and cities according to school population. In addition, the General Assembly is authorized to appropriate other funds for school purposes, and those funds are apportioned as the General Assembly determines. Section 136 of the Constitution authorizes the counties and towns to levy taxes and appropriate funds for use “in establishing and maintaining such schools as in their judgment the public welfare may require.” The General Assembly of Virginia has adopted the consistent practice of appropriating funds, other than the “constitutional funds,” for distribution to the counties and cities for school purposes. Such appropriations are conditioned upon local appropriations. Thus, before the schools in Prince Edward County were closed, the local school board received its proportion of the constitutional funds, and, in addition, it received whatever funds were appropriated by Prince Edward’s Board of Supervisors, plus matching funds from the state which became payable because of the local appropriation. Since the schools were closed, the Prince Edward County School Board received no funds from the state during the school year 1959-1960. It has received its proportionate part of the constitutional funds, but those only, in subsequent years, and these are the funds it has used to keep its physical properties in repair and insured, but they have been insufficient to enable it to do anything else. This arrangement, the defendants say, is a local option system under which each county is authorized to determine for itself whether or not it will operate any schools and, if so, what schools and what grades. They emphasize the provision of Section 136 of the Constitution which gives the local authorities the right to appropriate funds “in establishing and maintaining such schools as in their judgment the public welfare may require,” which is limited by a provision that, until primary schools are operating for at least four months per year, schools of higher grades may not be established. This, they say, clearly.authorizes and requires what is done in practice. The local school board, it is said, determines what schools and facilities are required. It budgets the estimated costs of their maintenance and operation, and submits its estimates to the local Board of Supervisors. The Board of Supervisors may not overturn particular determinations of the school board, but it, say the defendants, has an unfettered discretion in levying taxes and appropriating funds. It may appropriate funds equal to the school board’s budgetary estimate, but it also may appropriate less or nothing at all. If the Board of Supervisors appropriates nothing for use by the school board, then the matching state funds are unavailable and the schools cannot be operated. Among Virginia’s statutes may be found clear provisions for local option. Under Sections 16.1-201, 16.1-202 of the Virginia Code, a county may elect to establish juvenile detention facilities. If it does so, the state will contribute funds to meet, in part, the cost of construction and. operation. Under Section 32-292 et seq., a county may elect to participate in a program of state-local hospitalization. If a county elects to do so, the state, with certain limitations, will contribute one-half the cost of such hospitalization. The defendants suggest that there is no unconstitutional geographic discrimination in such local option programs, though one or more counties may not elect to participate in them. Federal analogies readily come to mind. The United States malees available to participating states which enact prescribed legislation, grants for unemployment compensation administration. Under the National Defense Education Act, federal funds are made available to localities conducting in their schools approved programs of science, mathematics and foreign languages. It is suggested that there is no geographic discrimination in the provision for such optional grants, though a state or locality may exercise its option not to participate. Such local option provisions as those the defendants think analogous are constitutionally unassailable. When a state undertakes to encourage local conduct of educational or social programs by making matching funds available to participating localities, there is no discrimination against nonparticipating localities. Since every locality may participate if it wishes to do so, and the state funds are available to each upon the same conditions, the state is even-handed. The question here, however, is whether Virginia’s school laws establish an arrangement within the local option principle the defendants advance. If Section 129 of Virginia’s Constitution imposes upon the General Assembly the duty to provide operating, free, public schools in every county, as the United States contends, its election to establish a system having features of a local option arrangement may be permissible under state law only so long as schools are operated in every county. On the other hand, if Section 129 of Virginia’s Constitution, construed in the light of other constitutional provisions, requires of the General Assembly only that it provide for a system of education under which counties and cities are authorized to establish and maintain schools of their own with state assistance, then the principle which the defendants assert may be applicable. The answer is unclear. It requires interpretation and harmonization of Virginia’s-Constitution and statutes. The question is unresolved. Virginia’s Supreme Court of Appeals has considered her school laws in a number of cases, but none of them settle the question here. In School Board of Carroll County v. Shockley, 160 Va. 405, 168 S.E. 419, the Court held unconstitutional an act of the General Assembly requiring the imposition of local taxes and the use of the proceeds in the construction of a particular school. In Board of Supervisors of Chesterfield County v. School Board of Chesterfield County, 182 Va. 266, 28 S.E.2d 698, the Court said that the local school board is “to run the schools,” and it alone has the power to determine how locally appropriated funds are to be spent. In Griffin v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S.E.2d 227, the Court held that in levying taxes and appropriating funds for school purposes, the Board of Supervisors exercised a legislative and discretionary function, and that it was not subject to mandamus. In Scott County School Board v. Scott County Board of Supervisors, 169 Va. 213, 193 S.E. 52, it had been held that mandamus was not available to a school board to compel the supervisors of its county to appropriate funds sufficient to cover the school board’s estimates of the cost of school operation. In none of those cases, however, has Virginia’s Supreme Court of Appeals considered the requirements of Section 129 of the Constitution when schools cease to operate because the local Board of Supervisors levies no taxes and appropriates no funds for the purpose. That Court may conclude that, in light of the closure of the schools in Prince Edward County, Section 129 of the Constitution requires something more of the General Assembly or of the State Board of Education. That conclusion, however, is not forecast by Harrison v. Day, 200 Va. 439, 106 S.E.2d 636, in which Virginia’s Supreme Court of Appeals struck down Virginia’s massive resistance laws. Nor is there anything in the Three-Judge Court decision of James v. Almond, E.D.Va., 170 F.Supp. 331, which approaches federal determination of this state question. There, the Governor seized and removed from the school system six of Norfolk’s schools subject to desegregation orders. He acted under color of a state statute which required him to do so. In holding the statute unconstitutional the Court did not decide that all schools in Virginia were administered by the state on a statewide, centralized basis. The seizure was clearly that of the Governor and the discrimination was inherent in the statute whether the schools were otherwise operated upon a local option basis or directly by the state. When the state acts to seize and close every school subject to a desegregation order, its sufferance of continued operation of other schools within its borders is as discriminatory as its direct operation of them. These controlling questions of state law, uncertain and unsettled as they are, ought to be determined by the Supreme Court of Appeals of Virginia, which alone has the power to give an authoritative interpretation of the relevant sections of Virginia’s Constitution and of her statutes. As it was so forcefully said in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, this Court cannot settle the state questions; it can do no more than predict what Virginia’s Supreme Court of Appeals will do when the questions come before it. If we should hazard a forecast and it should be proven wrong, any present judgment based upon it will appear both gratuitously premature and empty when the state questions are authoritatively resolved in the state courts. Particularly is this true when, with so little to guide us, we cannot predict with any semblance of confidence how the several state questions will be ultimately resolved in the state courts. In such circumstances, abstention until the state questions are determined is the proper course. Abstention, under the circumstances, is all the more appropriate because the case of County School Board of Prince Edward County, Virginia et al. v. Griffin et al., is already pending on the docket of the Supreme Court of Appeals of Virginia and will be heard by that Court in October. From a reading of the opinion of the Circuit Court of the City of Richmond in that case, it appears that the essential questions of state law upon which decision here turns are presented in that case and will be determined by that Court as it considers and adjudicates the same primary question tendered in this case, the existence of judicially enforceable rights in the plaintiffs to have the schools reopened. That state court proceeding had not been commenced when the District Judge acted on the primary question in this case. In abandoning his earlier decision to abstain, he referred to the fact that no such proceeding was pending or then contemplated. Had it been then pending, he probably would have awaited its outcome. The fact that a case, apparently ripe for decision, is now pending on the docket of Virginia’s Supreme Court of Appeals, makes easier our conclusion that the controlling questions of state law, which govern the application of unquestioned constitutional principles, ought to be determined by the state courts, and that, when they may be so determined, the federal courts ought to abstain from constitutional adjudication premised upon their notions of state law which may or may not turn out to be accurate forecasts. Accordingly, the judgments below will be vacated and the case remanded to the District Court, with instructions to abstain from conducting further proceedings until the Supreme Court of Appeals of Virginia shall have decided the case now pending on its docket entitled County School Board of Prince Edward County, Virginia et al. v. Leslie Francis Griffin, Sr. et al., and that decision has become final, with leave to the District Court thereafter to entertain such further proceedings and to enter such orders as may then appear appropriate in light of the determinations of state law by the Supreme Court of Appeals of Virginia. Vacated and remanded. . 4 Cir., 249 F.2d 462. . 4 Cir., 266 F.2d 507. . The plaintiffs applied to The Supreme Court of Appeals of Virginia for a writ of mandamus to compel the Board of Supervisors to levy taxes and appropriate funds for the operation of public schools. The District Judge saw copies of the pleadings and, apparently, was of the opinion they put in issue all relevant questions. In their printed brief, however, the plaintiffs disclaimed the presence of any federal question, with the result that the court decided only one narrow issue. It held mandamus unavailable because, it concluded, the Board of Supervisors’ function was legislative and discretionary, not ministerial, Griffin et al. v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S.E.2d 227. It did not consider whether or not Virginia or any of its agencies has an affirmative duty to operate free public schools in Prince Edward or whether it can operate public schools elsewhere while those in Prince Edward remain closed. It did not consider many of the questions of state law which underlie those two ultimate questions. Later the defendants, or some of them, brought an action for a declaratory judgment in the Circuit Court of the City of Richmond. The plaintiffs here were named defendants there, and one of their attorneys was appointed guardian ad litem for the infants. On March 21, 1963 Judge Knowles filed an opinion in which the major questions are resolved in the favor

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?

Willie S. GRIGGS, James S. Tucker, Herman Martin, William C. Purcell, Clarence M. Jackson, Robert A. Jumper, Lewis H. Harrison, Jr., Willie Boyd, Junior Blackstop, John D. Hatchett, Clarence Purcell, Eddie Galloway, and Eddie Broadnax, Appellants, v. DUKE POWER COMPANY, a corporation, Appellee. No. 13013. United States Court of Appeals Fourth Circuit. Argued April 10, 1969. Decided Jan. 9, 1970. Sobeloff, Circuit Judge, dissented in part. Jack Greenberg, New York City (Conrad O. Pearson, Durham, N. C., J. Le-Vonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Sammie Chess, Jr., High Point, N. C., James M. Nabrit, III, Norman C. Amaker, Robert Belton, Gabrielle A. Kirk, George Cooper, and Albert J. Rosenthal, New York City, on brief) for appellants. . George W. Ferguson, Jr., Charlotte, N. C. (Carl Horn, Jr., and William I. Ward, Jr., Charlotte, N. C., on brief) for appellee. Russell Specter, Asst. Gen. Counsel, Equal Employment Opportunity Commission, and Gary J. Greenberg, Atty., Dept.' of Justice (Daniel Steiner, Gen. Counsel, Philip B. Sklover, Atty., Equal Employment Opportunity Commission, Jerris Leonard, Asst. Atty. Gen., and Carol R. Aronoff, Atty., Dept, of Justice, on brief) for amicus curiae. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges. BOREMAN, Circuit Judge: Present Negro employees of the Dan River Steam Station of Duke Power Company in Draper, North Carolina, in a class action with the class defined as themselves and those Negro employees who subsequently may be employed at the Dan River Steam Station and all Negroes who may hereafter seek employment at the station, appeal from a judgment of the district court dismissing their complaint brought under Title VII of the Civil Rights Act of 1964. (Duke Power Company will be referred to sometimes as Duke or the company.) The plaintiffs challenge.the validity of the company’s promotion and transfer system, which involves the use of general intelligence and mechanical ability tests, alleging racial discrimination and denial of equal opportunity to advance into jobs classified above.the menial laborer category. Duke is a corporation engaged in the generation, transmission and distribution of electric power to the general public in North Carolina and South Carolina. At the.time this action was instituted, Duke had 95 employees at its Dan River Station, fourteen of whom were Negroes, thirteen of whom are plaintiffs in this action. The work force at Dan River is divided for operational purposes into five main departments: (1) Operations; (2) Maintenance; (3) Laboratory and Test; (4) Coal Handling; and (5) Labor. The positions of Watchman, Clerk and Storekeeper are in a miscellaneous category. The employees in the Operations Department are responsible for the operation of the station’s generating equipment, such as boilers, turbines, auxiliary and control equipment, and the electrical substation. They handle also interconnections between the station, the company’s power system, and the systems of other power companies. The Maintenance Department is responsible for maintenance of all.the mechanical and electrical equipment and machinery in the plant. Technicians working in the Laboratory Department analyze water to determine its fitness for use in.the boilers and run analyses of coal samples to ascertain the quality of the coal for use as fuel in the power station. Test Department personnel are responsible for the performance of.the station by maintaining the accuracy of instruments, gauges and control devices. Employees in the Coal Handling Department unload, weigh, sample, crush, and.transport coal received from the mines. In so doing, they operate diesel and electrical equipment, bulldozers, conveyor belts, crushers and other heavy equipment items. They must be able to read and understand manuals relating to such machinery and equipment. The Labor Department provides service to all other departments and is responsible generally for the janitorial services in the plant. Its employees mix mortar, collect garbage, help construct forms, clean bolts, and provide the necessary labor involved in performing other miscellaneous jobs. The Labor Department is the lowest paid, with a maximum wage of $1.565 per hour, which is less than the minimum of $1.-705 per hour paid to any other employee in the plant. Maximum wages paid.to employees in other departments range from $3.18 per hour to $3.65 per hour. Within each department specialized job classifications exist, and these classifications constitute a line of progression for purposes of employee advancement. Promotions within departments are made at Dan River as vacancies occur. Normally, the senior man in the classification directly below that in which the vacancy occurs will be promoted, if qualified to perform the job. Training for promotions within departments is not formalized, as employees are given on-the-job training within departments. In transferring from one department to another, an employee usually goes in at the entry level; however, at Dan River an employee is potentially able to move into another department above the entry level, depending on his qualifications. In 1955, approximately nine years pri- or to the passage of the Civil Rights Act of 1964 and some eleven years prior to the institution of this action, Duke Power initiated a new policy as to hiring and advancement; a high school education or its equivalent was thenceforth required for all new employees, except as to those in the Labor Department. The new policy also required an incumbent employee to have a high school education or its equivalent before he could be considered for advancement from the Labor Department or the position of Watchman into Coal Handling, Operations or Maintenance or for advancement from Coal Handling into Operations or Maintenance. The company claims that this policy was instituted because it realized that its business was becoming more complex and.that there were some employees who were unable to adjust to the increasingly more complicated work requirements and thus unable to advance through the company’s lines of progression. The company subsequently amended its promotion and transfer requirements by providing.that an employee who was on the company payroll prior to September 1, 1965, and who did not have a high school education or its equivalent, could become eligible for transfer or promotion from Coal Handling, Watchman or Labor positions into Operating, Maintenance or other higher classified jobs by.taking and passing two tests, known as the Wonderlic general intelligence test and the Bennett Mechanical AA general mechanical test, with scores equivalent to those achieved by an average high school graduate. The company admits that this change was made in response to requests from employees in Coal Handling for a means of escape from that department but the same opportunity was also provided for employees in the Labor Department. Until 1966, no Negro had ever held a position at Dan River in any department other than the Labor Department. On August 6, 1966, more than a year after July 2, 1965, the effective date of the Civil Rights Act of 1964, the first Negro was promoted out of the Labor Department, as Jesse C. Martin (who had a high school education) was advanced into Coal Handling. He was subsequently promoted to utility operator on March 18, 1968. H. E. Martin, a Negro with a high school education, was promoted to Watchman on March 19, 1968, and subsequently to the position of Learner in Coal Handling. Another Negro, R. A. Jumper, was promoted to Watchman and then to Trainee for Test Assistant on May 7, 1968. These three were the only Negroes employed at Dan River who had high school educations. Recently, another Negro, Willie Boyd, completed a course which is recognized and accepted as equivalent to a high school education; thereby he became eligible for advancement under current company policies. Insufficient time has elapsed in which to determine whether or not Boyd will be advanced without discrimination, but it does appear that the company is not now discriminating in its promotion and transfer policies against Negro employees who have a high school education or its equivalent. The plaintiff Negro employees admit that at the present time Duke has apparently abandoned its policy of restricting all Negroes to the Labor Department; but the plaintiffs complain that the educational and testing requirements preserve and continue.the effects of Duke’s past racial discrimination, thereby violating the Civil Rights Act of 1964. The district court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, Negroes were relegated to the Labor Department and deprived of access to other departments by reason of racial discrimination practiced by the company. This finding is fully supported by the evidence. However, the district court also held that Title VII of the Civil Rights Act of 1964 does not encompass the present and continuing effects of past discrimination. This holding is in conflict with other persuasive authority and is disapproved. While it is true that the Act was intended to have prospective application only, relief may be granted to remedy present and continuing effects of past discrimination. Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969); United States v. Local 189, 282 F.Supp. 39, 44 (E.D.La.1968), aff’d, 416 F.2d 980 (5 Cir. 1969); Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (E.D.Va.1968). See, United States v. Hayes International Corporation, 415 F. 2d 1038 (5 Cir. 1969) (Sept. 16, 1969). In Quarles, it was directly held that present and continuing consequences of past discrimination are covered by the Act, the court stating, “It is also apparent that Congress did not intend to freeze an entire generation of Negro employees in•to discriminatory patterns that existed before the act.” Quarles v. Philip Morris, Inc., supra, 279 F.Supp. at 516. The Quarles decision was expressly approved and followed in United States v. Local 189, supra, as the district court, with subsequent approval of the Fifth Circuit Court of Appeals, struck down a seniority system which had the effect of perpetuating discrimination. “ * * * [W]here, as here, ‘job seniority’ operates to continue the effects of past discrimination, it must be replaced * United States v. Local 189, supra at 45. In Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Volger, 407 F.2d 1047, 1052 (5 Cir. 1969), the court said: “Where necessary to ensure compliance with the Act, the District Court was fully empowered to eliminate the present effects of past discrimination.” Those six Negro employee-plaintiffs without a high school education or its equivalent who were discriminatorily hired only into the Labor Department prior to Duke’s institution of the educational requirement in 1955 were simply locked into the Labor Department by the adoption of this requirement. Yet, on the other hand, many white employees who likewise did not have a high school education or its equivalent had already been hired into the better departments and were free to remain there and be promoted or transferred into better, higher paying positions. Thus, it is clear that those six plaintiff Negro employees without a high school education or its equivalent who were hired prior to the adoption of the educational requirement are entitled to relief; the educational requirement shall not be invoked as an absolute bar to advancement, but must be waived as to these plaintiffs and they shall be entitled to nondiscriminatory consideration for advancement to other departments if and when job openings occur. Likewise, as to these same six Negro plaintiffs, the testing requirements established in 1965 are also discriminatory. The testing requirements, as will be fully explained later in this opinion, were established as an approximate equivalent to a high school education for advancement purposes. Since the adoption of the high school education requirement was discriminatory as to these six Negro employees and the tests are used as an approximate equivalent for advancement purposes, it must follow that the testing requirements were likewise discriminatory as to them. These six plaintiffs had to pass these tests in order to escape from the Labor Department while their white counterparts, many of whom also did not have a high school education, had been hired into departments other than the Labor Department and therefore were not required to take the tests. Therefore, as to these six plaintiffs,.the testing requirements must also be waived and shall not be invoked as a bar to their advancement. Next, we consider the rights of the second group of plaintiffs, those four Negro employees without a high school education or its equivalent who were hired into the Labor Department after the institution of the educational requirement. We find that they are not entitled to relief for the reasons to be hereinafter assigned. In determining the rights of this second group of plaintiffs, it is necessary.to analyze and determine the validity of Duke’s educational and testing requirements under the Civil Rights Act of 1964. We have found no cases directly in point. The Negro employee-plaintiffs contend that the requirements continue the effects of past discrimination and, therefore, must be struck down as invalid under the Act. We find ourselves unable to agree with.that contention. Plaintiffs claim that Duke’s educational and testing requirements are discriminatory and invalid because: (1) there is no evidence showing a business need for the requirements; (2) Duke Power did not conduct any studies to discern whether or not such requirements were related to an employee’s ability to perform his duties; and (3) the tests were not job-related, and § 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (h), requires tests to be job-related in order to be valid. The company admits that it initiated the requirements without making formal studies as to the relationship or bearing such requirements would have upon its employees’ ability to perform their duties. But, Duke claims that the policy was instituted because its business was becoming more complex, it had employees who were unable to grasp situations, to read, to reason, and who did not have an intelligence level high enough to enable them to progress upward through the company’s line of advancement. Pointing out that it uses an intracom-pany promotion system to train its own employees for supervisory positions inside the company rather than hire supervisory personnel from outside, Duke claims that it initiated the high school education requirement, at least partially, so that it would have some reasonable assurance that its employees could advance into supervisory positions; further, that its educational and testing requirements are valid because they have a legitimate business purpose, and because the tests are professionally developed ability tests, as sanctioned under § 703(h) of the Act, 42 U.S.C. § 2000e-2 (h). In examining the validity of the educational and.testing requirements, we must determine whether Duke had a valid business purpose in adopting such requirements or whether the company merely used the requirements to discriminate. The plaintiffs claim that centuries of cultural and educational discrimination have placed Negroes at a disadvantage in competing with whites for positions which involve an educational or.testing standard and that Duke merely seized upon such requirements as a means of discrimination without a business purpose in mind. Plaintiffs have admitted in their brief that an employer is permitted to establish educational or testing requirements which fulfill genuine business needs and that such requirements are valid under the Act. In support of this statement, we quote verbatim from appellants’ brief: “An employer is, of course, permitted to set educational or test requirements that fulfill genuine business needs. For example, an employer may require a fair.typing test of applicants for secretarial positions. It may well be that, because of long-standing inequality in educational and cultural opportunities available to Negroes, proportionately fewer Negro applicants than white can pass such a test. But where business need can be shown, as it can where typing ability is necessary for performance as a secretary, the fact that the test tends to exclude more Negroes than whites does not make it discriminatory. We do not wish even to suggest that employers are required by law to compensate for centuries of discrimination by hiring Negro applicants who are incapable of doing the job. But when, a test or educational requirement is not shown to be based on business need, as in the instant case, it measures not ability to do a job but rather the extent to which persons have acquired educational and cultural background which has been denied to Negroes.” (Emphasis added.) Thus, plaintiffs would apparently concede that if Duke adopted its educational and testing requirements with a genuine business purpose and without intent to discriminate against future Negro employees, such requirements would not be invalidated merely because of Negroes’ cultural and educational disadvantages due to past discrimination. Although earlier in this opinion we upheld the district court’s finding that the company had engaged in discriminatory hiring practices prior to the Act and we concluded also that the educational and.testing requirements adopted by the company continued the effects of this prior discrimination as to employees who had been hired prior to the adoption of the educational requirement, it seems reasonably clear that this requirement did have a genuine business purpose and that the company initiated the policy with no intention to discriminate against Negro employees who might be hired after the adoption of the educational requirement. This conclusion would appear to be not merely supported, but actually compelled by the following facts: (1) Duke had long ago established the practice of training its own employees for supervisory positions rather than bring in supervisory personnel from outside. (2) Duke instituted its educational requirement in 1955, nine years prior to the passage of the Civil Rights Act of 1964 and well before the civil rights movement had gathered enough momentum to indicate the inevitability of the passage of such an act. (3) Duke has, by plaintiffs’ own admission, discontinued the use of discriminatory tactics in employment, promotions and transfers (4) The company’s expert witness, Dr. Moffie, testified that he had observed the Dan River operation; had observed personnel in the performance of jobs; had studied the written summary of job duties; had spent several days with company representatives discussing job content; and he concluded that a high school education would provide the training, ability and judgment to perform tasks in the higher skilled classifications. This testimony is uncontro-verted in the record. (5) When the educational requirement was adopted it adversely affected the advancement and transfer of white employees who were Watchmen or were in the Coal Handling Department as well as Negro employees in the Labor Department. (6) Duke has a policy of paying the major portion of the expenses incurred by an employee who secures a high school education or its equivalent. In fact, one of the plaintiffs recently obtained such equivalent, the company paying seventy-five percent of the cost.® Next, we consider the testing requirements to determine their validity and we conclude that they, too, are valid under § 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h). In pertinent part, § 703(h) reads: “* * * nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, col- or, religion, sex, or national origin.” There is no evidence in the record that there is any discrimination in the administration and scoring of the tests. Nor is.there any evidence that the tests are not professionally developed. The company’s expert, Dr. D. J. Moffie, testified that in his opinion the tests were professionally developed and are reliable and valid; that they are “low level” tests and are given at Dan River by one who has had special training in the administration of such tests. The minimum acceptable scores used by the company are approximately those achieved by the average high school graduate, which fact indicates that the tests are accepted as a substitute for a high school education. The evidence disclosed that the minimum acceptable scores used by Duke are Wonderlie-20, and Bennett Mechanical-39; the score of the average high school graduate, i. e.,.the fiftieth percentile, is 21.9 for the Wonderlic, nearly two points higher than the score accepted by Duke, and 39 for the Bennett Mechanical. The plaintiffs claim that.tests must be job-related in order to be valid under § 703(h). The Equal Employment Opportunity Commission which is charged with administering and implementing the Act supports plaintiffs’ view. The EEOC has ruled that tests are unlawful “ * * * in the absence of evidence that the tests are properly related to specific jobs and have been properly validated * * Decision of EEOC, December 2, 1966, reprinted in CCH, Employment Practices Guide, U 17,304.-53. The EEOC’s position has been supported by two federal district courts. United States v. H. K. Porter, 59 L.C. H 9204 (M.D.Ala.1969); Dobbins v. Local 212, IBEW, 292 F.Supp. 413 (S.D. Ohio 1968). In Dobbins the court invalidated a test which was being given for membership in a labor union or in connection with a referral system because it was not adequately related to job performance needs. However, in that case it was clear that.the testing requirement was not one of business necessity and the reasons for adopting such a requirement compellingly indicated that the purpose of such requirement was discrimination, which is not true in the present case. The court below held that the tests given by Duke were not job-related, but then refused to give weight to the EEOC ruling that tests must be job-related in order to be valid under § 703 (h). The plaintiffs assert that such refusal was error. It has been held that the interpretation given a statute by an agency which was established to administer the statute is entitled to great weight. Udall v. Tallman, 380 U.S. 1, 15, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). This principle has been applied to EEOC interpretations given the Civil Rights Act of 1964. Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5 Cir. 1969); Cox v. United States Gypsum Co., 284 F.Supp. 74, 78 (N.D.Ind.1968); International Chemical Workers Union v. Planters Manufacturing Co., 259 F.Supp. 365, 366 (N.D.Miss. 1966). Plaintiffs cite these cases last mentioned above to support their argument that this court should adopt.the EEOC ruling that tests must be job-related in order to be valid. However, none of these cases stands for.the proposition that an EEOC interpretation is binding upon the courts; in fact, in International Chemical Workers, supra at 366, it was held.that such interpretations of the EEOC are “ * * * not conclusive on the courts * * We cannot agree with plaintiffs’ contention that such an interpretation by EEOC should be upheld where, as here, it is clearly contrary to compelling legislative history and, as will be shown, the legislative history of § 703(h) will not support the view that a “professionally developed ability test” must be job-related. The amendment which incorporated the testing provision of § 703(h) was proposed in a modified form by Senator Tower, who was concerned about a.then-recent finding by a hearing examiner for the Illinois Fair Employment Practices Commission in a case involving Motorola, Inc. The examiner had found that a pre-employment general intelligence test which Motorola had given to a Negro applicant for a job had denied.the applicant an equal employment opportunity because Negroes were a culturally deprived or disadvantaged group. In proposing his original amendment, essentially the same as the version later unanimously accepted by the Senate, Senator Tower stated: “It [the amendment which, in substance, became the ability testing provision of § 703(h)] is an effort to protect the system whereby employers give general ability and intelligence tests to determine the trainability of prospective employees. The amendment arises from my concern about what happened in the Motorola FEPC case * * *. “Let me say, only, in view of the finding in the Motorola case, that the Equal Employment Opportunity Commission, which would be set up by the act, operating in pursuance of Title VII, might attempt to regulate the use of tests by employers * * *. “If we should fail to adopt language of this kind, there could be an Equal Employment Opportunity Commission ruling which would in effect invalidate tests of various kinds of employees by both private business and Government to determine the professional competence or ability or train-ability or suitability of a person to do a job.” (Emphasis added.) 110 Congressional Record 13492, June 11, 1964. The discussion which ensued among members of the Senate reveals that proponents and opponents of the Act agreed that general intelligence and ability tests, if fairly administered and acted upon, were not invalidated by the Civil Rights Act of 1964. See, 110 Congressional Record 13503-13505, June 11, 1964. The “Clark-Case” interpretative memorandum pertaining to Title VII fortifies the conclusion that Congress did not intend to invalidate an employer’s use of bona fide general intelligence and ability tests. It was stated in said memorandum : “There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in 'background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.” (Emphasis added.) 110 Congressional Record 7213, April 8, 1964. When Senator Tower called up his modified amendment, which became the ability testing provision of § 703(h), Senator Humphrey — one of the leading proponents and the principal floor leader of the fight for passage of the entire Act — stated: “I think it should be noted that the Senators on both sides of the aisle who were deeply interested in Title VII have examined the text of this amendment and found it to be in accord with the intent and purpose of that title. “I do not think.there is any need for a rolleall. We can expedite it. The Senator has won his point. “I concur in the amendment and ask for its adoption.” (Emphasis added.) 110 Congressional Record 13724, June 13, 1964. At no place in the Act or in its legislative history does there appear a requirement that employers may utilize only those tests which measure the ability and skill required by a specific job or group of jobs. In fact, the legislative history would seem to indicate clearly.that Congress was actually trying to guard against such a result. An amendment requiring a “direct relation” between the test and a “particular position” was proposed in May 1968, but was defeated. We agree with.the district court that a test does not have to be job-related in order to be valid under § 703(h) Having determined that Duke’s educational and testing requirements were valid under Title VII, we reach the conclusion that those four Negro employees without a high school education who were hired after the adoption of the educational requirement are not entitled to relief. These employees were hired subject to the educational requirement; each accepted a position in the Labor Department with his eyes wide open. Under this valid educational requirement these four plaintiffs could have been hired only in the Labor Department and could not have been promoted or advanced into any other department irrespective of race, since they could not meet the requirement. Consequently, it could not be said that they have been discriminated against. Furthermore, since the testing requirement is being applied to white and Negro employees alike as an approximate equivalent to a high school education for advancement purposes, neither is it racially discriminatory. Once we have determined that certain of the plaintiffs are entitled to relief the next question for consideration is the nature and extent of relief to be provided. Those six Negro employees without a high school education or its equivalent who were hired prior to the initiation of the educational requirement are entitled to injunctive relief under § 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g). The educational and test requirements are invalid as applied to their eligibility for transfer and promotion. Thus, on remand, the district court should award proper injunctive relief to insure that these six employees are considered for any future openings without being subject to the educational or testing requirements. This will work no hardship upon the company since the relief provided will simply require it to consider those Negro employees equally with similarly situated white employees, many of whom do not have a high school education or its equivalent. If a Negro employee is advanced to a job in one of the better departments and his inability to perform the duties of the job is demonstrated after a reasonable period the company will be justified in returning him to his previous position or placing him elsewhere. As Judge Butzner said in Quarles, 279 F.Supp. 505, 521 (E.D.Va. 1968), supra: “If any transferee fails to perform adequately within a reasonable time * * * he may be removed and returned to the department and job classification from which he came, or to another higher job classification for which the company may believe him fitted.” In granting relief, the district court should order that seniority rights of the six Negro employees who are victims of discrimination be considered on a plant-wide, rather than a departmental, basis. To apply strict departmental seniority would result in the continuation of present effects of past discrimination whenever one of the six is considered in the future for advancement to a vacant job in competition with a white employee who has already gained departmental seniority in a better department as a result of past discriminatory hiring practices. In United States v. Local 189, 282 F.Supp. 39, 44 (E.D. La.1968), aff’d, 416 F.2d 980 (5 Cir. 1969), supra, the court held: “Where a seniority system has the effect of perpetrating discrimination, and concentrating or 'telescoping’ the effect of past years of discrimination against Negro employees into the present placement of Negroes in an inferior position for promotion and other purposes, that present result is prohibited, and a seniority system which operates to produce that present result must be replaced with another system.” It is to be understood and remembered that there are thirteen named Negro plaintiffs who bring this action. Jesse C. Martin, a Negro formerly employed in the Labor Department who had a high school education, was advanced to a higher position subsequent to the effective date of the Act. He is not joined as a plaintiff since the past discrimination against him has been removed. This case is now moot as to two of the named Negro plaintiffs who have high school educations and have been advanced; also as to Willie Boyd, who has acquired the equivalent of a high school education and is now eligible for advancement. Briefly summarizing, only those six Negro employees without a high school education or its equivalent who were hired prior to the adoption of the educational requirement are entitled to relief. As to them the judgment below is reversed and the case is remanded to the district court with directions to fashion appropriate injunctive relief consistent with this opinion. As to the remaining Negro plaintiffs the judgment below is affirmed. Affirmed in part, reversed in part, and remanded. . Pertinent sections of Title VII of the Civil Rights Act of 1964 are: Section 703(a), 42 U.S.C. § 2000e-2(a) : It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend tc deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. sertion 703(h), 42 U.S.C. § 2000e-2(h) : Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. Section 706(g), 42 TJ.S.C. § 2000e-5(g) : If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice). . The company had an obvious business motive and objective in establishing the high school requirement, that is, hiring only personnel who had a reasonable expectation of ascending promotional ladders into supervisory positions thereby elim-mating road blocks which would interfere with movement to higher classifications and tend to decrease efficiency and morale throughout the entire work force. . It is highly improbable that the company seized upon such a requirement merely for the purpose of continuing discrimination. . This tends to demonstrate the company’s good faith. . It is unreasonable to charge the company with prospective discrimination by instituting an educational requirement which was to be applied prospectively to white, as well as Negro, employees. . It would be illosical to conclude that Duke established the educational requirement for purposes of discrimination when it was willing to pay for the education of incumbent Negro employees who could thus become eligible for advancement. . Senate Report No. 1111, May 8, 1968. . This decision is not to be construed as holding that any educational or testing requirement adopted by any employer is valid under the Civil Rights Act of 1964. There must be a genuine business purpose in establishing such requirements and they cannot be designed or used to further the practice of racial discrimination. Future cases must be decided on the bases of their own fact situations in light of pertinent considerations such as the company’s past hiring and advancement policies, the time of the adoption of the requirements, testimony of experts and other evidence as to the business purpose to be accomplished, and the company’s stated reasons for instituting such policies. . The plaintiffs disclaim any request for or entitlement to relief other than by way of injunction. Had there been an issue as to monetary awards for damages to those plaintiffs found to have been the victims of racial discrimination, there would have been presented the further issue as to the date of applicability of the Act. There were only 95 employees at the Dan River plant when the Act became effective on July 2, 1965, but Duke Power Company then employed some 6,000 persons throughout its entire system. The Act was initially applicable to employers with 100 or more employees, and it did not become applicable to employers with 75 to 100 employees until July 2, 1966. However, since the relief requested and awarded is solely injunctive in nature no question as to the applicability date of the Act is presented for decision. . Section 706(g) of the Civil Rights Act of 1964 limits injunctive relief to situations in which an employer or a union has “intentionally engaged in or is intentionally engaging in” an unlawful

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?

Calvin DUNCAN, Jr., Appellant, v. UNITED STATES of America, Appellee. Calvin DUNCAN, Jr., Appellant, v. DISTRICT OF COLUMBIA, Appellee. Nos. 20178, 20179. United States Court of Appeals District of Columbia Circuit. Argued Jan. 13, 1967. Decided May 18, 1967. Messrs. Peter R. Sherman and David E. Aaronson, Washington, D. C. (both appointed by this court), for appellant. Mr. Geoffrey M. Alprin, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker, Henry J. Monahan and Allan M. Palmer, Asst. U. S. Attys., were on the brief, for ap-pellee in No. 20,178. Mr. Dean W. Deter-man, Asst. U. S. Atty. at the time the record was filed, also entered an appearance for appellee in No. 20,178. Mr. David P. Sutton, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Charles T. Duncan, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel at the time the brief was filed, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee in No. 20,179. Mr. Richard W. Barton, Asst. Corp. Counsel, also entered an appearance for appellee in No. 20,179. Mr. Glen O. Robinson, Washington, D. C., filed a brief on behalf of National Capital Area Civil Liberties Union, as amicus curiae, urging reversal. Before Fahy Leventhal and Robinson, Circuit Judges. Circuit Judge Fahy became Senior Circuit Judge on April 13,1967. FAHY, Circuit Judge: Appellant was tried by a judge without a jury in the District of Columbia Court of General Sessions, and in a single session of the court was convicted of disorderly conduct, in violation of D.C.Code § 22-1107, and of simple assault, in violation of D.C.Code § 22-504. He was sentenced to ninety-days imprisonment for the former, and concurrently to one year for the latter. The District of Columbia Court of Appeals affirmed. Duncan v. United States, 219 A.2d 110. We allowed an appeal to this court. A question which affects both cases is whether the “Jencks” rule of evidence applies in our Court of General Sessions. The disorderly conduct case was brought by the District of Columbia, whereas the assault case was brought by the United States. The United States does not contend now that the Jencks rule does not apply in the assault case, but contends the rule was not violated. The District of Columbia joins in this contention, conceding only arguendo that the Jencks rule applies to it. The rule is now set forth in an Act of Congress, 18 U.S.C. § 3500, but had its origins in a decision of the Supreme Court, Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. The Act of Congress is specifically applicable “in any criminal prosecution brought by the United States,” which takes in our assault case; and, like assault, disorderly conduct as defined in the District of Columbia Code is punishable by fine, imprisonment, or both. We can think of no reason a rule of evidence deemed by the Supreme Court and by Congress to be essential in criminal cases should not be the rule in all courts of this federal jurisdiction. We have held, This court has the function and responsibility of exercising supervisory powers to the end of obtaining fair administration of criminal justice within the District of Columbia. The Supreme Court outlined our duties in the exercise of that supervisory power in Griffin v. United States, 336 U.S. 704 [69 S.Ct. 814, 93 L.Ed. 993], * * * and Fisher v. United States, 328 U.S. 463 [66 S.Ct. 1318, 90 L.Ed. 1382] * * * Tate v. United States, 123 U.S.App.D.C. 261, 268, 359 F.2d 245, 252. Courts as well .as Congress fashion rules of evidence. Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519. In Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428, Mr. Justice Brennan referred to the command of the Jencks Act as, designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian. It necessarily follows that the fair administration of justice in the Court of General Sessions requires recognition there of this rule of evidence, as it is defined in the Jencks Act, whether the case is prosecuted by the District of Columbia or by the United States. The factual situation in these two cases will now be outlined to determine whether the rule was complied with. Officer Gooden was the only witness for the prosecution in both cases. He described how he ordered a large gathering of juveniles to move on, and told appellant, who was not among the others, that the order included him. Appellant reluctantly moved away and at a distance of four to six feet from the officer said, “No black----is going to tell me to get off this corner.” The officer thereupon arrested appellant. The officer then described the difficulty he experienced in effecting the arrest, in the process of which appellant struck the officer and bit his hand, resulting in the assault charge. Appellant testified that he only tapped the officer and that he bit the officer because the officer “was choking me” and “stuck his hand right up by my mouth.” Defense counsel, during his cross-examination of the officer in the disorderly conduct case, inquired if Form PD-251 had been filled out. The witness said he believed so, that it was probably at the police station, and that it contained relevant information. Counsel requested its production under the Jencks Act. The court refused on the ground the physical location of the form was not established. Counsel pointed out that the defense was not required to go forward if entitled to the statement, that the appropriate procedure was to recess so that the statement could be obtained. The court disagreed, concluding “it is not here to be produced so I cannot order it to be produced.” The judge directed counsel to proceed with the cross-examination. In all relevant respects the same situation developed in the assault case. It is clear that the trial judge, no doubt because the matter was a novel one for the judge, did not follow the required procedure for determining whether Form PD-251 should be produced. The procedure is now well established. Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421; Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304; Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007; Williams (Isaac) v. United States, 117 U.S.App.D.C. 206, 328 F.2d 178; Hilliard v. United States, 115 U.S.App.D.C. 86, 87, 317 F.2d 150, 151; Saunders v. United States, 114 U.S.App.D.C. 345, 316 F.2d 346. We summarized it in the first Williams case as follows: As was pointed out by this court in Saunders v. United States, 114 U.S.App.D.C. 345, 348, 316 F.2d 346, 349 (1963), and reasserted in Hilliard v. United States, 115 U.S.App.D.C. 86, 317 F.2d 150, 151 (1963), these statutory provisions require that when a defendant seeks the production of a statement, as defined in the Act, “the district court has an affirmative duty to determine whether any such statement exists and is in the possession of the Government and, if so, to order the production of the statement.” We enlarged upon this aspect of the subject and we then quoted from Palermo v. United States, 360 U.S. 343, 354-355, 79 S.Ct. 1217, 1226 (1959), where it is said: It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases the answer will be plain from the statement itself. In others further information might be deemed relevant to assist the court’s determination. Williams v. United States, supra, at 208, 328 F.2d at 180. A Jencks Act statement is “defined in the Act” as follows: “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim” — not necessarily a precise — “recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously * * 18 U.S.C. § 3500(e). We pointed out further in Williams: The burden is not upon the defendant to prove that the statements requested are substantially verbatim recitals within the meaning of the Act. As we have indicated, the duty of examining all available evidence rests upon the trial judge himself, assisted by the parties. Campbell v. United States, 365 U.S. 85, 95 [81 S.Ct. 421] (1961); Saunders v. United States, supra; Hilliard v. United States, supra; and see United States v. Crosby, 294 F.2d 928, 950-951 (2d Cir. 1961), cert. denied sub nom. Mittleman v. United States, 368 U.S. 984 [82 S.Ct. 599, 7 L.Ed.2d 523] (1962); United States v. McKeever, 271 F.2d 669, 674 (2d Cir. 1959). His duty as spelled out by the Supreme Court and our decisions called in this case not merely for an examination of the statements in camera but also for a hearing, outside the presence of the jury, at which appropriate inquiry could be' made as to whether they were substantially verbatim recitals of what the witnesses had said to the government agent. Not only is it clear that the required procedure was not followed in these cases, but it seems clear also that had it been followed the statement would have been available in court. The witness himself said nothing to indicate otherwise. The obligation to do more was upon the court with the aid of the government. Upon being brought into court the statement could have been examined by the judge, in camera if necessary, see Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, to determine whether it related to the matters about which the witness had testified. If so, it would remain for the court to determine whether it was a substantially verbatim account of what the witness had stated to the agent of the government and was recorded contemporaneously, or whether it had been prepared or adopted by the witness. If either situation developed, the statement should have been handed to defense counsel. He would then have been entitled to a reasonable time to examine it, and, if so advised, to use it in cross-examining the witness. See Reichert v. United States, 123 U.S.App.D.C. 294, 297 & n. 5, 359 F.2d 278, 281 & n.5; Johnson v. United States, 121 U.S.App.D.C. 19, 347 F.2d 803. We now have the Form PD-251 before us. It was presented to us in open court at argument, when the parties agreed to make it available for our perusal. It is a printed form of the Metropolitan Police Department, calling for information as to the time, place and date of the offense, the name of the complainant, the names and addresses of witnesses, and a description of the details of the offense. The description of the present offenses appearing on the form is a twenty-line typewritten narration of the events leading to the arrest and charges against appellant. It is a statement by Officer Gooden about the matters of which he had testified on direct examination. It seems to be a substantially verbatim statement of what the witness said to the agent who took it down, assuming the witness did not type it himself. It appears to be, at least in part, in the officer’s own words. The personal pronoun is used. And it is signed in typewriting in his name. It has all the indicia of a statement which on the request of counsel should have been produced for his inspection and possible use. Notwithstanding the foregoing, we are reluctant to decide a matter which the usual practice leaves initially for decision at trial. Accordingly we shall give the trial court the opportunity in the first instance to decide the issue of producibility under the guidelines we have reviewed; that is, whether this statement on Form PD-251, relating to the subject matter of the witness’ testimony, is a substantially verbatim statement of what the.officer said to a government agent who contemporaneously transcribed it, or was adopted by the officer if not his own transcription. If testimony is required as to these matters there is to be an evidentiary hearing, in accordance with the procedure laid down in Campbell v. United States, 365 U.S. at 98, 81 S.Ct. 421, and followed in Williams v. United States, 117 U.S.App.D.C. at 209, 328 F.2d at 181. If it is found by the trial court that the statement should have been made available under the Jencks rule then a new trial is to be granted in both cases; for the error cannot be said to be harmless. Compare, Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231. There were sufficient differences in the statement and the witness’ testimony on direct examination to preclude us on this appellate review from holding that the statement could not have been effectively utilized by the defense. We are not to speculate that the same result would have been reached by the trier of the facts had the prosecution’s only witness been subject to cross-examination after defense counsel had had an opportunity to peruse and use, if so advised, the Jencks statement the witness had given after the arrest. If, however, the trial judge decides that the statement was not producible, the court shall make findings of fact leading to that decision, and enter a new final judgment of convictions if the court concludes to reaffirm its former rulings. This will enable appellant, if so advised, to seek further appellate review on the record as it then appears. Williams v. United States, swpra. In view of the above disposition of the cases other contentions pressed upon us need not be decided. It is so ordered. . Corporation Counsel’s information charged that appellant “did use profane language, indecent and obscene words and did engage in loud and boisterous talking and other disorderly conduct.” Apparently it was not until the conelusion of Officer Gooden’s direct examination that defense counsel was able to ascertain that the prosecution was being brought under D.C.Code § 22-1107 and not § 22-1121. . It is not, as the appellees’ briefs mistakenly represent, no doubt due to a misreading of part of the testimony pertaining to the Form, a statement by the accused.

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?

MARTINEZ et al. v. RIVERA No. 4357. United States Court of Appeals Tenth Circuit. April 16, 1952. Quincy D. Adams, Albuquerque, N. M., and Harry L. Bigbee, Santa Fe, N. M., for appellants. Oliver Seth, Santa Fe, N. M. (Seth & Montgomery, Santa Fe, N. M., on the brief), for appellees. Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges. PHILLIPS, Chief Judge. The question presented on this appeal is whether the Tierra Amarilla Land Grant, a grant from the Republic of Mexico, situated partly in the State of New Mexico and partly in the State of Colorado, is a community grant or a private grant. The Act of July 22, 1854, 10 Stat. 308, created the office' of Surveyor General of New Mexico. On September 10, 1856, the Surveyor General of New Mexico, pursuant to § 8 of such Act, made a report to Congress on the claim of Francisco Martinez for confirmation of the grant, in which the Surveyor General recommended the confirmation of the grant in the following language: “The Provincial Deputation was authorized by the laws of the Republic of Mexico to make donations of' land to individuals, and this case being covered by the Treaty of Guadalupe Hidalgo, and the decision of the Supreme Court of the United States, in the case of ‘J. C. Freemont vs. the U. S.’ the Grant made to Mariuel Martinez, of which Francisco Martinez is the present claimant, is deemed by this office to be a good and valid grant, and the Congress of the United States is hereby respectfully recommended to confirm the same, and cause a Patent to be issued therefore by the proper Department, and the land embraced within the boundaries set forth in said grant to be surveyed.” The report was numbered 33. The grant was confirmed by § 3 of the Act of June 21, 1860, 12 Stat. 71. The material part of § 3 reads as follows: “Sec. 3. And be it further enacted, That the private land claims in the Territory of New Mexico, as recommended for confirmation by jaid surveyor-general in his reports, and abstract marked exhibit A, as communicated to Congress by the Secretary of the Interior in his letter dated the third of February eighteen hundred and sixty, and numbered from twenty to thirty-eight, both inclusive, be, and the same are hereby, confirmed, * On February 21, 1881, a patent for the grant was issued to Francisco Martinez, his heirs and assigns. In 1907, the legislature of the Territory of New Mexico enacted a statute for the management, control, and government of community land grants. N.M.S.L.1907, ch. 42, p. 57. The statute is now found in Art. 1, ch. 9, N.M.Stat.1941 Ann. §§ 9-101 to 9-117. Section 9-102 in part provides: “Application of article. — This article shall apply to all grants of land made by the government of Spain, or by the government of Mexico, to any community, town, colony or pueblo, or to any individual for the purpose of founding or establishing any community, town, colony or pueblo; * . Section 9-103 provides that the management and control of all the grants to which the article is applicable is “vested in a board of trustees, to be known as the ‘Board of Trustees of the-Land Grant’ ” and that such board shall have power “to control, care for and manage the said grant'; * * * to sue and be sued; * * * to sell, convey, lease, or mortgage so much of the land grant or real estate under its control as aforesaid as is held in common; * * * to adopt and use an official seal; * * * to appoint judges and clerks of election at all elections herein provided for, subsequent to the first, and to canvass the votes cast thereat.” Purporting to act under § 9-106, the Board of County Commissioners of Rio Arriba County, New Mexico, undertook to call a special election to be held on April 2, 1951, for the purpose of electing five members as a board of trustees of the Tierra Amarilla Land Grant, and designated and appointed election officials, designated polling places, and instructed the secretary of the Board of County Commissioners to give notice of such election. Notice of such election was given. On March 26, 1951, the plaintiffs below, appellees here, owners of large areas of land within the boundaries of the grant, brought this action against the members of the Board of County Commissioners of Rio Arriba County seeking an injunction restraining them from proceeding further with such election, from canvassing votes at such election, and from issuing certificates of election. Jurisdiction is based on diversity of citizenship and the requisite amount in controversy. During all the period intervening between thé date of the confirmation of the grant and the action of the Board of County Commissioners on March 1, 1951, the grant had been managed and controlled as a private land grant and no action had ever been taken by anyone to elect a Board of Trustees to control and manage such grant. By its judgment, the trial court granted a permanent injunction as prayed for in the complaint. The duty of providing the mode for securing and establishing claims to Spanish and Mexican land titles and fulfilling the treaty of Guadalupe Hidalgo developed upon the political department of the government. Congress could either discharge that duty itself or delegate it to the judicial department. It was not until the Act of March 3, 1891, 26 Stat. 854, that Congress established a judicial tribunal for the adjustment and confirmation of claims under grants from the governments of Spain and Mexico of land in New Mexico. Prior to such Act, Congress reserved to itself the determination of such claims and by the Act of July 22, 1854, provided: “ * * * that the surveyor general for the Territory under the instructions of the Secretary of the Interior, should ascertain the origin, nature, character, and extent of all such claims, * * * and should make a full report on such claims, with his decision as to the validity or invalidity of each under the laws, usage and customs of the country before its cession to the United States; and that his report should be laid before congress for such action thereon as might be deemed just and proper, with a view to confirm bona fide grants, and to give full effect to the treaty of 1848 between the United States and Mexico.” In a series of opinions, beginning with Tameling v. United States Freehold Co., 93 U.S. 644, 23 L.Ed. 998, the Supreme Court held tfiat the action of Congress, when taken, was conclusive as to the validity and the character or nature of the grant, and was not subject to review by the Supreme Court of the United States or any other judicial tribunal. The case of Reilly v. Shipman, 8 Cir., 266 F. 852, involved the question of whether the Anton Chico grant in New Mexico was a private or community grant. Congress had confirmed the grant as a community grant. The court held that the character of the grant must be determined from the confirmatory act and that the courts were precluded from going behind the confirmation of Congress. To the same effect see Yeast v. Pru, D.C.N.M., 292 F. 598, 607. In Flores v. Bruesselbach, 10 Cir., 149 F.2d 616, 617, this court said: “Acting pursuant to the Act of Congress, approved July 22, 1854, 10 Stat. 308, the Surveyor-General of New Mexico recommended the confirmation of the Tierra Amarilla Grant to Francisco Martinez. The Grant was approved and confirmed to Francisco Martinez as Private Land Claim No. 3 by the Act of Congress, approved June 21, 1860, 12 Stat. 71. Congress thereby conclusively confirmed the title to the Grant in Francisco Martinez as a private land grant and its action is final and not subject to judicial review.” A like conclusion was reached with respect to the Tierra Amarilla Grant in H.N.D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744, 746-748. The recommendation of the Surveyor-General was that the grant should be confirmed to Francisco Martinez and that a patent therefor should issue to him. The recommendation was without condition or qualification. It clearly recommended confirmation of the grant to Martinez individually as a private land grant. By the confirmatory act, Congress confirmed the grant, without qualification or limitation, as recommended by the Surveyor-General. The confirmatory act of Congress is final and conclusive and this court may not go behind that act and determine the character or nature of the grant from the antecedent documents. Affirmed. . Tameling v. United States Freehold & Immigration Co., 93 U.S. 644, 661, 23 L.Ed. 998; Astiazaran v. Santa Rita Mining Co., 148 U.S. 80, 81, 13 S.Ct. 457, 37 L.Ed. 376; Yeast v. Pru, D.C.N.M., 292 F. 598, 605. . Yeast v. Pru, D.C.N.M., 292 F. 598, 605. . Astiazaran v. Santa Rita Mining Co., 148 U.S. 80, 82, 13 S.Ct. 457, 37 L.Ed. 376. . See, also, U. S. v. Maxwell Land Grant Co., 121 U.S. 325; 366-367, 7 S.Ct. 1015, 30 L.Ed. 949; Id., 122 U.S. 365, 370, 7 S.Ct. 1271, 30 L.Ed. 1211; Astiazaran v. Santa Rita Mining Co., 148 U.S. 80, 82, 83, 13 S.Ct. 457, 37 L.Ed. 376.

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?

COAL EXPORTERS ASSOCIATION OF the UNITED STATES, INC. and National Coal Association, Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Norfolk & Western Railway Company et al., Coastal States Energy Company, Atchison, Topeka & Santa Fe Railway Company et al., Nippon Steel Corporation et al., and Patrick W. Simmons, Intervenors. EASTERN COAL TRANSPORTATION CONFERENCE, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Norfolk & Western Railway Company et al., Coastal States Energy Company, and Patrick W. Simmons, Intervenors. Nos. 83-1629, 83-1633. United States Court of Appeals, District of Columbia Circuit. Argued March 14, 1984. Decided Sept. 18, 1984. As Amended Sept. 18 and Oct. 1, 1984. John Louis Oberdorfer, Washington, D.C., with whom Scott N. Stone, Robert Stauffer, and Garret G. Rasmussen, Washington, D.C., were on the brief, for petitioners Coal Exporters Ass’n of U.S., Inc. and Nat. Coal Ass’n in No. 83-1629. C. Michael Loftus, Washington, D.C., with whom David A. Sutherland, Washington, D.C., was on the brief, for petitioner Eastern Coal Transp. Conference in No. 83-1633 and intervenor Coastal States Energy Co. in Nos. 83-1629 and 83-1633. H. Glenn Scammel, Atty., I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, and Lawrence H. Richmond, Deputy Associate Gen. Counsel, I.C.C., Washington, D.C., and John J. Powers, III and John P. Fonte, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondents. J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., entered an appearance for respondent U.S.A. Robert Eden Martin, Chicago, 111., with whom G. Paul Moates and Vincent F. Prada, Washington, D.C., Richard W. Kienle, Roanoke, Va., Roland W. Donnem, Cleveland, Ohio, Richard B. Allen and Renee D. Rysdahl, Washington, D.C., and Em-ried D. Cole, Jr., Jacksonville, Fla., were on the brief, for intervenors Norfolk & Western Ry. Co. et al. in Nos. 83-1629 and 83-1633. Richard A. Hollander, Jacksonville, Fla., entered an appearance for intervenors Norfolk & Western Ry. Co. et al. in No. 83-1629. Gordon P. MacDougall, Washington, D.C., was on the brief for intervenor Patrick W. Simmons in Nos. 83-1629 and 83-1633. Noel Hemmendinger, Washington, D.C., was on the brief for intervenors Nippon Steel Corp. et al. in No. 83-1629. Milton E. Nelson, Jr. and Richard E. Weicher, Chicago, 111., Kendall T. Sanford, Denver, Colo., Thormund A. Miller and Louis P. Warchot, San Francisco, Cal., Stuart E. Vaughn, Chicago, 111., J. Thomas Greene, Salt Lake City, Utah, and Frederick W. Read, III, Omaha, Neb., were on the brief for intervenors Atchison, Topeka & Santa Fe Ry. Co. et al. in No. 83-1629. Robert B. Batchelder, Omaha, Neb., entered an appearance for intervenors Atchi-son, Topeka & Santa Fe Ry. Co. et al. Before WRIGHT, TAMM, and MIKVA, Circuit Judges. Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT. J. SKELLY WRIGHT, Circuit Judge. In this case we review a decision of the Interstate Commerce Commission to exempt all rail transportation of coal destined for export through United States ports from all provisions of the Interstate Commerce Act (ICA), as amended. Here, challenges are brought to the exemption decision by organizations of coal producers and other export coal shippers. This case began when, on March 30, 1981, the Norfolk & Western Railway Company, a major carrier of export coal, filed a petition with the ICC under the exemption provision of the Staggers Rail Act of 1980, 49 U.S.C. § 10505 (1982). The petition sought an exemption from regulation for all export coal traffic moving by rail through Atlantic and Gulf ports. In September 1981 ICC issued a notice of proposed exemption in which it requested comments on partial or complete exemption of export coal traffic moving through all United States ports. Notice of Proposed Exemption, Railroad Exemption—Export Coal, 46 Fed.Reg. 44529 (September 4, 1981), Joint Appendix (JA) 173. A large number of comments were received, including comments from a number of federal government entities. Railroads uniformly favored an exemption, and their position was supported by the United States Department of Transportation. Mine owners and other shippers opposed the exemption, as did a number of river carrier, port, and ocean carrier interests, the Departments of State and Commerce, the ICC’s Office of Special Counsel, and the United States Trade Representative. The Department of Justice took no position except to state that any such exemption must end antitrust immunity for exempted transportation. Ex Parte No. 346 (Sub-No. 7), Railroad Exemption—Export Coal, 367 ICC 570, 571 (1983) (hereinafter cited as Decision). On March 3 and 4, 1983 the Commission announced its decision to exempt export coal and advised that an opinion explaining the decision was being prepared. On June 9, 1983 the decision was issued. See note 1 supra. ICC Chairman Taylor filed a dissenting opinion. This case again focuses this court on the exemption provision of the Staggers Act, 49 U.S.C. § 10505 (1982), see Brae Corp. v. United States, 740 F.2d 1023 (D.C.Cir.1984) (reviewing ICC exemption of boxcar transportation); see also Simmons v. ICC, 697 F.2d 326 (D.C.Cir.1982); McGuinness v. ICC, 662 F.2d 853 (D.C.Cir.1981). In particular, this case requires that we examine two closely related ICC findings, each of which is required by Section 10505 as a precondition to ICC’s exercise of exemption authority. The first finding was that the regulation lifted in this exemption was “not necessary to carry out the [national rail] transportation policy of [49 U.S.C.] section 10101a[.]” 49 U.S.C. § 10505(a)(1) (1982). The second finding was that the regulation was “not needed to protect shippers from the abuse of market power.” See id. § 10505(a)(2)(B). The two findings are particularly intertwined in this case because petitioners, as shippers, most emphasize an element of national rail transportation policy that assures the maintenance of “reasonable rates where there is an absence of effective competition and where rail rates provide revenues which exceed the amount necessary to maintain the rail system and to attract capitalf.]” Id. § 10101a(6). Obviously, the policy reflected in that element substantially overlaps with the provision relating to “protectpng] shippers from the abuse of market power.” Because the ICC’s conclusions with respect to these legal standards reflect an unreasonable interpretation of their meaning, we must vacate and remand the exemption decision. Two interrelated challenges of petitioners will be discussed in this opinion. First, petitioners challenge the decision on the basis that the reasoning the ICC used to analyze the record before it and justify its action in relation to that record was arbitrary and capricious in violation of Section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982). Second, petitioners argue that the ICC’s interpretation of the Staggers Act’s exemption authority, as reflected in the reasoning of the ICC’s opinion, is an unreasonable one in relation to the statute’s wording and legislative history. The latter argument focuses on the meaning of the provisions protective of shipper interests, particularly 49 U.S.C. §§ 10101a(6) and 10505(a)(2)(B) (1982). Our analysis turns more on this latter contention, but the two arguments are closely interrelated. I. A General Overview of the Staggers Rail Act Before analyzing the reasoning of the ICC and the challenges to the decision, it is useful to review the decision’s statutory basis. The Staggers Rail Act of 1980 was a complex and comprehensive amendment to the ICA. The primary goal of the Act was to revitalize the railroad industry by reducing or eliminating regulatory burdens. Faced with railroad bankruptcies and the need to assure railroads of adequate revenues, Congress revamped the structure of railroad regulation in order to restore the industry to health. The Staggers Act was not, however, a simple deregulation of the railroad industry. Instead, it was a simultaneous recognition of two conditions. On the one hand, Congress recognized that in large parts of the rail industry heavily regulated rail carriers faced competitive conditions. In many cases these carriers competed with other modes of transportation which were unregulated and therefore able to be more innovative and flexible. Congress found that too often the ICA’s regulatory framework had become an unnecessary and crippling burden on the rail industry, and was an impediment to the industry’s ability to attract the capital necessary to meet-the nation’s future needs. On the other hand, however, Congress recognized that sometimes competition would be insufficient to protect the legitimate interests of shippers, small carriers, and the public, and thus that full deregulation of the industry was unjustified by industry conditions. The legislation that eventually became the Staggers Act was subject to significant modification during floor debate, with many of the successful amendments supported by legislators who feared that the bills that emerged from the committees might not afford adequate protection to shippers where they might otherwise suffer from abuses of market power. The resulting Act was a compromise that enjoyed overwhelming support. Although the legislation was without doubt a significant reduction in railroad regulation, as this court has said, “The legislation * * * did not strip the Commission of its power and duty to protect shippers from the unreasonably high rates of carriers with market dominance.” Burlington Northern Inc. v. United States, 661 F.2d 964, 973 (D.C.Cir.1981). Both before and after the amendments the bills’ sponsors agreed that the underlying approach of the legislation was to move toward much greater reliance on market forces rather than regulation to govern rail carriage, but to temper that move with a policy of retaining regulation where the market would be insufficient to protect shippers and the public from abusive railroad practices. The Staggers Act exemption provision is an “important cornerstone” of the overall statutory scheme in that it represents Congress’ determination that there be continuing evaluation of the appropriateness of regulation and continuing deregulation where consistent with the Act’s policies. H.R.Rep. No. 96-1035, 96th Cong., 2d Sess. 60 (1980). It is also a recognition that an administrative agency is better suited than Congress to evaluate on a continuing basis the specific need for the various aspects of the regulatory scheme in particular contexts. There is no doubt that the exemption provision was intended to give ICC very broad authority to eliminate unnecessary regulation. See American Trucking Ass’ns, Inc. v. ICC, 656 F.2d 1115, 1118-1120 (5th Cir.1981). Congress’ delegation of exemption authority to ICC, however, was a conditional one. It included guidelines that conditioned that authority so as to preserve the policy balance embodied in the Act. As the Conference Report specified, the task of the agency is “to determine where [there] can be deregulat[ion] consistent with the policies of Congress.” H.R.Conf.Rep. No. 96-1430, 96th Cong., 2d Sess. 105 (1980). The statue sets out these policies as conditions on the Commission’s exemption authority. Where ICC properly finds the conditions to be present, it has no choice but to grant an exemption. But in the absence of such findings ICC has no exemption authority. As we discussed, petitioners in this case challenge the reasoning used by the Commission with respect to two limits with which Congress conditioned the ICC’s exemption power: the element of national rail policy concerned with maintaining reasonable rail rates in the absence of effective competition, see 49 U.S.C. § 10101a(6) (1982), and the explicit limit on the ICC’s ability to grant exemptions from regulatory provisions “needed to protect shippers from the abuse of market power.” See id. § 10505(a)(2)(B). To understand how these issues arise in this case, we must turn to the Commission’s complex opinion, that opinion’s view of the export coal industry, and the Commission’s analysis of the legal significance of its factual findings. II. The ICC’s Findings Respecting the Export Coal Industry The ICC’s opinion is premised on the general finding that in the absence of regulation railroads would be sufficiently constrained by various forms of competition that they would not be expected to abuse any market power they might hold with respect to shippers of export coal. Four forms of competition were offered and discussed by the Commission: (1) the competition that U.S. railroads face because the coal they carry for export must compete in a world coal market where numerous countries actively produce and market coal for export; (2) the geographic competition that each railroad faces because the coal it carries must compete with coal produced in other regions of the United States; (3) the intramodal competition that each railroad faces because shippers can switch to other railroads to carry their coal; and (4) the intermodal competition that a railroad faces because shippers can switch to other modes of transportation, e.g., trucks, barges, or pipelines. Petitioners argue here and they and the dissenting chairman of the Commission argued below that these factors simply cannot be expected to effectively constrain railroad market power, that 95 percent of the U.S. coal mines producing for export are served by only one rail line and have no practical alternative method of shipping their coal to port, and that after deregulation these shippers will likely fall victim to the monopolistic practices of the railroads upon which they must rely. They challenge much of the data relied on by ICC and assert that much relevant evidence was ignored or miseharacterized to justify a result contrary to the clear weight of the evidence. The Commission counters that past pricing patterns support the hypothesis that railroad practices have been constrained by market forces and, more important, the Commission predicts how future behavior will be sufficiently constrained. The dispute is in part a dispute over ICC’s use of evidence in the record, but it is also a dispute over the legal question of how much constraint market forces must place on railroad behavior before the Commission can deregulate under the exemption provision. We will summarize ICC’s discussion with respect to each of the four competitive factors, as well as petitioners’ challenges to ICC’s discussion. We will then analyze ICC’s discussion of the significance of past railroad price behavior and, more important, its discussion of the legal significance of predicted future behavior. In this discussion ICC’s understanding of the statutory standards for exemption emerged. We vacate because it is clear to us that ICC misunderstood the content of the statute’s demands. A. Competition in the World Coal Market A large portion of the ICC opinion was devoted to explaining the position of U.S. coal in the world coal market. See Decision, supra, 367 ICC at 571-576. The analysis focused on the fact that “United States coal shippers face intense competition from major coal suppliers around the world[; that t]hese competitors are large, well organized, and sometimes government-supported firms in Australia, South Africa, Canada, Poland, and West Germany[; and] that suppliers in these countries have been quite effective in expanding their market shares in recent years * * *.” Id. at 572. The opinion painted a picture of a market in which nations aggressively market coal for use in Western Europe and the Far East for steel manufacture (called metallurgical coal or met coal) and generating electricity (called steam coal). Foreign purchasers initially evaluate suppliers “on the basis of quality and security of supply[,]” and because “[u]sually this process identifies several qualified suppliers]] purchasers reach a] final decision * * * almost invariably * * * on the basis of competitive price.” Id. at 573-574. The market is price sensitive in that any increase in the delivered price of U.S. coal will likely result in a decrease in the quantity demanded and an increase in the quantity of coal purchased from other exporting nations. Id. at 575. Because rail transportation costs are a significant component of the delivered price of export coal, the market’s price sensitivity, in ICC’s view, will limit the ability of railroads to raise rates. ICC admitted a number of factors that could arguably limit the degree of competition and create substantial foreign reliance on U.S. coal. For example, due to political instability, labor problems, export quotas, or insufficient capital, “[t]o some extent, each of the countries competing with the United States has been hampered in its efforts to expand production.” Id. at 574. The United States, in contrast, has been a dependable, long-term coal source that can thus demand a higher price. Id. at 576. Similarly, ICC admits that coal is not fungible: “There are certain requirements for particular uses because coal must possess the proper ash, moisture, sulfur, and carbon content, have the requisite volatility, and supply the necessary thermal units to be effective at a given site.” Id. at 573. These “specifications are more rigid for metallurgical” coal, which “must be of a very high quality[,]” id., and this has made “the United States * * * the chief supplier because of its high quality Appalachian coal.” Id. at 575. However, ICC went on to explain that these sorts of factors would not give the United States market power in the world market. It found that in spite of the fact that the U.S. is the most dependable supplier of coal and has substantial reserves, “the current development of [other] exporting countries and their plans for further expansion * * * leave little doubt that world coal supply will increase to meet any future increases in demand.” Id. at 574. It similarly found that the variability of coal qualities, the need for specified qualities for different uses, and the general high quality of U.S. met coal should not alter the conclusion that the U.S. cannot raise its coal prices without lowering its market share. ICC explained, “[I]t is clear that technological improvements in the production of coke and the manufacture of steel, as well as greater experience in blending coals of disparate characteristics to achieve a desired quality of coke, have lessened the restrictions on metallurgical coal and permitted the use of lower grade coal. This has allowed more suppliers into the market and greatly heightened worldwide competition for metallurgical coal sales.” Id. at 573 (footnote omitted). Moreover, any premium that U.S. coal can demand on the basis of quality or reliability of supply is already reflected in coal prices. Id. at 576. ICC’s analysis of the world coal market leads it to the conclusion that any increase in U.S. coal’s delivered price will lead purchasers to increase their purchases from other nations. The U.S. market share would thus decline. Although the Commission’s opinion contains no economic analysis of exactly how sensitive the world market would be to any U.S. price increases— indeed the discussion is quite general — it does conclude that the world market is “extremely sensitive to changes in the delivered price.” Id. at 574. At one point it describes the world “pricing arena” as one “in which the world delivered price of coal is highly constrained by competitive market forces[.]” Id. at 592. At another point it concludes that “[p]rice competition for export coal is such that even a 10-percent increase in the delivered price of American coal can be the difference between obtaining a market or losing it entirely.” Id. at 593. ICC Chairman Taylor in his dissent and petitioners in this court react to ICC’s analysis of the world market by challenging its relevance. Even if the world market is such that U.S. market share will decline as price increases, and indeed even if it would establish a world “price cap” above which market share would decline rapidly enough to reduce export coal profits, this would still not protect American shippers from abuses of market power by railroads. The issue is not whether American interests have market power in the world coal market, but whether one component of the American export picture, railroads, have market power in relation to another component, coal producers and other shippers. Even if there is a “price cap” that prevents raising the delivered price of export coal, a railroad could still use monopoly power to raise rates to coal shippers and appropriate to itself an unreasonable portion of the profits generated by each shipment. Because of the cap, a captive shipper would be forced to lower its share of the total coal revenues if confronted with a rail rate increase. Although the existence of a world price cap for delivered U.S. coal means that foreign consumers will not have to pay a higher price, it does not assure that the division of revenues between the railroads and U.S. shippers will be a reasonable one. See id. at 600-601 (Chairman Taylor, dissenting). B. Geographic Competition In addition to the world market’s constraining effect on rail pricing, ICC emphasized that geographic, intramodal, and in-termodal competition would also constrain the practices of deregulated railroads. ICC began its analysis of geographic competition with an explanation of the regional nature of U.S. export coal production. “Eastern” coal is that mined in the Appalachian coalfields. Until 1979 the export coal industry centered around shipments of Appalachian metallurgical coal, but since that year’s huge oil price increases steam coal export has also become important. Id. at 575. Eastern coal export includes both met and steam coal, and export production is mostly shipped to Europe. Id. at 577-579. “Midwestern” coal has a relatively high sulfur content and is mined in Ohio, Indiana, and Illinois. Id. at 577. ICC does not make clear to what use this coal is put when exported, but export production mostly goes to Europe as well. Id. at 579. “Western” export coal includes coal from Colorado and Utah, where “small though increasing amounts” are sent to the Far East through West Coast ports. Coal from Wyoming’s Powder River Basin, though there are vast tonnages, does not yet move for export because of its low BTU content. Prior to the 1979 oil price increase, virtually no western or midwestern coal was exported. By the third quarter of 1981 these coals made up about 12 percent of total export coal traffic. Generally, different rail carriers transport the export coals of different regions. In the East and Midwest two rail systems transport most of the export coal: the Norfolk & Western Railway Company and the Chessie System (which includes both the Baltimore & Ohio and the Chesapeake & Ohio). Conrail transports small amounts of eastern export coal. Other railroads operate in the West. Id. at 577-579. ICC’s belief that to some degree competition between regions would act as a restraint on railroad power is premised on the notion that a foreign purchaser could purchase American coal from another American region if a price increased as a result of a railroad’s raising prices. This would result in that railroad’s loss of business just as if the purchaser had switched to the coal of another country. Id. at 579. In support of its prediction the Commission cites the growth of western and mid-western export sales between 1979 and 1981 and the fact that during the same period the eastern railroads’ percentage share of nationwide export traffic dropped. As ICC concluded: Although generally western coal for export now moves only to the Pacific Rim countries and the primary export market for eastern and midwestern coal is in Europe, competition among the regions appears to be growing. * * * Id. The idea that regional competition could be a significant constraint on railroad practices was challenged below in Chairman Taylor’s dissent. He and the petitioners complained that, by ignoring the differences between coal qualities, volumes, and costs that result in part from geographic distance, the Commission found significance where none could reasonably be found: [Geographic and product competition within the United States is neither a counterbalance nor a solution to the problem. The coal producing regions of the U.S. do not compete with each other for most of the export market. According to the railroads’ own testimony, the vast coal reserves now available in the Powder River Basin (Montana and Wyoming) are a very long distance from port (over 1,000 miles) and the coal in such reserves is not of export quality, because its energy value is less than 10,000 BTU’s and it has a relatively high moisture content. [Midwestern coal] is not of met quality and has too much sulfur for all but a small part of the steam coal export market. Coal from Colorado, Utah, and New Mexico goes to Japan, where there appears to be some competition with eastern coal. However, these western reserves produce no met coal, and the delivered price to Japan of eastern steam coal is more than $20 per ton higher than the delivered price of [this western coal]. Therefore, competition between the two sources is minimal. Almost all of our steam and met coal exports to Europe move through Atlantic ports. Id. at 602 (Chairman Taylor, dissenting). C. Intramodal Competition Although Chairman Taylor and petitioners argue strenuously that export coal producers are largely captive to particular railroads and would thus be subject to railroad market power, the Commission found that intramodal competition (i.e., competition between railroads) would provide significant constraints on railroad practices. ICC did agree to many of the facts that underlay Chairman Taylor’s and petitioners’ arguments. In the East “very few mines are located on the lines of more than one railroad.” Id. at 577-578. And “[e]xport coal originated on the lines of an eastern rail carrier is generally transported in single-line service to that carrier’s own export coal facility.” Id. at 578. Deviations from single-line rail transit would bring into play joint or combination rates that would be substantially above the single-line rates. Id. at 577 n. 19. In the West, “[a]s in the East, individual mines are generally located on the lines of only one railroad.” Id. at 579. For a variety of reasons, in spite of these facts ICC found that intramodal competition would be a significant restraint on railroad practices. The Commission focused its analysis not on the individual mine but on an export coal “broker known as a transshipper.” Id. at 571. Most export shipments are arranged by transshippers, which are very large companies that enter contracts with foreign purchasers, put together orders from a number of U.S. mines, and then arrange transportation. The mines may be owned by the transshipper or by other companies. Id. Because of the great size of the leading transshippers, and more importantly because they are free to fill their orders from mines on several rail lines, they have substantial bargaining power with respect to rail rates. Id. at 572. Their bargaining power may be even further heightened because many are owned by larger conglomerates that “may in some instances be able to exert leverage over particular railroad rates” as a result of other rail shipments with the railroad. Id. ICC also argued that a large portion of export coal comes from mines owned by large coal companies, and that many of these companies own numerous mines located on different railroads. Id. at 578. Such a shipper’s ability to shift production among its mines might allow it to pit one railroad against another and thus create intramodal competition to reduce a railroad’s bargaining power. Id. Again, the dissent and petitioners bitterly dispute the Commission’s analysis and assert that the Commission failed to make certain inquiries necessary to its theory’s validity and ignored significant evidence that would have called its theory into question. For example, Chairman Taylor first argued that the Commission ignored significant reasons to doubt that transshippers could sufficiently constrain railroads. The premise underlying the argument that export contracts can be freely filled from mines on more than one railroad is also unrealistic. First, export tonnage is frequently a blend of coal from several mines, and many times, some mines are on one railroad, some on another. Second, for a shipper to be able to substitute tonnage from a mine on a second railroad, certain conditions must be met, i.e., the tonnage must be available and not already committed to a long-term contract, the extraction costs must be relatively the same, and the tonnage from the second mine must be technologically substitutable for the tonnage from the first. Shippers point out that the chance for such substitution does not usually occur, especially since the Chessie hauls primarily met coal and the N & W primarily steam coal.[] Third, there must be no price leadership, in that if one railroad raises its rates, the other will not, or at least not to the same level. It appears highly unlikely that all three of the foregoing conditions would coalesce, and even if they did, the advantage would accrue only to the particular shippers affected. The fact remains that 95 percent of the mines producing export coal are captive to the railroads that serve them. Id. at 602. He then argued that the Commission’s theory concerning the power of large shippers was similarly built on assumptions about the industry that ran counter to the evidence. The argument that big shippers can play one railroad against another (i.e., by substituting tonnage from mines served by more than one carrier) is still less convincing, even were one to ignore the problem of lack of substitutability [of particular coals]. When a shipper negotiates with a railroad, its corporate affiliation is less important than its access to alternate transportation. There are over 100 companies involved in the export coal trade. Although some of the shippers are large, with connections to still larger entities, only 24 percent of the mines served by the Chessie System and the N & W are controlled by operators having mines on both railroads. As for the West and the Midwest, there appears to be virtually no possibility of substitution between railroads at the present time. Id. at 602-603. D. Intermodal Competition The Commission also concluded that deregulated railroads would have their market power constrained by competition with other modes of transportation. Three other modes are mentioned in the opinion: trucks, barges, and pipelines. The Commission noted, however, that truck and barge movement of export coal would not be feasible in the West. Id. at 579. In support of its reliance on intramodal competition the Commission cites data showing that 13 percent of all coal production in the nation is transported by truck, id. at 578 & n. 21, which demonstrates that trucks can successfully compete for short-haul movements of coal. While mine-to-port traffic is usually long-haul, in the Commission’s estimate trucks can “create[] the real potential for intermodal truck-barge or truck-rail movement to compete with an all-rail movement.” Id. at 578. To the extent a mine has access to inland waterways, ICC reasoned, barges can offer an alternative to rail carriage. This can result from a truck-barge combination or from direct access to waterways. The Commission offered statistics showing that “during the first 9 months of 1981, 17 percent of reported tidewater and coastal port shipments (nearly all of which is for export) was handled by inland water carriers.” Id. The last form of intermodal competition mentioned by the Commission is coal-slurry pipeline movement. There is no discussion of this, but at two points competition from coal-slurry pipeline is referred to as being a “partial” or “potential” competitive restraint on railroad power. Id. at 589 n. 42, 594. Petitioners and the dissenter dispute most of the premises on which the Commission built the argument for intermodal competition. They first point out that, although the Commission refers to coal-slurry pipeline competition, no such pipeline exists in the United States, see id. at 601 (Chairman Taylor, dissenting), and petitioners argue that construction of one would require difficult-to-pass federal legislation. Petitioners challenge the Commission’s reliance on barge transport by arguing that ICC’s 17 percent estimate of coal transported at least in part by barge neglects to note a number of important points: (1) The figure was submitted by the railroads and conflicts with a previous ICC estimate placing the figure at seven percent, CEA/NCA brief at 18 n. **. (2) Much of the coal traffic that was transported in part by barge was initially carried from the mine by the same railroad that would otherwise have taken it to port via single-line route. A railroad that serves the origin exclusively would thus have power to determine the extent of export barge traffic movement and its cost. (3) Much of the barge-transported coal is high-sulfur midwestern coal, which offers little competition to lower-sulfur eastern steam or met coal. (4) Even if some mines are close enough to waterways to be able to use barges without initial reliance on a railroad, such a situation is quite rare. Their reaction to the Commission’s discussion of truck transport was to emphasize that coal is a commodity of sufficient bulk that “truck competition is not economically practical for large shipments or long distances.” Decision, supra, 367 ICC at 601 (Chairman Taylor, dissenting). E. The Commission’s Discussion of Rail Pricing History After discussing these forms of competition, the Commission turned to the history of rail pricing of export coal shipments and concluded that that history supported the conclusion that the competitive factors in fact had constrained railroad pricing. Two arguments were relied on. First, the Commission noted that no maximum rate complaints concerning export coal rates had been filed prior to 1980. “Moreover, the 1980 complaints appear to have been filed not because of any new railroad rate actions, but because section 229(b) of the Staggers Act provided that rates not challenged by a certain date would forever thereafter be conclusively presumed lawful.” Id. at 580. In contrast to the pattern for domestic coal transport, where the railroads sought to test and expand the bounds of the rate standards— thus generating many complaints — export coal carriers “were content to raise their rates only in connection with general rate increases for all traffic[,]” and “[ijndeed, the railroads ‘flagged out’ of several general rate increases on export coal.” Id. The Commission also compared the overall rise in coal prices and rail prices from 1969 to 1974, and from 1969 to 1981, and found that the comparisons showed “at a minimum that the unregulated shippers of export coal have considerable economic bargaining power in the contest over division of the economic rents from export coal. * * This history indicates that the pricing restraint of rail carriers was not the result of the exercise of regulatory power by this Commission, but rather resulted from the play of market forces.” Id. at 580-581. Again, the opponents of the decision have argued that the Commission has misused data and ignored relevant factors. They argue that the 1980 complaints concerning export rail rates have never been litigated by the Commission, were accompanied by evidence that rates were generating revenues 200%-300% above the railroads’ variable costs, and thus are strong evidence of railroad market power and cannot be so lightly dismissed by the Commission. See CEA/NCA brief at 33-34. Moreover, they challenge ICC’s history of railroad pricing because its figures emphasize pricing behavior before 1976 when rail rates were heavily regulated. Figures limited to the period since 1976, they say, would show significant railroad market power. ' III. ICC’s Predictions of Future Railroad Behavior and Its Analysis of the Exemption Provision’s Legal Standards The foregoing discussion summarizes ICC’s evaluation of data concerning competitive forces that would limit deregulated railroads’ ability to abuse market power or unreasonably raise rates. It also reflects the challenges made to this part of ICC’s analysis. ICC and the railroad intervenors have in their briefs and at oral argument contended that the Commission, as an expert agency, was entitled to make the factual findings and analyses that it did and based on those findings to conclude that an exemption could be granted because market forces would sufficiently constrain railroads. Petitioners repeatedly assert that ICC’s findings and analysis were counter to the evidence presented, ignored significant data and comments, and thus should be found arbitrary and capricious. The finding that market forces would sufficiently constrain railroad behavior, however, is only in

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 49. 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 49? Answer with a number.

UNITED STATES of America, Plaintiff-Appellee, v. Lester Mack BROWN, Jr., Andrew Michael Joseph Santillanes, and William Berl Brown, Defendants-Appellants. Nos. 85-1407, 85-1436 and 85-1439. United States Court of Appeals, Tenth Circuit. Feb. 27, 1986. Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and David N. Williams, Asst. U.S. Atty., with him on brief), for plaintiff-appellee. Edwin Macy, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant, Lester Mack Brown, Jr. Frank A. Baca, Albuquerque, N.M., for defendant-appellant Andrew Michael Joseph Santillanes. Shannon Robinson, Albuquerque, N.M., for defendant-appellant William Berl Brown. Before BARRETT and McKAY, Circuit Judges, and THEIS, District Judge. The Honorable Frank G. Theis, United States District Judge for the District of Kansas, sitting by designation. BARRETT, Circuit Judge. These consolidated appeals arise from the criminal convictions of Lester Brown Jr., Andrew Santillanes, and William Brown for violations of 18 U.S.C. § 2031, rape, and 18 U.S.C. § 2, aiding and abetting rape. The victim, Arleen Paul, was a 20-year old student at the Job Corps campus in Albuquerque, New Mexico. On the evening of June 9, 1984, Ms. Paul joined several fellow students in a nearby park to talk. Soon, another friend of Ms. Paul’s drove up with two men and invited several of those in the park to join them in the car and ride around. Ms. Paul accepted the invitation and got into the car. The two men already in the car were Lester Brown and Andrew Santillanes. Andrew Santillanes sat next to Arleen Paul in the back seat and started making sexual advances toward her which she rebuffed. (R., Vol. Ill, p. 151). After driving for awhile the group entered Kirtland Air Force Base. Lester Brown resided in military housing on the base. Lester Brown’s wife was a member of the military service although she was away on maneuvers on this particular evening. Upon arriving at Lester Brown’s house, the group encountered William Brown, Lester’s brother. A party of sorts began; several people were smoking marijuana, drinking beer, and watching television. Arleen Paul testified that she only partook of half a can of beer. During the party, Andrew Santillanes continued to pursue Ms. Paul. (Id. at p. 156). After a time, Ms. Paul asked one of her friends if they could leave. The friend indicated that she would have to talk with another girl about leaving. Ms. Paul, Lester Brown, and Andrew Santillanes then went outside to look at Brown’s dog. When Ms. Paul reentered the house, she found that her friends had already departed. The other girls left, thinking Ms. Paul was with a third Job Corps friend who had been with them in the house. This was not the case. Realizing that she was alone in the house with the three appellants, Arleen Paul went to the front door and attempted to leave. Lester Brown blocked her way. (Id. at p. 161.) Then Andrew Santillanes pushed Ms. Paul down the hallway to a back bedroom. He pushed her into the bedroom, closed the door, and demanded that she take off her clothes. A struggle followed and Lester and William Brown entered the room. (Id. at p. 165.) All three men were holding her down and Andrew Santillanes drew a knife and cut off Ms. Paul’s leotard. Andrew Santillanes then raped Ms. Paul after the other two men had left the room. Mr. Santillanes held Ms. Paul by the hair and slapped her about the face. Each man in turn returned to the bedroom and raped Ms. Paul. Andrew Santillanes forced Arleen Paul to engage in two additional acts of intercourse before she devised a plan of escape. Ms. Paul pled with Santillanes to let her go to the bathroom. After locking herself in the bathroom, Ms. Paul cut through the screen with a comb, climbed through the window, and ran to a neighbor’s house naked at about 5 a.m. The military police were summoned and, after speaking with Ms. Paul who told them three men had raped her, approached Brown’s house. The officers knocked and were allowed'to enter the house. (Id. at p. 80.) The officers immediately noticed marijuana and paraphernalia in the living room. William Brown was in the living room and one of the officers asked him to get Lester, who was asleep in the back bedroom. (Id. at p. 92.) Lester was called by William but did not respond. Lester was then awakened by his brother and one of the officers. On the way down the hallway to retrieve Lester Brown, a bloody bedspread and women’s clothing were noticed in one of the bedrooms. At that point the third man had not been located. The on-call Judge Advocate General (JAG) officer was telephoned, the situation was related to him, and the JAG officer indicated that probable cause to search existed. The base commander was then telephoned, the situation was conveyed to him by a military police officer under oath, and the commander orally authorized a search of the premises. The search was conducted and Andrew Santillanes was found hiding behind a freezer in the back room with a switchblade in his pocket. Soon thereafter, additional officers and the FBI arrived to interview witnesses and collect evidence. The appellants were tried jointly and convicted by a jury. Each appellant raises different issues on appeal. Lester Brown challenges the search of his home and claims that the evidence seized in the search should have been excluded. Andrew Santillanes and William Brown both argue that the trial court erroneously denied their motions to sever and grant them separate trials. Andrew Santillanes also contends that the trial court erred in admitting evidence of his prior convictions. William Brown contends that the trial court's failure to sentence him under the Youth Corrections Act was error. DISCUSSION A. Lester Brown challenges the search of his home and the evidence taken therefrom on the following grounds: (1) that the search should have been carried out in accordance with Fed.R.Crim.P. 41, and (2) that the search violated Lester Brown’s Fourth Amendment rights. The search was authorized and conducted in accordanee with Military Rule of Evidence 315. Lester Brown contends that because all of the suspects and the victim were civilians and participation by the FBI was involved that the requirements of Rule 41 should control rather than Military Rule of Evidence 315. Lester Brown argues that in spite of the fact that the incident took place inside military housing on a military reservation that military procedures should not have been used. Brown has recognized that it is a base commander’s duty to maintain the order, security, and discipline necessary to military operations. Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Furthermore, the base commander is responsible for all military property located on a military installation. United States v. Stuckey, 10 M.J. 347 n. 9 (1981). Because of the unique circumstances surrounding military bases, procedures have been adapted to fit the military system of justice, which, in a technical sense, are not identical to the procedures used in the civilian system of justice. Military Rule of Evidence 315 is the Armed Forces’ counterpart of Fed.R.Crim.P. 41. The military rule provides that if probable cause is required then “authorization to search” may be required. Authorization to search is defined as “[A]n express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person.” Mil.R.Evid. 315(b)(1). This “authorization to search” is the military equivalent of what is known in civilian parlance as a search warrant. Military Rule of Evidence 315 includes a definition of probable cause which is substantially identical to probable cause in non-military situations. The Rule specifies who may authorize searches: various “impartial” individuals. The Rule allows search authorization to be based on hearsay evidence. Mil.R.Evid. 315(f)(2). Probable cause under the Military Rule can be based on any or all of the following: 1) Written statements communicated to the authorizing officer; 2) Oral statements communicated to the authorizing official in person, via phone, or by other appropriate means of communication; or 3) Such information as may be known by the authorizing official that would preclude the officer from acting in an impartial fashion. Whenever feasible, the Rule requires the executing agent to notify the person whose property is being searched about the search authorization and its terms. An inventory of the items seized in the search is to be made and, when possible, furnished to the person. Mil.R.Evid. 315(h)(1) and (2). Upon comparison, the following elements of Fed.R.Crim.P. 41 demonstrate the similarity of the two rules. Fed.R.Crim.P. 41 calls for the issuance of a search warrant by a federal magistrate after the execution of affidavits establishing probable cause. Warrants can be issued upon sworn oral testimony if the circumstances dictate. If oral testimony is communicated over a telephone or by means other than in-person, a duplicate original is to be prepared by the person requesting the warrant and is to be read verbatim to the magistrate. The magistrate is also to transcribe an original warrant. Inventories are also to be executed and given to the person whose property was taken. Military Rule 315 and Fed.R.Crim.P. 41 are, in substance, very similar. In one respect, though, there is a divergence. The Military Rule allows one who seeks search authorization to present testimony without a simultaneous writing or transcription. The Military Rule also authorizes that permission to search may be given orally or in writing. Under the Federal Rules contemporaneous writings are necessary to facilitate a review if questions as to the propriety of a warrant should arise at a later time. If Lester Brown’s argument — that only the Federal Rules are applicable because of civilian involvement — has any merit, it is on this point alone. In reviewing these procedures, we must determine whether their use by the military police did any violence to Brown’s Fourth Amendment rights, for it is these rights that Rule 41 was designed to protect. Brown does not draw this court’s attention to any particular Fourth Amendment rights which were allegedly violated. He does not claim that the search was unreasonable; nor that the search was not supported by probable cause. (He does make such an argument indirectly, however, by asserting that because no testimony was put in written form, nothing supports the probable cause determination.) Furthermore, Brown does not assert that the base commander who authorized the search was less than the equivalent of a neutral and detached magistrate. The facts preclude Brown from contending that the testimony of the officer requesting the warrant was not put under oath by the base commander. Lester Brown points to no procedures which were used that prejudiced him in any way. This court has heretofore held that under military rules oral affidavits and oral authorization of search warrants without contemporaneous writings are free from any constitutional infirmity. Wallis v. O’Kier, 491 F.2d 1323, 1325 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974). In Wallis the court held, “There seems to be no doubt but that an express provision of the military law that probable cause could be shown by oral statements would be valid.” Id. Also, pertinent to the resolution of this issue is a finding of the District Court for the Eastern District of Virginia, “[Tjhat as long as the military respects the rights guaranteed by the Fourth Amendment’s prohibition against unreasonable searches and seizures, the military need not be bound by all of the procedural formalities that are imposed upon civilian law enforcement agencies.” United States v. Rogers, 388 F.Supp. 298, 301 (E.D.Va.1975). Here there was nothing unreasonable about the military’s procedure. After speaking with Arleen Paul who claimed she had been raped repeatedly by three men, the military police went to Brown’s house. When William Brown invited the military police officers into the house they immediately saw marijuana and drug paraphernalia. Inquiring about the whereabouts of the other two men, the police were told that Lester Brown was asleep in a back bedroom. The military police had William Brown try to rouse Lester. When he could not they walked down the hall to awaken him. While going down the hallway, the police observed a bloody bedspread and women’s clothing thrown askew in another room. The JAG officer on duty was called by one of the officers from Brown’s house. Under oath, the officer related to the JAG officer what he had found at the residence. The JAG officer felt that probable cause existed based on these facts: a naked, highly distraught woman was running through the street at an early hour of the morning claiming that she had been raped, the presence of the drugs, and the other incriminating information. The JAG officer directed the military police officer to call the commander of the base and relate the facts to him. The officer called the commander, retold his findings under oath, and the commander then gave oral authorization for a search. The search authorization described the premises to be searched and items to be seized with sufficient particularity and was reduced to written form later that day. These procedures were in accord with the Military Rule of Evidence 315. In conclusion, we hold that the procedures employed here did not violate Lester Brown’s Fourth Amendment rights. In evaluating the conduct of law enforcement officers, the standard against which that conduct is to be measured is, whether or not it comported with the Fourth Amendment. We hold that the evidence seized in the search of Lester Brown’s military housing was properly admitted. B. Two of the appellants, Andrew Santillanes and William Brown, contend that the trial court erred by failing to grant their motions for severance. They claim that the tremendous prejudice which resulted from trying all three men jointly could only have been cured by separate trials. Both contend that their defenses were irreconcilable, antagonistic, and mutually exclusive, mandating a severance. United States v. Crawford, 581 F.2d 489 (5th Cir.1978). The grant of a severance is not a matter of right but is contingent upon a showing of prejudice. Fed.R.Crim.P. 14. Such a determination is within the discretion of the trial court. United States v. Espinosa, 771 F.2d 1382, 1408 (10th Cir.), cert. denied, — U.S.-, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). When a defendant seeks reversal because of irreconcilable, mutually exclusive defenses, the defendant must demonstrate that acceptance of one party’s defenses tends to preclude the acquittal of the other. This showing requires that the guilt of one defendant tends to establish the innocence of the other. United States v. McClure, 734 F.2d, 484, 488 n. 1 (10th Cir.1984). Such a showing of definitive prejudice was not made in this ease. At trial, Andrew Santillanes testified that each time that he had intercourse with Ms. Paul that it was consensual. Lester Brown also claimed that Ms. Paul willingly had intercourse with him. William Brown denied any sexual contact with Arleen Paul. While two appellants claimed the defense of consent, all three also acknowledged that someone must have raped Ms. Paul and, therefore, one of the other appellants must have been guilty. However, each appellant had no knowledge about what the other appellants did to or with Ms. Paul. Each man went into one of the back bedrooms by himself to be with Ms. Paul. None of the appellants knew what transpired between Ms. Paul and the other appellants because they were not present. Accordingly, while Andrew Santillanes could, for example, testify that Arleen Paul consented to have sex with him, Santillanes could not testify as to what transpired between Arleen Paul and William Brown or Lester Brown. The jury had to weigh the testimony of each appellant against that of the victim. Ms. Paul was the only witness to testify relative to her association with each appellant. The testimony of each of the appellants was not mutually exclusive as against that of the other appellants inasmuch as an acquittal of one appellant would not automatically require the jury to return a verdict of guilty against the other two. If the jury had believed any of the individual appellant’s accounts it could have acquitted that appellant. The jurors would not have been required to render guilty verdicts against the other appellants if they had acquitted one. The jury could have returned verdicts of acquittal for all of the appellants if the jury had believed them. Issues of credibility existed between each appellant and Ms. Paul, not between the appellants. Even though the testimony of the appellants was irreconcilable with the testimony of Arleen Paul, the testimony of the appellants was not irreconcilable one with the other. Irreconcilable testimony with the victim does not establish a cause for severance. The conflicting interests of the appellants did not create a dilemma that could have been resolved only by trying them separately. Conflicting interests or hostility between defendants tried jointly is not sufficient cause, per se, for separate trials. Actual prejudice must be demonstrated. The trial court properly denied the appellants’ motions for severance. The appellants have failed to demonstrate any prejudice as a result of the denial of severance; without such a showing, no reversal is mandated. United States v. Long, 705 F.2d 1259, 1262-63 (10th Cir.1983); United States v. Puckett, 692 F.2d 663 (10th Cir. 1982) cert. denied, 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 (1983). The appellants’ claim that severance would have improved their chances for acquittal is not sufficient cause. United States v. Strand, 617 F.2d 571 (10th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980). We hold that denial of severance was not an abuse of the trial court’s discretion. C. Andrew Santillanes also contends that the trial court erred in admitting evidence of his prior convictions under Fed.R.Evid. 609(a). This rule provides: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant____ Santillanes had a prior conviction for burglary and at the time of trial he was on parole. Santillanes filed a pretrial motion indicating that he intended to testify wherein he sought to exclude evidence of this conviction. A ruling on the motion was deferred by the trial court. The court requested that the prosecutor approach the bench before venturing into the prior convictions. The prosecutor did not, however, elicit this evidence. Instead, counsel for one of the other appellants elicited Santillanes’ prior convictions from him without any forewarning to the court. This forced the trial court to rule on the admissibility of the prior conviction evidence after the evidence was before the jury. Santillanes objected to the evidence on the ground that it was improperly admitted; he immediately renewed his motion for severance and made a motion for a mistrial. The court overruled his objection and denied his motions. Santillanes argues that the evidence was improperly admitted. Santillanes claims that the “after the fact” ruling by the trial court impermissibly prejudiced him. The court did, however, weigh the probative versus prejudicial value of the evidence. Immediately after the evidence was presented to the jury, the following exchange occurred: THE COURT: I was a little surprised when the prior conviction came in at that point, but having come in, I was going to admit it anyway, from what I’ve heard of the case, and it is a property crime isn’t it? PROSECUTOR: Yes sir. THE COURT: A burglary offense which, in my judgment, that weighs somewhat on credibility and truthfulness and is not the same type of violent offense as this one. So I think it is probative enough, and on credibility, that the harm as done to the defendant is not so great that probative value is outweighed. (R., Vol. IV, p. 193-194). From these remarks, it is evident that the trial court would have admitted the prior conviction regardless of which party had offered it. The trial court indicated on the record that the prior conviction was probative of Santillanes’ truthfulness. Admission of this evidence was proper as was denial of the motions. D. William Brown contends that because of his age, long history of alcoholism, and low I.Q. he should have been sentenced under the Youth Corrections Act, 18 U.S.C. § 4216. The Act confers upon the sentencing judge the power to determine whether the offender would benefit from treatment under the Act. During sentencing, the court entertained psychological test results, family history, and other information designed to show William Brown’s suitability for sentencing under the Youth Corrections Act. However, the trial court concluded that there would be no benefit from using the Act in his case. (R., Vol. VI, P-20.) An appellate court generally is not empowered to review sentences. United States v. Martinez, 749 F.2d 601, 607 (10th Cir.1984). If sentences do not exceed the maximum limits, they are legal. Unit ed States v. Perry, 709 F.2d 1348, 1349 (10th Cir.1983). In this case, any term for years or life imprisonment was authorized under 18 U.S.C. § 2031. If William Brown believes that he is entitled to relief, he may seek that relief from the trial court pursuant to Fed.R.Crim.P. 35. WE AFFIRM.

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.

BROWN v. WINSTON et al. No. 10918. United States Court of Appeals District of Columbia Circuit. Argued Jan. 16, 1952. Decided May 29, 1952. J. E. Bindeman, Washington, D. C., for appellant. Henry E. Wixon, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom Vernon E. West, Corp. Counsel, and Chester H. Gray, Principal Asst. Corp. Counsel, Washington, D. C.., were on the brief, for appellees. Oliver Gasch, Asst. Corp. Counsel, Washington, D. C., also entered an appearance for appellees. Before CLARK, PRETTYMAN and BAZELON, Circuit Judges. PRETTYMAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Columbia in a case which was before that court upon a petition for review of a decision of the Real Estate Commission of the District of Columbia. Appellant Brown was a licensed real estate broker. In the course of a transaction which involved the sale of real estate, he prepared a written contract, which was signed by the purported vendor, one Rosa Jones, and by Brown with the name “Pearl Malcom” as the purported purchaser. Pearl Malcom was a relative of appellant from whom he held power of attorney. Immediately thereafter Brown procured a notary public, one Robert Fribush, who certified on the contract that Rosa Jones and Pearl Malcom personally appeared before him and acknowledged the contract to be their act and deed. Neither Rosa Jones nor Pearl Malcom personally appeared before the notary or acknowledged to him that the contract was their act and deed. Brown placed the notarized contract on record in the Office of the Recorder of Deeds, where it constituted a cloud on the title to the property. It could not have been recorded without notarization. The title to the property was of record in the names of Rosa Jones and Lee Pluffmafi, her son. Huffman was not in the City at the time the contract was signed, and upon his return he refused to sign it. Brown wrote Mrs. Rosa Jones a letter, which recited that he had learned that her son did not want to sell the property. He told Mrs. Jones: “Unless you do carry out your contract, we shall prevent you from selling the house to anyone at any time, because you have already entered into a contract to sell it If you have in mind to sell this property to somebody else, you might as well forget about it, because you won’t be able to do so. “It will be to your advantage to close this deal in accordance with the contract; otherwise you’ll be stuck with the property for the rest of your life. * * * ” A charge was made before the Real Estate Commission that Brown “Demonstrated such unworthiness or incompetency to act as a real estate broker or a business chance broker as to endanger the interests of the public in violation of paragraph (h) of Section 8 of said Act of Congress.” Three specifications under the charge described the securing of Fribush to notarize the signature of Rosa Jones to the contract, the recording of the contract with knowledge that the signatory had not been before the notary, and the recording with knowledge that title was not in the name of Rosa Jones alone but was in the names of her and Lee Huffman. After public hearing the Commission made findings of fact and conclusions of law and suspended Brown’s license as a real estate and business chance broker for a period of sixty days. The proceeding in the District Court followed. That court entered summary judgment for the defendant members of the Real Estate Commission. We find no error in the judgment' of the District Court, and it is therefore Affirmed. . 50 Stat. 794 (1937), D.C.Code § 45-1409 (1940). . 50 Stat. 793 (1937), as amended, D.C.Code § 45-1408(h) (1940).

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?

GEORGE H. EVANS & CO. v. UNITED STATES et al. No. 9559. Circuit Court of Appeals Third Circuit. Argued March 16, 1948. Decided Aug. 3, 1948. Edward J. Mingey, of Philadelphia, Pa., for appellant. Walter A. Gay, Jr., of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellees. Béfore BIGGS, O’CONNELL, and KALODNER, Circuit Judges. O’CONNELL, Circuit Judge. The facts which gave rise to the instant complaint are set forth in United States v. City of Philadelphia, D.C.E.D.Pa.1944 56 F.Supp. 862, affirmed by this court at 3 Cir., 1945, 147 F.2d 291. In brief, plaintiff contracted with the Philadelphia Housing Authority, a public body corporate acting as Contracting Officer for the Federal Public Housing Authority, to construct several buildings as part of the “Passyunk Homes” project. Eight days later, the Department of Health of the City of Philadelphia advised the Philadelphia Housing Authority by letter that the Philadelphia Housing Authority would have to file plans and secure permits for the construction of the buildings. About six weeks thereafter, plaintiff entered into a sub-contract with the Diletto Company for the performance of certain plumbing work in the buildings which plaintiff had contracted to erect. One month subsequently, the Department of Public Health of the City of Philadelphia ordered the Diletto Company to stop all plumbing work until compliance was had with the terms of Plumbing Supervision, adopted under the authority of the Act of Assembly of the Commonwealth of Pennsylvania, approved June 7, 1911, 53 P.S.Pa. § 4071 et seq. The United States, acting through its agents, thereupon (a) ordered plaintiff to stop performance of the plumbing work until the agents could effect a settlement with the City of Philadelphia; (b) further directed plaintiff to proceed with the rest of the work involved in the construction of the buildings; and (c) sought and eventually obtained a preliminary injunction restraining the City of Philadelphia from interfering with the construction. Plaintiff did proceed, under protest, with the construction other than the plumbing. Plaintiff alleges that the course thereby prescribed was “abnormal, unusual and unworkmanlike,” and caused a delay of 213 days in the construction, with a consequent increase of expense in the sum of $10,860.-12. The instant complaint, which appends the contract as an exhibit thereof, seeks payment of this additional expense allegedly incurred. In the court below, defendant moved to dismiss the complaint, on the grounds that “the party defendant in this action is the United States of America and plaintiff claims a sum in excess of any claim which may be 'litigated in this Court,” and also because the complaint “fails to state a claim against defendant upon which relief can be granted.” The district judge, while indicating that there was neither a misjoinder of parties nor a claim beyond the jurisdictional limit of the court, nevertheless dismissed the complaint on the theory that an action for breach of contract could not be spelled out of compelling plaintiff to proceed with the other construction while the plumbing litigation was pending. Ferguson v. Union Nat. Bank of Clarksburg, W.Va., 4 Cir., 1942, 126 F.2d 753, which involves a suit against the Federal Housing Administrator, specifically holds that “the jurisdiction of a United States District Court to entertain a suit against governmental agencies and corporations is not limited by the provisions of the Tucker Act, 28 U.S.C.A. §§ 41(20), 250 et seq.” 126 F.2d at pages 756-757. While it is true that the defendant in the Union National Bank case was the Administrator, whereas the agencies themselves are two of the defendants in the case at bar, it is clear that, in cases like that before us, the power to sue and be sued properly includes the agency as well. See Keifer & Keifer v. R. F. C., 1939, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, and F. H. A. v. Burr, 1940, 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724. On the strength of these cases, we agree with the court below that, as to the agency defendants, plaintiff was not dependent upon the Tucker Act, 28 U.S.C.A. § 41(20), as the basis of jurisdiction, and that consequently the $10,000 limitation of the Tucker Act is here inapplicable. As to the United States as a party defendant, the cases cited above reiterate the principle that the federal government may not be sued without its consent. Such consent cannot be deemed to be here extended by the Tucker Act, since the complaint seeks a sum in excess of the $10,000 limitation imposed by that Act. Therefore, the motion to dismiss on the ground of lack of jurisdiction, as to the United States, should have been granted. It is urged that the United States, and not the agency defendants, is really the defendant in the case before us. With this contention we cannot agree. While the complaint might have been more artistically drawn in this respect, we believe it does fairly set forth that it was the allegedly improper orders of the agency defendants which caused plaintiff to incur such additional expense as plaintiff here seeks to recover. To accord sovereign immunity to the acts of the agents would be to induce the very result which was rejected in F. H. A. v. Burr, supra. It therefore becomes incumbent upon us to examine the contract in question to determine whether it justified the action oi the agency defendants in compelling plaintiff to proceed with construction other than the plumbing. Like the court below, we agree with plaintiff that a “constructive condition of cooperation” may appropriately be implied in construction contracts, where consistent with the terms of such contracts. If, however, a contract on its face discloses a legal provision which specifically contemplates the situation which did arise; and if the provision sets out the responsibility of each of the contracting parties in that eventuality, there can be no inference to the contrary. The contract here involved, which is a standard form of government contract, contains the following Article:- 10(b) “The Contractor is cautioned that when it is his responsibility to make connections to the city or other utility lines or services he shall ascertain whether or not the work, as shown on the drawings or specified, varies from the requirements of the city or utility company to the extent that permission to connect with their lines or services is or may be refused. If such permission is or may be refused, the Contractor shall immediately notify the Contracting Officer to that effect, and shall not proceed further with the part of the work affected until instructed to do so by the Contracting Officer. In the event that changes in the drawings or specifications are necessary to meet the situation, the Contract price will be adjusted, as provided in Article 3 above.” (Emphasis supplied.) Let us examine this Article in the light of the surrounding circumstances. The government was attempting rapid construction to meet a highly critical need which threatened the success of the war effort. Compliance with the myriad of local rules governing construction would have meant serious delay; hence Congress authorized the Federal Works Administrator to perform his duties “without regard to * * * Federal, State, or municipal laws.” 42 U.S.C.A. § 1521. Practical considerations prevented the Administrator from entertaining any hope so sanguine as to expect no show of resistance from the municipalities wishing to enforce their ordinances. In fact, the City of Chester, Pennsylvania, showed its intent to enforce its local regulations almost five months before plaintiff entered into the contract here in question. See United States v. City of Chester, 3 Cir., 1944, 144 F.2d 415, 417. With this background of experience, the agencies cautioned plaintiff that, if the requirements of the City of Philadelphia varied from those set forth in the contract, opposition from the city authorities was possible; that permission to connect lines and services might be refused; that delay in completing that part of the work might ensue; and that the contract price would be adjusted only in the event that changes in the drawings or specifications were necessary to meet the situation. It was incumbent upon plaintiff to consider this condition just as it calculated all other factors of cost before entering into the contract. In the course of events, the city did refuse permission, and plaintiff did receive instructions to proceed on all work save that portion in controversy. Although the agencies had not so committed themselves in the contract, they successfully sought an injunction preventing the city from imposing its plumbing requirements upon the contractor. Consequently, we have no basis for inferring (nor does plaintiff allege) that changes in drawings or specifications, the lone basis for adjustment of the contract price which this Article affords, were necessitated. Assuming, as we must on a motion to dismiss, that plaintiff incurred expenses beyond those which plaintiff had expected, because of the objections of the city to the plumbing specifications, we nevertheless hold that Article 10(b) of the contract bars recovery of any additional sum on that ground. Warned in advance of an element which might lead to increased costs, plaintiff cannot obtain legal relief because the possibility did materialize. Cf. Ross Electric Const. Co. v. United States, Ct.Cl., 1948, 77 F.Supp. 749, 750 and Comp.Gen. Dec. B-73813, dated June 22, 1948, 17 L.W. 2015-2016. Under the circumstances, we are impelled to the conclusion that Article 10(b) of the contract, which has been pleaded as part of the complaint, affirmatively eliminates the cause of action which plaintiff here asserts. The judgment of the court below, dismissing the complaint, must accordingly be affirmed. The status of the Federal Public Housing Authority and the Philadelphia Housing Authority is described succinctly in United States v. City of Philadelphia, D.C.E.D.Pa.1944, 56 F.Supp. 862, 863, as follows: “1. The Federal Public Housing Authority is an agency and instrumentality of the United States, created by Executive Order No. 9070, February 24, 1942, 50 U.S.C.A.Appendix, § 601 note, pursuant to which Order it administers the functions, powers and duties, of the Federal Works Administration, under the Act of Congress of October 14, 1940, c. 802, 54 Stat. 1125, as amended, 42 U.S.C.A. § 1521, known as the ‘Lanham Act.’ “2. The Philadelphia Housing Authority is a body politic and corporate, created under the Housing Authorities Law of the Commonwealth of Pennsylvania of May 28, 1937, P.L. 955, 35 P.S.Pa. § 1541 et seq., and acts as agent of the United States of America, through the Federal Public Housing Authority, in the construction of housing projects under the provisions of the Lanham Act.” The authority of the Philadelphia Housing Authority to act in-this matter is not in issue. See 42 U.S.C.A. § 1545 and 35 P.S.Pa. 1550(g). Congress at one time or another provided for three housing bodies, the similarity of whose names can create confusion: (a) The Federal Housing Administration, created by the National Housing Act of 1934, 12 U.S.C.A. § 1701 et seq., operated principally in the field of housing insurance. This was the agency involved in the Burr and Union National Bank cases. The complaint of plaintiff erroneously cites this statute as that under which the case at bar arises. (b) The United States Housing Authority, created by the United States Housing Act of 1937, 42 U.S.C.A. § 1401 et seq., was established to furnish low-rent housing. (e) The Act of October 14, 1940 (“Lanham Act”), 42 U.S.C.A. § 1521 et seq., aimed to supply defense housing. These three agencies, along with others, were consolidated into the National Housing Agency by Executive Order No. 9070, 50 U.S.C.A.Appendix, § 601 note. The National Housing Administrator, head of this new organization, was granted the powers of the heads of the consolidated agencies. Prior to this time, the Federal Plousing Administrator could “sue and be sued in any court of competent jurisdiction,” 12 U.S.C.A. § 1702; the United States Housing Authority was to “sue and be sued in its own name,” 42 U.S.C.A. § 1405(b); and the Federal Works Administrator “with respect to any property acquired or constructed under the provisions of subchapters II-IV,” was authorized “to deal with, maintain, operate, administer, and insure” and also “to pursue to final collection by way of compromise or otherwise, all claims arising therefrom.” 42 U.S.C.A. § 1544. In United States v. City of Philadelphia, D.C.E.D.Pa.1944, 56 F.Supp. 862, the forerunner of the instant case, the district judge made the following finding of fact: “12. The plans and specifications for the aforesaid buildings at Passyunk Homes do not comply with tho requirements of the Plumbiug Code for cities of the first class of the Commonwealth of Pennsylvania * * * and the rules and regulations of the Board of Health and the Board of Plumbing Supervision

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?

LUX ART VAN SERVICE, INC., a California Corporation, Appellant, v. Art POLLARD, Appellee. No. 19397. United States Court of Appeals Ninth Circuit. April 20, 1965. James Richmond, Chandler, Tullar, Udall & Richmond, Tucson, Ariz., for appellant. Burt Haberman, Johnson, Darrow, D’Antonio, Hayes & Morales, Tucson, Ariz., for appellee. Before JERTBERG, KOELSCH and BROWNING, Circuit Judges. KOELSCH, Circuit Judge. This is a diversity case, commenced and prosecuted in the United States District Court by Art Pollard against Lux Art Van Service, Inc., (Lux) to recover damages for the death of his horse “Chinchilla” which occurred during shipment by Lux. Trial to the court, sitting without a jury, resulted in judgment for Pollard in the amount of $25,000. Lux has appealed. Pollard raises quarter horses for racing. His ranch is located in southeastern Arizona, near Tucson. Lux is a common carrier, duly certified by the Interstate Commerce Commission to transport by motor truck in interstate commerce livestock other than ordinary. Chinchilla was an outstanding brood mare. In January, 1962 Pollard took her from his ranch to the stud farm operated by Vessels Ranch, Inc. near Los Alamitos, a small town in southern California. He had taken other mares there to be bred and it was his regular practice to transport them both ways, using his own equipment and personnel. During their stay, which varied from three to six months, the mares were in the care and under the exclusive control of Vessels. When they were well in foal, Vessels so advised Pollard who then fetched them himself. However, in this instance, Vessels did not notify Pollard, but instead made arrangements with Lux to return Chinchilla. Shortly before noon on July 14, 1962, a Lux truck, operated by John Depew and an assistant, both Lux employees, came to the Vessels farm. Attached to the truck was a large van type trailer, entirely enclosed except for ventilating slits on either end and at intervals along the sides. Inside, the trailer was partitioned into three rows of box stalls, three in each row. Chinchilla was put in the center stall in the first row. The truck and trailer then proceeded on to two neighboring farms, where additional horses were loaded. By 10:30 that evening the truck had reached a point beyond San Diego and was traveling eastward in the vicinity of El Centro when the driver heard an unusual commotion in the trailer. Upon investigating, he discovered that, although the other five horses appeared to be normal, Chinchilla had collapsed in her stall. She was immediately removed from the trailer and a local veterinarian, John C. Pace, was summoned. He arrived soon afterward, but by 11:00 o’clock Chinchilla was dead. Pollard couched his complaint in two alternative counts; in one he based the claim on negligence and, in the other, on conversion. The district judge predicated recovery on negligence. He found that Chinchilla was “in apparent good, sound condition when accepted by the defendant for shipment * * *; [t]hat at all times subsequent to the delivery of said mare to the defendant, defendant was in sole, exclusive and absolute custody * * * and possession of [her] * * * ; that the trailer in which the mare “Chinchilla” was transported by the defendant was improperly and inadequately ventilated for shipping a live animal in the middle stall of the forward compartment of said trailer during the prevailing hot weather in the near desert area of southwest California * * * ” that the defendant “failed to periodically water the mare * * * so as to counteract the debilitating effects of overheating of the mare * * *” and that as a result she died of heat exhaustion. Lux contends that there was no substantial evidence to show either that its trailer was in any way unsuitable to transport horses like Chinchilla, or that its employees neglected or improperly cared for her during the trip. It makes a very persuasive argument. The evidence adduced by Pollard on the issue consisted of the testimony of three witnesses, each of whom was allowed to state generally that, in his opinion, a van type trailer of the kind used by Lux did not provide adequate ventilation to safely maintain horses confined inside during hot weather. Lux points out this testimony was all objected to; that the witnesses candidly conceded that they had never used or been concerned with such trailers; that they had no knowledge of their construction, and knew nothing of the manner in which air was circulated in them. Thus, it is doubtful whether their testimony should have been received. In addition, the evidence was that Lux had periodically offered the horses water enroute. However, in this instance, we need not decide whether Pollard had adduced sufficient evidence of specific acts of negligence. The formal findings do enumerate several such acts, in addition to the general finding of negligence, but the judge made it clear that he also relied upon the rule of evidence commonly referred to as the Doctrine of Res Ipsa Loquitur, to reach the ultimate factual conclusion. And circumstantial evidence satisfying the requirements of the doctrine affords ample support for a finding of negligence. Nor is the questioned proof of specific acts of negligence in this case fatal to the doctrine’s application. The rule, or doctrine, as generally expressed is: * * when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” San Juan Light & Transit Co. v. Reguena, 224 U.S. 89, 98-99, 32 S.Ct. 399, 56 L.Ed. 680 (1912). See 9 Wigmore, Evidence § 2509 at p. 377 (3d ed. 1940). In this milieu, we conclude that resort to the Doctrine was not unwarranted. Dr. Pace testified that the weather was hot, “ninety-five to a hundred.” He diagnosed Chinchilla’s condition as heat exhaustion and gave that as the cause of her death. The court’s finding was to that effect. In addition, Dr. Pace, and several other experts, explained (and their testimony was uncontradicted) that heat exhaustion is brought on by keeping a horse in unduly confined quarters during hot weather, not supplying it with sufficient water, or otherwise failing to keep the animal cool. They also gave testimony, the substance of which was that with proper care, suitable facilities and adequate provision for watering, a horse could be hauled overland in a trailer without suffering any ill effects, regardless of weather conditions. We are fully aware that the doctrine does not ordinarily apply in situations where an animal sustains some physical injury or becomes sick while in possession of a carrier. This exception is based “on the peculiar propensity of animals to injure themselves and each other,” [Missouri Pac. Ry. Co. v. Elmore & Stahl, 377 U.S. 134, 139, 84 S.Ct. 1142, 1146-1147, 12 L.Ed.2d 194 (1964)] and the likelihood that the disease was incipient when the carrier received the animal for shipment. Vaughn v. St. Louis-San Francisco Ry. Co., 223 Mo. App. 732, 15 S.W.2d 901, 906 (1929); Rudy v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 5 Wis.2d 37, 92 N.W.2d 367, 370 (1958). Here, of course, we are not concerned with a death resulting from external injury, and the evidence of sickness — if heat exhaustion may be so classified — all points to the conclusion that the condition was not present in any degree whatever when Lux loaded Chinchilla, but instead commenced sometime afterward while she was riding in the van through the hot desert. She had been examined by a veterinary immediately prior to the trip and certified as being in good health, free of contagious disease, and eligible to be shipped from California into Arizona. But entirely aside from that fact, there was evidence that the onset of heat exhaustion is very rapid after an animal has been exposed to an inducing condition; that two hours is “a long time.” And Dr. Pace opined that Chinchilla had been exposed to excessive heat “about an hour or close to that” before he saw her. At the latter time, she had been in Lux’s exclusive possession for upwards of 10% hours. The next point presents a more difficult problem. Lux alleged, by way of affirmative defense, that in any event his liability for the loss was limited to $150.00, that being the value declared by the Vessels Ranch in the Bill of Lading which one of the Vessels employees signed. The cost of transportation was based upon that figure and it appeared that Vessels had not requested that the horse be hauled at any of the higher rates available to shippers who desired greater protection. At the trial Lux took the position that Pollard had constituted Vessels Ranch his agent to ship Chinchilla. However, the trial judge decided otherwise and held that Pollard was not bound by the limiting provision in the shipping agreement. We agree. The several bases upon which, and the reasons why, a principal is bound by the acts of an agent are clearly and concisely set out in the following extract from Law v. Stokes, 90 Am.Dec. 655, 656-657 (N.J.1867): “A principal is bound by the acts of his agent within the authority he has actually given him, which includes not only the precise act which he expressly authorized him to do, but also whatever usually belong to the doing of it or is necessary to its performance. Beyond that he is liable for the acts of the agent within the appearance of authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. For the acts of his agent, within his express authority, the principal is liable, because the act of the agent is the act of the principal. For the acts of the agent, within the scope of the authority he holds the agent out as having, or knowingly permits him to assume, the principal is made responsible; because to permit him to dispute the authority of the agent in such cases would be to enable him to commit a fraud upon innocent persons. In whichever way the liability of the principal is established, it must flow from the act of the principal. And when established, it cannot, on the one hand be qualified by the secret instructions of the principal, nor on the other hand be enlarged by the unauthorized representations of the agent.” Lux does not contend that Pollard had expressly requested Vessels Ranch to return Chinchilla to him or have her returned by someone else. Indeed, it appears that Pollard was entirely unaware of Vessels’ action. Nor does the evidence require the conclusion that such authority existed because of a past course of dealing between Pollard and Vessels, or some general practice commonly followed by those engaged in the business of breeding horses. Rather, as Lux states in brief: “What defendant does contend is that plaintiff, by placing his mare temporarily in the exclusive control of vessels Ranch, necessarily vested his bailee with apparent authority to return the mare to its owner and, for the purpose of effecting such shipment, to enter into a contract binding upon the owner.” Accurately speaking, “apparent authority” is not authority at all, but is merely a power to affect the principal’s affairs. As already noted, it arises not by authorization in the consensual sense, but from the principal’s negligent omission or his acquiescence in the agent’s activities. See 1 Mechem, Agency, §§ 720-726 (1914). The law gives to the latter the effect of representation to the party dealing with the “agent” that the “principal consents to have the act done on his behalf.” Restatement, Agency 2d § 27 (1958). To apply the rule of apparent authority, there must therefore be some basis for what may be loosely termed an estoppel against the principal. And this “estoppel” depends upon manifestations by the principal to the third party and not to the agent. Restatement, Agency 2d § 49(b) (1958) indicates that “if there is a latent ambiguity in the manifestations of the principal for which he is not at fault, the interpretation of the apparent authority is based on the facts known to the principal.” In this case the sole basis of an “estoppel” against Pollard must rest upon the fact of Vessels’ possession. The rule is of long standing, however, that possession of a chattel, standing alone, does not authorize an agent to affect the principal’s interest. As the Restatement, Agency 2d § 200 (1958) summarizes the law, “[a]part from statute, an undisclosed principal who entrusts an agent with the possession of a chattel, other than a commercial document representing a chattel or chose in action, but who does not authorize him to sell it, display it for sale, or otherwise affect the principal’s interest in it, is not thereby bound by a transaction with respect to the chattel between the agent and a third person who believes the agent to be the owner.” The reason is plain: mere possession carries no indication of any right to engage in transactions of serious consequence to the owner of the chattel. Possession is as consistent with tortious acquisition as with full ownership and provides no basis for an assumption that the possessor may deal with the chattel as he pleases. We think the circumstances of this case preclude a finding that the Vessels Ranch had apparent authority to ship the mare. Here we had an obviously valuable horse to be shipped on a long and arduous journey across one of the hottest areas of the United States. The numerous risks attendant such trip convince us that an owner must do some act of greater significance than to merely relinquish possession before being deemed to have undertaken the risks of this shipment. Cf. Mitchell v. Union Pac. Railroad Co., 242 F.2d 598, 603-604 (9th Cir. 1957). Our conclusion is fully consonant with the high standards of care imposed on carriers, as illustrated by the case of Missouri Pac. R. R. Co. v. Elmore & Stahl, supra, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194, and is merely an application of the familiar rule that where one of two innocent parties must suffer, the loss falls on him who made it possible. It bears emphasis that the carrier’s negligence caused the loss. Realistically, the effect of our conclusion is to deprive the carrier of the slightly higher charge that it would have made had the mare been declared at full value. The judgment is affirmed. . The name derives from their ability to run a quarter of a mile at phenomenally high speed. Such horses are compact and heavily muscled thoroughbreds. . Ernest Baum, president of Van Service, explained that “livestock other than ordinary” meant “race horses, showhorses, breeding stock. In other words, registered animals other than ordinary killer stock or butcher, used for butcher purposes.” . She was 11 years of age at the time of her death — just well into her productive span; all five of the colts she had foaled were rated by the American Quarter Horse Association as Triple A plus — the highest echelon possible for racing quarter horses. Her value was variously estimated at from $60,000-$100,000. . Although there is some divergence among the authorities, the rule most generally announced is that mere negligence ■will not support a claim for conversion. See 53 Am.Jur. Trover and Conversion, in section 52. . The allegations set out a general charge as -well as specific acts of negligence. . He said as much. One of the formal Oonelusions of Law consists of the recital. “That the Doctrine of Res Ipsa Loquitur is applicable to plaintiff’s claim: This doctrine raises the rebuttable presumption that from the occurrence itself, to-wit: the death of the plaintiff’s mare, Chinchilla, under the circumstances herein related, the defendant was negligent and that such negligence proximately caused the death of the plaintiff’s mare Chinchilla on July 14, 1962 near El Centro, California.” When read in context, this statement means that Lux had failed to overcome the inference which the trial judge, as fact finder, derived from the evidence favorable to Pollard, not that the doctrine operated to shift to Lux the burden of proving its freedom from negligence. See Sweeney v. Erving, 228 U.S. 233, 241, 33 S.Ct. 416, 57 L.Ed. 815 (1913); Commercial Molasses Corp. v. N. Y. Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941). . The following illustration appearing in an illuminating article by Dean Prosser entitled “Res Ipsa Loquitur in California”, 37 Cal.L.Rev. 183, 213-214 (1949) serves to demonstrate why, in the case before us, the doctrine survives in spite of the proof given by Pollard’s “experts”: “When the plaintiff shows that he was on the defendant’s train and the train was derailed, there is an inference that the defendant had been negligent, and a res ipsa case. When he goes further and shows that the derailment was caused by an open switch, he destroys any inference that it was due to excessive speed or defective track; but the inference that the defendant had not used due care in looking after its switches is not destroyed, but considerably strengthened. To say that res ipsa does not apply is to say that the weaker inference may be drawn, but the stronger may not. If the plaintiff goes still further and shows that the switchman was drunk and left the switch open, there is nothing left to infer and the plaintiff must stand or fall on his specific proof. If he shows that the switch was thrown by an escaped convict with a grudge against the railroad he has proved himself out of court. It is only in this sense that when the facts are known there is no room for inference, and res ipsa loquitur vanishes from the case. Particularly when the plaintiff introduces only some circumstantial evidence suggesting a definite cause for the accident it cannot be said that the normal inferences are defeated.” . Public policy renders void any agreement exempting a common carrier for liability caused by its own negligence. The Car-mack Amendment [49 U.S.C. § 20(11)] to the Interstate Commerce Act permits limitation of liability where a choice of rates is offered varying with the value of the property to be shipped. Union Pacific R.R. v. Burke, 255 U.S. 317, 41 S.Ct. 283, 65 L.Ed. 656 (1921). And the limitation is binding even though, as here, it is grossly disproportionate to the actual value of the shipment. Pierce Co. v. Wells Fargo & Co., 236 U.S. 278 (1915). Authority to ship confers upon the agent the incidental authority to enter into a valid contract with a carrier concerning liability. Frohlich Glass Co. v. Pennsylvania Co., 138 Mich. 116, 101 N.W. 223 (Mich.1904). 1 Mechem, Agency, § 1046 (1914); 14 Am.Jur.2d Carriers, § 551; Bates v. Weir, 121 App. Div. 275, 105 N.Y.S. 785 (1907). . As an equitable ground for relief, Lux points out the plight of common carriers ■who must accept shipments from whomever tenders them. But that consideration appears of little weight when measured against an owner’s opportunity to protect bimself. The carrier need only exercise due care to prevent a loss. The owner, on the other hand, is powerless to do so.

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?

J. H. MARTINUS & SONS v. COMMISSIONER OF INTERNAL REVENUE. No. 9578. Circuit Court of Appeals, Ninth Circuit. Dec. 31, 1940. Philip G. Sheehy, of San Jose, Cal., and W. H. Morrissey, of Redwood City, Cal., for petitioner. Samuel O. Clark Jr., Asst. U. S. Atty. Gen., and Norman D. Keller, Morton K. Rothschild, and Michael H. Cardozo, IV, Sp. Assts. to Atty. Gen., for respondent. Before MATHEWS, HANEY, and HEALY, Circuit Judges. HEALY, Circuit Judge. Petition to review a decision of the Board of Tax Appeals sustaining the assessment of a deficiency in income taxes paid for the year 1935. The question presented is whether the taxpayer may deduct as a business expense salaries authorized but not paid during the tax year, where the return was prepared on the cash basis. The taxpayer is a small family corporation engaged in farming. The officers and principal stockholders, members of the Martinus family, give their full time to the business. At a meeting of the directors and stockholders held during 1935 salaries of $3,400 were authorized for each of three officers. Each officer had the privilege of drawing on the corporate bank account without consulting any of the others, and it was their custom to draw salaries as needed. The salaries authorized were drawn to a partial extent only, that is, the officers actually drew during 1935 the total sum of $1,131.07 on salary account. In computing the net corporate income for the year the whole authorized amount of $10,-200 was deducted. The Commissioner allowed salary deductions in the amounts actually paid but disallowed the excess. The corporate accounts were kept and income tax returns ostensibly made on the cash basis. The sums in excess of the amounts actually withdrawn by the officers were not entered or credited in the books, which were informal and maintained irregularly. Notes were not given for the unpaid amounts and no entries appear showing that the money was set aside for the officers. However, each of the three reported in his individual return for 1935 the full $3,400 as taxable income. The controlling provisions of the Revenue Act of 1934 are copied on the margin. In a case like the present, where a corporation maintains its accounts on the basis of cash receipts and disbursements, reasonable salaries actually paid to officers are entitled to be deducted in the year in which the payment is made. Conversely, taxpayers keeping their accounts and making their returns on an accrual basis may deduct salaries accruing although not paid during the tax year. Petitioner confessedly belongs in the first category and was entitled to deduct salaries to the extent it actually paid them, but no more. As said in Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 53 S.Ct. 337, 339, 77 L.Ed. 739, “it is settled beyond cavil that taxpayers * * * may not accrue receipts and treat expenditures on a cash basis or vice versa. Nor may they accrue a portion of income and deal with the remainder on a cash basis, nor take deductions partly on one and partly on the other basis.” Petitioner argues that the salaries authorized ought to be treated as having been constructively paid. The Commissioner concedes that there are circumstances in which a taxpayer, although on a cash basis, is entitled to treat money not actually paid out as though it had been so paid. But without discussion of special situations of that sort, it is enough to say that there is nothing here to support the notion of constructive payment. The authorities petitioner cites do not sustain its argument. Affirmed. “§ 28. Deductions from gross income. In computing net income there shall be allowed as deductions: “(a) Dispenses. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * 26 TJ.S.C.A. Int.Rev. Code, § 23(a)(1). “§ 41. General rule “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, * * 26 TJ.S.C.A. Int. Rev.Code, § 41. “§ 48. Definitions “When used in this title [chapter]— * * * “(e) Paid, incurred, Accrued. The terms ‘paid or incurred’ and ‘paid or accrued’ shall bo construed according to the method of accounting upon the basis of which the net income is computed under this Part.” 26 TJ.S.C.A. Int.Rev.Code, § 48(c). The principal decisions relied on are Sanford Corp. v. Commissioner, 3 Cir., 106 F.2d 882 and Jacobus v. United States, Ct.Cl., 9 F.Supp. 41.

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.

Kal W. LINES, Trustee in Bankruptcy of the Estate of John Muska, Individually and doing business as John Muska Company, Bankrupt, Appellant, v. The BANK OF CALIFORNIA, Appellee. No. 26296. United States Court of Appeals, Ninth Circuit. Oct. 10, 1972. Burton I. Meyer (argued), of Glicks-berg, Kushner & Goldberg, San Francisco, Cal., for appellant. John C. Till (argued), of Currie, Les-back, Hannig & Ferrari, Redwood City, Cal., for appellee. Before BROWNING, CARTER and HUFSTEDLER, Circuit Judges. PER CURIAM: The bankrupt gave appellee’s predecessor in interest a chattel mortgage on personal property to secure a loan. A financing statement was filed with the Secretary of State pursuant to section 9401(c) of the California Commercial Code to perfect the security interest. The trustee contends that the security interest is invalid because the financing statement did not contain the residence address of the debtor as required by section 9402(1) of the Code. The referee rejected this contention after an evidentiary hearing, for the following reasons. The financing statement contained all of the other information described in section 9402(1), including the creditor’s name and address, the debtor’s name, mailing address, trade name, and the address of his chief place of business, and a description of the mortgaged property. The mortgaged property was machinery and equipment located at the debtor’s chief place of business, at the address given in the financing statement. If the debtor had sought credit on the basis of ownership of this property, the prospective creditor would want to know whether the particular property was subject to any prior security interest, and the financing statement would have given notice of the bank’s interest. In the circumstances of this case the debtor’s residence address was not important, as it might have been if the mortgaged property had been located at the residence address. The referee suggested that the residence address might also be important where the mailing address was a post office box and the identity and location of the debtor was difficult to ascertain. Here, however, the debtor’s mailing address was the address of his principal place of business, where the property in question was located. The referee noted that section 9402(5) of the Code provides that: “A financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading.” The referee concluded that “the omission of the residence address in this statement was not misleading to any degree.” The district court denied the trustee’s petition for review, holding “that there was ample evidence to support Referee Gillard’s decision that there could have been no misleading by the financing statement.” Appellant argues that, contrary to a long-established California rule of statutory construction (see Bourland v. Hildreth, 26 Cal. 161, 181 (1864)), the referee and the district court have nullified the express words of section 9402 that provide that when the debtor is an individual the financing statement “shall also set forth . . . the address of his residence.” It is an equally time-honored rule of California law that statutes are to be construed to effectuate the Legislature’s purpose and that the construction should be of the whole statute. Smith v. Randall, 6 Cal. 47 (1856). In this instance, “the statutory scheme is designed to provide a system whereby a potential creditor will be able to ascertain whether the potential debtor’s property is burdened with security interests.” In re Thomas, 466 F.2d 51 (9th Cir., 1972). The finding of the referee and the district court that in all the circumstances of this case the omission of the debtor’s residence address could not have been misleading to creditors was not clearly erroneous. The district court was not clearly wrong in concluding that the Supreme Court of California would hold that the financing statement “substantially compl[ied] with the requirements” of section 9402(1) within the meaning of section 9402(5). See Rooney v. Mason, 394 F.2d 250, 253 (10th Cir. 1968). Affirmed. . The referee observed that the California Legislature and Secretary of State gave greater significance to the mailing address than to the residence address. Section 9403(4) of the Code provides that the filing officer shall note in the index of financing statements only “the file number and the mailing address of the debtor (or assignor or seller) given in the statement.” The official forms to be used by a prospective creditor in requesting information as to financing statements from the Secretary of State requires the insertion of the name and mailing address of the debtor, not his residence address. . The trustee argues that since the official form of financing statement approved by, the Secretary, of State provided that the residence address is to be given “if . . . different than” the mailing address, the absence of a residence address would have misled a prospective creditor into believing that the debtor, John Muska, lived at his stated mailing address, although in fact he did not. Since the address given as Muska’s mailing address was also that given as the address of Muska’s chief place of business, it is unlikely that a prospective creditor would have been misled in the respect suggested. In any event, to invalidate the financing statement the error must be “seriously misleading,” and it is difficult to see how a prospective creditor could have been prejudiced by the mistaken assumption that Muska resided in his place of business, where the mortgaged property was also located.

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?

AMERICAN TRAIN DISPATCHERS ASSOCIATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Burlington Northern, Inc., Intervenor. No. 77-1222. United States Court of Appeals, District of Columbia Circuit. Argued March 20, 1978. Decided May 1, 1978. Gordon P. MaeDougall, Washington, D. C., for petitioner. Mark L. Evans, Gen. Counsel, I.C.C., Washington, D. C., for respondents; Robert S. Burk and Frederick W. Read, III, Associate Gen. Counsels, Kenneth G. Caplan, Atty., I.C.C., John J. Powers, III, and Susan J. Atkinson, Attys., Dept, of Justice, Washington, D. C., were on the brief. Charles H. White, Jr., and Henry F. Rush, Attys., I.C.C., Washington, D. C., entered an appearance for I.C.C. Carl D. Lawson, Atty., Dept, of Justice, Washington, D. C., entered an appearance for U. S. Barry McGrath, St. Paul, Minn., for inter-venor. Before WRIGHT, Chief Judge, and LEV-ENTHAL and ROBB, Circuit Judges. Opinion for the Court filed by Circuit Judge LEVENTHAL. LEVENTHAL, Circuit Judge: This is a petition to review an order of the Interstate Commerce Commission that construes portions of the Interstate Commerce Act dealing with job protection for railroad employees affected by a merger. In 1967, the Commission approved the so-called “Northern Lines Merger,” Great N.P. & Burlington Lines, Inc. Merger, 331 I.C.C. 228 (1967). In its order, the Commission imposed certain conditions designed to protect employees of the merged railroads whose job status might be affected by the merger. Section 5(2)(f) of the Interstate Commerce Act, 49 U.S.C. § 5(2)(f), requires the Commission to impose such protective conditions in approving a merger. Petitioner American Train Dispatchers Association represents nine employees of Burlington Northern (BN), the railroad that resulted from this merger. Of these nine train dispatchers, three were hired by BN subsequent to the merger. The other six were employed as telegraphers at the time of the merger, and were later promoted to dispatchers. The question before us is whether these employees are entitled to enjoy protective conditions imposed by the Commission as a condition of the merger. Its resolution necessarily turns on the meaning of section 5(2)(f) of the Act: As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by railroad subject to the provisions of this part, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees. Petitioner urges that the first sentence of this subsection mandates protection for all employees affected by a merger, without limitation as to date of employment or promoted status. Under this reading, the three employees hired after the merger would be entitled to protection; and the six who were promoted after the merger would be protected in their promoted status. Petitioner concedes that the Commission has discretion under § 5(2)(f) in applying the “fair and equitable” standard, but insists that these employees are entitled as a matter of law to some protection, with Commission discretion only as to the degree of protection. This construction is unwarranted by the language of the statute or its legislative history. It will serve no purpose to review that history in detail, since no part of it bears directly on the question before us. Suffice it to say that Congress, in promulgating this legislation, was clearly concerned with the fact that merger economies would be achieved largely at the expense of displaced labor. That the question of post-merger employees occurred to the legislators at all seems doubtful. Against this dubious backdrop, petitioner asks us to support a reading of the statutory language that is of potentially breathtaking scope. Protection could extend to employees hired many years after the merger, if they were “affected” by it. Nor does the “affected” requirement provide a satisfactory limiting principle, since consolidations and other economies instituted long after the merger might well be traced back to it in some sense. The principle urged by petitioner, in short, threatens to vitiate in large measure the economies that the merger was designed to achieve. We reject it. Petitioner contends alternatively that the Commission has discretionary authority to afford protection to post-merger employees and to employees promoted after the merger, and that it failed adequately to explain its refusal to exercise this authority. We need not decide whether the Commission has such authority, or from which provision it derives, for it is clear that all members of the Commission are unanimous that it is not appropriate to exercise whatever discretion it may have so as to give retroactive protection to the nine employees here in question. The basis for that discretionary determination may be adequately discerned in terms of the inequity of retroactive insertion of conditions not contained in either the merger agreement or the 1967 ICC order, as contrasted with a supplemental order under § 5(10) in the nature of clarification, and of the threat to labor cost savings that such augmented protective conditions would pose. Affirmed. . Petitioner does not seem to argue that the protection provided for the employees in question must necessarily be coextensive with that provided for those who were employees before the merger and have not been promoted. The parties agree that the second sentence of § 5(2)(f) is not applicable to the employees in question, since the present impact (if any) of the merger on these employees does not occur within four years of the order approving the merger. . We do not consider whether employees who were on board at the time of the merger might have a claim to protection even of a post-merger promotion on the ground that their status as of the merger date included a legitimate expectancy of promotion in the normal course of events meriting protection. No such contention was argued to the court. . See Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). . In Chesapeake and Ohio Ry. Co. et al. v. ICC, 187 U.S.App.D.C. 241, 571 F.2d 1190 (D.C.Cir. 1977), the court found the supplemental order to be a clarification. . As indicated, it is unnecessary for us to decide whether such discretionary authority, if it exists, is to be found in § 5(2)(b), as the majority of the Commission believed, or in § 5(2)(f), as Commissioner O’Neal appeared to accept, in his concurrence to the order here appealed.

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?

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

What follows is an opinion from a United States Court of Appeals. Your task is to determine 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?

LOCAL 346 INTERNATIONAL LEATHER GOODS UNION, AFL-CIO, Respondent, Appellant, v. Raymond J. COMPTON, Regional Director Etc., Petitioner, Appellee. INTERNATIONAL LEATHER GOODS, PLASTICS & NOVELTY WORKERS’ UNION, AFL-CIO, Respondent, Appellant, v. Raymond J. COMPTON, Regional Director Etc., Petitioner, Appellee. Nos. 5717, 5718. United States Court of Appeals First Circuit. July 19, 1961. Max H. Frankie, New York City, with whom Hipólito Mareano, Santurce, P. R., and Philip J. Ruffo, New York City, were on the brief, for appellants. Winthrop A. Johns, Asst. Gen. Counsel, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marvin Roth, Atty., Washington, D. C., were on the brief, for appellee. Before WOODBURY, Chief Judge, and MAGRUDER and HARTIGAN, Circuit Judges. Sitting by designation. WOODBURY, Chief Judge. This is an appeal from an order of the United States District Court for the District of Puerto Rico entered on petition of the local Regional Director of the National Labor Relations Board enjoining and restraining the respondents-appellants, an international union and its local affiliate, from picketing the plants of Baronet of Puerto Rico, Inc., and Esco Corp. in Vega Baja and Morovis, Puerto Rico, pending final disposition by the Board of a charge filed with it by the corporations alleging that the respondent-appellant unions are and have been engaging in acts and conduct in violation of § 8(b) (7) (C) of the Labor Management Relations Act, 1947, as amended by § 704 of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 544; 29 U.S.C.A. § 158(b) (7) (C), quoted in the margin. The basic question presented is whether the evidence supports the District Court’s conclusion that picketing at the corporations’ plants in Vega Baja, Puerto Rico, in April and May, 1960, was in violation of § 8(b) (7) of the Act, that is, whether on the evidence it could properly be found that “an object” of that picketing was “forcing or requiring” the corporations to recognize or their employees to “accept or select” the respondent-unions as the collective bargaining representative oí the employees. The facts in chronological order as found by the court below, as conceded by the parties, and as established by clear, convincing and for the most part uncontradicted evidence, are as follows: Baronet of Puerto Rico, Inc., and Esco Corp., have adjoining plants in Vega Baja, Puerto Rico, where they engage in the business of manufacturing small leather goods. Esco has a similar plant in Morovis about twenty miles away. Although separately incorporated, Baronet and Esco are commonly owned, managed and controlled and have the same labor policy. Concededly they constitute a single employer for the purposes of the Act and therefore can appropriately and conveniently be referred to hereinafter in the singular as the employer. The same interests are also engaged in the same line of business in Reading, Pennsylvania, under the name of Baronet Leather Goods Corporation. For some time prior to April, 1960, the appellant International Union had been seeking recognition as the bargaining representative of the workers at the Reading, Pennsylvania, plant, and during that month it extended its activities to the employer’s plants in Puerto Rico. On April 18 International’s president sent one Carlton Steger to Puerto Rico to represent the Union and to assist two Puerto Ricans, Dionisia Carillo and Eulalio Marcano, who had recently been appointed to the Union’s staff. Steger described his function in Puerto Rico visa-vis the two new local staff members as; “ * * * to help them to prepare organizational activities in numerous shops in Puerto Rico” falling within the jurisdiction of the Union, specifically including those of the employer and “to acquaint them with organizational methods and techniques, to spend some time with them and to teach them what was expected of them as organizers of our Union.” A day or two after Steger’s arrival in Puerto Rico he went to Vega Baja with the two new members of the Union’s staff to meet the employer’s workers in the highway outside the plants before and after work and at the noon hour and to distribute union circulars and membership cards. Apparently at about this time the local affiliate Union was organized. On Thursday, April 21, two events of significance occurred, one in Reading, Pennsylvania, and the other in Vega Baja, Puerto Rico. On that day the International Union distributed handbills at the employer’s Reading plant announcing that it had established a permanent office in Puerto Rico, that its organizing staff was “now concentrating its efforts on your sister shops in Vega Baja and Morovis,” that “International organizer Carlton Steger has been assigned to Puerto Rico to assist in coordinating our campaign to Unionize the Baronet empire,” and: “The Union does not intend to permit Baronet to continue to play one shop against each other. We intend to negotiate decent contracts for all three plants in Reading, Vega Baja and Morovis, so that all workers are protected and to stop any further possibility of closing here — there—or anywhere!” And in the evening of the same day, Thursday, April 21, the Union held an organizational meeting of the employer’s workers in Vega Baja. On the next day, Friday, April 22, the Union distributed leaflets at the employer’s Morovis plant captioned in translation from Spanish: “Become Union Members Now,” to which were attached applications for membership in appellant International Union. Also on April 22 the employer laid off 33 women employees in Vega Baja, ostensibly for lack of work, but, according to a charge subsequently filed by the Unions, in reprisal for attending the union meeting the night before. The next significant date is the following Tuesday, April 26, when picketing began at the employer’s plants in Vega Baja. Some of the signs carried by the pickets protested the layoffs which had occurred the previous Friday. Other signs, however, read: “Demandamos Reconocimiento de la Union” and “Solicitamos El Reconocimiento de la Union” in translation: “We Demand Recognition of the Union and We Request Recognition of the Union.” These latter signs were carried by the pickets for at least a day or two, perhaps until April 29 when Steger, who with Mr. Marcano had been in daily attendance at the scene of the strike showing the sign carriers how to picket, ordered them removed. On April 29 persons identified with the strike in Vega Baja distributed leaflets at the employer’s Morovis plant entitled in translation “Baronet Staggers,” extolling the advantage of unionization and urging membership in the International Union. On Monday, May 2, the Unions by their own admission openly assumed control and guidance of the strike but assert that they did so only for the purpose of supporting the strikers demand for reinstatement of the 33 women laid off on April 22. On that day signs ordered by Steger on April 30 appeared on the picket line bearing the legend in translation: “International Leather Goods Union AFL-CIO Backs This Strike.” On May 4, Senator Hipólito Marcano, billed in advance in a leaflet over the names of Steger and Marcano as a “workers’ attorney,” and President of the AFL-CIO in Puerto Rico and Senator of Puerto Rico, spoke to strikers in front of the employer’s Vega Baja plants. The leaflet giving notice of his speech announced in capital letters that Senator Marcano would explain to the workers at both plants “what the union means and the rights granted to strikers by the federal and state laws,” and in smaller print: “We are winning the strike. No fellow worker is to be afraid in this great fight for the benefit of us all. Our Union as well as the organized labor movement in Puerto Rico of AFL-CIO is giving you 100% backing.” There is credible evidence that from the beginning the picketing was accompanied by some disturbance, noise and confusion and that on more than one occasion truck drivers employed by third persons were deterred by mass picketing, perhaps for fear of violence but that is not entirely clear, from making deliveries to the employer’s Vega Baja plants. On May 5 violence broke out. Following a speech from a sound truck, in the highway in front of the employer’s plants by one Marzan a crowd of more than 100 rushed the gates of the employer’s plants shouting, throwing sticks and stones and breaking windows, and only failed to gain entrance because of intervention by the police. In the meantime, on April 29, the employer had filed a charge with the Board’s local Regional Director alleging acts and conduct by the appellant unions in violation of § 8(b) (1) and (7) of the Act upon which, after investigation, the instant petition under § 10(1) for injunctive relief was filed in the court below. The appellants filed an answer and the court below after full hearing filed a memorandum opinion, findings of fact and conclusions of law on the basis of which it entered the order granting temporary injunctive relief from which this appeal has been taken. The appellants concede that their agents were at the scene of the picketing from the beginning and actively controlled and directed the picketing on and after May 2, 1960. Their basic contention is that the evidence conclusively establishes that the picketing was solely and entirely in protest over the layoff of the 33 women workers on the Friday preceding the Tuesday on which the picketing began, and wholly fails to show that “an object” of the picketing was at any time to force or require the employer to recognize or the employees to accept the Unions as the bargaining representative of the workers and therefore § 8(b) (7) of the Act “is totally inapplicable.” To support this contention counsel for the appellants strenuously objected to the introduction in the court below of evidence both oral and pictorial of the signs carried by the pickets on April 26 and for at least a day or two thereafter demanding and requesting recognition of the “Union” on the ground that there was no evidence identifying the “Union” mentioned on the signs with the appellants or either of them. He argues his objection earnestly and at length in this court. We find no merit in it. It is true that agents of two other unions, Seafarers International and Ladies Garment Workers were at the site of the strike from time to time. But there is no evidence that either of these unions ever had or were then conducting, or had ever contemplated a campaign to organize the employer’s workers. Per contra the appellants when the picketing began had an active, open organizing campaign under way in Puerto Rico as part of a comprehensive program to organize the workers in all the employer’s plants in Puerto Rico and Pennsylvania. Thus it must have been obvious to the employer’s executives and to the workers as well, and perhaps also to the public generally in the small communities involved, that the “Union” referred to on the signs was one or the other, perhaps both, of the appellants. The court below was not required to blind its eyes to a none too subtle subterfuge and neither are we. The further argument that there was no evidence that any agent of the appellants procured and furnished the signs is also without merit. Wherever the signs came from, they were carried by the pickets in plain sight of the appellants’ agents, and if, incredible as it seems, Steger could not read them his colleague Marcano certainly could. Under the circumstances the signs alone are enough to support the District Court’s conclusion that at least “an object” (the statute does not require that the sole object) of the picketing was to force or require recognition of the Unions by the employer and selection of the Union by the employees as the bargaining representative of the workers. On the facts outlined above in some detail, we have no doubt that the court below was entirely warranted in its finding that there was reasonable cause to believe that the appellants through their agents had engaged in unfair labor practices in violation of § 8(b) (7) of the Act. And this conclusion warrants the grant of injunctive relief. It is true that application for that relief was made on the fourth day of the strike. But the relief was not granted until more than thirty days had elapsed since the strike began and therefore after the expiration of any period of time which, in the absence of a petition for election under § 9(c), could be found under subparagraph (C) to be reasonable. Moreover, there is credible evidence in the record that the picketing was accompanied by disorder, confusion and violence, and that on occasion an effect of the picketing was to prevent deliveries to the employer’s plants. Cf. Cuneo on Behalf of N. L. R. B. v. United Shoe Workers of America, etc., D.C.N.J.1960, 181 F.Supp. 324, 326. Appellants’ counsel has waived the contention that the injunction issued by the court below is too broad in that it covered the employer’s Morovis plant where no picketing occurred. Other contentions of the appellants are either frivolous or else in view of the conclusion we have reached do not require discussion. Judgment will be entered affirming the order of the District Court. . “8(b) It shall be an unfair labor practice for a labor organization or its agents— ***** “(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees : ***** “(0) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided,, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (O) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.” . The appellants’ objection to the introduction of a copy of this handbill in evidence as an exhibit is without merit. While it might be objectionable for certain purposes it tends to prove that the International Union was embarking on a campaign to organize the employer’s workers in Puerto Rico as well as in Pennsylvania and the opinion of the court below shows that it used the exhibit only for that purpose. . Steger testified that he was wholly unfamiliar with the Spanish language and did not immediately understand the meaning of the signs. This seems hardly credible since the word “Union” is the same in both Spanish and English and it is hard to see how any literate and even reasonably intelligent and imaginative person would not in the context used be able to translate the words “Demandamos,” “Solicitamos” and “Reconocimiento” into “We Demand,” “We Reguest” and “Recognition.”

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?

UNITED STATES of America, Appellee, v. Jerrold Howard GOTTLIEB, Defendant-Appellant. No. 531, Docket 73-2349. United States Court of Appeals, Second Circuit. Argued Dec. 17, 1973. Decided March 18, 1974 John D. Gordan, III, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, and George E. Wilson, Asst. U. S. Atty., on the brief), for appellee. Joan Goldberg, New York City (Rabin-owitz, Boudin & Standard, New York City, on the brief), for defendant-appellant. Before LUMBARD, FRIENDLY and OAKES, Circuit Judges. LUMBARD, Circuit Judge: Jerrold Gottlieb appeals from a judgment of conviction entered July 25, 1973 after a seven-day trial before Judge Griesa and a jury in the Southern District of New York. Gottlieb was convicted on all three counts of an indictment which charged him with making a false statement that he was a member of the United States Army National Guard, 18 U.S.C. §§ 1001, 2, with making a false certificate bearing upon his classification under the Military Selective Service Act, 50 U.S.C.App. § 462(a) and 18 U.S.C. § 2, and with conspiring with Harry Coogan, not named as a codefend-ant, to make fraudulent misrepresentations regarding his military status, 18 U.S.C. § 371. Gottlieb was sentenced to concurrent terms of two years imprisonment on each count with a fine of $5,000 on the conspiracy count and concurrent fines of $10,000 on the other two counts. Execution of the prison sentence was suspended and the defendant was placed on two years probation. In arguing that his conviction should be reversed, Gottlieb maintains that certain highly prejudicial and irrelevant testimony was improperly admitted into evidence, that as a matter of law there was insufficient evidence to support his conviction, that the government failed to comply with the Jencks Act, 18 U.S.C. § 3500, thereby seriously weakening his defense, and that numerous instances of egregious prosecutorial misconduct occurred during the trial. Additionally, he asserts that the trial judge made several errors highly prejudicial to the defense, by unduly limiting the information the government was required to provide in its bill of particulars and in discovery, and in the instructions to the jury regarding the possible motives behind Coogan’s testimony and the requisite degree of knowledge Gottlieb had to have to be found guilty. We affirm. The undisputed evidence adduced at trial established that on August 27, 1964, the appellant, then attending Michigan State University, first registered for Selective Service with his local draft board in Mt. Vernon, New York. He was classified 2-S (deferment for undergraduates in college) and maintained this classification throughout his four years at Michigan State. The government presented evidence that in his fourth year, Gottlieb, aware that his 2-S status would terminate upon graduation in June 1968, sought to enlist in a National Guard unit. At the time, however, the Vietnam War was raging and waiting lists for the Guard were swollen. Thus, when Gottlieb applied on December 17, 1967, to the 242nd Signal Battalion headquartered in Hempstead, New York, his name- was placed on a waiting list. The invariable practice was for Major Garofolo, who maintained the list, personally to speak with each applicant at the time he applied. Gottlieb did not deny that this had occurred in his case. The Major would inform the applicant of the expected waiting period and that the applicant would have to reapply every 30 days to preserve his position on. the waiting list. If the applicant did not reapply, Major Garofolo would wait an additional 30 days and then send an elimination letter by certified mail. All applicants were also made aware that the enlistment process would involve several return visits to the armory. Among other things, the applicant was told that he would have to undergo a physical and mental examination and an interview with the unit commander prior to enlistment. Each applicant also had explained to him that, once enlisted, he would have a six-year commitment which would include a call to from five to nine months of active duty for basic training purposes within 120 days of enlistment as well as attendance at drills and summer camp. Gottlieb admitted going to battalion headquarters in December 1967 and speaking with Major Garofolo. Although unable to recall the details of their meeting, he did not dispute the Major’s account of the application procedure and practice. He did deny, however, receiving an elimination letter, even though the 242nd Battalion’s enlistment register indicated that he had been eliminated in early March 1968 and it was Major Garofolo’s practice to send such letters upon elimination of an applicant. In June 1968, with Gottlieb’s 2-S deferment coming to an end, his local board sent him a Current Information Questionnaire (SSS Form 127) preparatory to a review of his file at the board’s July meeting. The form was returned by Gottlieb on July 1. He indicated on it that on June 16, 1968, two weeks before his deferment was to have expired, he had enlisted in Company C of the 242nd Signal Battalion of the New York National Guard. He gave his service number as NG 22039037 and on an attached note wrote that he would be coming to New York for all Guard meetings. The board also received a DD Form 44 (Record of Military Status of the Registrant). The form, dated June 25, 1968, certified that Gottlieb had, in fact, enlisted for six years and would be ordered to active duty for training within 90 days. The form was purportedly signed by the commanding officer of the unit, 2d Lieutenant Myron Wittlin, although it was later established at trial that Wittlin’s signature had been forged. Upon receiving the response to the questionnaire and the DD Form 44, the local board reclassified the appellant 1-D (Member of Reserves) and informed him that he would remain so classified as long as he was a member of the unit. Gottlieb never again communicated with his local board. Much of the testimony at trial focused on Gottlieb’s alleged enlistment on June 16, 1968. It was undisputed that Dan Molinoff, Gottlieb’s brother-in-law and son of Dr. David Molinoff, had brought the appellant to the Huntington Station Armory on Long Island to meet with Harry Coogan, a long time friend of Dr. Molinoff. Coogan was a full-time unit administrator in the New York National Guard. According to Coogan, who testified at trial for the government, Gott-lieb explained to him that his deferment was running out and then asked if there was a slot for him in the Guard. Coogan responded that there was at least a year’s wait, but that he could arrange to have appellant’s classification changed by “a piece of paper to the draft board.” In the presence of Gottlieb and Dan Molinoff, Coogan filled out a DD Form 44, obtaining the necessary information from Gottlieb’s Selective Service card, and explained to the appellant that the form was just a means of changing his classification, that he was not actually in the National Guard, and that he would not have to report again. Indeed, the evidence at trial was undisputed that no personnel file was ever prepared for Gottlieb, that he never signed any papers, and that he was never given a drill schedule or a uniform. His service number was a complete fabrication. The defense, however, contradicted Coogan’s version of the June meeting. Gottlieb testified that Molinoff had contacted Coogan on his behalf to arrange to enlist. At the Huntington Station Armory, Coogan led them into an office where Gottlieb filled out an enlistment form and was given an orientation statement. The appellant admitted supplying Coogan with certain information but denied that a DD Form 44 had been prepared in his presence or that he knew such a form would be sent to his local board. Gottlieb also admitted that he had not been sworn in, had,not been advised of his service number, and had not been informed which unit he was in, although he testified this information was later relayed to him by Coogan so that he could fill out the Current Information Questionnaire from his local board. He conceded having expressed some uncertainty to Molinoff later in the day as to whether he was actually in the National Guard. Nevertheless, at trial, he maintained that when he filled out the Current Information Questionnaire and returned it on July 1 he believed he was in the Guard. In the years following Gottlieb’s purported enlistment in the 242nd Signal Battalion, he never was given a physical, attended a meeting, or received a communication from the unit. Despite this, at no time prior to 1971 did he address any inquiry to the unit, his local board, or other appropriate authorities. Gott-lieb did testify that on several occasions he had his brother-in-law check with Coogan for him. This was not on a regular basis, however, and neither Coogan nor the unit were advised of his several changes of address while he was attending graduate school in the Washington, D. C. area. Only in early 1971, after he became aware that Coogan was under investigation by the F.B.I., did Gottlieb, at the urging of his attorney, write two letters requesting a clarification of his draft status, to which he apparently received no response. He did not follow up on these letters. On April 13, 1971, Coogan was indicted by a federal grand jury in the Eastern District of New York on eight counts involving the furnishing of fraudulent certificates to the Selective Service System. He pled guilty to four counts and was sentenced June 13, 1973. Over strenuous objection, the goverment attempted to show on Coogan’s direct examination that these illegal activities engaged in by Coogan on behalf of those seeking to avoid the draft must have been known to Gottlieb and supported the government’s assertion that he knew his own enlistment was fraudulent. Specifically, testimony was adduced that in 1963, Dan Molinoff, who had introduced the appellant to Coogan, had also arranged to have a long time friend of his meet with Coogan, who was then stationed at Lido Beach, New York. As testified to by Coogan, this meeting progressed in much the same manner as did the encounter with Gott-lieb five years later. Molinoff’s friend, Robert Cohen, was seeking to enlist in the National Guard since his 2-S deferment was about to expire. In the presence of Cohen and Molinoff, Coogan prepared a fraudulent DD Form 44, told Cohen it was a fraud and sent the form to his local board. Cohen furnished Coogan with the information necessary to complete the form and had no further contacts with him. After Coogan’s direct testimony regarding his dealings with Cohen, the defense requested the disclosure of F.B.I. interviews with Coogan regarding these activities. After some delay by the government, the relevant materials requested were finally produced. I. The most forceful argument by the appellant is that the trial judge should not have permitted the testimony by Coogan regarding the episode with Molinoff and Robert Cohen in 1963 on the ground that absent any showing of knowledge by Gottlieb, this testimony was irrelevant to the falsity of Gottlieb’s alleged enlistment in 1968. We agree that the trial judge should have sustained the defendant’s objections to the admission of Coogan’s testimony regarding Cohen on the ground that it was of questionable relevance, especially since the government could not produce any evidence that Gottlieb knew about the Cohen incident. Nonetheless, after a review of the trial transcript, we conclude that the admission of this evidence was not reversible error. “Ordinarily a ruling on the relevancy of evidence depends upon the exercise of the sound discretion of the trial judge and will not be disturbed upon appeal except for grave abuse.” Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288 (1964). While Judge Griesa should have excluded testimony as to the dealings between Coogan, Cohen, and Molinoff in 1963, viewed in the light of all the evidence, we do not believe this testimony so prejudiced Gottlieb’s defense as to require reversal. During the course of the trial, Coogan’s testimony that Molinoff had accompanied Cohen to the 1963 meeting was severely discredited. F.B.I. interviews with Coogan introduced in evidence strongly suggested that Cohen had, in fact, gone unaccompanied to see Coogan. Other documentary evidence cast further doubt on Coogan’s testimony. Thus, although he had asserted to the F.B.I. that Cohen’s DD Form 44 had been prepared in September 1963, the form, in fact, was dated July 29, 1963. A letter sent by Cohen from Germany in July 1963 strongly suggested that he had been out of the country at the time the form had been prepared. These inconsistencies were all brought out in the course of cross-examination of Coogan, the last witness to take the stand before the jury retired to deliberate the verdict. Not only was this evidence, severely damaging to Coogan’s credibility, the last the jury heard, but defense counsel further emphasized the weaknesses in Coogan’s account of the alleged meeting with Cohen and Molinoff in her summation, also noting that the meeting should have no influence on the jury’s determination regarding Gottlieb’s knowledge in 1968. Under the circumstances, it is highly unlikely that the jury gave much, if any, credence to Coogan’s account of the events of 1963. In any event, there was more than enough other evidence pertaining to the events of 1967 to 1971 on which the jury would have had little difficulty in resting its verdict. Accordingly, the admission of testimony of the 1963 meeting, considered in the context of the entire trial, was not so prejudicial as to require reversal. II. The appellant maintains, however, that the evidence presented at trial was insufficient for the jury to conclude that he was guilty. In support of his claim, he lays great emphasis on the rather fruitless efforts by the prosecution to establish Gottlieb’s knowledge of what was happening from Dan Molinoff’s alleged prior dealings with Coogan in 1963 on behalf of Robert Cohen. Since Coogan’s testimony was severely undermined by inconsistencies and lapses in memory, Gottlieb asserts that it could not have been a sound basis for the jury’s verdict. In addition, he points to several other weak spots in the government’s case, such as the attempt to establish that only persons with a “signal” background were admitted into the 242nd Signal Battalion, when, in fact, this was not so. There is no merit to this argument. As we have noted, more than enough evidence was presented at trial, apart from the 1963 Cohen matter, for the jury to find beyond a reasonable doubt that Gott-lieb was guilty. The evidence disclosed that in December 1967, Gottlieb had gone to the Hempstead armory, had put his name on the waiting list and had been personally interviewed by Major Garofolo, who informed him not only that he would have to report for regular meetings, summer camp, and an immediate five to nine-month basic training course, were he admitted into the 242nd Battalion, but that he would have to undergo physical and mental examinations, speak with the commanding officer and return at least three or four more times before the enlistment process would be completed. Moreover, Major Garofolo was hardly sanguine about Gottlieb’s chances, making clear that there was more than a year’s wait and that to remain on the waiting list the appellant would have to reapply every thirty days. Against this background and Gottlieb’s subsequent failure to reapply after thirty days, there was a basis for the jury to credit the testimony of Coogan that at the meeting in June 1968, with Gott-lieb’s deferment on the verge of expiration, it was agreed that Coogan would submit a fraudulent DD Form 44 to the appellant’s local draft board to prevent his conscription and that this procedure was fully explained to Gottlieb, who cooperated in the filing of this false statement and his own false claim that he was in a Guard unit. Moreover, added support for this interpretation of the meeting in June could have been found by the jury in the subsequent behavior of Gottlieb. Although he received no communications from his unit at any time, was given no physical examination, received no uniform, and was not called for basic training, Gottlieb made no sustained attempt directly to contact the appropriate authorities to ascertain his status. Even after he knew that Coogan was being investigated for completing fraudulent forms and sending them to local boards, he made only the most perfunctory attempt to determine whether his own enlistment had been proper. When he received no response to two letters, he failed to pursue the matter further. In sum, there was overwhelming evidence of Gottlieb’s guilt. III. The appellant claims that his defense was severely prejudiced by the failure of the government to produce in a timely manner statements made by Coogan to the F.B.I. regarding his activities on behalf of Robert Cohen, in violation of 18 U.S.C. § 3500, the Jencks Act. It is true that the government was tardy in making those materials available. Only after continued requests and demands by defense counsel were the materials provided and this at a time well into the trial. While not excusing this misconduct on the part of the government, we do not believe that the delay prejudiced the defense of the charges. The prosecutor’s initial statements that no Jencks material existed were made in the good faith belief that this was in fact the case, based on responses to inquiries that had been made of other governmental bodies. Nor does it appear that there was a purposeful effort on the part of these other bodies to deny Gottlieb statements relevant to his defense. Rather, the delay in the production of these materials was a result of what Judge Griesa found to be “understandable confusion” arising from the material’s being used in other investigations in the Eastern District of New York. Moreover, this initial confusion was soon overcome. The material sought was made available to the defense on Friday, May 18. On May 21, when trial resumed, however, appellant moved for a mistrial, asserting that Coo-gan’s statements about Cohen had not been furnished until after Coogan had finished testifying. The prosecutor responded that Coogan would be available for cross-examination again, Coogan having already been cross-examined once, before the Jencks material was made available to the defense. But apparently in an effort to preserve Gott-lieb’s mistrial claim, his counsel indicated that the defense would not call Coo-gan. Instead the government called Coogan again and after direct examination, the defense did cross-examine him, and use was made of the materials it had acquired on May 18 to point out flaws in Coogan’s testimony regarding his dealings with Robert Cohen and Dan Molinoff. While the appellant now maintains that much of the impact that might have been made on the jury by confronting Coogan with these materials was lost because it did not come when he was originally on the stand, we do not agree. Here, the government’s principal witness was severely discredited at the very conclusion of the trial. Under the cireum-stances, we can see no significant prejudice to the defense because of its inability to cross-examine Coogan regarding the Jencks material when he first testified. Nor does our decision in United States v. Aaron, 457 F.2d 865 (2d Cir. 1972), support the appellant’s claim. In that case, the United States Attorney knew of the existence and contents of an earlier report by the witness, an F.B.I. agent, to his agency even before the witness was called to the stand. The prosecutor allowed the defense counsel to begin his cross-examination of the witness without revealing the existence of this material. That such material existed was revealed eventually by the witness during his cross-examination and came as a complete surprise to defense counsel in front of the jury. Contrary to the thrust of defense counsel’s cross-examination, this material established that the witness had previously made a report consistent with his direct testimony. In contrast, while Coogan’s statements were made available later than they should have been, they were actually used quite effectively by the defense to discredit him. IV. Gottlieb’s other arguments may be disposed of summarily. His assertion that the court erred in refusing to order compliance with all of his very broad demands for discovery and a bill of particulars is without merit. The government was not required to disclose its evidence in ádvance of trial. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973); United States v. Crisona, 271 F.Supp. 150 (S.D.N.Y.1967), aff’d, 416 F.2d 107 (2d Cir. 1960), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). It was sufficient that Gottlieb was apprised that the theory of the government’s case would be that he fraudulently misrepresented himself as a member of the National Guard to avoid being drafted and that this was done in conspiracy with Harry Coogan. More than adequate discovery was allowed by Judge Griesa. The appellant’s claim that the prosecutor’s remarks were so prejudicial as to deprive him of a fair trial is also without substance. The few comments by the prosecutor that portions of Gottlieb’s testimony had been fabricated had ample support in the record and there is no basis to claim reversible error simply because the language was blunt and to the point. Gottlieb further argues that the trial judge should have instructed the jury specifically about Coogan’s possible motive to lie because of criminal charges then pending against him. In its opening, the government conceded that Coogan might have a motive to lie. His motive for testifying was alluded to during direct examination and focused on again during cross-examination by defense counsel. It was commented upon in the defense’s summation. The trial judge, too, took note of Coogan’s possible motive to falsify his testimony in his charge to the jury. Under the circumstances, the jury received adequate instruction regarding the possible motives Coogan might have had to testify falsely. The appellant’s final argument is that the trial judge improperly instructed the jury that they could convict Gottlieb if they found that he had knowingly stated falsely that he was a member of the National Guard or if “the defendant made the statement that he was in the National Guard when he didn’t know whether or not he was in the Guard.” We do not agree. Gottlieb does not seriously or convincingly dispute that a false statement regarding his membership in the Guard made with reckless disregard of its truth or falsity would support his conviction. But he claims that the instruction just quoted may have suggested to the jury that something less than reckless disregard would be adequate. Having reviewed in its entirety Judge Griesa’s instructions concerning the state of mind of the defendant necessary for the jury to find him guilty, we are fully satisfied that the jury understood that the defendant had to have acted either with actual knowledge, or, as the judge expressly stated in his instructions to the jury, had to have “wilfully blinded himself” to the truth or falsity of his claim that he was a member of the National Guard. Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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