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UNITED STATES v. KAADT et al. Nos. 9617, 9618. United States Court of Appeals Seventh Circuit. Dec. 7, 1948. Rehearing Denied Jan. 3, 1949. Maurice J. Walsh, of Chicago, 111., and Frank E. Corbett and James P. Murphy, both of Fort Wayne, Ind., for defendants-appellants. Gilmore S. Haynie, U.S. Atty., of Ft. Wayne, Ind., James E. Keating, Asst. U. S. Atty., of South Bend, Ind., Alexander M. Campbell, Asst. Atty. Gen., and Bernard D. Levinson, of Washington, D. C., Attorney, Federal Security Agency, for plaintiff-appellee. Before KERNER and SPARKS, Circuit Judges, and LINDLEY, District Judge. KERNER, Circuit Judge. These are appeals from a judgment sentencing each appellant to a term of imprisonment after a jury had found them guilty as charged in an indictment containing seven counts and alleging violation of the Federal Food, Drug, and Cosmetic Act of June 25, 1938, 52 Stat. 1040, 21 U.S. C.A. § 301 et seq., in that they introduced or delivered for introduction into interstate commerce misbranded drugs. Each of the seven counts charged that appellants did, on a date stated, cause to be introduced and delivered for introduction into interstate commerce, consigned to a named individual, an article of drug; that accompanying the drug was certain printed matter; that the statements in the accompanying printed matter were false and misleading because they represented and suggested and created in the mind of the reader the impression that the drug would be efficacious in the cure, mitigation, and treatment of diabetes, whereas in fact and in truth the drug would not be so efficacious. The printed matter consisted of (1) a letter signed by C. F. Kaadt, referring to a booklet dealing with his theory of the cause, symptoms, and effect of diabetes and the treatment of same in which he states: “I have treated many cases that have been in a very advanced stage * *. * * * I will be pleased to see you”; (2) a leaflet beginning with the words “We do Not prescribe any Set diet”; and (3) a circular entitled “Of Great Interest to Diabetics.” . . Section 331(a) of the Act prohibits the introduction into interstate commerce of any drug that is adulterated or misbranded. It is misbranded according to § 352(a) if its “labeling is false or misleading in any particular.” The term labeling is defined in § 321 (m) to mean “all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” Section 333(a) makes the violation of any of the provisions of § 331 a misdemeanor. Four questions are argued for reversal of the judgment. In substance appellants’ contentions are (1) the misbranding, if any, must occur in the labels used, and the labels must accompany the drug into interstate commerce; (2) the representations made in the labeling were honest expressions of their opinion; (3) the court erred in instructing the jury; and (4) the doctrine of res judicata was applicable. First: Appellants argue that the misbranding must occur in the labels used and the labels must accompany the drug into interstate commerce; that there is nothing in any of the three items of printed matter that informs the patient as to how the medicine is to be used; that the ingredients of the medicine are not given in the literature and no therapeutic claim is made for it, nor does any statement appear that it is efficacious in the treatment of diabetes, except as to results had in prior -cases. The record discloses that all three items of printed matter or literature are not involved in every count. The circular is involved in each count and is the only printed matter in counts 2, 5 and 7. In addition to the circular, counts 1, 3 and 4 involve the leaflet, and counts 4 and 6 involve the letter. The circumstances under which the drug and the literature were introduced or delivered for introduction into interstate commerce varied, hut the general pattern was the same. A prospective patient, living outside of Indiana, addressed a letter of inquiry to appellants’ clinic and in response received the printed circular and sometimes the form letter. The circular contained the following statements and representations. The patient thereafter attended appellants’ clinic, and while there received the leaflet containing diet recommendations which stated in part, and in some instances also received a copy of the circular. Before leaving, the pa.tient had delivered to him, or appellants-later shipped to him, a supply of the drugconstituting a three-months’ treatment-In five of the seven counts (counts 1, 4, 5r 6 and 7) it was alleged that a supply of the drug, other than that received by the patient at the clinic, was shipped from the clinic to the patient. In those counts the shipment of the additional supply of the drug and the accompanying labeling is charged as the violative shipment. We have already been told that the phrase “accompanying such article” is not restricted to labels that are on or in the article or package that is transported, and that the first clause of § 321 (m) clearly embraces advertising or descriptive matter that goes with the package in which the article is transported. The second clause— “accompanying such article” — has no specific reference to packages, containers or their contents, and it plainly includes what is contained within the package whether or not it is “upon” the article or its wrapper or container, Kordel v. United States, 69 S.Ct. 106, and the advertising matter need not travel with the drag, United States v. Urbuteit, 69 S.Ct. 112. And since in our case it appears that the printed matter was used in the sale of the drug, that it advertised and explained the use of the drug, and that the drug and the printed matter moved from Indiana to a point outside of the State of Indiana, we are impelled to hold that the printed matter was “labeling” within the meaning of the Act. Second: Appellants insist that the representations made in the labeling were expressions of opinion that they honestly believed. They assert that “this is a repeat of the constant quarrel existing in the medical profession as to what is proper and what is improper treatment of disease”; that a difference of judgment among medical men as to the best course or method of treatment does not tend to prove that either party is wholly wrong or wholly right, and that all this case reflects is that certain physicians believe in one course of treatment and other physicians believe in another course of treatment. They make the point that before a court is warranted in submitting the false or misleading qualities of an assertion of effectiveness to a jury to decide, it must be satisfied that something more is involved than mere differences of opinion between schools or practitioners. In this case, the issue left to the jury was whether the labeling was false and misleading in that the statements in the printed matter represented and suggested and created in the mind of the reader and led him to believe that the drug was efficacious in the cure, mitigation, or treatment of diabetes. The labeling, as we have already observed, represented that “there is real hope for the diabetic, and the possibility of recovery; * * * this hope is presented in the form of a method and a treatment, which is free from prolonged or continuous dieting * * *. This consideration is invited in terms of what actually has been accomplished in a large number of cases of relief and recovery. * * In the majority of cases the patient resumes a normal diet within two or three • weeks after beginning the treatment.” The drug or treatment consisted principally of a mixture of vinegar and potassium nitrate (saltpeter); Taka-diastase, a proprietary digestive preparation, was sometimes added, but analysis revealed no Taka-diastase because it is inactivated and destroyed in a solution as strongly acid as the vinegar medicine. To show the ineffectiveness of the treatment, there was the testimony of patients who had been treated at the clinic and who had subjected themselves to the recommended home treatment with the vinegar medicine, and the testimony of .relatives of former patients who had undergone the treatment and subsequently died. Each of these histories was supported by competent medical testimony. A diabetic under competent medical care, taking insulin and on a regulated diet, with his disease under control, was induced to enter the clinic for the prescribed period. In accordance with appellants’ recommendations, he decreased his dosage of insulin or discontinued it and substituted appellants’ treatment. After subjecting himself to appellants’ treatment, he experienced results that commonly follow uncontrolled or improperly treated diabetes. The serious and irreparable injuries that followed included diabetic coma, permanent eye injuries, and gangrene resulting in amputation. Outstanding medical authorities who were specialists in the treatment of diabetes, testified that the treatment used and recommended by appellants would have no effect in the treatment of diabetes; that it was worthless and absolutely of no value. These experts testified that the opinions expressed by them represented the consensus of medical opinion of the authorities on diabetes; that insulin was the only drug known to be effective in the treatment of diabetes; that a proper diet and exercise must be integrated with the dosage of insulin; and that the patient must be educated to look after his condition. We have already held that a consensus of medical opinion is a question of fact and provable as such, United States v. Dr. David Roberts Veterinary Co., 7 Cir., 104 F.2d 785, and it has been held that a conflict of medical opinion concerning the effectiveness of a drug also presents a question of fact, Seven Cases v. United States, 239 U.S. 510, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164, and since it is not necessary in a prosecution under the Act to prove guilty knowledge or wrongful intent, United States v. Dotterweich, 320 U. S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. Parfait Powder Puff Co., 7 Cir., 163 F.2d 1008; and United States v. Greenbaum, 3 Cir., 138 F.2d 437, 152 A.L.R. 751, we think the jury’s finding that the labeling was false and misleading was supported by substantial evidence. Third: It is argued that under an instruction given the jury, the jury might return a verdict of guilty on all counts even though the unlawful distribution was entirely intrastate. In determining whether there is error in the court’s instructions the charge must be viewed as a whole, United States v. Carruthers, 7 Cir., 152 F.2d 512; and United States v. Fleenor, 7 Cir., 162 F.2d 935. The trial judge in the instant case, in an endeavor to guide the jury in its determination of whether any or all of the defendants shared the required responsibility in the conduct of the business, told the members of the jury that if they found that any or all of the defendants shared responsibility in conducting the business and that the operation of that business resulted in unlawful distribution of misbranded drugs, the defendants who shared such responsibility might be found guilty. He also instructed the jury that the burden of proof was upon the Government to prove every material allegation of the indictment and to establish the defendants guilty beyond a reasonable doubt, and that in determining whether the defendants did have a responsible share in the conduct of the business, it must take into consideration the work that each defendant did at the Kaadt Diabetic Clinic or Institute, the duties and responsibilities of each, and the extent to which each controlled or directed the conduct of the business. It is true, appellee did not show that in each instance all of the defendants physically participated in introducing the misbranded drug into interstate commerce. But physical participation is not necessary in order to have criminal responsibility attach for a violation of the Act. United States v. Dotterweich, supra, 320 U.S. at pages 284, 285, 64 S.Ct. 134, 88 L.Ed. 48, and United States v. Parfait Powder Puff Co., supra. Appellants also complain of the form of the verdicts. It is claimed the court failed to instruct the jury that defendants could be found guilty on some counts and not guilty on others. And they complain of an instruction which told the jury' that the Government need not prove that all of the statements in the labeling were false or misleading, and that if the jury found that any one of the claims or statements in the labeling was false or misleading it might find that the drugs in question were misbranded. The criticism heaped upon the instruction is that all three items of printed matter were not involved in each of the counts, and that in deliberating on a particular count, the jury might have considered items of printed matter not involved in that count. But the court also told the jury that it might consider each separate item, and in the counts where more than one piece of printed matter was involved, it might consider the effect of the combined influence of all types of printed matter involved. The record discloses that no objection was taken to the form of the verdicts or to the giving of this instruction. In this state of the record, under Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., appellants are precluded from a review. We have, however, considered the points raised. We think the trial judge made it clear to the jury that each defendant could be found either guilty or not guilty on each of the counts, and that it was told that in weighing the evidence in a particular count it should consider only the items of printed matter involved in that count. There was no error committed by the court in instructing the jury. Fourth: Appellant Charles F. Kaadt contends that the court erred in refusing to invoke the doctrine of res judicata. To be sure, the doctrine of res judicata is applicable to criminal as well as civil proceedings, and operates to conclude those matters in issue which have been determined by a previous verdict, even though the offenses be different. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237. In our case it appears that during the trial Kaadt offered in evidence the verdict of a jury and the opinion of the District Court in 1940 in the case of United States v. Kaadt, 31 F.Supp. 546. The indictment in that case charged him with a scheme to defraud and the use of the mails to further such a scheme. He asserts that the question and issue passed upon in the prior action dealt with the therapeutic value of his medicine, and argues that that issue can not again be litigated in this case. He should not be vexed more than once for the same cause. In support of his argument he cites, among other cases, United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, 3 L.R.A. 516; State of Oklahoma v. Texas, 256 U.S. 70, 41 S.Ct. 420, 65 L.Ed. 831; and Tait v. Western Maryland Railway Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. Counsel for appellee concedes, as he must, the propriety of invoking res judicata when the issues have previously been tried and determined, but to avoid the application of the doctrine, he points to the fact that in a scheme to defraud the significant fact is the intent and purpose, and that the two essential elements of the offense of using the mails to defraud, 18 U. S.C.A. § 338 [now § 1341], are the existence of a scheme to defraud and the placing or causing to be placed in the post office a letter, post card, package, writing, circular, pamphlet, or advertisement, for the purpose of executing the scheme. Fournier v. United States, 7 Cir., 58 F.2d 3; United States v. Lowe, 7 Cir., 115 F.2d 596; and United States v. Cohen, 2 Cir., 145 F.2d 82. We agree with appellee that it is impossible from this record to ascertain on what ground the jury acquitted Kaadt of the offense of using the mails to defraud. But the instant prosecution does not involve any question of fraud. The misbranding charged is based on § 352(a) of the Act which provides that a drug or device shall be deemed to be misbranded if its labeling is false or misleading in any particular. And Sealfon v. United States, supra, is of no aid to appellant for the reason that in the unique circumstances of that case, the jury’s verdict in the conspiracy trial was a determination favorable to Sealfon of the facts essential to a conviction of the substantive offense. Appellee in the present case was not required to prove intent to defraud. Thus the offense of using the mails to defraud and the offense of introducing or delivering for introduction into interstate commerce misbranded drugs are not the same, and hence there is no res judicata. Compare United States v. Five cases, 2 Cir., 156 F.2d 493. The judgment of .the District Court is affirmed. “3 Months’ Medical Treatment to take home -with you when you leave the institute * * * “ * * * there is real hope for the diabetic, and the possibility of recovery * * * “When this hope is presented in the form of a method and a treatment, which is free from prolonged or continuous dieting, with internal medicine taken by mouth, and without the necessity of absence from home, work, or business, it is certain to receive the most eager consideration of every diabetic. This consideration is invited in terms of what actually has been accomplished in a large number of cases of relief and recovery. * * * “The Kaadt Diabetic Institute is the culmination of over thirty years of successful treatment of diabetics by Dr. O. F. Kaadt * * * * * * “The principal method of treatment is an internal medicine taken by mouth. * * * “In the majority of cases the patient resumes a normal diet within two or three weeks after beginning the treatment. * * * “The flies of the Institute contain many letters from grateful and appreciative patients expressing their recovery and a return to normal living.” “Accurate dosage is diflieult so if you feel that you are not getting along as well as you should increase your dose a little. It may be necessary to double it. On the other hand, if you are taking too much decrease it a little, or put in more water. The amount of water can be decided by the patient as it causes no loss of effectiveness by diluting. Drink plenty of water.”

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

Paul W. BOYLE and Mark S. Smaller, Plaintiffs, Appellants, v. Thomas TURNAGE, Administrator of Veterans Affairs, et al., Defendants, Appellees. No. 86-1087. United States Court of Appeals, First Circuit. Argued June 5, 1986. Decided Aug. 19, 1986. Seth M. Kalberg, Jr. with whom Douglas M. Brooks was on brief, for plaintiffs, appellants. Karen F. Green, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., was on brief, for defendants, appellees. Before BREYER, Circuit Judge, BROWN, Senior Circuit Judge, and TORRUELLA, Circuit Judge. Of the Fifth Circuit, sitting by designation. JOHN R. BROWN, Senior Circuit Judge: In this appeal we must determine whether the District Court erred in upholding— against a constitutional attack — the Veteran’s Administration (VA) policy on the use of mace in the training and employment of VA police officers. Two VA police trainees brought this action following their discharge for refusing to complete a portion of the training program which required them to be exposed to a streamer burst of mace in the face. We hold that the training requirement in question is rationally related to a legitimate government objective, and we therefore affirm. In Your Face Plaintiffs-Appellants Paul Boyle and Mark Smaller were engaged in a training program for hospital police officers at the Boston Veteran’s Administration (VA) Medical Center. They were both employed on a probationary status and, upon successful completion of the training program, would become VA police officers at the hospital. Since all VA policemen are armed with mace instead of conventional weapons, the training program naturally requires significant instruction in the use of mace. One aspect of this instruction is the requirement that the trainees be exposed to a one-second streamer burst of mace aimed at the lower portion of the face so that the trainees might better understand the nature of this weapon. Boyle and Smaller submitted to their supervisors letters from doctors recommending that the two trainees be excused from the training requirement for medical reasons. Apparently, Boyle and Smaller decided to seek medical excuses after watching a cotrainee collapse, shake, and tremble from the effects of the mace exposure. After submitting the doctor’s excuses, Boyle and Smaller were both discharged from their employment for failure to complete the training requirement. Summary Judgment Sought Following the termination of their VA employment, Boyle and Smaller filed suit in federal district court, claiming that the VA training requirement violated their substantive due process rights. The defendants moved for summary judgment, submitting affidavits regarding the government’s purposes in requiring the exposure of VA police trainees to a one-second streamer burst of mace. These affidavits included that of James G. Fasone, the Director of Social Security Service in the Department of Medicine and Surgery, United States Veterans Administration. Fasone is the policymaker who determined that the police trainees should be exposed to the mace. The Fasone affidavit lists the following purposes of the training requirement: (1) VA policemen should understand first-hand the effects of the spray because they are required to provide assistance to persons subjected to the spray; (2) VA policemen should mentally and physically work through the effects of mace in a non-emergency situation because it is conceivable that, in the course of performing their duties, VA policemen might have the weapon taken away and used against them by an assailant; and (3) The training requirement allows the VA to determine whether the trainees can overcome the effects of mace and continue to perform their duties while suffering those effects. The plaintiffs submitted opposing affidavits which primarily show the possible serious consequences of mace rather than challenge the rationality or reasonableness of the government’s asserted reasons for adopting and continuing to administer the training requirement. Although the affidavit of Dr. Richard Brown, submitted by the plaintiffs, might bring into question the reasonableness of the second and third of the government’s asserted purposes, nowhere have the plaintiffs challenged the rationality of the government’s first asserted objective — to allow the VA police officers to experience and understand firsthand the effects of mace so the officers may be better able to provide assistance to persons subjected to the spray. The District Court granted the VA’s motion for summary judgment, and we affirm. “A-macing,” Yet Rational The District Court correctly determined that Boyle and Smaller had no property interest in continued employment because of the probationary status of their jobs. That, however, does not end the inquiry. The Supreme Court has held that the right to personal safety is an historic liberty interest protected substantively by the Due Process Clause. Youngberg v. Romero, 457 U.S. 307, 315, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28, 37 (1982). The Veterans’ Administration argues, and the District Court found, that Boyle and Smaller’s liberty interest in personal safety was not jeopardized or infringed here because they had the option of refusing the test and seeking employment elsewhere. This analysis is incorrect. The theory that public employment, which may be denied altogether, may be subjected to any condition however unreasonable has been uniformly rejected. Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 685, 17 L.Ed.2d 629, 642 (1967). In Keyishian, in the context of freedom of religion and expression, the Court stated, “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon [government employment].” 385 U.S. at 606, 87 S.Ct. at 675, 17 L.Ed.2d at 642. Here, as in Keyishian, a liberty interest (personal safety) of Boyle and Smaller was possibly infringed by a condition of public employment (the mace-in-the-face test). Therefore, in our limited role as expositors of constitutional limitations and not as experts in the training of VA security officers or the use of chemical deterrents (mace), we must determine whether the training requirement is rationally related to the government’s reasons for imposing, it. See Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708, 716 (1976). Boyle and Smaller must show that there is no rational connection between the training requirement and a legitimate government end. Kelley, 425 U.S. at 247, 97 S.Ct. at 1446, 47 L.Ed.2d at 716. Based upon the summary judgment affidavits, they utterly failed to do so. We having no difficulty concluding that the most legitimate reason proffered by the VA in support of its training requirement is that the burst of mace will help the officers appreciate and understand its effects so that they may better assist persons subjected to the spray. In fact, the training manual indicates that mace was the VA’s preferred choice of weaponry precisely because it can incapacitate without causing lasting injury. A first hand understanding and appreciation of the effects of mace, together with the corresponding detailed instructions regarding proper use, certainly promotes the prevention of serious, or lasting, injury. Plaintiffs’ affidavits, however, nowhere brought into dispute the rationality of the connection between the training requirement and this very legitimate government end. Therefore, the District Court correctly granted the VA’s motion for summary judgment. AFFIRMED. . They named as defendants, in their official capacities, Harry Walters, the VA’s Administrator of Veterans Affairs; Donald L. Custis, the Medical Director of the VA Department of Medicine and Surgery; and Barbara A. Small, the Director of the Boston VA Medical Center. On May 5, 1986, this Court granted defendants’ motion to substitute Thomas Turnage for Harry N. Walters, Dr. John Ditzler for Dr. Donald Custis and Jerry Boyd for Barbara A. Small as defendants-appellees, in this action. . Mace, or alpha-chloroacetophenone (CN), is a chemical irritant which will immediately incapacitate if sprayed in someone’s face. It produces tearing of the eyes, reflex closure of the eyelids, and a burning sensation on the skin and in the upper respiratory tract. . Boyle and Smaller both stated in their affidavits that the co-trainee was exposed to a streamer burst of mace lasting much longer than the required one second. They also claimed that the co-trainee was sprayed from a distance of less than three feet — much closer than the VA policy, reflected in the Chemical (CN) Irritant Projector Training Guide, of firing the weapon at a distance of no less than six feet. Finally, the plaintiffs stated in their affidavits that there was no first aid water present during their co-trainee’s exposure to the mace. Although this is relevant to the constitutionality of the VA policy as applied to the co-trainee, Boyle and Smaller never submitted to the training requirement and probably have no standing to argue the co-trainee’s potential claims. . Boyle and Smaller challenge the admissibility of Fasone’s affidavit, arguing that it is not in compliance with F.R.CiV.P. 56(e), primarily on the grounds that the affidavit was not made on the personal knowledge of Fasone. We find no merit to this argument. The most vital statements in the affidavit are those dealing with the reasons for administering the training requirement. Since Fasone is the person who devised the requirement, he was certainly in the best position to state its objectives. . The Chemical (CN) Irritant Projector training manual reveals that the selection of mace projectors as VA police weapons was motivated in large part by a desire to incapacitate without causing lasting injury. The training manual indicates that the mace projector was selected over guns and nightsticks for this very reason. In fact, the training manual provides specific instructions relating to the treatment and handling of those suffering the effects of mace in order to prevent lasting injury.

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

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

Matthew J. CONNELLY and T. Lamar Caudle, Appellants, v. UNITED STATES of America, Appellee. No. 15746. United States Court of Appeals Eighth Circuit. Nov. 15, 1957. Rehearing Denied Dec. 13, 1957. John H. Lashly and Jacob. M. Lashly, St. Louis, Mo. (Paul B. Rava, Lashly, Lashly & Miller, St. Louis, Mo., and Alan Y. Cole, Washington, D. C., were with them on the brief), for appellant Matthew J. Connelly. John J. Hooker, Nashville, Tenn. (Walter M. Haynes, Winchester, Tenn., and C. Arthur Anderson, St. Louis, Mo., were with him on the brief), for appellant T. Lamar Caudle. Warren Olney, III, Asst. Atty. Gen. (Harry Richards, U. S. Atty., St. Louis, Mo., and Carl H. Imlay, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellee. Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges. GARDNER, Chief Judge. Appellants with one Harry I. Schwimmer were indicted under an indictment which charged them with conspiring to defraud the United States government in violation of Section 371, Title 18, U.S.C. The single count indictment alleged that the purpose of the conspiracy was to defraud the United States of the proper administration of the Internal Revenue laws and regulations, of the proper and faithful service of appellants Connelly and Caudle and to commit the offenses of bribery, perjury and knowingly making false statements and.entries.. The indictment named as co-conspirators but not as defendants Irving Sachs, Ellis N. Slack, Shu-Stiles, Inc., and divers other persons to the grand jury unknown. At all times pertinent to the issues here involved appellant Matthew J. Connelly was Appointment Secretary to President Truman; appellant T. Lamar Caudle was an Assistant Attorney General in charge of the Tax Division of the Department of Justice; Harry I. Schwimmer was a Kansas City, Missouri, lawyer; Ellis N. Slack was an attorney in the Department of Justice; Irving Sachs was a St. Louis, Missouri, shoe broker, and Shu-Stiles, Inc. was a Missouri corporation of which Sachs was president. The indictment further charged that the purpose of the conspiracy was to protect Irving Sachs from criminal prosecution for Internal Revenue law violations. After considerable testimony had been introduced by the government in support of the indictment Harry I. Schwimmer, named as a defendant, suffered a heart attack making it impossible for him to be present at the trial and thereupon a five day continuance was had. On proof that defendant Schwimmer could not, because of his heart condition, continue to be present at the trial or to participate therein the court declared a mistrial as to him whereupon appellants Connelly and Caudle moved for a mistrial as to themselves, which motions the court denied. At the close of the government’s evidence in chief, appellants moved for judgments of acquittal which motions were denied. The appellants then offered evidence in their defense and at the close of all the evidence they renewed their motions for judgments of acquittal. The court announced that it would reserve ruling on these motions. At the close of all the evidence the court withdrew from the consideration of the jury the allegations of the indictment regarding the substantive offenses of bribery, perjury and knowingly making false statements and entries and then submitted the case to the jury on instructions to which no exceptions are here urged. The jury returned verdict of guilty as charged in the indictment and thereafter appellants interposed motions for judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial. They also renewed their motions for mistrial which had been denied at the time a mistrial was declared as to defendant Schwimmer. The court set these motions down for hearing thirty days from the date of filing. Twelve days before the date set for hearing Judge Hulen, who had heard the case, departed this life and thereafter and in due course Judge Gunnar H. Nordbye, United States District Judge for the District of Minnesota, was appointed as successor judge under Rule 25, Federal Rules of Criminal Procedure, 18 U.S.C.A. Subsequent to the appointment of Judge Nordbye as successor judge appellants filed a supplemental motion for new trial on the ground of newly intervening facts, namely, the death of Judge Hulen, whereby appellants alleged they were deprived of the determination of pending motions by the trial judge, and on the ground of newly discovered evidence regarding the failure of some jurors to answer material questions propounded by the trial court upon voir dire examination. A hearing was had before Judge Nordbye on all pending motions December 18, 1956, and thereafter on February 11, 1957, all pending motions were overruled by him. Subsequent to the denial of these pending motions and on or about March 4, 1957, appellants filed a third supplemental motion for new trial on the ground of alleged newly discovered evidence. This too was denied by Judge Nordbye, following which the court pronounced sentence and entered judgment pursuant to the jury’s verdict. It is the contention of appellants that they were deprived of a fair trial by virtue of Judge Hulen’s death after verdict was rendered and by the fact that a successor judge heard and denied their post-trial motions for judgment of acquittal and for a new trial. It is urged that the successor judge was not qualified to pass upon the pending motions, particularly their motions for judgment of acquittal notwithstanding the verdict or in the alternative for a new trial, because not having presided at the trial of the case he did not have the “feel of the case”. Rule 25, Federal Rules of Criminal Procedure provides as follows: “If by reason of absence from the district, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.” Judge Nordbye was assigned as successor judge in this case in strict compliance with this rule. Federal criminal law and procedure are dependent upon Federal statutes. Under this rule it was the duty of the successor judge, in the first instance at least in the exercise of a sound judicial discretion, to determine whether he could satisfactorily perform the duties of the judge who presided at the trial and whom he succeeded. It is to be observed that in the instant case while Judge Nordbye was assigned to perform the unfinished trial of this case on June 16, 1956, he did not hear the pending motions until some six months later and it is quite apparent from this record that in that time he thoroughly familiarized himself with the facts and satisfied himself that he could perform the duties to be performed by the presiding judge. Referring to this contention Judge Nordbye in the course of his opinion says: “ * * * This Court is not unmindful that the observation made by the defendants as to the assigned Judge’s being unable to have the ‘feel of the case’ is a matter that deserves careful consideration, and undoubtedly there is substance to defendants’ position in this regard. On the other hand, this Court cannot escape the fact that this case has.taken a long time to try, the defendants were represented by experienced and skillful counsel, and the Judge who presided at the trial was •recognized by all parties to have been not only an able and experienced trial judge, but one who presided with impeccable fairness and impartiality. Consequently, it would seem that, under these circumstances and after consideration of the entire record, I should not evade the responsibility which rests upon me by summarily granting a new trial, but rather to the best of my ability attempt to render definitive rulings on the various aspects of the motions presented.” There might well be a criminal case in which the testimony would be of such a character that a successor judge could not fairly pass upon the questions here presented. If the evidence of the government were denied and the question of the credibility of the government witnesses was a serious issue the conflict in the evidence and the question of the credibility of witnesses might bé a matter of very serious consideration. However, in the instant case the evidence of the government was not of that character. As has been observed, the defendants here were charged with attempting to thwart the criminal prosecution of Irving Sachs for Internal Revenue law violations. The Internal Revenue agents on investigation reported that Sachs as president of Shu-Stiles, Inc. had fraudulently evaded taxes due the government by the company to the extent of $188,-378.32. Criminal prosecution had been recommended by the agents of the Bureau of Internal Revenue and attorney Schwimmer was then employed to thwart this threatened criminal prosecution. The government’s testimony tended to prove certain business transactions between Schwimmer and appellants by which the appellants profited, the payment of large sums of money by Sachs to Schwimmer,. entries in - books of Schwimmer indieating disbursement of sums of money on behalf-of appellants, evidence that Schwimmer had purchased for appellant Connelly two suits of clothes, and evidence of visits by Schwimmer to and consultations with the appellants at various times. This general characterization of this testimony indicates that it was in the nature of circumstantial evidence by the government furnishing the basis for inferences by the jury and it was not disputed by appellants but their testimony went to either their lack of knowledge of other explanations of the transactions proven by the government. In these circumstances there was not much to be gained by hearing the testimony of the witnesses and observing their demeanor that could not be gained by reading the testimony and we think Judge Nordbye did not abuse his judicial discretion when he determined, as he manifestly did, that he could perform the duties to be performed by the presiding judge after verdict. The law governing the situation here presented was strictly complied, with and we think that law provided due process within the requirements of the Fifth Amendment. Meldrum v. United States, 9 Cir., 151 F. 177; Chin Wah v. United States, 2 Cir., 13 F.2d 530; King v. United States, 6 Cir., 25 F.2d 242; Owens v. Hunter, 10 Cir., 169 F.2d 971; McIntyre v. Modern Woodmen of America, 6 Cir., 200 F. 1; Pessagno v. Euclid Inv. Co., D.C.D.C., 35 F.Supp. 743; United States v. Green, D.C.S.D.Ill., 143 F.Supp. 442. In Meldrum v. United States, supra, the authority of a succeeding judge to pass upon a motion for a new trial in a federal criminal case tried before another judge who died while the motion was pending was expressly sustained. In the course of the opinion in that case it is said [151 F. 182]: “Did the judge of the court below have authority to pass upon the motion for a new trial and impose the sentence? The plaintiff in error contends that he did not, that he had not participated in the trial, and that the right of the plaintiff in error to have the judge who presided at his trial take part with the jury at every step in the determination of his guilt or innocence was a fundamental right which could not be taken away by an act of Congress, * * *. “ * * * Section 953 of the Revised Statutes as amended by Act June 5, 1900, c. 717, § 1, 31 Stat. 270 (U.S.Comp.St.1901, p. 696 [Fed.Rules Civ.Proc. rules 46, 63, 75, 28 U.S.C.A.]), provides that in case of the death of the judge before whom a cause has been tried the judge who succeeds him ‘or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes * * * shall pass upon said motion and sign such bill of exceptions’; and it further provides that if said judge is satisfied that, owing to the fact that he did not preside at the trial or for any other cause, he cannot fairly pass upon said motion and allow and sign said bill of exceptions, he may in his discretion grant a new trial. If the succeeding judge can, as undoubtedly he may under this statute, deny a motion for a new trial, there can be no question of his power to further proceed in the case and render judgment upon the verdict.” We conclude that the contention that Judge Nordbye was disqualified to perform the duties to be performed by the presiding judge after verdict is without merit. Appellants were subpoenaed as witnesses to testify before the grand jury and each of them did so testify. After the return of the indictment they moved to dismiss the indictment and suppress the testimony which they had given before the grand jury on the ground that they had not been advised that the prosecutor had decided at the time they testified to seek an indictment against them. Appellant Caudle was a lawyer with wide experience in criminal prosecutions on behalf of the government. Appellant Connelly was a man experienced in the investigating of fraud and criminal matters. He had been the chief investigator for a Senate committee investigating many fraudulent and criminal situations. The record definitely shows that each of the defendants was apprised of his constitutional rights. There was some doubt as to when the prosecutor had definitely decided to seek an indictment against them. After hearing testimony on the motion Judge Hulen decided when the prosecutor had decided to seek indictments against them and he suppressed all testimony given by them before the grand jury after that date, but denied the motion to suppress testimony given by them before that date and also denied their motions to dismiss the indictment. The ruling of the court, we think, was eminently fair to appellants. We shall not encumber this opinion with a long recital of the warnings given and the circumstances thereof. It abundantly appears that they were advised and were at all times aware of their constitutional rights. We think the contention of appellants in this regard wholly without merit. The trial of this case began May 7, 1956, and the jury returned a verdict June 14, 1956. After the case had been on trial for some sixteen days the defendant Schwimmer suffered a heart attack and as hereinbefore noted a mistrial was declared as to him. Thereupon appellants moved for a mistrial as tp themselves on the ground that certain evidence admitted as to Schwimmer alone was of such a prejudicial nature that its effects could not be eradicated from the jury’s mind by the court’s instructions. Their motion was denied and the court instructed the jury that the testimony which the court identified, admitted as to Schwimmer alone, was withdrawn from the jury’s consideration. In the course of its instruction on this question the court said: “Now, as to the testimony given by these two witnesses as I have referred to them as to these conversations with Schwimmer, I withdraw that testimony from your consideration. I have not gone into it in detail, but you will recall it. You are not to consider such testimony as evidence in this case of any character. Just forget that that testimony relating to the subject and at the times I have referred to was given in this case. Strike it from your minds entirely. It now has no bearing on the issues in this case and you will not consider it in any manner in arriving at your decision as to the guilt or innocence of either of the defendants in this case. “Does that cover the subject?” The instruction was not excepted to. The testimony in no way implicated either of the other defendants on trial and we think the court’s instruction proper, and we cannot presume that the jury disregarded it. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154; Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.E.2d 278. In Blumenthal v. United States, supra, two of the defendants had made admissions which the trial court admitted as to them only and in its instructions specifically limited such evidence as to them and told the jury to disregard such evidence in considering the guilt or innocence of the other three defendants. In the course of the opinion it is among other things said [332 U.S. 539, 68 S.Ct. 253] : “But the trial court’s rulings, both upon admissibility and in the instructions, leave no room for doubt that the admissions were adequately excluded, insofar as this could be done in a joint trial, from consideration on the question of their guilt. The rulings told the jury plainly to disregard the admissions entirely, in every phase of the case, in determining that question. The direction was a total exclusion, not simply a partial one as the Government’s argument seems to imply. The court might have been more emphatic. But we cannot say its unambiguous direction was inadequate. Nor can we assume that the jury misunderstood or disobeyed it.” In the very recent case of Delli Paoli v. United States, supra, the Supreme Court, reaffirming the doctrine of its prior decisions, said [352 U.S. 232, 77 S.Ct. 300]: “It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court’s instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.” The declaration of a mistrial as to the defendant Schwimmer removed him from the case and it is to be noted that prior to the trial appellants sought to remove him from the case by a motion for severance. This declaration of a mistrial as to Schwimmer as effectively removed him from the case as would the granting of appellants’ motions for severance. But it seems to be argued that appellants were prejudiced, both by having Schwimmer tried jointly with them and by removing him by process of declaring a mistrial as to him. It is suggested that when Schwimmer was removed as a defendant they were deprived of his possible testimony on the assumption that he would have taken the stand in his own defense. This he might or might not have done and in this connection it is observed that he invoked the Fifth Amendment when he was called before the grand jury. Neither is there any assurance that had he taken the witness stand his testimony would have any tendency to exonerate appellants. Appellants’ position after the severance of Schwimmer by the court’s declaration of a mistrial as to him was no different than it would have been had he been named only as a co-conspirator. Even had Schwimmer been named as a co-conspirator only, his acts and declarations during the time of and in furtherance of the conspiracy would have been admissible against appellants. We think the removal of Schwimmer from the case was not prejudicial to appellants. Carrado v. United States, 93 U.S.App.D.C. 183, 210 F.2d 712; Poliafico v. United States, 6 Cir., 237 F.2d 97; United States v. Beck, 7 Cir., 118 F.2d 178; United States v. Karavias, 7 Cir., 170 F.2d 968. The motion for mistrial as to the appellants because of the severance of Sehwimmer by the court’s declaration of mistrial as to him was under the circumstances here disclosed addressed to the sound judicial discretion of the trial judge and we think this discretion was wisely exercised in denying appellants’ motions. The court on its own motion entered an order directing that in selecting jurors for this case residents of the city and county of St. Louis be excluded from the list of prospective jurors, and the prospective jurors were accordingly selected from other parts of the district. Prior to the entry of this order the defendants had moved for a change of venue on the ground, among others, that they could not have a fair and impartial trial in the district because of the prejudicial publicity, editorial and otherwise, largely contained in the daily newspapers published in St. Louis and widely circulated and read, concerning alleged corruption of public officials in the Bureau of Internal Revenue and in the Department of Justice, and specifically relating to the method of handling income tax evasion cases in the Eastern District of Missouri, and the alleged corruption of public officials both in the District of Columbia and the Eastern District of Missouri. These motions were denied but the court then entered the above order, geographically excluding residents of the city and county of St. Louis. Section 1865(a), Title 28, U.S.C. provides: “Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service. * * * ” The order was in strict conformity with the statute and it did not eliminate any particular class but the jury as drawn represented a cross section of the geographic unit designated and was manifestly selected from that part of the district which the judge thought to be most favorable to an impartial trial. The contention that the order resulted in a “rural” jury is without foundation in fact. As disclosed by their examination on voir dire for instance, six of the panel had lived in St. Louis or other large cities for some time. Many of the other jurors lived in large towns. Neither were the prospective jurors exclusively engaged in agricultural pursuits but included a wide range of professions, trades and occupations. The action of the trial judge followed a practice warranted by this statute. Myers v. United States, 8 Cir., 15 F.2d 977; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187. In Myers v. United States, supra [15 F.2d 978], it is said: “Plaintiff in error, defendant below, filed a motion to quash the jury panel because of the exclusion, in the drawing, of jurors from Douglas county, in which Omaha is situated; it being urged that the population of Douglas county formed a large percentage of that of the division of the district in which the offense was committed and tried. The order excluding these jurors was made pursuant to a long-standing practice of the court that, in drawing jurors, the county in which the crime was committed should be excluded. * * * * * * “The motion to quash the panel was properly overruled. The law authorizes the court to draw the jury as was done in this case, and it is not required to assign a reason for so doing. The presumption is that it acted in the exercise of a sound discretion. If requested to assign a reason for the purpose of making a record for review, we think proper practice would require this to be done; but, in the absence of such request, we do not think the discretion can be challenged on that ground. The burden is upon the party who seeks to challenge the alleged arbitrary action, and in this case that burden has not been successfully carried. Spencer v. United States, 8 Cir., 169 F. 562, 95 C.C.A. 60.” We must presume that it was the purpose of the trial judge to have the jury selected from such parts of the district as to be most favorable to an impartial trial. After the trial had closed and the jury had returned a verdict finding appellants guilty, and a successor judge had been assigned to finish the trial of the case, appellants filed a motion for new trial on the ground of newly discovered evidence. In this motion it was alleged that two of the women jurors had concealed important facts relevant to their personal qualifications thereby impairing Appellants’ rights to intelligently exercise their challenges and depriving them of a fair and impartial trial. These two jurors were women. On voir dire the judge propounded among others the following questions: “Have any of you or the immediate members of your family, mother, father, brother, sister or husband or wife, or children, other than the gentleman who was sheriff, have you or any immediate members taken part in behalf of either political parties in political affairs such as a candidate for office or committee worker? “Do either of you or are any members of your family affiliated or hold membership or office — we have covered- county committees, but sometimes there are Democratic or Republican organizations separate from the committee, and sometimes Democratic clubs or Republican clubs. To your knowledge, are you or any member of your family any members of such club or organizations? if so, raise your hand.” Neither of these women jurors answered either of these inquiries in the affirmative. In referring to this incident Judge Nordbye in his opinion says: “The evidence at the hearing on the motions for a new trial, which supplanted the affidavits previously obtained, indicate that these two jurors, to wit, Goldie Brown and Grace Hoffman, were members of the Montgomery Township Republican Club in the years 1953, 1954 and 1955, but evidently from the testimony it would appear that they were not in 1956. Robert Hoffman, however, the son of Grace Hoffman, was treasurer of the committee or club in 1956. There is no showing here that Mrs. Hoffman knew that her son was treasurer of the local Republican Central Committee in 1956, and moreover, there is no showing that either of these jurors wilfully failed to answer truthfully the questions to which reference has been made. Furthermore, there is no showing that the defendants were prejudiced in any way by reason of any Republican affiliation or activities of either of these two jurors. This Court has no right to assume that in this trial jurors of Republican political affiliation would be prejudicial to these defendants and that jurors of Democratic affiliation would be prejudicial to the Government. And finally, the record is bereft of any showing that there was fraudulent conduct on the part of these juror’s.” We are in entire accord with this ruling. It is contended that the court erred in denying a change of venue or a continuance. The motions were addressed to the discretion of the court, Finnegan v. United States, 8 Cir., 204 F.2d 105; Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 108, and on careful review of the record we are convinced that there was no abuse of that discretion. It is next contended that appellants’ motion for judgment of acquittal or a new trial should have been granted because the evidence is as consistent with innocence as with guilt. In considering the question of the sufficiency of the evidence to go to the jury and to sustain the verdict we must view the evidence in a light most favorable to the prevailing party, in this case the government, and the prevailing party is entitled to all such favorable inferences as may reasonably be drawn from the facts and circumstances proven. If when so viewed, reasonable minds might reach different conclusions then the issue is one of fact to be submitted to the jury and not one of law to be determined by the court. Brennan v. United States, 8 Cir., 240 F.2d 253; Peters v. United States, 8 Cir., 160 F.2d 319. It appears without dispute that Irving Sachs was guilty of a wilfull and flagrant tax fraud to which there was apparently no defense. As heretofore noted the agents of the Bureau of Internal Revenue had recommended prosecution. In this situation Harry I. Schwimmer, a lawyer of Kansas City, Missouri, was employed for the express purpose of thwarting this threatened criminal prosecution. His first ground for seeking relief was that Sachs had made voluntary disclosure. When it was shown that the so-called disclosure was not full and complete but was itself fraudulent Schwimmer abandoned that theory and sought to protect his client from criminal prosecution on the ground of ill health, claiming that his prosecution would probably result in his death. While it was shown that Sachs was an epileptic, the fact was not known to his own counsel, Shifrin, who had represented him for some twenty years, and even during the time the Department of Justice was considering the gravity of his malady he was able to look after his business in substantially his usual and normal manner. He was chief executive of Shu-Stiles, Inc., a substantial concern. At the government’s request he was examined by Dr. Robert M. Bell, a consultant for the United States Public Health Service in neuropsychiatry. Dr. Bell reported that in his opinion any fatal outcome in the case of prosecution and trial of Sachs was “remote indeed”. Schwimmer employed a number of doctors, none of whom made an examination of Sachs, but on the basis of reports and data submitted to them gave as their opinion that criminal prosecution of Sachs would constitute a clear and present danger to his health. Caudle disregarded the report of Dr. Bell; he also disregarded the recommendation of the Bureau of Internal Revenue and ordered that Sachs be not criminally prosecuted but that the case be treated on the basis of civil liability. His action in disregarding the recommendation of the Bureau of Internal Revenue and in disregarding the report of a government doctor was unprecedented and did violence to the accepted practice of the Department. It appears from the evidence that Schwimmer made frequent calls on Caudle and Connelly. There is evidence of their frequent conversations and there is evidence of Caudle’s and Connelly’s continued activity and interest on behalf of Schwimmer’s client. Schwimmer received in payment as compensation for his services in seeking to’ thwart the criminal prosecution of Sachs some $46,000, from which apparently he paid to each of the appellants or on their behalf substantial sums of money. There is also undisputed evidence that Schwimmer presented to Connelly two suits of clothes made to order. As has heretofore been noted, the appellants, through Schwimmer, had certain business transactions in which they made substantial profits. The jury may well have inferred that these so-called business transactions were a mere coverup for the fact that Schwimmer was compensating them for assisting him in thwarting the prosecution of a man confessedly guilty of defrauding the government. It is strenuously urged that the evidence was insufficient to prove that Connelly knowingly participated as a co-conspirator. It appears from the evidence that Connelly first called Charles Oliphant, Chief Counsel of the Bureau of Internal Revenue, in August of 1948, when Schwimmer had scheduled a conference with Oliphant, saying that Schwimmer had asked that “we call you and let you know we know him”. The case was referred to the Department of Justice August 12, 1949, after pending about four years in the Bureau of Internal Revenue where Schwimmer, with the assistance of Connelly, had secured its delay. Subsequent to the transfer of the case to the Department of Justice Schwimmer obtained a further delay of one month. In September of 1949 Connelly then called Caudle and requested further postponement for his “friend” Harry I. Schwimmer. In response to this request Caudle relayed a message through Connelly to Schwimmer that Schwimmer could come in whenever he wanted but as soon as possible and that a postponement would be all right because the statute of limitations was not involved. A few days subsequent to this contact between Connelly and Caudle, Sachs paid $2,500 from ShuStiles, Inc. money to Schwimmer and on October 12, 1949, gave Schwimmer a check for $10,000, from which Schwimmer purchased an oil royalty for Connelly. The jury was warranted in believing that these expenditures by Schwimmer on behalf of Connelly were to rewaxd him for his services in assisting to thwart the criminal prosecution of his client Sachs and there are other attending circumstances corroborating this conclusion. As pointed out by Judge Nordbye: “That Connelly knew and understood that Schwimmer’s business with Caudle was an attempt to obtain.a commitment from the Department of Justice that there would be no criminal prosecution in the Sachs case, seems evident from the conversation which Connelly had with Oliphant over the telephone on January 16,1951. At that time Schwimmer already had obtained a letter from Caudle stating that there would be no criminal prosecution in the Sachs case, but notwithstanding he was attempting to obtain a similar letter of no-prosecution from the Bureau of Internal Revenue. In a conversation with Connelly over the telephone, Oliphant stated, ‘You know Schwimmer on Sachs — does he just want to look good?’ And Connelly replied, ‘Wants to make sure not going to reverse justice again.’ Certainly, this conversation would indicate that Connelly was aware of Schwimmer’s plans to have both Departments committed on the Sachs case so that he need have no fear that the Bureau would render a ruling adverse to that which he obtained from the Justice Department. Moreover, it must be apparent that Connelly knew that Schwimmer had obtained a no-prosecution letter from Caudle at that time. The friendly relations between Connelly and Schwimmer and the six or seven or more telephone calls to government officials made by Connelly with reference to the Sachs case fully warranted the jury in determining that Connelly’s relation with the case that was pending in the Bureau of Internal Revenue and then in the Department of Justice was something more than mere routine telephone calls for the arranging of appointments.” The inferences to be drawn from all the surrounding circumstances connecting Connelly with the activity of Schwimmer warranted the jury in returning its verdict of guilty as to both appellants. There was in evidence a document in Schwimmer’s handwriting indicating that in connection with Schwimmer’s attempt to thwart the criminal prosecution of his client, Schwimmer paid substantial sums to or on behalf of appellants. These circumstances, we think, warranted the jury in inferring that Schwimmer paid the appellants substantial sums of money for their assistance in attempting to thwart the criminal prosecution of his client. We conclude that the evidence, with the inferences that might reasonably be drawn therefrom by the jury, was substantial and that there was no error in denying appellants’ motion for judgment of acquittal or for a new trial. It is however contended that the court erred in admitting 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 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?

PARSONS et al. v. PARSONS et al. No. 3790. United States Court of Appeals Tenth Circuit. March 23, 1949. V. E. Stinchcomb and R. Gordon Lowe, both of Oklahoma City, Okl. (A. B. Plon-nold, of Tulsa, Okl., on the brief), for appellants. Frank G. Anderson, of Oklahoma City, Okl. (F. B. H. Spellman, of Alva, Okl., on the brief), for appellees. Before PHILLIPS, Chief Judge, HUX-MAN, Circuit Judge, and SAVAGE, District Judge. HUXMAN, Circuit Judge. At the time of her death, Mary Jane Viles owned, in addition to other property, the Southwest Quarter of Section Three, Township Twenty-Six North, Range Fourteen W.I.M., in Woods County Oklahoma. She died leaving a last will and testament which was duly admitted to probate in the County Court of Alfalfa County, Oklahoma. A photostatic copy of paragraph two of the will, as admitted to probate, appears in the record as follows: “I give and bequeath to my son Calvin Arvestis Parsons the following described property to wit South west quarter of Section three Township twenty six Range Fourteen containing One Hundred sixty acres of land same to fall to the heirs of Calvin Arvestis Parsons at his death. It being my desire that Calvin Arvestis Parsons have all the revenue from said land during his life time and at his death same to fall to his heirs.” At the conclusion of the probate court proceedings on the 2nd day of April, 1909, the county court entered the following decree : " “It is therefore ordered, adjudged and decreed by the Court that the said Will V. Provost, as such executor proceed as soon as practicable and without delay to make distribution of said estate remaining in his hands to the parties lawfully entitled thereto, as follows: “Mary Almena Larson........... $500.00 “Calvin Arvestis Parsons........ 720.87 “Harry James Wilson............ 720.87 “Henry Murray Viles ........... 720.87 "The Court further finds that the Will provides that the real estate of said estate is to be distributed as follows: “To the heirs of Calvin Arvestis Parsons, the SW}4 of Sec. 3, Twp. 26 N of Range 14 W.I.M. he to have the revenue of said land during his lifetime. * * * ” In 1936, Clara Isabelle Parsons, wife of Calvin Arvestis Parsons, obtained a judgment against him in Woods County, Oklahoma, for the principal sum of $73.80. In 1938, an execution was issued upon this judgment and levied upon the interest of Calvin Arvestis Parsons in the land passing to him under the above Will, and by Sheriff’s deed his interest in the land was sold to appellant, Vernon Parsons. The Sheriff’s deed executed pursuant to the sale proceedings limited the conveyance to “the interest of the defendant, Calvin Arvestis Parsons,” in and to the premises in quéstion. Thereafter, on the fourth day of August, 1943, appellant, Vernon Parsons, executed a warranty deed conveying to appellants, Gus Hadwiger and Robert L. Hadwiger, “an undivided-one-half interest” in the land in question “for the period of the natural lifetime of Calvin Arvestis Parsons.” The next day, on August 5, 1943, appellant, Vernon Parsons, by warranty deed conveyed a fee simple title to Robert L. Hadwiger alone to all of the real estate in controversy. Calvin Arvestis Parsons died October 7, 1946, and left surviving him as his only heirs all of the appellees herein. After the death of Calvin Arvestis Parsons, the appellees herein instituted this action against the three appellants in the United States District Court for the Western District of Oklahoma, in which they alleged that they were the owners in fee simple of the above described real estate and that the appellants claimed an adverse interest therein, and asked that title to the same be quieted as against them. In a second cause of action they asked for possession of the premises, and in a third cause of action they asked for judgment in the sum of $663.70 for taxes paid by them during the lifetime of the alleged life tenant. The court entered a judgment in favor of appellees and against the appellants adjudging appellees to be the owners in fee simple of the real estate involved in the action and entitled to the possession thereof, and adjudging that appellants had no title or interest therein. This appeal challenges the correctness of that adjudication. Appellants contend that the second paragraph of the Will of Mary Jane Viles vested a fee simple title in Calvin Arvestis Parsons and that this interest passed by Vernon Parsons’ deed of August S, 1943, to Robert L. Hadwiger. Other assignments of error are urged relating to other parts of the judgment which it will not be necessary to consider because of the conclusion we have reached on the above contention. The yard stick by which a will is to be construed is well established and no useful purpose would be served by entering into a detailed discussion thereof and by citing numerous authorities. It is sufficient to say that the purpose of construction always is to ascertain and carry out the intent of the testator as expressed in the will. The final decree in the county court construed the second provision of the Will as vesting a life estate in Calvin Arvestis Parsons and a remainder over to his heirs. Appellants contend that this adjudication by the county court does not constitute a final and binding decree. Since we do not rest our decision upon this decree by the county court, it is not necessary to pass upon this contention. While it is not decisive of the issue presented to us, it is worthy of note that prior to the execution of the general warranty deed of August 5, 1943, all the parties who dealt with this interest construed it to be less than a fee simple interest. The Sheriff’s deed purported to convey only the interest of the defendant, Calvin Arvestis Parsons, and when Vernon Parsons made his first conveyance to the Hadwigers August 4, 1943, he again conveyed only an undivided one-hlaf interest in the land “for the period of the natural life of Calvin Arvestis Parsons.” We think it is clear that what the testatrix intended and what she did accomplish in the second provision of her Will was to give Calvin Arvestis Parsons a life estate in the real estate in question, with the remainder over to his heirs. We cannot agree with counsel for appellants that it is evident that the will was drawn by one skilled in the drafting of wills. On the other hand, a casual look at the photostatic copy of the will shows that it was inartistically drawn. We doubt whether any first-class lawyer would relish acknowledging the authorship of this will or would take pride in his handiwork, if forced to do so. ■ It may be noted in passing that the will was drawn on a bank’s stationery and that it has many of the characteristics of a typical banker’s will. In any event, we have no difficulty in concluding that when paragraph two of the will is considered in its entirety it bequeaths a life estate to Calvin Arvestis Parsons and a remainder over to his heirs. It is, however, contended that the rule in Shelley’s case prevails in Oklahoma, and that in any event, the remainder over to the heirs would by operation of that rule vest the fee simple title in Calvin Arvestis Parsons. Section 41,- Title 60 O.S.1941, provides: “When- a remainder is limited to the heirs, or heirs of the body, of a person to whom a-life estate in the same property is given, the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life.” Appellants take the position that this section does not abolish the rule in Shelley’s case in all instances. Whatever room for doubt, if any, may have existed in Oklahoma with respect to this position has been removed by the decision of the Supreme Court of Oklahoma in Whitten et al. v. Whitten, - P.2d -, since the filing of the briefs in this case. In that case, Julia A. Morris, by separate, identical deeds conveyed real estate respectively to a son and daughter. In each case, the estate, granted by the granting clause to the grantee, was for the life of the grantee, with remainder to the heirs of the body of the grantee. The syllabus of the court quotes the above statutory provision and then interprets it to mean that, “ * * * Where deed conveyed land to C ‘for her lifetime with remainder over to the heirs of her body’, and C at the execution of the deed had living child or children, that such child or children took a contingent remainder.” The language of the second paragraph of the will limiting the remainder to the heirs of the life tenant brings the provision within the express language of the statute. It follows that under the decision of the Whitten case, supra, Calvin Arvestis Parsons took a life estate and his heirs, the ap-pellees, a contingent remainder which vested upon his death. The Sheriff’s deed could therefore only convey, as it purported to do, the life estate interest of Calvin Arvestis Parsons to Vernon Parsons, and his warranty deed of August 5, 1943, to Robert L. Hadwiger could convey no more than he received. The trial court correctly quieted appellees’ fee title to the premises against all of the appellants. As already stated, other assignments of error are urged but they become immaterial by virtue of the conclusions we have reached on the main question. We have not overlooked appellants’ assertion that Mary Jane Viles was the owner of only two-thirds interest in the property in question and that thus, in any event, only such interest passed to the appellees under the terms of her will. We have examined the record and find no substantial basis for such an assertion. Affirmed. § 151, Title 84 O.S.1941; Dixon v. Helena Society of Free Methodist Church, 65 Old. 203, 166 P. 114; O’Neil v. Dreier et al., 9 Cir., 01 F.2d 598; In re Jones’ Estate, 195 Okl. 168, 155 P.2d 980; Cunningham v. Fidelity National Bank of Oklahoma City, 186 Okl. 429, 98 P.2d 57; Malone v. Herndon, 197 Okl. 26, 108 P.2d 272. Not released by court at date of publication.

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?

MERCER v. BYRONS et al. No. 4653. United States Court of Appeals First Circuit. Dec. 2, 1952. Arthur T. Garvey, of Springfield, Mass. (Harold R. Goewey, of Pittsfield, Mass., on brief), for appellant. Joseph F. Lyons, of Boston, Mass. (Robert J. Donelan, of Great Barrington, Mass., on brief), for appellees. HARTIGA'N, Circuit Judge. This is an appeal by the defendant from judgments for the plaintiffs entered in the United States District Court for the District of Massachusetts based upon verdicts rendered by a jury in a tort action. The plaintiffs, Vernon Byrons, his wife Helen and his minor daughter Norean, are citizens of New York and the defendant, Stanley Mercer, is a citizen of Massachusetts. The requisite jurisdictional amount is alleged. About 9:45 p. m. on July 2, 1951, the plaintiff, Vernon Byrons and his family, consisting of his wife, Helen, their minor daughter, Norean, and his two minor sons (not injured) were driving in the family car in a northerly direction on Route 7, a public highway, in the town of Great Bar-rington, Massachusetts. About 54 mile from the Stockbridge town line and at a point approximately opposite pole # 1810 of the Southern Berkshire Power and Electric Company a horse appeared on the highway, having come out of a pasture to the right of the north-bound lane. The horse and the motor vehicle collided. Vernon Byrons’ motor vehicle was badly damaged and the horse was killed instantly. The weather was clear and dry. The road is two-lanes of asphalt construction, 18 feet wide, with a 3 foot shoulder of sand on each side. Vernon Byrons seeks to recover for damages to his motor vehicle and for consequential damages he alleges he sustained as a result of injuries to his wife. Helen and Norean Byrons, p.p.a., seek damages for personal injuries they sustained. The bill of complaint alleges in substance that the horse that collided with the plaintiff’s motor vehicle was (a) under the ownership, management and control of the defendant; (b) the defendant was negligent in permitting said horse to be at large and not properly restrained; and (c) the defendant is liable because he should have known of the horse’s dangerous and vicious propensities. The defendant denies, in his answer, all of these allegations. At the close of the plaintiffs’ case the defendant moved for a directed verdict which the court took under advisement. Thereupon the defendant rested his case and the following day the court denied said motion. The jury returned a verdict on February 27, 1952, in the sum of $500 , for Vernon Byrons; $900 for his wife Helen and $100 for his daughter Norean. Later on March 5, 1952, the defendant filed a motion to enter judgment for the defendant notwithstanding the jury verdict on the ground that all the evidence is insufficient in law to form a basis for a verdict for the plaintiffs and also a motion to dismiss on the ground that the court lacked jurisdiction because the amount actually in controversy is less than $3,000, exclusive of interest and costs. Both motions were denied by the court on March 18, 1952. The appellant contends that (1) the court erred in denying the defendant’s motion for a directed verdict and in refusing to direct a judgment for the defendant notwithstanding the verdict; (2) the court erred in its instructions to the jury, and (3) the court erred in refusing to dismiss the complaint on the grounds of failure of jurisdiction in that the jury verdict for each plaintiff was less than Three Thousand ($3,000.00) Dollars, exclusive of interest and costs. There is no merit in the appellant’s third contention. On this question of jurisdiction, the Supreme Court said in St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283,. 288, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845: “ * * * The rule governing dismissal for want of jurisdiction in cases "brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less •than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. * * * ” See also American R. Co. v. South Porto Rico Sugar Co., 1 Cir., 1923, 293 F. 670; Gray v. Blight, 10 Cir., 1940, 112 F.2d 696; Jones v. Drewry’s, Limited, U.S.A., 7 Cir., 1945, 149 F.2d 250. There is nothing in the record that indicates the claims here were not made in good faith. We find similar difficulty in agreeing with appellant’s first contention. The meager designated contents of record on appeal disclose sufficient evidence to submit plaintiffs’ case to the jury on the issue of defendant’s negligence and the trial court was not in error in denying defendant’s " motions for a directed verdict and for judgment notwithstanding the verdict. Although the defendant, in his answer, denied ownership or control of the horse involved in the collision, he admitted that the horse was the property of his two minor sons. Furthermore, the defendant admitted that on the night of the accident, “said horse had been placed in a closed box stall in the barn on defendant’s premises and if he was at large on or near the highway later, he had escaped from said box stall and said barn.” This admission by the defendant seems inconsistent with his assertion that the horse was not under his control and it raises the issue of whether or not defendant was negligent in the circum-. stances here. In this case, the unexplained appearance of a horse which admittedly, was owned by the defendant’s minor sons and had been quartered in the barn on defendant’s premises, galloping on a heavily traveled public highway in the night seems to us to be a sufficient basis for a fair inference of negligence within the scope of the rule of res ipsa loquitur. See Bender v. Welsh, 1942, 344 Pa. 392, 25 A.2d 182. This rule was explained in Sweeney v. Erving, 1913, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, and reaffirmed in Jesionowski v. Boston & Maine R. Co., 1946, 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416. Recently the Supreme Court in Johnson v. United States, 1947, 333 U.S. 46, 49, 50, 68 S.Ct. 391, 393, 92 L.Ed. 468. Motion to recall mandate denied, 333 U.S. 865, 68 S.Ct. 788, 92 L.Ed. 1143, said: “No act need be explicable .only in terms of negligence in order for the rule of res ipsa loquitur to be invoked. The rule deals only with permissible inferences from unexplained events. * * * The inquiry, however, is not as to possible causes of the accident but whether a showing that petitioner was without fault and was injured by the dropping of the block is the basis of a fair inference that the man who dropped the block was negligent. We think it is, for human experience tells us that careful men do not customarily, do such an act.” See also United States v. Hull, 1 Cir., 1952, 195 F. 2d 64. Massachusetts has used practically the same language. In Roscigno v. Colonial Beacon Oil Co., 1936, 294 Mass. 234, at page 235, 200 N.E. 883, the Supreme Judicial Court of Massachusetts said: “The rule of res ipsa loquitur merely permits the tribunal of fact, if it sees fit, in the absence of a finding of the specific cause of the occurrence * * * to infer from the occurrence itself that it would not have happened unless in some respect the defendant had been negligent * * * the tribunal of fact must be able to find, either by expert evidence * * * or by its own common knowledge * * * that the mere occurrence of the accident shows negligence as a cause.” The defendant admitted that this horse was owned by his two minor sons and that it was quartered in his barn on the night of the accident. There was evidence that defendant had told the police officer who investigated the accident that he would bury the horse; that on the afternoon following the accident, this police officer had observed a bull dozer digging a hole in defendant’s field. We believe that there was a sufficient showing to submit to the jury the question of whether or not the horse was under defendant’s control at the time of the accident. However, it is not clear that the jury found that the defendant was negligent, and this brings us to the appellant’s second ground for reversal, namely, that the trial judge committed erroneous and prejudicial error in his instructions to the jury. We agree with this contention. This case was submitted to the jury not only on the theory that the defendant may have been negligent but also on the theory that the defendant may be liable regardless of fault, because he should have known that the horse was in the habit of bolting the pasture onto the highway. The portion of the charge material to this latter theory was as follows: “Now the law also says that the possessor of domestic animals which he has reason to know have dangerous propensities abnormal to its class is subject to liability for harm caused thereby to others, except trespassers on the land, although he has exercised utmost care to prevent it from doing harm. If you have a vicious dog, knowing he is vicious, even though you are not negligent, even though he gets-off your property and molests somebody, you are liable. No negligence-there. It just naturally flows back, from the fact that he is a vicious animal or an animal with vicious propensities. But if you find from the evidence-here that there was no such situation-as I have spoken of now of an animal with vicious propensities, then you would pass to the question of the negligence angle * * The abstract proposition of law thus embodied in the charge is in accord with the law as laid down in Am.L.Inst., Restatement of Torts § 509. But we think it was error to submit this question to the jury, because the evidence afforded no reasonable support for a plaintiff’s verdict on a theory of liability without fault. First of all, no identity was established between the horses which strayed on the land of the defendant’s neighbor, Arthur Andrew, and the one which collided with the plaintiff’s car. See Webber v. McDonnell, 1926, 254 Mass. 387, 150 N.E. 189. And even if such identity were established, the infrequency of the occurrence (five or six times in three years) so detracts from the weight of the evidence that it may be said as a matter of law that the jury, did not have a sufficient basis to consider the question. Cf. Scanlon v. Cavanaugh, 1911, 210 Mass. 291, 96 N.E. 526. Furthermore, even if it be assumed that the defendant knew or had reason to know that the particular horse, when unrestrained, had a tendency to stray from defendant’s land across the adjacent highway to an unenclosed pasture beyond, still it could not be said that the horse had “dangerous propensities abnormal to its class” within the meaning of the rule, subjecting the possessor of,such a domestic animal to liability for harm caused by the animal, although he has exercised the utmost care to prevent it from doing harm. In the absence of any evidence to support a recovery based upon a theory of liability without fault, :the case rests solely on the alleged negligence of defendant in allowing the horse to escape from the pasture. Since the jury was allowed to consider its verdict under alternative the-, ories, we are unable to determine whether they found the defendant negligent, which would have been proper,, or whether they, found that the horse had a vicious propensity rendering defendant liable without negligence, which would have been erroneous. Therefore, since the' verdict may have been based on a question of fact which had not been established by a fair preponderance of the evidence, we have no alternative but to remand this case to the district court for a new trial. The judgments of the district court are vacated and the case is remanded to that court for a new trial; the appellant recovers costs on appeal. . Arthur Andrew testified: “Q. How many times would you say in the course of a year you would have occasion to notice the presence of these horses on your land? A. Not more than once or twice. “Q. Once or twice a year. Over how many years would you say that condition has existed? A. I don’t know. There have been many horses besides them there. I should say over the past three years. J}i * * # “X-Q. You don’t know who owns any of the livestock, cows, or horses? A. No; but I assume he does. “X-Q. No, you don’t know yourself? A. They never showed me a bill of sale. “X-Q. You had no occasion to inquire? A. No. “X-Q. You say after you tore this fence down on your property that some horses did go over there? A. That’s right. The other fellow across the street came down too. “X-Q. He came down too? A. Occasionally. “X-Q. You were not present on the day of the accident were you? A. No, sir. “X-Q. Were you away? A. Yes, sir. “X-Q. Where were you? A. In Concord, New Hampshire. I was bringing some dogs back. “X-Q. You were away that day? A. I was. “X-Q. You got home on the 3rd? A. The next day. “Mr. Garvey: That is all. * * * ”

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

CURTIS v. PRUDENTIAL INS. CO. OF AMERICA. No. 3197. Circuit Court of Appeals, Fourth Circuit. Jan. 12, 1932. Joe W. Ervin, of Charlotte, N. C. (John M. Robinson and Guy T. Carswell, both of Charlotte, N. C., on the brief), for appellant. C. W. Tillett, Jr., of Charlotte, N. C., and James H. Pou, of Raleigh, N. C. (Ralph W. Hyatt, of Newark, N. J., Pou & Pou, of Raleigh, N. C., and Tillett, Tillett & Kennedy, of Charlotte, N. C., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. NORTHCOTT, Circuit Judge. This action at law was instituted in the superior court of Mecklenburg county, N. C., by Mrs. Charles H. Curtis, appellant, seeking to recover on a policy of' insurance alleged to have been issued by appellee, the Prudential Insurance Company of America, defendant below, on the life of complainant’s husband, Charles H. Curtis, in the sum of $5,000. The plaintiff was named as beneficiary in the policy* On petition of appellee, the cause was removed to the District Court of the United States for the Western District of North Carolina. In the court below, at the conclusion of the plaintiff’s evidence, the attorneys for the defendant' demurred to the evidence, which motion the court below sustained, and entered a judgment of nonsuit. From this judgment, the plaintiff brought this appeal. Under date of October 5, 1928, the plaintiff’s husband, Charles H.- Curtis, applied, in writing, for a $5,000 life insurance policy with double indemnity in the event of accidental death; C. F. Hancock being the soliciting agent. Upon this application, the company wrote out a? policy, dated October 13, 1928, which was transmitted to soliciting agent Hancock. The premium was payable quarterly, and amounted to $17.55 per quarter. Curtis paid $2.50 on account when he signed the application, and between that time and his death, which occurred January 15, 1929, there were paid to Hancock in several payments sums aggregating $7, so that when Curtis died only $9.50 of the first premium had been paid, and the policy had never been delivered. The application was signed by the insured, and contained the following clause: “I 'further agree that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained and that Unless the full first premium is paid by me at the time of making this application, the policy shall not take effect until issued by the company and received by me and the full first premium thereon is paid, while my health, habits and occupation are the same as described in this application.” Under the language of the policy, the application was made a part of the contract, and the policy also contained a clause to the effect that the policy, together with the application, constituted the entire contract between the parties. At the time of the application for the policy, the Curtis family was carrying industrial insurance with the defendant company on two young children and the life of the plaintiff, for which policies the local agent, Hancock, was collecting weekly payments. Agent Hancock agreed that the premium on the policy in suit could be paid weekly, and plaintiff began making weekly payments of $1.25 per week upon the policy. Agent Hancock raised the weekly rate of payment $1 per week shortly after the payments were begun, and plaintiff testified that, because of that fact, she ceased making the payments from some time in November until January 7, when an additional $2 was paid, making a total paid on the policy of $9.50. In the meantime, during the Christmas week, the agent called on insured and explained why it was necessary to raise the weekly payment, and the insured agreed to continue paying. On the Thursday before January 14, 1929, the plaintiff received from the defendant company a notice and demand for payment of the second quarter premium due January 13, 1929. Agent Hancock called at the Curtis home on January 14, and plaintiff testified that she offered to pay him the balance due on the first quarter, but that the agent told plaintiff that her husband’s policy was in force and that there was no use to worry about it, and that it would be in force another month under the payments already made. On January 15. 1929, the insured was killed. At the trial, the policy in question was produced by the defendant pursuant to a notice served on it by the plaintiff, and was introduced in evidence by the plaintiff. The word “Canceled” in perforations was stamped over the signatures of the president and secretary of the company on the policy. The contention of the defendant below, which was sustained by the action of the trial judge, is that there never was any contract of insurance; first, because the policy was never delivered, and second, because the' first premium was never paid. The plaintiff contends that the policy was in full force and effect at the time of insured’s death; there having been a constructive delivery of the policy or a waiver of delivery, and the first premium having been paid or waived. The validity of the provisions in the application and the policy is unquestioned. Similar provisions have been passed upon by the courts, and, so far as we can find, have been uniformly approved. In MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663, it is held: “The law is settled in this court that, when a life insurance policy contains, as this one did, the provision that it ‘will not take effect, unless the first premium or agreed installment thereof shall be actually paid during the lifetime of the insured,’ the provision means exactly what it says and will bo enforced. And if the policy contains, as this one did, the express provision that ‘agents are not authorized to make, alter or discharge contracts,’ the waiver relied on must be one by the company itself, and no attempted waiver by an agent will be treated as its equivalent. In Pennsylvania Casualty Co. v. Bacon, 133 F. 907, 67 C. C. A. 497, a policy of insurance stated that it was not to take effect ‘unless the premium is actually paid previous to any accident upon which claim is made,’ and it provided that no waiver should be binding on the insurer unless indorsed on the policy and signed by the president or secretary of the company. This court held that a subagent had no authority to accept a note in lieu of cash for the first premium, and to thereby waive the provisions of the policy. The decisions of the Supreme Court in Northern Assurance Co. v. Grand View Building Association, 183 U. S. 318, 22 S. Ct. 133, 46 L. Ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U. S. 311, 30 S. Ct. 312, 54 L. Ed. 493; Ætna Life Insurance Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Lumber Underwriters v. Rife, 237 U. S. 605, 35 S. Ct. 717, 59 L. Ed. 1140; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202 — support the same doctrine. The provisions that a policy of life insurance shall not take effect unless the first premium is actually paid in cash during the lifetime of the person insured is valid and will be enforced according to its terms.” See, also, Sturgill v. New York Life Ins. Co., 195 N. C. 34, 36, 141 S. E. 280. We believe this to be a wholesome rule, because it is clearly apparent that the business of life insurance, which is so important a part of our civilization in this latter-day •world, could not be carried on were the insurance companies bound by every act or statement of a local agent; especially one whose duty is mainly that of soliciting or collecting. If it were otherwise, great injustice would follow, and a groat loss be imposed upon holders of life insurance policies, because of the increased burden upon the companies that would result. While the courts are careful, in every way, to protect the interest of beneficiaries under insurance policies, yet there is a limit which should not be exceeded. The reasonableness of the respective contentions should be the yardstick with which to measure the justice of the matter. The notice in question contained the following provision: “Notice to Policyholders as to Powers of Agents. — No Agent has power on behalf of the Company to make or modify any contract of insurance or waive any provision thereof, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information.” This provision, coupled with the previous statement in the application, with which the insured must be presumed to be familiar, leads us to the conclusion that there never was in this ease any valid contract of insurance that would bind the defendant company. The first payment was never made, nor was the local agent authorized to deliver the policy until such payment had been made, and there is no contention that the policy was ever actually delivered. While we recognize the force of the contention made on behalf of the plaintiff that forfeitures are not favored at law, yet where there has been no contract there can be no forfeiture of a contract, and we think this is a case of no contract. None of the conditions precedent especially stipulated as necessary before the contract became binding was ever, properly waived by any one having authority. Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879; New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 S. Ct. 837, 29 L. Ed. 934; Hoffman v. John Hancock Mutual Life Ins. Co., 92 U. S. 161, 23 L. Ed. 539; Philadelphia Life Ins. Co. v. Hayworth (C. C. A.) 296 F. 339; Ætna Life Ins. Co. v. Johnson (C. C. A.) 13 F.(2d) 824; Dodd v. Ætna Life Ins. Co. (C. C. A.) 35 F.(2d) 673; Bradley v. New York Life Ins. Co. (C. C. A.) 275 F. 657. This seems to be the rule supported by the great weight of authorities in- the federal courts, and the questions here involved, being questions of general jurisprudence, are to be determined by the federal rule. Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663; Pilot L. Ins. Co. v. Owen (C. C. A.) 31 F.(2d) 862. However, the North Carolina rule seems to be the same as the federal rule on this point. Thompson v. Equitable Life Assurance Society, 199 N. C. 59, 154 S. E. 21; Sturgill v. New York Life Ins. Co., 195 N. C. 34, 141 S. E. 230; Turlington v. Metropolitan Life Ins. Co., 193 N. C. 481, 137 S. E. 422; Perry v. Security Life & Annuity Co., 150 N. C. 143, 63 S. E. 679; Ormond v. Mutual Life Association, 96 N. C. 158, 1 S. E. 796; Whitley v. Peidmont & Arlington Life Ins. Co., 71 N. C. 480; Clifton v. Mutual Life Ins. Co., 168 N. C. 499, 84 S. E. 817. We have examined the authorities. cited on behalf of plaintiff, but find them distinguishable, in that they deal with questions of waiver after the contract had admittedly become effective. The contention that the notice given of the payment due for the second quarter was a waiver of all conditions that existed, with reference to the first payment, is, we think, without merit. A notice of the second quarter’s payment was issued from the home office of the company, and was a mere matter of routine carried out in compliance with the North Carolina law requiring notices to be sent out at a certain stated time before the due date. Certainly the purely mechanical act of sending out a notice by one department of a large insurance company having that duty to perform with respect to thousands of policies could not be considered to constitute a waiver of the two conditions that were here necessary to be performed before any contract existed; that is, payment of the first premium and the delivery of the policy. Under some circumstances, such a notice might be held to prevent the forfeiture of a contract already in effect, but certainly cannot be held to give life to a contract that never existed. There is no evidence whatever that the officials of the company had any notice that the local agent was collecting weekly installments from the insured, or that the agent remitted same or any part thereof to the company. Had there been any such evidence, and had the company had notice of the situation as it actually was, an entirely different .case would be presented for our consideration. For the reasons above given, the judgment of the court below is accordingly affirmed.

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

RUSSELL v. THE TEXAS CO. et al. No. 14246. United States Court of Appeals, Ninth Circuit. March 9, 1954. Ralph J. Anderson, Helena, Mont., for appellant. Coleman, Jameson & Lamey, Cale Crowley, Billings, Mont., Walter E. Will, Denver, Colo., M. L. Countryman, St. Paul, Minn., Robert P. Davidson, Billings, Mont., of counsel, for appellee. Before BONE,. ORR and POPE, Circuit Judges. POPE, Circuit Judge. The appellant filed a complaint in the District Court alleging three causes of action. The first cause states that the defendant Northern Pacific Railway Company received patent to a certain section of land pursuant to the terms of the Northern Pacific Land Grant of 1864, 13 Stat. 365; that it subsequently conveyed the land to plaintiff's pi'ede-cessor excepting and reserving the minerals upon or in the land. It alleges that the purported exception and reservation of such minerals is void, but that notwithstanding such invalidity the Railway Company executed an oil and gas lease to the Texas Company and that the latter Company and its agent, the Frederick T. Manning Drilling Co., have entered upon the land pursuant to the lease and were removing large quantities of oil and gas therefrom, and causing other damage to plaintiff’s land. It alleged that the purported exception and reservation of the minerals and the lease to the Texas Company constitute a cloud upon plaintiff’s title. The second and third causes of action allege that the defendants, the Texas Company and the Drilling Company, were making an unlawful use of plaintiff's land in connection with drilling operations on adjacent lands. The Railway Company was not involved in these last two causes of action. The prayer of the complaint was that the mineral reservation and the oil and gas lease be adjudged void and that the cloud thereby created upon plaintiff’s title be removed; that the defendants be enjoined from trespassing upon plaintiff’s land,, and that plaintiff have judgment for damages on account of the use by the Texas Company and the Drilling Company of his land, both in connection with drilling operations thereon and with the operations on the adjoining lands. The Northern Pacific Railway Company made a motion for summary judgment and the other defendants made a separate motion for partial summary judgment. On November 23, 1953, the court below filed an order granting the motion of the Railway Company and which recited; “Now, Therefore, it is Ordered, Adjudged and Decreed that summary judgment be entered in favor of the defendant Northern Pacific Railway Company and against the plaintiff, with costs.” The order further determined that there was no genuine issue of fact between plaintiff and the defendants Texas Company and the Drilling Company concerning the right of said defendants to enter upon the lands as lessees of the Railway Company; that they were entitled to enter the lands under the lease for the purpose of extracting minerals, and that plaintiff was not entitled to an injunction restraining such use. The order left for later decision between the plaintiff and the last two defendants the issues of injunctive relief and damages under the second and third causes of action. On November 25, 1953, the entry of the order of November 23, 1953, in the Civil Order book was noted in the docket. On December 3, 1953, a formal summary judgment was made, entered and noted in the docket adjudging and decreeing “that the defendant Northern Pacific Railway Company does hereby have judgment in its favor and against the plaintiff.” No appeal was taken from the order of November 23 as noted November 25. On January 27, 1954, upon a showing that plaintiff had not received notice of the December 3 judgment until January 26, the court made an order extending plaintiff’s time to appeal from the December 3 “partial summary judgment” until February 1, 1954. Upon the same day, January 27, 1954, plaintiff filed notice of appeal to this court from the December 3 judgment. The appellee, Northern Pacific Railway Company, first moved to dismiss the appeal on the ground that the appealable decision of the court below was that of November 23, 1953, and that when the appeal was taken on January 27, 1954, that appeal was ineffective, first because it did not purport to be an appeal from the November 23 decision, and second, because on that day the period to which the time for appeal from the November 23 order could be extended by the district court under Title 28, § 2107 had then expired. Appellee asserts that the decisions of this court in Liberty Mutual Ins. Co. v. Pillsbury, 154 F.2d 559; Haddock Limited v. Pillsbury, 155 F.2d 820; and Steccone v. Morse-Starrett Products Co., 191 F.2d 197, demonstrate the finality of the November 23d decision. Appellant says that those cases are distinguishable from this in that the order of November 23,1953, contains no such words of finality as those in the orders discussed in the cases cited, saying that the November 23d order shows on its face that it went no further than to direct the preparation and entry of a final judgment. We find it unnecessary to resolve the question stated in the preceding paragraph because after the Railway Company filed its motion to dismiss it filed a supplemental memorandum suggesting an additional reason why the appeal should be dismissed. The suggestion is that since more than one claim for relief was present in this action, and since the court has directed entry of a judgment upon less than all of the claims, the judgment or decision is covered by Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., relating to judgment upon multiple claims. Attention is called to the fact that neither the order of November 23, 1953, nor the judgment of December 3, 1953, contains “an express determination that there is no just reason for delay”. Therefore, ap-pellees say, if the rule applies the appeal is premature. We are of the opinion that the point thus made with respect to the effect of Rule 54(b) is well taken. Here, where the decision of the court was as to some but not all of the claims and where it purports completely to dispose of the rights of one but not all defendants, the case comes within the rule of our recent decision in Burkhart v. United States, 210 F.2d 602. Upon this- ground and for this reason the appeal is dismissed. . “ * * * The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree. * * * ” 28 U.S. C.A. § 2107. . Rule 54(b) “Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated. whieh adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

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?

JACKSON et al. v. McINTOSH, Comptroller of the Currency, et al. (Circuit Court of Appeals, Fifth Circuit. April 7, 1926.) No. 4770. 1. Banks and hanking @=287(4) — Receiver of national bank may be enjoined by creditors or stockholders from making disposition of assets not authorized by statute (Rev. St. § 5234 [Comp. St. § 9821]). As an application to the court by the receiver of a national bank, under Rev. St. § 5234 (Comp. St. § 9821), for an order authorizing sale of assets, is an ex parte proceeding, and the order made therein is not appealable by a creditor, a creditor or stockholder may maintain a suit for injunction to retain an illegal sale or disposition of assets by the receiver. 2. Banks and banking @=287(3) — Receiver of national bank not authorized by statute to make disposition of assets otherwise than by sale (Rev. St. § 5234 [Comp. St. § 9821]). The provision of Rev. St. § 5234 (Comp. St. § 9821), that on order of the court the receiver of a national bank “may sell all the real and personal property of the association,” does 'not authorize a disposition of such property which is not a sale. 3. Sales @=l(l) — Essentials of sale stated. A change in the beneficial ownership of the thing dealt with, and a price paid or promised, and certain or capable of being ascertained, are essential ingredients of a sale. 4. Banks and banking @=287(3) — Proposed transfer of assets of national bank by its receiver held illegal (Rev. St. § 5234 [Comp. St. §-9821]). A proposed transfer of all the assets of a national bank, with certain reservations, by its receiver to a corporation organized for the purpose, in consideration of the delivery of its debentures to the receiver for the amount due each creditor, payable, with interest, on or before five years, and secured by the assets conveyed, to be placed under control of trustees, and the agreement of the corporation to apply the proceeds of such assets, above expense of their liquidation to payment of the debentures until fully paid, but without liability of the corporation or its stockholders, is not a sale of the assets, within Rev. St. § 5234 (Oomp. St. § 9821), but is a delegation to the corporation of the receiver’s statutory duty to .collect what is owing to' the bank, and the receiver is without authority, with or without the court’s approval, to make such transfer. Appeal from the District Court of the. United States for the Northern District of Georgia; William I. Grubb, Judge. Sujt in equity by Ruth M. Jackson and ■ Anna M. Scott against J. W. McIntosh, Comptroller of the Currency, E. E. Anderson, receiver of the Georgia National Bank, of Athens, Ga., and others. Erom an order denying a preliminary injunction, complainants appeal. Reversed and remanded. C. N. Davie and Chas. S. Reid, both of Gainesville, Ga., for appellants. Howell C. Erwin, Thos. E. Green, and Thos. J. Shackelford, all of Athens, Ga., and M. C. Elliott, of Washington, D. C. (Green & Michael, Shackelford & Shackelford, and Erwin, Erwin & Nix, all of Athens, Ga., and W. S. Poage, of Washington, D. C., on the brief), for appellees. Before WALKER, BRYAN, and POSTER, Circuit Judges. WALKER, Circuit Judge. This is an appeal from a decree denying a temporary injunction, prayed for in a bill filed by the appellants, one of them being a stockholder of the Georgia National Bank, of Athens, Ga., and both of them being creditors of that bank, against the appellees, the Comptroller of the Currency and the receiver of that hank appointed by such Comptroller, who took charge of the assets of said bank for the purpose of liquidation as provided by law. The injunction prayed for was one restraining and enjoining the appellees from consummating or further attempting to consummate an alleged proposed disposition of assets of said.bank. The allegations of the bill showed the following: Prior to the filing of the bill said receiver filed in the court below an application for the approval by that court of a pretended sale to the Georgia Securities Company, a corporation organized under the laws of G'eorgia, with a capital stock of $10,000 (herein called the'corporation), of the assets of said bank, except cash on hand, stockholders’ liability, liability of- officers and directors for misfeasance or malfeasance in office, and described real estate, and the, court made an order that any and all parties in interest show cause, if any there be, at a- time and place stated, why said application should not he granted, and that notice of that order be given by publication in a named newspaper. That application showed as follows: The application has been approved by the Comptroller of the Currency. The corporation will deliver to the receiver, for the bank’s creditors, its debentures, dated November 3, 1925, for the amount due each creditor at the date of the bank’s suspension, payable on or before five years from date, with interest thereon at the rate of 4 per cent, per annum, interest payable annually. Said debentures to .be secured by deed of trust of the transferred assets, made by ’the receiver to named trustees as security for the payment of said debentures. Any available cash in the hands of the receiver at the time of the proposed sale, after reserving such sums as may be deemed necessary to pay expenses of the receivership, shall be distributed by the receiver to the bank’s creditors, the sums so paid to be credited upon the debentures upon presentation for that purpose, “and where debentures are not presented to be so credited, or where any creditor of said bank should fail or refuse to accept said debenture, then the amounts that would be payable to such creditor under said distribution shall be held by said receiver to the credit of such creditors, and paid to them upon application, and the debentures issued to such creditors shall thereupon be credited accordingly.” Said trustees in their discretion may require any action with respect to the property conveyed to them, “including the sale, transfer, assignment, or conveyance of any or all of said property or assets.” “If any question should arise with respect to the rights or liabilities of either the debenture holders, or any of them, or the company under this indenture, then the decision made by the trustees, or a majority of them, concurred in by said company, acting through its directors, or a majority of them, shall be final and conclusive. Should any such question arise, and the decision of the trustees, or a majority of them, not be concurred in by said company, then the question shall be referred by them to the judge of the judicial circuit in which is located the city of Athens, Ga., and his decision thereon shall be final and conclusive. * 3 “ The trustees shall be deemed the representatives of all debenture holders in said proceedings, in so far as necessary parties are concerned. * B 9 ” If “at any time during the administration of the assets of said Georgia Securities Company the trustees, or a majority of them, should be of the opinion that the officials in charge of said company are not pressing with due and proper diligence the collection of any or all of its assets, then said trustees may call upon said officials to proceed with greater dispatch in the collection of the same, and should said officials thereafter omit to press said collections, or convert said assets into cash for the benefit of debenture holders with due and proper diligence, in the judgment of said trustees, or a majority of them, then said trustees may demand and receive of said officials all of the assets of said company, and by themselves, or through such agents as they may employ, administer said assets for the benefit of said debenture holders in the same manner as said officials are required to do. In such an event said trustees have the right to incur and pay from said assets in their hands all lawful and proper expenses of administration, according to their best judgment and discretion.” The corporation shall receive no compensation for performance of its duties in the administration of the assets acquired from the receiver. All salaries of its officers and clerical force to be approved by said trustees. The Federal Reserve Bank of Atlanta shall have a prior lien on the transferred assets to secure a described debt owing to it by the bank, in consideration whereof it is to cancel a stated amount of the debt to it. Each debenture contained the following: “If this debenture is not presented for final payment within 12 months from the maturity of the same, then said company shall have the right to liquidate its affairs and distribute among the remaining debenture holders, or the stockholders of said company, after all other debentures are paid in full, the amount that would be otherwise held for the redemption of the same, without further liability thereon. Certain persons have subscribed the sum of ten thousand dollars for the capital stock of this company, in order to perfect a legal organization of the same. The holder of this debenture agrees that, when the assets acquired from the receiver of the Georgia National Bank are exhausted, the capital stock of said Securities Company shall be distributed ratably among those who contributed the same, and all elaims upon said capital stock are hereby waived. This debenture is accepted and held subject to all of the terms hereof, as well as the terms, provisions, and stipulations contained in said trust agreement, to the same extent as if the same had been incorporated herein.” Under section 5234 of the United States Revised Statutes (Comp. St. § 9821), a national bank receiver, “upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct.” This provision does not authorize a disposition of assets which is not a sale. -The above-mentioned application made no mention of bad or doubtful debts, but invoked the exercise of the court’s power to order a sale of real and personal property of the bank. The proposed disposition of property of the bank was challenged on the ground that it was not a sale, within the meaning of the above-quoted statute, and was not consistent with other statutory provisions with reference to the administration óf a national bank’s assets placed in the hands of a receiver. U. S. Comp. St. § 9827. In behalf of the appellees it was contended that the application for or the making of-such an administrative order as was sought could not be interfered with by injunction. It has been held that such a proceeding by a receiver is an ex parte one, and that an order made therein is not subject to be appealed from by a creditor of the bank. Fifer v. Williams (C. C. A.) 5 F.(2d) 286. The following was said in the opinion in that ease: “For an attempt to make an illegal or fraudulent sale, doubtless, a remedy by suit would lie, and from a decision in such a suit appeal could be taken to this court.” The appellants have such an interest in the bank’s assets as to be entitled to resist an illegal disposition of them. In the circumstances disclosed, no adequate legal remedy was available, and a court of equity properly could be applied to for relief; and, if a temporary injunction was improperly denied, the decree to that effect is subject to be appealed from. The effect of the proposed disposition of assets of the bank would be to transfer them to the corporation for administration, or for the sale or other disposition of them when approved by the trustees under the deed of trust. The corporation was to incur no obligation or liability to pay anything to the ■bank’s .creditors or stockholders, except that it was to pay t<? debenture holders pro rata shares of the amount realized from the transferred assets, after deducting the costs and expenses of administration. That the bank’s creditors and stockholders were not to get anything, except from the transferred assets, is clearly shown by the following provision: “The holder of this debenture agrees that, when the assets acquired from the receiver of the Georgia National Bank are exhausted, the capital stock of said Securities Company shall be distributed ratably among those who contributed the same, and all claims upon said capital stock are hereby waived.” The creation of an agency for the handling and administration of assets, and the payment of the proceeds, less costs and expenses, to those who are entitled to such assets, is not a sale of them. A change in the beneficial ownership of the thing dealt with, and a price, paid or promised, and certain or capable of being ascertained, are essential ingredients of a sale. Butler v. Thompson, 92 U. S. 412, 23 L. Ed. 684; Gockstetter v. Williams (C. C. A.) 9 F.(2d) 354. Under the proposed transaction the bank’s creditors and stockholders were to .get nothing for the transferred assets, unless what,the corporation realized from them exceeded the expenses of handling them, and the corporation was to get nothing but reimbursement for such expenses, though more 'than the amount of such expenses should be realized from those assets. The corporation was not to acquire the beneficial ownership of the transferred assets, and existing rights of such ownership were to be retained, except so far as those rights were to be destroyed or impaired by the exercise of the powers or privileges conferred on the corporation, the trustees under the deed of trust, and the debenture holders. Without a real sale of them, assets of the bank were to be surrendered by the receiver and made subject to be sold by the corporation with the approval of the trustees under the deed of trust, instead of by the receiver with the approval of a court. An above-cited statute (Comp. St. § 9827) provides for the contingency of the bank’s debts being paid without exhausting its assets. In that event the bank’s stockholders are entitled to have the remaining assets administered by an agent of their own selection. The plan in question is not consistent with due effect being given to that provision. The statutes provide a complete scheme for the winding up of the affairs of a failed national bank. A 'court cannot properly approve a violation by a receiver of statutory requirements. By Rev. St. § 5234, the “receiver, under the direction of the Comptroller, shall take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, and,” etc. The effect of the proposed transaction would be a delegation to the corporation of the receiver’s duty and authority to collect what was owing to the bank, and a surrender of assets of the bank by the receiver to the corporation, which was not the buyer of such assets. The receiver was not authorized, with or without a court’s approval, so to delegate his duties or powers, or to make such a surrender of assets. We are of opinion that the injunction sought was an appropriate means of preventing an illegal disposition of assets of the bank, and that the court erred in refusing to grant that relief. As the challenged transaction was illegal, for the reasons above indicated, it is not necessary to pass on the question as to the validity of the feature of it relating to the bank’s debt to the Federal Reserve Bank of Atlanta. The decree is reversed, and the cause is remanded, for further proceedings not inconsistent with this opinion. Reversed.

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

Are there two issues in the case?

NATIONAL LABOR RELATIONS BOARD v. CATHOLIC BISHOP OF CHICAGO et al. No. 77-752. Argued October 30, 1978 Decided March 21, 1979 BüRger, C. J., delivered the opinion of the Court, in which Stewart, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Blackmun, JJ., joined, post, p. 508. Solicitor General McCree argued the cause for petitioner. With him on the briefs were Kenneth S. Getter, John S. Irving, Carl L. Taylor, Norton J. Come, and Carol A. De Deo. Don H. Reuben argued the cause for respondents. With him on the brief were Lawrence Gunnels, James A. Serritella, James A. Klenk, and Jerome J. O’Dowd. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Leo Pfefjer and Earl W. Trent, Jr., for the Baptist Joint Committee on Public Affairs; by Thomas Stephen Neuberger for the Center for Law and Religious Freedom of the Christian Legal Society; by Warren L. Johns, Walter E. Carson, Lee Boothby, and Robert J. Hickey for the General Conference of Seventh-Day Adventists; and by David Goldberger and Barbara P. O’Toole for the Roger Baldwin Foundation of the American Civil Liberties Union, Inc., Illinois Division. Briefs of amici curiae were filed by Lawrence A. Poltroch and Bruce E. Endy for the American Federation of Teachers (AFL-CIO); by Sharp Whitmore for certain Catholic High Schools in the Archdiocese of Los Angeles and the Diocese of Orange; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference. Mb. Chief Justice Burger delivered the opinion of the Court. This case arises out of the National Labor Relations Board’s exercise of jurisdiction over lay faculty members at two groups of Catholic high schools. We granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses of the First Amendment? 434 U. S. 1061 (1978). I One group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South. Those schools are termed “minor seminaries” because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley schools. In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary schools. The Quigley schools also offer essentially the same college-preparatory curriculum as public secondary schools. Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization. The Diocese of Fort Wayne-South Bend, Inc., has five high schools. Unlike the Quigley schools, the special recommendation of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State. In 1974 and 1975, separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers. The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board’s discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board’s jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B. 249 (1975). There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations “only when they are completely religious, not just religiously associated.” Id., at 250. Because neither group of schools was found to fall within the Board’s “completely religious” category, the Board ordered elections. Catholic Bishop of Chicago, 220 N. L. R. B. 359 (1975). In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under §§8 (a)(1) and (5) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a) (1) and (5). The schools opposed the General Counsel’s motion for summary judgment, again challenging the Board’s exercise of jurisdiction over religious schools on both statutory and constitutional grounds. The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these schools. The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic Bishop of Chicago, 224 N. L. R. B. 1221 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 N. L. R. B. 1226 (1976). II The schools challenged the Board’s orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board’s orders. 559 F. 2d 1112 (1977). The court considered the Board’s actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not “completely religious.” It concluded that the Board had not properly exercised its discretion, because the Board’s distinction between “completely religious” and “merely religiously associated” failed to provide a workable guide for the exercise of discretion: “We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where 'completely religious’ takes over or, on the other hand, ceases. In our opinion the dichotomous 'completely religious — merely religiously associated’ standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e. g., [Wisconsin v.] Yoder,... 406 U. S. 205 [(1972)].” Id., at 1118. The Court of Appeals recognized that the rejection of the Board’s policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board’s jurisdiction. It reasoned that from the initial act of certifying a union as the bargaining agent for lay teachers the Board’s action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board’s action in this way: “At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an 'integral part of the religious mission of the Catholic Church,’ Lemon [v. Kurtzman, 403 U. S. 602], 616 [(1971)], courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature.” Ibid. The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not “have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned.” Id., at 1124. The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment. “The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops’ control of the religious mission of the schools.” Ibid. III The Board’s assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951 the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N. L. R. B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N. L. R. B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary schools. Shattuck School, 189 N. L. R. B. 886 (1971). See also Judson School, 209 N. L. R. B. 677 (1974). The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. 29 CFR § 103.1 (1978). See, e. g., Academia San Jorge, 234 N. L. R. B. 1181 (1978) (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N. L. R. B. 457, 200 N. L. R. B. 991 (1972) (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts). That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated schools. Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer’s minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N. L. R. B. 1053 (1974), the Board did not assert jurisdiction over the Association which offered courses in Jewish, culture in after-school classes, a nursery-school, and a college. The Board termed the Association an “isolated instance of [an] atypical employer.” Id., at 1058-1059. It explained: “Whether an employer falls within a given ‘class’ of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character.... [T]he fact that an employer’s activity... is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction.” Id., at 1058. Cf. Board of Jewish Education of Greater Washington, D. C., 210 N. L. R. B. 1037 (1974). In the same year the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high schools. Henry M. Hald High School Assn., 213 N. L. R. B. 415 (1974). It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board’s view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. Id., at 418 n. 7. When it ordered an election for the lay professional employees at five parochial high schools in Baltimore in 1975, the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment: “[T]he Board’s policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with their religious tenets.” Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B., at 250. The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218, 1218 (1976): “Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain [the Act’s] objective.” (Emphasis added.) The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated schools. Implicit in the Board’s distinction between schools that are “completely religious” and those “religiously associated” is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school’s involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses and hence preclude jurisdiction on constitutional grounds. IV That there are constitutional limitations on the Board’s actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment. Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated schools. In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes. In Machinists v. Street, 367 U. S. 740 (1961), for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding “serious doubt of [the Act’s] constitutionality.” Id., at 749. Similarly in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), a case involving the Board’s assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which in turn would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving “public questions particularly high in the scale of our national interest.” Id., at 17. Because of those questions the Court held that before sanctioning the Board’s exercise of jurisdiction “ 'there must be present the affirmative intention of the Congress clearly expressed.’ ” Id., at 21-22 (quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 147 (1957)). The values enshrined in the First Amendment plainly rank high “in the scale of our national values.” In keeping with the Court’s prudential policy it is incumbent on us to determine whether the Board’s exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify “the affirmative intention of the Congress clearly expressed” before concluding that the Act grants jurisdiction. y In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U. S. 602, 617 (1971), is true of the schools in this case: “Religious authority necessarily pervades the school system.” The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra, at 617, we wrote: “In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.” (Emphasis added.) Only recently we again noted the importance of the teacher’s function in a church school: “Whether the subject is'remedial reading,’ 'advanced reading,’ or simply'reading,’ a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists.” Meek v. Pittenger, 421 U. S. 349, 370 (1975). Cf. Wolman v. Walter, 433 U. S. 229, 244 (1977). Good intentions by government — or third parties — can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman. The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer’s action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board’s jurisdiction presents a significant risk that the First Amendment will be infringed. Moreover, it is already clear that the Board’s actions will go beyond resolving factual issues. The Court of Appeals’ opinion refers to charges of unfair labor practices filed against religious schools. 559 F. 2d, at 1125, 1126. The court observed that in those cases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school’s religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions. The Board’s exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are “terms and conditions of employment” and therefore mandatory subjects of bargaining. See 29 U. S. C. § 158 (d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that “nearly everything that goes on in the schools affects teachers and is therefore arguably a ‘condition of employment/ ” Springfield Education Assn. v. Springfield School Dist. No. 19, 24 Ore. App. 751, 759, 547 P. 2d 647, 650 (1976). The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the “introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management.” Pennsylvania Labor Relations Board v. State College Area School Dist., 461 Pa. 494, 504, 337 A. 2d 262, 267 (1975). Cf. Clark County School Dist. v. Local Government Employee-Management Relations Board, 90 Nev. 442, 447, 530 P. 2d 114, 117-118 (1974). See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board’s inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon, supra, at 616, applies as well here: “[P]arochial schools involve substantial religious activity and purpose. “The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.” (Footnote omitted.) Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting “the admitted and obvious fact that the raison d’etre of parochial schools is the propagation of a religious faith.” 403 U. S., at 628. The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents. VI There is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board’s jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools. In enacting the National Labor Relations Act in 1935; Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e. g., 79 Cong. Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, pp. 2341-2343 (1949). Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor’s dispute with the college as an example of employer-employee relations not covered by the Act. S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History, supra, at 2307. Congress’ next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947 — the Taft-Hartley Act. In that Act Congress amended the definition of “employer” in § 2 of the original Act to exclude nonprofit hospitals. 61 Stat. 137, 29 U. S. C. § 152 (2) (1970 ed.). There was some discussion of the scope of the Board’s jurisdiction but the consensus was that nonprofit institutions in general did not fall within the Board’s jurisdiction because they did not affect commerce. See H. R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg. Hist.); H. R. Rep. No. 245, 80th Cong., 1st Sess., 12 (1947), 1 Leg. Hist. 303; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg. Hist. 507, 536; 93 Cong. Rec. 4997 (1947), 2 Leg. Hist. 1464 (remarks of Sens. Tydings and Taft). The most recent significant amendment to the Act was passed in 1974, removing the exemption of nonprofit hospitals. Pub. L. 93-360, 88 Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board’s exercise of jurisdiction over church-operated schools. A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board’s jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated school until after the 1974 amendment, nothing in the history of the amendment can be read as reflecting Congress’ tacit approval of the Board’s action. During the debate there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong. Rec. 12946, 16914 (1974), Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, 93d Cong., 2d Sess., 118, 331-332 (1974) (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees: “Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501 (c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee.” 29 U. S. C. § 169. The absence of an “affirmative intention of the Congress clearly expressed” fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers. The Board relies heavily upon Associated Press v. NLRB, 301 U. S. 103 (1937). There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Id., at 131-132. Here, on the contrary, the record affords abundant evidence that the Board’s exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses. Accordingly, in the absence of a clear expression of Congress’ intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses. Affirmed. APPENDIX TO OPINION OF THE COURT Q. [by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don’t want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know? A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that? Q. I believe you defined it before, is that correct, when you first testified? A. I am not sure. Let me try briefly to do it again, okay? Q. Yes. A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer. Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these — and there is a big spectrum in between those two extremes — all of these are popularly referred to as liturgies. Q. I see. A. Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately. Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools? A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school. Mr. Justice Brennan, with whom Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun join, dissenting. The Court today holds that coverage of the National Labor Relations Act does not extend to lay teachers employed by church-operated schools. That construction is plainly wrong in light of the Act’s language, its legislative history, and this Court’s precedents. It is justified solely on the basis of a canon of statutory construction seemingly invented by the Court for the purpose of deciding this case. I dissent. I The general principle of construing statutes to avoid unnecessary constitutional decisions is a well-settled and salutary one. The governing canon, however, is not that expressed by the Court today. The Court requires that there be a “clear expression of an affirmative intention of Congress” before it will bring within the coverage of a broadly worded regulatory statute certain persons whose coverage might raise constitutional questions. Ante, at 504. But those familiar with the legislative process know that explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace. Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments. This flouts Mr. Chief Justice Taft’s admonition “that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save [a] law from conflict with constitutional limitation.” Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 (1926). See Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964); Jay v. Boyd, 351 U. S. 345, 357 n. 21 (1956); Shapiro v. United States, 335 U. S. 1, 31, and n. 40 (1948); United States v. Sullivan, 332 U. S. 689, 693 (1948); Hopkins Savings Assn. v. Cleary, 296 U. S. 315, 335 (1935). The settled canon for construing statutes wherein constitutional questions may lurk was stated in Machinists v. Street, 367 U. S. 740 (1961), cited by the Court, ante, at 500: “ 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ Crowell v. Benson, 285 U. S. 22, 62.” Id., at 749-750 (emphasis added). Accord, Pernell v. Southall Realty, 416 U. S. 363, 365 (1974); Johnson v. Robison, 415 U. S. 361, 367 (1974); Curtis v. Loether, 415 U. S. 189, 192 n. 6 (1974); Ashwander v. TV A, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring); Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933). This limitation to constructions that are “fairly possible,” and “reasonable,” see Yu Cong Eng v. Trinidad, supra, at 518, acts as a brake against wholesale judicial dismemberment of congressional enactments. It confines the judiciary to its proper role in construing statutes, which is to interpret them so as to give effect to congressional intention. The Court’s new “affirmative expression” rule releases that brake. II The interpretation of the National Labor Relations Act announced by the Court today is not “fairly possible.” The Act’s wording, its legislative history, and the Court’s own precedents leave “the intention of the Congress... revealed too distinctly to permit us to ignore it because of mere misgivings as to power.” Moore Ice Cream Co. v. Rose, supra, at 379. Section 2 (2) of the Act, 29 U. S. C. § 152 (2), defines “employer” as “... any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” (Emphasis added.) Thus, the Act covers all employers not within the eight express exceptions. The Court today substitutes amendment for construction to insert one more exception — for church-operated schools. This is a particularly transparent violation of the judicial role: The legislative history reveals that Congress itself considered and rejected a very similar amendment. The pertinent legislative history of the NLRA begins with the Wagner Act of 1935, 49 Stat. 449. Section 2 (2) of that Act, identical in all relevant

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?

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 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?

SOUTHERN RAILWAY CO. v. SEABOARD ALLIED MILLING CORP. et al. No. 78-575. Argued April 23, 1979 — Decided June 11, 1979 SteveNS, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the cases. Mark L. Evans argued the cause for petitioner in No. 78-597. With him on the briefs were Christine N. Kohl and James P. Tuite. Wandaleen Poynter argued the cause for petitioners in No. 78-604. With her on the briefs were Donal L. Turkal, Fred R. Birkholtz, and Richard A. Hollander. Michael Boudin and Clare Dalton filed briefs for petitioner in No. 78-575. Richard A. Allen argued the cause for the United States as respondent in all cases. With him on the briefs were Solicitor General McCree and Deputy Solicitor General Easterbrook. John H. Caldwell argued the cause for respondents Seaboard Allied Milling Corp. et al. in all cases. With him on the brief were Peter A. Greene, Rufus L. Edmisten, Attorney General of North Carolina, Jacob Safron, Special Deputy Attorney General, Richard L. Griffin, Associate Attorney General, Theodore L. Sendak, Attorney General of Indiana, William G. Mundy, Deputy Attorney General, and Donald P. Bogard. Harold E. Spencer argued the cause for respondents Board of Trade of the City of Chicago et al. in all cases. With him on the brief were Thomas F. McFarland, Jr., and Richard S. M. Emrich III. Together with No. 78-597, Interstate Commerce Commission v. Sear-board Allied Milling Corp. et al.; and No. 78-604, Seaboard Coast Line Railroad Co. et al. v. Seaboard Allied Milling Corp. et al., also on certiorari to the same court. J. Raymond Clark, John L. Taylor, Jr., and John R. Molm filed a brief for Potomac Electric Power Co. et al. as amici curiae urging affirmance. Mr. Justice Stevens delivered the opinion of the Court. On September 14, 1977, the Interstate Commerce Commission decided not to exercise its authority under § 15 (8) (a) of the Interstate Commerce Act (Act) to order a hearing to investigate the lawfulness of a seasonal rate increase proposed by a group of railroads. The question presented is whether the Commission’s refusal to conduct such an investigation is subject to judicial review. Because the Courts of Appeals for the Eighth Circuit, Seaboard Allied Milling Corp. v. ICC, 570 F. 2d 1349, and the District of Columbia Circuit have answered this question differently, we granted certiorari. 439 U. S. 1066. We now hold that the Commission’s “no investigation” decision is not reviewable. Petitioner railroads’ rate schedule was the first one proposed under § 202 (d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the 4-R Act). 90 Stat. 36, amending 49 U. S. C. § 15 (1970 ed.). See App. to Pet. for Cert, in No. 78-597, p. 28a. That provision directs the Commission to adopt “expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services.” In August 1977, after the Commission had promulgated its new standards and procedures for seasonal rate adjustments, see Ex parte No. 324, 355 I. C. C. 522, the Southern Freight Association proposed a 20% increase in the rates for grain and soybeans shipped from the Midwest in railroad-owned cars between September 15 and December 15, 1977. The railroads supported their proposal with statistics describing the high volume of grain shipments in the fall, an explanation of the anticipated effect of the temporary rates on railcar usage, and some cost evidence. A number of shippers and large users of transported grain (hereinafter shippers) filed protests claiming the proposed rates were unlawful. They requested that the Commission exercise its authority under § 15 (8) (a) to suspend these rates and to investigate the charges of illegality. On September 14, 1977, a month after the rates were filed, and eight days after receiving the protests, the Commission issued its order declining either to suspend or to investigate the legality of the rates. App. 286-291. In that order the Commission admonished the railroads “to take prompt action to remove violations of the long-and-short-haul provision of section 4 (1) of the Act, if any, in connection with inter-territorial and intra-territorial movements that may be caused by application of demand-sensitive rates on whole grains between points in southern territory.” Id., at 288. Moreover, the Commission directed the carriers to file detailed weekly reports relating to the effects of the new schedules, id., at 289-290 (and, in a later order, to keep accounts of all charges and receipts under the rates, id., at 302), and “out of caution” it instructed its Bureau of Investigations and Enforcement and Bureau of Operations “to closely monitor this matter.” Id., at 290. With respect to the basic question whether to suspend the rates and conduct a formal investigation, the Commission concluded: “Weighing the contentions before us and the clear Congressional purpose to permit experimental ratemaking, we will permit this temporary adjustment to become effective.” Id., at 289. It noted, however, that § 13 (1) of the Act, which allows shippers to initiate mandatory posteffective proceedings to inquire into and remedy violations of the Act, would still be available to “protect” persons aggrieved by the rates. App. 289. Immediately after the Commission entered its order, two judges of the Court of Appeals granted an ex parte application for a temporary stay and enjoined the Commission from permitting the tariff to go into effect. Id., at 295. Eight days later, however, the court dissolved its stay and the new rates went into effect. Id., at 298-300. Two months after the seasonal tariff had expired, the Court of Appeals filed its opinion concluding that the Commission had begun an investigation but had then erroneously terminated it without “adequately in-vestigat[ing] the charges” of “patent illegality” and without supporting its decision “with appropriate findings and conclusions.” 570 F. 2d, at 1352, 1355, 1356. It directed the Commission to hold hearings to investigate more fully the protestants’ charges of patent illegality and, if the investigation revealed that the tariff was unlawful, to make appropriate provisions for refund of increased charges collected under the tariff. Id., at 1356. Although some of the just-quoted passages suggest that the Court of Appeals viewed the Commission’s order as an inadequately investigated decision on the merits, other passages indicate that it reviewed and disapproved of the order, realizing that it was a decision not to reach the merits and not to investigate the lawfulness of the rates. Because the period covered by the seasonal tariff had already expired, the court first stated that it would not decide whether the Commission’s refusal to suspend the effectiveness of the rates pending investigation was reviewable. Id., at 1352. Assuming, however, that United States v. SCRAP, 412 U. S. 669, 698, and Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 667-668, had established that a suspension decision is not reviewable, the court reasoned that the Commission’s suspension and investigation powers are separate and distinct and that the factors that had prompted this Court in Arrow “to hold suspension orders not reviewable are not applicable to decisions of the Commission to refuse to make or to terminate an investigation of the lawfulness of a proposed tariff.” 570 F. 2d, at 1353. It then concluded that the latter type of decision is subject to judicial review even though the former is not, primarily because, in its view, a single § 15 (8) (a) proceeding initiated by the Commission is a better means of determining the lawfulness of the rates than numerous § 13 (1) complaint proceedings initiated by shippers contending that they have been overcharged. 570 F. 2d, at 1355. We reverse. First, to the extent that the Court of Appeals interpreted the Commission’s order as a final decision that the tariff was lawful, rather than simply a discretionary decision not now to investigate its lawfulness, it has misconstrued the order. Second, to the extent that its decision transcends this misinterpretation of the Commission’s order and suggests that even a “no investigation” determination would be reviewable, it has misconstrued Congress’ intent with respect to §15 (8)(a). I It is, of course, true that a decision by the Commission following a § 15 (8) investigation to approve or disapprove a set of rates is a judicially reviewable final decision. E. g., United States v. Louisiana, 290 U. S. 70. See Chicago v. United States, 396 U. S. 162. The shippers contend that this rule governs here. In their view, the Commission, by reviewing and then leaving intact rates it knew to be unlawful, effectively approved those rates. But the express language of the Commission’s order belies any interpretation of its decision as a ruling on the legality of petitioner railroads’ seasonal tariff. The claim of illegality most forcefully urged by the shippers, both here and in the- Court of Appeals, is that the schedules contain a number of violations of the long-and-short-haul restrictions in §4(1) of the Act. The Commission did not reject this claim on its merits; on the contrary, it admonished the carriers to correct any such violations that might exist and directed that records be kept to protect the shippers’ right to recover their damages in such subsequent proceedings as they might bring pursuant to § 13 (1) of the Act. App. 288-290. Since the Commission expressly indicated that charges of violation of §4(1) could be resolved in § 13 (1) proceedings, App. 289, it is plainly incorrect to interpret its action as a prejudgment of the issue. The Commission did note in addition that “the evidence offered to support the alleged [§4 (1)] violations [did] not warrant suspension” or investigation. Id., at 288. But, in light of the nature of the inquiry that the Commission makes when a request for suspension and investigation of an area-wide group of rates is filed, this, too, is clearly not a decision that there were no violations. Since 1910, when § 15 (8) (a)’s precursor was added to the Act, the Commission has typically made its suspension and investigation decisions simultaneously; indeed, the Act appears to contemplate that result. See infra, at 458-459. In addition, the Act leaves the Commission only 30 days to decide on suspension before the rates automatically become effective. 49 U. S. C. § 6 (3). The Commission’s primary duty, therefore, is to make a prompt appraisal of the probable and general reasonableness and legality of the proposed schedule — which may, as in this case, involve thousands of rates for designated commodities and routes — rather than a detailed review of the lawfulness of each individual component of the tariff schedules. In short, the Commission simply has no time to, and did not in these cases, finally decide on the lawfulness of the rate schedule or its individual components during the preliminary 30-day period. II Nor can § 15 (8) be read to tolerate judicial review of the Commission’s decision not to investigate the lawfulness of a proposed rate schedule. Although we will not lightly interpret a statute to confer unreviewable power on an administrative agency, Morris v. Gressette, 432 U. S. 491, 501; Dunlop v. Bachowski, 421 U. S. 560, 567, we have no choice in this case. For the ultimate analysis is always one of Congress’ intent, and in these cases, “there is persuasive reason to believe that [nonreviewability] was the purpose of Congress.” Abbott Laboratories v. Gardner, 387 U. S. 136, 140. Initially, it is important to note the extremely limited scope of the administrative decision that we conclude is not judicially reviewable. We are not here concerned with the Commission’s rate-suspension authority because, as we shall see, our prior cases have already placed the exercise of that authority beyond the control of the courts. Nor, in fact, are we holding entirely unreviewable the Commission’s exercise of its rate-investigation authority. For any shipper may require the Commission to investigate the lawfulness of any rate at any time — and may secure judicial review of any decision not to do so — by filing a § 13 (1) complaint. E. g., ICC v. Baird, 194 U. S. 25, 39. Instead, our sole concern is the Commission’s decision not to investigate under § 15 (8)(a), a decision that has only two final consequences. First, the burden of proof with regard to reasonableness is placed on the shipper under § 13 (1) rather than on the carrier, who would have borne it in a § 15 (8) (a) proceeding. (With respect to all other aspects of lawfulness, however, the burden is borne by the shipper in both proceedings.) Second, the shipper’s relief, if unlawfulness is proved, is limited under § 13 (1) to actual damages rather than the full refund of overcharges available under § 15 (8)(a). It is only with regard to these two determinations, neither of which necessarily affects any citizen’s ultimate rights, that we conclude — based on the language, structure, and history of the Act as well as the relevant case law— that the agency’s exercise of discretion is unreviewable. A With respect to the Commission’s investigation power, § 15 (8) (a) is written in the language of permission and discretion. Under it, “the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of [a] rate [which] hearing may be conducted without answer or other formal pleading... (Emphasis added.) The statute is silent on what factors should guide the Commission’s decision; not only is “[t]he extent of this inquiry... not... marked... with certainty,” cf. United States v. Louisiana, 290 U. S., at 77, but also on the face of the statute there is simply “no law to apply” in determining if the decision is correct. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410. Similar circumstances have been emphasized in cases in which we have inferred nonreviewability. See Barlow v. Collins, 397 U. S. 159, 166; Schilling v. Rogers, 363 U. S. 666, 674. B The structure of the Act also indicates that Congress intended to prohibit judicial review. Congress did not use permissive language such as that found in § 15 (8) (a) when it wished to create reviewable duties under the Act. Instead, it used mandatory language, and it typically included standards to guide both the Commission in exercising its authority and the courts in reviewing that exercise. In particular, § 13 (1), which plainly authorizes rate-investigation decisions that are reviewable, ICC v. Baird, supra, at 39, provides that “[i]f... there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of....” (Emphasis added.) The Court of Appeals’ interpretation therefore treats § 15 (8) (a) as if it were written in the mandatory language of § 13 (1). Of even greater significance, that interpretation would allow shippers to use the open-ended and ill-defined procedures in § 15 (8) (a) to render obsolete the carefully designed and detailed procedures in § 13 (1). For under the court’s reading, at least when one of the perhaps thousands of rates in a proposed schedule is “patently illegal,” any party could (and, given the burden-of-proof and remedial advantages, many surely would) force the Commission immediately to undertake an investigation under § 15 (8) (a) and to reach a judicially reviewable decision on the legality of the rates. Nothing would be left for consideration under § 13 (1). We, of course, are reluctant almost a century after the Act was passed to adopt an interpretation of it that would effectively nullify one of its original and most frequently used provisions. The disruptive practical consequences of such a determination confirm our view that Congress intended no such result. The Commission reviews over 50,000 rate-schedule filings each year; many, including the one involved here, contain thousands of individual rates. See 91 ICC Ann. Rep. 113 (1977). If the Commission, which generally makes its § 15 (8) (a) investigation decisions within 30 days in order to allow pre-effective suspension, must carefully analyze and explain its actions with regard to each component of each proposed schedule, and if it must increase the number of investigations it conducts, all in order to avoid judicial review and reversal, its workload would increase tremendously. These practical effects of reviewability would be especially disruptive in the present context of seasonal rates proposed under § 202 (d) of the 4-R Act. The policies underlying that provision favor greater freedom of action by the railroads, greater rate flexibility, especially with respect to short-term rates, and more limited supervision by the Commission — all of which would be disserved if the courts may examine the Commission’s initial investigation decisions with respect to temporary rate adjustments. Furthermore, an increase in the number of rate investigations in which the railroad, rather than the challenging party, bears the burden of proof and in which the challenger need not prove actual damages before recovering refunds would be out of place in a regulatory system that leaves “the initiative in setting rates.., with the railroad.” Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 311. There is an additional structural reason why the Commission’s investigation decisions are unreviewable. Section 15 (8) was originally included in the Mann-Elkins Act of 1910, 36 Stat. 552. As adopted, and as it has remained during the ensuing 70 years, the provision has given the Commission the power not only to investigate but also to suspend proposed rates. 49 U. S. C. § 15 (8)(b). Congress phrased the two powers in precisely the same language and placed the same time limits on the exercise of both. See Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1, 8-9, 567 F. 2d 994, 1001-1002 (1977); n. 2, supra. The two powers are inextricably linked because the Commission has no occasion to suspend a rate unless it also intends to investigate it. See United States v. Chesapeake & Ohio R. Co., 426 U. S. 500, 512-513 (Chessie). In view of this linkage, we need look no further than our previous decisions concluding that the merits of a suspension decision are not reviewable to find a sufficient answer to the question presented in these cases. Aberdeen & Rockfish R. Co. v. SCRAP, supra, at 311; United States v. SCRAP, 412 U. S., at 691-692, 698; Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658. Indeed, if any distinction is to be drawn, it would make more sense to subject suspension rather than investigation decisions to review, for the pre-effective suspension of a new rate has a greater and more immediate impact on carriers and shippers than does the initiation of an investigation whose outcome is inevitably in doubt. See Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 641; Chessie, supra, at 513. C The legislative history of the Mann-Elkins amendments to the Act also supports nonreviewability. Prior to the enactment of those amendments, the Commission had no authority to suspend rates, or to adjudicate their lawfulness in advance either of their becoming effective or of their being challenged by a private party in a § 13 (1) complaint. In the years immediately preceding the enactment of the amendments, rapidly rising rates encouraged shippers, with some success, to ask the courts to enjoin unlawful rates before they went into effect. As a result of the ensuing judicial intervention in the ratemaking process, the Commission was divested of much of its primary jurisdiction with respect to rates, and the public was subjected to nonuniform rates that depended on whether or not the local district court had issued an injunction. See 21 ICC Ann. Rep. 9-10 (1907); 22 ICC Ann. Rep. 10-12 (1908); 23 ICC Ann. Rep. 6-7 (1909). As discussed at greater length in Arrow, supra, at 662-672, the adoption of § 15 (8) was designed to avoid these disruptive consequences of judicial interference. If we should now allow the courts to review § 15 (8) investigation decisions, we would be giving “backhanded approval” to these very same consequences. 372 U. S., at 664. Judicial review would once again undermine the Commission’s primary jurisdiction by bringing the courts into the adjudication of the lawfulness of rates in advance of administrative consideration. As we said in Arrow with respect to judicially mandated rate suspension: “A court’s disposition of an application for [an order directing the Commission to investigate rates] would seem to require at least some consideration of the applicant’s claim that the carrier’s proposed rates are unreasonable [or otherwise unlawful]. But such consideration would create the hazard of forbidden judicial intrusion into the administrative domain.” Id., at 669-670. Moreover, this allowance for independent judicial appraisal of the reasonableness of rates by every court of appeals in the country might replicate the judicially created “hazard[s] to uniformity” that, along with the courts’ assault on the Commission’s primary jurisdiction, prompted Congress to pass § 15 (8) in the first place. See 372 U. S., at 671. D Given the strength of the statutory and legislative evidence supporting nonreviewability, it is not surprising that prior to 1977 no court had ever even adverted to the possibility of reviewing a “no investigation” decision under §15 (8)(a). Nonetheless, this Court has indicated on at least two occasions that the decision whether the Commission should commence an investigation under an analogous provision in the Act, § 13a (1), is committed to the agency’s discretion and therefore not revie wable. In Chicago v. United States, 396 U. S. 162, the Court held that orders discontinuing § 13a (1) investigations into the propriety of certain changes in passenger service were reviewable rulings on the merits. In so holding, however, the Court expressly distinguished a Commission decision on the question whether an investigation should be undertaken in the first place, saying: “Whether the Commission should make an investigation of a § 13a (1) discontinuance [of passenger service] is of course within its discretion, a matter which is not reviewable. New Jersey v. United States, 168 F. Supp. 324, aff’d, 359 U. S. 27.” 396 U. S., at 165. In the New Jersey case cited in Chicago, a three-judge District Court had squarely held that the Commission’s refusal to commence a § 13a (1) investigation into a railroad’s abandonment of service was not reviewable. See 168 F. Supp. 324, 328 (NJ 1958). Our summary affirmance of that holding in 359 U. S. 27, while having less precedential value than an opinion in an argued case, was nonetheless a ruling on the merits, Hicks v. Miranda, 422 U. S. 332, and it, along with the Chicago dictum, strongly supports the nonreviewability of § 15 (8) (a) investigation determinations. In short, the necessary “ ‘clear and convincing evidence’ that Congress meant to prohibit all judicial review” of the Commission’s limited decision not to initiate an investigation under § 15 (8) (a) is provided by the language of the statute, as well as its place within the statutory design of the Act, its legislative history, and the light shed on it by our case law concerning analogous statutes. Dunlop v. Bachowski, 421 U. S., at 568. See Abbott Laboratories v. Gardner, 387 U. S., at 141. Ill We also find no statutory support for the Solicitor General’s belated compromise position that, while not immediately reviewable (i. e., not “final” at the stage of the administrative proceedings involved in these cases), the Commission’s decisions under § 15 (8) (a) do become reviewable later, upon the completion of whatever proceedings may be initiated under § 13 (l). Under this novel reading of the Act, if a shipper is denied § 13 (1) relief, he not only may appeal that decision to a court of appeals but also may appeal the Commission’s earlier decision not to suspend or investigate a rate under §15 (8)(a). Although it is true that the § 13 (1) remedy lessens the risk of harm from the Commission’s initial refusal to investigate or to suspend under § 15 (8) (a), Aberdeen & Rockfish R. Co., 422 U. S., at 311, it is nonetheless clear that that remedy is independent of § 15 (8)(a) proceedings. First, the language of § 15 (8) (a) suggests no linkage to § 13 (1) nor any basis for judicial review at any point in the administrative process. Second, § 13 (1) has been an independent and self-contained procedure since the Act was first passed in 1887. When § 15 (8) (a) was added some 23 years later, there was no indication that it was intended as an amendment to § 13 (1), rather than as a limited pre-effective and Commission-initiated alternative to the posteffective and shipper-initiated procedures in § 13 (1). Third, if shippers are encouraged in every case to request investigations under § 15 (8) (a) in order to preserve for later review under § 13 (1) a claim that one was not conducted, and if the Commission’s decisions are ultimately subjected to review, many of the practical problems that we discussed above with respect to the Court of Appeals’ approach would still arise. In sum, the force of the arguments against reviewability of § 15 (8) (a) investigation decisions is not diminished by altering the point in the administrative process at which the courts are allowed to intrude. The judgment of the Court of Appeals is Reversed. Mr. Justice Powell took no part in the consideration or decision of these cases. At all relevant times, § 15 (8) provided in pertinent part: “(a) Whenever a schedule is filed with the Commission by a common carrier by railroad stating a new individual or joint rate, fare, or charge, or a new individual or joint classification, regulation, or practice affecting a rate, fare, or charge, the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of such rate, fare, charge, classification, regulation, or practice. The hearing may be conducted without answer or other formal pleading, but reasonable notice shall be provided to interested parties. Such hearing shall be completed and a final decision rendered by the Commission not later than 7 months after such rate, fare, charge, classification, regulation, or practice was scheduled to become effective, unless, prior to the expiration of such 7-month period, the Commission reports in writing to the Congress that it is unable to render a decision within such period, together with a full explanation of the reason for the delay. If such a report is made to the Congress, the final decision shall be made not later than 10 months after the date of the filing of such schedule. If the final decision of the Commission is not made within the applicable time period, the rate, fare, charge, classification, regulation, or practice shall go into effect immediately at the expiration of such time period, or shall remain in effect if it has already become effective. Such rate, fare, charge, classification, regulation, or practice may be set aside thereafter by the Commission if, upon complaint of an interested party, the Commission finds it to be unlawful. “(b) Pending a hearing pursuant to subdivision (a), the schedule may be suspended, pursuant to subdivision (d), for 7 months beyond the time when it would otherwise go into effect, or for 10 months if the Commission makes a report to the Congress pursuant to subdivision (a), except under the following conditions....” 90 Stat. 2630, 49 U. S. C. § 15 (8). On October 17, 1978, President Carter signed into law Subtitle IV of Title 49, United States Code, “Transportation,” 49 U. S. C. § 10101 et seq. (1976 ed., Supp. II), which recodifies and revises some of the archaic language of the Interstate Commerce Act. See Note preceding 49 U. S. C. §10101 (1976 ed., Supp. II). Section 10707 of the recodified Title 49 corresponds to § 15 (8) of the old statute. In this opinion we shall refer to the relevant statutes by their former designations. In Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1, 8-9, 567 F. 2d 994, 1001-1002 (1977), the Court of Appeals for the District of Columbia Circuit held: "The orders challenged in each of these proceedings permitted rates filed by the railroads to go into effect without either investigation or suspension. It is firmly settled that ICC orders suspending rate increases for the statutory period are within the agency’s sole discretion and are judicially unreviewable.... The United States and the petitioners urge that a distinction should be drawn between Commission orders refusing to suspend rate increases and those declining to institute an investigation; the latter, they argue, should be held reviewable. The basic difficulty with this argument is that section [15 (8) (a)], which empowers the Commission both to suspend and to investigate proposed rate increases, grants both powers in substantially the same language. There is therefore no ground, on the basis of the Act, for treating the two powers differently for purposes of reviewability. We hold that the reviewability of the Commission’s decision to permit the rate increases in these proceedings to go into effect without suspension or investigation is controlled by the cases holding the Commission’s decision whether to suspend a rate increase to be unreviewable.” Section 202 (d), codified originally at 49 U. S. C. § 15 (17) and as set forth therein, provides as follows: “Within 1 year after February 5, 1976, the Commission shall establish, by rule, standards and expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services. Such standards and procedures shall be designed to (a) provide sufficient incentive to shippers to reduce peak-period shipments, through rescheduling and advance planning; (b) generate additional revenues for the railroads; and (c) improve (i) the utilization of the national supply of freight cars, (ii) the movement of goods by rail, (iii) levels of employment by railroads, and (iv) the financial stability of markets served by railroads. Following the establishment of such standards and procedures, the Commission shall prepare and submit to the Congress annual reports on the implementation of such rates, including recommendations with respect to the need, if any, for additional legislation to facilitate the establishment of such demand-sensitive rates.” The provision is currently codified in 49 U. S. C; § 10727 (1976 ed., Supp. II). See n. 1, supra. The shippers objected to the rates as unreasonably high in violation of 49 U. S. C. § 1 (5); as discriminatory contrary to §§2, 3 (1), because they applied only to railroad-owned cars; as not conforming to the goals of the seasonal-rate authorization; and as violating the long-and-short-haul clause of § 4 (1). Section 13 (1) provides: “Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall

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KUGLER, ATTORNEY GENERAL OF NEW JERSEY, et al. v. HELFANT No. 74-80. Argued March 25, 1975 Decided April 28, 1975 Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., took no part in the consideration or decision of the cases. Brennan, J., took no-part in the decision of the cases. David 8. Baime, Deputy Attorney General of New Jersey, argued the cause for petitioners in Ño. 74^80 and respondents in No. 74-277. With him on the briefs were William F. Hyland, Attorney General, and Glenn E. Kushel, Deputy Attorney General. Marvin D. Perskie argued the cause for petitioner in No. 74^-277 and respondent in No. 74r-80. With him on the briefs was Patrick T. McGahn, Jr. Together with No. 74-277, Helfant v. Kugler, Attorney General of New Jersey, et al., also on certiorari to the same court. Mr. Justice Stewart delivered the opinion of the Court. Edwin H. Helfant brought this action in Federal District Court to enjoin the Attorney General of New Jersey and other New Jersey officials from proceeding with the prosecution of an indictment pending against him in that State. His complaint alleged that he had been coerced into testifying before a state grand jury by the concerted action of a State Deputy Attorney General and members of the New Jersey Supreme Court, and that the indictment, charging him with obstruction of justice and false swearing, had grown out of that coerced testimony. His complaint further alleged that the significant role played by the members of the New Jersey Supreme Court in coercing his testimony made it impossible for him to receive a fair trial in the state-court system. The District Court dismissed the complaint on the ground that the principles of Younger v. Harris, 401 U. S. 37, precluded federal intervention in the state criminal proceeding. A three-judge panel of the Court of Appeals for the Third Circuit reversed that order and remanded the case to the District Court for a hearing on the merits of Helfant’s request for a permanent injunction. 484 F. 2d 1277. Upon petition of the defendant state officials (hereinafter the State), the Court of Appeals then set the case for an en banc rehearing. The full Court of Appeals held that a permanent injunction against the state criminal prosecution would be inappropriate, but, with three judges dissenting, nonetheless reversed the trial court’s order of dismissal. The Court of Appeals remanded the case for the purpose of an evidentiary hearing in the District Court on Helfant’s charge that his grand jury testimony had been coerced, and for the entry of a declaratory judgment, based upon that hearing, on the question whether Helfant’s grand jury testimony should be admitted into evidence at the state criminal trial. The District Court was directed to enjoin further proceedings in the state criminal prosecution pending entry of its declaratory judgment. 500 F. 2d 1188. The State filed a petition for a writ of certiorari, seeking review of the Court of Appeals’ remand to the District Court for an evidentiary hearing and declaratory judgment on the issue of coercion. Helfant filed a cross-petition for a writ of certiorari, challenging the Court of Appeals’, decision that permanent injunctive relief was not warranted. We granted both petitions to consider the propriety of federal-court intervention in pending state criminal proceedings .in the circumstances of this case. 419 TJ. S. 1019. I Helfant was a Municipal Court Judge and a member of the New Jersey bar. He was subpoenaed to appear on October 18, 1972, before a state grand jury. There he was advised that he was a target of the grand jury’s investigation into an episode allegedly involving corruption of the process of state criminal justice. Upon the advice of counsel, he invoked his constitutional privilege against compulsory self-incrimination and refused to testify before the grand jury. He was again subpoenaed to appear before the grand jury on November 8, 1972. On November 6, 1972, he received a telephone call from the Administrative Director of the New Jersey Courts requesting him to come to the conference room of the Justices of the New Jersey Supreme Court on the morning of November 8 just before his scheduled grand jury appearance. He complied with this request. In his federal complaint, Helfant alleged that at that meeting he was interrogated by the Chief Justice and other members of the Supreme Court concerning the subject matter of the grand jury investigation, including matters not then public, and was also sharply questioned about the propriety of a Municipal Judge’s invoking the privilege against compulsory self-incrimination before a grand jury. The complaint further alleged that the Justices’ questions were based on grand jury minutes that had been provided them by the Deputy Attorney General who was conducting the grand jury investigation, and who had been present in the conference room of the Supreme Court both before and after Helfant’s interview. The federal complaint went on to allege that as a result of this questioning Helfant, “fearing not only the loss of Judgeship, but for his accreditation as a member of the bar as well,” indicated to the Justices that he would waive his privilege and testify in full before the grand jury. After leaving the conference room, Helfant did testify before the grand jury, denying any improper involvement in the episode under investigation. Some two months later the grand jury returned an indictment charging Helfant with conspiracy to obstruct justice, obstruction of justice, compounding a felony, and with four counts of false swearing. The federal complaint finally alleged that federal injunctive relief was necessary because it would be impossible for Helfant to receive a fair trial in the New Jersey state courts: “As a result of the intrusion by the Deputy Attorney General and the disclosure to the Supreme Court of factual matters involved in a Grand Jury investigation during pendency of that investigation, and because of the intrusion of the New Jersey Supreme Court into the Grand Jury investigation and the communication between the Supreme Court of New Jersey and the Deputy Attorney General conducting the Grand Jury investigation, the plaintiff herein is made to suffer great, immediate, substantial and irreparable harm in that he must attempt to defend criminal charges brought in a State in which there has been prejudicial collusion directly affecting plaintiff, whether intentional or inadvertent between the Judicial and Executive branches of the New Jersey State government. Plaintiff is being made to defend criminal charges which have been obtained, inter alia, as a result of that collusion, and the deprivation of plaintiff’s constitutional rights by not too subtle cooperative coercion on the part of the defendants. Furthermore, in the event of his conviction upon any one of the charges presently pending against him, plaintiff’s only recourse would be review by the State Courts and ultimately the New Jersey Supreme Court, which Court he has alleged has been involved in the prosecution of the charges against him. Thus, any defense by plaintiff in other charges in State Court would be totally futile, because he would have to defend charges at the trial level, with the Trial Court fully cognizant of the 'interest’ of the Supreme Court in the charges, and could only seek review of his pretrial motions and trial motions and appeals in the same court that he alleges has unlawfully injected itself into the prosecution of the charges against him and unlawfully deprived him of his constitutional rights. The conclusion must be that the State is engaging in a bad faith prosecution of the plaintiff herein, and for this reason he seeks a permanent injunction against the further prosecution of the State proceedings . . . .” II In Younger v. Harris, supra, and its companion cases, the Court re-examined the principles governing federal judicial intervention in pending state criminal cases, and unequivocally reaffirmed “the fundamental policy against federal interference with state criminal prosecutions.” 401 U. S., at 46. This policy of restraint, the Court explained, is founded on the “basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Id., at 43-44. When a federal court is asked to interfere with a pending state prosecution, established doctrines of equity and comity are reinforced by the demands of federalism, which require that federal rights be protected in a manner that does not unduly interfere with the legitimate functioning of the judicial systems of the. States. Id., at 44. Accordingly, the Court held that in the absence of exceptional circumstances creating a threat of irreparable injury “ ‘both great and immediate,’ ” a federal court must not intervene by way of either injunction or declaratory judgment in a pending state criminal prosecution. Although the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution alone do not constitute “irreparable injury” in the “special legal sense of that term,” id., at 46, the Court in Younger left room for federal equitable intervention in a state criminal trial where there is a showing of “bad faith” or “harassment” by state officials responsible for the prosecution, id., at 54, where the state law to be applied in the criminal proceeding is “'flagrantly and patently violative of express constitutional prohibitions,’ ” id., at 53, or where there exist other “extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.” Ibid. In the companion case of Perez v. Ledesma, 401 U. S. 82, the Court explained that “[ojnly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” Id., at 85. See Mitchum v. Foster, 407 U. S. 225, .230-231. The policy of equitable restraint expressed in Younger v. Harris, in short, is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights. See Steffel v. Thompson, 415 U. S. 452, 460. Only if “extraordinary circumstances” render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of “extraordinary circumstances,” of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be “extraordinary” in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation. As the Court of Appeals recognized, Helfant’s allegations that members of the New Jersey Supreme Court were involved in coercing his grand jury testimony must, for present purposes, be assumed to be true. It is Helfant’s position that these are such “extraordinary circumstances” as to justify enjoining his criminal trial in view of the formidable supervisory and administrative powers exercised by the New Jersey Supreme Court over the entire state-court system. We cannot agree that these facts bring this litigation within any exception to the basic Younger rule. The New Jersey Constitution provides that the Chief Justice of the State Supreme Court shall be the “administrative head” of all the courts in the State. Art. VI, § 7, ¶ 1. The State Constitution further provides that “[t]he Chief Justice of the Supreme Court shall assign Judges of the Superior Court to the Divisions and Parts of the Superior Court, and may from time to time transfer Judges from one assignment to another, as need appears.” Id., ¶ 2. The New Jersey Supreme Court itself has explained that the State Constitution vests it with “plenary responsibility for the administration of all courts in the State.” State v. De Stasio, 49 N. J. 247, 253, 229 A. 2d 636, 639. “Thus this court is charged with responsibility for the overall performance of the judicial branch. Responsibility for a result implies power reasonably necessary to achieve it.” In re Mattera, 34 N. J. 259, 272, 168 A. 2d 38, 45. It is clear, therefore, that the State Supreme Court, and particularly its Chief Justice, are vested with considerable administrative authority over the. trial court that will initially determine Helfant’s federal constitutional claims if the criminal prosecution is allowed to proceed. And, of course, those claims are predicated in large measure on charges of improper conduct on the part of some Justices of the New Jersey Supreme Court. It is impossible to conclude from these considerations, however, that the objectivity of the entire New Jersey court system has been irretrievably impaired so far as Helfant is concerned. Helfant does not allege, and it certainly cannot be assumed, that no trial judge in New Jersey will be capable of impartially deciding his case simply because of the alleged previous involvement of members of the New Jersey Supreme Court. To be sure, it is conceivable that there might be a judge in the State who, in an effort to curry favor or to avoid administrative transfer to a less desirable assignment, would decide the case with an eye to the supposed attitudes of his superiors in the judicial hierarchy. But even if such a judge were assigned to hear Helfant’s case, the right to a fair trial would be protected by the New Jersey rule that permits a defendant to disqualify a particular judge from participating in his case. See New Jersey Court Rules 1:12-1 to 1:12-3. Although appellate review of a conviction at the trial level might ultimately reach the State Supreme Court, New Jersey requires judges personally interested “in the event of the action” to disqualify themselves. Indeed, disqualification is mandatory whenever there is any reason “which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” Rules 1:12-1 (e) and (f) (emphasis added). If, because of such disqualifications, the Supreme Court were deprived of the requisite five-member quorum, temporary assignment of substitute Justices is authorized by the New Jersey Court Rules. Rule 2:13-2. Thus, the New Jersey judicial system provides procedural safeguards to guarantee that Helfant will not be denied due process of law in the state trial or appellate process. It is worth noting, furthermore, that four of the six Justices who attended the meeting with Helfant are no longer members of the New Jersey Supreme Court. Of the two remaining members, only one was alleged to have been active in the questioning. The other active interrogator named by Helfant, the then Chief Justice, is among the four former Justices who are no longer members of the court. Moreover, it is not the New Jersey Supreme Court, or its members, but the Chief Justice, who is the “administrative head” of the New Jersey court system. Thus, it is the present Chief Justice who wields the extensive supervisory and administrative power relied upon by Helfant to support his prayer for federal equitable relief. And the present Chief Justice played no part whatsoever in the allegedly coercive meeting that forms the core of Helfant’s constitutional claim. In sum, even if it could be assumed, arguendo, that the former Chief Justice and the other participants in the meeting with Helfant might have been incapable of impartially reviewing his case, there can be no such assumption of bias with respect to the new Chief Justice and the other new members of the New Jersey Supreme Court. Accordingly, Helfant’s claim that he cannot receive a fair hearing in the state-court system is without foundation. The Court of Appeals, therefore, properly affirmed the District Court’s dismissal of his prayer for permanent injunctive relief. m Although the Court of Appeals held that there was in this case “no reason to depart from the formidable general policy of ‘leaving generally to the state courts the trial of criminal cases arising under state laws 500 F. 2d, at 1196, it nonetheless concluded that federal declaratory relief on the question of the admissibility in evidence of Helfant’s grand jury testimony was in order. It was the court’s view that federal factfinding on this narrow issue would free the New Jersey courts from even the appearance of partiality. By thus assuring the integrity of the state judicial process without ultimately interfering with the State’s right to enforce its own criminal laws, the court reasoned, federal judicial action would advance, rather than offend, “the mutual relationship poignantly described by Justice Black as ‘Our Federalism.’ ” Id., at 1197. The court accordingly required the District Court to enjoin further proceedings in the state criminal trial until an evidentiary hearing could' be held in the federal court to determine whether Helfant’s grand jury testimony should be admitted as evidence in that trial. This procedure closely resembles the course rejected by this Court in Stefanelli v. Minará, 342 U. S. 117. In Stefanelli the Court affirmed the refusal of a Federal District Court to entertain proceedings to suppress the use in a pending state prosecution of evidence allegedly obtained in an unlawful search. As the Court explained: “If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues.” Id., at 123. The Court thus held that “federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure.” Id., at 120. Similarly, in Perez v. Ledesma, supra, the Court held: “[T]he propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, . . . subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus.” 401 U. S., at 84-85. See also Cleary v. Bolger, 371 U. S. 392. These precedents clearly establish that at least in the absence of “extraordinary circumstances” federal courts must refuse to intervene in state criminal proceedings to suppress the use of evidence claimed to have been obtained through unlawful means. Even if concern for the appearance of complete impartiality could in some case conceivably justify such disruption of state criminal proceedings, this is not such a case. By providing for mandatory disqualification of a judge of any court whenever one of the parties or his counsel rationally believes there exists any reason that might preclude a fair and unbiased hearing, N. J. Court Rule 1:12-1 (f), New Jersey has preserved the appearance of judicial objectivity. And, as explained in Part II, supra, Helfant’s claim that he cannot in fact obtain a fair hearing in the state-court system is without merit. In short, the basic policy against federal interference with pending state prosecutions would be .frustrated as much by the declaratory judgment procedure ordered by the Court of Appeals as it would be by the permanent injunction originally sought by Helfant. See Samuels v. Mackell, 401 U. S. 66, 73. Accordingly, the judgment of the Court of Appeals is vacated, and the cases are remanded to that court with directions to enter a judgment affirming the District Court’s dismissal of the complaint. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of these cases. Mr. Justice Brennan took no part in the decision of these cases. The complaint relied upon 42 TJ. S. C. § 1983 in seeking injunctive relief against the state court proceedings. Federal jurisdiction was grounded on 28 U. S. C. § 1343 (3). The grand jury was then sitting in Trenton, N. J., in the State House Annex on the same floor as the conference room of the Justices of the State Supreme Court. See 500 F. 2d 1188, 1190. Samuels v. Mackell, 401 U. S. 66; Boyle v. Landry, 401 U. S. 77; Perez v. Ledesma, 401 U. S. 82; Dyson v. Stein, 401 U. S. 200; Byrne v. Karalexis, 401 U. S. 216. The scope of the exception to the general rule of equitable restraint for “other extraordinary circumstances” has been left largely undefined by this Court. In Younger v. Harris, 401 U. S. 37, however, the Court gave one example of the type of circumstances that could justify federal intervention even in the absence of either harassment or bad-faith enforcement of a state criminal statute, by quoting from Watson v. Buck, 313 U. S. 387, 402: “ ‘It is of course conceivable that a statute might be flagrantly and patently violative of express' constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” 401 U. S., at 53-54. The Court then stated: “Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be.” Id., at 54. Gibson v. Berryhill, 411 U. S. 564, supplied another example of such “extraordinary circumstances.” In that case the Court found it unnecessary to decide whether the rule of Younger v. Harris applies with the same force when state civil, rather than criminal, proceedings are pending because “the predicate for a Younger v. Harris dismissal was lacking .... [T]he appellees alleged, and the District Court concluded, that the State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it. If the District Court's conclusion was correct in this regard, it was also correct that it need not defer to the Board.” 411 U. S, at 577. Although the District Court held a limited evidentiary hearing on Helfant’s request for a preliminary injunction, the State’s motion to dismiss was granted pursuant to Fed. Rule Civ. Proc. 12 (b) (6) without either findings of fact or conclusions of law. Accordingly, in determining whether the complaint stated a claim upon which relief could be granted, its factual allegations were to be taken as true. See, e. g., Cruz v. Beto, 405 U. S. 319, 322. Although Helfant argues that the collusive actions of members of the State Supreme Court and the Deputy Attorney General demonstrate prosecutorial bad faith warranting federal intervention, “bad faith” in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction. See Perez v. Ledesma, 401 U. S., at 85. Nothing in Helfant’s complaint would support a finding of “bad faith,” as so defined. However he may choose to describe it, the gravamen of Helfant’s complaint is that members of the New Jersey judiciary have become so personally involved in his case that it is impossible for him to receive a fair hearing in the state-court system. Similarly, there can be no reason to assume that trial and appellate judges under the supervisory authority of the new Chief Justice will be influenced by the role played by former members of the State Supreme Court in inducing Helfant’s grand jury testimony. The internal quotation is from Douglas v. City of Jeannette, 319 U. S. 157, 163. In Dombrowski v. Pfister, 380 U. S. 479, 485 n. 3, the Court noted: “It is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment.”

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

What is the issue of the decision?

UNITED STATES of America, Plaintiff-Appellee, v. Anderson BURKHART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harmon TOLLIVER, Defendant-Appellant. Nos. 16016, 16017. United States Court of Appeals Sixth Circuit. July 8, 1965. Ray C. Lewis, London, Ky., Lewis & Weaver, London, Ky., on brief, for appellants. George I. Cline, U. S. Atty., Lexington, Ky., James F. Cook, Asst. U. S. Atty., Lexington, Ky., on brief, for appellee. Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge, and MACHROWICZ, District Judge. MACHROWICZ, District Judge. This is an appeal from a conviction in the United States District Court for the Eastern District of Kentucky on an indictment for the illegal possession and transportation of distilled spirits in violation of Sec. 5601, Chap. 51 of the 1954 Internal Revenue Code. The appellants urge that they are entitled to a reversal on the grounds of unlawful search and seizure and unlawful entrapment. Motions to suppress the evidence and for a directed verdict were denied by the trial court. The charges grew out of an investigation by the Alcohol and Tobacco Tax Division of the U. S. Treasury Department of reported illicit whiskey traffic in the Perry, Leslie and Harlan county area of Southeastern Kentucky. One of the investigators, Donald Hall, acting in an undercover capacity, assumed a fictitious name and identity as a “bootlegger” of “moonshine” whiskey. He was provided with a certain amount of currency, the serial numbers of which were previously recorded. On March 28,1962, while driving a car on a public highway in the area, he picked up a hitchhiker to whom he divulged a desire to buy whiskey illegally, without disclosing his true identity. The hitchhiker, one Wayne Riddle, said he knew a person who would probably have some, and arranged a meeting with a third party, Delmar Dehart, but the arrangements failed to produce results. On March 30, 1962, he again met Riddle and Dehart in accordance with a prearranged plan. He gave Dehart Two Hundred Fifty Dollars ($250.00) of recorded currency with which he was to buy whiskey for him. Dehart then proceeded alone to the residence of appellant Burkhart and there bought forty-eight (48) gallons of whiskey, which he testified were delivered to him by both appellants. On April 6, 1962, under similar arrangements, Dehart received from the agent Three Hundred Dollars ($300.00) in recorded currency and was asked to buy sixty (60) gallons of whiskey. This time he got from the appellants only six (6) gallons, and he returned to agent Hall Two Hundred Seventy Dollars ($270.00). Government agents testified they observed both violations from a position near the Burkhart dwelling. On the basis of the events of March 30, 1962, an arrest warrant was obtained on April 6, 1962, for Anderson Burkhart and a John Doe, since the name of the appellant Harmon Tolliver was not known to the agents. At the same time they obtained a search warrant for the premises. Armed with these warrants, on the evening of April 6, 1962, immediately upon delivery to them by Dehart of the six (6) gallons of whiskey, the officers approached the premises of appellant Anderson Burkhart. When a dog started barking, Burkhart came to the door and opened it. The officers then identified themselves, advised him of the warrant for his arrest, announced that they were placing him under arrest for violating the Internal Revenue liquor laws and advised him of his constitutional rights. They then proceeded to search his trousers pocket and found One Hundred Ninety Dollars ($190.00), of the money which bore the serial numbers corresponding to those of the currency used for the purchase of the whiskey. They noticed under a table four (4) half-gallon jars of whiskey which appellant Anderson admitted were his. They also noticed in plain sight in a small backroom appellant Tolliver lying in a bed. He was also similarly advised that he was being placed under arrest and a search of his trousers pockets disclosed Twenty Dollars ($20.00) of currency bearing the recorded serial numbers. Riddle and Dehart were indicted with these defendants for illegal possession and sale but were found not guilty by the jury. The arrest warrants and the search warrants were not produced at the trial, but the United States Commissioner testified that he had issued them and the arresting officers testified that they had them in their possession at the time of the arrest. The lower Court denied the motion to suppress the evidence, holding that the officers were armed with an arrest warrant, identified both appellants as persons whom they had seen commit a felony a few hours previously or had good probable reason to believe had committed a felony. The Court further held that the search of the appellants’ pockets was proper as incident to a lawful arrest, irrespective of the search warrant. Appellants rely upon the government’s failure to present the arrest warrant at the time of trial as proof that no such warrant existed. But the government’s witnesses testified that they did have the warrant at the time of the arrest and the United States Commissioner testified that he had issued it. The Court was not in error in resolving this question of fact on the hearing of the motion to suppress, in favor of the government’s contention. Appellants also urge that at the time they were watching the house of Burkhart, the officers could not have been sure that what was loaded from the Burkhart house into the car was in fact whiskey and therefore could not claim they saw a felony committed. But the officers did testify that they saw the transfer of burlap bags, containing jars from defendant’s car to the trunk of Dehart’s car and that they saw defendants take one jar out to examine it and that the officers a few minutes later examined the contents of the trunk of Dehart’s car and found it be whiskey. The Court was not in error in resolving that issue of fact in favor of the contention of the government. Authorities cited by appellants involving arrests without a warrant and arrests without the officers having seen a felony committed in their presence, are therefore not applicable here. There can be no question as to the propriety of the Court’s finding as to Burkhart. As to Tolliver, who was arrested in the back-room while in bed, there was a John Doe warrant for his arrest. He was identified by the officers as the person who with Burkhart had previously carried the whiskey from the house to the truck. He was in plain view of the officers at the time they entered the house and when they saw the jugs of whiskey under the table. Under the holding of Ker v. State of California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), his arrest was lawful. The search of his trousers was equally lawful as incident to his lawful arrest. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). For the same reasons, the search of the premises in the evening was reasonable. United States v. Rabinovitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The appellants claim further that they were entitled to have their motion for a directed verdict granted because of illegal entrapment as a matter of law. The transcript of the proceedings in the District Court discloses that the trial Judge gave a correct and comprehensive instruction to the jury on unlawful entrapment and its legal prerequisites. After conclusion of the instructions, appellants’ counsel advised the Court they had no exceptions to them. Neither do they here assert any error in the instructions as given. On the record of this case, we cannot say that appellants were entitled to a determination that the conduct of the arresting officers constituted entrapment as a matter of law. Entrapment as a matter of law is established only where undisputed testimony makes it patently clear that an otherwise innocent person was induced to commit the act complained of by trickery, persuasion or fraud of a government agent. (United States v. Millpax, Inc., 7 Cir., 313 F.2d 152, 156 and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.) There was ample evidence in this case to support a conclusion that the appellants would have sold the illegal distilled spirits regardless of the fact that the government agents used a ruse to conceal their identity. The issue of entrapment was therefore properly left to the jury. On the facts this case is similar to United States v. Lile, 290 F.2d 225 (Kentucky 1961), where this Court said: “Clearly the government agents did not create the offense. They did no more than afford the facility and opportunity for the appellant to make an illegal sale which he was ready and able to do.” The judgment of the District Court is therefore affirmed.

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

COHEN v. COMMISSIONER OF INTERNAL REVENUE. CARNAHAN v. COMMISSIONER OF INTERNAL REVENUE. COMEAUX v. COMMISSIONER OF INTERNAL REVENUE. CLEMONS v. COMMISSIONER OF INTERNAL REVENUE. POLK v. COMMISSIONER OF INTERNAL REVENUE. Nos. 3816-3822. United States Court of Appeals Tenth Circuit. July 26, 1949. William H. Quealy, Washington, D. C. (Harry C. Castor, Wichita, Kan., on the brief), for petitioners. Harry Marselli, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack and Lee A. Jackson, Washington, D. C., on the brief), for respondent. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAPI, Circuit Judge. These several appeals, here on a consolidated record from the United States Tax Court, involve assessed deficiencies and fraud penalties against each of the petitioners for different years, between 1936 and 1944, for income allegedly derived from the illegal traffic in liquor, gambling and betting on horse races, outside the city limits of Wichita, in Sedgwick County, Kansas. The assessments and penalties against each of the petitioners for the specified years were based upon the hypothesis that petitioners Comeaux, Clemons, Polk and others owned and operated establishments in Sedgwick County, Kansas, where liquor was sold, gambling conducted, and betting on horse races booked; that petitioners ; Cohen and Carnahan, acting in concert, afforded them protection against raids and arrests by state and county law enforcement officers for a percentage of the profits derived from the operation of the illicit businesses; and that each of the petitioners fraudulently failed to report accurately or truthfully all of the income' derived from such illegal activities for the years in question to the extent of the assessed deficiencies. On review, the Tax Court consolidated ' Cohen and Carnahan’s cases for purposes of trial, over the objection of the parties. All of the cases were tried consecutively, and it was agreed that the records in the other' cases, insofar as material and pertinent, might be considered as evidence in the consolidated cases. With immaterial modifications and adjustments, the Tax Court affirmed the Commissioner’s determination in each case. See Cohen v. Commissioner, 9 T.C. 1156; Carnahan v. Commissioner, 9 T.C. 1206; Comeaux v. Commissioner, 10 T.C. 201. On appeal here, the petitioners Cohen and Carnahan complain of the consolidation of their cases, contending in effect that their tax liability being separate, and not governed by the same facts, it was prejudicial to each of them to have their cases tried and considered together. But the record shows that Cohen and Carnahan were associated together in the activities which gave rise to the deficiency assessments, and that much of the evidence introduced, both on behalf of the Commissioner and the petitioners, was competent in both cases. The question of consolidation therefore rested in the sound discretion of the Tax Court. See Skirvin v. Mesta, 10 Cir., 141 F.2d 668; United States v. Hauck, 2 Cir., 155 F.2d 141. All of the petitioners seek to annul the respective decisions of the Tax Court on the grounds that the opinions do not sufficiently set forth a complete statement of the “findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law * * * ” as required by Section 8(b) of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1007(b). Without deciding whether the Tax Court of the United States is a “court” within the exclusionary meaning of Section 2(a) of the Act, 5 U.S.C.A. § 1001(a), we are convinced that Section 8(b) has no application to the procedure of theTax Court in a proceedings of this kind. Kennedy Name Plate Co. v. Commissioner, 9 Cir., 170 F.2d 196. It may be said, however, that the decision of the Tax Court in each case is based upon extensive and detailed findings of fact and well reksoned conclusions. Its accompanying opinions are full and comprehensive treatments of the facts and every question presented for decision there and here. Numbers 3816 and 3817 Max Cohen For the years 1936 to 1943, inclusive, the Commissioner determined deficiencies and penalties against Max Cohen in the aggregate sum of $148,080.11. The deficiencies were determined by resort to what the internal revenue agent chose to call the “excess cash expenditure” method, under which the agent assumed that Cohen was “broke” on January 1, 1936, and that all expenditures as reflected by the available books and records in excess of the amount the taxpayer is shown to have had available to spend from reported sources, constituted additional and unreported taxable income. In other words, the deficiencies were based upon the premise that the taxpayer was shown to have spent more money in each of the taxable years than his returns showed was available to him as income. Thus, for each succeeding year the Commissioner started with the cash carry-over, if any on hand, and added to that the ascertainable cash receipts. He then aggregated all cash expenditures, from which he deducted the sum of the cash on hand, and ascertained cash receipts to arrive at the additional mnreported income for each of the years in question. While conceding that the methods employed by the Commissioner are justified in cases where the income is from illegal sources and no records are kept, on which taxable income can be ascertained with accuracy, see Kenney v. Commissioner, S Cir., 111 F.2d 374, and cases cited, Cohen earnestly argues that adequate records were maintained by him for the taxable years in question, from which competent accountants computed his taxable income and prepared proper returns, on which he paid the tax; that since the Commissioner concedes that his returns for the years in question are in agreement with his available records, resort to the so-called excess cash expenditure method does not provide a proper basis for determination of deficiencies, and is unwarranted. The Tax Court found, and the record shows, that in the year 1936, Cohen was engaged in the oil business, and that upon the advice of an attorney, an accountant set up double entry ledgers to record all of his oil transactions, and that these books were kept by the accountant, and his income and disbursements accurately recorded and reflected in his income tax returns. The record also shows that before and after 1936, Cohen received large sums of money from the operation of establishments in Sedgwick County, where liquor was sold, gambling conducted, and bets on horse races were booked. For these activities, he maintained no books or records, except daily work , sheets, reflecting the total amount of the “take”, with directions to his accountant concerning its apportionment to the joint adventurers, whose returns the same accountant also prepared. The income from these activities was reported on the tax returns as derived from “outside activities”. No other books or records or explanation has ever been made available. As the Tax Court observed in respect to the deficiencies assessed for the years 1936 to 1939, inclusive, there was credible evidence that during these years, Cohen received large sums of money from night club operators and from various illegal enterprises, in addition to the sums reported from “outside activities” in his return for those years, and that since Cohen elected not to take the witness stand to refute or explain the testimony and evidence on which the Commissioner’s determinations were based, the court must indulge in their presumptive correctness. Cohen further contends that the Commissioner erroneously assumed that he was broke on January 1, 1936, as a basis for determining his taxable income for that year and succeeding years. He says in that connection that the Commissioner’s determination and the Tax Court’s approval flies in the face of uncontradicted testimony that he had substantial funds in the Fall of 1936. There was testimony to the effect that in November 1936, he had in his possession $37,500.00, and other testimony tending to show that he possessed large sums of money in cash at that time. The taxpayer’s returns for the years preceding 1936 did not reflect any income. In fact, he filed no returns for the years 1931 through 1935. The taxpayer did not choose to enlighten the court in that regard; the court was not convinced by the testimony, and we cannot say that its conclusion in that respect is clearly erroneous. For the taxable year 1940, the Commissioner determined no excess cash expenditures, but Cohen complains of the disallowance of an item of $2,552.27, claimed as' net loss carry-over. In its treatment of this item, the Tax Court stated that at the outset of the hearing, counsel for the petitioner abandoned any contention of error in the determinations for the taxable year 1940, except fraud, and observed that no proof was introduced specifically referring to that item; and that since the record was barren of proof in respect, to the deficiency, it was presumptively correct and must therefore stand. The court accordingly approved the deficiency, and disapproved the. fraud penalty for that year. We accept the Tax Court’s version of the matter, and agree with its conclusions. In respect to the deficiency for the year 1941, Cohen complains of the failure of the court to find that he borrowed the sum of $35,000.00 in cash from his mother-in-law, Mrs. Myrtle Hale, on or about September 1, 1941, and its" consequent treatment of that sum as taxable income to him for that year. In rejecting as false, testimony tending to show that the loan was made to him for the purpose of purchasing oil properties, the Tax Court took into consideration the fact that although Cohen had a complete set of books and records for his oil business, there was no record on these books of the loan, or any other evidence of the debt; that it was not shown to have come into his bank account, and no mention of it had been made during the investigation of his income tax liability until the hearing before the Tax Court. The court also treated as significant the fact that the $35,000.00 claimed loan was almost exactly the amount of the excess cash expenditures of $36,-916.26, determined for the year 1941, and observed that Cohen, who “should know most about the matter” remained silent. Again we cannot say that the Tax Court, as the trier of the facts and judge of the credibility of the witnesses, arrived at an unwarranted conclusion. During the taxable years 1941, 1942 and 1943, Cohen and Carnahan financed one Ray Watson in -the operation of a “slot machine route”, under an agreement that Watson would receive 25% of the profits accruing to the owners of the machines, and Cohen and Carnahan 75% until the capital investment was returned, after which the profits would be divided 50% to Watson and 50% jointly to Cohen and Carnahan. ' In his income tax returns for the years 1941, -1942 and 1943, Cohen reported 25% of the proceeds. The Commissioner increased it to 37%%, on the basis that Cohen and Carnahan received for the taxable years in question 75% of the income. It is admitted-that Cohen and Carnahan received 75% of the income during all of these years, ‘but Cohen contends that he is indebted to Watson for the difference and intends to pay him; that since Watson’s testimony supports this contention and reported the 50% in his returns for these years, the Commissioner could not repudiate the arrangement and arbitrarily increase his income by that amount. The Tax Court sustained Cohen’s contention for the year 1941, on the theory that he was entitled to a return of his investment, and sustained the Commissioner for the years 1942 and 1943, on the grounds that Cohen admittedly retained the money. It refused to give credence to the testimony that it was a debt to be repaid. We do not think the court’s appraisal of the facts was clearly erroneous. Cohen also attacks the determination of the Commissioner, approved by the Tax Court, of deficiencies based upon excess cash expenditures for the years 1941, 1942 and 1943, and particularly complains that the court failed to give consideration to an analysis of his income tax liability for these years prepared by an accounting firm from the same records and data used by the revenue agent in arriving at the excess cash expenditures. A summary of this analysis, purporting to show that cash available to Cohen during the years was understated by the revenue agent in his report, was offered and received in evidence, and the accountant who prepared it was also interrogated in court concerning the adjustments forming the basis for the discrepancy. The record shows that the Tax Court gave consideration to this summary and the testimony of the accountant. There is nothing in the record to suggest that the Tax Court did not give full consideration to the proffered testimony. It chose to accept the Commissioner’s determinations, and its decision, resting as it does upon competent proof, is controlling here. Cohen complains that the Tax Court erroneously refused to allow the accountant who prepared the analysis of his income tax for the years 1941, 1942 and 19-13, to substantiate his summary in detail, and also urges as reversible error the refusal of the Tax Court to grant a rehearing after findings and opinion for the same purpose. The record does not indicate that the Tax Court limited in any respect evidence offered on behalf of the petitioner. Instead, it afforded the parties every opportunity to offer any proof bearing upon the issue. The question whether the court should grant a rehearing for the purpose of hearing substantiating testimony was entirely within its discretion in these circumstances. In sum, the evidence shows, without dispute, that Cohen and Carnahan derived large stuns of money from establishments located in Sedgwick County, Kansas, openly engaged in selling liquor, conducting gambling games and slot machines, and accepting bets on horse racing. In his income tax return for 1941, Cohen reported from “outside activities” the sum of $58,-002.56; for 1942 he reported $158,630.46, and for 1943 he reported $95,179.78, all directly attributable to the illicit enterprises conducted by petitioners Comeaux, Clemons, Polk and others. No books or records were available to substantiate these returns, except the daily work sheets handed to the accountant showing cash received, with directions for apportionment among the participants according to their syndicated shares. There was also evidence that during these years in question, Cohen received other substantial sums of money from other illicit sources, which he did not report in his income tax returns. From this and other evidence of excess cash expenditures, the Commissioner determined the deficiencies for each of the years and assessed the penalties. After a full hearing, the Tax Court has, with modifications and adjustments, approved its assessments. Cohen elected to remain silent in the proceedings, and has pleaded nolo contendere to criminal charges for tax evasion for some of the years in question. While his failure to testify in his own behalf, and his plea of nolo contendere are no evidence tending to support the Commissioner’s determinations and the Tax Court’s approval thereof, they do tend to account for approximations where details might otherwise be filled in. It is sufficient to say that the Tax Court’s decision rests upon the best available evidence, and we think it is sufficient. Stinnett v. United States, 4 Cir., 173 F.2d 129; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Greenfield v. Commissioner, 4 Cir., 165 F.2d 318. See also Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 62 S.Ct. 925, 86 L.Ed. 1266, 139 A.L.R. 1513; Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543. Numbers 3818 and 3819 Robert L. Carnahan For the taxable years 1937 to 1944, inclusive, the Commissioner determined deficiencies and penalties against Carnahan in the aggregate amount of $146,410.52. Carnahan kept no books or records reflecting his income, except the work papers delivered to his accountant showing gross receipts from joint enterprises with Cohen. The Commissioner’s determinations are based upon the theory that since, with noted exceptions, Carnahan was an equal partner with Cohen in the outside activities, their income from common sources was the same. The Commissioner accordingly set up the deficiencies as “income not reported” corresponding to “excess cash expenditures” in Cohen’s case. Carnahan challenges this method of determination, but the evidence which supports the deficiencies in the Cohen case is equally applicable to him. His principal attack upon the deficiencies arises from the refusal of the Commissioner to allow as deductions personal gambling losses to ■the extent of partnership gains. Although Carnahan did not testify in his own behalf, he offered the testimony of others to the effect that during the taxable years in question, he sustained large gambling losses at different places over the country, and contended that these losses were deductible to the extent of his gains from the various gambling enterprises, from which he derived his unreported income. See Jennings v. Commissioner, 5 Cir., 110 F.2d 945. The Tax Court sustained the Commissioner’s disallowance of these deductions, first, because it was of the opinion that neither Carnahan nor Cohen owned any interest in the gambling enterprises from which they derived the unreported gains. Rather, it was of the opinion that the income was for protection afforded the various gambling establishments against raid and arrest by county and state officers. In that respect, the court stated that “all inferences from the situation tend to support the testimony that no ‘place’ could operate in Sedgwick County without paying Cohen. ‘To pay Cohen was to pay Carnahan.” According to the undisputed testimony, Cohen bank-rolled and collected the percentages from some of the gambling establishments, while Carnahan bank-rolled and collected from others, but they regularly balanced accounts by payments to each other in cash. As against the contention of the taxpayer that the percentage paid to them from the gambling operations was for “bank-rolling” the games and standing all losses, the Tax Court observed that it was not likely that anyone. operating a gambling establishment would pay as high as 75% of the lucrative earnings for the risk involved. Of course if Carnahan owned no interest in the gambling - establishments, he could not deduct his personal gambling losses, to the extent of his gains from those sources. ' And finally, the court refused to believe part of the testimony supporting the claimed losses. In so doing, it pointed out with respect to a claimed $25,000.00 gambling loss in 1942, that Carnahan merely called his auditor, advising him that he had just lost $25,000.00 gambling. The only supporting evidence of this loss was a letter from Carnahan to his accountant— Carnahan did not testify concerning it, or any other claimed losses. For any or all of the reasons assigned, we think the Tax Court correctly disallowed the claimed deductions. No. 3820 G. A. Comeaux The deficiencies and fraud penalties determined and assessed against Comeaux were based upon income from the operation of the Lawrence Commission Company, where wagers were taken on horse racing and other sporting events. In his returns for the years in question, Comeaux treated the amounts admittedly paid to Cohen and Carnahan as partnership income, and therefore not includable in his gross income. In his returns, however, Comeaux designated himself as sole owner. The Commissioner allocated the entire income from the establishment to Comeaux on the theory that the percentages admittedly paid to Cohen and Carnahan were for protection, and not for any proprietary interest in the business. The amounts are not in dispute, and it is agreed that while legitimate expenses incurred in an illegitimate business are deductible, amounts paid for protection are not legitimate business expenses. The Tax Court allowed certain claimed expenses incurred in the operation of the business, but sustained the Commission’s disallowance of the amounts paid to Cohen and Carnahan, based upon its findings fully set forth in the Carnahan case, to the effect that Cohen and Carnahan set themselves up as overlords of the illegal gambling business in Sedgwick County, Kansas, and exacted tribute from all those who wished to engage in it. The evidence shows, without dispute, that during the years in question, the outlying districts; surrounding Wichita were infested. with so-called night-clubs, where liquor was sold and gambling conducted, with only nominal interference from law enforcement officers. It is certainly permissible to infer from this record that Cohen and Carnahan actually furnished the protection they offered, and that the income they received from the illicit businesses was in payment therefor. Number 3821 Fred D. Clemons Beginning in 1940, through 1944, petitioner Clemons owned and operated what was known as the Overflow Club outside the city limits of Wichita. He sold liquor by the drink in the front end, and conducted gambling in the rear. The bank roll for the gambling was furnished by Carnahan, and he, on behalf of himself and Cohen, received a stipulated percentage of the winnings. In his income tax returns for the years 1940 -to 1944, inclusive, Clemons did not include in his gross income amounts paid to Carnahan, on the theory that the gambling winnings represented partnership income. The Commissioner assessed deficiencies, claiming that all of the income accrued to Clemons as the owner of the establishment, and the amounts paid to Carnahan were nondeductible payments for protection. The Tax Court allowed the legitimate expenses for the operation of the business, but approved the deficiencies for the amounts paid to Carnahan and Cohen for the reason stated in the Carnahan and Comeaux cases, and its decision thereon is affirmed for the same reason. Number 3822 Ralph Leonard Polk During the year 1940 through 1944, Ralph Leonard Polk operated what was known as the Canyon Supper Club in the outskirts of Wichita, where liquor was sold in the front end, and gambling conducted in the rear. Cohen furnished the bank roll for the gambling, and was paid a percentage of the winnings. The issues here are the same as those in the Comeaux and Clemons cases, and the Tax Court’s decision approving the Commissioner’s determinations, is based upon the same reason,., and its decision is affirmed. All of the deficiency assessments against all of the petitioners for the years 1936 through 1939, (and also 1940 for petitioner Comeaux) are admittedly barred by the statute of limitations, unless the returns for those years were false and fraudulent, with the intent to evade taxes. If so, they are not barred. Each of the petitioners earnestly contend that the Commissioner has not sustained the burden of showing fraud. While the determinations of the Commissioner are presumptively correct, and the burden is on the taxpayer to disprove them, the burden is upon the Commissioner to show fraud, and such burden is not sustained by merely establishing a deficiency. See Greenfield v. Commissioner, 4 Cir., 165 F.2d 318; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Snell Isle, Inc. v. Commissioner, 5 Cir., 90 F.2d 481. In accordance with this rule, and after a careful analysis of the facts in each case, the court concluded that with the exception of certain noted years, the returns had been fraudulently filed, with an intent to evade tax. Without recounting the facts and circumstances, we are convinced that the Tax Court’s findings in that respect are not clearly erroneous, and they must be sustained. The several decisions are affirmed. The memorandum findings of fact and opinion of the Tax Oourt in the case of Fred D. Clemons and Ralph Leonard Polk are included in the record, but apparently were not officially reported.

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

SHAFFER et al. v. HEITNER No. 75-1812. Argued February 22, 1977 Decided June 24, 1977 MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, BlackmuN, and Powell, JJ., joined, and in Parts I — III of which Brennan, J., joined. Powell, J., filed a concurring opinion, post, p. 217. Stevens, J., filed an opinion concurring in the judgment, post, p. 217. BreNNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 219. RehNquist, J., took no part in the consideration or decision of the case. John R. Reese argued the cause for appellants. With him on the briefs were Edmund N. Carpenter II, R. Franklin Balotti, and Lynn H. Pasahow. Michael F. Maschio argued the cause for appellee. With him on the brief was Joshua M. Twilley. Mb. Justice Marshall delivered the opinion of the Court. The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants’ property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions. I Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder’s derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc., and 28 present or former officers or directors of one or both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. The activities which led to these penalties took place in Oregon. Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del. Code Ann., Tit. 10, § 366 (1975). This motion was accompanied by a supporting affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as “common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation.” The requested sequestration order was signed the day the motion was filed. Pursuant to that order, the sequestrator “seized” approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants, and options belonging to another 2 defendants. These seizures were accomplished by placing “stop transfer” orders or their equivalents on the books of the Greyhound Corp. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del. Code Ann., Tit. 8, § 169 (1975), which makes Delaware the situs of -ownership of all stock in Delaware corporations. All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that under the rule of International Shoe Co. v. Washington, 326 U. S. 310 (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State’s courts. The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure: “The primary purpose of ‘sequestration’ as authorized by 10 Del. C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, ‘sequestration’ is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del. Supr., 117 A. 2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion.” App. 75-76. This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972); and Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). App. 75-76, 80, 83-85. The court also found no state-law or federal constitutional barrier to the sequestrator’s reliance on Del. Code Ann., Tit. 8, § 169 (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id., at 85-87. On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Corp. v. Heitner, 361 A. 2d 225 (1976). Most of the Supreme Court’s opinion was devoted to rejecting appellants’ contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court, Delaware’s interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. 361 A. 2d, at 230-236. Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs: “There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them.... The reason, of course, is that jurisdiction under § 366 remains... quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. § 169 the ‘situs of the ownership of the capital stock of all corporations existing under the laws of this State... [is] in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here,... it has done so and the presence thereof provides the foundation for § 366 in this case.... On this issue we agree with the analysis made and the conclusion reached by Judge Stapleton in U. S. Industries, Inc. v. Gregg, D. Del., 348 F. Supp. 1004 (1972). “We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe.” Id., at 229. We noted probable jurisdiction. 429 U. S. 813. We reverse. II The Delaware courts rejected appellants’ jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants’ claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U. S. 714 (1878). Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff’s sale conducted to realize on a judgment for attorney’s fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell’s suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State, and Mitchell had used that procedure to bring Neff before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell’s suit, and accordingly awarded the land to Neff. This Court affirmed. Mr. Justice Field’s opinion for the Court focused on the territorial limits of the States’ judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the “principles of public law” that regulate the relationships among independent nations. The first of those principles was “that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory.” The second was “that no State can exercise direct jurisdiction and authority over persons or property without its territory.” Id., at 722. Thus, “in virtue of the State’s jurisdiction over the property of the non-resident situated within its limits,” the state courts “can inquire into that non-resident’s obligations to its own citizens... to the extent necessary to control the disposition of the property.” Id., at 723. The Court recognized that if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the State. But any attempt “directly” to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State’s power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable in other States, but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Pourteenth Amendment. Id., at 732-733. See also, e. g., Freeman v. Alderson, 119 U. S. 185, 187-188 (1886). This analysis led to the conclusion that Mitchell’s judgment against Neff could not be validly based on the State’s power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual since the State’s power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State’s power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment. Since the judgment which authorized the sheriff’s sale was therefore invalid, the sale transferred no title. Neff regained his land. From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional doctrine governing state-court jurisdiction. See, e. g., Hazard, A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court’s jurisdiction is based on its authority over the defendant’s person, the action and judgment are denominated “in personam” and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court’s power over property within its territory, the action is called “in rem” or “quasi in rem.” The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court. In Pennoyer’s terms, the owner is affected only “indirectly” by an in rem judgment adverse to his interest in the property subject to the court’s disposition. By concluding that “[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established,” 95 U. S., at 720, Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner’s location. Indeed, since a State’s process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e. g., Ballard v. Hunter, 204 U. S. 241 (1907); Arndt v. Griggs, 134 U. S. 316 (1890); Huling v. Kaw Valley R. Co., 130 U. S. 559 (1889). The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff’s State. See, e. g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John’s L. Rev. 668, 670 (1975). For example, in the well-known case of Harris v. Balk, 198 U. S. 215 (1905), Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein’s North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U. S. Const., Art. IV, § 1, required that Harris’ payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had “arrested” his debt to Balk, 198 U. S., at 223, and brought it into the Maryland court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction of a Maryland tribunal. See also, e. g., Louisville & N. R. Co. v. Deer, 200 U. S. 176 (1906); Steele v. G. D. Searle & Co., 483 F. 2d 339 (CA5 1973), cert. denied, 416 U. S. 958 (1974). Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field’s opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff’s home State even though the defendant could not be served within that State. 95 U. S., at 733-735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. Id., at 735-736; see Lafayette Ins. Co. v. French, 18 How. 404 (1856). This basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed “present” in the State, and so subject to service of process under the rule of Pennoyer. See, e. g., International Harvester Co. v. Kentucky, 234 U. S. 579 (1914); Philadelphia & Beading R. Co. v. McKibbin, 243 U. S. 264 (1917). See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv. L. Rev. 909, 919-923 (1960) (hereafter Developments). The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois Central R. Co., 346 U. S. 338, 340-341 (1953). The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State’s highways, had by using those highways appointed a designated state official as his agent to accept process. See Hess v. Pawloski, 274 U. S. 352 (1927). Since the motorist’s “agent” could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver. The motorists’ consent theory was easy to administer since it required only a finding that the out-of-state driver had used the State’s roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was “doing business” in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e. g., International Shoe Co. v. Washington, 326 U. S., at 317-319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were in fact attempting to ascertain “what dealings make it just to subject a foreign corporation to local suit.” Hutchinson v. Chase & Gilbert, 45 F. 2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged that fact. The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone’s opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court’s power over the defendant’s person. That power, however, was no longer the central concern: “But now that the capias ad respondendum has given way to personal service of summons or other form of notice, 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.’ Milliken v. Meyer, 311 U. S. 457, 463.” 326 U. S., at 316. Thus, the inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether the corporation was “present” but on whether there have been “such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.” Id., at 317. Mechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness: “Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” Id., at 319. Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction. The immediate effect of this departure from Pennoyer’s conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, 21 Hastings L. J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U. Ill. L. F. 533; Developments 1000-1008. No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property' in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e. g., U. S. Industries, Inc. v. Gregg, 540 F. 2d 142 (CA3 1976), cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F. 2d 1123, 1130-1143 (CA3 1976) (Gibbons, J., concurring) ; Camire v. Scieszka, 116 N. H. 281, 358 A. 2d 397 (1976); Bekins v. Huish, 1 Ariz. App. 258, 401 P. 2d 743 (1965); Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960 (1957), appeal dismissed and cert, denied sub nom. Columbia Broadcasting System v. Atkinson, 357 U. S. 569 (1958). The overwhelming majority of commentators have also rejected Pennoyer’s premise that a proceeding “against” property is not a proceeding against the owners of that property. Accordingly, they urge that the “traditional notions of fair play and substantial justice” that govern a State’s power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State. See, e. g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is This Conflict Really Necessary?, 37 Texas L. Rev. 657 (1959) (hereafter Traynor) ; Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens, 65 Yale L. J. 289 (1956); Developments; Hazard. Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. Schroeder v. City of New York, 371 U. S. 208 (1962); Walker v. City of Hutchinson, 352 U. S. 112 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. Schroeder v. City of New York, supra, at 213; cf. Continental Grain Co. v. Barge FBL-585, 364 U. S. 19 (1960) (separate actions against barge and barge owner are one “civil action” for purpose of transfer under 28 U. S. C. § 1404 (a)). Moreover, in Mullane we held that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is “a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state.” 339 U. S., at 312. It is clear, therefore, that the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer. We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam. III The case for applying to jurisdiction in rem the same test of “fair play and substantial justice” as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that “[t]he phrase, ‘judicial jurisdiction over a thing/ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.” Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) (hereafter Restatement). This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising “jurisdiction over the interests of persons in a thing.” The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe. This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State's protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership. It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state-court /jurisdiction must satisfy the International Shoe standard. For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These are cases where the property which now serves as the basis for state-court jurisdiction is completely unrelated to the plaintiff’s cause of action. Thus, although the presence of the defendant’s property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State’s jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum. Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation. Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court. Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance. In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible. The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer “should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit.” Restatement § 66, Comment a. Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner’s obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures, as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e. g., Von Mehren & Trautman 1178; Hazard 284-285; Beale, supra, n. 18, at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him. The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States. It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum. See Folk & Moyer, supra, n. 10, at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of “fair play and substantial justice.” That cost is too high. We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner’s interest in that property. This history must be considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256 U. S. 94, 111 (1921), but it is not decisive. “[TJraditional notions of fair play and substantial justice” can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U. S., at 340; Wolf v. Colorado, 338 U. S. 25, 27 (1949). The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant. We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. IV The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants’ property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants’ holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State’s courts over appellants. If it exists, that jurisdiction must have some other foundation. Appellee Heitner did not allege and does not now claim that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants’ positions as directors and officers of a corporation chartered in Delaware provide sufficient “contacts, ties, or relations,” International Shoe Co. v. Washington, 326 U. S., at 319, with that State to give its courts jurisdiction over appellants in this stockholder’s derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware’s courts must have jurisdiction over corporate fiduciaries such as appellants. This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction, not on appellants’ status as corporate fiduciaries, but rather on the presence of their property in the State. Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool Co. v. Fawcett Publications, Inc., 290 A. 2d 693, 695 (Del. Ch. 1972), the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident, see, e. g., U. S. Industries, Inc. v. Gregg, 540 F. 2d 142 (CA3 1976), cert. pending, No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra (same), and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the State. But as Heitner’s failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation. If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest. Moreover, even if Heitner’s assessment of the importance of Delaware’s interest is accepted, his argument fails to demonstrate that Delaware is a

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?

Brenda Rowe HALE, Appellant, v. NORTH LITTLE ROCK HOUSING AUTHORITY; David A. Bogard, Attorney; Director William Clements, Appellees. No. 83-2151. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1983. Decided Nov. 17, 1983. Brenda Rowe Hale, pro se. Janet L. James, North Little Rock, Ark., for appellee. Before HEANEY, BRIGHT and McMIL-LIAN, Circuit Judges. PER CURIAM. Brenda Rowe Hale, a black woman, appeals from a final judgment entered in the District Court for the Eastern District of Arkansas dismissing her employment and housing discrimination claims against the North Little Rock Housing Authority, its attorney and director. For reversal appellant argues, inter alia, that the district court erred in refusing to appoint counsel to represent her and in finding that the North Little Rock CETA Program rather than the Housing Authority was her employer for purposes of a Title VII action. For the reasons discussed below, we affirm the judgment of the district court. Appellant began working for the North Little Rock Housing Authority as a CETA employee on May 16, 1977. Her job was to drive a van for the Housing Authority’s senior citizen program. On May 26, 1977, she was discharged after she refused to drive the van at night. Appellant explained that she was attending classes at a local college three nights a week and therefore could not work evenings. Sometime thereafter, the Housing Authority instituted successful proceedings in state court to evict appellant for nonpayment of rent. Claiming that she was fired because of her race and sex, appellant filed an employment discrimination claim with EEOC against the Housing Authority. Appellant received a right-to-sue letter on January 15, 1982, and filed a motion in the district court seeking the appointment of counsel on April 14, 1982. Thé court construed this motion as the filing of an action under Title VII. The motion was conditionally denied pending a showing that appellant could not retain private counsel. In the meantime, appellant filed a complaint setting forth claims of employment and housing discrimination against the Housing Authority. Several months later, appellant filed an affidavit from an attorney who stated that he would not accept appellant’s case on a contingency basis. The district court then denied the motion for appointment of counsel, explaining that the complaint did not raise meritorious issues of a complex nature warranting the appointment of counsel. A bench trial was held on July 14, 1983. The court held that appellant could not maintain a Title VII action against the Housing Authority because her employer for Title VII purposes was the North Little Rock CETA Program. The court further held that appellant’s discharge was not based on race or sex but on her unwillingness to carry out her job responsibilities. With respect to appellant’s discriminatory eviction claim, the district court determined that she was several months delinquent in her rent and had been involved in several altercations with Housing Authority management and her neighbors at the time eviction proceedings were instituted. On these facts the court found no housing discrimination against appellant on the basis of her race or sex. The court accordingly awarded judgment and costs to defendants. Appellant’s claim that the district court erred in denying her motion for appointment of counsel is meritless. Section 706(f) of Title VII, 42 U.S.C. § 2000e-5(f) (1976), provides that the district court may appoint counsel “in such circumstances as the court may deem just.” This decision is reviewable only for an abuse of discretion. See, e.g., Hudak v. Curators of the University of Missouri, 586 F.2d 105, 106-07 (8th Cir.1978). In ruling upon a motion for appointment of counsel, the district court may consider the merits of the claim, the plaintiff’s efforts to obtain counsel, and the plaintiff’s financial ability to retain an attorney. See Bradshaw v. Zoological Society, 662 F.2d 1301, 1318 (9th Cir.1981); Gaston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir.1977). The district court did not abuse its discretion in the present case because appellant made almost no effort to retain counsel and the issues presented were neither complex nor facially meritorious. We leave open the question whether the Housing Authority or the North Little Rock CETA Program was appellant’s employer for the purposes of this Title VII action and affirm the judgment of the district court on the merits. Appellant admitted that she refused to work during the evenings as required by the job. Therefore, the district court’s finding of no discrimination is not clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). We have reviewed appellant’s remaining claims and find them to be without merit. Accordingly, the judgment of the district court is affirmed. . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas. . Appellant alleged that her discharge did not comply with the CETA grievance procedure and violated CETA regulations proscribing CETA employees from working at night. These claims apparently were not raised in the district court and we do not reach them here. Appellant also claimed that her husband was denied a job with the Housing Authority as a patrolman because of a low score he received on a civil service test. Appellant does not have standing to complain of any violations of her husband’s rights.

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

THREAF PROPERTIES, LTD., Plaintiff, John F. Hooley and Wilfred C. Varn, Non-party-Appellants, v. TITLE INSURANCE COMPANY OF MINNESOTA, etc., Defendant, William J. Rish, a/k/a Billy Jo Rish, Defendant-Appellee. No. 88-3526. United States Court of Appeals, Eleventh Circuit. June 14, 1989. Wilfred C. Varn, E.C. Deeno Kitchen, Hillary C. Ervin, Ervin, Varn, Jacobs, Odom and Kitchen, Tallahassee, Fla., John F. Hooley, Vega, Brown, Stanley & Martin, Naples, Fla., for appellants. Robert P. Gaines, Beggs & Lane, Pensacola, Fla., for Rish. Before VANCE and COX, Circuit Judges, and KING, Chief District Judge. Honorable James Lawrence King, Chief U.S. District Judge for the Southern District of Florida, sitting by designation. VANCE, Circuit Judge: Wilfred C. Varn and John F. Hooley, two attorneys who represented Threaf Properties, Ltd. in an action against Title Insurance Company of Minnesota and appellee William Rish, appeal from an order imposing monetary sanctions under Fed.R.Civ.P. 11. For the reasons stated below, we reverse. I. Facts This case arose out of an agreement between Threaf Properties, Ltd. (“Threaf”) and Catherine Taylor regarding the construction and management of a residential dwelling. Threaf, a British entity, became interested in purchasing waterfront property in Gulf County, Florida in the spring of 1983. Threaf initiated discussions with Catherine Taylor, president of Multi-Prop-erty Services, Inc., a real estate development and management company. Threaf agreed to a package deal whereby Multi-Property Services would provide the land, arrange construction of a residential dwelling, and manage the rental of the property. The total price of the package was approximately $112,000; the cost of the land constituted $55,000 to $60,000. Taylor assured Threaf that she had an exclusive contract with Costabella Development Corporation (“Costabella”) to purchase tract eight of the Gulf Pines Development (“Tract Eight”), the land selected for the proposed dwelling. In June of 1983 Threaf forwarded $55,-000 to Taylor through its solicitor. Although this money apparently was for the purchase of Tract Eight, no contract for sale of the property was ever drafted or executed. Taylor, however, represented to Threaf that the transaction was progressing without difficulty. In June or early July 1983 Charles Sher-rill, an attorney representing Threaf in the transaction, contacted William Rish, an attorney in Port St. Joe, Florida, and asked him to search the title of Tract Eight. Rish agreed and obtained an abstract of title to the property from Gulf County Abstract Company, Inc., which reported that title was held by Costabella. Rish informed Threaf that title was held by Costabella and issued a commitment, dated July 8, 1983, on behalf of Title Insurance Company of Minnesota (“Title Insurance”) for a title insurance policy on Tract Eight. The commitment listed Threaf as the proposed insured and Costabella as the title holder. Rish billed Threaf $200 for his work; $75 was attributable to the cost of obtaining the abstract. Gulf County Abstract Company later informed Rish that Gerald Blair, not Costa-bella, was record owner of the property when the commitment was issued. Rish, however, never conveyed this information to Threaf. After the effective date of the commitment Threaf forwarded an additional $24,-000 to Taylor for construction of the dwelling and purchase of furniture. Although no contract for the sale of Tract Eight had been executed, Taylor filed a notice of commencement indicating that a four-bedroom house would be constructed on the tract. This notice of commencement was notarized by Rish’s office and may have been prepared by Rish. Construction of the house began. Sometime thereafter Taylor encountered financial difficulties and construction ceased. Taylor returned to England where later she was prosecuted for events relating in part to the Threaf transaction. In November 1983 Costabella acquired Tract Eight from Blair. On March 2, 1984, Rish sent a letter to Taylor in which Rish demanded that Taylor fulfill an oral agreement with Michael Ford, president of Costabella, to purchase the property for which she had filed a notice of commencement. Rish informed Taylor that the improvements on Tract Eight would become part of Costabella’s property if she did not purchase the tract. Rish thereafter represented Costabella in a successful quiet title action against Threaf and Taylor. Costa-bella acquired the improvements Taylor had made on the property with the money Threaf had provided. II. Procedural Background of this Dispute In July 1985 Threaf sued Rish and Title Insurance. The original complaint, filed by an attorney not a party to this appeal, alleged that defendants breached their contract to provide accurate title information, Count I, and that defendants negligently failed to exercise due care in searching the title and preparing the commitment, Count II. Count II alleged that defendants knew or reasonably should have known that Threaf sought a title insurance commitment to confirm representations as to the owner of the property in order to decide whether to forward additional sums to Taylor or to attempt to retrieve moneys already disbursed. On December 10, 1985, the district court denied Title Insurance’s motion to dismiss Counts I and II. The court granted Rish’s motion to dismiss Count I, concluding that Count I alleged no personal contract with Rish and that an agent for a known principal is not liable for a breach between the principal and another party. The court denied Rish’s motion to dismiss Count II. In October 1985 Hooley was substituted as counsel for Threaf and on January 7, 1986, Hooley filed a first amended complaint. The amended complaint eliminated Rish from Count I, but added a count against Rish for gross negligence in examining the abstract, Count III, and a count against Rish for breach of a personal services contract to represent Threaf in obtaining and examining an abstract of title for the purpose of issuing a title policy commitment, Count IV. Hooley withdrew from the ease on September 12, 1986. After two intervening attorneys, Varn was substituted as counsel of record for Threaf on November 21,1986. Trial was set for February 17, 1987. On February 5, 1987, Varn moved for leave to file a second amended complaint. Except for adding a count against Gulf County Abstract Company for breach of contract, Count V, the proposed second amended complaint repeated the allegations of the first amended complaint. The district court subsequently entered summary judgment for defendants on the first amended complaint and denied Threat’s motion for leave to file the second amended complaint. Rish filed motions for Rule 11 sanctions against Threaf and all of its successive attorneys of record. After a hearing, the district court ordered sanctions against Hooley in the amount of $750 for having filed the first amended complaint and against Varn in the amount of $500 for having filed the second amended complaint. The court concluded that the breach of contract claim against Rish, Count III, had no basis in law. [Ujnder Florida law damages recoverable for breach of contract are limited to those that arise naturally from the breach or that were contemplated at the time the contract was formed as the probable result of a breach.... The natural and probable consequence of misde-signating the owner of property is that the would-be buyer will mistakenly purchase the land from the person misdesig-nated as the title holder, and yet not get proper legal title. A good faith argument simply cannot be made that it is a natural and probable result of misdesig-nating the title holder that a purchaser will continue to imprudently rely on an agent who is misappropriating the purchaser’s money. ... [Pjlaintiff asserts that due to the nature of Rish’s relationship to both Cos-tabella and Multi-Property Services, Rish was aware of the manner in which Threaf was attempting to acquire tract eight. This contention, however, is not well grounded in fact. Similarly, the court held that the negligence claims against Rish, Counts II and III, were not well grounded in fact because there was no support for the allegation that Rish’s misdesignation of the title holder proximately caused Threat’s loss. [Ujnder the circumstances of this case Rish could not reasonably have anticipated that the loss the plaintiff suffered would be the likely result of misdesignat-ing the title holder. The evidence merely shows that Rish knew that Threaf was the purchaser and that Taylor was brokering the deal. There is no indication that Rish knew what Taylor had been doing or would do in the future with the plaintiff’s money. Similarly, the record is devoid of evidence showing that Rish knew what Taylor had been representing to Threaf regarding the seller of the property. III. Analysis Under the 1983 amendments to Rule 11, an attorney who signs a pleading, motion, or other paper warrants that “to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper pur-pose_” Fed.R.Civ.P. 11. Compliance with this rule is judged by an objective standard of “reasonableness under the circumstances.” Circumstances taken into account include how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. Fed.R.Civ.P. 11 advisory committee note. The objective standard introduced by the 1983 amendments was intended to strengthen the rule by creating an affirmative duty of inquiry as to law and fact before any pleading, motion, or other paper is submitted. See id. Under the rule the district court must focus on what was reasonable for an attorney to believe at the time the pleadings were filed, not on what the court later finds to be the case. The Advisory Committee Note to Rule 11 emphasizes that [t]he rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Id. See also O’Neal v. DeKalb County, Ga., 850 F.2d 653, 658 (11th Cir.1988) (“Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous.”). In Donaldson v. Clark, 819 F.2d 1551 (11th Cir.1987) (in banc), we stated the following with respect to the appropriate standard of appellate review of a district court’s imposition of sanctions under Rule 11: Whether (1) factual or (2) dilatory or bad faith reasons exist to impose Rule 11 sanctions is for the district court to decide subject to review for abuse of discretion; on the other hand, a decision whether a pleading or motion is legally sufficient involves a question of law subject to de novo review by this court. Id. at 1556 (citation omitted) (footnote omitted). In reviewing the district court’s imposition of sanctions against Hooley and Yarn, therefore, we first must decide, under a de novo standard of review, whether the district court was correct in determining that Hooley and Varn filed pleadings that were not well grounded in fact and were not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. If we conclude that the district court was correct, we then must decide whether the court abused its discretion by imposing a $750 fine against Hooley and a $500 fine against Yarn. We now examine the legal requirements for each of plaintiff’s allegations against Rish and the prefiling inquiry made by attorneys Hooley and Varn to determine if it was reasonable for each of them to believe, at the time each complaint was filed, that these allegations were supported by existing law or a good faith argument for the extension, modification, or reversal of existing law. A. Breach of Personal Services Contract Rish agreed to identify the titleholder of Tract Eight for purposes of issuing a title commitment in favor of Threaf. He billed Threaf $125 for his professional services. There is no dispute that when Rish issued the commitment, it incorrectly listed the title owner of Tract Eight. Rish also acknowledged in his deposition that the abstract company later notified him of the error. Rish, however, apparently made no attempt to contact Threaf. Under Florida law, Threaf could recover for this breach of a personal services contract only those damages “which would naturally result from the breach thereof, either as the ordinary consequence of such a breach or as a consequence which may under the circumstances be presumed to have been contemplated by the parties to the contract as the probable result of its breach.” First Nat’l Ins. Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So.2d 476, 482 (Fla.Dist.Ct.App.1962); see Natural Kitchen, Inc. v. American Transworld Corp., 449 So.2d 855, 860 (Fla.Dist.Ct.App.1984) (“the parties need not have contemplated the precise injuries which occurred so long as the actual consequences could have reasonably been expected to flow from the breach. ... ‘It is not necessary that the parties should have given the matter a moment’s thought or should have expressed themselves on the subject.’ ”) (quoting 5 A. Corbin, Corbin on Contracts § 1010 (1964)). Appellants are not subject to being sanctioned under Rule 11, therefore, if they each conducted a reasonable prefiling inquiry, the result of which made it reasonable to believe that Rish knew or should have known that Threaf would rely on his statement as to title and of the damages Threaf might suffer if the title information were incorrect. Accordingly, we must examine each appellant’s inquiry and the facts they reasonably believed to be true at the time each complaint was submitted. 1. Appellant Hooley: Hooley testified that he relied on the Florida cases regarding reliance on title commitments of Shada v. Title & Trust Co. of Fla., 457 So.2d 553 (Fla.Dist.Ct.App.1984), review denied, 464 So.2d 556 (Fla.1985), and Safeco Title Ins. Co. v. Reynolds, 452 So.2d 45 (Fla.Dist.Ct.App.1984), to support a claim for damages resulting from the breach of contract. Hooley also testified that he learned that Taylor had assured Threaf that she had paid for an irrevocable option from Costa-bella to purchase Tract Eight. Charles Sherrill, Threat’s attorney, stated that Threaf sought the title policy commitment to confirm Taylor’s representations and that it decided to disburse additional funds based on Rish’s confirmation that title was held by Costabella. Hooley conferred with Threat’s attorney in the quiet title action and prior attorney in this action. He reviewed the entire file in the quiet title action and reviewed the depositions of Michael Ford, Elizabeth Thompson, and the deposition of William Rish in the quiet title action. Hooley also reviewed Ford’s deposition in the criminal prosecution of Taylor in England. From Rish’s deposition, Hooley knew that Rish was familiar with Taylor’s modus operandi of putting a deposit on a lot and arranging to build on it, either pre-selling or subsequently selling the house and land as a package. Hooley also knew that Gulf Title Abstract Company later informed Rish that title was not held by Costabella and that Rish contacted Taylor regarding the issuance of the commitment in favor of Threaf. Hooley learned that Rish’s mother in law, Elizabeth Thompson, accepted money from Taylor to solicit a contract of sale for Tract Eight. Hooley knew that Taylor’s notice of commencement was prepared in Rish’s office and that Rish had instructed his staff not to issue documents without his review. 2. Appellant Varn Varn testified that when he entered the case there were pending motions for summary judgment and the discovery deadline was imminent. His request for an extension of time for discovery and his motion to depose Rish were denied. Varn reviewed the pleadings that had been filed in the case and spoke with Threat’s attorney in the quiet title action, who was of the opinion that, based on inside information, Rish should have known the identity of the true owner of Tract Eight. Varn learned that Rish had ushered Taylor around the Gulf County area and was Taylor’s guest at a party for prospective buyers from England. Varn reviewed materials sent from England regarding Taylor’s criminal prosecution and notes concerning Rish’s testimony in Taylor’s trial. Varn deposed Charles Sherrill and learned that Rish admitted preparing the notice of commencement. Varn also learned, from information provided by Sherrill to Varn’s associate, that Sherrill had told Rish that Threaf had sought title information to confirm Taylor’s representations and that Rish had suggested that the most economical method to do this was by issuing a title commitment. From Sher-rill’s sworn affidavit, Varn learned that Rish knew or had reason to know that Threaf sought the title information to decide whether or not to disburse additional moneys to Taylor. Threat’s representatives assured Varn that Taylor would be helpful in this case and that she had implicated Rish in her scheme. Varn’s associate testified that she had read indexes of the Rish and Ford depositions. Ford’s deposition indicated that Taylor told him that she was buying property in her own name, obtaining loans to pay for the land, and recovering her money from subsequent purchasers. Threat’s attorney in the quiet title action had suggested that there might have been a lack of consideration in the transaction in which Ford acquired Tract Eight from Gerald Blair. The associate also testified that she reviewed the deposition of Charles Russell, a Threaf shareholder, in which Russell stated that Taylor had represented to Threaf that she had an option with Costabella and that Costabella was the owner of Tract Eight. Russell also testified in the deposition that Threaf released additional funds when the title report confirmed Taylor’s representations that title was held by Costabella. Threat’s British solicitor informed Varn’s firm that Russell would testify. In addition, both appellants learned before filing each complaint of several conflicts of interest involving Rish that suggest that at the time he issued the title policy commitment, he may have had inside information as to the true title holder to Tract Eight or as to an agreement between Costabella and Taylor for its sale. Rish had often performed legal work for Taylor and a letter from her to Threaf described Rish as her attorney. Rish had performed professional services for Taylor and Multi-Property Services in regard to prior transactions with Costabella. Taylor’s notice of commencement listing Costabella as the title holder was prepared in Rish’s office. Rish later told Sherrill that he had listed Sherrill as the registered agent on the no1 tice of commencement. Rish’s mother-in-law, Elizabeth Thompson, was a realtor with an exclusive listing agreement fot Costabella’s property. Thompson had introduced Taylor to Costabella’s president, Michael Ford, at her home. Thompson later had acted as broker in Taylor’s transactions with Costabella. Thompson’s statement in Taylor’s criminal proceedings indicates that she had received a deposit from Taylor on Tract Eight and transferred the money to Rish to be placed in a trust or escrow account. Rish also represented Costabella and was granted a power of attorney by Ford. Rish had used this power of attorney in handling all the closings for Costabella in Ford’s absence. Rish wrote a demand letter to Taylor on behalf of Costabella that referred to an oral agreement for the sale Of Tract Eight. Although Rish had performed professional services for Threaf and Taylor in the same transaction, Rish represented Costabella in the quiet title action against Threaf and Taylor. Rish stated in his deposition that he learned six to eight weeks before this suit was filed that Taylor did not have title to the property on which she made improvements with Threat’s money. The record does not reflect any efforts by Rish to notify Threat of this situation. The record thus indicates that it was reasonable for both appellants to believe that there was support for the allegation that Rish reasonably could have foreseen Threat’s loss. Although an attorney may not blindly accept his client’s word, see, e.g., Optical Industries, Inc. v. Cilco, Inc., 610 F.Supp. 656 (M.D.N.C.1985), the record is not inconsistent with Threat’s assertions. It is clear that both appellants satisfied the requirements of Rule 11 by conducting an inquiry that made it reasonable to believe that the facts supported a claim for breach of contract, especially when considered in light of their necessity of relying on an overseas client and prior counsel for information. See Fed.R.Civ.P. 11 advisory committee note. The trial court’s finding to the contrary was erroneous. B. Negligence Claim We now must examine whether it was reasonable for Hooley and Varn to believe that the negligence claim was well grounded in fact and law. Under Florida law the elements of a cause of action for negligence are as follows: (1) The existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff; (2) A failure on the part of the defendant to perform that duty; and (3) An injury or damage to the plaintiff proximately caused by such failure. Stahl v. Metropolitan Dade County, 438 So.2d 14, 17 (Fla.Dist.Ct.App.1983). The trial court found that the record supported the presence of the first two requirements. We agree. The issue then is whether the information before appellants when each complaint was filed made it reasonable to believe that Threat’s injuries were proximately caused by Rish’s misdesignation of the title holder to Tract Eight and his subsequent failure to notify Threat of the true title holder. Issues of proximate cause become a question for the jury under Florida law if conflicting inferences as to reasonably foreseeable events can be drawn from the record. “If reasonable men differ, the determination of foreseeability should rest with the jury.” Vining v. Avis Rent-a-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977); see Stirling v. Sapp, 229 So.2d 850 (Fla.1969). The fact that the damage was a result of wrongdoing by a third-party does not break the chain of causation if the intervening criminal act is foreseeable. Vining, 354 So.2d at 55-56; see also Barrett, Daffin & Figg v. McCormick, 362 So.2d 966, 967 (Fla.Dist.Ct.App.1978), cert. denied, 368 So.2d 1362 (Fla.1979). Rish’s relationships with both Taylor and Costabella provided a basis for knowing at the time he issued the commitment that the listed title owner was incorrect. Rish had contacted Taylor in regard to the transaction and was familiar with her method of doing business. Rish was notified of the error in the abstract but failed to contact Threaf. Rish knew before he wrote the demand letter to Taylor that she was erecting a house on land she did not own but Rish did not notify Threaf. Taylor's representation that she had an exclusive option with Costabella was an essential element of the transaction. There was evidence that Threaf would not have forwarded the additional $24,000 to Taylor if Rish had alerted Threaf in the commitment that Costabella did not own the land. Moreover, Taylor remained solvent through at least November of 1983. Threaf therefore would have been able to recover moneys already advanced if Rish had alerted Threaf that title was not held by Costabella. The facts discussed above that were known to both appellants at the time each filed his complaint make it more than reasonable for them to have believed that Threat’s injuries were proximately caused by Rish’s negligence. We conclude that the trial court’s determination to the contrary was erroneous. IV. Conclusion Accordingly, we REVERSE the judgment of the district court ordering sanctions against appellants Hooley and Varn. REVERSED. . Blair was deeded the property by Peter Stevens, a limited partner in a partnership in which Costabella was the general partner. Stevens had received Tract Eight on the dissolution of the partnership. . The deed to Costabella, however, was not recorded until March 1984. . Threaf did not appeal from the grant of summary judgment. . The district court concluded that the second amended complaint had been "filed” for purposes of Rule 11. The court also ordered sanctions in the amount of $1,250 against the attorney who signed the original complaint. That attorney is not a party to this appeal. . Rish billed Threat's attorney $200; of this amount $75 was due to the cost of obtaining the abstract. . Sherrill later stated via sworn affidavit that Rish knew that the purpose of the binder was to assure Threaf in whom title was vested and that the nature of his conversation with Rish was such that Rish knew or should have known that Threaf sought this information for the purpose of deciding whether to disburse more money to Taylor. . Varn ultimately was advised that Taylor would not appear in Florida because of outstanding criminal charges against her. . This conflict of interest not only suggests a heightened level of knowledge of Rish, but also is grounds for disciplinary proceedings. See Florida Bar v. Madsen, 400 So.2d 947 (Fla.1981) (public reprimand for attempting to represent buyers of mobile home when attorney also represented seller); Florida Bar v. Mueller, 351 So.2d 960 (Fla.1977) (disbarment based in part on attorney's conduct in representing buyer in purchase of business and later representing seller in suit against buyer); Florida Bar v. Moore, 194 So.2d 264 (Fla.1966) (three-month suspension for representing both life tenant and trustee); see also Florida Bar v. Shannon, 398 So.2d 453 (Fla.1981) (public reprimand warranted for failing to carry out contract for professional services by overlooking defect in title and for subsequent delay in bringing quiet title action to clear defect). . Because we have concluded that the district court erred in holding that appellants Hooley and Varn signed pleadings that were not well grounded in fact and were not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, we need not decide whether the fines imposed by the court would have been an abuse of discretion if Hooley and Varn had violated Rule 11.

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

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. 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?

Terrance MARSHALL, Plaintiff-Appellant, v. NEPTUNE MARITIME, INC., Marble Investment Co., S.A., and Unitex, Ltd., Defendants-Appellees. No. 87-3006 Summary Calendar. United States Court of Appeals, Fifth Circuit. Sept. 30, 1987. B.R. Malbrough, Morris Bart & Assoc., New Orleans, La., for plaintiff-appellant. Robert H. Murphy, Peter B. Sloss, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendants-appellees. Before GEE, GARWOOD and JONES, Circuit Judges. EDITH H. JONES, Circuit Judge: From a jury verdict finding the defendant shipowner non-negligent and therefore not liable for appellant grain inspector’s alleged slip-and-fall injury on board the M/V Baryon, appellant complains solely of defects in the court’s charge. Hampered by an incomplete appellate record, but nonetheless convinced from what we are able to review that the charge was adequate, we affirm. In the course of preparing for this appeal, appellant failed to procure a transcript of the entire proceedings, and instead opted, pursuant to Federal Rule of Appellate Procedure 10(b), to secure only the 78 pages of transcript covering the magistrate’s charge to the jury. Appellant failed to inform appellee, as required by FRAP 10(b)(3), that only a partial transcript was being secured. Failure to abide by the rules of appellate procedure is not to be lightly overlooked. In this case, however, appellee will not be disadvantaged by the omission. Appellant’s most serious complaint is made against the magistrate’s charge that, “[A] worker such as a grain inspector, when she enters upon her calling, must assume all inherent and unavoidable risk of her occupation, as all persons must; and she cannot recover for injuries resulting solely from such inherent and unavoidable risks”. Appellant contends that this instruction injects the defense of assumption of risk improperly into the case. Although assumption of risk has been held inapplicable in longshoremen’s negligence actions against a shipowner pursuant to LHWCA § 905(b), Gay v. Ocean Transport & Trading Ltd., 546 F.2d 1233 (5th Cir.1977), appellant was not a longshoreman. Even if assumption of risk remains a defense, an issue we do not pursue, the charge did not raise the defense. Rather, the language concerning a plaintiff’s assumption of unavoidable risks is used in the layman’s sense of those terms and connotes that a plaintiff must exercise some responsibility for her own safety in the face of “unavoidable risk, which does not arise out of negligence” (quoting from the charge). See, e.g., Stass v. American Commercial Lines, Inc., 720 F.2d 879, 882-84 (5th Cir.1983). We note that the charge elsewhere included a definition of comparative negligence that is not inconsistent with this instruction. Furthermore, the instruction informed the jury that the vessel owner would be liable for its own negligence including failure to warn a plaintiff of latent dangers. Thus, the charge as a whole conveyed the proper standards to the jury. It is impossible to judge which standard of review applies to this aspect of the charge, given appellant’s failure to have brought us transcript evidence of her compliance with Federal Rule of Civil Procedure 51. The transcript we have received does not contain an objection to this portion of the court’s charge, although appellant’s brief describes her objection to this issue as “vigorous”. Parsing the trial court record, we note that appellant’s motion for new trial referred to her objection to this issue, and defendant, in its response, did not contest the propriety of her objection. We need not reach the question which standard of review ought to apply (“plain error” for an unobjected-to instruction, or error in the whole charge, where the objection was properly lodged), because we have concluded that the charge given as a whole adequately reflected the applicable law and did not mislead the jury. Coughlin v. Capitol Cement Company, 571 F.2d 290, 300 (5th Cir.1978). Appellant additionally complains that the negligence charge should have been framed verbatim according to Scindia Steam Navigation Company v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). We find no warrant for this complaint in light of the exhaustive nature of the court’s negligence charge. “It is axiomatic that the court need not couch its charge in the precise language and form fancied by a litigant’s attorney. [omitting citations]”. Coughlin, supra at 300. We are unable to review appellant’s contention that the court should have instructed the jury that the vessel owner must inspect the premises to discover possible dangerous conditions of which he does not know and to protect the invitee from dangers which are foreseeable from arrangement or use. Appellant alleges that she specifically requested such a charge by the magistrate. Our truncated transcript affords no basis to review whether plaintiff requested such a charge, and whether the evidence in any way supported it. As the propriety of this charge would depend heavily upon the nature of the evidence, which is not before us, we decline to review this issue. United States v. Gerald, 624 F.2d 1291, 1296 and n. 6 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981); Crawford v. Western Elec. Co., Inc., 614 F.2d 1300, 1304 (5th Cir.1980). Appellant finally complains that the trial court erred by giving additional instructions to the jury after counsel for both parties had pointed out an error in the charge. Counsel for defendant, reinforced by appellant’s counsel, mentioned to the magistrate that he had included a “slightest negligence” instruction which, of course, does not pertain to a non-Jones Act case. The court offered to correct the instruction in writing and orally and, both counsel agreeing to this course of action, he did so. The magistrate attempted to inform the jury both that slightest negligence did not apply and that the plaintiff’s standard of care was not changed by this modification. Appellant now contends that the instructions given the jury misled them and suggested a verdict for the defendant. We disagree. The final form of the charge, including the initial and corrected instructions, might have been somewhat redundant and verbose, nevertheless, the trial court specifically informed the jury that they should not draw any inferences “from the fact that certain parts of the charges contain more discussion of certain issues than others.” Verbosity alone will not fatally prejudice a jury charge otherwise reasonably accurate. If we had a transcript of the attorneys’ closing arguments, we might be able better to assess the effect of the court’s redundancy. But we do not. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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

MANDEL BROS., Inc., v. HENRY A. O’NEIL, Inc., et al. No. 9731. Circuit Court of Appeals, Eighth Circuit. Feb. 27, 1934. Rehearing Denied April 2, 1934. William F. Struekmann, of Chicago, Ill. (Ben J. Altheimer and Leo L. Weil, both of Chicago, Ill., and R. A. Bielski and D. S. Elliott, both of Sioux Falls, S. D., on the brief), for appellant. Albert R. Denu and George Philip, both of Rapid City, S. D., for appellees. Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges. VAN VALKENBURGH, Circuit Judge. Appellant is a corporation organized under the laws of the state of Delaware, with its principal office at Chicago in the state of Illinois. It appears, also, that there is in Chicago a copartnership doing a mercantile business under the name of Mandel Bros. It appears further that Robert Mandel and Fred L. Mandel, composing the membership of this copartnership, are officers of Mandel Bros., Inc. Henry A. O’Neil, Inc., is a corporation organized under the laws of South Dakota, and Henry A. O’Neil, the individual appellee, is its president. The partnership firm of Mandel Bros, is engaged in the dry goods, contracts, and furnishing business. Between this partnership and Mandel Bros., Inc., there was an agreement providing that the copartnership might, if it desired, assign to the corporation contracts made by the copartnership for the furnishing of the goods, wares, and merchandise to hotels, apartment houses, theaters, etc., and that, upon such assignment, the corporation would fulfill and complete such contracts. In the spring of 1930, Henry A. O’Neil, Inc., had in process of erection a hotel at Belle Fourehe in the state of South Dakota. Beginning in May, and thereafter, a number of propositions for furnishing the various rooms and departments of this hotel were made by Mandel Bros., Ine., in the form of proposals, which, when accepted, constituted contracts of sale. These proposals were made upon the forms of Mandel Bros., Ine., and, as stated in appellant’s brief, “the original contracts were on Mandel Brothers, Inc., General Form contracts and in the name of' that corporation.” The furnishings included lighting fixtures, kitchen equipment and utensils, shades, room and lobby draperies, general furniture, bedroom furniture and bedding, Venetian shades, floor coverings of every sort, linens, glassware, silverware, ehinaware, blankets, lamps, and various miscellaneous items — in short, a complete furnishing and equipment of the entire hotel, the extensive details of which would unduly burden this opinion. Enumeration would serve only to emphasize the scope of the contract. The articles of merchandise were to be delivered at Belle Fourehe, and were to ho installed by and at the expense of the seller, to the end that, when the contract was fully executed, the hotel should be completely furnished and equipped. The purchase price aggregated $36,046.67, and down payment of $5,000 was provided. June 23, 1930, Mandel Bros, wrote Mr. O’Neil a letter in which the following recapitulation of the order was stated: $36,046.67 Cash paid.......... $5,000.00 Cash to be paid when ready for delivery.. 7,015.59 12,015.59 Balance .......•. 24,031,0S to be covered by 18 notes each for $1,- 335.06 ........... 24,031.08 The notes were to be executed by Henry A. O’Neil, Inc., and indorsed by Mr. O’Neil. The letter also contained the following paragraph : “We find in going over the records that Mr. Dillon had the actual contracts drawn upon the wrong type of form. It is necessary for us to make contracts, out of the state, in the name of the Co-partnership which is separate from Mandel Brothers, Inc., as you will probably recall in connection with the Alex Johnson Hotel. Consequently, in order to avoid the inconvenience of asking you to sign a whole new set of contracts we should appreciate your signing the copy of the attached letter giving us the authority to change these contracts from Mandel Brothers, Inc., to Mandel Brothers, a Co-partnership.” This authority was granted by appellee Henry A. O’Neil, Ine., thus: “This is your authority to change the contracts recently executed from Mandel Brothers Inc. to Mandel Brothers a Co-partnership. “Henry A. O’Neil, Inc., “By Henry A. O’Neil.” June 23, 1930, pursuant to this change, a complete agreement, covering all the terms of the sale, was duly executed, in which Man-del Bros., a copartnership, was named as the first party, Henry A. O’Neil, Inc., was named as second party, and O’Neil individually was named as third party. The agreement was signed accordingly. The notes to which reference has been made were payable to the order of Mandel Bros., were signed by Henry A. O’Neil, Inc., by its president, and each bears the following indorsement of Henry A. O’Neil: “Por Value Received, I hereby guarantee the payment of this note and all expenses of collecting the same including attorneys’ fees, and waive protest and notice of nonpayment and diligence in collecting the same and consent that security may be taken or the time of payment be extended without impairing this guaranty.” The merchandise purchased was duly delivered and installed in accordance with the terms of the contract, and Henry A. O’Neil, Inc., made the payments of $5,000 and $7,-015.59 therein provided, aggregating $12,-015.59. It appears further that notes 1 to 6> inclusive, have been paid in full, and that $886.60 has been paid upon the principal of note No. 7, and $150 upon the principal of note No. 8. Appellees have refused to pay the balance due upon said notes, and Mandel Bros., Inc., to which the notes had been indorsed by Mandel Bros., copartners, brought suit to collect against the appellee corporation and Henry'A. O’Neil as indorser. A jury was waived, and the court found the issues for appellees, defendants below. The defense of appellees was based upon the statutes of South Dakota, §§ 8900 to 8916, inclusive, of chapter 7, part 17, title 6, of the Revised Code of South Dakota, 1919, which, among other things, provide that a foreign corporation, as a condition of being permitted to do business in that state, must file in the office of the secretary of state a duly certified copy of its charter or articles of incorporation ; must file with the secretary of state a statement in writing by its president, secretary, treasurer, general manager, or other officer, constituting the secretary of state its agent for the service of process; must file with the secretary of state a duly sworn statement setting forth its name, the location of its office, or principal place of business within the state of South Dakota, and the names and addresses of its officers and of its agent who represents it in that state. It is stipulated that Mandel Bros., Inc., has done none of these things. Section 8909, Revised Code, South Dakota reads thus: “Contracts, When Void. Every contract made by or on behalf of any foreign corporation, subject to the provisions of this chapter, affecting the personal liability thereof or relating to property within this state, before it shall have complied with the provisions of this chapter, shall be wholly void, on its behalf and on behalf of its assigns, but shall he enforceable against it or them.” The trial court found that: “In fact the entire transaction from beginning to end was the transaction of the plaintiff corporation through its authorized agents and representatives; that all the records relating to said transaction were kept by the plaintiff corporation, and that the said co-partnership in no manner participated in said business except only for the purpose aforesaid; that the use of the alleged co-partnership name as aforesaid by the plaintiff corporation was and is merely a subterfuge on the part of the plaintiff corporation to evade the'laws of the State of South Dakota relating to foreign corporations; that the use of said co-partnership name as aforesaid was wholly for and in behalf of said corporation in said business transaction.” • ' Its conclusion was: “That the business transaction set forth in the foregoing findings of fact was and is essentially intrastate in character and subject to the control and regulation of the State of South Dakota.” That by reason of appellant’s failure to comply with the laws of South Dakota relating to foreign corporations the promissory notes in suit were void and unenforceable. At the threshold of the ease we are met by the contention of appellees that the record presents no error reviewable by this court under its established rules and practice. It appears that, at the conclusion of the testimony, both sides rested and indicated a desire to submit the matter upon printed briefs. Sixty days were allotted to each side, with fifteen days additional to plaintiff for reply. Briefs were filed accordingly, and, on November 23, 1932, the court announced its decision in the form of a letter to counsel, which contained the following closing paragraph: “It follows that in my opinion the defendants in this action must prevail, and upon presentation of the necessary and proper findings of fact and conclusions of law in accordance with the foregoing, and judgment of dismissal as prayed for by the defendants, allowing the usual exception to the plaintiff, the same will be signed and filed for record.” The record recites that thereupon the defendants proceeded to preparo findings and conclusions in accordance with the suggestion of the court, and that the parties stipulated that: “The signing, filing and entry of the decision and judgment, including the findings in this ease, be deferred until December 31, 1932, to enable the plaintiff to present proposed findings, motion for judgment and requests for declaration of law, or to take such other steps as plaintiff might deem necessary to preserve its record on appeal.” The record further recites: “That proposed findings of fact, conclusions of law and order for judgment were submitted by the plaintiff to the court prior to December 31, 1932, the date upon which the Findings of Fact, Conclusions of Law and Order for Judgment in this action were actually entered.” December 31, 1932, pursuant to stipulation, and, presumably with an understanding ' between court and counsel, appellant filed its proposed findings of fact and requested declarations of law, which were by the court overruled with exceptions allowed. The court thereupon filed its findings of fact and conclusions of law and entered judgment for ap-pellees. It will be noted that the findings of fact and conclusions of law requested by appellant were presented to the trial court, and ruling asked and obtained some weeks after the hearing ended, and after the issues of fact and law had been submitted to the trial judge for decision; and that that decision had been made known, although not formally entered. In such case, under ordinary circumstances, this court has many times held that, in an action at law tried without jury, the question of law of whether or not there was any substantial evidence to support the court’s findings is not reviewable. Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55; Denver Live Stock Commission Co. v. Lee (C. C. A.) 18 F.(2d) 11; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60. However, because of the action of the trial court, in apparent recognition of the stipulation of counsel to hold the final disposition of the case open until December 31, 1932, to enable appellant to take such steps as might be deemed necessary to preserve its record on appeal, we do not feel justified in denying to it such review as may otherwise be permissible. Of course, no error can be assigned to the refusal of the court, sitting as a jury, to make the fact findings requested. St. Louis v. Rutz, 138 U. S. 228, 11 S. Ct. 337, 34 L. Ed. 941; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55. There is open to review in such case only the questions of whether the findings support the judgment entered, or whether there is substantial evidence to support the findings. And the latter question is open only when “a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents that question to the trial court and secures its ruling thereon.” Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63; Fleisehmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. This question is presented by appellant’s motion for judgment on the ground that: “There' is no substantial evidence and no evidence whatsoever to sustain a finding or judgment in favor of the defendants and against the plaintiff.” Whether there is substantial evidence to support the findings makes necessary a consideration of what may constitute intrastate business within the meaning of the South Dakota Statutes invoked. Merely soliciting orders for goods to be shipped in the course of interstate commerce does not constitute doing business in the state to which the goods are shipped, and therefore does not subject such property to police regulation. Crenshaw v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Rearick v. Pennsylvania, 203 U. S. 507, 27 S. Ct. 159, 51 L. Ea. 295; Caldwell v. North Carolina, 187 U. S. 622, 23 S. Ct. 229, 47 L. Ed. 336; Dozier v. Alabama, 218 U. S. 124, 30 S. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264; Browning v. Wayeross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828. The test is whether the business done in the state of destination involves a “question of the delivery of property shipped in interstate commerce, or of the right to complete an interstate commerce transaction,” or whether it concerns “merely the doing of a local act after interstate commerce had completely terminated.” Browning v. Wayeross, supra, loc. cit. pages 22 and 23 of 233 U. S., 34 S. Ct. 578, 580. In, the ease last cited the Supreme Court held that: “Parties may not by the form of a non-essential contract convert an exclusively local business subject to state control into an interstate commerce 'business protected by the commerce clause so as to remove it from the taxing power of the State.” By the contract in that ease the price paid for lightning rods included the duty to erect them without further charge. Concerning this the court said: “It is true that it was shown that the contract under which the rods were shipped bound the seller, at his own expense, to attach the rods to the houses of the persons who ordered rods, but it was not within the power of the parties by the form of their contract to convert what was exclusively a local business, subject to state control, into an interstate commerce business, protected by the commerce clause. It is manifest that if the right here asserted were recognized, or the power to accomplish by contract what is here claimed were to be upheld, all lines of demarkation between national and state authority would become obliterated, since it would necessarily follow that every kind or form of material shipped from one state to the other, and intended to be used after delivery in the construction of buildings or in the making of improvements in any form, would or could be made interstate commerce.” The distinction between what is inherently intrastate and what is inherently and necessarily connected with interstate commerce is clearly pointed out by the Supreme Court in the cases cited, to which may he added' York Manufacturing Company v. Colley, 247 U. S. 21, 38 S. Ct. 430, 62 L. Ed. 963, 11 A. L. R. 611, and the decision of this court in Palmer v. Aeolian Co. (C. C. A.) 46 F.(2d) 746, 752. The York Case involved the sale of an ice-making plant, which required the supervision of an expert in assembling and erecting it, as necessary to complete delivery in interstate commerce. Palmer v. Aeolian Company concerned the manufacture and sale of a pipe organ, the installation of which required “not only the highest mechanical skill, but a thorough understanding of the methods employed by the manufacturer in the arrangement of mechanical and electrical connections.” The installation was held to be inherently connected with interstate commerce. In General Railway Signal Company v. Virginia, 246 U. S. 500, 38 S. Ct. 360, 62 L. Ed. 854, the contract was to furnish completed automatic railway signal systems. It was held that, in the installation, local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the state. In all eases bearing upon the subject the distinction is carefully drawn between situations requiring local work as essential to a complete delivery in interstate commerce, because of the peculiar nature of the subject-matter of the contract, and those in which the local work done is inherently and intrinsically intrastate. In our judgment, the installation of these furnishings in the hotel at Belle Fourche, S. D., falls within the latter classification. The record convincingly shows that furnishings of the nature described may be, and generally are, put in place by workmen of no exceptional skill, and do not require expert supervision by employees of the seller to complete the transaction in interstate commerce. It appears that only a portion of the articles furnished was carried in stock by appellant. It purchased from various manufacturers, often in the open market, and caused the goods to be shipped to Belle Fourche where they were received by appellant’s employees and installed in the hotel. The period thus employed covered several weeks, largely in May and June of 1930. The contract was originally made with Mandel Bros., Inc. No. change was suggested until June 23, by letter from Mandel Bros., which contained these significant words: “It is necessary for us to make contracts, out of the state, in the name of the co-partnership,' which is separate from Mandel Brothers, Inc. as you will probably recall in connection with the Alex Johnson Hotel.” The proposals of appellant were made upon the form blanks of the corporation. From the very beginning, and after the agreement of June 23, the business was conducted by the corporation, and the suit was brought in its name. The court found that “the use of the alleged co-partnership name as aforesaid by the plaintiff corporation was and is merely a subterfuge on the part of the plaintiff corporation to evade the laws of the state of South Dakota, relating to foreign corporations.” It is contended that the statute of South Dakota does not forbid the doing of a single act of business in the state. Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 S. Ct. 739, 28 L. Ed. 1137, is cited in support of this contention. In Walters Co. v. Hahn, 43 S. D. 153, 178 N. W. 448, it was stated generally that a single transaction does not constitute the doing of business under such a statute. However, in the later case of Tripp State Bank v. Jerke, 45 S. D. 448, 188 N. W. 314, Walters Co. v. Hahn was held not to bo decisive of the question. Acts done in connection with a single transaction were recognized, under certain circumstances, as constituting more than an isolated transaction. We may readily conceive of a situation where the corporation has done but a single act of business and purposes to do no more; but we think the decisive test is that outlined clearly in the late cases of the Supreme Court of the United States, namely, whether or not the local work done is essential to> a complete delivery in interstate commerce,-is intrinsically interstate, and immediately and inherently connected with interstate commerce. ’ However, in the instant case, Mandel Bros., Inc., clearly evinced a purpose to do many acts of business in any state having statutes of the nature of that under consideration. The letter of Juno 23,1930, admits of no other construction, and it is a fair inference that another transaction had already taken place in South Dakota. In such cases, the copartnership, composed substantially of the same individuals, is introduced as an instrumentality for evasion of the inhibition of the statute. It is further urged in the alternative that, if certain parts of the work done be deemed intrastate in character, the cost thereof may be segregated, and the balance of the notes allowed. This contention is without merit in any view. While the various items were furnished at different times, and were charged separately, the contract was for the entire installation, and the transaction was a unit. In our judgment, the findings of the court were amply sufficient to support the judgment rendered that the notes in suit were void, and there was substantial evidence to support the findings made. A question is presented to this court with respect to the liability of Henry A. O’Neil upon his guaranty, independently of the validity of the notes in suit. This issue was not presented to the trial court in any form during the progress of the trial, nor by any finding of fact or conclusion of law requested. The matter, therefore, is not properly before us as a court of error. It follows, for the reasons stated, that the judgment below should be affirmed, and it is so ordered.

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

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

J.C. WYCKOFF & ASSOCIATES, INC., Plaintiff-Appellant (89-1773)/Cross-Appellee, Second National Bank of Saginaw, Intervening Plaintiff-Appellee (89-1822), Ann Arbor Leasing, Inc., Intervening Plaintiff, v. The STANDARD FIRE INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant (89-1823) and Appellant (89-1822). Nos. 89-1773, 89-1822 and 89-1823. United States Court of Appeals, Sixth Circuit. Argued March 27, 1991. Decided June 20, 1991. Rehearing and Rehearing En Banc Denied Aug. 2, 1991. Roland J. Jersevic, Crane & Crane, and Timothy R. McLeod, and Susan J. Tarrant, Polasky, Meisel, Rosenbaum & McLeod, Saginaw, Mich., for J.C. Wyckoff & Associates, Inc. Susan M. Cook (argued) and David L. Powers, Lambert, Leser, Dahm, Giunta, Cook & Schmidt, Bay City, Mich., for Second Nat. Bank of Saginaw, a Nat. Banking Ass’n. Michael V. Marston, Rice, Rice, Gilbert & Marston, Detroit, Mich., for Ann Arbor Leasing, Inc. Charles Tuffley (argued), Daryl G. Fryxell, Denenberg, Tuffley, Bocan, Jamie-son, Black, Hopkins & Ewald, and Judith A. Friday, Southfield, Mich., for the Standard Fire Ins. Co. Before MARTIN and GUY, Circuit Judges; and EDWARDS, Senior Circuit Judge. RALPH B. GUY, Jr., Circuit Judge, Plaintiff, J.C. Wyckoff & Associates, Inc. (Wyckoff), commenced this suit in order to recover proceeds under a fire insurance policy issued by defendant, The Standard Fire Insurance Company (Standard Fire). The policy named intervening plaintiff, Second National Bank of Saginaw (the Bank), a lender of money to Wyckoff, under a loss payable clause. Standard Fire refused to pay proceeds to either the Bank or Wyck-off, claiming that Wyckoff committed arson and fraud and false swearing, thus barring recovery under the policy by either the Bank or Wyckoff. Standard Fire maintained that, because the Bank was named under a loss payable endorsement rather than a standard mortgage endorsement, the Bank’s right to recover was contingent upon Wyckoff s right to recover. After a trial on the issue of Standard Fire’s liability to Wyckoff, the jury rendered a verdict against Standard Fire on the arson defense and in favor of Standard Fire on the fraud and false swearing defense. Upon cross motions for summary judgment filed by the Bank and Standard Fire, the district court held that the jury verdict did not bar recovery by the Bank for outstanding loans made to Wyckoff and secured by real estate and personal property covered under the policy. The Bank’s claim regarding the amount of judgment was subsequently resolved pursuant to a stipulation entered into between the Bank and Standard Fire. Wyckoff raises numerous claims of error on appeal: (1) the trial court erred in denying Wyckoff’s motions for directed verdict and judgment notwithstanding the verdict, as proof of reliance is required to sustain a claim of fraud and false swearing in Michigan, and Standard Fire admits that there was no reliance; (2) the issue of whether reliance is a necessary element of fraud and false swearing should have been certified for decision to the Michigan Supreme Court; (3) even assuming that proof of reliance is not required, the district court should have granted plaintiff’s motion for judgment notwithstanding the verdict because there was not sufficient evidence of fraud and false swearing to submit the issue to the jury; (4) because the jury’s verdict was against the great weight of the evidence, the district court erred in denying plaintiff’s motion for a new trial; (5) disputes over the value of lost property should have been referred to arbitration as provided by the policy; (6) the district court erred by allowing Standard Fire to amend at trial its allegations of fraud; and (7) the court erred by allowing Standard Fire to deduct loan payments, made by Wyckoff to the Bank subsequent to the fire, from insurance proceeds due the Bank under the insurance policy. Standard Fire cross appeals, arguing that (1) the trial court erroneously excluded evidence regarding locked doors within the Wyckoff buildings, thereby prejudicing Standard Fire’s ability to effectively present an arson defense; and (2) the trial court erred by ruling that Standard Fire was estopped from relying upon a loss payable clause in the policy as a basis for denying the Bank recovery. For the reasons set forth below, we affirm the district court in all respects. I. On July 3, 1983, a fire occurred at the property of Wyckoff, a corporation wholly owned by James Wyckoff and comprised of a number of separate divisions, including a fund raising division, a fruit division, and a family portrait division. In both 1977 and 1980, Wyckoff granted mortgages to the Bank in order to secure loans for the construction of two buildings. The mortgages required Wyckoff to insure the buildings against damage and loss by fire, as directed by the Bank. At each loan closing, a letter was given to James Wyckoff, president of Wyckoff, Inc., requiring Wyckoff to obtain an insurance policy containing a “standard mortgage clause and provide that loss, if any, shall be payable to” the Bank. In July 1981, Wyckoff granted the Bank a security interest in Wyckoff s machinery and equipment. Although Wyck-off agreed to keep the collateral insured, the exact manner in which the Bank’s interest in the collateral was to be indicated on the insurance policy was not specified. According to the testimony of Kenneth Tobias, the Bank’s loan officer, the mortgage officer in charge of the closing on a loan would review the declaration page of the policy to look for the name of the Bank as mortgagee on the face of the policy or check the attached endorsements to determine whether the proper endorsement naming the Bank as mortgagee was contained therein. Subsequent to the closing of a mortgage, the monitoring of insurance was done primarily by the service department of the Bank, which would receive all notices with regard to the insurance policies of mortgagors, including notices of cancellation, non-renewal, terminations, reinstate-ments, or renewals. When a policy was renewed, if a clerk received a certificate rather than a policy, and the certificate indicated that the Bank was properly in-eluded as a mortgagee in the policy, a copy of the policy normally would not be required. From July 1, 1980, until June 30, 1982, Wyckoff was insured against loss or damage to its buildings and their contents through a policy issued by Frankenmuth Mutual Insurance Company (Frankenmuth policy). A certificate of insurance, which contained separate boxes for “Mortgagee,” “Loss Payee,” and “Additional Insured,” indicated that the Bank’s interest was that of “Mortgagee.” An endorsement to the insurance policy also listed the Bank’s interest under a “Mortgage Clause,” which indicates that the Bank, when entitled to the protections of the clause, shall not be subject to any act of negligence of the mortgagor or owner. In early 1982, Wyckoff decided to change insurance agents and contacted William Westwood of the Westwood Insurance Agency, a duly authorized agent of Standard Fire. James Wyckoff did not specifically discuss his secured creditors’ insurance requirements with Westwood. However, both Westwood and James Wyckoff agree that it was communicated to West-wood that the Bank had real estate mortgages and a secured interest in personal property, and that Westwood was aware of the Bank’s mortgages and secured claim when he prepared for Wyckoff a policy procured from Standard Fire. Both West-wood and James Wyckoff testified that it was their mutual intention to protect the Bank’s interest as mortgagee and secured lender. Further, James Wyckoff handed Westwood a copy of the Frankenmuth policy and instructed Westwood to “duplicate or improve upon” the coverage provided by that policy. Although Westwood only recalls receiving parts of the policy, he testified that he was sure he had access to the entire policy. Concerning his duty as an insurance agent to Wyckoff, Westwood testified that he thought he should provide at least the coverage Wyckoff had before unless, for some reason, Wyckoff should not have had that coverage. Westwood testified that a standard mortgage clause endorsement for the Bank could have been included without any additional premium and could have provided protection for personal property as well. Westwood further testified that there was nothing to preclude him from placing the Bank’s name in two endorsements, with a standard mortgage clause for real estate and a loss payable clause for contents. Westwood stated that he could not see any reason for or benefit to an insured to have a lender who is secured by real estate named in a loss payable clause instead of a standard mortgage clause. The 1982 Standard Fire policy obtained by Wyckoff from Westwood had a policy period effective from July 1, 1982, to July 1, 1983. Subsequent to the effective date of the new policy, Wyckoff s secretary requested Westwood to provide the Bank with evidence of insurance. In accordance with this request, Westwood sent a certificate of insurance to the Bank on July 27, 1982. The certificate stated that the Bank was “indicated on the policy as mortgagee on building and contents.” However, Wyckoff had not yet been issued a policy at the time the certificate was transmitted to the Bank, nor did the policy contain any endorsements naming secured lenders when it was finally prepared in Standard Fire’s office in September 1982 and thereafter received by Westwood who transmitted it to Wyckoff. In November 1982, Westwood sent a memo to Standard Fire requesting that endorsements be added to the policy, listing the Bank and various other lenders under a loss payable clause. Westwood received these endorsements and mailed copies only to Wyckoff; the Bank never received a copy of the insurance policy. Although the policy listed the Bank as a loss payee and not under a standard mortgage clause, Westwood testified that he did not know that the endorsement for the Bank in the Standard Fire policy differed from the way the Bank was endorsed in the Franken-muth policy. On May 20, 1983, Westwood met with James Wyckoff to discuss a renewal policy. They reviewed coverage and discussed changes unrelated to the insurable interests of other entities, and Wyckoff thereafter ordered a renewal policy requesting two changes unrelated to the manner in which lien holders or lessees were to be protected under the insurance coverage. Westwood testified that no change was requested and none was discussed with regard to the Bank’s interest. The renewal policy was issued in June 1983, with the Bank once again named under a loss payable endorsement. Two days after the effective date of July 1, 1983, the insured property was destroyed. At the time of the fire, the outstanding balance on the real estate mortgage and commercial loans were $241,000 and $292,-000, respectively. Two buildings referred to as the “south building” and the “north building” were damaged by fires of separate origin. These buildings were connected by a hallway or corridor. The north building and its office equipment also suffered damage from acts of vandalism. In August 1983, Wyckoff submitted a proof of loss to Standard Fire, claiming $420,000 for loss of buildings; $435,000 for loss of contents; $65,000 for loss of cameras owned by one of its divisions, Julie’s Family Portraits; and a claim for an undetermined amount of lost earnings. Standard Fire denied the claim on October 12, 1983, on the bases of arson and fraud and false swearing relative to the origin of the fire. Wyckoff filed for Chapter 11 bankruptcy within a few days and responded to Standard Fire’s denial of the insurance claim two months later by filing the underlying suit claiming breach of contract. Standard Fire answered with the same defenses to liability set forth in the denial letter but asserted new theories of fraud and false swearing: The plaintiffs claim under the said policy is barred as a result of fraud and false swearing and the misrepresentation and concealment of material facts by its president and sole stockholder, including but not limited to the cause and origin of the fire, the financial condition of the plaintiff and the proposed sale of a division of the said business. Standard Fire later amended its defenses by adding new theories of fraud in the final joint pretrial statement agreed to by the parties. In addition to the defense of arson, Standard Fire’s claim of fraud read as follows: (2) J.C. WYCKOFF & ASSOCIATES, INC., has concealed and misrepresented materia] facts and is guilty of fraud and false swearing relative to the cause and origin of the fire, its claimed business interruption loss, the value of personal property destroyed by the fire, its financial condition, its relationship with SECOND NATIONAL BANK and the status of its negotiations for the sale of Julie’s Family Portraits. Following the denial of Wyckoff’s claim, the Bank asserted its own claim for insurance proceeds under Wyckoff’s insurance policy with Standard Fire. Standard Fire denied the Bank’s claim on the basis that, as a loss payee, the Bank’s right to recovery was subject to all defenses available to Standard Fire against the named insured. The Bank then sought and was granted leave to intervene as a plaintiff in the action filed by Wyckoff. A trial on the breach of contract action commenced. Standard Fire introduced evidence that Wyckoff made a claim in the sworn statement in proof of loss for $38,-563.80 for 180 boxes of brochures allegedly destroyed that were not damaged, but which were removed from the fire scene to a pole barn behind his house after the fire. James Wyckoff disputed this. However, his testimony was contradicted by three of plaintiff’s employees, and one employee witness testified that the brochures were later brought back from the pole barn and used as promotional materials. Testimony was also presented that Wyckoff claimed outdated calendars and other obsolete materials as lost inventory. Evidence was introduced that equipment was valued with no deduction for depreciation and in contradiction of plaintiff’s own financial statements. In addition, Standard Fire introduced evidence indicating that Wyckoff misrepresented its financial condition, the nature of its relationship and loan status with the Bank, and the status of negotiations for the sale of Julie’s Family Portraits. At the close of trial, the district court instructed the jury on the elements of fraud as follows: In order to establish that the policy is void on the grounds of misrepresentation, concealment, fraud or false swearing on the part of the plaintiff, the defendant has the burden of proof by clear and convincing evidence that the plaintiff: 1. Made a statement, 2. Such statement was false, 3. Such statement was material, 4. That the plaintiff knew the representation was false at the time it was made, or that it was made recklessly without any knowledge of its truth, and 5. The false representation was made with the intention of deceiving the defendant. The jury returned a special verdict, finding that Wyckoff’s contents loss was $300,-000, that the camera loss was $35,000, that the plaintiff did not cause the fire, and that Wyekoff had committed fraud and false swearing. The result of the jury’s verdict was to void the policy and to release Standard Fire from liability to Wyekoff. At the end of trial, Wyekoff moved for judgment notwithstanding the verdict, arguing that, in order to sustain a defense of fraud and false swearing in Michigan, Standard Fire must rely on the alleged misrepresentations made by the insured and suffer prejudice as a result of that reliance. As an alternative ground for judgment notwithstanding the verdict, Wyekoff argued that, assuming arguendo that the elements of fraud do not include reliance and prejudice, there was not sufficient evidence of fraud and false swearing to submit the issue to the jury. Plaintiff further argued that the court should grant a new trial on the basis that the subsequent verdict was against the clear weight of the evidence. The district court denied plaintiffs motions for a judgment notwithstanding the verdict and for a new trial. Standard Fire moved for summary judgment on the Bank’s claim, and the Bank filed a cross-motion for summary judgment, contending that Standard Fire was estopped from denying liability to the Bank. After a hearing, the district court granted the Bank’s motion for summary judgment and denied the motion for summary judgment filed by Standard Fire. Upon determining that the jury verdict did not bar recovery by the Bank, the court held that judgment should be entered in favor of the Bank for an amount not to exceed the lesser of the following: (1) the outstanding amount of the Bank’s loan as secured by the real estate loan, notwithstanding that the Bank may have had additional security; (2) the value of the destroyed property; and (3) the amount of the insurance policy. The Bank then brought a motion for summary judgment to determine the amount due, alleging $565,191.02 as the amount due and owing by Wyekoff as of the date of the motion. This amount was calculated by beginning with the amount due at the time of the fire, deducting $246,830.85 in payments made by Wyekoff since the date of the fire, and adding accrued interest on the unpaid amounts. The Bank’s claim was resolved pursuant to stipulation between the Bank and Standard Fire, and a judgment awarding the Bank $560,000 plus post-judgment interest was entered. II. In federal court diversity cases, this circuit adheres to the minority rule that state law governs the standard for granting motions for directed verdicts and judgments notwithstanding the verdict. Fitzgerald v. Great Central Ins. Co., 842 F.2d 157, 159 (6th Cir.1988); Lewis Refrigeration Co. v. Sawyer Fruit, Vegetable & Cold Storage Co., 709 F.2d 427, 430 n. 3 (6th Cir.1983). Although appellate courts should exercise considerable restraint in overruling jury determinations, they should not ignore their responsibility to insure that the evidence presented at trial permits juries to draw the reasonable inferences supporting such determinations. Kupkowski v. Avis Ford, Inc., 395 Mich. 155, 168; 235 N.W.2d 324 (1975). In Michigan, [a] judgment notwithstanding the verdict is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the nonmoving party. When deciding a motion for judgment notwithstanding the verdict, the court must view the evidence in a light most favorable to the nonmoving party, giving the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If the evidence is such that reasonable persons could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. Slanga v. Detroit, 152 Mich.App. 220, 224, 393 N.W.2d 487 (1986) (citations omitted), remanded for reconsideration on other grounds, 429 Mich. 893, 417 N.W.2d 479 (1988). See also Sabraw v. Michigan Millers Mut. Ins. Co., 87 Mich.App. 568, 571, 274 N.W.2d 838 (1978), rev’d on other grounds sub nom. Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 303 N.W.2d 702 (1981). When ruling on a motion for judgment notwithstanding the verdict, if the court concludes that evidence on an element necessary to establishing a cause of action or affirmative defense is lacking, then as a matter of law the claim or defense is not an appropriate one for the jury’s consideration. See Smith, 410 Mich, at 715, 768, 303 N.W.2d 702. Thus, if plaintiff is correct that reliance is an essential element for establishing the section 500.2832 defense of fraud and false swearing, then defendant’s admission that there was no reliance would mean that the evidence was insufficient as a matter of law to support the jury’s judgment. A court of appeals must review de novo a district court’s determination of state law, and no form of appellate deference is acceptable when de novo review is compelled. Salve Regina College v. Russell, — U.S. —, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Until Russell, we consistently held that “the judgment of a local district judge sitting in a diversity case, as to the application of state law, is entitled to considerable deference.” Diggs v. Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 927 (6th Cir.1988). However, the Supreme Court concluded in Russell that, although a majority of the courts of appeals had embraced a similar rule of deference, appellate deference on legal issues was not warranted by the exercise of diversity jurisdiction and was actually inconsistent with the principles of cooperative judicial federalism underlying Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny. Applying the de novo standard of review mandated by Russell, we conclude that the district court, after a considered analysis of Michigan law, correctly resolved the issue of state law presented in the instant case. When faced with precisely the same question presented here — whether it must be shown that the claimed false statements or misrepresentations were relied upon by the insurer to its prejudice or damage before recovery may be barred under the standard statutory policy of Mich. Comp. Laws § 500.2832 — a panel of the Michigan Court of Appeals answered in the negative. Ijames v. Republic Ins. Co., 33 Mich.App. 541, 542, 190 N.W.2d 366 (1971). The Ijames court and the district court in this case relied upon the Michigan Supreme Court’s holding in Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238, 18 N.W. 797 (1884). Ijames, 33 Mich.App. at 546, 190 N.W.2d 366. Monaghan interpreted a forfeiture provision in a fire insur-anee contract and held that “[t]he attempt to defraud the company by any one of the insured, by the making of false affidavits in relation to loss, is a complete bar to a recovery upon the policy.” Monaghan, 53 Mich, at 253-54, 18 N.W. 797 (emphasis added). The district court interpreted the phrase “attempt to defraud” as requiring neither a showing of reliance nor a showing of prejudice on the part of the insurer when the insured intentionally and willfully makes a false statement relative to loss. Plaintiff points out that in another early case the state supreme court stated that “[t]o sustain a defense of fraud because of misrepresentation or false statements in an insurance contract, it must be shown that the insurer was prejudiced or damaged by such conduct.” Bernadich v. Bernadich, 287 Mich. 137, 143, 283 N.W. 5 (1938). However, a panel of the Michigan Court of Appeals later cited Bernadich for the proposition that justifiable reliance, although necessary to prove the defense of fraud in the procurement of insurance coverage, is nevertheless not an element of a policy defense based upon an alleged fraudulent proof of loss. Rayis v. Shelby Mut. Ins. Co., 80 Mich.App. 387, 392-93, 264 N.W.2d 5 (1978); see also Kelly’s Auto Parts, No. 1, Inc. v. Boughton, 809 F.2d 1247, 1256 (6th Cir.1987) (Michigan cases concerning insurance fraud distinguish between procurement of insurance and proof of loss). Although a fair reading of Ber-nadich raises the question whether it truly makes the distinction purported by Rayis, such a reading is not without merit, as the Bemadich reference to reliance and prejudice concerns “false statements in an insurance contract.” Bernadich, 287 Mich, at 143, 283 N.W. 5 (emphasis added). Although it is possible to read Bemadich differently than the Rayis panel, “we are bound by what we believe Michigan courts would do, rather than what we may think personally would be the re-suit most harmonious with the state statute.” Diggs, 861 F.2d at 927. An intermediate appellate court’s judgment that announces a rule of law is “a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Woodruff v. Tomlin, 616 F.2d 924, 929 (6th Cir.) (quoting West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940)), cert. denied, 449 U.S. 888, 101 S.Ct. 246, 66 L.Ed.2d 114 (1980). In addition to the explicit pronouncements of Ijames and Rayis, other panels of the Michigan Court of Appeals have implicitly reached the same result by upholding jury instructions on fraud or false swearing that lack the elements of reliance and prejudice. Therefore, we remain unconvinced that we should disregard the holdings of Ijames and Ray is. Plaintiff argues in the alternative that, even assuming proof of reliance is not required to establish the affirmative defense of fraud and false swearing, the evidence was insufficient to submit this defense to the jury. Plaintiff argues that the difference between the jury verdict, which pegged the contents loss and camera loss at $300,000 and $35,000 respectively, and Wyckoff s proof of loss claiming $435,-000 for contents and $65,000 for the camera, is not sufficient to support a verdict for fraud and false swearing. To accept plaintiff's alternative argument, this court would have to conclude that there was no way a reasonable jury, looking at the defendant’s evidence, could have found in defendant’s favor. There are two reasons why this court cannot adopt the plaintiff’s interpretation of the evidence. First, plaintiff perceives the evidence as establishing only that Wyckoff made an honest mistake or innocent overvaluation. Although the cases relied on by plaintiff say that fraud is not established by the mere fact that plaintiff’s loss is determined to be less than his stated claim, they are simply saying that the overvaluation, to void a policy under a forfeiture provision triggered by fraud, must be made with the intent to deceive the insurer. See Foreman v. Badger Mut. Ins. Co., 169 Mich.App. 772, 776, 426 N.W.2d 808 (1988); West v. Farm Bureau Mut. Ins. Co., 402 Mich. 67, 69, 259 N.W.2d 556 (1977); Campbell v. Great Lakes Ins. Co., 228 Mich. 636, 638, 200 N.W. 457 (1924). Although the case should not be submitted to the jury “[i]f the difference between the proof of loss and actual loss is negligible,” if “the difference [is] extreme, fraud may be inferred by law and the judge may direct a verdict for the insurer.” Rayis, 80 Mich.App. at 392 n. 3, 264 N.W.2d 5 (plaintiff’s claim for $60,000 and appraiser’s value at $11,800 created a jury question). We find the disparity in this case more than negligible and sufficient to place the question of intent before the jury. Where it is within the competence of the jury to determine whether Wyckoff’s misrepresentations were made in good faith or with the intent to deceive, and the jury was properly instructed on this element, we will not disturb its verdict on the basis of the argument that the overvaluation was small. The second problem with Wyckoff’s argument is that evidence of fraud and false swearing unrelated to overvaluation was submitted to the jury, and Wyck-off makes no attempt to challenge the sufficiency of this evidence. Defendant introduced evidence sufficient to support a finding of fraud on several theories, including that Wyckoff claimed property not damaged or destroyed, that the business interruption claim was false, and that Wyckoff misrepresented its financial condition, its relationship with the Bank, and its status of negotiations for the sale of Julie’s Family Portraits. We find this evidence, viewed either in conjunction with Wyckoff’s overvaluation or independently of the value placed on property actually lost in the fire, sufficient to support the jury’s verdict. III. In addition to challenging the sufficiency of the evidence, plaintiff also appeals the denial of its motion for a new trial made on the basis that the verdict was against the great weight of the evidence. Plaintiff essentially restates the challenge to the sufficiency of the evidence that it made in appealing the denial of its motion for judgment notwithstanding the verdict. However, because the task of the district court in ruling upon motions for a new trial challenging the weight of the evidence, as well as the standard for appellate review of such rulings, differs from those utilized for motions challenging the sufficiency of the evidence, we set forth the law guiding our review of this matter. One who challenges the weight of the evidence argues that the jury’s verdict, although supported by some evidence, is still clearly against the weight of the evidence. Unlike motions for directed verdicts and judgments notwithstanding the verdict, in ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, the trial court must compare the opposing proofs, weigh the evidence, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence. TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir.1981). It should deny the motion if the verdict is one which could reasonably have been reached, and the verdict should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable. Id. Given the discretion of the trial court engaged in this task, as compared to the function of the trial court when ruling on motions for judgment notwithstanding the verdict, appellate courts traditionally have been reluctant to overturn a trial court’s order granting or denying a motion for a new trial that is based on the ground that the verdict was against the weight of the evidence. Duncan v. Duncan, 377 F.2d 49, 53 (6th Cir.), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 260 (1967). The deferential standard of review accorded to these orders is articulated in Logan v. Dayton Hudson Corp., 865 F.2d 789 (6th Cir.1989), where we stated: Generally, the grant or denial of a new trial is purely within the discretion of the trial court and will not be reversed except upon a showing [of] abuse of discretion. Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment. Id. at 790 (citations omitted). The record does not indicate that the district court engaged in the analysis set forth in TCP, as the court’s opinion and order denying plaintiffs motions for a JNOV and a new trial only addresses the sufficiency of the evidence and the elements of fraud. However, because the arguments raised in challenging the sufficiency of the evidence, both before the trial court and on appeal, are the same arguments under girding Wyckoff s claim that the verdict was against the weight of the evidence, and because those arguments do not support the contention that the verdict was unreasonably reached, we affirm the denial of plaintiffs motion for a new trial. IV. Wyckoff raises several arguments concerning the specificity and timing of Standard Fire’s defense of fraud and false swearing. First, Wyckoff argues that, pursuant to line 123 through line 128 of Michigan’s standard fire policy, the overvaluation issues pertaining to Wyckoff’s claimed contents loss and camera loss should never have been presented to the jury and should have been resolved only by arbitration. Acknowledging that section 500.2832 requires “the written demand of either” party in order that a disagreement as to amount of loss be presented to arbitration, Wyckoff attempts to justify its failure to make such a request on the ground that Standard Fire never alleged overvaluation of assets as a basis for fraud until Wyckoff commenced the suit. Essentially, Wyckoff argues that it could not request arbitration of an issue that had not been put in dispute. Assuming that the amount of loss was not in dispute until after Wyckoff filed the suit, any confusion as to Standard Fire’s position on this issue became clear before the trial commenced when the parties agreed to the joint final pretrial statement. In that statement, defendant asserted that Wyckoff’s claim was barred on the basis of fraud and false swearing relative to, inter alia, “the value of personal property destroyed by the fire.” Although this basis for fraud was not among the affirmative defenses listed in Standard Fire’s answer to plaintiff’s complaint, Standard Fire did assert the defense of fraud and false swearing with regard to “the cause and origin of the fire, the financial condition of the plaintiff and the proposed sale of a division of the said business.” The latter two bases of fraud were asserted in response to plaintiff’s claim for loss of earnings in the amount of $400,000, a claim plaintiff eventually dropped, and these bases place in dispute the value of that claim. Where Wyckoff knew that overvaluation was in dispute before the trial commenced, we see no reason to allow Wyckoff to take its chances with the jury and then raise the argument, apparently for the first time on appeal, that had it known overvaluation was an issue it would have asked that the issue be submitted to arbitration rather than to the jury. Issues not presented to the district court but raised for the first time on appeal are not properly before the court. Boone Coal & Timber Co. v. Polan, 787 F.2d 1056, 1064 (6th Cir.1986). Furthermore, “[sjince the appraisal process does not resolve any question of liability of an insurer but merely resolves the amount of losses suffered by the insured,” American Auto. Ins. Co. v. Kevreson, 131 Mich.App. 759, 763, 347 N.W.2d 1 (1984), appraisal is not a condition precedent to asserting a liability defense based on fraud and false swearing related to the claimed value of loss. V. Wyckoff also argues that once an insurance company denies a claim on certain grounds, it is bound to those defenses and is estopped from raising defenses not asserted in the denial letter. Therefore, according to Wyckoff, the trial court erred by allowing Standard Fire to defend liability at trial on the basis of fraud and false swearing regarding the value of losses claimed by Wyckoff, when the fraud alleged in the denial letter asserted false swearing only with regard to the origin of the fire. Wyckoff contends that although Standard Fire’s answer to plaintiffs complaint added the defenses of fraud and false swearing regarding plaintiffs financial condition and the proposed sale of a division of the business (Julie’s Family Portraits), and although these pleadings were subsequently supplemented by further assertions of fraud in the joint final pretrial statement (business interruption loss, value of property destroyed, relationship with the Bank), this manner of amending the proofs is improper and constitutes reversible error under Michigan insurance law. Wyckoff further contends that Standard Fire was allowed to present testimony at trial to support the theory that items which had not actually been destroyed by the fire were claimed on the proof of loss. The trial court committed error by not excluding this evidence and then submitting the issue to the jury, according to Wyckoff, as the assertion that undamaged items had been claimed does not appear anywhere in the pleadings or pretrial statement, and thus violates the notice requirements of Federal Rule of Civil Procedure 9(b) that “the circumstances constituting fraud or mistake shall be stated with particularity.” The short answer to plaintiffs arguments is that issues not presented to the district court but raised for the first time on appeal are not properly before this court. Boone Coal, 787 F.2d at 1064. With one exception, which we shall address in due course, plaintiff makes no claim and points to no portion of the record indicating that these arguments were presented to the trial court. However, even assuming the issue is properly before us, we reject plaintiff’s contention that allowing Standard Fire to amend its proofs was improper. It is entirely appropriate to allow a party to amend its theories to conform to the evidence, particularly where the evidence is under the control of another party. See Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir.1988). Plaintiff correctly asserts that, ordinarily, a denial of liability on specified grounds constitutes a waiver and estoppel of other defenses. Martinek v. Firemen’s Ins. Co.,

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?

UNITED STATES of America v. Abraham A. BROWNE. No. 11284. United States Court of Appeals Seventh Circuit. Aug. 17, 1955. Frank W. Oliver, Chicago, Ill., for appellant. Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Alexander 0. Walter, Anna R. Lavin, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee. Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges. MAJOR, Circuit Judge. Defendant, Abraham A. Browne, was jointly charged with Maxwell Riffkind (the latter under numerous aliases) in an indictment containing six counts, with the fraudulent use of the United States mails, in violation of Title 18 U.S.C.A. § 1341. The indictment alleged that defendants, pursuant to a scheme, defrauded or attempted to defraud certain enumerated insurance companies by making claims for losses which were fictitious. Such claims were presented by Riffkind, and in some instances the defendant Browne, a licensed and practicing attorney in the State of Illinois, was employed by Riffkind to conduct negotiations with the insurers with knowledge, so it was alleged, of their fraudulent nature. In pursuance of the scheme, each of the six counts of the indictment alleged a separate and distinct use of the mails in the Northern District of Illinois. Riffkind entered a plea of guilty, Browne a plea of not guilty. The latter was tried by a jury and Riffkind was a witness for the government. The jury found Browne guilty on, counts 2, .4, 5 and 6, and not guilty on count 1. The govern-; ment at the. conclusion of its case dismissed count 3. Counsel for Browne appropriately moved for a directed verdict on the basis that the government’s proof on all counts was insufficient to take the case to the jury. This motion, as well as the usual post-trial motions, was denied by the court and judgment was entered upon the verdict. Browne was sentenced to prison for terms of eighteen months on each of the four counts and fined $1,000. The judgment provided that the separate sentences were to be served concurrently. From this judgment Browne (hereinafter sometimes referred to as the defendant) appeals. The confusing situation attending the presentment of the case here is shown by the contested issues as stated by the opposing parties. The defendant states the contested issues as follows: “The trial court erred in denying defendant’s motions for dismissal and for judgment of acquittal at the close of the government’s case and at the close of all the evidence, because : “a. There was no proof of venue as to Counts II and VI of the indictment. “b. There was no proof of use of the mails as to Counts II and VI of the indictment. "c. The government’s evidence demonstrated that the defendant was not implicated in an unlawful transaction in Count IV of the indictment. “d. The government’s evidence demonstrated that no offense was committed or attempted as alleged in Count V of the indictment.” (Other issues are stated which need not be mentioned at this point.) The government states the contested issues as follows: “1. Is there sufficient evidence in the record to support a charge of aiding and abetting under 18 U.S.C. 2 as against the defendant on appeal? “2. As against the defendant on appeal, if he aided and abetted, then is it necessary to prove as to him all of the elements of venue and of the substantive offenses after confession of guilt by the principal defendant?” Thus, the government does not take issue with defendant’s contention that the proof was insufficient to take the case to the jury but attempts to excuse its failure to make proof, particularly as it relates to venue and use of the mails, on a theory that because defendant was an aider and abettor such proof was unnecessary, in view of the fact that Riff-kind had entered a plea of guilty and testified as a government witness. We shall first consider the situation as it relates to counts 2 and 6. Count 2 charged that the defendants caused to be delivered by mail at 175 West Jackson Boulevard, Chicago, Illinois, a letter addressed to the New York Casualty Company, 175 West Jackson Boulevard, Chicago 4, Illinois, Attn.: Mr. Gadwell, which had previously been placed in the mails for such delivery. A letter corresponding with that alleged in count 2, signed by A. A. Browne, was introduced by the government. Count 6 charged that the defendants caused to be delivered by mail at 170 West Jackson Boulevard, Chicago, Illinois, a letter addressed to the United States Fidelity and Guarantee Company, 170 West Jackson Boulevard, Chicago, Illinois, which letter had previously been placed in the mails for such delivery. The government in support of this count relies upon exhibit 5 — A, which is not a letter, as alleged, but an accident report signed by Philip Goldberg, in or on which defendant’s name does not appear. No stamped addressed envelope was introduced in support of the allegation that the exhibits relied upon in counts 2 or 6 were transmitted by mail. The government, consistent with its statement of contested issues, after referring to Riffkind’s plea of guilty states, “All that is left is to tie up the defendant Browne into Riffkind’s scheme,” and “If the principal pleads guilty to the substantive offense, then all that need be proved against the aider and abettor, even though he be charged as a principal, is that the defendant consciously and knowingly aided and abetted.” Three cases are cited in support of this argument: United States v. Klass, 3 Cir., 166 F.2d 373, 380; United States v. Carengella, 198 F.2d 3, 7-8, and United States v. Alexander, 219 F.2d 225, 226-227. (The last two named decisions are by this court.) We think there is not in these or in any other case of which we are aware the slightest support for the government’s theory. In fact, in the Klass case the court, in referring to the accessory statute, made the following statement, 166 F.2d at page 380: “It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted. [We think the court might also have added that it is immaterial that the principal has been convicted or entered a plea of guilty.] The aider and abettor may be charged with the substantive offense, and each participant must stand on his own two feet. [Citing cases.]” We think the government’s theory on this point is unsound. To countenance it would mean that one defendant by his admission of guilt, by plea of guilty or otherwise, could deprive any and all co-defendants of fundamental rights and privileges. To illustrate, the government claims that the letter set forth in count 2, purportedly signed by Browne (the same is true as to the exhibits described in some of the other counts), was mailed by Browne. Under the government’s novel theory, it would appear that because of Riffkind’s plea of guilty Browne was precluded from denying the authenticity of his signature to the letter (there is no proof that it was genuine), or that he wrote or mailed or caused to be mailed the letter as claimed. Nothing would have been left to him by way of defense other than to deny that he was a party to the scheme alleged. His plea of not guilty would have raised no other issue. However, if we indulge in the violent presumption that there is merit in the government’s contention, it would be of no benefit on the instant record because it is not ascertainable that Browne was convicted as an aider and abettor. The government claims that he was because the court gave an instruction on that point which was not objected to by the defendant. We think that if Riffkind had been tried, the same instruction might appropriately have been given as to him. Both parties were charged as principals and Browne was convicted as such, and we think it is a non sequitur to assert that because the court gave such an instruction, Browne was convicted as an aider and abettor. Certainly there is nothing in the verdict of the jury by which that question can be resolved. More than that, it is quite doubtful whether Bi’owne acted merely as an aider and abettor. It seems more reasonable to believe from the proof that his part in the scheme, if any, was that of a principal rather than an aider and abettor. The government, notwithstanding its statement of contested issues, attempts on other grounds to justify its failure to meet the issue, that is, that it failed to prove venue and use of the mails. It argues that defendant waived venue “by going to trial on the merits” and by taking the stand in his own behalf. A number of cases are cited in support of this argument, including Hagner v. United States, 60 App.D.C. 335, 54 F.2d 446; Ladner v. United States, 5 Cir., 168 F.2d 771, 773; Rodd v. United States, 9 Cir., 165 F.2d 54, 56; United States v. Gallagher, 3 Cir., 183 F.2d 342, 346; United States v. Karavias, 170 F.2d 968; United States v. Jones, 174 F.2d 746, and United States v. Chiarelli, 192 F.2d 528 (the last three named decisions are by this court). None of these cases support the contention. In Hagner, the indictment showed on its face that the court where the trial took place was without venue and it was held that the defendant waived venue by pleading and going to trial. In Ladner, the prosecution was for conspiracy and it was held that venue might be laid in any jurisdiction where an act of a co-conspirator took place. In Rodd, as in Hagner, the indictment did not allege venue in the jurisdiction where the trial took place and it was held that the defendant by going to trial on the merits without raising any question as to venue waived such defect. In Gallagher, the defendant entered a plea of guilty in a jurisdiction other than that alleged in the indictment. It was held that under Rule 20 of the Rules of Criminal Procedure, 18 U.S. C.A., this was permissible and that there was a waiver on the part of the defendant. In Karavias and Chiarelli, there was no issue as to waiver of venue. In each of those cases this court held that under the proof venue might be inferred. In Jones, there also was no issue as to the waiver of venue and the court held that venue could not be inferred from the circumstances in proof. In the instant situation admittedly venue was properly alleged. The point is that there was no proof of the allegation. Obviously, the defendant did not have knowledge at the time he went to trial that the government would fail to prove the allegation of the indictment with reference to venue. Such failure could not have been known to the defendant until the government had concluded its case. At that point the defendant, upon such failure on the part of the government was entitled to a directed verdict. This is a square holding by this court in United States v. Jones, 174 F.2d 746. See also United States v. Provoo, 2 Cir., 215 F.2d 531, 537. It appears that the defendant made only a general motion for a directed verdict and the government asserts that proof of venue was waived by failure to specifically designate such failure as a basis for such verdict. Again, United States v. Jones has decided this question adversely to the government’s contention. In doing so the court stated, 174 F.2d at page 748: “The motion for a directed verdict raises the question as to the sufficiency of the evidence to support the verdict of a jury or finding of the court. One of the things the Government has the burden of proving is venue. It is an essential part of the Government’s case. Without it, there can be no conviction. [Citing cases.]” The government, without calling our attention to any testimony and without any record citation, resorts to the stock argument that venue is shown when the record is considered as a whole. The courts in some cases have so held but in all such cases it will be found that there was proof of circumstances from which venue could be inferred. We doubt if it is the responsibility of a reviewing court, without any aid from the government, to search a voluminous record for a tidbit of evidence from which venue may be inferred. Furthermore, a reviewing court should not be expected to close its eyes to the record and surmise that after all venue could have been proven. As was stated in United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236, “Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure.” In discussing the issue of venue, the court in United States v. Jones, supra, stated, 174 F.2d at page 748: “It is an essential part of the government’s case. Without it, there can be no conviction.” Use of the mails in the execution of a scheme, like venue, is an essential element which must be proved by competent evidence. As was stated in United States v. Berg, 3 Cir., 144 F.2d 173, 174: “Though the formation of a scheme to defraud is essential, the gist of the offense charged in each count is the mailing of the letter in furtherance of the scheme. That is the crux of the offense, and it must be proved by competent evidence." And as stated by this court in Mackett v. United States, 90 F.2d 462, 464: “That the use of the mail is the gist or corpus of the crime is so well established as to require no citation of authority, and must, of course, the same as other essential ' elements, be proven beyond a reasonable doubt.” See also Brady v. United States, 8 Cir., 24 F.2d 399, and United States v. Baker, 2 Cir., 50 F.2d 122. The proof, if it can be dignified as such, which relates to both venue and use of the mails as alleged in counts 2 and 6, may be briefly stated. The false claim concerning which the letter in count 2 was alleged to have been mailed related to the case of Riffkind v. Goldberg. A number of exhibits, including 2-B (the count letter), were identified by the witness Gadwell and introduced in evidence. He testified that letters and other documents were received by a central office of the New York Casualty Company, where they were referred to a claim department and finally delivered to the person handling the particular claim. It was as a result of this procedure that exhibit 2-B came to his desk. He admitted that some of the exhibits pertaining to this claim were delivered to him personally by Browne. Our attention is called to no proof and we find none that the New York Casualty Company had an office in Chicago, or as to the location of its claim department or central office, or as to where Gadwell was located at the time the letter was delivered to his desk. There was no proof that the letter (2-B) was received by the witness or by any other person connected with the insurance company in a stamped addressed envelope. (This is a circumstance if shown, much relied upon by some of the cases as creating an inference that the letter was received through the mails.) It is true that Gad-well at one point testified that the letter was received through the mails but it is conclusively demonstrated by his testimony that he had no knowledge that such was the fact and that his statement was nothing more than a matter of opinion. This was not sufficient. See Mackett V. United States, 7 Cir., 90 F.2d 462, 464, and cases therein cited. There was no competent proof either of venue or of use of the mails as alleged in this count. As to count 6, the testimony relative to the issues under discussion is even more defective, if that be possible. In that count it was charged that a letter was delivered by mail to the United States Fidelity and Guaranty Company, 170 West Jackson Boulevard, Chicago, Illinois. No such letter as alleged was introduced but the government relies in support of this count upon exhibit 5-A, which is an accident report prepared by Riffkind. We think there is merit in defendant’s contention that a conviction cannot be sustained on this count because of a variance between the allegation and the proof. However, we need not rely upon this discrepancy because there is no proof either as to venue or that the exhibit was received through the mails. Garr, a supervisor of personal injury claims for the United States Fidelity and Guaranty Company, testified that the accident report (exhibit 5-A) was placed on his desk and, when asked how it was received, testified: “A. I would say it came in the mail * * *. “The Court: The answer is yes or no. “The Witness: I don’t know. “The Court: Oh, the answer is no, you don’t know? “The Witness: No.” Again no stamped addressed envelope was introduced in which the exhibit was or might have been received. The witness admitted that accident reports reach the company both by mail and by personal delivery. There is evidence that the home office of Fidelity was in Baltimore, Maryland, and that it had an office in Chicago, but there is no proof that the accident report was received in the Chicago office. More than that, Riffkind, who prepared the report, testified as a witness for the government that he filed it with the insurance office, which militates against an inference that it was received through the mails. As to this count, the government’s proof of venue and mailing is fatally defective. As previously shown by defendant’s statement of contested issues, the attack upon the conviction under counts 4 and 5 is that the court erred in its refusal to direct a verdict because the proof was insufficient to implicate or connect Browne with the offenses therein charged. No question is made as to venue or proof of mailing as alleged in these counts. Count 4 charges that the defendants, for the purpose of executing the scheme to defraud as theretofore alleged, on or about July 20, 1949, “did mail and cause to be mailed at Chicago, Illinois, a letter addressed to Mr. A. Mazzoni, Potomac Insurance Company, 175 West Jackson Boulevard, Chicago, Illinois, to be sent and delivered by the Post Office Establishment of the United States.” Count 5 alleges that the defendants, for the purpose of executing the scheme to defraud as theretofore alleged, did on or about July 29, 1949, cause to be delivered by mail a letter addressed to the same insurance company and at the same address as that alleged in count 4. Both of these counts relate to claims made by reason of the asserted loss sustained by theft of certain fire arms insured by the Potomac Insurance Company. The claim relative to count 4 was in the amount of $1,500, predicated upon the loss by theft of an Italian Miquelet rifle purportedly of the value of $1,500. (This claim is sometimes referred to as the second gun loss.) The claim relative to count 5 was predicated upon the loss by theft of four guns stolen from Riffkind’s car early in 1949. (This claim is sometimes referred to as the first gun loss.) In examining the proof as it relates to these two counts, we assume that there was proof from which a jury could have found that Browne was a party to some of the schemes devised by Riff-kind to defraud insurance companies. We indulge in this assumption notwithstanding that the proof against Browne is less convincing than the government would have us believe. No proof is called to our attention, and we find none, that Browne received any of the profits or money obtained by Riffkind as a result of his fraudulent conduct. In any event, it is not the scheme to defraud which the federal statute condemns but only the use of the mails in its execution. It is that use which constitutes the corpus delicti of the offense. It is, therefore, evident that each count constitutes a separate and distinct offense. Even so, the facts and circumstances in proof which form the basis for the charges contained in counts 4 and 5 are so closely related that they may appropriately be considered together and, inasmuch as the original events relative to count 5 occurred prior to those concerned with count 4, we think it more logical to state first the facts as they pertain to count 5. In January, 1949, Riffkind claimed that four guns were stolen from his automobile, occasioning a loss of $535. Riffkind reported this loss to the insurer which, after an investigation, replaced the guns at a cost of $535. The draft drawn for this purpose was dated March 21, 1949. On July 20, 1949, Riffkind filed a claim against the same insurer for $1,500, purporting to be the value of an Italian Miquelet rifle. Claim for this loss by a letter prepared by one Singer (the alleged insured) was presented to the insurer by Riffkind, although it had previously been reported by telephone by one Gaston. Upon investigation by the insurer, it was ascertained that Riffkind and Gaston were one and the same person and that the claim was fraudulent. Riffkind, under the name of Gaston, on July 23, 1949, signed a statement that the claim for loss was a mistake and released the insurer from all claims in connection therewith. Nothing was paid by the insurer on this false claim. Riffkind, on the same date that he released the insurer, made an appointment with Browne by telephone. Browne, a day or two later during a personal meeting with Riffkind, was informed that the claim for the second gun loss was fraudulent and that the insurer was suspicious of the first gun loss. Riffkind also requested Browne to see the insurer and find out what it was all about. Browne went to the office of the insurer on July 26, 1949. There is no proof that he had any connection with either the first or second gun loss prior to that time. Two of the insurer’s employees, Reid and Mazzone, testified as to the conversation with Browne on the occasion of his visit to the insurer’s office. We assume that the government has stated the facts relative to count 5 in the light most favorable to it and that we can do no better than reiterate the facts so stated. “The record makes it clear that there was, in fact, a theft and further, that a claim could legitimately have been made of the insurer. The taint upon the transaction was occasioned by the irresistible propensities of Riffkind, whose past deviations apparently caused him to color this otherwise valid one. He lost three guns and claimed and received replacement of four. He then sold the guns for $250. Subsequently, the insurer summoned Riffkind in to discuss the claim, and Riff-kind contacted Browne to ‘go down and see what they want.’ Browne went to see the witness Mazzone, who took him to the office of the witness Reid. Mr. Reid informed Browne that their investigation indicated that the insurer should be reimbursed in the amount expended in the replacement of the guns [first gun loss]. Browne offered a compromise of $250 or $200. The conversation was concluded without accomplishment and two or three days later Browne wrote the count letter [dated July 28, 1949] (Exhibit 3-C),” which read as follows: “Gentlemen: “Relative to the matter of Maxwell Riffkind, please be advised that after an examination of all the facts and conferences with certain individuals involved in this matter I have come to the conclusion that, in my opinion, Maxwell Riffkind did not perpetrate any frauds upon your insurance company, and further that the loss sustained by him in the first instance six months ago was a bona fide and legitimate loss and if any irregularities has existed, may I suggest that you investigate the transactions of the gun seller and certain other individuals in this matter. “Therefore under the circumstances I am advising Mr. Maxwell Riffkind to stand by his guns and will even stand further investigation. “Very truly yours, “[Signed] A. A. Browne” Riffkind as a witness for the government testified that all his conversations with Browne about this claim (first gun loss) were to the effect that it was legitimate, and there is no proof that Browne had knowledge or reason to think that this loss was other than authentic until his interview with the agents of the insurer. Even at that time the latter did not state that the claim or any portion of it was fraudulent. At the most it appears that the insurer had .become suspicious of this first loss because of its discovery of fraud in connection with the second loss, and that Browne had suggested that Riffkind reimburse the insurer to the extent of the amount which Riffkind had received for the guns replaced by the insurer. Browne, relying upon the information furnished him by his client, Riffkind, that the first gun loss was legitimate (admitted by the government to have been legitimate in part), wrote the count letter dated July 28, 1949. The letter speaks for itself hut it should be noted that it refers only to the first gun loss, about which he was interviewed by the insurer’s agents. In •our view, it does not afford the slightest support to the charge that it constituted a use of the mails to obtain money pursuant to a scheme to defraud. It is feebly suggested by the government that even though the money alleged to have been fraudulently obtained by Riffkind had been paid to him many months before, Browne’s letter was of the “typical lulling variety, patently calculated to stem inquiry into the fraud, to deflect further investigation in the direction of strangers,” and that as such it aided in the furtherance of the scheme. United States v. Bowcott, 7 Cir., 170 F. 2d 173, is cited in support of this argument. There is no similarity, however, between the facts of that case and those here. If this letter can be properly characterized as of the “lulling” variety, it would seem that any letter written by an attorney concerning a controverted claim would fall in the same category. It is too much to believe that an insurance company with all of its experience and means for investigating claims and detecting fraud can be so easily put off guard, and it cannot be reasonably inferred from the letter or other proof that Browne’s letter was intended for or that he expected such a result. There should have been a directed verdict as to this count. The facts relied upon as a basis for the charge contained in count 4 have partly been related. The fraudulent claim admitted to have been such was presented to the insurer by Riffkind in •a letter dated July 20,1949. It was after that time, as well as subsequent to the discovery of the fraudulent nature of the claim by the insurer, that Browne was shown to have had any knowledge concerning it. There is proof that he had knowledge of its falsity prior to his interview with the insurer’s agents at its office on July 23, 1949, as heretofore related. With reference to that visit, the government in its brief states: “Browne went to the company and saw Mr. Maz-zone and Mr. Reid. He told them that so long as the company had not paid out on the claim, it had lost no money, so he felt that Riffkind owed it nothing.” This is the only proof relied upon by the government to connect Browne with the offense charged in this count. A reading of the testimony of the witnesses Reid and Mazzone makes it plain, however, that the major portion of their conversation with Browne related to the first gun loss, and that the second loss was referred to only incidentally and that during such reference Browne made the statement above quoted. It is not discernible how that statement made after the fraudulent claim had been submitted and subsequent to the time of the discovery of the fraud by the insurer furnishes any support for the charge that Browne used or caused the mails to be used in the execution of a fraudulent scheme. Assuming that Browne had knowledge of the fraudulent claim, and there is proof that he did, and that he went to the office of the insurer for the purpose of discussing such claim (the proof shows that he did not but that the same was mentioned only incidentally), we would still doubt if the proof was sufficient to connect Browne with the offense charged. He committed no act relative to the fraudulent presentation of the claim and made no statement with reference to it other than to express the opinion that Riffkind owed nothing because the claim had not been paid. The record reveals that the trial court was skeptical concerning the propriety of admitting exhibit 4-G (the fourth count exhibit). At the time this exhibit was first offered (together with other exhibits), the court on defendant’s objection stated to government counsel, “You will admit that as to the letters that are offered, the exhibits do not tie in the defendant?” to which government counsel replied, “I will have to admit that much.” The court sustained the objection, with the statement that counsel might renew the offer at the close of the government’s case. Later in the trial and while Riffkind was on the witness stand, exhibit 4-C was again offered. On objection, government’s counsel stated, “We will tie them up.” The court admitted the exhibits, including 4-C, “on the assurance of the United States Attorney that there will be something to indicate that the exhibits go to prove some of the issues here in this case.” Notwithstanding the basis, however, on which exhibit 4-C was admitted, there was no further testimony by the government which connected the exhibit with Browne. In fact, the only testimony which followed the admission of the exhibit under the circumstances related was the cross-examination of the witness Riffkind, who completely exonerated Browne of having any knowledge of fraud with reference to the first gun loss and likewise exonerated him from being a party to the attempt to defraud the. insurer as to the second gun loss. We think that exhibit 4-C should not have been admitted but that in any event the proof was insufficient to justify a conviction. Other issues have been -raised which we find unnecessary to relate or discuss. It is our judgment that the government’s proof was insufficient,. for the reasons stated, to take the case to'the jury on any of the four counts. The judgment of conviction as to each count is, therefore, 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 "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?

Roberto HAU, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. No. 77-1505. United States Court of Appeals, First Circuit. Argued Feb. 15, 1978. Decided May 17, 1978. Francisco Castro Amy, San Juan, P.R., for plaintiff, appellant. Jose A. Anglada, Asst. U.S. Atty., Chief, Civ. Div., San Juan, P.R., with whom Julio Morales Sanchez, U.S. Atty., San Juan, P.R., was on brief, for defendant, appellee. Before CAMPBELL, MOORE and BOWNES, Circuit Judges. Of the Second Circuit, sitting by designation. MOORE, Circuit Judge: This is an appeal from a judgment granting the motion of the United States of America (Government), defendant-appellee, to dismiss the claim of plaintiff-appellant, Roberto Hau, for lack of jurisdiction on the basis that he had filed his administrative Federal Tort claim against the Veterans Administration after the running of the statute of limitations under 28 U.S.C. § 2401(b), and for reasons hereinafter stated, that judgment is affirmed. I. On August 26, 1974 Roberto Hau was admitted to the Veterans Administration Hospital (Hospital) in Rio Piedras, Puerto Rico, for treatment of renal insufficiency and arterial hypertension. On September 4, 1974 an arteriogram was performed through the right femoral artery. Following the examination Hau suffered swelling and pain in the lower right extremity. When the pain persisted, he sought treatment from two different practitioners in his hometown of Isabela, Puerto Rico. They suggested that he see a specialist, but according to Hau’s affidavit, “[n]one of them gave me an opinion or diagnosis, but only prescribed medication for the pain.” App. 19. Hau visited the Hospital and attempted to see Dr. Cardona, Chief of Outpatient Services, to arrange an appointment with a specialist. Dr. Cardona was unavailable, so Hau sent a letter to him on November 11, 1974. The letter stated in part as follows: “I came to see you at your office but it was impossible to see you since you were in a meeting. I talked there with Dr. Medina. He wanted me to be seen by a •general practioner. The physicians who are treating me at Isabela and Arecibo understand that I should be seen by specialists. I have lost strength in the right leg where I was subjected to an arterio-gram. A section of this same leg has no sensibility; and where the needle was introduced, I have a hard lump. I understand that due to the negligence of the hospital I have become disabled from that leg.” (emphasis supplied) (translated from the original in Spanish). App. 11. No specialist was provided by the Hospital, but on March 19,1975 Hau visited a specialist, Dr. Arbona, whom Hau had found independently. Dr. Arbona indicated in his report that “[t]he patient associates these symptoms with a renal arteriogram performed through the right femoral artery.” App. 22. However, he diagnosed the problem as a “femoral nerve injury, affecting mainly sensory branches, cause undetermined”. Id. On September 2,1976, two days less than two years after the arteriogram, Hau filed a complaint under the Federal Tort Claims Act (Act), 28 U.S.C. § 2671 et seq., alleging malpractice against the Hospital. This suit was voluntarily dismissed on November 30, 1976 after the Government moved to dismiss for failure to exhaust administrative remedies, based on appellant’s previous failure to institute an administrative claim. Hau then instituted, on December 10, 1976, an administrative claim with the Veterans Administration District Office in San Juan, two years and one month after he wrote the letter to Dr. Cardona. While the administrative claim was pending, on March 2, 1977 Hau visited another specialist who diagnosed Hau’s illness as “[njeuropathy, probably post-traumatic to needle introduction at the time of arteriography through the right femoral artery”. App. 24. The Veterans Administration denied the claim on April 18,1977, based on the expiration of the statute of limitations. Hau then brought this action in the district court, claiming negligent conduct on the part of the employees of the United States. The district court granted the Government’s motion to dismiss on the ground that the claim was not brought within the two year statute of limitations for tort claims against the United States. Appellant appeals from this dismissal. II. Hau argues that in spite of his November 11, 1974 imputation of negligence against the Hospital, he in fact had no knowledge regarding the exact nature and cause of the injury sufficient to draw the conclusion that the acts which damaged his leg could constitute malpractice. He argues that he first learned that the femoral nerve of his right leg was damaged when he was examined by Dr. Arbona on March 19, 1975 and that he did not learn of the cause of the damage until the examination on March 2, 1977. Therefore, Hau argues, his application to the Veterans Administration was timely filed. A tort claim against the United States is covered by a two-year statute of limitations. The Act provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .” (emphasis added). 28 U.S.C. § 2401(b). In determining when a claim accrues, for purposes of the Act, this Circuit, unlike other circuits which follow federal law, follows the lex loci rule — the applicable law is the law of the state where the claim arose. Caron v. United States, 548 F.2d 366 (1st Cir. 1976); Tessier v. United States, 269 F.2d 305 (1st Cir. 1959). Thus, the date when Hau’s claim accrued is to be determined by the law of Puerto Rico. In this regard Puerto Rican law and federal law are the same, because the Puerto Rican Civil Code dates the accrual of an injury “from the time the aggrieved person had knowledge thereof”. 31 L.P.R.A. § 5298. Neither party presented any cases indicating that the Puerto Rican statute was interpreted differently from the federal rule, and, indeed, both parties as well as the district court relied on interpretation of the federal law. The federal law with respect to accrual of a claim is that “a claim for malpractice accrues against the Government when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice”. Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). We have examined the cases cited by appellant in support of his contention that he was not aware, until 1975 at the earliest, of possible malpractice. None of the cases cited, or any others which we have examined, provide a dispositive answer as to when the appellant should be deemed to have discovered that malpractice occurred. Instead, the particular factual circumstances of this case must be examined to determine the time of appellant’s discovery of the alleged malpractice. No evidence in the record indicates that at the time of the arteriogram, Hau knew or should have known about any negligence. He was told, according to his affidavit, that some swelling and pain were natural results of the procedure. However, when the pain persisted he was examined by two doctors in his local community, who advised him to seek a specialist. The letter written to Dr. Carbona indicates that, at least by November 11, 1974, Hau was aware of the harmful effects of the treatment and that the Hospital allegedly committed acts constituting malpractice. He clearly stated in the letter, after describing his symptoms, “I understand that due to negligence of the hospital I have become disabled from that leg”. App. II. The district court determined that “the letter of November 11, 1974 contains Plaintiff’s express and unequivocal imputation of negligence on the part of the Veteran [sic] Administration Hospital and convinces this Court that, as of that date, the Plaintiff was well aware of facts which would have led a reasonable man to believe, as he was indeed led to believe, that he had been negligently treated at the Hospital”. App. 29. As stated in Reilly v. United States, 513 F.2d 147 (8th Cir. 1975), “[W]hen the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run against the appellant’s cause of action”. Id. at 150. The statement in the letter indicates that Hau was well aware that the medical procedure may have been negligently performed. Thus, the cause of action accrued no later than November 11, 1974. Once the date of accrual of a claim is determined, as here, with certainty, the appropriate statute of limitations must be applied strictly. The dismissal for lack of jurisdiction is AFFIRMED. . 28 U.S.C. § 2674 provides in part: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . Malpractice suits against the Veterans Administration are included: “[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . for . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . 28 U.S.C. § 1346(b). . Portis v. United States, 483 F.2d 670 (4th Cir. 1973); Tyminski v. United States, 481 F.2d 257 (3d Cir. 1973); Toal v. United States, 438 F.2d 222 (2d Cir. 1971); Kington v. United States, 396 F.2d 9 (6th Cir. 1968); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962); Ashley v. United States, 413 F.2d 490 (9th Cir. 1969). . Appellant relies particularly on Johnson v. United States, 271 F.Supp. 205 (W.D.Ark. 1967); Toal v. United States, supra, n.2; Ty-minski v. United States, supra n.2; Portis v. United States, supra n.2. . That this statement was not mere idle use of words is buttressed by Hau’s statement to Dr. Arbona on March 19, 1975 that he associated the symptoms with the arteriogram.

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

Augusta PARKER, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent. No. 18372. United States Court of Appeals, Seventh Circuit. March 29, 1971. J. Chester Allen, Jr., South Bend, Ind., Sophia H. Hall, Chicago, Ill., for petitioner. Myles F. Gibbons, Gen. Counsel, Dale G. Zimmerman, Railroad Retirement Board, Chicago, Ill., David B. Schreiber, Associate Gen. Counsel, Railroad Retirement Board, for respondent; Louis Turner, Chicago, Ill., Railroad Retirement Board, of counsel. Before CASTLE, Senior Circuit Judge, KILEY and PELL, Circuit Judges. KILEY, Circuit Judge. This Petition, under the Railroad Retirement Act, for review of a decision of the Railroad Retirement Board (Board) presents the question: whether substantial evidence in the record supports the Board’s decision that petitioner Parker is not entitled to a disability annuity because he is mentally and physically able to engage in regular employment. We hold that the record evidence does not give the requisite substantial support and we set aside the decision. Parker worked as a section laborer for the New York Central Railroad (Railroad) from 1945 to April 7, 1964, when Railroad doctors found him unfit to do the work. His personal doctor examined him and reported to the Railroad Retirement Board that Parker, then 35 years old, suffered from chronic duodenal ulcer, a deformed left elbow and an old lumbo-sacral strain. In November, 1964, Parker applied for an annuity under Section 2(a) (5) of the Railroad Retirement Act, 45 U.S.C. § 228b(a) (5). The Bureau of Retirement Claims on November 29, 1965 found Parker not disabled from regular work and denied the claim. An attorney filed a second application on April 7, 1966. The Board denied the application in October, 1966 and March, 1967. The Appeals Council, on June 24, 1968, affirmed the Board’s denial of Parker’s application. The Appeals Council decision was affirmed by the Board and the petition for review before us followed. A Board’s decision should not be disturbed if there is substantial evidence in the record to sustain the Board’s findings on which its decision is based and the decision is not arbitrary or legally incorrect. Schafer v. Railroad Retirement Board, 217 F.2d 874, 875 (7th Cir. 1954); Mahoney v. Railroad Retirement Board, 194 F.2d 752, 756 (7th Cir. 1952). See also Webb v. Railroad Retirement Board, 358 F.2d 451, 455 (6th Cir. 1966). Parker contends, however, there is not substantial evidence in the record to support the Board’s decision that he was mentally and physically able to engage in any regular employment. The record discloses that Parker suffers painful discomfort arising from four sources: (1) a deformed left elbow which has limited motion, (2) an arthritic left knee causing a “slight limp,” (3) a painful back condition, variously diagnosed as a “lumbo-sacral strain” and “lumbo-sacral sprain with left sciatic neuritis,” (4) a “chronic, recurring duodenal ulcer.” Also, there is agreement that Parker complained to doctors of headaches and dizziness. There is some disagreement among the examining doctors with respect to whether Parker suffered from a heart ailment. The Board found that Parker’s physical condition was not such that he was unable to engage in any regular employment within the meaning of Section 2(a) (5) of the Act. It noted that Parker’s present physical condition did not appear “worse in any substantial respect than it was while he was working.” The Board further found that Parker’s principal disability was apparently due to his psychological condition, but noted that Parker did not appear to be unduly anxious or depressed, showed “no evidence of disturbed thought association, hallucinations or delusions,” and that “while he admitted to a general feeling of tension, he felt himself without problems other than his physical conditions.” The Board also found that his mental condition, taken alone or with his physical ailments, did not render him disabled. The Board concluded that Parker could work, but had made no attempt to and is unlikely to do so in the future. We think the Board erred in the ground of its decision. The critical issue in our view is whether Parker’s psychic problem put recognition of his ability to work beyond his control. If Parker’s psychic disorder, oriented to his physical ailments, has induced the hysteria compelling the belief that he is physically disabled, and if it is shown that that uncontrollable belief will probably result in death or has lasted, or will probably last, continuously for at least twelve months, he is entitled to the annuity. See Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967); Mullins v. Cohen, 296 F.Supp. 181 (W.D.Va.1969). Cf. Mode v. Celebrezze, 359 F.2d 135, 136 (4th Cir. 1966); Biggs v. Celebrezze, 356 F.2d 234 (4th Cir. 1966); Ber v. Celebrezze, 332 F.2d 293, 299 (2nd Cir. 1964). It is difficult for us to determine on this record whether the Board reached this critical issue. If the Board did reach the issue and did determine that Parker’s psychic condition was not such as to render him disabled under this test, we believe that such a determination is not supported by substantial evidence. The two psychiatrists who examined Parker, Dr. Payne and Dr. Moir, described his mental condition as a “psychophysiologic and psychoneurotic disability” and a “psychophysiologic musculoskeletal reaction, by way of a conversion reaction.” It was the opinion of Dr. Payne and Dr. Erlandson, a vocational psychologist, that it was unlikely that Parker’s understanding of his condition would alter in the future, that he was a poor therapeutic candidate, that a denial of disability would probably prolong his symptoms, and that he might not ever again become a productive member of our economy. Dr. Payne stated that Parker was not consciously malingering, a fact found especially significant in other cases involving psychoneurosis, and no doctor stated that he was. Dr. Payne stated Parker generally believed himself incapable of working because of his physical ailments, a condition borne out by the report of Dr. Moir. Several doctors commented on Parker’s unconscious lack of motivation and the Board apparently considered this the heart of Parker’s problem and denied benefits on this basis. This emphasis on lack of motivation. in a case such as the one before us is erroneous. As stated by the Sixth Circuit in Branham v. Gardner, supra, at 633: Under ordinary circumstances, a Hearing Examiner’s finding that an applicant for disability benefits lacked the motivation to work would be entitled to some weight; but when the applicant is suffering from psychoneurosis, lack of motivation to work is irrelevant. In such an affliction, it is held that lack of such motivation to work is, in itself, one of the symptoms of the disorder from which appellant admittedly suffers. See also Mullins v. Cohen, 296 F.Supp. 181, 185 (W.D.Va.1969). And the Board’s finding that none of the examiners indicated that Parker’s condition “would not improve with proper treatment, or if he would go to work,” cannot be taken as a finding of a failure to meet the statutory test of an illness of long-continued and indefinite duration which has substantial evidence. As noted by the Second Circuit in Ber: A mere failure to supplement the above evidence of an illness of indefinite duration with a report by an examining psychiatrist that, whatever the effect of a neurosis on claimant’s condition, that neurosis is intractable to therapy, cannot bar the grant of disability benefits to the claimant. At the very least, “the applicant has raised a serious question and the evidence affords no sufficient base for the Secretary’s negative answer.” 332 F.2d at 300. We conclude that the record does not contain substantial evidence to support the Board's determination that the claimant was able to engage in substantial gainful employment. There is substantial evidence to the contrary. The application has been pending now for over six years and we see no reason to remand the case for the taking of further testimony. See Mode v. Celebrezze, supra, at 137. Accordingly, the judgment is reversed, and the case remanded to the Board for the allowance of disability benefits payments to petitioner. . 45 U.S.C. § 228a et seq. . Charged with administration of the Act. 45 U.S.C. § 228j. . Parker had worked for the Railroad for 19 years. The determination that he was “unfit” was made approximately one year before he would have been eligible for occupational disability compensation under § 2(a) (4) of the Act, 45 U.S.C. § 228b (a) (4). . Section 2(a) (5) of the Act provides, in pertinent part, as follows: Sec. 2. (a) The following-described individuals, if they shall have been employees on or after the enactment date, and shall have completed ten years of service, shall * * * be eligible for annuities after they shall have ceased to render compensated service to any person, whether or not an employer as defined in section 1(a) (but with the right to engage in other employment to the extent not prohibited by subsection (d)): * * * * * 5. Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment. . Pursuant to the authority granted by Section 10(b) (4) of the Act, 45 U.S.C. § 228j(b) (4), the Board promulgated the following regulation regarding the establishment of permanent disability for work in any regular employment: An individual shall be deemed to be permanently disabled for work in any regular employment if he has a permanent physical or mental condition, as that term is defined in § 208.10, and he is because of such condition unable to perform regularly, in the usual and customary manner, the substantial and material duties of any regular and gainful employment which is substantial and not trifling, with any employer, whether or not subject to the act. 20 CFR 208.17(a). The Section 208.10 referred to in the above quotation provides, in so far as is pertinent here, as follows: * * * [T]he term “permanent physical or mental condition” means a physical or mental impairment that can be expected to result in death or has lasted, or can be expected to last, for a continuous period of not less than 12 months. 20 OFR 208.10(a). . Although these eases involve suits against the Secretary of Health, Education and Welfare for disability annuities under the Social Security Act, the same rules apply to decisions of the Railroad Retirement Board. Duncan v. Railroad Retirement Board, 375 F.2d 915, 917-918 (4th Cir. 1967). . Psychoneurosis has been defined as: “Emotional maladaptations due to unresolved unconscious conflicts. One of the two major categories of emotional illness, the other being the psychoses. A neurosis is usually less severe than a psychosis, with minimal loss of contact with reality. Thinking and judgment may be impaired. A neurotic illness represents the attempted resolution of unconscious emotional conflicts in a manner that handicaps the effectiveness of a person in living.” See “A Psychiatric Glossary,” (Second Edition 1966) (an official manual of terms published by the American Psychiatric Association, quoted in Branham v. Gardner, 383 F.2d 614, 619 (6th Cir. 1967)). . “Serious disturbances of any organ system caused by prolonged, unresolved emotional conflict.” See Branham v. Gardner, supra at 623. . “ * * * a reaction in which unacceptable unconscious impulses are converted into bodily symptoms. Instead of being experienced consciously, the emotional conflict is expressed by physical symptoms.” See Branham v. Gardner, supra at 619. . See Branham v. Gardner, 383 F.2d 614, 632 (6th Cir. 1967); Mode v. Celebrezze, 359 F.2d 135, 136 (4th Cir. 1966); Ber v. Celebrezze, 332 F.2d 293, 300 (2nd Cir. 1964). . Neither psychiatrist stated whether or not Parker was disabled. Dr. Payne’s report concluded: “Whether or not this [psychological] condition should be considered permanently totally disabling is essentially an administrative decision.” The only doctor to make a statement as to whether or not Parker was disabled was Dr. Woodford, his personal physician, who stated that Parker was physically disabled. . The court in Ber reversed the judgment in favor of the Secretary of Health, Education and Welfare, and remanded the cause to the district court with instructions to enter judgment in favor of appellant.

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

WILLIAMS et al. v. ALLIED METAL PRODUCTS CORPORATION. No. 7810. Circuit Court of Appeals, Sixth Circuit. Nov. 10, 1939. Arthur W. Dickey, of Detroit, Mich. (Harness, Dickey, Pierce & Hann, of Detroit, Mich., on the brief), for appellants. Stuart C. Barnes, of Detroit, Mich. (Barnes, Kisselle, Laughlin & Raisch, Stuart C. Barnes, and A. F. Baillio, all of Detroit, Mich., on the brief), for appellee. Before HICKS, HAMILTON, and ARANT, Circuit Judges. ARANT, Circuit Judge. This is a suit for infringement of U. S. Letters Patent No. 1,771,386, dated July 22, 1930, covering molding for automobile bodies, Appellant, Leo L. Williams, is owner of the patent, and appellant, Herron-Zimmers Moulding Company is exclusive licensee. Appellee, Allied Metal Products Corporation, maker and vendor of moldings alleged to infringe, has denied infringement and challenged the validity of appellants’ patent. The District Court, holding that there was no infringement, considered it unnecessary to pass upon the patent’s validity. ' Roof and drip moldings for automobiles were old and well known in the art when appellants’ patent was filed. Appellants do not claim this patent to be the first covering a “fold-down” type of molding. Nor is such a claim made as to a prior patent, No. 1,714,478, granted to appellant Williams in 1929, showing and claiming a “fold-down” metal roof and drip molding. • In the roof molding, malleable metal flanges or wings fold down to abut edge to edge; in the drip molding, the wing folds down to abut against a shoulder; in each, the edges are hammered together so as to swage or “cold-weld” the metal at the joint to form an even, homogeneous surface in which the seam is obliterated. The patent in suit is similar to the first Williams patent, except that grooves are provided at the bases of the wings in such manner as to leave, at the center of the strip, an upstanding thickened portion or rib through which nails are driven. At their free ends, the wings are bent outwardly with a slight reverse curve .that is not present in the first patent. After the molding is attached, the wings are folded-over onto the raised portion or rib at the center and swedged together as on an “anvil.” The relief of the metal at the base makes folding of the wing easier, and appellants allege that it prevents the occurrence of ridges or distortions of the contour at the base of the wing, which are said to occur in folding the wing of the molding of the first Williams patent. When the application for this patent was first filed, claims were presented specifying merely the relief groove. The Examiner ruled that merely cutting away a portion of the stock to facilitate bending was not patentable. The patent was later allowed, however, after the claims were so changed as to specify an arrangement of abutting edges or edge and shoulder, such as was claimed in Williams’ prior patent, together with a relief groove “whereby the groove may receive the extra fullness of metal when the shoulder portions come into solid • abutting relation.” The evidence shows that in the fall of 1929, the Fisher Body Corporation began a very extensive use of appellee’s molding and that a large number of cars with its molding appeared on the streets. Before the six months’ period in which to pay the final fee expired, appellant filed a renewal application. On February 1, 1930, the amendment of the application, specifying the relief groove as space to receive the flow of the metal occasioned by wing-bending, was superseded by the following statement: “The primary purpose and most important function thereof is not to facilitate the bending about the base of the lip as a hinge point, but to distribute and limit the bending between the free edge of the lip and a point or line a short distance from the base of the lip so that when the molding is closed it will have the desired or predetermined exterior shape and curvature in conformity with the exterior curvature which the open or originally extruded molding has at and adjacent the base of the lip, the curved shape at this point being unchanged- in the closing operation.” (Italics added.) The three claims allowed under appellants’ patent do not differ materially. Claim one is as follows: “A molding of malleable metal in the form of an open channel having a base through which attaching devices are adapted to be inserted from the channel opening intermediately-of the edges of the molding and a, wing integral with the base and fold-able down onto the base over the attaching devices, one of said parts of the molding having a relatively thick portion projecting interiorly of the channel intermediately of the edges thereof and engaging with the other part in the closing operation to serve as a stop to limit the inward swinging movement of the wing in the closing operation and to insure.a predetermined external contour to the closed molding.” In summary, Williams’ first patent claims a means of securing a concealed seam, and an even surface by the use of a “fold-down” type of malleable metal flanges which are “cold-welded” at the seam; under the first application for the patent in suit, the alleged contribution is a device for the procurement of a smooth, unbroken and well-rounded surface by the utilization of a relief groove to eliminate 'distortion of the surface at the base of the wing; and the alleged contribution under the renewal application is a means of securing a predetermined contour in the surface by utilizing an elevated portion in the base to limit bending in the closing operation to a portion of the flange adjacent to the free edge. The mere thinning of metal at the juncture of the flange and the base is a simple mechanical expedient to facilitate bending, and this has been held not to be subject to patent. Mosler Safe & Lock Co. v. Mosler Bahmann & Co., 127 U.S. 354, 8 S.Ct. 1148, 32 L.Ed. 182. The relief grooves, claimed under the original application for the patent in suit as a means of preventing distortion in the surface, constitute nothing more than a thinning or reduction in the metal where the folding operation occurs. Any impact of metal sufficient to produce a distortion in the surface of the flange naturally impedes the folding process. Consequently, the claim that a relief groove prevents distortion in the surface due to the impact of metal at the juncture of the flange and base is merely a different method of stating that the folding process is facilitated by a reduction in the metal. In the renewal application, the utilization of an elevated portion in the center of the base is emphasized. But to assert that the center portion of the base is elevated or thickened is merely to say that its extremities are lowered or thinned. It follows that the renewal application discloses no greater novelty in the means by which the desired result is alleged to be accomplished than was indicated in the original application or known in the prior art. Furthermore, we entertain grave doubt as to whether the result claimed can be accomplished by a mere elevation in the center of the base. When it is considered that the ultimate external contour of the flange is necessarily determined in large measure before it comes into contact with the base, the pretentious nature of the claim urged is apparent. Whether bending is limited, as claimed, to the portion of the flange adjacent to its free edge obviously depends almost entirely upon the way in which the flange itself is constructed and the manner in which force is applied thereto in bending. The elevated portion in the base is without effect until the flange comes into contact with it. Since the folding operation is then virtually completed, it follows that the influence of this elevated portion in achieving a predetermined contour is minor and incidental. Assuming, however, that an invention was disclosed in appellant’s renewal application, we are nevertheless of the opinion that appellee’s structure constitutes no infringement thereof. The District Court found that, while appellee’s moldings have a thickened center portion, it is not utilized to limit bending to the free edge portion of the flange, the function claimed for it in appellant’s renewal application. We are of the opinion that this finding was amply justified, as was .also the finding that the bending in appellee’s structure is confined almost entirely to the fold line. In addition, appellee’s structure is unlike that of appellant in that the folding operation is completed as soon as the flange comes into contact with the base. There is thereafter no swedging operation, an essential step in the method by which appellant claims to attain the predetermined contour. Appellee’s structure merely utilizes a relief groove to facilitate folding, which has been held not to constitute invention. It follows that appellee’s structure cannot infringe. The decree 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?

Zelda L. PANZIRER, Plaintiff-Appellant, v. Emanuel L. WOLF, Jay N. Feldman, C. Ray Holloway, William V. Lurie, Carl Prager, Julio Proietto, Jack M. Sattinger and Price Waterhouse & Co., Defendants-Appellees. No. 10, Docket 80-7827. United States Court of Appeals, Second Circuit. Argued Sept. 16, 1981. Decided Oct. 28, 1981. Rehearing and Rehearing En Banc Denied Jan. 28, 1982. Daniel W. Krasner, New York City (Wolf, Haldenstein, Adler, Freeman & Herz, Fred Taylor Isquith, New York City, of counsel), for plaintiff-appellant. Bartlett H. McGuire, New York City (Davis, Polk & Wardwell, Ogden N. Lewis, Jamie Stern, Susan P. Johnston, New York City, of counsel), for defendant-appellee Price Waterhouse & Co. Jacobs, Persinger & Parker, New York City (Irving Parker, Joseph N. Salomon, William H. Lasher, III, New York City, of counsel), for defendants-appellees Wolf, Feldman, Lurie, Prager, Proietto and Sattinger. Gordon, Hurwitz, Butowsky, Baker, Weitzen, Shalov & Needed, New York City, for defendant-appellee Holloway. Before LUMBARD and KAUFMAN, Circuit Judges, and PIERCE, District Judge. Honorable Lawrence W. Pierce, United States District Judge for the Southern District of New York, sitting by designation. LUMBARD, Circuit Judge: Allied Artists Industries, Inc., issued an allegedly false annual report in August 1978. Zelda Panzirer purchased Allied stock thereafter upon reading an article in The Wall Street Journal. She never saw the annual report. When Allied started bankruptcy proceedings in 1979, she sued Allied officers and Price Waterhouse & Co., Allied’s accountants, under § 10(b) and Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5. She also sought to represent the class of investors purchasing Allied stock after release of the annual report. The district court, per Motley, J., dismissed Zelda Panzirer’s suit on summary judgment and denied class certification on the ground that she had failed to show that reliance on the annual report caused her loss. We reverse in part and affirm in part. Plaintiff relied on an article in The Wall Street Journal which she claims would have presented the company in a less favorable light had the annual report been accurate. She has stated a causal connection between her loss and the annual report which, on this record, cannot be dismissed on summary judgment. We affirm, however, the denial of class certification as being within the discretion of the district court. On this appeal from summary judgment, the allegations of the complaint, as supplemented by plaintiff’s deposition and numerous affidavits submitted by all parties, describe the story of Zelda Panzirer’s losing investment in Allied common stock. She read about Allied in The Wall Street Journal while driving up to Vermont on September 29, 1978. The “Heard on the Street” column in that day’s Journal covered the video cassette market, and devoted two paragraphs to Allied: Several analysts contend that Allied Artists is in a good position to take advantage of the growing demand for video tapes, having pioneered the development of pre-recorded cassettes. Andrew G. Racz of Philips, Appel & Walden, Inc. says Allied Artists, besides having a head start in video tapes and cassettes, is negotiating with TV networks, other film producers and makers of educational films to put their films on video cassettes. “The educational and informational area constitutes a tremendous market for video cassettes,” says Mr. Racz, adding: “We continue to be bullish on Allied Artists. It’s an attractive turn-around situation.” Zelda Panzirer had been a substitute school teacher. The item on the educational use of video cassettes caught her eye. She checked the price of Allied common stock, which was listed on the American Stock Exchange and had traded at between $5 and $6V8 on September 28. Her husband Leo Panzirer stopped the car. Zelda Panzirer called her broker, Michael Blum, at E. F. Hutton’s office in Hackensack, N.J. She asked if there was any negative news about Allied. Blum said that neither he nor E. F. Hutton followed the company, but after several minutes delay and a glance at Standard & Poor’s tear sheet on Allied, said there was no negative news. Zelda Panzirer ordered 200 shares of Allied common stock. Later on her trip, after discussing the purchase with her husband, she phoned Blum a second time to raise her order to 500 shares. E. F. Hutton purchased the shares for Zelda Panzirer at a September 29 market price of $7 per share. The Standard & Poor’s tear sheet abstracted information from Allied’s annual report for the fiscal year ending March 31, 1978. The report was issued on August 18, 1978, and allegedly contained numerous misrepresentations and omissions. The principal misrepresentation was the report of profits for that year based in part on receipts from Allied’s film, “The Betsy.” In fact, Allied had to split those receipts with the film’s overseas distributor, United Artists, and thus lost money in 1978. The principal omission was the annual report’s failure to include a qualification by Allied’s accountants stating their doubts as to Allied’s ability to function as a going concern. Allied common stock closed at $27/s per share the day the annual report was issued. It peaked at $7% per share on October 2, 1978, and declined thereafter. Allied filed a Chapter XI petition in bankruptcy on April 4, 1979. Zelda Panzirer never saw the annual report. In her complaint, she alleges that she relied on the “integrity of the market.” She asserts that the annual report affected the market, and therefore she had relied on the report through her reliance on the integrity of the market. Judge Motley, however, found that plaintiff “primarily” relied on The Wall Street Journal column about Allied’s prospects in the video cassette market and that plaintiff placed only secondary reliance on the integrity of the market. She held that secondary reliance was insufficient to support a 10b-5 claim. We cannot agree. We find no support in the law for the district court’s distinction between primary and secondary reliance. The function of requiring the plaintiff to show reliance in a 10b-5 action is to permit only those injured by fraud to sue. If plaintiff can link her injury to defendant’s fraud by showing the fraud was a “substantial” or “significant contributing cause,” plaintiff has shown sufficient reliance to support her 10b-5 claim. Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 (2d Cir. 1981). Plaintiff has on this record stated a sufficient connection between her loss and the allegedly fraudulent annual report to withstand a motion for summary judgment. As we read the record, Zelda Panzirer’s purchase of the Allied stock was caused by her perusal of The Wall Street Journal column. Her knowledge of the price of the stock and her conversation with her broker were merely neutral factors as they presented no impediment to her acting on the favorable notice in The Wall Street Journal. Consequently, the plaintiff argues that if Allied’s report had been accurate, the stock analysts interviewed by the Journal would not have mentioned the company favorably, the Journal would not have devoted two paragraphs to Allied’s prospects in the video cassette market, and plaintiff would not have been led by the article to buy her stock. Defendants have introduced no evidence to contradict this chain of causation. Though, at trial, the validity of the chain of causation will be tested, on summary judgment questions about this chain of causation must be resolved in favor of plaintiff, who in the case of a material fraud on the market enjoys a presumption of reliance. Where the plaintiff acts upon information from those working in or reporting on the securities markets, and where that information is circulated after a material misrepresentation or omission, plaintiff has stated a sufficient claim of reliance on the misrepresentation or omission. Our holding is supported by Competitive Associates, Inc. v. Laventhol, Krekstein, Horwath & Horwath, 516 F.2d 811 (2d Cir. 1976). In that case, investment manager Akiyoshi Yamada mishandled a Competitive Associates’ investment fund. Yamada had previously mishandled another investment fund, but his earlier mistakes had been hidden by allegedly false financial statements certified by the defendant accountants. The district court granted summary judgment to defendants on the ground that because Competitive Associates did not see the financial statements it could not prove reliance on them. We reversed, holding that Competitive Associates need not prove direct reliance, but only causation in fact. That is all Zelda Panzirer need show here. As in Competitive Associates, the fact that plaintiff must trace her reliance on defendant’s alleged fraud through the reactions of third parties does not vitiate her claim under 10b-5. Where, as is here alleged, the fraud consists of a failure to disclose, the difficult nature of plaintiffs claim — that if there had been disclosure, plaintiff would not have been harmed — has led the Supreme Court to hold that if the omission is material, reliance upon the omission will be presumed. Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972). Proving reliance is necessarily difficult where the fraud has affected the market and damaged the plaintiff only through its effect on the market. Relying on Affiliated Ute, this and other circuits do not require direct reliance where the fraud affects the market, on the ground that an investor relies generally on the supposition that the market price is validly set and that no unsuspected fraud has affected the price. See Ross v. A.H. Robins Co., 607 F.2d 545, 554 (2d Cir. 1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Blackie v. Barrack, 524 F.2d 891, 906-07 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). As in Affiliated Ute, Blackie held that the materiality of a fraud creates a presumption of reliance through its presumed effect on the market. See also Note, The Reliance Requirement in Private Actions Under SEC Rule 10b-5, 88 Harv.L.Rev. 584, 589 (1975). Our holding is no more than an extension of Blackie. Zelda Panzirer did not rely on the integrity of the market price because she did not rely on price, but she did rely on the integrity of the market in producing the information reported in The Wall Street Journal. Just as a material misrepresentation or omission is presumed to affect the price of the stock, so it should be presumed to affect the information “heard on the street” which led Zelda Panzirer to make her losing investment. Merely because Zelda Panzirer’s own claim survives summary judgment, however, does not make her fit to represent a class of Allied investors. Plaintiff appeals from Judge Motley’s denial of class certification. Judge Motley ruled that the weakness of plaintiff’s case concerning reliance made her claim atypical under Fed.R.Civ.P. 23(a)(3), and also ruled that plaintiff’s lack of credibility made her an inadequate class representative under Fed.R.Civ.P. 23(a)(4). We affirm on the latter ground. Plaintiff’s lack of credibility is abundantly clear in the record. She gave no less than four versions of her conversation with her broker. At her deposition, she described the conversation as containing no specific information about Allied. Before signing her deposition, she changed her story to say that Michael Blum had read unspecified information to her from his Standard & Poor’s tear sheet. In her affidavit explaining her changes in testimony, she alleged that he had told her that Allied had made money in 1978. After defendants introduced an affidavit from the broker that he had never looked at the financial information on Allied in the tear sheet, Zelda Panzirer introduced a final affidavit alleging that he had read financial information to her from the tear sheet. The credibility of a plaintiff may be considered by the trial judge in determining the plaintiff’s adequacy as a class representative. Kline v. Wolf, 88 F.R.D. 696, 699-700 (S.D.N.Y.1981); C. Wright & A. Miller, Federal Practice & Procedure § 1766 at 632-34. Judge Motley acted well within her discretion in concluding that Zelda Panzirer’s lack of credibility rendered her an inadequate class representative. Affirmed in part, reversed in part; remanded for proceedings consistent with this opinion. . Plaintiffs amended complaint alleges that Price Waterhouse originally included in its certification of Allied’s statements a qualification as to Allied’s ability to function as a going concern. The complaint alleges that the qualification was removed from the certification before the annual report was published. . The annua] report was not mailed to Allied shareholders until Friday, September 8, on which date Allied common stock closed at $3‘/8. Allied’s entry into the video cassette market was announced on Saturday, September 9. Whether the subsequent appreciation in price was due to the annual report or to Allied’s entry into the video cassette market is irrelevant to our decision, as we do not depend on Zelda Panzirer’s knowledge of the market price. Though Michael Blum stated in his affidavit that he mentioned the activity of Allied common to plaintiff, she nowhere refers to the stock’s activity as a reason for her purchase. . Plaintiff refers to the price of Allied common stock once in her deposition: “If the price was outrageous, something very high, I wouldn’t have been interested. The price was attractive.” If anything, her testimony indicates that a lower price accurately reflecting Allied’s true financial position might have led her to buy more stock. . We do not decide whether Zelda Panzirer’s weak showing of reliance makes her claim atypical under Fed.R.Civ.P. 23(a)(3), as we find her numerous changes in her testimony sufficient reason to deny class certification.

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

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. 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 45. 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 45? Answer with a number.

AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, INTERNATIONAL, a Labor Organization, Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees. No. 16340. United States Court of Appeals District of Columbia Circuit. Argued June 16, 1961. Decided July 13, 1961. Petition for Rehearing En Banc Denied Sept. 20, 1961. Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Mr. Mitchell J. Cooper, Washington, D. C., was on the brief, for appellant. Mr. Morton Hollander, Atty., Dept, of Justice, with whom Mr. William H. Or-rick, Jr., Asst. Atty. Gen., and Mr. David C. Acheson, U. S. Atty., were on the brief, for appellees National Mediation Board and others. Mr. Harold D. Rhynedance, Jr., Asst. U. S. Atty., also entered an appearance for appellees, National Mediation Board and others. Mr. Stuart Bernstein, Chicago, 111., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Messrs. Robert L. Stern, Chicago, 111., and James Francis Reilly, Washington, D. C., were on the brief, for appellee United Air Lines, Inc. Mr. Robert Plotkin, Chicago, 111., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. Stephen I. Schlossberg, Washington, D. C., was on the brief, for appellee, Air Line Pilots Ass’n, International. Before Edgerton, Washington and Danaher, Circuit Judges. PER CURIAM. This case is similar in many respects to UNA Chapter, Flight Engineers’ International Association v. National Mediation Board, 1961, 111 U.S. App.D.C.-, 294 F.2d 905. This, too, is a suit against the National Mediation Board and its members to set aside a determination in a representation case. Here, the Board recognized the stewards and stewardesses of United Airlines as a craft or class. It made a like ruling as to similar employees of Braniff Airlines. Each group voted in elections in which no other group participated. What is complained of is that the Board allowed the Air Line Pilots Association (ALFA) to appear on the ballot. It won both elections. The plaintiff-appellant, the Air Line Stewards and Stewardesses Association, brought suit in the District Court, alleging that pilots perform some supervisory and managerial functions in regard to stewards and stewardesses, and hence that their union is ineligible to represent the persons whom they supervise. The short answer is that the Railway Labor Act, 45 U.S.C.A. § 151 et seq., does not forbid this, expressly or by implication. The District Court rightly dismissed the suit for lack of jurisdiction under Switchmen’s Union of North America v. National Mediation Board, 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. Appellant’s reliance on Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, is misplaced, for the reasons given in our opinion in Flight Engineers. Nor is any constitutional question presented. The Mediation Board — ■ as distinguished from committees appointed by it — is not required to give a hearing to a protesting union. See Switchmen’s Union v. National Mediation Board, supra at page 304 of 320 U.S., at page 98 of 64 S.Ct. Appellant’s argument to the contrary is untenable. The complaint contains allegations that United and Braniff coerced the stewards and stewardesses into voting for ALP A. These allegations seem purely conclusory, and based largely if not wholly on the argument that pilots are part of management. This sort of claim does not create jurisdiction in the District Court to set aside the Board’s determination. See 2 Moore, Federal Practice para. 12.08, at 2244-45 (2d ed. 1960). If appellant’s charge of coercion has any substance, appellant can apply for the institution of a criminal prosecution. See Railway Labor Act, Section 2, Tenth, 45 U.S.C.A. § 152. Affirmed. . If in fact ALPA’s representation proves inadequate or discriminatory, persons aggrieved will not lack remedy. Cf. Steele v. Louisville & N. R. Co., 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173.

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

MEDICAL INSTITUTE OF MINNESOTA, a Minnesota corporation, Appellant, v. NATIONAL ASSOCIATION OF TRADE AND TECHNICAL SCHOOLS, a District of Columbia corporation, Appellee. No. 86-5246. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1987. Decided May 1, 1987. Gerald M. Singer, Minneapolis, Minn., for appellant. John D. French, Minneapolis, Minn., for appellee. Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, JOHN R. GIBSON, Circuit Judge. FLOYD R. GIBSON, Senior Circuit Judge. Medical Institute of Minnesota (MIM) appeals the order of the district court granting summary judgment in favor of defendant National Association of Trade and Technical Schools (NATTS). The district court held that NATTS’ decision not to reaccredit MIM did not constitute state action, was neither arbitrary nor unreasonable, and was supported by substantial evidence. On appeal MIM has forgone the argument that NATTS’ conduct constitutes state action and instead now argues that NATTS’ conduct is attributable to the federal government. In support of their arguments, however, MIM and NATTS cite cases dealing with actions of states rather than the federal government. Application of those standards to this situation demonstrates an insufficient nexus between NATTS and the federal government. For this and the other reasons stated below, we affirm. I. BACKGROUND MIM is a private technical school in Minneapolis, Minnesota, which trains students for careers as medical and dental assistants, medical laboratory technicians, and veterinary technicians. As long as MIM remains accredited by an accrediting association approved by the Department of Education (DOE), its students are eligible for federal financial aid. NATTS is the only private trade and technical school accrediting association recognized by the DOE. In January, 1977 MIM was initially accredited by NATTS for a period of five years. In September, 1980 the school was purchased by James Daras, its current president. NATTS approved the change of ownership and granted continued accreditation. In May, 1982 MIM applied for reaccreditation. It filed a self-evaluation report and was visited by a five member investigative team from NATTS. In October, 1982 MIM was asked to respond to nineteen problem areas found by NATTS. Following MIM’s response NATTS deferred its decision because of nine areas which still needed attention. In May, 1983 MIM responded and accreditation was again deferred. This time, however, NATTS listed ten areas of concern. In October, 1983 MIM’s application for reaccreditation was officially denied because of five problem areas. MIM filed a notice of intent to appeal and a hearing was held before a three-person panel. The panel affirmed the denial of reaccreditation, finding (1) that MIM failed to demonstrate that it made refunds to students within thirty days after they terminated their enrollment; (2) that MIM failed to demonstrate, through placement statistics, that a high proportion of its graduates benefitted from their training; and (3) that MIM failed to demonstrate that it had a sound financial structure. MIM filed suit in the United States District Court for the District of Minnesota alleging that its constitutional rights to due process and equal protection had been denied and that NATTS acted wrongfully and negligently. The district court granted summary judgment in favor of NATTS. II. DISCUSSION A. Constitutional Violations A fundamental principle of federal constitutional law is that private action, no matter how egregious, can not violate the equal protection or due process guarantees of the United States Constitution. It therefore is clear that MIM’s claims of constitutional violations must fail if the actions of NATTS are not attributable to the federal government. Several tests have been developed by the Supreme Court to determine whether there exists governmental action. MIM argues that one of the tests — the public function doctrine — compels a finding of governmental action. The public function doctrine has its origin in cases dealing with attempts to exclude blacks from voting in primary elections. In Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), an all white primary election was struck down because the Court found that running elections is essentially a state function. A similar theme runs through other public function cases. For example, in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), the Court held that a privately owned park could not be closed to blacks because providing mass recreation is a public function. In support of its position MIM cites Marjorie Webster Junior College v. Middle States Ass’n of Colleges and Secondary Schools, 302 F.Supp. 459 (D.D.C.1969), rev’d on other grounds, 432 F.2d 650 (D.C.Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). In this case the court found that the functions of a private accrediting association constituted governmental action because the association acted “in a quasi-governmental capacity by virtue of its role in the distribution of Federal funds under the ‘aid to education statutes.’ ” Id. at 470. The court in Marjorie Webster accepted the same argument being made in the present case — that since the availability of federal funds depends on accreditation, the association is performing a public function when deciding whether to accredit. MIM argues that its students are entitled to federal financial assistance only if the school remains accredited. The DOE, therefore, has delegated to NATTS the decision whether MIM’s students are eligible for federal assistance. The DOE also has regulated the procedures and criteria to be used by NATTS, MIM argues. MIM’s arguments, however, can not stand in light of two post-Marjorie Webster Supreme Court opinions. In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), the Court found that a private nursing home’s decision to transfer or discharge patients did not constitute state action even though the decision directly affected the patients’ eligibility for Medicaid benefits. The Court found that although the state responded to the nursing home’s actions by adjusting benefits, the state was not responsible for those actions. Id. at 1005. In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) the Court found do state action when a private school for maladjusted students terminated faculty members despite the fact that all the students were referrals from the public school system whose tuition was paid by the state. The Court held that the public function doctrine applies only when the functions performed are “traditionally the exclusive prerogative of the State.” Id. at 842, 102 S.Ct. at 2772 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974)). In Rendell-Baker the Court found that educating maladjusted students was not exclusively within the state’s domain. Id. Analyzed in light of these principles, it is clear that NATTS’ decision to deny reaccreditation is not attributable to the federal government. There is little difference between this case and Blum. Both involve privately made decisions which affect individuals’ eligibility for government benefits. As in Blum, NATTS is not responsible for the loss of financial aid to MIM’s students. Only the DOE makes that decision. In arguing that accreditation is an exclusive prerogative of the government, MIM equates NATTS’ decision not to accredit with the DOE’s decision not to provide financial assistance. ' MIM cites nothing showing that accreditation has been the exclusive function of the federal government. Its argument only goes to the issue of determining eligibility for federal funds. Obviously the DOE’s actions are governmental action, but they are not at issue in this case. What is at issue are private actions to which the government responds. In Blum the Supreme Court directly confronted this argument and found it unconvincing. MIM also argues that governmental action exists because “the procedures and criteria that NATTS can use to make accreditation decisions are specified and limited by the U.S. Department of Education regulations for nationally recognized accrediting agencies.” Brief for Appellant at 14. We find this argument unpersuasive for two reasons. First, the regulations promulgated by the DOE, 34 C.F.R. §§ 603.1-603.6, in no way limit or define the criteria NATTS must use when deciding whether to accredit an institution. The only criteria set forth in the regulations are those which must be met by accrediting associations in order to be recognized by the DOE. Second, that the DOE regulates the procedures to be used in deciding whether to accredit is not enough to compel a finding of governmental action. “The mere fact that a business is subject to state regulation does not by itself convert its actions into that of the State for the purposes of the Fourteenth Amendment.” Jackson, 419 U.S. at 350, 95 S.Ct. at 453. B. Common Law Our finding that there is no governmental action does not end the matter, however. Our scope of review also allows inquiry into whether NATTS’ decision to deny reaccreditation was arbitrary or unreasonable and whether it was supported by substantial evidence. See, e.g., Rockland Inst. v. Association of Indep. Colleges, 412 F.Supp. 1015, 1016 (C.D.Cal.1976). Although not governed by constitutional guidelines, NATTS nevertheless must conform its actions to fundamental principles of fairness. These principles are flexible and involve weighing the “nature of the controversy and the competing interests of the parties” on a case by case basis. Marlboro Corp. v. Association of Indep. Colleges, 556 F.2d 78, 81 (1st Cir.1977). MIM argues that NATTS’ decision to deny reaccreditation was arbitrary and unreasonable because it was based on vague standards. The requirements that the school have a “sound financial structure” and show that “a high proportion of its graduates benefit from the training received” allow arbitrary and discriminatory application, MIM argues. The district court found this argument unpersuasive and we agree. Great deference must be given to the standards used by NATTS. “The standards of accreditation are not guides for the layman but for professionals in the field of education. Definiteness may prove, in another view, to be arbitrariness.” Parsons College, 271 F.Supp. at 73. Strict guidelines would strip from NATTS’ officials the discretion necessary to adequately assess the multitude of variables presented by different schools. MIM next argues that NATTS’ decision was arbitrary and unreasonable because a similar school, Lakeland Academy, was granted reaccreditation by NATTS. MIM contends that the district court failed to consider evidence showing that Lakeland— although similarly situated — was treated more favorably than MIM. The evidence allegedly shows that Lakeland Academy was in worse financial condition than MIM and that Lakeland had similar placement statistics. Fairness requires that Lakeland Academy and MIM be treated similarly, but only if they are similarly situated. MIM has made no showing that it was similar to Lakeland in all .other relevant respects. Simply showing that Lakeland also had financial and placement problems ignores all of Lakeland’s other attributes. MIM also argues that it was denied a fair hearing by the appeals panel because NATTS’ counsel improperly “prepped” the panel and because MIM was not allowed to cross-examine the NATTS team that conducted the investigation. MIM’s improper “prepping” argument is without merit because MIM has produced no evidence that the appeals panel was biased by any discussions it may have had with NATTS’ counsel. As to cross-examination, under the circumstances we find nothing unfair about denying MIM the opportunity to cross-examine the investigative team. The record reveals that MIM was given every opportunity to convince NATTS that it should be reaccredited. On two separate occasions NATTS deferred its decision, giving MIM time to correct problem areas. By the time the appeals panel heard the case MIM had submitted several responses to NATTS, detailing how it was attempting to comply with NATTS’ standards. During the hearing, MIM was given the opportunity to present its case orally. Because the ultimate decision hinged on application of professional standards, a full blown adversary hearing was not required. See, e.g., Marlboro, 556 F.2d at 82; Parsons College, 271 F.Supp. at 73. Also, MIM has made no showing that the outcome of the hearing would have been different had cross-examination been allowed. Finally, MIM argues that the district court erred in finding that NATTS’ decision to deny reaccreditation was supported by substantial evidence. The appeals panel found (1) that MIM failed to demonstrate that refunds were made to students within thirty days; (2) that MIM failed to show that a high proportion of its graduates benefitted from their training; and (3) that MIM failed to establish that it has a sound financial structure. MIM disputes each of these findings. MIM’s argument, however, seems to be not with the district court, but with the appeals panel. MIM does not argue that the evidence was insufficient. Rather, it argues that the justifications it provided for the problems should have been accepted by NATTS. For example, MIM admits that it had problems making timely refunds, but argues that the delays were caused by a computer error resulting in federal funds arriving later than anticipated. On the issue whether students benefitted from their education, MIM states that time constraints made it impossible to document placement rates that would satisfy NATTS’ requirements. Finally, MIM states that its assets were low because large amounts of money were spent to correct problems found by NATTS. Also, MIM states that many of the reports upon which NATTS based its decision were made by MIM’s previous owner. MIM’s arguments are self-defeating. While trying to explain why it didn’t comply with NATTS’ standards, MIM admits each violation. As stated previously, MIM was given every opportunity to justify its problem areas. Apparently, NATTS did not agree that MIM’s problems were justified. It is neither our nor the district court’s role to reweigh the evidence in this case. The district court found that appeals panel’s decision was supported by substantial evidence and we agree. Finally, we feel obligated to correct a gross misstatement in the brief filed by NATTS. NATTS states that this case was particularly well suited for summary judgment because MIM had consented to trial without a jury. Summary judgment gave MIM the “full opportunity to present its evidence to the sole trier of fact in this case,” NATTS argues. Brief for Appellee at 19. We strongly disagree. A judge does not sit as a trier of fact when deciding a motion for summary judgment even if the case is scheduled to be heard without a jury. The fact that the end result may be the same — judgment for one of the parties — is not indicative of the different roles performed by the district court in making each decision and by an appellate court in reviewing those decisions. III. CONCLUSION We affirm the district court’s order granting summary judgment in favor of NATTS because (1) constitutional protections are inapplicable as no governmental action exists; (2) NATTS’ actions were neither arbitrary nor unreasonable; and (3) NATTS’ decision was supported by substantial evidence. . The Honorable J. Earl Cudd, United States Magistrate for the District of Minnesota, acting as the trial court upon stipulation of the parties pursuant to 28 U.S.C. § 636(c). . This argument was expressly rejected two years earlier in Parsons College v. North Central Ass’n of Colleges and Secondary Schools, 271 F.Supp. 65, 70 (N.D.Ill.1967). See also Transportation Careers v. National Home Study Council, 646 F.Supp. 1474, 1478-79 (N.D.Ind.1986) (actions of accreditation association did not constitute governmental action). . The district court also found that NATTS’ actions were reasonably related to a legitimate professional purpose. MIM does not dispute that finding.

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

TEER v. GEORGE A. FULLER CO. Circuit Court of Appeals, Fourth Circuit. January 14, 1929. No. 2763. L. P. McLendon, of Durham, N. C., (Jones Fuller, R. P. Reade, H. G. Hedrick, and F. L. Fuller, Jr., all of Durham, N. C., on the brief), for appellant. A. L. Brooks and Julius C. Smith, both of Greensboro, N. C. (E. S. Parker, Jr., and C. R. Wharton, both of Greensboro, N. C., on the brief), for appellee. Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges. WADDILL, Circuit Judge. This is an appeal from the action of the United States District Court for the Eastern District of North Carolina in entering judgment for only $3,638.25 in appellant’s favor, and in dismissing as of nonsuit appellant’s claim for $25,448.45. On December 10, 1927, appellant, Nello L. Teer, instituted an action in the superior eourt of Durham county, N. C., against the George A. Fuller Company, appellee here, to recover $31,973.58, which cause was removed to the Federal District Court at Raleigh on December 31, 1927. The complaint alleged, among other things, that the plaintiff, Teer, was engaged in the business of a grading 'contractor, and the defendant company, a corporation organized and existing under the laws of the state of New Jersey, but domesticated under the laws of the state of North Carolina, was engaged in the business of a general construction contractor; that on or about the 5th day of August, 1925, the defendant, then being general contractor for the construction of a number of buildings for Duke University, at Durham, 1SÍ. C., entered into a contract with plaintiff, whereby plaintiff was employed to do ■all the excavation work in connection with the construction of said buildings; and that in accordance with the terms of his employment, plaintiff entered upon and completed the work of excavation contracted for. The complaint further alleged that while plaintiff was engaged in performing his contract with defendant, he was ordered and diretted by defendant to do other and additional work, not included in plaintiff’s original contract of employment, and that the plaintiff and defendant entered into a second-contract, by which the plaintiff engaged to do said additional work, and defendant agreed to pay for such further work at the same unit price designated in the first contract of employment, and when no price was designated, defendant agreed to pay a reasonable compensation, viz., the cost to the plaintiff of doing such work, plus the usual and reasonable profit thereon; that, in accordance with the terms and provisions of said second contract, the plaintiff in good faith performed the additional work so agreed upon as designated by defendant’s engineers and other employes of defendant corporation, and when said work was completed defendant received and accepted the same; that during the progress of said work the plaintiff rendered detailed statements of his payrolls and costs to defendant; that by reason of the work done, which continued over a period from about August 1, 1925, to October 1, 1927, the defendant was indebted to plaintiff for the sum of $31,973.58, which was the reasonable value of the work performed by plaintiff; and that payment therefor, though demanded, had been refused. Interest on the sum sued for, from October 26,1927, was claimed. The defendant, George A. Fuller Company, answered, denying that there was any contract except the original written contract of August 5, 1925, and denied generally the plaintiff’s claim, but set up and pleaded as a bar to plaintiff’s right of recovery the provisions of the written contract, with reference to the extra work sued for being authorized in writing. Defendant, in its answer, further stated that it had tendered plaintiff $3,467.25 for the work performed under the contract of August 5, 1925, which payment plaintiff had refused to- a ccept; and the answer denied that the extra work for which payment was claimed by plaintiff had ever been authorized by defendant. The plaintiff, in replying, contended that the provisions of the contract were waived, and that the so-called extra work or overhaul was authorized verbally by the local superintendent in charge of defendant’s building operations at Duke University. The defendant corporation filed a rejoinder, denying the matters alleged in the plaintiff’s reply. Upon the foregoing pleadings, the ease was tried, with the result that judgment was entered in favor of plaintiff for $3,638.-25-, admitted by defendant to be due, and the plaintiff’s cause of action as to alleged extra work was dismissed as of nonsuit. The plaintiff appealed, assigning error to the trial court’s action dismissing his claim for alleged extra work -and directing a nonsuit thereon, and also assigning error to its rulings in the admission and rejection of evidence, and in not submitting the issues between the parties to the jury for determination. Assignments of error Nos. 1, 2, 3, and 4 are to the court’s action in permitting the introduction before the jury of extracts from certain specifications which were part of the contract between Duke University -and the defendant. The appellant’s exception to the court’s action in this respect is without merit. While doubtless the appellant was not bound by the specifications in question in the consideration of the claim for extra work, still to have refused to permit the introduction of the same might have operated prejudicially to the defendant in asserting its defense, and certainly it was not improper to permit them to bo introduced with appropriate instructions by the court as to their probative value. Assignments Nos. 5 and 6 relate to- the action of the trial court in not allowing the plaintiff to answer two certain questions propounded to him as follows: ‘‘Q. You were asked yesterday the reason why the overhaul amounting to $24,000.00 as compared with the amount of the contract of $29',500.00, explain why that was?” “Q. Mr. Teer, what was the actual cost to you for making this overhaul?” —which the court likewise refused to permit to be answered. These two- assignments of error, Nos. 5 and 6, appear to us to be well founded, as the plaintiff shohld have been afforded the fullest opportunity to- make the very explanations called for. The plaintiff’s answer, preserved in the record in connection with the ruling on the exception, as under assignment 6, was as follows: “A. The actual cost to me was $23,134.87, which includes 2,285 hours for labor in spreading the dirt on the campus, amounting to $571.-25, and 28 hours use of a ten ton tractor in leveling the dumping ground between the Grand Stand and the Southgate Memorial Building, amounting to $210.00- To this actual cost of $23,134.87 I added my profit of $2,313.58, making the total of $25,448.4-5 as shown on the itemized statement attached to the complaint.” The answer clearly indicates the importance of the information sought to be elicited, as it was manifestly important to the plaintiff to have the difference between the two bills in question properly explained. [3] Coming to the consideration of the case upon its merits arising upon the action of the court in withdrawing the same from the jury, and in entering judgment as of non-suit thereon, the legal questions revolve around the defendant’s plea that the plaintiff was barred the right of recovery for the work sued for, because the original contract between the plaintiff and defendant contemplated that such work should only be done upon a written order signed by a properly authorized officer or agent of the defendant, and at prices and terms agreed upon between them. The law properly applicable to these conditions may be said to be fairly well settled, that is, that provisions for extra or additional work are usually contained in the contract between the parties, and the same should control under ordinary circumstances, but this is not necessarily true, nor universally the ease, as that would in effeet place the contractual rights of the parties here on a plane as if arising under the law of the land instead of under and by virtue of their contractual undertakings with each other. In determining the rights of the parties, each case has to be dealt with and considered in the light of its peculiar facts and circumstances, having regard to the fact that the questions arise most frequently over, and as the result of, occurrences subsequent to the making of the original contract, and as to which the parties have the right to contract either orally or in writing. It by no means follows, from the fact that an agreement may be entered into providing only for extras by written consent and approval of Hher architect in charge, that the parties may not, for reasons satisfactory to themselves, waive or modify their undertakings. In Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625, a contract contained this language: “* * * And that no charge shall be made for extra work or materials, unless the same is ordered in writing, and the price thereof agreed upon.” The contract was for the construction of a house, and the plaintiff offered evidence tending to show that extra work was done at the request of the owner. Mr. Justice Holmes, speaking for the court, said: “Attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of the plaintiff and defendant, no doubt. But it cannot be assumed, as matter of law, that the contract governed all that was done until it was renounced in so many words, because the parties had a right to renounce it in any way, and by any mode of expression they saw fit.' They could substitute a new oral contract by conduct and intimation, as well as by express words. * * * ”' In 6 R. C. L. pp. 914 and 915, it is said: “More-' over, though the parties to a contract mayj stipulate that it is not to be varied except by an agreement in writing, they may, by a subsequent contract not in writing, modify it by mutual consent. One who has agreed that he will only contract by writing in a certain way does not thereby preclude himself from making a parole bargain to change it. There can be no more force in an agreement in writing not to agree by parole than in a parole agreement not to agree in writing, and every agreement of that kind is ended by the new one, which contradicts it.” . In Illinois Cent. R. Co. v. Manion, 113 Ky. 7, 67 S. W. 40, 101 Am. St. Rep. 345, the court said: “ ‘Though the written contract has a clause forbidding such oral alteration, and declaring that no change in it shall be valid unless in writing, such provision does not become a part of the law of the land; it is like any other agreement which is superseded by a new one. So that in spite of it an oral alteration may be validly made.’ * * * ‘Any contract may be varied by the parties before performance; for the power from the law to enter into the bargain equally authorizes them to abrogate or modify it.’ ” In Wyandotte & D. R. Ry. v. King Bridge Co., 100 F. 197, 40 C. C. A. 325, in which case Judges Taft, Lurton, and Day sat, it was decided that a provision in a contract to build a bridge according to certain plans and specifications, which states that no extra labor or material shall be paid for, unless agreed to in writing, does not deprive the contractor of the right to recover for additional work or material furnished outside of the contract at the request of the owner though not agreed upon in writing. ( In United Steel Co. v. Casey, 262 F. 889, a decision of the Circuit Court of Appeals of the Sixth Circuit, it was decided that a provision in a contract for excavating, grad-ing, backfilling, and concreting, that no extras would be allowed without an understanding and written order does not prohibit the making of a parol contract changing the compensation to be paid for the work and material covered by the written' contract, but such a provision is a fact to be considered by the jury m passing upon whether a parol agreement was made or not. Citation of authorities could be given almost without number to support the views expressed herein, but only the following eases, two from this court and two from the Supreme Court of the United States, in addition to those named, need bo especially mentioned: The Sappho (C. C. A.) 94 F. 545, 547, 550, 551; Schmulbach v. Caldwell (C. C. A.) 196 F. 16, 23, 24; Piatt’s Administrator v. U. S., 89 U. S. (22 Wall.) 496, 506, 22 L. Ed. 858; Wood v. Ft. Wayne. 119 U. S. 320, 321, 7 S. Ct. 219, 30 L. Ed. 416. A careful review of these four cases, with, the citations therein contained, will make clear the law properly applicable in the present case. In the conclusion reached by us, we have given due consideration to the able and interesting arguments of counsel for appellee, and we have also examined with care the authorities cited, but from our view of this case, they do not seriously alter or militate against the views expressed herein, under the special facts and circumstances existing here. The appellant’s seventh assignment of error is to the action of the trial court in sustaining the motion made by the defendant for judgment as of nonsuit, which was first made at the conclusion of the evidence introduced by the plaintiff, and was then overruled by the court, and renewed at the conclusion of all the testimony, and then sustained by the court. This motion for non-suit was made under the North Carolina statute known as the Hinsdale Act (Consolidated Statutes of North Carolina, § 567). This act has frequently been the subject of review by the North Carolina state courts (Roscoe v. Lumber Co., 124 N. C. 42, 32 S. E. 389; Gates v. Max, 125 N. C. 139, 34 S. E. 266; Snider v. Newell, 132 N. C. 614, 44 S. E. 354), and any number of decisions might be cáted. The effect of a motion for judgment as of nonsuit is that of a demurrer to the evidence, and the same should be so considered and treated, that is, the demur-rant waives all objections as to the competency of the evidence and admits as true that which it tends to prove; and for the purposes of the motion the evidence should be taken most strongly against the demur-rant. From our view of the ease, we are of the opinion that the trial court erred in its action and ruling sustaining the motion for nonsuit, and that, instead of so doing, the motion should have been overruled and a jury trial awarded, as well as to the sufficiency of the evidence to establish the right of the plaintiff to recover for the additional work sued for, as for the amount recoverable therefor. To our mind the testimony was such as to clearly warrant the consideration and determination of the facts by the jury, and it was error on the part of the trial court to deny the plaintiff this right, and, in place thereof, to sign and enter its judgment thereon, as set out in the record. Reversed and remanded to the District Court at the cost of appellee, with directions to award a new trial in accordance with the views herein expressed. Reversed and remanded.

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

ROUSE et al. v. BURNHAM. No. 342. Circuit Court of Appeals, Tenth Circuit. Aug. 6, 1931. John S. Dean, of Topeka, Kan. (John S. Dean, Jr., Frazor T. Edmondson, and George W. Ball, all of Topeka, Kan., on the brief), for appellants. Tinkham Veale, of Topeka, Kan., and Chas. L. Kagey, of Beloit, Kan. (Lloyd M. Kagey, of Beloit, Kan., on the brief), for appellee. Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges. LEWIS, Circuit Judge. Appellee sued appellants in the state district court of Kansas for malicious prosecution. That case went to trial. After all the evidence was introduced, plaintiff took a non-suit and six months later instituted this suit on the same cause of action and recovered. The defendants then brought this appeal. The action is bottomed on four complaints verified by appellant Mangus, wherein Bum-ham was charged with embezzlements of moneys of the Western Producers Oil and Gas, Inc., a corporation. Four complaints were filed with the Justice of the Peace of Goodland, Kansas, who issued warrants of arrest on which the sheriff arrested Burnham and put him in the county jail, where he remained for three hours and thirty-five minutes, when he gave bond for his appearance and was released. On two of the charges, Burnham had preliminary hearing and was let to bail for appearance in the district court. When these two charges came on for trial in the district court the county attorney dismissed them without trial, and he also dismissed the other two charges still pending in the justice of the peace court. Each of the four criminal charges is the basis of a separate cause of action, and the jury returned a verdict for the plaintiff on each count. The criminal charges against Burnham came about in this way: The corporation, named above, needed about $10,000.00 to complete the drilling of a well for oil in the vicinity of Goodland; the three appellants and H. N. Slater, president of- the corporation, owned about 75,000 shares in the corporation, and they entered into a written contract with Burnham in January, 1926, by which he was appointed sales agent of the corporation’s treasury stock. He agreed to sell the stock to the amount thought to be needed to complete the well, and the other parties to the contract agreed to give Burn-ham, for his services, 12,500 shares out of their 75,000, and also to assign to him an oil lease on 160 acres. Burnham did not carry out his obligations of the contract. There were four sales of shares of stock on which the four criminal charges were based, — one to Jane Van Donge on March 2, 1926, of 50 shares for $50.00, one to Lloyd G. De Lay on March 2, 1926, of 100 shares for $100.00, one to D. A. Laughlin on March 2, 1926, of 100 shares for $100.00, and one to Jane Van Donge on March 4, 1926, of 50 shares for $50.00. When each of the above sales was made Burnham gave the purchaser the corporation’s receipt for the named purchase price of the shares, his name appearing thereon as salesman, except he testified that he did not make the sale of the 50 shares to Jane Van Donge on March 2d, that his wife made that sale; nevertheless, the receipt to Jane Van Donge for $50.00 given in the name of the company for those 50 shares has Bum-ham’s name thereon as salesman, and is just like the receipts given when the other three sales were made. A day or so after the sales made on Mareh 2d, new certificates were issued by the corporation, one to De Lay for 100 shares, one to Laughlin for 100 shares, and one to Jane Van Donge for 50 shares, and the corporation’s records show that those reissues came out of shares privately owned by one Bane, and, of course, were not treasury stock. What has been said about sales to the parties named and other evidence relating to that subject, hereinafter to be noted, will answer the inquiry whether the plaintiff sustained the burden pf showing that he was arrested and prosecuted without probable cause to believe him guilty. This, of course, is the main issue in an action of this kind. There must be malice also, but malice may be inferred from lack of probable cause, and lack of probable cause cannot be inferred from malice. There may be malice — even express — but, if there be probable cause for the arrest and prosecution, an action of this kind must fail. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Wheeler v. Nesbitt, 24 How. 544, 16 L. Ed. 765; Crescent City live Stock Co. v. Butchers’ Union, 120 U. S. 141, 7 S. Ct. 472, 30 L. Ed. 614; Director General v. Kastenbaum, 263 U. S. 25, 44 S. Ct. 52, 68 L. Ed. 146; Walton Trust Co. v. Taylor (C. C. A.) 2 F.(2d) 342, 345; Daniel v. Pappas (C. C. A.) 16 F.(2d) 880; Blakely v. Greene (C. C. A.) 24 F.(2d) 676; Chapman v. Anderson, 55 App. D. C. 165, 3 F.(2d) 336. We now point out the additional evidence bearing on the question of probable cause. Burnham testified in this ease that the stock sold to the three named persons, barring one of the sales to Jane Van Donge, was Bane’s stock; that he was helping Bane at the request of Dawson to make those sales; that Bane got the money on each sale; that he, Burnham, gave the corporation’s receipt to each purchaser because he had no other paper with him; and that soon thereafter he and Bane went to the corporation’s office and told appellant Mangus and Mr. Heston (the latter being postmaster at Goodland and secretary of the corporation) about the transactions, and that he left with them carbon copies of the receipts he had given. Bane did not testify, nor were Jane Van- Donge, De Lay, or Laughlin called as witnesses. Man-gus and Heston testified, and each denied that the transactions were reported to them as tes-tilled to by Burnham or that copies of the receipts were brought to them or left with them by him. On cross examination, Burnham admitted that on the trial of the civil case in the state court he testified that he was alone in the transaction with De Lay and that he traded 100 shares of his own stock to De Lay for a seed drill, a plow, and a harrow, and thereupon he gave to De Lay the corporation’s receipt for $100.00; that he had purchased the shares he traded to De Lay with his own money. It was also shown that Burnham testified in the ease in the state court that the 100 shares sold to Laughlin were Burnham’s stock, and that those shares were to be taken out of shares Slater had given him or out of 300 shares he had bought with his own money; that those shares were issued to him by Heston and Mangus, and he had paid the money to Heston. This testimony of Burn-ham in the state court is in direct conflict with his testimony here wherein he says he was helping Bane sell his (Bane’s) stock; that Bane got the moneys named in the receipts. That conflicting testimony, however, does not go to the issue of probable cause. It was given after the arrests were made, but it does bear heavily on the credibility and weight to be given to Burnham’s evidence in the court below when we come to consider the defendants’ challenge to the plaintiff’s case when all of the evidence was in. But there is additional evidence on the issue of probable cause. Appellant Mangus, who verified the criminal charges, testified that on March 3,1926, Ira Bane brought his stock certificate into the oil company’s office and asked him to transfer some of said stock to De Lay, Laughlin, and Jane Yan Donge; that he made such transfers himself; Bum-ham was not present; he did not know that Burnham had anything to do with the sale of Bane’s stock, and never did know that he claimed to have anything to do with said sales until the time of Burnham’s preliminary trial; Burnham never came into the, oil company’s office and showed him any receipts concerning sales of Bane’s stock, nor did he at any time say anything about such receipts; sometime in the fore part of April, 1926, Mrs. Yan Donge came into the office and stated that she had bought some stock in the oil company; Mangus learned from her that she had bought from Burnham, and upon his request she brought in the two receipts which Burnham had given her at the time she bought; Mr. Laughlin also brought his receipt to the office; the first time he saw Mr. De Lay’s receipt was when he and the county attorney called at Mr. De Lay’s home; after obtaining these receipts, he went to see Mr. Slater, Mr. Dawson, and Dr. Rouse, and some of the other directors, showed them the receipts, and asked their advice. Their advice to him was to take the receipts to the county attorney, and see what he had to say about the matter. Whereupon, he went to see the county attorney, drove the county attorney out to Jane Yan Donga’s home, also to Mr. Laughlin’s home, and to the home of Lloyd G. De Lay. Mr. De Lay and Mrs. Yan Donge were at home and were talked to by the county attorney. Mr. Laughlin was not at home. Mr. Stewart was the county attorney, and his advice to Mangus was to go to Burnham and request that the money obtained through the sale of stock, as evidenced by the receipts, be turned over to the company. Whereupon, he went to see Burnham, told him about the receipts, and demanded the money. Burnham offered no excuse for the receipts, but merely stated that he did not owe the company a dime. After Burnham’s refusal, he went back to Mr. Stewart and told him that he had been unsuccessful in attempting to obtain the money. Whereupon, Mr. Stewart stated that he would draw up some complaints, and he (Mangus) could come back later and sign them. Mr. Stewart stated that he thought Burnham had committed a crime. Later he returnéd to the county attorney’s office and signed the complaints. That part of the evidence of Mangus, fully summarized above, relating to the issue of probable cause, is the interview that Mangus had with Burnham at the direction of the county attorney. Mangus testified that he went to Burnham, told him about the receipts and demanded the money, and that Burnham offered no excuse for the receipts, but merely stated that he did not owe the company a dime. There is no contradiction of this testimony of Mangus, by Burnham or any other witness. It shocks common sense to ask one to believe that Burnham would have contented himself with the reply he made to the demand of Mangus, if he had theretofore furnished Mangus and Heston with copies of those receipts and informed them that the receipts' represented sales of Bane’s stock. Had he or Bane done that, it is incredible that he would have failed to call Mangus’ attention to the fact. Burnham had admitted in writing over his signature that he sold the company’s stock and had received as its sales agent the purchase price. That is not rendered untrue by the fact that stock was later issued to the purchasers that had belonged to Bane or Burnham. It is just as reasonable' to infer that the sales were made as represented by Burnham’s receipts, and that it was thereafter concluded to keep the company’s money and substitute the stock of Bane or Burnham for the company’s stock. In the eases cited, supra, it will be found that the rule of law is stated thus:' “The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it probable or true, and existed, is a matter of fact; but whether, supposing them to be true, they amount to probable cause, is a question of law.” But there is another rule equally well settled and not in conflict with this rule, which is this: “It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of eases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it.” Walton Trust Co. v. Taylor, supra. We cannot doubt that, if all of the evidence in this ease relating to the question of probable cause is fairly considered, the ease is brought within the second class, and that the court erred in denying appellants’ request for an instructed verdict in their favor. There is another and separate reason why the motion for instructed verdict should have been granted in favor of Rouse and Dawson. It is alleged in each count that Rouse and Dawson counseled, assisted, and conspired with Mangus in instituting prosecution of the criminal charges. We find no evidence in the record that tends to sustain that allegation. We have already noted that Mangus testified that when he obtained the receipts he went to Slater, Dawson, Rouse, and some of the other directors, showed them the receipts and asked their advice, and they advised him to take the receipts to the county attorney and see what he had to say about the matter. Rouse and Dawson confirm this. They each testified that the only talk theV had with Mangus about the issuance of these receipts was to advise him to go and consult the county attorney. There is no testimony that either of them did anything else about the matter. Rouse further • testified that the county attorney did not talk to him before Burnham’s arrest, and Dawson testified that he did not conspire or agree with anyone to have Burnham arrested. We are not unmindful of the testimony as to what occurred at a meeting on the evening of March 23, 1926. That meeting was called because Burnham had undertaken to discharge, or at least it was reported that he had undertaken to discharge, the driller at the. well, and he was notified to attend that meeting. We gather from the record that Burnham had the notion that the written contract by which he was employed to sell treasury stock also gave him the management of the company’s operations. The contract did not give him such authority. Others who attended that meeting were Rouse, Mangus, Heston, Hamilton, Slater, Gregory, Frakes, Gilbert, and Forney. Burnham’s wife, his sister, and a seventeen year old boy who lived with the Burnhams, testified that they stood at a window of the room in which the meeting was being held, and heard Dawson say they had to get rid of the Indian, and that Rouse replied they had to get rid of him behind the bars and throw the key away. They testified this occurred while Burnham was out of the room in which the meeting was being held. This was denied by Gregory, Heston, and Rouse. Furthermore, Dawson testified that,he was not at the meeting; that he had left the day before with a shipment of cattle to Kansas City and did not return for several days, and he said he had with him while testifying the bill of lading issued at Goodland on March 22d. Gregory, who is a minister at Goodland and presided over this meeting, Hamilton, Heston, and Mangus corroborated Dawson’s testimony that he was not at the meeting. This testimony about “getting rid of the Indian” was probably offered to show ill will or malice and conspiracy, but the greater weight is with the defendants that no such statements were made by anyone and that Dawson was not there. It had no bearing on the subject of probable cause. Much of the testimony as to what occurred at that meeting had no relevancy to the issues in this ease and should have been excluded as prejudicial and incompetent. In each count the plaintiff asked for $3,000.00 actual damages and $5,000.00 as punitive damages. The court in its instructions directed the jury to state the damages, actual and punitive, separately in its verdicts in the event it found for plaintiff. This direction was not complied with. The jury returned verdicts in favor of the plaintiff on each count for $6,000.00. The defendants moved for a new trial, one of the grounds therein being that the verdicts were excessive and given under the influence of passion and prejudice. The court denied the motion for new trial on condition that plaintiff remit $9,000.00 of the amounts allowed by the jury. The plaintiff filed a remittitur reducing the total damages from $24,000.00 to $15,000.00. The motion for new trial was overruled, and judgment was entered for $15,000.00. The court in entering its order of remittitur gave no reason therefor, but its ruling in that respect appears to have been responsive only to the ground of the motion for new trial just stated. We have no doubt that the opening argument made to the jury by counsel for plaintiff aroused the jurors’ prejudices and passions and caused them to find verdicts in the amounts stated. Indeed, throughout this whole argument, which appears in full in the record, there seems to be little else in it than an appeal to .passion and prejudice. It would render this opinion too lengthy to insert it here. Appellant Rouse, who is a practicing physician at Goodland, was called a crooked doctor. Counsel said the doctor’s word was worth nothing. He intimated that the county attorney had a sinister motive in deciding that charges should be filed against Burnham. He referred to Mr. Gregory as having “all the earmarks of a common, ordinary, enthusiastic liar.” He said that Mr. Dawson lied on the witness stand, and that “they come on the witness stand and every last one of them perjures himself, in order to save these rascals and scoundrels a few dollars, every last one of them.” ' When the trial opened the witnesses were excluded from the court room; and counsel in his address to the jury stated that a young lady, who had been stenographer for one of the defendants but was not a witness and sat in the court room during the trial, repeatedly went out and talked with the defendant’s witnesses, and intimated that she had been kept at the trial by one of the defendants for that purpose. In that connection he said: “Do you believe for a minute .that this man Mangus is as poor as he pretends to be, when he can keep a stenographer like that, with a fur coat, and bring her to Topeka and keep hear here, and have her carry word to the witnesses?” We find nothing in the record to justify these remarks, and, if they had been true, they were not matters for consideration by the jury. There was no rebuke at any time from the court, and the jury must have thought that the argument was an appropriate one, else the court would not have permitted it. The verdicts of the jury in the total sum of $24,-000.00 is evidence of aroused prejudices against the defendants. Conduct of plaintiff’s counsel was not only improper, it was reversible error. It is the duty of the court of its own motion to protect litigants from abuse by opposing counsel. New York Cent. R. R. Co. v. Johnson, 279 U. S. 310, 318, 49 S. Ct. 300, 73 L. Ed. 706. There is another serious question about the four verdicts — Were they for separate damages or were they all for the same damages, and thus quadruplicates? The only difference in the four counts is that in two of them it appears that plaintiff had'preliminary hearings on two of the changes and was bound over to the district court, and those charges were there dismissed by the county attorney. The other two criminal charges remained in justice of the peace court. The ad damnum clauses in the four counts are identical. As damages they each alleged: the arrest, imprisonment and prosecution, thereby causing injury to plaintiff’s good name and reputation, his humiliation and shame, his impaired health, and injury to his business. We think it must be conclusively presumed that a verdict on the first count included all recoverable damage, both actual and punitive. There was one arrest, one imprisonment, plaintiff had preliminary hearing on that count and there was no proof of damage separately attributable to the other counts. There was in substance but one cause of action, one wrong alleged, and only one verdict should have been rendered. The vital issues were not adhered to, and as a result much incompetent and prejudicial evidence was admitted, some of it over objection. Those errors may not occur on a second trial and will not be further noticed. Reversed and remanded.

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

DISTRICT-REALTY TITLE INSURANCE CORPORATION v. Rudolf ENSMANN, et al., Appellees, James S. Sollins, et al., Appellants. No. 84-5475. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 16, 1984. Decided July 23, 1985. Reuben B. Robertson, III, Washington, D.C., with whom Richard H. Streeter and Dennis A. Davison, Washington, D.C., were on the brief, for appellants. Kate A. Martin, Washington, D.C., with whom David N. Webster, Washington, D.C., were on the brief, for appellees. Before TAMM, MIKVA and EDWARDS, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: This statutory interpleader action, like the related case of Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, (also released today), derives from Ferd Schneider’s unsuccessful efforts to sell the Clermont apartment building, located at 2106 F Street, N.W., in Washington. Dumbarton Developers, Clermont Corporation, James S. Sollins, Dianna Brochendorff, and a number of project creditors appeal here from the district court’s entry of summary judgment in favor of appellees Rudolf Ensmann and 2106 F Street Associates. The district court found that the agreement between the parties unambiguously required return of all the interpleaded funds to Ensmann. The court refused to allow the introduction of extrinsic evidence to contradict the terms of the written contract and found the prevention doctrine inapplicable. We affirm. The facts underlying this dispute are summarized in some detail in our related opinion and consequently we need repeat only the bare essentials here. By a contract dated February 10, 1981, Schneider agreed to sell the Clermont to a partnership composed of two District of Columbia corporations: Dumbarton Developers, Inc. (“Dumbarton”) and Clermont Tenants Association, Inc. (“CTA”) t/a Clermont Partnership (collectively, the purchaser). After acceding to several requests on the part of the purchaser to postpone settlement, Schneider declared that unless settlement was made by May 17, 1982, he would terminate the agreement. Settlement was not made, and Schneider sued in district court for a declaratory judgment that the agreement was terminated. That lawsuit was settled under an “Agreement of Settlement and Release” dated August 4, 1982. The settlement gave purchaser another two months to complete the transaction but asserted that time was of the essence and that the time for settlement could not be extended beyond October 4, 1982, for “any reason whatsoever.” Unbeknownst to Schneider, Dumbarton had brought in West German investor Rudolf Ensmann as a financial backer. Subsequently, Dumbarton, CTA, and Ensmann had become embroiled in disputes over the respective rights and duties of the parties and, in particular, over which entity should take title to the property at the closing. When the crucial date — October 4 — arrived, these disputes had still not been resolved. On the morning of the 4th, however, Ensmann finally persuaded CTA to assign its interests to Ensmann and to attempt to exercise its option to buy out Dumbarton’s share of the partnership. But when Dumbarton learned of CTA’s plan, Dumbarton objected and insisted that any purported exercise of the option would be invalid. The parties continued to wrangle with each other throughout the day and into the night. Several different sets of escrow instructions were delivered to the title company, District-Realty Title Insurance Corporation, none of which could be fully implemented. Ensmann’s attorneys created appellee 2106 F Street Associates (“2106”), as a District of Columbia limited partnership 99% owned by Ensmann, with the intent that 2106 would ultimately take title to the property. They also transferred approximately $1,405,000 to the title company. Eventually, moreover, they obtained an assignment from Dumbarton. But, as of midnight, settlement had neither been made nor consummated. See Schneider, at 1010-1012, 1012-1015. At about 2:50 P.M. on October 5, purchaser had still not made settlement. Schneider declared the Land Purchase Agreement terminated and requested that the title company return all documents submitted in connection with the transaction. In an apparent effort to salvage the situation, the would-be purchaser immediately arranged for the title company to issue Schneider a check for the adjusted purchase price and sent a new deed naming 2106 as grantee. Schneider was given a copy of the CTA assignment, but, for some reason, not the Dumbarton assignment. Schneider’s attorney inquired as to whether a similar assignment could be obtained from Dumbarton and was told it could not. Ensmann’s attorneys nonetheless encouraged Schneider to go through with the sale, offering to indemnify him in the event that he was sued for wrongful transfer. Schneider’s attorney advised that such an indemnification would be inadequate to fully protect Schneider from resulting litigation. Consequently, on October 6, Schneider brought a second suit for declaratory judgment. A few days later, Ensmann sought return of the money he had paid over to the title company. Aware of disputes among the parties and of the claims of various project creditors, the title company refused to comply with the request. Instead, on October 13, it filed an interpleader action pursuant to 28 U.S.C. § 1335, naming Ensmann, Dumbarton, Clermont Corporation (Dumbarton’s successor in interest), James S. Sollins and Dianna Brochendorff (principals of Dumbarton and Clermont), CTA, Schneider, one of the tenants of the apartment building, and a number of Dumbarton creditors who had performed work related to the property. The title company deposited $245,000, representing an approximation of the aggregate value of the claims, with the court. (The balance was disbursed in accordance with Ensmann’s directions.) The district court denied a motion to consolidate the two suits, but granted 2106’s motion to intervene. It then stayed the interpleader action pending disposition of Schneider v. Dumbarton Developers. Following rendition of judgment in Schneider, the district court granted summary judgment in favor of movants Ensmann and 2106. The judge ruled that there were no genuine issues of material fact and that movant was entitled to judgment as a matter law. He found that the pertinent contractual provisions were unambiguous and contemplated return of all funds to Ensmann in the event of nonsettlement. The judge refused to allow the introduction of extrinsic evidence to vary what he found to be clear contractual terms. He found no evidence that Ensmann had frustrated the contract, but concluded that in any event, the contract allocated the risk of intentional frustration to the Dumbarton Group (which includes Dumbarton, Clermont Corporation, Sollins and Brochendorff). He found the prevention doctrine inapplicable and concluded that no waiver had occurred. The district court awarded Ensmann the funds less counsel fees and expenses awarded to District-Realty and $50,000 liquidated damages awarded to Schneider. The Dumbarton Group and a number of project creditors appeal. District-Realty was discharged of all responsibility or liability for the inter-pleaded funds by order of the district court. CTA has disclaimed any interest in the money. They and Schneider take no part in this appeal. This appeal turns on the language of the Settlement Agreement between the Dumbarton Group and Ensmann. See Settlement Agreement, reprinted in Record Excerpts (“R.E.”) at 38-46. There is no doubt that under the agreement, Ensmann assumed full responsibility for paying the project creditors and others if the deal went through. The dispute here is whether Ensmann assumed responsibility for the payments even if the deal failed. The district judge found that Ensmann did not. We agree. Section 4(A) of the Settlement Agreement, R.E. at 41, spells out Ensmann’s financial obligations, including the obligation to pay various project creditors. Section 4(B), however, provides that the [rjelease of funds provided for in ... (A) to any party other than the Ensmann group is subject to the following conditions. R.E. at 41 (emphasis added). The conditions are the delivery into escrow of the escrow documents, full performance by Schneider of his obligations as seller, and the occurrence of settlement under the Land Purchase Agreement. Section 4(C) states that if settlement under the Purchase Agreement does not take place for any reason, all funds provided in subparagraph (B) above shall be paid by the Title Company to the order of the Ensmann group. R.E. at 42 (emphasis added). In addition, Section 9(C)(iii) mandates that if settlement under the Purchase Agreement does not take place ... the Title Company shall mark the Escrow Documents “VOID” and deliver each of the Escrow Documents to the party or Group which executed and delivered same. If the documents were voided and returned, this Settlement Agreement shall be terminated, and no party hereto shall have any liability to the other parties by virtue of this Settlement Agreement. R.E. at 44 (emphasis added). Appellants claim that the contractual language is ambiguous and that, in light of extrinsic evidence, it should be construed to mean “for any reason not attributable to Ensmann.” In our view, phrases such as “for any reason” and “no party hereto shall have any liability” could hardly be more clear cut and categorical. This language is reasonably susceptible of only one interpretation: the funds must be restored to Ensmann. Cf. Lee v. Flintkote, 593 F.2d 1275, 1282 (D.C.Cir.1979). Given that Ensmann was putting up all the money and that the settlement agreement was reached at the eleventh hour, when the danger that the deal would founder must have been apparent, Ensmann had every reason to bargain for nonliability in the event that settlement failed to occur. Although the Appellants strenuously insist upon the contract’s ambiguity, they have failed to identify wherein the ambiguity lies. Instead they seek to direct the court’s attention to extrinsic circumstances which they believe support their claim that the parties intended something different from the words they wrote. The district judge correctly observed that the parol evidence rule bars the introduction of extrinsic evidence to vary the terms of an unambiguous contract. See Lee, 593 F.2d at 1280 n. 25 & 1281; Clayman v. Goodman Properties, Inc., 518 F.2d 1026, 1033-34 (D.C.Cir.1973); Vakas v. Manuel, 316 F.2d 369, 370 (D.C.Cir.1963). He also properly noted that the mere fact that parties disagree about the meaning of a contractual term does not establish ambiguity. See Clayman, 518 F.2d at 1034. Consequently, he refused to entertain Appellants’ extrinsic evidence. There is no basis for disturbing the district judge’s conclusions. Even if there were ambiguity, the Appellants have failed to allege facts supporting their interpretation. The trial testimony of Ensmann’s attorney so heavily relied upon by the Appellants as an “admission” is at best equivocal. Ms. Owen stated that Ensmann’s main concern was avoiding liability for events outside his control, see R.E. at 160a-160b; such an assertion is insufficient to prove that he was eager to embrace liability for nonsettlement resulting from events within his whole or partial control. The testimony also fails to establish that the contract as finally written and signed was intended by both parties to relieve Ensmann of liability only if he were entirely free of fault for the nonsettlement. Apart from Ms. Owen’s equivocal testimony, the Appellants have essentially no support for their interpretation except the singularly unpersuasive protest that the contract could not mean what it appears to mean because if it did they would never have signed it. Supporting the interpretation adopted by the court, on the other hand, is not only the natural meaning of the words as written, but also the fact that an early draft contained the very provision which the Appellants now seek to read into the finished contract. See Draft Settlement Agreement 8(B)(i), reprinted in Supplemental R.E. at 11. The excision of a clause appearing in an early draft is strong circumstantial evidence that the parties made an affirmative decision to exclude it from their integrated agreement. Finally even if we were to accept both the Appellants’ assertion of ambiguity and their flimsily supported interpretation, we would still be constrained to conclude that the contract required return of the funds to Ensmann. The Appellants have failed to allege facts that would allow a court to reasonably conclude that Ensmann intentionally frustrated the deal, and the district court’s fact findings in the related case indicate that the blame should be spread a great deal more widely than Appellants suggest. There is no evidence that Ensmann intentionally sabotaged the deal. The evidence is to the contrary. It suggests that he devoted considerable energy to attempting to close, that even after the time for closing had elapsed, he continued to press Schneider to go through with the deal, that he offered to indemnify Schneider, and that subsequently he participated actively in litigation to force Schneider to go through with the sale. The one act to which Appellants point as arguably supporting their interpretation — the failure to give Schneider a copy of the Settlement Agreement — occurred after October 4. As explained in some detail in Schneider, settlement had to occur by October 4. Acts tending to show that Ensmann frustrated settlement after that date are unavailing. The Appellants also urge us to apply the prevention doctrine. We agree with the district judge that the doctrine has no applicability to these facts. The prevention doctrine is an exception to the general rule that one has no duty to perform under a contract containing a condition precedent until the condition occurs. The doctrine excuses a condition precedent when a party wrongfully prevents the condition from occurring. The theory is that [a]n express promise to perform on the happening of an event warrants implication of a promise to refrain from activity impeding its happening, and breach of the implied promise is legally as serious as the breach of the express. R.A. Weaver & Associates, Inc. v. Haas & Haynie Corp., 663 F.2d 168, 176 (D.C.Cir. 1980). The prevention doctrine is triggered when a promissor “completely forecloses occurrence of the condition” or “substantially hinders its occurrence.” Id. (emphasis added). The gist of Appellants’ argument is that Ensmann intentionally prevented settlement from occurring under the Land Purchase Agreement and consequently should not be permitted to rely on the nonoccurrence of settlement to avoid liability. What Appellants neglect to note, however, is that when a contract “authorizes” a party to prevent a condition from occurring, “there is no prevention.” Shear v. National Rifle Association, 606 F.2d 1251, 1256 (D.C.Cir.1979); see also 5 Williston on Contracts § 377A, at 235; 3A Corbin on Contracts § 767, at 545. The essential inquiry is whether or not the contract allocated the risk of nonsettlement. By stating that the funds were to be returned to Ensmann if settlement did not occur “for any reason,” the contract allocates to Dumbarton the risk of nonsettlement, regardless of cause. Consequently, there is no prevention. Appellants further contend that Ensmann, by his conduct, waived the requirement that settlement occur under the Land Purchase Agreement. Although it is certainly true that “[wjaiver can occur by mutual agreement when the parties manifest an intent to be bound by a contract even when a stated condition precedent has not been satisfied,” Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179 (D.C.Cir.1980), no such mutual agreement is present here. Appellants concede that Ensmann never waived the condition in writing or even by express oral agreement. The acts to which Appellants point give no indication of waiver. Rather they show Ensmann’s continuing efforts to bring about the settlement. They are consistent with other portions of the assignment agreement which require the parties to use their best efforts to bring about settlement and, if necessary, to join in suing Schneider for specific performance. Efforts to bring about a condition cannot be considered waiver of the condition. Finally Appellants contend that the district court’s entry of judgment was premature because issues of fact remain which should have been resolved at trial. None of the lingering factual disputes, however, is material to the resolution of this controversy. Questions such as “whether Ensmann’s actions of October 5-7 substantially contributed to the ultimate demise of the deal” relate to conduct after the relevant date and to extrinsic matters, the consideration of which is barred by the parol evidence rule. This case turns on the interpretation of an agreement between the Dumbarton Group and Ensmann. We conclude that the district court properly found the relevant contractual terms unambiguous and properly applied the parol evidence rule to bar the introduction of extrinsic evidence to vary the terms of the contract. We further conclude that the district judge was correct in rejecting Appellants’ prevention and waiver arguments and in finding no genuine issues of material fact requiring a trial for resolution. Accordingly, we affirm. It is so ordered.

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

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

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

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

NATIONAL LABOR RELATIONS BOARD v. BELL AEROSPACE COMPANY, DIVISION OF TEXTRON, INC. No. 72-1598. Argued January 14, 1974 Decided April 23, 1974 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Blackmun, and Rehnquist, JJ., joined. White, J., filed an opinion dissenting in part, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 295. Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, and Linda Sher. Richard E. Moot argued the cause and filed a brief for respondent. John Fillion, Stephen Schlossberg, Abe F. Levy, Victor Van Bourg, Charles K. Hackler, and Jack Levine filed a brief for the International Union, United Automobile, Aerospace and. Agricultural Implement Workers of America as amicus curiae urging reversal. Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. This case presents two questions: -first, whether the National Labor Relations Board properly determined that all “managerial employees/’ except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act; and second, whether the Board must proceed by rulemaking rather than by adjudication in determining whether certain buyers are “managerial employees.” We answer both questions in the negative. I Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) for a representation election to determine whether the union would be certified as the bargaining representative of the 25 buyers in the purchasing and procurement department at the company’s plant. The company opposed the petition on the ground that the buyers were “managerial’ employees” and thus were not covered by the Act. The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company’s needs from outside suppliers. Some items are standardized and may be purchased “off the' shelf” from various distributors.and suppliers. Other items must be made to the company’s specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose-one. Absent specific instructions to the 'contrary, buyers have full- discretion, without any dollar limit, to select' prospective, vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000, They may place or cancel orders of less than $5,000 on their own signature. ’ On commitments in excess of $5,000, buyers must' obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company’s sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms. After the representation hearing, the Regional Director transferred the case to the Board. On. May 20,.1971, the Board issued its decision holding that the company’s buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N. L. R. B. 431. Relying on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N. L. R. B. 550 (1970), the Board first stated that even though the company’s buyers might be “managerial employees,” they were nevertheless covered by the Act and entitled to its protections^ The Board then rejected the company’s alternative contention that representation should be denied because the buyers’ authority to commit the company’s credit/ select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers as union members and the company. In essence, the company argued that buyers would be more receptive to bids from union contractors and would klso influence “make or buy” decisions in favor of “make,” thus creating additional work for sister unions in the plant. The Board thought, however, that-any possible conflict was “unsupported conjecture” since the buyérs’ “.discretion and latitude for independent action* must take place within the confines of the general directions which the Employer has established” and that “any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer.” 190 N. L. R. B., at 431. On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company’s buyers. That same day, ■ however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602, and held that “managerial employees” were not covered by the Act and were therefore not entitled to its protections. Ia., at 610. Encouraged by the Eighth Circuit’s decision, r,he company moved the Board for reconsideration of its earlier order. The Board denied the motion, 196 N. L. R. B. 827 (1972), stating that it disagreed with the Eighth Circuit and. would adhere to its'own decision in North Arkansas'. In the. Board’s view, Congress intended to excludé from the Act only those “managerial employees” associated with the “formulation and implementation of labor relations policies.” Id., at 828. In each case, the “fundamental touchstone” was “whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization.” Ibid. Turning to the present case, the Board reiterated,its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations. The company stood by its contention that the buyers, as “managerial employees,” were not covered by the Act and refused to bargain.with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated §§ 8 (a) (5) and (1) of the Act, 29 U. S. C. §§ 158 (a)(5) and (1), and an order compelling the company to bargain with the union. 197 N. L. R. B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second.Circuit for review" of the order and the Board cross-petitioned for enforcement: The Court of Appeals denied enforcement. 475 F. 2d 485 (1973). After reviewing the legislative history'of the. Taft-Hartley Act of 1947, 61 Stat. 136, and the Board’s decisions in this area, the court concluded that Congress had intended to exclude all true “managerial employees” from the protection of the Act.. It explained that this “exclusion embraced not only an employee ‘so closely related to or aligned with management as to pla,ce the employee in a position of conflict of interest between his employer on the one hand and his fellow workers on the other’ but also one who is ‘formulating, determining and effectuating his employer’s policies or has discretion, independent of an employer’s established policy, in the performance of his duties,’ Illinois State Journal-Register, Inc. v. NLRB, 412 F. 2d 37, 41 (7 Cir. 1969).” 475 F. 2d, at 494. The court added, however, that “the Board would [not] be precluded, on proper proceedings, from determining that buyers, or some types of buyers, are not true ‘managerial employees’ and consequently come within the protection of § 8 (a)(5) and (1).” Ibid. Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company’s buyers were not sufficiently high in the managerial hierarchy to constitute true “managerial employees.” Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board’s decision rested on a factual determination that these buyers' were not true “managerial employees” rather than.on “its new, and in our view, erroneous holding that it- was free to regard all managerial employees as covered by the Act unless their duties met” the conflict-of-interest touchstone. Id., a.t.494-495. Second, although the Board was not precluded from holding that buyers, or softie types of buyers, were not “managerial employees,” the court thought that, in view of the Board’s long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rulemaking proceeding in, conformity with § 6 of the Act, 29 U. S. C. § 156. The court therefore remanded the case to the Board for such a proceeding. We granted the. Board’s petition for certiorari. 414 U. S. 816. II We begin with the question whether all “managerial employees,” rather than just those in positions susceptible to. conflicts of interest in labor relations, are excluded from the protections of the Act. The Board’s early decisions, the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and subsequent Board and court decisions provide the necessary guidance for our inquiry. In examining these authorities, we draw on several established principles of statutory construction. In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has re-enacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress. We have also recognized that subsequent legislation declaring the intent of an earlier, statute is entitled to significant weight. Application of these principles-leads us to conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as “managerial.” A The Wagner Act, 49 Stat. 449, did not expressly mention the term “managerial employee.” After the Act’s passage, however, the Board developed the concept of “managerial employee” in a series of cases involving the appropriateness'of bargaining units. The first cases established that “managerial employees” were not to be included in a unit with rank-and-file employees. In Freiz & Sons, 47 N. L. R. B. 43, 47 (1943), for example, the Board excluded expediters from a proposed ■ unit of production and maintenance workers because they were “closely related to the management.” Similarly, in Spicer Mfg. Corp., 55 N. L. R. B. 1491, 1498 (1944), expediters were again excluded from a unit containing office, technical, clerical, and professional employees because “the authority possessed by [the expediters] to exercise their discretion in making commitments on behalf of the Company stamps them as. managerial.” This rationale was soon applied to buyers. See, e. g., Hudson Motor Car Co., 55 N. L. R. B. 509, 512 (1944); Vulcan Corp., 58 N. L. R. B. 733, 736 (1944); Barrett Division, Allied Chem. & Dye Corp., 65 N. L. R. B. 903, 905 (1946); Electric Controller & Mfg. Co., 69 N L. R. B. 1242, 1245-1246 (1946). The Board summarized its policy on “managerial employees” in Ford Motor Co., 66 N. L. R. B. 1317, 1322 (1946): “We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine and effectuate management policies. These employees we have considered and still deem to be ‘managerial/ in that they express and make operative the decisions of management.” Whether the Board regarded all “managerial employees” as entirely outside the protection of the Act, as well as inappropriate for inclusion in a rank-and-file bargaining unit, is less certain. To be sure, at no time did the Board certify even a separate unit of “managerial employees” or state that such was possible. The Board was cautious, however, in determining which employees were “managerial.” For example, in Dravo Corp., 54 N. L. R. B. 1174, 1177 (1944), the Board excluded buyers and expediters' from a unit of office and clerical employees, but reserved the question whether all such employees were to be considered “managerial”: “This is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us.” - During this period the Board’s policy with respect to the related but narrower category of “supervisory employees” manifested a progressive uncertainty. The Board first excluded supervisors from units of rank-and-file employees, e. g., Mueller Brass Co., 39 N. L. R. B. 167, 171 (1942), but in Union Collieries Coal Co., 41 N. L. R. B. 961, supplemental decision, 44 N. L. R. B. 165. (1942), it certified a separate unit composed of supervisors who were to be represented by an independent union. Shortly thereafter, in Godchaux Sugars, Inc., 44 N. L. R. B. 874 (1942), the Board approved a unit of supervisors whose union was affiliated with a union of rank-and-file employees. This trend was soon halted, however, by Maryland Drydock Co., 49 N. L. R. B. 733 (1943), where the Board held that supervisors, although literally “employees” under the Act, could not be organized in any unit. And in Yale & Towne Mfg. Co., 60 N. L. R. B. 626, 628-629 (1945), the Board further held that timestudy men, whose “ ‘interests and functions’ ” were “ ‘sufficiently akin to those of management,’ ” should neither be included in a unit with other-employees, nor be established as a separate unit.” Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N. L. R. B. 4, 64 N. L. R. B. 1212 (1945), where the Board held that foremen could constitute an appropriate unit for collective bargaining. The Board’s position was upheld 5^1 by this Court in Packard Co. v. NLRB, 330 U. S. 485 (1947). In view of the subsequent legislative reversal of the Packard decision, the dissenting opinion of Mr. Justice Douglas is especially pertinent. Id., at 493. He stated: “The present decision... tends to obliterate the line between.management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating'group, on the one hand and the stockholder and bondholder group on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or. power between ■management and labor becomes secondary to a growing unity in their common demands on ownership. “I do not believe this is an exaggerated statement of the basic policy questions which underlie the present decision. For if foremen are ‘employees’ within-the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents — -indeed, all who are on the payroll of the company, including the president; all who are commonly• referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps. “[I]f Congress, when it enacted the National Labor Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none.” Id., at 494-495. Mr. Justice Douglas also noted that the Wagner Act was intended to protect “laborers” and “workers” whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest. By contrast, there was no similar history with respect to foremen, managers, superintendents, or vice presidents. Id., at 496-497. Furthermdre, other legislation indicated that where Congress desired to include managerial or supervisory personnel in the category of employees, it did so expressly. See, e. g., Railway Labor Act of 1926, 44 Stat. 577, 45 U. S. C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953, 46 U. S. C. § 1101 et seq.; Social Security Act, § 1101, 49 Stat. 647. B The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136. The House bill, H. R. 3020, 80th Cong., 1st Sess. ’ (1947), providéd for the exclusion of “supervisors,” a. category broadly defined to include any individual who had authority to hire, transfer, promote, discharge, reward, or discipline other employees or effectively to recommend such action. It also excluded (i) those who had authority to determine or effectively recommend the amount of wages earned by other employees; (ii) those employed in labor relations, personnel, and employment departments, as well as police and time-study personnel; and (iii) confidential employees. The Senate version of the bill, S. 1126, 80th Cong., 1st Sess. (1947), also excluded supervisors, but defined that category more narrowly than the House version, distinguishing between “straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). It was the Senate’s view that employees such as “straw bosses,” who had only minor supervisory duties, should be included within the Act’s protections. Significantly, both the House Report and the Senate Report voiced concern over the Board’s broad reading of the term “employee” to include those clearly within the managerial hierarchy. Focusing on Mr. Justice Douglas’- dissent in Packard, the Senate Report specifically mentioned that even, vice presidents might be unionized under the Board’s decision. Ibid. It also noted that unionization of supervisors had hurt productivity, increased the accident rate, upset the balance of power in collective bargaining, and tended to blur the line between management and labor. Id., at 4^5. The House Report echoed the concern for reduction of industrial output and noted that unionization of supervisors had deprived employers of the loyal representations to which they were entitled. And in criticizing the Board’s expansive reading of the Act’s definition of the term “employees,” the House Report noted that “[w]hferu. Congress passed the Labor Act, we were concerned,' as we said in its preamble, with the welfare of ‘workers’ and ‘wage earners,’ not of the boss.” H. R. Rep. No. 245, 80th Cong., 1st Sess., 13 (1947). The Conference Committee adopted the Senate version of' the bill. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35 (1947). The House Managers’ statement in explanation of the Conference, Committee Report stated: “The conference agreement, in the definition of ‘supervisor,’ limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the aet. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment... applicable with respect to professional employees will cover many of this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards.” Id., at 35-36. The legislative history of the Taft-Hartley Act of 1947 may be summarized as follows. The House wanted to include certain persons within the definition of “supervisors,” such as straw bosses, whom the Senate believed should be protected by the Act. As to these persons, the Senate’s view prevailed. There were other persons, however, who both the House and the Senate believed were plainly outside the Act. The House wanted to make the exclusion of certain of these persons explicit. In the conference agreement, representatives from both the House and the Senate agreed that a specific provision was unnecessary since the Board had long regarded such persons as outside the Act. Among those mentioned as impliedly excluded were persons working in “labor relations, personnel and empldyment departments,” and “confidential employees.” But assuredly this did not exhaust the universe of such excluded persons. The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the" Act that no specific exclusionary provision was thought necessary. For example, in its discussion of confidential employees, the House Report noted that “[m]ost of the people who would qualify as ‘confidential’ employees are executives and are excluded from the act in any event.” H. R. Rep. No. 245, p. 23 (emphasis added). We think the inference is plain that “managerial employees” were ■paramount among this impliedly excluded group. The Court of Appeals in the instant case put the issue well: “Congress recognized there were other persons so much more clearly ‘managerial’ that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while ‘confidential secretaries’ could not be organized, their bosses could be. In other words, Congress failed to enact the portion of Mr. Justice Douglas’ Packard dissent relating to the organization of executives, not because it disagreed but because it deemed this unnecessary.” 475 F. 2d, at 491-492. (Footnote omitted.) c Following the passage of the Taft-Hartley Act, the Board itself adhered to the view that “managerial employees” were outside the Act. In Denver Dry Goods, 74 N. L. R. B. 1167, 1175 (1947), assistant buyers, who were required to set good sales records as examples to sales employees, to assist buyers in the selection of merchandise, and to assume the buyer’s duties when the latter was not present, were excluded by the Board on the ground that “the. interests of these employees are more closely identified with those of management.” The Board reiterated this reading of the Act in Palace Laundry Dry Cleaning, 75 N. L. R. B. 320, 323 n. 4 (1947): “The determination of ‘managerial,’ like the determination of ‘supervisory,’ is to some extent necessarily a matter of the degree of authority exercised. We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as' ‘managerial’ employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice.” (Citations omitted.) Buyers and assistant buyers were again excluded in Denton’s, Inc., 83 N. L. R. B. 35-37 (1949), because their “interests... are more-closely identified, with management.. •..” And in American Locomotive Co., 92 N. L. R. B. 115, 116-117 (1950), the Board held that buyers could neither be included, in a unit of office and clerical employees nor placed in a separate unit, stating-: “The Employer maintains that the buyers are representatives of management. As it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they aie representatives of management, and as such may not be accorded bargaining rights under the Act.” Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in Curtiss-Wright Corp., 103 N. L. R. B. 458, 464 (1953), Because “they are representatives of management and as such may not be accorded bargaining rights under the Act.” Finally, in Swift & Co., 115 N. L. R. B. 752, 753-754 (1956), the Board reaffirmed its long-held understanding of the scope of the Act. In refusing to approve a unit of procurement drivers who were found to be representative of management, the Board declared:. “It was the clear' intent of Congress to" exclude from the coverage of-the Act all individuals allied with management. Such individuals' cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board’s position that.representatives of management may not be accorded bargaining rights under the Act (Footnotes omitted.) Until its decision in- North Arkansas in 1970, the Board consistently followed this reading of the Act. It never certified any unit of “managerial employees,” separate or otherwise, and repeatedly stated that it was Congress’ intent that such employees not be accorded bargaining rights under the Act. And it was this reading which was permitted to stand when Congress again amended the Act in 1959. 73 Stat. 519. The Board’s exclusion of “managerial employees” defined as those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer,” has also been approved by courts without exception. See, e. g., Westinghouse Electric Corp. v. NLRB, 424 F. 2d 1151, 1158 (CA7), cert, denied, 400 Ü. S. 831 (1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F. 2d 37, 41 (CA7 1969) ; Continental Insurance Co. v. NLRB, 409 F. 2d 727, 730 (CA2), cert, denied, 396 U. S. 902 (1969); Retail Clerks International Assn. v. NLRB, 125 U. S. App. D. C. 63, 65-66, 366 F. 2d 642, 644-645 (1966) (Burger, J.), cert, denied, 386 U. S. 1017 (1967); International Ladies’ Garment Workers’ Union v. NLRB, 339 F. 2d 116, 123 (CA2 1964) (Marshall, J.). And in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602 (1971), the Eighth Circuit r ^viewed the history of the Act and specifically disapproved the Board’s departure from its earlier position. D In sum, the Board’s early decisions, the purpose and legislative history of the Taft-Hartley Act- of 1947, the Board’s subsequent and consistent construction of the Act for more than two decades, and the decisions of the courts of appeals all point unmistakably to the conclusion that “managerial employees” are not covered by the Act. We agree with the Court of Appeals below that the Board “is not now free” to read a new and more restrictive meaning into the Act. 475 F. 2d, at 494. In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard in determining the status of these buyers. SEC v. Chenery Corp., 318 U. S. 80, 85 (1943); FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 249 (1972). We express no opinion as to whether these buyers fall within the category of “managerial employees.” III The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not “managerial employees,” it could do so only by invoking its rulemaking procedures under § 6 of the Act, 29 U. S. C. § 156. We disagree. At the outset, the precise nature of the present issue must be noted. The question is not whether the Board should have resorted to rulemaking, or in fact improperly-promulgated a “rule,” when in the context of the prior representation proceeding it held that the Act covers all “managerial employees” except those meeting the new “conflict of interest in labor relations” touchstone. Our conclusion that the Board applied the wrong legal standard makes consideration of that issue unnecessary. Rather, the present question is whether on remand the Board must invoke its rulemaking procedures if it determines, in light of our opinion, that these buyers are not “managerial employees”' under the Act. The Court of Appeals thought that rulemaking was reqfiired-because any Board finding that the company’s buyers are not “managerial” would be contrary to its prior decisions and would presumably be in the nature of a general rule designed “to fit all cases at all times.” A similar issue was presented to this Court in its second decision in SEC v. Chenery Cory., 332 U. S. 194 (1947) (Chenery II). There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time-in that proceeding. Rather, the Commission was required tó resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court first noted that the Commission had a statutory duty to decide the issue at hand in light of the proper standards and that this duty remained “regardless of whether those standards previously had been spelled out in a general rule or regulation.” Id., at 201. The Court continued: “The function of filling in the interstices of the [Securities] Act should be performed, as much as possible, through this quasi-legislative promulgation of rules, to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise.... Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold.of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. “In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards.” Id., at 202-203. (Emphasis added.) The Court concluded that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the. administrative agency.” Id., at 203. And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing an election list requirement first promulgated in an earlier adjudicative proceeding in Excelsior Underwear Inc., 156 N. L. R. B. 1236 (1966). The plurality opinion of Mr. Justice Fortas, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice White, recognized that “[adjudicated cases may and do... serve as vehicles for the formulation of agency policies, which are applied and announced therein,” and that such cases “generally provide a guide to action that the agency may be expected to take in future cases.” NLRB v. Wyman-Gordon Co., supra, at 765-766. The concurring opinion of Mr. Justice Black, joined by Mr. Justice Brennan and Mr. Justice Marshall, also noted that the Board had both adjudicative and rulemaking powers and that the' choice between the two was “within its informed discretion.” Id., at 772. The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion. Although there may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion.'Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, “[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.” 475 F. 2d

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Willard J. LUFF, Appellant, v. Ruth K. LUFF, Appellee. No. 19311. United States Court of Appeals District of Columbia Circuit. Argued Sept. 17, 1965. Decided Feb. 4, 1966. Petition for Rehearing En Banc Denied March 24, 1966. Leventhal, Circuit Judge, dissented. Mr. R. Sidney Johnson, Washington, D. C., for appellant. Messrs. John W. Jackson and Darryl L. Wyland, Washington, D. C., for ap-pellee. Before Fahy, McGowan and Leven-thal, Circuit Judges. FAHY, Circuit Judge: The question is whether the last will and testament of Morris F. Luff, deceased, of whom appellant, Willard J. Luff, is a surviving brother and one of several heirs at law, was impliedly revoked. The will, dated April 7,1953, provided that testator’s entire estate should go to Ruth K. Luff, appellee, who then was his wife. Thereafter they separated. Some five years after the separation she sued for and obtained an absolute divorce upon the ground of five years consecutive separation without cohabitation. A property settlement agreement entered into between the parties during the pendency of the divorce proceeding was made a part of the decree of divorce. There was no child, and neither remarried. The will was found in testator’s apartment after his death. At his request it had been sent to him by his former wife after their divorce. She offered the will for probate. Appellant filed a caveat, and the issue as to the validity of the will came on for trial before judge and jury. Appellant relied entirely upon the divorce and property settlement as impliedly revoking the will. Appellee introduced considerable testimony tending to show that decedent should not be held to have intended to revoke the will. • At the close of all • the evidence the motion of appellee for a directed verdict in her favor was granted, the will thus being given effect. We reverse, being of opinion that the divorce with property settlement revoked the will by implication of law. In so holding we follow the majority rule, which we think has the support of better reasoning. We discuss first whether our Gode provisions respecting revocation, in effect during the relevant times, set forth in the margin, allow revocation implied in law. At one time these provisions were thought not to do so. See McGowan v. Elroy, 28 App.D.C. 188, and Morris v. Foster, 51 App.D.C. 238, 278 F. 321, cert. denied, 259 U.S. 582, 42 S.Ct. 586, 66 L.Ed. 1074. However, in Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, decided in 1945 with an opinion by Chief Justice Groner, joined by Associate Justices Justin Miller and Edgerton, this court reconsidered and departed from Morris v. Foster. Following the common law the court held that where an unmarried testator, without child by a former marriage, executed a will which contained no provision for any child of a subsequent marriage, and remarried, followed by birth of a child, the will was impliedly revoked. The basis for the doctrine thus approved is that such change in the testator’s condition or circumstances gives rise to a legal presumption of an intention inconsistent with a previously executed will. Appellee contends, however, that the common law did not extend to an implied revocation by reason of divorce with a property settlement; and we find no case in the early common law, when divorce was rare, contrary to this contention. Moreover, courts have not infrequently stated that the principal grounds for implied revocation at common law were a subsequent marriage of a woman or a subsequent marriage of a man with birth of a child. But this does not end our inquiry. The doctrine of implied revocation due to change of condition or circumstances came to be recognized in a number of states by statute. Many state statutes, after specifying as does our Code the usual means of revoking a will, swpra note 1, go on to provide, “but nothing in this section will prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” While this language did not appear in our Code when this case arose, nevertheless, as we have seen, this court in Pascucci v. Alsop read the common law doctrine into our decisional law. It is urged, however, that since our Code did not contain explicit statutory authorization of revocation by implication the circumstances under which this occurred in this jurisdiction must be limited to those found in early common law decisions. We do not agree. Once the doctrine was accepted, as in Pascucci v. Alsop, we think it should not be limited to the particular circumstances which gave rise to it, if at this period of our history changes in marital relations in other respects, here divorce and property settlement, which were rarely known at the time of the early cases, bring the situation within the rationale of the doctrine. Accord, Rankin v. McDearmon, 38 Tenn.App. 160, 270 S.W.2d 660. The doctrine itself, as distinct from the occasions which originally gave rise to it, is not limited in its application solely to those occasions. And where implied revocation has been recognized, and the circumstances of its application left to the courts to decide, as here, we turn to decisional and statutory law in other jurisdictions for guidance as to whether a divorce with property settlement is such change in condition or circumstances as brings the doctrine into play. The trend of statutory law in other jurisdictions is to include changes other than such as were present in Pascucci, including marriage alone and divorce alone. And the weight of decisional law is now to the effect that when a married man makes provision in his will for his wife, and is thereafter divorced, with a property settlement between them, such change in the condition and circumstances of the parties impliedly revokes the previously executed will in favor of the wife. The cases are numerous. While some are of an early period in our history, the weight of authority persists to the present time. Lansing v. Haynes, 95 Mich. 16, 54 N.W. 699; Wirth v. Wirth, 149 Mich. 687, 113 N.W. 306; In re Hall’s Estate, 106 Minn. 502, 119 N.W. 219, 20 L.R.A.,N.S., 1073; In re Battis, 143 Wis. 234, 126 N.W. 9; In re Martin’s Estate, 109 Neb. 289, 190 N.W, 872; Younker v. Johnson, 160 Ohio St. 409, 116 N.E.2d 715; Caswell v. Kent, 158 Me. 493, 186 A.2d 581. In Caswell v. Kent, decided in 1962, it is stated: The majority rule clearly rests on the assumption based upon common knowledge and experience that it is so rare and so unusual for a testator under these circumstances [divorce and property settlement] to desire or intend that his divorced spouse should benefit further under his will, that it is not improper or unreasonable to require that such a testator make that extraordinary desire and intention manifest by a formal republication of his will or by the execution of a new will. Caswell v. Kent, supra at 582-583. In a Memorandum Opinion of the late Chief Justice Bolitha J. Laws of our District Court in Estate of Hale Plahn Daugherty, Admin. #69,504, cited at 1 Mersch, Probate Practice in the District of Columbia § 672 (2d ed. 1952), it is said: “It appears to be the weight of authority that a divorce coupled with a property settlement would revoke a will previously made. Such a settlement is said to be plainly inconsistent with the provisions of the will.” Thus we find support for our position that we should not limit application of the doctrine to such cases as Pascucci, but appropriately should apply it in the circumstances of this case. Respectable authority to the contrary is not lacking. Hertrais v. Moore, 325 Mass. 57, 88 N.E.2d 909; and see Baacke v. Baacke, 50 Neb. 18, 69 N.W. 303; Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695; Codner v. Caldwell, 156 Ohio St. 197, 101 N.E.2d 901. The reasoning of the contrary rule is stated as follows by the Massachusetts court in Hertrais v. Moore, 88 N.E.2d at 912: It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes, permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a testator’s actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. [citations omitted] If the changes relied upon by the respondents were held to achieve a revocation implied in law, other changes can be imagined which with equal plausibility might be urged to have similar effect. Persons who have drawn wills or who are to draw wills are not now to be exposed to the risk that, in the present circumstances and perhaps others, the courts might decree revocation notwithstanding that such persons do not avail themselves of the easy means afforded by statute for accomplishing revocation by their own intentional acts. The commentators recognize the division of authority; but the majority support the position we now take. Mersch refers to the majority view as that of the “American courts.” The doctrine of implied revocation is so ancient and widespread that the question simply comes down to the nature of the changed condition or circumstances which will bring it into operation. This court in Pascucci applied it to a subsequent marriage and birth of a child. We apply it to a subsequent divorce coupled with a property settlement, because that also creates such a change both in status and responsibility as to raise the presumption of change in intention which lies at the basis of the doctrine. A will in favor of a wife is a means by which a husband makes provision for her as wife. When there is a divorce and a formally agreed property settlement, as here, both the wifely status and the testamentary provision are replaced by such changed condition and circumstances that the law may well imply an intention no longer to give effect to the provision for the wife contained in the will. The intention to revoke is imputed and conclusive. It may not be overcome by evidence adduced subsequent to the death of the testator and then relied upon as indicative of an intention that the will should be effective. Inquiry into the state of mind of the testator is confined to that imputed to him by the divorce and property settlement. Lansing v. Haynes, supra; Wirth v. Wirth, supra; In re Battis, supra; In re Martin’s Estate, supra; Caswell v. Kent, supra. Contra, Card v. Alexander, 48 Conn. 492; In re Jones’ Estate, 211 Pa. 364, 60 A. 915, 69 L.R.A. 940; In re Arnold’s Estate, 60 Nev. 376, 110 P.2d 204. At common law certain changes in the condition and circumstances of the testator worked a revocation by implication, and it was formerly held that this was prima facie only, and open to rebuttal by proof that the testator intended his will to remain, notwithstanding the change in his circumstances. The rule, however, by all modern authorities, is that the presumption of law arising from the changed conditions is conclusive, and no evidence is admissible to rebut it. * * * In re Hall’s Estate, 106 Minn. 502, 119 N.W. 219, 220. This is the sounder rule, illustrated by the present case. There was evidence of strained relations between testator and appellant, one of his heirs. It was also urged that when at the divorced husband’s request his former wife sent the will to him he kept it in a bureau drawer in his apartment where it was found after his death, and that this indicated an intention not to revoke it. Testator is not available to give his version of either of these matters. He has a sister and other brothers besides appellant; and he may have asked his former wife to send the will to him so that it would no longer be in her control. He may have retained it undestroyed as a memento of happier days, or because of indecision. It is safer to rely upon the divorce and carefully composed adjustment of property between the parties, by which the former husband was relieved of further legal obligation to his former wife with respect to his property. While he remained of course free to make additional provision for her if he desired to do so the law should require this to be done anew in a manner provided by statute for valid testamentary disposition. Reversed and remanded for further proceedings not inconsistent with this opinion. . This agreement set forth in some detail a division of particular items of personal property and provided that from the monies in the hands of the wife she would pay the husband the sum of $7,000 and give him the deed to a cooperative apartment. The agreement also provided that the wife “shall not claim any interest as Wife, widow, heir, next of kin or successor” in the property of the husband and that she would execute any papers necessary or convenient to enable him, his heirs, executors, administrators or assigns “to hold or dispose of his property, free and clear of all rights of hers which she might have had except for this covenant.” . D.C. Code § 19-103: Form of will — Witnesses — Alteration—Revocation. All wills and testaments shall be in writing and signed by the testator, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said testator by at least two credible witnesses, or else they shall be utterly void and of no effect; and, moreover, no devise or bequest, or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same by the testator himself or in his presence and by his direction and consent; but all devises and bequests shall remain and continue in force until the same be burned, canceled, torn, or obliterated by the testator or by his direction in the manner aforesaid, or unless the same be altered or revoked by some other will, testament, or codicil in writing, or other writing of the testator signed in the presence of at least two witnesses attesting the same, any former law or usage to the contrary notwithstanding. (Mar. 3, 1901, 31 Stat. 1433, ch. 854, § 1626.) (Repealed by Pub.L. No. 183, 89th Cong., 1st Sess., § 8. And see n. 6, infra.) . Not mentioned in the opinion was the earlier one of Mr. Justice Barnard of the Supreme Court of the District of Columbia, Estate of Mary D. Heyl, 30 Wash. L.Rep. 296 (1902), holding that a change in the circumstances of a testatrix, by the birth of a child, by implication revoked her will executed prior to the birth. . See Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 880-881 (I960)-. . Id. at 881, n. 600. . However, on January 1, 1966, Pub.L. No. 183, 89th Cong., 1st Sess. (Sept. 14, 1965) took effect and Title 18, D.C.Code, § 109, (replacing the former § 19-103 and other provisions), does now explicitly include the words authorizing revocation “by implication of law.” S.Rep.No. 612, 89th Cong., 1st Sess. 10-11 (1965); H.R. Rep. No. 235, 89th Cong., 1st Sess. 8-9 (1965). . The English Wills Act of 1837 by Article XIX provides that “no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances,” but simultaneously by Article XVIII the Act provides that “every will made by a man or woman shall be revoked by his or her marriage,” with an exception not pertinent to our discussion. Wills Act, 1837, 7 Will. 4 and 1 Viet., c. 26, §§ 19, 20 at 3 Jarman, Wills App. B, at p. 2085 (8th ed. 1951). For state statutes see Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 885 (1960) and the Model Probate Code § 53. . “In the case at bar,” the Chief Justice continued, “as there was neither a general property settlement nor a transfer of any part of the husband’s estate to the wife the reasoning of the cases mentioned ■ does not apply.” . 2 Page, Wills § 21.101 (Bowe-Parker Revision 1960); Atkinson, Wills § 85, at 431 (2d ed. 1953); Annot., 18 A.L.R.2d 697, 705-710 (1951); Thompson, Wills § 176 (3d ed. 1947); Mersch, “Implied Revocation of Wills Revised in the District of Columbia,” 33 Geo.L.J. 182 (1945); Durfee, “Revocation of Wills by Subsequent Change in the Conditions or Circumstances of the Testator,” 40 Mich. L.Rev. 406, 412-413 (1942); Note, 52 Harv.L.Rev. 332 (1938); Evans, “Testamentary Revocation by Divorce,” 24 Ky. L.J. 1 (1935); Graunke and Beuscher, “The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator,” 5 WisXJEtev. 387 (1930). . Mersch, op. oil. supra note 9, 188-189. . Divorce itself is not enough. See text and cases referred to in 2 Page, op. oit. supra, note 9, at 521-522.

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?

MULLANE, SPECIAL GUARDIAN, v. CENTRAL HANOVER BANK & TRUST CO., TRUSTEE, et al. No. 378. Argued February 8, 1950. — Decided April 24, 1950. Kenneth J. Mullóme argued the cause and filed a brief for appellant. Albert B. Maginnes argued the cause for the Central Hanover Bank & Trust Co., appellee. With him on the brief was J. Quincy Hunsicker, 3rd. James N. Vaughan submitted on brief for Vaughan, appellee. Peter Keber and C. Alexander Capron filed a brief for the New York State Bankers Association, as amicus curiae, urging affirmance. Mk. Justice Jackson delivered the opinion of the Court. This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. 299 N. Y. 697, 87 N. E. 2d 73. The case is here on appeal under 28 U. S. C. § 1257. Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some thirty states other than New York have permitted pooling small trust estates into one fund for investment administration. The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage. Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, § 100-c (c. 687, L. 1937, as amended by c. 602, L. 1943 and c. 158, L. 1944). Under this Act a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accountings twelve to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such judicial settlement of accounts is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund. In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and in March, 1947, it petitioned the Surrogate’s Court for settlement of its first account as common trustee. During the accounting period a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many and it is clear that some of them were not residents of the State of New York. The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N. Y. Banking Law § 100 — c (12): “After filing such petition [for judicial settlement of its account] the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week for four successive weeks in a newspaper to be designated by the court a notice or citation addressed generally without naming them to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund.” Thus the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds. At the time the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to the requirements of § 100-c (9), had notified by mail each person of full age and sound mind whose name and address were then known to it and who was “entitled to share in the income therefrom . . . [or] . . . who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice.” Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts. Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c (12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of any one interested in either interest or principal. Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without jurisdiction to render a final and binding decree. Appellant’s objections were entertained and overruled, the Surrogate holding that the notice required and given was sufficient. 75 N. Y. S. 2d 397. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, 275 App. Div. 769, 88 N. Y. S. 2d 907, and by the Court of Appeals of the State of New York. 299 N. Y. 697, 87 N. E. 2d 73. The effect of this decree, as held below, is to settle “all questions respecting the management of the common fund.” We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree. See Matter of Hoaglund, 194 Misc. 803, 811-812, 74 N. Y. S. 2d 156, 164, aff’d 272 App. Div. 1040, 74 N. Y. S. 2d 911, aff’d 297 N. Y. 920, 79 N. E. 2d 746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N. Y. S. 2d 444, 453; Matter of Security Trust Co. of Rochester, id. 748, 760, 70 N. Y. S. 2d 260, 271; Matter of Continental Bank & Trust Co., id. 795, 797, 67 N. Y. S. 2d 806, 807-808. We are met at the outset with a challenge to the power of the State — the right of its courts to adjudicate at all as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is one in personam in that the decree affects neither title to nor possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v. Neff, 95 U. S. 714, the Surrogate is without jurisdiction as to nonresidents upon whom personal service of process was not made. Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal or intangible forms of property have upset the ancient simplicity of property law and the clarity of its distinctions, while new forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service of process was not required, and at other times have held personal service of process not required because the action was in rem. See cases collected in Freeman on Judgments, §§ 1517 et seq. (5th ed.). Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more indefinitely quasi in rem, or more vaguely still, “in the nature of a proceeding in rem.” It is not readily apparent how the courts of New York did or would classify the present proceeding, which has some characteristics and is wanting in some features of proceedings both in rem and in personam. But in any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its chosen procedure, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Quite different from the question of a state’s power tp discharge trustees is that of the opportunity it must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process. Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final settlement can be served only if interests or claims of individuals who are outside of the State can somehow be determined. A construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified. Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling or even a very illuminating precedent for the case before us. But a few general principles stand out in the books. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U. S. 457; Grannis v. Ordean, 234 U. S. 385; Priest v. Las Vegas, 232 U. S. 604; Roller v. Holly, 176 U. S. 398. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U. S. 71. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. “The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.” American Land Co. v. Zeiss, 219 U. S. 47, 67; and see Blinn v. Nelson, 222 U. S. 1, 7. But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U. S. 352, with Wuchter v. Pizzutti, 276 U. S. 13, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that, their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned, with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint. Nor is publication here reinforced by steps likely to attract the parties’ attention to the proceeding. It is true that publication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner’s attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U. S. 233; Security Savings Bank v. California, 263 U. S. 282, or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U. S. 241; Huling v. Kaw Valley R. Co., 130 U. S. 559. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, “It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.” In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in the accounting becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected to do so. Not even the special guardian is required or apparently expected to communicate with his ward and client, and, of course, if such a duty were merely transferred from the trustee to the guardian, economy would not be served and more likely the cost would be increased. This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198 U. S. 458; Blinn v. Nelson, 222 U. S. 1; and see Jacob v. Roberts, 223 U. S. 261. Those beneficiaries represented by appellant whose interests or whereabouts could not with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable. Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. Whatever searches might be required in another situation under ordinary standards of diligence, in view of the character of the proceedings and the nature of the interests here involved we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities. Accordingly we overrule appellant’s constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy of the statute months and perhaps years in advance does not answer this purpose. The trustee periodically remits their income to them, and we think that they might reasonably expect that with or apart from their remittances word might come to them personally that steps were being taken affecting their interests. We need not weigh contentions that a requirement of personal service of citation on even the large number of known resident or nonresident beneficiaries would, by reasons of delay if not of expense, seriously interfere with the proper administration of the fund. Of course personal service even without the jurisdiction of the issuing authority serves the end of actual and personal notice, whatever power of compulsion it might lack. However, no such service is required under the circumstances. This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. “Now and then an extraordinary case may turn up, but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done.” Blinn v. Nelson, supra, 7. The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that postal notification at the time of accounting would not seriously burden the plan. In some situations the law requires greater precautions in its proceedings than the business world accepts for its own purposes. In few, if any, will it be satisfied with less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey information to many persons whose names and addresses are in his files. We are not satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, “Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” McDonald v. Mabee, 243 U. S. 90, 91. We hold that the notice of judicial settlement of accounts required by the New York Banking Law § 100-c (12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Ala. Code Ann., 1940, Cum. Supp. 1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz. Code Ann., 1939, Cum. Supp. 1949, §§ 51-1101 to 51-1104; Ark. Stat. Ann. 1947, §§ 58-110 to 58-112; Cal. Bank. Code Ann., Deering, 1949, § 1564; Colo. Stat. Ann., 1935, Cum. Supp. 1947, c. 18, §§ 173 to 178; Conn. Gen. Stat. 1949 Rev., § 5805; Del. Rev. Code, 1935, § 4401, as amended, Laws, 1943, c. 171, Laws 1947, c. 268; (D. C.) 63 Stat. 938; Fla. Stat., 1941, §§ 655.29 to 655.34; Ga. Code Ann., 1937, Cum. Supp. 1947, §§ 109-601 to 109-622; Idaho Code Ann., 1949, Cum. Supp. 1949, §§ 68-701 to 68-703; Ill. Rev. Stat., 1949, c. 16½, §§ 57 to 63; Ind. Stat. Ann., Burns, 1950, §§ 18-2009 to 18-2014; Ky. Rev. Stat., 1948, § 287.230; La. Gen. Stat. Ann., 1939, § 9850.64; Md. Ann. Code Gen. Laws, 1939, Cum. Supp. 1947, art. 11, § 62A; Mass. Ann. Laws, 1933, Cum. Supp. 1949, c. 203A; Mich. Stat. Ann., 1943, §§ 23.1141 to 23.1153; Minn. Stat., 1945, §48.84, as amended, Laws 1947, c. 234; N. J. Stat. Ann., 1939, Cum. Supp. 1949, §§ 17:9A-36 to 17:9A-46; N. C. Gen. Stat., 1943, §§ 36-47 to 36-52; Ohio Gen. Code Ann. (Page, 1946) §§ 715 to 720, 722; Okla. Stat., 1941, Cum. Supp. 1949, tit. 60, § 162; Pa. Stat. Ann., 1939, Cum. Supp. 1949, tit. 7, §§ 819-1109 to 819 — 1109d; So. Dak. Laws 1941, c. 20; Tex. Rev. Civ. Stat. Ann., 1939, Cum. Supp. 1949, art. 7425b-48; Vt. Stat., 1947 Rev., § 8873; Va. Code Ann., 1950, §§ 6-569 to 6-576; Wash. Rev. Stat. Ann., Supp. 1943, §§ 3388 to 3388-6; W. Va. Code Ann., 1949, § 4219(1) et seq.; Wis. Stat., 1947, § 223.055.

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?

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

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

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

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

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

UNITED STATES of America, Appellant, v. Koy E. DAWKINS, C. Frank Griffin, John R. Nichols and Hazel Nichols, Appellees. No. 79-1326. United States Court of Appeals, Fourth Circuit. Argued Feb. 7, 1980. Decided Sept. 10, 1980. James J. Brown, Civ. Div., Dept, of Justice, Washington, D. C., (Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., Harold M. Edwards, U. S. Atty., Asheville, N. C., Leonard Schaitman, Civ. Div., Dept, of Justice, Washington, D. C., on brief), for appellant. William L. Auten, Charlotte, N. C., (W. S. Blakeney, Blakeney, Alexander & Machen, Charlotte, N. C., on brief), and C. Ralph Kinsey, Jr., Charlotte, N. C., (Caudle, Underwood & Kinsey, P.A., Charlotte, N. C., on brief) and (B. Irvin Boyle, Norman A. Smith, Boyle, Alexander & Hord, Charlotte, N. C., on brief), for appellees. Before HAYNSWORTH, Chief Judge, PHILLIPS, Circuit Judge, and THOMSEN, Senior District Judge. Of the District of Maryland, sitting by designation. THOMSEN, Senior District Judge. The government, plaintiff below, appeals from a judgment of the district court (1) granting summary judgment in favor of defendants on the ground that the government’s claim is barred by limitations, and (2) awarding attorneys’ fees against the government. We reverse and remand the case to the district court for further proceedings consistent with this opinion. The case involves the proper construction and application of 28 U.S.C. 2415(a) and 2416, which provide in pertinent part: § 2415(a) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later: . § 2416. For the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which- (c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances; or Essentially, the questions before us are: (1) whether the one-year grace period in § 2415(a) applies to this suit brought by the government under the Federal Priorities Statute, 31 U.S.C. 191-192; 11(2) whether “the final decisions ... in applicable administrative proceedings” include the decision of the Court of Claims in such a case as this; (3) whether the district court erred in granting summary judgment; and (4) whether the district court erred in assessing attorneys’ fees against the government. In 1968, Monroe Garment Company (Monroe) contracted with the United States to manufacture shirts for the Defense Supply Agency. After some of the shirts were delivered, the government contracting officer notified Monroe that the shirts did not meet contract specifications and demanded an equitable price reduction. On September 8,1969, Monroe appealed the decision of the contracting officer to the Armed Services Board of Contract Appeals (ASBCA), and on September 15, 1969, filed a petition in the Court of Claims alleging breach of contract. The Court of Claims stayed the action pending before it and referred the case to ASBCA on May 1, 1970. While the case was pending before ASBCA, Monroe sold substantially all its assets to Comar Industries, Inc. The sale was consummated in April 1971, and the cash proceeds were deposited in an escrow account for payment to Monroe’s creditors and stockholders. Appellees Dawkins and Griffin, attorneys who served as escrow agents, disbursed most of the funds before August 1971, and made final distribution in November 1971. Meanwhile, on October 28, 1971, after an evidentiary hearing, ASBCA held that the government was entitled to an equitable price adjustment under the contract, the amount of the adjustment to be determined by negotiations between the parties. In December 1971 Monroe filed an amended petition with the Court of Claims alleging that the ASBCA decision was erroneous, both factually and legally. In December 1973 the Court of Claims rejected Monroe’s arguments and remanded the case to ASBCA to determine the amount of the equitable adjustment owed by Monroe to the government. Monroe Garment Co. v. United States, 488 F.2d 989, 203 Ct.Cl. 324 (1973). On November 7, 1975, ASBCA determined that the United States was entitled to recover $151,252.08 from Monroe. The government then filed an answer and counterclaim in the case which Monroe had filed in the Court of Claims, and on January 27, 1977, the Court of Claims entered judgment for the United States against Monroe in the amount of $151,252.08. On December 19, 1977, the United States filed this action in the district court (1) against Dawkins and Griffin (the escrow agents who made the distributions), alleging liability under the Federal Priorities Statute (set out in n. 1 above), and (2) against appellees John and Hazel Nichols (the stockholders of Monroe, who had received the distribution to stockholders made by Dawkins and Griffin), alleging unjust enrichment. Defendants moved to dismiss the government’s action for several reasons, including limitations; after a hearing the district court held that the action was barred by the applicable statute of limitations (28 U.S.C. 2415, quoted above) and dismissed the suit. The district court also awarded attorneys’ fees in the amount of $15,000 against the United States, on the ground that the government had “acted in bad faith by vexatiously pursuing a merit-less case.” * * * * sjt * * The parties agree that the applicable statute of limitations in this case is 28 U.S.C. 2415, quoted above at the beginning of this opinion. See United States v. Motsinger, 123 F.2d 585 (4 Cir. 1941). Appellees argue and the district court held that this suit is barred by that statute because it was filed by the government more than one year after the decision of ASBCA on November 7, 1975. The government argues that the case in the Court of Claims filed by Monroe was part of the administrative proceedings and that because the complaint in the present suit was filed within one year after the. final decision of the Court of Claims, it is not barred by § 2415(a). The resolution of that issue turns on two questions: (1) whether the one-year extension of the six-year limitation period in § 2415(a) applies to the parties defendant in this action-Dawkins and Griffin, the escrow agents for the distribution of the assets of Monroe, which was the party in the administrative proceedings, and Mr. and Mrs. Nichols, who were the stockholders of Monroe and, as such stockholders, received the money which was distributed by the escrow agents after Monroe’s creditors had been paid; and (2) whether the final decision “in applicable administrative proceedings,” as that phrase is used in § 2415(a), would in this case include the final decision of the Court of Claims. We do not agree with the government’s contention that the final decision in the applicable administrative proceedings in this case included the final judgment of the Court of Claims. This conclusion, however, does not end the matter. The government also argued in the district court that even if the cause of action accrued in November 1971, when the distribution of assets was completed, the suit was nevertheless timely because facts material to the right of action against defendants herein-the distribution and receipt of Monroe’s assets-were not known and reasonably could not have been known by the responsible government officials until well within six years of the commencement of this suit. See § 2416(c) quoted above. The district court held that “dissolution of a corporation certainly implies that proceeds of the sale will be used to pay creditors, if any, within a reasonable period of time,” and decided against the government on summary judgment. The government argues that whether it was reasonable for the government to delay investigating Monroe’s status is a factual determination that should have been submitted to the jury. We agree; the government had demanded a jury trial, and various inferences could be drawn from the relevant facts. See Johns Hopkins University v. Hutton, 422 F.2d 1124, 1131 (4 Cir. 1970), cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974); Ott v. Midland-Ross Corp., 600 F.2d 24, 28 (6 Cir. 1979). * * * * * * * The finding of the district court that the government acted in bad faith by vexatiously pursuing a meritless case is not supported by the law or the record. Attorneys’ fees may be assessed against the United States only when it has waived its sovereign immunity by statute. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 266-69, 95 S.Ct. 1612, 1626-1627, 44 L.Ed.2d 141 (1975); 28 U.S.C. § 2412. * * * * * * * The judgment of the district court is hereby reversed and the case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. . 31 U.S.C. § 191 provides: Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed. The priority established under this section does not apply, however, in a case under title 11. 31 U.S.C. § 192 provides: Except with respect to a trustee acting in accordance with the provisions of title 11, every executor, administrator, or assignee, or other person, who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid. The exceptions with respect to Title 11 trustees in both § 191 and § 192 were added in November 1978; they are neither relevant nor material in the case at bar.

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

CAMPOSE et al. v. CENTRAL CAMBALACHE, Inc. No. 4094. Circuit Court of Appeals, First Circuit. Aug. 1, 1946. Antonio Reyes Delgado, of Arecibo, P. R. (Luis Mercader and Pedo Santos Borges, both of Arecibo, P. R., on the brief), for appellants. Earle T. Fiddler, of San Juan, P. R. (Jose G. Gonzalez, of San Juan, P. R., on the brief), for appellees. Before EDGESTON (by special assignment), MAHONEY and WOODBURY, Circuit Judges. PER CURIAM. The only substantial question presented by these appeals having even a savor of federal law is whether violation of the restrictions upon corporate ownership and control of land originally enacted by § 3 of the Joint Resolution of May 1, 1900, 31 Stat. 715, 716, and later embodied in § 39 of the Organic Act of March 2, 1917, 39 Stat. 951, 964, 48 U.S.C.A. § 752, — the so called “500 Acre Law” — gives rise to an action by a grantor against a corporation for annulment of the latter’s title to land conveyed to and held by it in excess of the limitations imposed. Upon analysis, however, this is not a question of federal law for the reason that the Supreme Court of the United States in Puerto Rico v. Rubert Hermanos, Inc., 309 U.S. 543, 60 S.Ct. 699, 701, 84 L.Ed. 916, determined that Congress having “affixed no direct consequences to disobedience of its land policy for Puerto Rico,” gave the Insular Legislature full power to say how its “policy was to be realized.” Hence the Supreme Court of Puerto Rico in the instant case decided a question of purely local law when it interpreted the insular statute implementing § 39 of the Organic Act, supra, Act No. 33, of July 22, 1935, Laws of Puerto Rico, Special Session 1935, p. 418, as “realizing” the Congressional policy by providing for enforcement thereof only by an information in the nature of Quo Warranto brought against the offending corporation in the insular Supreme Court by the Attorney General acting in the name of the People of Puerto Rico, so that in consequence the title of a corporation to lands held by it “in violation of the act is valid against everyone except against The People of Puerto Rico and if the latter does not institute the proper proceeding against the corporation not only does it hold the valid title but it may also convey it validly to any other person.” Seeing no clear or manifest error in this interpretation of the insular statute, or in the answers of the Supreme Court of Puer-to Rico to any of the other questions of local law presented, and finding the opinion below fully, adequately and carefully reasoned, we see no occasion to recapitulate that reasoning in a full length opinion of our own. The judgments of the Supreme Court of Puerto Rico are affirmed on the opinion of that Court with costs in this Court to the appellees.

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. ROHTSTEIN & CO., Inc., Respondent. No. 5423. United States Court of Appeals First Circuit. April 29, 1959. Arnold Ordman, Atty., Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Alfred Avins, Atty., Washington, D. C., were on the brief, for petitioner. Samuel Leiter, Boston, Mass., with whom Benjamin E. Gordon, Boston, Mass., was on the brief, for respondent. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. HARTIGAN, Circuit Judge. This is a petition by the National Labor Relations Board pursuant to Section 10(e) of the Labor Management Relations Act, 61 Stat. 146 (1947), 29 U.S.C.A. § 160, for enforcement of its order against the respondent, H. Rohtstein & Co., Inc. (hereinafter called the Company), a wholesale distributor of flour and bakers’ supplies located in Boston, Massachusetts. This order required the Company to bargain collectively with Local 25 of the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen, and Helpers of America, AFL-CIO, (hereinafter called the Union) as the exclusive representative of its drivers and warehouse employees, to desist from discouraging membership in that Union, to make whole from the date of the receipt of their offer to return to work to the date of their reinstatement two striking employees and to post the customary notices, etc. The Board’s order adopted the findings, with one exception not pertinent to this decision, conclusions and recommendations of the Trial Examiner who had found that the Company had violated Sections 8(a) (5) and (1) of the Act by refusing on and after April 22,1957 to bargain collectively with the Union and Sections 8(a) (3) and (1) by discriminatorily failing to reinstate immediately the two striking: employees upon their unconditional request for such reinstatement. The respondent contends that the findings of: the Board with respect to the questions, of fact upon which the respondent’s violations of Sections 8(a) (1), (3) and (5)-are predicated are not supported by substantial evidence on the record considered as a whole. The main foi'ce of the respondent’s argument is centered upon a finding of fact that is essential under the Act in. order for the Board to hold that the respondent’s refusal to bargain with the-union violated Section 8(a) (5). It; vigorously asserts that the record before-us does not support the conclusion that; the Union was designated or selected at any time by the majority of the Company’s employees in the appropriate unit as their exclusive collective bargaining representative. The Trial Examiner found that the appropriate bargaining unit was composed' of no more than fifteen employees during the period in which the alleged refusal to bargain occurred. At the time-when recognition was assertedly requested by William McCarthy, the Union’s president and business agent, he had ini his possession authorization cards from-, eight employees or a bare majority of the-members of the collective bargaining-unit. The respondent has challenged', the validity of three of these authorizations but because of the fact that the-loss of one authorization to the Union-would result in it not qualifying as the-exclusive collective bargaining representative as provided for in Section 9 of' the Act, if we find that the Board’s acceptance of any one of these three authorizations was erroneous (and we do so find), it will be unnecessary for us to consider the other two. It appears from the record that seven of the Company’s employees at a meeting at the Union hall on Thursday evening, April 11, 1957, signed union application and authorization blanks. The following day Samuel L. Jones, one of these seven, contacted Johnnie Bowman, an employee who had not been at the meeting, and secured Bowman’s signature on an authorization blank. The testimony of these two men concerning the circumstances of Bowman’s execution of the authorization is conflicting. Jones testified that he asked Bowman to sign the card while both were working in a freight car and told Bowman that seven employees, including himself, had already signed the authorization cards. Bowman, on the other hand, testified that he was in an automobile getting ready to go home when he was approached by Jones. He further testified that he asked Jones whether anybody else had signed and Jones had answered that he had “got the majority”. Bowman then indicated that in reliance to this response he signed the authorization card. The Trial Examiner did not attempt to resolve this conflict in testimony but stated: “Assuming that Jones made the statement attributed to him by Bowman, testimony which was denied by Jones, the Board has held that such conduct was not of such a character as to invalidate his designation. "This sort of claim of success on the part of union organizers, though untrue or exaggerated, is certainly not fraud affecting the employees’ grant of bargaining authority. On the contrary, it is clearly quite common and harmless sales talk which is ordinarily not taken seriously by the employees to whom it is made, and, in any event, is subject to ready check by the employees as to its truth.’ ” In essence, the Board thus holds that a misrepresentation even though relied upon by an employee in choosing a collective bargaining agent does not in any way affect the validity of the authorization so obtained. In the instant case it seems fairly clear that the untrue “claim of success” was of great importance to this particular employee and was certainly taken seriously by him. Of course, if an organizer made such a claim of success prior to a secret ballot election, it may very well be that its effect would be negligible for there would then be no reason for the employee in voting to give much weight to whether or not he was on the winning side. Moreover, it is difficult to see how Bowman could have readily checked the truth of Jones’ statement. Thus, both of the Board’s grounds for its policy of nonconsideration of misrepresentations of success insofar as the determination of majority designation is concerned, namely, the harmlessness of such claims and their readily verifiable nature, appear to be lacking in the instant case, yet the application of this policy was accepted without question by the Board. It must be remembered that by accepting this dubious authorization the Board in effect compels the recognition of a union which, if it were not for this misrepresentation, possibly would have been designated by only a minority of the employees. Although there is language in National Labor Relations Board v. Wm. Tehel Bottling Co., 8 Cir., 1942, 129 F.2d 250, 254, to the effect that membership cards may not be collaterally attacked on the ground that they were obtained by duress and misrepresentation, no grounds for such a rule are advanced in that opinion. Moreover, the court in that case immediately following the statement of such rule, indicated that its study of the evidence lent no support to the respondent’s contention that the membership cards were obtained through duress and misrepresentation. The Board also cites National Labor Relations Board v. Epstein, 3 Cir., 1953, 203 F.2d 482, certiorari denied 1954, 347 U.S. 912, 74 S.Ct. 474, 98 L.Ed. 1068, and Wilson Athletic Goods Mfg. Co. v. National Lab. Rel. Bd., 7 Cir., 1947, 164 F.2d 637, as authority for the proposition that untrue misrepresentations of this kind are not fraud vitiating the employee’s grant of bargaining authority. However, in the former case the court did not even discuss the point and in the latter case the statement in a circular that the Union was negotiating for a thirty cent raise in a unionized plant and could do the same for the employees of the plant which it was hoping to organize if these employees voted for the Union, was certainly not untrue. The other purportedly misleading statements were of a type which would have no effect on the vote of an employee who relied on the truth of such statements. In National Labor Relations Board v. Dadourian Export Corporation, 2 Cir., 1943, 138 F.2d 891, 892 wherein the Union claimed a majority through signed authorizations of twenty-six of the forty-six employees, the court held that “Fraud * * * will vitiate consent as well as violence * * * ” and because the Act “ * * * confers the right on all employees freely to choose their bargaining representatives, and the invasion of that right is as much a wrong, when committed by a union organizer as by an employer * * * ”, the authorization of four employees should not have been counted. The court then held as the union was never chosen by a majority of the collective bargaining unit, the order of the Board directing collective bargaining with the union would be set aside. In National Labor Relations Board v. James Thompson & Co., 2 Cir., 1953, 208 F.2d 743, it was also held that the Board was incorrect in holding the union had a majority, based on authorization cards, when the union had unlawfully indicated that nonunion members would lose their jobs and this statement had been heard by a sufficient number of employees to result in the lack of the thirty-seven lawful votes needed for a majority. It seems clear that there can be no refusal to bargain in violation of Section 8(a) (5) on the part of an employer if the purported representative of his employees was not freely designated as such by the majority of his employees in the appropriate bargaining unit. As we have pointed out, the record as a whole does not support with substantial evidence that the Union was so designated and consequently the Board’s finding of a Section 8(a) (5) violation must be set aside. Although we find that there has been no Section 8(a) (5) violation by the Company, substantial evidence in the record as a whole supports the Board’s finding that the refusal to reinstate the two striking employees immediately upon the receipt of their request for reinstatement resulted in a violation of Sections 8(a) (3) and (1). These employees had been engaged in activity protected by Section 7 of the Act and in the absence of their replacement, the refusal of reinstatement by the Company was an interference with rights protected by Section 7 and also resulted in discouragement of union membership. See National Labor Relations Board v. Thayer Co., 1 Cir., 1954, 213 F.2d 748, 752, certiorari denied 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694. A decree will be entered enforcing paragraphs 1(b), 1(c), 2(b) and 2(c) of the Board’s order. With respect to subsection 2(d) of the order, requiring the posting of notices, we shall enforce so much of the order only as relates to Sections 8(a) (1) and (3) violations by acts of interference and discrimination. We shall also direct the Company to notify the Regional Director for the First Region, in writing, within fifteen days from the date of the decree what steps it has taken to comply therewith. The remainder of the order will be set aside. . Another factor present in the Wilson case was that the challenge to the validity of the Union’s majority followed a Board supervised election and the reasoning of the Supreme Court relevant to the discretion allowed the Board in conducting elections in National Labor Relations Board v. A. J. Tower Co., 1946, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322, may well have been applicable. In the instant case this factor is not present.

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"?

I.A.M. NATIONAL PENSION FUND, BENEFIT PLAN A, Eugene Glover and Lester F. Gettel, Jr., Appellants, v. WAKEFIELD INDUSTRIES, INCORPORATED, DIVISION OF CAPEHART CORPORATION, Appellee. No. 81-1883. United States Court of Appeals, District of Columbia Circuit. Argued May 27, 1982. Decided Feb. 11, 1983. Robert T. Osgood, Washington, D.C., for appellants. Joseph H. Sharlitt, Washington, D.C., with whom Harvey A. Levin, Washington, D.C., was on the brief, for appellee, Margolis. Before WILKEY, Circuit Judge, and FAIRCHILD and ROBB, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge FAIRCHILD. Separate opinion concurring filed by Circuit Judge WILKEY. Separate opinion concurring in part and dissenting in part filed by Senior Circuit Judge ROBB. Of the United States Court of Appeals for the Seventh Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d). FAIRCHILD, Senior Circuit Judge. Plaintiffs appeal the vacating of a civil contempt order issued against the president of defendant corporation for failure to comply with an injunction directed to defendant and its officers. The appeal raises the questions whether there was sufficient service of the summons on defendant and whether there was sufficient service of the civil contempt motion on the president. Defendant Wakefield Industries, Incorporated, is a Connecticut corporation. It is a wholly owned subsidiary of Norwich Electronics, Inc., which in turn is a wholly owned subsidiary of Capehart Corporation. Defendant was named in the summons and complaint as “Wakefield Industries, Incorporated, Division of Capehart Corporation.” The president of defendant is Marvin Margolis; he is the sole appellee appearing here. Plaintiffs are trustees of I.A.M. National Pension Fund, Benefit Plan A, an employee pension benefit plan administered in the District of Columbia under the provisions of Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186 and Employment Retirement Income Security Act of 1974 (ERISA), 29. U.S.C. §§ 1001-1461. On July 1, 1980, plaintiffs brought suit against Wakefield Industries, Incorporated to compel compliance with defendant’s obligations under a Trust Agreement, executed in 1977 pursuant to a collective bargaining agreement with an I.A.M. Local Lodge. Among other things, the Trust Agreement obligated defendant to file monthly reports and make monthly contributions to the Pension Fund on behalf of employees at its Norwich, Connecticut manufacturing plant. The complaint was filed in the United States District Court for the District of Columbia. Because the plan is administered in the District of Columbia, action in that district was authorized by 29 U.S.C. § 1132(e)(2). The summons and complaint were served by a deputy marshal on Margolis at the office in New York of Capehart Corporation, of which he is also president. Wakefield Industries did not answer the complaint and a default judgment was entered against it on August 20, 1980. The judgment directed Wakefield and its “officers, agents, successors, and assigns” to prepare reports of all debts owing to the Pension Fund and enjoined them from refusing to make reports and contributions to the Pension Fund as they came due. A copy of the j udgment was mailed to Wakef ield Industries at Margolis’ New York office, and six months later was personally served on Margolis at the same address. Wakefield Industries still did not respond, and on February 10, 1981 the Pension Fund moved the district court to hold both Wakefield Industries and Margolis in civil contempt. The contempt motion was mailed to Margolis on February 10,1982 at the same New York address at which the complaint and default judgments were served. Sixteen days later, with no answer from Wakefield Industries or its president, the district court found Wakefield Industries and Margolis in civil contempt, imposed a fine of five hundred dollars ($500.00) to be paid to the Pension Fund, and directed the contemners to comply with requirements of the Trust Agreement as well as pay the Pension Fund its costs of litigation within ten days of service of the contempt order or face a fine of twenty-five dollars a day. The contempt order was personally served on Margolis at his home and at his Capehart office. Again, there was no response. On April 16, 1981 the Pension Fund moved the court for an order to commit Margolis for contempt. It was at this point that counsel for Margolis appeared before the district court with a motion to vacate the civil contempt order. Counsel argued that (1) while Margolis should have responded sooner to the Pension Fund’s complaint, he was unable to comply any further with the terms of the Trust Agreement because of the financial straits of Wakefield Industries and Capehart Corporation, and (2) Margolis was served with the contempt motion in New York City, well outside the territorial limits of a federal district court sitting in the District of Columbia. In vacating its civil contempt order, the district court was persuaded by this second argument. The court noted that Margolis was served with the contempt motion based on ERISA’s extraterritorial service of process provision, Section 1132(e)(2). Because the court believed this provision only authorized service on defendants to the action, and because Margolis was not a named defendant, the court held that it lacked personal jurisdiction over him and vacated the contempt order. Plaintiff Pension Fund appeals. I. While the district court decided that it lacked personal jurisdiction over Margolis, on appeal Margolis argues, additionally, that the defendant corporation was never served; hence the district court had no jurisdiction to enter the injunction which Margolis is alleged to have violated. There may well be doubt whether Margolis can properly challenge the district court’s personal jurisdiction over the defendant corporation. Plaintiffs, however,have not claimed that the question was improperly raised, but have argued its merits. The question of the district court’s jurisdiction over Wakefield Industries arises under the special provisions of ERISA governing venue and service of process. Section 1132(e)(2) provides: Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found. 29 U.S.C. § 1132(e)(2) (1975). As noted, the action was brought in the district where the plan is administered. The question then is one of service: whether the defendant Wakefield Industries was “found” in the Southern District of New York within the meaning of Section 1132(e)(2). The leading case interpreting Section 1132(e)(2) is Varsic v. United States District Court for the Central District of California, 607 F.2d 245 (1979). In that decision the Ninth Circuit was called upon to decide where an unincorporated association could be “found” for purposes of establishing venue. The Ninth Circuit held that Congress intended, by allowing venue wherever a defendant might be “found,” to permit suit in any district where a defendant entity’s contacts “are sufficient to satisfy the ‘minimum contacts’ test for personal jurisdiction” as defined by International Shoe Co. v. Washington, 326 U.S. 310, 318-19, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945). Id. 607 F.2d at 248-49. See also Bostic v. Ohio River Co. (Ohio Division) Basic Pension Plan, 517 F.Supp. 627, 633 (S.D.W.Va.1981) (following the Varsic interpretation of “may be found” under Section 1132(e)(2)). International Shoe sets forth a test for sufficient presence within a state to permit the exercise of personal jurisdiction by the state’s courts under the Due Process Clause of the Fourteenth Amendment. Under Section 1132(e)(2), however, the question is not one of constitutional due process but of congressional intent in prescribing a test for venue in federal district courts. In earlier cases it has been said that a corporation is “found” in a district when its officers and agents are present, carrying on the business of the corporation. See, e.g., People’s Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79, 84, 87, 38 S.Ct. 233, 234-35, 62 L.Ed. 587 (1918). In so deciding, however, the Court seems to have applied the content of the then controlling due process test for state judicial jurisdiction. See Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 255, 29 S.Ct. 445, 448, 53 L.Ed. 782 (1909). The Ninth Circuit’s resort in Varsic to the current due process test for in personam jurisdiction of a corporation to determine the meaning of “found” as a venue requirement is, we think, sound. In this case, there is no dispute as to the propriety of venue in the District of Columbia. Our question is whether the defendant corporation was “found” in the Southern District of New York so that service there was authorized by Section 1132(e)(2). In those few decisions which have addressed the question of where a corporation is “found” under federal service of process statutes, the same definition developed when the word is a requirement for venue seems to have been applied. See, e.g., United States v. Scophony Corp., 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 (1948); United States v. Aluminum Co. of America, 20 F.Supp. 13 (S.D.N.Y.1937). We have no doubt that Congress might have provided a standard for service of process different from the standard for venue. We conclude, however, that because Congress used the term “found” both in the provision for venue and the provision for service and because the history of judicial pronouncements on the meaning of that term for corporate presence in both venue and service of process provisions suggests no reason for according different meanings, the intended standards are the same. It follows that for service of process on a corporation to be valid under Section 1132(e)(2) a corporation’s contacts with the district of service must meet the International Shoe test. The defendant corporation, Wake-field Industries, was therefore properly served with process in New York only if it had sufficient contacts of a “quality and nature” such that it is “reasonable” and “fair” to require it to conduct its defense in that State. Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) (applying International Shoe, 326 U.S. at 316-17, 319, 66 S.Ct. at 158-59, 160). The Ninth Circuit suggests that a defendant falls under this standard and is “found” within a state under Section 1132(e)(2) if either of two tests are satisfied. First, “[i]f the nonresident defendant’s activities within a state are ‘substantial’ or ‘continuous and systematic,’ there is a sufficient relationship between the defendant and the state to support jurisdiction even if the cause of action is unrelated to the defendant’s forum activities.” Varsic, 607 F.2d at 249 (quoting Data Disc., Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir.1977)). Second, “[i]f ... the defendant’s activities are not so pervasive as to subject him to general jurisdiction, ... jurisdiction ... turns on an evaluation of the nature and quality of the defendant’s contacts in relation to the cause of action.” Id. We conclude that both tests are met as to Wakefield Industries in New York. From its incorporation in Connecticut Wakefield Industries has been dependent on its New York parent Capehart Corporation for business and decision-making. Wakefield Industries’ Norwich, Connecticut plant manufactured stereo systems for Cape-hart under the Capehart name; its president maintained his offices in Capehart’s New York headquarters, and also acted as Cape-hart’s president. In 1978 Capehart took direct control of Wakefield Industries’ operations, and any pretense of independence was eliminated. Among the responsibilities assumed by Capehart were the operation of Wakefield Industries’ manufacting plant and the reporting and contributing duties to the Pension Fund. Capehart regularly made these reports and payments for the next two years from its New York offices. When the payments ceased in early 1980 the Pension Fund brought this suit. While the relationship of parent and subsidiary alone would not suffice, Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 336-37, 45 S.Ct. 250, 251, 69 L.Ed. 634 (1925); School District of Philadelphia v. Kurtz Brothers, 240 F.Supp. 361, 364 (E.D.Pa.1965), where the two corporations are not really separate entities service on the parent will reach a foreign subsidiary. See Products Promotions, Inc. v. Cousteau, 495 F.2d 483, 492-93 (5th Cir.1974); Allan v. Brown & Root, Inc., 491 F.Supp. 398, 403 (S.D.Tex.1980); Edwards v. Gulf Mississippi Marine Corp., 449 F.Supp. 1363, 1365-66 (S.D.Tex.1978); Luria Steel & Trading Corp. v. Ogden Corp., 327 F.Supp. 1345, 1347-48 (E.D.Pa.1971); 3 Cyclopedia of Federal Procedure Acquiring Jurisdiction of the Person § 11.79 (3rd ed. 1967 & Supp. 1982). It is apparent on the record of this case that after 1978, and perhaps before that, Wakefield Industries was an indistinguishable part of its larger parent. Cape-hart accepted responsibility for meeting Wakefield Industries’ obligations and for managing its assets. We have little trouble deciding that a corporation which was managed out of the home office of its parent, indeed, whose chief corporate officer keeps his office there, is subject to the general jurisdiction of that state’s courts. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952) (foreign corporation doing general business through its president in Ohio subject to in personam jurisdiction in that state’s courts); Orefice v. Laurelview Convalescent Center, Inc., 66 F.R.D. 136, 139-41 (E.D.Pa.1975) (foreign corporation whose agent is performing managerial duties in Pennsylvania amenable to in personam jurisdiction there). Even if these corporate activities were insufficient to support general jurisdiction within the State of New York, the fact that Wakefield Industries’ obligations to the Pension Fund were fulfilled in that state for almost 2 years makes the exercise of jurisdiction appropriate under the second prong of the Varsic test, 607 F.2d at 249. By making payments and reports to the Pension Fund in the State of New York, Capehart and its subsidiary Wakefield Industries availed itself of the privileges of that forum, and it is the cessation of these activities which gave rise to the present cause of action. Varsic, 607 F.2d at 249-50 (9th Cir.1979); Data Disc., Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1287-88 (9th Cir.1977). The defendant Wakefield Industries máy not now assert any unfairness in having to defend its activities in the same forum. Id. II. The second issue raised in this appeal is whether Wakefield Industries’ president, Marvin Margolis, a nonparty, was properly served under Section 1132(e)(2) in a civil contempt proceeding for noncompliance with the district court’s order enjoining the defendant, “along with its officers, agents, successors, and assigns from failing or refusing promptly to submit ... reports and contributions to the [Pension Fund].” The district court vacated its contempt order after deciding that Margolis had been served with the contempt motion outside the court’s territorial limits under Federal Rule of Civil Procedure 4(f) and that Section 1132(e)(2) only authorized extraterritorial service to extend to defendants. We find that Section 1132(e)(2) does permit service of process on nonparties in contempt proceedings to enforce injunctions issued under ERISA, but hold that Margolis was nevertheless inadequately served with notice of the contempt motion in this case. Plaintiffs claim that Margolis can properly be found in contempt because he is an officer of defendant corporation who has actual notice of the injunction. Federal Rule of Civil Procedure 65(d) provides: Every order granting an injunction and every restraining order ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.... Fed.R.Civ.P. 65(d) (emphasis added). It appears that plaintiffs could probably demonstrate that Margolis is president of the corporation, with actual notice of the injunction, and that he failed to act as president to cause the corporation to comply with its terms. Whatever the outcome might be on the merits, the contempt proceeding must be predicated upon proper service on Margolis, who was not named a defendant in the action. The only advance notice given Margolis of the contempt proceeding was the Motion to Cite for Contempt. A copy was mailed to him in New York. The district court seems to have assumed that this mailing would constitute otherwise sufficient service on Margolis, but decided that service in New York was not a proper predicate for the finding of contempt because the authorization in Section 1132(e)(2) of service in another district did not extend to nonparties. We think the district court erred in its conclusion that Section 1132(e)(2) did not authorize extraterritorial service on a non-party allegedly in contempt of an injunction under ERISA. We think, however, that the court could not acquire jurisdiction over Margolis to punish him for contempt without service of the type initially required to obtain jurisdiction over a party. Although service of the contempt motion by mail may well be sufficient when made on a party, Securities Exch. Com’n v. VTR, Inc., 410 F.Supp. 1309, 1313 (D.D.C.1975), we do not deem it sufficient for one who has not been brought in as a party. ERISA’s legislative history indicates Congress’ intent that Section 1132(e)(2) extend to reach those in privity with the defendant. The Committee on Education and Labor of the House of Representatives, reporting on a draft of the ERISA legislation, stated that “[its] enforcement provisions have been designed specifically to provide ... participants and beneficiaries with broad remedies for redressing or preventing violations of the Act.... For actions in federal courts, nationwide service of process is provided in order to remove a possible procedural obstacle to having all proper parties before the court.” H.R.Rep. No. 93-533, 93rd Cong., 1st Sess. 17 (1973), reprinted in [1974] U.S.Code Cong. & Ad. News, pp. 4629, 4655 (emphasis added). Reading Section 1132(e)(2) so narrowly as to preclude the extraterritorial service of any person save the formally named defendant would thwart Congress’ intent to reach all parties. This is particularly manifest when a corporation is the named defendant and the plaintiff seeks to enforce compliance by those asserted to be in privity with it. The appellee suggests that if enforcement is sought against others they should be named as defendants as well. In the case of a corporation, with many officers and corporate agents likely to play some role in following or ignoring an injunction, this is an ill-conceived solution. It seems much more likely that Congress intended that Section 1132(e)(2) should allow service not only upon the defendant but also those in privity with it wherever they are found. While we are satisfied that Section 1132(e)(2) authorizes service of a contempt motion upon those allegedly in privity with the named defendant and subject to the court’s injunction, the question remains as to the form of service required. The proper manner for serving a nonparty with papers initiating a civil contempt proceeding has remained surprisingly ill defined. A starting point for determining the mode of service of civil contempt papers is Federal Rule of Civil Procedure 5. 15A Cyclopedia of Federal Procedures § 87.84 (3rd ed. 1976). This rule permits pleadings filed subsequent to the summons and complaint to be served upon the counsel of record for each party, or upon the party himself where not represented by counsel. In either case Rule 5 authorizes service to be made by mail. Fed.R.Civ.P. 5(b). The portion of Rule 5(b) allowing the service of post-complaint pleadings upon the counsel of record or upon the party through the mails departs from a preliminary draft of the rule that expressly required orders to show cause why a civil contempt order should not issue to be served upon “the party personally.” 2 J. Moore & J. Lucas, Moore’s Federal Practice 15.06 & n. 3 (2d ed. 1982). As a matter of practice, however, contempt papers are generally served upon the party himself by order of the court. Id.; Fed.R.Civ.P. 5(b) (allowing direct service on party in court’s discretion). While this personal service of the show cause order seems the better practice, Rule 5(b) nevertheless appears satisfied when the order is mailed to the party’s attorney or directly to the party. Whatever the proper mode of service of the show cause order upon parties to the litigation, the provisions of Rule 5 presuppose that the court has already attained jurisdiction over the individual served. 2 J. Moore & J. Lucas, supra, at 15.04[1]. The Rule’s application to a nonparty for whom the court seeks to exercise jurisdiction for the first time in contempt proceedings is unclear. The ambiguity created in applying the express provisions of Rule 5 to contempt proceedings generally, and to contempt proceedings against nonparties in particular, has been addressed by a number of local district court rules. See 7 Fed.Proc.L.Ed. § 17:32 & n. 55 (1982). These local rules permit service of the notice or order upon counsel if the alleged contemnor has appeared in the action by attorney; “otherwise, service must be made personally in the same manner as service of a summons.” Id. The requirement of personal service, at least upon one who has not been made a party, seems to be a sound requirement of good practice. We are aware of decisions which hold or suggest that personal service is not essential as long as it can be found that the nonparty in fact received sufficient notice of the proceeding to comply with due process. In Consolidation Coal Co. v. Local U. No. 1784, U.M.W., 514 F.2d 763, 766 (6th Cir. 1975), the court, although holding there was a lack of service in any form, and thus a violation of due process, said: “We do not imply, however, that, with a costly and illegal work stoppage in process, the strikers must be personally served; the ‘unhurried deliberateness’ of personal service may well further delay compliance with a no-strike injunction.” Cf. Skinner v. White, 505 F.2d 685, 690 (5th Cir.1974). In a District of Columbia case, Judge Gasch found service by mail on a nonparty corporate president adequate because of the president’s actual notice of the proceeding and his very active participation in the conduct of the action. Securities & Exch. Com’n v. VTR, Inc., 410 F.Supp. 1309, 1314 (D.D.C.1975). Margolis’ actual knowledge of the contempt proceeding before adjudication is much less clear. The District of Columbia has no rule prescribing the manner of service in initiating a contempt proceeding. There was no order in this action authorizing service by mail, and there were no exceptional circumstances making personal service cumbersome. At least in the absence of a rule or order permitting service by mail or exceptional circumstances, we conclude that personal service was required. We therefore affirm the order appealed from, vacating the adjudication of contempt. Further contempt proceedings may take place if personal service is effected or waived. Affirmed. . In addition to the cases cited in Varsic, the evolution in the meaning of “found” was noted in American Football League v. National Football League, 27 F.R.D. 264, 267-68 (D.Md. 1961). . While this construction of the service of process provision of Section 1132(e)(2) requires us to decide whether jurisdiction would hypothetically lie in a district other than where suit has been brought, the interpretation has at least two merits. First, the test is not unrelated to an inquiry as to whether or not the defendant has received sufficient notice to satisfy due process. Where the evidence establishes enough defendant contacts with the forum state to satisfy the International Shoe standard, it is reasonably certain that actual notice will result from service of process in that state. International Shoe, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945). Second, the “minimum contacts” test has the merit of offering some actual limit to the unrestricted service of a defendant corporation anywhere in the world. If the limit were only the due process requirement of likely notice, service could arguably be made on an officer, or lesser corporate agent, wherever such person may happen to be traveling. Cf. Fed.R.Civ.P. 4(d)(1). . Wakefield Industries’ president candidly states that “[a]ll of its functions had been carried on directly by Capehart after January 1, 1978.” Affidavit of Marvin Margolis, Joint Appendix at 45a. . Payments to the Pension Fund were interrupted in January and the first half of February 1979 as Capehart experienced financial difficulty. Following a petition for reorganization under Chapter 11 of the Bankruptcy Act, Capehart continued to make regular payments and reports for almost another year. At that time Capehart sold the Connecticut manufacturing plant to Wakefield Industries, Inc., a Delaware Corporation (Wakefield-Delaware). Asserting that all plant employees were now WakefieldDelaware employees, Capehart ceased additional payments to the Pension Fund. Margolis states in his affidavit that Capehart itself ceased operations at this time, some five months before service of summons in this action. We note, however, that Capehart had continued to make payments on behalf of Wakefield Industries until the sale and that it continued thereafter to maintain corporate offices in New York throughout this litigation. . While not determinative, “the character and power of the one served as an agent of the corporation [is a] test of the right to acquire jurisdiction.” Riverside Mills v. Menefee, 237 U.S. 189, 195, 35 S.Ct. 579, 581, 59 L.Ed. 910 (1915). Margolis was Wakefield Industries’ president, and played a key role in the operation of that corporation and in the fulfilling of the corporation’s obligations to the Pension Fund. That he kept his office in Capehart’s New York office is a good indication that Wakefield Industries is “found” there. . The appellee Margolis has asserted that the real defendant in the action below should have been Capehart Corporation, and that the Pension Fund simply erred in trying to serve a subsidiary corporation which had carried on no manufacturing — apparently its principal operation — for nearly two and a half years. The question of Capehart’s — or for that matter Wakefield-Delaware’s, see note 4 supra — liability for the obligations of Wakefield Industries is not before us on this appeal; the only issue is whether Wakefield Industries can be “found” at the home of its parent for service of process under Section 1132(e)(2). While it may be an accurate depiction of the facts to say that Wakefield Industries has been an inactive corporation for some time prior to service, the corporation was never dissolved; its president and its parent have been present and carrying on its business in the State of New York. In addition to fulfilling its obligations to the Pension Fund during this period, on at least one occasion Margolis acted for Wakefield Industries in signing a contract redefining the corporation’s relations with the Pension Fund. It is no abuse of process to serve the corporate president and call upon the corporation to respond to allegations concerning these activities. Having determined that Wakefield Industries was “found” in the State of New York, there is no question that service of process upon its president was valid under Fed.R.Civ.P. 4(d)(3), which allows service upon a domestic or foreign corporation “by delivering a copy of the summons and of the complaint to an officer.” See, e.g., Spearing v. Manhattan Oil Transportation Corporation, 375 F.Supp. 764, 771 (S.D. N.Y.1974); Orefice v. Laurelview Convalescent Center, Inc., 66 F.R.D. 136, 142 (E.D.Pa.1975). . The appellee’s additional claim that plaintiffs motion to cite for contempt was void under Fed.R.Civ.P. 5(a) for raising “a new and additional claim for relief’ against Margolis is without merit. The motion only seeks sanctions against Margolis for failing to take steps to comply with the injunction issued against the corporation in his official capacity as president. Cf. Wilson v. United States, 221 U.S. 361, 376, 31 S.Ct. 538, 542, 55 L.Ed. 771 (1911); NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 634 (9th Cir.1977); 15A Cyclopedia of Federal Procedure Particular Actions and Proceedings § 87.81 (3rd ed. 1976). Any assertion that this motion seeks a new and personal claim against Margolis for debts incurred by the corporation has no basis. . Rule 65(d) codifies the common law rule that “to be held liable in contempt, it is necessary that a non-party respondent ... ‘either abet the defendant, or ... be legally identified with him.’ ” Backo v. Local 281, United Brotherhood of Carpenters and Joiners, 438 F.2d 176, 180-81 (2d Cir.1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971) (quoting Alemite Manufacturing Corporation v. Staff, 42 F.2d 832, 833 (2d Cir.1930)). In general a corporate officer is “legally identified with [the corporation], and thus liable in contempt for disobeying an order directed to [it].” NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 633 (9th Cir.1977).

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

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

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. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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?

VACA et al. v. SIPES, ADMINISTRATOR. No. 114. Argued November 17, 1966. Decided February 27, 1967. ■ David E. Feller argued the cause' for petitioners. With him on the brief were Henry A. Panethiere, Russell D. Jacobson, Jerry D. Anker and George G. West. Allan R. Browne argued the cause and filed a brief for respondent.. Briefs of amici curiae, urging reversal, were filed by Solicitor General Marshall, Robert S. Rijkind, Arnold Ordman, Dominick L. Manoli and Norton J. Come for the United States; by /. Albert Woll, Robert C. Mayer, Laurence Gold and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; and by Robert L. Hecker and Earl G. Spiker for Swift & Co. Mr. Justice White delivered the opinion of the Court. On February 13, 1962, Benjamin Owens filed this class action against petitioners, as officers and representatives of the National Brotherhood of Packinghouse Workers and of its Kansas City Local No. 12 (the Union), in the Circuit Court of Jackson County, Missouri. Owens, a Union member, alleged that he had been discharged from his employment at Swift & Company’s (Swift) Kansas City Meat Packing Plant in violation of the collective bargaining agreement then in force between Swift and the Union, and that the Union had “arbitrarily, capriciously and without just or reasonable reason or cause” refused to take his grievance with Swift to arbitration under the fifth step of the bargaining agreement’s grievance procedures. Petitioners’ answer included the defense that the Missouri courts lacked jurisdiction because the gravamen of Owens’ suit was “arguably and basically” an unfair labor practice under § 8 (b) of the National Labor Relations Act (N, L. R. A.), as amended, 61 Stat. 141, 29 U. S. C. § 158 (b), within the exclusive jurisdiction of the National Labor Relations Board (NLRB). After a jury trial, a verdict was returned awarding Owens $7,000 compensatory and $3,300 punitive damages. The trial judge set aside the verdict and entered judgment for petitioners on the ground that the NLRB had exclusive jurisdiction over this controversy, and the Kansas City Court of Appeals affirmed. The Supreme Court of Missouri reversed and directed reinstatement of the jury’s verdict, relying orf this Court’s decisions in International Assn. of Machinists v. Gonzales, 356 U. S. 617, and in Automobile Workers v. Russell, 356 U. S. 634. 397 S. W. 2d 658. During-the appeal, Owens died, and respondent, the administrator of Owens’ estate, was substituted. We granted certiorari to consider whether exclusive jurisdiction lies with the NLRB and, if not, whether the finding of Union liability and the relief afforded Owens are consistent with governing principles of federal labor law. 384 U. S. 969. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Swift, and the United States have filed amicus briefs supporting petitioners. Although we conclude that state courts have jurisdiction in this type of case, we hold that federal law governs, that the governing federal standards were not applied here, and that the judgment of the Supreme Court of Missouri must accordingly' be reversed. I. In mid-1959, Owens, a long-time high blood pressure patient, became sick and entered a hospital on sick leave from his employment with Swift. After a long rest during which his weight and blood pressure were reduced, Owens was certified by his family physician as fit to resume his heavy work in the packing plant. However, Swift’s company doctor examined Owens upon his return and concluded that his blood pressure was too high to permit reinstatement. After securing a second authorization from another outside doctor, Owens returned to the plant, and a nurse permitted him to resume work on January 6, 1960. However, on January 8, when the doctor discovered Owens’ return, he was permanently discharged on the ground of poor health. Armed with his medical evidence of fitness, Owens then sought the Union’s help in securing reinstatement, and a grievance was filed with Swift on his behalf. By mid-November 1960, the grievance had been processed through the third and into the fourth step of the grievance procedure established by the collective bargaining agreement; Swift adhered to its position that Owens’ poor health justified his discharge, rejecting numerous medical reports of reduced blood pressure proffered by Owens and' by the Union. Swift claimed that these reports were not based upon sufficiently thorough medical tests. On February 6, 1961, the Union sent Owens to a new doctor at Union expense “to see if we could get some, better medical evidence so that we could go to arbitration with his case.” R., at 107. This examination did not support Owens’ position. When the Union received the report, its executive board voted not to take the Owens grievance to arbitration because of insufficient medical evidence. Union officers suggested to Owens that he accept Swift’s offer of referral to a rehabilitation center, and the grievance was suspended for that purpose. Owens rejected this alternative and demanded that the Union take his grievance to arbitration, but the Union refused. With his contractual remedies thus stalled at the fourth step, Owens brought this suit. The grievance was finally dismissed by the Union and Swift shortly before trial began in June 1964. In his charge to the jury, the trial judge instructed that petitioners would be liable if Swift had wrongfully discharged Owens and if the Union had “arbitrarily... and without just cause or excuse... refused” to press Owens’ grievance to arbitration. Punitive damages could also be awarded, the trial judge charged, if the Union’s conduct was “willful, wanton and malicious.” However, the jury must return a verdict for the defendants, the judge instructed, “if you find and believe from the evidence that the union and its representatives acted rea= sonably and in good faith in the handling and processing of the grievance of the plaintiff.” R., at 161-162. The jury then returned the general verdict for Owens which eventually was reinstated by the Missouri Supreme Court. HH I — I Petitioners challenge the jurisdiction of the Missouri courts on the ground that the alleged conduct of the Union was arguably an unfair labor practice and within the exclusive jurisdiction of the NLRB. Petitioners rely on Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enforcement denied, 326 F. 2d 172 (C. A. 2d Cir. 1963), where a sharply divided Board held for the first time that a union’s breach of its statutory duty of fair representation violates N. L. R. A. § 8 (b), as amended. With the NLRB’s adoption of Miranda Fuel, petitioners argue, the broad pre-emption doctrine defined in San Diego Building Trades Council v. Garmon, 359 U. S. 236, becomes applicable. For the reasons which follow, we reject this argument. It is now well established that, as the exclusive bargaining representative of the employees in Owens’ bargaining unit, the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U. S. 330; Syres v. Oil Workers International Union, 350 U. S. 892, and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U. S. 335. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as •exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210, and was soon extended to unions certified under the N. L. R. A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and.to avoid arbitrary conduct. Humphrey v. Moore, 375 U. S., at 342. It is obvious that Owens’ complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action. E. g., Ford Motor Co. v. Huffman, supra. Although N. L. R. A. § 8 (b) was enacted in 1947, the NLRB did not until Miranda Fuel interpret a breach of a union’s duty of fair representation as an unfair labor practice. In Miranda Fuel, the Board’s majority held that N. L. R. A. § 7 gives employees “the right to be.free from unfair or irrelevant or invidious treatment by their exclusive bargaining- agent in matters affecting their employment,” and “that Section 8 (b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair.” 140 N. L. R. B., at 185. The Board also held that an employer who “participates” in such arbitrary union conduct violates § 8 (a)(1), and that the employer and the union may violate §§ 8 (a) (3) and 8 (b) (2), respectively, “when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee.” Id., at 186. The Board’s Miranda Fuel decision was denied enforcement by a divided Second Circuit, 326 F. 2d 172 (1963). However, in Local 12, United Rubber Workers v. N. L. R. B., 368 F. 2d 12, the Fifth Circuit upheld the Board’s Miranda Fuel doctrine in an opinion suggesting that the Board’s approach will pre-empt judicial cognizance of some fair representation duty suits. In light of these developments, petitioners argue that Owens’ state court action was based upon Union conduct that is arguably proscribed by N. L. R. A. § 8 (b), was potentially enforceable by the NLRB, and was therefore pre-empted under the Garmon line of decisions. A. In Garmon, this Court recognized that the broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act (L. M. R. A.) necessarily imply that potentially conflicting “rules of law, of remedy, and of administration” cannot be permitted to operate. 359 U. S., at 242. In enacting the National Labor Relations Act and later the Labor Management Relations Act, ■ “Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal-.... Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and’ to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Garner v. Teamsters Union, 346 U. S. 485, 490-491: Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving “activity [which] is arguably subject to § 7 or § 8 of the Act.” San Diego Building Trades Council v. Garmon, 359 U. S., at 245. This pre-emption doctrine, however, has never been rigidly applied to cases where it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB. Congress itself has carved out exceptions to the Board’s exclusive jurisdiction: Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, 29 U. S. C. § 187, expressly permits anyone injured by a violation of N. L. R. A. § 8 (b) (4) to recover damages in a federal court even though such unfair labor practices are also remediable by the Board; § 301 of that Act, 61 Stat. 156, 29 U. S. C. § 185, permits suits for breach of a collective bargaining agreement regardless of whether the particular breach is also an unfair labor practice within the jurisdiction of the Board (see Smith v. Evening News Assn., 371 U. S. 195); and N. L. R. A. § 14, as amended by Title VII, § 701 (a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U. S. C. § 164 (c), permits state agencies and courts to assume jurisdiction “over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction” (compare Guss v. Utah Labor Board, 353 U. S. 1). In addition to these congressional exceptions, this Court has refused to hold state remedies pre-empted “where the activity regulated was a merely peripheral concern of the Labor Management Relations Act.... [or] touche'd interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress has deprived the States of the power to act.” San Diego Building Trades Council v. Garmon, 359 U. S., at 243-244. See, e. g., Linn v. Plant Guard Workers, 383 U. S. 53 (libel); Automobile Workers v. Russell, 356 U. S. 634 (violence); International Assn. of Machinists v. Gonzales, 356 U. S. 617 (wrongful expulsion from union membership) ; Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740 (mass picketing). See also Hanna Mining Co. v. Marine Engineers Beneficial Assn., 382 U. S. 181. While these exceptions in no way undermine the vitality of the pre-emption rule where applicable, they demonstrate that the decision to preempt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies. A primary justification for the pre-emption doctrine— the need to avoid conflicting rules of substantive law in the labor relations aréa and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair lábor practice jurisdiction over union activities by the L. M. R. A. Moreover,. when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N. L. R. B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision. In addition to the above coi.iJderations, the unique interests served by the duty of fair representation doctrine have a profound effect, in our opinion, on the applicability of the pre-emption rule to this class of cases. The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining. See N. L. R. A. § 1, as amended, 61 Stat. 136, 29 U. S. C. § 151. The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit. See, e. g., J. I. Case Co. v. Labor Board, 321 U. S. 332. This Court recognized in Steele that thé congressional grant of power to a union to act as exclusive colléctive bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U. S., at 198-199. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by. the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no loinger be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F. 2d 776, cert. denied, 385 U. S. 1026. The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N. L. R. A. § 8 (b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee’s statutory representative. B. There are also some intensely practical considerations which foreclose pre-emption of judicial cognizance of fair representation duty suits, considerations which emerge from the intricate relationship between the duty of fair representation and the enforcement of collective bargaining contracts. For the fact is that the question of whether a union has breached its duty of fair representation will in many cases be a critical issue in a suit under L. M. R. A. § 301 charging an employer with a breach of contract. To illustrate, let us assume a collective bargaining agreement that limits discharges to those for good.cause and that contains no grievance, arbitration or other provisions purporting 'to restrict access to the courts. If an employee is discharged without cause, either the union or the employee may sue the employer under L. M. R. A. § 301. Under this section, courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of the NLRB. Garmon and like cases have no application to § 301 suits. Smith v. Evening News Assn., 371 U. S. 195. The rule is the same with regard to pre-emption where the bargaining agreement contains grievance and arbitration provisions which are intended to provide the exclusive remedy for breach of contract claims. If an employee is discharged without cause in violation of such an agreement, that the employer’s conduct may be an unfair labor practice does not preclude a suit by the union against the employer to compel arbitration of the employee’s grievance, the adjudication of the claim by the arbitrator, or a suit to enforce the-resulting arbitration award. See, e. g., Steelworkers v. American Mfg. Co., 363 U. S. 564. However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been éxhausted. Since the employee’s claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is settled that the employee must at least attempt to exhaust exclusive grievance and -arbitration procedures established by. the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 650. However, because these contractual remedies, have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures. An obvious' situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U. S. 254, 260-263. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action. We think that another situation when the employee may seek judicial enforcement of his contractual rights arises if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing t& prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power, to establish exclusive grievance procedures, intended.to confer upon unions, such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements. Cf. Richardson v. Texas & N. O. R. Co., 242 F. 2d 230, 235-236 (C. A. 5th Cir.). For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance. We may assume for present purposes that such a breach of duty by the union is an unfair labor practice, as the NLRB and the Fifth Circuit have held. The employee’s suit against the employer, however, remains a § 301 suit, and the jurisdiction of the courts is no more destroyed by the fact that the employee, as part and parcel of his § 301 action, finds it necessary to prove an unfair labor practice by the union, than it is by the fact that the suit may involve an unfair labor practice by the employer himself. The -court is free to determine whether the employee is barred by the actions of his union representative, and, if not, to proceed with the case. And if, to facilitate his case, the employee joins the union as a defendant, the situation is not substantially changed. The action is still a § 301 suit, and the jurisdiction of the courts is not pre-empted under the Garmon principle. This, at the very least, is the holding of Humphrey v. Moore, supra, with respect to pre-emption, as petitioners recognize in their brief. And, insofar as adjudication of the union’s breach of duty is concerned, the result should be no different if the employee, as Owens did here, sues the employer and the union in separate actions. There would be very little to commend a rule which would permit the Missouri courts to adjudicate the Union’s conduct in an action against Swift but not in an action against the Union itself. ’ ; For the above reasons, it is obvious that the.courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and. a breach of contract by the' employer are proven, the court must fashion an appropriate remedy. Presumably, in at least some cases, the union’s breach of duty will have enhanced or contributed to the employee’s injury.. What possible sense could there be in a rule which would permit a court, that has litigated the fault of employer and union to fashion a remedy only with respect to the employer? Under such a rule, either the employer would be compelled by the court "to pay for the union’s wrong — slight deterrence, indeed, to future union misconduct — or the injured employee would be forced to go to two tribunals to repair a single injury] Moreover, the Board would be compelled in many cases either to remedy injuries arising out of a breach of contract, a task which Congress has not assigned to it, or to leave the individual employee without remedy for the union’s wrong. Given the strong reasons for not pre-empting duty of fair representation suits in general, and.the fact that the courts in many § 301 suits must adjudicate whether the union has breached its duty, we conclude that the courts may also fashion remedies for such a breach of duty, It follows from the above that the Missouri courts had jurisdiction in this case. Of course, it is quite another problem to determine what remedies may be available against the Union if a breach of duty is proven. See Part IV, infra. But the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the Garmon pre-emption doctrine inapplicable. III. Petitioners contend, ’ as they did in their motion for judgment notwithstanding the jury’s verdict, that Owens failed to prove that the Union breached its duty of fair representation in its handling of Owens’ grievance. Petitioners also argue that the Supreme Court of Missouri, in rejecting this contention, applied a standard that is inconsistent with governing principles of federal law with ■respect to the Union’s duty to an individual employee in its processing of grievances under the collective bargaining agreement with Swift. We agree with both contentions. A. In holding that the evidence at trial supported the jury’s verdict in favor of Owens, the Missouri Supreme Court stated: “The essential issue submitted to the jury was whether the union... arbitrarily... refused to carry said grievance... through the fifth step.... “We have concluded that there was sufficient substantial evidence from which the jury reasonably could have found the foregoing issue in favor of plaintiff. It is notable that no physician actually testified in the case. Both sides were content to rely upon written statements. Three physicians certified that plaintiff was able to perform his regular work. Three other physicians certified that they had taken plaintiff’s blood pressure and that the readings were approximately 160 over 100. It may be inferred that such a reading does not indicate that his blood pressure was dangerously high. Moreover, plaintiff’s evidence showed that he had actually done hard physical labor periodically during the four years following his discharge. We accordingly rule this point adversely to defendants.”'397 S. W. 2d, at 665. Quite obviously, the question which the Missouri Supreme Court thought dispositive of the issue of liability was whether the evidence supported Owens’ assertion that he had been wrongfully discharged by Swift, regardless of the Union’s good faith in reaching a contrary conclusion. This was also the major concern of the plaintiff at trial: the bulk of Owens’ evidence was directed at whether he was medically fit at the time of discharge and whether he had performed heavy work after that discharge. A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. See Humphrey v. Moore, supra; Ford Motor Co. v. Huffman, supra. There has been considerable debate over the extent of this duty in the context of a union’s enforcement of the grievance and arbitration procedures in a collective bargaining agreement. See generally Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker-Union Relationship, 61 Mich. L. Rev. 1435, 1482-1501 (1963); Comment, Federal Protection of Individual Rights under Labor Contracts, 73 Yale L. J. 1215 (1964). Some have suggested that every individual employee should have the right, to have his grievance taken to arbitration. Others have urged that the union be given substantial discretion (if the collective, bargaining agreement so provides) to decide whether a grievance should be taken to arbitration, subject only to the duty to refrain from patently wrongful conduct such as racial discrimination or personal hostility. Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or. process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In L. M. R. A. § 203 (d), 61 Stat. 154, 29 U. S. C. § 173 (d), Congress declared that “Final adjustment by a method agreed upon by the parties is... the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601 (1956). If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a sig-. nificantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process' as to prevent it from functioning successfully. See NLRB v. Acme Industrial Co., 385 U. S. 432, 438; Ross, Distressed Grievance Procedures and Their Rehabilitation, in Labor Arbitration and Industrial Change, Proceedings of the 16th Annual Meeting, National Academy of Arbitrators 104 (1963). It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by L. M. R. A. § 203 (d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration. For these same reasons, the standard applied here by the Missouri Supreme Court cannot be sustained. For if a union’s decision that a particular grievance lacks sufficient merit to justify arbitration would constitute a breach of the duty of fair representation because a judge or jury later found the grievance' meritorious, the union’s incentive to settle such grievances short of arbitration would be seriously reduced. The dampening effect on the entire grievance procedure of this reduction of the union’s freedom to settle claims in good faith would surely be substantial. Since the union’s statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement device by providing him with recourse against both employer (in a § 301 suit) and union, this severe limitation on the power to settle grievances is neither necessary nor desirable. Therefore, we conclude that the Supreme Court of Missouri erred in upholding the verdict in this case solely on the ground that the evidence supported Owens’ claim that he had been wrongfully discharged. B, Applying the proper standard of union liability to the facts of this case, we cannot uphold the jury’s award, for we conclude that as a matter of federal law the evidence does not support a verdict that the Union breached its duty of fair representation.. As we have stated, Owens could not have established a breach of that duty merely by convincing the jury that he was in fact fit for work in I960; he must also have proved arbitrary or bad-faith conduct on the part of the Union in processing his grievance. The evidence revealed that the Union diligently supervised the grievance into the fourth step of the bargaining agreement’s procedure, with the Union’s business representative serving as Owens’ advocate throughout these steps. When Swift refused to reinstate Owens on the basis of his medical reports indicating reduced blood pressure, the Union sent him to another doctor of his own choice, at Union expense, in an attempt to amass persuasive medical evidence of Owens’ fitness for work. When this examination proved unfavorable, the Union concluded that it could not establish a wrongful discharge. It then encouraged Swift to find light work for Owens at the plant. When this effort failed, the Union determined that arbitration would be fruitless and suggested to Owens that he accept Swift’s offer to send him to a heart association for rehabilitation. At this point, Owens’ grievance was suspended in the fourth step in the hope that he might be rehabilitated. In administering the grievance and arbitration machinery as statutory agent of the employees, a union must, in good faith and in a nonarbitrary manner, make decisions as to the merits of particular grievances. See Humphrey v. Moore, 375 U. S. 335, 349-350; Ford Motor Co. v. Huffman, 345 U. S. 330, 337-339. In a case such as this, when Owens supplied the Union with medical evidence supporting his position, the Union might well have breached its duty had it ignored Owens’ complaint or had it processed the grievance in a perfunctory manner. See Cox, Rights under a Labor Agreement, 69 Harv. L. Rev., at 632-634. But here the Union processed the grievance into the fourth step, attempted to gather sufficient évidence to prove Owens’ case, attempted to secure for Owens less vigorous work at the plant, and joined in the employer’s efforts to have Owens rehabilitated. Only when these efforts all proved

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Ignacio GUAL MORALES, Plaintiff, Appellant, v. Pedro HERNANDEZ VEGA, etc., et al., Defendants, Appellees. No. 77-1489. United States Court of Appeals, First Circuit. Argued May 4, 1978. Decided July 6, 1978. John L. Saltonstall, Jr., Boston, Mass., with whom Stephen L. Saltonstall, Boston, Mass., was on brief, for plaintiff, appellant. Paul A. Lenzini, Washington, D. C., with whom Chapman, Duff & Paul, Washington, D. C., was on brief, for defendants, appel-lees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. COFFIN, Chief Judge. Plaintiff Ignacio Gual Morales, a former employee of the Puerto Rico Aqueduct and Sewer Authority (PRASA), appeals from an order of the United States District Court for the District of Puerto Rico dismissing his civil rights action on the ground of untimeliness. Commencing this action on January 30, 1976, plaintiff alleges a violation of his First Amendment rights of freedom of speech and association by the operation of a conspiracy among defendants, the purpose of which was to punish plaintiff for union activity by obtaining his discharge and then rigging the arbitration process to insure that the discharge would be upheld. The defendants in this action fall into two groups. Defendants Hernandez Vega, Pagan Colberg, Rosa Rodriguez, Perez Rios, and Gil Velezquez are all PRASA supervisory personnel. These defendants are accused primarily of obtaining plaintiff’s dismissal. That occurred on June 14, 1974. The second group of defendants — Lopez Ruiz, Calderon Santiago, and Arroyo — are three members of the five person PRASA Grievance Committee; each of these defendants voted to affirm plaintiff’s dismissal. The first two are the two management representatives on the committee. Arroyo, President of the committee is the neutral member appointed by the Puerto Rico Secretary of Labor. Within two weeks of his dismissal, plaintiff filed a complaint with the grievance committee seeking, inter alia, reinstatement and back pay. The grievance proceedings continued into the following year. On July 8, 1975, after several hearings on plaintiff's case, the committee voted 3 to 2 to sustain plaintiff’s discharge. The union representatives on the committee were opposed. Defendants denied the existence of any conspiracy to deprive plaintiff of his constitutional rights, asserted that his dismissal was wholly justified, and also moved to dismiss on the ground that the action was time barred. The district court ordered the parties to submit affidavits addressed to the issue of whether a conspiracy existed within the applicable statutory period. In dismissing the action, the district court first noted that a one year statute of limitations applied to this case and thus that the viability of plaintiff’s action depended upon a finding that a conspiracy continued until the date of the committee’s decision. In concluding that it had not, the district court reasoned that because two of the defendant members of the committee were PRASA representatives, they were not expected to be neutral arbitrators, and, thus, the court’s sole inquiry was directed to the “alleged misconduct on the part of [defendant Arroyo].” The court then analyzed the affidavits of the parties and concluded that they “failed to establish the involvement” of Arroyo in a conspiracy. Therefore, it found there was insufficient evidence of an overt act within the one year period, and, thus, the action was untimely as to all defendants. In this appeal, plaintiff concedes that the Puerto Rican one year statute of limitations for torts, 31 L.P.R.A. § 5298(2), governs this civil rights action, Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st Cir. 1977), but maintains that the district court erred in several respects. First, plaintiff claims that the court, rather than applying the summary judgment standard to determine whether defendants had met their burden of showing the absence of a genuine issue as to any material fact regarding the continuance of the alleged conspiracy into the limitation period, improperly ignored some of the affidavits, weighed the credibility of others and applied a preponderance of the evidence test in holding that neither Arroyo nor any of the other defendants acted in furtherance of the conspiracy during the statutory period. Second, plaintiff urges that actions on the part of defendants Lopez Ruiz and Calderon Santiago should not have been ignored despite the fact that they were management representatives. Third, plaintiff asserts error in the court’s failure to consider an affidavit suggesting that one of PRASA’s lawyers had sought to fix the arbitration proceeding against plaintiff by “getting to” defendant Arroyo and that this alleged conduct by the attorney could be attributed to the five supervisory defendants. In addition to these contentions, all of which were briefed and argued to us, plaintiff, by a supplemental submission, raises yet another ground upon which we should hold his action to be timely. In Hernandez del Valle v. Santa Aponte, No. 77-1220, 575 F.2d 321 (1st Cir. 1978), decided six days after argument in this case, we considered for the first time the applicability of one provision of 31 L.P.R.A. § 5303, the Puerto Rican tolling statute, to civil rights actions brought under 42 U.S.C. § 1983. Section 5303 provides, inter alia, that the statute of limitations is tolled by an “extrajudicial claim of the creditor.” In Hernandez del Valle, a discharged public employee asked us to construe § 5303 so that the statute of limitations for his § 1983 action would have been tolled by his act of writing letters to the official who had fired him, challenging the legality of his dismissal and requesting reinstatement, but not financial compensation. We assumed, without deciding, that the creditor’s claim portion of § 5303 was compatible with federal policy and thus applicable to § 1983 actions arising in Puerto Rico. However, because that provision went beyond any tolling statute of which we were aware in United States jurisprudence and because its application seemed to portend several practical difficulties, we believed that it should not be extended to cases where a plaintiff has failed to make a monetary demand. In the instant case, plaintiff, in his complaint filed with the grievance committee, did request damages in the form of back-pay. This, he argues, constitutes a creditor’s “extrajudicial claim” within the meaning of § 5303 and therefore the action is timely as to all defendants. After considering plaintiff’s contentions, we agree that the district court erred in disregarding the conduct of Lopez Ruiz and Calderon Santiago, and that summary judgment as to the three defendant members of the grievance committee was improper. The court’s view that the acts of Lopez Ruiz and Calderon Santiago were irrelevant to the issue of timeliness logically also would imply a view that their acts could not give rise to liability. If such was the court’s thinking, we believe it wrong on both counts. Whether or not these defendants, as management representatives, were obliged to be “neutral” in their dealings with union members, they, as government agents, had a duty not to act on the basis of constitutionally impermissible motives as they are alleged to have done in voting to affirm plaintiff’s dismissal in retaliation for his engaging in constitutionally protected conduct. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Thomas v. Younglove, 545 F.2d 1171 (9th Cir. 1976); Lontine v. Van Cleave, 483 F.2d 966 (10th Cir. 1973); cf. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Each of these three defendants, it is claimed, participated with the other defendants in a conspiracy to punish plaintiff for his union activities. It is undisputed that each voted against plaintiff and that the vote occurred within the statutory period. In addition to the negative vote, defendant Calderon Santiago is alleged to have made various statements manifesting an unconstitutional motive behind plaintiff’s firing. Defendant Arroyo is also charged with conducting the arbitration proceedings in an irregular and perfunctory manner which, plaintiff argues, indicates that Arroyo was merely working toward a preordained result. In the case of Lopez Ruiz, only the adverse vote, in addition to the general charge of participation in the conspiracy, is alleged. While these assertions are somewhat sparse, especially those against Arroyo and Lopez Ruiz, we think, given defendants’ burden, they suffice to preclude summary dismissal. It is true that a plaintiff bringing a § 1983 conspiracy case must “allege with at least some degree of particularity overt acts . . . which [are] reasonably related to the promotion of the claimed conspiracy.” Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir. 1977), quoting Powell v. Workmen’s Compensation Bd., 327 F.2d 131, 137 (2d Cir. 1964); see Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977). Defendants’ adverse votes, while probably insufficient when standing alone, satisfy that requirement, we believe, when viewed in light of the alleged statements by the other defendants reflecting hostility to plaintiff’s union activities. Cf. Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 267-68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The defendants, as the moving parties, must affirmatively demonstrate that there is no genuine, relevant factual issue even though the defendants would have no burden at trial. Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir. 1977). In testing the court’s dismissal, we are obliged to look at the record “in the light most favorable to the party opposing the motion”, Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and to “indulge all inferences favorable to the party opposing the motion”, Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Moreover, where, as here, summary judgment is sought on an issue involving state of mind, “great circumspection is required”. Id. at 468. As we said in Ferguson v. Omnimedia, Inc., 469 F.2d 194, 198 (1st Cir. 1972): “In a conspiracy case, agreement is rarely out in the open, and proof of conscious complicity may depend upon the careful marshalling of circumstantial evidence and the opportunity to cross-examine hostile witnesses. See Adickes [supra]. . As in the present case, summary judgment procedures are often not a sufficient substitute for trial.” On the present record, there are sufficient questions concerning the existence of a conspiracy against the plaintiff and the motives behind the three grievance committee member defendants to entitle plaintiff to proceed with his action against them. For purposes of summary judgment, a court must consider that a jury would be entitled, after defendants’ testimony on direct and cross-examination, to disbelieve their innocent explanations of their motives and denials of statements allegedly threatening plaintiff for protected conduct. Further, the charge that these defendants had decided to affirm the dismissal before fully hearing the case for plaintiff, when viewed in a light most favorable to plaintiff, gives rise to a genuine issue as to their motives. To be sure, a fact finder may not believe plaintiff’s witnesses. However, “summary judgment is not to be turned into a trial by affidavit”, Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, at 402 (1st Cir. 1978), quoting Redman v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975); see Peckham v. Ronrico Corp., 171 F.2d 653, 657 (1st Cir. 1948), which is what happened here. Accordingly, the court’s grant of summary judgment to these defendants must be reversed. Even though plaintiff may proceed against the three grievance committee members, that fact alone, as plaintiff seems to concede, does not render the suit timely as against the other defendants. In fact, unless the statute of limitations somehow was tolled, plaintiff must allege and prove that each defendant to be charged committed an action constituting a civil rights violation in furtherance of the conspiracy within the limitation period. Kadar Corp. v. Milbury, 549 F.2d 230, 234-35 (1st Cir. 1977); see Hernandez Jimenez v. Calero Toledo, 576 F.2d 402, at 404 (1st Cir. 1978). Having limited its inquiry to the allegations against the three grievance committee members, the district court did not pass on the sufficiency of the allegations against the other defendants. We likewise do not decide those issues at this time. We believe that as to these defendants the case should be remanded to the district court for consideration of the § 5303 claim. This course of action seems prudent because if the court were to conclude that the statute was tolled, the case could proceed, if otherwise maintainable, to an adjudication on the merits, without searching for civil rights violations by each individual within the limitation period. Theoretically, plaintiff could have raised the § 5303 issue before the district court initially. His failure to do so, however, is excusable by virtue of the fact that Hernandez del Valle was the first time that this court suggested that the extrajudicial claim provision of § 5303 might be applicable to § 1983 actions. Since plaintiff should be allowed to be heard on this theory, as of course defendants should be allowed to respond, remand is required. A court of appeals generally will not consider a claim not raised before the district court. Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974); see Singleton y. Wulff, 428 U.S. 106, 120— 21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). While there are exceptions, this case is not such. Particularly where the question involves the proper construction of Puerto Rican law, deference to the district judges who are Spanish speaking and trained in the Spanish civil law is warranted. See Runyon v. McCrary, 427 U.S. 160, 180-81, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); For-naris v. Ridge Tool Co., 400 U.S. 41, 42-43, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Graf-fals Gonzalez v. Garcia Santiago, supra. As to the five supervisory defendants, on remand the district court should consider (1) whether plaintiff’s filing of a complaint with the grievance committee requesting backpay constitutes an “extra-judicial claim” sufficient, within the meaning of § 5303, to toll the statute of limitations; (2) if it does, for how long a period after such a claim is made is the statute tolled, and, given the length of that period, was plaintiff’s action timely when filed in January of 1976; (3) assuming that plaintiff’s action is timely under § 5303, is application of that provision consistent with underlying federal policy in § 1983 actions. Cf. Robertson v. Wegmann,-U.S.-, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (state survivorship statute); 42 U.S.C. § 1988. Johnson v. Railway Express Co., 421 U.S. 454, 465, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The order of the district court is reversed in part, vacated in part, and the case remanded for proceedings consistent with this opinion. . 31 L.P.R.A. § 5303 provides: “Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgement of the debt by the debtor.” . On this record, the court’s failure to consider the alleged conduct of the PRAS A attorney was not error. We can see no basis for attributing his conduct to any of the defendants. No lawyer-client relationship has been alleged between any of the defendants in their individual capacities and this attorney. Moreover, the statements that this lawyer, who is not a party to this action, is claimed to have made concerning his intention of seeing defendant Arroyo would not be admissible against Arroyo. See Rule 803(3), Fed.R.Evid., 28 U.S.C.A., note to paragraph (3). . At this time, we of course express no view as to (1) whether plaintiff can carry his burden of proving that his conduct was constitutionally protected and that it was a substantial or motivating factor in his discharge; (2) whether defendants can rebut such a showing by establishing that plaintiff would have been fired even had the protected conduct never occurred, see Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir. 1977); or (3) whether any other defense or defenses may be viable.

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

Claude Elmer RAMBO, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee. No. 10153. United States Court of Appeals Fourth Circuit. June 21, 1967. Parker E. Cherry, Richmond, Va. (Court-assigned counsel), for appellant. Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Robert Y. Button, Atty. Gen., of Virginia, on brief), for appellee. Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL Circuit Judges. Judge Bell participated in the hearing and concurred in the disposition of the case, but died before the opinion was prepared. HAYNSWORTH, Chief Judge: In November 1961, Rambo was found guilty by a jury and was sentenced to ten years imprisonment by a Virginia court for statutory burglary. After a full hearing and a denial of habeas corpus by the state courts, he sought federal habeas corpus and the District Judge summarily dismissed the petition. We affirm. Five contentions are presented to this Court on appeal. Rambo first contends that he was denied the assistance of counsel at his preliminary hearing in violation of the Sixth Amendment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, are cited for the proposition that the preliminary hearing is a critical stage in the proceedings. This, however, is not always the ease. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; DeToro v. Pepersack, 4 Cir., 332 F.2d 341. The Virginia preliminary hearing is not a critical stage in the proceedings, and Rambo was not entitled to counsel at that point. Vess v. Peyton, 4 Cir., 352 F.2d 325; Ward v. Peyton, 4 Cir., 349 F.2d 359. The petitioner’s second contention is that his court-appointed lawyer, Mr. Womack, was sick and dying during the trial and he was therefore denied the effective assistance of counsel. Rambo relies heavily on the fact that Mr. Wo-mack had a fatal heart attack shortly after the trial. However, the facts concerning the trial itself, as brought out in the state habeas hearing, clearly show that counsel was, on the contrary, quite effective. Womack, appearing to be in good health throughout the trial, vigorously conducted the defense and thoroughly cross-examined the Commonwealth’s witnesses. The third point, which kamoo raised for the first time on habeas corpus, is that the foreman of the grand jury which indicted him was the brother of the man whose store was robbed. There was no challenge to the array nor any motion to quash the indictment, although there was some discussion of such action by the petitioner and his attorney. This objection to a member of the grand jury should have been raised at an early stage in the proceeding. There were two directions in which Rambo could have gone after the indictment was returned against him: He could have challenged the indictment or he could have proceeded to a trial on the merits. He chose the latter and should not now be allowed to retrace his steps and take the other path with the hope that it will lead to a different result. An objection to a member of the grand jury should have been seasonably made and, in light of Rambo’s failure to do so, this Court will not now consider the merits of his claim. United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857; Charles v. Maxwell, 6 Cir., 348 F.2d 890; Keliy v. Squier, 9 Cir., 166 F.2d 731; Redmon v. Squier, 9 Cir., 162 F.2d 195; Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368; Taylor v. Commonwealth, 90 Va. 109, 17 S.E. 812 (1893); Early v. Commonwealth, 86 Va. 921, 11 S.E. 795 (1890). The fourth and fifth points of petitioner’s appeal are that he was denied a copy of the transcript of his trial and that after the death of his trial counsel, no attorney was appointed to advise him concerning his right to appeal. Neither point was raised in the state proceedings and the District Judge correctly dismissed the petition as to these points without prejudice to Rambo’s right to seek relief after he has complied with the exhaustion requirements of 28 U.S.C.A. § 2254. Affirmed. . The same rule applies to prosecutions in the federal courts. Such an objection to the grand jury may be raised only by motion before trial. Rules 6(b) and 12(b) (2) of the Fed.R.Crim.P. See also Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Crowley v. United States, 194 U.S. 461, 24 S.Ct. 731, 48 L.Ed. 1075; Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; Miranda v. United States, 1 Cir., 255 F.2d 9; Poliafico v. United States, 6 Cir., 237 F.2d 97; United States v. Klock, 2 Cir., 210 F.2d 217; York v. United States, 8 Cir., 167 F.2d 847; Brown v. United States, 8 Cir., 165 F.2d 409; King v. United States, 8 Cir., 165 F.2d 408; Wright v. United States, 8 Cir., 165 F.2d 405. Whether or not the record here is sufficient to support an affirmative finding of a voluntary, understanding relinquishment of a known right to attack the indictment before trial, it is quite sufficient to call for application of the principle that this belated attack is foreclosed by the judgment. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies, 88-89 (Tent.Draft 1967), recommended by the Advisory Committee on Sentencing and Review, Simon E. Sobeloff, Chairman.

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

PAYMER v. COMMISSIONER OF INTERNAL REVENUE (two cases). WESTRICH REALTY CORPORATION et al. v. SAME. RAYMEP REALTY CORPORATION, Inc., et al. v. SAME. Nos. 17-20. Circuit Court of Appeals, Second Circuit July 2, 1945. Sidney Paymer, of Jamaica, N. Y., for petitioners. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Robert N. Anderson, and S. Dee Hanson, Sp. Asst, to Atty. Gen., for respondent. Before L. HAND, SWAN, and CHASE, Circuit Judges. CHASE, Circuit Judge. These four petitions, which were consolidated for hearing, require us to decide whether the 1938 net income of certain real estate was taxable to the petitioning corporations each of whom held the title to a part of it, or to the petitioning individuals who owned all the stock of the two corporations. And, if the corporations are taxable on the income, whether their failure to file income and excess profits returns made them liable for a penalty. The Commissioner determined that the corporations were taxable and also that the individuals, to whom the income was paid directly by the lessees of the property, were taxable on the amounts each received on the theory that what was done was the equivalent of dividend distributions by the corporations. He also assessed a penalty against each corporation. The Tax Court affirmed. The individual petitioners are two brothers, who have been in partnership for many years under the name of Paymer Bros., owning partnership property which has in part been real estate that they improved and managed. Because Samuel had become the co-signer on a note and the guarantor of an account both of which were overdue in 1932, it was then thought that he might be sued by creditors and the partnership property attached. To avoid that, if possible, the partners in that year organized Raymep Realty Corp., Inc. and Westrich Realty Corp., two New York corporations which were given broad powers to own, manage and dispose of real estate and conveyed to each of them a parcel of income-producing real estate in New York City. The conveyance to Raymep was in 1932 and was made directly by the partners. That to Westrich was conveyed first by the partners to Paymer Bros. Realty Corp. Inc., a corporation wholly owned by them, and was then by it deeded to Westrich. In each instance, each of the two partners received half of the stock of the grantee in exchange for the property. The minutes of a meeting of directors and stockholders of each grantee held about the time the property was deeded to it contain the following statement: “The said conveyance was and is made with the express understanding that the corporation is only to hold title to the property, the beneficial interest and profits to be in the individual stockholders and the management and control of the property to be exclusively theirs. It is understood and agreed that this corporation was only organized for the convenience of the shareholders in the management thereof.”- After these meetings neither corporate petitioner held any others. Neither ever elected any officers or directors after Samuel was elected president and Joseph treasurer at the organization meeting, ever had any office or bank account, or collected any income. The two partners managed the real estate conveyed as above and collected the income, paid the expenses, deposited the money received in the bank account of Paymer Bros., and used the net profits of the real estate as they pleased, treating that property as the partnership property it had formerly been. The leases existing on the real estate when the .conveyances were made were not assigned to the corporations and nothing was done by Westrich in respect to the property held in its name. That is not true, however, as to Raymep for a loan of $50,000 was obtained by it in 1938 and as part security for the loan it assigned to the lender all the lessor’s rights, profits and interest in two leases on the property and covenanted that they were in full force and effect and that it was the sole lessor. Capital stock tax returns were filed by both Raymep and Westrich for the fiscal year ended June 30, 1938. During 1938 the two partners received gross rentals amounting to $18,999.86 from the property to which Raymep held the title and $3300. from that whose title was held by Westrich. The petitioners, acting on the advice of their accountant, included the 1938 income from the property held by these corporations in their own partnership information return for that year, in which they also included the incomes and expenses of two other corporations wholly owned by them. The net income so reported was treated as the net income of the partners in their returns. The petitioners now contend that Raymep and Westrich were mere “dummies” which held the legal title to property owned by the two individual petitioners and that both corporations are to be disregarded for income tax purposes. As a general rule a corporation is a taxpayer separate and distinct from its stockholders. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348. And this applies to a corporation wholly owned by one stockholder. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. But there are exceptions and the corporate form will be disregarded where it serves no business purpose and is but a sham. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. So, too, a taxpayer may gain the advantage of doing his own business through a wholly owned corporation if he pleases, but the treasury may disregard the separate corporate entity where it serves but as a shield against taxation and treat the one who actually may take the benefit of the income as the owner of the property which produces it and tax him accordingly. Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406. Yet the treasury may treat a corporation as a separate taxable entity when its organization “is followed by the carrying on of business by the corporation.” Moline Properties v. Commissioner of Internal Revenue, 319 U.S. 436, 439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499. We think that Raymep was active enough to justify holding that it did engage in business in 1938. The absence of books, records and offices and the failure to hold corporate meetings are not decisive on that question. Though Raymep was organized solely to deter creditors of one of the partners, it apparently was impossible or impracticable to use it solely for that purpose when it became necessary or desirable to secure the above mentioned loan in a substantial amount. There was, to be sure, less business activity than was shown in Sheldon Building Corporation v. Commissioner of Internal Revenue, 7 Cir., 118 F.2d 835, but we think enough did appear to make the principles applied in that case applicable to Raymep and that the decision of'the Tax Court should be affirmed as to the taxability of that corporation. Compare, Watson v. Commissioner of Internal Revenue, 2 Cir., 124 F.2d 437; Vim Securities Corporation v. Commissioner of Internal Revenue, 2 Cir., 130 F.2d 106, and Palcar Real Estate Co. v. Commissioner of Internal Revenue, 8 Cir., 131 F.2d 210. Westrich, however, was at all times but a passive dummy which did nothing but take and hold the title to the real estate conveyed to it. It served no business purpose in connection with the property and was intended to serve only as a blind to deter the creditors of one Of the partners. It was but a sham to be disregarded for tax purposes. Gregory v. Helvering, supra. See, also, 112 West 59th Street Corporation v. Helvering, 62 App.D.C. 350, 68 F.2d 397; and North Jersey Title Ins. Co. v. Commissioner of Internal Revenue, 3 Cir, 84 F.2d 898. There remains the question of the assessment of the penalty against Raymep, that against Westrich being necessarily erroneous under our holding that it was not a taxpayer in 1938. While it is true that ignorance of the law will not excuse the failure of a taxpayer to file a return, no penalty may be imposed where a reasonable cause • for the failure is shown. Girard Investment Co. v. Commissioner of Internal Revenue, 3 Cir., 122 F.2d 843; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 34 F.2d 128. The applicable statute, § 291 of the Revenue Act of 1938, 26 U.S.C.A. Int. Rev. Code, § 291, does not make the imposition of the penalty for failure to file a return mandatory but provides for its imposition “unless it is shown that such failure is due to reasonable cause and not due to willful neglect.” Raymep admittedly filed no returns and consequently had the burden to prove that the failure was excusable within the clause of the statute just quoted. T.R. 101, Art. 291-1. It was held in Commissioner of Internal Revenue v. Lane-Wells Co., 321 U.S. 219, 225, 64 S.Ct. 511, 514, 88 L.Ed. 684, that, “The question is one of fact in the first instance for the Board’s determination. Dobson v. Commissioner [of Internal Revenue], 320 U.S. 489, 64 S.Ct.239 [88 L.Ed. 248.]” The Tax Court considered the evidence introduced on that subject and determined that reasonable cause for the failure had not been shown. Such a decision turns upon the particular circumstances in the case presented rather than on any “generalizing principle” and therefore presents no reviewable issue. Commissioner of Internal Revenue v. Estate of Edward Bedford, 65 S.Ct. 1157. The income taxes of the individual petitioners will be adjusted on the remand, and as no difficulty in doing that is now to be foreseen, nothing is now said on that subject. Decision affirmed in part and reversed in part, and cause remanded for further proceedings in accordance with this opinion.

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

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

James BAYLIS, Antonio Bellezza, Hector Torres, Jorge F. Moncayo, Raul Laredo, Martin Murphy, Attilio DiChiara, Arleigh Hartman, Jose Maldonado, Frances R. Souza, Carlito Fiel and Ortrander Sebastian on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. MARRIOTT CORPORATION and Pan American World Airways, Inc., Defendants, Marriott Corporation, Defendant-Appellant. James BAYLIS, Antonio Bellezza, Hector Torres, Jorge F. Moncayo, Raul Laredo, Martin Murphy, Attilio DiChiara, Arleigh Hartman, Jose Maldonado, Frances R. Souza, Carlito Fiel and Ortrander Sebastian on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. MARRIOTT CORPORATION and Pan American World Airways, Inc., Defendants-Appellees. Nos. 445, 447, Dockets 87-7575, 87-7615. United States Court of Appeals, Second Circuit. Argued Dec. 1, 1987. Decided April 8, 1988. Carole O’Blenes, New York City (Saul G. Kramer, Aaron J. Schindel, Susan B. Sing-ley, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel), for Marriott Corp. Ronald G. Russo, New York City (Cynthia R. Finn, Budd Larner Gross Picillo Rosenbaum Greenberg & Sade, New York City, of counsel), for Baylis et al. Richard Schoolman, New York City (Pan Am Legal Dept., New York City, of counsel), for Pan American World Airways, Inc. Before PIERCE, MINER and DAVIS, Circuit Judges. Honorable Oscar H. Davis, of the United States Court of Appeals for the Federal Circuit, sitting by designation. AMENDED OPINION DAVIS, Circuit Judge: These appeals involve two suits by former employees of Pan American World Airways (Pan Am), one against Pan Am, the other against the Marriott Corporation (Marriott). In 1985 Pan Am closed its in-house catering operations and replaced them with catering services provided by Marriott. Former Pan Am commissary-workers who lost their jobs when the catering facilities were shut down sued Pan Am for breach of their collective bargaining agreements. The District Court for the Eastern District of New York granted Pan Am summary judgment on the merits. We hold that under the Railway Labor Act (RLA), 45 U.S.C. § 151-188, jurisdiction to resolve this contract dispute lies solely with the Adjustment Board created by that statute. Since the district court lacked jurisdiction to entertain this claim, we vacate the summary judgment and remand to the district court to dismiss for lack of subject matter jurisdiction. The dismissed workers also sued Marriott for tortious inducement of the alleged breach of their contract with Pan Am. The court rejected Marriott’s motion to dismiss, but certified an interlocutory appeal to this court pursuant to 28 U.S.C. § 1292(b). The claim against Marriott is solely a pendent state-law claim without any independent basis for federal jurisdiction. With the dismissal of the claim against Pan Am, the pendent claim against Marriott should also be dismissed (unless, on remand, plaintiffs properly amend their complaint against Marriott to invoke diversity jurisdiction). I. Background Until 1985 Pan Am maintained an in-house staff of commissary workers who performed catering services such as preparation of food and liquor kits. In 1980 the airline negotiated an agreement with the collective bargaining agent of these commissary workers, the Transport Workers of America (TWU), for the gradual replacement of the in-house catering operations by private vendors. The workers accepted the eventual elimination of catering services, but in return Pan Am agreed not to lay off any workers. As the catering services were phased out the workers were to be given other jobs within Pan Am. This agreement was embodied in a Memorandum of Agreement between Pan Am and the TWU dated November 21, 1980 (the “No Layoff Guarantee”). The No Layoff Guarantee was appended to the general collective bargaining agreement (the “Basic Agreement”) between Pan Am and the TWU which covered not only the 700 commissary workers but also 5,000 airline mechanics and ground service employees. The Basic Agreement became effective upon ratification on December 24, 1980 and expired by its express terms on June 30, 1983 (later extended by mutual agreement to December 31, 1984). The No Layoff Guarantee became effective by its terms on December 24,1980 and did not mention any expiration date. As the expiration of the collective bargaining agreements between Pan Am and the TWU approached, Pan Am served notice on the TWU on September 7, 1984, of changes that it intended to make when the 1980 agreement expired. One of these proposed changes was to delete the entire Memorandum containing the “No Layoff Guarantee.” Pan Am and the TWU then negotiated over this and other matters. Relations between Pan Am and its employees are governed by the RLA, see 45 U.S.C. § 181, which provides detailed procedures for the resolution of disputes between labor and management in the transportation industries. Negotiations and mediation conducted within the framework of the RLA were unsuccessful. After the mandatory waiting period expired at midnight on February 27, 1985, the union struck and Pan Am closed its catering facilities and contracted with Marriott to provide catering services. The changes instituted by Pan Am and the strike by the workers were both forms of self-help that are permissible after all of the procedures for dispute resolution required by the RLA are exhausted. Brotherhood of R.R. Train men v. Jacksonville Terminal Co., 394 U.S. 369, 378-80, 89 S.Ct. 1109, 1115-16, 22 L.Ed.2d 344 (1969). After a strike lasting four weeks, the parties reached a tentative agreement. The new collective bargaining agreement eliminated the No Layoff Guarantee. The agreement was ratified by a majority of the TWU members, and became effective on March 27, 1985. Catering employees whose jobs were discontinued were given a choice between accepting termination in exchange for a severance payment, or receiving priority in filling other positions within Pan Am if they could qualify for those jobs. The workers who accepted these options did not sign any releases barring them from future litigation against Pan Am or its agents. II. The current litigation On September 3,1985, a group of former commissary workers who are no longer employed by Pan Am brought an action on behalf of themselves and the class of similarly situated workers. They sued Pan Am in the district court for breach of contract and Marriott for tortious inducement of the alleged breach of contract. The workers initially filed suit only against Marriott in the New York State Supreme Court, Kings County, for tortious interference with their employment agreement with Pan Am. Marriott removed the action to the United States District Court for the Eastern District of New York. The plaintiffs then amended their complaint adding a claim against Pan Am for breach of contract. The Amended Complaint asserted that the district court had jurisdiction under 28 U.S.C. §§ 1331 and 2201, 45 U.S.C. § 151 et seq., and under the principles of ancillary and pendent jurisdiction. Diversity jurisdiction was not alleged. The position of the plaintiffs was that the No Layoff Guarantee in the 1980 agreement was a contractual guarantee that the commissary workers would be employed by Pan Am in some capacity throughout their working lifetimes, and that the later actions of Pan Am represented a breach of that contract. Pan Am and Marriott jointly moved for summary judgment on the merits, and also for dismissal for lack of subject matter jurisdiction. Pan Am argued that the No Layoff Guarantee expired when the Basic Agreement to which it was appended ended, and the protections once afforded to the workers by the No Layoff Guarantee no longer existed. Pan Am also argued in the alternative that the district court lacked jurisdiction because jurisdiction to resolve disputes over the interpretation of RLA collective bargaining agreements lies exclusively with arbitration panels, called Adjustment Boards, which are mandated by 45 U.S.C. § 184. The district court granted Pan Am’s motion for summary judgment on the merits, although on grounds different from those urged by Pan Am. The court reasoned that when Pan Am and the TWU negotiated a new collective bargaining agreement which did not contain the No Layoff Guarantee, they effectively modified and replaced the original No Layoff Guarantee. Since the No Layoff Guarantee was found to be subject to renegotiation, and since Pan Am was not in breach of the amended contract, the plaintiffs had no basis for maintaining their action. The court then denied Marriott’s companion motion to dismiss or for summary judgment. The court’s opinion was that, although the new agreement between Pan Am and the TWU had replaced the contract that Marriott was said to have interfered with, and accordingly resolved the dispute between Pan Am and the union, this did not relieve Marriott of liability for any wrongful conduct in inducing a breach of the original contract. The court also rejected Marriott’s argument that the plaintiffs’ state-law tort claim was preempted by federal labor law. The court then concluded that it was unnecessary to decide whether the plaintiffs’ state-law claim was preempted since the plaintiffs had stated a cause of action for tortious interference under federal common law. Marriott moved for reconsideration. The motion to dismiss was again denied, but on somewhat different grounds. The court rejected Marriott’s arguments that the No Layoff Guarantee could not have been breached because Pan Am had followed Railway Labor Act procedures. The court also held that the compulsory dispute resolution mechanisms of that Act did not apply to Marriott since Marriott was not a party to the agreement. This time the court explicitly concluded that the state-law claims against Marriott were not preempted by federal labor laws since they did not necessarily interfere with federal labor policy. The court recognized, however, that there was substantial ground for disagreement with its conclusions concerning the controlling questions of federal preemption. The court therefore certified the question of preemption for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). III. Plaintiffs’ suit against Pan American Labor disputes in the airline industry are governed by the RLA. 45 U.S.C. § 181. The RLA (unlike the National Labor Relations Act, which covers other industries) mandates the establishment of arbitration panels called “Adjustment Boards’’ composed of members selected by the air carriers and by labor organizations representing the employees. Id. §§ 153, 184-185. The Adjustment Boards have jurisdiction to consider disputes between air carriers and their employees “growing out of grievances, or out of interpretation or application of agreements concerning rates of pay, rules, or working conditions.... ” Id. § 184. The final decisions of the Adjustment Boards are “final and binding upon both parties to the dispute.” Id. § 153 (First)(m). The awards of the Adjustment Boards can be enforced through the federal courts, Id. § 153 (First)(p), and are subject to limited judicial review, Id. § 153 (First)(q). The congressional purpose in setting up these procedures in the RLA was to keep these disputes “within the Adjustment Board and out of the courts.” Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). The arbitration procedures established by the Railway Labor Act are mandatory and provide the exclusive forum for the resolution of grievances and for the interpretation of contracts under that Act. Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 322-24, 92 S.Ct. 1562, 1564-65, 32 L.Ed.2d 95 (1972); Bautista v. Pan Am World Airlines, 828 F.2d 546, 551 (9th Cir.1987); Independent Union of Flight Attendants v. Pan American World Airways, 789 F.2d 139, 141 (2d Cir.1986); Crusos v. United Transp. Union, Local 1201, 786 F.2d 970, 972 (9th Cir.) cert. denied, — U.S. -, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). The only alternative to the Adjustment Board is voluntary binding arbitration using arbitrators chosen by the parties. 45 U.S.C. §§ 157-159. The claim of the commissary workers against Pan Am for breach of contract requires the interpretation of the terms of a collective bargaining contract. The key legal issues are the duration of the No Layoff Guarantee and whether or not it is amendable. Jurisdiction to consider these questions lies exclusively with the appropriate Adjustment Board. The district court lacked subject matter jurisdiction to decide the merits of this case by granting summary judgment in favor of Pan Am. Jurisdiction of federal courts in this matter is restricted to limited review of the decisions of the Adjustment Board. Id. § 153 (First)(q). In a similar case brought by another group of former Pan Am commissary workers arising out of the same events, the Ninth Circuit reached the same result, finding that the district court had no jurisdiction over the workers’ breach of contract claim against Pan Am because the RLA grants exclusive jurisdiction to the Adjustment Board. Bautista, 828 F.2d at 552. See also Brotherhood of Teamsters v. Western Pacific R.R., 809 F.2d 607 (9th Cir.) (suit claiming lifetime employment contract dismissed since Adjustment Board has exclusive jurisdiction), cert. denied, — U.S. -, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987). Disputes growing out of grievances or out of the interpretation or application of existing collective bargaining agreements, which are the exclusive province of the Adjustment Boards, have been termed “minor” disputes to distinguish them from “major” disputes. Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711, 722-28, 65 S.Ct. 1282, 1289-92, 89 L.Ed. 1886 (1945); Air Cargo, Inc. v. Local Union 851, Int’l Bd. of Teamsters, 733 F.2d 241, 245 (2d Cir.1984); Local 553, Transport Workers Union v. Eastern Air Lines, Inc., 695 F.2d 668, 673-75 (2d Cir.1982). “Major” disputes concern “the formation of collective [bargaining] agreements or efforts to secure them.” Elgin, 325 U.S. at 723, 65 S.Ct. at 1290. In “major” disputes “the issue is not whether an existing agreement controls the controversy. They [“major disputes”] look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Id. Plaintiffs argue that their claim against Pan Am is a “major” dispute over which federal courts have jurisdiction, citing Seaboard World Airlines v. Transport Workers Union, 425 F.2d 1086, 1090 (2d Cir.1970). Yet the workers are asserting rights which they contend have vested in the past. The No Layoff Guarantee vested on December 24, 1980. The plaintiffs argue that it did not expire when the Basic Agreement expired on December 31, 1984, and was not amended by the new contract that was ratified on March 27, 1985. Whether the workers are correct in those assertions depends on interpretation of the terms of the 1980 agreements. If the question of whether a dispute is “major” or “minor” is close, it should be viewed as being “minor” unless the carrier’s contractual justification is “obviously insubstantial” and the contract is not “reasonably susceptible” to the carrier’s interpretation. Local 553, 695 F.2d at 673. The position taken by Pan Am is not “obviously insubstantial.” Therefore, the dispute to be resolved is “minor” and exclusive jurisdiction for resolving this dispute lies with the Adjustment Board. Because the district court had no jurisdiction to resolve this dispute, the summary judgment in favor of Pan Am must be vacated and the case against Pan Am must be remanded to the district court with instructions to dismiss for lack of subject matter jurisdiction. IV. Plaintiffs’ suit against Marriott With the dismissal of the claim against Pan Am, we are left with the claim against Marriott for tortious inducement of breach of contract. We must examine whether there is any basis for a federal court to retain jurisdiction over this claim. Although the claim against Marriott was originally removed from state court, the plaintiffs’ amended complaint in the district court alleged federal question jurisdiction only for the claims against Pan Am, and invoked ancillary and pendent jurisdiction to support the claim against Marriott. There were no allegations in the amended complaint to support the exercise of diversity jurisdiction. Ancillary and pendent jurisdiction refer to the power of a federal court, once it acquires jurisdiction over a case and controversy properly before it, to adjudicate other claims sufficiently closely related to the main claim even though there is no independent basis for subject matter jurisdiction over the related claims. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3523, 3567 (1984). Traditionally, ancillary jurisdiction refers to joinder, usually by a party other than the plaintiff, of additional claims and parties added after the plaintiff’s claim has been filed. It is mainly a tool for defendants and third parties whose interests would be injured if their jurisdictionally insufficient claims could not be heard in an ongoing action in federal court. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 376, 98 S.Ct. 2396, 2403-04, 57 L.Ed.2d 274 (1978). Pendent jurisdiction traditionally refers to the joinder of a state-law claim by a party already presenting a federal question claim against the same defendant. See, e.g., United States v. Pioneer Lumber Treating Co., 496 F.Supp. 199, 201 (E.D.Wash.1980). The tests for when it is appropriate for a federal court to adjudicate a pendent claim were set forth in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed. 2d 218 (1966). “The state and federal claims must derive from a common nucleus of operative fact ... [I]f, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then ... there is power in federal courts to hear the whole.” Id. at 725, 86 S.Ct. at 1138. “[Pjendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims_” Id. at 726, 86 S.Ct. at 1139 (footnote omitted). Since Gibbs, federal courts have often permitted a plaintiff presenting a federal claim against one defendant to assert a related state claim against a different defendant. See, e.g., Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 809-11 (2d Cir.1971); Astor-Honor, Inc. v. Grosset & Dunlop, Inc., 441 F.2d 627 (2d Cir.1971); see Fortune, Pendent Jurisdiction — The Problem of “Pendenting Parties”, 34 U.Pitt.L.Rev. 1 (1972). Such “pendent party” jurisdiction is a hybrid of ancillary and pendent jurisdiction which does not neatly fit the traditional definition of either. 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3567.2. The Supreme Court has twice declined to analyze whether there are any “principled differences” between pendent and ancillary jurisdiction, and, if there are, what effect Gibbs had on such differences. Aldinger v. Howard, 427 U.S. 1, 13, 96 S.Ct. 2413, 2419-20, 49 L.Ed.2d 276 (1976); Owen, 437 U.S. at 370 n. 8, 98 S.Ct. at 2401 n. 8. We find it unnecessary to resolve that open question, however, since this case may be decided solely by reference to Gibbs and to traditional notions of pendent jurisdiction. The plaintiffs have argued that the district court has the power to fashion a federal common law cause of action for tortious interference, and that the claim against Marriott is based on that federal claim. The federal courts do have the power to develop a uniform body of federal law in the process of construing and enforcing collective bargaining agreements covered by § 301, of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-57, 77 S.Ct. 912, 917-18, 1 L.Ed.2d 972 (1957). Thus, some federal courts have permitted claims asserting tortious interference with labor contracts governed by the LMRA. E.g., Local 472, United Ass’n v. Georgia Power Co., 684 F.2d 721, 725-26 (11th Cir.1982); Wilkes-Barre Publishing Co. v. Newspaper Guild, 647 F.2d 372, 379-81 (3d Cir.1981), cert. denied, 454 U.S. 1143 (1982). However, under the RLA, which governs this case, there is no comparable power to create federal common law. Implying a federal claim for tortious interference would conflict with the strong policy under the RLA of keeping questions of labor contract interpretation out of the federal courts. There is no authority for creating a federal common law tort for this case and federal common law cannot serve here as a source of federal question jurisdiction. What remains is the state claim for tortious interference against Marriott. Because a federal claim of tortious interference under the RLA is arguably pleaded and is at least colorable, the state tortious interference claim is pendent to it. The same plaintiffs are pleading against the same defendant (Marriott) state and federal claims arising from a “common nucleus of operative fact” —as Gibbs puts it. The question then is whether the district court should, as a matter of discretion, retain jurisdiction over that state claim against Marriott. The basis for retaining jurisdiction is weak when, as is the case here, the federal claims are dismissed before trial. The Court in Gibbs stated that “[c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” While later decisions indicate that dismissal of the state claims is not absolutely mandatory, Rosado v. Wyman, 397 U.S. 397, 403-05, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970); Carnegie-Mellon University v. Cohill, — U.S. -, - n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988), when “all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Camegie-Mellon, — U.S. at - n. 7,108 S.Ct. at 619 n. 7. See Independent Bankers Ass’n v. Marine Midland Bank, 757 F.2d 453, 464 (2d Cir.1985), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 554 (1986). In its present posture this suit against Marriott is not one of the rare cases where retaining jurisdiction would be appropriate. At this early stage in the proceedings judicial economy, convenience and fairness do not demand that the federal courts hear this pendent claim. An alternative forum is available to the plaintiffs in the state courts. One factor that may sometimes favor retaining pendent jurisdiction is when a state claim is closely tied to questions of federal policy and where the federal doctrine of preemption may be implicated. Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139-40. However, it is not necessary at this time to reach the question of whether the state-law claim of tortious interference with contractual relationships is preempted by federal labor law. Aside from preemption, the overall balance of factors to be considered in the exercise of judicial discretion weighs against retaining pendent jurisdiction over the action against Marriott. When all bases for federal jurisdiction have been eliminated from a case so that only pendent state claims remain, the federal court should ordinarily dismiss the state claims. Mine Workers v. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. Where the state claims originally reached the federal forum by removal from a state court, the district court has the discretion to dismiss the claims without prejudice or remand them to the state court. Carnegie-Mellon University v. Cohill, — U.S. -, 108 S.Ct. 614, 98 L.Ed.2d 720. There is an alternative disposition of the case that should also be considered. The jurisdictional situation would be different if the plaintiffs’ suit were based on diversity jurisdiction. The plaintiffs originally sued Marriott in the New York State Supreme Court. Marriott removed the action to the federal district court, so diversity probably existed then. However, the plaintiffs then amended their complaint to add federal claims against Pan Am and removed diversity as a basis for jurisdiction. The reasons for giving up diversity jurisdiction are not clear, but it may have been done because there was no diversity between the plaintiffs and the new defendant, Pan Am. With the case against Pan Am dismissed, diversity may again exist between plaintiff and defendant. If on remand plaintiffs are granted leave to amend their complaint to assert diversity jurisdiction, and if the district court determines that diversity exists, the court should permit the case against Marriott to proceed as a diversity action. Bautista, 828 F.2d at 552. This could be more economical than remanding the suit to the state court for immediate removal back to the district court. Accordingly, the plaintiffs’ complaint against Marriott is remanded to the district court to determine (if plaintiffs are allowed to and so amend their complaint) whether diversity jurisdiction exists. In that event, the district court should decide anew (or reaffirm its earlier ruling) whether plaintiffs’ state claim against Marriott is preempted by federal law. If there is no diversity jurisdiction (or if plaintiffs fail to amend their complaint to allege diversity jurisdiction) the court shall decide whether to dismiss the complaint or to remand it to the state court in conformance with Came-gie-Mellon. . The No Layoff Guarantee stated: 3. No Layoff Guarantee The Company agrees not to layoff Catering employees covered by the above referenced Agreements who are on the payroll or Leave of Absence as of the date of the signing of the Agreement and who are listed on Attachment A to this Memorandum of Agreement except for strikes, Acts of God, grounding of aircraft, loss of operating certificates, or curtailment of services due to U.S. or foreign government restrictions.... In the event that all food service is eliminated, including services provided by vendors, at a location where Catering employees are assigned, such employees at that location will be absorbed into the system. It is further agreed that the employees covered under this Agreement who remain in Catering classifications shall continue to receive the percentage wage and/or benefit negotiated for Pan Am employees covered under the Mechanics and Ground Service Agreement. With the exception of the modifications provided by this Agreement, the general conditions of the Commissary and Port Steward contracts shall remain in full force and effect. The parties agree to cooperate in the implementation of efficient work rules for the purpose of providing an improved and more competitive service. . For a discussion of the purpose and design of these statutory procedures, see Brotherhood of Ry. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-80, 89 S.Ct. 1109, 1114-16, 22 L.Ed.2d 344 (1969); Local 553, Transport Workers Union v. Eastern Air Lines, 695 F.2d 668, 674-75 (2d Cir.1982); International Ass’n of Machinists & Aerospace Workers v. National Mediation Bd., 425 F.2d 527, 533-34 (D.C.Cir.1970). .Pursuant to 45 U.S.C. § 156, Pan Am notified the TWU of intended changes in the agreement affecting rates of pay, rules and working conditions thirty days before the start of bargaining on these issues. When negotiations reached an impasse, Pan Am invoked the services of the National Mediation Board to assist the Parties through mediation. 45 U.S.C. § 183. On January 28, 1985 the National Mediation Board notified the parties that in the judgment of the Board all practical methods provided by the RLA for effecting a settlement were exhausted, and released the parties from mediation. For an additional thirty-day period the parties were required to maintain the status quo. 45 U.S.C. § 155 (First). The parties continued to negotiate. On the last day of the thirty-day status quo period, Pan Am offered to drop its demand to eliminate the No Layoff Guarantee if the TWU agreed on all other issues and if there was no strike. The TWU rejected this proposal and the thirty-day status quo period expired. . In Seaboard World Airlines, however, the issue before the court was not the proper interpretation of a provision in a collective bargaining agreement, but whether the provision itself was illegal. 425 F.2d at 1090.

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

ALDRICH v. ALDRICH et al. No. 55. Argued October 24, 1963. —Decided November 12, 1963, that questions be certified to Supreme Court of Florida. Questions certified to Supreme Court of Florida December 16, 1963. Herman D. Rollins for petitioner. Charles M. Love for respondents. Per Curiam. This Court, on its own motion, hereby certifies to the Supreme Court of Florida, pursuant to Rule 4.61, Florida Appellate Rules, the questions of law hereinafter set forth; Statement of Facts. Petitioner, Marguerite Loretta Aldrich, was granted a divorce from M. S. Aldrich by the Circuit Court of Dade County, Florida, by decree entered on May 31,1945. The jurisdiction of that court to award the divorce was not contested then, nor is it contested in this action. The divorce decree awarded alimony to the plaintiff, in the following provision: “4. That the defendant, Moriel Simeon Aldrich, be and he is hereby ordered and required to pay to the plaintiff, Marguerite Loretta Aldrich, the monthly sum of $250.00 as and for her permanent alimony, said sum to be paid to her monthly at the office of the Clerk of the Circuit Court of Miami, Dade County, Florida, and in the event the defendant, Moriel Simeon Aldrich, shall predecease the plaintiff, Marguerite Loretta Aldrich, said monthly sum of $250.00 shall, upon the death of said defendant, become a charge upon his estate during her lifetime; and this Court retains jurisdiction in respect thereto . . . .” There was no prior express agreement between the parties that the estate would be bound. Subsequently, the divorce defendant petitioned the Florida court for a rehearing, which was denied, but the court reduced alimony from $250 to $215 per month. No appeal was taken by either party. M. S. Aldrich died testate, a resident of Putnam County, West Virginia, on May 29, 1958. His will was duly probated in Putnam County and petitioner filed a claim against the estate for alimony which accrued after the death of M. S. Aldrich. The appraisal of the estate showed assets of $7,283.50. Petitioner commenced this action in the Circuit Court of Putnam County, West Virginia, in order to have her rights in the estate determined. She also demanded that certain allegedly fraudulent transfers of real and personal property made by M. S. Aldrich be set aside and the properties which were the subject of such transfers administered as a part of the estate, so as to be subject to her claim for alimony under the Florida divorce decree. The defendants are identified as follows: William T. Aldrich is a son of M. S. Aldrich and petitioner, and Natalie Aldrich is the wife of William T. Aldrich. Angela Aldrich is the widow of M. S. Aldrich. M. S. Aldrich & Associates, Inc., is a corporation which petitioner alleges was principally, if not solely, owned by M. S. Aldrich during his lifetime or until shortly before his death. Aldrich-Slicer Company is a corporation, one of the organizers of which was William T. Aldrich. John C. White is executor of the last will and testament of M. S. Aldrich. On motion for summary judgment by the defendants, the Circuit Court of Putnam County held that the decree of the Florida divorce court was invalid and unenforceable insofar as it purported to impose upon the estate of M. S. Aldrich an obligation to pay alimony accruing after his death. On appeal, the Supreme Court of Appeals of West Virginia affirmed the decision of the lower court, one judge dissenting. The majority and minority opinions of the West Virginia court are reported in Aldrich v. Aldrich, 147 W. Va. 269, 127 S. E. 2d 385. Review by this Court was sought and obtained on the basis of Art. IV, § 1, of the Constitution of the United States, which provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State.” The case was heard on October 24, 1963, and on November 12, 1963, the Court issued a per curiam opinion, 375 U. S. 75, pursuant to which the following questions are certified to the Supreme Court of Florida: 1. Is a decree of alimony that purports to bind the estate of a deceased husband permissible, in the absence of an express prior agreement between the two spouses authorizing or contemplating such a decree? 2. If such a decree is not permissible, does the error of the court entering it render that court without subject matter jurisdiction with regard to that aspect of the cause? 3. If subject matter jurisdiction is thus lacking, may that defect be challenged in Florida, after the time for appellate review has expired, (i) by the representatives of the estate of the deceased husband or (ii) by persons to whom the deceased husband has allegedly transferred part of his property without consideration? 4. If the decree is impermissible but not subject to such attack in Florida for lack of subject matter jurisdiction by those mentioned in subparagraph 3, may an attack be successfully based on this error of law in the rendition of the 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?

UNITED STATES v. SPADAFORA. No. 10882. United States Court of Appeals Seventh Circuit Oct. 8, 1953. Rehearing Denied Oct. 22, 1953. Hugo M. Spadafora, pro se. Otto Kerner, Jr., U. S. Atty., Anna R. Lavin, John Peter Lulinski, Asst. U. S. Attys., Chicago, 111., for appellee. Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges. PER CURIAM. In this proceeding appellant was not represented by counsel and was unable to be present at the time set for the oral argument before this court. Government counsel very properly agreed that the case be submitted to us on the briefs filed herein. On December 12, 1949, after a trial before a jury, appellant was convicted of possession of forged and counterfeit $20 and $10 Federal Reserve Notes and of conspiracy to pass, utter and to keep and possess said notes. He appealed to this court from the judgment of conviction, among other contentions charging error in the district court's ruling on his defenses of entrapment and unlawful search and seizure. This court sustained the conviction of possession of the counterfeit notes. United States v. Spadafora, 7 Cir., 181 F.2d 957, certio-rari denied 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650, rehearing denied 340 U.S. 916, 71 S.Ct. 283, 95 L.Ed. 662. Subsequently appellant filed a motion in the district court, under 28 U.S.C. § 2255, to vacate the sentence and judgment. This motion was denied on May 23, 1951. An appeal was taken and this court affirmed without opinion on September 20, 1951, and denied a petition for rehearing on October 5, 1951. On February 14, 1952, appellant filed a petition in the district court which he entitled, “Petition for Writ of Error Coram Nobis and or Motion to Vacate Fraudulent Trial Court Proceedings.” The district court treated the petition as one brought under Sec. 2255, and on June 26, 1952, summarily denied the motion on the ground that said court was not required under the statute to entertain a second and successive motion, and further that the motion, files and records in the case conclusively showed that appellant was entitled to no relief. This court sustained the action of the district court. United States v. Spadafora, 7 Cir., 200 F.2d 140. On March 11, 1953, appellant filed in the district court a “Petition for Writ of Independent Action and/or Motion to Erase Erroneous Sentence.” On the same day the trial court denied the petition on the ground that it was not required to entertain successive motions or petitions under the statute, 28 U.S.C. § 2255, and that the motions, files and records in the case conclusively showed that appellant was not entitled to relief. On appeal appellant urges that his present motion is outside the purview of Sec. 2255, but is authorized by 28 U.S.C. § 1651(a), which gives district courts the power to issue all writs “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” He also relies on Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C. Title 28 U.S.C. § 1651(a) operates only as an incident to jurisdiction. After jurisdiction attaches that section may be invoked to determine what writs are necessary to the exercise of that jurisdiction, and what writs are agreeable to the usages and principles of law. Thompson Products, Inc., v. N. L. R. B., 6 Cir., 133 F.2d 637. Appellant’s position that his petition for review is authorized under 28 U.S.C. § 1651(a) cannot be sustained. The portion of Rule 60(b) relied on by appellant is “Writs of comm nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” Appellant seizes upon the last phrase, “or by an independent action,” but we think the rule is correctly stated in Wallace v. United States, 2 Cir., 142 F.2d 240, at page 244, where the court said: “But we agree with Moore that the Rule’s history indicates that ‘action’ was intended also to cover whatever could have been done by a writ of error coram nobis or coram vobis, or a bill of review, or a bill in the nature of a bill of review, despite the fact that any such proceeding was, before the new rules, not an independent ‘action’ but ancillary to the main suit.” We hold that the appellant was not authorized to bring any independent action under the provisions of Rule 60 (b), and that a petition under 28 U.S.C. § 2255 was his only possible recourse. We think the district court properly treated appellant’s petition and motion as a motion to vacate and set aside the judgment of conviction under Sec. 2255. We have again given careful study and consideration to all of the contentions and arguments advanced by appellant. Every point he makes on the present appeal has been considered by us heretofore, with the exception that he now alleges error because he claims the trial court informed the bailiff that if the jury desired to propound an inquiry to the court it should do so in writing. However, if such an alleged error were made, it could only have been brought to our attention on an appeal from the judgment of conviction. “Mere errors of law occurring in the trial which could be corrected by an appeal, cannot serve as grounds for an attack on the sentence under § 2255.” United States v. Jonikas, 7 Cir., 197 F.2d 675, 676. It may not be amiss to again emphasize that persons adjudged guilty of crime should understand that 28 U.S. C. § 2255 does not give them the right to have a retrial. Questions of sufficiency of the evidence or involving errors of either law or fact must be raised by timely appeal from the judgment of conviction. Taylor v. United States, 4 Cir., 177 F.2d 194. We can do no better than repeat what we have heretofore said in United States v. Spadafora, 200 F.2d 140, 143, “* * We agree with the district court that the files and records in the case conclusively show that appellant was not entitled to any relief.” The order of the district court denying appellant’s petition is affirmed.

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

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

SOUTHERN COLORADO POWER CO. v. NATIONAL LABOR RELATIONS BOARD. No. 1958. Circuit Court of Appeals, Tenth Circuit. March 25, 1940. PHILLIPS, Circuit Judge, dissenting. James W. Preston and Harry S. Petersen, both of Pueblo, Colo. (Helmer Hansen, of Chicago, 111., on the brief), for petitioner. A. J. Rockwell, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Mortimer B. Wolf, Samuel Edes, and Leonard Appel, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge.. This cause is before the court on the petition of the Southern Colorado Power Company, herein called petitioner, to review and set aside a decision and order of the National Labor Relations Board, herein .called the Board. The cause originates on the complaint of H. H. Stewart and I. L. Watkins. The charge of the complaint is that petitioner engaged in unfair labor practices affecting interstate commerce within the meanings of Subdivisions (1) and (3) of Section 8, and Subdivisions (6) and (7) of Section 2, of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A.Supp., Ch. 7, §§ 152(6, 7), 158(1, 3). The Board made extensive findings of fact, and as a result thereof, concluded that: Conclusions of Law 1. By discriminating in regard to the tenure of employment of H. H. Stewart and I. L. Watkins and thereby discouraging membership in a labor organization, petitioner has engaged in and is engaged in unfair labor practices within the meaning of Section 8(3) of the Act. 2. That by interfering with, restraining and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act [29 U.S.C.A. § 157], the petitioner has engaged in unfair labor practices within the meaning of Section 8(1) of the Act. 3. That the aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. The Board thereupon entered its order, as follows: Order That petitioner, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees by discharging, or threatening to discharge any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any manner interfering with, restraining or coercing its employees in the exercise of the rights of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, as guaranteed in Section 7 of the Act. 2. Petitioner was directed to take the following affirmative action : (a) Offer to H. H. Stewart and I. L. Watkins immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (b) Make whole H. H. Stewart and I. L. Watkins for any loss which they have suffered by reason of their discharges; (c) Post immediately in conspicuous places throughout its various plants and places of business notices stating that the respondent will cease and desist in the manner set forth in Section 1(a) and (b), and that it will take affirmative action in Section 2(a) and (b) of this order, and maintain such notices for a period of at least sixty days from the date of posting; (d) Notify the Regional Director for the Twenty-second Region in writing within ten days from the date of this order what steps petitioner has taken to comply herewith. From this order an appeal has been taken to this court. The answer of the Board seeks enforcement of its order. The following points are presented for consideration on appeal: 1'. The Board was without jurisdiction over petitioner for the reason: (a) That its operations are purely intrastate in character and do not substantially affect interstate commerce; (b) If petitioner is subject to the jurisdiction of the Board as to part of its employees, the Board does not have jurisdiction over the office employees. 2. Petitioner has not been guilty of interference with, restraining or coercing its-employees with respect to their right under the Act to organize. 3. Stewart and Watkins were not discharged on account of their union activities. Jurisdiction Petitioner is a Colorado corporation, having its principal office and place of business at Pueblo, Colorado. It is a subsidiary of the Standard Gas and Electric Company of Delaware, a public utility holding corporation. It is engaged in the business of generating, buying, transmitting, selling and distributing electric energy. It operates a street railway system in Pueblo, Colorado, and also purchases, sells and distributes electric appliances and equipment at retail. It operates steam plants in Pueblo and Canon City, Colorado, and a hydro-electric plant at Skaguay, Colorado. All coal used in the steam plants is produced in Colorada and all water for the hydro-electric plant originates within Colorado. Its property is situated entirely' in Colorado, extending over four counties. It supplies electric energy to the Western Public Service Corporation, operating entirely in Colorado. Petitioner serves a population of approximately 104,000 persons in an area covering about 7,000 square miles in the southeastern part of Colorado. No competing source of electrical power exists in the territory served by petitioner. During 1937, petitioner generated 84,508,360 kilowatt-hours and purchased 2,390,600 kilowatt-hours of electric energy. Of this amount, 758,630 kilowatt-hours were sold to interstate transportation and' communication agencies; 4,-141,692 kilowatt-hours were sold to manufacturing concerns selling part of their products outside of Colorado; 250,637 kilowatt-hours to newspapers of general circulation in Colorado and other states; 70,701 kilowatt-hours to radio broadcasting stations; and 56,997 kilowatt-hours to United States postoffices. Petitioner employed 399 persons and had an annual payroll of $732,669.90. In 1937 petitioner purchased material and supplies used for construction purposes in the operation of its business, amounting to $564,283.92, 35.6% of which was shipped to petitioner from points outside Colorado. In 1937 it also purchased electrical merchandise, equipment and supplies of a gross value of $122,484.91 for resale, approximately 10% of which came from points outside Colorado. Petitioner furnishes electricity to three railroads engaged in interstate commerce, and used by the roads for the lighting of railroad stations, for power purposes in repair shops, and in the operation of block signal devices, all in Colorado. It supplies energy to the Western Union and Postal Telegraph systems, both receiving and transmitting messages in and out of Colorado. The energy furnished is used by these companies in lighting their offices and stations and in transmitting messages, both local and interstate. Energy is also supplied to the Mountain States Telephone and Telegraph Company, which has telephone lines extending from the state of Colorado into other states. It also furnishes electric energy to a radio station at Pueblo, Colorado, to supply the power for the operation of the broadcasting station. This station broadcasts .programs originated by the National Broadcasting Company. It supplies energy to Airway Radio Service at Pueblo, Colorado, to its airport, used by local airplanes and by planes engaged in carrying United States mail. The daily papers served by petitioner receive Associated Press or United Press Association service and carry a large amount of national advertising originating outside of Colorado. A large number of industries, such as manufacturing industries, situated in the area served by petitioner, are engaged in transporting commodities in interstate commerce and are dependent upon petitioner for electrical power and light, which are essential to the operation of their plants. Seven of the larger of these firms, which ship portions of their finished products in interstate commerce, alone purchased from petitioner in 1937, 4,141,692 kilowatt-hours of electric energy for lighting and power purposes. Some of the concerns furnished electric energy by petitioner had emergency equipment which could be used in the event that the supply of power from petitioner was interrupted. Others had no such emergency equipment. The scope of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the jurisdiction of the Board in its administration are limited to interstate and foreign commerce, to the exclusion of operations which are essentially intrastate in character and which do not have an effect upon interstate commerce. Where federal control is sought to be exercised over activities which, separately considered, are intrastate in nature, it must appear that there is a close and substantial relation to interstate commerce in order to justify federal intervention for its protection. Unless these facts exist, the Board has no jurisdiction in a controversy between employer and employees. Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. The question whether operations do or do not affect interstate commerce in such a close and intimate fashion as to confer jurisdiction upon the Board must be determined by the facts as they exist in each case. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 393, 108 A.L.R. 1352; Consolidated Edison Co. v. National Labor Relations Board, supra. It is urged that here the percentage of sales to interstate railroads and communication agencies amounts to less than 1% of the total out-put and that the percentage of all sales to concerns engaged in interstate commerce amounts to only 6%. The percent of out-put of any business which goes into interstate commerce is not the true test. If the sale of only a fractional part of 1% of the total out-put of a business going to interstate commerce substantially affects such commerce, then jurisdiction attaches. The question in each case is not the percent of out-put of a business going into interstate commerce, but the effect thereof. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, supra. Evidence was adduced that a labor dispute between petitioner and the office and accounting forces would not in any manner affect the production and distribution of electric power unless a strike of the office and accounting forces extended over a period of ten months, and that there would be no difficulty in replacing office and accounting employees who went out on strike. If the discontinuance of a certain department of a business would have no effect upon interstate commerce, then the Board has no jurisdiction over a labor dispute between such a department and the company. But here it clearly appears that a labor disturbance in this department would affect interstate commerce if it continued for ten months, or unless others could be found to replace those in the department. Under such conditions it cannot be said that the discontinuance of such a department or labor dispute therein does not affect interstate commerce. An analysis of the testimony as set out above leaves no room for doubt that the nature, kind and quantity of the business of petitioner, the extent and volume of the equipment and supplies shipped to it by manufacturers from outside the state of Colorado, the relationship between the business of petitioner and interstate commerce agencies and the effect upon such agencies by an interruption of the relationship between them and petitioner’s business, would substantially affect interstate commerce within the pronouncements of the Supreme Court. National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S.Ct. 642, 81 L.Ed. 918, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Fainblatt, supra. The findings of the National Labor Relations Board as to its jurisdiction in the instant case are based upon substantial testimony and are approved. Unfair Labor Practice In the spring of 1937, agitation began in petitioner’s plant for increase in wages. The operating employees circulated a petition for an increase. H. H. Stewart was approached by one of the operating employees and asked to solicit the office employees’ signatures to the petition. Stewart discussed the advisability of joining in the petition with other office employees, and together they decided to consult W. J. Ben-ning, a director and officer of- petitioner, before taking any action. Benning requested that they withhold action until he could consult W. N. Clark, president of petitioner. Thereafter Stewart was called by Benning and advised that Clark had expressed the desire that the office employees refrain from becoming involved in the petition, stating that if petitioner decided to grant a wage increase to the operating employees, the office employees would be similarly treated. Lester Morrell, an operating employee, who later became president of the International Brotherhood of Electrical Workers Local, urged the granting of the wage increase on Clark, stating that he feared the employees were becoming “C.I.O.-minded.” At the suggestion of other employees, Stewart conferred with Benning regarding the organization of the office employees. Benning requested that the matter be held in abeyance until he talked to Clark. Later Benning informed Stewart that Clark disapproved of the plan to include the office workers in the I.B.E.W., and preferred to deal with the office employees on an individual basis. He expressed his opposition to a union for office employees. Benning further advised Stewart that Clark desired the office employees to wait until the pending negotiations with the I.B.E.W. were terminated. Clark went to Europe without any decision as to wage increases for office employees. Agitation was renewed for a separate union. Stewart discussed with office employees the advisability of organizing themselves into a separate union. A meeting was called for August 9 for the purpose of discussing the organization of a union of office employees. Clark had returned from Europe by this time. Robert Miller, secretary and assistant treasurer of petitioner, called Stewart to his desk and informed him that a conference of petitioner’s officers had been held and that Benning was instructed by Clark that he did not want the office employees to organize a labor union. Stewart told Miller that the office employees were compelled to band together because Clark and Benning had failed to keep their promises with respect to salary increases. Miller then informed Stewart that petitioner had decided to grant pay increases to the office employees, thus making it unnecessary to form a labor union. In this conversation Miller also stated that petitioner could install accounting machines and lay off some of those in the general office. The same morning Miller informed T. F. Roach, an accountant in the general accounting department, of a raise for him, and declared that Clark was against the office organization, and that if they did go ahead and organize they could install accounting machines which would replace possibly a good many in the accounting department. In his testimony Miller stated that he did not recall making these statements, but admitted he might have ■said something in a similar vein to the employees. An attempt was made to have a committee of employees call on Clark, but they were informed that Clark would not see a committee. Clark asserted that he opposed the contemplated organization of office employees and declared that if the workers formed a labor organization no pay increases would be granted, and if such organization should call a strike, the entire office personnel would be replaced. According to Roach, he was instructed by Clark to deliver this message to the other employees. Clark admitted telling Roach of petitioner’s opposition to the formation of the proposed union, but denied directing Roach to deliver any message to the meeting. On August 16, the office employees received a general wage increase. As a result, Stewart and Watkins, after consulting with other employees, decided to cancel a further meeting looking to an organization of a union. The Discharge of Stewart and Watkins November 30, 1937, H. H. Stewart and I. L. Watkins were discharged. Petitioner ■claims a reduction in force was made necessary by the contemplated installation of labor saving machinery. Benning stated that he reviewed the standing of all office employees with the department heads before reaching the decision to release Stewart .and Watkins. The reason given for the discharge of Stewart was that he had been guilty of loafing, lack of civility to his superiors, lack of cooperation, and the belief that he would not fit into the new system. An incident occurring Armistice Day, 1936, was cited against Stewart. On that day, general accounting department employees were ordered by Benning to remain on duty beyond 11 o’clock. Miller observed Stewart advising a small group of his co-workers, war veterans, to remain at their posts in protest against this delay. When Miller informed them that Benning had granted permission for them to leave, Stewart stated that the significance of the day was lost and that Miller might tell “that pro-German (Benning) to go to hell, I’m staying.” Roach and Sheets and other employees remained on duty with Stewart. Later Miller approached Stewart and apologized in behalf of Benning, saying he had forgotten it was Armistice Day. It was also charged that Stewart had assaulted an employee in 1921 or 1922. This Stewart denied. It was admitted that the alleged assault had been forgotten, that Stewart had never been disciplined for any of his alleged misconduct, no charge had ever been lodged against him. Although Miller testified that Stewart’s short-comings continued to the date of his discharge, petitioner increased his salary as late as September, 1936, and again in August, 1937. Miller stated that Stewart was thoroughly competent. Of 15 employees in Stewart’s department at the time of the discharge, only one had seniority over him. Stewart had been with petitioner uninterruptedly since 1916, save a period of 22 months when he served in the World War. Of four accountants in the department, Stewart had most seniority. He ranked as the third highest paid employee in the entire department and second highest paid accountant. When Stewart charged that he was being dismissed for his attempts to organize a union, Benning refused to discuss the matter. The reason given for Watkins’ discharge waá that it was found necessary to transfer Sheets from the accounting department and it was determined to give Watkins’ position to Sheets because Sheets was a better collector and had an invalid wife and needed work. The evidence reveals that Watkins also had a wife and also had a minor child to support. Watkins was generally recognized by the employees in the accounting department as the departmental leader. Watkins ranked sixth in seniority in the department. He was the fourth highest paid employee in his department. No objection was ever made to Watkins’ work. Benning testified that Watkins was perfectly capable. During his employment Watkins received nine individual pay increases, one general increase, and one general decrease, which was later restored. Stewart and Watkins were most active in the efforts to organize a union. Sheets seems to have taken an active part in opposition to the formation of a union, in the Labor Temple meeting on August 9. He warned the employees that they owed their jobs to their employer. On three occasions during the meeting Sheets called on Roach to address the meeting, saying that Roach knew Clark’s attitude on the matter. Upon the repeated requests of Sheets, Roach took the floor and announced to the assembled employees that he had been informed by Clark that he was absolutely against the office organization. Sheets’ part in the union meeting on August 9 was known to Benning. The Board concluded that petitioner selected Stewart and Watkins for discharge in order to deprive the office employees of the leadership which they provided and to destroy the movement for union organization among the office employees. While the Board found that the labor saving machinery was not installed for the purpose of dismissing Stewart and Watkins, it did find that petitioner used the installation of labor saving devices to rid itself of the two employees whose activities directed toward the self-organization of the office employees. The respective findings of the Board relating to the unfair labor practices of petitioner and to the discharge of Stewart and Watkins are challenged. The evidence relating to these issues is in sharp conflict, as are the inferences that can be drawn from the same. The Board resolved the conflict in each instance against petitioner. The findings of the Board in each instance are supported by substantial testimony and are binding upon the reviewing court. National Labor Relations Board v. Waterman Steamship Co., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. —, decided February 12, 1940. A decree will he entered enforcing the order of the Board.

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 29. 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 29? Answer with a number.

LOUISIANA FARMERS’ PROTECTIVE UNION, Inc., v. GREAT ATLANTIC & PACIFIC TEA CO. OF AMERICA, Inc., et al. No. 12204. Circuit Court of Appeals, Eighth Circuit Nov. 2, 1942. Cameron C. McCann, of New Orleans, La. (Morrison & Sims and James H. Morrison, all of Hammond, La., and Edward R. Schowalter, of New Orleans, La., on the brief), for appellant. Russell V. Rogers, Jr., of Dallas, Tex., and S. Lasker Ehrman, of Little Rock, Ark. (Grover T. Owens, E. L. McHaney, Jr., and Owens, Ehrman & McHaney, all of Little Rock, Ark., William H. Clark, Jr., and Clark, White & Rogers, all of Dallas, Tex., J. W. House, Jr., and House, Moses & Holmes, all of Little Rock, Ark., Monroe & Lehmann, of New Orleans, La., Car-uthers Ewing, of New York City, and Frost & Jacobs, of Cincinnati, Ohio, on the brief), for appellees. Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. This is an appeal from a judgment dismissing a complaint in an action brought under § 7 of the Sherman Act to recover threefold damages for alleged violations of the Act as amended, 15 U.S.C.A. §§ 1, 15, on the ground that the complaint fails to state a claim against the appellees upon which relief may be granted. The complaint as amended and as amplified by bills of particulars filed in response to motions on the part of the appel-lees may be summarized. The appellant is a non-profit co-operative corporation organized under the laws of Louisiana, composed of all the growers of strawberries in that state, more than 8,000 in number, who ship strawberries in interstate commerce. It is the marketing agency for its members, and by its constitution and bylaws it is authorized to protect its members “by every legal means in the bringing of class actions or of individual members or by the corporation itself for and on behalf of the member * * and its board of directors is given “the power to protect and represent legally or in the courts every member of said organization in the bringing of class actions, or individual actions, or in the bringing of an action for or on behalf of all the members of said organization, either by assignment oral or written, assigning whatever right said members may have or otherwise.” At a meeting of the union in Hammond, Louisiana, held on March 3, 1939, each and every member' of the union orally assigned to the appellant the causes of action here involved, and authorized the appellant in its name to bring the present suit to recover on the causes of action assigned. The oral assignments in question- were accomplished by the unanimous passage at a meeting of the union, all members being present, of a resolution to that effect. Of the appellees, the Great Atlantic and Pacific Tea Company of America, Inc., the Kroger Grocery and Baking Company, Inc., and Safeway Stores, Inc., are the owners and operators of chains of food stores, including more than 20,000 retail stores in more than thirty-five states. The other appellees are the buying subsidiaries of one or the other of the appellees mentioned. The appellees in the years 1937 and 1938 purchased approximately twenty-five percent of the strawberries produced by the members of the appellant union and, in the years mentioned, entered into a conspiracy with the object and intent of stifling competition in and monopolizing retail distribution of strawberries and other food products throughout the United States. In the prosecution of this conspiracy the appel-lees, through their retail stores throughout the United States, sold strawberries of appellant’s members as “loss leaders”, that is, at prices at retail less than cost, with the intention and result of enabling them to dictate the price paid by them for Louisiana strawberries and also the price to the ultimate consumer, and to force out of business other retail dealers in competition with appellees’ stores. The result of this concerted action upon the part of ap-pellees was to drive out of appellant’s strawberry market other purchasers of strawberries who were unable to meet the unfair and unlawful prices below cost at which appellees sold the strawberries in their retail stores in competition with such other purchasers; and thus to destroy competition in trade in strawberries and to create a monopoly in the strawberry market for the benefit of the appellees. This concerted action of the appellees resulted in the depreciation of prices in the Louisiana strawberry market, in the limitation of competition in Louisiana strawberries in interstate commerce, and in the establishment of a monopolistic control over interstate commerce in Louisiana strawberries in the hands of the appellees. This illegal combination and its operation by the appellees depreciated the average price of strawberries shipped during 1937 in interstate commerce by appellant’s members from $2.40 per crate to $1.57 per crate, causing a loss to the members in that year on 2,502,400 crates of strawberries shipped in interstate commerce in the sum of $2,076,992. In 1938 appellant’s members shipped in interstate commerce 1,840,-000 crates of strawberries for which they received an average price of $1.97 per crate, when, but for the conspiracy alleged, the appellant’s members would have received an average price of $2.35 per crate, entailing a total loss to the members of the union of $699,200. Judgment was asked for three times the sum of the damages stated above, or $8,328,576, with interest, costs, and attorneys’ fees. In form the complaint was in three counts: the first charging violations by the appellees of §§ 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2; the second, violations of § 2 of the Clayton Act, 15 U.S. C.A. § 13; and the third, violations of § 3 of the Robinson-Patman Act, 15 U.S.C. A. § 13a. But this subdivision of the complaint into counts was more a matter of form than of substance, the violation of a separate section of the national anti-trust laws being charged in each count upon the same facts. Taking the complaint in its entirety, the gravamen of appellant’s charge is that appellees, buyers of Louisiana strawberries, agreed with each other to control the price of berries by driving out of the market competing purchasers. This alleged conspiracy was made effective by selling to the consumer at retail prices either below cost or at prices so low as to eliminate competitors of appellees in the retail market, thus compelling other distributors of berries at wholesale who were buyers of Louisiana strawberries in interstate commerce for sale to competing retailers, to retire from the Louisiana market or to purchase only at the depreciated price fixed by the appellees; and by these actions the members of the appellant union sustained the damages claimed. In sustaining the motion to dismiss, the district judge did not pass upon the question of whether the appellant had sufficiently alleged violations of the controlling acts of Congress nor decide whether the assignments of the members of the union to the appellant were valid under the Louisiana law. But assuming that the complaint was sufficient to charge the acts prohibited and that the assignments to appellant were valid, he was of the opinion that the complaint should be dismissed on two grounds: (1) Because appellant had not [40 F.Supp. 897, 906] “ * * * alleged facts showing damage to the business or property of its assignors in an amount susceptible of expression in figures, proximately resulting from the alleged illegal acts”; and (2) because “ * * * the necessary causal relationship between the alleged violations of the statutes and the alleged damage to plaintiff’s assignors, does not appear.” For the reasons stated the district judge was of the opinion that appellant had “failed to state a cause of action upon which relief can be granted it”; that “the defects pointed out are inherent and basic and go to the heart of the complaint”; and “that nothing would be gained by deferring longer its dismissal.” Accordingly the complaint was dismissed without leave to amend, and this action of the court presents the real issue here. To sustain the court below the appellees contend that the appellant has pleaded merely conclusions of law, setting forth in the words of the statute, a conspiracy among the appellees to establish a monopoly in interstate trade in strawberries, and that the complaint is barren of allegations concerning the acts of appellees constituting the alleged violations of law. It is conceded that more than this is required of the pleader in a civil action under the statute in question, but the complaint here is not so deficient in its allegations of ultimate facts as to justify its dismissal without leave to amend. The courts have always recognized the difficulty in actions of the character here, inherent in the nature of the case, in setting forth in precise detail the acts constituting the alleged violations of the anti-trust laws. Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815; Swift & Co. v. United States, 196 U.S. 375, 395, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518; Buckeye Powder Co. v. E. I. Du Pont de Nemours Co., D.C., 196 F. 514. And since the adoption of the Rules of Civil Procedure, the cases require of the pleader only a plain and simple statement of his case in conformity to Rule 8(a), 28 U.S.C.A. following section 723c. It is not necessary to set out in detail the acts complained of nor the circumstances from which the pleader draws his conclusions that violations of the acts of Congress have occurred and the pleader has been damaged. C. E. Stevens Co. v. Foster & Kleiser Co., 311 U.S. 255, 61 S.Ct. 210, 85 L.Ed. 173; Hicks v. Bekins Moving & Storage Co., 9 Cir., 87 F.2d 583; Stewart-Warner Corp. v. Staley, D.C., 42 F.Supp. 140; Luebke Co. v. Manhardt, D.C., 37 F.Supp. 13; Metzger v. Breeze Corp., D.C., 37 F.Supp. 693; Kentucky-Tennessee L. & P. Co. v. Nashville Coal Co., D.C., 37 F.Supp. 728. The complaint here charges an agreement or combination among appellees to control prices in interstate commerce in Louisiana strawberries, and thus to eliminate competition in interstate commerce. Such agreements are in direct violation of the Sherman Act United States v. Univis Lens Co., 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408; United States v. Masonite Corp., 316 U.S. 265, 62 S.Ct. 1070, 86 L. Ed. 1461. Acts in themselves lawful considered alone, if a part of a plan for controlling prices to eliminate competition in interstate commerce, are unlawful. United States v. Socony Vacuum Oil Co., 310 U. S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852. It is the character and not the extent of the control which the law denounces. The amount of interstate commerce or trade involved is not material. United States v. Socony Vacuum Oil Co., supra. Here the complaint charges a combination among appellees to control prices and to destroy competition in interstate trade in Louisiana strawberries, and that appellees’ acts pursuant to the agreement among them resulted in damage to appellant’s assignors in their business. Appellees also argue that § 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a, on which the third count of the complaint is based, is a criminal act and not a part of the anti-trust laws within the meaning of § 7 of the Sherman Act, giving the right of action for damages in a civil suit. And they contend that the section in question is unconstitutional because it is too indefinite and uncertain in its definition of unreasonable prices to be enforceable either as a criminal or a penal statute. There is authority to the contrary. Midland Oil Co. v. Southern Refining Co., D. C., 41 F.Supp. 436; Kentucky-Tennessee L. & P. Co. v. Nashville Coal Co., supra. But the question raised is not necessary to the decision of this case, and we do not decide it. The acts charged as violations of the Robinson-Patman Act in count three of the complaint were the same as those charged as violations of the Sherman and the Clayton Acts in counts one and two. Appellant’s cause of action remains even if appellees’ argument here is correct. With respect to the first of the grounds assigned by the court for dismissal, the district judge said: “It will be noted that the plaintiff sues for no damage to itself, and bases its right to maintain the suit solely upon the 8,795 assignments. Therefore, the plaintiff is suing as assignee on 8,795 separate, individual claims. Now, had any one of the assignors brought suit against the defendants in his own name and upon his own claim, it would, of course, have been necessary that he allege damage to his business or property proximately resulting from the alleged unlawful acts of the defendants and in some amount susceptible of expression in figures; and the fact that he assigns his claim to another party cannot change this rule in the least.” With this statement of the district judge we are in full accord, but the defect in the complaint there pointed out extended only to the amount of damages sustained by each of appellant’s assignors. It could, and should have been corrected by requiring this damage to be stated with respect to each of them, the damage to each assignor to be computed upon actual, and not upon average prices received, and the basis of computing the damage to be shown. The court had previously required the appellant, in ruling upon appellees’ motion for a bill of particulars, to give the names and addresses of each of the assignors, but had declined to act upon appellees’ request for a statement of the amount of damage received by each assignor. The reason advanced by the court for this action was that the latter question should more properly be decided upon a motion to dismiss. We think the contrary of this proposition is correct and, therefore, that this action upon the part of the court, instead of justifying an order of dismissal without leave to amend in this respect, required that the leave to amend be granted. Nor can we agree with the position of the district judge upon the second ground for dismissal. After stating the substance of the complaint, the district judge said of it: “We do not think that the plaintiff has here stated facts which logically lead to the conclusion that the damage claimed proximately resulted from the alleged unlawful acts on the part of the defendants. We do not think that the plaintiff has alleged facts showing an effective monopoly, that is, a monopoly sufficiently effective to bring about the alleged damage to plaintiff’s assignors.” The court took judicial notice that there was no monopoly in the retail food business in the United States and concluded that the allegations of the complaint, that a monopoly in strawberries by reason of appellees’ acts was created and was effective to damage the appellant, could not be accepted as true “even upon a motion to dismiss.” The district judge was unable to believe the allegations of the complaint, that all of the strawberry growers in Louisiana who shipped strawberries in interstate commerce were members of the appellant union, or that all of them had assigned their claims to the appellant. He thought that the price of Louisiana strawberries in 1937 and 1938 might as well have been controlled by over-production or by competition with berries from other states, and noted as an important circumstance the failure of the complaint to explain the difference in the number of cars shipped by the Louisiana growers in 1937 and 1938. It may be that the conclusions drawn by the district judge will prove correct when the evidence is in, but they are of a character usually to be drawn from the evidence after a hearing and not from the bare allegations of the pleadings. One of the issues which appellant in this case sought to submit to the test of proof, was whether damage claimed had been sustained as the proximate result of the unlawful acts of the appellees charged in the complaint. Usually conclusions of this character rest upon inferences from facts within the exclusive province of the jury, and cannot be drawn until the evidence is in. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 560, 51 S.Ct. 248, 75 L.Ed. 544. This court frequently has commented upon the considerations which should govern in ruling upon a motion to dismiss a complaint for insufficiency of statement. It is unnecessary to repeat here what the court has said on many occasions, particularly in the case of Leimer v. State Mutual Life Assurance Co., 8 Cir., 108 F.2d 302, in which reference is made to many of the pertinent decisions of this court. It is enough to observe, as was done in the Leimer case, that no matter how improbable it may be that the plaintiff can establish the allegations of its complaint, it is, nevertheless, entitled to the opportunity to make the attempt. The opinion of the district judge, in advance of a hearing, as to the impossibility of proof of a cause of action fairly stated, is not decisive of the rights of the parties. And see Sparks v. England, 8 Cir., 113 F.2d 579, 581. The district court did not pass upon the Validity of the appellant’s assignments under Louisiana law and we do not decide the question. It is to be observed that the jurisdiction of the district court in this case does not depend upon the amount in controversy. The validity of the various assignments, more than 8,000 in number, may, and doubtless will, turn upon the evidence offered in respect to each of them. And the jurisdiction of the district court will remain though the evidence fails to sustain the validity of all of the assignments. For this reason the decision of this question may properly be deferred until the trial of the case upon its merits, or until the reception of evidence concerning the assignments. We think the court erred in dismissing the complaint without leave to the appellant to amend. Accordingly the judgment is reversed, and the case is remanded with directions to the district court to grant the appellant a reasonable time in which to amend the complaint by setting out the amount of the damage claimed to have been received by each of the appellant’s assignors and the basis upon which the amount was computed, and for further proceedings in conformity with this opinion.

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

CURTIS v. PRUDENTIAL INS. CO. OF AMERICA. No. 3197. Circuit Court of Appeals, Fourth Circuit. Jan. 12, 1932. Joe W. Ervin, of Charlotte, N. C. (John M. Robinson and Guy T. Carswell, both of Charlotte, N. C., on the brief), for appellant. C. W. Tillett, Jr., of Charlotte, N. C., and James H. Pou, of Raleigh, N. C. (Ralph W. Hyatt, of Newark, N. J., Pou & Pou, of Raleigh, N. C., and Tillett, Tillett & Kennedy, of Charlotte, N. C., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. NORTHCOTT, Circuit Judge. This action at law was instituted in the superior court of Mecklenburg county, N. C., by Mrs. Charles H. Curtis, appellant, seeking to recover on a policy of' insurance alleged to have been issued by appellee, the Prudential Insurance Company of America, defendant below, on the life of complainant’s husband, Charles H. Curtis, in the sum of $5,000. The plaintiff was named as beneficiary in the policy* On petition of appellee, the cause was removed to the District Court of the United States for the Western District of North Carolina. In the court below, at the conclusion of the plaintiff’s evidence, the attorneys for the defendant' demurred to the evidence, which motion the court below sustained, and entered a judgment of nonsuit. From this judgment, the plaintiff brought this appeal. Under date of October 5, 1928, the plaintiff’s husband, Charles H.- Curtis, applied, in writing, for a $5,000 life insurance policy with double indemnity in the event of accidental death; C. F. Hancock being the soliciting agent. Upon this application, the company wrote out a? policy, dated October 13, 1928, which was transmitted to soliciting agent Hancock. The premium was payable quarterly, and amounted to $17.55 per quarter. Curtis paid $2.50 on account when he signed the application, and between that time and his death, which occurred January 15, 1929, there were paid to Hancock in several payments sums aggregating $7, so that when Curtis died only $9.50 of the first premium had been paid, and the policy had never been delivered. The application was signed by the insured, and contained the following clause: “I 'further agree that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained and that Unless the full first premium is paid by me at the time of making this application, the policy shall not take effect until issued by the company and received by me and the full first premium thereon is paid, while my health, habits and occupation are the same as described in this application.” Under the language of the policy, the application was made a part of the contract, and the policy also contained a clause to the effect that the policy, together with the application, constituted the entire contract between the parties. At the time of the application for the policy, the Curtis family was carrying industrial insurance with the defendant company on two young children and the life of the plaintiff, for which policies the local agent, Hancock, was collecting weekly payments. Agent Hancock agreed that the premium on the policy in suit could be paid weekly, and plaintiff began making weekly payments of $1.25 per week upon the policy. Agent Hancock raised the weekly rate of payment $1 per week shortly after the payments were begun, and plaintiff testified that, because of that fact, she ceased making the payments from some time in November until January 7, when an additional $2 was paid, making a total paid on the policy of $9.50. In the meantime, during the Christmas week, the agent called on insured and explained why it was necessary to raise the weekly payment, and the insured agreed to continue paying. On the Thursday before January 14, 1929, the plaintiff received from the defendant company a notice and demand for payment of the second quarter premium due January 13, 1929. Agent Hancock called at the Curtis home on January 14, and plaintiff testified that she offered to pay him the balance due on the first quarter, but that the agent told plaintiff that her husband’s policy was in force and that there was no use to worry about it, and that it would be in force another month under the payments already made. On January 15. 1929, the insured was killed. At the trial, the policy in question was produced by the defendant pursuant to a notice served on it by the plaintiff, and was introduced in evidence by the plaintiff. The word “Canceled” in perforations was stamped over the signatures of the president and secretary of the company on the policy. The contention of the defendant below, which was sustained by the action of the trial judge, is that there never was any contract of insurance; first, because the policy was never delivered, and second, because the' first premium was never paid. The plaintiff contends that the policy was in full force and effect at the time of insured’s death; there having been a constructive delivery of the policy or a waiver of delivery, and the first premium having been paid or waived. The validity of the provisions in the application and the policy is unquestioned. Similar provisions have been passed upon by the courts, and, so far as we can find, have been uniformly approved. In MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663, it is held: “The law is settled in this court that, when a life insurance policy contains, as this one did, the provision that it ‘will not take effect, unless the first premium or agreed installment thereof shall be actually paid during the lifetime of the insured,’ the provision means exactly what it says and will bo enforced. And if the policy contains, as this one did, the express provision that ‘agents are not authorized to make, alter or discharge contracts,’ the waiver relied on must be one by the company itself, and no attempted waiver by an agent will be treated as its equivalent. In Pennsylvania Casualty Co. v. Bacon, 133 F. 907, 67 C. C. A. 497, a policy of insurance stated that it was not to take effect ‘unless the premium is actually paid previous to any accident upon which claim is made,’ and it provided that no waiver should be binding on the insurer unless indorsed on the policy and signed by the president or secretary of the company. This court held that a subagent had no authority to accept a note in lieu of cash for the first premium, and to thereby waive the provisions of the policy. The decisions of the Supreme Court in Northern Assurance Co. v. Grand View Building Association, 183 U. S. 318, 22 S. Ct. 133, 46 L. Ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U. S. 311, 30 S. Ct. 312, 54 L. Ed. 493; Ætna Life Insurance Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Lumber Underwriters v. Rife, 237 U. S. 605, 35 S. Ct. 717, 59 L. Ed. 1140; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202 — support the same doctrine. The provisions that a policy of life insurance shall not take effect unless the first premium is actually paid in cash during the lifetime of the person insured is valid and will be enforced according to its terms.” See, also, Sturgill v. New York Life Ins. Co., 195 N. C. 34, 36, 141 S. E. 280. We believe this to be a wholesome rule, because it is clearly apparent that the business of life insurance, which is so important a part of our civilization in this latter-day •world, could not be carried on were the insurance companies bound by every act or statement of a local agent; especially one whose duty is mainly that of soliciting or collecting. If it were otherwise, great injustice would follow, and a groat loss be imposed upon holders of life insurance policies, because of the increased burden upon the companies that would result. While the courts are careful, in every way, to protect the interest of beneficiaries under insurance policies, yet there is a limit which should not be exceeded. The reasonableness of the respective contentions should be the yardstick with which to measure the justice of the matter. The notice in question contained the following provision: “Notice to Policyholders as to Powers of Agents. — No Agent has power on behalf of the Company to make or modify any contract of insurance or waive any provision thereof, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information.” This provision, coupled with the previous statement in the application, with which the insured must be presumed to be familiar, leads us to the conclusion that there never was in this ease any valid contract of insurance that would bind the defendant company. The first payment was never made, nor was the local agent authorized to deliver the policy until such payment had been made, and there is no contention that the policy was ever actually delivered. While we recognize the force of the contention made on behalf of the plaintiff that forfeitures are not favored at law, yet where there has been no contract there can be no forfeiture of a contract, and we think this is a case of no contract. None of the conditions precedent especially stipulated as necessary before the contract became binding was ever, properly waived by any one having authority. Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879; New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 S. Ct. 837, 29 L. Ed. 934; Hoffman v. John Hancock Mutual Life Ins. Co., 92 U. S. 161, 23 L. Ed. 539; Philadelphia Life Ins. Co. v. Hayworth (C. C. A.) 296 F. 339; Ætna Life Ins. Co. v. Johnson (C. C. A.) 13 F.(2d) 824; Dodd v. Ætna Life Ins. Co. (C. C. A.) 35 F.(2d) 673; Bradley v. New York Life Ins. Co. (C. C. A.) 275 F. 657. This seems to be the rule supported by the great weight of authorities in- the federal courts, and the questions here involved, being questions of general jurisprudence, are to be determined by the federal rule. Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663; Pilot L. Ins. Co. v. Owen (C. C. A.) 31 F.(2d) 862. However, the North Carolina rule seems to be the same as the federal rule on this point. Thompson v. Equitable Life Assurance Society, 199 N. C. 59, 154 S. E. 21; Sturgill v. New York Life Ins. Co., 195 N. C. 34, 141 S. E. 230; Turlington v. Metropolitan Life Ins. Co., 193 N. C. 481, 137 S. E. 422; Perry v. Security Life & Annuity Co., 150 N. C. 143, 63 S. E. 679; Ormond v. Mutual Life Association, 96 N. C. 158, 1 S. E. 796; Whitley v. Peidmont & Arlington Life Ins. Co., 71 N. C. 480; Clifton v. Mutual Life Ins. Co., 168 N. C. 499, 84 S. E. 817. We have examined the authorities. cited on behalf of plaintiff, but find them distinguishable, in that they deal with questions of waiver after the contract had admittedly become effective. The contention that the notice given of the payment due for the second quarter was a waiver of all conditions that existed, with reference to the first payment, is, we think, without merit. A notice of the second quarter’s payment was issued from the home office of the company, and was a mere matter of routine carried out in compliance with the North Carolina law requiring notices to be sent out at a certain stated time before the due date. Certainly the purely mechanical act of sending out a notice by one department of a large insurance company having that duty to perform with respect to thousands of policies could not be considered to constitute a waiver of the two conditions that were here necessary to be performed before any contract existed; that is, payment of the first premium and the delivery of the policy. Under some circumstances, such a notice might be held to prevent the forfeiture of a contract already in effect, but certainly cannot be held to give life to a contract that never existed. There is no evidence whatever that the officials of the company had any notice that the local agent was collecting weekly installments from the insured, or that the agent remitted same or any part thereof to the company. Had there been any such evidence, and had the company had notice of the situation as it actually was, an entirely different .case would be presented for our consideration. For the reasons above given, the judgment of the court below is accordingly affirmed.

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

Calvin C. THORNBURY, Plaintiff-Appellee, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellant. No. 16526. United States Court of Appeals Sixth Circuit. April 22, 1966. Robert C. McDiarmid, Dept, of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Robert J. Vollen, Attys., Dept, of Justice, Washington, D. C., on brief, for appellant. Ronald W. May, Pikeville, Ky., Combs & May, Dan Jack Combs, Pikeville, Ky., on brief, for appellee. Before WEICK, Chief Judge, O’SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge. PER CURIAM. The Secretary has appealed from an order of the District Court reversing his decision which denied to plaintiff a period of disability and disability insurance benefits under the Social Security Act, and remanding the case for the allowance of such benefits. An examination of the record reveals that plaintiff, a 37-year old married man, in his application for disability insurance benefits stated his impairment as a leg injury — stiff left knee, broken wrist that will not heal, arthritis, pin in leg, and heart condition. He stated he had an eighth grade education. Plaintiff fell from a third story window, in May, 1962, and sustained a Colies fracture of the right wrist and fractures of the jaw and right femur. The bones were set and the fractures are now well healed. The pin has been removed from the leg. There is stiffness, however, in his right leg and his right wrist is weak. There was no evidence of any heart impairment. There is an absence of evidence that plaintiff’s injuries have prevented him from engaging in any substantial gainful occupation. No physician stated that plaintiff was so disabled, and the Secretary made no finding to that effect. There was no substantial evidence of neurological abnormalities. Under the circumstances we are of the opinion that it was error to remand for the allowance of benefits. In our opinion, this cause must be remanded to the Secretary to permit the taking of additional evidence by either party on the subject of disability, and the nature and extent thereof, whether it is such as to prevent plaintiff from pursuing his regular occupation, and if so, what other types of work he can perform and the availability of such work. The Secretary should make findings of fact on each of said subjects. Erickson v. Ribicoff, 305 F.2d 638 (6th Cir. 1962). The judgment of the District Court is reversed and the cause is remanded to the Secretary for further proceedings in accordance with this opinion. . The claimed injury to the left knee was doubtless a mistake since plaintiff’s right leg, and not his left, was injured.

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

D. K. PORTER, Trustee in Bankruptcy, Appellant, v. STREVELL-PATERSON FINANCE CORPORATION, Appellee. In the Matter of Byron Lee WALDRAM, Norma Williams Waldram, Willie Adrew Inman, Leah Rolls Inman, Delphin Magnus Post and Anna Mae Post, d/b/a Qualifreeze Co., Voluntary Bankrupts. No. 6636. United States Court of Appeals Tenth Circuit. July 13, 1961. Veri C. Ritchie, Salt Lake City, Utah, for appellant. Dean E. Conder, Salt Lake City, Utah (Nielsen, Conder & Hansen, Salt Lake City, Utah, on the brief), for appellee. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. Byron Lee Waldram, Norma Williams Waldram, Willie Adrew Inman, Leah Rolls Inman, Delphin Magnus Post and Anna Mae Post, doing business as Qualifreeze Company, filed a voluntary petition in bankruptcy on December 4, 1953, and on December 14, 1953, were duly adjudged bankrupts. Porter is the trustee of the estate of such bankrupts. This is an appeal from an order of the District Court reversing an order of the referee in bankruptcy which required Strevell-Paterson Finance Corporation to pay the trustee $2,532.04, the amount which the Finance Corporation had charged to a reserve account held by it to protect it against losses occurring in the liquidation of certain conditional sale and installment payment contracts purchased by it from Qualifreeze Company. Qualifreeze Company was engaged in the sale of freezers under conditional sales contracts which retained title in it and provided for the payment of the balance of the purchase price in installments. From time to time, prior to bankruptcy, Qualifreeze Company transferred and assigned certain of such contracts to the Finance Corporation. Upon the acceptance of an assigned contract the Finance Corporation paid to Qualifreeze Company the balance due from the customer on such contract, less an amount which, under agreement of the parties, was credited to Qualifreeze Company and set up as a reserve account with the Finance Corporation. It was against credits to such reserve account that the amount in controversy here was charged. On January 9, 1951, the individual members of the Qualifreeze Company executed and delivered to the Finance Corporation a statement of financial condition and guaranty of the performance by Qualifreeze Company of the terms and conditions of the assignments. The material portions of such document read: “To: Strevell-Paterson Finance.... “For the purpose of inducing you: to purchase or accept notes, contracts, mortgages or leases to be executed, endorsed, or assigned by, undersigned: * * * we make the following statements, representations and agreements * * *. * * * * * “We agree that we will faithfully comply with all the terms and conditions of all agreements executed or to be executed by undersigned; that all agreements contained herein shall continue to bind us irrespective of the terms of any other agreements executed or to be executed by undersigned and that you shall at all times for all sums due you, have a lien upon any of our property or credits in your possession or otherwise, and the right to charge the sums due or to become due to you against the same. ****** “ * * * All of the undersigned waive notice of the acceptance of this guaranty and of notice of nonpayment, demand or protest of any note or draft signed, accepted or endorsed by said Dealer, and any other notices required by law, and you may renew or extend any notes or other obligations of purchasers and/or of the Dealer or accept partial payments thereon or settle, release, compound or compromise any of the same and/or collect upon or otherwise liquidate paper held by you in any manner you may deem advisable without impairing the obligations of any of the undersigned.” The pertinent provisions of the assignment contracts read: “For Value Received, the undersigned does hereby sell, assign, transfer and set over to StrevellPaterson Finance Corporation, a corporation, as Assignee, all of his, its or their right, title and interest in and to the property described in the within contract, together with all moneys due or to become due thereunder. “The undersigned jointly and severally guarantee, unconditionally, the performance of said contract according to its terms and conditions, including the payment of all moneys now or hereafter owing in connection therewith. The undersigned further agrees, upon default of the purchaser in the performance of any of the terms of said contract, to pay to the assignee, upon demand, all moneys remaining unpaid hereon, and it shall not be necessary for said assignee to pursue or exhaust any remedy against the purchaser as a condition precedent to the liability of the undersigned on this guaranty. ****** “For the purpose of inducing the purchase of this contract, the undersigned submits the customer’s statement which is substantially true to the best knowledge of the undersigned.” On December 4, 1953, the amount in ■such reserve account, as found by the referee, was $5,987. On that date the total amount due on contracts outstanding and for which Qualifreeze Company and the individual partners were contingently liable, was in excess of $50,000. Thereafter, the Finance Corporation liquidated such accounts and sustained a loss of $2,532.04, which it charged against the reserve account, leaving a balance in such account of $3,123.47. Prior to bankruptcy it was the practice of the Finance Corporation to notify Qualifreeze Company before charging a loss on a contract against such reserve account. The Finance Corporation did not notify the trustee, after bankruptcy, of its intention to charge losses against such reserve account before making such charges. Upon his appointment, the trustee requested the Finance Corporation to advise him with respect to the contracts held and the amount of the reserve account. The Finance Corporation advised the trustee that it had contracts aggregating between $50,000 and $60,000 and had approximately $5,000 in the reserve account. From time to time, the trustee checked with the Finance Corporation by telephone with respect to the status of the reserve account. From time to time the Finance Corporation released and paid over to the trustee a portion of the reserve account. Pursuant to an order of the Bankruptcy Court, the Finance Corporation, on May 16,1958, submitted and filed with the Bankruptcy Court an accounting, showing the credits, charges and disbursements with respect to such reserve account, and a credit balance of $3,123.47, which had been paid to the trustee. The trustee filed a petition with the referee, seeking an order requiring the Finance Corporation to pay to the trustee the amount of $2,532.04, charged to the reserve account after bankruptcy ensued. The referee held that such amount was wrongfully charged to the reserve account, because the charges were made without first giving notice to the trustee. The financial statement and agreements which were made as an inducement to the purchase by the Finance Corporation of the conditional sales contracts gave the Finance Corporation an unqualified right to charge sums due it against the reserve account, and that without notice to or demand upon Qualifreeze Company or the individual partners. Such financial statement agreement further authorized the Finance Corporation to “liquidate paper held by” it “in any manner” it might “deem advisable.” We are of the opinion that neither notice nor demand on the trustee was necessary to the right of the Finance Corporation to make the charges against the reserve account. Moreover, the trustee could not have complied with the demand for payment, had it been made, and demand upon the trustee would have served no useful purpose. The order is affirmed. . Hereinafter called the Finance Corporation. . The discrepancy between the total of $5,655.51 accounted for and the $5,987 found by the referee is not clarified by the record.

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

HOWARD et al. v. AMERICAN SECURITY & TRUST CO. et al. No. 9639. United States Court of Appeals District of Columbia Circuit. Argued Oct. 19, 1948. Decided Nov. 22, 1948. Mr. Jerome F. Barnard, of Washington, D. C., with whom Mr. Ernest F. Henry, of Washington, D. C., was on the brief, for appellants. Mr. William S. Tarver, of Washington, D. C., with whom Mr. John L, Laskey, of Washington, D. C., was on the brief, for appellees Timberlake, et al. Messrs. Geoffrey Creyke, Jr., and Andrew A. Lipscomb, both of Washington, D. C., entered appearances for appellee Arthur Thompson. Messrs. Arthur G. Nichols, Jr., and Stanton C. Peelle, Jr., both of Washington, D. C., entered appearances for appellee American Security & Trust Co. Mr. Harold P. Ganss, of Washington, D. C. , entered an appearance for appellees Maude B. Ford, et al. Mr. Charles D. Drayton, of Washington, D. C., entered an appearance for appellee Children’s Hospital. Mr. Charles F. R. Ogilby, of Washington, D. C., entered an appearance for appellee Washington Home for Incurables. Mr. George C. Gertman, of Washington, D. C., entered an appearance for appellee Isabelle Walker. Before EDGERTON, PRETTYMAN, and PROCTOR, Circuit Judges. PRETTYMAN, Circuit Judge. This is an appeal from a judgment of the District Court in a civil action brought by the trustee under the will of Dorsey Clagett, deceased, for construction of that will and for instructions as to the proper distributees of the estate. The trial court rendered judgment upon the pleadings. It made extended findings of fact and conclusions of law and referred the matter to the Auditor of the Court to determine the amounts distributable to the persons entitled to participate under the decision. Many of the able and. scholarly arguments presented by counsel relate to the rules of construction applicable to wills. But in this case we perceive in the will itself the intent of the testator, and that intent must be given effect. Technical rules of construction come into play only when the testator’s intent cannot be satisfactorily discerned. By his will this testator left all his property, with minor immaterial exceptions, in trust for his wife for her life. He then directed: “ * * * At the death of my wife, after paying all her funeral expenses and proper charges I direct my trustee, to pay the following beneficiaries the sums named or such pro-rata share as they may be entitled to. “To Elbert Clagett, Five Thousand dollars ($5,000.) ****** “To Ella L. Clagett or her child or chil-dren, born of her by William B. Clagett, Five Thousand dollars ($5,000.) ****** “To Smith) Thompson, Jr., his heir or heirs Three Thousand Dollars ($3,000.) ****** “All the remainder of my estate together with such legacies as may have lapsed at the time of this distribution to be divided among the children then alive of my deceased brother William H. Clagett share and share alike.” There were other pecuniary bequests, but, with immaterial exceptions, they are like one or another of the quoted three. It is at once apparent that the testator had in mind some difference between these three bequests. He was a literate man; in fact, the Register of Wills in this jurisdiction for nine years. He said, in the quoted language, that he desired Elbert Clagett hirnself to have $5,000; Ella L. Clagett or her children by William B. Clagett to have $5,000; and Smith Thompson, Jr., his heir or heirs to have $3,000. The language is clear enough. The difficulty arises when an attempt is made to apply the rule that the law favors the earliest possible vesting of an estate, which would lead to the conclusion that these bequests vested at the death of the testator. Having thus vested, the peregrinations of the several interests during the forty-two years of the existence of the life estate (the wife having outlived her husband that long) would present an involved problem. But we think that the testator obviated that difficulty. By two expressions, he clearly indicated the date at which circumstances should differentiate between the three classes of beneficiaries. He directed that “At the death of my wife” the trustee should “pay the following beneficiaries”. And in the clause following the bequests, he referred to legacies which “may have lapsed at the time of this distribution”, i. e., at the time of the death of his wife. Thus, he thought of his legacies as possibly lapsing at any time prior to his wife’s death. If he had thought of them as vesting at his own death, so that the heirs of his named beneficiaries would thereupon take, he would hardly have referred to the possibility of their having lapsed at a date subsequent to his death. By the two expressions quoted, this testator clearly showed that as he wrote the different descriptions of his beneficiaries he was thinking of the time of his wife’s death. If his language is followed literally, the difference between the several bequests becomes effective; if it is not followed literally, that difference becomes blurred and maybe lost by reason of deaths, births and assignments occurring between the death of the testator and that of the life tenant. For example, if the bequest to Elbert Clagett vested at the testator’s death, Elbert Clagett then living, his heirs would take upon the death of the testator’s wife, just as would the heirs of Smith Thompson, Jr., and the heirs of Ella Clagett’s children. When all the will is read, the testator’s intent seems clear to us. It was that the participating beneficiaries be those persons to whom the descriptions in the will applied as of the date of the death of the life tenant. We are fully conscious of the authorities which establish that language such as “at the death of my wife” should be deemed to refer to the time of enjoyment of the bequest and not to the vesting of its title. But this again is a rule of construction for use where the testator’s intent is not revealed. Our view of the matter coincides with the conclusions of law reached by the learned trial judge. Another question concerns the meaning of the clause in the will, above-quoted, which relates to “All the remainder”, etc. The estate is not large enough to pay all the pecuniary bequests in full, or so many of them as have not lapsed. The question is whether the amounts of the lapsed legacies should go to make up the shortage in the funds available for the specific pecuniary bequests, or should go intact (or in proportion to the available funds) to the residuary legatees. Technically, the question is whether the phrase “together with such legacies as may have lapsed at the time of this distribution” is an integral part of the residuary clause or is an alternative designation of beneficiaries of the pecuniary bequests. Again we think that the intent of the testator is apparent and was to convey to' these residuaries a true residuum only, that is, any excess remaining after payment of all pecuniary bequests. If he had meant to designate a substitute recipient for the precise amount of a pecuniary bequest, he would hardly have done' so by a mere parenthetical reference in the process of disposing of the residue of his estate. The testator seems to have contemplated, as he provided, that if his named pecuniary beneficiaries were not in being at the time of the distribution, their bequests would lapse, not merely be transferred intact to another person. The inclusion of the quoted provision in the residuary clause seems to us to have been a precautionary measure lest intestacy be suggested as to those funds. This was the view of the trial court. It follows that the judgment of the District Court must be and it is hereby. Affirmed. Pyne v. Pyne, 1946, 81 U.S.App.D.C 11, 14, 154 F.2d 297, 300.

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

Selene WEISE, Appellant, v. SYRACUSE UNIVERSITY et al., Appellees. Jo Davis MORTENSON, Appellant, v. SYRACUSE UNIVERSITY et al., Appellees. Nos. 372, 383, Dockets 74-1977, 74-2092. United States Court of Appeals, Second Circuit. Argued Jan. 6, 1975. Decided July 14, 1975. James I. Meyerson, New York City, for appellants Weise and Mortenson. David N. Sexton, Syracuse, N. Y. (Bond, Schoeneck & King, William F. Fitzpatrick, Syracuse, N. Y., of counsel), for appellees Syracuse University, and others. Elsa Dik Glass, Atty., EEOC (William A. Carey, Gen. Counsel, Joseph T. Ed-dins, Assoc. Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Attys., EEOC, Washington, D. C.), for Equal Employment Opportunity Commission as amicus curiae. Before SMITH, OAKES and TIMBERS, Circuit Judges. SMITH, Circuit Judge: These are appeals from orders of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, dismissing for lack of jurisdiction and failure to state a claim on which relief could be granted two actions alleging sex discrimination by Syracuse University in the employment of faculty members. Plaintiff Selene Weise claims that she was denied a position and plaintiff Jo Davis Mortenson that she was terminated' from her position on account of sex. Both plaintiffs sued the University, its Chancellor and Vice-Chancellor, and various faculty members and committees, seeking relief for a deprivation of constitutional rights, 42 U.S.C. § 1983; for a conspiracy to deprive them of the equal protection of the laws, 42 U.S.C. § 1985(3); and for redress of violations of Title VII of the 1964 Civil Rights Act, as amended, prohibiting sex discrimination in employment, 42 U.S.C. § 2000e et seq They sought declaratory and injunctive relief, punitive and actual damages, and costs and attorneys’ fees; Weise also demanded appointment to a position, while Mortenson claimed reinstatement. Judge Foley held that the complaints alleged insufficient indications of state action on the part of the University to support the? claims under § 1983 and § 1985; that the actions sought relief for alleged discrimination which occurred while private universities were exempt from Title VII, and that the lifting of the exemption was not retroactive; and that in any event the plaintiffs’ failure to file timely charges with the Equal Employment Opportunity Commission (EEOC) precluded their Title VII actions. Accordingly he dismissed the complaints. We reverse and remand for further proceedings. I. PLAINTIFFS’ ALLEGATIONS A. Weise. In 1969 Weise applied for a position as lecturer in the Department of Public Address at Syracuse University. She was turned down in favor of an allegedly less-qualified male. Thereafter, in January of 1970, she requested consideration for a teaching assistantship for the academic year 1970-71. Although Weise was hired for this position in March, 1970, she filed charges pursuant to the Human Rights Law of New York, Executive Law, McKinney’s Consol.Laws, c. 18, § 290 et seq. (McKinney 1972), alleging sex discrimination in the denial of her application for the lecturer’s position. On December 14, 1970, seven days after the hearing on that charge commenced, she was notified that her appointment as teaching assistant would be terminated at the end of the academic year. Sensing that this was no mere coincidence, Weise filed an additional charge, this time alleging retaliation. These complaints were dismissed by the State Division of Human Rights on April 21, 1972, and Weise’s appeals were dismissed by the Division’s Appeal Board on June 1, 1973. She also filed charges with the EEOC on May 8, 1972. Undaunted by her previous rebuffs, on January 28, 1973, Weise wrote to defendant Irwin — who had participated in the 1969 decision not to hire her as a lecturer — requesting consideration for any teaching position. When she received no response, she went to see Dr. Irwin, who acknowledged receipt of her letter but declined to discuss the matter. She then spoke to defendant Ried, who told her that he and Dr. Irwin had agreed not to grant any teaching assistantships to doctoral candidates — such as Weise — but rather to give priority to first year masters candidates. Weise alleges that on information and belief she was the only person affected by this decision; she further claims that at the time she was denied consideration for a teaching assistantship because she was a doctoral candidate, a male had his teaching assistantship renewed despite the fact that he was also a doctoral candidate. On June 25, 1973, she filed a new charge with the EEOC- — consolidating it with her prior charge — regarding this denial of a teaching assistantship. On June 28, 1973, the EEOC issued a Notice of Right to Sue, 42 U.S.C. § 2000e-5(f)(l), and on September 18, 1973, she commenced this action by filing her complaint in the district court. B. Mortenson. Plaintiff Mortenson, who has a Ph.D. in English, was employed as an Assistant Professor in Syracuse’s Department of English from 1966 through 1968, teaching lower and upper level undergraduate courses. According to the complaint, when defendant Bryant became chairman of the department in 1968 he gave her less desirable assignments in terms of courses and scheduling while assigning less qualified males to teach more desirable classes. In the fall of 1969, the tenured staff of the English Department met to consider the prospects for tenure of plaintiff Mortenson and three male faculty members, including Peter Mortenson, who was soon to become plaintiff’s husband. Peter Mortenson and Donald Morton were advised that they would be recommended for tenure the following year; plaintiff Mortenson and Joseph Roesch were told that they would be terminated in June, 1971. In the fall of 1970, however, Roesch was extended until June, 1972, and plaintiff Mortenson was told by a tenured professor that Roesch’s extension was granted because he was married and it was a difficult year to find work. In the fall of 1970, however, Bryant reaffirmed the decision to terminate plaintiff Mortenson — who by then had married Peter Mortenson— because tenure could not be granted to both a husband and wife. Plaintiff’s appointment was terminated as scheduled, despite the fact that she held a Ph.D. and had some of her work published, whereas neither Roesch nor Morton, both of whom were retained, possessed either qualification. Mortenson actively pursued a variety of administrative remedies. On December 10, 1970, she filed charges with the New York State Division of Human Rights. After a hearing, the Division held, in November, 1972, that plaintiff had not been discriminated against in violation of New York’s Human Rights Law. This determination was upheld by the Division’s Appeal Board on September 30, 1973. Mortenson was somewhat more successful with the University’s internal grievance procedures. In April, 1971, she filed charges with the Academic Freedom, Tenure and Professional Ethics Committee of the University Senate. Hearings were held before a ten-member panel in the spring of 1972, and in January, 1973, the panel issued its report, concluding that Mortenson’s discharge had violated applicable procedure and was without adequate consideration of her qualifications. The panel divided equally on the issue of sex discrimination, however, and thus that charge was not upheld. Armed with this favorable decision, Mortenson requested reconsideration of her termination. Her request was turned down by defendant Sutton (who had succeeded Dr. Bryant as chairman of the English Department) and the defendants Executive and Tenure Committees and their members, defendants Hoffman, Theiner and Burne. Mortenson maintains that this failure to reconsider her termination was invidiously motivated. On September 24, 1973, Mortenson filed a complaint with the EEOC in Buffalo, alleging that her termination and the subsequent actions occurring “up to and including today” were in violation of Title VII. On September 27, 1973, the District Director dismissed the charge as untimely filed since the discriminatory acts complained of had occurred more than 300 days before the filing of the charges, 42 U.S.C. § 2000e-5(e), and issued a Notice of Right to Sue. On September 30, Mortenson advised the District Director that he had misinterpreted her charge, and she added two revised pages which made it clear that she was including the refusal to reconsider her termination as part of the course of discriminatory conduct. The District Director acknowledged receipt of her letter on December 3. On December 7, Mortenson filed her complaint in the district court, alleging the issuance of the September 27, Notice of Right to Sue in satisfaction of the jurisdictional requirement of 42 U.S.C. § 2000e-5(f)(l). When it became clear to Mortenson’s counsel that the defendants were claiming lack of jurisdiction for failure to file timely charges with the EEOC — the stated reason for the Commission’s dismissal of the original charge — he sought a new Notice based on the amended charges. This Notice was issued on March 26, 1974, under a new case number. II. STATE ACTION Whether the actions of a private university constitute state action, a prerequisite for maintenance of a suit under 42 U.S.C. § 1983, is a question that has been the frequent subject of this court’s attention, with varying results. Disciplinary measures taken against students of the New York State College of Ceramics at Alfred University were held to qualify as state action because the College, while situated on an otherwise private campus, was in reality a state institution, publicly controlled and financed, although managed by private administrators. Powe v. Miles, 407 F.2d 73, 82-83 (2d Cir. 1968). On the other hand, a contrary conclusion was reached regarding the same disciplinary action taken against students at Alfred’s Liberal Arts College since that school was not engaged in the performance of a public function and since those areas of its operations into which the State had injected its presence were neither so substantial nor so directly related to the particular activities at issue to warrant a holding of state action. Id. at 79-82. But when Wagner College, a private institution affiliated with a religious denomination and supported almost entirely by private funds, sought to discipline students pursuant to rules adopted in accordance with a New York State statute concerned with preventing campus disorders, we held that plaintiffs were entitled to a hearing to determine whether the disciplinary policy was in fact a state policy and the disciplinary action state action. Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970). Coleman in turn was distinguished, and Powe (as it applied to the Liberal Arts College) relied on, in Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973), rejecting for lack of state action a § 1983 claim that Brooklyn Law School and certain of its officials had retaliated against plaintiffs for their controversial views as expressed in a student newspaper by deliberately giving them failing grades and ultimately dropping them from the school. The giving of examinations, though required by rules of the New York Court of Appeals, was held different from the enactment of disciplinary regulations pursuant to state statute for several reasons, the most important of which was that “Brooklyn Law School’s giving of examinations has none of the symbolic character of the disciplinary Rules and Regulations of Wagner College which loudly announced that they had been adopted in accordance with the newly enacted statute.” 478 F.2d 1137 at 1143. Finally, in Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974), we rejected a claim of governmental action in a suit alleging deprivation of First Amendment and procedural due process rights by a participant in a federally-assisted research project. Dr. Wahba’s salary was not paid with federal funds and, although the government required non-discrimination in employment, it disclaimed any intent to participate in other aspects of the project’s administration. Moreover, we felt that there were “social values too obvious to require elaboration” in preserving the private nature of arrangements “whereby federal funds are used to prime the pump of research effort in private scientific institutions.” 492 F.2d 96 at 102. Although plaintiffs’ claim of state action must be judged in light of these decisions, the applicability of precedent in state action cases should be tempered by the caveat that decisions dealing with one form of state involvement and a particular provision of the Bill of Rights [are not] at all determinative in passing upon claims concerning different forms of government involvement and other constitutional guarantees. Wahba v. New York University, supra, 492 F.2d 96 at 100. As to the nature of the state’s involvement, plaintiffs make several allegations. The University, they say, receives substantial amounts of state and federal money, both in grant form and in payment for services provided under contract. The extent of public aid is claimed to be such that the University is a quasi-public institution, unable to maintain its present level of efficiency and services without it. Moreover, attached to the federal funds are several strings, including the requirement for an affirmative action hiring program designed to increase minority and female faculty representation. Finally, the state’s regulation and supervision of the University is claimed to be extensive. At the outset, the federal government’s involvement can be discounted for jurisdictional purposes, since § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), have no applicability to federal action. Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972). Whether a cause of action against federal officers might be fashioned directly under federal question jurisdiction, 28 U.S.C. § 1331, and the Fifth Amendment, cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 999, 29 L.Ed.2d 619 (1971) (cause of action exists to recover damages from federal officers for Fourth Amendment violation); Wahba v. New York University, supra, 492 F.2d 96 at 103-04 (question of whether Fifth Amendment Bivens action would lie left open because in any event insufficient governmental action was shown), is a question not before us since no such jurisdictional basis was alleged. If our concern in this case were with discipline and the First Amendment, the alleged indicia of state action — funding and regulation- — would most likely be insufficient. It has been held in such cases that the presence of state support, without more, does not make the state a partner or joint venturer in the activity. Wahba, supra, 492 F.2d 96 at 100. Nor will state regulation unrelated to the challenged activity suffice, since “the essential point [is] 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.” Powe v. Miles, supra, 407 F.2d 73 at 81. The allegations of support here are comparable to claims raised and rejected in Wahba, supra; Grafton v. Brooklyn Law School, supra, 478 F.2d 1137 at 1141-42; and Powe v. Miles, supra, and there is no contention that the state’s regulatory powers were intertwined with Syracuse’s employment practices to the degree that the statute was linked to the disciplinary rules in Coleman v. Wagner College, supra, 429 F.2d 1120. But this is only half of the inquiry; we must, as noted above, look to the nature of the right infringed as well as the extent of the state’s involvement. Plaintiffs contend that the right here abridged — to be free from discrimination on account of sex — should trigger a less exacting standard of state action. In both Grafton v. Brooklyn Law School, supra, 478 F.2d 1137 at 1142, and Powe v. Miles, supra, 407 F.2d 73 at 81, we explicitly noted that our findings of no state action might be different if the cases involved discriminatory admissions policies. Moreover, we have recognized the existence of a “double standard” in state action — “one, a less onerous test for cases involving racial discrimination, and a more rigorous standard for other claims,” Jackson v. The Statler Foundation, 496 F.2d 623, 629 (2d Cir. 1974); plaintiffs urge that we categorize sex discrimination along with race discrimination on the “less onerous” side of the line. The rationale for applying a different state action standard where discriminatory admissions policies are concerned rests on “the peculiar offensiveness of the state’s taxing all citizens for objectives from the benefits of which a particular category is arbitrarily excluded or disadvantaged.” Powe v. Miles, supra, 407 F.2d 73 at 82; Grafton v. Brooklyn Law School, supra, 478 F.2d 1137 at 1142 n. 12. While students may be thought to be the primary beneficiaries of public support for private education, we cannot ignore the fact that substantial benefits extend as well to the faculties of such institutions. There is, of course, the benefit of employment itself, but perhaps more significant than this, especially in the case of a major university such as Syracuse, is the provision of facilities for the furtherance of scholarship and research, the indispensable tools of the scholar’s trade. The invidious withholding of these benefits from a particular class of the citizenry shares a similar degree of offensiveness with the arbitrary exclusion of a particular category of students. Moreover, the extent to which plaintiffs’ interest in sharing in these benefits has been affected is extreme: they have been permanently excluded, not merely temporarily suspended, as in Powe v. Miles, supra. It is true that in Grafton v. Brooklyn Law School, supra, plaintiffs were dropped from the school, not merely suspended, and that in Wahba v. New York University, supra, plaintiff had been completely terminated from his position as research associate professor. In Grafton, however, the interest affected, while couched in First Amendment terms, came down to an interest in receiving passing grades. The vindication of that interest would have required this court to re-grade plaintiffs’ examinations — a time-consuming and most unseemly task for a court, perhaps the most objectionable intrusion into a school’s affairs imaginable. Similarly Dr. Wahba alleged a First Amendment violation, but his complaint was in reality directed against the practice of requiring advance approval of the principal investigator before publication of papers emanating from group research. Vindication of the claimed First Amendment interest there would again have involved judicial meddling, in an area where courts should fear to tread: the ground rules governing the conduct of scientific research. Thus, while both Grafton and Wahba involved terminations rather than suspensions, vindication of the interests allegedly infringed was in both cases a peculiarly unsuitable undertaking for a court. The question involved here, however — whether or not invidious discrimination has occurred — is well within an area of recognized judicial competence, so that the vindication of plaintiffs’ interests would be unlikely to lead a court to meddle in places where it has little business meddling. As our discussion has hopefully demonstrated, a consideration of whether there is state action necessarily entails a balancing process. See Note, State Action: Theories for Applying Constitutional Restrictions to Private Activity, 74 Colum.L.Rev. 656, 661-62 (1974). As the conduct complained of becomes more offensive, and as the nature of the dispute becomes more amenable to resolution by a court, the more appropriate it is to subject the issue to judicial scrutiny. This explains the willingness to find state action in racial discrimination cases although the same state-private relationship might not trigger such a finding in a case involving a different dispute over a different interest. Class-based discrimination is perhaps the practice most fundamentally opposed to the stuff of which our national heritage is composed, and by far the most evil form of discrimination has been that based on race. It should hardly be surprising, then, that in race discrimination cases courts have been particularly vigilant in requiring the states to avoid support of otherwise private discrimination, and that where the conduct has been less offensive a greater degree of tolerance has been shown. Plaintiffs contend that we should put sex discrimination in the same category of offensiveness as race discrimination. We are not, however, engaged in an all- or-nothing, pigeon-hole form of jurisprudence, and it is not necessary to put sex discrimination into the same hole as race 'discrimination to hold that in this case a less stringent state action standard should be employed than in the discipline cases. It is enough to note that the conduct here alleged — invidious class-based discrimination on account of sex — would appear, under the rationale articulated in Powe and Grafton, to be more offensive than the disciplinary steps taken in the prior cases, and that judicial resolution of this dispute will not entail interference with matters unsuited for review by a court. The fact that the discipline eases are not controlling here does not answer the question whether, under a less stringent standard, the district court was correct in holding that the complaints failed sufficiently to allege state action. In Jackson v. The Statler Foundation, 496 F.2d 623, 629 (2d Cir. 1974), we set forth five factors to be weighed in considering state action claims: (1) the degree to which the “private” organization is dependent on governmental aid; (2) the extent and intrusiveness of the governmental regulatory scheme; (3) whether that scheme connotes government approval of the activity or whether the assistance is merely provided to all without such connotation; (4) the extent to which the organization serves a public function or acts as a surrogate for the State; (5) whether the organization has legitimate claims to recognition as a “private” organization in associational or other constitutional terms. In this case, a substantial degree of financial dependence has been alleged. The defendants, on the other hand, submitted an affidavit of the University’s Vice-Chancellor to the effect that in fiscal 1973 state funds constituted only 3.6% of the school’s budget. If this were all, there would be little question of the result. In their briefs on appeal, however, plaintiffs assert the right to contest this figure at a hearing by demonstrating other sources of state support. In the present posture of the case, we are unable to resolve this factual dispute between the parties. The second factor is also difficult to apply for lack of a record and findings by the district court; precisely how much control the state exercises in the hiring area is a factual question that could best be resolved after a hearing. The third factor of Jackson —state approval as opposed to state passiveness — appears more clearly to be in defendants’ favor, although the contrary might be true if Mortenson could establish that the state had a role in the adoption of the anti-nepotism rule. See note 8, supra. The fourth factor has been fairly well settled in opposition to plaintiff’s claims. See note 6, supra. As for the fifth and final factor, we do of course recognize that a private university can make valid claims to retaining its private status, but there comes a point where those claims are outweighed by the harm wrought on the public interest by “private” misdeeds — that is, by the offensiveness of the conduct. As we noted in Wahba, supra, 492 F.2d 96 at 101, reconciliation of Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), with Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), must rest on the difference between a private club and a restaurant in a public building. However offensive the exclusion of blacks from a social club holding one of a restricted number of state liquor licenses, the Court thought it significantly less than their exclusion from a restaurant in a building owned and operated by a public authority and whose construction and maintenance were paid by public funds. We are unable to say on this record that the University’s claims to private status by themselves outweigh the peculiar offensiveness of the alleged misconduct. Reviewing the Jackson standards, it appears that the record is insufficient, particularly on the first two factors, for us to determine whether Syracuse University was engaged in state action when it allegedly discriminated against Weise and Mortenson. Accordingly, we reverse the district court’s dismissal, for failure to allege state action, of plaintiffs’ claims under 42 U.S.C. § 1983, and we remand for a hearing on that issue. Braden v. University of Pittsburgh, 477 F.2d 1 (3d Cir. 1973). The district court also dismissed plaintiffs’ conspiracy claims under 42 U.S.C. § 1985(3) for lack of state action as well as for insufficient factual allegations of conspiracy. We have held that it was error to decide the state action issue under § 1983 without a hearing, but that is irrelevant to the § 1985(3) claims since it is clearly established that § 1985(3) embraces a limited category of private conspiracies, and that there is no state action requirement. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). The district court’s dismissals of the § 1985(3) claims for lack of state action were therefore erroneous. Of course, it would not be necessary to remand the conspiracy claims if the district court’s alternative holding— insufficient factual allegations of conspiracy — is correct. However, a review of the complaints indicates that, although the allegations of conspiracy are sketchy, they are sufficient to withstand a motion to dismiss for failure to state a claim. Mortenson alleged that discriminatory actions were taken against her by j the defendants collectively and in concert with invidious intent. While the! pleading is somewhat general, and would benefit from particularization by way of amendment on remand, it does sufficiently allege an invidiously motivated agreement. Weise’s complaint contains similar general allegations; as to defendants Irwin and Ried, however, a specific agreement is also alleged: the decision to limit teaching assistantships to masters candidates, which it is claimed was reached with the intent of depriving Weise of a position. Since the two grounds relied on by the district court for dismissal of the § 1985(3) claims were erroneous,' we reverse and remand for further consideration of those claims. III. TITLE VII A. Applicability. When Title VII was originally enacted, it exempted from its coverage an educationál institution with respect to the employment of individuals to perform work connected with the educational activities of such institution. Pub.L. 88-352 § 702 (1964). This exemption was deleted, effective March 24, 1972, by § 3 of the Equal Employment Opportunity Act of 1972, Pub.L. 92-261. The district court found with respect to Weise that “the latest arguable act... that is alleged to be discriminatory on the basis of sex is June 1971 which is the effective date of plaintiff’s termination as a graduate teaching assistant,” and with respect to Mortenson that “the time of the alleged act of discrimination at the latest is June, 1971, the effective date of termination between plaintiff and Syracuse University.” Since both complaints alleged discrimination occurring prior to the lifting of the exemption for educational institutions, the district court held Title VII inapplicable. We do not agree with the district court’s reading of the complaints. Weise alleged an independent act of discrimination in the refusal to consider her for a teaching assistantship in early 1973. As the Act explicitly states, 42 U.S.C. § 2000e-2(a)(l), and as the Supreme Court, Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam), and this court, Gillin v. Federal Paper Board Co., 479 F.2d 97, 102 (2d Cir. 1973), have held, discriminatory refusal to hire is as illegal as discriminatory firing. Since Weise alleged a discriminatory refusal to hire occurring after the date on which Syracuse lost its exemption, she stated a claim to which Title VII applied, and the district court’s conclusion that there was no allegation of discrimination occurring after June, 1971, was erroneous. Mortenson also alleged an independent act of discrimination occurring after March 24, 1972: the invidiously motivated refusal to reconsider her termination after the Faculty Senate’s Hearing Panel issued its report in January, 1973. While this was, strictly speaking, neither a refusal to hire nor a discharge, Title VII is not so narrowly limited, but applies equally to other discrimination with respect to compensation, terms, conditions or privileges of employment. 42 U.S.C. § 2000e-2(a)(l). We think that the Act’s sweep is sufficiently broad to include within the definition of discrimination with respect to terms, conditions or privileges of employment a discriminatory refusal, in violation of the employer’s own established internal procedures, to reconsider an employee’s termination. Therefore, the district court’s holding that Mortenson had alleged no act of discrimination occurring after Title VII became applicable to Syracuse was also erroneous. B. Retroactivity. Plaintiffs urge us to go one step further and hold that, regardless of whether the complaint alleged discriminatory acts occurring before March 24, 1972, that date is irrelevant, since Title VII should be applied retroactively. In Brown v. General Services Administration, 507 F.2d 1300 (2d Cir. 1974), cert. granted, 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975), we held that the lifting of the federal government’s exemption from Title VII (which also occurred on March 24, 1972) was to be applied retroactively to cases pending administratively as of the time the amendment removing the exemption became effective. That decision is not necessarily applicable here, however, since this case deals with employees of educational institutions, not of the federal government. The difference is significant because of the different situations of both groups of employees prior to the 1972 amendments. Title VII originally excluded the United States from the definition of “employer,” Pub.L. 88-352 § 701(b) (1964), but included a specific proviso declaring it to be the policy of the United States to insure equal employment for federal employees and directing the President to utilize his existing authority to effectuate this policy. Id. As we noted in Brown, supra, 507 F.2d 1300 at 1304, complaints of discrimination by federal employees were thereafter covered by Executive Orders and agency regulations. In general, the [employing] agency itself conducted an investigation and hearing on such complaints. Although the hearing examiner might come from an outside agency, especially the CSC [Civil Service Commission], the head of the employee’s agency made the final agency determination. Appeal lay only to the Board of Appeals and Review of the CSC. Id. (footnote omitted). The 1972 amendments to Title VII, Pub.L. 92-261 § 11 (1972), added to the Act § 717, 42 U.S.C. § 2000e-16, providing “a private right of action for federal employees who were not satisfied with the agency or CSC decisions.” Brown, supra, 507 F.2d 1300 at 1304. Federal employees were still to seek relief in the first instance from their own agencies, but whereas previously the only appeal was to the CSC, the amendment gave employees a right to go directly to court, or to appeal to the CSC and then go to court. 42 U.S.C. § 2000e-16(c). The question in Brown was whether this right of action was to be held available to a federal employee who was allegedly discriminated against prior to the effective date of the amendments but whose complaint was pending administratively at that time. We held that it was. Employees of educational institutions were in an entirely different situation prior to the 1972 amendments. As we noted in Part IIIA, supra, these employees were absolutely exempt from the Act’s coverage; there was no alternative federal administrative remedy by which they could pursue their claims of discrimination. Prior to the 1972 amendments, Syracuse University was free, as far as Title VII was concerned, to discriminate in its employment practices. To hold that its actions during that period of exemption can now be the basis for the imposition of liability would be quite different from Brown’s holding that a statute providing for judicial review of formerly unreviewable administrative proceedings is to be applied to such proceedings pending at the time of the statute’s enactment. To put it another way, Brown gave retroactive application to a statute providing a new forum for the enforcement of preexisting rights; here we are asked to give retroactive effect to a statute creating new rights where none had previously existed. The manifest injustice of such ex post facto imposition of civil liability is reflected in the general rule of construction that absent clear legislative intent statutes altering substantive rights are not to be applied retroactively. Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960). In Brown, we reviewed the legislative history of the 1972 amendments regarding federal employees and concluded that Congress intended simply to create a new means for enforcement of preexisting rights — a purpose entirely consistent with the retroactive construction there adopted. Here, however, the intent was clear to impose new substantive requirements on educational institutions. See H.R.Rep. No.92-238, 92d Cong., 2d Sess. (1972), quoted at 1972 U.S.Code Cong. & Admin. News, pp. 2137, 2154-55. We therefore hold that the 1972 amendments subjecting educational institutions to the requirements of Title VII are not to be applied retroactively. C. Compliance with Procedural Requirements. Title VII is rife with procedural requirements and time limitations that must be met before a claim of discrimination in employment can be brought to the attention of a federal court. If the alleged unlawful employment practice occurs within a state or locality having a law prohibiting such a practice, an aggrieved person cannot file a charge with the EEOC until 60 days have elapsed after the commencement of such state or local proceedings. 42 U.S.C. § 2000e-5(c). Resort to the EEOC thereafter is conditioned on the filing of charges not more than 300 days after the occurrence of the alleged unlawful practice or 30 days after the termination of state or local proceedings, whichever is earlier. 42 U.S.C. § 2000

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

SYRACUSE BROADCASTING CORPORATION, Plaintiff-Appellant, v. Samuel I. NEWHOUSE, The Herald Company, The Post-Standard Company and Central New York Broadcasting Corporation, Defendants-Appellees. No. 218, Docket 23851. United States Court of Appeals Second Circuit. Argued Feb. 9, 1956. Decided Aug. 31, 1956. Smith & Sovik, Syracuse, N. Y. (Laurence Sovik, Syracuse, N. Y., and Arthur C. Kyle, Sr., Monticello, N. Y., of counsel), for.plaintiff-appellant. Bond, Schoeneck & King, Syracuse, N. Y. (Tracy H. Ferguson of Bond, Schoe-neck & King, Syracuse, N. Y., and Charles Goldman of Goldman, Evans & Goldman, New York City, of counsel), for defendants-appellees. Before MEDINA, LUMBARD and WATERMAN, Circuit Judges. MEDINA, Circuit Judge. This is a suit for treble damages based on the Clayton Act, 15 U.S.C.A. § 15, for violation of 15 U.S.C.A. §§ 1 and 2 (Sherman Act) and §§ 13, 13a, 18 and 19. The district judge granted summary judgment for the defendants on one of plaintiff’s claims and dismissed the others for failure to state a claim upon which the plaintiff was entitled to relief; and plaintiff appeals. Plaintiff (WNDR) and one of the corporate defendants are radio broadcasting corporations. Both of the other corporate defendants publish newspapers, which together comprise the sole daily and Sunday newspapers in the City of Syracuse, New York. The defendant, Post-Standard Company is wholly owned by the defendant Herald Company, the majority interest in which, in turn, is owned by the individual defendant Samuel I. Newhouse, who also controls the defendant broadcasting company (WSYR and WSYR-TV). There are three other independently owned and operated radio broadcasting stations in Syracuse and one other television station. This action is predicated on the following alleged violations of the antitrust laws: (1) Restraining trade in, monopolizing, and attempting to monopolize the dissemination of news and advertising in the Syracuse area in violation of 15 U.S.C.A. §§ 1 and 2 (Sherman Act) by means of the following acts: (a) refusing to accept newspaper advertisements unless WSYR also received advertising; (b) refusing to accept national or “general” advertising in either newspaper separately, but requiring unit or combination advertising in both newspapers; (c) circulating false statements concerning WNDR; and (d) providing advantages in the newspapers to WSYR which were not provided to WNDR, such as favorable publicity, free advertising, preferred page positions for advertising and secret refunds and rebates. (2) Discriminating in price, by means of the above-stated acts, in violation of 15 U.S. C.A. § 13 (Clayton Act). (3) Merging and employing interlocking directorates in violation of 15 U.S.C.A. §§18 and 19 (Clayton Act). At the close of extensive pre-trial hearings and on the basis of a voluminous record, Judge Brennan granted summary judgment in favor of defendant on (1), the Sherman Act claims, and dismissed (2) and (3), the claims based on the Clayton Act, for failure to state a claim. Judge Brennan brushed aside a further charge, made in the briefs and affidavits, but not alleged in the complaint or subsequent statement of claims, nor in any way substantiated, to the effect that defendants’ newspapers charged plaintiff “a different rate for advertising than that charged other advertisers for the same class of advertising”; and we think he was justified in doing so. We do not, however, preclude plaintiff from applying for leave to amend the complaint in this respect, before the trial which we are about to order. Alleged Refusal of Defendants’ Newspapers to Accept Advertisements Unless WSYR Also Was Patronized. In an effort to bring itself within the doctrine of Lorain Journal Co. v. United States, 342 U.S. 143, 72 S. Ct. 181, 96 L.Ed. 162, plaintiff alleged that the defendants’ newspapers refused to accept newspaper advertisements unless advertisements were also placed with WSYR. This was a serious charge. It was flatly denied by defendants, and Judge Brennan very properly, in the exercise of administrative powers which are indispensable to the efficient handling of antitrust cases and others, insisted that plaintiff produce some substantiation. When this was not forthcoming, plaintiff was ordered to “set forth specific instances and details” concerning this charge. Plaintiff merely produced a statement that an advertising man had said he had been told that defendants’ newspapers would not accept advertising unless WSYR was also patronized. This evidence would not be admissible at a trial; and Judge Brennan correctly decided that as to this charge there was no genuine issue of fact. It is consequently out of the case. The Monopoly Charge Under Sherman Act, Section 2. What would seem to be the heart of plaintiff’s case is the assertion that as the defendants’ two newspapers were the only newspapers in Syracuse, and, therefore, had monopoly power, the imposition of the unit or combination advertising arrangement was illegal per se under the reasoning of Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 608-609, 73 S.Ct. 872, 97 L.Ed. 1277. But ordinarily morning and evening newspapers are not separate products which can be viewed as tied to one another. Times-Picayune Pub. Co. v. United States, supra, 345 U. S. at page 614, 73 S.Ct. at page 883. Accordingly, “neither the rationale nor the doctrines evolved by the ‘tying’ cases can dispose of the [case] ” and it “must thus be tested under the Sherman Act’s general prohibition on unreasonable restraints of trade.” Ibid., 345 U.S. at page 614, 73 SUt. at page 883. While plaintiff’s argument is obscure, the meat of it seems to be that but for the newspapers’ unit advertising contract, persons advertising their products in the Syracuse area would devote more of their advertising funds to plaintiff’s competing medium, that the combination rate is a monopoly rate because defendants own and control the only newspapers in Syracuse, and that a combination advertising rate by newspapers can conceivably be an attempt to monopolize the combined newspaper-radio advertising market in and around Syracuse. We need not now decide whether newspaper advertising and radio advertising are competing products in the same market, as plaintiff’s charge on the monopoly phase of the case falls of its own weight, even if it be assumed arguendo that they do compete in the same market. The record discloses undisputed evidence of the total radio-newspaper coverage, two newspapers and five radio stations in Syracuse, and defendants’ share of the total advertising revenue is too low to warrant any inference of monopolization by defendants or any attempt to monopolize. Plaintiff’s theory is that its radio station competes in the Syracuse area for the same advertising dollar as do defendants’ radio station and newspapers, along with the other three radio stations. Thus plaintiff has defined the “relevant market” in a fashion which destroys its claim of monopoly under Section 2. This is a legal question which we may determine on the basis of the record before us. Times-Picayune Pub. Co. v. United States, supra; United States v. E. I. Dupont de Nemours & Co., 351 U.S. 979, 76 S.Ct. 1043. Unreasonable Restraint of Trade Under Sherman Act, Section 1. But this reasoning does not dispose of plaintiff’s claim that defendants have conspired to violate the prohibition against unreasonable restraints of trade by the newspapers’ unit advertising arrangement and the alleged concert of action by defendants in circulating false rumors about plaintiff, refusing to publish any praiseworthy items about WNDR, and giving discriminatory advantages to WSYR, all for the alleged purpose of putting plaintiff out of business and removing it from the scene as a competitor. Nor does the Times-Picayune case foreclose this issue, as the court was careful to point out that “We do not determine that unit advertising arrangements are lawful in other circumstances or in other proceedings.” 345 U.S. at page 627, 73 S.Ct. at page 890. Moreover, the court’s decision that the Times-Picayune arrangement was lawful stressed the fact that “competitive business considerations * * * actuated the adoption of the unit rate”, that the Government did not prove an intent to restrain trade, and that the competitor newspaper was not shown to have been harmed by the arrangement. 345 U.S. at pages 614-627, 73 S.Ct. at page 888. The record before us here is far too confused and cumbersome to warrant an affirmance of the summary judgment granted on this phase of the case. It may well be that the state of the evidence on the trial at the conclusion of plaintiff’s case will warrant the direction of a verdict in defendants’ favor. There are some indications that no substance will be found in the charge relative to the rumors, and plaintiff may not be able to prove that, were it not for the existence of the unit arrangement, persons advertising their products in the Syracuse area would devote more of their advertising funds to plaintiff’s competing medium. The conclusion by Judge Brennan that any harm to plaintiff was “indirect, incidental and insufficient” may well be justified after the proofs are in, but on the briefs submitted to us and the 6000 pages of typewritten and undigested and unindexed depositions and pre-trial proceedings, we think the interests of justice require a trial of this .particular narrow issue, that is to say the charge of conspiracy to restrain trade to plaintiff’s damage by the use of the unit rate for advertising in the two newspapers, the circulation of false rumors about plaintiff, the refusal to publish in the newspapers items favorable to the plaintiff, and the giving of discriminatory advantages to WSYR. Nor do we reach the interesting question, as to which the cases appear to be in conflict, of whether the circulation of false rumors to put a competitor out of business taken in isolation constitutes a violation of the antitrust laws or no more than a trade libel. Caldwell-Clements, Inc. v. Cowan Pub. Corp., D.C.S.D.N.Y., 130 F.Supp. 236; contra, Swartz v. Forward Ass’n, D.C.D.Mass., 41 F.Supp. 294. See Grismore, Are Unfair Methods of Competition Actionable at the Suit of a Competitor, 33 Mich. Law Rev. 321. The Clayton Act Charges. Judge Brennan dismissed the charge under 15 U.S.C.A. § 13 as failing to state a cause of action. This was apparently on the ground that there was no allegation of a combination or conspiracy to violate § 13. We think this disposition erroneous: a conspiracy is not a necessary element of a violation of § 13. The correctness of the dismissal of this cause of action raises, however, important and apparently unresolved questions under the Clayton Act. Thus the Supreme Court reserved in the Times-Picayune case the question whether advertising space is a “commodity” within the meaning of Section 2 of the Act. See 345 U. S. at page 610, note 27, 73 S.Ct. at page 881, and cases cited. And there is also a question whether a price or service discriminatorily offered to a commonly-held corporation violates the Act. Cf. Timken Roller Bearing Co. v. United States, 841 U.S. 593, 598, 71 S.Ct. 971, 95 L.Ed. 1199; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 215, 71 S.Ct. 259, 95 L.Ed. 219; United States v. Yellow Cab Co., 332 U.S. 218, 227, 67 S.Ct. 1560, 91 L.Ed. 2010. We think it unnecessary and inappropriate to resolve these questions on the basis of the record now before us. Any evidence which would be relevant to show a violation of 15 U.S.C.A. § 13 would also be relevant to the Sherman Act charge which we are remanding for trial. It may well be that the trial will demonstrate that there is little or no evidentiary basis for this alleged § 13 violation. In any event the record after trial will give us a better basis for resolving these important issues than the confusing and wholly unorganized mass of affidavits and depositions now before us. Under these circumstances we think it appropriate to permit the plaintiff to go to trial on the count which he has asserted under 15 U.S.C.A. § 13. There is no substance to the charges under 15 U.S.C.A. §§ 18 and 19. These were properly dismissed. The order is modified and the case remanded for trial in accordance with this opinion; otherwise, affirmed.

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

ENVIRONMENTAL DEFENSE FUND, INC., Pratt Remmel, Jr., and Mrs. Gale Eddins, Appellants, v. Martin R. HOFFMAN, Secretary of the Army, General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of U. S. Army, and Cache River-Bayou DeView Improvement District, Appellees. Arkansas Game and Fish Commission, Intervenor-Plaintiff. John Getson, S. L. Simpson, Anderson Wells, F. D. Munger, Owen Burton, John Connor, Donald Cain and Raymond Carloch, Intervenor-Defendants. ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Martin R. HOFFMAN, Secretary of the Army, General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of U. S. Army, Cache River-Bayou DeView Improvement District, John Getson, S. L. Simpson, Anderson Wells, F. D. Munger, Owen Burton, John Connor, Donald Cain, and Raymond Carloch, Appellees. Nos. 76-1366, 76-1431. United States Court of Appeals, Eighth Circuit. Submitted Jan. 13, 1977. Decided Oct. 25, 1977. James T. B. Tripp, Environmental Defense Fund, New York City, for Environmental Defense Fund and Ark. Game and Fish Com’n; G. William Lavender, Texar-kana, Ark., on the brief. William G. Peterson, Sp. Asst. Atty. Gen., St. Paul, Minn., for State of Ark. Glen R. Goodsell, Land and Natural Resources, Appellate Section, Dept, of Justice, Washington, D. C., for appellees; G. D. Walker, Jonesboro, Ark., on brief for appel-lees, Cache River-Bayou DeView Improvement Dist., John Getson and other intervening landowners; Peter R. Taft, Asst. Atty. Gen., Washington, D. C., W. H. Dillahunty, U. S. Atty., and Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark.; Jacques B. Ge-lin, Atty., Dept, of Justice, Washington, D. C., Richard M. Adelman, Dist. Counsel, Corps of Engineers, Memphis, Tenn., Michael A. McCord, Atty., Dept, of Justice, Washington, D. C., on briefs, for federal appellees. Bill Clinton, Atty. Gen., Little Rock, Ark., and William G. Peterson, Dept, of Natural Resources, St. Paul, Minn., filed amicus brief of State of Ark. in ease no. 76-1366. John C. Danforth, Atty. Gen., State of Mo., Cyril M. Hendricks, Atty., Dept, of Conservation, Jefferson City, Mo., Bronson C. La Follette, Atty. Gen., State of Wis., Theodore L. Priebe, Asst. Atty. Gen., Madison, Wis., Warren R. Spannaus, Atty. Gen., State of Minn., William G. Peterson, Sp. Asst. Atty. Gen., St. Paul, Minn., Richard C. Turner, Atty. Gen., State of Iowa, Clifford E. Peterson, Sp. Asst. Atty. Gen., Des Moines, Iowa, William J. Scott, Atty. Gen., State of 111., Richard W. Cosby, Asst. Atty. Gen., Springfield, 111., filed amicus briefs for the States of Minn., 111., Mo., Wis. and. Iowa in case no. 76-1431. Before HEANEY and STEPHENSON, Circuit Judges, and STUART, District Judge. WILLIAM C. STUART, United States District Judge, Southern District of Iowa, sitting by designation. HEANEY, Circuit Judge. The principal question raised on this appeal is whether the final revised environmental impact statement (EIS), filed by the Corps of Engineers in conjunction with the Cache River-Bayou DeView Channelization Project, complies with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., (NEPA) and the mandate of this Court in Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972). The trial court concluded that the EIS fully complied with NEPA and that the action of the Corps in deciding to proceed as proposed in the EIS was not arbitrary and capricious. Accordingly, the trial court vacated an injunction it had previously issued restraining any construction on the project and dismissed the complaint. We affirm. I This is the second time the Cache River Project has been before this Court. The project involves clearing, realigning, enlarging and rechanneling, for flood control and drainage purposes, over two hundred and thirty-one miles of the Cache River, its upper tributaries and its principal tributary— the Bayou DeView. This public works project is presently estimated to cost the federal government over ninety-three million dollars. The lengthy history of the project, which was first authorized twenty-seven years ago, was outlined by this Court in Environmental Defense Fund, Inc. v. Froehlke, supra at 348. In that case, this Court reviewed the first EIS filed by the Corps in connection with the project and found it to be in violation of NEPA, the guidelines adopted by the Council on Environmental Quality (CEQ) and the regulations of the Corps itself. The Corps was ordered to submit a revised EIS and the trial court was ordered to grant appropriate injunctive relief. Id. at 356. On March 16, 1973, the trial court issued an injunction restraining any further construction pending the preparation of a revised EIS by the Corps. About four miles of the project had been completed at the time the injunction was filed. Congress authorized a modification of the project in the Water Resources Development Act of 1974, Pub.L.No.93-251, § 99, 88 Stat. 41 (1974), in accordance with the Report of the Chief of Engineers, Department of the Army, Modification of Cache River Basin Feature, Mississippi River and Tributaries Project, Arkansas, H.Doc.No. 92-366, 92d Cong., 2d Sess. (1972). The Act authorized acquisition by fee or easement of not more than seventy thousand acres of Cache River Basin bottomlands to mitigate fish and wildlife resource losses as a result of the project. At least thirty thousand acres of the mitigation lands are to be available for public use. Federal expenditure for the mitigation lands is not to exceed seven million dollars. The Act further provides that “[n]o less than 20 per centum of the funds appropriated each fiscal year for the Cache River project shall be appropriated to implement mitigation until the full mitigation amount has been appropriated.” On November 8, 1974, the Corps filed a final revised EIS, which consisted of six volumes including appendices, with the CEQ and the trial court. Soon thereafter, the federal defendants filed a motion to dissolve the injunction and dismiss the complaint. They later also filed a motion for summary judgment. The trial court denied these motions and directed the parties to proceed with discovery. In November, 1975, the trial court held an extensive four-day hearing on the merits of the revised EIS at which more than twenty persons testified and numerous exhibits were presented. Briefs were filed by the plaintiffs, the federal defendants, the interve-nors and the amicus curiae. On March 22, 1976, the trial court filed its memorandum opinion discussing each of the issues raised by the plaintiffs with respect to the adequacy of the final revised EIS. It concluded that the revised EIS satisfied the requirements of NEPA, the guidelines of the CEQ and the regulations of the Corps; that the revised EIS formed an adequate basis on which the decision to proceed with the project could be made; and that the decision to proceed itself was not arbitrary and capricious. It then vacated the injunction it had previously issued restraining any construction on the project and dismissed the complaint. This appeal followed. Since the filing of this appeal, several events of significance to the issues raised have occurred. On November 26, 1976, a contract was awarded for construction on the next upstream segment of three and one-tenth miles. On March 21, 1977, this Court refused to enjoin construction of this segment pending appeal. Construction is presently underway on the three and one-tenth-mile segment which is expected to be completed by the end of November, 1977. Approximately one hundred and twenty acres of mitigation land has been purchased. Over fifteen thousand acres of mitigation land are scheduled for acquisition by mid-1978, subject to the availability of funds. On February 21, 1977, President Carter announced a major review of all water resource projects in connection with the budget for fiscal year 1978. Water Resource Projects: The President’s Message to Congress Recommending Deletion of Funds for 19 Projects from the 1978 Fiscal Year Budget, 13 Weekly Comp, of Pres.Doc. 234 (February 21, 1977). The Cache River Project was one of nineteen major water resource projects which were initially identified as unsupportable on “economic, environmental, and/or safety grounds.” The President instructed the Secretaries of the Interior, the Army and of Agriculture to work with the CEQ and the Office of Management and Budget in carrying out a complete evaluation of each of the nineteen water resource projects questioned by the President. Representatives from each agency initially screened the projects and it was determined that the Cache River Project required a more extensive review, Data was compiled to provide a detailed data base for each of the projects requiring further evaluation. In connection with this review, a public hearing lasting more than nine hours was held in Jonesboro, Arkansas, which is located within the project area. Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978: Hearings before a Subcomm. of the Comm. on Appropriations House of Representa tives, 95th Cong., 1st Sess. 256 (1977) [hereinafter cited as Public Works]. Approximately two thousand two hundred persons attended the hearing. Id. at 256-260. Two hundred and sixty-seven individuals spoke at the public hearing; twenty-six spoke in opposition to the project. The Cache River Project was found, by the representatives of the reviewing agencies, to meet all of the economic, environmental and safety criteria established. Nonetheless, the President recommended the deletion of funding for the project, the deauthorization of the project and that consideration be given to the protection of the remaining bottomland habitat. Public Works, supra at 3-5, 12. The following were listed as factors in the President’s decision: The project would accelerate clearing and drainage of over 110,000 acres of bottomland forest and wooded swamp— one of the last such areas in Arkansas. Much of this area is winter habitat for thousands of migratory water fowl traveling on the Mississippi flyway from eight upstream states and Canada. The U. S. Fish and Wildlife Service has pointed out that the project would eliminate up to 90% of the existing fishery resources and would cause major adverse impacts downstream, reducing the value of the White River National Wildlife Refuge. Benefits from increased soybean production may be overstated and are narrowly distributed (50% of the benefits to about 10% of the landowners); much of the land to be benefited is already productively farmed. Adequacy of mitigation measures for wildlife has been questioned. Despite the President’s recommendation, two million dollars for the project for fiscal year 1978 was included in both the House and the Senate versions of the appropriation bill. House Comm, on Appropriations, Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, H.Rep.No.95-379, 95th Cong., 1st Sess. (1977); Senate Comm, on Appropriations, Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, S.Rep.No.95-301, 95th Cong., 1st Sess. (1977). A conference report on the two versions of the appropriation bill, including funding for the project, was agreed to by both the House and Senate. 123 Cong.Rec. H7689-H7698, S12707-S12712 (daily ed., July 25, 1977). On August 7, 1977, the President signed the appropriations bill into law. Public Works for Water and Power Development and Energy Research Appropriation Act, 1978, Pub.L. No.95-96, 91 Stat. 797. II As the foregoing summary indicates, the Cache River Project has been the subject of extensive and searching review. While at various times during the review process it appeared that this appeal would be rendered moot, Congress, with the endorsement of the President, has now approved a budget for fiscal year 1978 that includes adequate funding to assure continued construction of the next scheduled segment of the project. All of the objections to the project, some of which the appellants claim were not adequately presented in the EIS were exhaustively presented during the process of review. At no time, however, was the review process directed towards the adequacy of the EIS, which is the issue now before this Court. Accordingly, we must still examine each of the issues raised by the appellants with respect to the adequacy of the EIS. In making our determination, we are mindful of the caution expressed by this Court that “[t]he Courts must employ a rule of reason in examination for adequacy of these statements, lest the litigation have no end.” Sierra Club v. Froehlke, 534 F.2d 1289, 1299 (8th Cir. 1976). See, e. g., New York v. Kleppe, 429 U.S. 1307, 1310, 97 S.Ct. 4, 6, 50 L.Ed.2d 38, 42 (1976) (Marshall, J., denying application to vacate stay); Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 852 (8th Cir. 1973). A. The first contention of the appellants is that the revised EIS fails to evaluate the secondary impact of the project on groundwater levels. We recognize that if an impact significantly affects the environment, it should be considered in the EIS whether the impact is a primary or secondary one. City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1283 n. 9 (9th Cir. 1974). However, “[a]n EIS need not discuss remote and highly speculative consequences. EDF v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss.1972), aff’d, 492 F.2d 1123 (5th Cir. 1974). * * * A reasonably thorough discussion of the significant aspects of the probable environmental consequences is all that is required by an EIS.” Trout Unlimited v. Morton, supra at 1283. It is the appellants’ contention that the destruction of river bottomland, coupled with increased agricultural activity, might result in declining groundwater table levels if an increased use of groundwater for irrigation exceeded the rate at which the groundwater level is naturally recharged. While we agree that the EIS could have been improved by a discussion of this issue, we cannot agree that the failure to include a discussion renders the EIS defective since the cumulative secondary impact of the project on the groundwater levels is too remote and speculative. We recognize that by reducing the depth and duration of flooding, the project is expected to result in increased agricultural activity in the Cache River Basin. We note, however, that the increased agricultural activity is expected to be in the form of more intensive land use, rather than significant increases in the acreage devoted to agricultural use. Over eighty-two percent of the Cache River Basin is now cleared for agricultural use. The major field crop in the area is soybeans. Rice is the only crop in the project area which requires a significant amount of irrigation. In 1969, roughly six times more acreage was devoted to soybeans than to rice. At the time the EIS was prepared, federal programs strictly regulated the amount of rice production. In light of the above circumstances making significant increases in the use of groundwater for irrigation remote, we cannot say that the EIS is defective for failing to discuss this issue. The EIS does extensively discuss the direct impact of the project on groundwater. Moreover, the testimony, from the first trial, of the Corps expert who prepared the groundwater study included in the EIS is reprinted in an appendix to the EIS. Except in localized areas adjacent to the deepened channels, no direct impact of the project on groundwater levels was found. Nor was any significant impact on groundwater levels found because of the cumulative effect of other projects. A section on hydraulics and hydrology, which have a direct relationship to groundwater, is contained in an appendix to the EIS. Finally, the appellants claim that the EIS discussion with respect to groundwater is inadequate because it did not include data from a study by the U. S. Geological Survey in progress at the time the EIS was prepared and still in progress at the time the hearing was held in 1975. The study was a detailed groundwater hydrologic modeling study of the Cache-White River Basin area. The first phase of the study was not scheduled to be completed until 1976. The Corps is not required to wait for the completion of studies by other agencies, cf. Natural Resources Defense Council v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975), because an EIS must have terminal facilities. Sierra Club v. Froehlke, supra at 1299. The EIS contained an adequate discussion as to the direct impacts of the project on groundwater and, thus, the decision of the Corps not to wait for the study results was not an arbitrary one. Moreover, the U. S. Geological Survey study was referred to in the testimony of the Corps groundwater expert. This reference is sufficient to alert interested persons to the existence of the study. Cf. Iowa Citizens for Environmental Quality, Inc. v. Volpe, supra; E. D. F. v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2740, 37 L.Ed.2d 160 (1973). Accordingly, we do not find that the groundwater discussion in the EIS is fatally deficient because of its failure to consider cumulative secondary impacts on groundwater and because the Corps did not wait to include the U. S. Geological Survey study in the EIS. B. The second contention raised by the appellants is that the EIS does not adequately address the implications of the direct and secondary impacts of the project on state and federal water quality requirements and, thus, fails to comply with the CEQ guidelines on the content of an EIS. The guidelines provide: (a) The following points are to be covered [in an EIS]: # 4c * * * •* (2) The relationship of the proposed action to land use plans, policies, and controls for the affected area. This requires a discussion of how the proposed action may conform or conflict with the objectives and specific terms of approved or proposed Federal, State, and local land use plans, policies, and controls, if any, for the area affected including those developed in response to the Clear Air Act or the Federal Water Pollution Control Act Amendments of 1972. 40 C.F.R. § 1500.8(a)(2). The appellants argue that the EIS fails to discuss the impact of the project in terms of the Arkansas Water Quality regulation promulgated in compliance with the 1972 amendments to the Federal Water Pollution Control Act. 33 U.S.C. § 1151 et seq. Regulation Establishing Water Quality Standards for Surface Waters of the State of Arkansas, Regulation No. 2, State of Arkansas Department of Pollution Control and Ecology (as amended September, 1973). We cannot agree that the EIS was required to discuss this impact since it was not established that the project does in fact conflict with the state water quality standards. Arkansas exempts every channeled stream from the state water quality standards and, thus, the project does not conflict with the state water quality standards. We further note that the Arkansas Department of Pollution Control and Ecology found the EIS to be adequate. At several points in the EIS, the impact of the project on water quality is discussed. The EIS recognizes that the cumulative effect of the construction and increased agricultural activity will result in increased turbidity and increased concentrations of agricultural pollutants. The EIS also includes the comments of the Environmental Protection Agency [EPA] in an appendix. The EPA statement discusses serious problems with the project’s potentially harmful long-term effects on water quality. After reviewing the material in the EIS with respect to the impact of the project on water quality, we conclude that the discussion was adequate and sufficient to give notice of a significant impact of the project on water quality. Moreover, we note that the question of the impact of the project on water quality and the project’s compliance with the 1972 amendments to the Federal Water Pollution Control Act is still the subject of review. The Corps of Engineers is conducting permit proceedings under 33 U.S.C. § 1344 with respect to permits for the discharge of dredged or fill materials. The principal concern of these proceedings is the impact on water quality. Public hearings are held and the permit is subject to guidelines developed by the EPA. 33 U.S.C. § 1344(b) and (c). C. The third contention of the appellants is that the EIS fails to adequately evaluate conflicting scientific judgments about the cumulative effect of the destruction of Arkansas river bottomlands on the migratory waterfowl of the Mississippi Flyway. The trial court concluded that “there was an adequate, objective, scientific basis for the conclusions reached in the revised EIS” with respect to the waterfowl. We do not find this conclusion to be clearly erroneous. One of the most controversial aspects of the project is its impact upon migratory waterfowl. It has been stated that: [w]hen, as here, the issue of procedure relates to the sufficiency of the presentation in the statement, the court is not to rule on the relative merits of competing scientific opinion. Its function is only to assure that the statement sets forth the opposing scientific views, and does not take the arbitrary and impermissible approach of completely omitting from the statement, and hence from the focus that the statement was intended to provide for the deciding officials, any reference whatever to the existence of responsible scientific opinions concerning possible adverse environmental effects. * * * The agency need not set forth at full length views with which it disagrees, all that is required is a meaningful reference that identifies the problem at hand for the responsible official. Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 384, 463 F.2d 783, 787 (D.C.Cir. 1971) (footnote omitted). See also Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1302 (8th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). The EIS contains an extensive description of the waterfowl in the Cache River Basin as part of its description of the existing environmental setting, as well as a lengthy description of the impact of the project on waterfowl. The impact' of the project on waterfowl is again mentioned in the section of the EIS entitled “Adverse Environmental Effects Which Cannot be Avoided Should the Proposal be Implemented.” An appendix to the EIS reprints the comment letters of the U. S. Fish and Wildlife Service and six state fish and wildlife agencies, as well as several other comments which were critical of the EIS’s conclusion and discussion of the impact of the project on waterfowl. Also included in an appendix to the EIS is the Report of the Chief of Engineers, Department of the Army, Modification of Cache River Basin Feature, Mississippi River and Tributaries Project, Arkansas, H.Doc.No. 92-366, 92d Cong., 2d Sess. (1972). This report formed the basis for the wildlife mitigation plan adopted by Congress in 1974. The Corps concluded that while the project will have “some rather significant effects” upon the distribution of mallards in the project area, “there is no indication that the project will have significant or even measurable impacts upon flyway mallard populations.” The following factors are among those relied upon by the Corps as the basis for its conclusion: (1) a study which correlated migratory waterfowl counts since 1958 with acres of woodlands drained and cleared by similar projects and found the loss of woodlands had no detectable cumulative effect on the waterfowl count; (2) studies showing that the mallard population of the Cache River Basin accounted for only 4.3 percent of the Mississippi Fly way mallard population; (3) that even without the project, much of the woodland will be cleared in the future; and (4) the project does provide for up to seventy thousand acres of mitigation land in addition to the sixteen thousand acres already serving as state wildlife protection areas. The EIS does reprint adverse comments and refers to them in its evaluation. While this Court does not necessarily agree with the conclusion reached by the Corps, we find that it is adequately supported. We further find that the EIS does not arbitrarily omit reference to conflicting views and contains a sufficient reference to such views as to put the decisionmakers on notice of their existence. The scope of our review is limited to a determination as to the sufficiency of the EIS and its compliance with the requirements of NEPA. We note moreover that in light of the mitigation plan and the extraordinary executive and congressional review process, it would be singularly inappropriate for this Court to substitute its judgment for that of Congress as to the impact of the project on migratory waterfowl and the adequacy of the mitigation plan. One of the reasons this Court found the first EIS to be inadequate was its failure to give sufficient consideration to the possibility of mitigation. Environmental Defense Fund, Inc. v. Froehlke, supra at 351-352. The final EIS does include a discussion of the mitigation plan subsequently adopted by Congress. The principal purpose of the mitigation plan passed by Congress in 1974 was to reduce the impact of the project on migratory waterfowl. The trial court found nothing in the record indicating that the mitigation plan would not be accomplished. The mitigation plan adopted by Congress requires that at least twenty percent of the funds appropriated each fiscal year for the project be spent on mitigation until the full mitigation amount has been appropriated. Thus, the Corps cannot proceed with the project without proceeding with the implementation of the mitigation plan. Indeed, its failure to do so would give rise to a judicially cognizable cause of action, cf. Sierra Club v. Mason, 365 F.Supp. 47 (D.Conn.1973), to halt further construction of the project. The brief filed by amici curiae points to the lack of experience of the Corps with the implementation of mitigation plans with “fear and trepidation.” While the Corps’ lack of experience and its failure to acquire more than one hundred and twenty acres of mitigation land is a matter of concern, it does not necessarily justify the inference that the Corps will not in good faith proceed with the implementation of the mitigation plan. As the trial court found, the testimony at the hearing indicated that the Corps intends “to spend substantially more than twenty percent of the funds appropriated in the early stages of the project.” The Corps has scheduled the acquisition of some fifteen thousand acres of mitigation land by mid-1978. We emphasize that the Corps is under a continuing obligation to comply with the mitigation plan. We recognize that the mitigation plan, as adopted by Congress, is not problem-free. There may be difficulties in managing as a waterfowl unit the mitigation lands acquired under a wildlife easement. The up to seven million dollars currently authorized by Congress may be insufficient to acquire the maximum of seventy thousand acres under the mitigation plan. In light of the presidential and congressional concern that has been expressed with respect to the need for mitigation, we cannot conceive that Congress will fail to make the appropriations necessary to insure the full completion of the mitigation plan. Finally, we note that questions as to the adequacy of the mitigation plan were among the factors cited by President Carter as part of his decision to recommend the discontinuation of the project. It is, thus, clear that questions as to the impact of the project on migratory waterfowl were again brought to the attention of Congress. The appropriation of funds for the project after the exhaustive review process and despite the recommendation of the President, clearly represents a determination by Congress as to the adequacy of the mitigation plan. D. The fourth contention of the appellants is that the trial court erred in failing to require that the EIS evaluate the alternative proposed by the Arkansas Game and Fish Commission of a leveed floodway with bypass features. The EIS is specifically required by NEPA to discuss alternatives to the proposed action. 42 U.S.C. § 4332(2)(C)(iii) and (2)(E); 40 C.F.R. § 1500.8(a)(4). The EIS does contain an extensive discussion of several alternatives to the project. A detailed summary of the benefits, costs and cost-benefit ratios of each of the alternatives, both with and without mitigation, is included in the EIS. The EIS does not, however, include any reference to an alternative of a leveed floodway with bypass features suggested by a representative of the Arkansas Game and Fish Commission. An oral presentation of this alternative was not made to the Corps until June 10, 1974. The trial court found that this alternative was “too late to be included as the EIS was then substantially in its final printed form.” This finding is not clearly erroneous. The draft revised EIS was circulated for comment in December, 1973. The guidelines of the CEQ and the Corps provide, respectively, for forty-five and ninety days for comments. 40 C.F.R. § 1500.9(f); 33 C.F.R. § 209.410(k)(1). The Arkansas Game and Fish Commission submitted timely comments to the draft revised EIS in January, 1974, but did not mention the alternative of a leveed floodway with bypass features. This alternative was not presented to the Corps until six months later in June, 1974. We recognize that the time period allowed for comment is limited and, thus, may, in some instances, restrict the development of detailed alternative concepts. This, however, is not an appropriate consideration here in light of the twenty-seven-year history of the project. Thus, it is not unreasonable to expect that the alternative could have been proposed in a more timely fashion. We also note that all relevant comments received in time were published. As this Court has held, “an EIS must have terminal facilities.”'Sierra Club v. Froehlke, supra at 1289. As has been stated: The environmental impact statement is not to be equated to a trial court record which is examined on appeal by a higher court. Although the impact statement should, within reason, be as complete as possible, there is nothing to prevent either the agency involved, or the parties opposing proposed agency action, from bringing new or additional information, opinions and arguments to the attention of the “upstream” decision-makers even after the final EIS has been forwarded to CEQ. Environmental D. Fund, Inc. v. Corps of Eng. of U. S. Army, 342 F.Supp. 1211, 1217 (E.D.Ark.), aff’d, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2740, 37 L.Ed.2d 160 (1973). This was done here. The alternative of a leveed floodway with bypasses was brought to the attention of the Corps too late to be included in the EIS. It is, nonetheless, being given consideration by the Corps. Moreover, we note that the EIS did discuss two alternatives similar to the leveed flood way with bypass features. The EIS contains a discussion of a leveed floodway system with flowage easements and a le-veed floodway system with fee acquisition of the land between the levees for the protection of environmental resources. Thus, we hold that the trial court did not err in failing to require that the alternative of a leveed floodway with bypass features be discussed in the EIS. E. The final issue raised is whether the trial court erred in holding that the actual balance of costs and benefits struck by the Corps gave sufficient weight to environmental factors and was not arbitrary and capricious. As this Court held when it first considered the project, a reviewing court has an obligation to review substantive agency decisions on the merits to determine if they are in accord with NEPA, Environmental Defense Fund, Inc. v. Froehlke, supra at 353. We have done so and find that the decision is neither arbitrary nor capricious. Thus, we are not empowered to substitute our judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This is particularly true in light of the extraordinary executive and congressional review process. We have already concluded that the final revised EIS adequately complies with the requirements of NEPA, the CEQ and the Corps’ guidelines in each challenged respect. Thus, the EIS contains a sufficient basis on which the Corps could meaningfully balance environmental factors and the decision to proceed was not an arbitrary one. As the trial court concluded, [i]t is quite obvious that the Cache River decisionmakers had all of the information in the final EIS when the decision to proceed was made. In fact, it is quite apparent from the record that they had much more besides. Accordingly, the decision of the trial court is affirmed. Each party shall bear its own costs. . The draft of the revised environmental impact statement (EIS) was filed by the Corps of Engineers with the Council on Environmental Quality (CEQ) on December 17, 1973. The final revised EIS was filed by the Corps with the CEQ on November 8, 1974. . Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978: Hearings before a Subcomm. of the Comm, on Appropriations House of Representatives, 95th Cong., 1st Sess. 12 (1977) [hereinafter cited as Public Works ]. When this Court reviewed the first EIS filed by the Corps, it was estimated that the project would cost the federal government forty-three million dollars. Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972). . The project was authorized by the Flood Control Act of 1950, 64 Stat. 172, in accordance with the Report of the Chief of Engineers, United States Army, Cache River Basin, Arkansas and Missouri. S.Doc.No.88, 81st Cong., 1st Sess. (1949). . The original plaintiffs in this action were the Environmental Defense Fund, Inc., the Arkansas Wildlife Federation, the Arkansas Ecology Center, the American Duck Hunters Association, Pratt Remmel, Jr., and Mrs. Gale Eddins. The trial court dismissed the Arkansas Wildlife Federation, the Arkansas Ecology Center and the American

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

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

The WEBSTER MOTOR CAR COMPANY and Richard C. Webster, Appellants, v. ZELL MOTOR CAR COMPANY, Sidney Zell, O. Englar Gilbert, J. Jackson Smith, G. Dale Proctor, Joseph Janin, individually and as agents of the Zell Motor Car Company, Appellees. No. 7169. United States Court of Appeals Fourth Circuit. Argued April 24, 1956. Decided June 5, 1956. Donald D. Webster, Baltimore, Md. (William E. Leahy and Wm. J. Hughes, Jr., Washington, D. C., on brief), for appellants. John Henry Lewin, Baltimore, Md. (David C. Green and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellees. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PARKER, Chief Judge. This is an appeal from an order dismissing an action with prejudice following an interlocutory order theretofore entered by consent of parties providing for dismissal. Appellants contend that the dismissal with prejudice was not authorized by the interlocutory order as of the time such dismissal was entered, and that, if the order be construed as authorizing it at that time, circumstances had arisen since the entry of the interlocutory order rendering such dismissal inequitable. The action was begun in the District of Maryland to recover damages under the Sherman Anti Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, on account of an alleged conspiracy in restraint of trade between the defendants named and the Packard Motor Car Company, which was not named as a defendant. Prior to the institution of the action, a similar action had been commenced in the District of Columbia against the same defendants and the Packard Motor Company, but that action had been dismissed against the defendants here for failure to obtain service of process upon them. When the period of limitation under the Maryland statute was about to expire, the plaintiffs instituted this action for the evident purpose of keeping their cause of action alive against the defendants here if they should fail to recover in the District of Columbia action against Packard. Shortly before that action was to be tried and while plaintiffs’ counsel were busy preparing for the trial, defendants’ counsel made motions in this action to quash service of process and to strike portions of the complaint, and in addition filed lengthy interrogatories and gave notice of the taking of a number of depositions. Plaintiffs’ counsel moved for continuances with respect to these matters, and pending the hearing of the motion the parties agreed upon a consent order which was entered by the court on April 29, 1955, as follows: “Ordered that plaintiffs’ motion for a continuance be and it is hereby granted and all proceedings in the present cause are hereby stayed and the present cause is hereby continued for the period from this order until the expiration of two weeks immediately subsequent to the disposition in or by the trial court of said action pending in the District of Columbia (including, without limitation, by settlement, order, directed verdict or verdict of the jury), other than by a decision and order by said trial court that it lacks jurisdiction over said action, and provided further that upon the disposition, as above defined, of the said cause pending in Washington, D. C. the present cause shall be dismissed as to all defendants with prejudice.” A few days after the signing of this order, plaintiffs’ counsel became apprehensive that Packard might take the position that its effect was to release Packard from liability as a joint tort-feasor, especially if a dismissal with prejudice should be entered, and made a motion to vacate the order in its entirety or to strike out the portion relating to dismissal with prejudice. Counsel for defendants opposed the motion, taking the position that, under the law, an agreement to dismiss the action with prejudice or dismissal pursuant to such agreement could not result in releasing Packard and that there was no basis for the concern of plaintiffs’ counsel. The court, after hearing counsel at length and finding that no fraud or mistake of fact was involved, denied the motion but made the following statement as to the understanding of the parties with regard to the effect of the order: “I am firmly of the opinion that all counsel believed that the order would not release Packard. Now I don’t know that I have any power at this time to make a finding which would be binding on the Washington Court, but I will make this statement, which I will testify to in the Washington Court, or on a deposition to be sent there, or by certificate, or by any way which the parties wish, and which the parties can use as the basis of a stipulation in the Washington Court if they care to do so: “It was my understanding when the order was presented that not only was there no intention of the parties that the agreement or order should release Packard, but it was my understanding confirmed by what I have heard here today, that the parties, that is, the counsel for the respective parties all intended that the agreement and order should not release Packard. “I will so testify, or certify, in any way that would be helpful to the Court in Washington, if either party wishes to have my understanding brought before the Court in Washington.” The order denying the motion to vacate was entered on May 10, 1955. On the following day Packard filed a motion in the District of Columbia case to amend its answer so as to plead the order of April 29 as a release of its liability. This defense was vigorously pressed but was overruled by the District of Columbia court which rendered judgment for plaintiffs against Packard in the sum of |570,000 plus attorneys’ fees. Appeal was taken from this judgment on all issues, including the defense of release as a result of the order of April 29; and that appeal is now pending before the Court of Appeals of the District of Columbia. After the taking of the appeal by Packard in the District of Columbia case, the defendants here moved in the court below for a dismissal of this action with prejudice. Plaintiffs opposed the motion on the ground that the consent order did not provide for dismissal of the case until after final disposition of the District of Columbia case, but asked that, if the court should hold to the contrary, the order be modified so as to provide for dismissal without prejudice upon plaintiffs giving defendants a covenant not to sue, in form approved by the court. The court entered the order appealed from here, dismissing the case with prejudice on the ground that the condition in the consent decree had been satisfied and that it was not necessary to await the final disposition of the District of Columbia case. With respect to intent to release Packard, the court made the following finding: “(b) That at the time the order of April 29, 1955, was presented to the court and signed, it was not the intention of the parties that said order or the agreement upon which it was based should release any claim which the plaintiffs herein might have against the Packard Motor Car Company, but that counsel for the respective parties who presented the order of April 29,1955, intended that said agreement and order should not release the Packard Motor Car Company.” In connection with prior motions to amend and to dismiss, which had been denied as premature, the court had said with respect to the Packard defense of release: “ * * * this defense, which I have said from the beginning I haven’t the slightest sympathy with, that this paper was intended to be or might be used as a means of getting a claim of a release of a joint tort feasor. I think it is- bad law; I think it is bad morals; I think if it is in this case, and I am not going to do anything to assist Packard in establishing that. * * * I think they are setting up a defense in Washington that I don’t think has any legal basis, and I don’t think it is justified for reasons which I stated in the opinion which I gave and which I take it was taken up with the court.” There is grave question whether the consent order of April 29 should not be construed as authorizing dismissal only after final disposition of the District of Columbia case. There would be no reason for dismissing the case here, if a judgment rendered in the trial court there should be reversed and the case sent back for a new trial; and there would be just as much reason why the case here should be held in statu quo pending the outcome of such new trial as that it be held in statu quo pending the outcome of the original trial. The agreement was manifestly entered into in the thought, which was correct, that the District of Columbia trial would probably give plaintiffs all the relief they could obtain if disposed of on the merits, and that there was no necessity for going forward with the Maryland case if the District of Columbia case should be so disposed of. Only if it were disposed of otherwise than on the merits would there be occasion to go forward in the Maryland case; and, whether or not it was disposed of on the merits could be known only after there had been a final disposition, even though this might involve an appeal. If, however, the construction placed on the order by the District Judge be correct, we think it clear that, in view of the admitted facts and of his finding that it was not intended to release Packard, it should either have been set aside or so modified that it could not be used by Packard in an attempt to accomplish that result. The case is not one of setting aside a final order under Rule 62(b) of the Rules of Civil Procedure, 28 U.S. C.A., but of setting aside an interlocutory order relating to the future handling of the case. The fact that it was entered by consent does not impair the power of the court to modify it to any extent that may be necessary to the proper administration of justice. It is not a mere contract of the parties. It is a part of the judicial process for the orderly administration of justice and is completely under the control of the court until final judgment is entered. In United States v. Swift & Co., 286 U.S. 106, 114-115, 52 S.Ct. 460, 462, 76 L.Ed. 999, Mr. Justice Cardozo, dealing with a consent decree in an anti trust case, said: “The result is all one whether the decree has been entered after litigation or by consent. American Press Ass’n v. United States, 7 Cir., 245 F. 91. In either event, a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong. We reject the argument for the inter-veners that a decree entered upon consent is to be treated as a contract and not. as a judicial act.” A fortiori, a mere interlocutory order entered upon consent is not to be treated as a contract but as a judicial act and, as such, subject to modification by the court in the interest of justice at any time until the entry of final judgment. Whether or not the judge below was correct in thinking that the dismissal of this case or the order providing for its dismissal would not discharge Packard, we need not decide. Packard did not agree with him in his view of the law and is using the order as a defense to the suit in the District of Columbia and is contending there that it does have that effect. In this connection it should be remembered that Packard has been found by the District of Columbia Court to be a co-conspirator with defendants, and that, under Maryland law, defendants would be liable for contribution to Packard as joint tort-feasors. Flack’s Annotated Code of Maryland Art. 50, §§ 20-29. Assuming that the recovery in the District of Columbia Court is sustained against other attacks, for Packard to be released from that liability because of the order of April 29 or dismissal of defendants here pursuant to that order would result in an outrageous miscarriage of justice, not contemplated by the court or by the parties in the entry of the order. The court cannot, of course, control the decision in the District of Columbia case, but it does have plenary power over its own interlocutory orders; and when it appears that any such unintended and unconscionable use is being made of an order that it has entered as appears here, it should not hesitate to set the order aside. The setting aside or modification of interlocutory orders is, of course, a matter resting in the sound discretion of the trial judge; but, upon the facts as found by him here, we think that any other course than the setting aside of the order would not properly protect the orderly administration of justice and hence would not be a sound exercise of discretion. The order dismissing the cause with prejudice will accordingly be reversed and the case will be remanded to the court below with direction to set aside the order of April 29 and enter such further orders as to the future progress of the case as may be appropriate in the premises. Reversed and remanded with directions. 60 C.J.S., Motions and Orders, § 62, p. 66 et seq.; Fourniquet v. Perkins, 16 How. 82, 14 L.Ed. 854; John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88, 42 S.Ct. 196, 66 L.Ed. 475; Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 47, 63 S.Ct. 1393, 87 L.Ed. 1731; Kitchen v. Strawbridge, 14 Fed. Cas. page 692, No. 7,854, 4 Wash.C.C. 84; Duko Power Co. v. Greenwood County, 4 Cir., 91 F.2d 665, 669; United States to Use of Stallings v. Starr, 4 Cir., 20 F.2d 803, 808; Dangerfield v. Caldwell, 4 Cir., 151 F. 554; Fidelity Trust Co. v. Board of Education, 7 Cir., 174 F.2d 642, 645; Food, Tobacco, Agricultural and Allied Workers Union v. Smiley, 3 Cir., 164 F.2d 922, 924; Bland v. Faulkner, 194 N.C. 427, 139 S.E. 835, 836. In the case last cited the rule is well stated as follows: “Interlocutory orders, not finally determining or adjudicating rights of the parties, are always under the control of the court, and, upon good cause shown, they can bo amended, modified, changed, or rescinded as the court may think proper.”

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

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

S. C. JOHNSON & SON, Inc. v. JOHNSON et al. No. 103, Docket 21141. United States Court of Appeals Second Circuit. June 2, 1949. CLARK, Circuit Judge, dissenting. William T. Woodson, Chicago, 111., Rogers & Woodson, Chicago, 111., Kenefick, Cooke, Mitchell, Bass & Letchworth, Buffalo, N. Y., for plaintiff-appellant. Bean, Brooks, Bucldey & Bean, Buffalo, N. Y., F.dwin T. Bean, Conrad Christel, Buffalo, N. Y., for defendant-appellee. Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges. L. HAND, Chief Judge. The plaintiff’s motion made on May 20, 1948, from whose denial this appeal has been taken, was a sequel to our decision in 1940 and to the steps taken under it. We then declared — as the only relief to which the plaintiff was entitled — that the defendant must add “in immediate juxtaposition” to the words, “Johnson’s Cleaner,” the suffix, “made by Johnson Products Company, Buffalo, N. Y.” We refused to forbid him the use of his name, “Johnson,” as the district judge had done, although we agreed that that use had “caused confusion among the plaintiff’s customers.” The judgment of the District Court was entered on our mandate on April 21, 1941, and the defendant adopted a new label in which the words: “Johnson’s Cleaner,” printed in blue ink at the top, are immediately followed around the bottom by the legend: “Made by Johnson Products Company, Buffalo, N. Y.,” printed in letters of red ink of the same size. The supplemental complaint alleged these facts and added that the original defendant, John W. Johnson, had turned over the business to a firm of five partners consisting of himself and four others, of whom only one was named Johnson. It alleged that this firm was doing business under the old name, “Johnson Products Company”; that the changed label did not conform to the decree; that the defendants’ use of the name, “Johnson’s,” was “likely to and does cause confusion or mistake, and deceive purchasers as to the source of origin of defendants’ product”; and that the only “effective protection that can be given to the public against confusion, mistake and deceit” was to prevent altogether the use by the defendants of the word, “Johnson’s,” as a brand or trade-mark. The plaintiff urges four reasons why it should be allowed to file this supplemental pleading: (1) that the label does not conform to the judgment; (2) that the original injunction did not give the plaintiff adequate relief or protect the public; (3) that the original defendant had taken in the four new partners; and (4) that the Lanham Act has since been passed. We agree that the judge had jurisdiction at any time to entertain a motion to modify the injunction; and it is not necessary to decide whether it was necessary as a preliminary for him to ask leave of this court because of our decision on the former appeal. The cause is now before us, and it would be a barren formality to reverse the order, grant leave to the judge to entertain that motion, have him enter a new order, and compel the plaintiff to appeal again. We shall therefore at once proceed to the merits. As to the first point, we hold that the new label exactly conforms to the decree. As to the second, we hold that it was irrelevant under the Act of 1905, 33 Stat. 724, that the suffix has not prevented all mistake and confusion. Upon this we have nothing to add to what we said before, when we very deliberately assumed that the public might still be confused after the prescribed change had been made. As to the third point, we hold that it makes no difference that the original defendant has now associated himself with four partners, three of whom do not bear his name. The business has continued under its original name and whatever rights it has gained since its origin in 1932, have inured to the benefit of the firm. For many years it has been the law that the old good-will passes with the business. The motion was a patent effort to procure a reargument after a lapse of seven years, and has not the slightest justification save for the enactment of the Lanham Act in 1946. To this we address ourselves as the only point deserving discussion. That act did indeed put federal trade-mark law upon a new footing. The Act of 1905 had made the registration of a trade-mark only prima facie evidence of ownership, and the question must be regarded as never finally settled whether it created a substantive federal trade-mark law, as distinct from the common-law of the states, or whether, it merely gave jurisdiction to the district courts and certain procedural advantages to the owner. The Lanham Act put an end to any doubts upon that score, and to the confused condition in which those doubts involved the whole subject, especially after Erie Railroad Company v. Tompkins'. These were fully discussed by Judge Wyzanski in his opinion in National Fruit Product Co. v. DwinnellWright Co., but they ceased to be important after Congress provided that any infringer should “be liable to a civil action by the registrant for any or all the remedies hereinafter provided”; and that the registration certificate once become “incontestable” after five years, should, with certain exceptions not here relevant, be conclusive evidence of the registrants’ exclusive right to use it. This conclusion is confirmed, if confirmation is necessary, by the report of the Senate Committee, of which we quote a portion in the margin. Nevertheless, although it is no longer open to doubt that the present act created rights uniform throughout the Union, in the interpretation of which we are not limited by local law, it does not follow that, in determining what these are, we are not to be guided by the existing common-law, especially in regard to issues as to which that law was well settled in 1946. In the case at bar the issue is of the meaning of the following language: “any person who shall in commerce (a) use * * * any reproduction * * * of any registered mark,” which “use is likely to cause confusion or mistake or deceive purchasers as to the source or origin” of the goods on which the owner has used it, shall be liable to civil action. The parallel section of the Act of 1905 beginning at its second sentence was practically the same, except that it subjected to civil action only those who should “affix” the registered mark “to merchandise of substantially the same descriptive properties as those set forth in the registration.” Clearly a change, and a most substantial change, was intended, and the question is what that was. The law of trade-marks, which is in any event only a part of the law of unfair competition, was originally designed to protect the mark’s owner from the diversion of customers who would otherwise have bought of him. By 1905, however, this had been extended by making the mark in some situations cover goods on which the owner had never used it. So far as we have been able to find, the following are the only decisions in which federal courts had done so. In Carroll v. Ertheiler, Judge Butler allowed the manufacturer of smoking tobacco to enjoin the use of his mark on cigarettes, which he had never made. In Collins Co. v. Oliver Ames & Sons Corp., Justice Blatchford extended the protection of a mark used on metal picks and hoes and other digging instruments, to metal shovels, which the owner had never made. In Celluloid Manufacturing Co. v. Read, Judge Shipman, on the other hand, dismissed the plaintiff’s bill, seeking to enjoin the defendant’s use of the word, “Celluloid,” upon laundry starch, because starch was remote from anything which the plaintiff sold. In Godillot v. American Grocery Co., Judge Acheson held a mark used upon general groceries to include coffee and cigars, which the plaintiff had never sold. It will be observed that in all these cases the sales held to infringe were of goods which were “substantially of the same descriptive properties as those set forth in the registration”; and that on the occasion when that was not true, the owner of the mark failed. It seems safe to infer that, when the Act of 1905 used the language we have quoted it intended any rights which it conferred to be coextensive with those which the law of unfair competition recognized, so far as it had developed up to that time. By 1917 the English courts in a number of decisions, not necessary to consider, had meanwhile extended the cover of a mark or of a make-up considerably further than any of the cases we have cited, or than our own intervening decisions, such as Florence Manufacturing Co. v. Dowd, and British-American Tobacco Company v. British-American Cigar Stores Co., and they have developed a rationale of the interests to be protected which was more definite than anything in our own books. In Aunt Jemima Mills Co. v. Rigney & Co., we adopted this reasoning in a case where the infringing goods were syrup and the mark was for pancake flour; that has become the leading case in this country for the now well-established extension of the law of unfair competition in such situations. Thereafter the question several times arose whether this doctrine was within the terms of the Act of 1905; that is, whether “substantially of the same descriptive properties” referred to the physical character of the goods to which the protection of the mark alone extended, or whether it also covered any of which the owner of the mark might be supposed to be the source. We twice at least strongly intimated that it meant the second, although we recognized that this did some violence to the literal meaning of the words; but the weight of authority was the other way, and in 1946 it was at best most uncertain whether the Act of 1905 went beyond the law of unfair competition in 1905. It is quite enough to explain the change of diction in the Lanham Act that Congress wished to do no more than clear up this doubt — if indeed it was not more than a doubt — and make the protection of the new right coextensive with the law of unfair competition as it was in 1946, just as the Act of 1905 had made it coextensive with the law of 1905. Besides, not only is this a sufficient reason for the change, but there is the strongest possible reason for not reading the language literally, because to do so would frequently result in great hardship to others, and give to the first user of a mark a wholly unjustified power to preempt new markets. The “Aunt Jemima Doctrine,” as we may for brevity call it, needs to be indeed carefully circumscribed. It recognizes two, but only two, interests on which the owner can stand: (1) the possibility that the trade practices of the second user may stain the owner’s reputation in the minds of his customers; and (2) the possibility that at some time in the future he may wish to extend his business into that market which the second user has begun to exploit. These are legitimate interests and they are properly weighed against the second user’s interests; but it is far from true that the mere fact of confusion between the two users should always and of itself tip the scales in favor of the first. In Emerson Electric Manufacturing Co. v. Emerson Radio & Phonograph Corporation and Dwinell-Wright Company v. White House Milk Company, Inc., we tried to show how the power of a first user to establish such a premonitory lien upon a future market might lead to great injustice. In deciding such “interstitial” issues, which legislatures at times wisely leave to them, courts are obliged to take over their function pro hac vice and to decide which of the conflicting interests they think should prevail. The case at bar is an admirable example of how unfairly a literal enforcement of the language of the new act may operate. The plaintiff does not sell cleaning fluid; it makes waxes and other polishes, and the defendants cannot possibly turn away from it any customers who would buy these instead of cleaning fluids. When John W. Johnson began business in 1932 he did so under his own name — the customary and innocent identification of his goods with himself. After three years the plaintiff tried to stop his use, and it was unsuccessful in 1941; not, as we then said, because no confusion had developed, for some had, and was probably to some degree inevitable; but because we held that the resulting prejudice to the plaintiff did not counterbalance Johnson’s interest in doing business under his own name. After a lapse of five years — in 1946 — the Lanham Act was passed, and, if the plaintiff is right, it has destroyed the assurance, which our decision gave to Johnson and his present associates, that the good-will they built up in the name of “Johnson” they would be allowed to enjoy. True, nobody likes to have his reputation subject to the hazards of another’s conduct; but there is no suggestion that in fact the defendants have tarnished the plaintiff’s name in the minds of those who may think they are buying its goods. Again, although the plaintiff may at some future time wish to make cleaning fluids, it does not now even intimate such a purpose. We cannot conceive any justification in these circumstances for-allowing it to reach a choking hand into a market not its own, and to deprive the defendants of an interest, natural and proper in its origin, and after sixteen years presumably an important element in their business. If Congress really meant to allow every first user of a mark so to stifle all excursions into adjacent markets upon showing no more than that confusion would result, it seems to us that it would have said so more clearly. In the case of fabricated marks which have no significance, save as they denote a single source or origin of the goods to which they are attached, the first user’s right may indeed go so far. The second user can then show no interest of his own; and if, as. will then appear, his only purpose is to trade on the first user’s good-will, it is indeed time to intervene. That situation is polar to this, and we do not believe that both have been swept into a common condemnation by the language used to create the new federal right. Order affirmed. 2 Cir., 116 F.2d 427. §§ 1051-1127, Title 15 Ü.S.C.A. United States v. Swift and Company, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999; Dagas v. American Surety Co., 300 U.S. 414, 57 S.Ct. 515, 81 L.Ed. 720. Kidd v. Johnson, 100 U.S. 617, 25 L.Ed. 769. § 16, 33 St. at L. 728. Pecheur Lozenge Co. v. National Candy Corp., Inc., 314 U.S. 603, 62 S. Ct. 182, 86 L.Ed. 485; 315 U.S. 666, 62 S.Ct. 853, 86 L.Ed. 1103. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. D.C., 47 F.Supp. 499. § 1114, Title 15 U.S.C.A. § 1085, Title 15 U.S.C.A. § 1115(b), Title 15 U.S.C.A. “It would seem as if national legislation along national lines securing to the owners of trade-marks in interstate commerce definite rights should be enacted and should be enacted now. “There can be no doubt under the recent decisions of the Supreme Court of the constitutionality of a national act giving substantive as distinguished from merely procedural rights in trade-marks in commerce * * * and * * * a sound public policy requires that trademarks should receive nationally the greatest protection that can be given them.” (U.S.Code Congressional Service, 79th Congress, Second Session, 1946, p. 1277.) § 16, 33 St.L. at L. 728. Hanover Star Milling Co. v. Metcalf, 249 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713. C.C. 1880,1 F.7Í8a C.C. 1892, 18 F. 561. C.C. 1891, 47 F. 712. C.C. 1895, 71 F. 873. 2 Cir., 178 F. 73. 2 Cir., 211 F. 933, Ann.Cas.1915B, 363. 2 Cir., 247 F. 407, L.R.A.1918C, 1039. Restatement of Torts, §§ 730, 731. Yale Electric Corp. v. Robertson, 2 Cir., 26 F.2d 972; L. E. Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272. Atlas Mfg. Co. v. Street & Smith, 8 Cir., 204 F. 398, 47 L.R.A.,N.S., 1002; Rosenberg Bros. & Co. v. Elliott, 3 Cir., 7 F.2d 962; Beech-nut Packing Co. v. P. Lorillard Co., 3 Cir., 7 F.2d 907, 969; Walgreen Drug Stores v. Oboar-Nester Glass Co., 8 Cir., 113 F.2d 950; Bulova Watch Co. v. Stolzberg, D.C., 69 F.Supp. 543; Triangle Publications, Inc, v. Rohrlich, D.C., 73 F.Supp. 74. 2 Cir., 105 F.2d 908, 910. 2 Cir., 132 F.2d 822. gee also Arrow Distilleries v. Globe Brewing Co., 4 Cir., 117 F.2d 347; Durable Toy & Novelty Corp. v. J. Chein Co., 2 Cir., 133 F.2d 853.

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

Edward DUNN, a/k/a James Pardue, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, R.T. Mulcrone, Regional Commissioner, U.S. Parole Commission, K.C., Mo., Respondents-Appellees. No. 86-1435. United States Court of Appeals, Tenth Circuit. May 14, 1987. Rehearing Denied Aug. 6, 1987. Edward Dunn, pro se. Before McKAY and SEYMOUR, Circuit Judges, and SAM, District Judge. The Honorable David Sam, United States District Judge for the District of Utah, sitting by designation. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. Edward Dunn (petitioner) appeals the district court’s decision denying his petition for writ of habeas corpus. Petitioner challenged a ruling by the United States Parole Commission setting petitioner’s presumptive parole date at December 28, 1989, 630 F.Supp. 795. The hearing panel which initially considered petitioner’s current application set petitioner’s presumptive parole at April 29, 1985. The Regional Commissioner, however, referred this recommendation to the National Commissioners for reconsideration. The National Commissioners reopened the case and retarded petitioner’s parole, relying on a murder charge for which petitioner was acquitted by reason of insanity. The National Commissioners explained, “After review of all relevant factors and information presented, a decision above the guidelines appears warranted because you are a more serious risk than indicated by your salient factor score in that you have a history of serious assaultive behavior, including murder for which you were found not guilty by reason of insanity.” The Appeals Board affirmed. We first consider whether the district court had subject-matter jurisdiction over the petition for writ of habeas corpus. The Second Circuit has held that while habeas corpus is the sole vehicle for challenging a parole decision, a district court does not have subject-matter jurisdiction over the Parole Commission under 28 U.S.C. § 2241 because the Commission is not the petitioner’s “custodian.” Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir.1976). Instead, under the Second Circuit’s reasoning, a prisoner challenging a parole decision must name his warden in his petition. The Supreme Court has made clear, however, that the person named as “custodian” in a habeas corpus petition and the place of a petitioner’s “custody” are not always subject to a literal interpretation. In Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an Alabama prisoner challenged Kentucky’s lodging of a detainer against him. While the precise issue before the court was the choice of forum for a prisoner challenging an interstate detainer by way of federal habeas corpus, the Court addressed the issue of petitioner’s “custodian” by implication in holding that the prisoner should proceed in Kentucky. “In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of prisoner’s attack on the detainer.” Id. at 498-99, 93 S.Ct. at 1131-32. Although the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released. Rather, just as Kentucky controlled the duration of confinement in Braden and Alabama merely acted as Kentucky’s agent, so does the Commission directly control whether Mr. Dunn remains in custody. “So long as the petitioner names as respondent a person or entity with power to release him, there is no reason to avoid reaching the mérits of his petition.” Lee v. United States, 501 F.2d 494, 502-03 (8th Cir.1974) (Webster, J. concurring) (citing Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1168 (1970)). We agree. Notwithstanding the Second Circuit’s view, this court holds that under the circumstances of this case the Parole Commission may be considered petitioner’s “custodian” for purposes of a challenge to a parole decision under 28 U.S.C. § 2241. On the merits, petitioner argues that the Commission cannot consider his insanity acquittal in setting his parole date. The Commission amended its regulations in 1984 specifically to permit consideration of an acquittal by reason of insanity. See 49 Fed.Reg. 34207 (August 29, 1984) (codified at 28 C.F.R. § 2.19(c)(2)). The current version of § 2.19(c) states that “the Commission shall not consider in any determination, charges upon which a prisoner was found not guilty after trial unless ... [t]he prisoner was found not guilty by reason of his mental condition.” (emphasis added). Petitioner argues that the Commission does not have the statutory authority to promulgate this amended regulation and that even if the Commission may currently consider such an acquittal as a factor in its decision, the change in its regulations in 1984, if given retroactive effect, violates the Constitution’s prohibition against ex post facto laws. “The standard of review of action by the Parole Commission is whether the decision is arbitrary and capricious or is an abuse of discretion.” Dye v. United States Parole Comm’n, 558 F.2d 1376, 1378 (10th Cir. 1977). Although the Commission’s guidelines are flexible and are not absolutely binding in any parole decision, the Commission must have “good cause” for setting parole eligibility beyond the guidelines. 18 U.S.C. § 4206(c). In establishing good cause, the Commission may not rely on reasons that are outside the scope of its authority to consider. Joost v. United States Parole Comm’n, 698 F.2d 418 (10th Cir.1983). Finally, if the Commission goes beyond the guidelines, the prisoner must be “furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.” 18 U.S.C. § 4206(c). In making a parole decision under 18 U.S.C. § 4206(a), the Commission considers whether a prisoner’s “release would ... depreciate the seriousness of [the prisoner’s] offense or promote disrespect for the law; and ... [whether] that release would ... jeopardize the public welfare.” This court substantially agrees with the district court that in deciding whether a prisoner’s release will jeopardize public welfare, the Commission may consider an insanity acquittal as evidence of mental instability giving rise to assaultive behavior. In such a context, the prisoner’s culpability is not an issue. See Steinberg v. Police Court, 610 F.2d 449 (6th Cir.1979); Knight v. Estelle, 501 F.2d 963 (5th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 668 (1975). Where, however, the Commission considers the acquittal only in terms of whether the prisoner’s release would encourage disrespect for the law or depreciate the seriousness of his offense, the Commission exceeds its authority. In Missouri, where petitioner was tried, an insanity acquittal is equivalent to a finding that the defendant was “incapable of understanding that the particular act in question was a violation of the law of God and of society.” State v. Johnson, 485 S.W.2d 106, 113-14 (Mo. 1972). For the Commission to decide wholly on its own that a prisoner should remain incarcerated so that he may respect the law and appreciate the seriousness of an act he committed while insane goes behind the jury’s verdict to punish a prisoner for an act for which he was not culpable. See Little v. Hadden, 504 F.Supp. 558 (D.Colo. 1980). The Commission ostensibly based its decision on parole risk. The record before us and the reasons the Commission has provided for its decision, however, make clear that the use of the insanity acquittal in calculating petitioner’s presumptive parole date was based solely on punitive considerations. The record reflects no evidence to support a finding of parole risk based on current mental illness. Indeed, the record reflects a favorable initial recommendation by the hearing panel based on exemplary institutional adjustment and a conclusion by the prison staff psychologist that petitioner is not mentally ill. The Commission’s reliance on an insanity acquittal arising from events occurring approximately eighteen years ago to retard petitioner’s parole date was thus arbitrary and capricious and an abuse of discretion. See Dye, supra. We therefore reverse the district court’s decision and remand with instructions to remand to the Commission to hold a new parole hearing to consider only permissible factors with support in the record in setting petitioner’s parole date. The Commission must hold a new hearing for petitioner within thirty days of the date of this opinion or release him. We note that the Commission held an interim hearing during the pendency of this appeal at which the Commission continued petitioner to the expiration of his sentence. The Commission utilized identical reasoning in denying petitioner’s parole after the interim hearing. This parole determination thus has no effect on our decision in this case. Petitioner next argues that the insanity acquittal in his record cannot be considered by the Commission because the amendment promulgated explicitly to permit consideration of this factor violates the ex post facto clause of the Constitution if applied retroactively. Because we hold that in this case the Commission abused its discretion in relying on the insanity acquittal in petitioner’s record, we need not address whether the use of insanity acquittals would violate the ex post facto clause. The judgment of the United States District Court for the District of Kansas is REVERSED, and this case is REMANDED to the district court with instructions to remand to the United States Parole Commission for proceedings consistent herewith. The mandate shall issue forthwith.

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.

In re Vern O. LAING, Debtor. Lawrence A.G. JOHNSON; Don Bradshaw, Plaintiffs-Appellants, v. Vern O. LAING, Defendant-Appellee. No. 91-5031. United States Court of Appeals, Tenth Circuit. Sept. 24, 1991. Lawrence A.G. Johnson, Tulsa, Okl., pro se and for plaintiff-appellant Don Bradshaw. Kenneth V. Todd, Tulsa, Okl., for defendant-appellee. Before SEYMOUR and EBEL, Circuit Judges, and BABCOCK, District Judge. Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation. EBEL, Circuit Judge. This is an appeal from a district court order affirming the decision of the bankruptcy court to allow, but reduce in amount, a claim against debtor Vern 0. Laing. The claim is based on an obligation previously reduced to judgment in a state (Oklahoma) court action brought against Laing by appellant Don Bradshaw, assign-ee of the note evidencing Laing’s obligation. The overriding issue raised on this appeal is whether the lower courts erred in denying preclusive effect to the state court judgment by re-determining Laing’s liability on the note — under primarily equitable, rather than legal, principles — and resolving appellants’ claim accordingly. In 1983, Laing purchased an airplane with the proceeds of a $75,000 note given to the Bank of Oklahoma, which also acquired a security interest in the airplane. Shortly after the purchase, Laing and his then-attorney Johnson entered into a joint venture ownership agreement that granted Johnson a one-half interest in the airplane but, evidently in exchange for contemplated professional services by Johnson, held him harmless on Laing’s obligation to the Bank of Oklahoma. Years later, Johnson filed suit in state court to dissolve the joint venture agreement. That suit concluded with a judgment giving Laing the option of: (1) paying Johnson $31,000 for his interest in the airplane; (2) accepting $31,000 from Johnson in exchange for Laing’s interest in the airplane free and clear of all encumbrances; or (3) taking no action, in which case Johnson would be granted an in rem judgment against the airplane subject, of course, to the security interest held by the Bank of Oklahoma. The third course was taken, but just before Johnson acquired the airplane by foreclosure sale (affirmed by the state supreme court), Laing defaulted on his note to Bank of Oklahoma, which brought suit against Laing for recovery on the note and against Laing and Johnson to foreclose their interests in the airplane. About this time, Bradshaw, a friend of Johnson’s, took an assignment of the Laing note and associated security interest held by Bank of Oklahoma in exchange for $58,-846.89, which he obtained by giving Liberty Bank of Owasso, in turn, his note and a security interest in the airplane. Bank of Oklahoma then dismissed its suit and Bradshaw, represented by Johnson, brought his own action to collect on the Laing note, though Bradshaw did not also seek to foreclose on the airplane. Shortly thereafter, Johnson sold the airplane and loaned Bradshaw the money to pay off the note he had given Liberty Bank of Owasso. This accomplished, Bradshaw and the bank released their security interests in the airplane. At this point, only Bradshaw’s action to collect on the Laing note remained to be resolved. Laing asserted counter- and third-party claims against Bradshaw and Johnson, however, alleging, among other things, conspiracy and breach of fiduciary duty in connection with the events through which Bradshaw acquired and sought to enforce Laing’s obligation while releasing, for Johnson’s benefit, his interest in the collateral securing that obligation. The state court granted summary judgment for Bradshaw against Laing on the note and for Bradshaw and Johnson on Laing’s counter- and third-party claims. Laing did not appeal this disposition. Instead, Laing filed for bankruptcy, requiring Bradshaw to file a proof of claim based on the state court judgment. Laing objected, again asserting that the underlying, allegedly collusive conduct of Bradshaw and Johnson should preclude recovery on Laing’s note. In its initial memorandum decision, the bankruptcy court found “that the actions of Johnson and Bradshaw violate the fiduciary duty that Johnson owed Laing as his attorney and as his joint venturer, and, if allowed to stand, would unjustly enrich Johnson.” Memorandum on Objection to Claim of Bradshaw/Johnson, filed June 16,1989, at 2. It also found, however, “that both parties breached their fiduciary duty that they owed to the other” and that “Laing started the unethical conduct when ... he intentionally and deliberately ceased making payments on the secured debt....” Id. Consequently, the bankruptcy court simply looked past Bradshaw’s legal claim and fashioned an equitable compromise to “put the parties back to where they were [before dissolution of the joint venture agreement].” Id. at 7. In brief, the bankruptcy court credited Laing with one-half of the proceeds from the sale of the airplane — in which Laing no longer held a legal interest — and applied that sum to reduce his indebtedness on the note held by Bradshaw, whose claim was then allowed in the resulting, reduced amount. Id. at 3-4, 7. On appeal to the district court, Bradshaw and Johnson argued that the state court judgment on the Laing note should have been accorded preclusive effect with respect to Laing’s obligation, without any modification based on the bankruptcy court’s perception of the equities involved. Relying on our decision in In re Wallace, 840 F.2d 762, 764-65 (10th Cir.1988), the district court agreed, in principle, that the doctrine of collateral estoppel may be invoked in bankruptcy proceedings, but also recognized that the existence of fraud may bar its application, citing Heiser v. Woodruff, 327 U.S. 726, 736, 66S.Ct. 853, 857, 90 L.Ed. 970 (1946). The district court concluded that a remand for specific findings on the issue of fraud was, therefore, appropriate: Therefore, unless fraud or collusion exists in the instant case, it is error for the Bankruptcy Court to disregard the doctrine of collateral estoppel. If fraud or collusion does exist, then the state court judgment need not be given res judicata effect, and the Bankruptcy Court decision will stand. At several times during the proceedings, the Bankruptcy Court alludes to the fact that fraud or collusion did exist in this case. However, the Bankruptcy Court made no specific factual finding as to either fraud or collusion. Such a finding is not clearly set forth in the decision of the court and this court, on appeal, cannot infer whether the Bankruptcy Court’s decision was motivated by such finding. Accordingly, the case is remanded to the Bankruptcy Court so it may state specifically its findings and whether the downward adjustment to Bradshaw’s proof of claim was motivated by the existence of fraud or collusion. District Court Order filed July 24, 1990, at 6 (footnote omitted and emphasis in original). On remand, the bankruptcy court found on the existing record “that Johnson’s actions amount to fraud and collusion. Johnson breached his fiduciary duty as an attorney and joint venturer. His actions, fully described in the court’s Memorandum on Objection to Claim of Bradshaw/Johnson ... and Pre-Hearing Order regarding Debtor’s objection to Bradshaw’s claim[,] ... were the equivalent of fraud and collusion.” Supplemental Finding of Fact filed August 3, 1990, at 1. Thereafter, the district court summarily affirmed the bankruptcy court’s decision on the basis of the lower court’s fraud determination, which it held was not clearly erroneous. District Court Order filed February 19, 1991, at 1-2. We begin our analysis with In re Wallace, which recognized that notwithstanding federal policy considerations barring the use of res judicata to preempt bankruptcy court dischargeability determinations altogether, see Brown v. Felsen, 442 U.S. 127, 138-39 and n. 10, 99 S.Ct. 2205, 2212-13 and n. 10, 60 L.Ed.2d 767 (1979); In re Shuler, 722 F.2d 1253, 1257-58 and n. 10 (5th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984), the more narrow doctrine of collateral estoppel remains available in bankruptcy “if (1) the issue to be precluded is the same as that involved in the prior state action, (2) the issue was actually litigated by the parties in the prior action, and (3) the state court’s determination of the issue was necessary to the resulting final and valid judgment.” In re Wallace, 840 F.2d at 765. The district court expressly noted the absence of any dispute over the satisfaction of these three conditions, see District Court Order filed July 24,1990, at 5 n. 5, and the parties have not taken issue with that assessment. Instead, the crux of this case concerns the lower court’s application of an established federal exception to collateral estoppel that is operative in bankruptcy when the prior ruling is defective “because of want of jurisdiction of the court which rendered it ... or because it was procured by fraud of a party.” Heiser, 327 U.S. at 736, 66 S.Ct. at 857 (emphasis added); see Browning v. Navarro, 887 F.2d 553, 562-63 (5th Cir.1989); Kelleran v. Andrijevic, 825 F.2d 692, 694 (2d Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 652 (1988). Bradshaw and Johnson contend that the lower courts erred by interpreting the underscored phrase too broadly, and that, properly construed, the phrase does not encompass the kind of fraud alleged and found below. We review the lower courts’ determination regarding the preclusive effect of the prior judgment de novo. See May v. Parker-Abbott Transfer & Storage, Inc., 899 F.2d 1007, 1009 (10th Cir.1990). Confronted with the issue in a similar situation, the Fifth Circuit noted that “Heiser does not define ‘judgment procured by fraud.’ ” Browning v. Navarro, 826 F.2d 335, 342 (5th Cir.1987). However, the court did “find some direction from review of cases which, in other contexts, have utilized the courts’ equitable power to set aside a judgment on the ground of fraud." Id. at 343. Primarily on the basis of its review of United States v. Throckmorton, 98 U.S. 61, 65-66, 68, 25 L.Ed. 93 (1878) (alleged use of perjured testimony insufficient to warrant vacatur of former judgment; such relief justified only for fraud extrinsic or collateral to issues tried and not for fraud that was in issue in former suit), and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245-46, 64 S.Ct. 997, 1000-01, 88 L.Ed. 1250 (1944) (relief from judgment granted where Court found “a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals”), the Browning court concluded that to justify the bankruptcy court’s departure from a prior judgment obtained against the debtor, the trustee must demonstrate that the judgment was obtained as the result of a scheme or collusion that is designed to influence corruptly the proceedings, or to inhibit the ability of an adverse party to fully present his case or defense, and which has the effect of foreclosing to him the opportunity to have a fair and complete trial.... To set aside the judgment, the court must be convinced that the trial was rendered so fundamentally unfair by the scheme or collusion, that the court lacks confidence that the judgment is soundly based on law and fact. Browning, 826 F.2d at 345. The cited passage is consistent with this court’s view, originally expressed outside the bankruptcy context, that “fraud in the procurement of a judgment” sufficient to warrant relief therefrom is properly identified with “fraud on the court,” i.e., fraud which is directed to the judicial machinery itself and is not fraud between the parties.... It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted. Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir.1985) (en banc). In the present case, the conduct of Johnson relied upon by the bankruptcy court for its finding of fraud was not, under any reasonable interpretation, directed at the state court that rendered judgment for Bradshaw on the Laing note. On the contrary, the cited conduct related to the events that made up the subject matter of the state court action and indeed formed the basis of Laing’s counter- and third-party claims against Bradshaw and Johnson. If fraud was involved at all, it was clearly not of the sort required under Bul-loch and Browning to justify vacatur of the judgment obtained. Furthermore, since Laing’s underlying allegations of breach of fiduciary duty and collusion were litigated in the state court action, they cannot serve now as the basis for collateral attack of the very judgment rendered in favor of Bradshaw and Johnson thereon. See Browning, 826 F.2d at 343 (Court in Throckmorton made clear that judgment could not be set aside for ground “ ‘which was actually presented and considered in the judgment assailed,’ ” quoting Throckmorton, 98 U.S. at 66); cf. Heiser, 327 U.S. at 736, 740, 66 S.Ct. at 857, 860 (collateral attack on judgment on grounds of fraud cannot be sustained when those grounds themselves have been rejected by the court in which judgment was rendered). Obviously, if judgments resolving disputes involving fraud were treated, for preclusion purposes, as judgments procured by the very conduct they address, no truly final judgment in fraud litigation would be possible. We accordingly adhere to the restrictive formulation of “fraud on the court” in assessing Laing’s invocation of the Heiser fraud exception to collateral estoppel, which we hold inapplicable to the circumstances of this case. Having reaffirmed, as a matter of federal law, that collateral estoppel is generally available in bankruptcy, and having also determined that the Heiser fraud exception thereto is not applicable to this case, our final task is to decide, in accord with our duty to render full faith and credit to state court judgments, see 28 U.S.C. § 1738, whether the Oklahoma courts would give preclusive effect to the judgment obtained by Bradshaw on the Laing note. See Browning, 887 F.2d at 562-63 (when a state court judgment is challenged in bankruptcy, it must be determined, first, whether there are federal grounds for setting aside the judgment and, if not, whether the judgment would be subject to collateral attack under state law); Kelleran, 825 F.2d at 694 (same two inquiries, federal and state, though order in analysis reversed). See generally Bolling v. City & County of Denver ex rel. McNichols, 790 F.2d 67, 68 (10th Cir.1986) (federal courts are required by section 1738 to “ ‘give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered’ ” (quoting Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984))). In Oklahoma, once a matter has passed to final judgment in a court of competent jurisdiction, it may not be reopened or subsequently considered absent fraud or collusion. Application of Grand River Dam Auth., 554 P.2d 5, 7 (Okl.1976). More directly to the point, “that fraud which will justify a court of equity in vacating a judgment, must be fraud extraneous to the issues presented and adjudication in the case in which judgment was rendered." Chisholm v. Stephenson, 363 P.2d 229, 233 (Okl.1961) (emphasis added). In light of what we have already said in connection with the federal fraud exception to collateral estoppel in bankruptcy, it is clear that the substantially similar rule prevailing in Oklahoma would not permit the lower courts’ divergence from the judgment entered in Bradshaw’s action on the Laing note. Accordingly, we hold that the claim against Laing should have been allowed in accordance with the terms of the state court judgment previously rendered thereon. The contrary judgment of the United States District Court for the Northern District of Oklahoma is REVERSED, and the cause is REMANDED with directions to remand to the bankruptcy court for proceedings consistent with this opinion. . 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. . Although the claim in dispute was asserted individually by appellant Bradshaw as (sole) judgment creditor on the note given by Laing, the lower courts treated the claim as jointly asserted by Bradshaw and appellant Johnson on the basis of their unity of interest and extensive mutual involvement in the subject matter. In the absence of any objection by the parties, we see no reason to deviate from this approach, which, in any event, does not affect our analysis of the issues presented for review. . In light of our disposition, we need not, and therefore do not, express an opinion regarding the correctness of this finding. For purposes of our analysis, we shall assume, arguendo, the fact of fraud and direct our attention to the nature of the fraud involved.

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

LEE et al. v. THORNTON, DISTRICT DIRECTOR, UNITED STATES CUSTOMS SERVICE, et al. No. 73-7006. Decided February 18, 1975 Per Curiam. Appellants brought actions in the District Court for the District of Vermont that challenged the constitutionality, facially and as applied, of various provisions of the customs laws, 46 Stat. 717 and 757, as amended, 19 U. S. C. §§ 1460 and 1618, that mandate procedures to effect forfeiture and remission or mitigation of penalties imposed after Border Patrol agents apprehended them and seized their vehicles when they crossed the border from Canada without passing through a customs station. The complaints sought (1) declaratory judgments that the challenged provisions were unconstitutional, (2) injunctions against their enforcement, (3) mandamus relief requiring the return of moneys paid as mitigated forfeitures or penalties based on violations of the customs laws, and (4) damages. A three-judge court was convened. The court held that it had jurisdiction under the Tucker Act, 28 U. S. C. § 1346 (a)(2), rejected appellants’constitutional claims, enjoined appel-lees from applying the customs laws except as construed by the court, declined to remit appellants’ fines, and returned to the single-judge District Court the question of damages. The District Court held that it had jurisdiction of the complaints under the Tucker Act, and did not address other alternative bases of jurisdiction asserted in the complaints. The jurisdiction of the district courts under the Tucker Act over “[a]ny . . . civil action or claim against the United States . . . founded either upon the Constitution, or any Act of Congress . . .” does not include jurisdiction over appellants’ claims to enjoin enforcement of the challenged provisions of the customs laws. The Tucker Act empowers district courts to award damages but not to grant injunctive or declaratory relief. Richardson v. Morris, 409 U. S. 464 (1973); United States v. King, 395 U. S. 1 (1969); United States v. Sherwood, 312 U. S. 584, 589-591 (1941). It follows that the three-judge court was improperly convened, and this Court therefore has no jurisdiction to entertain the appeal based on the District Court’s refusal to grant injunctive relief founded on appellants’ additional constitutional claims. Appellants’ motion for leave to proceed in forma pauperis is granted, the judgment of the District Court is vacated, and the case is remanded for consideration of appellants’ other asserted bases of jurisdiction. So ordered. Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of this case.

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?

BEACH v. BUSEY. No. 10210. Circuit Court of Appeals, Sixth Circuit. July 15, 1946. Mark A. Loofbourrow, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief; Warner M. Pomerene, of Coshocton, Ohio, and Mark A. Loofbourrow, of Cleveland, Ohio, of counsel), for appellant. P. R. Mickey, of Washington, D. C. (Se-wall Key, Helen R. Carloss, and James P. Garland, all of Washington, D. C., and Ray J. O’Donnell, of Columbus, Ohio, on the brief), for appellee. Before SIMONS, ALLEN, and MILLER, Circuit Judges. SIMONS, Circuit Judge. Upon the consideration of many cases involving inclusion of property in the gross estate of a decedent under § 302(c) of the Revenue Act of 1926 as amended, Internal Revenue Code § 811(c), 26 U.S.C.A. Int.Rev.Code, § 811(c), there emerges an interpretation (after some mutations, as in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.F.d. 35), that § 302(c) reaches all inter vivos transfers which may be resorted to as a substitute for a will in making dispositions of property operative at death (Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368) ; that it sweeps into the gross estate all property, the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death, or thereafter (Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 65 S.Ct. 508, 89 L.Ed. 783, 159 A.L.R. 227) ; and that the essential element is the decedent’s possession of a reversionary interest at the time of his death, notwithstanding such reversionary interest might disappear prior to death. Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323, 89 L.Ed. 1871, 159 A.L.R. 1330. The problem posed for us in the present appeal is whether by the terms of two trust instruments executed by appellant’s decedent, Harry L. Beach, all possibility of reversion of interest therein upon any contingency was successfully excluded. In 1925 and 1926 Beach and his wife Elizabeth, created trusts to each of which Beach contributed $80,000 and his wife, Elizabeth, $20,000 in Liberty bonds. The trust indentures, so far as here material, were identical, and provided that the income should be paid to the wife Elizabeth during the life of Beach, and upon his death to be divided between Elizabeth and a daughter Camilla, or go to the survivor for life. Each trust was to terminate on the death of the survivor of Mrs. Beach and Camilla. At the time the first trust was created the settlors had three children and two grandchildren ; at the time the second was created they had three living children and three living grandchildren. Beach died March 25, 1942, survived by his widow, Elizabeth, his son, two daughters and four grandchildren. Camilla was 42 years old, an invalid, unmarried and unable to support or care for herself. At the time of his death, Beach had an individual estate of over $450,000, exclusive of the corpora of the trusts and gifts which he had made to his wife, son and a daughter Nelle. Fie had never made any gift to his daughter Camilla, except the life interest given to her by the trust instruments. The specific issue on this appeal involves a construction of paragraph D(2) of each trust, which in full is as follows: “This trust shall terminate upon the death of the last survivor of the Settlor, Elizabeth C. Beach and the daughter of said Settlors, Camilla Beach, and upon the termination of this Trust said trust fund, together with any accumulations thereto, shall be distributed according to the Statutes of descent and distribution of the • State of Ohio, to the heirs at law of Harry L. Beach and Elizabeth C. Beach, providing the heirs of both Harry L. Beach and Elizabeth C. Beach are the same persons. “Should the said Harry L. Beach and Elizabeth C. Beach leave no lineal descendants of their direct line, and the next of kin of each were collateral heirs, then said trust fund shall upon the termination of this trust be distributed eighty (80%) per cent to said collateral heirs at law of Harry L. Beach, and twenty (20%) per cent to the said collateral heirs at law of Elizabeth C. Beach.”, It will be observed that the trusts terminate on the death of the survivor of Elizabeth and Camilla, and the question; according to the appellant, is who would receive the principal of the trusts at that time. The district court found that the decedent intended by the above language to provide that if he survived his wife and daughter his contribution to the trust would revert to him free of the trusts. The appellant maintains that this construction is in complete disregard of the express intention of the settlors to relinquish all interest in the trust property, and relies not only upon the provisions of paragraph D(2) but on paragraph D(12) of each trust, which provides: “It is expressly understood and agreed that this Trust is not revocable by any action of the Settlors hereunder, all of the Settlors’ rights as to said property having terminated upon the execution of this agreement, except as provided herein.” The exception does not become important because it relates to a limited right of Beach, never used, to be consulted during his lifetime as to investments. It will be noted that at the termination of the trusts the trust funds are to be distributed according to the statutes of* descent and distribution of the State of Ohio, Gen. Code, § 10503-1 et seq., “to the heirs at law of Harry L. Beach and Elizabeth C. Beach,” provided they are the same persons. At the common law, an inter vivos conveyance to a person for life, remainder to the heirs of the conveyor, created no estate in the heirs. Coke upon Littleton, § 22b. The origin and justification for the rule is to be found in § 314, Restatement of Property. A living person has no heirs. Earlier considered as a rule of law in England, the doctrine was abrogated as such by the Inheritance Act of 1833, though some American cases still treat it as a strict rule of law. Miller v. Fleming, 7 Mackey 139; Harris v. McLaran, 30 Miss. 533; Burton v. Boren, 308 Ill. 440, 139 N.E. 868; Morsman v. Commissioner, 8 Cir., 90 F.2d 18, 113 A.L.R. 441; West Tennessee Co. v. Townes, D.C.Miss., 52 F.2d 764. Well-considered opinions and textwriters, however, prefer to treat the doctrine as a rule of construction rather than as a strict rule of law. Simes, Law of Future Interests, § 147; Doctor v. Hughes, 225 N.Y. 305, 122 N.E. 221; Whittemore v. Equitable Trust Co., 250 N.Y. 298, 165 N.E. 454; Law Institute, Restatement of Property, § 314. As rationalized by Chief Judge Cardozo in Doctor v. Hughes, supra, the rule persists today but as a rule of construction, and to transform into a. remainder what, under the common law, would have been a reversion, the intention to work such transfer must be clearly expressed. If there is nothing in the instrument to suggest a purpose to vary the course of descent and distribution as it would be regulated by law, there is a reversion in the grantor and the grantees have an expectancy and not an estate. How the courts of Ohio would treat this ancient rule is not clear. There is a bald statement of the common-law doctrine in Kuhn v. Jackman, 32 Ohio App. 164, 166 N.E. 247, but the case was decided upon other grounds. Other Ohio cases have indicated that the word “heirs” is a flexible one to be construed so as to give effect to the .manifest intent of the testator or settlor. Jones v. Lloyd, 33 Ohio St. 572; Collier v. Collier’s Executors, 3 Ohio St. 369; McKelvey v. McKelvey, 43 Ohio St. 213, 1 N.E. 594. The collection of modern cases on the subject to be found in Wilcoxen v. Owen, 237 Ala. 169, 185 So. 897, 125 A.L.R. 548, seems to make it clear that whether as a rule of law or construction, it extends in most jurisdictions to include personal as well as real property. We accept the view that regardless of the term “heirs” we must seek the intention of the settlors in the ultimate disposition of the trust corpora, or as the appellant puts it, “determine what Mr. and Mrs. Beach intended by the language of the instruments, and not by what Mr. Blackstone might have intended by it.” The term “heirs” and the phrase “lineal descendants,” he urges, are used interchangeably, and lineal descendants is a more accurate description of the people whom the settlors meant primarily to benefit in the distribution of the trust remainders. Giving liberal consideration to this rationalization we are still confronted by difficulties. The trusts terminate with the death of the survivor of Mrs. Beach and her daughter Camilla, and the trust funds are then to be distributed to the common lineal descendants of Harry Beach and Elizabeth Beach, according to the statutes of descent and distribution of the State of Ohio. But should Beach survive the life tenants and therefore the termination of the trusts, there can be no distribution of the trust funds according to the statutes of descent and distribution because they speak only as of the date of his death, and the lineal descendants then living, or their issue, would take their distributive shares not by purchase but by the law of descent and distribution, for it is only at his death that the members of the class are determinable. This will be perceived in the event of the death of common lineal descendants leaving issue prior to the death of Beach. It would seem, therefore, that an expectancy in the trust funds might ripen into title only upon the death of Beach, and so in the words of Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 399, 75 L.Ed. 996, the death of the grantor would become “the indispensable and intended event which brought the larger estate into being for the grantee and effected its transmission from the dead to the living, thus satisfying the terms of the taxing act and justifying the tax imposed.” But another contingency perhaps even more clearly indicates that the settlors did not exclude the possibility of a reversion. It is clear from the terms of paragraph D(2) of the trust indentures, that the settlors considered the possibility of lineal descendants who were not the lineal descendants of both. These might come into being in one or more of several circumstances. Should the settlors be divorced during the life of the trusts, remarry and have children, or should Harry Beach remarry after the death of Elizabeth and before the trusts are terminated by the death of Camilla, and have children, these would be lineal descendants though not the lineal descendants of both, and not being common lineal descendants of the settlors could take no remainders under the first part of paragraph D(2). But they would be next of kin interposed between the settlors and their collateral heirs, cutting off any estate that would pass to such collateral heirs under the second part of the paragraph, since under that provision collateral heirs may take only if they are next of kin. Therefore, in the event of the death of all of the common lineal descendants of the settlors, prior to the death of Beach, and the existence of lineal descendants who, as next of kin, would prevent the passing of remainders to collateral heirs in the ratio provided, the trusts would fail and a reversion of the trust corpora to Beach would follow. Since the possibility of such reversion, however remote, was not terminated until the death of Beach, it was his death that caused the vesting finally of an estate in the common lineal descendants of the settlors, and so under the interpretation of § 302(c), developed in the cases heretofore cited, the corpora of the trusts contributed by Beach remained in his gross estate. Wherefore, 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 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?

FREDERICK v. BAXTER ARMS CORPORATION et al. No. 56. Circuit Court of Appeals, Second Circuit. Nov. 6, 1939. Sydney Krause, of New York City (Martin H. Young and Hyman Gold, both of New York City, on the brief), for plaintiff-appellant. William N. Tobin, of New York City, for defendants-appellees. Before 'SWAN, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. Plaintiff, as trustee in bankruptcy of Elizabeth Bunge, attacks her transfer, pri- or to her bankruptcy, of the Baxter Arms Apartment House to the Baxter Arms Corporation. This appeal must fail unless we hold to be “clearly erroneous” the finding of the court below that the money with which she originally purchased the property in question was not her own, but actually belonged to her mother and brother. Federal Rule of Civil Procedure 53(e) (2), 28 U.S.C.A. following section 723c. We think such a holding by us is not justified, and hence the decree dismissing the complaint must be affirmed. Elizabeth Bunge owned stock in the Elmhurst National Bank, which was closed at the time of the bank holiday in 1933. On November 2, 1933, she made the transfer now attacked. Later, in 1934, demand was made upon her for payment of an assessment on her stock; and judgment for such'assessment, in the amount of $1,672.-78, was recovered against her by the bank’s receiver in 1936. A month after its recovery she filed a" voluntary petition in bankruptcy, listing the receiver’s claim as her only indebtedness and asserting that she was possessed of no property; on July 10, 1936, she received her discharge as a bankrupt; and on July 23, 1936, the case was closed without the appointment of- a trustee. Thereafter the receiver of the bank sold various choses in action of the bank, including the judgment against this defendant. In 1938, an assignee thereof procured the reopening of the bankruptcy proceedings and the appointment of the plaintiff as trustee to prosecute this action. Much of the argument herein, as well as of the opinion of the judge below, centered upon the plaintiff’s right to bring this suit under the circumstances. In our view of the case discussion of this point is unnecessary. The plaintiff claims that the conveyance in 1933 was fraudulent because made to avoid the contingent obligation to the bank, of which the defendant Elizabeth Bunge then was on notice. Concededly it was without consideration. Her explanation was that she was planning to go abroad to get married, and was urged by her family to divest herself of title to the property which she held in trust for her mother and brother, whose money had financed its purchase. She transferred the real estate to a specially organized corporation, the stock of which was held by her mother and brother, except for director’s qualifying shares given, to her. The case therefore turns upon discovering whether Elizabeth or her.mother and brother were the beneficial owners of the funds with which Elizabeth originally purchased the property in 1930. The plaintiff offered Elizabeth as a witness, and she was extensively examined by counsel for both sides and by the court. Almost the entire record consists of her testimony, produced by the plaintiff, and not controverted except as plaintiff endeavors to point out its inherent improbability and inconsistency. Her story in effect was that in 1922 her father, an invalid afflicted with arthritis, intended to divide assets of $15,000 he then had among her mother, her younger brother (then aged 15), and herself. Whatever additional moneys and mortgages he had over this sum were to go to the mother. But as Elizabeth had been educated in this country and her parents had confidence in her, all of the family’s modest fortunes were placed in her name — $5,000 to be held for her brother, $5,000 for herself, and all the rest to be held for the benefit of her mother. The father died in 1923. She had assisted the father and mother in their delicatessen business and, after his death, assisted her mother in its conduct until- she went to work for herself as a waitress at a lunch counter, earning between $16 and $18 a week. In 1927, she was induced to invest her share, namely, $5,000, in stock of a corporation holding title to the property occupied by the Elmhurst National Bank. She was later induced to exchange that stock for the bank stock which eventually became a liability against her. When the bank failed she lost her $5,000 and also all of the small sum of money she herself had been able to save. The Baxter Arms Apartment House was purchased in 1930 with the shares of her father’s estate which she held for her mother and brother. This story is not unworthy of belief, and the district judge was entitled to accept it, as he did. Argument is now made that this explanation would account for but $10,000 of the purchase money of the apartment house, and that as additional consideration Elizabeth also transferred an amount of about $1,200 in cash and the equity in certain real estate, referred to as the Laurel Hill property. This equity had an indicated worth, according to the purchase agreement, of about $3,500. The court made no separate findings as to this part of the consideration. Nor did the plaintiff, in the course of his otherwise extensive questioning, examine the defendant Elizabeth on this point. Apparently the matter was not raised below, or the record would have been more explicit upon it. We think, however, that the general finding, that the “funds and securities” in question were not the property of Elizabeth, but were the property of her mother and brother, is adequate to include these items also. There is evidence that the mother had the beneficial interest in funds other than her share of the $15,000; that the father intended all other “moneys and mortgages” for her; that she conducted the delicatessen business after his death; and that she purchased the Laurel Hill property sometime after her husband’s death, taking title in her daughter’s name. As to the $1,200 in cash, the real estate broker who arranged the purchase of the apartment house testified that he loaned the balance necessary to complete the payments, and that the loan was later repaid, presumably from the income of the apartment house. Under these circumstances we do not feel called upon to set aside the conclusion of the court below that the property transferred by Elizabeth Bunge to the Baxter Arms Corporation “belonged in equity and good conscience to her mother and brother.” 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?

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

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

James ELLISON, Plaintiff-Appellant, v. FORD MOTOR COMPANY; Woodhaven Stamping Plant; and Frank Doyle, Defendants-Appellees. No. 86-1412. United States Court of Appeals, Sixth Circuit. Argued Dec. 17, 1987. Decided May 24, 1988. Ronald Reosti (argued), Ronald Reosti & Associates, P.C., Detroit, Mich., for plaintiff-appellant Jill MacDonald, Willie E. McGlory (argued), Ford Motor Co., Dearborn, Mich., Renate Klass, Miller, Cohen, Martens and Sugarman, P.C., Southfield, Mich., for defendants-appellees. Before JONES, WELLFORD and BOGGS, Circuit Judges. PER CURIAM. Plaintiff appeals the district court’s decision granting summary judgment for defendants in this employment discrimination action. Because we believe the district court abused its discretion in ruling on defendants’ summary judgment motion without first addressing a motion to amend that had been filed by plaintiff’s newly-appointed counsel, we reverse and remand for further proceedings. I. Plaintiff, James Ellison, Jr., a black man, was first employed by defendant Ford Motor Company at Ford’s Woodhaven Stamping Plant in September of 1970. From 1970 to 1975, Ellison accumulated an extensive disciplinary record for tardiness, absenteeism and failure to properly carry out instructions. In November 1975, Ellison was discharged for absenteeism. While that discharge was being grieved, Ellison and another Ford employee were discharged on December 3, 1975 for assaulting Ford employee, Jesse Gregory, who was then president of UAW Local 387, the union to which Ellison belonged. Pursuant to the grievance process, Ellison was reinstated to work effective December 9, 1976. During the next two years, Ford disciplined Ellison at least seven times for tardiness and loafing. On October 26, 1978, Ellison was discharged for chronic tardiness. Ellison was again reinstated, however, this time the collective bargaining agreement between Ford and Local 387 required that Ellison sign a Reinstatement Waiver. The waiver, which Ellison signed on November 28, 1978, provided that Ellison was to be on probation for a 12-month period of time, and that if he were disciplined during that time, he could not contest the reasonableness of the penalty. If disciplined, he could only grieve on the basis of whether he was innocent or not. The record shows that between December 1978 and August 9, 1979, Ellison’s attendance continued to be less than satisfactory. In his affidavit filed in this case, Rene Sopher, Supervisor of Labor Relations at the Woodhaven plant, indicated that Ellison had 35 incidents of tardiness during the first eight months of 1979 and had been absent from work without leave for an additional 35 days during this same time period. The time sheets substantiate Ellison’s attendance problems during these months. Evidently on August 8,1979, Ellison was tardy and was warned that any future tardiness would result in his discharge. On the very next day, August 9, 1979, Ellison was again tardy and, as a result, was discharged. After Ellison was notified of his discharge he apparently assaulted his supervisor, Joe Balk, who Ellison says was laughing at him. Following an investigation into the alleged assault, Ellison was sent a registered letter notifying him that another discharge was being entered on his record for “assault on a member of supervision.” On August 21, 1979, Ellison filed two EEOC charges — one against Ford and the other against the UAW — alleging that he had been discriminated against on the basis of his race. On January 31, 1980, the EEOC issued a Determination finding no reasonable cause to believe that Ford had discriminated, and issued Ellison a Notice of Right to Sue. Ellison apparently never received the right to sue letter, although Ford and the UAW both did. In any event, after Ellison notified the EEOC in September 1982 that he had not received the notice, a new one was issued to him. The original complaint in this lawsuit was filed on August 7, 1982 in the Wayne County (Michigan) Circuit Court. Ellison proceeded in 'propria persona. Named as defendants were Ford; Frank Doyle, a Ford employee; Local 387 of the UAW; and Jesse Gregory, the president of the Local. Ellison alleged a cause of action under the Elliott-Larsen Civil Rights Act, Mich.Comp.Laws Ann. § 37.2701(a) (West 1985), in that he was discriminated against on the basis of his race. He also claimed that he was discharged in violation of the collective bargaining agreement existing between Ford and the UAW. Defendants removed the case to federal court on the basis of the federal court’s original jurisdiction over the breach of contract claims under the provisions of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982) (LMRA). As a result of the removal, Ellison filed an amended complaint in pro per in December 1982. Ellison named the same defendants as in the original complaint, but omitted any mention of the Elliott-Larsen Act. Instead, he asserted a cause of action under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Still proceeding in pro per, Ellison filed another amended complaint on November 17, 1983. This time he asserted a violation of Title VII and breach of contract against Ford and Frank Doyle under Section 301 of the LMRA. Ellison claimed that he had been treated differently than his white coworkers with respect to disciplinary actions taken against him. On March 20,1984, Judge George Woods set a schedule establishing a discovery cutoff date of June 16,1984. Between March and June, Ellison’s deposition was taken by defendants. Ellison, acting without counsel, conducted no discovery during this three-month period. When Ellison did attempt to obtain discoverable materials in November 1984, defendants objected to the request as untimely under the court’s scheduling order. Defendants also objected to each of Ellison’s requests as over-broad and burdensome. Ellison did not file a motion to adjudicate the propriety of defendants’ objections to his discovery requests, and so he obtained no discovery throughout the pendency of the case. In May 1985, counsel was appointed for Ellison by Magistrate Paul Komives. About one month later, the attorney assigned by Komives moved to withdraw from the case and his request was granted on July 25, 1985. While this motion was pending, defendants filed motions for summary judgment. Over the next several months, defendants’ motions were scheduled for oral argument on several occasions. In the meantime, two different attorneys were appointed to represent Ellison, both of whom later withdrew from the case. It is not clear from the record why any of these attorneys withdrew. Finally, on December 23, 1985, Ellison’s present counsel, Ronald Reosti, was appointed. After entering the case, Ellison’s new counsel stipulated to a dismissal of all claims against the Union defendants— UAW and Gregory — and to a dismissal of the breach of collective bargaining agreement claim against Ford. At this same time, Ellison’s counsel requested the court to allow him to file a motion to remand the case to state court. Judge Woods granted counsel’s request and directed that the motion should be filed by March 3,1986. Also at that time the court scheduled the hearing on defendants’ summary judgment motion for March 24, 1986. Ellison’s counsel filed his motion to remand as scheduled on March 3, 1986. In the motion, counsel indicated that the cause of action based upon a breach of the collective bargaining agreement had been dismissed, and that, accordingly, plaintiff was only pursuing the claim that his discharge and harassment were racially motivated. Counsel suggested that fairness dictated plaintiff be allowed to amend his complaint to make it clear that he did not intend to abandon his claim for violation of the Elliott-Larsen Act. Counsel further requested that if the prayer to amend were granted, he should be allowed to dismiss the Title VII cause of action and the court should order the case remanded to the Wayne County Circuit Court. In the event the court denied the request to remand, counsel requested that he be given leave to further amend the complaint to allege a violation of 42 U.S.C. § 1981 and to request a jury trial. In addition, counsel requested the court to re-open the discovery period. The hearing on defendants’ summary judgment motion was held, as scheduled, on March 24, 1986. On that date, Judge Woods granted defendants' motion and dismissed the complaint. The court indicated in its oral disposition that Ellison could not establish a prima facie case of racial discrimination and, even if he could, he had not offered evidence to show that Ford’s legitimate, non-discriminatory reason for his discharge was pretextual. The court indicated at the beginning of the hearing that plaintiff’s motion to amend/remand/or re-open discovery was pending before it. However, the court did not address the merits of that motion during the course of the hearing. II. On appeal, we address only the narrow issue of whether the lower court abused its discretion in granting summary judgment for the defendants without first considering and ruling on plaintiff’s pending motion to amend the complaint. As will be discussed below, we believe that the district court should specifically address plaintiff’s pending motion. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party desiring to amend his pleading after a responsive pleading has been served may do so “only by leave of court ... and leave shall be freely given when justice so requires.” The Rules put forth a liberal policy of permitting amendments in order to ensure determination of claims on their merits. Tefft v. Seward, 689 F.2d 687, 639 (6th Cir.1982). A court’s refusal to grant leave to amend is reviewable under the “abuse of discretion” standard. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1971); Tefft, 689 F.2d at 637-38. An abuse of discretion occurs when a district court fails to state the basis for its denial of a motion or fails to consider the competing interests of the parties and likelihood of prejudice to the opponent. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986). As the Supreme Court stated in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962): [T]he grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. Consistent with these principles, we recently held that it was an abuse of discretion for a district court to dismiss a suit on the basis of the original complaint without first considering and ruling on a pending motion to amend. Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir.1987). In Marks, we stated: Given the policy of liberality behind Rule 15(a), it is apparent that when a motion to amend is not even considered, much less not granted, an abuse of discretion has occurred. The court in Espey [v. Wainwright, 734 F.2d 748 (11th Cir.1984) ] determined that unless the district court’s reasons for dismissing the motions to amend were “readily apparent” the dismissal could not be sustained. 734 F.2d at 750. Because the district court did not consider the motion, we can discern no such “readily apparent” reasons here.... Therefore, we hold that dismissal of the suit based upon the original complaint without first considering the motion to amend was an abuse of discretion. The district court should have evaluated Marks’ motion in light of Fed.R.Civ.P. 15(a) and its liberal policy of amendment. Marks, 830 F.2d at 69-70 (footnote omitted & emphasis added). At the time the district court granted summary judgment for Ford and dismissed Ellison’s complaint, there was pending before the court a motion filed by Ellison’s newly-appointed counsel seeking, among other things, leave to amend the complaint. Although the court had expressly granted Ellison’s new counsel permission to file this motion, the district court never directly addressed the motion. Instead, the court granted summary judgment for Ford without indicating whether plaintiff’s motion was even considered. The district court’s failure to consider and rule on plaintiffs pending motion to amend the complaint was an abuse of discretion. This is not to say that the court was required to grant plaintiffs motion. Rather, as in Marks, we believe the district court should evaluate the pending motion in light of the amendment policy embodied in the Federal Rules and should provide a reasoned explanation for its action. While we recognize that Marks involved the admittedly more compelling situation where the plaintiff sought to amend the original complaint by adding entirely new claims, we believe the district court should nevertheless consider the rationale expressed in Marks, decided after its judgment was made in the instant case. We commend the district court for its willingness to go to great lengths to find an attorney to represent Ellison, as is demonstrated by the fact that the court made three different appointments before it found an attorney to remain with the representation of the case. However, if, as here, appointed counsel felt that certain amendments to the complaint were necessary, the court should have considered and ruled on those requested amendments. Accordingly, we VACATE the judgment of the district court and REMAND for consideration of the motion to amend for the reasons stated. . The motion was styled “Motion to Amend Complaint; Remand Action to State Court and, in the Alternative, to Re-open Discovery." J. App. at 75.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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. OATES. No. 6776. Circuit Court of Appeals, Ninth Circuit. Nov. 3, 1932. Julien A. Hurley, U. S. Atty., and Earnest B. Collins, Asst. U. S. Atty., both of Fairbanks, Alaska. Thomas B. Drayton, of Fairbanks, Alaska, for appellee. Before WILBUR, Circuit Judge, and JAMES.and NORCROSS, District Judges. NORCROSS, District Judge. From an order of the District Court for the Territory of Alaska, Fourth Judicial Division, discharging the appellee from custody upon a hearing upon return to a writ of ha-beas corpus, plaintiff has appealed. The return of the marshal to the writ recited that he was holding the defendant in his custody on a certified copy of judgment rendered by the United States commissioner and ex officio justice of the peace at Mc-Grath, Alaska. It was conceded by both parties to the proceeding that the justice court had jurisdiction of the person of defendant and of the offense charged; that the commitment is in regular form, except that it purports to authorize imprisonment for nonpayment of costs. The main contention of the petitioner was that the trial proceedings were vitiated because of the manner of impaneling and selecting the jury, and therefore all subsequent proceedings were void. From evidence introduced upon the hearing it appears that the jury was drawn in accordance with the provisions of section 2528 of the Compiled Laws of Alaska, and not in accordance with a later act, chapter 100 of the Session Laws of Alaska, 1931, page 178. Section 10 of the last-mentioned act provides: “No case, either civil or criminal, shall be tried in any of the Courts of the Territory of Alaska, except in accordance with the provisions of this Act, and any violation of the provisions of this Act is hereby declared to be reversible error. Provided, however, * * * by consent and agreement of the parties * * * made in writing and signed and filed in the case, a jury shall be drawn or selected in any manner upon which the parties may so agree, '* * * and such drawing or selection shall not be deemed a violation of this Act.” It was the view of the District Court of the territory that, the .justice court of Alaska being a court of inferior and limited jurisdiction, “the record of the latter Court is always open to attack in a habeas corpus proceeding and, when thus challenged, such Court must justify its official acts at any and every stage of the proceedings, by showing, that it acted within its jurisdiction.” Conceding, for the purpose.of the question presented on this appeal, that the commissioner, as ex officio justice of the peace, committed error in the manner of impaneling and selecting the jury which convicted the petitioner, it was an error committed within and not in excess of his jurisdiction. The remedy was by appeal or writ of error, and not by habeas corpus. In appellant’s brief appears the statement- that “but one decision” was found “in which the judgment of a Justice of the Peace is attempted to be reviewed by a writ of ha-beas corpus, and that is in Ex parte Winston, 9 Nev. 71,” and the following from the opinion is quoted: “In the case under consideration, the’ justice of the peace has not exceeded his jurisdiction. By the express provisions of the statute, * * s the justice of the peace has original jurisdiction of the subject matter. It was his duty to decide whether or not the law of 1861 had been repealed by implication or otherwise. In no other way could the question be raised. Such was the subject matter' with which he had to deal. That he had jurisdiction to determine this question cannot be denied. Such being’ the fact, his judgment may be erroneous but it cannot be void. If the justice erred, petitioner has his remedy by appeal to the district eourt. The judgment of the justice is conclusive until reversed. It cannot be reviewed upon habeas corpus.” While the Winston Case, opinion by Justice Hawley, who later became United States District Judge, is one of the first, if not the first, ease dealing with the question as applied to inferior courts of limited jurisdiction, and has been widely cited as an authority on the limitations of proceedings in ha-beas corpus generally, the same question was shortly thereafter presented to the same eourt in the case of Ex parte Edgington, 10 Nev. 215. The opinion in the latter case was by Justice Beatty, who later as Chief Justice of the Supreme Court of California, concurred in two opinions in which relief by ha-beas corpus was held to be inapplicable in eases where a justice court in one instance and a police court in another had denied demands for a trial by jury, the charge in each case being a misdemeanor. Ex parte Miller, 82 Cal. 454, 22 P. 1113; In re Fife, 110 Cal. 8, 42 P. 299. In the Fife Case, last cited, the court quotes with approval the following excerpt from the ease of Ex parte Miller, supra: “The offense charged was not a felony, and a jury might have been waived. The return of the officer to' the alternative writ shows a valid commitment by a eourt having jurisdiction of the subject-matter and of the party. If a jury trial was denied, it was mere error which could not be reached by a writ of habeas corpus.” In the case of In re Newcomb, 56 Wash. 395, 105 P. 1042, 1043, the Supreme Court of Washington, opinion by Chief Justice Rudkin, late senior Circuit Judge of this Circuit, considering the question on habeas corpus of alleged irregularity in the selection of a jury in the superior eourt, said: “Errors and irregularities such as those complained of cannot be inquired into or corrected on an application of this kind. * * 1' ‘A habeas corpus is not a writ of error. It cannot bring a ease before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment of even a subordinate eourt cannot be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it:,is right or wrong. It is conclusively presumed to be right until it is regularly brought up for revision. We decided this three years ago at Sunbury, in a ease which we all thought one of much hardship; but the rule is so familiar, so universally acknowledged, and so reasonable in itself, that it requires only to be stated.’ Passmore Williamson’s Case, 26 Pa. 9, 67 Am. Dec. 374; Ex parte Winston, 9 Nov. 71.” See, also, In re Wilkins, 7 Okl. Cr. 422, 115 P. 1118, 1120; Barton v. Saunders, 16 Or. 51, 16 P. 921, 8 Am. St. Rep. 261; Gil-lenwaters v. Biddle (C. C. A.) 18 F.(2d) 206, 207; 29 C. J. 48. Order reversed.

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?

NGUYEN v. UNITED STATES No. 01-10873. Argued March 24, 2003 Decided June 9, 2003 Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Ginsburg, and Breyer, JJ., joined, post> p. 83. Jeffrey T. Green argued the cause for petitioners. With him on the briefs were Howard Trapp and Rawlen T Manta-nona, both by appointment of the Court, 538 U. S. 920, Carter G. Phillips, and Eric A. Shumsky. Patricia A. Millett argued the cause for the United States. With her on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben. Together with No. 02-5034, Phan v. United States, also on certiorari to the same court. Gordon Rhea filed a brief for Thomas K. Moore as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. These cases present the question whether a panel of the Court of Appeals consisting of two Article III judges and one Article IV judge had the authority to decide petitioners’ appeals. We conclude it did not, and we therefore vacate the judgments of the Court of Appeals. Petitioners are residents of the island of Guam, which has been a possession of the United States since the end of the Spanish-American War. The Navy administered the island, except for the period of Japanese occupation during World War II, until Congress established Guam as an unincorporated Territory with the passage of the Organic Act of Guam in 1950. Pursuant to Congress’ authority under Article IV, § 3, of the Constitution to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” the Organic Act of Guam created a territorial court, the District Court of Guam, and vested it with subject-matter jurisdiction over causes arising under both federal law and local law. Petitioners were tried before a jury, convicted, and sentenced in the District Court of Guam to lengthy prison terms for federal narcotics offenses. Petitioners do not dispute that court’s jurisdiction to conduct their criminal trial and enter judgments of conviction. As authorized by statute, petitioners appealed their convictions to the Court of Appeals for the Ninth Circuit. The panel convened to hear their appeals included the Chief Judge and a Senior Circuit Judge of the Ninth Circuit, both of whom are, of course, life-tenured Article III judges who serve during “good Behaviour” for compensation that may not be diminished while in office. U. S. Const., Art. III, § 1. The third member of the panel was the Chief Judge of the District Court for the Northern Mariana Islands. That court is not an Article III court but an Article IV territorial court with subject-matter jurisdiction substantially similar to the jurisdiction of the District Court of Guam. The Chief Judge of the District for the Northern Mariana Islands, unlike an Article III judge, is appointed by the President and confirmed by the Senate for a term of 10 years, “unless sooner removed by the President for cause.” The highly unusual presence of a non-Article III judge as a member of the Ninth Circuit panel occurred during special sittings in Guam and the Northern Mariana Islands. When the Court of Appeals heard arguments in Guam, the Chief Judge of the Ninth Circuit invited the Chief Judge of the District Court for the Northern Mariana Islands to participate. A judge of the District Court of Guam was similarly invited to participate in appeals heard while the Ninth Circuit sat in the Northern Mariana Islands. The panel affirmed petitioners’ convictions without dissent. 284 F. 3d 1086 (2002). Neither Nguyen nor Phan objected to the composition of the panel before the cases were submitted for decision; neither petitioner sought rehearing after the Court of Appeals rendered judgment to challenge the panel’s authority to decide their appeals. Each did, however, file a petition for certiorari raising the question whether the judgment of the Court of Appeals is invalid because of the participation of a non-Article III judge on the panel. In accordance with this Court’s Rule 10(a), we granted the writ, 537 U. S. 999 (2002), to determine whether the Court of Appeals had “so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s supervisory powers.” Pet. for Cert. in No. 01-10873, p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following reasons, we find these to be appropriate cases for the exercise of that power. II We begin with the congressional grant of authority permitting, in certain circumstances, the designation of district judges to serve on the courts of appeals. In relevant part, the designation statute authorizes the chief judge of a circuit to assign “one or more district judges within the circuit” to sit on the court of appeals “whenever the business of that court so requires.” 28 U. S. C. § 292(a). Section 292(a) itself does not explicitly define the “district judges” who may be assigned to the court of appeals. However, as other provisions of law make perfectly clear, judges of the District Court for the Northern Mariana Islands are not “district judges” within the meaning of § 292(a). Outside of § 292(a), Title 28 contains several particularly instructive provisions. The term “district court” as used throughout Title 28 is defined to mean a “ ‘court of the United States’” that is “constituted by chapter 5 of this title.” § 451. Chapter 5 of Title 28 in turn creates a “United States District Court” for each judicial district. § 132(a) (“There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district”). And “district judge[s]” are established as the members of those courts. § 132(b) (“Each district court shall consist of the district judge or judges for the district in regular active service”). The judicial districts constituted by Chapter 5 are then exhaustively enumerated. § 133(a) (“The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts, as follows [listing districts]”). Lastly, Chapter 5 describes “district judges” as holding office “during good behavior.” § 134(a). Taking these provisions together, § 292(a) cannot be read to permit the designation to the court of appeals of a judge of the District Court for the Northern Mariana Islands. Significantly, the District Court for the Northern Mariana Islands is not one of the courts constituted by Chapter 5 of Title 28, nor is that court even mentioned within Chapter 5. See § 133(a). Because the judges of the District Court for the Northern Mariana Islands are appointed for a term of years and may be removed by the President for cause, they also do not satisfy the command for district judges within the meaning of Title 28 to hold office during good behavior. § 134(a). The Government agrees these statutory provisions are best read together as not permitting the Chief Judge of the Northern Mariana Islands to sit by designation on the Ninth Circuit. The Government maintains, however, that the erroneous designation in these cases was not plainly impermissible because Title 28 does not expressly forbid it or explicitly define the term “district judge” separately from the term “district court.” This contention requires an excessively strained interpretation of the statute. To be sure, a literal reading of the words “district judges” in isolation from the rest of the statute might arguably justify assigning the Chief Judge of the District Court for the Northern Mariana Islands for service on the Court of Appeals, for he is called a “district judge” of a court “within the [Ninth] [Circuit.” But a literal reading of that sort is so capacious that it would also justify the designation of “district judges” of any number of state courts “within” the Ninth Circuit. The statute cannot plausibly be interpreted to authorize the improper panel assignment in these cases. Moreover, we do not read the designation statute without regard for the “historic significance” of the term “United States District Court” used in Title 28. Mookini v. United States, 303 U. S. 201, 205 (1938). “[Without an addition expressing a wider connotation,” that term ordinarily excludes Article IV territorial courts, even when their jurisdiction is similar to that of a United States District Court created under Article III. Ibid. See also Summers v. United States, 231 U. S. 92, 101-102 (1913) (“[T]he courts of the Territories may have such jurisdiction of cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts, but this does not make them circuit and district courts of the United States”); Stephens v. Cherokee Nation, 174 U. S. 445, 476-477 (1899) (“It must be admitted that the words ‘United States District Court’ were not accurately used ... [to refer to] the United States Court in the Indian Territory”). Construing the relevant statutory provisions together with further aid from historical usage, it is evident that Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be “district judges” within the meaning of § 292(a). It necessarily follows that the appointment of one member of the panel deciding petitioners’ appeals was unauthorized. III Although the Government concedes that the panel of the Court of Appeals was improperly constituted, it advances three grounds on which the judgments below may rest undisturbed. Two of the grounds on which we are urged to affirm concern petitioners’ failure to object to the panel’s composition in the Court of Appeals. Relying on the so-called “de facto officer” doctrine, the Government contends petitioners’ failure to challenge the panel’s composition at the earliest practicable moment completely forecloses relief in this Court. The Government also contends that petitioners do not meet the requirements for relief under plain-error review. The presence of a quorum of two otherwise-qualified judges on the Court of Appeals panel is invoked as the third ground sufficient to support the decision below. We do not find these contentions persuasive. The defacto officer doctrine, we have explained, “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U. S. 177, 180 (1995). Whatever the force of the de facto officer doctrine in other circumstances, an examination of our precedents concerning alleged irregularities in the assignment of judges does not compel us to apply it in these cases. Typically, we have found a judge’s actions to be valid de facto when there is a “merely technical” defect of statutory authority. Glidden Co. v. Zdanok, 370 U. S. 530, 535 (1962) (plurality opinion of Harlan, J.). In McDowell v. United States, 159 U. S. 596, 601-602 (1895), for example, the Court declined to notice alleged irregularities in a Circuit Judge’s designation of a District Judge for temporary service in another district. See also Ball v. United States, 140 U. S. 118, 128-129 (1891) (assigned judge had de facto authority to replace a deceased judge even though he had been designated to replace a disabled judge). We observed in McDowell, however, that the judge whose assignment had been questioned was otherwise qualified to serve, because he was “a judge of the United States District Court, having all the powers attached to such office,” and because the Circuit Judge was otherwise empowered to designate him. 159 U. S., at 601. By contrast, we have agreed to correct, at least on direct review, violations of a statutory provision that “embodies a strong policy concerning the proper administration of judicial business” even though the defect was not raised in a timely manner. Glidden, 370 U. S., at 536 (plurality opinion). In American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372 (1893), the ease Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal. This Court succinctly observed: “If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari.” 148 U. S., at 387. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Tur bine Co., 228 U. S. 645 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650. Rather than sift through the underlying merits, we remanded to the Circuit Court of Appeals “so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute.” Id., at 651. See also Moran v. Dillingham, 174 U. S. 153, 158 (1899) (“[T]his court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals to be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges” (emphasis deleted)). We are confronted in petitioners’ eases with a question of judicial authority more fundamental than whether “some effort has been made to conform with the formal conditions on which [a judge’s] particular powers depend.” Johnson v. Manhattan R. Co., 61 F. 2d 934, 938 (CA2 1932) (L. Hand, J.). The difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore the difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all. Like the statutes in William Cramp & Sons, Moran, and American Constr. Co., § 292(a) embodies weighty congressional policy concerning the proper organization of the federal courts. Section 292(a) does not permit any assignment to service on the courts of appeals of a district judge who does not enjoy the protections set forth in Article III. Congress’ decision to preserve the Article III character of the courts of appeals is more than a trivial concern, cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 57-60 (1982) (plurality opinion), and is entitled to respect. The Chief Judge of the Northern Mariana Islands did not purport to have “all the powers attached to” the position of an Article III judge, McDowell, 159 U. S., at 601, nor was the Chief Judge of the Ninth Circuit otherwise permitted by § 292(a) to designate him for service on an Article III court. Accordingly, his participation contravened the statutory requirements set by Congress for the composition of the federal courts of appeals. For essentially the same reasons, we think it inappropriate to accept the Government’s invitation to assess the merits of petitioners’ convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. It is true, as the Government observes, that a failure to object to trial error ordinarily limits an appellate court to review for plain error. See 28 U. S. C. §2111; Fed. Rule Crim. Proc. 52(b). But to ignore the violation of the designation statute in these eases would incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel. See William Cramp & Sons, 228 U. S., at 650. More fundamentally, our enforcement of § 292(a)’s outer bounds is not driven so much by concern for the validity of petitioners’ convictions at trial but for the validity of the composition of the Court of Appeals. As a general rule, federal courts may not use their supervisory powers to circumvent the obligation to assess trial errors for their prejudicial effect. See Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988). Because the error in these cases involves a violation of a statutory provision that “embodies a strong policy concerning the proper administration of judicial business,” however, our exercise of supervisory power is not inconsistent with that general rule. Glidden, 370 U. S., at 536 (plurality opinion). Thus, we invalidated the judgment of a Court of Appeals without assessing prejudice, even though urged to do so, when the error alleged was the improper composition of that court. See United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960) (vacating judgment of en banc Court of Appeals because participation by Senior Circuit Judge was not provided by statute). It is also true that two judges of a three-judge panel constitute a quorum legally able to transact business. Moreover, settled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified. United States v. Allied Stevedoring Corp., 241 F. 2d 925, 927 (CA2 1957) (L. Hand, J.). For two reasons, however, the presence of a quorum on the Ninth Circuit panel does not save the judgments below. First, the quorum statute has been on the books (in relevant part essentially unchanged) for over a century, yet this Court has never doubted its power to vacate the judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960); William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913); American Constr. Co. v. Jacksonville, T & K.W. R. Co., 148 U. S. 372 (1893). Second, the statutory authority for courts of appeals to sit in panels, 28 U. S. C. § 46(b), requires the inclusion of at least three judges in the first instance. As the Second Circuit has noted, Congress apparently enacted § 46(b) in part “to curtail the prior practice under which some circuits were routinely assigning some cases to two-judge panels.” Murray v. National Broadcasting Co., 35 F. 3d 45, 47 (1994). It is “clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate,” ibid., but it is less clear whether the quorum statute offers postjudgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under § 292(a). Thus, although the two Article III judges who took part in the decision of petitioners’ appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners’ appeals by a properly constituted panel organized “eomformably to the requirements of the statute.” William Cramp & Sons, 228 U. S., at 651. Accordingly, we vacate the judgments of the Court of Appeals and remand these cases for further proceedings consistent with this opinion. It is so ordered. See Treaty of Paris, Art. II, 30 Stat. 1755 (1899). 64 Stat. 384. See generally A. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations 313, 323 (1989). See Organic Act of Guam §22, 64 Stat. 389, 48 U. S. C. §1424. “The ‘District Court of Guam’ rather than ‘United States District Court of Guam’ was chosen as the court’s title, since it was created under Art. IV, §3, of the Federal Constitution rather than under Art. Ill, and since § 22 vested the court with original jurisdiction to decide both local and federal-question matters.” Guam v. Olsen, 431 U. S. 195, 196-197, n. 1 (1977) (citing S. Rep. No. 2109, 81st Cong., 2d Sess., 12 (1950)). The Guam Legislature was authorized as well to create local courts and transfer to them jurisdiction over certain cases that otherwise could be heard by the District Court of Guam. See Olsen, 431 U. S., at 200-201 (citing Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F. 2d 952, 959 (CA9 1976) (Kennedy, J., dissenting)). Title 28 U. S. C. § 1294(4) provides: “[Ajppeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows: “(4) From the District Court of Guam, to the Court of Appeals for the Ninth Circuit.” “The District Court for the Northern Mariana Islands shall have the jurisdiction of a District Court of the United States, including, but not limited to, the diversity jurisdiction provided for in section 1332 of title 28 and that of a bankruptcy court of the United States. “The district court shall have original jurisdiction in all causes in the Northern Mariana Islands not described in subsection (a) of this section jurisdiction over which is not vested by the Constitution or laws of the Northern Mariana Islands in a court or courts of the Northern Mariana Islands.” 48 U. S. C. §1822. The text of the statute closely follows the corresponding provisions of the Organic Act of Guam. See S. Rep. No. 95-475, p. 3 (1977). 48 U. S. C. § 1821(b)(1). The District Court for the Northern Mariana Islands is instead established in Chapter 17 of Title 48 (“Territories and Insular Possessions”). See §1821. Alaska, Hawaii, Idaho, Montana, Nevada, and Washington are all States within the Ninth Circuit whose judiciaries include “district judges.” See Alaska Stat. §§22.15.010, 22.15.020, 22.20.010 (2002); Haw. Const., Art. VI, §1; Haw. Rev. Stat. §604-1 (1993); Idaho Const., Art. V, §11; Idaho Code §1-701 (1948-1998); Mont. Const., Art. VII, §§1, 4, 6; Nev. Const., Art. 6, §§5-6; Nev. Rev. Stat. § 1.010 (1995); Wash. Const., Art. IV, §6 (West Supp. 2003); Wash. Rev. Code §§3.30.015, 3.30.030, 3.34.010, 3.66.010 (1988 and West Supp. 2003). Petitioners contend that the participation of an Article IV judge on the panel violated structural constitutional guarantees embodied in Article III and in the Appointments Clause, Art. II, §2, cl. 2, of the Gonstitution. We find it unnecessary to discuss the constitutional questions because the statutory violation is clear. The petitioners in American Constr. Co. challenged the participation of a Circuit Judge who, while sitting as a trial judge, had entered an order closely related to the matter under review in the Circuit Court of Appeals. At the time, the relevant statute governing the composition of the circuit courts of appeals provided that “no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals.” Evarts Act, ch. 517, §3, 26 Stat. 827. The Government seeks to distinguish William Cramp & Sons, Moran, and American Constr. Co. on the ground that the statutory provision at issue in each of those cases, unlike § 292(a), “expressly prohibited” the challenged judge’s participation. Brief for United States 18. In light of our conclusion that there is no plausible interpretation of § 292(a) permitting the designation in the instant cases, see supra, at 74-76; we think this is a distinction without a difference. In any event, there was no “express” prohibition at play in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960), in which this Court vacated the judgment of a Court of Appeals, sitting en banc, because a Senior Circuit Judge who had participated in the decision was not authorized by statute to do so. See also id., at 691 (Harlan, J., dissenting) (“The statute need hardly be read, as the Court now holds it should be, as saying that a case in an en banc court shall be 'heard and determined’ by the active circuit judges”). We agree with the Government’s submission that the improper composition of the court below was “an isolated, one-time mistake.” Brief for United States 5. Countervailing concerns for gamesmanship, which animate the requirement for contemporaneous objection, therefore dissipate in these cases in light of the rarity of the improper panel assignment at issue. “The authority which Congress has granted this Court to review judgments of the courts of appeals undoubtedly vests us not only with the authority to correct errors of substantive law, but to prescribe the method by which those courts go about deciding the cases before them.” Lehman Brothers v. Schein, 416 U. S. 386, 393 (1974) (Rehnquist, J., concurring). Title 28 U. S. C. § 46(d) provides: “A majority of the number of judges authorized to constitute a court or panel thereof . . . shall constitute a quorum.” As used in § 46(d), “quorum . . . means such a number of the members of the court as may legally transact judicial business.” Tobin v. Ramey, 206 F. 2d 505, 507 (CA5 1953). See Act of Mar. 3, 1911, ch. 6, § 117, 36 Stat. 1131: “There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum .. ..” The Evarts Act, which established the original circuit courts of appeals, contained essentially the same provision: “[T]here is hereby created in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum.” Ch. 517, §2, 26 Stat. 826. Title 28 U. S. C. § 46(b) provides, in pertinent part: “In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified ... Unlike the dissent, we believe that it would “3ou[t] the stated will of Congress,” post, at 84 (opinion of Rehnquist, C. J.), and call into serious question the integrity as well as the public reputation of judicial proceedings to permit the decision below to stand, for no one other than a properly constituted panel of Article III judges was empowered to exercise appellate jurisdiction in these cases.

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?

GULF OIL CORPORATION, a Pennsylvania Corporation, Appellant, v. Lydia CHIODO, Appellee. No. 85-2150. United States Court of Appeals, Fourth Circuit. Argued July 15, 1986. Decided Nov. 3, 1986. William E. Galeota (Herbert G. Underwood, Steptoe & Johnson, Clarksburg, W.Va., on brief), for appellant. David J. Straface (S.J. Angotti, Angotti & Straface, Morgantown, W. Va., on brief), for appellee. Before MURNAGHAN and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. HAYNSWORTH, Senior Circuit Judge: This is an action in the diversity jurisdiction for the specific performance of a purchase option contained in the lease of an automobile service station. Upon consideration of cross motions for summary judgment, the district court granted the defendant’s motion, holding that the fixed price purchase option was extinguished by the lessee’s failure to exercise another option of first refusal after the lessor informed it of the receipt from a third party of an offer to purchase for an amount much higher than the fixed price option figure. We conclude the judgment should have gone the other way. I. In October 1965, Mrs. Chiodo and her late husband entered into a lease agreement with American Oil Company upon a printed form prepared by American Oil. The lease was for a term of five years with three five-year renewal options at increasing rental rates. Each of the three renewal options was exercised, and the ultimate expiration date became October 31, 1985. In June 1982, Gulf Oil acquired American Oil’s operations in West Virginia, and succeeded to its rights as lessee of the Chiodo property. The lease contained a “dual-option” provision, the full text of which, in relevant part, is printed in the margin. It gave the lessee the option to purchase the property for $40,000. That option was exercisable at any time during the original term of the lease or any extension of it. There followed a second, first refusal option. It provided that if the lessors received from a third person an offer to purchase their property and the lessors wished to accept it, they must give notice to the lessee that would then have ninety days to acquire the fee by matching the third person’s offer. There then followed a provision that if the lessee did not exercise its first refusal option, “this agreement and all its terms and conditions shall nevertheless remain in full force and effect and Lessor and any purchaser or purchasers of the demised premises ... shall be bound thereby____” In November 1984, the defendant notified Gulf that she had received, and intended to accept, an offer to purchase the property for $121,000. Gulf responded with a notice purporting to exercise its fixed price purchase option and was prepared to pay Mrs. Chiodo $40,000. Upon her behalf, her attorney took the position that the fixed price option had been rendered “null and void” by her earlier notice that she had received and intended to accept an offer to buy the property for $121,000. II. There is no case in West Virginia construing a comparable “dual-option” provision. The courts of that state do apply the usual, general rules of construction. The overriding objective of the court, of course, is to ascertain the intent of the parties. See Bowlby-Harman Lumber Co. v. Commodore Services, Inc., 144 W.Va. 239, 107 S.E.2d 602, 607 (1959). If the language of the contract is unambiguous, it must be enforced according to its terms. See Orteza v. Monongalia County General Hospital, 318 S.E.2d 40, 43 (W.Va.1984). When the bargain made by the parties is clearly apparent, each is entitled to have it performed without alteration. See Wheeling Mold & Foundry Co. v. Wheeling Steel & Iron Co., 62 W.Va. 288, 57 S.E. 826, 832 (1907). The district court reasoned that the parties had intended to create alternative options “of equal stature, each viable until one of them became vested.” Applying this reasoning, the court held that when Gulf received Mrs. Chiodo’s notice in November 1984 that she had received and intended to accept a third person’s offer, Gulf’s first refusal purchase option became vested, and its vesting extinguished the fixed price purchase option. We cannot agree that the conclusion flows from the premise. Gulf’s fixed price purchase option was “vested” from the moment the lease was signed in 1965, but the defendant does not suggest that because the fixed price purchase option was unconditionally exercisable at any time it divested the first refusal purchase option. Notions of vesting have no place in the resolution of this controversy, but if one should pursue that distraction, one would think that preference should be given to the fixed price purchase option which was “vested” from the very beginning. The language of American Oil’s lease form is not the most felicitous, but it unmistakably expresses an intention that the fixed price purchase option should remain viable until final expiration of the lease. That option was made exercisable at “any time during the original term or any extension or renewal therecf.” There is no language in the lease which in any way limits the right to exercise the fixed price option. Moreover, the preparer of the lease went to considerable pains to provide explicitly that if the lessee should decline to exercise its first refusal option the “agreement and all its terms and conditions shall nevertheless remain in full force and effect.” That language cannot be squared with the notion that the defendant's notice to Gulf in November 1984 extinguished one of the principal terms of the lease. No unfairness appears in the enforcement of the lease as written. The case was decided upon cross motions for summary judgment, so the record of surrounding circumstances is sparse, but it is common knowledge that fixed price purchase options in leases are usually at prices substantially higher than the lessor’s notion of the present value of his land. We do know that the lessees in this case did erect substantial improvements upon the land, and a lessee would hardly be expected to erect substantial improvements upon leased land increasing the market value of the entire property above the fixed option price if that option could be extinguished by notice, late in the term, of the lessor’s receipt of an offer from a third person at a much higher figure. In the early days of a long term commercial lease, there is a real possibility that the lessor may wish to sell the property for a price substantially less than the fixed price option. At that time, the flow of rental income, as stipulated in the lease, may be a substantial limitation upon what would otherwise be the market value of the improved real estate unencumbered by a long term lease. There is no reason that the parties to a lease should not be allowed to deal with that situation by giving the lessee a right of first refusal if the lessor wishes to sell for an amount less than the fixed price option. There is no inconsistency between the two options, and the fixed price option remains exercisable notwithstanding that the circumstances contemplated by the first refusal option may arise. The purpose of the inclusion of purchase options in a lease is entirely for the benefit of the lessee. That purpose might enlighten the construction of even an ambiguous document. Crowley v. Texaco, Inc., 306 N.W.2d 871, 874 (S.D.1981); Texaco, Inc. v. Creel, 310 N.C. 695, 314 S.E.2d 506, 510 (1984). III. There are a number of cases construing dual option provisions somewhat resembling this one, but any division in their legal constructions is generally “more apparent than real.” Green v. Sprague Ranches, 170 Cal.App.2d 687, 339 P.2d 607, 610 (1959). The result seems to turn upon “the particular language used in the leases and the circumstances in which enforcement is sought.” See Conroy v. Amoco Oil Co., 374 So.2d 561, 564 n. 2 (Fla.Dist.Ct.App.1979). There are three cases construing leases with identical provisions to this one. In Amoco Oil Co. v. Snyder, 505 Pa. 214, 478 A.2d 795 (1984), and American Oil Co. v. Ross, 390 So.2d 90 (Fla.Dist.Ct. App.1980), the courts construed the dual option provision as we do. In Amoco Oil Co. v. Kraft, 89 Mich.App. 270, 280 N.W.2d, 505, 507 (1979), the court’s conclusion is seemingly different. We disagree with its analysis, but there were present in Kraft extraordinary equitable considerations militating against enforcement of the fixed price option. In Kraft, the third person had actually purchased the property for a price considerably greater than the fixed purchase option price, and the lessee waited a number of years before attempting to exercise its option. In this case, no innocent third party stands to suffer a loss, and Gulf Oil was prompt in its attempt to exercise its fixed price option. IV. The court may feel some sympathy for Mrs. Chiodo who now is to receive less for her property than its present market value appears to be. To some extent at least, that may be a consequence of improvements erected by the lessees. To what extent that is so, one cannot say on this record, but there is no suggestion of overreaching by American Oil in the negotiation of the lease in 1965. Mrs. Chiodo and her husband made their bargain and now must abide by it. REVERSED. Lessee shall have ... the option of purchasing [the] ... premises for the sum of [$40,000], provided Lessee shall give Lessor notice in writing of its election to exercise said option ... any time during the original term or any extension or renewal therecf. If any part of the demised premises ... shall be taken by the right of eminent domain ... the purchase price set forth herein, if the purchase option is exercised, shall be reduced in the same proportion____ It is further agreed that should Lessor, or Lessor’s heirs, executors, grantees, successors or assigns, at any time during the term of this lease or any extension thereof, receive an offer to purchase the demised premises ... and desires to accept said offer, or should Lessor during any such time make an offer to sell the demised premises ... Lessor shall give Lessee [90] days' notice in writing of such offer, setting forth ... all ... terms and conditions of such offer, and Lessee shall have the first option to purchase the premises which are the subject of the offer by giving written notice to Lessor of its intention to purchase within said (90) day period, at the same price and on the same terms of any such offer, it being understood that in the event Lessee does not give notice of its intention to exercise said option to purchase within said period, this agreement and all of its terms and conditions shall nevertheless remain in full force and effect and Lessor and any purchaser or purchasers of the demised premises ... shall be bound thereby, and in the event that the premises set forth in the offer are not sold for any reason, Lessee shall have, upon the same conditions and notice, the continuing first option to purchase the demised premises ... upon the terms of any subsequent offer or offers to purchase.

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?

COURIER-CITIZEN COMPANY, Plaintiff, Appellant, v. BOSTON ELECTROTYPERS UNION NO. 11, INTERNATIONAL PRINTING & GRAPHIC COMMUNICATIONS UNION OF NORTH AMERICA, Defendant, Appellee. No. 82-1181. United States Court of Appeals, First Circuit. Argued Sept. 17, 1982. Decided March 14, 1983. David J. Rosen, New York City, with whom Clifton, Budd, Burke & DeMaria, New York City, was on brief, for appellant. Mark G. Kaplan, Boston, Mass., with whom Kaplan & Riley, Boston, Mass., was on brief, for appellee. Before DAVIS, CAMPBELL and BREYER, Circuit Judges. Of the Federal Circuit, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. Courier-Citizen Company (the “Company”) brought suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976) to vacate an arbitration award in favor of the Boston Electrotypers Union No. 11 (the “Union”). The Union counterclaimed for enforcement. The United States District Court for the District of Massachusetts refused to vacate and entered judgment enforcing the award. The Company appeals. I. In May 1975, after installing labor-saving technology at its plant in Lowell, Massachusetts, the Company laid off several journeymen electrotypers represented by the Union. It was agreed the layoffs should be in reverse order of seniority, but there was disagreement as to how to compute seniority. Grievances involving that question went to arbitration before Robert Stutz. Shortly after the layoffs, the Company hired one of the laid off journeymen, Richard Grant, to fill a vacant non-unit laborer’s position. Grant was junior among the laid-off journeymen, and the Union grieved his hiring as a laborer, asserting that the collective bargaining agreement required the Company to offer vacant laborers’ positions to laid-off journeymen in order of the journeymen’s unit seniority. At the arbitration of this grievance before Professor Hogan, the parties framed the issues as follows: 1. Is the matter arbitrable? 2. Did the Company violate the contract by placing Richard Grant in a laborer’s job on June 23,1975? If so, what shall be the remedy? On February 12, 1976 Professor Hogan made an initial finding (Hogan I). Holding the matter- to be arbitrable, Hogan sustained the Union’s claim that the laborer’s job should have gone to the senior journeyman on layoff status, not to the more junior Grant. Hogan, however, did not yet know who was the most senior journeyman as all issues pertaining to bargaining unit seniority had not yet been resolved by arbitrator Stutz. Hogan accordingly did not direct the Company to recall a particular individual nor did he make a back pay award. Instead, he ordered the Company to “offer that Laborer’s job to the senior journeyman who was on layoff status on [June 23,1975], including in this determination the effect, if any, of the Stutz award.” Hogan also ordered that the senior journeyman “be made whole for the difference between what he would have received had he been on the job instead of Richard Grant (at Grant’s hourly rate) and such monies, if any, earned by him elsewhere during the hours Grant was on the job.” Finally, Hogan retained jurisdiction “to resolve any unresolved disputes between the parties on the selection and/or backpay questions.” The Company did not then object to Hogan’s retention of jurisdiction. Six months later, &h July 26, 1976, arbitrator Stutz resolved the relevant seniority issue in a ruling that identified Gerald Kennedy as the senior journeyman on layoff status at the time the Company had recalled Richard Grant. The Union thereupon insisted that the Company offer the laborer’s job and back pay to Kennedy. The Company refused. It contended (as it had before Hogan) that the contract provision requiring it to fill vacant laborer positions with laid-off journeymen was illegal, and it noted that it had filed a charge to this effect with the National Labor Relations Board. In September 1976 the Union asked Professor Hogan to reopen the arbitration under the provision in Hogan I retaining jurisdiction. The Company strenuously objected and notified Hogan that it would not participate in the hearing. Hogan proceeded nonetheless. After conducting an ex parte hearing, he rendered a decision on March 3, 1977 (Hogan II), awarding $7,600 in back pay to Gerald Kennedy. This amount equaled the wages Kennedy would have earned between June 23,1975 (the date of Grant’s improper recall as a laborer) and April 26, 1976 (the date Kennedy accepted a position with the Den-nison Manufacturing Company in mitigation of his losses). Kennedy had obtained the position with Dennison, a company with which the Courier-Citizen Company had no relationship, when Dennison requested the Union to refer an available member to fill a vacant position. Adhering to its policy of allocating benefits according to seniority, the Union referred Kennedy to fill the job at Dennison. In Hogan II the arbitrator also ordered the Company to pay $7,600 to a second laid-off journeyman — Thomas Sparks. This amount corresponded to the amount Kennedy earned at Dennison from April 26, 1976 to January 31,1977, the date Kennedy was placed in the laborer’s job. The award to Sparks rested on the premise that the Company’s failure to reinstate Kennedy promptly precluded Sparks’s referral to Dennison as the next most senior journeyman. II. We consider first the Company’s argument, rejected by the Regional Direction of the Board, see note 4, supra, that the contract provision requiring laid-off journeymen to be hired for vacant laborers’ positions, see note 2, supra, violates the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the “Act”). Two facts are central to the Company’s argument. First, the Union was certified as the exclusive collective bargaining representative of the journeymen, but it had no right to represent the Company’s laborer employees. Second, the collective bargaining agreement that the Union negotiated with the Company on behalf of the journeymen contained a union security clause requiring newly hired journeymen to join the Union within 30 days of the commencement of employment. This clause ensured, as a practical matter, that journeymen laid off by the Company would all be members of the Union. Thus, the disputed recall provision is said to require the Company to fill non-unit laborer’s jobs with members of the journeyman printers’ local before considering non-union applicants. The Company now argues that, by placing its members in laborers’ jobs, the Union has illegally extended its representational rights beyond the bargaining unit it has been certified to represent. This supposed attempt to represent non-unit employees is said to amount to a failure to bargain in good faith, in violation of section 8(b)(3) of the Act. See Sperry Systems Management Division v. NLRB, 492 F.2d 63, 68 (2d Cir.), cert, denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974). In Sperry, the Union sought to compel the employer to pay the higher wages and benefits, and to observe certain job security rules found in the Union’s New York collective bargaining agreement, to technicians employed at a non-unit plant in California. The Second Circuit ruled that the Union’s activities amounted to a sub rosa attempt to become the de facto bargaining agent of the non-unit employees, and this violated section 8(b)(3). Id. at 68-69. The Company argues that, like the union in Sperry Systems, the printers’ local has attempted to extend the terms of its collective bargaining agreement to employees outside its bargaining unit. Here, however, neither the contract provision itself nor Professor Hogan’s award attempts to apply the terms and conditions outlined in the Union’s collective bargaining agreement to non-unit employees. The disputed clause merely gives priority to laid-off unit employees in obtaining other employment at the Company. The clause is thus addressed to the economic interests of unit employees. Indeed, the collective bargaining agreement specifies that journeymen hired as laborers will be paid at the prevailing laborers’ rate; the arbitrator’s back pay award to Kennedy was based on the wages he would have earned as a laborer, not as a journeyman. The recall clause, therefore, works no enlargement of the Union’s representational rights. In fact, under pressure of an unfair labor practice charge brought by Richard Grant soon after he was recalled to fill the laborer’s job, the Union discontinued efforts to exact Union dues from Grant. The Union was apparently persuaded that it had no right to continue to represent a former unit member who had ceased to be such. The Company also contends that the preference given laid-off journeymen when hiring laborers illegally discriminates on the basis of Union affiliation. The Company reads the disputed clause as though requiring it to fill non-unit jobs with members of the journeymen printers’ local. It argues that such discrimination interferes with the section 7 rights of employees to refrain from engaging in concerted organizational activity. See 29 U.S.C. § 157. Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization to “restrain or coerce employees in the exercise of rights guaranteed in section 157,” 29 U.S.C. § 158(b)(1)(A), and section 8(b)(2) makes it illegal “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) (prohibiting employers from encouraging or discouraging Union membership).” 29 U.S.C. § 158(b)(2). There is, however, a clear distinction between a union’s lawful efforts to obtain benefits for the employees it represents and prohibited discriminatory activities. Many of the benefits a union secures from employers — such as access to grievance procedures, wage increases, and pension benefits — tend to encourage union membership, but they do not violate section 8(b)(2). See Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 675-76, 81 S.Ct. 835, 839-40, 6 L.Ed.2d 11 (1961). It is when a union encourages membership by discriminating against employees who have exercised their right to refrain from membership that a violation occurs. See Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. at 676, 81 S.Ct. at 840; Radio Officers’ Union v. NLRB, 347 U.S. 17, 43, 74 S.Ct. 323, 337, 98 L.Ed. 455 (1954); NLRB v. Local 483, International Association of Bridge Ironworkers, 672 F.2d 1159, 1164 (3d Cir.1982); NLRB v. New York Typographical Union, 632 F.2d 171, 181 (2d Cir.1980). The contractual preference in issue does not discriminate on the basis of Union affiliation as such. Every member of the journeyman printers’ bargaining unit is entitled to the preference without regard to Union status. The collective bargaining agreement distinguishes among these employees not on the basis of their Union status but rather on the basis of their seniority. The preference for laid-off journeymen does, it is true, disadvantage other prospective laborer applicants by reducing the available positions. But the granting of any economic benefit to a unionized group will often diminish the pool of jobs and benefits available for others. Limiting ourselves to the facts in this record, it is not clear to us that granting former employees this sort of priority to jobs in the same company is unreasonable or inconsistent with sound labor policy. The Regional Director apparently saw nothing objectionable, and nothing has been called to our attention which would presently lead us to classify this benefit as one which employees are forbidden to obtain in the collective bargaining process. We therefore reject the Company’s contention that the disputed clause violated section 8(b)(2) or related provisions. III. Contending that Professor Hogan lacked authority to issue the second phase of his award, the Company argues that the district court erred in refusing to vacate Hogan II in its entirety. The Company bases its argument on the common law rule that when “arbitrators have executed their award and declared their decision they are functus officio and have no power or authority to proceed further.” Mercury Oil Refining Co. v. Oil Workers International Union, 187 F.2d 980, 983 (10th Cir.1951). The functus officio doctrine, which literally refers to the exhaustion of the arbitrator’s function, was strictly applied at common law to preclude an arbitrator from vacating, modifying, supplementing, or correcting his award. See Annot., 104 A.L.R. 710 (1936). The doctrine rested in part on the view that arbitrators — as creatures of contract — were limited to deciding the dispute placed before them by the parties, and in part on the courts’ hostility towards arbitration as a mechanism to resolve disputes. In fashioning a substantive law of labor relations pursuant to section 301 of the Labor Management Relations Act, see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957), the federal courts have refused to apply the strict common law rule of functus officio. It is now established that courts may order an incomplete award resubmitted to the original arbitrator. In United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358,4 L.Ed.2d 1424 (1960), the arbitrator awarded back pay to eleven discharged employees, but he failed to determine the amount of wages the employees had earned in mitigation of their losses. In upholding resubmittal, the Fourth Circuit said that “the rule forbidding the resubmission of a final award, which was developed when the courts looked with disfavor upon arbitration proceedings, should not be applied today in the settlement of employer-employee grievances.” Enterprise Wheel & Car Corp. v. United Steelworkers, 269 F.2d 327, 332 (4th Cir.1959), aff’d in relevant part, 363 U.S. at 599, 80 S.Ct. at 1362. In Local 2222, International Brotherhood of Electrical Workers v. New England Telephone & Telegraph Co., 628 F.2d 644 (1st Cir.1980), this court similarly upheld an order of the district court remanding a dispute to the board of arbitration that had issued the original award. While conceding that a federal court may order an incomplete award resubmitted to the original arbitrator, the Company contends that Professor Hogan’s initial award conclusively resolved all of the issues submitted and was therefore complete. This, however, is simply not so, as Hogan clearly recognized at the time. Hogan was unable to identify the most senior journeyman or to specify the amount of back pay to which that person would be entitled. Recognizing that he lacked the information to issue a complete award, Hogan sketched the outlines of an appropriate remedy. After Stutz issued his clarification, Hogan I remained incomplete in the absence of voluntary implementation. It failed to identify Kennedy or to specify the remedy in definite terms. Thus, Hogan I suffered from precisely the same incompleteness that led this court in New England Telephone and the Supreme Court in Enterprise Wheel & Car to resubmit the dispute to the original arbitrator. The Union had evidently anticipated this difficulty when it had requested Hogan to retain jurisdiction at the time he issued Hogan I. When it became clear that the Company would not voluntarily comply with the remedy described but not fleshed out in Hogan I, the Union requested Hogan to reopen the proceeding and issue a definitive award. Properly viewed, therefore, the award to Kennedy in Hogan II supplements or completes the initial award; it does not displace it. We find nothing in the cases the Company cites that suggests that this sensible, efficient procedure runs afoul of the func-tus officio doctrine. In Mercury Oil Co. v. Oil Workers International Union, 187 F.2d 980, and in Indigo Springs, Inc. v. Hotel Trades Council, 59 L.R.R.M. 324 (N.Y.Sup. Ct.1965), the courts struck down a second award that substantially modified the arbitrator’s first award. And in Parker v. Mercury Freight Lines, Inc., 307 F.Supp. 789 (N.D.Ala.1969), the court held that the arbitrator lacked authority to vacate his initial award. In each of these cases, the arbitrator issued a second award fundamentally inconsistent with the first award. They are plainly inapposite here, where the second award simply fleshed out the remedy announced initially. The Company seems to contend that Hogan could not reopen absent a court order specifically granting him authority to do so. While it may be prudent on some occasions for an arbitrator to obtain such an order before reopening an award, see F. Elkouri & E. Elkouri, How Arbitration Works 240-241 n. 240 (3d ed. 1973), the Company has failed to cite any recent judicial decision vacating a supplementary award in a case where, as here, the arbitrator had sua sponte reopened an incomplete award in appropriate circumstances. To force the parties to return to the arbitrator to obtain an award identical to the one vacated would simply undermine arbitration as a mechanism for resolving labor disputes cheaply and efficiently. See O. Fairweather, Practice and Procedure in Labor Arbitration 350 (1973). We thus reject the Company’s argument that the functus officio doctrine requires vacation of Hogan II insofar, at least, as Kennedy is concerned. IV. Apart from the functus officio argument, the Company challenges Hogan II on the ground that it was a gross abuse of arbitral discretion. The Company points to Professor Hogan’s order in Hogan I that it reinstate the senior laid-off journeyman, “including in this determination the effect, if any, of the Stutz award.” The Company argues that Hogan contradicted this instruction by later ignoring critical aspects of the Stutz award. In the Stutz award, Stutz found that Kennedy would never have been laid off but for the Union’s incorrect assessment of his seniority. See note 3, supra. As a result, Stutz refused to order the Company to pay back wages to Kennedy on the theory that any loss he suffered was attributable to the Union’s conduct alone. After the Hogan proceeding was reconvened, the Company argued that the Stutz award established the Union’s responsibility for Kennedy’s improper layoff. But for the Union’s error, Kennedy would have still been employed as a journeyman when Grant was recalled; thus, the Company argued that the Union should reimburse Kennedy for wages lost by reason of the Grant hiring. Hogan refused to adopt the Company’s interpretation of his prior reference to the Stutz proceeding, however. In Hogan’s view, the Stutz proceeding was relevant only insofar as it identified Gerald Kennedy as the senior laid-off journeyman. He based his decision on the distinction between the two proceedings. The parties had requested Stutz to determine the propriety of Kennedy’s layoff. Hogan, however, was charged with fashioning an award to remedy the Company’s wrongful recall of Grant to fill a non-unit position. Viewing the cases and the back pay issues as different, Hogan refused to extend the rationale of the Stutz decision to foreclose a back pay remedy for Kennedy. Courts have generally refused to rule on the precedential effect of an arbitration award on future awards, taking the position that the question is properly resolved through arbitration. See Oil Workers International Union v. Rohm & Haas, Texas, Inc., 677 F.2d 492, 494 (5th Cir.1982) quoting New Orleans Steamship Association v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir.1980), aff’d sub nom., Jacksonville Bulk Terminals, Inc. v. International Association of Longshoremen,U.S. -, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Westinghouse Elevators of Puerto Rico, Inc. v. S.I.U. de Puerto Rico, 583 F.2d 1184, 1186-87 (1st Cir.1978). Absent a contractual provision to the contrary, an arbitrator is free to decide that rigid adherence to a prior award would impair the process of flexibly resolving current or future disputes. Riverboat Casino, Inc. v. Local Joint Executive Board of Las Vegas, 578 F.2d 250, 251 (9th Cir.1978). Here there was no contract provision governing the application of prior awards to future disputes. Hogan was free to bring his own judgment to bear on the question, and we decline to disturb the district court’s decision enforcing the award to Kennedy. V. We next consider the back pay award to Thomas Sparks. Professor Hogan justified this as making up for losses incurred when the Company failed to comply with his award. Hogan I, issued in February 1976, had directed the Company to offer the laborer’s job to the most senior laid-off journeyman (although at this time Hogan himself did not know who that was). The Stutz award, identifying Kennedy as the senior man, did not come out until July 26, 1976. By then, Kennedy was already employed at the Dennison Company, in a job obtained in April 1976 pursuant to referral from the Union. Since Kennedy, as later confirmed, was the most senior journeyman, he received the Dennison job ahead of Thomas Sparks, the next most senior laid-off journeyman. Professor Hogan awarded Sparks what Sparks would have received at Dennison had he, not Kennedy, been given the Dennison job starting in April 1976 and running through January 1977 when Kennedy left Dennison to become a laborer at the Company. Hogan justified this on the ground that “Had the Company complied with the arbitrator’s award and placed Kennedy on the laborer’s job, the person who would have been referred to the Dennison job pursuant to the Union’s referral procedure and agreement with the Company would have been Sparks.” We have some difficulty with this formulation. The record would indicate that Kennedy was not confirmed as the most senior journeyman until the Stutz award of July 26, 1976. If the award to Sparks was intended to make up for the Company’s stubbornness in refusing to abide by Hogan I, we do not see how it could have been expected to act until after the Stutz award came down in July. Yet Sparks was awarded back pay from April — a time when it was still unclear, officially at least, who was the senior journeyman. The problem with the Sparks award is even more fundamental than this, however. While an arbitrator has broad power to fashion remedies on issues the parties have empowered him to resolve, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. at 1361; Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1050 (1st Cir.1977), he lacks authority to decide questions the parties have not agreed to submit to him. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 597-98, 80 S.Ct. at 1361; Piggly Wiggly Operators Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, Local 1, 611 F.2d 580, 584 (5th Cir.1980); Textile Workers Union v. American Thread Co., 291 F.2d 894, 897 (4th Cir.1961). Courts will not enforce awards exceeding the authority conferred in the submission. See, e.g., Retail Store Employees Union Local 782 v. Sav-On Groceries, 508 F.2d 500, 503 (10th Cir.1975). We are unable to locate authority for the Sparks award in the parties’ submission agreement. The submission agreement posed the question: “Did the Company violate the contract by placing Richard Grant in the laborer’s job .... If so, what shall be the remedy?” Thereafter, in Hogan I, the arbitrator ruled that the Company had violated the contract by putting Grant in a laborer’s job, directed that the senior journeyman in layoff status be offered the job, and further directed that the latter be made whole. Neither the original submission nor Hogan I suggested that back pay for some other employee was to be involved in the arbitration. The Union first presented the Sparks claim to Hogan at the ex parte hearing that took place well after the issues framed in Hogan I had been explored and largely resolved by the arbitrator. While the Company can be held accountable for Kennedy’s losses resulting from its failure to comply promptly with Hogan I, the award to Kennedy differs critically from the award to Sparks. Hogan’s finding that the Company violated the collective bargaining agreement in failing to recall Kennedy was squarely within the submission. The wages Kennedy lost when the Company failed to comply with Hogan I had their genesis in Hogan’s finding of an initial breach. But any link between the wages Sparks lost at Dennison and the terms of the collective bargaining agreement is far more attenuated. Indeed, if Sparks’s lost opportunity at Dennison can be traced to the agreement at all, it raises a separate issue, distinct from that in the original submission, which should be separately grieved. It is true that the back pay awarded in International Union of Electrical Workers v. Peerless Pressed Metal Corp., 489 F.2d 768, 769 (1st Cir.1973), was a remedy not expressly stated in the submission agreement. But in Peerless we implied, as within the contemplation of the parties, a back pay remedy widely and commonly employed by arbitrators. F. Elkouri & E. Elkouri, How Arbitration Works 243-44 (3d ed. 1973). By contrast, it cannot be said that the parties normally suppose that an arbitrator will fashion a remedy similar to the Sparks award involving a third person whose job was never initially placed in issue at all. Rather the parties typically assume that the arbitrator will limit his award of damages to the employees directly harmed by the employer’s breach of the submitted provision of the collective bargaining agreement. Thus, there is merit to the Company’s claim that it was unfairly surprised by the award to Sparks. When the Company determined that it would not participate in Hogan II, it presumably believed that it risked only the adumbration of the remedy outlined in Hogan I. Had it known that an award to Sparks was at stake, the Company may have appeared to contest the matter. We consider one final argument in favor of enforcing the award to Sparks. Such an award, it could be argued, would encourage voluntary compliance with an arbitrator’s ruling, thereby curtailing delaying tactics that may threaten to undermine the finality of arbitration awards. Our decision, however, does not foreclose the remedies normally available when a party refuses to comply with an enforceable award. These remedies include an award of attorneys’ fees when a party “without justification” contests an enforceable award. See, e.g., International Association of Machinists v. Texas Steel Co., 639 F.2d 279, 283 (5th Cir.1981); International Union of Electrical Workers v. Peerless Press Metal Corp., 489 F.2d at 769. Nor does our opinion preclude an employee like Sparks from initiating a grievance claiming compensation for a loss caused by the Company’s wrongful delay, although we express no opinion as to whether such a grievance would lie within the provisions of the contract. But, in any case, the arbitrator exceeded his mandate here. We vacate the district court’s judgment enforcing the award to Sparks and remand the case with directions that the district court vacate the award to Sparks. In all other respects, we affirm the district court’s judgment. Affirmed in part; vacated in part and remanded. . Under the terms of the collective bargaining agreement,- a grievance is defined as “any difference between the Employer and the Union or its members.” The grievant here was the Union, not a particular employee. . The contractual dispute centered around three provisions of the collective bargaining agreement. Section 14.01 provides that “[i]n case of the reduction of the force, layoffs are to be made in reverse order of priority. Men laid off shall be rehired in priority.” Section C.07 provides that “if there are one or more Journeymen who are laid off and available and if the Company desires to fill the laborer’s job(s), ... then such laid off Journeymen(man) will be used in the laborer’s job(s).” Section C.08 provides that “[w]hile employed as laborers, such Journeymen will be paid the then current rate for laborers.” The Company does not now challenge the arbitration award insofar as it sustains the Union’s contention that these provisions require it to hire the senior journeyman on layoff status to fill a laborer vacancy. . Stutz refused, however, to require Kennedy’s reinstatement as a journeyman, finding that it was the Union’s — not the Company’s — fault that his seniority was miscalculated. It seems that when the Company decided in May 1975 to lay off journeymen, the Union had insisted that its own erroneous seniority list rather than the Company’s correct one be followed in determining which employees were to be retained. . The Company had filed a charge with the Regional Director of the Board on May II, 1977 alleging that the Union’s attempts to enforce the contract provision requiring the Company to recall journeymen to fill laborer’s jobs violated the sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(1)(A), (b)(2). The Regional Director declined to issue a complaint and the Company unsuccessfully appealed this refusal through administrative channels. The Company raises a similar statutory argument here, which we consider below. . Kennedy accepted a laborer’s position on January 31, 1977 terminating the Company’s back pay liability. Hogan thus had no occasion to rule on the issue of reinstatement. . It is, of course, the Board, not the courts, which has primary jurisdiction to determine what is and is not an unfair labor practice, and to provide affirmative remedies. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). Nonetheless, as the federal courts may not enforce a contractual provision that violates section 8 of the Act, they may be obliged at times, in the course of resolving a contract dispute, to decide whether or not such a violation exists. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 86, 102 S.Ct. 851, 860, 70 L.Ed.2d 833 (1982). The Union argues that we should not reach the merits of the instant unfair labor practice claim because the Regional Director has already considered the charge and refused to issue a complaint. See note 4, supra. The Union argues that his refusal was tantamount to Board rejection of the Company’s present claim. However, it has been held that the Regional Director’s refusal to issue a complaint does not collaterally estop the charging party from litigating the matter in a later suit under section 301. See Edna H. Pagel, Inc. v. Teamsters Local 595, 667 F.2d 1275, 1280 n. 12 (9th Cir. 1982) (collecting cases). We therefore consider the merits of the Company’s unfair labor practice claim. . To be sure, because of the union security clause, all journeymen will be Union members, but Congress has specifically authorized such clauses. See 29 U.S.C. § 158(a)(3). The point is, the rehire preference is a bargained-for economic benefit bestowed on all unit members without discrimination. . In addressing the Company’s argument that Hogan was functus officio, we consider only Hogan’s authority to reconvene the proceeding to clarify his prior award to Gerald Kennedy. We take up the Company’s challenge to Hogan’s award to Thomas Sparks in a later section of this opinion. See Part IV, infra.

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"?

UNITED BENEFIT FIRE INSURANCE COMPANY OF OMAHA, NEBRASKA, Appellant, v. UNITED STATES of America, Appellee. No. 17689. United States Court of Appeals Ninth Circuit. July 25, 1962. R. D. Merrill and W. F. Merrill, Poca-tello, Idaho, for appellant. Sylvan A. Jeppesen, U. S. Atty., and Jim Christensen, Asst. U. S. Atty., Boise, Idaho, for appellee. Before HAMLIN and DUNIWAY, Circuit Judges, and ROSS, District Judge. HAMLIN, Circuit Judge. James L. Whalen was charged in an indictment filed in the United States District Court for the District of Idaho, Eastern Division, with violations of the VvOiite Slave Traffic Act, 18 U.S.C.A. § 2421 et seq. His bail was fixed in the sum of $10,000. United Benefit Fire Insurance Company executed a surety bond in the sum of $10,000 in the usual form which provided for the appearance of Whalen during the prosecution of the action against him. On the filing of such bond Whalen was released on bail. On May 17, 1961, when his ease was called, Whalen did not appear in court. His counsel was there, and stated that he was unable to locate Whalen. The case was continued to May 18, 1961, and upon the failure of the defendant to appear at that time it was continued to May 19, 1961, at which time the government’s motion to forfeit the bail bond was granted. Counsel for appellant was present in court on May 19, when the order forfeiting the bond was made, and he moved for an order continuing the cause which motion was denied. Whalen was located in Mexico City about May 23 through the agencies of the United States Government. Shortly thereafter he surrendered himself to the custody of the United States officials at San Antonio, Texas, and was then transported to the county jail at Pocatello, Idaho, where the Eastern Division of the United States District Court for the District of Idaho convenes. On May 29, 1961, the government moved for the entry of judgment in favor of United States against appellant in the sum of $10,000. Hearing of said motion was set before the district court for June 27, 1961. Counsel for the bonding company did not appear and the matter was continued to June 28 at which time counsel for appellant was present. On June 28 judgment was entered against appellant in the sum of $10,000. On September 5, 1961, Whalen pleaded guilty to two counts of the indictment filed against him and he was sentenced to imprisonment for a total of five years. Appellant filed a petition for the remission of the forfeited bail bond, accompanying said petition with certain affidavits. On September 11, 1961, when this petition came before the district court, it was ordered denied in its entirety. Appellant timely filed an appeal to this court from the order of the district court denying the remission of the forfeited bail bond. This court has jurisdiction under 28 U.S.C.A. § 1291. Rule 46 of the Federal Rules of Criminal Procedure 18 U.S.C.A., provides in reference to the forfeiture of bail bonds in part as follows: “(f) Forfeiture. “(1) Declaration. If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail. “(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. “(3) Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. * * * “(4) Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.” On this appeal appellant contends that the district court abused its discretion in refusing to remit the forfeited bail bond and in refusing to hold that justice did not require enforcement of the entire forfeiture. Appellant contends it had no notice of the date when Whalen was to appear in court and when it was informed on May 17, 1961, that he did not appear it made “every diligent effort to ascertain the facts surrounding said failure and to determine the whereabouts of the said defendant; numerous telephone calls were made, personal trips were made to interview the wife of the defendant and his associates, request was made for fingerprints and a reward posted and wanted circulars printed.” No contention was made, however, that it actually paid any reward, that through its efforts Whalen was located in Mexico City or that it provided any funds for his return from Mexico City to San Antonio, Texas, and then to Idaho. It was shown that on April 20, 1961, notice that the cause had been set for further hearing on May 17, 1961, was given to Whalen’s attorney and that he had so informed Whalen. There was no showing by appellant that in Idaho there was any custom or practice whereby sureties were notified of the date when defendants are to appear. In fact, the comments of the district judge indicated that no such custom or practice existed. The language in Rule 46 provides that the court “may” direct a forfeiture and that after entry of judgment the court “may” remit it in whole or in part. The rule gives discretion to the district court. As stated in Larson v. United States, 296 F.2d 167, 170 (8th Cir. 1961), “It is only where there has been an abuse of discretion that an appellate court may set aside the action of the District Court denying the remission of a forfeiture.” In Larson the court quoted from United States v. Davis, 202 F.2d 621, 624 (7th Cir. 1953), where the court said, “We must keep in mind that the discretion is to be exercised by the district court and not by a court of review. This court should not substitute its discretion for that of the district court.” See also Stanton v. United States, 15 Alaska 673, 226 F.2d 822 (9th Cir. 1955). Appellant contends that the facts of this case are “strikingly similar” to those in Dudley v. United States, 242 F.2d 656 (5th Cir. 1957) and Smaldone v. United States, 211 F.2d 161 (10th Cir. 1954), in which cases the courts of appeals reversed judgments of the district courts which held against the bondsmen. We do not so regard these cases. In Dudley the two defendants, Dudley and Londos, were on bail, and the trial had been set for March 12, 1956. On February 1 the sureties were notified to produce the defendants by February 3. On February 3 neither defendant was present. The bond was forfeited as to Dudley although prior to the forfeiture Dudley had been arrested on a bench warrant and was in custody in another city in the state, and the court was informed of this fact. The other defendant, Lon-dos, did not appear. The matter was continued to February 10 and then to February 17. On February 17 Londos’ attorney advised the court that Londos was in California and would appear in a few days. The bond was forfeited. Londos voluntarily surrendered on February 21. The defendants were brought to trial on March 12th, the date originally scheduled. The court of appeals emphasized that the case was tried as scheduled and both Londos and Dudley were convicted at no additional expense or delay to the government. Stating that all the objects and purposes of the recognizances were effected as to the defendants, the court held that remission should have been granted, justice not requiring forfeiture. In Smaldone the facts were more dissimilar to the facts of the instant case than were the facts of Dudley. There, the case was set for trial on June 2,1953. On the preceding Wednesday Smaldone, a chronic sufferer from gall bladder trouble for about six years, was advised by a physician to be hospitalized on June 1, the day before trial. His symptoms seeming aggravated, he actually entered the hospital on May 31, one day early. Attorneys for defendant moved for a continuance on June 1 which was denied. Defendant’s physician felt that he was not in condition to come to trial, but after some consultation with the doctor, the judge ordered the defendant brought to court. The trial which had been set for 9:30 a. m. was unable to proceed until 11:15 a. m. During that morning the defendant was apparently in discomfort, and defendant’s attorneys informed the court that they might not be able to get the defendant back if he were allowed to leave during the lunch recess. Just before the court recessed for lunch the court ordered the bond forfeited and the defendant placed in custody. A doctor was appointed by the court to examine him. The doctor reported that the defendant appeared to be ill and that in his opinion the defendant should be returned to the hospital. In the afternoon of that day the defendant, still appearing to be ill, was taken to the rest room where he vomited and appeared to be in great pain. He was again given a medical examination and that evening he was operated on for acute appendicitis. The court of appeals held that the circumstances which were set forth in detail in the case did not require the enforcement of the forfeiture of the bond and that the denial of the motion to vacate the judgment and the denial of the motion for remission of the forfeiture constituted an abuse of discretion. In the instant case, in contrast to the facts of Dudley and Smaldone, no facts were shown that would require us to hold that there was any abuse of discretion. As the court pointed out when the case was set, the court was available to try Whalen and the jury had been called, but Whalen did not appear, having gone to Mexico in order to avoid his court appearance. Being unable to say that the court abused its discretion in this matter, 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. 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?

Eddie HUFF, Appellant, v. MATSON NAVIGATION COMPANY, a Corporation, Appellee. No. 19151. United States Court of Appeals Ninth Circuit. Oct. 22, 1964. Barnes, Circuit Judge, dissented in part. Dorsey Redland, Van H. Pinney, San Francisco, Cal., for appellant. E. Judge Elderkin, Brobeck, Phleger & Harrison, San Francisco, Cal., for appellee. Before POPE and BARNES, Circuit Judges, and THOMPSON, District Judge. POPE, Circuit Judge. The appellant, libelant below, was a longshoreman employed by Matson Terminals Company, a stevedore, and was working in the hold of a vessel owned and operated by the appellee when he received certain injuries. He brought this suit against the appellee to recover for such injuries, asserting his rights under the general maritime law. The case was submitted to the district court upon a stipulation of facts which read as follows: “It is hereby agreed by and between EDDIE HUFF, libelant herein, and MATSON NAVIGATION COMPANY, respondent herein, through their respective proctors, that the issue of negligence and the issue as to whether the 'doctrine of unseaworthiness extends to the land-based crane and its appurtenances referred to in the above-captioned cause may be submitted to and decided by the Honorable Lloyd H. Burke, sitting in Admiralty, without a jury, on the statement of facts, hereby stipulated to by the parties, set forth below. “It is further agreed that if the Court finds in favor of the respondent on both of the aforesaid issues that a final decree and judgment, with costs, may be entered in favor of respondent, without further proceedings. If the Court should find in favor of the libelant on either of the aforesaid issues, the matter will be set for trial on the remaining issues at a time convenient to the Court and the parties. “Libelant is a fifty-three year old longshoreman who has been so employed since 1944. He is a member of Local 10 of the International Longshoremen’s and Warehouse-men’s Union and is assigned work with various stevedoring employers through that union. “On June 14, 1960, libelant, along with other members of Gang 28, was dispatched from the union to work at Crockett, California, as an employee of a stevedoring contractor, Matson Terminals, Inc. (“Stevedore”). The work at Crockett involved the discharging of bulk sugar from the SS HAWAIIAN TRADER, a vessel owned and operated by respondent. Libelant, as well as other members of Gang 28, was familiar with the operation at Crockett, since he had been performing that work at least twice a month over a period of ten years. Libelant arrived at Crockett at about 5:00 o’clock in the afternoon of June 4, 1960, and proceeded to the vicinity of the No. 4 hatch of the vessel where he commenced performing duties of his regular occupation as longshoreman. “The longshoring operation at Crockett is relatively simple and is accomplished through the use of four large gantry-type cranes which are an integral part of the sugar refinery of the California and Hawaiian Sugar Befining Corporation, Limited and are permanently attached to the shore. (Exhibit A). These cranes are never found on ships as a regular part of ship’s gear. They move up and down tracks which are on a pier owned by and adjacent to the sugar refinery. “As an integral part of each crane is a long ‘leg’ in which is contained a conveyor system consisting of small scoops and a long belt. The crane moves along the track to a location opposite one of the ship’s holds and the leg is positioned in the open hatch (Exhibit B). Electricity for the operation of the crane is secured dockside and not from the ship itself. Through the use of the conveyor system, the sugar is scooped out of the hold and transported on a conveyor belt (Exhibit C) into the sugar refinery where it is dumped into large containers (Exhibit D). When the operation is completed, the crane is returned to its original position. The crane is not required for the navigation of the ship and is not necessary for the ship to function as a maritime vessel. “At no time is the leg itself or the gantry ever physically attached to the ship nor do they come into contact with any part of the ship or its appurtenances. None of the ship’s gear is used to move or position the crane nor is any of the ship’s gear or appurtenances involved in any way in the unloading process. In the initial stage of the operation, the leg removes the sugar through the process of merely burrowing down into the hatch (Exhibit E), as the sugar falls toward the center. Later on, it is necessary to rig falls to which are attached scrapers which drag the sugar to conveyors located in the leg. These falls are run through blocks which are attached to the sides of the hold solely for the sake of convenience. The scrapers, falls and blocks, are component parts of, and attached to, the crane. The scrapers and the falls are also operated by shoreside power. The movement of these scrapers is remotely controlled by a button box which is operated by one of the longshoremen who sits either on deck or in the hold (Exhibit F). There are two handles, one on each end of the box, which control the movement of the scraper. Pushing the handle on the right side of the box away from the operator causes the scraper to be hauled back from the leg to the right side of the hold; and conversely with the other handle. Pulling either handle toward the operator causes the scraper to move toward the leg. “There is constant tension on all of the falls and in order to obtain slack it is necessary to release this tension by pressing a button which is located on top of the handle on the right side of the button box. However, all operators have been instructed that it is mandatory to turn off the power operating the scraper, before slack is to be obtained on the falls, or before the button box is left unattended. In addition, the following legend is legibly attached to all of the button boxes: CAUTION “ ‘Shut off motor when pulling wire or when box is left unattended. WORK SAFELY’ “The reason for shutting off the power when there is necessity to obtain slack is to preclude the operator, or anyone else, from inadvertently causing the scraper to move by actuating the handle as the button is depressed. “When libelant arrived at work, the crane and the scrapers were in position, as the longshoreman on the day shift had already discharged the upper hold and started on the lower hold. The operation was uneventful until 8:30 o’clock P.M. At that time, one of the falls attached to the scraper broke and it was necessary to reattach the fall to the scraper. This was libelant’s job and to accomplish it he needed to obtain slack on the fall so that he could pull it up to the scraper. He requested Mr. Collier, a fellow-longshoreman who was operating the button box and was down in the hold with libelant, to ‘give me some slack.’ As he asked Mr. Collier for slack, the scraper started moving toward the libelant and hit him. “The only persons who participate in the unloading of the ship are the longshoremen. None of the ship’s crew was aboard the vessel during the unloading process and they did not participate in any way. All of the longshoring operations were being directed by and exclusively done by longshoremen in the employ of the Stevedore and none of the loading operations in question were under the control, supervision or direction of the officers, owners, or any member of the crew of the SS HAWAIIAN TRADER. Respondent had no control over the choice of the crane and no authority in the direction of its use.” The trial court made findings of fact with conclusions to the effect that the respondent shipowning company was not chargeable with any negligence contributing to the injuries of the libelant; that the vessel was at all times seaworthy; and that the i-espondent was entitled to judgment. The court filed an opinion in which, after reciting that there was no basis for a finding of negligence, it made the following statement: “There is no question that a longshoreman is afforded the benefits of the doctrine of unseaworthiness when ‘he is doing a seaman’s work and incurring a seaman’s hazards.’ Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 880, 90 L.Ed. 1099 (1946). However, in the instant case, the longshoreman was not incurring the hazards of a seaman, in that none of the traditional unloading gear of the ship, namely winches, masts, or booms was being used in the operation in which he was engaged. McKnight, supra [McKnight v. N. M. Paterson & Sons, Ltd., D.C., 181 F.Supp. 434, affirmed 6 Cir., 286 F.2d 250, cert. den. 368 U.S. 913, 82 S.Ct. 189, 7 L.Ed.2d 130]. The cause of the injury to the libelant cannot be attributed to the vessel since the injury was caused solely by an alleged defect in the unloading device itself and not by any of the ship’s gear or appurtenances.” Decree was entered in respondent’s favor and this appeal followed. We find no reason to disagree with the trial court’s finding of no negligence on the part of the shipowner, Matson Navigation Company. However, on the question of whether or not liability may be predicated upon a claim of unseaworthiness, we disagree with the conclusion reached below. The law generally applicable to cases of this character, in which the longshoreman engaged in the process of unloading or loading a ship receives injuries which he claims to be attributable to the unseaworthiness of the ship, has received extensive treatment in and is well settled by a series of decisions of the Supreme Court. These cases begin with Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and continue through Gutierrez v. Waterman, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297. In Sieracki, the Court held that “the shipowner’s obligation of seaworthiness extends to longshoreman injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship.” (328 U.S. p. 89, 66 S.Ct. p. 875) The reason for that holding was stated as follows: “Historically the work of loading and unloading is the work of the ship’s service, performed until recent times by members of the crew, (citing cases) That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker’s hazard and should not nullify his protection.” (328 U.S. at p. 96, 66 S.Ct. at p. 878.) In the October, 1953, term, the Supreme Court extended the principles of Sieraeki through two per curiam opinions. In Petterson v. Alaska Steamship Co., 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, the Court affirmed the decision of this court, 9 Cir., 205 F.2d 478, upon the authority of the Sieracki case and the case of Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Petterson was an employee of a stevedoring company engaged by the shipowner to load the latter’s vessel. In the performance of their duties the employees of the stevedoring company used a block which the court assumed belonged to the stevedoring company and was brought on board by it. The block broke causing the injuries complained of by Petterson. Citing Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and Sieraeki, for the propositions that the shipowners’ obligation to provide a seaworthy vessel is “a form of absolute duty owing to all within the range of its humanitarian policy” and one he could not delegate, this court had held that the shipowner’s obligation of seaworthiness extended to unloading equipment furnished by the stevedore. In Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, summarily reversing (3 Cir.) 205 F.2d 57, a longshoreman in the employment of a stevedoring contractor was engaged with the other members of a gang in unloading a cargo of ore at a dock in Philadelphia. In that operation ore was being removed in tubs from the ship’s hold to railroad cars on the dock. One of the tubs unexpectedly swung across the hold and struck Rogers, the longshoreman, causing his injuries. It was conceded that the cause of the accident was the improper operation of a landfall runner furnished by the stevedoring company and operated by one of its employees. The Court of Appeals said: “The statement that the vessel adopted the runner as an appurtenance is simply not justified by the record. * * * Since the wire alone or the manner in which it was handled, or both, caused plaintiff’s hurts and since under the facts the presence of that wire cannot be construed as appellee’s responsibility this judgment (for the shipowner) should not, for the reason urged, be disturbed.” It seems clear that, by this summary reversal, the Court was making it plain that the stevedore’s ownership, operation or possession of defectively operating equipment in no manner lessened the shipowner’s obligation of seaworthiness with respect thereto, and that the absence of proof that the vessel had adopted the runner as an appurtenance was wholly immaterial. In Gutierrez v. Waterman S.S. Corp., supra, the Court held that the obligation of seaworthiness extended to bagging in which a cargo of beans was received on board ship. Gutierrez, a longshoreman 'unloading the respondent’s ship at the dock, slipped on some loose beans spilled on the dock and suffered personal injuries. The beans had been packed in broken and defective bags which permitted them to leak and scatter on the surface of the pier. The Court held that unseaworthiness included “fitness for loading and unloading” ; that the use of defective cargo containers constitute unseaworthiness, stating: “When the shipowner accepts cargo in a faulty container or allows the container to become faulty, he assumes the responsibility for injury that this may cause to seamen or their substitutes on or about the ship.” (373 U.S. pp. 213-214, 83 S.Ct. p. 1190.) That decision is significant for it must be noted that the bags were no part of the ordinary gear or equipment of the ship; the shipowner did not supply them but they were furnished by the shipper. In the most recent case discussing the present problem, Italia Soc. v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732, the Supreme Court summarized the rules relating to a shipowner’s liability to a longshoreman for unseaworthiness as follows: “The shipowner is liable for unseaworthiness, regardless of negligence, whenever the ship or its gear is not reasonably fit for the purpose for which it was intended and this liability extends to longshoremen and others who work aboard the vessel, including those in the employ of contracting stevedore companies. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Mitchell v. Trawler Racer, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. If the owner engages others who supply the equipment necessary for stevedoring operations, he must still answer to the longshoreman if the gear proves to be unseaworthy. Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. This liability is strict and nondelegable. Mitchell v. Trawler Racer, supra; Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561.” Particularly noteworthy is the next to last sentence in that quotation which makes it plain that the shipowner’s obligation of seaworthiness extends to all equipment for loading or unloading supplied by the stevedoring contractor. There is another line of related decisions by the Supreme Court which, when considered with those to which we have just referred, disclose that the Court has been in the process of molding rules in admiralty calculated to provide increased protection for longshoremen engaged in this hazardous occupation. These related decisions include Ryan Stevedoring Co. v. Pan Atlantic S.S. Co., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Waterman S.S. Co. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169; Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448; and Italia Soc. v. Ore. Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748. In Ryan the Court held that the contract between the shipowner and the stevedoring company contained an implied warranty of workmanlike service, and that the company was liable over to the shipowner for damages paid by the shipowner to a longshoreman, employed by the stevedoring company, for injuries received in consequence of a condition created by the latter’s negligence. In Waterman, the Court held that where the shipowner in a similar manner had paid damages to an injured longshoreman, the longshoreman’s stevedoring company employer was liable over to the shipowner even though there was no contract between the shipowner and the stevedoring company. In Reed v. The Yaka, the longshoreman was allowed to sue the shipowner and to recover for unseaworthiness due to a defect in wooden pallets used in loading the ship, notwithstanding the same company that owned the ship was also the stevedoring company that hired the longshoreman. And finally, in Italia Soc. v. Ore. Stevedoring Co., the Court held that the stevedoring company was liable over to the shipowner for the unseaworthiness of the ship created by the stevedoring company, even though no negligence on the part of the stevedoring company was shown. It was in that case that the Court used the language we have quoted above describing the shipowner’s liability to longshoremen for unseaworthiness in the type of cases we have here been discussing. The Court there also expounded the rationale of this whole series of cases as follows: (376 U.S. p. 324, 84 S.Ct. p. 754) “Where the shipowner is liable to the employees of the stevedoring company as well as its employees for failing to supply a vessel and equipment free of defects, regardless of negligence, we do not think it unfair or unwise to require the stevedore to indemnify the shipowner for damages sustained as a result of injury-producing defective equipment supplied by a stevedore in furtherance of its contractual obligations. * * * [W]e deal here with * * * an area where rather special rules governing the obligations and liability of shipowners prevail, rules that are designed to minimize the hazards encountered by seamen, to compensate seamen for the accidents that inevitably occur, and to minimize the likelihood of such accidents. By placing the burden ultimately on the company whose default caused the injury, Reed v. The Yaka, 373 U.S. 410, 414, 83 S.Ct. 1349, 1352-1353, 10 L.Ed.2d 448, we think our decision today is in furtherance of these objectives.” These objectives were stated in footnote 10, page 323 of that opinion, 84 S.Ct. at page 753, by quoting from DeGioia v. United States Lines, 2d Cir., 304 F.2d 421, 426, as follows: “The function of the doctrine of unseaworthiness and the corollary doctrine of indemnification is allocation of the losses caused by shipboard injuries to the enterprise, and within the several segments of the enterprise, to the institution or institutions best able to minimize the particular risk involved.” A consideration of the facts of this case in the light of the decisions here referred to leads inevitably to the conclusion that the district court’s decision concerning seaworthiness was incorrect. Unloading sugar from the respondent’s ship was ship’s work. The longshoreman Huff was engaged in doing that ship’s work when he was assisting in unloading this cargo. If the injuries were caused by some malfunctioning or defect in the unloading device or if there was improper use of the equipment by the other longshoremen, Blassingill v. Waterman S.S. Corporation, 9 Cir., September 9, 1964, 336 F.2d 367, Thompson v. Calmar S.S. Corp., 3 Cir., 331 F.2d 657, then appellant’s claim would come squarely within the doctrine of the Sieracki case and the other cases which have followed it and amplified its principles. Under all of these Supreme Court decisions it is plain that the fact that the stevedoring company brought this unloading device to or into the ship in no manner lessens the shipowner’s absolute obligation of seaworthiness which extends to the loading or unloading equipment furnished by the stevedoring company. In our view the trial court went astray in holding, as we have noted above, that “the longshoreman was not incurring the hazards of a seaman, in that none of the traditional unloading gear of the ship, namely, winches, mast, or booms was being used in the operation in which he was engaged.” The holding that the use of a newly invented, non-traditional unloading device such as the gantry crane here employed would operate to relieve the shipowner of the obligation of unseaworthiness, declared and enforced in the other cases which we have here cited, clearly is erroneous. In reaching its decision the court relied upon the case of McKnight v. N. M. Paterson & Sons Ltd., D.C., 181 F. Supp. 434, which was affirmed by the Court of Appeals for the Sixth Circuit at 286 F.2d 250, by reference to the district court’s opinion. In that case a longshoreman standing in the hold of a ship was injured when unloading equipment being loaded into the hold by a shore-based crane struck him because of a defect in the crane. In holding the shipowner not liable in that case the district court reached for grounds never mentioned or suggested in any of the decisions of the Supreme Court. Undertaking to distinguish the case from Petterson, Sieracki and other eases, the district court noted two things. It said, “In the instant situation it cannot be seriously contended that the crane used in the unloading operation is equipment commonly found among the ship’s gear. Both its size and sole function rebel against any argument that a ship might ‘adopt’ or ‘integrate’ such equipment as part of its gear.” The other distinguishing feature relied upon was mentioned as follows: “The crane never became physically attached to the ship in any manner, nor did it at any time during the unloading process touch any part of the vessel.” It was the former aspect of the district court’s opinion to which the Court of Appeals, in affirming, particularly alluded, saying: “[Ajlthough appellant, when injured, might have been doing the traditional work of a seaman, he was not incurring the hazards of a seaman, in that none of the traditional unloading gear of the ship, namely winches, masts, or booms, was being used in the operation in which he was engaged.” The court in our case evidently had in mind the same distinction because it referred in its opinion to the fact that “none of the traditional unloading gear of the ship” was being used in the operation in which the longshoreman was engaged. When the Court of Appeals in McKnight stated of the longshoreman “he was not incurring the hazards of a seaman” because the gear was not the traditional unloading gear, it was drawing a distinction which is invalid. In Sieracki, the Court, after noting in language previously quoted that historically the work of loading and unloading is the work of the ship’s service, said: “That the owner seeks to have it done with the advantages of more modem divisions of labor does not minimize the worker’s hazard and should not nullify his protection.” (328 U.S. at p. 96, 66.S.Ct. at p. 878.) In like manner it seems to us that the well established rule that the shipowner is absolutely liable for the results of defects in unloading equipment brought on board ship by the stevedoring company should not be qualified or modified if the unloading equipment thus used happens to be newly designed and devised and involves none 'of the traditional unloading gear of the ship. Use of more modern equipment can no more exculpate the shipowner from his obligations than could use of “more modern divisions of labor.” It would seem passing strange if the.shipowner, whose obligation of seaworthiness, as stated in Sieracki, “is peculiarly and exclusively the obligation ■of the owner. It is one he cannot delegate”, could in effect delegate and avoid liis obligation by employing a stevedoring company which used newly invented unloading devices. In this case the injuries resulted from.an improper functioning of the scraper, which is used to drag the sugar from the sides of the hold to a pile where it may be picked up by the scoops and ■elevated. A shovel could be said to “be a traditional device for performing ■that function; and in the 18th century when bulk cargoes were being carried,.shovels or something of similar char.aeter were unquestionably used by those unloading the ship for this purpose. We think it is a truism that modem.sophisticated mechanical devices may well involve even more hazards than the an•cient and more traditional ones. The hazards here were certainly those of ■the loading and unloading process; and for this appellant the work involved was probably more hazardous than if the “scraping” was done with shovels or some other “traditional” device involving “traditional hazards.” In Rodriguez v. Coastal Ship Corporation, D.C., 210 F.Supp. 38, Judge Weinfeld effectively answered and dispelled an argument similar to.that which was used as a basis for the decision in the McKnight case. In that case a longshoreman was injured when he slipped on a pool of oil. The oil came from the motor of a gantry crane mounted on the deck of the ship, an experimental vessel, the first of its kind, which was designed to achieve maximum efficiency in the loading and unloading of trailer bodies. On behalf of the shipowner it was argued that this, a reconstructed vessel, an innovation of seacoast transportation, was sui generis and still in the experimental stage; that an inevitable consequence of its functioning was spillage of oil; and that, since seaworthiness is a “relative concept,” under the circumstances the vessel was reasonably fit for its intended service. Judge Weinfeld said of this: “In this connection they boldly urge that ‘questions of negligence and unseaworthiness with respect to the S.S. Gateway City and her operations cannot be judged by standards applicable to ordinary dry cargo ships.’ This position suggests that the increased efficiency of the vessel through the construction of the gantry cranes, but with its still unresolved problem of constant oil spillage, is at the expense of the safety of the crew and others engaged in seaman’s work, and of their right to a reasonably safe place to work. The plea, in effect, amounts to a negation of the ‘humanitarian policy’ underlying the seaworthiness doctrine and if accepted would revive the now discarded concept of assumption of risk. This Court is unaware of any current authority or doctrine in general maritime law which shifts to the worker the burden of the hazards created by the shipowner’s endeavors, experimental or otherwise, to increase the productive earning power of his vessel, thereby relieving the shipowner of his absolute duty to supply and maintain a seaworthy vessel and appurtenances. Indeed, to the contrary, the policy has been to assess the cost of the hazards of marine service, ‘insofar as it is measurable in money,’ upon the shipowner and not the worker, since he ‘ * * * is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its costs.’ The cost of experimental activities and improvement programs to the extent they create dangerous working conditions must be borne by the shipowner and not the seaman.” (pp. 42-43) The sound principles there expounded are precisely applicable in the case before us. Here, as in that case, we say, using the words of Judge Weinfeld: “[T]he policy has been to assess the cost of the hazards of marine service, ‘insofar as it is measurable in money,’ upon the shipowner and not the worker, since he ‘ * * * is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its costs.’ The cost of experimental activities and improvement programs to the extent they create dangerous working conditions must be borne by the shipowner and not the seaman.” Our attention has also been called to the case of Forkin v. Furness Withy & Co., 2d Cir., 323 F.2d 638, in which a divided court held the shipowner not liable to a longshoreman who received' injuries due to the failure of a rope which was being used to move a conveyor toward the ship from its position on the pier. The stevedore foreman had ordered a crane operator to move the conveyor, which was to be used in loading-the ship, toward the ship by hooking on. to a rope fastened to the outer end of the conveyor. The injured longshoreman was at the end of the conveyor nearest the ship and preparing to attach it to cleats on the ship. When it was found that the conveyor was positioned too low for this fastening the-foreman ordered the crane to lift it. The rope snapped and the conveyor fell injuring the longshoreman. The court held that the shipowner’s obligation of' seaworthiness did not extend to the-equipment involved, seemingly because the conveyor had not come in contact with the ship. It continued: “It may-well be that once the conveyor was affixed to the ship, a seaman, or a stevedore engaged in unloading or loading, would have been entitled to recover on the ground of unseaworthiness if injured as a result of the conveyor’s not being reasonably fit for its intended use, * '* * but in such a case the conveyor would have become ‘appurtenant’ to the ship in the significant sense that it would have been within the shipowner’s power of inspection whereas here it had not yet reached that status.” (323 F.2d 641.) We note from the portion of that opinion quoted above that what is there-said would constitute a basis for distinguishing the Forkin case from this one. For here the scraper device had' been affixed to the ship and was operating in the hold and it would have been within the shipowner’s power of inspection. We do not care to perpetuate any.such distinction. We base our refusal to treat the Forkin case as an authority upon the broader ground that the basic theory there applied is manifestly wrong.and contrary to the controlling decisions, as noted in the dissenting opinion in that case. The suggested concept of liability being predicated upon the shipowner’s power of inspection has been rejected repeatedly. In Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 933, 4 L.Ed.2d 941, the Court stated: “[T]he shipowner’s actual or constructive knowledge of the unseaworthy condition is not essential to his liability.” In accord, and contrary to the distinction suggested in the Forkin case, supra, are the following: Grillea v. United States, 2nd Cir., 232 F.2d 919, 923; Ballwanz v. Isthmian Lines, Inc., 4 Cir., 319 F.2d 457; Thompson v. Calmar S.S. Corp., 3d Cir., 331 F.2d 657; Lahde v. Soc. Armadora del Norte, 9 Cir., 220 F.2d 357; Beeler v. Alaska Aggregate Corp., 9 Cir., 336 F.2d 108; Blassingill v. Waterman Steamship Corporation, 9 Cir., 336 F.2d 367. We reject what we regard as the ill-advised attempts as exemplified in the McKnight and the Forkin cases to attach unwarranted exceptions to the rules heretofore applied by the Supreme Court in this field. As stated by the Fourth Circuit in Scott v. Isbrandtsen, 327 F. 2d 113, 124 (1964): “The obvious trend of the Supreme Court decisions is toward providing ever increasing protection for crewmen, longshoremen and even others employed by independent contractors who may be called upon to work aboard vessels.” This trend can be noted by examining numerous recent cases, and we do not choose to challenge that trend in this decision. We hold that the j'udgment must be reversed and the cause remanded for further proceedings in the trial court in accordance with the stipulation upon which the case was heard. Our decision thus amounts to a holding that if there was unseaworthiness which attended the scraper, the shipowner is liable for the appellant’s damages received in consequence thereof. We note that the stipulation does not set forth the precise cause of the scraper having moved and hit the libelant. Libelant was in the process of obtaining slack on the fall so that he could pull it to the scraper. It is not stated whether the scraper started moving toward the libelant because of some defect in the control device or whether the moving of the scraper was due to the failure off the operator of the button box to shut off the motor in accordance with instructions attached to the box. Upon remand the trial court will be in a position to-receive evidence and make findings in respect to these matters. If the fault resulted not from a defect 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 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?

AMERICAN FABRICS CO. v. RICHMOND LACE WORKS et al. Circuit Court of Appeals, Second Circuit. February 6, 1928. No. 152. 1. Patents <3=>28 — Reassembling or regrouping of familiar forms and decorations, to make design of originality and beauty, may be patentable. Reassembling or regrouping of familiar forms and decorations may constitute a patentable design, if the result be a design of originality and beauty. 2. Patents <3=»252 — Infringement of design depends on whether two designs have substantially same effect on eye of ordinary observer, giving usual attention of purchasers. The test of infringement of a design is whether the two designs have substantially the same effect on the eye of the ordinary observer, giving such attention to the matter as purchasers usually give. 3. Patents <3=»252— Changes In design after desisting from producing exact copy of patented design, and while demand for latter was greatest invites close scrutiny. ' That defendant in patent infringement suit made changes in its design, after desisting from producing exact copy of patented design, and while trade demand for latter was at its height, invites close scrutiny of claim of noninfringement. 4. Patents <§=>180 — Patent not describing de-’ sign in writing is limited substantially to pattern shown in drawing. Patent containing no written description of patented design must be construed as limited substantially to the pattern shown in patentee’s drawing. 5. Patents <§=>252 — Servile imitation is not required to infringe even design patent without written description. Servile imitation is not required for infringement even of a design patent without written description. 6. Patents <§=>252 — Changes producing substantially different effect on eye than patented design will avoid infringement. If alleged infringer’s changes result in producing a substantially different effect on the eye than patented design, so that two patterns are reasonably distinguishable, infringe.ment will be avoided. 7. Patents <§=>180 — Patented design, combining old lines and conventionalized figures into novel pattern, as for lace, should receive no broad range of equivalents. Design gaining patentability from combining old lines and conventionalized figures into novel pattern for such an article as lace, new patterns of which are constantly brought out, and may consist of almost infinite variations on given pattern, should receive no broad range of equivalents. 8. Patents <§=>328 — Design patent No. 59,923, for lace pattern with large central 16-rayed figure and open meshed center held not infringed by 8-rayed figure with petals of scimiter shape and small, closely woven center. Design patent, No. 59,923, for lace pattern, featured by large central figure with 16 rays or petals and open meshed center or hub, and referred to by trade as “sunflower” pattern, held not infringed by 8-rayed figure, with petals of scimiter shape and small and closely woven center, in absence of disinterested testimony that ordinary buyers have mistaken, or are likely to mistake, one for the other. 9. Patents <§=>328 — Design patent, No. 59,923, for lace pattern, held not shown infringed by fact that defendants’ lace pattern cut into plaintiff’s trade. That lace pattern of defendants in infringement suit cut into plaintiff’s trade held not to show infringement of design patent No. 59,923; being as well explainable on theory that defendant offered different and more pleasing article at cheaper price. Appeal from the District Court of the -United States for the Southern District of New York. Suit by the American Fabrics Company agairist the Richmond Lace Works and another. From a decree of dismissal, on the merits, and adjudging costs to defendants, plaintiff appeals. Affirmed; Design patent No. 59,923, for a pattern for lace, was issued December 6, 1921, to plaintiff, as assignee of the inventor, H. S. Philips. The bill of complaint in three counts charged defendants with infringement of the patent, with breach of a contract not to infringe the same, and with unfair competition, and prayed for injunction and accounting. Frederick S. Duncan, of New York City, for appellant. Berry, Bucknam & Lovejoy, of Boston, Mass., and Henry Warren Beebe, of New York City, for appellees. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. SWAN, Circuit Judge. The District Judge assumed the validity of the patent, but found that the defendants’ lace did not infringe the plaintiff’s design, and that neither the count on the contract nor the count charging unfair competition was established. A photostatic copy of a sample of plaintiff’s lace, exemplifying its patented design, is shown at the end of this opinion. It is known as an all-over pattern, and is suitable for bedspreads, tablecloths, bureau covers, scarves, etc. This design was brought out in the summer of 1921 and immediately met with large commercial success. For the last five months of 1921, plaintiff’s sales of this pattern were 63 webs; for 1922, 667 webs; for 1923, 904 webs — the average price being about $100 a web. In 1923 the sales of this design were nearly three times the total sales of all other all-over patterns of the plaintiff. The tribute of imitation was paid by two competitors, ineluding the defendant Richmond Lace Works, which late in 1922 or early in 1923 brought out an exact copy of plaintiff’s design in a slightly coarser grade of lace. In March, 1923, however, as a result of protests by the plaintiff, the defendants ceased to market goods resembling the plaintiff’s. So, also, did the other infringing competitor. A few months later the defendant brought out a modified pattern, which is the infringement complained of in the present suit. Defendant obtained a patent on its design March 11, 1924. A photostatie copy of a sample of the alleged infringing lace is also appended to this opinion. Defendants sold 48 webs of it in the last three months of 1923, .198 webs in 1924, and 62 webs in 1925. The plaintiff’s sales shrank to 227 webs in 1924, and to 23 webs for the first four months of 1925. The significance of these figures is the more apparent when it is noted that defendants’ webs contain 221 square yards each, while plaintiff’s webs contain only 120 square yards each. Plaintiff proved, further, that certain of its customers, who had previously bought lace of its patented design, bought no more after defendants’ similar article came out, but thereafter carried defendants’ lace on their shelves. Defendants’ lace was of a somewhat coarser grade and was cheaper in price. Plaintiff’s design has a large square containing the elements of a circular hub and open mesh circle surrounding the hub, a rayed flowered figure of sixteen rays, a scalloped border surrounding the rayed figure and within a closely woven frame, outlining the square and separated from the similar frame of an adjacent square by a narrow line of open mesh, and a closely woven triangular piece at each comer of the square. When four of these large squares are adjacent to each other, a smaller square is formed by sections of the scalloped border, which surrounds the rayed figures. The triangular pieces of the four adjacent comers form a crude four-pointed star, the thin straight lines of open mesh dividing each of the four rays of the star, and an open meshed circle appearing at its center. All of these individual elements are no doubt old, but they have been combined in a way to form an artistic and unitary pattern, which was obviously very attractive to the purchasing public. The reassembling or regrouping of familiar forms and decorations, if the result be a design of originality and beauty, may constitute a patentable design. Protex Signal Co. v. Feniger (C. C. A.) 11 F.(2d) 43, 46; Graff v. Webster, 195 F. 522 (C. C. A. 2); Steffens v. Steiner, 232 F. 862, 864 (C. C. A. 2). It was apparently novel, for nothing was introduced in the way of prior art which anticipated it. We are disposed to think that to devise so pleasing a design requires sufficient artistic originality to amount to patentable invention; but it is unnecessary to pass finally upon the issue of validity, unless infringement is found. The test of infringement is whether the two designs have substantially'the same effect upon the eye — not the eye of an expert, but the eye of the ordinary observer, giving such attention to the matter as purchasers usually give. Gorham Co. v. White, 14 Wall. 511, 20 L. Ed. 731; Borgfeldt v. Weiss, 265 F. 268 (C. C. A. 2). The defendant’s patent coneededly has all the elements of the plaintiff’s design, and in identical arrangement, except that it has reduced the petals of the central rayed figure' from sixteen to eight, changing somewhat their shape, and reducing the size and appearance of the hub at the center of this figure. These changes were made after the defendant had -desisted from producing an exact copy, and while the-trade demand for plaintiff’s design was at its height: Such circumstances invite close scrutiny of the claim of noninfringement. On the other hand, the plaintiff’s patent, which contains no written description of his design, must be construed as limited to substantially the pattern' shown in his drawing (Ashley v. Tatum Co., 186 F. 339 [C. C. A. 2]), although servile imitation is not required for infringement, even for a design patent without written description (Borgfeldt & Co. v. Weiss, supra; Whiting Mfg. Co. v. Alvin Silver Co., 283 F. 75, 80 [C. C. A. 2]). But if defendants’ changes result in producing a substantially different effect upon the eye, so that the two patterns are reasonably distinguishable, infringement will be avoided. Zidell v. Dexter, 262 F. 145 (C. C. A. 9); Whiting Mfg. Co. v. Alvin Silver Co., supra. The dominant feature of plaintiff’s patent is the large, central, rayed figure, having 16 rays or petals and an open meshed center or hub. The trade referred to plaintiff’s design as the sunflower pattern. The defendant has substituted an eight-rayed figure with petals. of scimiter shape and with a small and closely woven center. It would require a greater stretch of the imagination to consider this figure a conventionalized sunflower. A design which gains its patentability from combining old lines and conventionalized figures into a novel pattern for such an article as lace — a field wherein new patterns are constantly brought out, enjoy ephemeral success, and disappear with the changing whim or taste of the trade, and where possible variations on a given pattern are almost infinite in number — should not, we think, receive any broad range of equivalents. The District Judge found that the differences are so marked as to foreclose all reasonable chance of confusion in mistaking one design for the other. No evidence of confusion was presented. Plaintiff’s designer testified that experienced lace buyers would make no such mistake, though he thought “some lace buyers will be foolish enough to accept one for the other.” From our own inspection, we should: say that the general appearance of the two patterns is sufficiently different, so that no reasonable observer, giving such attention as purchasers usually do, would be deceived; and, in the absence of any disinterested testimony that ordinary buyers have made mistakes or are likely to, we agree with the court below that infringement was not proved. It is true that defendant’s pattern cut into plaintiffs trade, but that is as well explainable upon the theory that defendant offered a different and more pleasing article at a cheaper price as upon the theory of infringement. We agree also with the District Court’s rulings as to the counts relating to the alleged contract and unfair competition. The decree is therefore affirmed. Defendant's Design* -I «Ti

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Armando CHAIDEZ, Lilia Silva, and Manuel Chavira, Defendants-Appellants. Nos. 89-2939, 89-2940 and 89-2941. United States Court of Appeals, Seventh Circuit. Argued May 11, 1990. Decided Oct. 25, 1990. Rehearing and Rehearing In Banc Denied Jan. 7, 1991. Patrick S. Layng, Barry R. Elden, Canel-la Hendricks, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee. David S. Mejia, Oak Park, Ill., for Armando R. Chaidez. Kenneth J. Wadas, Nicholas A. DeJohn, Chicago, Ill., for Lilia Silva. Frank E. Stachyra, Riverside, Ill., for Manuel Chavira. Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges. EASTERBROOK, Circuit Judge. Armando Chaidez, Manuel Chavira, and Lilia Silva (Chavira’s step-daughter) were convicted of conspiracy to possess heroin, cocaine and marijuana, with intent to distribute. Chaidez and Chavira were also convicted of possessing these drugs with intent to distribute them (the jury acquitted Silva of this charge), and Chaidez was convicted on a third count of possession with intent to distribute cocaine. The Chicago police found most of the drugs in a stash house leased by Chavira and Silva, after obtaining Silva’s consent to search the house. The principal question is whether the detention leading to the discovery of the drugs was a “reasonable” seizure. I The Chicago police received a tip (from a source “proven reliable in the past”) that Chaidez was a large-scale heroin dealer. The tipster provided no details. A check revealed that Chaidez’ name came up in a drug investigation involving two others unrelated to this case. The police decided to set up a “moving surveillance” of Chaidez, a procedure involving multiple vehicles in radio contact. Surveillance began at 8:30 a.m. when Chaidez left his home. He carried a small plastic bag; no agent could see its contents. Chaidez got into the passenger side of a car and was driven to a west side restaurant, La Fonda del Requeredo. Chai-dez spoke briefly with the driver, then got out of the car and entered the restaurant through the back door. He emerged minutes later through the front door. Still carrying a plastic bag, Chaidez walked to his car, a white Cadillac parked nearby. He drove circuitously for awhile, going south, then west, then north. After gassing up his car, he eventually settled on north, driving to a north side lounge, La Hacienda. According to police testimony, drug dealers frequent both La Fonda del Requeredo and La Hacienda. Chaidez stayed at La Hacienda for less than five minutes, emerging with two unknown associates. Agent Guadalupe Rodriguez observed the three “looking around a lot at cars going by. More than the normal way most persons do.” He assumed they were looking for surveillance (wisely, but unsuccessfully, as it turns out). After a brief conversation Chaidez again drove evasively, frequently changing directions. He managed to grope northward, however, and stopped in the middle of a side street. Chavira and Silva then entered the picture. Chavira and Silva spoke to Chaidez through the window of the Cadillac. They then got into their own car (a Pontiac) and drove off, with Chavira driving. Chavira and Silva drove to a gas station; Chaidez followed. Chaidez got out of his car and walked over to the Pontiac to converse briefly with Chavira. No one bought fuel, although Chavira checked the air in his tires. They left after a few minutes, driving in different directions. The surveillance stayed with Chaidez. Chaidez drove east for a few minutes. He then abruptly made a U-turn and proceeded west. He entered the Kennedy Expressway, where he varied his speed considerably (driving at the speed limit for awhile, then switching to the right lane and dropping to 40 m.p.h., then repeating the process). The police had some trouble with this technique, for they either had to pass or to change speed suddenly and reveal the tail. Chaidez turned off on the Edens Expressway, which he left at Lake-Cook Road. Here the Pontiac rejoined Chaidez’ Cadillac. The two cars drove, Pontiac in the lead, to a house on Weiland Road. All three defendants went inside. Chaidez again held a small plastic bag in his hand. More than a half hour later, Chaidez left the house (sans plastic bag, this time) and drove north, followed in five minutes by Chavira and Silva. Both cars stopped in a parking lot. Chaidez made a telephone call, and then the defendants drove off again “at a high rate of speed”. The police, thinking their cover blown, decided to stop the cars. They did so by blocking the narrow road in both directions by turning their cars sideways. The five agents got out of their cars, guns drawn but pointed downwards, and proceeded to interrogate the defendants. Agent Rodriguez, the only Spanish-speaking agent at the scene, went to the passenger side of the Pontiac to question Silva. He identified himself and asked Silva her name. She answered truthfully, and he asked if she lived in the Weiland Road house. She said she rented it for her father, and had come to do his laundry. He read her Miranda warnings, which she understood, and then asked if she would consent to a search of the house. She said yes, so he took her over to a police van, where she signed a consent to search form. At some point the agents conducted a pat-down search. Agent Rodriguez radioed to another agent at the house that consent had been obtained and the search could begin. The police found more than just dirty linen. What happened to Chaidez and Chavira is less clear, and less relevant. If the seizure of Silva was justified, and her consent valid, then all three are sunk. Silva’s consent cannot be the fruit of an illegal seizure of Chaidez or Chavira, since that seizure did not lead to the questioning of Silva. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Still, the treatment of Chaidez and Chavira sheds light on the environment surrounding Silva, and Chaidez does challenge a subsequent search of his own apartment, so we glean what we can from the record. Chaidez and Chavira were ordered out of their cars and “searched”. Whether it was a pat down or a more intrusive search is not clear. Chaidez’ license was taken away. Both cars were searched, and the keys were taken from the ignition. (The road was blocked in both directions anyway.) The police found nothing in any of these searches. All three were detained for the 10 or 15 minutes it took to search the house. When the drugs were found, all three were arrested. Chaidez was asked to consent to a search of his apartment. After he expressed concern that his family would be frightened by a search, Agent Rodriguez agreed to go to the apartment himself to calm the family. Chaidez then consented; the search turned up more drugs. The district court held that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1966), supports the stops. We review the district court’s findings of fact deferentially. The standard of review for the conclusion that the seizures were reasonable, either because probable cause existed or for some other reason, is in transition in this circuit. Several cases hold that review is de novo. See United States v. Ingrao, 897 F.2d 860, 862 (7th Cir.1990); United States v. Jaramillo, 891 F.2d 620, 626 (7th Cir.1989); United States v. Sophie, 900 F.2d 1064, 1072 (7th Cir.1990). Recently doubts have been expressed, United States v. Malin, 908 F.2d 163, 169-70 (7th Cir.1990) (concurring opinion). Ordinarily application of law to fact is reviewed for abuse of discretion, and the fact-specific determination that behavior was “suspicious enough” to permit the intrusion is little different in quality from, say, a fact-finder’s conclusion of negligence. The Government does not ask for deferential review in this case, so we conduct our own analysis without taking sides on the proper approach. II A The Fourth Amendment provides that searches and seizures shall not be “unreasonable”. The Supreme Court often treats a search without probable cause as “unreasonable”, drawing on the requirement in the second clause of the Fourth Amendment that no warrant may be issued without probable cause. But this starting point is riddled with exceptions. For a stop and search of the person, Terry requires only “reasonable suspicion”. Administrative searches, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), inventory searches, South Dakota v. Opperman, 428 U.S. 364, 369-76, 96 S.Ct. 3092, 3097-01, 49 L.Ed.2d 1000 (1976), school searches, New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-43, 83 L.Ed.2d 720 (1985), border searches, United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (1985), drugtesting programs, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and searches incident to arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for various reasons all require less than probable cause; in each case the Court emphasized that the fundamental question is reasonableness. If some factor makes it reasonable for the police to act on suspicion short of probable cause, then the Fourth Amendment does not ignore that factor and insist on probable cause. As the Court in Camara noted, “reasonableness is still the ultimate standard.” 387 U.S. at 539, 87 S.Ct. at 1736. The extent of the intrusion is one such factor. It is “common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint.” United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988). Consideration of the extent of intrusion abounds in modern Fourth Amendment doctrine. Stops that do not entail detention need not be justified by any suspicion. E.g., Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). Searches incident to arrest may be justified by the reduced marginal intrusion of searching a defendant already in custody. See United States v. Robinson, 414 U.S. 218, 237-38, 94 S.Ct. 467, 477-78, 38 L.Ed.2d 427 (1973) (Powell, J., concurring); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.5 at 145 (1985). The Court based Terry itself on the fact that a protective search is a “brief, though far from inconsiderable, intrusion upon the sanctity of the person”. Terry, 392 U.S. at 26, 88 S.Ct. at 1182. Recently the Court upheld automobile checkpoints where the police made stops without any individual suspicion, in part because of the minimal “intrusion resulting from the brief stop at the sobriety checkpoint”. Michigan v. Sitz, — U.S.-, 110 S.Ct. 2481, 2487, 110 L.Ed.2d 412 (1990); see also United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 879-80, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975). Once the intrusion amounts to a full custodial arrest, however, the police need probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The scale extends in both directions. If an intrusion is greater than a traditional arrest, probable cause is not enough. Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (surgery). These cases describe a continuum in which the necessary degree of confidence increases with the degree of intrusion. A “stop” without limiting the suspect’s freedom requires no suspicion; a brief detention calls for reasonable suspicion; an arrest requires probable cause; invasive techniques such as surgery require more. What if the intrusion lies somewhere between Terry and arrest, neither a “brief, investigatory” stop nor a traditional arrest, where the defendant is handcuffed, trundled into a paddy wagon, carted • to the station, fingerprinted, and held in a 12' x 8' cell? One answer would be to deny that there is a “between” — to insist that all encounters must be either Terry stops or arrests. Yet circumstances defy such simple categorization, and if a line must nonetheless be drawn it will be arbitrary, with nearly identical cases on opposite sides. Trying to force a continuous world into two categories is not only impossible but also unnecessary when the text of the Constitution calls for inquiry into “reasonableness”. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (probable cause determination is based on “totality of circumstances”); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981) (same for reasonable suspicion determination); United States v. Sharpe, 470 U.S. 675, 682-83, 105 S.Ct. 1568, 1573-74, 84 L.Ed.2d 605 (1985) (scope of stop is question of reasonableness). Why abandon the search for reasonableness when the intrusion falls between arrest and stop? Pigeonholing is no boon for defendants: it has put considerable pressure on the limits of the Terry doctrine. Both the permissible reasons for a stop and search and the permissible scope of the intrusion have expanded beyond their original contours, in order to permit reasonable police action when probable cause is arguably lacking. See, e.g., Sharpe (20 minute detention); Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985) (fingerprinting at the site of arrest); Serna-Barreto (detaining at gun point); United States v. Glenna, 878 F.2d 967 (7th Cir.1989) (handcuffing the suspect); United States v. Taylor, 716 F.2d 701, 709 (9th Cir.1983) (same); George E. Dix, Nonarrest Investigatory Detentions in Search and Seizure Law, 1985 Duke L.J. 849 (1985) (noting that, unless the defendant is taken to the stationhouse, the limits on nonarrest detention are unclear after Sharpe and Hayes). Increasing the threshold probability when the intrusiveness increases ensures that privacy interests will be protected (the “reasonable suspicion” threshold from Terry is low) without hampering reasonable investigative techniques by the police. Another circuit has suggested this approach, United States v. Quinn, 815 F.2d 153, 158 (1st Cir.1987), and we now adopt it. Stops too intrusive to be justified by suspicion under Terry, but short of custodial arrest, are reasonable when the degree of suspicion is adequate in light of the degree and duration of restraint. Considering the extent of intrusion makes the calculus by the police marginally more complicated. In some tension with the trend toward a broadly-conceived inquiry into reasonableness is the desire to create rules easily implemented by the police. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Michigan v. Summers, 452 U.S. 692,101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). But “probable cause” and “reasonable suspicion” are themselves standards rather than rules, so the existence of a middle ground does not blur a rule that is now sharp. As the Court said in Sharpe, “[m]uch as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” 470 U.S. at 685, 105 S.Ct. at 1575. The principal Supreme Court cases holding that an intrusion is just too much to be justified by less than probable cause almost invariably involve the trappings of a traditional arrest. See Dunaway (suspect taken to stationhouse); Hayes (same); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (suspect taken to interrogation room). The only exception is United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), involving a 90-minute detention of luggage to arrange for a dog-sniff. But Place emphasized that the length of the detention of the luggage was unnecessary, id. at 709, 103 S.Ct. at 2645-46, and hence unreasonable, a conclusion consistent with our approach. B The detention in this case was more intrusive than an ordinary Terry stop. All the agents had their guns drawn, which places it at the “outer edge” of investigatory stops, see Serna-Barreto, 842 F.2d at 968; United States v. Ocampo, 890 F.2d 1363, 1369 (7th Cir.1989); the cars were searched; the agents took the keys and prevented movement; Silva was given Miranda warnings and taken to a police van to sign a consent-to-search form; and the purpose of the questioning seemed as much to be to obtain consent to search the home as to inquire into possible wrongdoing. Still, it was not an arrest (until heroin was found, at which point all agree an arrest was permissible): Silva was detained only briefly, asked a few questions, and apparently not physically restrained. This intrusion, both in terms of invasion of privacy and inconvenience, is a good deal less than that involved in arrest, which entails detention for hours or days and a myriad of intrusions, including fingerprinting and a full personal search. What quantum of probability is necessary to justify the seizure? For a typical investigatory stop, “th[e] level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). For a full arrest, Gates speaks of a “fair probability”, 462 U.S. at 238, 103 S.Ct. at 2332, but does not define it. Some older Supreme Court cases seem to imply a “more-likely-than-not” standard for arrests, see Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); but see Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 867, 43 L.Ed.2d 54 (1975) (probable cause determination “does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands”). Courts have on occasion explicitly rejected the preponderance standard. See United States v. Cruz, 834 F.2d 47, 50 (2d Cir.1987); Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 180 (1964). Sound quantification of levels of probability, hard enough to come by after a trial, is not a plausible demand of police conducting an investigation. “Probable cause” is a flexible idea, responding to (among other things) the gravity of the offense, and hence the need for thorough investigation. Llaguno v. Mingey, 763 F.2d 1560, 1566 (7th Cir.1985) (in banc). (This is further support for our sliding-scale approach to the relation between the level of suspicion and the degree of intrusion.) Had the police stopped and detained only Chaidez, there could be no doubt that their behavior was reasonable. Chaidez’ morning consisted of evasive and circuitous driving, brief and furtive meetings, scurrying in and out of restaurants known to be frequented by drug dealers, always carrying a plastic bag used in the drug trade to transport drugs. The police observed all this, knowing that a reliable informant had claimed Chaidez was a major heroin dealer, and that Chaidez’ name had come up in other drug investigations. We have permitted similar intrusions on less evidence. See, e.g., United States v. Sophie, 900 F.2d 1064, 1072-73 (7th Cir.1990); Ocampo, 890 F.2d at 1368-70. See also United States v. Williams, 876 F.2d 1521 (11th Cir.1989) (evasive driving); United States v. Espinosa, 827 F.2d 604 (9th Cir.1987) (surreptitious behavior); Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (“deliberately furtive actions and flight at the approach of... law officers are strong indicia of mens rea”). Something was afoot; perhaps it’s best to ask the probability question the other way ‘round— what was the chance that Chaidez was engaged in behavior unrelated to drugs? We think it was trivially small. Chaidez offers no plausible explanation of his behavior, and we can’t think of an innocent one. The key is Silva, however, for she consented to the search of the house. Was it reasonable to detain her along with Chai-dez? Chavira’s and Silva’s association with him (two rendezvous plus his visit to their house) justifies stopping them as well. If the police see a dealer sell drugs on the street to five people in a row, surely when the sixth comes up, any reasonable threshold of probability is surpassed as to that sixth person. Still, there is some resistance to drawing inferences from “mere association” with suspected criminals. Both United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), and Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), imply that probable cause must be “individualized” in the sense that association with criminals or criminal places is not of itself enough. Some courts have held that entry into a known drug house does not by itself justify a detention, even if it is likely that the person is entering to consummate a drug transaction. Compare United States v. Clay, 640 F.2d 157 (8th Cir.1981), with United States v. Patterson, 885 F.2d 483 (8th Cir.1989). This discounting of probabilistic evidence, however, is of questionable validity after Gates and Sokolow. In Sokolow, the Ninth Circuit divided evidence indicating drug trafficking into two categories, facts describing “ongoing criminal activity”, and “personal characteristics” of drug couriers, and insisted that at least one fact from the first category be shown to achieve “reasonable suspicion”. The Supreme Court responded, 109 S.Ct. at 1586: The rule enunciated by the Court of Appeals, in which evidence... is divided into evidence of ‘ongoing criminal behavior,’ on the one hand, and ‘probabilistic’ evidence, on the other, is not in keeping with... our decisions. It also seems to us to draw a sharp line between types of evidence, the probative value of which varies only in degree. In order to distinguish “mere association” from other evidence of criminal activity, more is needed than the conclusory assertion that “person-specific” evidence is preferable to “probabilistic” evidence. No facts are “inherently” probative; apparently innocent events may add up to strong suspicion, and apparently damning facts may be innocent. All inferential processes are probabilistic. The likelihood that a gun-shaped bulge in a jacket pocket means a gun is just that — a likelihood, not qualitatively different from the likelihood that standing beside a drug dealer connects one to drugs. Just ask the person whose sunglasses case produced the bulge. Even a confession signed in blood just increases the probability of guilt; nothing in the legal process is certain. Acknowledging the statistical nature of inferential processes may well make them more accurate. See Branion v. Gramly, 855 F.2d 1256 (7th Cir.1988); Daniel R. Shaviro, Statistical-Probability Evidence and the Appearance of Justice, 103 Harv.L.Rev. 530 (1989). Perhaps drawing a line between a suspect’s status (e.g., where he lives) and his actions makes some sense for reasons independent of statistics, but frequenting drug houses or associating with drug dealers falls into the latter category by any definition. See United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir.1989). The critical question should be how reliable is the inference drawn from a given fact. The point of Ybarra is that presence in a bar where contraband is likely to be does not amount to probable cause; presence is not irrelevant. Most but not all of the evidence that Silva was involved in criminal activity piggybacks on evidence of Chaidez’ complicity. The statement in Ybarra, 444 U.S. at 91, 100 S.Ct. at 342, that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” is inapplicable for two reasons: here we have more, and we don’t need probable cause. Silva and Chavira met Chaidez and drove in tandem with him to a gas station. They took a different route from Chaidez but met him on Lake-Cook Road. It’s common to tell a friend you’ll meet him at your house and to drive separately. But the Pontiac was observed in front of Chaidez’ Cadillac before reaching the house. Why separate and meet up again on the road other than as a counter-surveillance tactic? When the three entered the house, Chaidez was still carrying the plastic bag; when he emerged he no longer had the bag in his hand. Finally, right before the stop, the police thought they had been “made” and that both cars were trying to flee. Flight is relevant to whether a detention was reasonable. Sibron, 392 U.S. at 66-67, 88 S.Ct. at 1904-05; United States v. Clark, 743 F.2d 1255, 1260 (8th Cir.1984). Because the detention fell short of an arrest, the principal facts (Silva’s connection to Chaidez on a day when he was probably conducting his drug business, together with her strange rendezvous with him on the road and the perceived sudden flight) justified the seizure. The police did what courts tell them to do: they conducted an extensive surveillance instead of just acting on a tip, they waited until their observations indicated illegal activity, they made the stop only because it was necessary — the bad guys were getting away. These agents behaved reasonably. Ill A. Two other Fourth Amendment challenges remain. Chaidez contends that the search of his apartment, to which he consented after the search of the stash house on Weiland Road turned up drugs, was the fruit of his illegal detention. Because Chaidez’ detention was reasonable, this issue drops out. Chavira takes a different tack. He maintains that Silva did not have authority to consent to the search of the house (his house). (Silva parrots this argument, but it can’t help her; whether or not she had authority to allow an intrusion into her stepfather’s privacy, she certainly could surrender her own privacy interest, which she did by consenting. See United States v. Fuesting, 845 F.2d 664, 671 (7th Cir.1988).) Chavira emphasizes that nothing Silva said to Agent Rodriguez indicated that she had authority to consent to the search of the house. Police may search pursuant to a consent if they reasonably believe that the person consenting has authority to consent — if the person has apparent authority. Illinois v. Rodriguez, — U.S.-, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir.1989). Silva answered “no” when asked whether she lived in the house and said that she was there only to do laundry. Chavira insists that it cannot be reasonable to infer authority from such responses, and we agree. The district court found that Silva had authority “based on her representation [to Agent Rodriguez] that she had rented the property for her father.” But this cuts the other way: it should have put Agent Rodriguez on notice that Chavira and not Silva resided in the house. Renting a place “for” someone else may create a sub-lease. A landlord does not have authority to permit a search of his tenant’s leasehold, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), and the same holds for a tenant and his sub-tenant. Use of and access to the property are the touchstones of authority, United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974), and, for all Agent Rodriguez knew, Silva had neither. Apparent authority is sufficient but not necessary; if Silva had actual authority, that is enough. We know of no case where the defendant successfully used lack of apparent authority as a defense even though actual authority was present. Cf. Feguer v. United States, 302 F.2d 214, 248-50 (8th Cir.1962) (characterizing such a position as “intriguing” but rejecting it because no privacy interest of defendant was invaded). An argument does exist for looking only to apparent authority and ignoring actual authority: the purpose of the exclusionary rule is to deter unreasonable police conduct, so if the police unreasonably, but correctly, believe the third party is authorized to consent, suppression might serve the purpose of deterring future unreasonable police conduct in the majority of cases where the police turn out to be incorrect. Probable cause similarly is viewed ex ante, so that a search does not become “reasonable” because of what it turns up. All questions under the Fourth Amendment are resolved objectively. See Horton v. California, — U.S. -, 110 S.Ct. 2301, 2308-09, 110 L.Ed.2d 112 (1990). Nonetheless, the argument is unpersuasive for two reasons. First, the Supreme Court said in Rodriguez that “[i]f [apparent authority does not exist], then warrant-less entry without further inquiry is unlawful unless actual authority exists.” 110 S.Ct. at 2801 (emphasis added). Second, this statement is not an accident but is consistent with the theory of consent searches. Consents define the extent of the privacy interest a person seeks to assert. If someone who actually has a privacy interest surrenders that interest voluntarily, he may not later claim that the police should have refused the offer. Having accepted a lower degree of privacy, the suspect has surrendered the foundation for an argument under the Fourth Amendment that the police invaded an area he sought to preserve. The Fourth Amendment applies in the first place only to things persons seek to hold in confidence. So actual authority over the premises is enough to permit a search. What of the interests of the co-tenant? The underpinning of third-party consent is assumption of risk, Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7 (1974). One who shares a house or room or auto with another understands that the partner may invite strangers — that his privacy is not absolute, but contingent in large measure on the decisions of another. Decisions of either person define the extent of the privacy involved, a principle that does not depend on whether the stranger welcomed into the house turns out to be an agent or another drug dealer. Silva paid the electricity and telephone bills for the house, both of which were in her name. The police found women’s clothing in the bedroom, and although the clothes were not directly linked to Silva, it is a natural inference that they were hers. And the owner of the property testified at trial that he rented the house to both Silva and Chavira. Silva is a lessee, and ordinarily a lessee has every right to permit a search of the leased premises. Matlock; United States v. Main, 598 F.2d 1086, 1092 (7th Cir.1979). Silva had the power to admit strangers to the house; she admitted the police; because the police were there at the sufferance of someone entitled to admit them, the evidence they obtained is admissible against everyone. Chavira responds to these facts by seizing on a key footnote in Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7: “The authority which justifies the third-party consent does not rest upon the law of

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?

WATKINS et al. v. HUDSON COAL CO. No. 8651. Circuit Court of Appeals, Third Circuit Argued Jan. 11, 1945. Decided Sept. 5, 1945. Rehearing Denied Oct. 2, 1945. McALLISTER, Circuit Judge, dissenting in part. James G. McDonough and Stanley F. Coar, both of Scranton, Pa. (J. Frank Connolly, of Scranton, Pa., on the brief), for appellants. George Szabad, of Washington, D. C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Ernest N. Votaw, Regional Atty., of Philadelphia, Pa., and Harry M. Leet, Atty., United States Department of Labor, of Washington, D. C., on the brief), for Wage and Hour Division, amicus curiae. R. S. Houck, of Scranton, Pa. (Francis D. Mahon, of Scranton, Pa., and Thomas L. Ennis, of New York City, on the brief), for appellee. Before GOODRICH and McALLISTER, Circuit Judges, and GIBSON, District Judge. GOODRICH, Circuit Judge. This is a civil action based on the “Fair Labor Standards Act of 1938”, to recover unpaid overtime wages claimed under § 7 (a) and liquidated damages, reasonable attorney’s fee and court costs claimed under § 16(b). Defendant is the owner and operator of certain coal mines in Pennsylvania in and around which plaintiffs are employed. That these employees are within the Act is not disputed. Thirty-eight employees filed complaint seeking recovery as indicated. Defendant coal company in answer to the complaint made application for stay of suit until arbitration had been had. Plaintiffs’ reply to the application was that the contracts set out in defendant’s answer and upon which defendant affirmatively relied were illegal and void as against public policy and contrary to the Act. The District Court ordered that trial be “stayed until arbitration has been had in accordance with the terms of the agreements * * * This is the order appealed from. A brief has also been filed for the Administrator of the Wage and Hour Division, United States Department of Labor as amicus curiae. Certain matters of fact were stipulated by the parties, which will be considered later in conjunction with the requirements of the Act. Our conclusion is that the matter should proceed to arbitration, but only in accordance with the rulings of law as hereinafter set out. The events separate naturally into three distinct time periods, each of which centers upon a different problem under the Act. The first period extends from the effective date of the Act, October 24, 1938, until November 1, 1939, when an alleged formula method for overtime was announced. The second period extends from November 1, 1939, until May 1, 1941, when the Union-Operators Agreement of that day went into effect. The third period covers time subsequent to May 1, 1941. 1. First Period, October 24, 1938 to November 1, 1939. During this first period some of the plaintiffs were paid straight hourly rates and others straight monthly salaries. The defendant coal company admits that neither group of employees were paid any time and one-half overtime wages before November 1, 1939, but contends that the overtime due for the period was later paid by means of an “accord and satisfaction”. This conclusion is disputed by plaintiffs on the ground that whatever was done by employees was a mere “waiver” and ineffective to change their rights under the Act. Since plaintiffs were employed during the period under contention and since they were not paid the time and one-half rate provided in the Act for weekday hours over forty-four, it is perfectly clear that prima facie there is indicated on behalf of such employees a claim for the pay that they were entitled to under the Act, together with liquidated damages and attorney’s fee. But, says the company, we settled all that controversy by the agreement of May, 1941, made between the union and the company with the union as the authorized bargaining agent for these employee-plaintiffs. We settled it by the provision in the contract that “The wage adjustments provided herein for employees customarily working forty-two hours a week, or more, constitute full settlement and satisfaction of all their claims, if any, for overtime against any signatory operator arising out of employment prior to May 1, 1941.” What is the effect of this clause in the agreement? It is now authoritatively settled that a waiver by an employee, even by a release under seal, of his rights against an employer under the Act is not effective to bar him from subsequent assertion of those rights. Brooklyn Savings Bank v. O’Neil, and its companion cases, 65 S.Ct. 895, 900, decide this, as do the flock of well considered cases in the District Courts and Circuit Courts of Appeal. But in the Brooklyn Savings Bank decision the Court indicated that other considerations might apply if the sum paid by an employer to an employee was the “result of the settlement of a bona fide dispute * * * with respect to coverage or amount.” The inference is that if there were, between employer and employee, a dispute either as to whether an employee was covered by the Act or, if so. how much he had coming to him by reasons of the provision of the Act, settlement between the two parties of their dispute may, under proper circumstances, be upheld. But we do not see how the facts of this case, at any rate on the state of the record now before us, bring the claim here involved within the exception mentioned by the Supreme Court as legally permissible. The identity of these employees is established through their lawsuit. We do not understand that the hours or terms upon which they worked prior to May, 1941, is subject to serious dispute. That their employment is covered by the Act is conceded. The amount which in May, 1941, was due them under the Act may be mathematically calculated by simple arithmetic once the hours are separated into regular and overtime hours. We have then no settlement of a dispute with respect to coverage or amount involved here. We have, instead, the question of whether a purported settlement can be effected by a modification upward of the wage scale formerly existing. In other words, the company, to meet its obligation incurred by reason of its failure to pay the employees, says that in the future it will pay its men so much. That, it says, may be stipulated as a settlement of claims under the Act which have accrued to the employee. We do not think this is compliance with the Act. The history of the discussions concerning it and the judicial interpretation of the intent of the Act have been developed for us by the Supreme Court and brought into highlight by various dissenting opinions. We think that the change in wage scale is not a settlement for amounts admitted due under the Act prior to the adoption of the new scale and that that case is like the waiver case which the Supreme Court has declared not valid settlement under the statute. The soundness of this conclusion is demonstrated, we think, by a little further analysis of the considerations which might bear on the differences between a waiver and the settlement under bona fide dispute mentioned by the Supreme Court. The company urges the increased payments under wage adjustments and the advantage of having these adjustments permanently incorporated in the wage scale as the equivalent of the payment which complies with the Act. It must be remembered, however, that the right of time and one-half for overtime, plus liquidated damages for failing to get it, is an individual right of the employee, not a criminal sanction nor even a general right given to the employees’ bargaining unit. Unless an individual employee remained in the company’s employ for long enough after the adoption of this increased wage scale to be paid whatever he had coming under the Act before the wage scale went into effect, he has not been compensated as the Act requires. Furthermore, we do not know, nor see how it could be demonstrated, how much of the increased wage scale was for payment of compensation due under the Act and how much of it may have resulted from economic pressure by the bargaining agent or how much of it came naturally on a rising wage scale market. The contested clause states that the wage adjustments apply to “all claims, if any, for overtime”. We think the very nature of the language used shows that the inclusion of the overtime claims was but part, perhaps only a nominal part, of the bargaining by which the new wage scale was determined. Our conclusion is that the terms of the new wage scale is not a settlement sufficient under the Act in the light of the Supreme Court decisions above cited. 2. Second Period, November 1, 1939, to May 1, 1941. The second period running from November 1, 1939, to May 1, 1941, involves the interpretation of a resolution of the Board of Conciliation of September 5, 1939, providing: “(1) In compliance with the basic hour and rate provision of the Fair Labor Standards Act of 1938, which provides for a maximum of forty hours per week in October, 1940, plus punitive rates for time in excess thereof, it is agreed that the forty hours per week shall be the basis for a formula, which will produce earnings that shall be the same as earnings of such employees for equal time worked;”. It is readily apparent that this clause gives rise to two problems: First, whether the formula described was actually instituted, and, second, whether if instituted it was valid under the Act. If the formula was not actually applied to determine wages then obviously its legality is irrelevant. If it was applied then its legality turns upon precisely the same considerations as the central question of the third period, and would better be considered in conjunction with that question. The central question of the second period, that is, whether a formula was really adopted, can be answered only by considering what was paid and how it was paid. The language of the clause itself is not at all revealing. The words “forty hours per week shall be the basis for a formula” producing equal earnings for equal time worked indicates nothing beyond an intent expressed on the part of the Conciliation Board to adopt a formula which intent might be imputed to the parties on principles of agency. Our problem is, however, not with intent but with realization of intent. As the District Court pointed out, the effect of the resolution and the entire series of agreements which all provided for action by the Arbitration Board, “was to authorize each employer in the industry to adopt any formula which would comply with the Act * * *. There is no doubt that * * * a formula * * * could be worked out.” The coal company used the same reasoning to go one step further and say “Id certum est quod certum reddi potesti.” But it is one thing to say that a formula was authorized, even let us say intended, and quite a bit more to conclude that it was actually applied. The defendant urges that “the Board of Conciliation by the resolution of September 5, 1939 sought to provide a general formula * * * leaving the mere mathematics of determining each individual rate to bookkeepers.” But the “mere mathematics” of bookkeeping, far from substantiating the view that a formula was in operation, does exactly the opposite. It indicates clearly that however readily a formula might have been made operative none in fact actually was. Thus we may take a specific example: that of John Sawczak for whom representative due bills are photostatically reproduced and before us. The coal company says: “the plaintiff, John Sawczak’s regular rate of pay during the period from October 29, 1939 to October 27, 1940 was $0.60 per hour for the first 42 hours worked in each week, which was the regular hourly rate established for the work done by plaintiff John Sawczak in accordance with the resolution of the Board of Conciliation * * * and one and one-half times that rate for all hours worked by him in excess of 42 hours in any week.” It will be noted that the base or regular rate was acknowledged to be $0.60 per hour under the resolution of the Board of Conciliation for the first two-thirds of the second period. Now let us take a due bill and compare. There is reproduced the due bill for November 1-15, 1939. This period comprises two weeks and one day, during which 112 hours were worked and $82.64 earned. If we assume that 8 hours were worked on the extra day then we have a total of 92 hours at regular rate of $0.60 ($55.20) plus 20 hours at time and one-half rate of $0.90 ($18.00) or a total of $73.20. If we assume that the employee did not work at all on the fifteenth day we have, by the same method of computation, a total of $75.60. If we assume that he worked 12 hours on that extra day we only reach a total of $72, or to go still further and assume he worked 16 or 24 hours on that fifteenth day we get respectively $70.80 and $68.40. No computation except one can yield the wages shown on the due bill for the hours worked and that one is under the old rate. When the old rate of $0.7379 shown on the due bills prior to the second period is multiplied by the 112 hours worked we get the precise amount of $82.64 shown as earned and computed to the half cent. The same procedure could be followed with the other due bills of John Sawczak. Similarly the facts hold for John K. Hohn whose due bills are also photostatically reproduced. And since the parties agree that these samples are indicative of the whole, it is clear what our conclusion must be. The formula under the resolution was never applied. The wages received for the hours worked squared only with the old rates and not with any possible formula rates. The formula may have been easy to apply but the fact is that it was not applied. And the formula can not stand as adopted simply by incantation of the Conciliation Board’s resolution. It can only be shown to have been adopted by utilization. The very ease with which the formula could have been applied — a matter of “mere mathematics” and “bookkeeping” — renders all the more striking the conclusion that it was not done. As to this period it appears that the plaintiffs, at least those whose situation is like that of the employees shown on the samples of due bills introduced by stipulation, can recover for this period without decision of any question of legal validity of any formula. The point is that the old rate was in fact paid and no formula was applied. The effect of the 1941 agreement on the claim has already been disposed of by the discussion under division one of this opinion. 3. Third Period, May 1, 1941, and Following. The third period covers time subsequent to May 1, 1941. Section 7 of the Wage Agreement of May 20, 1941, gave birth to a new specific formula about which the controversy of the third period turns. The section reads: “(7) The hourly rates of employees, exempted from the provisions of the seven-hour day under the Agreement of May 7, 1936, who have not been adjusted to a forty-hour basis and who regularly worked a fixed number of hours of forty-two hours per week or more, shall be established for the period May 1, 1941 to September 30, 1941, by adding 7%% to their weekly earnings as calculated under the provisions of said agreement and dividing the sum by the hours regularly employed weekly plus one-half the hours worked in excess of forty hours; and for the period October 1, 1941, to April 30, 1943 by adding 10% to their weekly earnings as calculated under the provisions of said agreement and dividing the sum by the hours regularly employed weekly plus one-half the hours worked in excess of forty hours.” The formula here, unlike that of the second period, is specific, detailed and clear. We are confronted with two questions. Was the formula, in fact, applied? Second, if so, is it a valid mode of meeting the requirements of the Act? The wage increases were clearly granted. Wage increases, however, were not required by the Act, but left to the bargain between the parties. What the statute requires is a fixed rate for the regular hours and a time and one-half rate for overtime hours. But for this period, as for the second period, we find that the old rates and not the formula rates fixed the amount of the employee’s pay. It is not necessary to repeat similar arithmetical calculations. Suffice it to add that of the four sample due bills submitted for John Sawczak for this third period, one actually carries the rate printed on it as “.8116”. Now if the number of hours on this due bill, 120, are divided into the earnings, $97.36, we get a straight-rate quotient of $.8113, a difference of only 3/100 of a cent. It is obvious that the actual rate used was a straight-time rate and not the formula rate. Employees’ wages were figured just as before. There was no application of the regular rate and overtime rate at all. Instead, there was complete reliance upon the fact that a formula had been determined and announced in writing in a wage agreement. But in the one place where an announcement of rates actually used might really be determinative, i.e., on the due bills, there was not merely silence as to regular and overtime rates but obvious evidence that the straight rate method had been used. It is true that on this very due bill, there also appeared the following: “the earnings shown on this due bill have been computed in accordance with the provisions of section (7) of agreement of May 20, 1941.” But, of course, the law does not recognize the mere recital of an act as done, as the equivalent of the actual doing of the act. Even the method of taking deductions for absences was premised on a straight-rate system rather than the required method. Thus the May, 1941 agreement provides : “To avoid undue deductions for absences the parties agree that the rate of deduction per day from weekly earnings for absence of any such employee shall be determined by dividing his weekly earnings, when regularly employed, by the number of days in his regular work week.” On a straight-rate basis it will be seen the total earnings divided by days worked gives a perfectly fair figure per day. But on a regular plus overtime basis, the particular day in the week that is missed is the chief factor since it may be an overtime day rather than a regular rate day. So for this period, as well as the second period, the conclusion is clear that formula and practice did not follow each other. The employees continued to be paid on a straight time basis and not by a giving of the increased amount for overtime provided in the statute. The Formula Consideration of the formula is the next step, lest it be concluded that a change in method of computation on a due bill would show compliance with the Act. The Supreme Court in a series of cases extending from June, 1942, until June, 1945, has laid down the outlines within which a formula must fall to meet the statutory requirements. The crux of the matter is that the regular rate, however established, must be a bona fide rate and not a fictitious one. In Overnight Motor Transportation Co., Inc., v. Missel, 1942, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, which together with Walling v. A. H. Belo Corp., 1942, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, decided on the same day, constitutes the first sharp analysis by the Supreme Court of the question, the court laid down the principle that enabled a regular rate to be determined when it was not specifically stated. The court there said [316 U.S. 572, 62 S.Ct. 1221]: “Neither the wage, the hour nor the overtime provisions of sections 6 and 7 on their passage spoke specifically of any other method of paying wages except by hourly rate. But we have no doubt that pay by the week, to be reduced by some method of computation to hourly rates, was also covered by the act.” To determine the regular hourly rate thus became a mere matter of division under the Missel case rationale. See Walling v. Helmerich & Payne, Inc., 1944, 323 U.S. 37, 40, 65 S.Ct. 11. But whether the regular rate was explicitly stated or had to be figured out as indicated, the essential test of its sufficiency was whether it was an actual regular rate or a fictitious one. The defendant here, as defendants have in other cases under the Act, relies heavily on the Belo decision, supra. In that case the C6urt upheld a contract rate as a legal regular rate. Belo is readily distinguished from the instant case. There only the overtime varied, though never below the 150% minimum provided by law. Thus the Court said [316 U.S. 624, 62 S.Ct. 1227]: “To be sure, $1,753 is more than 150% of $.67. But the Act does not prohibit paying more; it requires only that the overtime rate be ‘not less than’ 150% of the basic rate. It is also true that under this formula the overtime rate per hour may vary from week to week. But nothing in the Act forbids such fluctuation.” Furthermore, in the Belo situation the expressed purpose was not to keep the pay levels exactly the same as before the Act (which would at least put one on inquiry as to whether the so-called regular rate was fictitious) but only to do so insofar as possible under the Act. In the instant case we have neither the limitation of purpose to make the new wage payment plan a duplicate of the old insofar as possible nor the limitation of fluctuation only to the overtime rate. Both regular and overtime fluctuate in our formulae. Both these limitations apply to the Belo case and serve to distinguish it on principle. Furthermore, in the words used by the Supreme Court to distinguish the Belo case from Walling v. Youngerman-Reynolds Co., 65 S.Ct. 1242, 1246, 1250: “This Court’s decision in Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, lends no support to respondent’s position. The particular wage agreements there involved were upheld because it was felt that in fixing a rate of 67 cents an hour the contracts did in fact set the actual regular rate at which the workers were employed. The case is no authority, however, for the proposition that the regular rate may be fixed by contract at a point completely unrelated to the payments actually and normally received each week by the employees.” Following the ground clearing decisions of the Missel and Belo cases came three Supreme Court decisions which we think directly applicable to the instant case. In Walling v. Helmerich & Payne, Inc., 1944, 323 U.S. 37, 65 S.Ct. 11, 12, the attempt to maintain wage levels as before was by means of contracts under the so-called Pox-on or split-day plan. The actual mechanics of the Poxon formula were that each tour was arbitrarily split in half and the first part compensated by regular wage rates while the second part received the overtime rate of 150%. There was thus an apparent compliance with the Act. But actually because of the figures at which the new regular rate was set, exactly the same wages as before were paid. This is precisely what has occurred under the formula of the instant case. The Court’s analysis of the workings of the Poxon plan shows to what full degree it is the essence of the formulae of the instant case: “These so-called ‘regular’ and ‘overtime’ hourly rates were calculated so as to insure that the total wages for each tour would continue the same as under the original contracts, thereby avoiding the necessity of increasing wages or decreasing hours of work as the statutory maximum workweek of 40 hours became effective. Only in the extremely unlikely case where an employee’s tours [of duty] totalled more than 80 hours in a week did he become entitled to any pay in addition to the regular tour wages that he would have received prior to the adoption of the split-day plan. Until more than 80 hours had been worked the plan operated so that the employee could not be credited with more than 40 hours of ‘regular’ work, the remaining time being denominated ‘overtime.’ Hence, since the wages under the old system and under the split-day plan were identical, the original tour rates could be used as the simple method of computing wages for each pay period. The actual and regular workweek was accordingly shorn of all significance'.” And the conclusions of the Court in the Helm erich case apply equally well to our case: “The vice of respondent’s plan lay in the fact that the- contract regular rate did not represent the rate which was actually paid for ordinary, non-overtime hours, nor did it allow extra compensation to be paid for true overtime hours. It was derived not from the actual hours and wages but from ingenious mathematical manipulations, with the sole purpose being to perpetuate the pre-statutory wage scale.” “Any other conclusion in this case would exalt ingenuity over reality and would open the door to insidious disregard of the rights protected by the Act.” Any formula, whatever its type, whether Poxon plan or a plan similar to that used in the case at bar or some other plan, so long as it is conditioned entirely upon maintaining actually and essentially the same mode of payment as before the Act, is inevitably illegal in that it creates a fictitious regular rate. In Walling v. Youngerman-Reynolds Hardware Co., 65 S.Ct. 1242, 1250, a formula was devised which although conditioned upon maintaining the old mode of payment unaltered was patterned in general terms upon the Belo formula’s guaranty requirement in an attempt to run the gantlet of the Act. But the very guaranty feature was so devised that under it employees would be paid by a piece rate as before. The plan failed to meet the statutory requirement. In Walling v. Harnischfeger Corp., 65 S.Ct. 1246, 1248 (decided the same day as the Youngerman-Reynolds case, supra, June 4, 1945) the Court further added: “Our attention here is focused upon a determination of the regular rate of compensation at which the incentive workers are employed. To discover that rate, as in the Youngerman-Reynolds case, we look not to contract nomenclature but to the actual payments, exclusive of those paid for overtime, which the parties have agreed shall be paid during each workweek.” From what has been said in this review of Supreme Court opinion it is clear that for a formula to be productive of a regular rate and overtime rate such as will meet the requirements of the Act, it must not be a mere mathematical cloak under which to continue the same payment practices as hitherto. The rate established as the regular rate, in order to be adjudged actual and not fictitious, must either (1) bear a real relation to actual earnings as deduced by the Missel case principle or (2) it must be a genuine contractual decrease in wages, based upon bargaining individual or collective. Under such a test of the requirements of the Act, the formulae of the instant case clearly fail. The evidence already marshalled is clearly indicative that the formulae were directed only to one goal, i.e., to continue the old methods of payment for work while ostensibly meeting the requirements of the Act technically and technicalities are not enough. Arbitration Our final problem has to do with the question of arbitration. As stated above the District Court stayed the lawsuit until arbitration could be had. The provision in the contract of the parties for arbitration goes clear back to the year 1903 following the settlement in the famous anthracite coal strike of that period. There are three points with regard to the arbitration here. The first point; has to do with the question whether the formula and the waiver provisions which we have found to be insufficient under the Act so completely vitiate the contract for illegality that no reference to arbitration can be made. We think this question must be answered in the negative. The sufficiency of the wage formula and the provision for waiver are entirely separable elements of the contract between the parties. We do not refer to arbitration the question of legality of the formula. That is a question of law which the Court must take responsibility in answering. All we are saying upon this point is that the arbitration provision is not rendered ineffective because the contract contains one clause, setting out the formula, and another clause setting forth a provision for waiver which we deem insufficient under the statute. The next point is whether there is anything to refer to arbitration. We think the answer to this question is yes. After the rights of claimants have been determined as a matter of law there is still the not inconsiderable problem of determining how much each claimant is entitled to. That involves his identity as an employee of the defendant, the question of the days and hours on which he worked and the calculation of the amount of money to which he may be entitled under the Act. It is the kind of problem which is properly referable either to a special master or an arbitrator, and since the parties by contract have provided for arbitration we think the reference is appropriate in this instance. The third question has to do with the application to this situation of the United States Arbitration Act, 9 U.S.C.A. § 1 et seq. We have already answered that question in Donahue v. Susquehanna Collieries Co., 1943, 138 F.2d 3, 149 A.L.R. 271, and the District Court followed that decision in making the order which it did. Our analysis of the problem involved has found support since in a decision by, the Fourth Circuit in Agostini Bros. Bldg. Corp. v. United States, 1944, 142 F.2d 854. The Sixth Circuit has doubted the correctness of our result. Gatliff Coal Co. v. Cox, 1944, 142 F.2d 876. Without repeating the discussion of the problem which we made in the Donahue decision, we adhere to the result there reached and for the reasons there given. We think the criticism made by our colleagues in the Sixth Circuit is not convincing. While it is true that in defining commerce in section 1 contracts of employment of specified types of employees were excluded, it should be noted that this exclusion was only in the definition of commerce in that section. Section 3 of the statute does not use the term commerce. We do not think that the limitation in the definition in section 1 should be applied as an over-all limitation elsewhere to the section where the defined term is not used. We, therefore, adhere to the Donahue decision and with increased confidence because of its emphatic approval by the Fourth Circuit in the case just cited. The stay order, in the District Court, by which the action is stayed pending arbitration, should be modified so that the proceedings in arbitration will be conducted under the rules of law as set out herein. As thus modified the order of the Court below is affirmed. Act of Congress June 25, 1938, Chapter 676, 29 U.S.C.A. § 201 et seq. § 207(a) of Title 29 U.S.C.A. provides: “No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce— “(1) for a workweek longer than forty-four hours during the first year from the effective date of this section, “(2) for a workweek longer than forty-two hours during the second year from such date, or “(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” § 216(b). of Title 29 U.S.C.A. provides: “Any employer who violates the provisions of section 206 and section 207 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. * * * The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” “Agreement as to Facts “For the purposes of preliminary hearing in the above entitled case upon the separate and distinct defense of Defendant’s Answer averring agreement for arbitration and its application for stay of all proceedings before this court until such arbitration has been had, the parties by their attorneys agree to the following facts: “(1) The several contracts pleaded in Defendant’s Answer were made as therein alleged and the copies thereof attached to said Answer as exhibits are true and correct copies of the original contracts. “(2) The defendant, the Hudson Coal Company, is a party to these contracts. “(3) Plaintiffs were members of District No. 1 of the United Mine Workers of America at all times involved in these proceedings. “(4) Plaintiffs were at all times employed in ‘occupations continuously manned’ within the meaning of that phrase as used in the last paragraph of section (3) of the Agreement of May 7, 1936. “(5) Plaintiffs were employed at all times in occupations in and about defendant’s mines necessary to the mining and preparation of anthracite coal for market in the capacities stated in the Complaint and Answer, and none of the power, electric or otherwise, produced in any plant in which any of them worked was used in transportation other than in hauling the unprepared coal out of the mines to the breaker where it was prepared for market. “(6) That the various due bills of John Sawczak are correct photostatie copies of original due bills issued to him by defendant and are illustrative of all due bills received by the various plaintiffs herein originally employed on an hourly basis. “That the various due bills of John K. Hohn are correct photostatic copies of original due bills issued to him by defendant and are illustrative of all due bills received by the various plaintiffs herein originally employed on a monthly basis. “While defendant has agreed to the foregoing stipulation in reference to due bills at the request of plaintiffs, it refrains from offering any explanation of said due bills or any evidence relating to the conduct of the parties subsequent to effective dates of the respective Wage Agreements involved, because it believes that such due bills, explanations and evidence are irrelevant and immaterial to the issues before the Court upon this preliminary hearing and motion, and may not properly be heard and considered at this time.” Section 7, Wage Agreement of May, 1941. Fleming et al. v. Post et al., 2 Cir., 1944, 146 F.2d 441; Seneca Coal & Coke Co. v. Lofton, 10 Cir., 1943, 136 F.2d 359; Rigopoulos v. Kervan, 2 Cir., 1943, 140 F.2d 506, 151 A.L.R. 1126; Birbalas v. Cuneo Printing Industries, 7 Cir., 1944, 140 F.2d 826; Atlantic Co. v. Walling, 5 Cir., 1942, 131 F.2d 518; Johnson v. Dierks, Lumber & Coal Co., 8 Cir., 1942, 130 F.2d 115; Carleton Screw Co. v. Fleming, 8 Cir., 1942, 126 F.2d 537; Fleming v. Warshawsky, 7 Cir., 1941, 123 F.2d 622; McNorrill v. Gibb, D.C.E.D.S.C.1942, 45 F.Supp. 363; Hutchinson v. Wm. C. Barry, Inc., D.C.D.Mass.1942, 44 F.Supp. 829; Travis v. Ray, D.C.W.D. Ky.1941, 41 F.Supp. 6. While we later conclude that such matters as determination of regular and overtime hours from total hours agreed upon as worked is a matter for arbitration, that does not imply that it is a matter of dispute. For the Award of the Strike Commission of 1903, continued in all subsequent agreements between the parties, states, "that any difficulty” as well as “disagreement * * * either as to * * * interpretation or application, or in any way growing out of the relations of the employers and employed” which is “of a scope too large” to “be settled or adjusted by consultation between the superintendent or manager of the mine or mines, and the miner or miners directly interested * * * shall be referred to * * * a Board of Conciliation”. This resolution as well as the contracts between the parties were all

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?

BROWN et al. v. BOARD OF EDUCATION OF TOPEKA et al. NO. 8. October 8, 1952. Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William.R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants. Oliver W. Hill was also with them on the brief in No. 191. T. C. Callison, Attorney General of South Carolina, John W. Davis, Robert McC. Figg, Jr. and William R. Meagher for appellees in No. 101. J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson and John W. Riely for the Prince Edward County School Board et al., appellees in No. 191. Per Curiam. In two appeals now pending, No. 8, Brown et al. v. Board of Education of Topeka et al., and No. 101, Briggs et al. v. Elliott et al., the appellants challenge, respectively, the constitutionality of a statute of Kansas, and a statute and the Constitution of South Carolina, which provide for segregation in the schools of these states. Appellants allege that segregation is, per se, a violation of the Fourteenth Amendment. Argument in these cases has heretofore been set for the week of October 13, 1952. In No. 191, Davis et al. v. County School Board of Prince Edward County et al., the appellants have filed a statement of jurisdiction raising the same issue in respect to a statute and the Constitution of Virginia. Appellees in the Davis casé have called attention to the similarity between it and the Briggs and Brown cases; by motion they have asked the Court to take necessary action to have all three cases argued together. This Court takes judicial notice of a fourth case, which is pending in the United States Court of Appeals for the District of Columbia Circuit, Bolling et al. v. Sharpe et al., No. 11,018 on that court’s docket. In that case, the appellants challenge the appellees’ refusal to admit certain Negro appellants to a segregated white school in the District of Columbia; they allege that appellees have taken such action pursuant to certain Acts of Congress; they allege that such action is a violation of the Fifth Amendment of the Constitution. The Court is of the opinion that the nature of the issue posed in those appeals now before the Court involving the Fourteenth Amendment, and also the effect of any decision which it may render in those cases, are such that it would be well to consider, simultaneously, the constitutional issue posed in the case of Bolling et al. v. Sharpe et al. To the end that arguments may be heard together in all four of these cases, the Court will continue the Brown and Briggs cases on its docket. Probable jurisdiction is noted in Davis et al. v. County School Board of Prince Edward County et al. Arguments will be heard in these three cases at the first argument session in December. The Court will entertain a petition for certiorari in the case of Bolling et al. v. Sharpe et al., 28 U. S. C. §§ 1254 (1), 2101 (e), which if presented and granted will afford opportunity for argument of the case immediately following the arguments in the three appeals now pending. It k to ordered. Mr. Justice Douglas dissents from postponing argument and decision in the three cases presently here for Bolling et al. v. Sharpe et al., in the United States Court of Appeals for the District of Columbia Circuit.

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?

Eben HOPSON, Sr., et al., Plaintiffs-Appellants, v. Juanita KREPS et al., Defendants-Appellees. No. 79-4151. United States Court of Appeals, Ninth Circuit. July 14, 1980. Wickwire, Lewis, Goldmark, Dystel & Schorr, Seattle, Wash., on brief; Charles A. Goldmark, Seattle, Wash., for plaintiffs-appellants. Bruce C. Rashkow, Dept, of Justice, Washington, D.C., on brief; Margaret Strand, U.S. Atty., Alaska, for defendantsappellees. Before WALLACE and FARRIS, Circuit Judges, and EAST, District Judge. Honorable William G. East, United States District Judge, District of Oregon, sitting by designation. WALLACE, Circuit Judge: This case presents difficult questions of statutory interpretation, justiciability, and the scope of judicial review of administrative action in foreign affairs. Hopson brought this action against the United States, the Secretary of Commerce and other government personnel and agencies (government) to challenge the validity of Department of Commerce regulations adopted pursuant to the International Whaling Convention Act of 1949. 16 U.S.C. §§ 916-9167. The district court dismissed the action as presenting a non-justiciable political question. Hopson v. Kreps, 462 F.Supp. 1374 (D.Alaska 1979). Because we find that the district court had jurisdiction to consider Hopson’s statutory claim, we reverse and remand. I. The 1946 International Whaling Convention (Convention), 62 Stat. 1716, was entered into for the purpose of strengthening efforts to conserve whale populations around the world. Since prior treaties could only be amended by formal protocol, and therefore did not lend themselves to establishment of seasonal quotas for the taking of whales, a major purpose of the Convention was the creation of an international commission with power to fix such quotas. See Hopson v. Kreps, supra, 462 F.Supp. at 1375. The Convention thus empowered an International Whaling Commission (Commission) to establish a detailed set of whaling regulations and quotas, called a Schedule, which may be amended by a vote of three-fourths of the members of the Commission. The Commission consists of a representative from each “Contracting Nation.” Although the Commission has authority to amend the Schedule of regulations pursuant to Article V of the Convention, it has no authority to amend the Convention itself. The subject of this controversy, the bow-head whale, is one of the most endangered whale species. Since 1946, the bowhead has been completely protected under the Schedule, except for an exemption for native subsistence whaling. This controversy began in 1977 when the Commission voted 17-0, the United States abstaining, to eliminate the native subsistence exemption. The policy dilemma for the United States stems from the fact that native hunting for the bowhead whale is considered to be an integral part of Eskimo life and culture. Indeed, the bowhead whale is viewed as vital to Eskimo nutrition, apart from its contribution to traditional living patterns. Largely for these reasons, the government prepared an extensive environmental impact statement to determine whether the United States should file an objection to the Schedule amendment. Pursuant to Article V of the Convention, if a Contracting Government objects to an amendment to the Schedule within 90 days, the amendment does not apply to the objecting nation. Although the United States decided not to object to the native subsistence whaling amendment, the government made it clear that it considered a total ban on subsistence whaling unacceptable. Since that time, the American delegation to the Commission has succeeded in obtaining a limited quota for the taking of bowhead whales by Alaskan natives. Hopson brought this action on behalf of Alaskan Eskimos, claiming that the Commission exceeded its jurisdiction under the Convention when it eliminated the exemption for subsistence whaling. Jurisdictional language in Article I of the Convention states that the Convention applies to “factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments . . . .” 62 Stat. at 1717. Article II defines “whale catcher” as “a ship used for the purpose of hunting, taking, towing, holding on to, or scouting for whales.” Id. Hopson contends that this definition was intended to apply only to commercial whaling vessels and not to the small boats used by Eskimos. More important for our purposes, Hopson contends that since Congress enacted the Whaling Convention Act of 1949 solely to implement the Convention, the Commerce Department was not authorized to adopt Commission regulations that exceed the scope of the Commission’s jurisdiction. The district court refused to address Hop-son’s statutory argument, however, and accepted instead the government’s contention that the interpretation of the Convention “is so intertwined with foreign policy considerations that [a] court has no jurisdiction to consider the validity of the [Commerce Department] regulations that implement the Commission’s Schedule.” 462 F.Supp. at 1378. In reaching this conclusion, the court relied heavily on affidavits submitted by the government tending to show that the nation’s efforts to develop international conservation would be damaged by a ruling adverse to the government. The government also contends before us that the decision of the executive not to object to the amendment of the Schedule constituted an exercise of unreviewable administrative discretion. We will consider first the district court’s conclusion that it lacked jurisdiction to determine the validity of the challenged regulations, after which we will consider the reviewability of the administrative action. II. The district court’s decision was rendered prior to our decision in United States v. Decker, 600 F.2d 733 (9th Cir.), cert. denied, 444 U.S. 855, 100 S.Ct. 113, 62 L.Ed.2d 73 (1979), which raised a similar issue. In Decker, criminal defendants appealed their convictions pursuant to a statute prohibiting violation of the treaty regulations of an international commission, contending that the convictions were outside statutory language limiting the scope of criminal liability. Specifically, the defendants contended that the Secretary of State lacked authority pursuant to a 1937 treaty to accept partially the regulations of the international commission, and that the Secretary’s action thus constituted a rejection of the regulations. Id. at 738. We held that the issue whether the regulations were validly accepted, and therefore applicable under the statute, was not rendered political merely because deciding it would require the interpretation of a treaty or have potential impact on the nation’s external relations. Since Decker involved an appeal from a criminal conviction for violation of the statute, we also stated that we would be particularly reluctant to withhold review where the validity of the regulations under the statute went to the validity of the criminal conviction we were charged to review. Id. The government has failed to distinguish this case from Decker. The government urges that the political question doctrine has prudential as well as Article III dimensions, and contends that its application involves a weighing of relevant considerations on a case-by-case basis. It asks us to sustain the decision of the district court on the basis of a finding that the court sensitively applied the well-known criteria enunciated in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), to the particular facts before us. We need not resolve the longstanding debate as to the nature and proper scope of the political question doctrine, however, to conclude that we are bound by our specific holding in Decker rather than the general formulation of Baker. The analysis in Baker makes it clear that the criteria enunciated there generally do not apply to claims that the executive has exceeded specific limitations on delegated authority. Id. at 217, 82 S.Ct. at 710. Moreover, in analyzing the Supreme Court’s foreign affairs cases, Baker stated that the Court’s decisions had reflected a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. Id. at 211-12, 82 S.Ct. at 707. The government misconstrues the content of this statement when it asserts that we should defer to the government because of the history of the executive branch’s management of the bowhead whale issue. The “particular question posed” here is whether the Commerce Department exceeded limits on its statutory authority in promulgating these regulations. Questions of statutory authority are clearly susceptible of judicial handling and involve the classic judicial function of construing statutes to determine whether agencies have acted outside their jurisdiction. See K. Davis, Administrative Law § 28.21 (Supp.1970), at 993-94. Similarly, to the extent that Hopson’s claim raises issues that go to the statutory authority of the Commerce Department, those claims cannot be subjected to the government’s characterization that they represent nothing more than an attack on the nation’s international conservation policy. Apart from these consideration, it is clear that in Decker we were cognizant of the Baker criteria when we determined that the issue there was justiciable. 600 F.2d at 737. We cannot say that similar issues are rendered non-justiciable merely by independently applying the Baker criteria and finding them applicable on these facts. The government next contends that this case is governed by our decision in Jensen v. National Marine Fisheries Service, 512 F.2d 1189 (9th Cir. 1975), rather than Decker. Our disagreement with this contention should not be surprising in light of our refusal in Decker to follow the district judge in this case. We expressly disagreed with his reliance on Jensen. United State. v. Decker, supra, 600 F.2d at 738 n.8. In Jensen, we held non-justiciable a claim that the Secretary of State had acted arbitrarily (and hence illegally) in accepting the regulation of an international commission enacted pursuant to a treaty similar to the one before us here. In Decker, we distinguished Jensen in two ways. First, we found that while Jensen involved a refusal to review a decision made within the range of a broad grant of discretionary authority in foreign affairs, the claim in Decker went to the very existence of the power of the executive to act as it did. United States v. Decker, supra, 600 F.2d at 737. Second, we observed that whereas in Jensen we denied plaintiff’s request for “declaratory and injunctive relief from the adverse economic effects of the challenged regulations,” a political question holding in Decker “would prevent us from reviewing the propriety of appellants’ convictions and prison sentences.” Id. at 738. The government relies on the second point, contending that Decker draws a distinction for purposes of justiciability analysis between a claim for declaratory relief and an appeal from a criminal conviction. But we do not read Decker as holding that justiciability turns on the slender reed that distinguishes the seeking of declaratory relief from the threat of prosecution and appellate review of a criminal conviction. Such a reading would be at odds with consistent holdings of the Supreme Court that persons subject to a real threat of criminal prosecution “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (citations omitted); accord, Craig v. Boren, 429 U.S. 190, 194-96 & n.5, 97 S.Ct. 451, 455-56, 50 L.Ed.2d 397 (1976); Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 506-08, 92 S.Ct. 1749, 1755-56, 32 L.Ed.2d 257 (1972); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Rather, we read Decker merely as stressing that the criteria of Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710, should not be applied indiscriminately and without considering that a refusal to decide, based on one or more of its prudential formulations, could have the effect of allowing persons to suffer criminal penalties for refusing to obey an invalid regulation. Finally, the government argues that its position is lent support by Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979), which was decided since Decker. In Goldwater, a plurality of the Supreme Court held that Senator Goldwater’s claim, that the President lacked authority unilaterally to terminate the United States treaty with Taiwan, presented a political question. It is significant that the opinion did not command the assent of a majority of the Court. More important, even the plurality opinion emphasized that the effects of the challenged executive action were entirely external to the United States, in contrast to the “profound and demonstrable domestic impact” of the executive action challenged in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), which it distinguished. 444 U.S. at 997, 100 S.Ct. at 534. As the implementation of regulations carrying criminal sanctions has a “demonstrable domestic impact,” it is clear that Goldwater does not affect our analysis in Decker. III. The government asks us to affirm the judgment of the district court on the alternative ground that the Secretary of State’s decision not to object to the amendment of the Schedule was action which the statute committed to his unreviewable discretion. The government asserts that because such a ruling holds that the statute granted the Secretary authority to determine the validity of the amendment under the Convention, it would have the effect of sustaining the challenged regulations rather than avoiding questions as to their validity. The government argues that this alternative ground can thus be squared with United States v. Decker, supra, 600 F.2d 733. The government is correct in observing that although “[i]t is the role of the judiciary to interpret international treaties and to enforce domestic rights arising from them,” id. at 737, treaties are relevant to the interpretation of congressional enactments only to the extent that Congress makes them relevant. Courts are empowered to give direct legal effect to treaties only insofar as they are self-executing and therefore operate as the law of the land. See Head Money Cases, 112 U.S. 580, 598— 99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884), 5 G. Hackworth, Digest of International Law 177-85 (1943); 14 M. Whiteman, Digest of International Law 302-16 (1970); Comment, Self-Executing Treaties and Human Rights Provisions of the United Nations Charter: A Separation of Powers Problem, 25 Buff.L.Rev. 773 (1976). Treaty regulations that penalize individuals, on the other hand, are generally considered to require domestic legislation before they are given any effect. L. Henkin, Foreign Affairs and the Constitution 159 (1972). Moreover, “if a treaty is not self-executing it is not the treaty but the implementing legislation that is effectively ‘law of the land.’ ” Id. at 157. The issue in any legal action concerning a statute implementing a treaty is the intended meaning of the terms of the statute. The treaty has no independent significance in resolving such issues, but is relevant insofar as it may aid in the proper construction of the statute. Thus, where courts have been persuaded as to the proper interpretation of an implementing statute, that judgment has not been affected by the claim that the reading given the statute was inconsistent with the intent of the parties to the treaty. United States v. Navarre, 173 U.S. 77, 19 S.Ct. 326, 43 L.Ed. 620 (1899); Botiller v. Dominguez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926 (1889). Moreover, although claims alleging that agencies have acted beyond their statutory authority are generally deemed justiciable, there is also no doubt that Congress has “the constitutional authority ... to lodge with the Secretary of State the authority to consider and pass upon the regularity and validity” of the actions of an international commission pursuant to a treaty. Z. & F. Assets Realization Corp. v. Hull, 311 U.S. 470, 486, 61 S.Ct. 351, 354, 85 L.Ed. 288 (1941). The government thus contends that Z. & F. Assets controls this case. There, award holders under the War Claims Act of 1928 sued to restrain the Secretary of State from certifying later awards to other claimants, arguing that the international commission which issued the awards acted outside its jurisdiction under a 1922 treaty. Specifically, plaintiffs argued that since the statute implementing the treaty called for payment of “awards” of the Commission, Congress intended to limit such payments to “awards rendered conformably to the terms and requirements of the [treaty].” Id. 61 S.Ct. at 476, (Argument for Petitioner). Although the circuit court had held that the claim presented a political question, Z. & F. Assets Realization Corp. v. Hull, 114 F.2d 464 (D.C. Cir. 1940), the Supreme Court rested its ruling on another ground. The Court found that the statutory provision conditioning payment of claims on the certification of the Secretary of State had vested unreviewable discretion in the Secretary to determine the validity of the awards. Stating that the issue was one of the intent of Congress as disclosed by the Act, the Court reasoned that “it was natural and appropriate that Congress should entrust to the Secretary of State the decision of questions that might arise with respect to the propriety of the payment of awards made by the Commission . . .” Id. at 486-87. The Court relied both on “[t]he literal and natural import” of the language of the provision and “the nature of the questions presented and their relation to the conduct of foreign affairs within the province of the Secretary of State . .” Id. at 489. The emphasis placed on the relationship between the grant of power and the conduct of American foreign policy lends support to the view that the nature of the grant of power is an important consideration in resolving issues of reviewability. See K. Davis, Administrative Law, supra, §§ 28.09, at 45; 28.21 (Supp.1970), at 993; L. Jaffe, Judicial Control of Administrative Act 363, 491-93 (1965). In the case before us, the statute expressly grants the Secretary of State power to accept or object to amendments to the Schedule pursuant to Article V of the Convention. 16 U.S.C. § 916b. The relevant legislative history states that the Secretary “is authorized to act for this Government in connection with amendments to the schedule made by the Commission . . H.R.Rep.No. 2514, 81st Cong., 1st Sess. 5 (1949), reprinted in [1950] U.S.Code Cong. & Admin.News, pp. 2938, 2943. As the Secretary of Commerce is authorized by the Act “to adopt such regulations as may be necessary to carry out . . . the regulations of the Commission,” 16 U.S.C. § 916j(a) (emphasis added), it is contended that 916b grants the Secretary of State final authority to determine whether amendments to the schedule will constitute “regulations of the commission” under 916j. The government thus asks us to read this grant of power broadly so as to sustain the discretion of the district court. We decline the government’s invitation. A careful study of the district court’s opinion demonstrates that the holding is based upon the political question doctrine. Admittedly, there is some language which refers to commitment to agency discretion, but it would be unfair to the district court to construe these brief references as an unannounced alternative holding. We arrive at this conclusion primarily because the district court’s analysis does not appear to have been based on a reading of the statute, and the language referring to discretionary administrative action does not articulate a distinct basis for the court’s holding. Although Z. & F. Assets indicates that the subject matter of the grant of discretionary power is sometimes a significant factor in reviewability rulings, such rulings ultimately require interpretation of congressional intent. The district court’s opinion, however, displays virtually no analysis of the language of the statute or discussion of legislative intent. Thus, the court’s statement that the Secretary’s action constituted unreviewable administrative action in foreign affairs apparently rested on the court’s broad holding that it lacked jurisdiction even to address the validity of the Commerce Department regulations. We have held that this conclusion was error. It would be inappropriate for us to decide the reviewability issue independently because we believe it should be first decided by the district court after full briefing by the parties. The reviewability issue raises substantial questions as to the proper reconciliation of the holdings in Decker, Z. & F. Assets, and Jensen v. National Marine Fisheries Service, supra, 512 F.2d 1189. Although Decker does not specifically address a reviewability contention, we were willing in that case to look behind the Secretary’s decision to accept the treaty regulations of an international commission at least to the extent of determining whether he had “accepted” them in accordance with the terms of the treaty. It will be for the district court initially to determine whether the holding in Decker also applies, under this statutory scheme, to treaty questions going to the validity of the regulations of the international commission, and therefore to the merits of the Secretary’s decision whether to accept. We offer no view on the merits of that issue. We hold only that the district court erred in concluding that it lacked jurisdiction to rule on the validity of the Commerce Department regulations under the statute and remand for his consideration of Hopson’s claims. REVERSED AND REMANDED. . Hopson also contends that the Commerce Department issued its regulations in violation of the procedural and substantive requirements of the Marine Mammal Protection Act and the Endangered Species Act. See 16 U.S.C. §§ 1371(b) and 1539(e)(4). In addition, he claims that the regulations violate United States trust responsibilities to native subsistence whalers. We need not address these additional contentions. . The Baker formulation reads: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217, 82 S.Ct. at 710. . It is difficult to reconcile the cases refusing to decide various issues, including those in the field of foreign relations, without acknowledging that the doctrine reflects prudential and functional concerns as well as Article III limitations on the use of judicial power. See L. Tribe, American Constitutional Law § 3-16, at 71-79; Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517, 535-36 (1966); Note, A Dialogue on the Political Question Doctrine, 1978 Utah L.Rev. 523. But see Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976) (“political question” rulings in foreign affairs are rulings on the merits); Tiger, Judicial Power, the “Political Question Doctrine,” and Foreign Relations, 17 U.C.L.A. L.Rev. 1135 (1970) (same). . Claims that the executive has violated constitutional or statutory limitations have been ruled political only very rarely in recent years. See, e. g., Sarnoff v. Connally, 457 F.2d 809 (9th Cir.), cert. denied, 409 U.S. 929, 93 S.Ct. 227, 34 L.Ed.2d 186 (1972) (constitutional challenge to executive warmaking); Atlee v. Laird, 347 F.Supp. 689 (E.D.Pa.1972), aff'd, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973) (same). See also, Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (plurality opinion) (treaty termination). . It is true that plaintiffs in Jensen also sought relief from potential prosecution, but we held that the mere possibility of prosecution, as presented in that case, did not present a concrete controversy that was ripe for adjudication. 512 F.2d at 1191. . We also decline to adopt the view that “personal liberty” interests will more likely trigger judicial review than claims related to “economic interests.” If economic penalties had been the only possible consequences of violation of the regulations in Decker, the validity of the regulations would still have been a prerequisite to Decker’s liability. . Without reaching the merits of the government’s contention, we observe that the statute before us is not precisely analogous to the statute addressed in Z. & F. Assets. Whereas the statute in Z. & F. Assets specifically authorized the Secretary of Treasury to pay awards certified by the Secretary of State, here the Secretary of Commerce’s alleged power to adopt amendments not objected to by the Secretary of State entails a relatively broad reading of 916b. . This issue was virtually unexplored before us. Most' of the discussion in the briefs and oral arguments in this case were directed at the political question ruling of the district court. Although the government did articulate review-ability as a separate ground for the decision, that ground was not explored at any length. Viewing the district court decision as a political question ruling only, Hopson did not address any separate discussion to a reviewability question. Indeed, at oral argument Hopson stated that reviewability was one of the statutory questions which the district court refused to decide. . In Decker, the Secretary’s power to accept the regulations of the Commission was granted by the treaty rather than by an explicit statutory provision. The scope of review thus turned entirely on the justiciability of the question of treaty construction presented there. Any implications of this difference in the statutory schemes can be explored by the parties on remand.

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?

VILLA CORP. v. S. D. WALKER, Inc. et al. No. 10089. United States Court of Appeals, Third Circuit. Argued Oct. 12, 1950. Decided March 15, 1951. Clyde P. Bailey, Pittsburgh, Pa., for appellant. Elias G. Naame, Atlantic City, N. J., for Walker. Samuel Freedman, Atlantic City, N. J., for Laurence Harbor Heights Co. Before STEPHENS, MARIS and Mc-LAUGHLIN, Circuit Judges. ALBERT LEE STEPHENS, Circuit Judge. This action was brought in the United States District Court for the District of New Jersey by the Villa Corporation, a Pennsylvania resident, against S. D. Walker, Inc., and Laurence Harbor Heights Company, both New Jersey corporations, jurisdiction being founded upon diversity of citizenship. The Villa Corporation, appellant here, sought a decree of specific performance of a contract for the conveyance of New Jersey land, together with consequential damages. At the conclusion of the appellant’s case the trial court granted appellees’ motion to dismiss, and entered final judgment dismissing the action with prejudice as to the relief sought by way of specific performance and without prejudice as to the relief sought by way of damages. The basis of the action is a written contract, dated February 17, 1948, allegedly between appellant as purchaser, and S. D. Walker, Inc. as seller, signed on behalf of the Villa Corporation by Latoof Naffah, president, and on behalf of S. D. Walker, Inc., by Oscar A. Schierstead, assistant secretary. The agreement provides, inter alia, that for the consideration of $8,000, the seller will “ * * * convey, or cause to be conveyed to the buyer, * * *” certain land on or before May 3, 1948. The agreement is subject to the condition “ * * * that in a prior deed conveying the within described property to the City of Brigantine, or in the deed from the City of Brigantine to S. D. Walker, Inc., conveying the within described property, there shall be a provision to the effect that the land between thirty-fourth street south and thirty-fifth street south, ocean-ward of the three hundred (300) foot line from Ocean Avenue, is to be retained by the City of Brigantine for- public and park purposes; and that there shall be no buildings erected thereon.” Three hundred dollars is to be paid at the time of the signing of the agreement, one thousand dollars on or before April 27, 1948, two-thousand seven hundred dollars on or before May 27, 1948, on which date title is to be transferred. The purchaser is to execute and deliver a purchase money mortgage and bond for the balance. Should the purchaser make default in any of the payments provided for when due, the seller is given the right to cancel and rescind the contract, by a written communication to that effect, the seller retaining all money theretofore paid by the buyer. Although the payments called for by the contract were not made on time, S. D. Walker, Inc., through its agents, did not attempt to exercise the right to rescind the agreement, which was expressly provided for. Instead, on May 22, 1948, John A. Rogge, Assistant Secretary of S. D. Walker, Inc., in a letter to the appellant, acknowledged receipt of $2,400 to date on account of the contract, and agreed to extend the date for settlement of the additional $1,600 remaining on the down payment until July 1, 1948, in consideration of an additional $600. On June 5, 1948, S. D. Walker, Inc., informed appellant that it did not intend to carry out the agreement for the reason that the land was not available for sale, and returned the $2,400 to appellant. Appellant informed S. D. Walker, Inc. that the money returned would not be accepted, and that on July 1, 1948, appellant would stand ready to comply with the agreement in full. On July 1, 1948, appellant deposited with Chelsea Title and Guaranty-Company, Atlantic City, New Jersey, the balance of the money due, and a mortgage duly executed. Although notice was given, no agents of S. D. Walker, Inc. appeared, and the land was not then and has not since been conveyed to appellant. The City of Brigantine, New Jersey, was not a party to the contract or to the suit. The land involved had been conveyed by the Brigantine Beach Company to defendant Laurence Harbor Heights Company in 1947, which latter corporation held legal title during the period under consideration. It was appellant’s contention that the two defendant corporations were actually one organization, since both were controlled by S. D. Walker. This being so, it was contended that the contract between appellant and S. D. Walker, Inc. could be specifically performed by the delivery of a deed executed by the agents of the Laurence Harbor Heights Company. In the alternative, appellant contends that S. D. Walker, Inc. acted as agent for Laurence Harbor Heights Company in selling the land to appellant. The trial court declined to grant specific performance for the reason that the contract contained a provision for dedication of adjoining land for park purposes by the City of Brigantine, which was not a party to the contract or to the suit, and therefore could not be ordered to comply. Appellant stated at the trial that he would not accept the land without fulfillment of this provision. Appeal is taken from that part of the judgment wherein the appellant was denied specific performance of the agreement. We hold that the court below was correct in refusing to specifically enforce the contract. It is clear that where the performance of a contract is impossible, or, if possible, is impracticable, the court will not make a futile attempt to compel it. Fiedler, Inc., v. Coast Finance Co., 1941, 129 N.J.E. 161, 18 A.2d 268, 135 A.L.R. 273. Thus, specific relief will be refused where the performance of the contract requires action by a designated authority and there is no showing that such action can be obtained. In Fiedler, Inc., v. Coast Finance Co., supra, complainant sought specific performance of a contract whereby it was made exclusive agent to develop and sell certain properties owned by defendant. It became the duty of the defendant, under the agreement, to prepare maps depicting a state of improvement of the premises so that the development would be eligible for mortgages guaranteed by the Federal Housing Administration. The court held that the decree dismissing the bill of complaint should be affirmed. The court stated: “But assuming for the sake of argument that the contract was one which could otherwise be specifically enforced, the question arises whether the respondent could obey the decree. The contract required the respondent to get the approval of the F. H. A. as to maps, street construction, parks, recreation area, grade, width of street, water supply, and what-not. A decree compelling a specific performance of this contract and embodying the covenants imposed by the contract upon the respondent, a compliance with which manifestly rests in the will or discretion of a third party uncontrolled by the respondent, would be a vain decree, one which in truth and in fact the respondent would find it impossible to obey. Decrees that would in the final result, be nugatory should not be made. 4 Pomeroy’s Eq.Jur., 4th Ed., 3334, § 1405. There was no jurisdiction over the federal agency in question, it has not been made a party; nor could this court control the discretion of that _ agency even if it were ‘in court.’ For these reasons the decree under review should be affirmed.” The provision in the contract here involved, calling for the City of Brigantine to dedicate certain ocean front land for park purposes, falls within the above-mentioned doctrine. Affirmed. . See City of New York v. New York Cent. R. Co., 1937, 275 N.Y. 287, 9 N.E.2d 931.

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

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

UNITED STATES of America, Appellant, v. Floy MAYS, as Treasurer of Kiowa County, Colorado; and Board of County Commissioners of Kiowa County, Colorado, Appellees. No. 5979. United States Court of Appeals Tenth Circuit. March 5, 1959. Peter H. Schiff, Atty., Dept, of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Donald E. Kelley, U. S. Atty., Denver, Colo., and Alan S. Rosenthal, Atty., Dept, of Justice, Washington, D. C., were with him on the brief), for appellant. John B. Barnard, Jr., First Asst. Atty. Gen., State of Colorado, and Carl M. Shinn, Dist. Atty., 15th Judicial Dist. of Colorado, Lamar, Colo. (Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., State of Colorado; John J. Lefferdink, Deputy Dist. Atty. 15th Judicial Dist. of Colorado, and Edward C. Hastings, County Atty., Eads, Colo., were with them on the brief), for appellees. Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges. BRATTON, Chief Judge. The appeal in this case presents for determination a contest for priority of liens. The contestants arc the United States and Kiowa County, Colorado; and the property covered by the respective liens is certain farm storage facilities. In the exercise of authority vested in it by section 4(h) of the Commodity Credit Corporation Charter Act, as amended, 15 U.S.C.A. § 714b (h), Commodity Credit Corporation, an agency and instrumentality of the United States, sometimes hereinafter referred to as Commodity, furnished funds in the form of loans to grain growers in Kiowa County, Colorado, sometimes hereinafter referred to as the County, to grain growers in other counties in Colorado, and to grain growers in other states, to be used in the acquisition of structures in which to store grain. The loans to the grain growers in Kiowa County involved in this action were made, notes therefor were given, chattel mortgages securing the loans were executed and delivered, and the chattel mortgages were duly filed and recorded in accordance with the law of Colorado prior to March 1, 1954; and, excluding a few loans that were repaid, such chattel mortgages were kept in force and effect ever since or new ones to secure the same indebtedness were executed, recorded, and kept in effect. All of the chattel mortgages referred to contained provisions in which the mortgagor covenanted and agreed to pay promptly all taxes assessed against or attaching to the mortgaged property. The structures contemplated at the time of the making of the loans and later acquired were prefabricated metal buildings, designed to be and actually erected on and bolted to concrete slabs, with the view that in case of non-payment of the debt, the structure could be dismantled and re-erected elsewhere. At the time the respective loans were made and secured, and as parts of the same transaction, in each instance, the mortgagor and the mortgagee executed a written instrument by the terms of which the parties covenanted and agreed that the property described in the mortgage should remain severed from the real estate; that even if attached to the realty, it should retain its personal character, should be removable from the real estate, should be treated as personal property with respect to the rights of the parties, and should not become fixtures or a part of the real estate; and that it should not be subject to the lien of any other security transaction or instrument theretofore or thereafter arising against the structure or realty on which it was placed until the expiration of Commodity’s lien and any extension or renewal thereof, and until repayment of the loan. The agreements were filed of record in the office of the County Clerk and Recorder of the county in which the mortgaged property was situated. In certain specified instances, subsequent to the recordation of the chattel mortgages and agreements, each structure was assessed in the name of its owner for general state, county, and school district ad valorem property taxes for the years 1954 and 1955 as land (improvements only) ; taxes for those years were levied by the officials of the County; the taxes were not paid; and they became delinquent. The Treasurer of the County sold the properties for delinquent taxes in accordance with the procedure set forth in the statutes of Colorado. The properties were purportedly sold free and clear of the security interest held by the United States under the chattel mortgages and agreements. No bids were submitted and the properties were struck off to the County. Certificates of purchase were issued to the County and threats were made that they would be sold to any person desiring to purchase them on terms prescribed by the laws of the state. Other like properties covered by like chattel mortgages and agreements were assessed for the years 1956 and 1957; taxes were levied thereon; and the County declared its purpose to assess all properties of like character and to levy in similar manner ad valorem taxes thereon for succeeding years. The United States instituted this action against the Treasurer and the Board of County Commissioners of the County, and the primary relief sought was an adjudication with appropriate restraining provisions that Commodity’s mortgage liens upon the storage facilities were entitled to priority over the tax liens of the County. The court sustained the contention of the County that Commodity’s mortgage liens were subordinate to the County’s tax liens. Judgment was ■entered dismissing the action, and the United States appealed. The security interests of Commodity in the storage facilities consisting -of pre-fabricated metal buildings were -created by instruments denominated ■chattel mortgages. And in their contractual relations, the mortgagors and the mortgagee treated the buildings as personal property, separate and apart from the real estate on which they were located. But the denomination given to the mortgages and the agreement of the parties were ineffective in respect to fixing the status of the buildings as to being personal property or part of the real ■estate on which they were located for the purposes of ad valorem taxation under state law. The buildings were located on lands belonging to the mortgagors for the purpose of storing therein grain produced by the mortgagors. They were erected on and bolted to concrete slabs in a manner which lent itself readily to their dismantlement and re-erection elsewhere. The Commodity Credit Corporation Charter Act, supra, does not undertake to catalogue or classify storage facilities of that kind as to being personal or real property in respect to liability for ad valorem taxes under state law or immune therefrom. And there being no Congressional provision making the classification for such purpose, in the absence of objectionable discrimination against the security interest of Commodity, the question whether the buildings constituted personal property for purposes of local taxation under the state law or constituted integrated elements of integral real property units for such purpose must be determined by the law of Colorado. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172. The parties stipulated in writing in the trial court that for the purposes of the action only, and except for any superior or prior rights or interests of the United States, if any, the structures were subject to taxation as real estate improvements as defined in section 137-1-12, Colorado Revised Statutes 1953. And the able trial court concluded as a matter of law that under such statute, the structures, as well as any interests therein, were subject to ad valorem taxation for state, county, or local purposes, as real property, and not otherwise. It seems too clear for doubt that if the mortgages had been given to individuals or private corporations rather than an agency and instrumentality of the United States, the structures would under the law of Colorado be subject to ad valorem tax as integrated elements of integral real property units, not as personal property, separate and apart from the real estate on which they were located. Mollie Gibson Consolidated Mining & Milling Co. v. McNichols, 51 Colo. 54, 116 P. 1041. And in such circumstances, the tax lien would be prior in rank to the mortgage liens, even though the mortgages were duly filed and of record at the time of the levying of the tax. Of course, unless the immunity is effectively waived, the properties, functions, and instrumentalities of the United States are immune from taxation under state law. That doctrine, now so well established that it is treated as axiomatic, was first enunciated in McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579, and it has been consistently followed without deviation. But Congress is vested with unquestioned power effectively to waive the immunity and consent to the imposition of tax under state law upon specified properties, specified functions, or specified instrumentalities of the United States. Reconstruction Finance Corp. v. Beaver County, supra. In presently pertinent part, section 5 of the Act approved March 8,1938, 52 Stat. 108, 15 U.S.C.A. § 713a-5, provides in effect that Commodity, its franchise, reserves, surplus, and income shall be exempt from all taxation imposed by any state, county, or local taxing authority, “except that any real property of the Commodity Credit Corporation shall be subject to State, * * * county, * * * or local taxation to the same extent according to its value as other real property is taxed.” The United States urges the contention that the exception contained in the statute has no bearing here for the reason that it is expressly limited to permitting states and their subdivisions to tax real property of Commodity; that the storage facilities upon which the County undertook to levy the tax were owned by the mortgagors of such facilities; and that therefore the exception is without any application here. Section 10 of the Reconstruction Finance Corporation Act, 15 U.S.C.A. § 607, contains an identical provision with respect to consenting to the taxing of real property belonging to the Reconstruction Finance Corporation; and it was considered in Reconstruction Finance Corp. v. Beaver County, supra. That case involved the power of Beaver County, Pennsylvania, to levy ad valorem taxes on certain portable machinery owned by a subsidiary of Reconstruction Finance Corporation. The machinery was located in a plant owned by the subsidiary and leased to a contractor for use in carrying out its contracts with the Government. The law of the state made the machinery part of the realty for tax purposes. But the United States contended that in the enactment of the exception contained in the statute, Congress did not intend that the waiver of immunity from taxation under state law on real property should extend to portable machinery of that kind which was never meant to be a permanent accession to the building in which it was placed. In rejecting the contention, the court held in effect that since under the law of the state the machinery was an integrated part of an integral real property unit, it fell within the exception contained in the statute and therefore its immunity from taxation under state law was waived. In like manner, since under the law of Colorado the storage facilities constituted an integrated part of an integral unit of real estate for tax purposes, their immunity from taxation under state law was effectively waived and Congressional consent to their taxation was effectively given by the exception contained in the statute, supra; and the tax lien held priority in rank over the security interest of Commodity, even though the mortgages were filed and of record prior to the levying of the tax. The judgment is Affirmed. . Now section 8.

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

Arthur SENA, # 24848, Petitioner-Appellant, v. Levi ROMERO, Warden, and the Attorney General of the State of New Mexico, Respondents-Appellees. No. 79-1124. United States Court of Appeals, Tenth Circuit. Submitted Jan. 25, 1980. Decided March 19, 1980. William W. Deaton, Federal Public Defender, Albuquerque, N. M., for petitioner-appellant. Before BARRETT, McKAY and LOGAN, Circuit Judges. LOGAN, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). This cause is therefore ordered submitted without oral argument. Arthur Sena pleaded guilty in 1975 to charges of burglary brought in a New Mexico state court. After exhausting state court remedies, he petitioned the federal district court for relief pursuant to 28 U.S.C. § 2254, seeking to set aside that guilty plea as having been uninformed, involuntary, lacking in factual basis, and coerced. An evidentiary hearing was held before a magistrate; the district court adopted the magistrate’s findings and conclusions, and denied relief. For disposition of this appeal, we need treat only Sena’s contention that his plea was not voluntarily and intelligently entered because his attorney advised him he would have to pay the cost of transporting witnesses to trial to testify in his behalf. The transcript of the taking of his guilty plea in state court and the sentencing proceeding shows noncompliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or with the New Mexico procedural rule then in effect. N.M.Stat.Ann. § 41-23-21 (1974). This transcript shows only cursory inquiry by the judge concerning Sena’s desire to plead guilty pursuant to a plea bargaining agreement entered into with the district attorney’s office, and whether the plea and disposition agreement had been explained and were understood. Although a trial judge need not specifically enumerate the trial rights a defendant waives by pleading guilty, Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973), the judge must be satisfied that the plea is being given voluntarily and with knowledge of its consequences. Moore v. Anderson, 474 F.2d 1118, 1119 (10th Cir. 1973). It is “error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. at 242, 89 S.Ct. at 1711. But even if the record is silent, reversal is not required if the voluntariness and intelligence of the plea is proved at a postconviction evidentiary hearing. United States v. Pricepaul, 540 F.2d 417, 422-24 (9th Cir. 1976). In the face of the deficiency in the transcript the district court here properly held an evidentiary hearing to determine whether these requirements were met. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). At the hearing Sena testified that he did not fully understand his rights, particularly the right to compulsory attendance of witnesses. In this connection, he asserted that his attorney had advised he would have to pay the costs of transporting witnesses to the trial to testify in his behalf. His attorney also testified, and denied that he had so informed Sena. The plea agreement signed by Sena states that he understood he was giving up his right to “compel the attendance of witnesses.” Thus, the record shows a sharp conflict in the testimony to be resolved by the judge, who denied relief. The problem is that the magistrate, whose findings were accepted by the district judge, declares as follows: Petitioner fails in his burden of proof. The preponderance of the evidence at the evidentiary hearing established that petitioner’s plea was made and accepted in accord with constitutional requirements. As we read this finding, the trial court placed the burden of proof upon Sena to establish that his plea was involuntary. In this the court was in error. Boykin requires “an affirmative showing” of voluntariness. See also Stinson v. Turner, 473 F.2d at 915-16. A silent record, as here, shifts the burden to the government to prove that the waiver was knowingly, voluntarily, and intelligently made. United States v. Pricepaul, 540 F.2d 417, 423-424 (9th Cir. 1976). Reversal is therefore required. Sena’s contention that the absence of a record showing of a factual basis for his plea is an independent ground for invalidating the plea, is without merit. Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). But the absence of such a showing may be relevant to the determining whether a plea is intelligently made. See North Carolina v. Alford, 400 U.S. 25, 38 n. 10, 91 S.Ct. 160, 167 n. 10, 27 L.Ed.2d 162 (1970). The denial of the writ is reversed and the cause is remanded for further proceedings in conformity herewith.

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

Clarence E. WOODS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 71-2228 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 25, 1971. Clarence E. Woods, pro se. John W. Stokes, Jr., U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. [1] Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: This is an appeal from an order of the district court denying the petition of Woods, a federal prisoner, for the writ of habeas corpus. We affirm. Woods is serving a six year sentence imposed on February 25, 1966, for interstate transportation of forged securities in violation of 18 U.S.C.A. § 2314. On February 18, 1970, he was released from his sentence on mandatory release pursuant to 18 U.S.C.A. § 4163, with 736 days remaining to be served. On October 27, 1970, a mandatory release violator’s warrant was issued after Woods was arrested by Georgia state police and charged with auto theft. The warrant application also charged that Woods had failed to comply with other conditions of his release by failing to submit a monthly report and failing to report a change in residence. The warrant was executed on December 26, 1970, and a revocation hearing was held on February 24, 1971. As grounds for habeas corpus relief Woods contends that he was returned to federal custody on a warrant application, not on a warrant; he was not informed of the parole board’s decision; there was no probable cause for the warrant; the parole board was biased against him; and the revocation hearing was unreasonably delayed. Woods also contends that he is entitled to credit on his sentence for the time spent on mandatory release, that his accumulated good time cannot be revoked, and his release under 18 U.S.C.A. § 4163 was absolute and irrevocable. The district court found from the record that a warrant was in fact issued and executed, but that even if Woods was served only a copy of the warrant application, it was adequate notice of the violations charged to enable him to prepare a defense. The court below also found that Woods never denied the truth of the charges on which the warrant was based; that he offered no factual allegations to support his contention of bias; and that the two month delay in holding the hearing was not unreasonable. A review of the record reveals no clear error in these findings. It is well settled that Woods is not entitled to credit on his sentence for time spent on mandatory release. Blanchard v. United States, 5 Cir. 1970, 433 F.2d 13; Garnett v. Blackwell, 5 Cir. 1970, 423 F.2d 1211; Clark v. Blackwell, 5 Cir. 1967, 374 F.2d 952. The contention that his earned good time could not be revoked is equally without merit. Smith v. Attorney General, 5 Cir. 1969, 420 F.2d 488; Smith v. Blackwell, 5 Cir. 1966, 367 F.2d 539. Finally, Wood’s contention that mandatory release is irrevocable is untenable. Tippit v. Clark, 5 Cir. 1971, 444 F.2d 534; Garnett v. Blackwell, supra; Buchanan v. Blackwell, 5 Cir. 1967, 372 F.2d 451. 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.

James Marvin SHEA, Jr., Appellant v. John N. MITCHELL, as Attorney General of the United States, et al., Appellees. No. 21644. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 9, 1968. Reargued April 8, 1969. Decided Feb. 6, 1970. Mr. Robert H. Turtle, Washington, D. C., with whom Messrs. Monroe E. Freeman, Jr. and Lawrence Speiser, Washington, D. C., were on the brief, for appellant. Mr. James G. Greilsheimer, Atty., Department of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Edwin L. Weisl, Jr., Asst. Atty. Gen. at the time the brief was filed, and Mr. Morton Hollander, Atty., Department of Justice, were on the brief, for appellees. Messrs. Alan Ro-senthal, Robert V. Zener and David J. Anderson, Attys., Department of Justice, also entered appearances for appellees. Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges. J. SKELLY WRIGHT, Circuit Judge. As a gesture of protest against American involvement in the Vietnam war, appellant Shea sent his Selective Service Notice of Classification to his draft board in April 1967. Subsequently Shea refused to apply for a duplicate card and then returned an unsolicited duplicate which the board sent him on its own initiative in June 1967. Finally, on July 19, 1967, the local board declared Shea delinquent pursuant to 32 C.F.R. § 1642.4 (1969) for “failure to retain a Registration Certificate and Notice of Classification as prescribed by Selective Service Regulations.” At the same time, the board reclassified Shea from his III-A (fatherhood) classification to I-A and sent him a notice of his new classification. Appellant took advantage of his right to a personal appearance before the board, but did not perfect an appeal when the board reaffirmed his I-A delinquency classification. After appellant’s time to take an appeal had expired, the board issued an accelerated induction order, as provided in the delinquency regulations. 32 C.F.R. § 1642.13 (1969). The day before he was to report for induction, Shea filed the complaint in the present case in the District Court seeking a declaratory judgment that his induction was illegal and an injunction prohibiting his induction. The District Court dismissed appellant’s complaint for lack of subject matter jurisdiction on the basis of Section 10(b) (3) of the Military Selective Service Act of 1967, as amended, 50 U.S.C. App. § 460(b) (3) (Supp. IV 1965-1968), and Shea appealed. We have withheld decision pending the Supreme Court’s decisions in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). On the basis of the Supreme Court’s decisions in these cases and in Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), we think it clear that the District Court’s dismissal must be reversed. I We believe that Gutknecht and Oestereich read together establish that pre-induction judicial review lies whenever the Selective Service System has reclassified a registrant or issued an induction order pursuant to the delinquency regulations struck down in Gutknecht. The Oestereich holding may be divided into two parts: (1) the use of the delinquency regulations to deprive a registrant of a statutory “exemption” to which he was otherwise entitled was unauthorized by the statute; and (2) Section 10(b) (3) does not preclude pre-induction judicial review of such “blatantly lawless” conduct by a local board. Gutknecht explicitly took the first half of the Oestereich holding and broadened it to invalidate the entire delinquency procedure as unauthorized by the statute. In reversing Gutknecht’s conviction of failure to report for induction, the Court explicitly noted that in Gutknecht’s case “no ‘exemption,’ no ‘deferment,’ no ‘classification’ in the statutory sense is involved. ‘Delinquency’ was used here not to change a classification but to accelerate petitioner’s induction * * * ; and it was that difference which led the Court of Appeals to conclude that what we said in Ostereich was not controlling here.” 396 U.S. at 304, 90 S.Ct. 506. The Court, however, held that the reasoning in the first part of Oestereich nonetheless controlled Gutknecht’s case. In short, the Court said that any delinquency induction is as “blatantly lawless” as the induction enjoined in Oestereich, without regard to whether a registrant is entitled to an exemption or a deferment. Since it was the “blatantly lawless” character of Oes-tereich’s induction which led the Court to read Section 10(b) (3) to permit pre-induction judicial review in that case, we think the exception to Section 10(b) (3) established by Oestereich must be held, in the light of Gutknecht, to permit pre-induction judicial review of 'any induction order issued under the invalid delinquency regulations. II We think appellant Shea is also entitled to pre-induction judicial review on the basis of the Supreme Court’s decision in Breen There the Court extended pre-induction judicial relief to a registrant entitled by statute to a student “deferment”; the Court could find no significant difference between the statutory “exemption” in Oestereich and the statutory “deferment” in Breen: “We are consequently unable to distinguish this case from Oestereich. In both situations a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service. # * * >> 396 U.S. at 467, 90 S.Ct. 661. (Emphasis added.) The Court in Breen particularly noted that the “Government has never contested Breen’s factual allegations concerning his student status, nor has it argued that he is not qualified for such a deferment for any reason except the alleged ‘delinquency.’ ” 396 U.S. at 463-464, 90 S.Ct. at 666. In the present case, appellant Shea is unequivocally entitled to a fatherhood deferment by presidential regulations issued pursuant to statutory authorization. In other words, he is a registrant who is “required by the relevant law not to be inducted.” 396 U.S. at 467, 90 S.Ct. at 666. As in Breen, the Government does not contest his qualifications for this deferment, other than his alleged delinquency. In these respects, Shea’s ease is on all fours with Breen. The only difference is that Shea’s unequivocal entitlement to a fatherhood deferment derives from presidential regulations rather than from the statute itself. We cannot believe there is either practical or legal significance in this distinction. We think that Mr. Justice Harlan’s concurrence in Breen succinctly states the ratio decidendi of both that decision ond Oestereich: “The Court’s opinion here, as in Oestereich v. [Selective Service System Local Board No. 11], 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), appears to make the availability of pre-induction review turn on the lawfulness of the draft board’s action, or to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. * * * ” 396 U.S. at 468, 90 S.Ct. at 666. This reading of the Court’s holding is consistent with the congressional purpose in enacting Section 10(b) (3) to prevent litigious delay in the process of raising an army. Preinduction review will always lie where there is no possibility of such delay, e. g. where the facts are uncontested, no discretion is involved, and the applicable “law” is clear. But whether that “law” involves statute, court de-cisión or regulation is as irrelevant as whether it involves an “exemption” or a “deferment.” The judgment of the District Court is reversed and the case is remanded for proceedings consistent with this opinion. It is so ordered. . Appellant also applied for a temporary restraining order to stop his induction, but the District Court denied his application. Subsequently, appellant reported to the induction station, but refused to submit to induction. He promptly amended his complaint to request additional relief in the form of an injunction prohibiting the Attorney General from prosecuting him. . Our recent decision in Nestor v. Hershey, U.S.App.D.C., No. 23,314, decided December 16, 1969), establishes that venue was proper in the District of Columbia, Slip opinion at 28-32. See Local Board Memorandum No. 85, issued October 24, 1967. . In Oestereich the registrant was a divinity student. Section 6(g) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(g) (1964), “exempts” such students from training and service under the Act. Nonetheless, when Oestereich turned his draft card in as a protest against American involvement in the Vietnam war, his local board reclassified him from Class IV — D (exempt divinity student) to Class I-A (available for service) under the Selective Service System’s delinquency regulations. After exhausting his administrative remedies, he brought suit to restrain his induction. The Supreme Court held that § 10(b) (3) did not bar pre-induction judicial review because there was no statutory authority to use the delinquency regulations to deprive a registrant of his statutory exemption. 393 U.S. at 237-238, 89 S.Ct. 414. . The registrant in Gutknecht was classified I-A as available for induction at the time he turned in his draft card in protest against the Vietnam war. His draft board declared him delinquent, thereby moving him ahead of all other I-A registrants in the order of call. He was then ordered to report for induction under the accelerated induction procedures of the delinquency regulations. When he refused to submit to induction, he was prosecuted and convicted. The Supreme Court reversed his conviction, holding that the delinquency procedure under which he was inducted was without statutory authorization and that his induction order was consequently void. . Since Gutknecht involved a criminal prosecution, the Court did not pass on the availability of pre-induction judicial review. . This conclusion was reached by the Third Circuit in a well reasoned opinion before the Supreme Court’s decision in (7ut-laieclit. Bucher v. Selective Service System, 406 F.2d 494 (1970). In the present ease we are guided by that decision as well as the authority of Gut-hnecht. . The registrant in Breen was a college student who, under § 6(h) (1) of the Act, was entitled to a II-S student “deferment.” When Breen protested American participation in the Vietnam war by turning in his draft card, his draft board declared him delinquent and reclassified him from II-S to I-A. Breen then sought an injunction prohibiting his induction. The Supreme Court held, on the authority of Oestereieh, that his suit was not barred by § 10(b) (3). . 50 U.S.C. App. § 456(h) (2) (Supp. IV 1965-1968). 32 C.F.R. § 1622.30(a) (1969) provides, in pertinent part: “In Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home

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

In re WITHERBEE COURT CORPORATION. No. 250. Circuit Court of Appeals, Second Circuit. Feb. 15, 1937. L. HAND, Circuit Judge, dissenting. Robert P. Weil, of New York City, for appellant Klee Corporation. Newman & Bisco, of New York City (Robert P. Weil and David Barnett, both of New York City, of counsel), for appellant Maufacturers Trust Co. Breed, Abbott & Morgan, of New York -City (Charles H. Tuttle, Stoddard B. Colby, and Eimest Brooks, Jr., all of New York City, of counsel), for appellees. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. Writ of certiorari denied Klee Corporation v. Roosevelt, 57 S.Ct. 937, 81 L.Ed. —. SWAN, Circuit Judge. The debtor corporation’s sole asset is an apartment building in Pelham Manor, N. Y. The property is subject to a first mortgage in the principal amount of $371,-000, with overdue interest thereon which brought to $437,425.07 the total amount due on March 16, 1935, the date of the filing of the debtor’s petition. It is subject also to a second mortgage securing an indebtedness which amounted to $92,997.16 on the same date. There are also claims for federal income taxes and state franchise taxes and a small amount of unsecured debts. Upon a reference to a special master the debtor was found to be insolvent and the value of the mortgaged property to be “less than $400,-000.” This finding was approved by the District Court. The confirmed .plan of reorganization contemplates transfer of the property, free of debt, to a new corporation which will issue bonds and stock to be distributed to the debtor’s first mortgage bondholders. Provision is also made for payment in cash of the federal and state tax claims. Second mortgagees, unsecured creditors, and stockholders of the debtor will receive nothing. Consents to the plan were sought only from the first mortgage bondholders. With leave of this court the Klee Corporation, owner of the second mortgage, and Manufacturers Trust Company, pledgee thereof, have appealed from the order of confirmation. The appellants argue that the court erred in matter of law in determining their second mortgage lien to be worthless. They do not question the accuracy of the appraisal as a finding of fact, but contend that they were entitled to have the property sold at a judicial public sale. The argument has two branches: (1) That section 77B, Bankr.Act (11 U.S.C.A. § 207), does not authorize the elimination of liens by appraisal; and (2) that, if it be construed to do so, it runs foul of the Fifth Amendment. Clause (5) (c) of subdivision (b), section 77B (11 U.S.C.A. § 207(b) (5) (c), declares: “(b) A plan of reorganization * * * (5) shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan * * * adequate protection for the realization by them of the value of their interests, claims, or liens * * * -(c) by appraisal and payment.” This appears to be express authority for such an appraisal as was made, but the appellants contend that it cannot have that meaning because of the sentence which appears toward the e-nd of subdivision (b), 11 U.S.C.A. § 207(b), as follows: “In the case of secured claims entitled to the provisions of clause (5) of this subdivision (b), the value of the security shall be determined in the manner provided in section 57, clause (h) of this Act [section 93, clause (h) of this title], and if the amount of such value shall be less than the amount of the claim, the excess may be classified as an unsecured claim.” The argument runs that, since appraisal is not permitted under section 57h (11 U.S. C.A. § 93(h), when the agreement of the parties provides a method (foreclosure) of converting the security into money (Remington, Bankruptcy [3d Ed.] § 923), it is not available under 77B (b) (5) (c). This in effect deletes subclause (c) from clause (5). Probably the sentence referring to section 57(h) is intended to apply only when a secured creditor desires to value his security for the purpose of determining the amount for which he may file an unsecured claim; but, whatever the sentence means, it cannot by implication destroy the express authority conferred by subclause (c) of clause (5) to appraise the value of “interests, claims or liens.” Determination by appraisal of the worthlessness of second and third mortgage liens was in Cerentially sustained by the Supreme Court in Re 620 Church Street Building Corp., 299 U.S. 24, 57 S.Ct. 88, 81 L.Ed. In our opinion, that case also resolves against the appellants the contention that the statute, so construed, is unconstitutional. Although the opinion does not expressly state that deprivation of the right to a judicial sale was the argument advanced for unconstitutionality, we think this is apparent from the fact that certiorari was granted because of an asserted conflict with Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106. No such conflict was found to exist. There is an obvious distinction between depriving a lienor of the right to foreclose a security without giving him equivalent value, as in the Radford Case, and refusing him foreclosure where his lien is concededly worthless, as in the Church Street Case. The appellants rely upon Tennessee Pub. Co. v. American Nat. Bank, 299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. to show that the Church Street Case can have no such scope as we have given it. But, were we to accept their contention that it has not determined the constitutionality of subdivision (b) (5) (c), and were we to approach the question de novo, our decision would riot be different. Although the sale of property is often the best way to find its value — in a sense it is its value — we are not prepared to say it is the only permissible method. Any other reasonable method of ascertainment should serve as well; the essential thing is to give the mortgagee the benefit of that value. Reasonable methods of ascertaining it are obviously open to Congress without infringing the Fifth Amendment. An illustration may be found under sections 77 and 77B (as amended [11 U.S. C.A. § 205, 207]) in the provisions requiring a minority bondholder to accept securities under a plan which has been accepted by two-thirds of his class and approved by the court. A dissenting secured creditor is thus deprived of his security without a public judicial sale at which he may bid, yet it can hardly be doubted that such a method of ascertaining the value of his security and giving him its equivalent is constitutional. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co., 294 U.S. 648, 673, 55 S.Ct. 595, 605, 79 L.Ed. 1110; In re Central Funding Corp., 75 F.(2d) 256, 257 (C.C.A.2); Campbell v. Alleghany Corp., 75 F.(2d) 947 (C.C.A.4). Even before the enactment of 77B this court expressed the view that the value of the assets of a corporaation in receivership might be ascertained upon a hearing before a master and without public sale. Coriell v. Morris White, Inc. (C.C.A.) 54 F.(2d) 255. Although the case was reversed in National Surety Co. v. Coriell, 289 U.S. 426, 53 S.Ct. 678, 77 L.Ed. 1300, 88 A.L.R. 1231, reversal was not upon the ground that a judicial sale is a prerequisite to reorganization in equity. In the case at bar the appellants had an opportunity to litigate the question of the value of their security, and they do not now challenge the finding that it was worthless. On the issue of the constitutionality of this procedure, we are satisfied that the appeal is without merit. See In re New York, N. H. & H. R. Co., 16 F.Supp. 504 (D.C.Conn.); Provisions for Non-Assenting Classes of Creditors in Bankruptcy Reorganizations, 46 Yale L.J. 116; In re Garfield Arms Hotel Building Corp. The appellants’ next contention is that the court erred in confirming the plan of reorganization because it provides for payment of income and franchise taxes. The claim of the United States for income taxes,for the years 1931 and 1932 amounts to $447.77; that of the state of New York for franchise tax for the year 1931 to $160. The appellants are mistaken in saying that franchise taxes for the years 1930 and 1932 to 1935 are also included. The last day to file claims was May 16, 1935, and, though the state filed a notice of intention to file a claim for those years, it never did so. The decree allowed the claims of class D creditors “in the amounts of such claims as filed”; hence it is clear that the tax claims allowed total in all only the insignificant sum of $607.77'. Nevertheless the appellants argue that, since the second mortgage lien is superior to the liens of these taxes, the latter cannot be paid to the exclusion of the former. It is not clear whether their contention is that this constitutes discrimination making the plan unfair and violative of the Fifth Amendment, or that it invalidates the plan under the principle of the Boyd Case (Northern Pac. Ry. Co. v. Boyd), 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931. The appellee suggests that the matter should be brushed aside as de minimis. Authority for such treatment can be cited. Brockett v. Winkle Terra Cotta Co., 81 F.(2d) 949, 952 (C.C.A.8); Friendly, “Some Comments On The Corporate Reorganizations Act,” 48 Harv.L.Rev. 39, 79, 80. But we prefer to rest decision on another ground. Under the provisions of the first mortgage the trustee named therein was authorized to pay all taxes imposed upon the mortgagor, which it should fail to pay, and finy sums so paid by the trustee were made a first lien upon the property, prior even to the first mortgage bonds. It is purely a matter of form and of no consequence to the second mortgagee whether the trustee shall pay the taxes and thereby increase the first mortgage lien, or whether the plan shall provide for their payment. The appellants have no basis for complaint as to payment of the taxes. Finally, the appellants contend that the court erred in finding that two-thirds of the first mortgage bondholders had assented to the plan. This is a question which the appellants may raise despite their lack of any equity in the property. By subdivision (f) (3) of section 77B (11 U.S.C.A. § 207(f) (3) acceptance as provided in subdivision (e) (1), 11 U.S.C.A. § 207 (e) (1) is made a condition precedent to confirmation of the plan. In Downtown Inv. Ass’n v. Boston Metropolitan Bldgs., 81 F.(2d) 314, 321 (C.C.A.1), it is said that compliance with subdivision (e) (1) is necessary “before the court has jurisdiction to confirm a plan.” Whether it-is truly jurisdictional we need not decide. Even if it be only a condition precedent to lawful confirmation, an order which confirms a plan without the requisite consents may be questioned by a second mortgagee, for he cannot be deprived of his remedy of foreclosure merely by proof that the first mortgage indebtedness is greater than the value of the property. Unless the statute takes that remedy away, he may insist upon it. Section 77B does take it away, but only on condition; therefore he may insist that the condition be fulfilled. Nor can the question be avoided, as the appellees urge, on the theory that the court’s finding that valid consents were filed on behalf of more than two-thirds of the first mortgage bondholders is conclusive on appeal. The validity of the consents involves, questions of law, so that the finding is not a mere finding of fact. Accordingly we must look into the merits of the appellants’ contention. The outstanding first mortgage bonds total $371,000, and the requisite two-thirds thereof is $247,333.33. Holders of $258,-500 of bonds had deposited their bonds with the Real Estate Bondholders Protective Committee, appellees. On July 23, 1935 the committee sent to each depositor a copy of the proposed plan of reorganization, accompanied by a notice that any depositor who did not withdraw his bonds and file notice of dissent from the plan within twenty days would be deemed to assent to the plan and to authorize the committee to assent on his behalf. No depositor withdrew his bonds, but two depositors whose bonds aggregated only $3,000 expressed dissent. Thereafter, on - October 18, 1935, the committee accepted and approved the plan on behalf of $255,500 of the deposited bonds. A few days later, by letter of October 29, 1935, the committee notified the depositors that the plan had been so accepted, and that it would be brought on for confirmation by the court on November 13th. The letter also stated that the committee had received an offer for the purchase of all the deposited bonds ai. 50 per cent, of their face value, and an offer for the purchase of the property at a valuation equal to about 65 per cent, of the face value of the bonds. The committee did not recommend the acceptance of either offer but intended to bring them to the attention of the court, and, “to guide the Committee in its final recommendations to the court,” depositors were requested to indicate whether they desired to accept either offer. Depositors who preferred the plan of reorganization were told that they need not reply. In response to this letter depositors holding $85,000 of bonds expressed a preference for acceptance of one or the other of the offers. With these facts before it the court permitted the committee to vote the deposited bonds for the plan of reorganization and stated in its opinion approving the plan that “more than two-thirds of the bondholders have accepted the plan.” We find no error in this. The expression of a preference for the sale of the bonds or the property was not equivalent to cancellation of „ the committee’s authority to vote on behalf of the depositors, even if it be assumed that revocation of such authority could be effected without complying with the provisions of the deposit agreement concerning withdrawal therefrom. A more serious attack upon the validity of the bondholders’ assent to the plan is based upon events occurring subsequent to the hearing of November 13th. Several months later the committee petitioned for approval of certain modifications of the plan, and on March 25, 1936, an order was entered setting a hearing thereon for April 17th and providing that any holder of non-deposited bonds who had previously accepted the plan might withdraw his acceptance by filing in the office of the clerk of the court on or before April 16th a notice to that effect, and any holder of deposited bonds who had previously accepted the plan might withdraw his acceptance upon the terms set forth in “Exhibit D.” This exhibit gave notice that “Any depositor who by reason of said changes and modifications desires to withdraw from said Plan and the Deposit Agreement, may do so, but only upon surrender of his Certificate of Deposit on or before April 16, 1936 at the City Bank Farmers Trust Company * * * and upon payment on or before that date of his ratable proportion of the Committee’s expenses and disbursements.” No depositor fulfilled these conditions or offered to surrender his certificate, but on April 16th depositors of bonds in the amount of $44,500 filed dissents with the clerk of the court. Nevertheless the committee voted all deposited bonds in favor of the modified plan, and, notwithstanding an objection by the Klee Corporation that the acceptance required by section 77B (e) (1), 11 U.S.C.A. § 207 (e) (1) was lacking, the plan was confirmed, the order stating that 71 per cent, of the bondholders had assented. No bondholder or depositor has appealed; the second mortgagees alone challenge the order of confirmation. By the terms of the deposit agreement, a depositor gave the committee a power of attorney to vote his bonds, revocable only by his withdrawal from the agreement. Withdrawal was conditioned upon surrender of the depositor’s certificate of deposit and payment of his proportionate share of the committee’s expenses and compensation, which the committee was empowered to fix in its own discretion. The order of March 25th made these conditions less onerous. It withdrew the condition as to payment of a share of the committee’s compensation. Moreover, in the order of confirmation the court reserved jurisdiction to enter further orders, and this would doubtless embrace the power to pass upon the committee’s expenses and disbursements and the apportionment of them among depositors, should dispute arise. The court’s power to modify provisions of a deposit agreement is found near the end of subsection (b) of section 77B (11 U.S. C.A. § 207(b), as follows: “For all purposes of this section any creditor may act in person, by an attorney at law, or by a duly authorized agent or committee: Provided, That the judge shall scrutinize and may disregard any limitations or provisions of any depositary agreements, trust indentures, committee or other authorizations affecting any creditor acting under this section and may enforce an accounting thereunder or restrain the exercise of any power which he finds to be unfair or not consistent with public policy.” By virtue of this provision, recognition of the committee’s power to vote the deposited bonds is within the court’s discretion. In re Wabash-Harrison Bldg. Corp., 85 F.(2d) 395 (C.C.A.7). Such discretion-must be exercised in accordance with what the judge finds to be fair and consistent with public policy. The appellants’ present contention is really an assertion that it is unfair and violative of public policy to permit the committee to vote the bonds of a depositor contrary to his expressed wish, although he makes no attempt to withdraw his bonds from the deposit agreement. We do not think this proposition can be successfully maintained. The depositor must be permitted to withdraw on reasonable terms, but we see nothing unfair or contrary to public policy in requiring him to withdraw, if he wishes to act independently of the other depositors. He should not be allowed to play fast and loose; either he is a member of the group, or he is not. So long as he is, the committee should' have power to bind him, for otherwise it will never know what backing can be counted upon for any plan it may propose. See Douglas, 47 Harv.L.Rev. 565, 570. In requiring surrender of the certificate of deposit as a condition of withdrawal, the order of March 25th imposed no unreasonable requirement. The order also required a withdrawing depositor to pay his share of the committee’s expenses incurred up to the time of withdrawal. This was an unknown sum. If it could not be ascertained in time to permit withdrawal on the date when the depositor wished to exercise his right to vote independently, or if cash payment had been shown to be impossible, or possibly even if shown to be merely inconvenient, the condition might perhaps be found invalid with respect to a depositor so affected. Compare Habirshaw Elec. Cable Co. v. Habirshaw Elec. Cable Co., Inc., 296 F. 875, 43 A.L.R. 1035 (C.C.A.2). Nothing of this sort appears with respect to any depositor except Blanche G. Reilley. The committee’s vote of her $2,000 of bonds may be thrown out without affecting the result. None of the other dissenting depositors gave any indication of a desire to withdraw from the group. Apparently they wished to remain in- the group but to vote independently. To refuse them permission to do this we believe to have been within the discretion of the District Court. Their contract of deposit bound them to withdraw if they wished to vote independently; the terms upon which they were permitted to withdraw were not shown to be oppressive or difficult of performance; they made no effort to comply, and expressed no desire to withdraw unless this be inferred from their desire to vote independently. Under these circumstances we are not prepared to hold that the judge was compelled to restrain the committee from exercising in good faith and in the interest of depositors the voting power conferred upon it by the deposit agreement. Moreover, none of the dissenting depositors has taken any appeal. So far as appears, they may have again changed their minds and may now be perfectly satisfied with the action taken by the committee in their behalf. The appellants are asserting that the vote on dissenting depositors’ bonds was unauthorized by them. Even if it be assumed that it was, it is not apparent why their subsequent acquiescence might not validate it. Hence we think the appellants are in no position to contend that the committee voted without authority. Decree affirmed. No opinion for publication.

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?

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

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

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

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

PUBLIC SERVICE COMPANY OF NEW MEXICO, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, City of Gallup, New Mexico, Intervenor. CITY OF GALLUP, NEW MEXICO, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Public Service Company of New Mexico, Intervenor. Nos. 75-1692, 76-1013. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 17, 1976. Decided June 16, 1977. Paul H. Keck, Washington, D. C. (John E. Holtzinger, Jr., C. Stephen Angle of Morgan, Lewis & Bockius, Washington, D. C., and William B. Keleher, Richard B. Cole of Keleher & McLeod, Albuquerque, N. M., on the brief), for petitioner and intervenor, Public Service Co. of N. M. Charles P. Wheatley, Jr., Washington, D. C. (Grace Powers Monaco, Woodrow D. Wollesen of Wheatley & Miller, Washington, D. C., on the brief), for petitioner and intervenor, City of Gallup, N. M. Philip R. Telleen, Atty., Washington, D. C. (Drexel D. Journey, Gen. Counsel, Robert W. Perdue, Deputy Gen. Counsel and Allan Abbot Tuttle, Sol., Washington, D. C., on the brief), for respondent, Federal Power Commission. Before SETH and HOLLOWAY, Circuit Judges, and STANLEY, Senior District Judge. Of the District of Kansas, sitting by designation. HOLLOWAY, Circuit Judge. In these consolidated cases petitioners Public Service Company of New Mexico (PNM), an electric utility regulated under the Federal Power Act, 16 U.S.C. § 791a et seq. (1970), and the City of Gallup, New Mexico (Gallup), seek review of two Federal Power Commission orders with respect to a change in rate sought by PNM for electricity sold to Gallup. Gallup is a wholesale purchaser of electricity which it uses and also distributes to customers. The electric power is purchased by Gallup under a contract made with PNM in 1962 for a 25 year term and amended in 1968 to run for 25 years from that date. It contained provisions for payment at a monthly rate based on a “Monthly Demand Charge” plus a “Monthly Energy Charge,” inter alia, with provisions for fuel cost and tax adjustments. In addition to these provisions containing references to specific rates, Articles II and XII included other provisions relating to changes in rates which are at the center of this controversy. Article II contained a paragraph entitled “Change in Rate” which included an option for Gallup to terminate the agreement within 90 days after being given notice of a rate increase “ . . . should the rates charged herein to the Consumer by the Company be increased for any reason whatsoever other than fuel cost or tax adjustments . . .” Article XII stated that the contract, including the tariff made a part thereof, was subject to “such changes or modifications as shall be ordered from time to time by any legally constituted regulatory body having jurisdiction to require such changes or modifications.” In 1975, PNM filed with the Federal Power Commission a unilateral increase in the rates to be charged to Gallup, pursuant to § 205 of the Federal Power Act, 16 U.S.C. § 824d (1970). Gallup protested and moved that the Commission reject the filing as violative of ah existing fixed rate contract. The Commission found that the agreement did not permit such a unilateral filing. However, the Commission did institute proceedings to determine a just and reasonable rate pursuant to § 206 of the Act, 16 U.S.C. § 824e (1970), stating that materials contained in the original PNM filing would form the basis of those proceedings. In No. 75-1692, PNM contends that the Commission erred in holding that the contract barred PNM’s unilateral rate increase filing while Gallup agrees with that part of the Commission’s decision. However, Gallup contends in No. 76-1013 that the Commission erred in stating that the heavy Sierra-Mobile burden of proof for relief from an unreasonably low and unlawful rate would not apply in the § 206(a) proceeding instituted by the Commission. The Commission argues that this court has no jurisdiction of Gallup’s petition. It says that Gallup is not “aggrieved” within the meaning of § 313(b) of the Federal Power Act, 16 U.S.C. § 8251 (b) (1970), since no change in the rates to Gallup has been ordered. Further the Commission and PNM contend that the Commission is right in saying that the heavier Sierra-Mobile standard of proof required to set aside a contract rate does not apply because the PNM/Gallup contract, unlike those involved in Mobile and Sierra, is not a fixed rate contract. The primary guidelines for our consideration of these petitions are the Supreme Court’s opinions in the Sierra and Mobile cases and their sequel, United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153. We need not recount their familiar principles in detail. It suffices to note the summary in Richmond Power & Light v. FPC, 156 U.S.App.D.C. 315, 481 F.2d 490, 493, 497, cert. denied, 414 U.S. 1068, 94 S.Ct. 578, 38 L.Ed.2d 472: The rule of Sierra, Mobile and Memphis is refreshingly simple: The contract between the parties governs the legality of the filing. Rate filings consistent with contractual obligations are valid; rate filings inconsistent with contractual obligations are invalid. 5(5 * 5(5 * * * . These principles apply whether the parties agree to a specific rate or whether they agree to a rate changeable in a specific manner. In either case the contract is binding, and a unilateral filing is ineffective to change it . I PNM’s Petition for Review A PNM'argues vigorously for its right to file a unilateral increase in rates on the basis of the following “Change in Rate” provision which appears in Article II of the contract (J.A. 2, 13): Change in Rate: Not withstanding the earliest effective date of termination (July 1, 1977) as set forth in Article II (Term) above, should the rates charged herein to the Consumer by the Company be increased for any reason whatsoever other than fuel cost or tax adjustments provided for herein, then and in that event, the Consumer shall immediately have the option within ninety (90) days after the Consumer is given notice of such rate increase to terminate this agreement; provided, however, that the Company will supply for a two (2) year period thereafter such power and energy in accordance with the new or increased rates as may be requested by Consumer from time to time up to the amount specified in Article IV hereof. The consumer may exercise this option by giving the Company written notice of such termination and paying the Company the sum of One Hundred Dollars ($100) by good and sufficient check of the Consumer. Such notice and payment shall be given by the Consumer by mailing such notice and payment to the Company by certified mail addressed to the Company at its offices in Albuquerque, New Mexico. Such notice shall have incorporated therein a true copy of the resolution duly adopted at a regular meeting of the City Council authorizing such notice and payment, and the notice shall be executed by the Mayor and sealed and attested by the City Clerk. (Emphasis added). PNM’s position is that the language emphasized above can only be read as giving PNM the right to file a unilateral rate change. PNM’s brief argues that since the paragraph gives Gallup an opportunity to terminate the contract “should [PNM] change its rates ‘for any reason whatsoever,’ ” it is apparent that the contract gives PNM the right to change the rates unilaterally. Brief of Petitioner, PNM, 6. When confronted with PNM’s arguments the Commission said (J.A. 121; see also J.A. 146): We do not think that this language goes to the Mobile-Sierra issue of whether the contract permits the selling public utility to unilaterally file for an increase in rates, but rather provides an option to the customer if the rates charged to it are increased for any reason. We must agree with the Commission’s conclusion. Although the “Change in Rate” paragraph does recognize that a change in rates may occur, it does not say how such a change may be effected. Nonetheless, PNM offers several arguments in support of its position. First, PNM asserts that if this paragraph did not contemplate a unilateral rate change by PNM, Gallup’s option to terminate would be meaningless. In response to this contention the Commission noted that the option could be exercised when a § 206 proceeding (to determine a just and reasonable rate) resulted in a rate increase. PNM replies that a customer does not need the option when it has the opportunity to participate in a § 206 hearing on a just and reasonable rate. We agree with the Commission that there is nothing illogical about a customer’s desire to retain an option to terminate after a § 206 proceeding, especially if the customer’s position is not accepted by the Commission and the customer is then faced with increased rates. Second, PNM argues that the “notice of such rate increase” language in the “Change in Rate” paragraph can only have reference to § 205 unilateral filing procedures which are instituted by notice. The Commission thought that the phrase did not refer to § 205, but rather was used “in the ordinary meaning of notice under contract law”. J.A. 149. We agree with the Cómmission that the tenor of Article II is such that the word “notice” seems to be used in the more general sense. PNM further argues that even if the term “notice” was intended to be used in this way, the duty to give notice implies a power to act unilaterally. However, this argument assumes that the notice of a change in rate is to be given by PNM, an assumption unsupported by the contract language. The notice referred to in the “Change in Rate” paragraph could just as well be notice from the Commission that the rate has been increased after a § 206 hearing. Thus the notice clause does not single out a party to give notice or indicate a particular change in rate procedure. In support of its proposition that Gallup’s option to terminate in the face of increased rates implies the countervailing right of PNM to file unilateral rate increases, PNM cites two orders of the Commission in Arkansas-Missouri Power Co., Doc. No. E-9094. We are persuaded, however, that the Commission has logically distinguished the contract before us from that involved in the Arkansas-Missouri case. The contractual language there was broader, as the Commission says, and evinced an intent to permit unilateral filings under § 205, an intent not shown by Articles II and XII of the PNM/Gallup contract. In sum, we agree with the Commission that the “Change in Rate” paragraph in the contract did not give or imply a right in PNM to make the unilateral rate filing. B PNM also claims a right to unilaterally file an increased rate on the basis of Article XII of the contract. PNM says that this part of the agreement should be construed in light of the procedures of the New Mexico Public Service Commission because it is a verbatim copy of a tariff provision required by the New Mexico Commission for companies subject to its jurisdiction. PNM claims that New Mexico law permits unilateral filings and that, therefore, PNM had the right under this contract. We are not persuaded. State law and procedure are relevant only to the extent intended by the parties. Appalachian Power Co. v. FPC, 174 U.S.App.D.C. 100, 529 F.2d 342, 347 n. 35, cert. denied, 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76. We are convinced that an intent to incorporate state law is not manifested by Article XII. Compare Richmond Power & Light Co. v. FPC, supra, 156 U.S.App.D.C. 315, 481 F.2d at 499-500. Thus it is unnecessary for us to examine New Mexico law in deciding whether PNM reserved a right to make unilateral rate filings. C One major argument by PNM in support of its claim of a right to make unilateral rate filings remains. PNM says that provisions like Article XII relating to changes in rate by “orders” (see note 11, supra), as construed in Central Telephone & Utilities Corp., Western Power Division, 50 F.P.C. 1105 (1973), are consistent with an interpretation that the contract provides for § 205 unilateral filings by PNM which may then be made effective by Commission orders. We must agree that the Central Telephone decision, 50 F.P.C. at 1110, supports PNM’s position. However, in its order denying rehearing in the instant case the Commission responded that the Central Telephone language was contrary to that of the Supreme Court in Mobile, that it was dictum, and that more recent Commission decisions have interpreted the term “order” in the same manner as it was construed here. We need go no further than the first point. We agree that the language of Mobile supports the Commission’s position in this case which was stated as follows (J.A. 122): . We think that the key language in the clause at issue is that the rate shall be subject to change by order issued by the regulatory body having jurisdiction, which is this Commission. In the Mobile case, the Court stated in reference to Section 4(d) of the Natural Gas Act, which is equivalent to Section 205(d) of the Federal Power Act: Section 4(d) provides not for the filing of ‘proposals’ but for notice to the Commission of any ‘change . . . made by’ a natural gas company, and the change is effected, if at all, not by an order of the Commission but solely by virtue of the natural gas company’s own action. Mobile, supra, [350 U.S.] at 342 [76 S.Ct. 373] (emphasis supplied) Since the parties provided for a change in rate only by order issued by the Commission, it is clear they did not contemplate the unilateral filings permitted by Section 205. In the final analysis, the question is whether the contract reserved to PNM the right to increase the specified rates by a unilateral filing. See Memphis, supra, 358 U.S. at 114, 79 S.Ct. 194. We find no such reservation in the Article XII provision on contract modification by regulatory orders. Indeed the reference therein to changes ordered by a regulatory body “. . . having jurisdiction to require such changes (emphasis added), points toward a change after a § 206 proceeding, not a § 205 unilateral filing. We feel the parties would not have left the reservation of an important right such as the making of unilateral rate changes to implication from provisions like those of Article XII, or of Article II, but would have clearly provided for such filings if they had been intended. II Gallup’s Petition for Review In No. 76-1013, Gallup argues that the Commission erred in holding that PNM would not have to satisfy the heavy Sierra-Mobile burden of proof in the § 206 proceeding instituted by the Commission. The Commission contends that this court lacks jurisdiction of Gallup’s petition because Gallup is not presently “aggrieved” within the meaning of § 313(b) of the Federal Power Act, 16 U.S.C. § 8257(b) (1970), since there has been no change in the rates that Gallup must pay for wholesale electric service. The Commission further says that the earliest point at which Gallup could be aggrieved would be after the conclusion of the § 206 proceeding. Hence the Commission suggests that Gallup’s petition is premature and should be dismissed without prejudice. We agree. Section 313(b) of the Act, 16 U.S.C. § 8257 (b) (1970), provides in part: Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals This provision does not authorize review of orders of a procedural or interloeutory nature, but rather relates to “orders of a definitive character dealing with the merits of a proceeding before the Commission”. FPC v. Metropolitan Edison Co., 304 U.S. 375, 384-85, 58 S.Ct. 963, 967, 82 L.Ed. 1408; Amerada Petroleum Corp. v. FPC, 285 F.2d 737, 739 (10th Cir.). The requirement that a reviewable order be “definitive” is something more than a requirement that it be unambiguous in legal effect. Atlanta Gas Light Co. v. FPC, 476 F.2d 142, 147 (5th Cir.). It is a requirement that the order have some substantial effect on the parties which cannot be altered by subsequent administrative action. Id. To be reviewable the order must have an impact upon rights and be of such a nature that it will cause irreparable injury if not challenged. Amerada Petroleum Corp., supra, 285 F.2d at 739. We are not persuaded that Gallup has shown that it is “aggrieved.” The Commission’s orders with respect to Gallup were preliminary in that they merely initiated the § 206 proceeding and were procedural insofar as they defined the burden of proof for that proceeding. The contract rates between PNM and Gallup were not modified and, in fact, until they are modified there can be no real injury to Gallup. See Amerada Petroleum Corp., supra, 285 F.2d at 740. Further, Gallup’s claim that the ongoing § 206 proceeding could be a “nullity” if the wrong burden of proof is used, thus causing the parties wasted time and resources, is insufficient to show aggrievement. Colorado Interstate Gas Co. v. FPC, 370 F.2d 777, 781 (10th Cir.); see Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51-52, 58 S.Ct. 459, 82 L.Ed. 638. Accordingly in No. 75-1692, the orders of the Commission are affirmed. In No. 76-1013, the petition of Gallup is dismissed without prejudice. . The orders challenged were entered in Docket No. E-9454, Public Service Company of New Mexico. On July 31, 1975, the Commission’s original ruling was made rejecting PNM’s unilateral filing and instituting proceedings to determine a just and reasonable rate. On September 26, 1975, the second order under attack was issued, denying rehearing and further discussing the issues. PNM filed its petition for review of the two Commission orders in this court. On the same day, Gallup petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the same Commission orders. PNM petitioned to intervene in that case and moved its transfer to this Circuit. PNM’s petition to intervene was granted. The District of Columbia Circuit transferred Gallup’s petition for review to this Court pursuant to 28 U.S.C. § 2112(a) (1970), citing Abourezk v. FPC, 168 U.S.App.D.C. 246, 513 F.2d 504, 505. This Court then consolidated the cases. . See United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373; and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388. . The Commission stated that it would institute a § 206(a) proceeding and set the just and reasonable rate for PNM’s service to Gallup and that the proceeding “would not entail meeting the heavy burden of proof associated with the Mobile-Sierra decisions.” In Sierra the Court held that although a contract for a fixed term at a fixed rate was involved so that a unilateral filing could not effeet a change in rate, under the Federal Power Act the Commission could have a hearing to determine “whether the rate is so low as to adversely affect the public interest—as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory.” 350 U.S. at 355, 76 S.Ct. at 372. . Our references to the record will be made by citing the Joint Appendix as “J.A.”. . We note that the contract does not contain wording that directly supports PNM’s statement that the contract “provides Gallup with an opportunity to terminate the contract should the company [PNM] change its rates ‘for any reason whatsoever.’ ” Brief of Petitioner, PNM, 6. (Emphasis added). Article II stipulates that . . should the rates charged herein to the Consumer [Gallup] by the Company [PNM] be increased for any reason whatsoever other than fuel cost or tax adjustments . . . ,” then Gallup has the termination option. (J.A. 2) (Emphasis added). . A broader interpretation of the contract language in the change in rate paragraph of Artiele II is also made by PNM in its reply brief, p. 16: In summary, Article II of the PNM/Gallup contract evidences a contractual contemplation of rate change powers both in the regulatory agency which oversees the contract and by the unilateral action of the seller under the contract . . . . Article II as a whole deals with the term of the contract and with two options to terminate—the first for any or no reason upon 24 (amended to 48) months’ notice under the title “Term” but no earlier than December 31, 1967 (amended to July 1, 1977), and the second only upon a change in rates after three months’ notice under the title “Change in Rate”. . It is worth noting that Gallup’s duty to give notice on termination of the contract under either paragraph two or paragraph three of Article II is spelled out in detail. See J.A. 2-3, 12-13. . The Commission language mainly relied on in Arkansas-Missouri appeared in an order of November 29, 1974, stating in part: . . . It seems highly unlikely that the parties would have contemplated only mutually agreed upon amendments (rate changes) to the contract on the one hand, and provided for an option to cancel in the event of such a change on the other. The second order relied on by PNM was the order of January 29, 1975, denying rehearing. . Amended paragraph one of Article XII reads as follows (J.A. 22): This contract, including the tariff made a part hereof, shall at all times be subject to such changes or modifications as shall be ordered from time to time by any legally constituted regulatory body having jurisdiction to require such changes or modifications. As originally drawn, Article XII contained a proviso that the agreement was subject to changes or modifications by the New Mexico Public Service Commission. . PNM states that the provision is prescribed by Section 24 of the New Mexico Commission’s Tariff Schedule Rules, promulgated by First Revised General Order No. 2, effective December 15, 1965. The above cited order is not a part of our record. However, Gallup and the Commission do not contest this point, although they do not concede the conclusion drawn from it by PNM to the effect that state law was incorporated by the parties. . Gallup states that the Commission’s orders were based on the premise that the City was an “aggrieved” party since the Commission accepted and granted the City’s petition for intervention. We are not bound by the Commission’s order granting petitioner’s motion to intervene. Utility User’s League v. FPC, 394 F.2d 16, 19 (7th Cir.), cert. denied, 393 U.S. 953, 89 S.Ct. 377, 21 L.Ed.2d 365. Rather, this court is obligated to determine for itself whether it has jurisdiction. Phillips Petroleum Co. v. FPC, 475 F.2d 842, 845 (10th Cir.), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102.

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

WHEELING-PITTSBURGH STEEL CORPORATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, The Chesapeake and Ohio Railway Company, National Association of Regulatory Utility Commissioners, Association of American Railroads, Florida Phosphate Council, Inc., Intervenors. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Petitioner, v. INTERSTATE COMMERCE COMMISSION, and United States of America, Respondents, Wheeling-Pittsburgh Steel Corporation, C & O Railroad, CF Industries, Inc., Association of American Railroads, Florida Phosphate Council, Inc., Intervenors. Nos. 82-3122, 82-3361. United States Court of Appeals, Third Circuit. Argued April 25, 1983. Reassigned July 20, 1983. Decided Dec. 21, 1983. L.C. Major, Jr., Russell R. Sage, Major, Sage & King, Alexandria, Va., for petitioner Wheeling-Pittsburgh Steel Corp. Daniel B. Harrell, Timm L. Abendroth, Office of Gen. Counsel, I.C.C., Washington, D.C., for respondent I.C.C. Mark A. Keffer, Public Service Com’n of W.Va., Charleston, W.Va., for petitioner, Public Service Com’n of West Virginia. John J. Powers, III, Kenneth P. Kolson, Dept, of Justice, Washington, D.C., for respondent U.S. Charles D. Gray, Nat. Ass’n of Regulatory Utility Com’rs, Washington, D.C., for intervenor Nat. Ass’n of Regulatory Utility Com’rs. Renee D. Rysdahl, John J. Paylor, Chesapeake and Ohio Ry. Co., Cleveland, Ohio, R. Eden Martin, David M. Levy, Sidley & Austin, Washington, D.C., for intervenor Chesapeake and Ohio Ry. Co. Martha W. Barnett, Janet R. Studley, Holland & Knight, Tallahassee, Fla., for intervenor Florida Phosphate Council. Betty Jo Christian, Stephen Ailes, Steven A. Brigance, Steptoe & Johnson, Chartered, Washington, D.C., for intervenor Ass’n of American Railroads. Before ADAMS and HIGGINBOTHAM, Circuit Judges, and STAPLETON, District Judge. Hon. Walter K. Stapleton, United States District Court for the District of Delaware, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. The extent to which intrastate rail shipments must contribute to the income of an interstate rail carrier is a complex issue confronting state and federal regulators with increasing frequency. In these proceedings we are asked to decide whether rates approved by federal and state regulators for intrastate shipments of the Chesapeake & Ohio Railroad (C & 0) comply with federal standards. To resolve this issue, we must construe several provisions of the Staggers Rail Act of 1980 governing the adequacy of railroad revenues and the Interstate Commerce Commission’s most recent standards implementing that Act. I. The Wheeling-Pittsburgh Steel Corporation (W-P) operates a coke plant in Follansbee, West Virginia, which in 1980 received 1.86 million tons of coal used to produce steel (“metallurgical coal”) from two mines in Omar and Beckley, West Virginia. Coal from these mines moved by open hopper car to Huntington and Ceredo, West Virginia, where it was transshipped by barge to Follansbee. Because the ultimate destination of the coal shipments was in West Virginia, these shipments were part of the intrastate transportation of coal. All coal from Omar and Beckley was transported by the C & O. Until August, 1981, the C & 0 tariff prescribing rates for the transportation of coal to Huntington and Ceredo provided for four groups of rates based on the distance between mines in Kentucky and West Virginia and the ports at Huntington and Ceredo. Omar is in rate group A; Beckley, in group C. Within each group, rates varied with the type of coal as well as with its characterization as an interstate or intrastate shipment. C & 0 charged a lower rate for metallurgical coal than for coal used to generate electricity (“steam coal”) and a lower rate for coal destined to remain in West Virginia (“intrastate coal”) than for coal destined for points outside West Virginia (“interstate coal”). The former rates for groups A and C are indicated in the following table. GROUP A Coal from Omar Interstate steam coal $5.58 Interstate metallurgical coal 5.10 Intrastate steam coal 4.27 Intrastate metallurgical coal 3.86 GROUP C Coal from Beckley Interstate steam coal $6.97 Interstate metallurgical coal 6.44 Intrastate steam coal 5.49 Intrastate metallurgical coal 5.04 On August 21,1981, C & 0 filed a revised tariff with the West Virginia Public Service Commission (PSC). Under the new tariff, the distinction between metallurgical coal and steam coal and between intrastate coal and interstate coal was abolished and the rate structure was significantly changed. The pertinent portions of the August 21 tariff are as follows: GROUP A Coal from Omar $5.58 GROUP C Coal from Beckley 6.97 As these schedules indicate, the August 21 tariff simply replaced the four rates within each rate group with a single rate equal to the highest former price. As a consequence, rates for shipments from Omar to Follansbee increased from $3.86 to $5.58, or 45 percent per ton. Rates for shipments from Beckley to Follansbee increased from $5.04 to $6.97, or 38 percent per ton. Because C & 0 had instituted earlier rate increases between October 1, 1980 and July 1, 1981, the August 21 tariff represented rate increases in less than a year of 92 percent for Omar and 84 percent for Beckley. W-P and three other protestants petitioned the PSC for review of the C & O tariff. Evidence received by a PSC hearing examiner in December, 1981 indicated that C & O had “market dominance” over shipments governed by the tariff and, hence, that rates prescribed by the C & 0 tariff must be “reasonable.” See 49 U.S.C. § 10701a(b)(l) (Supp. V 1981). In order to evaluate the reasonableness of C & O’s rates, the hearing examiner determined the variable costs of shipments governed by the August 21 tariff by making two adjustments to the cost calculations contained in Rail Form A (RFA) filed by C & O with the Interstate Commerce Commission. The first alteration, known as the Ex parte 270 adjustments, modified variable costs listed in the RFA to account for economies of multiple-car movements. The second modification further refined the cost calculation to account for particular characteristics of the C & O shipments, only two of which are relevant here: “origin switching costs” and “crew costs.” After making these alterations, the examiner established variable costs for shipments from Omar and Beckley to Huntington and Ceredo and computed the ratio of revenues (represented by the August 21 tariff rates) to these variable costs, yielding the following table: Variable Revenue/ Shipment eost/ton variable cost Omar to Huntington $1.817 307.10% Omar to Ceredo 1.898 293.99 Beckley to Ceredo 2.951 236.19 The hearing examiner evaluated the reasonableness of C & O’s rates by comparing these rates with the variable costs reported in the foregoing table and determined that a maximum reasonable revenue-to-variable cost ratio would be 175%. As the preceding table indicates, the ratios of revenues to variable costs under the August 21 tariff greatly exceeded this figure. Accordingly, the examiner found the rates provided in the new tariff unreasonable. The examiner observed that the rates already in effect for Rate Group A prior to August 21 exceeded the maximum reasonable level of 175 percent. He nevertheless authorized the continued application of the former Group A rate and calculated a new rate for Group C: Group A Coal from Omar $3.86 Group C Coal from Beckley 5.16 On February 10, 1982, the PSC adopted the examiner’s recommendations as a final order, declaring that it would not “reverse or modify a recommended decision unless the decision is contrary to the evidence, unsupported by the evidence, is arbitrary, based upon a mistake of law, or based upon a misapplication of legal principles.” The PSC directed that C & O refund the portion of the increased rate found to be unreasonable. On February 16, C & O petitioned the ICC to review this order of the PSC under section 214(b) of the Staggers Act, 49 U.S.C. § 11501(c) (Supp. V 1981), arguing that the “standards and procedures” employed by the PSC were not in accord with the provisions of the Interstate Commerce Act. See 49 U.S.C. § 11501(c) (Supp. V 1981). The ICC set aside the February 10 order of the PSC as “inconsistent with Federal law in certain critical respects”: (1) The order of the PSC did “not show that sufficient consideration was given to revenue adequacy,” noting that the PSC did not explain “how its prescribed maximum reasonable revenue/variable cost ratio of 175 percent would contribute to petitioner’s revenue adequacy.” Interstate Commerce Commission, Decision No. 38793 (Mar. 17, 1982). The Commission added that “[s]ome explanation is especially appropriate here, since there is reason to question whether a prescribed maximum reasonable rate at 10 percent above the present jurisdictional threshold level [of 165 percent] would make an effective contribution toward revenue adequacy.” (2) The order “lack[ed] a rationale for establishing a revenue/variable cost ratio of 175 percent.” The Commission held that to be consistent with the Staggers Rail Act “the PSC must fully explain the methods and policies by which it develops its maximum rate standards.” (3) The order “fail[ed] to allow [the ICC] to review its analysis of basic costing matters,” precluding a “verification of the methodology used by the state in resolving cost issues or reconstructing costs with any degree of accuracy.” Particularly disturbing to the Commission were adjustments by the PSC to “crew costs” and “switching origin costs.” The “true variable costs,” the Commission found, “are indeterminate.” Because section 214(b) requires that the ICC establish appropriate rates whenever state standards and procedures do not comport with federal standards, 49 U.S.C. § 11501(c) (Supp. V 1981), the Commission adopted the rates instituted by C & 0 in the August 21 tariff as the “appropriate rates at this time.” The Commission’s approval of C & O’s rates rests on the following analysis: Balancing the goals reflected in the statute, with special attention to [49 U.S.C.] § 11501 and its history, the evidence before us, and practical considerations, we determine that the rates for Group A and C origins, as set forth in [the August 21 tariff], are the appropriate rates at this time, and we will authorize their continued application to this traffic. W-P petitioned this court for review of the ICC’s order. Another petition for review subsequently filed by the PSC in the Fourth Circuit was transferred to this court. We have jurisdiction under 28 U.S.C. § 2321(a) (1976) and 28 U.S.C. § 2342 (Supp. V 1981). II These petitions raise three issues for our consideration. The ICC and intervenors, C & 0, Association of American Railroads, and Florida Phosphate Council, maintain that the February 10 order of the PSC does not comply with federal “standards and procedures” within the meaning of 49 U.S.C. § 11501(c) (Supp. V 1981). W-P, the PSC, and intervenor National Association of Regulatory Utility Commissioners (NARUC) maintain that in making this finding, the ICC has exceeded the scope of its review under section 11501(c). W-P and NARUC also challenge that portion of the March 17 order of the ICC declaring C & O’s August 21 tariff “the appropriate rates at this time” as without adequate foundation under the Administrative Procedure Act. The ICC contends that its order was adequate given the 30-day period within which the Staggers Act obliges the ICC to act. See 49 U.S.C. § 11501(c) (Supp. V 1981). Finally, the parties disagree as to the standard we should use in receiving ICC orders. W-P maintains that the ICC’s justification for preempting an order of a state authority must meet “a high standard óf certainty” and must “clearly appear.” The ICC contends that a Supreme Court holding to this effect is no longer controlling because of the fundamental reallocation of federal and state ratemaking authority worked by the Staggers Act. A. Section 10(e) of the Administrative Procedure Act (APA) provides that when a court reviews agency action, it shall set aside findings and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2) (1976). In the year preceding the enactment of the APA, the Supreme Court subjected ICC orders to a standard of review somewhat more rigorous than that subsequently applicable under section 10(e) of the APA. Construing a predecessor to section 11501(c), the Court held: Intrastate transportation is primarily the concern of the state. The power of the Interstate Commerce Commission with reference to such intrastate rates is dominant only so far as necessary to alter rates which injuriously affect interstate transportation.... A scrupulous regard for maintaining the power of the state in this field has caused this Court to require that Interstate Commerce Commission orders giving precedence to federal rates must meet “a high standard of certainty.”... Before the Commission can nullify a state rate, justification for the “exercise of federal power must clearly appear.” North Carolina v. United States, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760 (1945) (citations omitted). At issue in North Carolina was former section 13(4) of the Interstate Commerce Act, which authorized the ICC to remove unreasonable discriminations against interstate commerce caused by low intrastate rates. The history of section 13(4) reveals a scrupulous regard on the part of Congress for state regulatory authority over intrastate rates. In conformity with this longstanding deference to state expertise over intrastate rates, the Supreme Court required that the ICC establish more than mere price discrimination before preempting a state ratemaking order as an unreasonable burden on or discrimination against interstate commerce. The ICC must establish that the state rate was “not contributing its fair share of the revenue required to enable [the carrier] to render adequate and efficient transportation service.” North Carolina, supra, 325 U.S. at 514, 519-20, 65 S.Ct. at 1264, 1267. Section 214(b) of the Staggers Act of 1980, codified at section 11501(a) of the Interstate Commerce Act, carries forward the authority under section 13(4) to proscribe intrastate rates that discriminate against or impose an undue burden on interstate or foreign commerce. Section 11501(b), however, adds a new requirement to section 13(4): the states may regulate intrastate rates only in accordance with the standards and procedures of the Interstate Commerce Act. Consequently, section 11501(b) expanded the authority of the ICC over intrastate ratemaking. The Commission may now establish an intrastate rate without first finding an undue burden on or unreasonable discrimination against interstate commerce, provided that the Commission finds that the state rate is not consistent with federal standards or procedures. Section 11501(b) represented a compromise between those favoring federal preemption of state authority over intrastate ratemaking and those advocating continuing state control over intrastate rates. As introduced in the House of Representatives, the predecessor to section 11501(b) would have divested the states of all authority over rates under the Commission’s jurisdiction. Criticism of this provision by a number of state public service commissions led Congressman Broyhill to propose an amendment to the House bill preserving state jurisdiction over intrastate rates, subject to the condition that state regulatory authorities apply federal substantive rules and certify that their procedures are compatible with federal procedures. With only minor modification, this amendment became section 11501(b). Contrary to the ICC’s contention, the legislative history of the Staggers Act indicates that the Act did not' fundamentally reallocate federal and state ratemaking authority. Neither the Act nor its legislative history indicates any intention to overrule the Supreme Court’s holding in North Carolina or to limit its application to challenges under section 11501(a). Rather, it appears that Congress, by rejecting federal preemption of intrastate rates, intended to preserve this traditional sphere of state competence. It follows, then, that the ICC must, in exercising its authority under section 11501(b) to preempt state rates for nonconformity with federal standards or procedures, make the basis for its preemption order clear. This is essential if state regulatory authorities are to fulfill the obligation vested in them by Congress to regulate intrastate rates in accordance with federal standards. Moreover, this conclusion is a corollary of the traditional precept of administrative law that meaningful judicial review of agency action is not possible without an explanation of the grounds for an administrative decision. See, e.g., Atchinson, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973); Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968). B. In holding that the February 20 order of the PSC did not adhere to federal standards and procedures, the ICC, W-P insists, exceeded the scope of its review under section 11501(c). The plain language of that section indicates that the phrase “standards and procedures” incorporates the express provision of the Interstate Commerce Act. Standards under the Act, however, are general in nature. Section 10701a, for example, requires that the rates established for carriers with market dominance be “reasonable,” while subsection 10701a(b)(3) enjoins the Commission, in evaluating the reasonableness of railroad rates, to recognize the policy that rail carriers earn “adequate revenues.” W-P maintains that this generality affords state regulatory authorities a certain latitude in assessing the reasonableness and adequacy of intrastate rates. The PSC argues, for example, that state authorities are free to exercise their judgment as to whether revenue levels are reasonable and contribute adequately to a carrier’s income. Both W-P and the PSC assert that federal standards and procedures are limited to those stated in the Act. Because the Act does not expressly prescribe formulae for determining maximum reasonable rates or the extent to which intrastate shipments must contribute to revenue adequacy, Congress evidently left these determinations to the discretion of state authorities. We cannot agree that Congress intended that state regulatory authorities exercise a measure of discretion in the interpretation of federal standards and procedures under the Act. Two arguments inform our view. First, we do not believe that this interpretation is consonant with the legislative history of the Staggers Act. The Conference Committee Report recites the conferees’ intent “to ensure that the price and service flexibility and revenue adequacy goals of the Act are not undermined by state regulation of rates, practices etc., which are not in accordance with these goals.” These goals would plainly be at peril were state compliance to be judged under an abuse of discretion standard. Second, the Act itself obliges the Commission to develop federal standards and procedures for both variable costs and revenue adequacy. 49 U.S.C. §§ 10701a(c)(4)(A), 10704(a)(2) (Supp. V 1981). Little would be served were the states free to pursue their own interpretations of the Act apart from the standards and procedures promulgated by the Commission. To the contrary, the consistency between federal and state standards sought by the drafters of the Act would be undermined by such an interpretation. It seems evident, therefore, that Congress intended the term “standards and procedures” to encompass standards and procedures promulgated and interpreted by decisions of the ICC. The Commission’s standard for reviewing the standards it promulgates must be binding on the states; in no other fashion could the Commission ensure that state authorities act in conformity with federal rules. Despite the language and legislative history of the Staggers Act, the PSC suggests that Congress contemplated only a “quick check” on state rulemaking by the ICC. Section 11501 gives the Commission 30 days to certify state standards and procedures. Therefore, the PSC contends, the Staggers Act must envision a limited review to ensure that the standards approved by the Commission under section 11501 are actually applied. We find this argument unpersuasive. The legislative history reveals that the 30 day review period is a congressional response to Commission delays in approving intrastate railroad rate increases. Nothing in the legislative history suggests that the abbreviated period was intended to sanction limited review of state orders setting intrastate rates. Section 11501(c) does not leave state authorities free to exercise their judgment as to whether the Commission’s standards have been satisfied. Rather, the Commission’s scope of review must be plenary with respect to the standards it approves under section 11501(b). We hold that the phrase “standards and procedures” in section 11501(c) refers to standards and procedures promulgated and interpreted in decisions and orders of the ICC as well as those standards or procedures expressly incorporated in the Interstate Commerce Act. On questions of law as to whether state authorities have complied with these standards or procedures, the Commission’s review is plenary. C. On February 8, 1983, the ICC promulgated revised standards for maximum reasonable rates under the Staggers Act. See Ex parte 347 (Sub-No. 1), Coal Rate Guidelines — Nationwide (Feb. 8, 1983). As guidelines promulgated under the Act, these are federal “standards” within the meaning of section 11501(c). In an extensive discussion of revenue adequacy and maximum reasonable rates, the Commission approved a system of “constrained market pricing.” Under the Commission’s guidelines, railroad pricing of market dominant coal traffic would be subject to four upward constraints: (1) the cost of serving that traffic without regard to any other traffic (“stand-alone cost”); (2) certain checks on obviously inefficient management; (3) achievement of revenue adequacy; and (4) phasing of any substantial rate increases. Ex parte 347, supra, slip op. at 10. Two of the guidelines are particularly pertinent to these proceedings. The definition of “stand-alone cost” requires that the Commission derive “the minimum long-run average cost for the optimal capacity for the stand-alone shipper.” Id. at 12. Guidelines for determining stand-alone cost are provided in an Appendix and permit the use of “system average costs” for the computation of certain costs, such as crew wages, but not for major capital investments such as rails, ties, and locomotives. Id.; App. A, at 1. The guidelines also propose to phase in rate increases in increments of no more than 15 percent per year. This cap on annual rate increases excludes inflation-based increases, see note 4 supra, but includes all other increases authorized by the Act. The Commission’s most recent opinion in Ex parte 347, issued after the entry of its order in this case, but before our disposition of these petitions, represents those federal standards for maximum reasonable rates and revenue adequacy now in force. It is a well established principle that a court should apply the law in effect at the time it renders its decision unless a prospective application is necessary “to prevent manifest injustice.” Bradley v. Richmond School Board, 416 U.S. 696, 716-17, 721, 94 S.Ct. 2006, 2018-19, 2021, 40 L.Ed.2d 476 (1974). This rule is applicable whether a change in law is made by statute or “by an administrative agency acting pursuant to legislative authorization.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). We perceive no manifest injustice in applying the new and simpler Ex parte 347 standards to the case before us. Because the PSC did not have the benefit of the Ex parte 347 standards, its February 10 order does not meet the federal standards now in effect for calculating costs or computing maximum reasonable rates. The hearing examiner’s computation of costs does not conform to the rules of Appendix A, and the rates authorized by the PSC do not adhere to the 15 percent phase-in rule now applied by the Commission. Accordingly, we will enforce that portion of the Commission’s March 17 order holding that rates approved for intrastate shipments by C & 0 do not match the federal standards. D. In addition to its action setting aside PSC rates as not complying with federal standards, the ICC prescribed rates proposed by C & O’s August 21 tariff as “the appropriate rates at this time.” These rates represented increases of 38 and 45 percent, exclusive of inflation-based cost increases, over the rates applicable one year earlier. We must decline to enforce this portion of the ICC’s order on two grounds. First, it is at odds with the ICC’s present standard for phasing in rate increases at 15 percent per year. Second, the ICC order is deficient in that quantum of reason and explanation necessary for judicial review of administrative action. We have held that an order of the ICC setting aside intrastate rates must set forth clearly those federal standards or procedures at issue in the decision and the manner in which a state authority does not conform to them. This the March 17 order does not do. The order is deficient in at least two respects. First, the decision of the ICC neither articulates a standard for “appropriate rates,” nor refers to any other standard previously promulgated. Consequently, nothing in the ICC’s decision permits a reviewing court to evaluate the rates set forth in the C & O tariff. Second, the decision does not enumerate those standards particularly applicable to proceedings under section 11501(c). For example, the parties now dispute whether the standards of the Long-Cannon amendment to the Staggers Act, 49 U.S.C. § 10707a(e)(2)(C) (Supp. V 1981), apply to section 11501(c) proceedings. Without some explanation of how or whether the Commission is applying the Long-Cannon standards to section 11501(c) proceedings, we are unable to assess the Commission’s order against these standards. The Commission argues that the 30-day review period of section 11501(c) justifies the scant reasoning in its March 17 order. “It would have been wholly impractical for the Commission to have constructed a new rate within the time limits imposed.” Br. at 41. Instead, the ICC maintains, W-P should repair to a second challenge before state authorities. In such a proceeding, “different time constraints would apply, [and] a more complete determination could be made under less pressured circumstances.” Id. at 43. We cannot agree with this conclusion. First, the ICC’s inability to proceed within the 30-day period mandated by Congress is apparently attributable to its failure to articulate clear federal standards for section 11501(c) proceedings. Second, any deficiency in the period permitted for review should be brought to the attention of Congress, which required ICC review of state orders within 30 days. We cannot ascribe to Congress the intention that this brief period authorizes the ICC to issue orders lacking in reasoned explanation. Moreover, the second proceeding before the PSC, which the ICC commends to W-P, would also be subject to the same 30-day ICC review period. Accordingly, we will decline to enforce that portion of the ICC’s order establishing rates proposed by C & 0 in its August 21 tariff as “the appropriate rates at this time.” III. In sum, we will enforce that portion of the Commission’s order setting aside the February 10 order of the PSC, deny enforcement to that portion of the Commission’s order establishing the rates identified in C & O’s August 21 tariff, and remand for proceedings consistent with this opinion. . Pub.L. No. 96-448, 94 Stat. 1895. . Ex parte No. 347 (Sub-No. 1), Coal Rate Guidelines — Nationwide,-I.C.C.-(Feb. 8, 1983). . See Texas & N.O.R.R. v. Sabine Tram Co., 227 U.S. 111, 123-30, 33 S.Ct. 229, 233-36, 57 L.Ed. 442 (1913); Railroad Comm'n of Ohio v. Worthington, 225 U.S. 101, 108-10, 32 S.Ct. 653, 655-56, 56 L.Ed. 1004 (1912). . The C & O tariff applicable prior to October 1, 1980 prescribed rates of $2.91 and $3.79 for intrastate shipment of metallurgical coal from Omar and Beckley, respectively. Between October 1, 1980 and July 1, 1981, C & O implemented six rate increases pertaining to fuel surcharges, cost recovery increases, and general rate adjustments. These rate increases were authorized by section 214(b)(6) of the Staggers Act, 49 U.S.C. § 11501(b)(6) (Supp. V 1981), prohibiting any state from exercising jurisdiction over general rate increases, inflation-based rate increases, and fuel adjustment surcharges approved by the Commission. . National Steel Corp., Amherst Coal Co., and the Eastern Coal Transportation Conference also protested the August 21 tariff. National Steel later negotiated a “mutually satisfactory compromise” rate contract with C & O as authorized by section 208(a) of the Act, 49 U.S.C. § 10713 (Supp. V 1981), and withdrew its protest. Amherst Coal and the Eastern Coal Transportation Conference withdrew their protests on December 1 and November 16 respectively. . “Market dominance” is the “absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” 49 U.S.C. § 10709(a) (Supp. V 1981). . “Variable costs” are the direct costs of labor and material incurred for each unit of coal transported. See Ex parte No. 347, Coal Rate Guidelines — Nationwide, 364 I.C.C. 360, 364 (1980); Atchison, T. & S.F. Ry. v. United States, 606 F.2d 442, 446 (4th Cir.1979). Rail Form A is used to calculate the average cost of an average railroad car in conventional service. See San Antonio, Tex. v. United States, 631 F.2d 831, 835 n. 9 (D.C.Cir.1980). The form does not, however, allow for the calculation of the costs of particular shipments of coal. For this purpose certain adjustments to the RFA must be made. . See Ex parte 270 (Sub-No. 4), Investigation of Railroad Freight Rate Structure — Coal, 345 I.C.C. 71 (1974). The Ex parte 270 adjustments reduce switching costs per carload by 75 percent at origin and destination, reduce variable costs per carload by 50 percent at origin and destination, and reduce station clerical costs per carload. . “Origin switching costs” are incurred when empty railroad cars are exchanged for fully loaded cars at the mine. W-P contended, and the hearing examiner agreed, that the Ex parte 270 adjustments overstated origin switching costs. The hearing examiner replaced the Ex parte 270 figures with what he believed were “system average costs” costs based on the 1980 C & O RFA as recalculated by W-P. These figures were in fact not “system average costs” at all, but rather costs based on a time study conducted by Gerald Fauth, an expert employed by W-P, which the examiner himself had rejected as unreliable. The parties agree that the examiner committed this error, but dispute its significance. See W-P Br. at 40 n. 21; ICC Br. at 38. . See note 10 on page 350. 10. “Crew costs” are the wages paid to C & O train crews while serving the Omar and Beckley mines. The examiner apparently did not modify crew costs. . At the time of the Commission’s order, the Staggers Act required a finding that carriers with revenue/variable cost ratios below 165 percent did not have market dominance. See 49 U.S.C. § 10709(d)(2)(B) (Supp. V 1981); note 6 supra. A finding by the Commission that a rate equals or exceeds this percentage does not establish a presumption that a proposed rate exceeds or does not exceed a reasonable maximum. 49 U.S.C. § 10709(d)(4) (Supp. V 1981). . Transportation Act of 1920, ch. 91, § 416, 41 Stat. 456, 484 (formerly codified at 49 U.S.C. § 13(4), now codified as amended at 49 U.S.C. § 11501(a) (Supp. V 1981)). . The Cullom Act of 1887 did not apply to the transportation of goods “wholly within one state.” Ch. 104, § 1, 24 Stat. 379. In 1906 Congress first authorized the ICC to prescribe just and reasonable rates, but did not expressly authorize the Commission to modify a low intrastate rate found to discriminate against interstate commerce. See The Hepburn Act of 1906, ch. 3591, 34 Stat. 584, 589. The Mann-Elkins Act of 1910, ch. 309, 36 Stat. 539, continued this congressional policy. Not until the Supreme Court held in the Shreveport case, Houston E. & W. Tex. Ry. v. United States, 234 U.S. 342, 355-60, 34 S.Ct. 833, 838-39, 58 L.Ed. 1341 (1914), that the anti-discrimination provisions of section 3 of the Cullom Act permitted the Commission to require that a discriminatory intrastate rate be rescinded, did Congress expressly empower the ICC to exercise jurisdiction over intrastate ratemaking. See Transportation Act of 1920, ch. 91, § 416, 41 Stat. 456, 484. A 1958 amendment to section 13(4) authorized the Commission to correct “undue burdens” on interstate or foreign commerce as well as undue preferences and discriminations. Transportation Act of 1958, Pub.L. No. 85-625, § 4, 72 Stat. 568, 570-71. At no time during this period, however, did Congress authorize the ICC to exercise jurisdiction over intrastate rates without having explicitly found a burden on, or discrimination against, interstate commerce. . In subsequent cases, all involving rates prescribed by the Commission after a full hearing, the Supreme Court required specific findings by the Commission to the effect that intrastate rates “are abnormally low and are not contributing their fair share to” revenues and that proposed increases “will constitute not more than a fair proportion of [the railroads’] total income.” King v. United States, 344 U.S. 254, 275, 73 S.Ct. 259, 270, 97 L.Ed. 301 (1952). The Court found fatal the failure to consider particular shipments “in light of the carrier’s other intrastate revenues

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

BRINK v. UNITED STATES. No. 9795. Circuit Court of Appeals, Sixth Circuit. April 2, 1945. Sawyer A. Smith, of Covington, Ky. (Sawyer A. Smith and H. W. Vincent, both of Covington, Ky., on the brief), for appellant. Claude P. Stephens, of Lexington, Ky. (Claude P. Stephens and Ben L. Kessinger, both of Lexington, Ky., on the brief), for the United States. Before SIMONS, ALLEN, and McALLISTER, Circuit Judges. SIMONS, Circuit Judge. The appellant was convicted on three counts of an indictment, sentenced to two years’ imprisonment on each count, to run concurrently, and fined $9000. The several counts charged him, as a wholesale liquor dealer, with unlawfully, wilfully, and feloniously refusing and neglecting to make and keep records of the sale and disposition of distilled spirits on “Forms 52-A, 52-B, or 338,” as prescribed by the Commissioner of Internal Revenue, pursuant to § 2857 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 2857. He complains of lack of certainty in the indictment, exclusion of evidence, the charge of the court, and, in general, the unfairness of the trial and the severity of sentence. With the single exception, presently to be discussed and which, in our judgment, constitutes error requiring remand for new trial, it may be said at the outset that the district judge was meticulously careful in preserving the rights of the appellant and the fairness of the proceedings. The exception is, however, important, and whether sufficiently saved or not, so vital a ¡matter to the appellant, in view of the punishment imposed, that it is within our province to correct it. Wiborg v. United States, 163 U.S. 633, 656, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Clyatt v. United States, 197 U.S. 207, 221, 222, 25 S.Ct. 429, 49 L.Ed. 726; Williams v. United States, 8 Cir., 158 F. 30, 36. The Federal Alcohol Administration Act, 27 U.S.C.A. § 201 et seq. together with 26 U.S.C.A. Int.Rev.Code, § 2800 et seq., constitute a comprehensive scheme for the regulation and taxation of all transactions in distilled spirits, various provisions of the latter being in the nature of a revision of earlier statutes in force prior to the outlawing of liquor by the Eighteenth Amendment to the National Prohibition Law. In view of their nature and purpose their prordsions do not speak in terms so prohibitorily absolute as, in ap. enactment which penalized a traffic currently conceived to be inimical to public and private morality, were deemed to be appropriate. So when § 2857 provides penalties to be imposed upon a wholesale liquor dealer “who refuses or neglects to keep such records in the form prescribed by the Commissioner,” failure to comply must be wilful and intentional. Arrow Distilleries v. Alexander, 7 Cir., 109 F.2d 397, 406; United States v. Monarch Distributing Co., 7 Cir., 116 F.2d 11, 13. It is a construction warranted by the language used, the scope and intent of the enactment, and the fact that it no longer expresses a national policy to control appetite by law. The appellant owns and operates “Lookout House,” an elaborate nightclub near Covington, Kentucky. In 1943, conceiving that there would be a shortage of liquors due to conversion of distilleries to alcohol production for munition purposes, and desiring to assure himself of an adequate supply of liquor, he arranged for the purchase of $100,000 worth of whiskey warehouse receipts through the Dixie Distributing Company, a wholesale liquor dealer in Covington. He advanced about $30,000 of his own funds for that purpose, and the whiskey was either bottled or placed in bond. Some of it was delivered to him in June, 1943, but in that month three retail dealers in Covington, being themselves short of liquor, each obtained from him in the neighborhood of 20 cases. The appellant contended that these were loans to cover an exigency and were to be repaid in kind. When it became evident, however, that they could not so be repaid, the appellant accepted the O. P. A. ceiling price for the liquor. There is no proof that he profited by the transactions. One of the dealers advised him that he should have a wholesaler’s stamp. lie accordingly bought one from the Collector, for the year beginning July 1, 1943, and later bought one for the month of June, paying a penalty because of its late purchase. In July the Collector’s office notified him that he was also required, under the law, to have a basic permit as a wholesale liquor dealer. The appellant promptly applied for such permit, but his application was eventually denied. On August 6, Greene, a government investigator, advised the appellant that he would have to keep records of his wholesale dealings on Forms 52-A and 52-13, and advised him also that until the form books were obtained for that purpose, that he was to keep memorandum records. On August 27 another investigator, Hickerson, again told the appellant to get the forms, and at that time saw the pad upon which he was keeping his sales records, although apparently he did not examine it closely. A day or two later the appellant obtained a form book and his bookkeeper transferred the records to it. On October 23, the appellant’s application for a basic permit was denied, and be was instructed to discontinue wholesale dealings, which he claims he has done. The appellant has been operating “Lookout House” for many years, selling distilled spirits at retail. Ills business depended largely upon his ability to supply customers with whiskey, the sales of which accounted for about 75 per cent of his receipts. He says that in June, 1913, it was almost impossible to buy a bottle of whiskey in the entire State of Kentucky, and his arrangement with the wholesaler was for the purpose of insuring his supply. He had no intention of becoming a wholesaler of this liquor, and knew nothing about the requirements of tile law respecting wholesale licenses and basic permits. The word got out, however, that he had whiskey while nobody else had any, and many people came to him to ask about getting it. When he obtained the wholesaler’s stamp at the Collector’s office, and paid for it, he was told that that was all that was required, but after writing the Collector and asking for further instructions, he received a basic permit form letter with an application which he immediately executed and returned to the Collector’s office. He heard nothing further about it until the investigators called. Hickerson told him that he saw no reason why he should not get a basic permit, and that he had nothing to worry about. When he told Hickerson about his loans of liquor in June, Hickerson advised him to get a wholesaler’s stamp for that month, and collected the money for it. Upon the basis of this evidence the defense was that if the appellant had not strictly complied with the regulations of the Commissioner in the keeping of records, his failure to comply was neither wilful nor intentional, without purpose to evade the law or defeat the collection by the government of revenue; that his memoranda were in substantial, if not in strict compliance with the regulations; that they were kept upon the advice of agents of the government, and transferred to the required forms as soon as such forms were obtainable. It may be conceded that, from the evidence, the jury might have drawn the inference that there was no substantial compliance with the law or regulation, and that failure was wilful and intentional, but that issue, upon an examination of the record, was not submitted to the jury. It is true that in respect to each count of the indictment charging a sale or disposition of distilled spirits, the court, in the language of the indictment, charged that the appellant was accused of unlawfully, wilfully, and feloniously refusing and neglecting to make and keep a record of such sale or disposition, but this was immediately followed by a direction that if the jury believed he failed to keep such records on all the forms, or on any of them, it was obliged to find him guilty. In colloquies with counsel in the presence of the jury during the trial, the court repeatedly observed that if the appellant failed to keep the records as required by law, he “violated the law,” and in his instructions to the jury it is made clear that if there were no exact compliance the appellant was guilty. “It did not meet the requirements of the law when he wrote it down on the back of a pad or an envelope.” The net" result of the court’s instructions and observations was that the jury was led to believe .that only literal and complete compliance with the regulations could defeat the charges laid in the indictment, that substantial compliance, inadvertence, and good faith on his part, were of no avail, and that notwithstanding reliance on the advice of government investigators, the duty of the jury was to convict. It therefore follows that the presence or absence of wilfulness or intent as an essential element of the offense charged, was not fairly presented to the jury for decision. In Williams v. United States, 8 Cir., 158 F. 30 (Sanborn, Van Devanter and Phillips), the court approved an instruction that if the defendant, in good faith, relied on the Collector’s advice in making memoranda until a form book was obtained, the jury was to find him not guilty. A verdict of guilty was there, however, set aside because the court put -the burden upon the defendant to establish compliance with law. Here the deferise was not available to the defendant, with or without the burden. It is clear, upon the entire record, that the court, long-experienced and of fine repute in trials under the National Prohibition Law, 27 U.S.C.A. § 1 et seq., inadvertently applied the absolutes of that Act. The case must be reversed and remanded for a new trial, with directions to the court to submit to the jury, upon appropriate instructions, the issue as to whether the failure of the appellant to keep records was wilful and intentional under all of the circumstances of the case. Another consideration would seem to justify this disposition. The appellant conceived his challenged disposal of liquors to be loans and not sales, a concept accepted by the jury by reason of their verdict of not guilty on the fifth count of the indictment which charged that the purchase of the liquors was for purpose of resale at wholesale. Nevertheless, he bought a wholesaler’s license for the year, and, upon the advice of a government inspector, purchased a retroactively effective license for June, paying therefor both the regular fee and the penalty for late purchase. He was sold these licenses by the government without his having or being then advised that he was required to have a basic permit. The government agents also advised him that until he could obtain the proper forms it was all right for him to keep his record of sales on a memorandum pad to be later transferred to proper forms when they were obtainable. It is true that subordinate officers of the United States are without power to waive requirements of law or regulations. But while present circumstances do not support the conventional defense of entrapment, yet the unfairness which lies at the base of a doctrine that condemns and nullifies prosecution for a crime which a defendant is induced, by government officers, to commit, is to an extent likewise present here. The government took the appellant’s money for a wholesaler’s license which, without a basic permit, he was without authority to exercise. It gave him a license ostensibly validating transactions entered upon in June without either permit or license. It advised him that he might keep memorandum records until forms were available. It now prosecutes him for following such advice and exercising an authority which, it now says, he never had. The result is no repugnant to generally accepted notions of fairness and the American concept of due process, that it ought not to be sustained, unless every defense to what is, at the most, a technical violation, is by the jury considered and decided. Since the case must be retried it is necessary to say we find no infirmity in the indictment because the allegations therein, in respect to failure to record transad ions on each of the several designated forms, is in the disjunctive rather than in the conjunctive. The short answer to the contention of the appellant that he had no means of knowing with which failure he was charged, is that the indictment does not charge affirmative acts, but omissions. So charged, it becomes clear that the defendant is not charged with having failed to comply with one or another duty in the alternative, but is charged with failure to do each and all of the things that the statute requires him to do. He cannot be deceived or confused by a phrase which, though in form disjunctive, is not so in meaning. The cases relied upon by the appellant all relate to indictments charging affirmative acts in violation of law. With respect to the rejection of the Taylor letter of July 10, we find no error in the ruling of the court. The letter would have been innocuous, if admitted, and its rejection is equally unimportant and clearly within the discretion of the court. Judgment reversed and the cause remanded for new trial in conformity herewith.

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"?

AMALGAMATED ASS’N OF STREET, ELECTRIC RY. AND MOTOR COACH EMPLOYEES OF AMERICA, LOCAL DIVISION 1210 v. PENNSYLVANIA GREYHOUND LINES, Inc. No. 10475. United States Court of Appeals, Third Circuit. Argued Oct. 2, 1951. Filed Nov. 6, 1951. M. Herbert Syme, Philadelphia, Pa., for appellant. Theodore Voorhees, Philadelphia, Pa. (F. Hastings Griffin, Jr. and Barnes, Dechert, Price, Myers & Clark, all of Philadelphia, Pa., on the brief), for appellee. Before McLAUGHLIN, STALEY, and HASTIE, Circuit Judges. HASTIE, Circuit Judge. This appeal requires that we decide whether arbitration, as prescribed by the parties in a written collective bargaining agreement, can be enforced by a federal court under Section 4 of the Arbitration Act as codified and reenacted as Title 9 of the United States Code, and, if so, whether petitioner has made out a claim for relief. A collective bargaining agreement between appellant, hereinafter designated as Local 1210 or the union, and appellee, hereinafter designated as Greyhound Lines or the company, provided for arbitration of disputes arising thereunder. There came a time when Local 1210 submitted to Greyhound Lines in writing a grievance relating that the company had announced and posted bid sheets for certain new runs without obtaining the approval of the union. In reply the company asserted that it had acted in compliance with the applicable provision of their collective bargaining agreement by consulting with proper representatives of the union prior to the posting and therefore, that no question of violation of the terms of the agreement was presented. A further exchange of letters ensued m which a request by the union for arbitration was refused, the company reiterating its prior stand. The foregoing correspondence was then incorporated by reference into a complaint filed in the district court by Local 1210 in an effort to obtain an order pursuant to Section 4 of the Arbitration Act directing the company to arbitrate the alleged dispute. A motion to dismiss “because the petition fails to state a claim upon which relief can be granted and because the Court has no jurisdiction under the Arbitration Act” was granted without opinion. This appeal followed. Our first consideration, the reach of the statute, involves two separate questions of the construction to be placed on language which appears in Section 1 of the Arbitration Act, as it has been codified and reenacted as Title 9 oí the United States Code. The text of Section 1, as originally enacted in 1925, appeared without section number immediately after the enacting clause. It began with definitions of the phrase “maritime transactions” and the word “commerce”. These definitions were separated by a semi-colon. The second definition, that of “commerce” was followed by a comma and this language: “but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The sections which followed contained the operative provisions of the statute. Section 2 declared valid and enforceable written arbitration agreements in maritime transactions or in contracts evidencing transactions in commerce. Section 3 provided for judicial action staying proceedings designed to litigate issues covered by precedent written agreement to submit to arbitration. Section 4 gave district courts power on appropriate petition to compel arbitration where the controversy was with in federal jurisdiction and the written agreement of the parties called for arbitration. In applying these several provisions of the statute, courts have had occasion to decide whether the phrase “nothing herein contained” as it appeared in the excepting language of the first section meant “nothing in this statute”, “nothing in this section”, or “nothing ‘in the foregoing definition of commerce”. For present purposes, it will not be necessary to distinguish between the last two alternatives. In cases arising under Section 3, as originally enacted, this court held that the quoted language of exception qualified merely the preceding definition of commerce and only to that extent affected the rest of the Act. Donahue v. Susquehanna Collieries Co., 1943, 138 F.2d 3, 149 A.L.R. 271; Watkins v. Hudson Coal Co., 1945, 151 F.2d 311. We read the words “nothing herein contained” as meaning “nothing in the foregoing definition of commerce”. However, in a case arising under the same section, the Court of Appeals for the 6th Circuit took the opposite view reasoning that the ambiguous phrase meant “nothing in this statute”. Gatliff Coal Co. v. Cox, 1944, 142 F.2d 87.6. With the Courts of Appeals thus divided on the construction of the exception, Congress, in 1947, reenacted and codified the Arbitration Act as Title 9 of the United States Code. The text was not changed. But the catchline which the compilers of the United States Code had inserted at the beginning of Section 1 of the Arbitration Act when it was included as Section 1 in Title 9 of the Code, and which had not appeared in the original Act, was now “enacted into positive law” as follows: “§ 1. ‘Maritime transactions’ and ‘commerce’ defined; exceptions to operation of title”. This history considered, the company contends and the district court apparently decided that by the newly enacted catchline to Section 1, Congress resolved the disagreement between circuits and approved the construction theretofore placed on the excepting language by the 6th Circuit. Moreover, since the codification the Court of Appeals for the 4th Circuit has adopted the construction of the 6th Circuit, although upon reasoning which indicates that it would have done so even under the original enactment. International Union United Furniture Workers v. Colonial Hardwood Flooring Co., 4 Cir., 1948, 168 F.2d 33. Unquestionably, the original text was ambiguous. Enacting a catchline rather than amending the text is an unusual method of removing ambiguity in a text. But in this case we think the enactment serves that purpose, The only alternative would be to declare that the catchline is without significance. But we are unwilling to hold that language enacted by Congress has no meaning when the words used and the circumstances of their employment suggest a meaning that is neither unreasonable nor far fetched. Accordingly, we conclude that our earlier construction of the exception is inconsistent with the -intention of Congress as subsequently made - manifest. For that reason we now abandon that construction and hold that the words “nothing herein contained” mean “nothing contained in Title 9”. It follows that arbitration of a dispute arising out of a “contract of employment” cannot be required under that Title. There remains to be considered whether the exception of “contracts of employment * * * of workers engaged in * * * interstate commerce” from the scope of the Act was intended to include collective bargaining agreements. Decision that such inclusion was intended is necessarily implicit -in Gatliff Coal Co. v. Cox, supra and International Union United Furniture Workers v. Colonial Hardwood Flooring Co., supra. We did not have occasion to decide the issue in the Donahue v. Susquehanna Collieries Co. and Watkins v. Hudson Coal Co. cases, both supra. Denying such inclusion, the union emphasizes “of employment” in its analysis of the phrase “contract of employment”. Strictly speaking, it contends, a collective bargaining agreement constitutes merely the framework within which employment is effectuated, while the narrower business of hiring or firing is the essence of employment itself. If the questioned phrase had read “contracts of hire” there might be merit to this contention. But “contracts of employment” is not a term of art. Its adoption to comprehend collective bargaining agreements is not less familiar in judicial usage than in general parlance. See Donahue v. Susquehanna Collieries Co., 3 Cir., 1947, 160 F.2d 661, 662; Steadman v. Atlantic Coast Line Ry., 4 Cir., 1943, 138 F.2d 691; Dooley v. Lehigh Valley R. Co., 1941, 130 N.J.Eq. 75, 81, 21 A.2d 334, 338; Goyette v. C. V. Watson Co., 1923, 245 Mass. 577, 587, 140 N.E. 285, 288. We find no compelling reason for a narrower construction here. Our attention has been directed to Justice Jackson’s statement in J. I. Case v. N. L. R. B., 1944, 321 U.S. 332, 334-335, 64 5. Ct. 576, 88 L.Ed. 762, to the effect that collective bargaining agreements are not contracts of employment. But this reference is inapposite because the factual context of that case necessitated the drawing of a distinction between collective as opposed to individual contracts of employment. There is no similar compulsion in the context of the Arbitration Act. Contrariwise, the most plausible explanation for the exclusion of contracts of employment from the reach of the Act supports a. construction that would give to the words their normally comprehensive significance. Widespread dissatisfaction with compulsion from the federal bench in labor disputes during the era in which the statute was passed was paralleled by the existence of administrative rather than judicial machinery for settlement of labor disputes in the case of both “classes of workers” specified in Section 1. See 17 Stat. 267 (1872), 46 U.S.C.A. § 651 et seq. (1946) (seamen); 38 Stat. 103 et seq. (1913); 41 Stat. 469 et seq. (1920); 44 Stat. 577 (1926), 45 U.S.C.A. § 151 et seq. (1946) (railroad employees). For Congress to have included in the Arbitration Act judicial intervention in the arbitration of disputes about collective bargaining involving these two classes would have created pointless friction in an already sensitive area as well as wasteful duplication. It is reasonable, therefore, to believe that the avoidance of an undesirable consequence in the field of collective bargaining was a principal purpose of excepting contracts of employment from the Act. In these circumstances the phrase “contracts of employment” should be construed to include collective bargaining agreements. Finally, while the situation existing in cases of seamen and railroad employees clarifies the meaning of the statute its terms also -include “any other classes of workers” in interstate commerce. Such a class is involved here. Having concluded that the district court properly dismissed the complaint because the Arbitration Act denied it jurisdiction over the subject matter we find it unnecessary to decide whether the particular dispute stated in the complaint is embraced by the agreement of the parties to arbitrate. The judgment of the court below will be affirmed. . Originally 43 Stat. 883 (1925) 9 U.S.C. § 4 (1946 Ed.); now, 9 U.S.C. § 4 (1946 Ed., Supp. I). “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement, for arbitration may petition any court of the United States which, save for such agreement, would have jurisdiction Under the judicial code at law, in equity, or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . The jurisdictional requirements of Section 4 were met by allegations of diversity of citizenship and matter in controversy exceeding $3000.00. . “§ 1. ‘Maritime transactions’ and ‘commerce’ defined; exceptions to operation of title “ Maritime transactions’, as herein defined, means charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction; ‘commerce’, as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, * * * but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” . Title 9 of the United States Code, 1946 Ed., which contained the provisions of the Arbitration Act was codified and enacted into positive law by the Act of July 30, 1947, ch. 392, 61 Stat. 669. By the same Act the Arbitration Act of 1925 was repealed. . Justice Jackson was careful to point out that “Contract in labor law is a term the implications of which must be determined from the connection in which it appears.” 321 U.S. at page 334, 64 S.Ct. at page 579. . The familiar Norris LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101, was the national legislative culmination of this dissatisfaction.

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 46. 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 46? Answer with a number.

RISS & CO. v. HOCH et al. No. 1692. Circuit Court of Appeals, Tenth Circuit. Oct. 29, 1938. O. Q. Clafiin, of Kansas City, Kan., for appellant. C. Glenn Morris, Asst. Atty. Gen. (Clarence V. Beck, Atty. Gen., Jay Parker,, Asst. Atty. Gen., J. E. McCullough, Atty. for Port of Entry Board of State Corporation Commission, Lester Goodell, Atty. for State Llighway Commission, of Topeka,. Kan., and Joe Nickell, Sp. Asst. Atty. Gen., on the brief), for appellees. Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges. PHILLIPS, Circuit Judge. On September 23, 1935, Riss & Company, a corporation, brought this suit against Homer Hoch, I. Harry Darby, and A. W. Logan, as members of the Port of Entry Board of the state of Kansas, Kansas State Corporation Commission, and the State Highway Commission of the state of Kansas. In the second cause of action the complainant challenged the validity of Ch. 159,, Laws of Kansas, 1935 (§§ 21-2184, 21-2185,. 21-2186, 21-2187, 21-2188, and 21-2189, Gen. Stat.Ann.Kansas, 1935), on the ground that it is repugnant to the Constitution of the United States, and prayed for an interlocutory and a permanent injunction enjoining ' and restraining the enforcement thereof. On September 23, 1935, the late John C. Pollock, United States District Judge, issued an order entitled “Restraining Order,” the pertinent portions of which read as follows: “It is ordered that the defendants and each of them be, and they are hereby restrained until the further order of the Court herein: * * * From collecting or attempting to collect the special fee provided in chapter 159, Laws of Kansas, 1935, on intoxicating liquor being carried through the State of Kansas by the plaintiff in interstate commerce * * * and that plaintiff’s application for a temporary •injunction is set for hearing on Wednesday, Oct. 2d, 1935 at 10:30 o’clock a. m. of said date, or as soon thereafter as counsel can be heard before the undersigned in the Federal Building in Kansas City, Kansas.” On October 2, 1935, the defendants filed a motion to vacate, set aside, and hold for naught the order of September 23, 1935. On October 2, 1935, Judge Pollock approved a stipulation of the parties that the cause might be set down for final hearing on October 9, 1935, and entered an order continuing the cause until October 9, 1935. On October 9, 1935, on stipulation of the parties, Judge Pollock continued the matter until October 18, 1935, and set it for final determination on that date. In both stipulations, counsel for defendants reserved the right to object to a hearing by a single judge. On October 9, 1935, the defendants filed their answer. On October 14, 1935, a stipulation of facts was filed in the cause. On October 18, 1935, a stipulation for submission of the cause upon the stipulation of facts and briefs to be submitted was filed by the parties, and Judge Pollock ordered that the cause should be submitted upon such stipulation of facts and briefs to be filed. On November 7, 1935, the parties entered into a supplemental stipulation for the filing of an additional statement of facts. On November 8, 1935, Judge Pollock ordered that the parties should file their supplemental stipulation of facts on or before November 15, 1935; that within ten days thereafter the plaintiff should file and serve its brief; and that within ten days thereafter the defendants should file and serve their reply brief. On March 7, 1936, the parties entered into a further stipulation providing for the filing of an additional statement of facts on or before March 14, 1936. On March 12, 1936, Judge Pollock ordered that the additional statement of facts should be filed on or before March 14, 1936; that on or before March 28, 1936, the plaintiff should file and serve its brief and that within ten days thereafter the defendants should file and serve their brief, and that within five days thereafter plaintiff should file its reply brief, and that the causes of action should be submitted on the pleadings, the agreed statements of facts, and briefs of the parties. Judge Pollock died on January 24, 1937. The first cause of action became moot, and on September 8, 1937, the court dismissed it on motion of the plaintiff. On November 15, 1937, the parties entered into and filed in the cause the following stipulation: “Come now the respective parties hereto and stipulate and agree that any and all provisions of the statute in relation to a three-judge court are hereby waived, and it is agreed that this cause be, and the same is submitted to Honorable Richard J. Hopkins, Judge of the United States District Court for the District of Kansas, for decision on the stipulation of facts and briefs on file herein, and “It is further stipulated and agreed that in the event of an appeal by either of the parties hereto, no question will be raised concerning the jurisdiction of Judge Hopkins to hear and decide said case. “Signed this 5th day of November, A. D. 1937. “O. Q. Claflin, “Attorney for Plaintiff. “Clarence V. Beck, “J. S. Parker, “Attorneys for Defendants.” No three-judge statutory court was ever assembled to hear either the application for an interlocutory injunction or the cause on final hearing. The motion to vacate and set aside the temporary restraining order was never acted upon and it remained in full force and effect until December 28, 1937, when Judge Hopkins entered the following order: “Now on this 28th day of December, 1937, the Court having carefully considered the brieis and argument of the respective parties in the above action, and the record therein, finds that the restraining order heretofore issued therein should be dissolved and that said action should be dismissed. “It is therefore, considered, ordered and adjudged, that the restraining order issued in this cause be dissolved and that said cause be, and the same is hereby dismissed. It is further ordered that costs in this action be taxed to the plaintiff.” From such order complainant has undertaken to appeal to this court. Title 28 U..S.C.A. § 380 provides where a suit is brought to suspend or restrain the enforcement, operation, or execution of any state statute upon the ground that it is repugnant to the Constitution of the United States, and an application for an interlocutory injunction is made and pressed, that the hearing on the application for the interlocutory injunction and the final hearing must be before a court of three judges, one of whom must be a justice of the Supreme Court or a circuit judge. It further provides that whenever such an application for an interlocutory injunction is presented to a justice of the Supreme Court or to a judge, he shall immediately call to his assistance to hear and determine the application, two other judges. It further provides that the justice or judge to whom the application is made, if in his opinion it is necessary in order to prevent irreparable loss or damage to the complainant, may grant a temporary restraining order at anytime before the hearing and determination of the application for an interlocutory injunction, but that such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction. It further provides for an appeal directly to the Supreme Court from the order granting or denying the interlocutory injunction and from the final decree granting or denying a permanent injunction. The requirement of a three-judge court is not a mere privilege or right which the parties may waive. It is a jurisdictional requirement. It is our view that the instant case is ruled by Stratton v. St. Louis S. W. Ry. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. There the Railway Company brought a suit on July 21, 1927, to restrain the enforcement of a statute of the state of Illinois providing lor the payment of a minimum franchise tax, upon the ground that the. statute as applied to the Railway Company violated the Constitution of the United States. The bill of complaint prayed for bqth a preliminary and permanent injunction against Stratton, as Secretary of State of Illinois, from instituting any proceedings to assess the tax, or to enforce any of the prohibitions or penalties prescribed in the statute. On July 22, 1927, the complainant made an application for a temporary restraining order in accordance with the prayer of the bill, and on the same day the district judge entered an order enjoining the defendant from revoking the complainant’s certificate of authority, from hindering the complainant in. transacting its business in the state of Illinois, and from taking any steps for the enforcement of penalties pending the determination of the application for an interlocutory injunction. While this order was in force the defendant on November 4, 1927, moved to dismiss the bill for want of equity. 'This motion was heard and granted by the district judge sitting alone, and on June 7, .1928, he entered a decree dismissing the bill and dissolving the restraining order. On an appeal by the complainant from this decree, the Circuit Court of Appeals held the statute invalid under the Federal Constitution, reversed the decree, and remanded the cause with directions to enter a decree in accordance with its opinion. The matter came before the Supreme Court on appeal from the Circuit Court of Appeals. In the opinion the court said [page 10]: “If an application for an interlocutory injunction is made and pressed to restrain the enforcement of a state statute, or of an administrative order made pursuant to a state statute, upon the ground -that such enforcement would be in violation of the Federal Constitution, a single judge has no jurisdiction to entertain a motion to dismiss the bill on the merits. He is as much without power to .dismiss the bill on the merits as he would be to grant either an interlocutory or a permanent injunction. His authority is strictly limited to granting, upon proper cause being shown, a temporary restraining order to be effective only pending the determination of the application for an interlocutory injunction. Upon making such an order, it is his duty immediately to call two other judges, as the statute directs, to assist him in hearing and determining that application. * * * “Fourth. If a single judge, thus acting without jurisdiction, undertakes to enter an order granting an interlocutory injunction or a final decree, either dismissing the bill on the merits or granting a permanent-injunction, no appeal lies from such an order or decree tp this Court, as the statute plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement. Nor does an appeal lie to the Circuit Court of Appeals from an order or decree thus entered by a District Judge without authority, for to sustain a review upon such an appeal would defeat the purpose of the statute by substituting a decree by a single judge and an appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal to this Court. “Accordingly, where a court of three judges should have been convened, and was not, this Court may issue a writ of mandamus to vacate the order or decree entered by the District Judge and directing him, or such other judge as may entertain the proceeding, to call to his aid two other judges for the hearing and determination of the application for an interlocutory injunction. * * * This remedy would not be available if there were a remedy by appeal. * * * “Fifth. It follows that, in the present case, no appeal lay to the Circuit Court of Appeals, and that court should have dismissed the appeal for want of jurisdiction. The bill prayed for a, preliminary, as well as for a permanent, injunction. On filing ■the bill the complainant at once moved for a temporary restraining order in accordance with the prayer of the bill. The order granted by the District Judge recited that the complainant sought a temporary restraining order pending a hearing on an application for an interlocutory or preliminary injunction, and the order enjoined the enforcement of a state statute until the consideration and determination of that application. The application to restrain the enforcement of the state statute pending the suit was manifestly not withdrawn, but was continuously pressed in order to avoid the prohibitions and penalties imposed by the state law in case the tax in question was not paid. The District Judge, on granting the temporary restraining order, failed to call in two other judges to aid him in hearing and determining the application for the interlocutory injunction, and the restraining order was permitted to operate as an interlocutory injunction for several months and until the determination of the motion to dismiss the bill on the merits. “The requirement of the statute has regard to substance and not to form. It matters not whether the injunction is called preliminary or interlocutory, or is styled a temporary restraining order, if it is granted to restrain the enforcement of state legislation and is continued in force until the hearing on the merits, without such restraint pending the suit being made the subject of consideration and determination by three judges as the statute requires. The temporary restraining order which the District Judge, acting alone, could grant is only to maintain the status quo, on proper cause being shown, for such time as may be necessary to obtain a decision upon the application for an interlocutory injunction by a court of three judges, which is to be immediately convened. “As the proceeding in this suit fell within the provision of the statute, and the District Judge had no jurisdiction to hear the motion to dismiss the bill on the merits, the consent of the parties could not give validity to the decree or confer jurisdiction upon the Circuit Court of Appeals to entertain an appeal therefrom.” It follows that the district judge sitting alone had no jurisdiction to dismiss the bill and this court is without jurisdiction to entertain an appeal from the order of dismissal. The appeal is accordingly dismissed. Ch. 159, supra, in part reads as follows: “21-2184. Purpose of §§ 21-2184 to 21-2189. This act is for the purpose of aiding in tlie administration and enforcement of the intoxicating liquor laws of this state, and shall be deemed to be supplemental to and a part of such laws.” “21-2185. Transportation of liquors across state; port of, entry; ■ inspection and sealing; fee. It shall be unlawful for any person, firm or corporation to transport, carry or convey across the state of Kansas by motor truck or other motor vehicles or have in his or its possession any intoxicating liquor intended to be transported, carried or conveyed across the state of Kansas in interstate commerce unless such person, firm or corporation shall have first entered the state of Kansas at a regularly established port of entry and have said cargo of intoxicating liquor duly inspected - and sealed by the officer in charge of said port of entry and shall declare in writing to said officer in charge of said port of entry the kind and quantity of said intoxicating liquor, the name of the owner thereof, the name of the consignor and the name of the consignee, the route of travel across the state of Kansas as designated by the said officer in charge of said port of entry, the port of exit from the state of Kansas, the description of the vehicle transporting, carrying or conveying said intoxicating liquor, the name of the driver, and the person in charge thereof, and shall continue on said route of travel without unnecessary delay until said cargo of intoxicating liquor has reached the said port of exit from the state of Kansas with unbroken seals and with the same kind and quantity of intoxicating liquor which entered the state of Kansas at the original port of entry, and have said cargo duly inspected and checked by the officer in charge of said port of exit. The person in charge of such port of entry shall charge and collect a fee of §2.50 upon the sealing and unsealing, respectively, of such cargo, said fees to be in addition to all other fees and charges against such carrier.”

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

ATCHISON, TOPEKA & SANTA FE RAILWAY CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. NO. 22. Argued October 14, 1953. Decided November 9, 1953. Douglas F. Smith argued the cause for appellant in No. 22 and Burton Mason argued the cause for appellant in No. 43. With them on a joint brief were Jonathan C. Gibson, R. S. Outlaw, Robert W. Walker, Kenneth F. Burgess and Arthur R. Seder, Jr. for appellant in No. 22, and George L. Buland, B. J. Foulds and Randolph Karr for appellant in No. 43. Roger Arnebergh argued the cause for appellees in No. 22. With him on the briefs were Bourke Jones for the City of Los Angeles, appellee in that case, and Henry McClernan and John H. Lauten for the City of Glendale in No. 43. Ray L. Chesebro was also with them on statements opposing jurisdiction and motions to dismiss or affirm. Hal F. Wiggins argued the cause for appellees in No. 43. With him on the briefs was Everett C. McKeage for the Public Utilities Commission. Mr. Justice Minton delivered the opinion of the Court. These cases present the same questions of law and will be disposed of together. The Public Utilities Commission of California entered orders authorizing the construction of certain grade separation improvements and allocating the costs therefor, pursuant to § 1202 of the Public Utilities Code of California. On petitions to the Supreme Court of California, that court denied review of the Commission’s orders, and these appeals followed. We postponed jurisdiction until a hearing on the merits. We think the Commission’s orders must be treated as an act of the legislature for purposes of determining our jurisdiction under 28 U. S. C. § 1257 (2). Live Oak Water Users’ Assn. v. Railroad Commission, 269 U. S. 354, 356; Lake Erie & Western R. Co. v. Public Utilities Commission, 249 U. S. 422, 424. The Commission has construed § 1202 as authorizing these orders. The appellants presented squarely to the Supreme Court of California their contention that in the allocation of costs, these orders take their property without due process of law and are so arbitrary and burdensome as to constitute an interference with interstate commerce, in violation of the Constitution of the United States. In sustaining the Commission’s orders by denying writs of review, the Supreme Court of California upheld the statute as applied by the Commission, and the cases are properly here on appeal. Kansas City S. R. Co. v. Road Improvement District, 256 U. S. 658, 659-660. The principal question presented by these appeals is whether the allocation of the reasonable cost of grade separation improvements is arbitrary as to the railroads unless imposed on the basis of benefits received, or, since the costs are incurred in the exercise of the police power in the interest of public safety, convenience and necessity, may they be allocated on the basis of fairness and reasonableness. No. 22. In this case, the Commission authorized the enlarging of two existing railroad underpasses where the Santa Fe tracks cross Washington Boulevard in Los Angeles. These underpasses were constructed in 1914 under an agreement between the railroad and the City providing that each party was to pay one-half of the cost. The Commission found the structures to be 75% depreciated. When constructed, their chief utility was to facilitate access to a garbage reduction plant. Washington Boulevard is now one of the main east and west thoroughfares of Los Angeles, and other streets and highways feed into it. It is not a part of the State highway system nor is it a freeway. The grade separations concerned here are in one of the principal industrial districts of the City and are a traffic bottleneck. For most of its length, Washington Boulevard is 60 feet wide, but at the site in question, the roadway narrows to 20 feet, with a vertical clearance of less than 14 feet. The City’s easement at this point is 90 feet. As improved, two 33-foot roadways and two 7-foot sidewalks will be provided, and the underpasses will be heightened. The improvement is being made to promote the safety and convenience of the public and to meet vastly increased local transportation needs, made necessary by the rapid growth of the City. In 1910 the City had a population of 102,000, in 1920 of 576,000, and in 1948 of 1,987,000. Los Angeles County’s population in 1910 was 504,000 and in 1948 was over four million. Vehicular traffic in the area has increased tremendously since construction of the present underpasses in 1914. Considering all of these facts and evidence by the railroad that there were no benefits to be derived by the railroad from this improvement, the Commission decided that- there “is a need for widening and increasing the height of the existing underpasses,” and that the preferred plan submitted by the City of Los Angeles “sets out the construction which would be most practicable and best meet the public safety, convenience and necessity in this matter.” The Commission found that $569,355 of the cost was attributable to the presence of the railroad tracks and that the railroad should pay 50% of this amount and the City 50%. No. 43. This case does not differ materially from Case No. 22 except that here a grade crossing will be replaced by an underpass. Los Feliz Boulevard runs in a northeast-southwest direction, crossing at grade five Southern Pacific tracks approximately at the boundary of the cities of Los Angeles and Glendale. The street becomes known as Los Feliz Road in Glendale. Los Feliz is not a part of the State highway system nor is it a freeway, but, like Washington Boulevard, is an access street for adjacent properties and for other streets feeding into it in this congested area and as a through street has reached capacity. When the crossing is blocked by trains, 38 or more vehicles may back up in each of three lanes, causing a “backlash” on San Fernando Road, 820 feet distant. The crossing now has manually-operated crossing gates, and several relatively minor accidents have occurred there during the last 25 years. The plan approved by the Commission passes the street under the railroad tracks, with two 40-foot roadways, separated by a median strip and with 5-foot sidewalks on each side. The structure when completed will be 105 feet wide. The total cost necessitated by the presence of the tracks was estimated at $1,493,200. The Commission ordered that 50% be borne by the railroad, 25% by Los Angeles County, and 12%% each by the cities of Los Angeles and Glendale. Construction of the grade separation was found by the Commission to be “in the interest of public safety, convenience and necessity . ...” In each of these cases, the railroads introduced evidence intended to show that their share of the costs should be based on benefits received and that they would receive little or no benefit from the construction. For the most part, this evidence related to the nature of the traffic on the boulevards, the fact that the improvements are required primarily to facilitate traffic flow on the streets, the “revolution” in transportation that has occurred since the early part of this century and its effect on the reasons for constructing grade separations and on the financial position of railroads, the competition afforded railroads by motor vehicles utilizing the public streets and highways, and the effect of the proposed construction on operation of the railroads. The appellants contended that the costs should be distributed on the basis of benefits, and since the railroads would receive little or no benefits, they should be required to pay only a small part of the costs or nothing, as the case may be. The cities contended in both cases that the railroads should bear all the costs attributable to the presence of the tracks. After lengthy hearings and after considering all the evidence and the arguments advanced, the Commission decided that it was not bound to follow any particular theory in apportioning the costs but may allocate the costs in the exercise of its sound discretion. We do not understand the appellants to contest the right of the Commission to enter the orders or the reasonableness of the estimated costs. Their principal contention is that as to them the cost of the improvements may be distributed only on the basis of benefits which will accrue to their property. In this contention, we think the appellants are in error. These were not improvements whose purpose and end result is to enhance the value of the property involved by reason of the added facilities, such as street, sewer or drainage projects, where the costs assessed must bear some relationship to the benefits received. Chesebro v. Los Angeles County Dist., 306 U. S. 459; Valley Farms Co. v. Westchester, 261 U. S. 155; Kansas City S. R. Co. v. Road Improvement District, supra; Gast Realty & Investment Co. v. Schneider Granite Co., 240 U. S. 55. - Rather, in the cases at bar, the improvements were instituted by the State or its subdivisions to meet local transportation needs and further safety and convenience, made necessary by the rapid growth of the communities. In such circumstances, this Court has consistently held that in the exercise of the police power, the cost of such improvements may be allocated all to the railroads. Erie R. Co. v. Board, 254 U. S. 394, 409-411; Missouri Pacific R. Co. v. Omaha, 235 U. S. 121, 127; Chicago, M. & St. P. R. Co. v. Minneapolis, 232 U. S. 430, 441; Cincinnati, I. & W. R. Co. v. Connersville, 218 U. S. 336, 344. There is the proper limitation that such allocation of costs must be fair and reasonable. Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415, and the cases there cited. This was the standard applied by the Commission. It was not an arbitrary exercise of power by the Commission to refuse to allocate costs on the basis of benefits alone. The railroad tracks are in the streets not as a matter of right but by permission from the State or its subdivisions. The presence of these tracks in the streets creates the burden of constructing grade separations in the interest of public safety and convenience. Having brought about the problem, the railroads are in no position to complain because their share in the cost of alleviating it is not based solely on the special benefits accruing to them from the improvements. The appellants rely heavily on the Nashville case, supra, but that decision is in accord with the long-established rule which we here follow and which the Commission applied. As this Court said in the Nashville case: “The claim of unconstitutionality rests wholly upon the special facts here shown.” P. 413. In that case, the railroad’s share of the cost was fixed at 50% by a Tennessee statute and no consideration was given by the Supreme Court of Tennessee as to whether the application of the statutory amount was unreasonable under the special facts advanced. The grade separation ordered in the Nashville case was located in the rural community of Lexington, Tennessee, which had a population in 1910 of 1,497, in 1920 of 1,792, and in 1930 of 1,823. The improvement was not required to meet the transportation needs of Lexington and was being constructed without regard to that community’s growth or to considerations of public safety and convenience resulting from such growth. The highway there under improvement was part of the State highway system and the grade was to be removed primarily as part of economic and engineering planning and to qualify the improvement of the highway for federal aid. Other facts offered pointed principally to the state and nation-wide nature of the highway system and the particular highway there involved, the competition afforded railroads by the users of such highways and the effect of such competition on the revenues of the railroads, and the increasing importance of grade separations as a means of assuring rapid movement of motor vehicles rather than as an exclusively safety measure. As stated by this Court, “[t]he main contention is that to impose upon the Railway, under these circumstances, one-half of the cost is action so arbitrary and unreasonable as to deprive it of property without due process of law in violation of the Fourteenth Amendment.” P. 413. Thus, the contention of the railroad and the rule recognized by this Court in the Nashville opinion was that there could be an allocation of costs subject to the limitation that they be allocated always with regard to the rule against unreasonableness and arbitrariness. The judgment of the Supreme Court of Tennessee was reversed and the case remanded thereto because that court had refused to consider whether the special facts shown “were of such persuasiveness as to have required the state court to hold that the statute and order complained of are arbitrary and unreasonable. That determination should, in the first instance, be made by the Supreme Court of the State.” Pp. 432-433.. In our cases, not only are the facts distinguishable in many material particulars but unlike the Supreme Court of Tennessee which refused to consider the facts to determine whether the statute’s allocation of 50% was arbitrary or unreasonable, the California Commission considered all the evidence offered, including that going to the benefits received, and properly applied the rule of allocation sanctioned by this Court, and the California Supreme Court found no occasion to review the Commission’s orders. There is no showing on these records of arbitrariness or unreasonableness in the Commission’s orders, and none is claimed except as the Commission refused to allocate costs on the basis of benefits received, which we hold it was not required to do. It is next contended that the allocation of grade separation costs against the railroads in excess of benefits received constitutes an undue burden on interstate commerce. We have decided that there is no showing that the orders here under attack were arbitrary or unreasonable. Certainly, if the Commission has the right to order these improvements and has not, in allocating the costs, acted so arbitrarily as to deprive the railroads of their property without due process of law, the fact that the improvements may interfere with interstate commerce is incidental. The construction and use of public streets is a matter peculiarly of local concern and great leeway is allowed local authorities where there is no conflicting federal regulation, even though interstate commerce be subject to material interference. Railway Express Agency v. New York, 336 U. S. 106, 111; South Carolina v. Barnwell Bros., 303 U. S. 177, 187. No conflict with federal regulation is involved here. See Lehigh Valley R. Co. v. Board, 278 U. S. 24, 35. When the appellants went on the streets in question, they assumed the burden of sharing on a fair and reasonable basis the costs of any changes for the reason of public safety and convenience made necessary by the growth of the communities. “To engage in interstate commerce the railroad must get on to the land and to get on to it must comply with the conditions imposed by the State for the safety of its citizens.” Erie R. Co. v. Board, supra, p. 411. The orders of the Commission are not arbitrary or unreasonable and do not deprive the appellants of their property without due process of law, nor do they interfere unreasonably with interstate commerce. The judgments of the Supreme Court of California are Affirmed. The Chief Justice took no part in the consideration or decision of these cases. The final orders may be found at 51 Cal. P. U. C. 771 and 51 Cal. P. U. C. 788. “§ 1202. Exclusive powers of commission. The commission has the exclusive power: “(a) To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or vice versa, subject to the provisions of Sections 1121 to 1127, inclusive, of the Streets and Highways Code so far as applicable. “(b) To alter, relocate, or abolish by physical closing any such crossing heretofore or hereafter established. “(c) To require, where in its judgment it would be practicable, a separation of grades at any such crossing heretofore or hereafter established and to prescribe the terms upon which such separation shall be made and the proportions in which the expense of the construction, alteration, relocation, or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, county, city, or other political subdivision affected.” Deering’s Cal. Pub. TJ. C. A., 1951. 40 Adv. Cal., No. 2, Minutes, 1; 40 Adv. Cal., No. 15, Minutes, 1. 51 Cal. P. U. C. 771, 779. Ibid. 51 Cal. P. U. C. 788, 795.

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?

SENN TRUCKING COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Pre-Fab Transit Co., Intervenor. No. 76-1967. United States Court of Appeals, Fourth Circuit. Argued April 4, 1977. Decided Sept. 1, 1977. Joseph L. Howard, Jr. (William P. Jackson, Jr., Jackson & Jessup, Washington, D. C., on brief), for petitioner. R. Craig Lawrence, Washington, D. C. (Donald I. Baker, Asst. Atty. Gen., Peter L. de la Cruz, Atty., U. S. Dept, of Justice, Mark L. Evans, Gen. Counsel and Peter A. Fitzpatrick, Asst. Gen. Counsel, I.C.C., Washington, D. C., on brief), for respondents. Chandler L. van Orman, Washington, D. C. (Richard H. Streeter, Washington, D. C., Thomas C. Beach, III, Kenneth H. Ekin, Baltimore, Md., Wheeler & Wheeler, Washington, D. C., and Clapp, Somerville, Black & Honemann, Baltimore, Md., on brief), for intervenor. Before WINTER, BUTZNER and HALL, Circuit Judges. WINTER, Circuit Judge: Senn Trucking Company (Senn) seeks review of orders of the Interstate Commerce Commission (Commission) denying Senn’s gateway-elimination application and Senn’s subsequent petition for reconsideration. Senn contends that the Commission improperly concluded that Senn had failed to prove a public need for the proposed service and that it was error for the Commission to decline to grant a “G” application for service where Senn had secured the protection stemming from its “E” notices. We conclude that the Commission acted properly and legally. We therefore affirm its orders. I. In Russell Transfer, Inc. v. United States, 547 F.2d 231 (4 Cir. 1976), we had occasion to review the history of the Commission’s treatment of “tacking” by common carriers holding two or more certificates having a common point of service. We repeat the history here: For years the Commission permitted irregular-route motor common carriers, of which Senn is one, to combine, or “tack,” separate and unrestricted (as to tacking) operating authorities at their common points or “gateways,” so that they could provide a through service between points authorized in one certificate and those in another. In permitting this practice, the Commission never found a public need for such through service because the respective authorities were obtained in separate proceedings. It merely acquiesced in the practice of tacking. Motor Common Carriers of Property — Routes and Service, 88 M.C.C. 415, 423 (1961). In such circumstances a “right to tack” did not constitute a part of the carrier’s certificate. Thompson Van Lines, Inc. v. United States, 399 F.Supp. 1131, 1135-36 (D.D.C.1975), aff’d, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630 (1976). To rationalize the resulting tacking operations, which involve high degrees of circuity when more direct operations would be in the public interest, the Commission established certain standards for elimination of those gateways. Childress — Elimination Sanford Gateway, 61 M.C.C. 421, 428 (1952). If a carrier made an appropriate showing, it was authorized to operate directly without observing the gateway. With the advent of the fuel crisis in 1973, the Commission concluded that its pri- or benign attitude toward gateway operations should be modified because of the inefficiencies which resulted from gateway use. Motor Common Carriers of Property — Routes and Service (hereafter “Gateway Elimination”), 119 M.C.C. 170, 171 (1973), 119 M.C.C. 530, 533 (1974). The gateway-elimination regulations of April, 1974, which resulted required all irregular route carriers to apply for expedited direct authority by either (a) “letter-notice” (or “E” notice) procedure, if the circuity involved was less than twenty percent (the amount of circuity which the Commission judged not to affect the competitive balance of existing carriers) (49 C.F.R. § 1065.-1(d)(1)); or (b) formal or “G” application, if the circuity was greater than twenty percent (49 C.F.R. § 1065.1(d)(2)). Since “G” applications require Commission adjudication before gateways can be eliminated, the Commission chose to follow the criteria articulated in Childress in deciding whether a “G” certificate should be granted. Gateway Elimination, 119 M.C.C. at 550. Essentially, the carrier must establish, by evidence of prior operations, that it actually performs service through the gateway point, or, by evidence of shipper support, that a public need for the proposed through-service exists. Letter-notices filed with the Commission were not adjudicated at all, but were simply published in the Federal Register and became effective in fifteen days unless the carrier was otherwise notified by the Commission. Thus, by merely setting forth the appropriate information called for by the applicable gateway-elimination regulation, any carrier could eliminate its gateways and use a direct route where the involved circuity was less than twenty percent. Gateway Elimination, 119 M.C.C. at 537, 541, 543-45. The regulations, as promulgated, have been found to be valid by the United States Supreme Court, Thompson Van Lines, Inc. v. United States, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630 (1976), aff’g per curiam, 399 F.Supp. 1131 (D.D.C.1975), and were upheld, as applied to transfers and acquisitions of irregular route certificates, in Common Carrier Conference — Irregular Route v. United States, 534 F.2d 981 (D.C.Cir.1976), cert. denied, 429 U.S. 921, 97 S.Ct. 317, 50 L.Ed.2d 288 (1976). The gateway regulations allowed the filing of “G” applications with respect to applications for certificates of public convenience and necessity which were pending before the agency on the date the regulations became effective. Senn had pending such an application for its Sub 80 certificate. The Sub 80 application was granted on July 24, 1975. Within sixty days after the issuance of the Sub 80 certificate, Senn filed the gateway-elimination application now under review. At the time that the gateway-elimination application was filed, Senn had already filed 170 letter-notices seeking to eliminate gateway use in order to commence direct operations between points involving circuities of twenty percent or less. A substantial portion of these notices sought authorization duplicating that involved in the “G” application, and Senn requested the Commission to take official notice of the letter-notices. The Commission denied Senn’s “G” application because, inter alia, Senn failed to prove a public need for the proposed service or to delineate the extent of duplication between Senn’s letter-notice applications and the “G” application. In its petition for reconsideration, Senn admitted that sixty-nine of its “E” notices were “completely duplicated” by the instant application. Senn also represented that it did not seek duplicating operating authorities but sought to eliminate the difficulties of multiple “E” notices; it therefore recognized that the grant of its “G” application would automatically cancel the duplicating “E” notices. Senn was, however, responding to the Commission’s reliance on duplication as a reason for denying the “G” application, and Senn made no request that its outstanding “E” notices be exchanged for an identical “G” certificate, nor did it argue that any such exchange would be authorized or required. By final order served August 16, 1976, the Commission denied Senn’s petition for reconsideration, and Senn’s petition for review followed on or about August 31, 1976. II. Senn’s first attack on the validity of the Commission’s order is that its application for a “G” certificate should have been granted to the extent that it duplicated its “E” notices. Its theory is since it is permitted to perform the services described in its “E” notices, it should be given the greater protection of a “G” certificate. Senn, in its petition for reconsideration, did not advance the argument in precisely the same form which it presses before us. As a consequence, the Commission urges on us the authorities which hold that, before a court may review a decision of the Commission, the Commission must have erred against a proper objection, and thus the failure to raise an issue or press an argument at the administrative level before the Commission forecloses a party seeking review from asserting it before us. United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952); see also United States v. Capital Transit Co., 388 U.S. 286, 291, 70 S.Ct. 115, 94 L.Ed. 93 (1949) As we view Senn’s arguments before the Commission, they did raise, albeit in somewhat different form, the issue of whether the operating authority stemming from an “E” notice is identical to the operating authority granted by a “G” certificate. As a consequence, we think that we are not foreclosed by the Tucker rule from addressing the issue. Senn asserts that it would acquire greater rights or rights entitled to greater protection if it were granted a “G” certificate than if it were the possessor of only those rights flowing from an “E” notice. We are not persuaded that this is so. While Senn asserts that “there is a monumental difference between letter-notice authority and a certificate of public convenience and necessity,” Senn can cite little to support this statement. It does cite Artim Transportation System, Inc., Elimination of Gateways (Unreported, Docket No. MC-41406, Sub. Nos. E-9, E-18, E-19, October 28, 1975), wherein it claims that the Commission indicated that letter-notice authority has no existence apart from its underlying certificated authority. Yet, as the Commission points out, it has held that both “G” certificates and “E” notices are separately transferable under the provisions of §§ 5(2) and 212(b) of the Interstate Commerce Act when after the transfer the transferor will not retain a duplicating operating authority. Maxwell Co., Petition for Declaratory Order, 126 M.C.C. 166 (1976). Senn also calls attention to 49 C.F.R. § 1065.1(d)(l)(ii) which provides that, in granting letter-authority the “Commission reserves the right to require that a carrier terminate these operations if it should later be discovered that the carrier’s operations do not qualify for the benefits of this rule.” But that provision does not appear to introduce any greater substantial doubt concerning a carrier’s rights to operate under an “E” notice than under a “G” certificate, since the Commission always has the right to correct inadvertent errors in certificates of public convenience and necessity. American Trucking Associations, Inc. v. Frisco Transportation Co., 358 U.S. 133, 144-46, 79 S.Ct. 170, 3 L.Ed.2d 172 (1958). In reply to Senn’s contentions, the Commission asserts that Eagle Motor Lines, Inc. v. ICC, 545 F.2d 1015 (5 Cir. 1977), and Maxwell Co., Petition for Declaratory Order, supra, make it clear that a carrier has no fewer rights or less protection under a letter-notice than under a “G” certificate. Eagle held that the holder of operating rights under an “E” notice was entitled to the same notice and hearing before it could be revoked as the holder of a formal certificate of public convenience and necessity. Maxwell, as before stated, held that “E” rights were separately transferable from the underlying certificates if the transferor would not retain duplicating rights after the transfer was effected. While we agree that these decisions go far toward supporting the Commission’s contention, there may be other differences between the two types of operating rights of which neither we nor Senn are presently aware. We therefore decide the issue by accepting the Commission’s assertion that the carrier’s rights under an “E” notice and a “G” certificate are identical but without prejudice to Senn’s right to reopen the point if in future and in the context of actual facts it appears that there are substantial differences between the authority conferred upon a carrier under an “E” notice as distinguished from a “G” certificate. Unless and until those differences materialize, we agree that the Commission acted properly in denying Senn’s “G” application to the extent that it duplicated Senn’s “E” notices and that Senn had no right to exchange its “E” notice authorities for a “G” certificate. III. Senn does not challenge the adequacy of the Commission’s findings in denying its non-duplicating application under the usual Commission standards, nor does Senn claim that they are unsupported by substantial evidence under the established standards of judicial review. Instead, Senn contends that the Commission incorrectly found that Senn had failed to prove a public need for the authority sought in its “G” application because the Commission, as a matter of course, applies a lesser standard of proof in determining whether to grant unopposed applications and Senn met this lesser standard. Initially, as we view the record, parts of Senn’s non-duplicating application were challenged by other carriers and all were challenged by at least one carrier so that any such lesser standard should not have been applied. In any event, the presence of opposition is not determinative. The regulation governing the granting of “G” applications by a carrier, like Senn, who relies on certificated authorities issued to it after November 23, 1973, as a result of an application pending on that date, spells out that the applicant is required to prove, with shipper support, that a public need exists for the proposed service. 49 C.F.R. § 1065.-1(d)(2)(ii)(B). The Commission has stated that carriers like Senn must prove that “the present or future public convenience and necessity” required the proposed direct operations. Gateway Elimination, 119 M.C.C. at 554. That standard, as well as the language of the regulation, embodies the mandate of § 207(a) of the Interstate Commerce Act, 49 U.S.C. § 307(a), that a certificate shall be issued “if it is found that the proposed service . . . is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied . . . The Commission has announced the criteria by which it evaluates public convenience and necessity, Pan American Bus Lines Operation, 1 M.C.C. 190, 203 (1936), and it has described the type of evidence that it expects an applicant to produce, John Novak Contract Carrier Application, 103 M.C.C. 555, 557 (1967). In both pronouncements, as well as in the statute, there is no suggestion that the statutory standard, the criteria for proof or the type of evidence, is any different to support an unopposed application than to support an opposed application. Nor do we see in any of the cases cited by Senn any clear emergence of a principle that an unopposed application requires a different quantum or quality of proof from one which is opposed. We do not think that legally or factually the proposition is established. It therefore follows that we reject this attack upon the correctness of the Commission’s orders; and since the Commission’s orders have substantial evidentiary underpinnings, they are AFFIRMED. . “Irregular-route” carriers are those authorized to operate between designated points without restriction as to the route or highway to be utilized. See generally Motor Common Carriers Property — Routes and Service, 88 M.C.C. 415 (1961). . . . . (1) whether applicant is actually transporting a substantial volume of traffic from and to the points involved by operating in good faith through the gateway and, in so operating, is effectively and efficiently competing with the existing carriers, and (2) whether the elimination of the gateway requirement would enable applicant to institute a new service or a service so different from that presently provided as to materially improve applicant’s competitive position to the detriment of existing carriers. In the former instance, a grant of authority sought is justified solely upon proof that the proposed operations would result in operating economies. ... In the latter instance, . . . it is incumbent upon applicant to prove public convenience and necessity the same as in any other application for new authority. . Senn’s Sub 80 certificate authorized it to transport supplies used in the manufacture and distribution of roofing and roofing materials, gypsum and gypsum products, composition boards, and urethane and urethane products (except commodities in bulk), from points in three states and the District of Columbia to the facilities of the Celotex Corporation in Wayne County, North Carolina. . Senn could seek a declaratory judgment with respect to its rights under § 554(e) of the Administrative Procedure Act, 5 U.S.C. § 554(e). That statute authorizes the Commission “in its sound discretion” to issue a “declaratory order to terminate a controversy or remove uncertainty.” The Commission exercised this authority in The Maxwell Co., Petition for Declaratory Order, 126 M.C.C. 166 (1977).

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

MERRILL TENANT COUNCIL et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) et al., Defendants-Appellees. No. 79-2476. United States Court of Appeals, Seventh Circuit. Argued Oct. 23, 1980. Decided Jan. 14, 1981. Anthony J. Fusco, Jr., Legal Assistance Foundation of Chicago, Chicago, III, for plaintiffs-appellants. Thomas P. Sullivan, U. S. Atty., Robert Breisblatt, Asst. U. S. Atty., Chicago, 111., James T. Duda, Lansing, 111., Robert E. Bennett, Chicago, 111., for defendants-appellees. Before SWYGERT, PELL and CUDAHY, Circuit Judges. SWYGERT, Circuit Judge. Plaintiffs appeal from an order dismissing their class action complaint which alleges that the United States Department of Housing and Urban Development (“HUD”), the Secretary of HUD, various HUD officials and two private management companies have failed to pay interest on tenant security deposits as required by Illinois law. Plaintiffs did not bring their action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), but they instead sued in contract on the theory that the Illinois statutes requiring interest payment on security deposits were incorporated as implied terms in their agreements with HUD. We hold that plaintiffs may sue in contract, and that for purposes of this action sovereign immunity was waived under 12 U.S.C. § 1702. In the first count of their complaint, plaintiffs referred to Ill.Rev.Stat. ch. 74, §§ 91-93, and sought, inter alia, an order to pay all interest due and a permanent injunction regarding prospective compliance. The second count cited Ill.Rev.Stat. ch. 74, § 92 and requested a declaratory judgment that defendants willfully failed to pay the interest and an order to pay damages in the amount of the security deposits paid by plaintiffs together with court costs and reasonable attorney’s fees. The federal defendants moved to dismiss, and the trial judge dismissed both counts of the complaint without opinion. He also dismissed the private defendants sua sponte. We reverse and order the complaint reinstated against both the federal and private defendants, except insofar as plaintiffs allege entitlement to damages in the amount of the security deposits. That portion of Ill.Rev.Stat. ch. 74, § 92 requiring that a lessor who willfully fails to pay interest to a lessee pay damages in the amount of the security deposit, we find to be a penalty and thus void under this contractual cause of action. I Assuming as we must that the allegations in the complaint are true, plaintiffs-appellants Merrill Tenant Council which is an unincorporated association representing tenants residing at 6700-6716 South Merrill Avenue in Chicago (“Merrill Project”), Mary Berry, Willie and Maxine Ferguson, Beverley Gardner, Inez Hill, Janice Adams, and Henrietta Hill reside in multi-family housing projects owned or operated by HUD. HUD and Moon C. Landrieu, Secretary of HUD; Elmer C. Binfold, Director of the Chicago Area Office of HUD; William Miller, Director of Housing Management in the Chicago Area Office; and John Davis, Director of Property Disposition in the Chicago Area Office, are charged with the administration of the properties at issue and are federal defendants in this case. Private defendant Scherer Management, Inc. has been management agent for HUD of the Merrill Project. Private defendant Pyramidwest Realty and Management, Inc. has been managing agent for HUD with regard to the projects in which plaintiffs Inez and Henrietta Hill and plaintiff Adams reside. Plaintiffs Gardner, Berry, and Willie and Maxine Ferguson paid security deposits to defendants, their agents, or predecessors in interest, at least three years prior to filing the complaint in this case. No interest has been paid to any of the plaintiffs by any of the defendants. Plaintiffs Adams and Inez and Henrietta Hill also paid security deposits to defendants, their agents, or predecessors in interest, more than two years before the complaint was filed in this case. None has received a payment of interest from the defendants. At a meeting of the Merrill Tenant Council held on October 27, 1976, HUD was informed that interest due on security deposits was not being paid. On May 10,1977 plaintiffs’ counsel wrote to the Director of the Chicago Area Office of HUD demanding that interest due residents in all HUD owned or operated properties within the jurisdiction of the Chicago Area Office be paid. On July 27, 1977 another letter was sent, this time to the Area Counsel for the Chicago Area Office of HUD, stating that the interest had still not been paid. No interest was paid to any of the plaintiffs, and this class action lawsuit was filed in the Circuit Court of Cook County on January 30, 1978. Plaintiffs sued individually and on behalf of all other persons similarly situated alleging that defendants failed to comply with Ill.Rev.Stat. ch. 74, §§ 91-93, governing the payment of interest on tenant security deposits. In the first count of their complaint plaintiffs alleged that defendants failed to comply with Ill.Rev.Stat. ch. 74, §§ 91-93. Plaintiffs sought, inter alia, an order to pay all interest due, and a permanent injunction regarding prospective compliance. The second count of the complaint, relying on Ill.Rev.Stat. ch. 74, § 92, requested a declaratory judgment that defendants’ failure to pay interest was willful, and an order to pay damages in an amount equal to the amount of the security deposits paid by plaintiffs for each twelve month period for which defendants willfully failed to pay interest along with court costs and reasonable attorney’s fees. On motion of the federal defendants, pursuant to 28 U.S.C. § 1442(a)(1), the case was removed to the United States District Court for the Northern District of Illinois. The district judge certified the case as a class action. On August 6, 1979 the federal defendants filed a motion to dismiss the complaint. That motion was granted without opinion in an order of October 18, 1979, in which the district judge sua sponte, found that the “defendants other than the federal defendants were and are acting only as agents of the federal defendants and as such should be dismissed.” A final judgment order was entered on November 15, 1979, and this appeal followed. II Plaintiffs-appellants argue that their cause of action for nonpayment of interest due on security deposits is contractual. The federal defendants, citing this court’s recent decision in FDIC v. Citizens Bank & Trust Co., 592 F.2d 364 (7th Cir.), cert. denied, 444 U.S. 829, 100 S.Ct. 56, 62 L.Ed.2d 37 (1979), contend that plaintiffs’ suit sounds in tort and therefore must be brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), which it was not. We do not agree with the defendants that our decision in FDIC v. Citizens Bank and Trust Co. controls this case or that this suit necessarily sounds in tort. In Citizens Bank & Trust Co., a creditor of an insolvent state bank sued the Federal Deposit Insurance Corporation (“FDIC”), alleging that FDIC, acting as receiver, had wrongfully transferred assets of the insolvent bank to itself in its corporate capacity. The creditor argued that the insolvent bank had committed a breach of contract and that FDIC was a successor in interest to the bank. This court stated that FDIC, in its corporate capacity, assumed no liabilities of the receivership; we held that FDIC “entered into no contract with the creditor.” 592 F.2d at 368 (emphasis added.) If FDIC, as receiver, did violate its duties, we concluded, liability for that breach would be in tort. The facts of the present case compel a different holding. Here defendants are the lessors of real property and plaintiffs are their tenants. HUD or its predecessor in interest received a security deposit from each plaintiff. Whether the posting of a security deposit was a written term in the lease, that payment was required as part of the agreement between lessor and lessee. Illinois law provides that interest must be paid on a security deposit by a lessor of residential real property containing 25 or more units, who receives a security deposit from a lessee .. . computed from the date of the deposit at a rate of 5% per year on any such deposit held by the lessor for more than 6 months. Ill.Rev.Stat. ch. 74, § 91. We agree with plaintiffs that the statutory duty to pay interest became an implied term of the contract that existed between the plaintiffs and HUD. As early as 1883, the Illinois Supreme Court stated: ... [NJothing is better settled than that in many contracts . .. the law silently annexes certain conditions . . . which are not all, in express terms provided for in the contract, yet, in contemplation of law, they are nevertheless regarded as a part of the contract, and the non-performance of them may, in an action on the contract, be assigned as a breach thereof. Nevin v. Pullman Palace Car Co., 106 Ill. 222, 233 (1883). In Schiro v. W. E. Gould & Company, 18 Ill.2d 538, 165 N.E.2d 286 (1960), the Illinois Supreme Court held that a purchaser damaged because of a builder’s failure to comply with duties imposed by municipal ordinances could sue in contract, although the contract did not expressly incorporate the requirements of the municipal code. Citing Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co., 111 F.2d 875 (7th Cir. 1940), in which this court had interpreted Illinois law, the Illinois Supreme Court stated that the law existing at the time and place of the making of the contract formed a part of the contract as though it had been expressly incorporated therein. Schiro was followed in Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E. 208 (1972). There the Illinois Supreme Court held that there was an implied warranty of habitability fulfilled by compliance with the pertinent provisions of the Chicago Building Code which were incorporated in the contract. Defendants’ attempts to distinguish those cases are unpersuasive. We hold that the statutes at issue in the instant case created additional terms in the agreements between HUD and its tenants and that the plaintiffs may sue in contract. Ill The federal defendants argue that sovereign immunity has not been waived so as to allow this action against HUD. Plaintiffs assert jurisdiction under section 1 of the National Housing Act, as amended, 12 U.S.C. § 1702, which provides: The Secretary shall, in carrying out the provisions of this subchapter and sub-chapters II, III, V, VI, VII, VIII, X, IXA, and IX-B, of this chapter, be authorized in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal. (emphasis added.) In FHA v. Burr, 309 U.S. 242, 245-46, 60 5. Ct. 488, 490-491, 84 L.Ed. 724 (1940), the Supreme Court interpreted that waiver of sovereign immunity broadly, stating that in the absence of a clear showing that there were implied exceptions it must be presumed that a governmental agency launched into the commercial world with authority to sue and be sued is “not less amenable to judicial process than a private enterprise under like circumstances would be.” Defendants point out, however, that 12 U.S.C. § 1702 provides “sue and be sued” authority only in circumstances in which the Secretary is “carrying out” specified provisions of the Act. They contend that there is no relationship between the Illinois interest statutes and the subchapters enumerated in 12 U.S.C. § 1702. We do not agree. According to the complaint, HUD owns or operates the properties at issue pursuant to federal mortgage insurance programs which are provided for in subchapter II of the National Housing Act. The duty imposed by the Illinois interest statutes arises by virtue of the federal mortgage insurance programs under which HUD is responsible for the operation and leasing of plaintiffs’ apartments. Thus, we conclude that section 1702 applies and that “[t]he Secretary ... in carrying out the provisions of sub-chapter ... II [may] ... be sued.” The federal defendants next assert that there is no fund from which plaintiffs may recover, making the instant ease “a suit against the United States” and for that reason not within the waiver provision in 12 U.S.C. § 1702. It is true that for a claim to be against the Secretary of HUD and within the scope of the “sue and be sued” clause of 12 U.S.C. § 1702, a judgment for plaintiffs must come from funds within the control of the Secretary. The Supreme Court has interpreted the language in 12 U.S.C. § 1702 requiring expenditures by the Secretary to be made from “funds made available by this [Chapter],” to prohibit recovery from the United States Treasury. FHA v. Burr, 309 U.S. 242, 250, 60 S.Ct. 488, 492-493, 84 L.Ed. 724 (1940) (“To conclude otherwise would be to allow proceedings against the United States where it had not waived its immunity.”). The plaintiffs insist that there are funds within the Secretary’s control that can be used to satisfy the judgment in this case. We begin our analysis of the availability of funds from which a judgment can be paid by noting that plaintiffs’ complaint is in two counts: the first count citing Ill.Rev. Stat. ch. 74, §§ 91-93 requests that the district court issue an order requiring that outstanding interest due on security deposits be paid to all plaintiffs. The second count is based on that part of Ill.Rev.Stat. ch. 74, § 92, which provides in part: A lessor who willfully fails or refuses to pay the interest required by this Act shall, upon a finding by a circuit court that he has willfully failed or refused to pay, be liable for an amount equal to the amount of the security deposit, together with court costs and reasonable attorney’s fees. While the amount of the damages sought under the first count of the complaint is limited to the interest due; the second count, requiring a payment in the amount of the actual security deposit to each plaintiff in addition to court costs and attorney’s fees, demands a much larger sum. Therefore, the survival of the second count of the complaint significantly affects the magnitude of the judgment at issue. For that reason, before deciding whether there may be funds within the Secretary’s control from which to satisfy a judgment for plaintiffs, we shall address the defendants’ argument that the second count of the complaint was properly dismissed even if the first count was not. The federal defendants assert that the part of Ill.Rev.Stat. ch. 74, § 92 allowing recovery in the amount of the security deposits plus court costs and attorney’s fees for a willful failure to pay is a penalty provision and that the waiver of sovereign immunity found in 12 U.S.C. § 1702 does not authorize suits against the government for a penalty. Plaintiffs, on the other hand, urge us to interpret the Illinois statute not as a penalty but as a liquidated damages provision implied in the contract between plaintiffs and defendants. Moreover, plaintiffs disagree with defendants’ assertion that the waiver of sovereign immunity in section 1702 does not extend to suits for a penalty, arguing that the “sue and be sued” language is broad enough to authorize recovery under Ill.Rev.Stat. ch. 74, § 92, even if we find that section to be a penalty. Section 92 sets damages for a willful failure to pay interest in an amount equal to the amount of the security deposit together with court costs and attorney’s fees. We hold that plaintiffs may properly sue for court costs and attorney’s fees, but that the provision for damages in the amount of the security deposits is a penalty clause and therefore void under Illinois contract law. Although under Illinois law a successful litigant cannot normally recover costs and attorney’s fees from his losing adversary, there is a well-established exception permitting recovery of both costs and attorney’s fees when there has been an agreement to allow them. Ritter v. Ritter, 381 Ill. 549, 553, 46 N.E.2d 41, 43 (1943). In the instant case, we find that Ill.Rev.Stat. ch. 74, § 92 as an incorporated term in the contract between HUD and the plaintiffs operates as an agreement authorizing the allowance of court costs and reasonable attorney’s fees in the event that HUD has willfully failed to pay the interest. We hold that costs and attorney’s fees are authorized by Illinois law in these circumstances, and we reject the defendants’ contention that section 92 is a penalty as regards those items. Because plaintiffs sue in contract, we must adhere to our contract analysis and proceed to determine whether that part of section 92 providing for payment in the amount of the security deposit should be interpreted as a liquidated damages provision or a penalty clause. According to Illinois law, a term fixing unreasonably large liquidated damages is void as a penalty. Parker-Washington Co. v. Chicago, 267 Ill. 136, 107 N.E. 872 (1915); Giesecke v. Cullerton, 280 Ill. 510, 117 N.E. 777 (1917). A predetermined damages clause will be given effect if actual damages are difficult to ascertain and the ... clause is a reasonable estimate of the [actual] damages. . . . The damages provided must be for a specified amount for a specific breach to be paid as an alternative to performance and not as a penalty for nonperformance. Builder’s Concrete, Etc. v. Fred Faubel & Sons, 58 Ill.App.3d 100, 107, 15 Ill.Dec. 517, 523, 373 N.E.2d 863, 869 (1978) (citations omitted). In the instant case, we can perceive no reasonable relationship between a payment in the amount of the security deposit and the actual harm suffered by plaintiffs. If plaintiffs recover the unpaid interest and their costs and attorney’s fees, we cannot say that they will not have obtained an adequate remedy as an alternative to defendants’ performance. Therefore, insofar as Ill.Rev.Stat. ch. 74, § 92 requires payment in the amount of the security deposit for a willful failure to pay the interest, we find that it is a penalty and void according to Illinois law. We now return to the defendant’s contention that there is no fund within the Secretary’s control from which to satisfy plaintiffs’ claims. Because we hold that plaintiffs cannot sue the federal defendants for the amount of the security deposits, the monetary recovery to which plaintiffs would be entitled amounts to interest plus court costs and attorney’s fees. We cannot agree with defendants’ assertion that this suit should be dismissed because as a matter of law, no HUD funds are available for payment. First, HUD’s Property Disposition Handbook, Multi-family Properties, No. 4315.1, Ch. 4, H 109, p. 41 (3/77), provides: “Any funds collected as security deposits shall be kept separate and apart from all other funds of the project in a Security Deposit Bank Account (interest-bearing, as permitted by law), the amount of which shall at all times equal or exceed the aggregate of all outstanding obligations under said account.” As plaintiffs point out, given the five percent interest rate payable under Ill.Rev.Stat. ch. 74, § 91, and current high interest rates, all monies presently kept in interest-bearing accounts may well be earning the five percent interest defendants are required to pay. Second, plaintiffs pay rent to HUD, thereby creating an additional source of funds from which recovery could be had. We note that plaintiffs in their second count, reasonably suggest that payment could be in the form of “credit against said plaintiffs and class and subclass members’ rental payments.” At this stage of the proceedings and without more information as to the circumstances under which HUD “owns or operates” the properties at issue, we cannot know exactly what other special funds, if any, would be available for payment in this case. Suffice it to say that if this complaint was dismissed because the trial judge concluded as a matter of law, that there are no funds within the Secretary’s control from which to satisfy a judgment for plaintiffs, he was in error. IV In their reply brief on appeal, plaintiffs argue for the first time that the actions of the federal defendants were ultra vires their statutory authority and thus are not protected by sovereign immunity. Although we have held that sovereign immunity has been waived by 12 U.S.C. § 1702, we have also stated that plaintiffs cannot recover the amount of the security deposits because that payment would constitute a penalty under a section 1702 contractual cause of action. According to the ultra vires exception to the doctrine of sovereign immunity, however, plaintiffs might be entitled to sue the federal defendants for a penalty, because they could sue directly under the Illinois statute and not be limited by the Federal Tort Claims Act. For purposes of this appeal, however, we reject plaintiffs’ ultra vires contention both because it was not properly pleaded in the complaint and because it was never raised in the trial court. In Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), the Supreme Court articulated a specific requirement for a plaintiff who attempted to circumvent the doctrine of sovereign immunity by alleging that a federal official had acted ultra vires his statutory authority: A claim of error in the exercise of that power is not sufficient .... It is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies. 337 U.S. at 690, 69 S.Ct. at 1461 (emphasis added). Although plaintiffs here have asserted a willful violation of an Illinois statute, their complaint does not set forth a federal statute limiting the federal defendants’ authority to act. Moreover, the assertion that sovereign immunity is inapplicable because the federal officials acted ultra vires their statutory authority was never made in the district court. In their response to the federal defendants’ motion to dismiss the complaint, plaintiffs argued that the sovereign had in these circumstances consented to suit under three different statutes, but there was no mention of an ultra vires basis for jurisdiction. In Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975), the plaintiff argued on appeal that the district court should not have dismissed his complaint because, although the court may have lacked jurisdiction under the authority cited to the trial court, it still had jurisdiction under a different statute. Because the plaintiff had not asserted jurisdiction under the second theory before the trial court, we refused to consider his contention on appeal. In the case at bar, the ultra vires basis for jurisdiction was neither properly pleaded under Larson nor raised in the trial court. We will not consider it here. V Finally the plaintiffs argue that the trial court’s sua sponte dismissal of the private defendants, Pyramidwest Realty and Management, Inc. and Scherer Management, Inc., was erroneous. The trial judge found that “the complaint facially shows that defendants other than the federal defendants were and are acting only as agents of the federal defendants and as such should be dismissed.” The plaintiffs argue that the sua sponte dismissal must be reversed because the plaintiffs were afforded neither notice nor an opportunity to oppose the dismissal. Moreover, plaintiffs assert, if the action was dismissed on the basis that the complaint failed to state a claim against the private defendants, that determination was erroneous. Both plaintiffs and the private defendants cite our decision in Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194 (7th Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978), as support for their opposing positions as to the propriety of the sua sponte dismissal. In Tamari, it was argued that the district court’s sua sponte dismissal of a complaint without notice and hearing violated due process. We held that a preliminary opinion issued by the court a month before the dismissal stating the court’s view that the case should be dismissed was “sufficient” though not “ideal” procedure to withstand the allegations of a due process violation. Plaintiffs insist that Tamari stands for the proposition that a dismissal without any notice at all does violate due process. They also refer us to dicta in Beshear v. Weinzapfel, 474 F.2d 127, 133 (7th Cir. 1973), in which we upheld a dismissal in that case but stated: “[T]his is not a case of a motion to dismiss because of a failure of the complaint to state a claim upon which relief might be granted, as certainly there the court should hear the opposition grounds.” Defendants, on the other hand, cite our holding in Tamari v. Bache: Even though the defendants did not file a motion to dismiss for failure to state a claim upon which relief could be granted, the district court was not precluded from entering an order of dismissal on its own motion provided that a sufficient basis for the court’s action was otherwise apparent from the plaintiff’s pleadings. 565 F.2d at 1199. Without reaching the constitutional issue of whether due process was violated by the sua sponte dismissal, we conclude that in the instant case a sufficient basis for dismissal was not apparent from plaintiffs’ pleadings and that the dismissal of the complaint against the private defendants must also be reversed. The complaint states: 14. ... As managing agent for HUD with regard to the Merrill Project, and other buildings owned or operated by HUD, Defendant, Scherer Management, Inc., is responsible for the daily administration and management of those buildings. Among those duties are the collection and administration of security deposits including the payment of interest thereon. 15. ... As managing agent for HUD with regard to the Kedvale Square Project, the Douglas-Lawndale Project and other buildings owned or operated by HUD, Defendant, Pryamid West [sic], is responsible for the daily administration and management of those buildings. Among those duties are the collection and administration of security deposits including the payment of interest thereon. Pyramidwest contends that it cannot be liable to plaintiffs because the complaint shows that it was not the managing agent for HUD when the security deposits were paid. That argument lacks merit because whether Pyramidwest collected the security deposits for HUD is not relevant to its alleged duty after becoming HUD’s managing agent in 1976 to make annual interest payments to the plaintiffs. The private defendants strenuously argue that under Illinois law the acts of an agent are considered to be those of the principal, and that “where an agency is [as here] disclosed, the agent is not liable in any undertaking or contract unless that agent binds himself to become personally responsible in that contract.” 1 Ill.L. & Prac., Agency § 130 (1953). The problem with that argument of the private defendants is that the very same section of Illinois Law & Practice states: “It is considered a well settled principle of law in Illinois that an agent is not liable for the acts of a disclosed principal unless he takes an active part in violating some duty the principal owes to a third person.” (emphasis added.) Landau v. Landau, 409 Ill. 556, 101 N.E.2d 103 (1951); Grover v. Commonwealth Plaza, 76 Ill.App.3d 500, 31 Ill.Dec. 896, 394 N.E.2d 1273 (1979). It is an accepted rule that a complaint should be liberally construed and “should not be dismissed ... 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Here the complaint alleged that the private defendants have failed to perform their delegated duty of paying interest to the plaintiffs. We hold that plaintiffs have stated a claim that the private defendants, by failing to perform their duty to pay interest to plaintiffs, have taken and are taking an active part in violating the duty to pay interest which their principal, HUD, owes to the plaintiffs. We affirm the trial court’s dismissal of the complaint only insofar as plaintiffs claim damages in the amount of the security deposits. In all other respects, we reverse and order the complaint reinstated as to all defendants. Circuit Rule 18 shall apply on remand. . A lessor of residential real property containing 25 or more units, who receives a security deposit from a lessee to secure the payment of rent or compensation for damage to property shall pay interest to the lessee computed from the date of the deposit at a rate of 5% per year on any such deposit held by the lessor for more than 6 months. Ill.Rev.Stat. ch. 74, § 91. The lessor shall, within 30 days after the end of each 12 month rental period, pay to the lessee any interest, by cash or credit to be applied to rent due, except when the lessee is in default under the terms of the lease. A lessor who willfully fails or refuses to pay the interest required by this Act shall, upon a finding by a circuit court that he has willfully failed or refused to pay, be liable for an amount equal to the amount of the security deposit, together with court costs and reasonable attorneys fees. Ill.Rev.Stat. ch. 74, § 92. This Act does not apply to any deposit made with respect to public housing. Ill.Rev.Stat. ch. 74, § 93. . At oral argument, it was clear that there is no dispute that the district court had jurisdiction of the lawsuit under 28 U.S.C. § 1442(a)(1) for purposes of deciding the other issues which are discussed in this opinion. The argument that the state court lacked jurisdiction because of sovereign immunity is meritless. The cases cited by the federal defendants are inapposite because in those cases there was no basis for jurisdiction in the state courts, whereas here we hold that the Secretary has consented to be sued “in any court of competent jurisdiction, State or Federal.” 12 U.S.C. § 1702. See section III infra. . It is not disputed that the properties in which plaintiffs reside contained twenty-five or more units as required by section 91. At oral argument counsel for the federal defendants suggested that the provisions of sections 91 and 92 are inapplicable because the units in question are “public housing.” Section 93, IlI.Rev.Stat. ch. 74, § 93, provides: “This Act does not apply to any deposit made with respect to public housing.” That argument was not raised in the district court, and in their brief, federal defendants state that the question of whether the units are public housing, “has not been raised since it did not affect the basis of the motion to dismiss.” Without the benefits, of briefing or argument on that issue, we decline to address it here. We must assume that the basis for the dismissal of the federal defendants was jurisdictional. The issue of whether the units involved are “public housing” may, of course, be raised on remand. . The rationale for that rule, the court explained is that the parties to the contract would have expressed that which the law implies “had they not supposed that it was unnecessary to speak of it because the law provided for it.” (12 I.L.P. 399.) Consequently, the courts, in construing the existing law as part of the express contract, are not reading into the contract provisions different from those expressed and intended by the parties, as defendants contend, but are merely construing the contract in accordance with the intent of the parties. 18 Ill.2d at 544, 165 N.E.2d 286. . According to the federal defendants, even if this suit is in contract, it must be brought under the Tucker Act, 28 U.S.C. § 1346(a)(2). Because the amount in controversy exceeds $10,000, defendants assert that the district court lacks jurisdiction. Ordinarily a suit in contract brought against the United States or a federal agency is brought under 28 U.S.C. § 1346(a)(2), which waives sovereign immunity subject to certain limitations. But here plaintiffs need not and do not invoke the Tucker Act, because federal jurisdiction lies pursuant to 28 U.S.C. § 1442(a)(1), and plaintiffs rely on section 1 of the National Housing Act, as amended, 12 U.S.C. § 1702, for the waiver of sovereign immunity. Because this suit is not based on 28 U.S.C. § 1346(a)(2), the $10,000 limitation on the district court’s jurisdiction does not apply. Trans-Bay Engineers & Builders, Inc. v. Hills, 551 F.2d 370 (D.C.Cir.1976). . Plaintiffs also assert a waiver of sovereign immunity under 42 U.S.C. § 3535(i)(l) and 5 U.S.C. § 702. Because we conclude that jurisdiction lies under 12 U.S.C. § 1702, we need not discuss whether those statutes are additional bases for jurisdiction in this case. We note, however, that the argument that 42 U.S.C. § 3531 (i)( 1) allows the recovery of a penalty in this case is without merit. . Because a penalty clause is void in a contractual cause of action in Illinois, we do not reach the issue of whether the waiver of sovereign immunity extends to a penalty. . That the disputed provision requires a finding of willfulness does not automatically make it a penalty. If costs and fees are recoverable by agreement under Illinois law, we hold that an agreement can provide under what circumstances they are recoverable. The statute impliedly incorporated as a term in this agreement authorizes the recovery of court costs and attorney’s fees in the circumstances of a willful failure to pay interest. . A novel question is here presented because the arguable penalty clause, which for purposes of this action operates as an implied term in a contract, was “written” not by the parties but by the Illinois legislature. It could be argued that in the case of a statute incorporated as a term in a contract, the penalty should be enforced because it was a creation of the state legislature and thus differs from a penalty clause created by private parties to a contract. We have determined that such an analysis must be rejected. In enacting Ill.Rev.Stat. ch. 74, § 92, the Illinois legislature created and envisioned a statutory cause of action. It was the Illinois courts and not the Illinois legislature that decided that an existing statute, such as section 92, was to be incorporated as an implied term in an express contract. Because plaintiffs here do not bring a statutory cause of action but rather sue in contract claiming breach of an implied term, we hold that the Illinois common law contract analysis of penalties versus liquidated damages must be applied to determine enforceability. . It is crucial to recognize that a tenant who under section 92 recovers the amount of his security deposit by reason of his landlord’s willful failure to pay interest would still be entitled to receive a return of his security deposit on the termination of his lease, consistent with Ill.Rev.Stat. ch. 80, § 101. . The rationale for the well-established rule that a federal court’s lack of jurisdiction may be raised at any time is, of course, inapplicable to the reverse situation where a basis for the presence of jurisdiction has not been asserted at the appropriate time. . The private defendants argue that they were properly dismissed because they were acting merely as agents of the federal defendants who, in turn, were properly dismissed on the basis of sovereign immunity. Because we have held that sovereign immunity was waived as to the federal defendants, it is clear that the private defendants’ attempt to attach themselves to that alleged immunity defense must fail.

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

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

AMERICAN SMELTING & REFINING CO. v. UNITED STATES. No. 7865. Circuit Court of Appeals, Third Circuit. Argued April 6, 1942. Decided Sept. 28, 1942. Floyd F. Toomey, of Washington, D. C. (Ellsworth C. Alvord, of Washington, D. C., on the brief), for appellant. Michael H. Cardozo, IV., Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, Sp. Asst, to Atty. Gen., and Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee. Before BIGGS, JONES, and GOODRICH, Circuit Judges. GOODRICH, Circuit Judge. The plaintiff taxpayer seeks in this action to recover back taxes paid and to recover what it claims is an overcharge in its income tax for the year 1925. The taxpayer owned all of the common stock of a subsidiary company. That company had outstanding two issues of preferred stock, both cumulative, both with a par value of $100, one of which called for 6% per annum dividend, and the other 5%. To retire this stock the taxpayer offered its own 30 year, $100, 5% bonds in 1917. During that year and 1918 one share of the 6% stock was acquired by giving the shareholder a $100 5% bond plus a cash payment of $7.50; during 1921 and 1922, the exchange was on a par for par basis. The other shares were secured by the exchange of one share for one bond of the series described. The average sales price on the New York Stock Exchange of the 6% stock during the period of retirement fluctuated from a high of lOOj/i to a low of 82%; that of the 5% stock from 101% to 91%. The taxpayer, claiming that the bonds were issued at discount, seeks to amortize the claimed discount by annual deductions over the life of the bonds. The learned trial court decided the case adversely to the taxpayer and it is here on appeal from that ruling. Up to the threshold of the immediate question, the path is clear. While no language of the Revenue Acts has specifically covered the point, the Treasury Regulations provide that if bonds are issued by a corporation at a discount the net amount of such discount is deductible and is to be amortized over the life of the bonds. The ■Supreme Court has said that both discount and commissions may thus be amortized. Helvering v. Union Pacific R. Co., 1934, 293 U.S. 282, 55 S.Ct. 165, 79 L.Ed. 363; Natural Gas Pipe Line Co. of America v. Commissioner of Internal Revenue, 1941, 45 B.T.A. 939. If the taxpayer had raised the money to buy in the outstanding preferred stock by selling its $100 30 year bonds at $90 it concededly would have been allowed to amortize the $10 discount at the rate of $.33Vs per year. The taxpayer contends that the same rule should be applied in this case where the exchange of the bonds for the preferred stock was made directly with the owner thereof instead of following the longer process of selling the bonds and buying the stock for cash. This contention the government denies. The question has not been squarely decided previously by court decision, although it seems to us that what authority there is seems to point in favor of the taxpayer’s contention. The Fourth Circuit, evidently unimpressed by the defendant’s argument here, refused to lay down any universal proposition “that where bonds are issued for property, a reasonably estimated discount may never be taken as an amortized deduction”. But the facts in that case did not show to the court’s satisfaction that the bonds had been issued under circumstances which were equivalent to a discount. Dodge Brothers, Inc., v. United States, 4 Cir., 1941, 118 F.2d 95, 103. The court having found that the securities offered could have easily been disposed on the market, without the inducement of the discount and that the plan was merely one for the realization of abnormally large profits by the underwriters, it concluded that the discount was not genuine in the sense of an inducement to the public to purchase that which it otherwise would not. No such showing was made here. Furthermore it was shown in the present litigation and not disputed by the government, that when the stock sold low on the market, the $7.50 additional bonus was withdrawn, thus indicating that the offer was not made more attractive than was necessary. These factors, in addition to the significant proof of the current market prices of the stocks and bonds, are we think, sufficient to distinguish this case from the one in the Fourth Circuit. The point has been raised in cases before the Board of Tax Appeals but the issue, as pointed out by the learned trial Judge here, was avoided on the ground of lack of proof with respect to the value of the property received by the taxpayer. Carding Gill, Ltd., v. Commissioner of Internal Revenue, 1938, 38 B.T.A. 669; Southern R. Co. v. Commissioner of Internal Revenue, 1933, 27 B.T.A. 673; New York, C. & St. L. R. Co. v. Commissioner of Internal Revenue, 1931, 23 B.T.A. 177; Kansas City S. R. Co. v. Commissioner of Internal Revenue, 1931, 22 B.T.A. 949. In addition there is an Office Decision applying an earlier Regulation upon this point which was substantially the same as the one involved here. In that case the taxpayer, owner' of an unincorporated business, had issued mortgage bonds, some of which were traded for liberty bonds, which had a market value of less than par but which were taken at their par value. It was held that when the exchange was made the taxpayer had in effect disposed of the bonds at a discount, the amount of which was represented by the difference of the par value of his bonds and the fair market value of the liberty bonds when taken in exchange. 1921, O.D. 959, 4 C.B. 129. The plaintiff here cites this ruling as authority for his position. Defendant answers that the ruling does not bind this court and in any event the liberty bonds had a far more stable value than the preferred stock in question. For whatever authority it has, however, the ruling does point in the direction the taxpayer asks us to go. The government’s argument is to the effect that it is only when the bonds are issued for cash that it is possible to tell whether the loss which the amortization anticipates will ever occur. If the taxpayer had the good fortune after buying this stock, it is suggested, to sell it at a price higher than that for which it took it in trade for bonds there would be no loss to be anticipated from the transaction. Where bonds are issued for cash, the argument runs, there is an immediate certainty that gain or loss will be realized in the future and this gain or loss a taxpayer, on the accrual basis, may take into account. It seems to us that the government’s argument overlooks what we believe is the rationale of the theory underlying the amortized deduction of discount. Ordinarily, bonds are issued at a discount because the promised rate of interest is, due to the condition of the prevailing market, too low to sell them at par. It would, therefore, seem that the discount allowed is in the nature of additional interest which accrues over the life of the bond and is payable at the maturity of the principal obligation. Accounting authorities so treat it. This is confirmed by the Treasury Regulations. Although, originally, they treated discount under the heading of “Losses”, Treasury Regulation 33, Revised Article 150, subsequently, they treated it “in the same way as interest paid”, Treasury Regulation 65, Article 563 and Treasury Regulation 62, Article 563. *This follows the language of the Revenue Acts which allow deductions of “losses” on “sales or exchanges” and of “interest” on “loans”. It is admitted that the issuance of bonds in return for stock or cash constitutes a loan. We believe that the discount is still to be treated as additional interest when the subject matter of the loan is stock instead of cash. It is clear in both cases that the discount, or additional interest, is determined at the time the bonds are issued. Thus, when the investor is paid the face amount of the bond at maturity, he is taxable for the difference between that sum and the cost of the bond. Here the cost of the bond is the fair market value of the stock at the time the corporate obligations were exchanged. To sustain the government’s contention, in view of these considerations, would be to say, in effect, that, on the same loan, the taxable “interest” earned by the investor varies in amount and is computed as of a different time than the deductible “interest” paid by the obligor. We think that this not only distorts, unnecessarily, the ordinary incidents of a commercial transaction but also upsets the balance of the tax situation. We do not think, therefore, that the question whether amortization is permitted is settled by making the dividing line between transactions in which bonds are issued for cash and transactions where bonds are issued for something else. We do see the possibilities of great difficulty in determining, with sufficient exactness, the difference between the par value of the bonds and the thing other than cash received for the bonds by the obligor. We think in this case the taxpayer has met that difficulty, except as to part of the 5% shares, discussed below. He has shown the selling price of part of the 5% and all the 6% preferred stock of the company whose shares the taxpayer took in for the bonds, and this by reference to the open market of the New York Stock Exchange. This is further checked by showing the selling price of the taxpayer’s bonds in transactions shortly after, or during the time under consideration. It is proof, it seems to us, sufficient to establish the value of what was received in exchange for the bonds issued. It shows the stock, when received, was worth less than the par value of the bonds given for it and how much less. That seems to us to bring the taxpayer within the rule which permits the amortization of this discount under the rules stated by the Regulations and approved by the Supreme Court. With regard to the portion of the 5% shares excepted above this proof is lacking, however. There is no showing of selling prices of these shares from September, 1917, through October, 1922, inclusive. In the absence of such proof, we do not know that the exchange of bonds for the 5% stock was required to be made at the discount claimed by the taxpayer, or any other discount. Despite the taxpayer’s argument to the contrary, we think the burden was upon him to make this showing. With regard to the portion of the bonds covered by this exchange, therefore, we sustain the action of the trial court. The judgment of the District Court is reversed and the case remanded for proceedings in accordance with this opinion. The then Collector no longer held office at the time suit was brought so the action is against the United States. 28 U.S.C.A. § 41(20). D.C.N.J.1941, 39 F.Supp. 334. Treas. Reg. 65, Art. 545(3) (a), Revenue Act of 1924. The same Regulations applied under former Acts: Treas. Reg. 62, Art. 545(3) (a), Revenue Act of 1921; Treas. Reg. 45, Art. 544(3) ,(a), Revenue Act of 1918; Treas. Reg. 33, Rev. Art. 150, Revenue Act of 1916, as amended by the Act of 1917. The current Regulation on this point is Treas. Reg. 103 § 19.22(a)-18(3) (a). It should be noted in this connection that $20,000 face amount of the taxpayer’s bonds were issued in Hay, 1922 at a discount of 6.86% and that $7,500,000 face amount of these bonds were issued in November, 1922 at a discount of 8.-50%. It will be observed from a study of the month by month sales of the Series A and Series B Preferred Stocks of the Securities Company and the prices at which the bonds of the taxpayer were sold during the same period, that the selling prices of the bonds bear a close relationship to the selling prices of the stocks and that the prices at which the bonds were sold in 1922 may be closely correlated to the discounts at which the bonds were actually issued. We think that this affords a very high degree of proof that the premium at which bonds were offered in exchange for the stock represented values expressed in terms of dollars and cents and not values arrived at because the taxpayer desired to dissolve the Securities Company. Accountants’ Handbook (2d Ed., 1932) 890-892; 2 Hester, Accounting Theory and Practice (1925) 199; Newlove, Smith and White, Intermediate Accounting (1939) 296; Patón, Advanced Accounting (1941) Ch. 27; Schmidt, Theory and Mechanics of Accounting (2d Ed. 1937) 314. Although Treas. Reg. 45, Art. 544(3) (a) provided that discount was deductible “as interest”, the 1920 edition of the same Regulation omitted this reference to interest. Treas. Reg. 45, Art. 544(3) (a), (1920 Ed.). However it is again found in Regulations 62 and 65 cited above. See discussion of theory underlying deduction of discount in Mertens, Law of Federal Income Taxation (Supp. 1939) pp. 227, 228. 1920, O.D. 475, 2 O.B. 211. Under the taxpayer’s view, the same sum represents the discount and is taxable to the bondholder and deductible by the obligor. If the stocks or bonds are sold, the basis is determined as of the same time and the gain, if any, is taxable. The only discordant note is that the investor may not amortize the discount. New York Life Insurance Co. v. Edwards, 1926, 271 U.S. 109, 46 S.Ct. 436, 70 L.Ed. 859; Corn Exchange Bank v. Commissioner of Internal Revenue, 1927, 6 B.T.A. 158. This has been severely criticized by accountants who prefer to amortize discount on the investor’s books. Accountants’ Handbook (2d Ed. 1932) pp. 339, 340. 2 Kester, Accounting Theory and Practice (2d Ed.1925) pp. 199-201; Newlove, Smith and White, Intermediate Accounting (1939) 205; Pat-on, Advanced Accounting (1941) 196.

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?

Eben HOPSON, Sr., et al., Plaintiffs-Appellants, v. Juanita KREPS et al., Defendants-Appellees. No. 79-4151. United States Court of Appeals, Ninth Circuit. July 14, 1980. Wickwire, Lewis, Goldmark, Dystel & Schorr, Seattle, Wash., on brief; Charles A. Goldmark, Seattle, Wash., for plaintiffs-appellants. Bruce C. Rashkow, Dept, of Justice, Washington, D.C., on brief; Margaret Strand, U.S. Atty., Alaska, for defendantsappellees. Before WALLACE and FARRIS, Circuit Judges, and EAST, District Judge. Honorable William G. East, United States District Judge, District of Oregon, sitting by designation. WALLACE, Circuit Judge: This case presents difficult questions of statutory interpretation, justiciability, and the scope of judicial review of administrative action in foreign affairs. Hopson brought this action against the United States, the Secretary of Commerce and other government personnel and agencies (government) to challenge the validity of Department of Commerce regulations adopted pursuant to the International Whaling Convention Act of 1949. 16 U.S.C. §§ 916-9167. The district court dismissed the action as presenting a non-justiciable political question. Hopson v. Kreps, 462 F.Supp. 1374 (D.Alaska 1979). Because we find that the district court had jurisdiction to consider Hopson’s statutory claim, we reverse and remand. I. The 1946 International Whaling Convention (Convention), 62 Stat. 1716, was entered into for the purpose of strengthening efforts to conserve whale populations around the world. Since prior treaties could only be amended by formal protocol, and therefore did not lend themselves to establishment of seasonal quotas for the taking of whales, a major purpose of the Convention was the creation of an international commission with power to fix such quotas. See Hopson v. Kreps, supra, 462 F.Supp. at 1375. The Convention thus empowered an International Whaling Commission (Commission) to establish a detailed set of whaling regulations and quotas, called a Schedule, which may be amended by a vote of three-fourths of the members of the Commission. The Commission consists of a representative from each “Contracting Nation.” Although the Commission has authority to amend the Schedule of regulations pursuant to Article V of the Convention, it has no authority to amend the Convention itself. The subject of this controversy, the bow-head whale, is one of the most endangered whale species. Since 1946, the bowhead has been completely protected under the Schedule, except for an exemption for native subsistence whaling. This controversy began in 1977 when the Commission voted 17-0, the United States abstaining, to eliminate the native subsistence exemption. The policy dilemma for the United States stems from the fact that native hunting for the bowhead whale is considered to be an integral part of Eskimo life and culture. Indeed, the bowhead whale is viewed as vital to Eskimo nutrition, apart from its contribution to traditional living patterns. Largely for these reasons, the government prepared an extensive environmental impact statement to determine whether the United States should file an objection to the Schedule amendment. Pursuant to Article V of the Convention, if a Contracting Government objects to an amendment to the Schedule within 90 days, the amendment does not apply to the objecting nation. Although the United States decided not to object to the native subsistence whaling amendment, the government made it clear that it considered a total ban on subsistence whaling unacceptable. Since that time, the American delegation to the Commission has succeeded in obtaining a limited quota for the taking of bowhead whales by Alaskan natives. Hopson brought this action on behalf of Alaskan Eskimos, claiming that the Commission exceeded its jurisdiction under the Convention when it eliminated the exemption for subsistence whaling. Jurisdictional language in Article I of the Convention states that the Convention applies to “factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments . . . .” 62 Stat. at 1717. Article II defines “whale catcher” as “a ship used for the purpose of hunting, taking, towing, holding on to, or scouting for whales.” Id. Hopson contends that this definition was intended to apply only to commercial whaling vessels and not to the small boats used by Eskimos. More important for our purposes, Hopson contends that since Congress enacted the Whaling Convention Act of 1949 solely to implement the Convention, the Commerce Department was not authorized to adopt Commission regulations that exceed the scope of the Commission’s jurisdiction. The district court refused to address Hop-son’s statutory argument, however, and accepted instead the government’s contention that the interpretation of the Convention “is so intertwined with foreign policy considerations that [a] court has no jurisdiction to consider the validity of the [Commerce Department] regulations that implement the Commission’s Schedule.” 462 F.Supp. at 1378. In reaching this conclusion, the court relied heavily on affidavits submitted by the government tending to show that the nation’s efforts to develop international conservation would be damaged by a ruling adverse to the government. The government also contends before us that the decision of the executive not to object to the amendment of the Schedule constituted an exercise of unreviewable administrative discretion. We will consider first the district court’s conclusion that it lacked jurisdiction to determine the validity of the challenged regulations, after which we will consider the reviewability of the administrative action. II. The district court’s decision was rendered prior to our decision in United States v. Decker, 600 F.2d 733 (9th Cir.), cert. denied, 444 U.S. 855, 100 S.Ct. 113, 62 L.Ed.2d 73 (1979), which raised a similar issue. In Decker, criminal defendants appealed their convictions pursuant to a statute prohibiting violation of the treaty regulations of an international commission, contending that the convictions were outside statutory language limiting the scope of criminal liability. Specifically, the defendants contended that the Secretary of State lacked authority pursuant to a 1937 treaty to accept partially the regulations of the international commission, and that the Secretary’s action thus constituted a rejection of the regulations. Id. at 738. We held that the issue whether the regulations were validly accepted, and therefore applicable under the statute, was not rendered political merely because deciding it would require the interpretation of a treaty or have potential impact on the nation’s external relations. Since Decker involved an appeal from a criminal conviction for violation of the statute, we also stated that we would be particularly reluctant to withhold review where the validity of the regulations under the statute went to the validity of the criminal conviction we were charged to review. Id. The government has failed to distinguish this case from Decker. The government urges that the political question doctrine has prudential as well as Article III dimensions, and contends that its application involves a weighing of relevant considerations on a case-by-case basis. It asks us to sustain the decision of the district court on the basis of a finding that the court sensitively applied the well-known criteria enunciated in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), to the particular facts before us. We need not resolve the longstanding debate as to the nature and proper scope of the political question doctrine, however, to conclude that we are bound by our specific holding in Decker rather than the general formulation of Baker. The analysis in Baker makes it clear that the criteria enunciated there generally do not apply to claims that the executive has exceeded specific limitations on delegated authority. Id. at 217, 82 S.Ct. at 710. Moreover, in analyzing the Supreme Court’s foreign affairs cases, Baker stated that the Court’s decisions had reflected a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. Id. at 211-12, 82 S.Ct. at 707. The government misconstrues the content of this statement when it asserts that we should defer to the government because of the history of the executive branch’s management of the bowhead whale issue. The “particular question posed” here is whether the Commerce Department exceeded limits on its statutory authority in promulgating these regulations. Questions of statutory authority are clearly susceptible of judicial handling and involve the classic judicial function of construing statutes to determine whether agencies have acted outside their jurisdiction. See K. Davis, Administrative Law § 28.21 (Supp.1970), at 993-94. Similarly, to the extent that Hopson’s claim raises issues that go to the statutory authority of the Commerce Department, those claims cannot be subjected to the government’s characterization that they represent nothing more than an attack on the nation’s international conservation policy. Apart from these consideration, it is clear that in Decker we were cognizant of the Baker criteria when we determined that the issue there was justiciable. 600 F.2d at 737. We cannot say that similar issues are rendered non-justiciable merely by independently applying the Baker criteria and finding them applicable on these facts. The government next contends that this case is governed by our decision in Jensen v. National Marine Fisheries Service, 512 F.2d 1189 (9th Cir. 1975), rather than Decker. Our disagreement with this contention should not be surprising in light of our refusal in Decker to follow the district judge in this case. We expressly disagreed with his reliance on Jensen. United State. v. Decker, supra, 600 F.2d at 738 n.8. In Jensen, we held non-justiciable a claim that the Secretary of State had acted arbitrarily (and hence illegally) in accepting the regulation of an international commission enacted pursuant to a treaty similar to the one before us here. In Decker, we distinguished Jensen in two ways. First, we found that while Jensen involved a refusal to review a decision made within the range of a broad grant of discretionary authority in foreign affairs, the claim in Decker went to the very existence of the power of the executive to act as it did. United States v. Decker, supra, 600 F.2d at 737. Second, we observed that whereas in Jensen we denied plaintiff’s request for “declaratory and injunctive relief from the adverse economic effects of the challenged regulations,” a political question holding in Decker “would prevent us from reviewing the propriety of appellants’ convictions and prison sentences.” Id. at 738. The government relies on the second point, contending that Decker draws a distinction for purposes of justiciability analysis between a claim for declaratory relief and an appeal from a criminal conviction. But we do not read Decker as holding that justiciability turns on the slender reed that distinguishes the seeking of declaratory relief from the threat of prosecution and appellate review of a criminal conviction. Such a reading would be at odds with consistent holdings of the Supreme Court that persons subject to a real threat of criminal prosecution “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (citations omitted); accord, Craig v. Boren, 429 U.S. 190, 194-96 & n.5, 97 S.Ct. 451, 455-56, 50 L.Ed.2d 397 (1976); Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 506-08, 92 S.Ct. 1749, 1755-56, 32 L.Ed.2d 257 (1972); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Rather, we read Decker merely as stressing that the criteria of Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710, should not be applied indiscriminately and without considering that a refusal to decide, based on one or more of its prudential formulations, could have the effect of allowing persons to suffer criminal penalties for refusing to obey an invalid regulation. Finally, the government argues that its position is lent support by Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979), which was decided since Decker. In Goldwater, a plurality of the Supreme Court held that Senator Goldwater’s claim, that the President lacked authority unilaterally to terminate the United States treaty with Taiwan, presented a political question. It is significant that the opinion did not command the assent of a majority of the Court. More important, even the plurality opinion emphasized that the effects of the challenged executive action were entirely external to the United States, in contrast to the “profound and demonstrable domestic impact” of the executive action challenged in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), which it distinguished. 444 U.S. at 997, 100 S.Ct. at 534. As the implementation of regulations carrying criminal sanctions has a “demonstrable domestic impact,” it is clear that Goldwater does not affect our analysis in Decker. III. The government asks us to affirm the judgment of the district court on the alternative ground that the Secretary of State’s decision not to object to the amendment of the Schedule was action which the statute committed to his unreviewable discretion. The government asserts that because such a ruling holds that the statute granted the Secretary authority to determine the validity of the amendment under the Convention, it would have the effect of sustaining the challenged regulations rather than avoiding questions as to their validity. The government argues that this alternative ground can thus be squared with United States v. Decker, supra, 600 F.2d 733. The government is correct in observing that although “[i]t is the role of the judiciary to interpret international treaties and to enforce domestic rights arising from them,” id. at 737, treaties are relevant to the interpretation of congressional enactments only to the extent that Congress makes them relevant. Courts are empowered to give direct legal effect to treaties only insofar as they are self-executing and therefore operate as the law of the land. See Head Money Cases, 112 U.S. 580, 598— 99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884), 5 G. Hackworth, Digest of International Law 177-85 (1943); 14 M. Whiteman, Digest of International Law 302-16 (1970); Comment, Self-Executing Treaties and Human Rights Provisions of the United Nations Charter: A Separation of Powers Problem, 25 Buff.L.Rev. 773 (1976). Treaty regulations that penalize individuals, on the other hand, are generally considered to require domestic legislation before they are given any effect. L. Henkin, Foreign Affairs and the Constitution 159 (1972). Moreover, “if a treaty is not self-executing it is not the treaty but the implementing legislation that is effectively ‘law of the land.’ ” Id. at 157. The issue in any legal action concerning a statute implementing a treaty is the intended meaning of the terms of the statute. The treaty has no independent significance in resolving such issues, but is relevant insofar as it may aid in the proper construction of the statute. Thus, where courts have been persuaded as to the proper interpretation of an implementing statute, that judgment has not been affected by the claim that the reading given the statute was inconsistent with the intent of the parties to the treaty. United States v. Navarre, 173 U.S. 77, 19 S.Ct. 326, 43 L.Ed. 620 (1899); Botiller v. Dominguez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926 (1889). Moreover, although claims alleging that agencies have acted beyond their statutory authority are generally deemed justiciable, there is also no doubt that Congress has “the constitutional authority ... to lodge with the Secretary of State the authority to consider and pass upon the regularity and validity” of the actions of an international commission pursuant to a treaty. Z. & F. Assets Realization Corp. v. Hull, 311 U.S. 470, 486, 61 S.Ct. 351, 354, 85 L.Ed. 288 (1941). The government thus contends that Z. & F. Assets controls this case. There, award holders under the War Claims Act of 1928 sued to restrain the Secretary of State from certifying later awards to other claimants, arguing that the international commission which issued the awards acted outside its jurisdiction under a 1922 treaty. Specifically, plaintiffs argued that since the statute implementing the treaty called for payment of “awards” of the Commission, Congress intended to limit such payments to “awards rendered conformably to the terms and requirements of the [treaty].” Id. 61 S.Ct. at 476, (Argument for Petitioner). Although the circuit court had held that the claim presented a political question, Z. & F. Assets Realization Corp. v. Hull, 114 F.2d 464 (D.C. Cir. 1940), the Supreme Court rested its ruling on another ground. The Court found that the statutory provision conditioning payment of claims on the certification of the Secretary of State had vested unreviewable discretion in the Secretary to determine the validity of the awards. Stating that the issue was one of the intent of Congress as disclosed by the Act, the Court reasoned that “it was natural and appropriate that Congress should entrust to the Secretary of State the decision of questions that might arise with respect to the propriety of the payment of awards made by the Commission . . .” Id. at 486-87. The Court relied both on “[t]he literal and natural import” of the language of the provision and “the nature of the questions presented and their relation to the conduct of foreign affairs within the province of the Secretary of State . .” Id. at 489. The emphasis placed on the relationship between the grant of power and the conduct of American foreign policy lends support to the view that the nature of the grant of power is an important consideration in resolving issues of reviewability. See K. Davis, Administrative Law, supra, §§ 28.09, at 45; 28.21 (Supp.1970), at 993; L. Jaffe, Judicial Control of Administrative Act 363, 491-93 (1965). In the case before us, the statute expressly grants the Secretary of State power to accept or object to amendments to the Schedule pursuant to Article V of the Convention. 16 U.S.C. § 916b. The relevant legislative history states that the Secretary “is authorized to act for this Government in connection with amendments to the schedule made by the Commission . . H.R.Rep.No. 2514, 81st Cong., 1st Sess. 5 (1949), reprinted in [1950] U.S.Code Cong. & Admin.News, pp. 2938, 2943. As the Secretary of Commerce is authorized by the Act “to adopt such regulations as may be necessary to carry out . . . the regulations of the Commission,” 16 U.S.C. § 916j(a) (emphasis added), it is contended that 916b grants the Secretary of State final authority to determine whether amendments to the schedule will constitute “regulations of the commission” under 916j. The government thus asks us to read this grant of power broadly so as to sustain the discretion of the district court. We decline the government’s invitation. A careful study of the district court’s opinion demonstrates that the holding is based upon the political question doctrine. Admittedly, there is some language which refers to commitment to agency discretion, but it would be unfair to the district court to construe these brief references as an unannounced alternative holding. We arrive at this conclusion primarily because the district court’s analysis does not appear to have been based on a reading of the statute, and the language referring to discretionary administrative action does not articulate a distinct basis for the court’s holding. Although Z. & F. Assets indicates that the subject matter of the grant of discretionary power is sometimes a significant factor in reviewability rulings, such rulings ultimately require interpretation of congressional intent. The district court’s opinion, however, displays virtually no analysis of the language of the statute or discussion of legislative intent. Thus, the court’s statement that the Secretary’s action constituted unreviewable administrative action in foreign affairs apparently rested on the court’s broad holding that it lacked jurisdiction even to address the validity of the Commerce Department regulations. We have held that this conclusion was error. It would be inappropriate for us to decide the reviewability issue independently because we believe it should be first decided by the district court after full briefing by the parties. The reviewability issue raises substantial questions as to the proper reconciliation of the holdings in Decker, Z. & F. Assets, and Jensen v. National Marine Fisheries Service, supra, 512 F.2d 1189. Although Decker does not specifically address a reviewability contention, we were willing in that case to look behind the Secretary’s decision to accept the treaty regulations of an international commission at least to the extent of determining whether he had “accepted” them in accordance with the terms of the treaty. It will be for the district court initially to determine whether the holding in Decker also applies, under this statutory scheme, to treaty questions going to the validity of the regulations of the international commission, and therefore to the merits of the Secretary’s decision whether to accept. We offer no view on the merits of that issue. We hold only that the district court erred in concluding that it lacked jurisdiction to rule on the validity of the Commerce Department regulations under the statute and remand for his consideration of Hopson’s claims. REVERSED AND REMANDED. . Hopson also contends that the Commerce Department issued its regulations in violation of the procedural and substantive requirements of the Marine Mammal Protection Act and the Endangered Species Act. See 16 U.S.C. §§ 1371(b) and 1539(e)(4). In addition, he claims that the regulations violate United States trust responsibilities to native subsistence whalers. We need not address these additional contentions. . The Baker formulation reads: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217, 82 S.Ct. at 710. . It is difficult to reconcile the cases refusing to decide various issues, including those in the field of foreign relations, without acknowledging that the doctrine reflects prudential and functional concerns as well as Article III limitations on the use of judicial power. See L. Tribe, American Constitutional Law § 3-16, at 71-79; Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517, 535-36 (1966); Note, A Dialogue on the Political Question Doctrine, 1978 Utah L.Rev. 523. But see Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976) (“political question” rulings in foreign affairs are rulings on the merits); Tiger, Judicial Power, the “Political Question Doctrine,” and Foreign Relations, 17 U.C.L.A. L.Rev. 1135 (1970) (same). . Claims that the executive has violated constitutional or statutory limitations have been ruled political only very rarely in recent years. See, e. g., Sarnoff v. Connally, 457 F.2d 809 (9th Cir.), cert. denied, 409 U.S. 929, 93 S.Ct. 227, 34 L.Ed.2d 186 (1972) (constitutional challenge to executive warmaking); Atlee v. Laird, 347 F.Supp. 689 (E.D.Pa.1972), aff'd, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973) (same). See also, Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (plurality opinion) (treaty termination). . It is true that plaintiffs in Jensen also sought relief from potential prosecution, but we held that the mere possibility of prosecution, as presented in that case, did not present a concrete controversy that was ripe for adjudication. 512 F.2d at 1191. . We also decline to adopt the view that “personal liberty” interests will more likely trigger judicial review than claims related to “economic interests.” If economic penalties had been the only possible consequences of violation of the regulations in Decker, the validity of the regulations would still have been a prerequisite to Decker’s liability. . Without reaching the merits of the government’s contention, we observe that the statute before us is not precisely analogous to the statute addressed in Z. & F. Assets. Whereas the statute in Z. & F. Assets specifically authorized the Secretary of Treasury to pay awards certified by the Secretary of State, here the Secretary of Commerce’s alleged power to adopt amendments not objected to by the Secretary of State entails a relatively broad reading of 916b. . This issue was virtually unexplored before us. Most' of the discussion in the briefs and oral arguments in this case were directed at the political question ruling of the district court. Although the government did articulate review-ability as a separate ground for the decision, that ground was not explored at any length. Viewing the district court decision as a political question ruling only, Hopson did not address any separate discussion to a reviewability question. Indeed, at oral argument Hopson stated that reviewability was one of the statutory questions which the district court refused to decide. . In Decker, the Secretary’s power to accept the regulations of the Commission was granted by the treaty rather than by an explicit statutory provision. The scope of review thus turned entirely on the justiciability of the question of treaty construction presented there. Any implications of this difference in the statutory schemes can be explored by the parties 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 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. Joseph G. LEASE, Defendant-Appellant. No. 273, Docket 28879. United States Court of Appeals Second Circuit. Argued March 1, 1965. Decided June 9, 1965. Thomas H. Baer, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, David E. Montgomery, Asst. U. S. Atty., on the brief), for appellee. Robert Polstein, New York City (Jerome R. Halperin, New York City, of counsel), for appellant. Before MOORE, KAUFMAN and HAYS, Circuit Judges. MOORE, Circuit Judge. After investigation in 1945 and 1946 into the fiscal affairs of Joseph G. Lease, the Internal Revenue Service advised Lease that it had determined a tax deficiency for 1943 and 1944, with penalties (1) for fraud in each year and (2) for failing to file a return for 1944. After consultation with IRS in 1949 Lease consented to the assessment of a deficiency against him for those years. Accordingly, assessments were made, which by Int.Rev.Code of 1939 § 3670 (now Int.Rev.Code of 1954 § 6321) gave rise to a lien on all of Lease’s property and rights to property. Lease neither paid the amounts due and sought a refund in the district court, nor petitioned for Tax Court review of the deficiency. He admits that his “net worth is in excess of $500,000,” but the Government was able to collect only about $6,000 by distraint; most of his assets are outside the United States. This action was brought in 1962 to foreclose the tax lien and to collect a judgment of $120,000 including interest. Lease contended that the Commissioner’s assessments were erroneous and that there was neither fraud nor failure to file. After a trial before Judge Levet and a jury, a special verdict was rendered finding Lease liable for fraud and failure to file, but also finding the assessment partially erroneous. Consequently, a verdict for only $32,462 was rendered against Lease. Lease made the usual post-trial motions, which were denied by Judge Levet, and he now appeals. There is no longer any doubt in this circuit that in an action to enforce a lien the taxpayer may challenge the underlying merits of the assessment. See Falik v. United States, 343 F.2d 38, 40 (2d Cir. 1965); United States v. O’Connor, 291 F.2d 520, 526-28 (2d Cir. 1961). The same certainty does not exist as to how strong an attack on the correctness must be to carry the day. Lease does not quarrel with the well established rule that “the assessment of the Commissioner * * * was only prima facie evidence of the amount due as taxes * * * It establishes a prima facie case of liability * * * and nothing more. If not impeached, it was sufficient to justify a recovery * * * " United States v. Rindskopf, 105 U.S. 418, 422, 26 L.Ed. 1131 (1881). Lease does, however, take issue with the operation of this “presumption” of correctness under Judge Levet’s charge. The Government contends, on the other hand, not only that the “assessments received in evidence constituted the Government’s prima facie case” but also that they “placed upon Lease the burden of proving the assessments wrong.” Our initial question, therefore, concerns the proper allocation or placement of the burden of coming forward and the burden of persuasion as to the correctness of a tax assessment. Oddly enough, the matter has not been given satisfactory airing. In Rindskopf itself the Court did not discuss it, being more concerned with an erroneous charge that the assessment must stand or fall in its entirety. Subsequent Supreme Court cases have not spoken to the point. And most of the pertinent cases we have found tend merely to state without discussion that: the assessment establishes a prima facie case or is prima facie correct; the taxpayer must overcome the presumption of correctness; the taxpayer must show, demonstrate or establish the assessment to be erroneous; or, the taxpayer has the burden of proving the assessment incorrect. How much the taxpayer must “show” or the weight of the “burden” that must be carried is not adequately answered. Some eases seem to suggest that while the Government’s proof of the assessment establishes a prima facie case, thereby shifting to the taxpayer the burden of coming forward with evidence tending to undermine the assessment, the burden of persuasion as to the overall correctness of the assessment is always on the Government. See United States v. Szerlip, 169 F.Supp. 529, 531 (E.D.N.Y.1959) (alternative holding); cf. United States v. Molitor, 337 F.2d 917, 922-23 (9th Cir. 1964). In Szerlip Judge Zavatt had been sufficiently persuaded by the taxpayer’s case showing the assessment to be erroneous that he granted judgment for the taxpayer when the Government failed to prove anything beyond the assessment. In Molitor the taxpayer had sued for a refund of certain amounts already collected on his Social Security and income tax withholding liability. The Government counterclaimed for the unpaid balance of the assessment. Both complaints were dismissed for failure of the respective claimants to meet their burdens of proof. On the Government’s appeal from the dismissal of its counterclaim, the court there apparently thought the rule to be that the taxpayer must “come forward with sufficient evidence to establish that he was not responsible for the tax or that he did not wilfully fail to pay it, [and if that were done] then the Government would have had to come forward with evidence to justify the assessment.” Id. at 923. Because the District Court’s treatment of the problem was unclear, the Court remanded for amplification as to the weight given by the District Court to the taxpayer’s evidence challenging the assessment and to the presumption of administrative regularity attaching to the assessment. Neither of these cases, then, is inconsistent with the proposition that a taxpayer challenging the correctness of a tax assessment, as a defense in a collection case, has the burden of persuading the fact finder by a preponderance of the evidence that the assessment is incorrect, a proposition that we find quite compelling upon consideration of the underlying policies and alternatives. Had Lease chosen to follow either of the more typical methods available for questioning his tax liability — Tax Court review of the asserted deficiencies or suit for refund of asserted overpayments — he would clearly have been obliged to present evidence contradicting the Commissioner’s view of his tax liability and thus tending to rebut the presumption of correctness attaching to the assessment. See Niederkrome v. Commissioner of Internal Revenue, 266 F.2d 238, 241 (9th Cir. 1958), cert. denied sub nom. Royce v. Commissioner of Internal Revenue, 359 U.S. 945, 79 S.Ct. 725, 3 L.Ed.2d 678 (1959); cf. Flomarcy v. Commissioner of Internal Revenue, 324 F.2d 730 (2d Cir. 1963). As a plaintiff or petitioner, he would also have had the burden of persuading the trier by a preponderance of the evidence that the deficiency was factually incorrect or that the amount paid exceeded the true tax liability. Cf. Horwitz v. United States, 339 F.2d 877 (2d Cir. 1965). We can see no reason why the taxpayer should be in any better position when he takes advantage of none of the available procedures and rather waits until the Government has to resort to enforcing its lien before he attempts to cast doubt upon the underlying tax liability. We note the Court’s observation in Bull v. United States, 295 U.S. 247, 259, 55 S.Ct. 695, 79 L.Ed. 1421 (1935), that “taxes are the life-blood of the Government, and their prompt and certain availability an imperious need.” The taxpayer is the one initially in the best position to know what income he had and how he disposed of it. Good records will go far to overcome the presumption of correctness attaching to the assessment. A strong enough showing will induce a prudent Government attorney to back up the assessment with the basis on which it was made, so that the factual differences may be resolved by the fact-finder. Of course, to the extent that good records are unavailable, the taxpayer will be forced to rely more on the credibility of witnesses who can fill in the gaps in information; the taxpayer himself will no doubt be a prime witness. Where no records have been kept the taxpayer will have an understandably more difficult task in demonstrating to and persuading the trier that the Government’s assessment is not as reliable as his word or recollection. The Government, as here, will normally have made its determination at a time when more evidence was available and facts were fresher in the minds of those who are knowledgeable, such as Lease, who was questioned then. That this burden of persuasion placed on the taxpayer is not insuperable is suggested by the considerable success had by Lease in this case, even after twenty years. He was able to persuade the jury that some of the Commissioner’s assessments were wrong and his liability was accordingly reduced from the $120,000 sought to the $32,462 awarded. Viewed with reference to this standard, Judge Levet’s charge was entirely proper. He instructed the jury that: the burden is therefore on the taxpayer in the first instance to disprove the computations made by the Commissioner by a fair preponderance of the credible evidence * * * Should you find that the defendant has shown error with respect to a particular item the presumption of correctness of the computation by the Commissioner and assessment with respect to that item disappears and then the burden shifts to the government to prove whether any deficiency exists and if so in what amount. It is not incumbent * * * upon the taxpayer under these circumstances to prove that he owed no tax or the correct amount of the tax which he did owe or the correctness of the item concerned. The burden in each instance is upon the government to prove the correct item. Thus, overall, the Government has the burden of coming forward and persuading the trier that the taxpayer has or had a tax liability. If not challenged the assessment establishes that liability. A taxpayer’s challenge must persuade the trier by a preponderance of the evidence that the assessment is erroneous. The Government then must still persuade the trier that on the basis of all the evidence there was a tax liability — perhaps in a different amount than initially asserted — or which the taxpayer was responsible. The charge was fully in accordance with these principles. Another aspect of the failure to keep good records is seen with respect to Lease’s claim that the Commissioner erroneously disallowed certain losses allegedly entailed by one of his multifarious enterprises. In addition to selling cord-wood to the Government, selling tomatoes to the A&P, farming, operating a coffee shop in the Hotel Newburgh, and operating a rooming house, Lease was active in “horse breeding,” which the Government terms a euphemism for gambling. Lease assumes that the Government conceded that the horse breeding business had some losses and claims, therefore, that as, a matter of law he was entitled to have some of them allowed. If the argument did not fall with failure of the record to support his assumption (Judge Levet rightly found no such Governmental concession) it would surely fall in the face of the meager evidentiary showing made by Lease. And with only a few random bills, with what Lease described as “a jumbled mess of figures,” and his own word to go on, the jury was certainly able to find the assessment more probably correct than not on this matter. As the jury was instructed not to disallow asserted expenses solely because their exact amount could not be substantiated, and as there was ample basis for disallowing the losses, the requirements of Cohan v. Commissioner of Internal Revenue, 39 F.2d 540, 543-44 (2d Cir. 1930), were satisfied. Lease urges that, with respect to the coffee shop and rooming house, we should reverse Judge Levet and the jury both on the law and the facts. We disagree. From all the evidence, the jury could find at least the following facts. In late 1943, Lease, the “business head” of the family, had decided that the coffee shop was a good way to make some money. He put up $1,000 to purchase the lease on it and advanced $200 for rent. The shop was formally run as a partnership in the name of Lease’s then wife Rose and his sister Frances. The books were kept by his present wife. Rose was to be “paid” $25 or $30 a week whether or not she even worked in the shop. In January 1944, shortly after operation of the shop had commenced in November, Rose ceased doing any work in the shop. Income remaining after expenses was put in an account in Rose’s name and such funds were used for the Leases’ living expenses. Rose filed no tax return. Lease conceded being very familiar with operation of the shop and admitted that he could have received profits from it. He was its “best customer,” he said, if not its most profitable one. Similarly with the rooming house, Lease paid for its acquisition in 1944, although title formally was in Rose’s name. As to that formality, the jury had ample reason to conclude that Lease had put virtually all of his property in the name of either his wife or his sister; he disavowed ownership when income was concerned although he was quick to claim it when losses or deductions were involved. As he put it with respect to losses on property held in Rose’s name, “the fact that it was in her name didn’t make a division as to who owned it and who didn’t own it.” The jury apparently agreed and treated all the property as owned by Lease. As for the law, there are really two questions. Was it error to reject Lease’s requested instructions, and was it error to charge as Judge Levet did. Lease submitted 35 requests. None seems to have referred to the rooming house, and only two dealt with the question now raised about the coffee shop. Most of the 35 were “refused except as charged.” Lease merely took a general exception to all refusals to charge. Even if that were adequate to preserve his objections, see Sears v. Southern Pac. Co., 313 F.2d 498, 505 (9th Cir. 1963), we would find no error. It is well settled that “[a] party cannot claim error in the refusal to give a requested instruction which is not entirely correct, or which it is not possible to give without qualification, or which is so framed as to be capable of being misunderstood.” Cherry v. Stedman, 259 F.2d 774, 777-78 (8th Cir. 1958). That Lease’s requests were too broad is seen from the virtual concession in Lease’s brief that the formalities of ownership or legal title are not always controlling, particularly in a family situation. See, e. g., Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940); Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670 (1945); Lusthaus v. Commissioner of Internal Revenue, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679 (1945). Therefore Judge Levet was on sound ground in denying the requests except as charged. Looking to the charge, the jury was properly told that it must consider only Lease’s income, that is, income derived by Lease alone. No objection was made to this portion of the charge, which is sufficient reason for us to refrain from considering the point. See, e. g., John Fabick Tractor Co. v. Lizza & Sons, Inc., 298 F.2d 63, 65 (2d Cir. 1962). See generally 5 Moore, Federal Practice ¶¶ 51.-02-.04 (2d ed. 1951). An objection before the case went to the jury would have enabled Lease to point out the alleged deficiencies now claimed to exist, and would have allowed the trial court to provide amplification, if caution so dictated. Cf. Pauling v. News Syndicate Co., 335 F.2d 659, 669 (2d Cir. 1964). Here that was not possible. Ivory-tower precision cannot be expected of time-pressed trial courts, especially as to one small point among many. In any case, Lease has not sufficiently demonstrated that the charge given did not effectively embody a proper legal standard in the context of this case. The cases cited by Lease are so factually distinguishable as to be inapposite, as Judge Levet observed in ruling on the post-trial motions. We see no basis for exercising our extraordinary discretionary power to consider objections to the charge not adequately brought home to the trial court. See McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 1962); Curko v. William Spencer & Son Corp., 294 F.2d 410, 412-14 (2d Cir. 1961), cf. Troupe v. Chicago, D. & G. B. Transit Co., 234 F.2d 253, 259-60 (2d Cir. 1956). Compare Horton v. Moore-McCormack Lines, Inc., 326 F.2d 104, 108 (2d Cir. 1964). Lease also contends that the Government failed to prove by clear and convineing evidence that he intentionally filed a false return or that he failed to file a return with the purpose of avoiding taxes. There is no question that the jury was properly charged on these questions. Lease only attacks the sufficiency of the evidence. We are persuaded that the jury could view all the evidence as clearly and convincingly establishing fraud and failure to file. Among other things the jury could have found that Lease failed to keep records, that he handled his affairs in such a way as to avoid the necessity of keeping records, that his business experience did not excuse these practices, that he purchased property and held it in the names of other people, that he overstated his cordwood costs, that he knew he was receiving income subject to tax, and that he failed to report income from particular sources. See Cirillo v. Commissioner, 314 F.2d 478, 482-83 (3rd Cir. 1963); Agnellino v. Commissioner of Internal Revenue, 302 F.2d 797, 801 (3rd Cir. 1962); Clark v. Commissioner of Internal Revenue, 266 F.2d 698, 718 (9th Cir. 1959); Powell v. Granquist, 252 F.2d 56, 59-62 (9th Cir. 1958); Comeaux v. Commissioner of Internal Revenue, 10 T.C. 201, aff’d sub nom. Cohen v. Commissioner of Internal Revenue, 176 F.2d 394, 401 (10th Cir. 1949); Chesterfield Textile Corp. v. Commissioner of Internal Revenue, 29 T.C. 651, 654 (1958); cf. Spies v. United States, 317 U.S. 492, 500, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Eley, 314 F.2d 127, 132 (7th Cir. 1963). Finding none of Lease’s claims meritorious, we affirm. . By an instrument executed in 1958, the statute of limitations was extended to December 31, 1962. The complaint also named stakeholder defendants who held property to which the liens being foreclosed had attached. Application for a preliminary injunction restraining transfer of Lease’s assets by the stakeholders was withdrawn and the action against them discontinued when they placed the property in escrow pending the outcome of this action. . Had it considered the issue it would probably at that time have put its answer in terms of burden of proof, rather than burden of coming forward and burden of persuasion. We realize that in reversing on other grounds the Court regarded as correctly presenting the law a charge quite similar to the one before us; however, we see even more substantial grounds for reaching the same conclusion than that cursory approval. . Thus, Wickwire v. Reincke, 275 U.S. 101, 105, 48 S.Ct. 43, 72 L.Ed. 184 (1927), held only that proof of the estate tax assessment was insufficient to keep an estate that had introduced considerable evidence from getting to the jury. By statute the burden of proof there was specifically on the estate. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933), said only that the Commissioner’s ruling that taxpayer’s expenses were capital and not ordinary and necessary “has the support of a presumption of correctness, and the petitioner has the burden of proving it to be wrong.” It is stated in Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 290, 79 L.Ed. 623 (1935), that in “an action to recover taxes paid * * * the burden was on the plaintiff, in order to establish a basis for a judgment in his favor. * * * For like reason the burden is upon the taxpayer to establish the amount of a deduction claimed.” But the case held only that the taxpayer need not prove the correct amount of the tax in order to prove the Commissioner’s determination erroneous. Compare Whitney v. Dresser, 200 U.S. 532, 534, 26 S.Ct. 316, 50 L.Ed. 584 (1906); 3 Collier, Bankruptcy ¶57.13, at 209 (Moore 14th ed. 1964). . See, e.g., Bowers v. American Sur. Co., 30 F.2d 244, 245 (2d Cir.), cert. denied, 279 U.S. 865, 49 S.Ct. 480, 73 L.Ed. 1003 (1929) (collection); Plisco v. United States, 111 U.S.App.D.C. 177, 306 F.2d 784, 786 (D.C.Cir.1962), cert. denied, 371 U.S. 948, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) (same); cf. Austin Co. v. Commissioner of Internal Revenue, 35 F.2d 910, 912 (6th Cir. 1929), cert. denied, 281 U.S. 735, 50 S.Ct. 249, 74 L.Ed. 1150 (1930) (deficiency); Jones v. Commissioner of Internal Revenue, 39 F.2d 550, 552 (7th Cir. 1930) (same); Public Opinion Publishing Co. v. Jensen, 76 F.2d 494, 495 (8th Cir. 1935) (refund). See also Paschal v. Blieden, 127 F.2d 398, 401 (8th Cir. 1942) (bankruptcy). . See, e.g., Becker v. United States, 21 F.2d 1003, 1004 (5th Cir. 1927) (collection); Crook v. United States, 30 F.2d 917, 918 (5th Cir. 1929) (same); United States v. Strebler, 313 F.2d 402, 403-04 (8th Cir. 1963) (same); cf. Public Opinion Publishing Co. v. Jensen, supra (refund). See also Paschal v. Blieden supra (bankruptcy). . See, e.g., Plisco v. United States, supra (collection); Price v. United States, 335 F.2d 671, 677-78 (5th Cir. 1964) (same); cf. Goldberg v. Commissioner of Internal Revenue, 239 F.2d 316, 319 (5th Cir. 1956) (deficiency); Fuller v. Commissioner of Internal Revenue, 313 F.2d 73, 75-76 (6th Cir. 1963) (same); Veino v. Fahs, 257 F.2d 364, 367 (5th Cir. 1958) (refund). See also Paschal v. Blieden, supra (bankruptcy). . See, e.g., Becker v. United States, supra (collection); cf. Austin v. Commissioner of Internal Revenue, supra (deficiency); Jones v. Commissioner of Internal Revenue, supra (same); Anderson v. Commissioner of Internal Revenue, 250 F.2d 242, 249 (5th Cir. 1957), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 844 (1958) (same). See also Paschal v. Blieden, supra (bankruptcy). . In attacking state tax assessments as unconstitutional, the taxpayer must show the assessment to be arbitrary by “dear and convincing evidence.” In re Lang Body Co., 92 F.2d 338, 341 (6th Cir. 1937), cert. denied sub nom. Hipp v. Boyle, 303 U.S. 637, 58 S.Ct. 522, 82 L.Ed. 1097 (1938). . Molitor was actually not the taxpayer, but the employer. However, his liability for the statutory penalty, see Int.Rev. Code of 1954 § 6672, is treated like the liability of a taxpayer. See 337 F.2d at 924. . On the other hand, the taxpayer is in an equally advantageous position as to proof of fraud, whether the action is one to review a deficiency, Int.Rev.Code of 1954 § 7454, to recover a refund, see Paddock v. United States, 280 F.2d 563 (2d Cir. 1960), or to collect a tax liability, as here. In all such proceedings, the Government must prove fraud by clear and convincing evidence. . There is no question in this case about the propriety of the charge that the taxpayer need only establish that the assessment is erroneous, and the Government must prove the precise amount owing. In a refund case, the rule is apparently otherwise, the taxpayer being required to prove the amount of the refund due. See Compton v. United States, 334 F.2d 212, 216 (4th Cir. 1964); 10 Mertens, Federal Income Taxation § 58A.35 n. 15 (Zimet rev. 1964). Compare United States v. Sampsell, 224 F.2d 721, 723 (9th Cir. 1955) (bankruptcy). . In a criminal ease the Government, of course, has the traditional burden of persuasion beyond a reasonable doubt, and a mere assessment cannot there play the same role in proving the Government’s ease. See Price v. United States, supra, 335 F.2d at 677. . We find no merit in Lease’s additional argument that the presumption of correctness exists only with respect to performance of official acts by adjudicative officers and should, therefore, be inapplicable here because the actual investigation leading to the assessment was done by prosecuting officers. The basis of the presumption — that governmental officers act reasonably and according to law — would not normally be more or less applicable to any particular type of governmental conduct. Moreover, the presumption is rooted in Rindskopf which, like this case, involved an assessment by the tax collector, who is not an adjudicative officer. The actual source of his information, in any case, should be quite immaterial to the existence of the presumption, although possibly it could be helpful in rebutting the presumption. Indeed, that was a large part of Lease’s rather successful defense here. . After the jury’s verdict, Lease moved for a directed verdict, judgment notwithstanding the verdict, and a new trial on the basis, in part, of the allegedly erroneous treatment of the coffee shop income. The evidence was sufficient for the jury to conclude that Lease had income from the sources in question. Not being required to conclude that the assessment was erroneous in that respect, the jury could also accept the accuracy of the amount of the assessed income. Compare Solomon v. United States, 276 F.2d 669, 673-74 (6th Cir. 1960); cf. Lilly v. Grand Trunk W. R.R., 317 U.S. 481, 488-89, 63 S.Ct. 647, 87 L.Ed. 411 (1943).

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.

Leonard W. GUNZBURG, d/b/a Manners Jewelers, Appellant, v. Ingard JOHANNESEN, Trustee in Bankruptcy, et al., Appellees. No. 19283. United States Court of Appeals Fifth Circuit. March 1, 1962. Rehearing Denied April 3, 1962. F. Irvin Dymond, New Orleans, La., for appellant. Louis R. Lucas, Asst. U. S. Atty., Edward M. Heller, New Orleans, La., for appellees. Before RIVES, BROWN and WISDOM, Circuit Judges. PER CURIAM. This is another phase of the activities relating to the bankruptcy of Leonard W. Gunzburg. Frellsen v. Johannessen, 5 Cir., 1961, 289 F.2d 925; Gunzburg v. United States, 5 Cir., 1962, 297 F.2d 829 [No. 18727, January 12, 1962], Presented here is the Bankrupt’s contention that the District Court erred in approving the Referee’s denial of discharge. After a lengthy hearing on a record which is here over 1,000 pages long, the Referee denied discharge for the failure of the Bankrupt (1) “ * * * to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained * * * ” and (2) “ * * * to explain satisfactorily * * * losses of assets or deficiency of assets to meet his liabilities * * § 14, sub. c(2) (7), 11 U.S.C.A. § 32, sub. c(2) (7). To the extent that these conclusions rested on findings of fact, they have almost a triple insulation. First, there being overwhelming evidence showing the existence of “ * * * reasonable grounds for believing that the bankrupt has committed * * * ” the two actions specified above, the Bankruptcy Act turns the table by providing that upon such a showing “ * * * then the burden of proving that he has not committed any of such acts shall be upon the bankrupt.” § 14, sub. c, 11 U.S.C.A. § 32, sub. c. This is more than the burden of going forward with the evidence. For “ * * * the bankrupt now has the risk of ultimately persuading the Court that the allegations in the specifications are untrue. If the evidence is in a state of substantial equilibrium, the discharge must be denied since the bankrupt has failed to carry his burden of proof.” 1 Collier, Bankruptcy § 14.12, at 1292-93 (footnotes omitted). In a figure mdigenous to a financial foundering, “ * * * once a prima facie case appears, the laboring oar passes to his hands and he must bring the boat to shore.” Federal Provision Co. v. Ershowsky, 2 Cir., 1938, 94 F.2d 574, 575. Second, the terms of General Order 47 are explicit. The Referee is ordinarily to make, as he did here, “his findings of fact and conclusions of law.” And when so done, “the judge shall accept his findings of fact unless clearly erroneous,” General Order 47, 11 U.S.C.A, following section 53. 2 Collier, Bankruptcy § 39.-16, at 1473. Third, we review the action of the District Judge whose affirmance of the Referee’s order brings into play for application to this stage of the judicial proceeding principles akin to the “clearly erroneous” concept. Cf. United States v. Twin Cities Power Company of Georgia, 5 Cir., 1958, 253 F.2d 197. There was evidence which amply warranted the Referee’s finding that the Bankrupt had not satisfactorily overcome the piima facie showing. Indeed, there was quite enough to ^ warrant the Referee s affirmative finding that the books and records were inadequate in serious and substantial respects, and that the Bankrupt had failed to explain satisfactorily the diminution in assets exceeding $100,000. It is equally clear that as to the sufficiency of the books the Referee evaluated the facts in the light of the proper legal standards. See In re Under-hill, 2 Cir., 1936, 82 F.2d 258; Nix v. Sternberg, 8 Cir., 1930, 38 F.2d 611; International Shoe Co. v. Lewine, 5 Cir., 1934, 68 F.2d 517; In Re Marx, 7 Cir., 1942, 125 F.2d 335; In Re Leichter, 3 Cir., 1952,197 F.2d 955; Hedges v. Bushnell, 10 Cir., 1939, 106 F.2d 979. So it was also as to loss of assets. In Re Shapiro & Ornish, N.D.Tex.1929, 37 F.2d 403, affirmed 5 Cir., 37 F.2d 407. 1 Collier, Bankruptcy § 14.59, at 1401. Affirmed

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

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