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FRETWELL v. GILLETTE SAFETY RAZOR CO. No. 4506. Circuit Court of Appeals, Fourth Circuit. Oct. 2, 1939. Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge. Israel H. Perskin, of New York City (George E. Bendall, of Danville, Va., and Herbert J. Jacobi, of New York City, on the brief), for appellant. Henry R. Ashton, of New York City (E. Walton Brown, of Danville, Va., on the brief), for appellee. PARKER, Circuit Judge. This is an appeal by defendant in a suit instituted by a manufacturer of safety razor blades to enjoin defendant, a patentee, from prosecuting an infringement suit against a drug company selling the blades. Defendant asserted a counterclaim to recover damages for alleged breach of contract on the part of plaintiff in appropriating the idea of a locked safety razor disclosed by defendant. The District Court entered a decree enjoining defendant from prosecuting the suit against the drug company and dismissing the counterclaim, and defendant has appealed. Defendant is the owner of patent No. 1,467,930, covering a locked safety razor, claim 4 of which covers a perforated safety razor blade. In a suit instituted by defendant against plaintiff in the United States District Court for the District of Delaware it was held that this claim was not infringed by blades of plaintiff’s manufacture. Fretwell v. Gillette Safety Razor Co., D.C., 6 F.Supp. 818, affirmed, 3 Cir., 78 F.2d 868. Defendant later instituted an infringement suit in the United States District Court for the Western District of Virginia against the Peoples Service Drug Stores, a Virginia corporation, to enjoin the sale of plaintiff’s blades; and this suit was thereupon instituted by plaintiff to enjoin the prosecution of that suit. The defense is based upon the admitted fact that the Peoples Service Drug Stores does not purchase the blades alleged to infringe from plaintiff, but from the Peoples Drug Stores, a Maryland corporation, although it is admitted also that the latter corporation purchases from plaintiff and that Peoples Service Drug Stores is a wholly owned subsidiary of that corporation. We think that the court below was clearly right in granting the injunction. Kessler v. Eldred, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065; General Chemical Co. v. Standard Wholesale Phosphate & Acid Works, 4 Cir., 101 F.2d 178; United States Galvanizing & Plating Equipment Corporation v. Hanson-Van Winkle-Munning Co., 4 Cir., 104 F.2d 856. Quite apart from the close relationship existing between the corporation sued by defendant and the corporation actually purchasing from plaintiff, we think it clear that the rule laid down in Kessler v. Eldred, supra, can be invoked by plaintiff to protect its business against suits by defendant charging infringement with respect to blades of plaintiff’s manufacture, whether instituted against persons purchasing directly from plaintiff or not. The Delaware suit adjudicated the right of plaintiff to manufacture and sell its blades free of interference by defendant; and it became the duty of defendant, upon the rendition of the decree therein, “to recognize and yield to that right everywhere and always.” Infringement suits against retail dealers in the blades who purchase from plaintiff’s customers would interfere with that right quite as effectively as suits against the customers themselves, and plaintiff is entitled to have such suits enjoined to protect it in the enjoyment of the right which has been adjudicated. The argument is made that the rule of Kessler v. Eldred, supra, extends only to the protection of suits against customers and that, since the Peoples Service Drug Stores does not purchase directly from plaintiff, it is not technically a customer of plaintiff and hence does not come within the rule. The determinative consideration in applying the rule, however, is not the fact that the person sued is a customer of plaintiff but that the suit will interfere with a right of plaintiff which has been adjudicated. ' As we pointed out in General Chemical Co. v. Standard Wholesale Phosphate & Acid Works, supra [101 F.2d 182] the effect of the adjudication of non-infringement in favor of the manufacturer is to estop the patentee from asserting infringement with respect to sale or use of identical articles of his manufacture on the ground that, “having had his day in court on the question as to whether the product of the manufacturer infringes, he should in all subsequent litigation be bound by the judgment rendered against him with respect to that question.” Since, therefore, the patentee is estopped to assert infringement with respect to the product of the manufacturer held not to infringe, and since such suit against a retailer would constitute an interference with the manufacturer’s business, there can be no question but that such suit should be enjoined at the suit of the manufacturer. On the counterclaim, it appears that in the year 1914 .defendant disclosed to plaintiff the idea of a locked razor for use in such institutions as jails, hospitals and insane asylums. It is unnecessary to go into the circumstances attending this disclosure, as it is not shown that plaintiff made any use of the idea or manufactured any razors of that character except about half a'dozen specially manufactured in the year 1921, three of which were sold by plaintiff to defendant. Defendant sought discovery by way of interrogatories, and two officers of plaintiff’s manufacturing plant were examined in open court; but there was no showing of any other manufacture. Under such circumstances, we agree with the court below that there was nothing to support the counterclaim and no basis upon which an accounting could have been ordered. The burden was on defendant to establish that there was something due him before he was entitled to an accounting. Oskaloosa Savings Bank v. Mahaska County State Bank, 205 Iowa 1351, 219 N.W. 530, 60 A.L.R. 1204; Gould v. Burrow, 117 Ga. 458, 43 S.E. 702; 1 C.J.S., Accounting, § 39, page 677. Nothing need be added to what was said by the judge below in dealing with this aspect of the case. And since the counterclaim was not filed until 1937, approximately sixteen years after the discovery of the alleged use of the idea disclosed, we agree that the right to assert the claim is barred by laches. The statute of Virginia, the state of the forum, prescribes a limitation of five years for suits upon contracts in writing and three years for suits upon other contracts. Code of 1924, sec. 5810. And it is well settled that federal courts of equity, in the enforcement of legal rights, will ordinarily follow state statutes of limitations in applying the doctrine of laches. .Pomeroy’s Equity Jurisprudence, 4th ed. vol. 4, sec. 1441; Benedict v. City of New York, 250 U.S. 321, 327, 39 S.Ct. 476, 63 L.Ed. 1005; Godden v. Kimmell, 99 U.S. 201, 210, 25 L.Ed. 431; Hall v. Ballard, 4 Cir., 90 F.2d 939, 945; Gross v. Tierney, 4 Cir., 55 F.2d 578, 583; Early v. City of Helena, 8 Cir., 87 F.2d 831, 832; Kelley v. Boettcher, 8 Cir., 85 F. 55, 62. The rule is well stated by the late Judge Walter H. Sanborn in the case last cited as follows: “In the application of the doctrine of laches, the settled rule is that courts of equity are not bound by, but that they usually act or refuse to act in analogy to, the statute of limitations relating to actions at law of like character. * * * The meaning of this rule is that, under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after the time fixed by the analogous statute of limitations at law; but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. * * * When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the bill or by his answer, that extraordinary circumstances exist which require the application of the doctrine of laches; and, when such a suit is brought after the statutory time has elapsed, the burden is on the complainant to show, by suitable averments in his bill, that it would be inequitable to apply it to his case.” There is nothing in the pleadings of defendant, or in the evidence,,showing that it would be inequitable to apply to the counterclaim the provisions of the Virginia statute of limitations and to hold it barred fay laches because not asserted within the period allowed by that statute. For the reasons staled, the decree appealed from will he affirmed. 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.

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CANADA PACKERS, LTD. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al. No. 11. Argued November 8-9, 1966. Decided December 5, 1966. Charles B. Myers argued the cause and filed briefs for petitioner. Harvey Huston argued the cause and filed a brief for respondents. Louis F. Claiborne, by special leave of Court, argued the cause for the United States, as amicus curiae. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner and Robert B. Hummel. Leonard S. Goodman argued the cause for the Interstate Commerce Commission, as amicus curiae, urging reversal. With him on the brief was Robert W. Ginnane. Per Curiam. This case concerns the power of the Interstate Commerce Commission in reparations proceedings to determine the reasonableness of a joint through international freight rate. The American railroad respondents and their connecting carriers delivered 131 cars of potash from Carlsbad and Loving, New Mexico, to petitioner’s plants in Canada. Petitioner was charged and it paid a joint through international rate which it later attacked as unreasonable in a reparations proceeding before the Commission. Finding the rate to be unreasonable, the Commission ordered reparations in the amount of the difference between the rate charged and the rate which would have been reasonable at the time. Respondents refused to pay part of this amount on the theory that it represented an alleged overcharge for the Canadian leg of the trip over which the Commission had no jurisdiction under the applicable statute. This action followed in the District Court to collect the unpaid amount. The District Court found for the petitioner, the Court of Appeals reversed, 342 F. 2d 563, and we granted certiorari, 383 U. S. 906. The provisions of the Interstate Commerce Act apply not only to transportation within the United States but to transportation from or to any place in the United States to or from a foreign country “but only insofar as such transportation . . . takes place within the United States.” 24 Stat. 379, as amended, 49 U. S. C. § 1 (1). The Court of Appeals held that the Commission in this case was without jurisdiction to determine the reasonableness of freight rates for transportation taking place in Canada and hence was without power to order reparations with respect to the Canadian portion of the trip. The respondents, and the United States, the latter differing with the Commission in this case, take a similar view. As an original matter there might well be considerable merit in this position. But the contrary view of the Commission is one of long standing, see Black Horse Tobacco Co. v. Illinois Central R. Co., 17 I. C. C. 588 (1910), and Citizens Gas & Coke Utility v. Canadian Nat. Rys., 325 I. C. C. 527 (1965), and one which this Court has upheld on more than one occasion. News Syndicate Co. v. New York Central R. Co., 275 U. S. 179, squarely held that where a carrier performing transportation within the United States enters into a joint through international rate covering transportation in the United States and abroad, the Commission does have jurisdiction to determine the reasonableness of the joint through rate and to order the carrier performing the domestic service to pay reparations in the amount by which that rate is unreasonable. Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, and Great Northern R. Co. v. Sullivan, 294 U. S. 458, are in accord. The Court of Appeals and respondents would distinguish these cases, but we think the differences relied on are insubstantial. Indeed, the United States quite candidly requests that we reconsider these older cases and so narrow the powers of the Commission with respect to joint through international rates. It is not shown, however, that the long-standing construction of the statute by both the Commission and this Court has produced any particularly unfortunate consequences and Congress, which could easily change the rule, has not yet seen fit to intervene. In these circumstances, we shall not disturb the construction previously given the statute by this Court, and the decision of the Court of Appeals must be Reversed.

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?

LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, et al. v. CASEY et al. No. 94-1511. Argued November 29, 1995 Decided June 24, 1996 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined, and in Parts I and III of which Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 364. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg and Breyer, JJ., joined, post, p. 393. Stevens, J., filed a dissenting opinion, post, p. 404. Grant Woods, Attorney General of Arizona, argued the cause for petitioners. With him on the briefs were Daniel P. Struck, David C. Lewis, Eileen J. Dennis, Rex E. Lee, Carter G. Phillips, Mark D. Hopson, C. Tim Delaney, Rebecca White Berch, and Thomas J. Dennis. Elizabeth Alexander argued the cause for respondents. With her on the brief were Ayesha Khan, Margaret Winter, Alvin J. Bronstein, Alice L. Bendheim, and Steven R. Shapiro Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel Lungren, Attorney General of California, Peter J. Siggins, Senior Assistant Attorney General, Morris Lenk, Senior Supervising Attorney General, and Karl S. Mayer and Bruce M. Slavin, Deputy Attorneys General, by Garland Pinkston, Jr., Acting Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Richard Blumen-thal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Pamela Carter of Indiana, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Joe Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Dennis C. Vacco of New York, Betty Montgomery of Ohio, Theodore R. Kulongoski of Oregon, Walter W. Cohen of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Jan Graham of Utah, James S. Gilmore III of Virginia, Christine 0. Gregoire of Washington, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for the National Conference of State Legislatures et al. by Richard Ruda and Charles Rothfeld; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the Washington Legal Foundation et al. by Charles J. Cooper, Michael A. Carvin, Michael W. Kirk, Daniel J. Popeo, and Paul D. Kamenar. Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Alan Jenkins, Steven H. Rosenbaum, Louise A. Lerner, and Rebecca K. Troth; for the Legal Aid Bureau, Inc., by Stuart R. Cohen and Jeffery C. Taylor; for the Mexican American Legal Defense and Educational Fund et al. by David Fernandez and Michael R. Cole; for North Carolina Prisoner Legal Services, Inc., by Richard E. Gir-oux; for Prison Legal Services of Michigan by Sandra L. Girard; and for Prisoners in Northern California by Sanford Jay Rosen, Amitai Schwartz, and Donald Specter. Justice Scalia delivered the opinion of the Court. In Bounds v. Smith, 430 U. S. 817 (1977), we held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id., at 828. Petitioners, who are officials of the Arizona Department of Corrections (ADOC), contend that the United States District Court for the District of Arizona erred in finding them in violation of Bounds, and that the court’s remedial order exceeded lawful authority. I Respondents are 22 inmates of various prisons operated by ADOC. In January 1990, they filed this class action “on behalf of all adult prisoners who are or will be incarcerated by the State of Arizona Department of Corrections,” App. 22, alleging that petitioners were “depriving [respondents] of their rights of access to the courts and counsel protected by the First, Sixth, and Fourteenth Amendments,” id., at 34. Following a 3-month bench trial, the District Court ruled in favor of respondents, finding that “[prisoners have a constitutional right of access to the courts that is adequate, effective and' meaningful,” 834 F. Supp. 1553, 1566 (1992), citing Bounds, supra, at 822, and that “[ADOC’s] system fails to comply with constitutional standards,” 834 F. Supp., at 1569. The court identified a variety of shortcomings of the ADOC system, in matters ranging from the training of library staff, to the updating of legal materials, to the availability of photocopying services. In addition to these general findings, the court found that two groups of inmates were particularly affected by the system’s inadequacies: “[l]ockdown prisoners” (inmates segregated from the general prison population for disciplinary or security reasons), who “are routinely denied physical access to the law library” and “experience severe interference with their access to the courts,” id., at 1556; and illiterate or non-English-speaking inmates, who do not receive adequate legal assistance, id., at 1558. Having thus found liability, the court appointed a Special Master “to investigate and report about” the appropriate relief — that is (in the court’s view), “how best to accomplish the goal of constitutionally adequate inmate access to the courts.” App. to Pet. for Cert. 87a. Following eight months of investigation, and some degree of consultation with both parties, the Special Master lodged with the court a proposed permanent injunction, which the court proceeded to adopt, substantially unchanged. The 25-page injunctive order, see id., at 61a-85a, mandated sweeping changes designed to ensure that ADOC would “provide meaningful access to the Courts for all present and future prisoners,” id., at 61a. It specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minimal educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates (to be prepared by persons appointed by the Special Master but funded by ADOC), and similar matters. Id., at 61a, 67a, 71a. The injunction addressed the court’s concern for lockdown prisoners by ordering that “ADOC prisoners in all housing areas and custody levels shall be provided regular and comparable visits to the law library,” except that such visits “may be postponed on an individual basis because of the prisoner’s documented inability to use the law library without creating a threat to safety or security, or a physical condition if determined by medical personnel to prevent library use.” Id., at 61a. With respect to illiterate and non-English-speaking inmates, the injunction declared that they were entitled to “direct assistance” from lawyers, paralegals, or “a sufficient number of at least minimally trained prisoner Legal Assistants”; it enjoined ADOC that “[particular steps must be taken to locate and train bilingual prisoners to be Legal Assistants.” Id., at 69a-70a. Petitioners sought review in the Court of Appeals for the Ninth Circuit, which refused to grant a stay prior to argument. We then stayed the injunction pending filing and disposition of a petition for a writ of certiorari. 511 U. S. 1066 (1994). Several months later, the Ninth Circuit affirmed both the finding of a Bounds violation and, with minor exceptions not important here, the terms of the injunction. 48 F. 3d 1261 (1994). We granted certiorari, 514 U. S. 1126 (1995). II Although petitioners present only one question for review, namely, whether the District Court’s order “exceeds the constitutional requirements set forth in Bounds,” Brief for Petitioners (i), they raise several distinct challenges, including renewed attacks on the court’s findings of Bounds violations with respect to illiterate, non-English-speaking, and lock-down prisoners, and on the breadth of the injunction. But their most fundamental contention is that the District Court’s findings of injury were inadequate to justify the finding of systemwide injury and hence the granting of sys-temwide relief. This argument has two related components. First, petitioners claim that in order to establish a violation of Bounds, an inmate must show that the alleged inadequacies of a prison’s library facilities or legal assistance program caused him “actual injury” — that is, “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.” Brief for Petitioners 30. Second, they claim that the District Court did not find enough instances of actual injury to warrant systemwide relief. We agree that the success of respondents’ systemic challenge was dependent on their ability to show widespread actual injury, and that the court’s failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid. A The requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches. See Allen v. Wright, 468 U. S. 737, 750-752 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-476 (1982). It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur. Of course, the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm. But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. If — to take another example from prison life — a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care, see Estelle v. Gamble, 429 U. S. 97, 103 (1976), simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons. The foregoing analysis would not be pertinent here if, as respondents seem to assume, the right at issue — the right to which the actual or threatened harm must pertain — were the right to a law library or to legal assistance. But Bounds established no such right, any more than Estelle established a right to a prison hospital. The right that Bounds acknowledged was the (already well-established) right of access to the courts. E. g., Bounds, 430 U. S., at 817, 821, 828. In the cases to which Bounds traced its roots, we had protected that right by prohibiting state prison officials from actively interfering with inmates’ attempts to prepare legal documents, e. g., Johnson v. Avery, 393 U. S. 483, 484, 489-490 (1969), or file them, e. g., Ex parte Hull, 312 U. S. 546, 547-549 (1941), and by requiring state courts to waive filing fees, e. g., Burns v. Ohio, 360 U. S. 252, 258 (1959), or transcript fees, e. g., Griffin v. Illinois, 351 U. S. 12, 19 (1956), for indigent inmates. Bounds focused on the same entitlement of access to the courts. Although it affirmed a court order requiring North Carolina to make law library facilities available to inmates, it stressed that that was merely “one constitutionally acceptable method to assure meaningful access to the courts,” and that “our decision here... does not foreclose alternative means to achieve that goal.” 430 U. S., at 830. In other words, prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Id., at 825. Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense. That would be the precise analog of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary. Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone,” id., at 823 (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint. Although Bounds itself made no mention of an actual-injury requirement, it can hardly be thought to have eliminated that constitutional prerequisite. And actual injury is apparent on the face of almost all the opinions in the 35-year line of access-to-courts cases on which Bounds relied, see id., at 821-825. Moreover, the assumption of an actual-injury requirement seems to us implicit in the opinion’s statement that “we encourage local experimentation” in various methods of assuring access to the courts. Id., at 832. One such experiment, for example, might replace libraries with some minimal access to legal advice and a system of court-provided forms such as those that contained the original complaints in two of the more significant inmate-initiated cases in recent years, Sandin v. Conner, 515 U. S. 472 (1995), and Hudson v. McMillian, 503 U. S. 1 (1992) — forms that asked the inmates to provide only the facts and not to attempt any legal analysis. We hardly think that what we meant by “experimenting” with such an alternative was simply announcing it, whereupon suit would immediately lie to declare it theoretically inadequate and bring the experiment to a close. We think we envisioned, instead, that the new program would remain in place at least until some inmate could demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded. It must be acknowledged that several statements in Bounds went beyond the right of access recognized in the earlier cases on which it relied, which was a right to bring to court a grievance that the inmate wished to present, see, e. g., Ex parte Hull, 312 U. S., at 547-548; Griffin v. Illinois, 351 U. S., at 13-16; Johnson v. Avery, 393 U. S., at 489. These statements appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court. See Bounds, 430 U. S., at 825-826, and n. 14. These elaborations upon the right of access to the courts have no antecedent in our pre-Bounds cases, and we now disclaim them. To demand the conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires. Finally, we must observe that the injury requirement is not satisfied by just any type of frustrated legal claim. Nearly all of the access-to-courts cases in the Bounds line involved attempts by inmates to pursue direct appeals from the convictions for which they were incarcerated, see Douglas v. California, 372 U. S. 353, 354 (1963); Burns v. Ohio, 360 U. S., at 253, 258; Griffin v. Illinois, supra, at 13, 18; Cochran v. Kansas, 316 U. S. 255, 256 (1942), or habeas petitions, see Johnson v. Avery, supra, at 489; Smith v. Bennett, 365 U. S. 708, 709-710 (1961); Ex parte Hull, supra, at 547-548. In Wolff v. McDonnell, 418 U. S. 539 (1974), we extended this universe of relevant claims only slightly, to “civil rights actions” — i. e., actions under 42 U. S. C. § 1983 to vindicate “basic constitutional rights.” 418 U. S., at 579. Significantly, we felt compelled to justify even this slight extension of the right of access to the courts, stressing that “the demarcation line between civil rights actions and ha-beas petitions is not always clear,” and that “[i]t is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ.” Ibid. The prison law library imposed in Bounds itself was far from an all-subject facility. In rejecting the contention that the State’s proposed collection was inadequate, the District Court there said: “This Court does not feel inmates need the entire U. S. Code Annotated. Most of that code deals with federal laws and regulations that would never involve a state prisoner.... “It is also the opinion of this Court that the cost of N. C. Digest and Modern Federal Practice Digest will surpass the usefulness of these research aids. They cover mostly areas not of concern to inmates.” Supplemental App. to Pet. for Cert. in Bounds v. Smith, O. T. 1976, No. 75-915, p. 18. In other words, Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. B Here the District Court identified only two instances of actual injury. In describing ADOC’s failures with respect to illiterate and non-English-speaking prisoners, it found that “[a]s a result of the inability to receive adequate legal assistance, prisoners who are slow readers have had their cases dismissed with prejudice,” and that “[ojther prisoners have been unable to file legal actions.” 834 F. Supp., at 1558. Although the use of the plural suggests that several prisoners sustained these actual harms, the court identified only one prisoner in each instance. Id., at 1558, nn. 37 (lawsuit of inmate Bartholic dismissed with prejudice), 38 (inmate Harris unable to file a legal action). Petitioners contend that “any lack of access experienced by these two inmates is not attributable to unconstitutional State policies,” because ADOC “has met its constitutional obligations.” Brief for Petitioners 32, n. 22. The claim appears to be that all inmates, including the illiterate and non-English speaking, have a right to nothing more than “physical access to excellent libraries, plus help from legal assistants and law clerks.” Id., at 35. This misreads Bounds, which as we have said guarantees no particular methodology but rather the conferral of a capability — the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts. When any inmate, even an illiterate or non-English-speaking inmate, shows that an actionable claim of this nature which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because this capability of filing suit has not been provided, he demonstrates that the State has failed to furnish “adequate law libraries or adequate assistance from persons trained in the law,” Bounds, 430 U. S., at 828 (emphasis added). Of course, we leave it to prison officials to determine how best to ensure that inmates with language problems have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement. But it is that capability, rather than the capability of turning pages in a law library, that is the touchstone. C Having rejected petitioners’ argument that the injuries suffered by Bartholic and Harris do not count, we turn to the question whether those injuries, and the other findings of the District Court, support the injunction ordered in this case. The actual-injury requirement would hardly serve the purpose we have described above — of preventing courts from undertaking tasks assigned to the political branches— if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration. The remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established. See Missouri v. Jenkins, 515 U. S. 70, 88, 89 (1995) (“[T]he nature of the... remedy is to be determined by the nature and scope of the constitutional violation” (citation and internal quotation marks omitted)). This is no less true with respect to class actions than with respect to other suits. “That a suit may be a class action... adds nothing to the question of standing, for even named plaintiffs who represent a class'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ ” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976), quoting Warth v. Seldin, 422 U. S. 490, 502 (1975). The general allegations of the complaint in the present case may well have sufficed to claim injury by named plaintiffs, and hence standing to demand remediation, with respect to various alleged inadequacies in the prison system, including failure to provide adequate legal assistance to non-English-speaking inmates and lockdown prisoners. That point is irrelevant now, however, for we are beyond the pleading stage. “Since they are not mere pleading requirements, but rather an- indispensable part of the plaintiff’s case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (citations and internal quotation marks omitted). After the trial in this case, the court found actual injury on the part of only one named plaintiff, Bartholic; and the cause of that injury — the inadequacy which the suit empowered the court to remedy — was failure of the prison to provide the special services that Bartholic would have needed, in light of his illiteracy, to avoid dismissal of his case. At the outset, therefore, we can eliminate from the proper scope of this injunction provisions directed at special services or special facilities required by non-English speakers, by prisoners in lockdown, and by the inmate population at large. If inadequacies of this character exist, they have not been found to have harmed any plaintiff in this lawsuit, and hence were not the proper object of this District Court’s remediation. As to remediation of the inadequacy that caused Bartholic’s injury, a further question remains: Was that inadequacy widespread enough to justify systemwide relief? The only findings supporting the proposition that, in all of ADOC’s facilities, an illiterate inmate wishing to file a claim would be unable to receive the assistance necessary to do so were (1) the finding with respect to Bartholic, at the Florence facility, and (2) the finding that Harris, while incarcerated at Perryville, had once been “unable to file [a] legal actio[n].” 834 F. Supp., at 1558. These two instances were a patently inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief. See Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 417 (1977) (“[I]nstead of tailoring a remedy commensurate with the three specific violations, the Court of Appeals imposed a systemwide remedy going beyond their scope”); id., at 420 (“[O]nly if there has been a systemwide impact may there be a systemwide remedy”); Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class”). To be sure, the District Court also noted that “the trial testimony... indicated that there are prisoners who are unable to research the law because of their functional illiteracy,” 834 F. Supp., at 1558. As we have discussed, however, the Constitution does not require that prisoners (literate or illiterate) be able to conduct generalized research, but only that they be able to present their grievances to the courts— a more limited capability that can be produced by a much more limited degree of legal assistance. Apart from the dismissal of Bartholic’s claim with prejudice, and Harris’s inability to file his claim, there is no finding, and as far as we can discern from the record no evidence, that in Arizona prisons illiterate prisoners cannot obtain the minimal help necessary to file particular claims that they wish to bring before the courts. The constitutional violation has not been shown to be systemwide, and granting a remedy beyond what was necessary to provide relief to Harris and Bartholic was therefore improper. III There are further reasons why the order here cannot stand. We held in Turner v. Safley, 482 U. S. 78 (1987), that a prison regulation impinging on inmates’ constitutional rights “is valid if it is reasonably related to legitimate peno-logical interests.” Id., at 89. Such a deferential standard is necessary, we explained, “if 'prison administrators..., and not the courts, [are] to make the difficult judgments concerning institutional operations.’ Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.” Ibid. (citation omitted), quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 128 (1977). These are the same concerns that led us to encourage “local experimentation” in Bounds, see supra, at 352, and we think it quite obvious that Bounds and Turner must be read in pari materia. The District Court here failed to accord adequate deference to the judgment of the prison authorities in at least three significant respects. First, the court concluded that ADOC’s restrictions on lockdown prisoners’ access to law libraries were unjustified. Turner’s principle of deference has special force with regard to that issue, since the inmates in lockdown include “the most dangerous and violent prisoners in the Arizona prison system,” and other inmates presenting special disciplinary and security concerns. Brief for Petitioners 5. The District Court made much of the fact that lockdown prisoners routinely experience delays in receiving legal materials or legal assistance, some as long as 16 days, 834 F. Supp., at 1557, and n. 23, but so long as they are the product of prison regulations reasonably related to legitimate penological interests, such delays are not of constitutional significance, even where they result in actual injury (which, of course, the District Court did not find here). Second, the injunction imposed by the District Court was inordinately — indeed, wildly — intrusive. There is no need to belabor this point. One need only read the order, see App. to Pet. for Cert. 61a-85a, to appreciate that it is the ne plus ultra of what our opinions have lamented as a court’s “in the name of the Constitution, becoming]... enmeshed in the minutiae of prison operations.” Bell v. Wolfish, 441 U. S. 520, 562 (1979). Finally, the order was developed through a process that failed to give adequate consideration to the views of state prison authorities. We have said that “[t]he strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors... also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” Preiser v. Rodriguez, 411 U. S. 475, 492 (1973). For an illustration of the proper procedure in a case such as this, we need look no further than Bounds itself. There, after granting summary judgment for the inmates, the District Court refrained from “ ‘dictating] precisely what course the State should follow.’” Bounds, 430 U. S., at 818. Rather, recognizing that “determining the ‘appropriate relief to be ordered... presents a difficult problem,’ ” the court “ ‘charge[d] the Department of Correction with the task of devising a Constitutionally sound program’ to assure inmate access to the courts.” Id., at 818-819. The State responded with a proposal, which the District Court ultimately approved with minor changes, after considering objections raised by the inmates. Id., at 819-820. We praised this procedure, observing that the court had “scrupulously respected the limits on [its] role,” by “not... thrust[ing] itself into prison administration” and instead permitting “[p]rison administrators [to] exercis[e] wide discretion within the bounds of constitutional requirements.” Id., at 832-833. As Bounds was an exemplar of what should be done, this case is a model of what should not. The District Court totally failed to heed the admonition of Preiser. Having found a violation of the right of access to the courts, it conferred upon its special master, a law professor from Flushing, New York, rather than upon ADOC officials, the responsibility for devising a remedial plan. To make matters worse, it severely limited the remedies that the master could choose. Because, in the court’s view, its order in an earlier access-to-courts case (an order that adopted the recommendations of the same special master) had “resolved successfully” most of the issues involved in this litigation, the court instructed that as to those issues it would implement the earlier order statewide, “with any modifications that the parties and Special Master determine are necessary due to the particular circumstances of the prison facility.” App. to Pet. for Cert. 88a (footnote omitted). This will not do. The State was entitled to far more than an opportunity for rebuttal, and on that ground alone this order would have to be set aside. * * * For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Respondents contend that petitioners failed properly to present their “actual injury” argument to the Court of Appeals. Brief for Respondents 25-26. Our review of petitioners’ briefs before that court leads us to conclude otherwise, and in any event, as we shall discuss, the point relates to standing, which is jurisdictional and not subject to waiver. See United States v. Hays, 515 U. S. 737, 742 (1995); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 230-231 (1990). Justice Souter recognizes the jurisdictional nature of this point, post, at 394, which is difficult to reconcile with his view that we should not “reach out to address” it, ibid. Justice Stevens suggests that Ex parte Hull, 312 U. S. 546 (1941), establishes that even a lost frivolous claim establishes standing to complain of a denial of access to courts, see post, at 408-409. As an initial matter, that is quite impossible, since standing was neither challenged nor discussed in that case, and we have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect. See, e. g., Federal Election Comm’n v. NRA Political Victory Fund, 513 U. S. 88, 97 (1994); United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.) (statement at oral argument). On the merits, however, it is simply not true that the prisoner’s claim in Hull was frivolous. We rejected it because it had been procedurally defaulted by, inter alia, failure to object at trial and failure to include a transcript with the petition, 312 U. S., at 551. If all procedurally defaulted claims were frivolous, Kule 11 business would be brisk indeed. Justice Stevens’s assertion that “we held that the smuggled petition had insufficient merit even to require an answer from the State,” post, at 408-409, is misleading. The attorney general of Michigan appeared in the ease, and our opinion discussed the merits of the claim at some length, see 312 U. S., at 549-551. The posture of the case was such, however, that we treated the claim “as a motion for leave to file a petition for writ of habeas corpus,” id., at 550; after analyzing petitioner’s case, we found it “insufficient to compel an order requiring the warden to answer,” id., at 551 (emphasis added). That is not remotely equivalent to finding that the underlying claim was frivolous. Justice Souter believes that Bounds v. Smith, 430 U. S. 817 (1977), guarantees prison inmates the right to present frivolous claims — the determination of which suffices to confer standing, he says, because it assumes that the dispute “ ‘will be presented in an adversary context and in a form historically viewed as capable o.f judicial resolution,’” post, at 398-399, quoting Flast v. Cohen, 392 U. S. $3,101 (1968). This would perhaps have seemed like good law at the time of Fl

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, Appellee, v. Thomas Richard WALKER, Appellant. No. 89-5483. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1990. Decided March 4, 1991. Alvin E. Entin, Miami, Fla., for appellant. Henry J. Shea, Minneapolis, Minn., for appellee. Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge. McMILLIAN, Circuit Judge. Thomas Richard Walker appeals from a final judgment entered in the District Court for the District of Minnesota, denying his motion to dismiss his indictment for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (1988). After appellant entered into a plea agreement, the district court sentenced him to a term of three years incarceration and a special assessment of $50.00. For reversal, appellant argues that the district court erred in denying his motion to dismiss the indictment because, although the appellant had. performed his obligations under the plea agreement, the government had breached its obligation under the agreement. On January 13, 1988, a federal grand jury in Minnesota indicted appellant for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Shortly after the indictment, appellant and the government began plea negotiations. After the agreement, appellant entered a guilty plea to the conspiracy charge in exchange for his being sentenced by the United States District Court for the Southern District of Florida. The agreement further provided: The government will provide the United States Probation office the facts relating to the defendant’s involvement in the offense charged in the Indictment. The prosecution version of the offense will be limited to the allegations in the Indictment. When the Minnesota probation office prepared the presentence investigatory report (PSI), however, it included information not relating to the indictment. No one disputes the fact that the inclusion of this information violated the plea agreement. The United States District Court for the Southern District of Florida refused to disregard this information and gave appellant the option of either being sentenced in Florida with the detrimental information considered, or of withdrawing his guilty plea and returning to Minnesota. Appellant withdrew his plea and returned to Minnesota. Appellant filed a motion with the district court in Minnesota to dismiss the indictment, alleging that the government had breached the plea agreement. Although the district court denied the motion, it found that the district judge had unconditionally accepted the plea agreement and that there was no breach of the plea agreement by appellant. The district court decided that appellant was entitled to limited relief in order to prevent the government from obtaining a benefit at his expense. The district court determined that appellant was entitled to specific performance of the original plea agreement, with the exception of the provision for his being sentenced by the Southern District of Florida. Additionally, the district court instructed the Probation Office to use a PSI report that limited its information to the charge in the indictment. In the alternative, the district court offered appellant the option of proceeding to trial. Appellant then entered into another plea agreement that complied with the district court’s order. The agreement allowed appellant to enter a conditional guilty plea with leave to pursue this appeal. A second PSI was prepared. Appellant was found guilty in accordance with his plea, and sentenced to a term of three years incarceration and a special assessment of $50.00. The issues addressed in this case are whether the government breached the original plea agreement, and whether the Minnesota district court abused its discretion in allowing appellant to withdraw his guilty plea or in denying his motion to dismiss the indictment. BREACH OF PLEA AGREEMENT Under Rule 11 of the Federal Rules of Criminal Procedure, a defendant may plead not guilty, guilty or nolo contendere. Fed. R.Crim.P. 11(a)(1). Once a plea agreement has been reached between the defendant and the prosecution, the court may accept, reject or defer its decision until consideration of the PSI. Fed.R.Crim.P. 11(e)(2). Whatever benefits the parties intend to reap as a result of this agreement are contingent entirely upon the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court. United States v. McGovern, 822 F.2d 739, 744 (8th Cir.1987) (McGovern), quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981). Once the court accepts the plea agreement without qualification, it cannot later reject it. United States v. Holman, 728 F.2d 809, 813 (6th Cir.1984). “[WJhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) (Santobello). The issue in this case is whether the government breached its promise to offer only the information relating directly to appellant’s indictment. There is no dispute that Walker upheld his obligations under the agreement. Walker argues that the government breached the agreement when the Florida Probation Office included information in the PSI report that was beyond the scope of the indictment. The government argues that it did not breach the agreement because the Florida district court judge ordered the Florida Probation Office to provide him with a complete presentence report, and because he expected to receive a complete report, such a report might contain facts about the appellant that were not obtained from the government, but from other sources. In essence, the government argues that if anyone breached the agreement, it was the Florida district court judge, who was not a party to the agreement. We agree. While we acknowledge that the government includes the offices of the United States Attorneys in the District of Minnesota and the Southern District of Florida, we do not believe that they broke the agreement. Neither do we believe that the probation offices in either Minnesota or Florida breached the agreement. The agreement was broken, or rather rejected, by the district court in Florida. Once the Florida district court directed the Florida probation office to include all information in the PSI, the probation office could either lie, inform the court of the Minnesota agreement, or seek on its own to get the information from Minnesota or from other sources. In any event, the government had done all it could to fulfill its obligation. REMEDY Although the government did not breach the agreement, the sequence of events in Florida resulted, in effect, in a rejected plea agreement. Once a “plea is rejected, both the defendant and the prosecutor are placed in their respective pre-plea agreement positions.” McGovern, 822 F.2d at 744. Two possible remedies exist for a broken plea agreement: specific performance or withdrawal of the guilty plea. Santobello, 404 U.S. at 263, 92 S.Ct. at 499. In determining whether to grant specific performance, the trial court must examine the possible prejudice to the defendant, the conduct of the government, and the public interest. If the court finds that the detrimental reliance of the defendant is great, then the government, in fairness, must be held to its promises. McGovern, 822 F.2d at 746. Appellant presents three alternative remedies: (1) a dismissal of the indictment entirely, (2) an order of specific performance of the original plea agreement, or (3) an order that the Minnesota District Court enter a Florida penalty (for example, a one-year prison sentence). Both parties agree that specific performance is impractical in this situation because the Florida district court has already determined that it will sentence Walker with the additional information. The Minnesota district court allowed Walker to withdraw his guilty plea and to enter into a new plea agreement. As the Supreme Court stated in Santobello: “The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require [specific performance or withdrawal of the guilty plea].... ” Santobello, 404 U.S. at 263, 92 S.Ct. at 499. We hold that the Minnesota district court did not abuse its discretion in allowing appellant to withdraw his guilty plea or in denying his motion to dismiss the indictment. This case is similar to United States v. Holman, 728 F.2d 809 (6th Cir.1984) (Holman), in which the district court, after unqualifiedly accepting the plea agreement, rejected the bargain on the basis of the PSI. Although the defendant in Holman would have been entitled to either specific performance or a withdrawal of the guilty plea, his subsequent action of entering into a new plea agreement cured any potential prejudice from the first proceeding. Id., 728 F.2d at 813; see also United States v. Mack, 655 F.2d 843, 848 (8th Cir.1981) (“the second guilty plea proceeding removed any prejudicial taint that arose from the previous plea proceedings”). Accordingly, we affirm the judgment of the district court denying appellant’s motion to dismiss the indictment. Judgment affirmed. . The Honorable Donald D. Alsop, Chief Judge, United States District Court for the District of Minnesota.

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?

David Simpson WINDSOR, II, Plaintiff-Appellant, v. PAN AMERICAN AIRWAYS, Defendant-Appellee. No. 84-3102 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 29, 1984. David Simpson Windsor, II, pro se. Deutsch, Kerrigan & Stiles, Francis G. Weller, New Orleans, La., for defendantappellee. Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges. POLITZ, Circuit Judge: The ever increasing volume of appeals filed with this court threatens to inundate our docket. The possibility of that spectre requires that we adhere firmly to rules governing the conduct of the appellate process, including the dismissal of patently frivolous appeals. This appeal founders for two reasons: appellant has not complied with our briefing rules and his appeal is totally devoid of merit. The appeal is accordingly dismissed. David Simpson-Windsor, II filed suit against Pan American Airways seeking damages in the amount of four hundred trillion dollars “on the grounds of grand theft ... with the intent to commit nuclear sabotage on Flight 759,” a flight which tragically crashed immediately after takeoff from Moisant International Airport killing all aboard. Appellant alleges that Pan American Airways conspired with the family of President Kennedy and with President Carter to cause the crash of Flight 759. Appellant further alleged that President Carter had “illegally accumulated over 40 trillion dollars in assets — based on ideas [President Carter] had stolen from the plaintiff’s patents and copyrights on file in Washington, D.C.” According to plaintiff, President Carter was joined in this grand theft scheme by Presidents Kennedy, Ford and Reagan. Inexplicably, Presidents Johnson and Nixon were implicitly exonerated from this presidential miscreancy. Plaintiff-appellant then amended his pro se pleadings seeking the arrest and detention of the widow of Dr. Martin Luther King, Jr., identified as Matilda Winfield alias Adams alias King alias Sykes, because she posed a threat to the Roman Catholic Church and its episcopacy. Specifically, appellant alleges that Mrs. King planned to take over an order of Black Nuns and become its Mother Superior, all as a prelude to her ultimate plan to “install herself as a self-declared ‘Black Popess.’ ” In all of this, plaintiff sought to foil St. Peter who was actually the Black Devil and the father of Judas Iscariot. Demonstrating remarkable restraint, the district court carefully reviewed the pleadings and attachments and concluded that plaintiff had not asserted a legally cognizable claim. Fed.R.Civ.P. 12(b)(6). This ruling is eminently correct. Plaintiff advances claims that are absolutely and irretrievably without a semblance of merit. No federal court, trial or appellate, is obliged to allot more than a modicum of scarce judicial resources to such claims. Summary disposition was in order in the trial court; it is equally in order here. Appeal DISMISSED.

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

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

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

The NEW ENGLAND MERCHANTS NATIONAL BANK OF BOSTON, Executor u/w Martha A. Alford, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. No. 6929. United States Court of Appeals First Circuit. Oct. 17, 1967. Samuel B. Potter, Boston, Mass., with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., was on brief, for appellant. Robert H. Solomon, Atty., Dept, of Justice, with whom Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and David 0. Walter, Attys., Dept, of Justice, Paul F. Markham, U. S. Atty., and Joseph A. Lena, Asst. U. S. Atty., were on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. This is an appeal by the bank executor of a decedent’s estate from a district court judgment for the government in a suit for refund of estate tax. The issue is whether a 1908 pre-tax statute trust fund is includible in the decedent’s estate, under section 2038 of the Internal Revenue Code of 1954 and the relevant regulations, by reason of a reserved power of alteration shared by decedent and the institutional trustee. We hold that it is and affirm the judgment of the district court. The trust instrument was executed in 1908, antedating the predecessor of section 2038 by 16 years. Decedent, her mother, and brother were the settlors and life beneficiaries. On the death of the first of them, one-third of the corpus was to pass either as directed by that decedent’s testamentary power of appointment, or, in default of the exercise of such power, to that decedent’s heirs by blood. On the death of the second settlor, one half of the remaining corpus was to pass under the same alternative modes of disposition. .And on the death of the surviving settlor, the remaining corpus was similarly to pass either by testamentary power of appointment or, in default of such exercise, to that settlor’s heirs by blood. The three settlors, their survivors, or survivor had the power, with the written “consent and approval” of the bank trustee, to “vary or modify” the terms of the trust. The appointment of successor trustees was circumscribed only by excluding any beneficiary’s husband. The bank trustee was given full powers of management. From 1908 to 1929 all three settlorbeneficiaries were living. In 1929 decedent’s mother died, disposing of her share by will. Decedent’s brother served as co-trustee from 1908 to 1940, when he died without exercising his power of appointment. Decedent was the sole surviving settlor-beneficiary, and the bank the sole trustee, from 1940 to her death in 1961. In 1947 she irrevocably released her power of appointment but no change was ever made in any provision of the trust instrument. On her death the remaining corpus of the trust became distributable to her sole heir by blood. The precise question litigated here is whether, the trust having been created long before the relevant taxing statute, it can be said that a gift was then so “made and completely vested”, Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 83 L.Ed. 87 (1938), that subjecting such a transfer to taxation under later law offends the due process clause of the Fifth Amendment, Nichols v. Coolidge, 274 U.S. 531, 47 S.Ct. 710, 71 L.Ed. 1184 (1927). We would not have thought that the taxability of the power reserved in this trust, even though created before the statute, would today be open to serious question. To be sure, this was not always so. In 1928, the Court in Saltonstall v. Saltonstall, 276 U.S. 260, 48 S.Ct. 225, 72 L.Ed. 565, upheld the application of a Massachusetts inheritance tax to a prestatute trust which had reserved a revocation power to a settlor acting with the consent of the trustee, not on the ground that the settlor had retained a taxable power of control, but on the ground that what was taxed was the right of succession, which right matured only on the settlor’s death. In the following year Mr. Justice Stone, the writer of Salton-stall, acknowledged in Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405 (1929), that the distinction was important in Saltonstall, for “it was at least doubtful” that a shared power with a trustee would have subjected the estate to a later transfer tax. To support this caveat, he cited Reinecke v. Northern Trust Co., 278 U.S. 339, 48 S.Ct. 436, 72 L.Ed. 997 (1929), decided the same day as Chase, which he also wrote. Northern Trust did not concern a power of control shared with a trustee but rather two trusts revocable by the settlor alone and five trusts where the settlor’s revoking power was in each case subject to consent of either a sole beneficiary or a majority of beneficiaries. The former were held subject to a post-trust tax statute; the latter, not— because of the necessity for the settlor to secure the consent of a “beneficial, and consequently adverse” interest should he have wished to revoke. 278 U.S. at 346, 48 S.Ct. 436. As of 1929, therefore, one could not predict whether or not a trustee would be considered to have an “adverse” interest sufficient to immunize a transaction from susceptibility to subsequently authorized taxation. By 1933, however, the Court took the additional step in Reinecke v. Smith, 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109. That case involved the taxability of trust income, under a post-trust statute, where the settlor retained the right to alter each of several trusts with the consent of the corporate trustee. The Court said, “ * * * the trustee is not a trustee of the power of revocation and owes no duty to the beneficiary to resist alteration or revocation of the trust.” 289 U.S. at 176, 53 S.Ct. at 572. The Court was not confining its reasoning to the arbitrariness of prospective income tax enforcement in ruling out a settlor-designated trustee as having an adverse interest or to the nonretroactivity of taxing income accruing after the effective date of the statute. It said, “As pointed out in Burnet v. Guggenheim, 288 U.S. 280, 53 S.Ct. 369, 77 L.Ed. 748, the same considerations as to ownership and control affect the power to impose a tax on the transfer pf the corpus and upon the income.” 289 U.S. at 176, 53 S.Ct. at 572. We have long ago impliedly recognized the relevance of the quoted language in Reinecke v. Smith to estate tax cases. Welch v. Terhune, 126 F.2d 695, 697-98 (1st Cir. 1942). The Second Circuit relied early on Reinecke v. Smith to support the estate taxability of a similar prestatute trust containing a reserved power of amendment shared with a trustee. Witherbee v. Commissioner, 70 F.2d 696 (2d Cir.), cert. denied, 293 U.S. 582, 55 S.Ct. 96, 79 L.Ed. 678 (1934). Appellant, 34 years after Reinecke v. Smith and 33 years after Witherbee v. Commissioner, has invoked the full range of advocatory ingenuity to attempt to carry its considerable burden. It has seized on Mr. Justice Stone’s reservation in Chase, and tried to elevate that 38 year old dictum into current law, despite Reinecke v. Smith. It has accepted the misconstruction of Reinecke v. Northern Trust in Mackay v. Commissioner, 94 F.2d 558 (2d Cir. 1938), where the court erroneously assumed that the seventh trust could be amended without the consent of those having a beneficial interest in it. Consequently, appellant argues that the regulation (§ 20.2038-1) goes beyond the case law it attempts to codify by requiring, for exemption, that a party sharing power to revoke with the settlor have a “substantially adverse interest”. Appellant has also sought to confine the rationale of Reinecke v. Smith to the prospective impact of income tax cases despite the language of the Court cited above. And it has attempted to diminish the authority of Witherbee v. Commissioner by assuming that the ground relied on in Witherbee to justify the retroactive imposition of tax was abandoned by a later decision in the same circuit. Mackay v. Commissioner, supra. This observation invites us to examine both cases. In Witherbee the court first held that a settlor’s power, shared only with trustees, to take back trust property was significantly different from a power shared with beneficiaries as in Reinecke v. Northern Trust. In other words, the gift in trust was held to be sufficiently incomplete to be deprived of immunity against retroactive legislation. The court, however, apparently not recognizing that it had already answered the constitutional challenge to retroactive application of the statute, proceeded to deal with this challenge by observing that the settlor had ample opportunity to avoid taxation of the trust by relinquishing his reserved power after the new law took effect. This rationale appellant terms “the notice doctrine”. We do not consider it an independent ground for justifying retroactivity. A gift is either “vested and complete” before a statute is passed, or it is not. If it is not complete, the fact that tax consequences can be avoided by later relinquishing reserved powers is merely a factor which minimizes the harshness of retroactivity, but is not its justification. What we have observed does not in any way question the soundness of the basic holding. Nor does Mackay. In that case the trust came clearly within Reinecke v. Northern Trust Co., being subject to revocation by the settlor with the consent of a trustee who was also a beneficiary. Since it was not taxable, there was no occasion to make any observation as to the settlor’s opportunity to avoid taxation by relinquishing his power. The dissenter, on whom appellant relies for the proposition that “the notice doctrine” has been repudiated, was merely arguing that the trust corpus was taxable, since (in his view) the trustee-beneficiary did not have a sufficiently adverse interest and that the settlor had ample opportunity to relinquish his power. 94 F.2d at 562-563. It is difficult to see how this case supports appellant’s rather large claims for it. Appellant also initially attacked Treasury Regulation § 20.2038-1 as going beyond the cases. Then, because appellee properly pointed out in its brief that since the regulation applied only to powers reserved by a decedent, it had nothing to do with powers stemming from a source dehors the initial reservation, as in Helvering v. Helmholz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76 (1935) and in White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80 (1935), appellant concluded that the regulation did not apply to the case at bar. While it is perfectly true that, until 1940, the existence of other beneficiaries constituted the classical Reinecke v. Northern Trust adverse interest, it is also true that the eventual concentration of power in the surviving settlor with trustee consent stemmed “from the creating instrument”. Larson v. Commissioner, 213 F.2d 502, 503 (2d Cir. 1954). As another arrow in its quiver, appellant relied on Erskine v. White, 43 F.2d 765 (D.Mass.1930), aff’d White v. Erskine, 47 F.2d 1014 (1st Cir. 1931). In this case we flatly held that a trustee was not a rubber stamp for revocation purposes and that it therefore was a sufficiently adverse party. But this arrow, even if it was ours, had but a short flight. In the only other federal court case to cite it, Brady v. Ham, 45 F.2d 454, 457 (1st Cir. 1930), Judge Anderson, in concurring, prophetically worried whether it would remain the law. It came to earth in 1933, with Reinecke v. Smith. Accord, Welch v. Terhune, supra. There remains after this welter of ease analysis the basic question whether today a corporate fiduciary’s duties have been so enlarged, either generally or by the specific trust instrument, as to take it out of Reinecke v. Smith. While the corporate trustee was given broad powers as “managing trustee”, we cannot say that, insofar as revocation is concerned, there was any standard which either expressly or by implication would justify it in opposing the settlor — any more than in Reinecke v. Smith, Welch v. Terhune, or Witherbee v. Commissioner. See n. 2, supra. Appellant has challenged the language we have quoted from Reinecke v. Smith as “not a wholly accurate statement of the law of trusts”, citing Restatement (Second) of Trusts § 330, comment l (1959). Apart from the effect of standards explicit in the trust which might, in a given case, enable a court to measure the reasonableness of a trustee’s judgment as to revocation, the Restatement comment contemplates two other situations. The first is a situation where, despite the absence of specific standards, a trustee power to consent to revocation may be interpreted to be subject to the “wise” exercise of discretion; e. g., if a settlor were bent on cutting off dependent beneficiaries and dissipating the property. Absent any express or implied restrictions, the trustee could still be restrained from acting dishonestly, arbitrarily, or with an improper motive. Restatement (Second) of Trusts § 187, comments f-h (1959). Assuming that these observations reflect the law, we nevertheless conclude from the record of this case that such possibilities of non-consent to revocation by the trustee fall short of creating a “substantial” adverse interest. Appellant has not been able to cite to us any other authority indicating that on this point of consent to alterations or revocation the corporate trustee’s duty today differs from that prevailing at the time of these cases. See 3 Scott, Trusts, § 330.9 (2d ed. 1956); State Tax Commission v. Fitts, 340 Mass. 575, 580, 165 N.E.2d 586 (1960); Dewey v. State Tax Commission, 346 Mass. 43, 46, 190 N.E.2d 203 (1963). Turning to the specific instrument, appellant has tried to equate the trust at issue with one in contemplation of marriage, by reason of the provision barring a husband of a beneficiary from appointment as a trustee. Suffice.it to say that we do not find sufficient evidence in this trust instrument to hold, as a matter of law, that it was one executed in contemplation of marriage. Affirmed. . 26 U.S.C. § 2038: “(a) In general. — The value of the gross estate shall include the value of all property— * * * - sf; * “(2) Transfers on or "before June 22, 1986. — To the extent of any interest therein of which the decedent has at any time made a transfer * * * by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke * * 26 C.F.R. § 20.2038-1 (d): “(d) * * * if an interest in property was transferred by a decedent before the enactment of the Revenue Act of 1924 (June 2, 1924, 4:01 p.m., eastern standard time), and if a power reserved by the decedent to alter, amend, revoke, or terminate was exercisable by the decedent only in conjunction with a person having a substantial adverse interest in the transferred property, or in conjunction with several persons some or all of whom held such an adverse interest, there is included in the decedent’s gross estate only the value of any interest or interests held by a person or persons not required to join in the exercise of the power plus the value of any insubstantial adverse interest or interests of a person or persons required to join in the exercise of the power.” . It is true that in Reinecke v. Smith the grantor and trustees had in fact joined in an amendment to the detriment of grantor’s wife, the beneficiary of one of the trusts. This fact perhaps influenced the Court to make a generalization which might not today govern trusts containing standards by which the reasonableness of the trustee’s judgment in consenting to revocation might be tested. See Restatement (Second) of Trusts § 330, comment l (1959). But, as we shall note, infra, there is no reason to suspect that the holding of Reinecke does not still apply to trusts similarly devoid of limitations on the trustee’s discretion.

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

INTERNATIONAL SHOE MACHINE CORPORATION, Plaintiff, Appellant, v. UNITED SHOE MACHINERY CORPORATION, Defendant, Appellee. No. 6043. United States Court of Appeals First Circuit. March 11, 1963. Breck P. McAllister, New York City, with whom Morton Myerson, Boston, Mass., Roger J. Hawke, Frank G. Dawson, New York City, Malloy, Sullivan & Myerson, Boston, Mass., and Donovan, Leisure, Newton & Irvine, New York City, were on brief, for appellant. Ralph M. Carson, New York City, with whom Robert Proctor, Boston, Mass., Theodore Kiendl, New York City, Robert D. Salinger, John B. Reigeluth, Boston, Mass., and Louis L. Stanton, Jr., New York City, were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Massachusetts dismissing the complaint entered upon a special verdict of the jury in an action brought by plaintiff-appellant, International Shoe Machine Corporation, against defendant-appellee, United Shoe Machinery Corporation, under Sections 4 and 5 of the Clayton Act (Act of October 15, 1914, c. 323, §§ 4 and 5, 38 Stat. 731, 15 U.S.C. §§ 15 and 16) to recover treble damages for violation of Section 2 of the Sherman Act (Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C. § 2). Plaintiff is a Massachusetts corporation which manufactures machinery for use in the “lasting operation” of shoe construction. Defendant, a New Jersey corporation, manufactures machinery for use in all phases of shoe construction, including that used in the lasting operation. The complaint, which was filed on December 14, 1956, alleged that beginning some time prior to 1938 and continuing to the date of the filing of the complaint, defendant had monopolized trade and commerce in the shoe machinery industry and the parts thereof in violation of Section 2 of the Sherman Act and had thus prevented plaintiff from obtaining a fair competitive share of the market in such industry. The complaint alleged a substantial loss of profits to plaintiff owing to the alleged monopolization and prayed judgment for three times the damages sustained. The complaint further alleged that on February 18, 1953, in the case of United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295 (aff’d per curiam 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954)), a final decree was entered in the United States District Court for the District of Massachusetts finding that appellee had violated the antitrust laws and further stated that “Pursuant to Section 5 of the Clayton Act, plaintiff intends to use said final decree against defendant as prima facie evidence as to all matters respecting which the said final decree would be an estoppel between the parties thereto.” The defendant answered and relying upon the 1955 amendments to the Clayton Act (69 Stat. 283, 15 U.S.C. § 15(b)), moved under Rule 56(b), 28 U.S.C., for partial summary judgment insofar as the plaintiff’s complaint purported to assert any cause of action arising more than four years prior to the filing of the complaint, that is prior to December 14, 1952. The district court denied this motion and defendant appealed. In our opinion reversing the district court, United Shoe Mach. Corp. v. International Shoe Mach. Corp., 275 F.2d 459 (1st Cir., 1960), we agreed with defendant that the statute of limitations precluded plaintiff from asserting any cause of action which might have accrued prior to December 14,1952. The thrust of this ruling was to require plaintiff to demonstrate injury resulting from antitrust violations in the four year period immediately prior to the filing of the complaint — December 14, 1952 through December 14, 1956 — if it was to be successful in the instant action. At a pre-trial conference on August 21, 1961 plaintiff requested an order permitting introduction, at any time during the trial, of the final decree, parts of the findings of fact and the opinion in the so-called “Government case,” stating that said decree and findings should constitute prima facie evidence. Plaintiff also requested an order permitting introduction into evidence of the parties’ background and competitive activities since 1938, and of customers’ reasons for refusing to deal with plaintiff. On October 24, 1961 the district court issued a pre-trial order which included the following: “4. Decision on the admissibility of the decree, findings, or any portion whatever of the proceedings before Wyzanski, D. J. in the case of United States v. United Shoe Machinery Corporation, 110 F.Supp. 295, is deferred until the close of plaintiff’s other evidence at the trial, at which time decision can be made in the light of this fully developed evidence. Until the Court decides what, if any, of said material is admissible, no reference to any aspect of the ease of United States v. United Shoe Machinery Corporation, supra, shall be made in the hearing of the jury by the parties in either the opening or at any other time prior to said ruling. “5. Either party may introduce relevant evidence as to the background of the parties and of the shoe machinery industry at any time since the founding of plaintiff corporation in 1938, provided that nothing in this clause shall in any way modify or affect the provisions regarding order of proof or exclusion of evidence established by any other clause of this pretrial order.” At the close of plaintiff’s evidence on monopolization and injury, the admissibility of the decree and findings in the Government case was again argued. On April 2, 1962 the court again held these to be inadmissible and amended the pretrial order as follows: “1. No part of the decree, findings of fact, or conclusions of law from United States v. United Shoe Machinery Corporation, supra, will be admitted in evidence as evidence of violation of the Antitrust laws of the United States; * * Defendant moved for a directed verdict at the close of plaintiff’s case and again upon the completion of the whole case. The court reserved decision, and submitted to the jury the following five special questions posed pursuant to the provisions of Fed.Rules Civ.Proc.Rule 49, 28 U.S.C., to which neither party objected: “Question 1. Do you find by a preponderance of the evidence that during the period from December 14, 1952 to December 14, 1956, the defendant United Shoe Machinery Corporation committed acts of monopolization so as to control and dominate interstate trade and commerce in the distribution of shoe machinery (other than Dry Thread Sewing Machines) in the United States, to such an extent as to exclude actual and potential competitors from that field of interstate commerce? Answer yes or no. “Question 2. Do you find upon a preponderance of the evidence that during the period from December 14, 1952 to December 14, 1956, defendant United Shoe Machinery Corporation committed acts of monopolization so as to control and dominate interstate commerce in side and toe lasting machines to such an extent as to exclude actual and potential competitors from interstate commerce in side and toe lasting machines? Answer yes or no. “Question No. 3: “Do you find upon a preponderance of the evidence that such acts of monopolization during that period were the proximate cause of injury to the business or property of the plaintiff? Answer yes or no. “Question No. 4: “Do you find upon a preponderance of the evidence that such injury as you have found to the business or property of the plaintiff in the period December 14, 1952 to December 14, 1956, did proximately cause monetary damage in the form of lost profits to the plaintiff in the period beginning December 14, 1952 and ending December 31,1959, which are capable of reasonable calculation and determination? “Question No. 5: What is the amount, if any, measured in dollars, which you find from the preponderance of the evidence that the plaintiff was damaged? State such amount or ‘none’ in the following blank space to indicate your finding.” The jury answered the first question— relating to defendant’s monopolization in the distribution of shoe machinery generally — in the affirmative. However, it answered question 2 — relative to defendant’s monopolization in the special area of side and toe lasting machinery— in the negative. The jury also answered “no” to question 3 concerning putative injury to plaintiff by defendant during the limitations period. Thereupon, it was unnecessary for the jury to answer questions 4 and 5. Judgment for the defendant was entered upon this verdict on May 14, 1962. Plaintiff moved to vacate judgment and for a new trial on the grounds, inter alia, that the jury’s answers to questions 1 and 2 were inconsistent and against the weight of the evidence, and that the decree and findings in the Government case should have been allowed in evidence. The trial court denied this motion. International Shoe Mach. Corp. v. United Shoe Mach. Corp., 206 F.Supp. 949 (D.C.Mass.1962). Plaintiff’s argument on this appeal rests principally on the asserted error of the trial judge in excluding the final decree and certain findings of fact and conclusions in United States v. United Shoe Machinery Corporation, supra, (hereinafter the “Government case”). It is plaintiff’s contention that the decree, findings and conclusions were admissible under Section 5 of the Clayton Act and were “relevant” both to plaintiff’s proof of monopolization during the limitations period from December 14, 1952 to December 14, 1956 and to plaintiff’s alleged damages. The legislative history is clear that Congress enacted Section 5 of the Clayton Act to encourage treble damage suits by lessening the plaintiff’s required proof and litigation expenses in the usually complex, time consuming and expensive area of antitrust litigation. See H.R.Rep. No. 627, 63 Cong.2d Sess. 14; S.Rep.No. 698, 63 Cong.2d Sess. 45; 51 Cong.Rec. 9270, 9490, 13851; see also Hamilton & Till, Antitrust In Action 83 (T N E C Monograph 16, 1940). To this end, Congress embodied as Section 5 a provision allowing treble damage plaintiffs to make use of judgments obtained by the Government in a prior action. This provision permits private plaintiffs to utilize “A final judgment or decree” as prima facie evidence of “all matters respecting which [the] judgment or decree would be an estoppel as between the” defendants and the Government. The question here, as before the trial court, is the proper evidentiary effect to be accorded the prior Government decree. In Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951), the Court in defining the relevant principles as to the scope of Section 5 stated that the prima facie effect of a prior judgment “ * * * extends only to questions ‘distinctly put in issue and directly determined’ in the [prior proceeding] * * * [and that] plaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based.” 340 U.S. at 569, 71 S.Ct. at 414. Emich, consequently, indicated that recourse should be had to the principles of collateral estoppel in ascertaining the issues on which the prior judgment is evidence. See also, Fifth and Walnut, Inc. v. Loew’s Incorporated, 176 F.2d 587, 593 (2nd Cir., 1949), cert. denied 338 U.S. 894, 70 S.Ct. 242, 94 L. Ed. 549. In effect, under traditional principles, the evidentiary impact of Section 5 should be limited to those issues which were “actually litigated and determined” by the judgment or decree in the prior case. See Restatement, Judgments, § 68(1) (1942). Moreover, for a private litigant to derive the benefits of Section 5 from a prior Government judgment, he must not only meet the estoppel requirements of the section but must also show that the former decree or judgment is relevant to his own cause of action. This is to say that it is not enough for a plaintiff to demonstrate that a defendant has violated the antitrust laws generally. Rather, he must show that his claimed injury stemmed directly and proximately from the same type of practice condemned in the prior Government action. Monticello Tobacco Co. v. American Tobacco Co., 197 F.2d 629, 631 (2nd Cir., 1952), cert. denied, 344 U.S. 875, 73 S.Ct. 168, 97 L.Ed. 678. See, Eagle Lion Studios, Inc. v. Loew’s, Inc., 248 F.2d 438, 444, 445 (2nd Cir., 1957), aff’d per curiam by an equally divided Court, 358 U.S. 100, 79 S.Ct. 218, 3 L.Ed.2d 147 (1958); Shotkin v. General Electric Co., 171 F.2d 236, 238 (10th Cir., 1948). In short, before a plaintiff can invoke the mantle of Section 5 he must successfully meet both the statutory requirements of estoppel as well as the generic evidentiary test of admissibility' — relevancy. In excluding the prior decree, findings and conclusions, the trial court predicated its decision on the ground that: “In the Government case Judge Wyzanski closed the taking of evidence as of a date in June of 1951, some 18 months prior to the period which is open to the plaintiff in the instant case, namely, the period December 14, 1952 to December 14, 1956. “I do not read Judge Wyzanski’s findings of fact as reflecting that any conduct of defendant which occurred between December 14, 1952 and December 14, 1956 was put in issue or litigated in the Government case.” In sum, taking the closing of the evidence in the Government case — June 1951 — as the determinative date, the trial court rested its decision on a difference in the time periods involved in the two actions. In plaintiff’s view, focusing on the date of “the close of the evidence” was the trial court’s basic error. According to plaintiff, the date on which the evidence closes has no significance in terms of Section 5'since the statute speaks in terms of a “final judgment or decree” which “shall be prima facie evidence.” Consequently, according to plaintiff, in assaying a putative difference in the time periods of the actions under scrutiny, the determinative reference is to the date of the final decree. Briefly stated, the chronology of the terminal stage of the Government case is as follows: (1) Date of the close of evidence— June, 1951; (2) Decree, findings of fact and conclusions of law entered by District Court — February 18, 1953; (3) Affirmance by Supreme Court— May 17, 1954; (4) Approval by District Court of a final plan for terminating the proscribed practices — June 1, 1955. Upon examination of the foregoing chronology it is apparent, as pointed out by the district court, that the date of the close of the evidence antedates the limitations period open to plaintiff by some eighteen months. On the other hand, the other cited dates are within the limitations period — December 14, 1952 to December 14, 1956. Selection of the determinative date has significant consequences. If the identical anti-competitive practices proscribed by the Government proceedings occurred during the same time period as that involved in the subsequent private action, there is little question that the estoppel requirements of Section 5 would be satisfied since the subject matter of the private suit could be regarded as but a contemporaneous manifestation of the activities condemned in the Government case. It would appear that this is the classical situation contemplated by Section 5. In such a case, with the estoppel requirements of Section 5 satisfied, relevancy could be assumed. However, if the pertinent practices involved in the Government case were adjudicated against the background of a time period different from that involved in the subsequent private proceeding, then, under traditional principles, Section 5’s estoppel requirements seemingly would not be satisfied and a relevancy question would not arise. “Traditional” principles which would apparently render inapplicable invocation of collateral estoppel considerations include the rule that the passage of time may evoke change of circumstances which preclude the creation of an estoppel. See, e. g., City of Shreveport v. Shreveport Ry. Co., 38 F.2d 945, 69 A.L.R. 340 (5th Cir., 1930), cert. denied, 281 U.S. 763, 50 S.Ct. 462, 74 L.Ed. 1172, and the principle that matters adjudged as to one time period are not necessarily an estoppel as to other time periods. Cf., Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). As was stated in Third National Bank of Louisville v. Stone, Auditor, 174 U.S. 432, 434, 19 S.Ct. 759, 760, 43 L.Ed. 1035 (1899) : “A question cannot be held to have been adjudged before an issue on the subject could possibly have arisen.” In many instances courts have noted a difference in the time periods involved in the Government and subsequent private actions in rendering the prior judgment inadmissible under Section 5. Park Neponset Corporation v. Smith, 258 F. 2d 452 (1st Cir., 1958); Eagle Lion Studios Inc., v. Loew’s Inc., supra; Paramount Film Distributing Corp. v. Village Theatre, 228 F.2d 721 (10th Cir., 1955); Robbinsdale Amusement Corp. v. Warner Bros. Pictures Distributing Corp., 141 F.Supp. 134 (D.C.Minn. 1955). Cf. Shotkin v. General Electric Co., supra; Wolfe v. National Lead Co., 15 F.R.D. 61 (N.D.Cal.1953), aff’d, 225 F.2d 427 (9th Cir., 1955), cert. denied, 350 U.S. 883, 76 S.Ct. 135, 100 L.Ed. 778 (1955). As was stated in Orbo Theatre Corporation v. Loew’s, Incorporated, 156 F.Supp. 770, 777 (D.C.D.C.1957), aff’d, 104 U.S.App.D.C. 262, 261 F.2d 380 (1958), cert. denied, 359 U.S. 943, 79 S.Ct. 725, 3 L.Ed.2d 677 (1959), “It should be emphasized that under the above quoted statute [Section 5] the [prior] decree is prima facie evidence only of a conspiracy covering the same area and existing during the same time as that involved in the case on trial.” (Emphasis supplied.) In Park Neponset, supra — a treble damage suit — we approved the action of the district court in completely excluding from evidence the findings, conclusions and decree entered in a prior Government case. There we pointed out that while the excluded findings related to the competitive situation of 1945, the'plaintiff’s theatre did not commence operation until 1947. Consonant with the principles evoked in the above cited cases, the district judge in the instant case excluded the Government decree on the ground that the activities found illegal in the prior proceeding did not, in the language of Orbo Theatre Corp., supra, exist “during the same time as that involved in the case on trial,” but, at least, some eighteen months prior thereto. Plaintiff, while apparently conceding the correctness of the result in a case such as Park Neponset, supra, attempts to distinguish it on the basis that in that case the findings were “expressly stated” to show the situation in 1945 while the plaintiff did not commence operation, as noted above, until 1947. Here, plaintiff continues, “the relevant findings in the Government case upon which appellant relies are not limited to any specific date.” Plaintiff then seeks to buttress this distinction by noting that the findings of the district judge in the Government case “speak in the present tense throughout” and, consequently, “all of the * * * findings are made as of the date of their making on February 18, 1953 by the very words that are used.” The net of this argument, of course, would be to move the Government action within the “same time per-iod” as that open to plaintiff and obviate the obstacles to the Section 5 estoppel considerations canvassed above. We are unwilling to accept plaintiff’s contentions because they not only emphasize form over substance but ask us to close our eyes to the realities of what occurred in the Government case. It is undisputed that the last item of evidence which the district judge received in the Government case and upon which he rested his decision was admitted as of a date in June, 1951. There is no contention that any evidence touching on the environmental and competitive context of the shoe industry came to the court’s attention in the interim period between the close of evidence and the announcement of findings. Perforce, quite apart from whether or not the findings of the trial judge “were expressly stated to show the situation” as of the date in June, 1951, when the evidence closed, they plainly could not reflect a competitive situation subsequent to that date, else they would be grounded on speculation and not evidence. Findings, to use Justice Frankfurter’s phrase in another context, are “not drawn, like nitrogen, out of the air.” Rather, they can only have been quarried from the evidence adduced at the trial, upon which they must be bottomed and from which they cannot be severed without mutilating their significance. In the Government ease, the development of the evidential complex terminated in June, 1951 and so far as the findings and the decree are concerned, they can speak no later than this date. The Government case, to use the district court’s own words, involved “a trial of prodigious length.” Some five years elapsed between the filing of the complaint on December 15, 1947 and the close of the evidence in June, 1951. Thousands of exhibits, interrogatories, depositions and a wealth of testimony had to be sifted and evaluated by the district judge in making his findings and formulating an appropriate decree. Appraisal and evaluation of the plethora of evidence required thoughtful consideration and this, in turn, required time, without which there could be neither the reflection nor the deliberation essential to a knowledgeable judgment. In the Government case this period extended for some eighteen months. In view of the scope and complexity of the issues there involved, the elapse of this time is not surprising. The point is that however long may be required for the trial judge to weigh the evidence, find the facts, decide the issues and formulate the decree, the ultimate judgment relates only to the period embraced by the evidence adduced at the trial. Cf., United States v. Waskowski, 158 F.2d 962 (7th Cir., 1947); Johnson v. Flemming, 264 F.2d 322 (10th Cir., 1959). Thus, evidentially speaking, though the decree was handed down in 1953 it spoke — so far as the determinative time period for our purposes is concerned — as of June, 1951. Nor can we attach significance to plaintiff’s argument that the trial judge’s language was cast “in the present tense.” We do not believe that considerations of estoppel should turn on the happenstance of style or syntax when the record clearly indicates that the language, though speaking in the present tense, related to a date at least eighteen months in the past. It is of course true that Section 5 speaks in terms of “a final judgment” which “shall be prima facie.” However, notwithstanding that fact, we believe that plaintiff reads too much into this language when it argues that the “trial court erred in giving any significance to the date of the close of the evidence [since] that date has no significance under the statutory language.” The statutory requirement that the judgment or decree be final before it may be admitted into evidence in a subsequent proceeding contemplates a “final disposition of the case, i. e., a final judgment by reason of failure to appeal within the statutory period, or a final judgment by reason of an affirmance of the appeal by the court of last resort.” Twin Ports Oil Co. v. Pure Oil Co., 26 F.Supp. 366, 369 (D.C.Minn.1939), aff’d, 119 F.2d 747 (8th Cir., 1941), cert. denied, 314 U.S. 644, 62 S.Ct. 84, 86 L.Ed. 516 (1941). See, Fifth and Walnut, Inc., v. Loew’s Incorporated, 176 F.2d 587, 592-594 (2nd Cir., 1949); Duluth Theatre Corporation v. Paramount Pictures, 72 F.Supp. 625 (D.C.Minn.1947). These cases recognize the principle that until there has been a terminus to the litigation, the judgment or decree is not final and may not be utilized as prima facie evidence. Needless to say, if there remains the possibility that the result dictated by the action of an inferior court may be reversed by a higher tribunal, the evidentiary impact of the judgment will be delusively imprecise. To obviate such a contingency, the statute imports the salutary principle of finality of judgment. However, to say that a judgment must be final before a plaintiff may introduce it under Section 5 is not to imply that in assaying the estoppel requirements of this same action, a court must close its eyes or “attach no significance” to the date of the close of the evidence. We believe that this date may, as in this case, have a relevance and a significance in providing the chronological guidelines and fixing the time period limitations as to what “questions [were] ‘distinctly put in issue and directly determined’ [in the prior proceeding].” Emich Motors Corp., supra, 340 U.S. at 569, 71 S.Ct. at 414. In the Government case the court found the defendant’s leasing activity to be violative of the Sherman Act on the ground that certain provisions of the leases were inimical to the development of competition “in the context of the present shoe machinery market”. Plaintiff has placed great reliance on the fact that the record in the instant case indicates that the same leases involved in the Government case were utilized by the defendant during the limitations period of the present case. And, in plaintiff's words, this fact makes the decree, findings and conclusions in the Government case “relevant prima facie evidence to which appellant is entitled under Section 5.” Again, we believe that plaintiff confuses relevancy with the estoppel requirements of Section 5. As noted above, under Section 5, relevancy does not become material until a plaintiff has cleared the statutory hurdle of estoppel and, in this case, we do not believe that plaintiff has done so. We do not read the trial court’s ruling in the Government case as holding that •leases of the kind utilized by the defendant are per se violations of the antitrust laws. Cf., International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). Rather, in the language of the trial court: “In short, the leases themselves are not forbidden; only when they are used as an instrument for seeking [or maintaining] market control is the lessor to be charged with [restraint of trade or monopolizing].” United States v. United Shoe Machinery Corp., supra, 110 F.Supp. at 346. Again, the violation in the Government case was found in the “context” of the shoe machinery field during the time period there under scrutiny; a period which, in our view, could be of a date no later than June, 1951 and, from many of the trial judge’s specific references, was essentially bottomed on the defendant’s competitive posture in the 1947-49 market. In at least one significant facet, this was not the same “context” which existed in the shoe machinery industry — and specifically in the specialized market of side and toe lasting machinery at issue here— during the instant limitations period. Two of plaintiff’s three major pieces of equipment were commercially introduced into the market after the close of the evidence in the Government case. One of these machines apparently embodied a technological break-through which produced spectacular commercial success for plaintiff; with a demand which far outstripped supply and which strained plaintiff’s productive capacity to the utmost. This machine was apparently a highly coveted item in many segments of the industry and its availability was a competitive factor which was missing from the “context” of the side and toe lasting market in the Government case. It cannot be gainsaid that in any meaningful appraisal of the adverse or anti-competitive effects of devices alleged to restrict the freedom of buyers to purchase from competing suppliers, the extent to which there is a diminution of competition in the relevant market, will depend upon the degree of need for the controlled product and the availability of adequate and desirable substitutes. The machines which plaintiff introduced into the post-1951 market were assuredly pertinent factors in any assessment of the context of the competitive environment and structure within the relevant market for side and toe lasting machinery. Failure to accord due emphasis to changed competitive conditions, such as those cited above, would amount to a judgment on the sum of the many market relationships called competition which had scarcely more validity than “a guess in the dark.” Standard Oil Co. v. United States, 337 U.S. 293, 322, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949) (dissenting opinion). For the foregoing reasons we believe that the trial court was correct in holding inadmissible under Section 5 the decree, findings and opinion in the Government case. The next question concerns the plaintiff’s argument that these items should have been admitted as “background” evidence. In the words of plaintiff: “Even if we are incorrect in urging that the operative date under Section 5 is the effective date of the final decree on June 1, 1955, the decree and the findings and conclusions are still relevant and material as essential background to appellant’s other proof of monopolization of lasting machines and of injury to its business or property in the limitations period itself.” Again we are unwilling to accept plaintiff's contention. While plaintiff continually stresses the relevancy of these matters, relevancy is not the only factor to be considered by a court in determining the admissibility of evidence of this character. Courts traditionally must weigh the probative value of the evidence sought to be admitted against the capacity for prejudice which the evidence might engender. Where the prejudice quotient is high, this fact will frequently render inadmissible evidence which— from a purely logical standpoint — may have a significant probative thrust. See generally, McCormick, Evidence, 315-21 (1954). As was stated in Loew’s, Inc. v. Cole, 185 F.2d 641, 661 (9th Cir., 1950), cert. denied, 340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688 (1951): “ ‘[I]f certain evidential material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an unfair prejudice to the opponent, * * * there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.’ ” (Quoting Wigmore on Evidence.) We believe this principle is particularly apposite in the present proceeding. Whether admitted purely as “background” evidence or not, evidence of a judicial determination of prior illegal conduct on the part of the defendant cannot help but have a great emotive impact on a jury. As Wigmore states: “The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught is a tendency which cannot fail to operate with any jury, in or out of court.” 1 Wigmore, Evidence, § 57 (3d ed. 1940). It is of course well settled that evidence that a. defendant had, in the past, committed illegal acts is not admissible to show that he has a proclivity towards similar wrongs in a subsequent proceeding. See generally, Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954 (1933); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). 1 Wigmore, Evidence, § 64 (3d ed. 1940). Moreover, it is clear that if common law rules of admissibility were applied, a plaintiff would be unable to derive evidentiary benefit from the prior Government judgment. Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U.S. 55, 63, 39 S.Ct. 38, 63 L.Ed. 123 (1918). Until the advent of Section 5, these judgments were unavailable to a private plaintiff. In making this change, Congress delimited use of the prior judg ment to those precisely defined situations meeting the requirements of Section 5. Where, as here, a plaintiff does not meet the statutory requirements of Section 5, we believe that it would be unwarranted to allow it to attempt to do indirectly what it is foreclosed from doing directly. Absent the mantle of Section 5, if a plaintiff has the independent evidence to demonstrate antitrust violation and injury during the appropriate limitations period, then it would seem that he would not have to resort to a judgment obtained in a prior proceeding as “background.” If he does not have the independent evidence, we do not believe that he should be able to use the prior judgment as a crutch in the attempt to supply the essential elements of his action. It would be subversive of the purpose of Section 5 to permit the introduction of a prior decree or judgment “merely for its aura of guilt, or ‘to imply new wrongdoing from past wrongdoing.’ ” Monticello Tobacco Co. v. American Tobacco Co., 197 F.2d 629, 632 (2nd Cir., 1952), cert. denied, 344 U.S. 875, 73 S.Ct. 168, 97 L.Ed. 678. Finally, plaintiff argues at length that the trial court committed prejudicial error in limiting its development of the evidence in the pre-limitations period. Plaintiff urges that the trial court erroneously regarded the limitations period as controlling the admissibility of evidence, It is of course true that the statute of limitations does not govern the admissibility of evidence and that this question is controlled by rules independent of a limitations question. Klein v. American Luggage Works, Inc., 206 F.Supp. 924, 936 (D.C.Del.1962). Cf., Continental Ore Co. v. Union Carbide, & Carbon Corp., 370 U.S. 690, 709, 710, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). However, in the Continental case, supra, the Supreme Court made clear that: “We do

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?

DE BRUIN v. DE BRUIN. No. 10977. United States Court of. Appeals District of Columbia Circuit. Argued Jan. 8, 1952. Decided Feb. 28, 1952. Thomas H. Patterson and James T. Barbour, Jr., Washington, D. C., with whom Joseph M. Dawson, Washington, D. C., was on the brief, for appellant. Elizabeth M. Cox, Washington, D. C., for appellee. Before EDGERTON, PROCTOR and BAZELON, Circuit Judges. BAZELON, Circuit Judge. Mrs. deBruin, appellee here, through a committee appointed in her behalf in Virginia, brought suit against her husband, appellant here, for separate maintenance. He responded with a counterclaim which prayed for an absolute divorce on the grounds of desertion for two years or voluntary separation for five years. Judgment in the District Court went against Mr. de-Bruin and in favor of his wife. The court, sitting without a jury, concluded that she had lacked the mental capacity to form the intent which is a necessary prerequisite to either desertion or voluntary separation. The conclusion of the trial court with regard to appellee’s mental capacity was based upon the testimony of laymen and of a physician who was not a psychiatrist. This was not error. “ [A] s a general rule the admissibility of the evidence of lay witnesses to the mental capacity of a testator is a matter in the sound discretion of the trial court.” There is no reason which would justify the application of a 'different rule in the present case. Thus, laymen who have had a particularly good vantage point for observing the person under scrutiny may express their opinions as to mental capacity to court or jurors who have not had such an opportunity. And the court or jurors are the reasonable men who may find the truth therefrom. This is the method required for fact-finding under our system of jurisprudence despite great advances in psychiatry in recent decades. The physician’s testimony was not offered as being that of an expert in the field of psychiatry. He had known the appellee for many years and had attended her three times during January and February of 1941, early in her illness. The admissibility of his testimony, therefore, did not depend upon any special competence in mental disorders.2 Appellant contends that the trial court’s finding that appellee lacked the mental capacity to desert or to separate voluntarily was clearly erroneous. Whether appellee possessed the requisite degree of capacity was the subject of considerable testimony, virtually all of which indicated a lack of capacity. The commitment of appellee in 1948 lends credence to the conclusion reached by the trial judge with regard to her state of mind prior to such commitment. Under the circumstances, we are unable to say that the finding was "clearly erroneous.” Affirmed. . Obold v. Obold, 1947, 82 U.S.App.D.C. 268, 163 F.2d 32, 33. See also Turner v. American Security & Trust Co., 1909, 213 U.S. 257, 260, 29 S.Ct. 420, 53 L.Ed. 788. . “[Tjhe mental condition of an individual, as sane or insane, is a fact, and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact”. Connecticut Mutual Life Ins. Co. v. Lathrop, 1884, 111 U.S. 612, 620, 4 S.Ct. 533, 537, 28 L.Ed. 536. See also Stewart v. Overholser, 1950, 87 U.S. App.D.C. 402, 407-408, 186 F.2d 339. . Whether “physicians and surgeons of practice and experience” and training in fields other than psychiatry “are experts upon the question of sanity or insanity” is not presented here. Hamilton v. United States, 1905, 26 App.D.C. 382, 392. But see Overholser: Psychiatric Expert Testimony, 42 J.Crim.L. & Criminology 283, 295-6 (1951): “By all means there should be insistence on qualifications. The courts in general assume that any physician is competent to testify on any topic in the field of medicine. This is certainly unrealistic, especially with regard to psychiatry, in view of the wholly inadequate training in psychiatry which until very recently, was given to medical students, and the general lack of interest of the medical profession in the subject of mental disorder. The American Psychiatric Association, concerned with the problem of the inadequately qualified psychiatric ‘expert,’ was largely motivated by this concern in the establishment of the American Board of Psychiatry and Neurology in 1934. The requirements for certification by this Board are high, and there is every assurance that a diplómate of the Board may be looked upon as professionally competent in his field. It is to be hoped, indeed, that eventually courts may come to look upon certification by the Board as a prerequisite to admission to the giving of expert testimony in the field of psychiatry, or at least to question the qualifications of the non-diplomate.”

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

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

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

William C. BARNES, Plaintiff, Appellant, v. REDERI A/B FREDRIKA, Defendant and Third-Party Plaintiff, and ATLANTIC & GULF STEVEDORES, INC., Third-Party Defendant, Appellees. No. 9939. United States Court of Appeals Fourth Circuit. Argued July 1, 1965. Decided Sept 9, 1965. C. Arthur Rutter, Jr., Norfolk, Va. (Gerald Rubinger and Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for appellant. Charles R. Dalton, Jr., Norfolk, Va. (Peter W. Rowe and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee Rederi A/B Fredrika. Before HAYNSWORTH, Chief Judge, and BRYAN and BELL, Circuit Judges. ALBERT V. BRYAN, Circuit Judge. Unseaworthiness, the basis of his unsuccessful action for injuries suffered aboard the MS Dorotea, longshoreman Barnes contends, was erroneously submitted to the jury by the District Judge when he charged that: “Under the Maritime Law there is absolute and continuing duty on the part of the defendant, as owners of the vessel, to provide, maintain, and warrant that ship’s equipment and gear aboard the vessel are reasonably safe in the area where the plaintiff may reasonably be expected to go. *«•#*** “If you believe from the evidence that the absence of hatch boards on the number five hatch, or the lighting conditions in and around the immediate area of the number five hold, ’tween deck level, or lack of stanchions around number five hatch, or the clearance between the stacked cargo and hatch square number four hold, ’tween deck level, were in any way in whole or in part unsafe, then the ship was unseaworthy. And if you believe that as a proximate result thereof the plaintiff became injured, at a place where the plaintiff could reasonably be expected to go, then the defendant is liable to the plaintiff. ****** “We will now turn to the defense, as asserted by the shipowner. The shipowner owes the longshoreman-the duty to provide him with a reasonably safe place in which to discharge his work. But such duty is confined to those parts of the ship to which longshoremen may reasonably be expected to go. “To determine whether the shipowner should have reasonably anticipated Barnes would go into number five ’tween deck, you may consider proximity or lack of proximity to the work area, and Barnes’ reasons for being there. And if the shipowner could not reasonably have anticipated Barnes would go to the point where he was injured, then warranty of seaworthiness did not extend to Barnes in that area, and you must find for the defendant.” (Accent added.) Barnes’ exceptions run to the portions we have emphasized. His claim of negligence was voluntarily relinquished. Barnes’ argument is that the warranty of seaworthiness was not limited in area but extended to and protected him throughout the entire vessel; that the absence of the hatch boards constituted unseaworthiness as a matter of law; and therefore he was entitled to a peremptory charge of the ship’s unseaworthiness, the submission of the question to the jury being error. We think not, and affirm the judgment of the District Court upholding the verdict in favor of the shipowner, defendant-appellee Rederi A/B Fredrika. Employed by a stevedore in the discharge of general cargo from the Dorotea, while docked in Hampton Roads, Virginia, William C. Barnes was working with others at No. 4 hold. Near the end of the day certain bales of wool were discovered to have been unloaded through mistake. Barnes’ gang was ordered to reload them upon the ’tween deck, just forward of No. 4 hold. The hatch of No. 5 hold, immediately aft of No. 4, had been closed at the weather deck. There was no bulkhead or other fixed separation of the two holds at the ’tween level. In lieu, cargo had been piled athwartships between them to a height of 4 or 5 feet, for about 6 feet in thickness. This wall of cargo extended, at each end, to within 2 or 3 feet of the ship’s hull. Between the cargo-wall and the coaming around the squares of the holds, there was approximately 3 feet for passage. Barnes had not worked in the No. 5 area that day, and the re-stowing required neither access to nor any use of it whatsoever. A few minutes before Barnes’ ill-fortune, pier superintendent Riley had gone part way down the ’tween deck ladder, on the fore side of No. 5, while looking for a reportedly missing stowage of canned beef. He found it stacked in the No. 5 ’tween deck side of the cargo-wall near the ladder. None of it had been disturbed. The hold was dark and unlighted. It was covered at the ’tween deck with hatch boards, several of which had been set aside at the ladder and an opening into the lower hold thus created. Barnes was then engaged forward of No. 4 on the ’tween deck. After the search Riley left the area. Very shortly, upon hearing the report of a fall in No. 5, he went to the weather deck where rescuers had opened No. 5 hatch. He could see Barnes lying at the foot of the ladder in the lower part of the hold. Cartons of the canned meat on the ’tween deck had been broken open, with several cans spread about on the deck. The ladder and the point of the missing boards in No. 5 were approximately 40 feet from where Barnes and his companions had been working. No mistake is perceived in the Court’s submission of the issue of unseaworthiness. Confining the duty of maintaining a seaworthy vessel to the reasonable scope of the longshoreman’s activity is logical and correct in principle. Fully acknowledged as an obligee of the ship’s duty, nevertheless the longshoreman’s due should not exceed the need for his protection as measured by his function on the vessel. He is not subject to momentary orders, as is a crewman, to any part of the vessel whatsoever, and his presence at a location unconnected with his task is not to be anticipated. The legal soundness of this proposition was explicitly recognized in Calderola v. Cunard S.S. Co., 279 F.2d 475, 477 (2 Cir. 1960), cert. den. 364 U.S. 884, 81 S.Ct. 172, 5 L.Ed.2d 104 where this was said: “ * * * [A] shipowner’s duty to provide stevedores with a reasonably safe place to work is ‘confined to those parts of the ship to which the [stevedore] * * * may reasonably be expected to go. * * * ’ ” This language was borrowed from Lauricella v. United States, 185 F.2d 327 (2 Cir. 1950), which admittedly was a negligence case, but the Second Circuit’s adoption of this statement in an unseaworthiness ease gives it pertinency here. Therefore, the pivotal questions presently were, first, whether the absence of the hatch boards created an unseaworthy condition, next whether it caused his fall and, thirdly, within what space longshoreman Barnes was warranted seaworthiness. In the disputed circumstances, obviously these were factual issues. Mahnich v. Southern S.S. Co., 321 U.S. 96, 98, 64 S.Ct. 455, 88 L.Ed. 561 (1944); cf. Scott v. Isbrandtsen Co., 327 F.2d 113, 127 (4 Cir. 1964). The jury was left entirely free to decide them, circumscribed only by the evidence it accredited. The verdict went against Barnes on all questions, and certainly the findings were not without support. The District Judge, overcautiously we think, told the jury it could not consider whether Barnes had been stealing beef. Evidence on this point was admissible and relevant to establish, if only by inference, that Barnes had not gone around the cargo-bulkhead in his work but, instead, piratically. As the evidence was excluded and the error favored Barnes, the ruling does not enter into our decision. The judgment of the District Court will be Affirmed.

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

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

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

CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. INTERNAL REVENUE SERVICE, et al. No. 83-1856. United States Court of Appeals, District of Columbia Circuit. Argued April 11, 1984. Decided May 27, 1986. As Amended May 27, 1986. Robert A. Seefried, Washington, D.C., for appellant. Richard Wyndon Perkins, Atty., Dept, of Justice, with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Michael L. Paup and Stephen Gray, Attys., Dept, of Justice, Washington, D.C., were on brief, for appellees. Before WRIGHT and SCALIA, Circuit Judges, and FRIEDMAN, Circuit Judge of the United States Court of Appeals for the Federal Circuit. Opinion for the Court filed by Circuit Judge SCALIA. Sitting by designation pursuant to 28 U.S.C. § 291(a). SCALIA, Circuit Judge: This case arises out of the efforts of the Church of Scientology of California to obtain documents from the Internal Revenue Service under the Freedom of Information Act, 5 U.S.C. § 552 (1982) (“FOIA”). It requires us to review the District Court’s grant of summary judgment to the IRS on the adequacy of its response to the Church’s FOIA request. To do so we must consider, among other things, the relation between FOIA and the provisions of the Internal Revenue Code that govern disclosure of return information, 26 U.S.C. § 6103 (1982). I On May 16, 1980 the Church sent a Freedom of Information request to the IRS. It comprises seven single-spaced typed pages and is extremely confused, but for purposes of this appeal it has been adequately summarized by the Church as essentially requesting: 1. All documents or records “relating to or containing the names of Scientology, Church of Scientology, any specific Scientology church or entity identified by containing the words Scientology, Hubbard and/or Dianetics in their names, L. Ron Hubbard or Mary Sue Hubbard,” which could be located in a number of systems of records or files specifically identified in the FOIA request, “including but not limited to those located at the National Office, Regional Offices, Service Centers, District offices or Local IRS offices.” 2. All documents generated, received or which otherwise came into the possession of the IRS subsequent to the preparation of an index in a tax case involving the Church of Scientology of California pending in the United States Tax Court, Church of Scientology of California v. Commissioner of IRS [83 T.C. 381], (U.S. T.C.) [referred to below as the “Tax Court case”]. Brief for Appellants at 1-2. The IRS’s first response, dated July 22, 1980, requested additional time to “locate and consider releasing the Internal Revenue Service records to which you have requested access” and estimated that the Service would respond on August 29. On September 17,1980, a response still not having been received, the Church filed an appeal to the Commissioner. After the IRS acknowledged but failed to respond to the appeal, the Church filed a complaint in the United States District Court for the District of Columbia on December 18, 1980 under 5 U.S.C. § 552(a)(4)(B) (1982). In January 1981 the IRS finally responded to the Church’s request with a letter. For the sake of simplicity, we will limit our summary of that response to those factors that have some bearing on the issues here. The IRS noted that it had limited the scope of the Church’s request to documents pertaining to the California Church because the Church had not provided authorizations from any other Scientology entity nor from the Hubbards. Geographically the Service had limited the search to the National Office, the Covington, Kentucky, office and the Los Angeles office. The IRS claimed that all documents relating to the Tax Court case not previously released were exempt from disclosure under Section 6103(e)(7) because disclosure would seriously impair Federal tax administration. It released in full some national office documents acquired subsequent to the Tax Court case index, but justified only partial release of other National Office documents on grounds that they were outside the scope of the appeal, that their disclosure would cause a clearly unwarranted invasion of privacy, see 5 U.S.C. § 552(b)(6), or that they reflected return information of third parties, see 26 U.S.C. § 6103(a). After the IRS answered the complaint, the Church moved for an order requiring the IRS to prepare a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), but the District Court denied the motion. Instead it ordered submission for in camera inspection of: (1) twenty-six documents located in the National Office which contained portions alleged to be exempt under 5 U.S.C. § 552(b)(6) because their disclosure would constitute an unwarranted invasion of personal privacy; (2) three documents located at the National Office for which exemption was claimed under Section 6103(e)(7) because their disclosure would impair federal tax administration; and (3) all documents generated in connection with the Tax Court case. After in camera inspection of some 5,600 pages of documents, the District Court granted the IRS’s motion for summary judgment and dismissed the action with prejudice in June 1983. The Church appealed. We have jurisdiction under 28 U.S.C. § 1291 (1982). II The first issue we must address is the relation between FOIA and Section 6103. The Church argues that Section 6103 gives rise to an exemption from disclosure only under FOIA Exemption 3, 5 U.S.C. § 552(b)(3), and subject to the procedural provisions of FOIA, including its de novo review requirement. The IRS urges us to affirm the District Court’s holding that Section 6103 totally supersedes FOIA and provides the exclusive criteria for release of records affected by that section, so that courts must uphold any IRS refusal to disclose under Section 6103 that is not arbitrary or capricious and does not violate the other provisions of the Administrative Procedure Act. The IRS relies principally on Zale Corp. v. IRS, 481 F.Supp. 486 (D.D.C.1979), which has been followed by the Sixth and Seventh Circuits, see White v. IRS, 707 F.2d 897, 900 (6th Cir.1983); King v. IRS, 688 F.2d 488, 495-96 (7th Cir.1982). We cannot agree with those decisions. FOIA is a structural statute, designed to apply across-the-board to many substantive programs; it explicitly accommodates other laws by excluding from its disclosure requirement documents “specifically exempted from disclosure” by other statutes, 5 U.S.C. § 552(b)(3); and it is subject to the provision, governing all of the Administrative Procedure Act of which it is a part, that a “[sjubsequent statute may not be held to supersede or modify this subchapter ... except to the extent that it does so expressly,” 5 U.S.C. § 559. We find it impossible to conclude that such a statute was sub silentio repealed by § 6103. Insofar as is relevant to the issue here, the latter enactment does no more than what is done by all nondisclosure statutes covered by Exemption 3: it prohibits the disclosure of certain information (returns and return information). It differs from most other nondisclosure statutes only in that it specifies lengthy exceptions to its rule of nondisclosure. Not generally, but only in the painstaking detail of these exceptions, can it be considered — what Zale called it, 481 F.Supp. at 489 — a “comprehensive scheme.” But that sort of comprehensiveness has nothing to do with the appropriateness of continuing application of FOIA. Even the simplest nondisclosure statute, which makes no exceptions, is “comprehensive” in that sense — brief but comprehensive instead of lengthy and comprehensive. It would be another matter if § 6103 established some rules and procedures — duplicating those of FOIA — for individual members of the public to obtain access to IRS documents. But it does not. The entirety of its “comprehensive” detail relates to exceptions from the prohibition of disclosure — and even all of these, with three minor exceptions, see § 6103(k)(l), (3); § 6103(m)(l), pertain to disclosure to specified private individuals (e.g., the taxpayer to whom the information relates) or government officials, rather than to the public at large.. That is to be contrasted with § 6110, enacted at the same time as § 6103, which specifically requires that IRS written determinations be “open to public inspection,” and establishes procedures to obtain and restrain disclosure, time limits, the level of assessable fees, and an action to compel or restrain disclosure in the Claims Court. That scheme is a “comprehensive” one in the relevant sense — that is, in the sense of duplicating and hence presumably replacing the dispositions of FOIA. (Significantly, Congress did not leave us to speculate whether it was comprehensive enough to constitute an implicit pro tanto repeal of FOIA; the last subsection specifies that the prescribed civil remedy in the Claims Court shall be the exclusive means of obtaining disclosure, § 6110(Z).) From what has been said, it should be clear that we do not share Zale’s concern over our “duty to reconcile” FOIA and § 6103, 481 F.Supp. at 488, or over preventing FOIA from “negat[ing], supersed[ing], or otherwise frustratfing] the clear purpose and structure of § 6103,” id. at 489. The two statutes seem to us entirely harmonious; indeed, they seem to us quite literally made for each other: Section 6103 prohibits the disclosure of certain IRS information (with exceptions for many recipients); and FOIA, which requires all agencies, including the IRS, to provide nonexempt information to the public, establishes the procedures the IRS must follow in asserting the § 6103 (or any other) exemption. Of course FOIA can loosely be said to “frustrate” the purposes of § 6103 in that it places upon the IRS the burden of sustaining its claimed exemption in de novo judicial review. But if that sort of frustration requires the conclusion that § 6103 must have been intended to supersede FOIA, then all subsequently enacted nondisclosure statutes supersede FOIA, and Exemption 3 has no application except to statutes already on the books when FOIA was passed — a state of affairs no one has suggested. For these reasons, and for some further reasons discussed in Judge Sirica’s opinion in Britt v. IRS, 547 F.Supp. 808, 809-13 (D.D.C.1982), a decision of our district court subsequent to Zale and reaching the opposite conclusion, we hold, in agreement with the Fifth and Eleventh Circuits, that Section 6103 does not supersede FOIA but rather gives rise to an exemption under Exemption 3, 5 U.S.C. § 552(b)(3). See Linsteadt v. IRS, 729 F.2d 998, 1001-03 (5th Cir.1984); Currie v. IRS, 704 F.2d 523, 526-28 (11th Cir.1983). Ill The Church objects to the IRS’s decision not to search the files of its regional and district offices other than those in Los Angeles and Covington, Kentucky. FOIA requires agencies to make records available in response to any request “made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C. § 552(a)(3)(B). The IRS does not have a central file of records in which copies of all documents in its possession are retained. Its regulations therefore require requests to be made to the office of the official who is responsible for the control of the records requested, qr if the person making the request does not know the official responsible, to the office of the director of the IRS district office in the district where the requester resides. 26 C.F.R. § 601.702(c)(3)(iii) (1984). The regulations specify in some detail which officials are responsible for documents and give their addresses. 26 C.F.R. § 601.-702(g). It is undisputed that the Church did not direct its request to the officials in charge of the documents in regional and district offices, nor to the office of the director of the IRS district office in the district where the Church resides, but rather to the National Office of the IRS. The Service caused a search to be made of the records in its National Office, and in addition (though it was not technically required) of the records in the two field offices particularly pertinent to the Church’s operations. In view of the statutory command that requests be made in accordance with published rules, the clarity of those rules, and the reasonableness of the IRS’s treatment of the misdirected request, we find no merit in the Church’s contention that the IRS’s failure to inform it earlier that the request for a search of all district and regional offices was misdirected should have led the District Court to require a search of those offices. IV The Church also challenges the IRS’s decision to limit the search to files whose titles refer to the California Church. That decision involved two separate but related limitations: (1) restricting the search to those files whose subjects indicate that their contents are related to Scientology, the Hubbards, etc., rather than searching through all files, whatever their subject, that might contain some information responsive to the request; and (2) restricting the search further to those files whose subject is the California Church on grounds that the information in all requested files on other Scientology organizations, the Hubbards, etc., is return information and therefore exempt from disclosure to the California Church. The IRS justifies the first restriction on grounds that a request for all information on Scientology in its files fails to meet the statutory requirement of “reasonably describing] such records,” 5 U.S.C. § 552(a)(3). It is firmly established that “an agency is not ‘required to reorganize [its] files in response to [a plaintiff’s] request in the form in which it was made.’ ” Goland v. CIA, 607 F.2d 339, 353 (D.C.Cir. 1978) (quoting Irons v. Schuyler, 465 F.2d 608, 615 (D.C.Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972)). “[I]f an agency has not previously segregated the requested class of records production may be required only 'where the agency [can] identify that material with reasonable effort.’ ” Id. (quoting National Cable Television Association, Inc. v. FCC, 479 F.2d 183, 192 (1973)). Thus, the IRS would doubtless be within the law in restricting its search to files whose subjects indicate a connection with Scientology. It was not required to search through every file in its possession to see if a reference to Scientology appeared somewhere in it — for example, because a taxpayer claimed a deduction for a contribution to a Scientology organization. However, the problem at this stage of the litigation is that the District Court had only the IRS’s generalized assertion that it had examined the appropriate subject files. Indeed, it did not have even that, because of the further limitation restricting the search to the California Church alone, which we will discuss below. In these circumstances, we cannot conclude that the agency sustained the burden of justifying its actions, see 5 U.S.C. § 552(a)(4)(B), even with regard to the first limitation. Summary judgment on this point would require an affidavit reciting facts which enable the District Court to satisfy itself that all appropriate files have been searched, i.e., that further searches would be unreasonably burdensome. Such an affidavit would presumably identify the searched files and describe at least generally the structure of the agency’s file system which makes further search difficult. Cf. Goland v. CIA, 607 F.2d at 352-53 (agency met its burden of proving that it made a full search in good faith with relatively detailed, nonconclusory affidavits). But the first limitation was in any event superseded by the limitation to records of the California Church. The IRS does not appear to dispute that the Church’s request reasonably describes information directly relating to some other Scientology organizations and contained in files whose titles would enable identification without undue burden. Its decision not to search these files appears to rest exclusively on grounds that they contain only return information protected by Section 6103. The Church asserts that these grounds are patently inadequate, since (1) return information consists only of data that identify or can be associated with the taxpayer to whom they pertain, (2) FOIA’s requirement that “reasonably segregable” portions of otherwise exempt documents must be provided, 5 U.S.C. § 552(b), would mandate production of the data after redaction of materia] that enables identification or association, and (3) the possibility of redaction can only be assessed on a document-by-document basis. The crucial first premise of this argument has been considered by this court en banc and, by an opinion issued simultaneously with the present opinion, has been rejected. Church of Scientology v. IRS, 792 F.2d 153 (D.C.Cir. 1986) (en banc). The mere deletion of identifying material will not cause the remainder of the return information to lose its protected status, and document-by-document examination to determine the possibility of redaction for that purpose is therefore unnecessary. This is still not sufficient, however, to sustain the IRS’s bald contention that it need not search the file of any Scientology organization other than the California Church. That contention would be justified only if, as a matter of law, all information in IRS files is return information. That is unquestionably not so. Congress would not have adopted such a detailed definition of return information in Section 6103 if it had simply intended the term to cover all information in IRS files; and we have no authority to substitute the one disposition for the other. Here the Church requested, for example, information from Treas/IRS System Number 26.005, “File of Persons Making Threats of Force or Forcible Assaults.” If such a files system exists, it seems unlikely that its contents consist entirely of return information as defined in Section 6103. In any case, before the IRS’s claim that all information in the requested files is protected can be upheld, it must make an appropriate showing that all information comes within the statutory definition. For the reasons just given, the District Court erred in accepting the IRS’s blanket assertion that all information responsive to the Church’s request in files not relating to the California Church was exempt from disclosure. This does not mean, however, that the IRS must, as the Church would have us hold, prepare a Vaughn index of all documents in its files relating to third parties for which it claims an exemption under Section 6103 and Exemption 3. See Vaughn v. Rosen, 484 F.2d at 826-29. If the IRS claims that a particular document is exempt from disclosure because it contains information on one of the specific subjects protected by Section 6103 — for example, information about deductions claimed by a taxpayer — a Vaughn index may be required in order to show that the document does not contain segregable portions that could be disclosed without revealing such information. When, however, a claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains, resort to a Vaughn index is futile. Thus, in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the Supreme Court upheld, without any provision of a Vaughn index, the Labor Board’s refusal to provide under FOIA witness statements obtained in the investigation of pending unfair labor practice proceedings. A Vaughn index would have served no purpose since, as the Court held, Exemption 7(A), which excludes from required disclosure “investigatory records ... to the extent that the production of such records would ... interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), did not require a sjhowing that each individual document would produce such interference, but could rather be applied generically, to classes of records such as witness statements. See also Campbell v. Department of Health and Human Services, 682 F.2d 256, 265 (D.C. Cir.1982) (government required to provide affidavits but not Vaughn index to establish applicability of Exemption 7(A)); Brinton v. Department of State, 636 F.2d 600, 606 (D.C.Cir.1980) (invocation of the deliberative process exclusion of Exemption 5 upheld on the basis of affidavits and no index); Mervin v. FTC, 591 F.2d 821, 826 (D.C.Cir.1978) (invocation of the attorney’s work product exclusion of Exemption 5 upheld on the basis of affidavit and no index); Barney v. IRS, 618 F.2d 1268, 1272-74 (8th. Cir.1980) (invocation of Exemption 7(A) upheld on the basis of affidavits and no index). If, therefore, the Commissioner’s assertion of a Section 6103 exemption rests upon such generic grounds, he will ordinarily be able to make the requisite showing with an affidavit sufficiently detailed to establish that the document or group of documents in question actually falls into the exempted category. Some portions of § 6103 are plainly susceptible of such generic application — particularly that portion which defines protected return information to include all information, no matter what its subject, “received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person ... for any tax, penalty,, interest, fine, forfeiture, or other imposition, or offense,” 26 U.S.C. § 6103(b)(2)(A). In light of the foregoing discussion, the IRS must either conduct a new search for information responsive to the Church’s request that refers to third parties or establish through affidavits that all information about third parties in identifiable files requested by the Church is generically protected by Section 6103. If a new search produces any third party information responsive to the Church’s request, the IRS must either disclose it or justify withholding it in light of one of the FOIA exemptions through affidavits and, where necessary, Vaughn indices. The IRS’s search uncovered a large number of documents responsive to the Church’s request and relating specifically to the California Church. It claimed exemption for the majority of these documents — concretely the Tax Court case documents — on the ground that disclosure “would seriously impair Federal tax administration,” 26 U.S.C. § 6103(c). Selected portions of a much smaller group of documents not related to the Tax Court case were withheld under various FOIA exemptions because they contained personal information or third party return information, or because they exceeded the scope of the Church’s request. The Court upheld the IRS’s claim of exemption on the basis of in camera examination of a representative sample of the documents, without the benefit of detailed public affidavits or indices. While in camera, individual inspection of each of a small number of documents without detailed public affidavits and Vaughn indices is sometimes acceptable, see Currie v. IRS, 704 F.2d at 530-31, such an approach cannot be applied to large numbers of documents — much less to large numbers of documents that represent only a sampling. It places unrealistic and unsustainable demands upon the trial court and the reviewing appellate panel, and therefore must be replaced or supplemented by the adversary testing which public affidavits and indices seek to provide. See Vaughn v. Rosen, 484 F.2d at 825. With respect to these documents, therefore, the District Court should have required the IRS to sustain its burden of proving that the documents it sought to withhold were exempt from disclosure through an appropriate combination of detailed public affidavits and (if necessary) indices, resorting to in camera examination of documents and affidavits only where these proved inadequate. We note in this regard that the asserted exemption for documents whose disclosure “would seriously impair Federal tax administration,” 26 U.S.C. § 6103(c), is analogous to the exception at issue in Robbins, supra, for documents whose disclosure would “interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), and like that exemption should be sustainable generically, as applied to certain categories of documents, on the basis of affidavits and without Vaughn indices. The order of the District Court is vacated and this case is remanded to the District Court for further proceedings consistent with this opinion. At the conclusion of such proceedings, the Church may renew its motion for an award of attorney fees if it so desires. So ordered. . In its opinion, Church of Scientology of California v. IRS, 569 F.Supp. 1165, 1171-72 (D.D.C. June 24, 1983), the court speaks of eight documents parts of which were withheld under the personal privacy exception, three documents parts of which were withheld because they dealt with third-party return information, and four documents parts of which were withheld because they were outside the scope of the plaintiffs request. The record does not explain the discrepancies between the number and type of documents ordered lodged in camera and the number and type of documents discussed in the court’s opinion; but those discrepancies are not important for our disposition of this case. , We do not suggest that an earlier Congress can limit the manner in which a later Congress may express its legislative acts. This provision, like any other, can presumably be repealed by implication. But it assuredly increases the burden that must be sustained before an intent to depart from the Administrative Procedure Act can be found. . The District Court does mention that the IRS indexed twenty-one documents located in its National Office, but its opinion seems to suggest that the court relied entirely upon in camera examination. See Church of Scientology of California v. IRS, 569 F.Supp. 1170-72.

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

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

SOUTHWESTERN ELECTRIC POWER COMPANY, Appellant, v. LOCAL UNION NO. 738, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Appellee. No. 18690. United States Court of Appeals Fifth Circuit. Sept. 1, 1961. Rehearing Denied Oct. 2, 1961. Richard L. Arnold, W. H. Arnold, III, and Arnold & Arnold, Texarkana, Ark., for appellant. R. L. Whitehead, Longview, Tex., for appellee. Before TUTTLE, Chief Judge, and HUTCHESON and JONES, Circuit Judges. JONES, Circuit Judge. The appellant, Southwestern Electric Power Company, herein called the Company, furnishes electric current to consumers in Louisiana, Arkansas and Texas. It has, and for some years has had, a collective bargaining contract with the appellee, Local Union No. 738, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union. The contract between the Company and the Union contained a seniority clause, Numbered Rule 8 of Article 14, in the following terms: “Seniority shall rule in making reductions in or additions to the forces, and in making promotions, subject to the relative ability and qualifications of the Employees concerned, as to their present or prospective job classifications.” The contract also contained an arbitration clause which provided for the handling of grievances. The agreement did not define “grievance” or in any way limit or modify the application of the arbitration clause to grievances. The pertinent provisions of the arbitration article are: “In the event any Employe or group of Employees covered by this Agreement shall have any grievance, he shall first report such grievance to his Local, whose authorized representatives may take such grievance up verbally with the Employee’s immediate supervisor; and in the event a satisfactory solution cannot be obtained in this manner, then, if Local, after due investigation, decides that such grievance should be taken to higher authority in Management, it shall do so in writing, stating the Article and Rule of this Agreement which is violated, together with all the facts as disclosed by such investigation. All grievances must be filed with the Company or the Union within thirty days after the alleged violation of the Rule. Such matters shall be referred to higher officials of Management in the following order: “1. Division Management or Operating Superintendent. A decision shall be rendered within a ten working day period. “2. Vice President, Engineering-Operations. A decision shall be rendered within a fifteen working day period. “Similarly, if Management shall have any grievance, it shall take the matter up with higher officials of the Union in the following order: “1. Local Representative. “2. International Representative. “3. District International Vice-President. “In the event that satisfactory solution of such grievance, either on the part of the Union or on the part of Management, cannot be obtained at one of these points, then either Union or Management shall have the right to refer the matter in controversy to the International Vice-President in the district involved for further discussion with the Vice-President, Engineering-Operations. “The parties shall designate a Board of Arbitration consisting of one member chosen by the Union, one member chosen by the Company and a third impartial arbitrator. This third impartial arbitrator, whose fee and expense shall be borne equally by the Union and the Company, shall be selected by elimination from a list of five (5) names furnished at the request of either the Union or the Company by the American Arbitration Association. The Union and the Company shall each have the option of rejecting any two (2) names on said list, and the first name of the remaining names shall be that of the third impartial arbitrator. The decision of the Board must be rendered within ten (10) days after it has heard all the facts of the grievance and such decision will be final and binding upon all parties to this Agreement. “The Arbitrator or Board of Arbitrators shall have no power to add to, subtract from, or modify the terms of this Agreement.” In April, 1958, the Company had an opening for a serviceman in Longview, Texas, and so notified the Union. The Company gave the job to Guy Pritchett who at the time was an apprentice serviceman but was carried on the Company payroll as an apprentice lineman. He was selected in preference to four journeymen linemen, Eugene Owsley, who was employed on January 10,1949, Houston Vail, who was employed on May 3, 1954, H. T. Fuller, who was employed on April 6, 1955, and Wallace Strickland, who was employed on June 16, 1957. Pritchett was employed on May 3, 1954, the same day that Vail was employed. The Union presented a grievance in writing to the Company’s Local Manager in Longview claiming that in giving the job to Pritchett the Company had violated the seniority clause of the contract. The Company’s Local Manager sent the grievance to the Company’s Division Manager at Marshall, Texas. A meeting was held and an investigation made, after which the Division Manager made a report in which it was stated that none of the four journeymen linemen was qualified as a serviceman, that Pritchett, although classified as a fourth-year apprentice, had taken intensive training as a serviceman and was qualified for the job. The grievance was submitted to the Company’s Vice-President in Charge of Engineering-Operations who advised the Union’s Business Agent that the selection of Pritchett as a man having the best over-all qualifications and training for the job was thoroughly justified. This was followed by a letter from the International Representative of the Union, P. A. Alexander, to the Company’s Vice President stating that the Union desired to submit the grievance to arbitration, and naming himself as the Union member of a board of arbitration. The Company was requested to name a member to an arbitration board and to join in requesting from the American Arbitration Association a list from which a third arbitrator could be selected. In the acknowledgement of this letter, no reference was made to the demand for arbitration. In response to a further inquiry from the Union’s attorney the Company refused to submit to arbitration. In so doing, the Company’s Vice President wrote that Pritchett was the best qualified man for the job, that the seniority provision of the contract was expressly made “subject to the relative ability and qualifications of the Employees concerned.” The letter of fhe Company’s Vice President to the attorney for the Union continued: “In these circumstances, it is my opinion, and I have previously advised the Locals and Mr. Alexander to this effect in the meetings which we have held, that there is no grievance to arbitrate within the meaning and intent of the labor agreement which exists between our company and the Local Unions. We have in all respects complied with Rule 8 of Article 14 and the grievance procedure of the agreement with the Locals. “It seems to me that the claim advanced by your client that arbitration is required is wholly contrary to the terms of the contract and amounts to an attempt to change the language of the contract by the arbitration process. “I refer you to the following language which occurs at the end of Article 5 of the existing agreement: ‘The Arbitrator or Board of Arbitrators shall have no power to add to, subtract from, or modify the terms of this Agreement.’ “We must, therefore, reject your client’s claim for arbitration on the ground that no arbitrable grievance exists within the meaning of the contract.” The Union brought suit praying for a mandatory injunction requiring the Company to submit the grievance to arbitration. The Union proved the dates of employment and the job ratings of Pritchett and the four journeymen linemen. The Company sought to show that seniority meant only the length of time extending from the date of employment. Evidence was introduced by the Company for the purpose of showing that Pritchett was qualified as a serviceman and that each of the four journeymen linemen was not. The district court concluded that there was a disagreement between the Union and the Company as to whether Pritchett was the senior qualified employee entitled to assignment to the job as serviceman, and that this question presented a grievance within the meaning of the contract and that the Union was entitled to have an arbitration. Arbitration was ordered by the court’s injunction and the Company has appealed. The Company assigns two specfications of error. The first of these is that the conditions precedent to arbitration have not been met in that the matter was not referred to the International Vice President of the Union for further discussion with the Vice President, Engineering-Operations of the Company, and that the Union failed to furnish, with the grievance, a statement of all the facts. As to the failure to furnish the statement of facts it may be said that there was no objection made at any time before the suit was brought that the statement was not furnished and it may be further said that the facts were fully developed. As to the failure to have a reference to the International Vice President of the Union for a discussion with the Vice President of the Company, it may be said that the refusal of the Company to submit to arbitration was squarely based upon the proposition that there was no arbitrable grievance. No suggestion was made that any statement of fact was needed or that any further discussion upon a higher level was desirable, or that arbitration was not available because of non-performance of contract conditions by the Union. The record clearly shows an unwillingness on the part of the Company to recognize the Union’s claim as a grievance which was covered by the arbitration clauses of the contract. Upon receipt of the letter the Union had justification for a belief that the performance of the conditions precedent would be useless. The repudiation of arbitration as a means of determining the dispute was unequivocal. The Company is estopped to assert now that arbitration cannot be had because the specified conditions precedent had not been performed. United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997; United Protective Workers of America v. Ford Motor Co., 7 Cir., 223 F.2d 49, 48 A.L.R.2d 1285; 3 Corbin on Contracts 941, § 762. We find no merit in the Company’s first specification of error. The second ground upon which the Company seeks reversal is that no valid arbitrable grievance under the agreement has been asserted by the Union. The Company states that, as a matter of law, arbitrators cannot add to or subtract from, or modify the terms of the agreement. This is an accurate statement but is not here applicable. The Company makes an extended argument upon the merits. These are not for our consideration on the issue of whether there is an arbitrable grievance under the terms of the contract. Nepco Unit of Local 95, etc. v. Nekoosa-Edwards Paper Company, 7 Cir., 1961, 287 F.2d 452. We think an affirmance is required on the authority of United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; and United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409. In the American Manufacturing Co. case a union member named Sparks had been awarded workmen’s compensation on the basis of permanent disability. Sparks wanted his job back and the employer refused to rehire him. The union filed a grievance on the ground that Sparks was entitled to reinstatement under the contract seniority provisions. The employer refused to rehire Sparks and refused to recognize an arbitrable grievance. It was there said: “The union claimed in this case that the company had violated a specific provision of the contract. The company took the position that it had not violated that clause. There was, therefore, a dispute between the parties as to ‘the meaning, interpretation and application’ of the collective bargaining agreement. Arbitration should have been ordered.” 363 U.S. 564, 569, 80 S.Ct. 1343, 1347. See also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; Lodge No. 12, District No. 37, etc. v. Cameron Iron Works, 5 Cir., 1958, 257 F.2d 467, certiorari den. 358 U.S. 880, 79 S.Ct. 120, 3 L.Ed.2d 110; Nepco Unit of Local 95, etc. v. Nekoosa-Edwards Paper Co., supra. The judgment of the district court in ordering arbitration was a proper one. It 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?

A. J. KRAJEWSKI MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Steelworkers of America, AFL-CIO, Intervenor. No. 7224. United States Court of Appeals First Circuit. Heard April 8, 1969. Decided July 17, 1969. William J. Sheehan, Providence, R. I., for petitioner. Eugene B. Granof, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and David C. Nev-ins, Atty., Washington, D. C. were on brief, for N. L. R. B., respondent. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. On August 24, 1966, Michael Andreoli was called to the office of his employer and summarily fired. The several issues that we consider in this case center around this event and the circumstances that triggered it. For many months after coming into the employ of the Krajewski Company, Andreoli’s performance had been satisfactory if uneventful. Then in June of 1966 he became active in union organizational matters. Union authorization cards representing a majority of the Company’s employees were signed largely as a result of his efforts. Based on these cards the Union made a claim of majority status and requested that it be recognized as the bargaining agent. The Company, disparaging the value of such cards in general and doubting that its employees had signed them in any event, refused to meet the Union’s demands. Thereafter the parties agreed to an election. This election, held on September 14, resulted in the defeat of the Union by a vote of thirty-seven to ten. Meanwhile, Andreoli’s success as a labor organizer was paralleled by a decline in his fortunes as an employee. About two weeks before his discharge Andreoli noticed two foremen inspecting his open locker where he testified he kept, or at any rate had kept, union authorization cards. He complained of this incident to Fred Slemon, the general manager. Also, a few days later Andreoli received a warning letter charging that he had improperly questioned one Robert Bost, a customer’s employee, concerning Kra-jewski operations on a holiday (V J Day). Finally, he had an argument with the wife of a foreman (also a Krajewski employee)- during which he made a vulgar remark to her. When this incident was reported to A. J. Kra-jewski, the president of the Company, Andreoli’s dismissal resulted. The Board, adopting the findings of the trial examiner, found that the Company violated §§ 8(a) (1), (3) and (5) of the National Labor Relations Act by giving the impression of surveillance of Andreoli, by discharging him and by refusing to bargain with the Union. It ordered that the election be set aside, that the Company bargain with the Union and that Andreoli be reinstated. Turning first to the question of surveillance, we are constrained to note that the Board’s determinations in this respect are extremely tenuous. Two foremen looked into the open locker of an employee. They testified that they didn’t even know whose locker it was. In addition, their principal interest was that there were “three pairs of cutters” in the locker whereas each employee was supposed to have only one. Despite this the foreman took no disciplinary measures of any kind. We cannot say that this constitutes substantial evidence of surveillance. The trial examiner, himself troubled that this incident might appear to be of “small significance were it isolated,” calls attention to “contemporary events,” such as the general manager’s warning letter above mentioned, and his statement to Robert Bost that Andreoli was suspected of union activity. But such events hardly provide the background for a charge of surveillance. As to the warning letter, there was evidence that before the holiday there had been grumbling among the employees concerning the possibility of working on that day. The Company was understandably agitated when it learned that an employee involved its customers in this matter by raising questions concerning which employees had been working on the holiday. It would appear, however, that to this extent it was Andreoli who had the Company under surveillance rather than the other way around. The other contemporary event, Slemon’s statement that Andreoli was suspected of union activities, is equally unimpressive. Sle-mon denies having made the statement at all and since he is supposed to have made it to Bost just after the latter had made a most profuse expression of fealty to unions and unionism generally it is surprising that his denial was not credited. In any event, assuming that Sle-mon made the statement, we are unable to agree that this would convert the locker episode into surveillance or the impression of surveillance. We come now to the dismissal itself. The Board found that the real reason for Andreoli’s discharge was his union activities. We think this determination is supported by the circumstances of the dismissal, especially the Company’s inability to adhere with consistency to any explanation for its action. The theory now espoused by the Company is that Andreoli was fired because of the vulgar remark made to a female employee. Intrinsically there are difficulties enough with this. It appears from the record that similar vulgarity was not unusual in the plant and that language-wise even the female employee in question was quite capable of giving as good as she received. In addition, despite warning from counsel not to take disciplinary action without consultation, Krajewski, after a vain effort to reach his attorney, acted on his own that very day; this despite the fact that the event was already three days old before he learned of it. The explanation for the dismissal was weak enough even if it had been advanced with consistency. But there was no consistency to it at all. Andreoli himself was told at the time that he was being dismissed because his work was unsatisfactory. This explanation has since been repudiated by the Company. Also, Krajewski told him that he would receive a letter from the Company attorney explaining the reasons for his dismissal. No such letter was sent. In addition, Slemon, who was present at the firing, charged that Andreoli had improperly ordered another employee to do certain work. This was news even to Krajewski. Also, a notice of disqualification for unemployment benefits sent to Andreoli by the Rhode Island Department of Employment Security, reads in part: “Employer information reveals the claimant’s employment was terminated because of his absence from his work area without permission and for questioning a company customer regarding the operation of the plant on a holiday. * * * ” This is but another indication that the Company was unable to settle on a reason for the discharge, which in itself lends support to the theory that Andreoli’s union support was the real explanation. See N. L. R. B. v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir.1966); N. L. R. B. v. Schill Steel Products, Inc., 340 F. 2d 568, 573 (5th Cir.1965). Of course, a determination that an employee was fired because of his union activities presupposes that the employer was aware of such activities. But we, do .not consider this a really separate issue here. Inferences from circumstantial evidence as to the employer’s knowledge are permissible, Virgin Islands Labor Union v. Caribe Construction Co., 343 F.2d 364 (3d Cir.1965), and the really extraordinary vacillation of the employer is such a circumstance. Schill Steel, supra at 572-573. This is true especially where, as here, the employee in question engaged in in-plant union activity and the plant is relatively small. See Joseph Antell, Inc., supra. Finally, we turn to the § 8(a) (5) refusal to bargain charge. This involves two questions: (1) Did the Union have majority status in fact? See N. L. R. B. v. Midwestern Manufacturing Co., 388 F.2d 251 (10th Cir.1968). (2) If so, did the Company have a good faith doubt. In this circuit we have not felt that authorization cards are so intrinsically unreliable that a company always has a right to reject a request for recognition based on them. N. L. R. B. v. Sinclair, 397 F.2d 157 (1st Cir.), aff’d sub nom. N. L. R. B. v. Gissel Packing Co., (6/16/69) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547; N. L. R. B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (1st Cir.1967). In this case the trial examiner concluded that in no instance had the signer of a card been told that the only purpose of such cards was to get an election and further that “neither fraud nor misrepresentation nor coercion” was used in obtaining them. We think that substantial evidence supports this finding. It is not necessary to analyze in detail the testimony regarding the numerous cards challenged by the Company. For the most part it is enough to say that the cards were clear and unambiguous on their face and there has been no showing of misrepresentation. See Amalgamated Clothing Workers of America v. N. L. R. B., 365 F.2d 898, 906-907 (D. C.Cir.1966). One problem, however, is worthy of comment. There was testimony to the effect that certain of the signers were not fluent, at least in the English language. This is certainly pertinent. It largely negatives as to such signers, for instance, any inference from the fact that the purpose of the cards clearly appears on their face. See N. L. R. B. v. Dan Howard Manufacturing Co., 390 F. 2d 304 (7th Cir.1968). Still, the issue is whether the purpose of the cards was adequately communicated to the signers, not whether they read them. See N. L. R. B. v. Gordon Manufacturing Co., 395 F.2d 668 (6th Cir.1968). To hold otherwise would, it is true, lessen the likelihood that uneducated workers would be victims of fraudulent practices but it would have the collateral effect of inhibiting organizational efforts among workers who are perhaps most in need of collective economic strength. With special attention to the testimony regarding workers who did not or who were unable to read the cards, we conclude that the determination of the Board that their signatures were not obtained by misrepresentation is supported by substantial evidence. We need not pursue the present effect of a good faith doubt on the employer’s part. See discussion in N. L. R. B. v. Gissel Packing Co., swpra. Following the Court’s decision in Gissel, counsel for the Board informed us that remand, such as was made in Gissel itself, in order for the Board to review its findings in the light of that decision may be an appropriate disposition at this time. While, except for the matter of surveillance, we might be disposed to affirm the present decision of the Board the desirability of consistent Board practice in the light of Gissel dictates the adoption of the Board’s suggestion. The case is remanded to the Board for further proceedings consistent with this opinion. . This foreman, Allison White, was one of the two men who inspected Andreoli’s locker. . It is true that Krajewski gave this explanation only when prodded by Andreoli but refusal by the employer to give a reason for firing an employee may itself be a reason for inferring a discriminatory discharge. N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511, 515 (5th Cir. 1964). . The Company attorney explains that fear of a libel suit dissuaded him from writing such a letter. . This notice is not, of course, authority for the truth of the allegations contained therein but it does indicate further vacillation on the part of the employer as to why the employee was fired. In view of the fact that Andreoli identified the notice at the hearing, we think that it was sufficiently authenticated for our purposes. . There were fifty-five employees of whom thirty signed cards. The Company challenges thirteen of these cards. . “I hereby request and accept membership in the UNITED STEELWORKERS OE AMERICA, A.E.L.-C.I.O., and of my own free will hereby authorize the United Steelworkers of America, A.E.L.-C.I.O., its agents and representatives, to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment.” Compare N.L.R.B. v. Southland Paint Co., 394 F.2d 717, 730 (5th Cir. 1968) where the court attached significance to the fact that the card contained no reference to signer’s membership in the Union. . We do not deal with the company’s contention that Andreoli should be reinstated because it has been discovered that he falsified his job application. This point was not raised before the Board. See § 10(e) of the Act, 29 U.S.C. § 160(e).

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"?

EARL R. COMPTON and Carolyn W. Compton, Plaintiffs-Appellants, v. AETNA LIFE INSURANCE AND ANNUITY COMPANY, Defendant-Appellee. No. 91-7356. United States Court of Appeals, Eleventh Circuit. March 25, 1992. David C. Johnson, Johnson & Cory, Ronald 0. Gaiser, Jr., Birmingham, Ala., for plaintiffs-appellants. Michael C. Quillen, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Samuel M. Hill, Birmingham, Ala., for defendant-appellee. Before COX, Circuit Judge, JOHNSON and REAVLEY , Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. REAVLEY, Senior Circuit Judge: Appellants Earl and Carolyn Compton sued appellee Aetna Life Insurance and Annuity Co. (Aetna) for breach of contract and fraudulent suppression, among other things. After dismissing the Comptons’ related claims, the district court granted Aetna summary judgment on the Comp-tons’ contract and suppression claims. We affirm. I. BACKGROUND In September 1988, the Comptons applied for health insurance coverage under a policy issued by Aetna (the Policy). Aetna developed the Policy exclusively for members of the Professional Association of Crafts and Trades (PACT) and executed an insurance contract with PACT. Upon receiving the Comptons’ application, Aetna sent the Comptons a certificate (the Certificate) that described the Comptons’ coverage under the Policy, but expressly made the Policy “the whole contract” between Aetna and the Comptons. The Certificate froze the Comptons’ initial monthly premium at $172.40 for one year and then stated: Premium Rates — Premiums for each certificate year are based on the age of each Covered Person on the first day of that year and the table of rates then in effect. Premiums are expected to increase each year. Changes In Premium Table — Aetna has the right to change the table of premium rates. The change will take effect on the first day of the certificate year. Aetna must provide the Member with written notice of the change at least 30 days before the effective date. The Certificate concludes with the following: Policy Changes — The policy may be changed at any time by written agreement between Aetna and PACT. The consent of the Insured or any other person is not needed. All agreements made by Aetna are signed by one of its executive officers. No person can change or waive any of the policy terms or make any agreement binding on Aetna. PACT will not have to give approval of a change in the policy if PACT has asked for the change and Aetna has agreed to it. The Certificate’s front page states: Please read this certificate. If the insurance does not meet your needs, send this certificate back, within 10 days after you receive it, to Aetna or the representative through whom it was purchased. A full refund will be made. Then the insurance will be as though it had never been in force. The Comptons did not exercise this option. Although the Comptons do not admit that they received a rider with the Certificate, they do admit that they received Rider 24488 (the Rider) from Aetna. The Rider makes the following changes in the Policy and Certificate as of October 1, 1988: the Premium Rates section and the Changes in Premium Table section are deleted and replaced by the following: Premium Rates — Premiums for each certificate year are based on the age of each Covered Person on the first day of that year and the table of rates then in effect on the premium due date. Premiums may depend on smoker/non-smoker status, family discount, residence, sex, current loss experience class for renewals, and such other factors as Aetna may determine from time to time. Changes in Premium Table — Aetna has the right to change the table of premium rates. The change will take effect on any premium due date. Aetna must provide the insured with written notice of the change at least 30 days before the effective date. An Aetna agent signed the Rider. Approximately one month after purchasing the Certificate, Mrs. Compton suffered a stroke and received approximately $90,-000 in Policy coverage from Aetna. On the Certificate’s first anniversary, in September 1989, Aetna raised the Comptons’ monthly premium from $172.40 to $543.10. In March 1990, Aetna increased the premium to $641.39. In September 1990, Aetna increased the premium to $842.36. According to the uncontroverted affidavit of Gregory W. Chicares, an Aetna actuary, the Comptons’ premium increased because of: (1) staggered, across-the-board Policy increases totaling 113.2% due to rising health care costs; (2) the fact that Mrs. Compton’s claims on the Policy exceeded the Comptons’ premium payments, which placed them in the highest of six risk groups under the Policy and increased their premiums by 50%; (3) the Comptons' aging (6.63% for Mrs. Compton and 12.77% for Mr. Compton); (4) the fact that Aetna began to account for the sex of its insureds under its rating system (3.94%); (5) the area of the Comptons’ residence (5.7%); and (6) the fact that the Comptons’ premium was payable monthly (5.8%). The Comptons claim that Aetna breached the Certificate when it increased their premium by 489% over the course of two years. They also claim that Aetna fraudulently concealed the basis for its premium increases. The district court rendered summary judgment against the Comptons on these claims because the Comptons failed to produce any substantial evidence to show that the Rider was not part of the contract between Aetna and the Comptons, because Aetna increased the Comptons’ premium in accord with the Rider, and because the Rider disclosed the basis for the premium increases. II. DISCUSSION Under the undisputed facts recited, Aet-na prevails as a matter of contract and tort law. A. Breach of Contract The Comptons bought the Certificate and continued their coverage under it after being advised that Aetna reserved the right to change the Certificate’s terms upon agreement with PACT. Aetna exercised that right in adopting the Rider, and increased the Comptons’ premium according to the Rider. In fact, the only increase that Aetna based on a factor that was not explicitly listed in the Rider was the relatively insignificant increase of 5.8%, which Aetna attributed to the Comptons’ manner of premium payment. Aetna based this increase on the Rider’s catch-all clause. The Comptons invite us to interpret Aetna’s repeated use of the term “table of rates” to mean that, even under the Rider, Aetna was required to have employed a single table of rates to determine the Comptons’ premium. We refuse. The Rider lists several factors that Aetna planned to consider in its premium determinations. The fact that Aetna used the term “table” in the singular does not relegate Aetna to basing its premiums on only two of the factors that it listed. Webster defines a “table” as “a systematic arrangement of data usu[ally] in rows and columns for ready reference.” Webster’s Ninth New Collegiate Dictionary 1200 (1985). A single table may account for more than two variables. Nor is it significant that Aetna may never have determined the Comptons’ premiums from a single table; the language that Aetna employed in the Certificate and Rider did not preclude it from taking into account all of the factors that it indicated would be relevant to its premium determinations. The Comptons also argue that the experience rating system employed by Aet-na made the Comptons’ premium depend on their use of the Policy, not any table. The Comptons’ premium did depend to some extent on their history of claims under the Policy. Based on the amount of their claims compared to their premiums paid, Aetna placed them into a risk pool and based a premium increase percentage on their risk-pool number. Thus, as expressly provided in the Rider, Aetna used the Comptons’ claim experience as one factor in calculating their premium. This accords with, rather than contradicts, the Rider’s “table of rates” language. Finally, the Comptons claim that Aetna breached the Certificate’s express terms by raising their premium more than once in a year. But the Rider expressly deletes from the Certificate the provisions that the Comptons rely upon. The Rider replaces those provisions with the statement, “Aetna has the right to change the table of premium rates. The change will take effect on any premium due date.” The Comptons’ premium was due each month. Aetna breached no contract by raising the Comptons’ premium semi-annually. B. Fraudulent Suppression Not only do the Comptons admit having received the Rider from Aetna, they admit receiving a letter from Aetna two months before the first anniversary of their policy that explains that their rates will be based on claim experience, gender, area, and age. There is no evidence that Aetna, by act or omission, concealed any fact from the Comptons, let alone that Aet-na intentionally deceived them. See Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989) (“to support a cause of action for fraudulent suppression [under Alabama law], one must produce evidence of a present intent to deceive by the suppression or active concealment of an existing material fact”). III. CONCLUSION We recognize that it may seem unfair to allow Aetna to alter the Certificate’s terms without the Comptons’ consent and begin basing the Comptons’ premium in part upon the amount that they used their health insurance. But whether these types of insurance policies should be allowed is a legislative question. This court decides only the breach of contract and fraudulent suppression claims. AFFIRMED. . However, careful examination of the Comp-tons’ premiums suggests that Aetna did not egregiously take advantage of the Comptons. The rationale behind group insurance is to shift the risk of financial loss from a catastrophic illness such as the one suffered by Mrs. Compton to a group. A small number of the group use the premiums of the whole to offset the costs of treating a major illness.- Contrary to the Comp-tons’ arguments, their Certificate effectively shifted the risk of financial ruin from Mrs. Compton’s stroke to the PACT policyholders. Without any premium increase due to Mrs. Compton’s stroke, the Comptons’ monthly premium would have risen to approximately $516 by September 1990 due to the Comptons’ aging, area of residence, and (mostly) to skyrocketing health care costs in this country. Because of Mrs. Compton's stroke, Aetna charged the Comptons approximately $842 per month. But an Aetna actuary testified that the Comptons' position in the highest claim experience pool is calculated based on a three-year rolling average. This means that Mrs. Compton’s $90,000 claim against the Policy could only be used to increase her premium for three years. Thus, at the very most, Aetna asked the Comptons to pay (12 months) x (3 years) x ($842 — $516) = $11,736 in extra premiums as a result of Mrs. Compton’s $90,000 claim. The Comptons thus succeeded in shifting 86.9% of the cost of her treatment to the PACT members who bought into Aetna’s Policy.

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

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

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

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

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

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, AFL-CIO, Sheet Metal Workers’ International Association, AFL-CIO, Local No. 573, Larry Higer, Francis Fry and Elmer Pruitt, Plaintiffs-Appellees, v. BARBER-COLMAN COMPANY, Defendant-Appellant. No. 16025. United States Court of Appeals Seventh Circuit. May 26, 1967. Edward J. Fahy, Stephen A. Ellis, Shultz, Fahy & Street, Rockford, Ill., for appellant. Donald W. Fisher, Toledo, Ohio, Lawrence J. Ferolie, Rockford, Ill., for appellees. Before HASTINGS, Chief Judge, and SCHNACKENBERG and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. This suit was brought by two Unions and three employees to compel Barber-Colman Company (“Barber”) to arbitrate a dispute arising under an agreement between the Unions and Barber. Federal jurisdiction was conferred by Section 301(a) of the Labor Management Relations Act (29 USC § 185(a)). In June 1964, the Unions called a strike at four of Barber’s plants after negotiations for a new collective bargaining agreement had collapsed. The three plaintiff-employees of Barber participated in the strike which persisted until October 15, 1964. The Unions and Barber then agreed in principle upon a new collective bargaining agreement, which was executed on October 21, 1964. During the strike, the three individual plaintiffs and 17 other Barber employees were discharged on the ground of alleged misconduct in connection with their strike activities. The three individual plaintiffs were indicted by a Winnebago County, Illinois, grand jury on September 15, 1964; the indictment charged them with arson and criminal damage to property. On December 14, 1964, their motion to suppress evidence was granted, and a week later, on motion of the State’s Attorney, the indictment was nolle prossed. On October 15, 1964, Barber and the Unions signed a Settlement Agreement dealing with the three individual employees and the 17 other striking employees who had been charged with violence. The Settlement Agreement provided as follows: [1] Inasmuch as the company has suspended the following employees pending the determination of their status: Larry Higer, Francis Fry and Elmer Pruitt, and Ronald Bowen, Del-mos Graves, Laurence Wool-bright, Melvin Morelock, Jr., Frank R. Podeszwa, John Blaser, Clarence North, Virgil Johnson, John H. Lenz, Tom Ward, Dave Bevens, Frederick Joeston, Velmer White, Randolph Gregg, William B. Tratnik, Lawrence Parr, George R. Toon and it is hereby provided as follows: [2] Higer, Fry and Pruitt can choose to have their status determined by an arbitrator, or can choose to have their status determined by the decision of the criminal court where they are now under indictment. If they choose to have the criminal court decision fix their status then: if any one is found guilty he will be considered discharged, but if he is found innocent, he shall be reinstated to employment with back pay to the date of this agreement. If they select arbitration an arbitrator will be designated by the Company and the Union in the manner provided in Article V. [3] Criminal Court proceedings will not affect the status of the other above named employees and shall not be considered in the arbitration procedure hereinafter provided. [4] All others shall have the right to quit or have their status determined by arbitration. The personnel record of an employee who quits will reflect only the fact that he quit. [5] If they elect arbitration a different arbitrator shall be selected by the Company and the Union in the manner provided in Article V. [6] The arbitrator’s decision in these cases shall not be used as a basis or a precedent for any future arbitration. [7] The arbitrator shall be empowered to hear all the eases and to determine whether the employees, or any of them, shall be reinstated to their jobs and the condition of reinstatement, if any. [8] Such employees shall not return to work until their status is determined under this procedure. The second paragraph of the Settlement Agreement permitted plaintiffs Hi-ger, Fry and Pruitt to have their status with Barber determined by an arbitrator or by the criminal court in the arson case. These employees chose the second alternative. After the indictment against Higer, Fry and Pruitt was nolle prossed, Barber recalled them to work and offered them net back pay from October 15, 1964, the date of the Settlement Agreement, to December 27, 1964, the date on which they resumed work. However, the Unions and these three individuals contend that any wages the trio earned from outside sources are not deductible from the wages they would have earned at Barber during said period, and also that no other deductions are permissible. After Barber refused to award full back pay to these three employees, they and the Unions demanded that the back pay dispute be referred to arbitration. When Barber rejected arbitration, this suit was filed. The District Court ordered arbitration, and we affirm. In opposing arbitration, Barber argues that paragraphs 1 and 8 of the Settlement Agreement apply to all 20 suspended employees, that paragraph 2 applies only to the three individual plaintiffs, and that the remaining paragraphs apply only to the 17 other suspended employees. Even accepting this argument, we do not think that arbitration of the back pay claims of these three employees was foreclosed when it proved impossible to have their status determined by the criminal court. Because a decision of the criminal court could not be obtained, Higer, Fry and Pruitt should have been permitted to select arbitration. 2 Restatement of the Law of Contracts § 469. Under paragraph 2, the parties certainly never intended this dispute to be resolved in civil judicial proceedings. Yet Barber now asserts that this is the only avenue open to these three employees. As the Supreme Court stated in United Steelworkers v. Warrior & Gulf Navigation Co., 863 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409: “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Under this test, it cannot be said that paragraph 2 of the Settlement Agreement now prohibits arbitration of this dispute. As to the back pay issue, it should be noted that the other 17 suspended employees have already proceeded to arbitration pursuant to the third through seventh paragraphs of the Settlement Agreement. Where back pay was awarded to any of the 17, the arbitrator applied the usual mitigation principles in computing the amount due. We agree with the District Court that the doctrine of mitigation also appears applicable to Higer’s, Fry’s and Pruitt’s back pay. However, under the Settlement Agreement, the question whether their claim for unreduced back pay is sham or frivolous is for the arbitrator. Local Union No. 483 v. Shell Oil Company, 369 F.2d 526, 530 (7th Cir.1966). Article V of the collective bargaining contract provides that his award shall be final and binding. The judgment of the District Court is affirmed. . Article V refers to. the grievance procedure provision of the October 21, 1964, collective bargaining agreement between the parties.

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

Charles W. RAMSEY, Appellant, v. UNITED STATES of America et al. No. 24748. United States Court of Appeals, District of Columbia Circuit. April 27, 1972. Mr. Edward L. Merrigan, Washington, D. C. (appointed by this court) was on the brief for appellant. Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Oscar Altshuler, and Stephen W. Grafman, Asst. U. S. Attys., were on the brief for appellees. Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges. PER CURIAM: This is an appeal from a summary judgment entered September 10, 1970, dismissing a complaint filed by appellant pro se from Lorton Reformatory, for declaratory relief and writ of mandamus, directing that he be credited with time spent in jail from December 14, 1967 to May 31, 1968, toward service of his sentence, of two to six years, imposed on May 31, 1968, in Criminal Case No. 218-68 (narcotics). Counsel appointed for the appeal contends now that appellant has never been credited at all for this time. While an appellate court has latitude to amplify the record for facts that are not essentially in dispute, in the case before us the ultimate facts, and perhaps some evidentiary facts, are vigorously disputed by the government. The place for resolution of such dispute is the District Court, on appropriate pleading and issue joined. Appellant also contends the judgment should be reversed, even assuming that some credit was given him for the 1967-68 detention, on the ground that he was entitled to have that credit applied to the sentence in Criminal Case No. 218-68. Appellant relies on the “presentencing credit” provision of 18 U.S.C. § 3568: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed No sentence shall prescribe any other method of computing the term. The Government’s position is that the time between December 14, 1967 and May 31, 1968, was not spent in custody “in connection with the offense or acts for which sentence was imposed” in Criminal No. 218-68, but rather was time spent in service of the sentence imposed in 1960, 2-11 years, in Criminal Case No. 1089-59, on a plea of guilty to assault with intent to commit rape. Appellant was released on parole on September 8, 1966, with 1655 days remaining to be served, or until September 22, 1970. The Government’s brief asserts that on appellant’s arrest on December 14, 1967, (a) he was charged with narcotics violations, for which he was later indicted and sentenced in Criminal Case No. 218-68, and (b) he forthwith began service of the days remaining unserved in Criminal Case No. 1089-59, on execution of a parole violator’s warrant dated November 1, 1967. The prison sentence imposed May 31, 1968, in Criminal Case No. 218-68, was expressly made consecutive, not concurrent. The Government’s position may well prove sound ultimately, but there are at least some problems in the record as it stands. The Government’s motion was supported by a Statement of Material Facts as to which there is no issue, filed under Local Rule 9(h) of the District Court, but there is no affidavit, as required by Rule 56, F.R.Civ.Pro., to establish facts dehors the pleading. For this purpose we cannot fairly refer to the affidavit of the Superintendent of Lorton Reformatory, dated August 9, 1971, captioned in the dockets of both the District Court and this court, which the Government filed in order to contest factual assertions in the appellant’s brief. This was filed after the motion for summary judgment was granted. Furthermore, there is no record foundation for the assertion in the Government’s brief (p. 2, fn. 1) that the parole warrant of November 1, 1967, alleged parole violations “totally unrelated to those for which appellant was ultimately indicted in Criminal No. 218-68.” We do not necessarily say that this fact is decisive, yet it is not without materiality, as is implied from the Government’s use of the fact. And it is not set forth in the Government's 9(h) statement, nor even in the Superintendent’s 1971 affidavit. While we would not focus on procedural details in a matter where the pertinent facts are essentially uncontested, that is not how this case shapes up as of present. With this murkiness in the facts, and possibly in their legal significance, the interest of justice (28 U.S.C. § 2108) leads us to remand the record to the District Court to enter, after such hearing as may be appropriate, its findings and conclusions concerning (a) the basis of the parole board’s warrant of November 1, 1967, (b) the basis of the arrest of December 14, 1967, and confinement starting that date and (c) the kind of credit, if any, that was entered administratively concerning that detention, to enter its reasons for concluding whether relief should be granted or denied the appellant, and to transmit the record, thus amplified, to this court. So ordered. . United States v. Kearney, 136 U.S.App.D.C. 328, 331, 420 F.2d 170, 173 (1969). The court’s reference distinguishing the panel opinion in (Barrington) Johnson v. United States (June 20, 1969) likewise is applicable to the eu banc opinion adopting that panel ruling, Johnson v. United States, 138 U.S.App.D.C. 174, 179, 426 F.2d 651, 656 (1970). . The Lorton Progress Report of December 9, 1970, appended to appellant’s brief, states that the specifications of the warrant were that he was arrested in Trenton in October, 1967, for possession of hypodermic needle and CDW — in violation of Rule 12, against departing city limits; in Rule 4, prohibiting possession of a hypodermic needle; and Rule 13, in that he did not remain at liberty without violating the law. “For these reasons, his mandatory release was revoked June 13, 1968.” . Under 18 U.S.C. § 4205 if a parolee is retaken under a warrant his “unexpired term . . . shall begin to run from the date he is returned to the custody of the Attorney General under said warrant. ...” A question arises when there is arrest under a parole violation warrant issued by the D.C. Parole Board. The Government’s statement under Rule 9(h) did not allege that any action had been taken by the D.C. parole board, other than issuance of a warrant, prior to May 31, 1968. If the only D.C. parole board revocation, under 24 D.C.Code § 206, came after May 31, 1968, a question arises whether the confinement Dec. 14, 1967 — May 31, 1968, may be ascribed to service of the prior sentence on an assumption of termination of parole, or must be credited, under 18 U.S.C. § 3568, to the sentence imposed May 31, 1968. . In the light of that amplification of record, appellant will decide whether to withdraw his appeal, or to submit a supplementary brief. The Government will be free to make corresponding decisions.

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"?

BROWN v. BOARD OF TRUSTEES OF LA GRANGE INDEPENDENT SCHOOL DIST. et al. No. 13317. United States Court of Appeals Fifth Circuit. Jan. 22, 1951. Herman Wright, Houston, Tex., U. Simpson Tate, Dallas, Tex., Arthur J. Mandell, Houston, Tex., W. J. Durham, Dallas, Tex., for appellant. Douglas W. McGregor, Houston, Tex., Miles L. Moss, LaGrange, Tex., for ap-pellees. Before HUTCHESON, Chief Judge, and McCORD and BORAH, Circuit Judges.. HUTCHESON, Chief Judge. Julius Brown, a negro, as plaintiff, brought this suit as a claimant for the benefit of himself, his oldest daughter, Vivian, and all other persons of Negro blood and African descent. The original complaint, filed April IS, 1948, and the amendment thereto, filed November 22, 1949, sought a declaratory judgment, that, in violation of the Fourteenth Amendment, he and they had been subjected to racial discrimination and deprived of civil rights, and an injunction restraining the defendants from continuing such discrimination and deprivation. Particularized, the claim was that the •defendants, The LaGrange Independent School District and the Members of its Board of Trustees, had discriminated generally against all those for whose benefit the suit was brought by failing to provide at and for the Randolph Colored High School, buildings, grounds, facilities, and courses of study equal, and not inferior, to those provided for white high school students, and particularly against his daughter by providing for whites, and not providing for her, a course in chemistry which she wished, and was old enough, to take. The defendants denied the charges made against them and pleaded affirmatively that the educational facilities maintained .by the District for the use of the colored, were and are substantially equal to those maintained for the use of the white, pupils. In addition, they urged below, and reurge here, that plaintiff’s pleading and his evidence showed, as matter of law, that plaintiff was without right to maintain this suit, and that it should be dismissed, because it appears from pleading and evidence, without contradiction or dispute, that whatever may .be the fact as to any other or others, no right of plaintiff is, or has been invaded or threatened. The District Judge, taking with the case defendants’ oral motion, to dismiss for want of a cause of action for the violation of a federal right, there was a full trial on oral testimony. At the conclusion of plaintiff’s case, in the course of which the testimony on both sides and on all issues was fully developed, and again, at the conclusion of their own, the defendants moved for judgment on the pleadings and evidence, (1) for want of any showing by plaintiff of any right or cause of action, and (2) because plaintiff had wholly failed to prove substantial inequality and illegal discrimination. The District Judge, disagreeing with defendants on their first, agreed with them on their second, ground, and, on fully detailed findings of fact and conclusions of law and a decree based on, and embodying, them, denied plaintiff’s prayers for relief. Here, pointing to phases and aspects of the evidence which he claims clearly establish the discrimination and deprivation of civil rights claimed, plaintiff insists: that in finding that plaintiff’s proof failed, the District Judge did so with a gaze too foreshortened, by regard for the over all picture, to see, with an eye single to relieving against them, the precise inequalities urged. He insists, in short, citing Carter v. School Board, 4 Cir., 182 F.2d 531 and Corbin v. County School Board, 4 Cir., 177 F.2d 924; that the over all findings were made with more regard for matching an inferiority here against a superiority there, a superiority here against an inferiority there, in the system as a whole than is allowed by law in cases of this kind; that plaintiff has sued to correct specific inequalities, and is not concerned with such matching. He particularly insists that it is no answer to his complaint: that, though the negro students have gotten the short end of the stick in respect of the matters he complains of, the white students have gotten it in others; and that, matching advantages with disadvantages, a fair balance is struck, equality is attained. The appellees, pointing out that plaintiff is not himself holding any end of the stick, short or long; that, therefore, under fundamental principles enshrined in the decisions dealing with civil rights claims under the Fourteenth Amendment, particularly with claims of the kind made here, he is not being deprived of any right personal to him, and that he has no standing to maintain this suit; insist that the suit should have been dismissed on that ground. On the tendered issues of inequality and discrimination, they insist that the judgment was right and must be affirmed; that the findings of fact find full support in the record, and may not be set aside as clearly erroneous and the conclusions of law find equally full support in the decided cases. We agree with appellees’ first contention, that plaintiff has not been deprived of any civil right, therefore is without right to maintain this suit, and, it should have been dismissed for want of' equity. We will not have to decide, therefore we will not concern ourselves over much with the questions of inequalities so much argued here. Indeed, other than to point out that this is not. a suit like Sweat’s and Carter’s were, for specific relief which could be afforded by ordering admission to a particular school or course which had been illegally denied to him, but is a suit of a very different kind, we will not dwell long on them. A suit to supervise and control by injunction the general conduct of a political subdivision of the State, this suit has for its purpose, not the mere according of a specific right which has been denied, but the establishment of a sort of general government by injunction over the school district in respect of its schools and school system. Such an injunction requiring detailed and continuous supervision over the conduct of a political subdivision is not congenial to equitable principles and practices and will not usually be granted. In addition, in the circumstances of this case, where, instead of demanding specific relief which he believes is denied him because of his color and which may be readily granted, plaintiff seeks to have the court, under his direction, take charge of and equalize an entire school system, we are not prepared to accede to appellant’s position that such equalization, if undertaken, either with or without benefit of a court decree, must be brought about on a heads I win, tails you lose basis, that is, the inequalities to be ascertained and removed when they are against him, but to remain as they are, when in his favor. All of these considerations, however, are completely beside the mark here, for plaintiff has wholly failed to plead or prove any deprivation of his dvfl rights and it is elementary that he has no standing to sue for the deprivation of the divil rights of others. What the Supreme Court said in McCabe v. Atchison T. & S. F. Ry. Co., 235 U.S. 151 at pages 161-162 & 164, 35 S.Ct. 69, 71, 59 L.Ed. 169, and quoted with approval in State of Mo. ex rel. Gaines v. Canada, 305 U.S. 337, 351, 59 S.Ct. 232, 83 L.Ed. 208, has precise application here: “It is the individual who is entitled to the equal protection of the laws, and if he is denied * * * a facility or convenience * * * which, under substantially the same circumstances, is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded. “There is, however, an insuperable obstacle to the granting of the relief sought by this bill. It was filed, as we have seen, by five persons against five railroad corporations to restrain them from complying with the state statute. * * * It states that there will be ‘a multiplicity of suits,’ there being at least ‘fifty thousand persons of the negro race in the state of Oklahoma’ who will be injured and deprived of their civil rights. But we are dealing here with the case of the complainants, and nothing is shown to entitle them to an injunction. It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant’s need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant — not to others — which justifies judicial intervention. * * * “ * * * The desire to obtain a sweeping injunction cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks. iji * iji >} Cf. Sweatt v. Painter, 339 U.S. 629, 635, 70 S.Ct. 848, 851, where the court said: “It is fundamental that these cases concern rights which are personal and present. * * * In State of Mo. ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 351, 59 S.Ct. 232, 237, 83 L.Ed. 208, the Court, speaking through Chief Justice Hughes, declared that ‘petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the state there afforded for persons of the white race, whether or not other Negroes sought the same opportunity.’ ” It remains only to determine whether the judgment reversing and dismissing the suit should be for want of jurisdiction, for want of equity, or because of mootness. If for the first, it would be because it plainly appears from the face of the complaint that plaintiff did not assert any personal right to education of which he was being, or had been, deprived, and it might, with much reason, be said that the petition on its face failed to show sufficiently for federal jurisdiction that a federal question was involved. If the dismissal should be for mootness, it would be because it appears: (1) that, before the suit was brought, plaintiff and his family, including the daughter, Vivian, whose inability to secure instruction in Chemistry was the principle cause of the suit, had moved to Fort Worth; (2) that Vivian has now finished her education; and (3) that the plaintiff and his family have remained in Fort Worth and intend to remain there until the youngest daughter has finished hers and the need for school facilities in LaGrange is over. A consideration of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, and of McCabe v. Atchison T. & S. F. Railway Co., supra, convinces us that the dismissal, if not for mootness, should be for want of equity and not for want of federal jurisdiction. Upon the question of mootness, we are of the opinion that since the suit is not one to redress the deprivation of a right personal to plaintiff and he never had any cause of action, the suit is not any more moot at the last than it was at the first, and it ought, therefore, to be dismissed not as having become moot, but as wanting in equitable right. On the whole case, therefore, it is our view that the judgment should be reversed and the cause remanded with directions to dismiss the complaint for want of equity in the plaintiff to maintain it. Reversed and remanded with directions to dismiss. . “Statement of the Case: “Plaintiff, a negro, claiming to be a citizen of the United States, and a resident domiciled in LaGrange, Payette County, Texas, in this District and Division, and living -within the LaGrange Independent School District, and claiming to be a property owner and taxpayer in said County and School District, and the father of two children entitled to attend the irte public schools of such District, brings this suit for himself and on behalf of others similarly situated, against Defendants, complaining of discrimination against the negro school children or pupils of the District in the matter of school facilities. He claims that there is jurisdiction here under the Fourteenth Amendment of the Constitution of the United States and under the Judicial Code. He prays for Declaratory Judgment and for Permanent Injunction, restraining Defendants from further discrimination. “Defendants have answered, setting forth that plaintiff does not have sufficient interest in the subject matter of the suit to entitle him, or any of the class he represents, to any relief here. Defendants also say that the Constitution and Statutes of Texas require the establishment, maintenance, and operation of separate schools for negro children and white children; that there is no discrimination in the operation and maintenance of the schools of such District; and that the separate schools operated and maintained for the negro children are substantially equal to those maintained and operated for white children. “After careful consideration of the evidence offered and in the light of the Law applicable, I find for Defendants. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 339, 59 S.Ct. 232, 83 L.Ed. 208. Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247.” “Findings of Fact: “(a) The Defendant, LaGrange Independent School District, was established in Fayette County, Texas, in this District and Division, by virtue of a Special Act of the Texas Legislature [c. 46], effective April 2, 1921. Such Act was designed to, and does, give to such District, its Trustees, and other officers, certain privileges and powers, and prescribes certain duties. All point to a material and permanent improvement of the public schools of the District. Reference is made to such Act. New territory has from time to time been added to that described- in the Act until at the time of this trial a large area of Fayette County was included in such District, with LaGrange the central point. “(b) One of the first plans or movements was to gradually abolish all the smaller schools of the District, and to establish two large and efficient schools in LaGrange, one for the white pupils and one for the negro pupils, and to daily transport the pupils to and from these two schools by bus. This is being done by many similar Districts in Texas. This plan has been carried out, except that there is still a school for white elementary pupils at Warda and another for white elementary pupils at Ellinger. “The evidence with respect to such centralization plan shows no discrimination against the negro pupils. Negroes and whites have had and are having the same treatment. “ (c) All of the negro pupils of the La-Grange Independent School District now attend the Randolph School, a combined High School and Elementary School situated in the town of LaGrange. This school is constructed of masonry. It is of the one story type and is fireproof. The original portion of this building was erected in 1934 or 1935, and the additions were completed in 1949. Certain fittings and furnishings of the addition, landscaping and sidewalks remains to be added, but the plant is substantially complete. Except in size, this building compares favorably with and is as good and useful as the buildings used by the white pupils. The difference in size is due to there being more white pupils than negro pupils. “(d) Each grade at Randolph School has a separate classroom, a teacher, as do the school for the white pupils. They have the same electric lighting, good ‘day-lighting’, adequate and approved seatings, and comparable (although in part different) heating as the school of white pupils. The gymnasium is constructed of the best materials and is modern. In fact, the Randolph School Plant is modern and of the latest design, and as stated is as good as the building used, in La-Grange for the white pupils. It is far superior to the buildings and equipment, used by the white pupils at Warda and Ellinger. I am not impressed that plaintiff’s complaint with respect to the open corridors is meritorious. Whatever difference there may be as to the value of the respective sites and buildings therein arises in part by reason of their distance from the center of the town. “(e) The faculty of the Randolph School is composed of teachers with a higher rating than those in the white schools. It has an average pay scale higher than the white schools, and a student load less than the white schools. The student load is 20.1 child per teacher in the negro school and 22.6 child per teacher in the white schools. “(f) The curriculum of the Randolph School is that prescribed and required by the State with the same elective studies or subjects submitted to the negro pupils as those submitted to the white pupils. The only negro child shown to have been denied an elective study or subject was the daughter of the Plaintiff in this case who applied for chemistry (not a required subject) on December 5, 1947, too late for such a class to be organized for that year. Whatever delay there was in giving the negro pupils the right to take the elective studies was due to the fact that the negro school is delayed in getting started two to three weeks every year because of the negroes leaving the county and returning late — probably following cotton picking work. “(g) The white pupils have a better library than the negroes. The libraries of the District first became supported by the public funds of the School District in the School Tear 1940-1940 and the Randolph School has been receiving its proportionate share of additions since that time. It is equipped with the usual bookshelves and a teacher with a check out desk. Previous to the school year 1948-9, the respective libraries were maintained by donations from individuals, parent teachers associations, and there were few donations to the negro schools. Also by fines and a fee of $1.00 per pupil which ordinarily were not collected at the negro school. “(h) The entrance requirements, the teaching system, the examinations, the graduation, and all other similar requirements of the negro schools and white schools are not only substantially equal but are identical. “(i) Further discussion would unduly prolong these findings. It is sufficient to say that while the two schools (negro and white) are not identical and while the white schools may excel in some respects, they are substantially equal. The disposition of the school authorities is shown by the evidence to be to continue to improve the schools for both races. “Conclusions of Daw: “1: — The establishment, maintenance, and operation of separate schools for negro pupils and white pupils in the La-Grange Independent School District is not unlawful under the Constitution and other Laws of the State of Texas, nor does it violate the provisions of Amendment XIV of the Constitution of the United States. “2: — The separate schools maintained for the negro pupils in the LaGrange Independent School District are substantially equal to the schools maintained for white pupils. In fact, the schools maintained at LaGrange in such District for the negro pupils are superior to those maintained at Warda and Ellinger for the white pupils. “3: — While the matter is not free from doubt, I think that Plaintiff in this ease has shown sufficient interest to permit him to prosecute this suit and to represent others similarly situated in the La-Grange Independent School District. I think the Court should be liberal in its holdings in this kind of a suit. “4: — Plaintiff is not entitled to an Injunction, but Declaratory Judgment will enter in accordance with these Findings and Conclusions.” 2. “Final Decree. (Filed March 7, 1950) “In The District Court Of The United States For The Southern District Of Texas, Houston Division. Julius Brown, Plaintiff, vs. Civil Action No. 4223. Board of Trustees of the LaGrange Independent School District, LaGrange, Texas, and the LaGrange Independent School District, a Body Corporate, L. D. Boelsche, President of said Board and C. A. Lemmons, Superintendent of the Public School System of the City of La-Grange, Texas, and of the said LaGrange Independent School District, and in their Official Capacity, Defendants. “Came on before me on the 5th day of December, 1949, The LaGrange Independent School District by and through its duly authorized and constituted offi-dais and Julius Brown, appearing for himself and on the behalf of others, similarly situated, as alleged in the said Julius Brown’s petition, and upon hearing the pleadings read and the evidence introduced, the Court entered on the 16th day of February, 1950, its Findings of Fact and Conclusions of Law, which said Findings of Fact and Conclusions of Law are referred to for all purposes and by reference are made a part hereof, and incorporated herein for all purposes. “The plaintiff’s plea for an Injunction is denied, and further It is Ordered, Adjudged, Decreed, Determined and Declared that the establishment, maintenance and operation of separate schools for negro pupils and white pupils in the LaGrange Independent School District is not unlawful under the Constitution and other laws of the State of Texas, nor does it violate the provisions of Amendment XIV to the Constitution of the United States. “It is Further Ordered and Declared that the separate schools maintained for negro pupils in the LaGrange Independent School District are substantially equal to the schools maintained for white pupils. "It is Further Ordered and Declared that the plaintiff, Julius Brown, has shown sufficient interest to permit him to prosecute the within action. “All costs herein are adjudged against the plaintiff. “Done at Houston, Texas, this 7th day of March, 1950.” . See Note 2 on Page 23. . Collins v. State of Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439; McCabe v. Atchison T. & S. F. Ry., 235 U.S. at page 162, 35 S.Ct. 69, 59 L.Ed. 169, and cases cited; State of Mo. ex rel. Gaines v. Canada, 305 U.S. 337, at page 351, 59 S.Ct. 232, 83 L.Ed. 208; Cook v. Davis, 5 Cir., 178 F.2d 595; Cf. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289, 42 S.Ct., 106, 66 L.Ed. 239; Com. of Mass. v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; Dunn v. Fort Bend County, D.C., 17 F.2d 329, 330. . 28 Am.Jur., “Injunctions”, Sec. 78. Cf. by analogy, 49 Am.Jur., “Specific Performance”, Secs. 69, 70, and 71.

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

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

Colombo A. SPAGNUOLO, Appellee, v. WHIRLPOOL CORPORATION, Appellant. No. 80-1035. United States Court of Appeals, Fourth Circuit. Argued Oct. 8, 1980. Decided Feb. 26, 1981. Jeffrey K. Ross, Chicago, 111. (Charles J. Griffin, Jr., Seyfarth, Shaw, Fairweather & Geraldson, Chicago, 111., Weinstein, Sturges, Odom, Bigger, Jonas & Campbell, Charlotte, N. C., on brief), for appellant. Samuel M. Millette, Ernest S. DeLaney, III, Charlotte, N. C. (DeLaney, Millette, DeArmon & McKnight, P. A., Charlotte, N. C., on brief), for appellee. Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and ERVIN, Circuit Judge. WINTER, Circuit Judge: In a suit against his former employer, Whirlpool Corporation (Whirlpool), asserting a claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., Colombo A. Spagnuolo obtained a jury verdict establishing that he had willfully been discriminated against in employment because of his age and that he had suffered damages in the amount of $51,977. On the verdict and its additional findings, the district court gave judgment for the damages assessed by the jury, an additional amount of $51,977 as liquidated damages, attorneys fees of $60,000, costs, reinstatement, and pre- and post-judgment interest. Whirlpool appeals. We affirm except as to the item of pre-judgment interest. I. After almost twenty-four years of employment, plaintiff, when he was one month short of his fifty-third birthday, was demoted from his position as Manager of the Builder Department of the Charlotte Sales Division and assigned as Territory Manager of the Greensboro-Durham territory. When demoted, plaintiff sought but was denied the position of Territory Manager of the Charlotte territory. The demotion, which was to a position that plaintiff had formerly supervised, occurred on November 9, 1977, ostensibly because Whirlpool decided to combine the duties of Builder Sales Manager and that of Heating and Cooling' Sales Manager. Plaintiff’s duties were assumed by the Charlotte Heating and Cooling Sales Manager, a man forty-years old. Plaintiff immediately began working in the lesser position, but on January 4, 1978 he submitted a letter of resignation and accepted employment in an equivalent salesman position for one of Whirlpool’s competitors. We need not state further facts except with respect to some of the contentions to which they relate. It suffices to say that if submitted to the jury under legally correct instructions, the conflicting evidence amply permitted the jury to return its verdict finding liability on the part of Whirlpool under the Act and finding that plaintiff had sustained actual damages of $51,977. We turn therefore to the legal issues. II. Whirlpool’s first argument for reversal is directed at the district court’s instructions to the jury regarding what factual determination it was required to make to justify a verdict that Whirlpool had violated the Act. Specifically, Whirlpool contends that the jury should have been instructed that plaintiff’s age must have been the determinative factor in Whirlpool’s decision to demote him in order for the jury to find a violation of the Act. Whirlpool’s argument is foreclosed by our decision in Smith v. Flax, 618 F.2d 1062, 1066 (4 Cir. 1980). There, in prescribing the standard of causation that must be met to show a violation of the Act, we said that a plaintiff is required “to show that age was a determining factor in his discharge.” (emphasis added) The phrase was derived from Loeb v. Textron, Inc., 600 F.2d 1003 (1 Cir. 1979), and other language in that opinion defines what is meant. There it was said that for an employee to recover under the Act it is not enough that he show merely that his age was a factor that affected the decision to discharge him. Rather, he must show that “but for” his employer’s motive to discriminate against him because of his age, he would not have been discharged. Id. at 1019. It is in this sense that we, too, use the phrase “a determining factor.” The only question then is whether the district court’s instructions embodied the standard as articulated in Smith. Taken as a whole, we think that they did. There was on this point no error. III. Nor do we think that there was error in the district court’s refusal to instruct the jury that it must find that the Act was not violated if it found that Whirlpool merely articulated or stated a legitimate nondiscriminatory reason or explanation for plaintiff’s demotion, unless it also found that the reason or explanation was mere pretext. Whirlpool’s argument is based upon its reading of Sweeney v. Board of Trustees of Keene State College, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). It reads Sweeney as holding that the mere articulation of a legitimate nondiscriminatory reason is sufficient for the employer to be entitled to judgment. We, however, read Sweeney to hold that the articulation of a legitimate nondiscriminatory reason is sufficient to insulate an employer from a directed verdict against it, /. e., it dispels the adverse inference from a plaintiff’s prima facie case. The jury in its consideration of all of the evidence may still find that the wrong occurred in the manner established by plaintiff. Moreover, in this case, plaintiff did not rely on statistical data or any other kind of inferential proof of discriminatory motive. This is therefore not the type of case contemplated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), from which the requested instruction was obviously drawn. Plaintiff produced direct evidence of the purpose and conduct of Whirlpool, demonstrating discrimination against him and others because of age, that the jury clearly found persuasive. The reliance on direct evidence instead of inferences obviated any need for an independent showing that Whirlpool’s asserted justifications were “pretextual.” See Loeb v. Textron, Inc., 600 F.2d 1003, 1017-18 (1 Cir. 1979). Our decision in this regard also answers Whirlpool’s argument that the district court improperly excluded evidence to support Whirlpool’s business justification for plaintiff’s demotion. As we read the record, Whirlpool amply proved its asserted reasons for consolidating two of its sales divisions and appointing someone other than plaintiff to head them. The excluded evidence merely derogates plaintiff’s achievements with Whirlpool. At best the evidence is cumulative so that its exclusion constitutes no reversible error. IV. The jury found that Whirlpool’s violation of the Act was “willful” and this finding was essential to the district court’s assessment of liquidated damages in an amount equal to plaintiff’s actual losses as found by the jury. In essence, the jury was told that Whirlpool’s violation was willful if the jury found that “the demotion or transfer of the plaintiff was knowingly and intentionally done by the Whirlpool Corporation with the knowledge that the Age Discrimination Act applied” and that the actions taken were not “accidental, or mistaken, or unknowing, or [taken] for some innocent reason ...” Whirlpool argues that it was entitled to an instruction that “Whirlpool must have known that its actions would violate the law” for its conduct to have been “willful.” The instruction given by the district court was in accord with the construction placed upon the meaning of “willful” applied in the enforcement of the Fair Labor Standards Act as amended by the Portal-to-Portal Pay Act, 29 U.S.C. §§ 216, 260 (1976). The liquidated damages provision of the Age Discrimination in Employment Act derives the concept of willfulness from these analogous provisions of the FLSA. We think an instruction as to “willful” guided by experience under the Fair Labor Standards Act is the appropriate one under the legislation which concerns us here. Brennan v. Heard, 491 F.2d 1, 3 (5 Cir. 1974), accurately describes what is required to show willfulness: Defendants contend that in order for a violation of the FLSA to be willful, the employer must have proceeded with knowledge that his actions were contrary to the requirements of the Act. This statutory interpretation cannot withstand the decisions of this Court in Coleman v. Jiffy June Farms, Inc., 5 Cir. 1972, 458 F.2d 1139, and Brennan v. J. M. Fields, Inc., 5 Cir. 1973, 488 F.2d 443. Those cases establish that neither a good faith belief in the lawfulness of his wage and overtime regulations nor complete ignorance of their invalidity shields the employer from the additional year of liability. Such nescience and naivete are not determinative on the question of willfulness under this Act. An employer acts willfully and subjects himself to the three year liability provision if he' knows, or has reason to know, that his conduct is governed by the Fair Labor Standards Act. Thus, we think that the district court’s instruction here was proper. Certainly the evidence supported the jury’s finding. In addition to the direct evidence that plaintiff’s age was an operative factor in his demotion, Whirlpool admitted that it was aware of the Act when plaintiff was demoted. V. Whirlpool contends that the district court should have instructed the jury that plaintiff could recover loss of salary only if it found that he had been “constructively discharged” by Whirlpool. Its theory is that when plaintiff resigned from his position at Whirlpool and went to work for one of its competitors, the termination of his employment was voluntary, and plaintiff had no claim to lost wages unless he proved that Whirlpool deliberately made his job as Greensboro Territory Manager so intolerable that he was forced to quit. Although the district court declined to give the requested “constructive discharge” instruction, it did instruct the jury about plaintiff’s duty to mitigate damages and in that connection told the jury that it must decide whether, as part of that duty, plaintiff should have stayed with Whirlpool, taken the job with Whirlpool’s competitor, or sought another job elsewhere. We think that on the facts of this case, there was no reversible error in the district court’s instructions to the jury. Prior to his demotion, plaintiff was compensated at the rate of $2285 per month plus a yearly bonus which for 1977 was $8,000. In the position to which he was demoted, plaintiff was paid $900 per month plus commission, with expenses in the maximum amount of $350 per month for only six months of the year and without any bonus. Whirlpool’s competitor from which plaintiff accepted employment compensated him at the rate of $1,200 per month, plus commission and an automobile with all expenses. Thus, consistent with his obligation to mitigate damages, plaintiff sought and obtained a better-paying job. Plaintiff did not resign from Whirlpool and accept employment paying him lesser com- • pensation. There was therefore no factual basis on which to submit the concept of constructive discharge to the jury. VI. Plaintiff does not respond in his brief to Whirlpool’s contention that having been awarded liquidated damages, plaintiff is not entitled to prejudgment interest. We think that plaintiff may not recover both. Under the Fair Labor Standards Act, it has been held that the recovery of prejudgment interest is precluded by the statutory authorization for liquidated damages. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 715, 65 S.Ct. 895, 906, 89 L.Ed. 1296 (1945); Masters v. Maryland Management Co., 493 F.2d 1329, 1334 (4 Cir. 1974). We agree that the same rule should apply when liquidated damages under the Age Discrimination in Employment Act are allowed. On •remand, the district court will therefore reduce the judgment to remove any recovery for prejudgment interest. VII. Whirlpool vigorously attacks the equitable relief of reinstatement granted by the district court. It posits that plaintiff lacks the qualifications for the new position that was created by combining two manager-ships and that the animosities and tensions between the parties make reinstatement infeasible. We, however, do not disturb this aspect of the district court’s judgment. We recognize, of course, that reinstatement particularly at the level of an executive position may be entirely inappropriate where the evidence reflects hostility between the parties and the position involved demands a high degree of cooperation. See EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919 (S.D.N.Y.1976), aff’d 559 F.2d 1203 (2 Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). But as we read the record, aside from the fact of this litigation, Whirlpool has neither demonstrated plaintiff’s lack of qualifications nor has it made any showing that feelings are so high and tensions so exacerbated that the parties can no longer work together even with the high degree of cooperative effort that plaintiff’s former and prospective position requires. With the substantial evidence of the esteem in which plaintiff was held prior to his demotion, we cannot presume that the litigation of this suit which, incidentally, tended to show that Whirlpool proceeded against plaintiff and others solely because of age and not as a result of any other personal characteristic, so destroyed the mutual confidence of the parties in one another as to obviate the possibility of any future harmonious and fruitful association. We therefore think it premature to abandon the remedy of reinstatement. The remedy is an equitable one, and an equitable decree is subject to revision upon application and for good cause shown when there is a material change in conditions. Rule 60(b)(5), F.R.Civ.P. Should the district court ever find it necessary to revise this portion of its judgment, it may then consider granting substitute equitable relief. VI. Finally, Whirlpool contends that the district court’s allowance of counsel fees was excessive. We think that the district court properly applied the criteria in Walston v. School Board of Suffolk, 566 F.2d 1201, 1204-05 (4 Cir. 1977) in fixing fees, and we do not fault the quality of proof upon which it relied or the completeness of its findings. On remand, plaintiff’s counsel will be entitled to an additional allowance for their services on appeal since we affirm in major part the district court’s judgment. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. . Indeed, two portions of the district court’s charge were specific on the issue. First, the jury was told: This is not a class action. We’re not engaged in any deep inquiry into all the Whirlpool operations. It’s simply a question inquiring into the question of whether this particular person was demoted and forced out of the job or forced out of his job through conduct which violated the Age Act. Now, you will remember that if the decision to treat Mr. Spagnuolo in a different fashion was based upon legitimate business reasons rather than upon age, the plaintiff is not entitled to recover, and the burden is upon the plaintiff to satisfy you that there was, that age was considered. The existence of a legitimate business reason or many legitimate business reasons, if you find there were such reasons, does not answer the question. If age played any significant part in the decision, then the plaintiff would be entitled to recover. Age has to be what we call a but for element in the decision. It’s not the only element, not the only major element but, in order for the plaintiff to recover, age must be either the basis of the decision or one of the things which played a significant part in arriving at the decision. It has to be a producing cause. It has to be one of the factors which brought about the decision, one of the factors without which he would not have been demoted. It need not be the only cause, and he’s not entitled to recover unless age was one of the elements which played a significant part in the decision to downgrade him in his work. The jury was also given supplemental instructions after counsel registered objections to the initial instructions. Thus, immediately before retiring, the jury was told: A couple of partly repetitious instructions. The plaintiff says that age was a producing cause, one of the principal reasons for his discharge. The defendant denies that age played a part in the decision. The defendant also advances evidence of business reasons for the decision. Now, the defendant has no burden to prove anything, so the burden of proving a business reason is not, you don’t have to decide whether the defendant has proved that business reasons exist. The only question you have to decide is whether the plaintiff has satisfied you that age was the, was a principal or a producing cause for his demotion; and if you find there were valid business reasons and also that age played a part, the plaintiff would be entitled to a finding in his favor. The point I’m making is that the defendant has no burden to prove anything. The fact that the defendant may have satisfied you that there were valid business reasons doesn’t end your inquiry. You’ve still got to make a finding as to whether the plaintiff has satisfied you that age played a producing part or was one of the but for causes of the decision. . Loeb discusses McDonnell Douglas with respect to three types of cases: (1) the “classic” or “pure” McDonnell Douglas case, (2) a case where plaintiff relies on direct evidence of discrimination, and (3) a case in which McDonnell Douglas elements are a significant part, but not all, of plaintiffs total evidence. This case does not fall into the first category; plaintiff did not rely on the classic McDonnell Douglas proof. Neither, as the dissent suggests, is it in the third category, “one in which proof of the McDonnell Douglas elements is a significant part of the plaintiff’s total evidence, but where there is also other evidence, direct or circumstantial, that might support an inference of discrimination.” Loeb, 600 F.2d at 1018-19. In this case, the plaintiff demonstrated not an inference but rather the fact of age discrimination; it is the second type of case described in Loeb. Accordingly, it “simply does not fit the mold of the McDonnell Douglas formula” because the plaintiff “relie[d] chiefly upon direct evidence of discriminatory motive.” Loeb, 600 F.2d at 1018. We agree with the Court of Appeals for the First Circuit that the trial court “should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues.” We think the district court here instructed the jury as the Loeb opinion suggests, namely, that “the best charge may simply be one that emphasizes that plaintiff must prove, by a preponderance of the evidence, that he was discharged because of his age — with adequate explanation of the meaning of the age statute, the determinative role age must have played, etc.” Id. See also, n.l, supra. Smith v. Flax, also cited by the dissent, does not mandate strict adherence to the McDonnell Douglas format, because it involved precisely the third type of case discussed in Loeb, mistakenly characterized by the dissent as the case before us.

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

RENTAL HOUSING ASSOCIATION OF GREATER LYNN, INC., Plaintiff, Appellant, v. Carla A. HILLS et al., Defendants, Appellees. No. 76-1388. United States Court of Appeals, First Circuit. Argued Nov. 1, 1976. Decided Jan. 26, 1977. George E. Richardson, Boston, Mass., with whom Johnson, Clapp, Stone & Jones, Boston, Mass., was on brief, for appellant. Lenore C. Garon, Atty., Civ. Div., Dept. of Justice, with whom Rex E. Lee, Asst. Atty. Gen., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., Leonard Schaitman, Atty., Civ. Div., Dept. of Justice, Washington, D. C., on brief for Carla A. Hills, appellee. John G. Carberry, Boston, Mass., with whom Csaplar & Bok, Boston, Mass., was on brief, for Massachusetts Housing Finance Agency, appellee. Gerard F. Doherty, Boston, Mass., and Roger Dowd, Framingham, Mass., on brief for King’s Towers Associates, appellees. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and GIGNOUX, District Judge. Of the District of Maine, sitting by designation. GIGNOUX, District Judge. Plaintiff-Appellant, Rental Housing Association of Greater Lynn, Inc., is an organization of landlords who own or manage approximately 7,000 of the 18,000 existing apartments in Lynn, Massachusetts. In this suit plaintiff seeks to challenge the action of the Department of Housing and Urban Development (HUD) in awarding financial assistance under Section 8 of the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f (Supp.1975), to the “Hoague-Sprague” project for the conversion of a factory building into low-income housing for the elderly. Rental Housing Association contends that HUD should not have approved the project because there is a sufficient supply of existing housing for low-income families, see 24 C.F.R. § 883.304(b) (1976), and because the project is inconsistent with the city of Lynn’s housing assistance plan, see 42 U.S.C. § 1439(a) (Supp.1975). The district court granted a motion to dismiss on the grounds that plaintiff lacks standing and plaintiff appeals. Under the Section 8 program HUD provides funds to local Public Housing Authorities which in turn make the funds available for rent subsidies to low-income families. Subsidies are available for three types of housing: new construction, substantial rehabilitation, and existing housing. In the new construction and substantial rehabilitation plans the developer applies for subsidies for some or all of the units in the project which are to be rented to eligible families. The existing housing plan differs in that the low-income families apply for subsidies. If they are found eligible they find appropriate housing on their own, which might be their present apartment, and if the unit they choose meets certain standards a rent subsidy is provided. In order for a litigant to have standing to challenge administrative action he must meet two basic tests: the challenged action must cause him “injury in fact,” and “the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question.” Association of Data Processing Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). To satisfy the first test plaintiff alleges two types of harm: that the award of Section 8 funds to the Hoague-Sprague substantial rehabilitation project will reduce the amount of funds available in the future for existing housing subsidies, and that Rental Housing Association’s members will lose tenants to the new project and thereby suffer competitive harm. To satisfy the second test plaintiff points to the statute itself, the implementing regulation, and various references in the legislative history of Section 8 to the effect that existing housing ought to be fully utilized before new units are constructed and that rental subsidies are needed to provide existing housing landlords with sufficient revenue to keep their properties in good repair. If plaintiff alleged only that Hoague-Sprague subsidy would reduce the funds available for existing housing we might have difficulty finding a sufficient allegation of injury resulting from the questioned administrative action in light of recent cases such as Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). We need not reach that question, however, since we think the allegation of competitive injury sufficient. While the Hoague-Sprague project is not yet completed, and hence specific proof of competitive injury is not possible, it could hardly be thought that administrative action likely to cause harm cannot be challenged until it is too late. See, e. g., United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). We see no insurmountable obstacles to proof of the likelihood that Rental Housing Association’s members will loose tenants to the Hoague-Sprague project. Defendants have cited, and we have found, no authority for the proposition that competitive harm is an insufficient allegation of injury in fact. Quite the contrary, the cases finding allegations of competitive injury sufficient are legion. Injury in fact has been found where governmental agencies permitted otherwise unlawful competition, Data Processing, supra; Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970); Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971), engaged in activities which compete with the plaintiff’s business, Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968); P. A. M. News Corp. v. Hardin, 142 U.S.App.D.C. 227, 440 F.2d 255 (1971), awarded government contracts to a competitor, Constructores Civiles de Centroamerica v. Hannah, 148 U.S.App.D.C. 159, 459 F.2d 1183 (1972), or entered into a beneficial relationship with a competitor which enhanced its competitive position vis-a-vis the plaintiff on nongovernmental business, Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973) (alternate holding), cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 468 (1974). Defendants urge that the Hoague-Sprague project, with 183 units of housing for the elderly, will be too small to have any substantial competitive impact. It is well-settled, however, that the injury required for standing need not be substantial, it need only exist. United States v. SCRAP, supra 412 U.S. at 689 n. 14, 93 S.Ct. 2405. Moreover, we note that none of the competitive injury cases cited above required that, or even inquired whether, the competitive impact of the challenged action would be substantial. Finally, it is clear that plaintiff has met the requirement that the alleged injury “fairly can be traced to the challenged action,” Simon v. Eastern Kentucky Welfare Rights Organization, supra at 41, 96 S.Ct. at 1926, or, phrased in the converse, that the injury “is likely to be redressed by a favorable decision,” id. at 38, 96 S.Ct. at 1924. If the Hoague-Sprague project is not undertaken it cannot draw tenants away from Rental Housing Association’s members. We believe that the “zone of interests” test is also satisfied. Clearly the Section 8 program is intended, among other things, to make use of existing housing in providing low-income housing. See, e. g., 42 U.S.C. § 1441a(b), (c) (1975 Supp.); 24 C.F.R. § 883.304(b). Moreover, the legislative history lends support to plaintiff’s contention that utilization of existing housing is to be given priority — new construction or substantial rehabilitation is authorized if it “has [been] determined that there is not, and is not likely soon to be, an adequate supply of decent, safe, and sanitary existing housing for low-income families. . . . ” S.Rep.No.93-693, 93d Cong., 2d Sess. (1974), 1974 U.S.Code Cong. & Admin.News at 4392. Thus the interest in the utilization of existing housing — and hence the interest in being free of competition which might draw tenants away from existing housing — falls within the “zone of interests,” and we believe that the landlord association is an appropriate representative of that interest. Defendants contend that the statute is intended to benefit tenants, not landlords. It is of no consequence however that the plaintiff is an intended, though not the primary, beneficiary, Hahn v. Gottlieb, 430 F.2d 1243, 1246 n. 3 (1st Cir. 1970); Constructores Civiles de Centroamerica v. Hannah, supra at 1189; Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561, 564 (1970), and the legislative history does indicate that Congress recognized that unless landlords receive sufficient rental income they will not be able to properly maintain their buildings, S.Rep.No.93-693, 93d Cong., 2d Sess. (1974) (additional views of Senator Taft), 1974 U.S.Code Cong. & Admin.News at 4441. We conclude that the allegations of the complaint are sufficient to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for lack of standing. Our opinion does not relieve plaintiff from the necessity of establishing in the record facts sufficient to confirm standing along the lines indicated, nor does it deny defendants the right to introduce contrary evidence. We, of course, express no views on the merits. Reversed and remanded for further proceedings consistent with this opinion. . . The Massachusetts Housing Finance Agency, the state agency through which the funds were channeled, and the developers of the project are also named as defendants. . It is not seriously disputed that if the members of the association would have standing, the association may prosecute the suit as their representative. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). . SCRAP’S extraordinarily lenient attitude toward the requisite chain of causation between the agency action and the injury may not have survived more recent decisions such as Warth v. Seldin, supra n. 2, and Simon v. Eastern Kentucky Welfare Rights Organization, supra, but we see no indication that its teaching regarding the magnitude of injury required has been eroded.

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

Jerome A. MARENTETTE, Plaintiff-Appellant, v. LOCAL 174, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL WORKERS OF AMERICA, and Federal Screw Works, Defendants-Appellees. No. 89-1664. United States Court of Appeals, Sixth Circuit. Argued April 3, 1990. Decided July 3, 1990. Harold Dunne (argued), Livonia, Mich., for plaintiff-appellant. Chui Karega, Detroit, Mich., for Local 174, United Auto. Aerospace and Agricultural Workers of America. Frank S. Galgan (argued), Troy, Mich., for Federal Screw Works. Before KRUPANSKY and MILBURN, Circuit Judges, and THOMAS, Senior District Judge. Honorable William K. Thomas, United States Senior District Judge for the Northern District of Ohio, sitting by designation. WILLIAM K. THOMAS, Senior District Judge. In a hybrid Labor Management Relations Act, Section 301 action, plaintiff-appellant Jerome Marentette (hereafter, plaintiff or Marentette) sues his employer Federal Screw Works (FSW) for breach of its collective bargaining agreement (CBA) with Local 174, United Automobile Aerospace and Agricultural Workers of America (Local 174). In the same action, Marentette sued co-defendant Local 174 for breach of its duty of fair representation. At the center of his action is FSW’s denial of plaintiff’s grievance that he should have been classified a journeyman millwright when he returned to FSW employment after a leave of absence. Local 174 refused to carry the grievance to the fourth step. On separate motions of FSW and Local 174, the district court granted summary judgment for each defendant; and Marentette appeals. For the reasons stated, we affirm. FSW is engaged in the business of manufacturing fasteners for the auto industry and operates a nut forming plant and a heat treating plant in Romulus, Michigan. Hired by FSW on June 4, 1962 in a laborer classification, Marentette, on March 4, 1968, was transferred to the skilled trades classification as a millwright trainee. In September of 1971, according to Mar-entette, the company asked him if he was willing to “relinquish my right to go back into production and if so, would give me one hundred percent pay rate or journeyman status.” The company “Rate Card” shows entries on 9-4-71 of “Millwright-Top-Rate” and “O.K. top rate,” under the heading “Job Classification.” An entry of March 6, 1972, when he received an increase in his rate, shows “top rate millwright” under the heading “Job Classification.” On April 3, 1972, Marentette took an indefinite leave of absence from FSW. He went to work for Local 174 as its business agent. As business agent, he serviced the collective bargaining agreement between defendant FSW and defendant Local 174. Additionally, he negotiated the 1974 FSW/Local 174 collective bargaining agreement. Marentette served approximately 13 years as business agent of Local 174, but was terminated in a change of administrations. On April 15, 1985 plaintiff returned to his employment with defendant FSW. Marentette requested that he be returned to the millwright classification. He did so under the provision of the CBA that allows an employee “returning from sick leave or leave of absence or vacation [to] be returned to the same job he held prior to such leave.” When FSW assigned him to the classification of “Bench Inspector,” Local 174 filed a grievance for him on April 22, 1985. The grievance stated This is a violation of EXHIBIT “D” in the labor agreement and his seniority rights as he has held the classification of “MILLWRIGHT” since 3/4/68. FSW denied the grievance. Exhibit “D,” which in the grievance Mar-entette and Local 174 claim to have been violated, is attached to the 1971, 1974 and 1977 collective bargaining agreements. With the exception of a typographical error, Exhibit “D” to the contract of January 17, 1977, included in the joint appendix, is identical to Exhibit “D” attached to the 1971 contract which was in effect when Marentette claims to have achieved contractual journeyman millwright status. Exhibit “D” is entitled “Skilled Trades Trainee Program Agreement.” The Agreement consists of seven sections: Section 1, Scope of Training Program; Section 2, Trainee Selection; Section 3, Wages; Section 4, Seniority; Section 5, Overtime; Section 6, Tools; Section 7, General. I. While plaintiff’s claim focuses on the last paragraph of Section 3, the full text of the section is essential to understand how a skilled trades trainee progresses to, journeyman status: Section 3. Wages Trainees who are selected from the current work force shall be compensated according to the following rate schedule: 1st 6 Month Period— The Trainee shall start at a rate equivalent to 73% of the maximum of the prevailing base wage rate for the Journeyman’s classification for which he is training. 2nd 6 Months.76% 3rd 6 Months.79% 4th 6 Months.82% 5th 6 Months.85% 6th 6 Months.88% 7th 6 Months.91% 8th 6 Months.94% 9th 6 Months.97% 10th 6 Months.99% At the option of each individual Trainee who has been upgraded from the existing work force, at the end of the fifth year of his participation in the Trainee Program he may choose to waive any rights he has to exercise seniority in the Production departments and to progress to the top of Journeyman’s classification for which he is training by the end of the 6th year; or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. Trainees will be assigned to a specific Journeyman for a six-month minimum period, during which time the Journeyman will assist in teaching the Trainee in the trade for which the Journeyman will be paid a supplement of sixty cents (60$) per hour. The six-month period will be maintained, except for the emergency situations, so long as the Journeyman is doing an adequate training job to the Company’s satisfaction. The Company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee hereunder. Asked what period of time he was a trainee under the terms of Exhibit “D,” Marentette answered, “From March 4th of ’68 to September of ’71.” As to what then happened, he stated The company approached me and asked me if I was willing to relinquish my right to go back into production and if so, would give me one hundred percent pay rate or journeyman status. After giving the names of two company employees who told him that, Marentette was asked in his deposition “[w]here in Exhibit D is this change that you are discussing provided for?” He answered Exhibit D gives the company the right to propel someone faster than the above progressions [referring to the table in Section 3]. From this answer it becomes evident that Marentette is dwelling on the last paragraph of Section 3, which reads The Company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee hereunder. In paragraph seven of his Complaint, Mr. Marentette states that at the time he was placed on Union leave of absence he was a contractual journeyman millwright. Mar-entette reiterates in other deposition testimony that he relies solely on the last paragraph of Section 3 in claiming that, by its September 1971 action, the company made him a contractual journeyman millwright Q So you state that pursuant to Section 3 of Exhibit D, you became what, no longer a trainee? A That’s correct. Q Under this language? A Well, yes, that was the only language we had. Q And this language, if I understand your testimony correctly, specifically provides that at the option of each individual trainee, beginning at the top of page eighty-four, at the option of each individual trainee who has been upgraded from the existing force at the end of the fifth year of his participation in the training program, he may choose to waive any right he has to exercise seniority in the production departments and to progress to the top rates of the journeyman’s classification for which he is training by the end of the sixth year. Your testimony is that within less than that five-year period, you were moved to the top rate of the journeyman’s classification, correct? A Correct. Q And that was pursuant to the subsequently occurring provision that states that the company shall have the right to grant wage increases at a faster rate than spelled out above if merited in the company’s judgment as to the progress of any individual trainee hereunder. A Certainly. Q The events that occurred in September of ’71, that you described, took place solely under the terms of this agreement, correct? A That was the only agreement we had. Q That was my next question. There was no other agreement, there was no side deal, there was no letter of understanding or any other agreement of any kind that you are aware of; is that correct? A Not to my knowledge. Contemporaneously with FSW’s rejection of Marentette’s grievance at the third step, Roy Melton, servicing representative for Local 174, received a letter from John M. Uram, Chairman, and Ken Golden, Recording Secretary, of the Local 174 committee. They wrote On behalf of the Skilled Trade employees, especially the Millwrights, the Committee would appreciate your cooperation with the investigation of Jerome Maren-tette’s journeymans card. Thereupon, Mr. Melton took up this matter with the Skilled Trades Department, UAW International, Solidarity House. In principal part, Melton’s letter stated The problem appears that Jerome Maren-tette did not have the eight years as a Millwright Trainee as indicated in the letter from Federal Screw dated August 25, 1977. Jerome was on staff as a full time representative at UAW Local 174 from April 3, 1972 until April 22, 1985 when he returned to Federal Screw as a Bench Inspector. If indeed Jerome used false information to gain his Journeymans card, I request that appropriate action be taken to correct the problem, as this may lead to another Journeyman at Federal Screw being laid-off with twelve years in the trade. I am enclosing copies of his Journeymans card, two letters from Federal Screw, and the letter from the Committee at Federal Screw. Charles Stewart, International Representative UAW Skilled Trades Department, in an October 15, 1985 letter, informed “Brother Marentette” that “we have reviewed two work letters from Federal Screw Works dated August 25, 1977, and September 4, 1985.” Mr. Stewart then wrote Mr. Marentette Based on the Federal Screw letter dated September 4, 1985, we have determined that our 11/1/77 decision to issue you a UAW journeyman card for the Millwright trade was in error. We can only assume that the committee who reviewed your journeyman card application, and the Federal Screw letter dated August 25, 1977, were under the assumption that you had worked in the Millwright trade continually from March 1, 1968 to August 25, 1977. From a review of the Federal Screw letter dated Sept. 4, 1985, it is clear that you only worked at the Millwright trade from March 1, 1968, until the date you went on leave of absence April 3, 1972. We cannot grant you credit for the time spent on leave of absence. Mr. Stewart then informed Mr. Marentette Unless you can provide us with documentation that you have eight or more years of experience at the Millwright trade, we will have no alternative except to ask that you return your journeyman card to our office. Please advise me of any additional Millwright experience you may have. In an affidavit of March 29, 1989, Roy Melton states that he spoke with Charlie Stewart and “learned that no documentation was submitted in response to the [Stewart] letter of October 15, 1985.” Mr. Melton further states in the last paragraph of his affidavit 7. On or about November 11, 1985, at a meeting regarding the grievance of Plaintiffs classification the bargaining committee determined, after careful consideration, that Plaintiffs grievance lacked merit. This determination was based a substantial part on the information set forth at the October 15, 1985 letter of CHARLIE STEWART, and the lack of any documentation requested in that letter. Since Plaintiff was not a Journeyman, he was properly classified as trainee upon his return to the Federal Screw Works plant in April, 1985. In a letter dated November 12, 1985, the day after its November 11, 1985 meeting, the FSW UAW Local 174 committee wrote “Brother Marentette,” After considerable investigation your grievance 8610 and 8611 were found to be without merit in the step 4 Grievance meeting with the company on November 1, 1985. Before he swore to the affidavit of March 29, 1989, servicing representative Melton, on November 30, 1988, testified in a deposition that he had withdrawn the Marentette grievance. Asked his basis, Melton said he had “found that [Maren-tette’s] grievance was without merit.” Melton then testified He alleged violation of Exhibit D. After my investigation, I found that was not true. While this basis for denying the grievance is not mentioned in the Melton affidavit, it does not contradict the affidavit statement that “[t]his determination [that the grievance lacked merit] was based a substantial part on the information set forth at the October 15, 1985 letter of CHARLIE STEWART, and the lack of any documentation requested in that letter.” (Emphasis added.) Mr. Melton admitted that he did not talk to Mr. Marentette before he withdrew the grievance. He was then asked “Then you don’t know of your own personal knowledge what Mr. Marentette’s position was?” Mr. Melton answered He sent a letter to me spelling out different things. I don’t recall what they were; that was the extent of it. After the rejection of his grievance, plaintiff filed a charge under Section 8 of the National Labor Relations Act, as amended. The Detroit Regional Director, by letter of November 26, 1985, notified Mr. Maren-tette that “because there is insufficient evidence of violation, further proceedings are not warranted at this time.” Through the internal appeal procedure of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America (“UAW”), Marentette appealed the actions of defendant Local Union. UAW International President Bie-ber wrote plaintiff on October 12, 1987 You were notified of the grievance settlement on November 12, 1985, and you did not file a Constitutional appeal of the disposition reached until April 20, 1986. The April 20, 1986 request to appeal a November 26, 1985 disposition was untimely. You have indicated that mental frustration was present which may have caused the delay of appeal; nonetheless, a complaint on the subject matter was filed with the National Labor Relations Board earlier. On the other hand, there was no evidence submitted to substantiate a claim that you were mentally incapable of availing yourself to the Constitutional Appeals procedure when the final disposition was reached. In view of the above, we have no alternative but to deny your request for further appeal on the basis of untimeliness alone. Accordingly, and pursuant to Article 33, Section 4(b) and (c) of the Constitution of the International Union, UAW, the issue is closed. Thereafter, on March 13, 1988, Mr. Mar-entette filed this action. Claiming his action arises under the Labor Management Relations Act, Section 301 (as amended); Title 29 U.S.C. § 185 (1947), Mr. Marentette asserts two counts. Count I states 21. In withdrawing plaintiff’s grievance, Defendant Union breached its duty of fair representation. 22. Defendant Union acted in an arbitrary, capricious, discriminatory, and bad faith manner. Count II states 25. By not returning plaintiff to the skilled trades classification of Millwright, Defendant Employer violated plaintiff’s contractual rights. II. A. In his complaint, plaintiff states that “[a]t the time plaintiff was placed on a union leave of absence plaintiff was a contractual journeyman Millwright.” As seen, plaintiff bases his claim on the fact that in September 1971, while he was a trainee, he accepted the company’s offer to waive his right to go back to production in exchange for “100 percent pay rate or journeyman status.” Plaintiff says the company acted under the last paragraph of Section 3 “Wages” which authorizes it “to grant wage increases at a faster rate than spelled out above [see table, supra at 605], if merited in the Company’s judgment as to the progress of any individual Trainee hereunder.” The task of the district court was to decide whether any language in Exhibit D of the CBA expressly or impliedly supports the plaintiff’s claim of being a “contractual journeyman Millwright.” Referring to the final provision of Section 3, on which the plaintiff relies, the district court observed in its grant of summary judgment The plaintiff’s rights, whatever they may be, then are governed by further provision of Section 3 and by Section 4. It’s the contention of Plaintiff that he became a journeyman under a further provision under the last paragraph of Section 3 because he was paid a journeyman’s rate. That provision states that the company shall have the right to grant wage increases at a faster rate than spelled out above. The district court then found Well, the company has that option, but there’s no language that in the Court’s estimation can be interpreted to mean that the employee becomes a journeyman because the company elects to accelerate his progress as far as the pay scale is concerned. I think that the agreement is not susceptible of that sort of an interpretation. The court then proceeded to examine Section 4 I might mention that under section 4 there is language regarding the attainment of journeyman status, and under Section 4 we find this language: “Once a trainee has attained journeyman status or elects to waive his bumping privilege at the end of the fifth year [of the program in accordance with the wage agreement], he may no longer exercise [any] seniority rights [in the production departments].” There again, that seems to be an indication that if you proceed under one of these other provisions, you’re not a journeyman. The trainee can either attain journeyman status or he may elect to waive bumping privileges and so forth and so on, but certainly there’s no indication under that language that he attains journeyman status. He merely elects to receive a higher pay rate in exchange for giving up some seniority rights. The district court then determined plaintiff’s breach of contract claim against FSW It seems to the Court that the language of the contract is not susceptible of any other interpretation, and it’s the Court’s ruling that by merely being paid at a journeyman’s pay rate, the plaintiff does not become a journeyman. Plaintiff argues A Trainee can become a journeyman, under the above quoted Trainee Program, in one of three ways, which are: 1. Waiving his seniority rights to return to the Production Departments at the end of his fifth year of training; and then “to progress to the top of Journeyman’s classification for which he is training by the end of the 6th year.’’ 2. Remain at the 99% rate schedule until completing his 8th year of apprenticeship; and “during this period retain the privilege of exercising his seniority in the production departments in event of layoff.” 3. The company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee. Since the plaintiff’s claim is based solely on his third “way” this third “way” will be first examined. The third “way,” as seen, merely copies the verbatim language of the final paragraph of Section 3. The plaintiff does not quote any other language in either Section 3 Wages or Section 4 Seniority to support his claim. This is clear from the following deposition colloquy. As to Section 3 Wages, and Section 4 Seniority, the plaintiff, Mr. Marentette, was asked Q. In both paragraphs that I have read, it says at the end of the fifth year. Can you tell me how it is that you don’t have to be at the end of your fifth year? He answered A. The Company chose to grant the increases contractually and brought these people up to the hundred percent. When the Union counsel asked him, “and that relates solely and only to the pay increase, does it not?”, Mr. Marentette answered “No it does not.” Then, he was asked Q. Show me where it says anything about status classification, journeyman, trainee or otherwise. Can you show us that in the literal text of the provision? Mr. Marentette responded A. I don’t believe there is any specific language that says if you are at one hundred percent, you are in fact a journeyman. Thus, plaintiff concedes that his term “contractual journeyman Millwright” does not rest on any “specific language” of the agreement. Instead, he says the company creates this journeyman status when it exercises its right under the last paragraph of Section 3 to “grant wage increases at a faster rate.” A raise to a trainee of 100 percent of millwright rate, he says, acts to make the trainee a journeyman millwright. Since Section 3 does not bestow such authority on the company, it could not make Marentette a journeyman millwright. Plaintiff asserts he is supported in his claim of “contractual journeyman Millwright" status by two entries on his “Rate Card.” Plaintiff notes that the “Rate Card” lists him as a “Millwright Trainee” on 3/4/71, but “[o]n his next Rate Card entry the word Trainee was dropped and plaintiff was listed as ‘Millwright-Top-Rate.’ ” This argument assumes that under the “Skilled Trades Trainee Program Agreement,” FSW is empowered to vest journeyman millwright status on a trainee. Yet, as plaintiff testifies, there is no “specific language that says if you are at one hundred percent, you are in fact a journeyman.” Thus, it is circular to reason that because the “Rate Card” on 9/4/71 reads “Millwright-Top-Rate,” and on 3/6/72 reads “top rate millwright,” that he thereby achieved the status of journeyman millwright. As the district judge correctly held, “by merely being paid at a journeyman’s pay rate, the plaintiff does not become a journeyman.” While the plaintiff’s four years as a trainee would not qualify him as a journeyman millwright under his asserted first “way,” it is essential to examine his first “way” 1. Waiving his seniority rights to return to the Production Departments at the end of his fifth year of training; and then “to progress to the top of Journeyman's classification for which he is training by the end of the 6th year.” See supra at 609. A pertinent part of Section 3 Wages nullifies this asserted first “way” to become a journeyman millwright. It reads At the option of each individual Trainee who has been upgraded from the existing work force, at the end of the fifth year of his participation in the Trainee Program he may choose to waive any rights he has to exercise seniority in the Production departments and to progress to the top [rate] of Journeyman’s classification for which he is training by the end of the 6th year; or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. This language expressly permits a trainee to obtain “the top rate of Journeyman’s classification... by the end of the 6th year.” But, he does not thereby become a journeyman. Indeed, the next to the last paragraph of Section 4 Seniority concerns the seniority of any “Trainee [who] waives his production seniority at the end of the fifth year,” necessarily including trainees with six or more years. Section 4 states their “seniority shall be confined to the trainee group only for all purposes except shift preference.” Since Trainees with six or more years remain part of the “trainee group,” it is manifest that at the end of six years a trainee does not achieve journeyman status. Moreover, such six years to become a journeyman would be incompatible with the eight years of apprenticeship needed to become a journeyman required in the last clause of the second paragraph of Section 3 (this is the plaintiff’s second “way”), which provides or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. At oral argument, plaintiffs counsel contended that the case should be reversed and remanded to permit the receipt of parol evidence. The plaintiff says the term “Journeyman” is ambiguous, and surrounding circumstances or other extrinsic evidence should be considered in determining the meaning of “Journeyman” as used in the “Skilled Trades Trainee Program Agreement.” While the term journeyman is not defined in the CBA, it is determined that the term, as used, is not ambiguous. The capitalized term “Journeyman” appears nine times in the Skilled Trades Trainee Program Agreement Exhibit D to Contract of January 11, 1977. The term’s meaning becomes apparent from its use in the final paragraph of Section 7 General, which concludes Exhibit D Nothing contained herein shall be construed to limit the Company’s right to hire Journeymen at any time to fill such vacancies as may exist in its Skilled Trades classifications, nor shall the Company be required to place Trainees on the job prior to hiring of such Journeymen. The company’s reserved right to hire journeymen off the street implies a use of the term that has a meaning that is not dependent on the earlier paragraphs of Exhibit D. As part of a collective bargaining agreement between an employer and a UAW Local Union, it is concluded, absent some different contractual definition in the Local’s CBA, that the term is used with a meaning that coincides with the UAW International Constitution which requires eight years of apprenticeship to achieve journeyman status in the skilled trades. This conclusion is reinforced by Mr. Mar-entette’s testimony on how one becomes a journeyman under the International Constitution. As Local 174’s business agent for 13 years, he had the opportunity to become familiar with the International Constitution and the UAW’s practices. He was asked, “[Tjo'get a journeyman’s card, what do you have to do?” He answered A. There is a standard application form that you have to fill out and you take that to the Solidarity House with proof of employment in the trade and time in the trade. Q. What time in the trade is required? A. To obtain a journeyman’s card with the International, eight years is required unless you are on a bona fide apprenticeship, then it’s four. Plaintiff agrees that eight years experience under the UAW Constitution are needed for journeyman status and that the FSW Skilled Trades Trainee Program is not a bona fide apprenticeship. Therefore, Mar-entette’s four years as a skilled trades trainee do not qualify him as a journeyman. Plaintiff correctly states that the CBA does not expressly require that a journeyman millwright obtain a journeyman’s card from the International to qualify as a journeyman at FSW. Nevertheless, the CBA (Section 3 of the Skilled Trades Agreement) does demonstrate a congruence between the bona fide apprenticeship of eight years, required in the International Union’s Constitution, and Exhibit D, Section 3 Wages, which provides that a trainee “may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship." Plaintiff relies on several letters and memoranda from UAW representatives to support his claim that he is á “contractual journeyman Millwright.” On July 30, 1987 John Rucker, International Representative Region 1A, provided Charles Stewart and Frank Fish of the UAW Skilled Trades Department with a copy of the “Skilled Trades Trainee Upgrader Agreement” (FSW and Local 174) “and other documentation involved in Brother Marentette’s appeal.” Rucker asked them to review the documents and advise him “if [they] concur with [his] interpretation.” He stated, “I believe Marentette is a contractual journeyman millwright at the Federal Screw Works Unit of Local Union 174, UAW.” They responded “we have reviewed the documentation enclosed with your memo and concur with your interpretation....” The determination as to whether or not a contract is ambiguous is a decision for the court to make. Local 783, Allied Industrial Workers of America, AFL-CIO v. General Electric Corp., 471 F.2d 751, 757 (6th Cir.1973), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973). This court held, supra at 610-611, that the language in Exhibit D to the collective bargaining agreement is clear and unambiguous. Likewise, the interpretation of an unambiguous contract is a matter of law for the court, and a party’s interpretation is not permissible evidence. Kassin v. Arc-Mation, Inc., 94 Mich.App. 520, 288 N.W.2d 413 (1979). Moreover, the International Union was not a party to the collective bargaining agreement, and International Representatives Rucker, Stewart and Fish had no part in the negotiation of the FSW-Local 174 “Skilled Trades Trainee Program Agreement.” Thus, in any event, their “interpretations” are plainly not admissible. Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 737 & n. 11 (9th Cir.1980). Notwithstanding, item (e) of the items of “facts” listed in Rucker’s letter deserves discussion. Rucker states Employees who were in the Training Program at the same period as Marentette are now considered as Journeymen and are working as millwrights. While this statement would not be admissible evidence, Mr. Marentette’s testimony on this subject may be admissible evidence. Marentette was interrogated by Local 174’s counsel Q At the time this offer was made to you, do you know if the same offer was made to anyone else in the plant? A Not at the same time it wasn’t. It has been made to several others. Q Since then you mean? A Yes. Q Who were the others that have done that since then? A It was made to a plumber named John Ball, Chuck Hurworth, the millwright, Joe Marko, the electrician, and Ray Beyer, a millwright. Q Is that all you can think of? A That’s all I can think of now. Questioned further as to the number of years when these employees were “given one hundred percent,” Marentette answered that John Ball had “[l]ess than five”; Joe Marko was “asked prior to five years” and Ray Beyer “also was asked prior to five years.” Chuck Hurworth, asked at 5 years, declined. Later, “Chuck Hurworth was asked to take the leader’s job in the maintenance department and he accepted that and they gave him a hundred percent.” The company has not offered any evidence to explain or refute this testimony of Marentette. Yet, Marentette’s testimony as to these four other FSW employees adds no new element to his testimony about his own case. He says each received 100% pay before the end of five years. Thus, it still comes back to whether, in exercising the power under Section 3, “to grant wage increases at a faster rate than spelled out above” the company thereby makes the employee a “contractual journeyman.” Plaintiff insists Where it says one hundred percent. If you obtain one hundred percent of the pay rate, you are then a contractual journeyman. But neither the last paragraph of Section 3, nor any other language of the “Skilled Trades Trainee Program Agreement,” empowers the company to create a “contractual journeyman millwright.” While the company, by the collective bargaining agreement, is not given the power to create a “contractual journeyman,” it may be that the company and the Local Union could have agreed to a procedure to create a “contractual journeyman.” At least, in Page v. Curtiss-Wright Corporation, 332 F.Supp. 1060 (D.N.J.1971), the collective bargaining agreement between the corporation and Local 669-UAW defined “journeyman” to include an employee known as a “Contractual Journeyman.” See id., at 1062 n. 3. It is enough to observe that the “Skilled Trades Trainee Program Agreement” between FSW and Local 174 makes no similar provision for a “contractual journeyman.” For the foregoing reasons, it is concluded that the district court properly granted FSW’s Motion for Summary Judgment as to Count II of plaintiff’s Complaint. B. The district court also granted summary judgment on Count I against Local 174. In that count plaintiff asserts that the Local Union breached its duty of fair representation “[i]n withdrawing plaintiff’s grievance.” In his deposition testimony, Marentette concedes that the union “took the position that [he] be returned to the classification [journeyman millwright] in support of the grievance....” Marentette acknowledges that the union maintained this position through the first three steps of the grievance procedure. When asked what happened at the fourth step of the grievance procedure, Marentette replied, “That was when the Union withdrew the grievance.” Plaintiff Marentette was then asked, “Why did they withdraw it, to your knowledge?” Marentette answered, “I got a piece of paper that said [the union] withdrew it because it had no merit.” Before considering the circumstances under which Local 174 withdrew the grievance at the fourth

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

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO v. TRANS WORLD AIRLINES, INC., Appellant. TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al. TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al. Nos. 87-5092, 87-5093 and 87-5176. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 7, 1988. Decided Feb. 19, 1988. Eric Rosenfeld, New York City, for appellant Trans World Airlines. Deborah A. Folloni and Ronald A. Lindsay, Washington, D.C., entered appearances for appellant Trans World Airlines. Michael E. Avakian, North Springfield, Va., for appellants Deborah K. Boiler, et al. Mark W. Pennak, Atty., Dept, of Justice, with whom, Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Ronald M. Etters, General Counsel, Nat. Mediation Bd. and John F. Cordes, Atty., Dept, of Justice, Washington, D.C., were on the brief, for appellees Nat. Mediation Bd. William Kanter, Atty., Dept, of Justice, Washington, D.C., also entered an appearance for appellee Nat. Mediation Board. John A. Edmond, with whom Joseph Gu-errieri, Jr., Washington, D.C., was on the brief, for appellee Intern. Ass’n of Machinists and Aerospace Workers. Before RUTH BADER GINSBURG, WILLIAMS, and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge SENTELLE. SENTELLE, Circuit Judge: These three consolidated appeals concern union representation of passenger service employees of Trans World Airlines, Inc. (TWA). In the District Court, TWA and the individual plaintiffs sought to set aside the National Mediation Board (NMB) certification of the International Association of Machinists and Aerospace Workers (IAM) as bargaining representative. IAM sought an order requiring TWA to commence bargaining and enjoining TWA from altering wages, rules and working conditions, and to retroactively restore conditions to those that existed on May 23, 1986 (the date on which IAM was certified as the bargaining representative for the passenger service employees). The District Court held that the certification of IAM as the bargaining representative was unreviewable pursuant to Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). The District Court then ordered TWA to commence bargaining and enjoined prospective, unilateral changes in working conditions. TWA appeals both the certification and the injunction against prospective unilateral changes. As to the first of those questions, we find no error and affirm. As to the second, we reverse. I. The threshold question is whether this Court should reverse the District Court and vacate the NMB certification of IAM as the representative of TWA’s passenger service employees. If we answer this issue in favor of TWA and against IAM, the injunction becomes void. TWA’s attack on the certification is grounded on the NMB’s decision to exclude from the representation election TWA passenger service employees serving as temporary flight attendants while regular flight attendants were on strike. The relevant facts are set out in detail in the District Court’s opinion, International Association of Machinists v. TWA, Inc., 654 F.Supp. 447 (D.D.C.1987), and we will repeat only those necessary to an understanding of this decision. The employees in question, including individual plaintiffs in this action, were con-cededly on temporary assignment as flight attendants. All were regularly employed as passenger service employees within the bargaining unit relevant to the controversy out of which the disputed election arose. As passenger service employees, they enjoyed higher wages than flight attendants and accepted the volunteer assignments after TWA’s announcement that they would retain their current job title, salary, benefits, status, and seniority. Nonetheless, since the employees were actually working in “another craft or class” on the date of the election, the NMB declared them ineligible, purportedly on the basis of its prior decision in Trans World Airways, Inc., 8 N.M.B. 663 (1981). In that opinion, the employees in question, rather than being on temporary assignment, were actually on permanent assignments but sought eligibility to vote in prior positions as to which they retained “recall” rights. The affected employees in the case before us, together with TWA, suggest that the prior NMB decision is plainly distinguishable since the employees in the prior case had a “present interest in their present craft or class” not paralleled by the concededly temporary flight service attendants who desired to vote in the craft or class of their regular employment. TWA and the individual plaintiffs contend that this resulted in unfairness and was not supported by the evidence before the Board. The election was in fact a very close one. Certification would be granted only if a majority of eligible voters cast ballots in favor of representation. The decertification decision, with reference to the individual plaintiffs and others of their class, was made after all ballots had been received. 1,279 eligible voters cast ballots for IAM, 935 for International Brotherhood of Teamsters, and 36 for the IFFA. Thus, 2,250 valid ballots were cast in favor of representation. The total number of valid ballots was 4,308 so that 51.96% voted in favor of representation. Had the 302 questioned employees been eligible, the 2,250 votes cast would have amounted to only 48.88%, and certification would not have been in order. It was on this basis that TWA and the individual plaintiffs prayed the District Court to void the certification. They argue that under the Board’s own representation manual, revised edition effective on November 1, 1985, temporary employees of the sort represented by plaintiffs here should have been counted in their regular craft. Section 5.302 of that manual reads: Employees who are working regularly in another craft or class on the same carrier will be considered ineligible to participate in the craft or class involved in the Board representative’s investigation. (Emphasis supplied). Plaintiffs contend that under no reasonable construction of “regularly” can these employees be found ineligible. Certainly, their argument is an appealing one. Unfortunately for plaintiffs, both the District Court and this Court are without the power to grant the relief prayed. Judicial review of NMB decisions is one of the narrowest known to the law. As the District Court noted, “It has been established for over twenty years that courts have no authority to review NMB certification decisions in the absence of the showing on the face of the pleadings that the certification decision was a gross violation of the Railway Labor Act or that it violated the constitutional rights of an employer, employee, or Union.” 654 F.Supp. at 450. Citing Brotherhood of Railway and S.S. Clerks v. Association for the Benefit of Noncontract Employees, 380 U.S. 650, 658-60, 661-62, 85 S.Ct. 1192, 1196-97, 1198-99, 14 L.Ed.2d 133 (1965); Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943), inter alia. In the instant case, plaintiffs contend that the pleadings reflect such a gross violation of the statute in that the Board’s decision to decertify the decisive block of eligible voters on so tenuous a basis after the cut-off of eligibility date and the receipt of all ballots violates a statutory duty of neutrality. However, there is no express statutory duty of neutrality, even if plaintiffs’ complaints were taken to adequately allege a violation of such duty. And the “peek at the merits” permitted to this Court when reviewing NMB decisions, IBT v. BRAC, 402 F.2d 196, 205 (D.C.Cir.1968), cert. denied sub nom. BRAC v. NMB, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968), does not disclose a “gross violation of the statute.” Similarly unavailing is plaintiffs’ argument that the Board’s disenfranchisement of the temporary flight attendants constitutes a violation of constitutional rights. The disenfranchised voters and TWA claim that the voters’ “right of association” was violated by NMB’s decertifying them, which they contend was for associating with TWA. They offered the District Court no authority for this proposition, nor have they offered any here, nor indeed have we independently found any such authority. While the treatment of these employees certainly does not cast the NMB in a very favorable light, that treatment does not reach the level of violating a constitutional right, and we are constrained to hold, for the reasons stated by the District Court, that • plaintiffs have failed to demonstrate either a gross violation of the Railway Labor Act, 45 U.S.C. § 151 et seq., or any violation of the Constitution. Therefore, under the principles set forth in Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the certification of the IAM as bargaining representative is not reviewable. II. TWA’s challenge to the District Court injunction against unilateral change of working conditions is more troublesome. After certification, TWA refused to treat with the newly certified representative pending resolution of litigation over the validity of the certification and made unilateral changes in working conditions, specifically by giving flight attendants a role in passenger pre-boarding — “a change that, however desirable as an economy or an efficiency, would have been clearly bar-gainable if a collective bargaining agreement had been in place.” 654 F.Supp. at 452. IAM prayed the District Court to order TWA to bargain in good faith, which the District Court did; to roll back the unilateral change in working conditions, which the District Court refused; and to enjoin TWA from making further unilateral changes in working conditions pending the entry of a collective bargaining agreement. In considering the third section of IAM’s prayer for injunctive relief, the District Court weighed relevant authorities to determine that TWA’s refusal “to negotiate with the IAM over the wages, rules, and working conditions of its passenger service employees despite ... certification by the National Mediation Board,” was a violation of “Section 2, First, Fourth, and Ninth of the Railway Labor Act, 45 U.S.C. § 152, First, Fourth, and Ninth.” 654 F.Supp. at 456. The District Court then ordered that TWA “be enjoined from making any further unilateral changes in the wages, rules, and working conditions of the passenger service employees prior to the exhaustion of the dispute resolution procedures of the Railway Labor Act. 45 U.S.C. § 156.” Id. at 456. In so doing, the District Court overstepped its statutory authority. As the District Court noted, paragraph Seventh of 45 U.S.C. § 152 provides that: No carrier ... shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 156.... The referenced section suspends “intended change[s] in agreements affecting rates of pay, rules, or working conditions” during a waiting period and mediation or an opportunity for mediation by the NMB. 45 U.S. C. § 156. However, as the District Court also noted, the Supreme Court in Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914 (1942), held that the injunctive power granted by Section 6 for the preservation of the status quo is limited by the terms of the Act to those situations in which the status quo reflects a pre-existing collective bargaining agreement. The Williams case, like the case at bar, involved an attempt by the Union to enjoin changes in working conditions when no collective bargaining agreement was in place. That opinion expressly holds: The institution of negotiations for collective bargaining does not change the authority of the carrier. The prohibitions of § 6 against change of wages or conditions pending bargaining and those of § 2, Seventh, are aimed at preventing changes in conditions previously fixed by collective bargaining agreements. Arrangements made after collective bargaining obviously are entitled to a higher degree of permanency and continuity than those made by the carrier for its own convenience and purpose. Id. at 403, 62 S.Ct. at 669. The District Court recognized this limitation from Williams but noted that later Supreme Court cases evidence an erosion in the principle set forth in that case. In Detroit and Toledo Shore Line R.R. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), the Supreme Court considered a case in which a previous collective bargaining agreement was in place but management made unilateral changes in working conditions as to subjects not expressly covered in that agreement. Justice Black, writing for the Court, noted that “[t]he Railway Labor Act was passed ... to encourage collective bargaining by [carriers] and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.” Id. at 148, 90 S.Ct. at 298 (footnote omitted). He further noted that the status quo provisions of the Act were central to its design and that Sections 5, 6, and 10 “together with § 2 First, form an integrated, harmonious scheme for preserving the status quo from the beginning of the major dispute through the final 30-day ‘cooling off period.” Id. at 152, 90 S.Ct. at 300. The Court thén held that “the status quo extends to those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement.” Id. at 153, 90 S.Ct. at 301. The Court then distinguished the Williams decision as being one in which there was no pre-existing collective bargaining agreement while the Detroit and Toledo situation presented an existing agreement which did not cover the specific working conditions subjected to the unilateral change. At this point, the Court described Williams in language that indicated erosion of the precedential force of that decision: In Williams there was absolutely no pri- or history of any collective bargaining or agreement between the parties on any matter. Without pausing to comment upon the present vitality of either of these grounds for dismissing the ... Railway Labor Act claim [in Williams ] it is readily apparent that Williams involved only the question of whether the status quo requirement of § 6 applied. ... Id. at 158, 90 S.Ct. at 303. As the District Court notes, this certainly casts some doubt on the continuing willingness of the Supreme Court to follow the Williams precedent in a case not factually distinguishable from it. However, Detroit and Toledo plainly stops short of overruling Williams and leaves it binding in a case like the one before us where there has been “absolutely no prior history of any collective bargaining or agreement between the parties on any matter.” Id. Since the Detroit and Toledo opinion, the Supreme Court has signaled a further erosion of the Williams principle in Chicago and North Western R.R. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971). In that case there had been a prior collective bargaining agreement but that agreement had expired and the mediation process was complete. Therefore, like the case at bar, there was no immediately enforceable collective bargaining agreement on any subject. The Union prepared to strike. Management sought to enjoin the Union. Thus, as in the case at bar, one party to the negotiation sought to judicially prevent the other from invoking self-help. The Supreme Court found the substance of the complaint before it to be the Union’s alleged failure to perform its obligations under Section 2, First, which imposes upon management and labor the duty “to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes_” 45 U.S.C. § 152, First (emphasis supplied). The Court, after weighing the legislative history, determined that Section 2, First, imposed a legal duty upon the parties independent of the duties under Section 6, holding: [W]e think it plain that § 2 First, was intended to be more than a mere statement of policy or exhortation to the parties; rather, it was designed to be a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis. Id. at 577, 91 S.Ct. at 1735. And, the Court further held that these “appropriate means” could include injunction against a strike. It would seem apparent that the power to enjoin the Union’s self-help measure — strikes—implies the concomitant power to enjoin management’s self-help measure — a potentially strike-provoking unilateral change in work conditions. This seems particularly true when in each instance the power is aimed at enforcing the same duty arising out of Section 2, First, as quoted above and furthering the congressional goal of maintaining uninterrupted interstate commerce as described by Justice Black. Therefore, while the legal foundation of the District Court’s power to issue an injunction like the one issued here does exist, nonetheless, the Williams case holding, though weakened, is not dead. None of the Supreme Court cases cited above and no other case, before or since, has overruled Williams. Thus, no power to enjoin unilateral changes in working conditions by management flows from Section 6 of the Act in the absence of pre-existing, in place, collective bargaining agreements. The independent duty found by the Court under Section 2, First, in the Chicago and North Western case is a limited one. The Court expressly held that the injunctive remedy would be available only “where a strike injunction is the only practical, effective means of enforcing the command of § 2 First.” 402 U.S. at 582, 91 S.Ct. at 1738. Plainly the same restrictive test should apply in enjoining self-help by management. In Burlington Northern R.R. v. BMWE, — U.S. —, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987), the Supreme Court underscored the limited circumstances under which this drastic remedy is available stating “[c]ourts should hesitate to fix upon the injunctive remedy ... unless that remedy alone can effectively guard the plaintiff’s right.” Id. at —, 107 S.Ct, at 1851 (quoting International Assn. of Machinists v. Street, 367 U.S. 740, 773, 81 S.Ct. 1784, 1802, 6 L.Ed.2d 1141 (1961)). While the District Court’s opinion in the case before us does quote the limiting language from Chicago and North Western R.R. to the effect that the injunction is “the only practical, effective means” of enforcing a duty imposed by the Railway Labor Act, in this case that finding is not at this time supported by the record. In Chicago and North Western all the procedures for negotiations, mediation, and “cooling off” period had been attempted before resort to the injunctive measure. Here, the first steps had not yet been taken when the final leap occurred. Therefore, we are constrained to conclude that so long as Williams remains the law, the District Court lacks the power to employ this drastic measure, absent a showing of unavailability or ineffectiveness of other remedies. Thus, as to this assignment of error and this one only, we reverse the decision of the trial court, while affirming that decision in all other particulars. In short, the order of the District Court is affirmed in part, and reversed in part. .The use of the word "neutral” in the statute occurs in fact at 45 U.S.C. § 152, Ninth, “in the conduct of any election for the purposes herein indicated, the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within 10 days designate the employees who may participate in the election." (Emphasis supplied). The word neutral does not occur as an adjective modifying the Board itself. . The provisions of the Railway Labor Act, except 45 U.S.C. § 153, are applicable to airlines. 45 U.S.C. § 181. . The first two rulings in the District Court’s injunction are not under attack here and are in accordance with fixed principles of railway labor law. See generally 45 U.S.C. § 152 and authorities collected in International Association of Machinists & Aerospace Workers v. Trans World Airlines, Inc., 654 F.Supp. 447 (D.D.C.1987). . This section is also referred to hereinafter as "Section 2.” . This section is also referred to hereinafter as "Section 6." .- The Detroit and Toledo case defines " 'a major dispute’ [as] one arising out of the formation or change of collective agreements covering rates of pay, rules, or working conditions." Id. at 145 n. 7, 90 S.Ct. at 296 n. 7 (emphasis supplied) (citations omitted). . Burlington Northern R.R. v. BMWE is also one of a long line of cases making plain that the anti-injunction provisions of the Norris-La Guardia Act, 29 U.S.C. §§ 101-115, do not prevent the strike injunctions, above discussed, in appropriate limited circumstances. See, e.g., Chicago and North Western R.R. v. Transportation Union, supra 402 U.S. at 581, 91 S.Ct. at 1737, and authorities collected therein.

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

Joseph JESNER, et al., Petitioners v. ARAB BANK, PLC. No. 16-499. Supreme Court of the United States Argued Oct. 11, 2017. Decided April 24, 2018. Jeffrey L. Fisher, Stanford, CA, for Petitioners. Brian H. Fletcher, for the United States as amicus curiae, by special leave of the Court, supporting neither party. Paul D. Clement, Washington, DC, for Respondent. Michael E. Elsner, John M. Eubanks, Jodi Westbrook Flowers, Motley Rice LLC, Mt. Pleasant, SC, Mark Werbner, Sayles Werbner P.C., Dallas, TX, Jeffrey L. Fisher, David T. Goldberg, Pamela S. Karlan, Jenny S. Martinez, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, for Petitioners. Jonathan Siegfried, Kevin Walsh, Douglas W. Mateyaschuk, DLA Piper LLP (US), New York, NY, Paul D. Clement, Erin E. Murphy, Edmund G. LaCour Jr., Andrew C. Lawrence, Kirkland & Ellis LLP, Washington, DC, for Respondent. Justice KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B-1, and II-C, and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, in which THE CHIEF JUSTICE and Justice THOMAS join. Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human agents, including its then-chairman and other high-ranking management officials. The suits were filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28 U.S.C. § 1350. The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here. Some of Arab Bank's officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive the moneys in part by means of currency clearances and bank transactions passing through its New York City offices, all by means of electronic transfers. It is assumed here that those individuals who inflicted death or injury by terrorism committed crimes in violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking transactions to aid, enable, or facilitate the terrorist acts would themselves be committing crimes under the same international-law prohibitions. Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so. The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." § 1350. The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so. I A Petitioners are plaintiffs in five ATS lawsuits filed against Arab Bank in the United States District Court for the Eastern District of New York. The suits were filed between 2004 and 2010. A significant majority of the plaintiffs in these lawsuits-about 6,000 of them-are foreign nationals whose claims arise under the ATS. These foreign nationals are petitioners here. They allege that they or their family members were injured by terrorist attacks in the Middle East over a 10-year period. Two of the five lawsuits also included claims brought by American nationals under the Anti-Terrorism Act, 18 U.S.C. § 2333(a), but those claims are not at issue. Arab Bank is a major Jordanian financial institution with branches throughout the world, including in New York. According to the Kingdom of Jordan, Arab Bank "accounts for between one-fifth and one-third of the total market capitalization of the Amman Stock Exchange." Brief for Hashemite Kingdom of Jordan as Amicus Curiae 2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among other claims, petitioners allege that Arab Bank maintained bank accounts for terrorists and their front groups and allowed the accounts to be used to pay the families of suicide bombers. Most of petitioners' allegations involve conduct that occurred in the Middle East. Yet petitioners allege as well that Arab Bank used its New York branch to clear dollar-denominated transactions through the Clearing House Interbank Payments System. That elaborate system is commonly referred to as CHIPS. It is alleged that some of these CHIPS transactions benefited terrorists. Foreign banks often use dollar-clearing transactions to facilitate currency exchanges or to make payments in dollars from one foreign bank account to another. Arab Bank and certain amici point out that CHIPS transactions are enormous both in volume and in dollar amounts. The transactions occur predominantly in the United States but are used by major banks both in the United States and abroad. The CHIPS system is used for dollar-denominated transactions and for transactions where the dollar is used as an intermediate currency to facilitate a currency exchange. Brief for Institute of International Bankers as Amicus Curiae 12-13, and n. 8. In New York each day, on average, about 440,000 of these transfers occur, in dollar amounts totaling about $1.5 trillion. Id., at 14. The "clearance activity is an entirely mechanical function; it occurs without human intervention in the proverbial 'blink of an eye.' " Ibid. There seems to be no dispute that the speed and volume of these transactions are such that individual supervision is simply not a systemic reality. As noted below, substantial regulations govern these transactions, both in the United States and in Jordan. In addition to the dollar-clearing transactions, petitioners allege that Arab Bank's New York branch was used to launder money for the Holy Land Foundation for Relief and Development (HLF), a Texas-based charity that petitioners say is affiliated with Hamas. According to petitioners, Arab Bank used its New York branch to facilitate the transfer of funds from HLF to the bank accounts of terrorist-affiliated charities in the Middle East. During the pendency of this litigation, there was an unrelated case that also implicated the issue whether the ATS is applicable to suits in this country against foreign corporations. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (C.A.2 2010). That suit worked its way through the trial court and the Court of Appeals for the Second Circuit. The Kiobel litigation did not involve banking transactions. Its allegations were that holding companies incorporated in the Netherlands and the United Kingdom had, through a Nigerian subsidiary, aided and abetted the Nigerian Government in human-rights abuses. Id., at 123. In Kiobel, the Court of Appeals held that the ATS does not extend to suits against corporations. Id., at 120. This Court granted certiorari in Kiobel. 565 U.S. 961, 132 S.Ct. 472, 181 L.Ed.2d 292 (2011). After additional briefing and reargument in Kiobel, this Court held that, given all the circumstances, the suit could not be maintained under the ATS. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 114, 124-125, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). The rationale of the holding, however, was not that the ATS does not extend to suits against foreign corporations. That question was left unresolved. The Court ruled, instead, that "all the relevant conduct took place outside the United States." Id., at 124, 133 S.Ct. 1659. Dismissal of the action was required based on the presumption against extraterritorial application of statutes. So while this Court in Kiobel affirmed the ruling that the action there could not be maintained, it did not address the broader holding of the Court of Appeals that dismissal was required because corporations may not be sued under the ATS. Still, the courts of the Second Circuit deemed that broader holding to be binding precedent. As a consequence, in the instant case the District Court dismissed petitioners' ATS claims based on the earlier Kiobel holding in the Court of Appeals; and on review of the dismissal order the Court of Appeals, also adhering to its earlier holding, affirmed. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F.3d 144 (2015). This Court granted certiorari in the instant case. 581 U.S. ----, 137 S.Ct. 1432, 197 L.Ed.2d 646 (2017). Since the Court of Appeals relied on its Kiobel holding in the instant case, it is instructive to begin with an analysis of that decision. The majority opinion in Kiobel, written by Judge Cabranes, held that the ATS does not apply to alleged international-law violations by a corporation. 621 F.3d, at 120. Judge Cabranes relied in large part on the fact that international criminal tribunals have consistently limited their jurisdiction to natural persons. Id., at 132-137. Judge Leval filed a separate opinion. He concurred in the judgment on other grounds but disagreed with the proposition that the foreign corporation was not subject to suit under the ATS. Id., at 196. Judge Leval conceded that "international law, of its own force, imposes no liabilities on corporations or other private juridical entities." Id., at 186. But he reasoned that corporate liability for violations of international law is an issue of "civil compensatory liability" that international law leaves to individual nations. Ibid. Later decisions in the Courts of Appeals for the Seventh, Ninth, and District of Columbia Circuits agreed with Judge Leval and held that corporations can be subject to suit under the ATS. See Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017-1021 (C.A.7 2011) ; Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1020-1022 (C.A.9 2014) ; Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 40-55 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7 (C.A.D.C.2013). The respective opinions by Judges Cabranes and Leval are scholarly and extensive, providing significant guidance for this Court in the case now before it. With this background, it is now proper to turn to the history of the ATS and the decisions interpreting it. B Under the Articles of Confederation, the Continental Congress lacked authority to " 'cause infractions of treaties, or of the law of nations to be punished.' " Sosa v. Alvarez-Machain, 542 U.S. 692, 716, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (quoting J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)). The Continental Congress urged the States to authorize suits for damages sustained by foreign citizens as a result of violations of international law; but the state courts' vindication of the law of nations remained unsatisfactory. Concerns with the consequent international-relations tensions "persisted through the time of the Constitutional Convention." 542 U.S., at 717, 124 S.Ct. 2739. Under the Articles of Confederation, the inability of the central government to ensure adequate remedies for foreign citizens caused substantial foreign-relations problems. In 1784, the French Minister lodged a protest with the Continental Congress after a French adventurer, the Chevalier de Longchamps, assaulted the Secretary of the French Legation in Philadelphia. See Kiobel, 569 U.S., at 120, 133 S.Ct. 1659. A few years later, a New York constable caused an international incident when he entered the house of the Dutch Ambassador and arrested one of his servants. Ibid. Under the Articles of Confederation, there was no national forum available to resolve disputes like these under any binding laws that were or could be enacted or enforced by a central government. The Framers addressed these matters at the 1787 Philadelphia Convention; and, as a result, Article III of the Constitution extends the federal judicial power to "all cases affecting ambassadors, other public ministers and consuls," and "to controversies... between a state, or the citizens thereof, and foreign states, citizens, or subjects." § 2. The First Congress passed a statute to implement these provisions: The Judiciary Act of 1789 authorized federal jurisdiction over suits involving disputes between aliens and United States citizens and suits involving diplomats. §§ 9, 11, 1 Stat. 76-79. The Judiciary Act also included what is now the statute known as the ATS. § 9, id., at 76. As noted, the ATS is central to this case and its brief text bears repeating. Its full text is: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The ATS is "strictly jurisdictional" and does not by its own terms provide or delineate the definition of a cause of action for violations of international law. Sosa, 542 U.S., at 713-714, 124 S.Ct. 2739. But the statute was not enacted to sit on a shelf awaiting further legislation. Id., at 714, 124 S.Ct. 2739. Rather, Congress enacted it against the backdrop of the general common law, which in 1789 recognized a limited category of "torts in violation of the law of nations." Ibid. In the 18th century, international law primarily governed relationships between and among nation-states, but in a few instances it governed individual conduct occurring outside national borders (for example, "disputes relating to prizes, to shipwrecks, to hostages, and ransom bills"). Id., at 714-715, 124 S.Ct. 2739 (internal quotation marks omitted). There was, furthermore, a narrow domain in which "rules binding individuals for the benefit of other individuals overlapped with" the rules governing the relationships between nation-states. Id., at 715, 124 S.Ct. 2739. As understood by Blackstone, this domain included "three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy." Ibid. (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)). "It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on the minds of the men who drafted the ATS." 542 U.S., at 715, 124 S.Ct. 2739. This history teaches that Congress drafted the ATS "to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations." Id., at 720, 124 S.Ct. 2739. The principal objective of the statute, when first enacted, was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen. See id., at 715-719, 124 S.Ct. 2739 ; Kiobel, 569 U.S., at 123-124, 133 S.Ct. 1659. Over the first 190 years or so after its enactment, the ATS was invoked but a few times. Yet with the evolving recognition-for instance, in the Nuremberg trials after World War II-that certain acts constituting crimes against humanity are in violation of basic precepts of international law, courts began to give some redress for violations of international human-rights protections that are clear and unambiguous. In the modern era this began with the decision of the Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (1980). In Filartiga, it was alleged that a young man had been tortured and murdered by Paraguayan police officers, and that an officer named Pena-Irala was one of the supervisors and perpetrators. Some members of the victim's family were in the United States on visas. When they discovered that Pena-Irala himself was living in New York, they filed suit against him. The action, seeking damages for the suffering and death he allegedly had caused, was filed in the United States District Court for the Eastern District of New York. The Court of Appeals found that there was jurisdiction under the ATS. For this holding it relied upon the universal acknowledgment that acts of official torture are contrary to the law of nations. Id., at 890. This Court did not review that decision. In the midst of debates in the courts of appeals over whether the court in Filartiga was correct in holding that plaintiffs could bring ATS actions based on modern human-rights laws absent an express cause of action created by an additional statute, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350. H.R. Rep. No. 102-367, pp. 3-4 (1991) (H.R. Rep.) (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C.1984) ); S. Rep. No. 102-249, pp. 3-5 (1991) (S. Rep.) (same). The TVPA-which is codified as a note following the ATS-creates an express cause of action for victims of torture and extrajudicial killing in violation of international law. After Filartiga and the TVPA, ATS lawsuits became more frequent. Modern ATS litigation has the potential to involve large groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. For example, in Kiobel the plaintiffs were Nigerian nationals who sued Dutch, British, and Nigerian corporations for alleged crimes in Nigeria. 569 U.S., at 111-112, 133 S.Ct. 1659. The extent and scope of this litigation in United States courts have resulted in criticism here and abroad. See id., at 124, 133 S.Ct. 1659 (noting objections to ATS litigation by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). In Sosa, the Court considered the question whether courts may recognize new, enforceable international norms in ATS lawsuits. 542 U.S., at 730-731, 124 S.Ct. 2739. The Sosa Court acknowledged the decisions made in Filartiga and similar cases; and it held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, in addition to the "historical paradigms familiar when § 1350 was enacted." 542 U.S., at 732, 124 S.Ct. 2739. The Court was quite explicit, however, in holding that ATS litigation implicates serious separation-of-powers and foreign-relations concerns. Id., at 727-728, 124 S.Ct. 2739. Thus, ATS claims must be "subject to vigilant doorkeeping." Id., at 729, 124 S.Ct. 2739. This Court next addressed the ATS in Kiobel, the case already noted. There, this Court held that "the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts the presumption." 569 U.S., at 124, 133 S.Ct. 1659. The Court added that "even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application." Id., at 124-125, 133 S.Ct. 1659. II With these principles in mind, this Court now must decide whether common-law liability under the ATS extends to a foreign corporate defendant. It could be argued, under the Court's holding in Kiobel, that even if, under accepted principles of international law and federal common law, corporations are subject to ATS liability for human-rights crimes committed by their human agents, in this case the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS. Various amici urge this as a rationale to affirm here, while the Government argues that the Court should remand this case so the Court of Appeals can address the issue in the first instance. There are substantial arguments on both sides of that question; but it is not the question on which this Court granted certiorari, nor is it the question that has divided the Courts of Appeals. The question whether foreign corporations are subject to liability under the ATS should be addressed; for, if there is no liability for Arab Bank, the lengthy and costly litigation concerning whether corporate contacts like those alleged here suffice to impose liability would be pointless. In addition, a remand to the Court of Appeals would require prolonging litigation that already has caused significant diplomatic tensions with Jordan for more than a decade. So it is proper for this Court to decide whether corporations, or at least foreign corporations, are subject to liability in an ATS suit filed in a United States district court. Before recognizing a common-law action under the ATS, federal courts must apply the test announced in Sosa. An initial, threshold question is whether a plaintiff can demonstrate that the alleged violation is "of a norm that is specific, universal, and obligatory." 542 U.S., at 732, 124 S.Ct. 2739 (internal quotation marks omitted). And even assuming that, under international law, there is a specific norm that can be controlling, it must be determined further whether allowing this case to proceed under the ATS is a proper exercise of judicial discretion, or instead whether caution requires the political branches to grant specific authority before corporate liability can be imposed. See id., at 732-733, and nn. 20-21, 124 S.Ct. 2739. "[T]he potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id., at 727, 124 S.Ct. 2739. It must be said that some of the considerations that pertain to determining whether there is a specific, universal, and obligatory norm that is established under international law are applicable as well in determining whether deference must be given to the political branches. For instance, the fact that the charters of some international tribunals and the provisions of some congressional statutes addressing international human-rights violations are specifically limited to individual wrongdoers, and thus foreclose corporate liability, has significant bearing both on the content of the norm being asserted and the question whether courts should defer to Congress. The two inquiries inform each other and are, to that extent, not altogether discrete. With that introduction, it is proper now to turn first to the question whether there is an international-law norm imposing liability on corporations for acts of their employees that contravene fundamental human rights. A Petitioners and Arab Bank disagree as to whether corporate liability is a question of international law or only a question of judicial authority and discretion under domestic law. The dispute centers on a footnote in Sosa. In the course of holding that international norms must be "sufficiently definite to support a cause of action," the Court in Sosa noted that a "related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." Id., at 732, and n. 20, 124 S.Ct. 2739. In the Court of Appeals' decision in Kiobel, the majority opinion by Judge Cabranes interpreted footnote 20 to mean that corporate defendants may be held liable under the ATS only if there is a specific, universal, and obligatory norm that corporations are liable for violations of international law. 621 F.3d, at 127. In Judge Cabranes' view, "[i]nternational law is not silent on the question of the subjects of international law-that is, those that, to varying extents, have legal status, personality, rights, and duties under international law," "[n]or does international law leave to individual States the responsibility of defining those subjects." Id., at 126 (internal quotation marks omitted). There is considerable force and weight to the position articulated by Judge Cabranes. And, assuming the Court of Appeals was correct that under Sosa corporate liability is a question of international law, there is an equally strong argument that petitioners cannot satisfy the high bar of demonstrating a specific, universal, and obligatory norm of liability for corporations. Indeed, Judge Leval agreed with the conclusion that international law does "not provide for any form of liability of corporations." Kiobel, 621 F.3d, at 186. 1 In modern times, there is no doubt, of course, that "the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights," leading "the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest." Filartiga, 630 F.2d, at 890. That principle and commitment support the conclusion that human-rights norms must bind the individual men and women responsible for committing humanity's most terrible crimes, not just nation-states in their interactions with one another. "The singular achievement of international law since the Second World War has come in the area of human rights," where international law now imposes duties on individuals as well as nation-states. Kiobel, 621 F.3d, at 118. It does not follow, however, that current principles of international law extend liability-civil or criminal-for human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach. The Charter for the Nuremberg Tribunal, created by the Allies after World War II, provided that the Tribunal had jurisdiction over natural persons only. See Agreement for Prosecution and Punishment of Major War Criminals of the European Axis, Art. 6, Aug. 8, 1945, 59 Stat. 1547, E.A.S. 472. Later, a United States Military Tribunal prosecuted 24 executives of the German corporation IG Farben. 7 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, pp. 11-60 (1952) (The Farben Case ). Among other crimes, Farben's employees had operated a slave-labor camp at Auschwitz and "knowingly and intentionally manufactured and provided" the poison gas used in the Nazi death chambers. Kiobel, 621 F.3d, at 135. Although the Military Tribunal "used the term 'Farben' as descriptive of the instrumentality of cohesion in the name of which" the crimes were committed, the Tribunal noted that "corporations act through individuals." 8 The Farben Case, at 1153. Farben itself was not held liable. See ibid. The jurisdictional reach of more recent international tribunals also has been limited to "natural persons." See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827 (May 25, 1993), adopting U.N. Secretary-General Rep. Pursuant to Paragraph 2 of Security Council Resolution 808, Art. 6, U.N. Doc. S/25704 (May 3, 1993); Statute of the International Tribunal for Rwanda, Art. 5, S.C. Res. 955, Art. 5 (Nov. 8, 1994). The Rome Statute of the International Criminal Court, for example, limits that tribunal's jurisdiction to "natural persons." See Rome Statute of the International Criminal Court, Art. 25(1), July 17, 1998, 2187 U.N.T.S. 90. The drafters of the Rome Statute considered, but rejected, a proposal to give the International Criminal Court jurisdiction over corporations. Eser, Individual Criminal Responsibility, in 1 Rome Statute of the International Criminal Court 767, 778-779 (A. Cassese et al. eds. 2002). The international community's conscious decision to limit the authority of these international tribunals to natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law. 2 In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for corporations is well established as a matter of international law lend weak support to their position. Petitioners first point to the International Convention for the Suppression of the Financing of Terrorism. This Convention imposes an obligation on "Each State Party" "to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity," violated the Convention. International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 106-49, 2178 U.N.T.S. 232. But by its terms the Convention imposes its obligations only on nation-states "to enable" corporations to be held liable in certain circumstances under domestic law. The United States and other nations, including Jordan, may fulfill their obligations under the Convention by adopting detailed regulatory regimes governing financial institutions. See, e.g., 18 U.S.C. § 2333(a) (private right of action under the Anti-Terrorism Act); 31 U.S.C. § 5311 et seq. (Bank Secrecy Act); 31 C.F.R. pt. 595 (2017) (Terrorism Sanctions Regulations); Brief for Central Bank of Jordan as Amicus Curiae 5 (describing Jordan's "comprehensive approach to preventing money laundering and terrorist financing"). The Convention neither requires nor authorizes courts, without congressional authorization, to displace those detailed regulatory regimes by allowing common-law actions under the ATS. And nothing in the Convention's text requires signatories to hold corporations liable in common-law tort actions raising claims under international law. In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon that, according to petitioners, are examples of corporations being held liable for violations of international law. E.g., Brief for Petitioners 50-51. Yet even assuming that these cases are relevant examples, at most they demonstrate that corporate liability might be permissible under international law in some circumstances. That falls far short of establishing a specific, universal, and obligatory norm of corporate liability. It must be remembered that international law is distinct from domestic law in its domain as well as its objectives. International human-rights norms prohibit acts repugnant to all civilized peoples-crimes like genocide, torture, and slavery, that make their perpetrators "enem[ies] of all mankind." Sosa, 542 U.S., at 732, 124 S.Ct. 2739 (internal quotation marks omitted). In the American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS. It is true, furthermore, that the enormity of the offenses that can be committed against persons in violation of international human-rights protections can be cited to show that corporations should be subject to liability for the crimes of their human agents. But the international community has not yet taken that step, at least in the specific, universal, and obligatory manner required by Sosa. Indeed, there is precedent to the contrary in the statement during the Nuremberg proceedings that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." The Nurnberg Trial, 6 F.R.D. 69, 110 (1946). Petitioners also contend that international law leaves questions of remedies open for determination under domestic law. As they see it, corporate liability is a remedial consideration, not a substantive principle that must be supported by a universal and obligatory norm if it is to be implemented under the ATS. According to petitioners, footnote 20 in Sosa does no more than recognize the distinction in international law between state and private actors. But, as just explained, there is a similar distinction in international law between corporations and natural persons. And it is far from obvious why the question whether corporations may be held liable for the international crimes of their employees is a mere question of remedy. In any event, the Court

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.

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

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

Myles James SWIFT, Appellant, v. DIRECTOR OF SELECTIVE SERVICE et al. No. 24137. United States Court of Appeals, District of Columbia Circuit. Argued June 4, 1970. Decided July 16, 1971. Mr. Gaillard T. Hunt, Washington, D. C., with whom Mr. Walter C. Farley. Washington, D. C., was on the brief, for appellant. Mr. Morton Hollander, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Reed Johnston, Jr., Atty., Department of Justice, were on the brief, for appel-lees. Mr. Robert E. Kopp, Atty., Department of Justice, also entered an appearance for appellees. On Appellees’ Petition for Rehearing Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges. PER CURIAM: Appellant Swift sought an injunction to prevent his induction into the Army, asserting that his induction order was invalid for two reasons. He urged first, that his draft status must be governed by the new Random Selection Sequence Regulations, not by the order of call existing on the date of his original induction order; and, second, that his local board acted unlawfully in refusing to reopen his classification in response to his post-induction order claim of conscientious objection. The District Court resolved the first contention against appellant- on the merits. We affirm that decision for the reasons given in Part II of this opinion. The District Court further held that appellant’s second contention was barred from pre-induction review by Section 10(b) (3) of the Military Selective Service Act of 1967 (50 U.S.C. (Supp. V, 1970) § 460(b) (3)). In our initial opinion in this case of March 16, 1971, we disagreed with that conclusion and held, Judge Wilkey dissenting, that under United States v. Gearey appellant had stated a claim that the board had acted unlawfully which could be reached on pre-induction review. However, we noted in our March 16, 1971, opinion that if we had chosen to follow Ehlert v. United States “appellant would have no feasible claim that his board acted lawlessly in refusing to reopen his classification.” Subsequently, before the mandate of this court had issued, the Supreme Court affirmed the Ninth Circuit’s decision in Ehlert, holding that under the applicable regulations a claim of conscientious objection which matures after issuance of an induction order may not be entertained by the Selective Service, but must be considered by the military after induction. Ehlert obviously removes the basis for appellant’s contention that his board unlawfully refused to consider his posi-induction order claim to conscientious objection. We therefore vacate our opinion of March 16, 1971, and thus also affirm the District Court’s action in denying a preliminary injunction on this second ground. I. FACTS Appellant was classified I-A by his local board in Allentown, Pennsylvania, in March 1969. He took an appeal, and was classified I-A-0 by an appeals board. On September 12, 1969 he received an order to report for induction on October 1. Appellant obtained assorted postponements of the reporting date; then, on November 22, he presented his board with a request to change his classification to 1-0 on the ground that his views, which had crystallized after the induction order, prevented him from serving in the Army at all. By letter of December 11, the board informed appellant that it had considered the information submitted in support of his 1-0 claim, and had unanimously refused to reopen his file. The Pennsylvania State Director of Selective Service, on January 5, 1970, reviewed appellant’s file, and concluded that the local board had acted properly. In the meantime, by letter of December 19, 1969, the local board had ordered appellant to report for induction in Allentown on January 15, 1970. He did so, but no final decision as to his acceptability was reached because further physical tests were needed. On January 21, 1970, appellant was ordered by his local board to report to Walter Reed Army Hospital on February 11, for the tests. He reported as directed, and on February 17 he was informed that he had been found fully acceptable for induction. The next day he was ordered by a letter' from his local board to report for induction in Allentown on March 2, 1970. Later, appellant’s request for a transfer of induction was granted, and he was to have reported for induction in the District of Columbia on April 7, 1970. Court proceedings leading to a stay of induction order from this court were started on April 1, 1970. II. RANDOM SELECTION Appellant argues that his induction order was terminated by the events of January 15, 1970, when he reported to the Armed Forces Entrance Examination Station (AFEES) and was not inducted because of an inability to complete his physical examination on that day. Thereafter, appellant maintains, he could only be inducted pursuant to a new induction order, issued in conformity with the order of call established by the new regulations effective January 1, 1970, calling for a lottery. Since resolution of this question involves only a legal issue, and does not call for a review of a factual determination or the exercise of discretion by the local board, we think it plainly can be reached on preinduction review. Appellant emphasizes that his original order to report for induction (SS Form 252) dated September 12, 1969, which was postponed several times, was still in effect on January 15, 1970, and that he fully complied with this order by reporting at the time and place designated and being physically examined. Appellant alleges, and the District Court took as true on his expressed willingness to testify and on the Government’s representation that no dispute of fact existed, that on January 15 he was sent from the AFEES and told by AFEES personnel that the next orders he would get would be from his local board. He asserts that the reason for this was that his physical examination had only been partly completed, that further examination in regard to his problems of flat feet and a bad back could not be done at the local station, and the facilities of a hospital such as Walter Reed were required. He subsequently was sent to Walter Reed for further examination which resulted in his being determined medically acceptable, as he was informed by the notice sent February 17, 1970. On this state of facts appellant argues that his order of induction of September 12, 1969, was thus terminated or exhausted, that a new order of induction from the local board was necessary to put him once again in line for military service, and that such order had to be issued under the new random selection regulations. Appellant does not, and the Government asserts he cannot, point to any provision in the statutes, Selective Service regulations, or Army regulations that states specifically that the failure to induct a registrant into the Armed Forces on the day he reports pursuant to an order of induction, when the reason for the delay is an incomplete physical examination, has the legal effect of canceling or terminating his previously issued induction order. On the other hand, appellant asserts that the Government can point to no statute, regulation, or other authority which says that the induction order continues in full force and effect. It is probable that many thousands of registrants have been treated in the same manner as apepllant here, i. e., the registrant has reported for a physical examination, some problem has been encountered which is beyond the capacity of the particular examining station to determine with finality, and the registrant has been told to go back to his residence and that he will be advised later as to when and where his physical examination can be completed. The registrant has then been found medically acceptable or unacceptable, and the Selective Service process has functioned in a normal manner in taking or rejecting him. it is obvious that the reason this question has seldom arisen in court before is that few registrants ever found themselves with the attractive alternative possibility that appellant here claims, i. e., if the induction order was exhausted by appellant reporting on the day specified and the Armed Services were unable to complete his physical exam until space could be secured for him to be examined at a more elaborate medical facility such as Walter Reed, then appellant could only be reordered to report for induction under the new random selection regulations. With lottery No. 342, appellant would naturally prefer this alternative if in law it does exist. We think the answer to this question is indicated by Army Regulation 601-270, Section 3-31 of March 18, 1969. This section is the Armed Services’ effort to provide administrative instructions for handling registrants at the Armed Forces Entrance Examination Stations under various contingencies. Insofar as the medical examination itself is concerned, it is obvious that each registrant will fit into one of three categories: one, medically acceptable; two, medically unacceptable; or three, medical acceptability undetermined for any of several reasons. Sub-paragraph a. gives specific instructions as to what officials at the AFEES are to do with those registrants found “medically unacceptable,” specifying which forms will be filled out and what transportation will be provided the registrants, etc. Sub-paragraph 6. is a similar effort to instruct officials at the AFEES as to how to handle registrants “whose medical acceptability is undetermined” on the first day of examination. These pertinent instructions state: b. Registrants whose acceptability is undetermined. In the case of registrants whose acceptability for induction in undetermined, pending * * * further hospital study/consultation, or additional mental evaluation, their records may be held at the AFEES for completion upon final determination of acceptability. The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board. The registrant will be returned to his Local Board in the same manner as other registrants rejected at time of induetion. Disposition of the registrant will be shown on SS Form 261 as “acceptability undetermined” with the remark “pending medical, mental or administrative action” as applicable. It is readily apparent that a good many reasons could arise as to why the medical examination for some registrants could not be completed at the AFEES medical facilities. In the case of appellant, his problems of flat feet and a bad back needed more expert evaluation, which was only obtainable at a facility like Walter Reed. On oral argument, the question was posed to appellant’s counsel as to whether sub-paragraph V. would also govern a situation in which the AFEES facility ran out of x-ray film, the registrant needed his chest x-rays completed, and he had to be told to come back at a subsequent date. Appellant’s counsel stated that this situation of exhausted x-ray film would be comparable to appellant’s situation of necessary further evaluation of flat feet and a bad back. We find nothing in sub-paragraph b. which has the effect of or indicates that it is intended to have the effect of canceling or terminating any registrant’s previously outstanding order of induction, unless and until he is found finally “medically unacceptable.” Rather, we find in subparagraph b. an effort to provide detailed instructions, even as to precisely which forms are to be completed by the official at the AFEES, and what handling the registrant is to receive, all in contemplation of the registrant’s remaining in an undetermined status until his medical acceptability can be finally determined. To us it seems highly illogical that any of innumerable possible happenstances which would interrupt the completion of the physical evaluation of a registrant have the legal effect of terminating his previously extant order of induction. For example, if for any reason an AFEES had to close for one day, this would necessarily throw all the registrants being processed that day back to their local boards to receive new orders to be inducted, on the inescapable logic of appellant’s argument here. There is nothing in Section 3-31 which indicates that the effect of suspending temporarily the medical examination of a registrant until he can be processed at the proper medical facility was intended to exhaust the effectiveness of the order of induction under which the registrant and the AFEES were operating. The fact that sub-paragraph b. calls for the registrant to be returned to his local board is to our minds a mere administrative convenience. It is certainly a logical feature of the Selective Service System that the registrant should look to only one place for his orders with respect to the draft — his local board. If his medical examination is interrupted and is to be continued a short time later, it is logical that the local board should have the authority to notify him. To hold that because of a fortuitous event at the AFEES an already selected registrant is thrown back to his local board to be processed again in a different order of priority with other registrants at that same local board would do violence to the whole rationale of the Selective Service System. The rationale of that system must be that the registrant, once validly called on his current draft classification, retains his relative place in the priority call, otherwise the whole system of just and fair priorities of selection for service is thrown out. In fact, it appears that the system contemplates that the induction of registrants in this position is to be neither cancelled, nor postponed, as those categories are defined by the regulations. Rather, their induction is merely administratively “delayed.” Selective Service Operations Bulletin No. 326, dealing with delay of induction, provides as follows : 5. The authority of an AFEES Commander to delay an induction for reasons other than challenges to physical qualifications, as specified in paragraph 3, is limited to the following: a. When a registrant is found unacceptable or acceptability cannot be immediately determined at the time of induction as a result of the routine induction processing procedure prescribed in AR 601-270. This is further evidence that the Army and the Selective Service authorities quite realistically contemplated that many registrants of ultimate physical acceptability might not be immediately and finally so determined on the day of reporting, and therefore the AFEES Commander had to be told by the appropriate regulations what he was authorized to do about their situation. The provisions of paragraph 3-31, subpara-graphs a. and b., of AR 601-270 are thus part of the regulatory scheme envisaged in the Selective Service Act, giving detailed instructions to the AFEES Commander for the action to be taken when the registrant is found physically unacceptable or when his acceptability is undetermined for a period of time. Appellant places considerable emphasis on the last sentence of subparagraph b., which refers to local board action concerning a registrant whose acceptability has been undetermined for a period, as was appellant’s here. This last sentence states: “His [the registrant whose acceptability has been undetermined] other records will be completed and distributed in the same manner as for registrants found acceptable at time of pre-induction, except Section VIII, DD Form 47 will not be completed until such time as the registrant is again ordered to report for induction.” Appellant argues that this last phrase has the effect of terminating the existing order to report for induction and that the whole intent of sub-paragraph b. is to require the board to reprocess a registrant, the determination of whose medical acceptability is deferred; and that such reprocessing be accomplished by the issuance of a new SS Form 252, order to report for induction. However, it seems to us that this sentence means only that the registrant will be notified by his local board of his new reporting date after his physical examination has been satisfactorily completed. This ties in with the phrase earlier in sub-paragraph b“The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board.” This is consistent with the idea that all information to the registrant is to come from one source, his local board. It may be helpful to look at what actually occurred here in the case of appellant. He was ordered to report for induction (SS Form 252) by local board 89 on September 12, 1969. The reporting date of October 1st was subsequently delayed more than once, at times because of appellant’s request and at times for the board’s convenience. However, subsequent to the issuance of the formal order on Form 252 the board communicated with the registrant by simple letter, not by any particular formal order. For example, the board’s letter of December 11 rejected the claim for a 1-0 classification, and stated, “[y]ou[r] Induction Order, therefore, is still in effect. You will be advised by letter when and where to appear for Induction into the U.S. Armed Forces.” On December 19th the board wrote a simple letter stating “You are hereby ordered to report for induction * * * on January 15, 1970.” This was the instruction to report at a certain time and place, which appellant had no difficulty in accepting as being unquestionably valid and obligatory on him, and this was a letter of instruction by the local board, based on the continuing validity of the September 12 “Order to Report for Induction” on Form 252. Subsequently, on February 18, local board 89 sent a similar simple letter stating “You are hereby ordered for induction into the U.S. Armed Forces of the United States [sic] and to report * * * on March 2, 1970.” It was thereafter that appellant asserted that he must receive a new formal order 252 from the local board and that this new order had to be based on the new random selection regulations, since somehow his reporting on January 15 had exhausted the authority of the previous order for induction which hitherto had been in full force and effect. We see no difference between the effect of the letter of December 19, advising of a new date and place of induction on the basis of the order of induction of September 1969, on Form 252, still in full force and effect even as construed by appellant, and the same form of letter dated February 18, which was likewise based by the local board on the previous order of induction of September 1969 being in full force and effect. Each of these letters written by the board to the appellant merely represents advising him of a new time and place of reporting pursuant to the previously existing order, although the board uses the language in the letter “you are hereby ordered,” which apparently would conform with the last sentence of sub-paragraph b. of AR 601-270, paragraph 3-31. We therefore conclude that appellant’s induction order was not can-celled or in any way terminated by the delay of his induction resulting from his physical condition being found medically undetermined on January 15, 1970. III. APPELLANT’S OTHER CLAIMS 1. Appellant has also complained that his classification as I-A-0 instead of 1-0 was without a basis in fact. This claim is plainly barred from pre-induction review by Clark v. Gabriel. 2. Appellant further contends that the Military Selective Service Act of 1967 is limited by Article I, Section 8, Clause 12 of the Constitution to a term of two years, and therefore expired on June 30, 1969. We treat this issue on the merits because we find that, as it is wholly frivolous, we can resolve it expeditiously. For this reason, a three-judge statutory court normally called for by this type of question is not required. Also for this reason pre-induction review is appropriate. Article I, Section 8, Clause 12 of the Constitution provides as follows: “The Congress shall have power * * * to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years * *- *» Since in our view the Military Selective Service Act of 1967 is in no way an “Appropriation of Money,” we resolve this issue against appellant. 3. Finally, in his response to the Government’s petition for rehearing, appellant represents that since the issuance of our opinion of March 16, 1971, he has had' occasion to examine his Selective Service file and has discovered therein certain documents which indicate that his induction order of September 12, 1969, may have been cancelled by National Headquarters of Selective Service sometime around November 5, 1969. Appellant therefore asserts that his November 22, 1969, claim for 1-0 status was not, as has been supposed throughout this litigation, a posi-induction order claim now governed by Ehlert v. United States, b.ut rather a pre-induction order claim, entitling him to a reopening upon presentation of a prima facie case. See Mulloy v. United States. This claim, and the facts necessary to support it have never been presented to the District Court. It is thus not properly before us for decision and we decline to pass upon it in any way. The opinion and judgment of this court of March 16, 1971, and the order of this court of April 13, 1970, staying appellant’s induction into the Army will accordingly be vacated, and the judgment of the District Court of April 13, 1970, will be Affirmed. . 32 C.F.R. § 1631.7 (1970) (effective January 1, 1970). . 368 F.2d 144 (2d Cir. 1966) ; 379 F.2d 915 (2d Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967). . 422 F.2d 332 (9th Cir. 1970). . Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). . Persons in this classification are available for military service, 32 C.F.R. § 1622.2 (1970), for failure to show that they are eligible for another class, id., § 1622.10 (1970). . The administrative scheme of the Selective Service System is found in 32 C.F.R. §§ 1623 to 1627 (1970). . Persons in this class are conscientious objectors available for non-combatant service only, 32 C.F.R. § 1622.2 (1970). According to appellant’s brief, virtually all I-A-Os are used as medical personnel. . Persons in this class are conscientious objectors available only for civilian work, id. . Briefly, appellant states that after the induction order was issued he found that almost all I-A-Os are used in a position “he found as conscientiously objectionable as actual combat, service in the medical corpsand that “the Army feels that all its personnel contribute to its basic mission, and that all non-combatants, not only medics, are essential to the machinery of fighting.” Appellant’s Brief at 1-2. . The entire letter was as follows: The Local Board considered the information you submitted in support of your claim for a 1-0 classification but they decided unanimously not to re-open your file. You [sic] Induction Order, therefore, is still in effect. You will be advised by letter when and where to appear for Induction into the U. S. Armed Forces. . The entire letter was as follows: The file of the registrant has been reviewed. It has been determined that the local board properly considered the registrant’s claim for a Class 1-0 classification after he had been classified in Class I-A-O. Although not stated in specific language the Classification Questionnaire on page 8 indicated that the local board considered the claim according to Section 1625.2 of selective service regulations and did not find first a change in the registrant’s status as a result of circumstances beyond his control. No action by this headquarters is deemed to be warranted. . Appellant argues that this letter improperly failed to observe the 21-day delay between issuance of DD Form 62 and an order to report for induction mandated by 32 CFR § 1631.7 (1970). However, as discussed in Part II, infra, the local board was acting pursuant to an already outstanding induction order in notifying appellant by letter to report. Section 1631.7 is therefore not applicable. Moreover, we think it evident from the circumstances of this case that the local board simply utilized DD Form 62 as a convenient method of notifying appellant of the result of his examination at Walter Reed Hospital. Since on oral argument appellant’s counsel conceded that a DD Form 62 had already been sent to appellant some months prior to his initial induction order on SS Form 252, it is apparent that the second DD Form 62 of February 17, 1970 was merely intended to inform appellant of the satisfactory result of his Walter Reed visit and was not intended to serve as the prerequisite to a new order to report as contemplated by § 1631.7. While the use of DD Form 62 for the former purpose is no doubt poor administrative practice, contrary to applicable regulations, see AR 601-270 11 3.31(b), and needlessly confusing, we do not think any right of appellant’s was violated thereby. . Appellant initially sought a temporary restraining order in the District Court to prevent his April 7 induction. This was denied, and we allowed an emergency appeal, which was dismissed when appellant’s induction was postponed until April 14. The District Court then refused to enjoin appellant’s induction, and on April 13 we stayed the induction pending appeal. . Supra note 1. Appellant’s lottery number is 342. . “Preinduction review will always lie where * * * the facts are uncontested, no discretion is involved, and the applicable ‘law’ is clear.” Shea v. Mitchell, 137 U.S.App.D.C. 227, 230, 421 F.2d 1162, 1165 (1970). . The regulation, 32 CFR. § 1632.14 (1970) provides that a registrant who either fails to report for induction, or whose induction is postponed, is under a continuing duty to report for induction. Appellant urges that (1) he did not fail to report for induction, but rather reported and was turned away; and (2) his induction was not formally “postponed” after January 15, 1970, when he reported, and his medical condition was deemed undetermined. As to this latter contention, appellant maintains that since no postponement of induction under 32 CFR § 1632.2 (1970) was accomplished, 32 CFR § 1632.14, which provides for a continuing duty to report when a “postponement” is terminated, cannot come into play to extend appellant’s order. The contention made is therefore that the “postponement of induction” authorized by § 1632.2 is the only type of postponement which § 1632.14 contemplates as extending the effect of an induction order. This argument, however, falls of its own weight, since appellant admits that his induction was lawfully “postponed” several times, and that his original induction order continued in effect until January 15, 1970. Section 1632.2 authorizes the local board, on request of a registrant, to grant a postponement of induction in cases of “extreme emergency” or hardship “beyond the registrant’s control.” The postponements received by appellant, however, were clearly not of this nature. His induction was delayed at least twice, on September 15, 1969, and November 28, 1969, as a result of the granting of his requests to have his induction transferred to the District of Columbia. Another delay occurred on November 25, 1969, apparently to permit the board to consider whether to reopen appellant’s classification on his claim for 1-0 status. Appellant does not claim that these delays or postponements were in any way invalid, and it is evident that they were not granted pursuant to § 1632.2. It follows, therefore, that the word “postponement” as used in § 1632.14 must have a broader meaning than simply those postponements granted under § 1632.2. At least two circuits, in situations similar to the instant case, have so held. United States v. Ritchey, 423 F.2d 685 (9th Cir. 1970) ; United States ex rel. Luster v. McBee, 422 F.2d 562 (7th Cir. 1970) ; accord, United States v. Evans, 425 F.2d 302 (9th Cir. 1970) ; contra, Liese v. Local Board, 314 F.Supp. 521 (E.D.Mo.1970). Consequently, the mere fact that action prescribed by § 1632.2 was not taken when appellant’s induction was delayed on January 15, 1970, does not necessarily mean that he is no longer under a duty to report pursuant to his original order. . Section 3-31 of Army Regulation (AR) 601-270 provides as follows : 3-31. Registrants found unacceptable on physical inspection or complete medical examination, registrants pending security processing or additional mental evaluation or moral or medical waiver action, and registrants refusing to submit to induction or who are uncooperative. a. Medically unacceptable registrants. For registrants found medically unacceptable, the following procedure will be followed: (1) Applicable subitems under section VIII, DD Form 47, will be completed. (2) Disposition of registrant will be entered in column 4, SSS Form 261. (3) Appropriate entries will be made on duplicated copies of the Standard Form 88 for registrants found unacceptable at time of physical inspection (para. 4r-21). (4) Processing personnel will review each registrant’s DD Form 47, Standard Form 88, Standard Form 89, and DD Form 98, and other forms prepared, for accuracy and completeness. (5) If necessary, transportation arrangements will be made for returning them to the appropriate Selective Service local boards, or in appropriate cases, to place of residence. Every effort will be made to place the registrants on return transportation on the same day of their arrival at the AFEES. b. Registrants whose acceptability is undetermined,. In the case of registrants whose acceptability for induction is undetermined, pending security processing, moral or medical waiver action or for further hospital study/consultation, or additional mental evaluation, their records may be held at the AFEES for completion upon final determination of acceptability. The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his local board. The registrant will be returned to his local board in the same manner as other registrants rejected at time of induction. Disposition of the registrant will be shown on SS Form 261 as “Acceptability Undetermined” with the remark “Pending medical, mental or admin, action,” as applicable. DD Form 62 will not be accomplished for those individuals (provided a DD Form 62 was prepared at the time of initial examination) until it is determined that they are unacceptable for service. If the final determination results in a decision that the registrant is acceptable of induction, DD Form 62 will not be prepared; instead, a letter will be prepared and forwarded to the local Selective Service board including a statement substantially as follows: “Registrant (Name) (Selective Service number) is removed from ‘Acceptability Undetermined’ status and the original determination of acceptability on DD Form 62, date-•, ‘found fully acceptable for induction into the armed forces,’ is unchanged.” His other records will be completed and distributed in the same manner as for registrants found acceptable at time of preinduction, except section VIII, DD Form 47, will not be completed until such time as the registrant is again ordered to report for induction. c. Registrants who refuse to submit to induction, or who are uncooperative. * :js * * * . Of., 32 CFR § 1631.7 (1970), governing those registrants called under the new lottery system, which provides : That any registrant classified in Class I-A or Class I-A-0 who is subject to random selection as herein provided, whose random sequence number has been reached, and who would have been ordered to report for induction except for delays due to a pending per-448 F.2d — 73 sonal appearance, appeal, preinduction examination, reclassification, or otherwise, shall if and when found acceptable and when such delay is concluded, be ordered to report for induction next after delinquents and volunteers even if the year in which he otherwise would have been ordered to report has ended and even if (in cases of extended liability) he has attained his twenty-sixth birthday. This section replaced the earlier regulation, 32 CFR § 1631.7 (1969), 32 Fed. Reg. 9793, July 4, 1967, applicable to those called under the old system, which provided, with exceptions not here relevant, that registrants within groups designated according to age and marital status, be called “in order of their dates of birth with the oldest being selected first.” Thus, in appellant’s case, had the order of call not been changed by the adoption of the lottery system, it would be totally inconsequential whether, after a delay of induction, he was ordered to report by letter or by a new SS Form 252, since.lie would still retain the same priority of call relative to the rest of his group. . This is so insofar as the definition of “postponement” is limited to that action prescribed by 32 CFR § 1632.2 (1970). However, in respect of this question, see note 16, supra. In any event, regardless of how a postponement is defined for present purposes, there is no regulation which indicates that delays such as those encountered here require the cancellation of an outstanding order of induction. . Operations Bulletin No. 326, issued August 22, 1968 by the National Director of Selective Service, as amended October 23, 1968. . Quoting from a letter issued by the United States Army Recruiting Command “clarifying previous * * * letters on the * * * subject [of unauthorized delay of induction].” Bulletin No. 326, signed by the National Director of Selective Service, reproduces this letter in toto. . Inspection of DD Form 47 (Record of Induction) also indicates that complete reprocessing of a registrant who is delayed because of undetermined medical acceptability, such as might be expected to be required if a new order to report was necessary, is not contemplated by the regulatory scheme. The first two sections of this form are filled out by the local board, and since AR 601-270 provides that the form is to be held for later completion, rather than destroyed or returned to the local board, it is evident that complete reprocessing of the registrant is required neither of the local board nor of the induction station. . In one respect the procedure specified in sub-paragrapli h. was not followed. Appellant’s counsel stipulated at oral argument, and it is apparent that as a predicate for the validity of the SS Form 252 Order to Report for Induction of September 12, 1969, that at some previous time a DD Form 62 on appellant’s physical acceptability was issued. If this is true, although it does not appear in the record, then the sending of another DD Form 62 “Statement of Acceptability,” which was done on February 17, 1970 after appellant’s physical examination had been completed at Walter Reed,

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

Martin OWENS, a minor by Laura H. Owens, next friend, Appellant, v. CHICAGO, ROCK ISLAND and PACIFIC RAILROAD COMPANY, Appellee. No. 6685. United States Court of Appeals Tenth Circuit. July 6, 1961. Rehearing Denied Aug. 1, 1961. Bratton, Circuit Judge, dissented. Albert Thomson, Kansas City, Mo. (George V. Allen, Lawrence, Kan., and Robert W. Cook, Kansas City, Mo., on the brief), for appellant. Clayton M. Davis, Topeka, Kan. (Mark L. Bennett, Topeka, Kan., on the brief), for appellee. Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges. MURRAH, Chief Judge. This is an appeal from a judgment of the District Court on a directed verdict in a suit by the appellant for personal injuries, arising out of a railroad crossing accident in Lawrence, Kansas. The salient facts are not in dispute. The only question is whether they warrant a permissible inference of negligence. If so, the case should have been submitted to the jury. See Lopez v. Denver & Rio Grande Western Railroad Company, 10 Cir., 277 F.2d 830. The appellant was riding in a panel truck, while it was being driven in a northerly direction on Fourth Street in Lawrence, Kansas. The truck approached the railroad crossing consisting of six tracks, including two main lines —one east-bound, one west-bound. The crossing signal lights and bells were operating. The truck stopped at the south side of the southern-most tracks, and the driver and appellant observed the approach of a train traveling west. When the train had passed over the crossing to the point where the caboose was in sight, the driver of the truck proceeded across the unoccupied tracks to a point about three feet from the moving west-bound train. At this point, the rear of the truck extended over the east-bound tracks. While standing in this position, appellant noticed the approach of appellee’s train, traveling eastward on the east-bound, main track. He hollered to the driver, alighted and went to the rear of the truck, where he was first observed by the fireman and brakeman on the left side of the appellee’s engine. They warned the engineer, who immediately applied the emergency brakes. At the point of the collision, the tracks curve rather sharply to the north, and a truck is not observable by an approaching train until it was within about 400 feet of the crossing. At this point, a train traveling 20 to 25 m. p. h. is unable to stop with the application of emergency brakes, before passing over the crossing. After the train came into the view of the truck driver, he pulled forward toward the moving west-bound train, but apparently was unable to clear the eastbound tracks and the appellee’s eastbound train struck the rear of the truck, turning it around. Appellant was last seen moving from the rear to the east side of the truck. After the appellee’s train stopped, appellant was found near the moving train on the west-bound tracks. Appellant relies upon a pleaded ordinance of the City of Lawrence, which provides in substance and effect that it shall be unlawful for a railroad to operate a train within the City limits “at a rate of speed in excess of 30 m. p. h., or in any manner which is dangerous to public safety.” He does not contend that the appellee’s train exceeded the prescribed speed limit, but he does contend that the railroad violated the ordinance by operating it in a manner dangerous to public safety, which is another way of saying that the train was .operated negligently under existing circumstances. Much is said about unconstitutional vagueness of the statute, but we think violation is a concomitant of negligence, i. e., if the railroad was negligent in the circumstances, it violated the ordinance. If not, there could be no violation. In that regard, we speak of negligence in the sense of ordinary care as at common law, not the F.E.L. A.’s statutory negligence, 45 U.S.C.A. § 51 et seq., which is “significantly different from the ordinary common law negligence action * * See Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 509, 77 S.Ct. 443, 1 L.Ed.2d 493. Making application of the common law negligence rule in cases of this kind, the Kansas courts have emphatically said that ordinary care does not impose upon the railroad a duty to operate its train at such a rate of speed that it can be stopped within the range of vision of a railroad crossing. Bunton v. Atchison, T. & S. F. Ry. Co., 100 Kan. 165, 163 P. 801; Johnson v. Killion, 179 Kan. 571, 297 P.2d 177. See also Chicago, Rock Island and Pacific Railroad Co. v. Hugh Breeding, Inc., 10 Cir., 247 F.2d 217. Since ordinary care does not require the train to be operated at a rate of speed which would enable it to be stopped within the range of vision, it is difficult to perceive any breach of ordinary care. Through no fault of the railroad, the appellant found himself in a position of peril. When the railroad first observed him in that position, it was unable to avoid injury in the circumstances. The judgment is affirmed. . “ * * * the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232.

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?

SAWYER v. ORLOV. (Circuit Court of Appeals, First Circuit. November 23, 1926.) No. 2046. 1. Bankruptcy <§=>414(2) — Referee’s consider, ation of finding of court on petition for discharge of bankrupt in suit to set aside transfer, held wholly irregular. It is wholly irregular for referee, on petition for discharge of bankrupt, opposed on ground that, within four months before filing of petition in bankruptcy, bankrupt made transfer with intent to hinder, delay, and defraud creditors, to take into consideration finding of court in suit by trustee in bankruptcy to set aside the transfer. 2. Judgment <@=>715(2) — Decree denying, composition on finding of transfer with intent to defraud creditors is conclusive between parties on petition for discharge. Referee’s finding that bankrupt made transfer with deliberate intent to defraud creditors, affirmed by decree denying composition, was conclusive determination of the fact between the parties to composition proceeding, when called in question in subsequent proceeding for discharge of bankrupt, to which they were likewise parties. 3. Judgment <@=>948 (I) — Decree not pleaded is admissible in subsequent proceeding between same parties on different cause of action. Proceeding for bankrupt’s discharge being different cause of action from prior one for composition, decree in the prior proceeding need not be pleaded to be admissible in evidence in the later proceeding and is there conclusive as to the matters directly in issue and either admitted by the pleadings or actually tried in the prior proceeding between the same parties. Appeal from tbe District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge. George Orlov was granted a discharge in bankruptcy, and Harry Sawyer, objecting creditor, appeals. Reversed and remanded. Simon B. Stein, of Boston, Mass., for appellant. Samuel Sigilman, of Boston, Mass., for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.' BINGHAM, Circuit Judge. This is an appeal from a decree of the District Court for Massachusetts, granting the bankrupt a discharge. Harry Sawyer, a creditor of the bankrupt, objected to the discharge, and, among his specifications of objections, alleged that the bankrupt, “within the four months preceding the filing of the petition in bankruptcy, upon which he was adjudicated, transferred to a corporation organized by him and owned by him substantially all of his merchandise, with the intent to hinder, delay, and defraud his creditors. The referee, in his report on the petition for discharge, states that the same question had been previously presented to him on the bankrupt’s petition for composition; that in that proceeding Sawyer filed the same specification of objection to the composition; that at that 'time he found the bankrupt had made the transfer in question with the intent to hinder, delay, and defraud his. creditors; and that he refused to confirm the composition. It also appears that the District Court entered a decree denying the petition for composition, based upon a report of the referee embodying the finding “that the bankrupt' had made the transfer with the deliberate intent to defraud his creditors.” The referee further states, in his report on the petition for discharge, that, subsequent to the decree denying composition, a suit was tried in the District Court, brought by the trustee in bankruptcy, to set aside the same transfer, in which it was found that the bankrupt “did not act with conscious fraudulent intent in making the transfer”; and that, “in deference to the superior judgment of the court” in that suit, he accepted that conclusion, although opposed to his own decision, previously rendered, and recommended the bankrupt’s discharge. Thereafter on this report the District Court- entered a decree discharging the bankrupt, and this appeal was taken. In his assignment of errors, the appellant complains, among other things, that the court erred (1) in taking into consideration the alleged finding of the District Court in another case between different parties to the effect that the bankrupt did not act with conscious fraudulent intent in making the transfer; and (2) in not holding that the decree affirming the referee’s report and denying composition was a final adjudication upon the question of fraud involved and conclusive thereon as between these parties. The first assignment must be sustained. It was wholly irregular for the referee to take into consideration the finding of the District Court in another suit between different parties. The second assignment likewise must be sustained. The finding of the referee in the composition proceeding, that the bankrupt made the transfer to the corporation with the “deliberate intent to defraud his creditors,” affirmed by the decree denying composition, was a conclusive determination of these facts as between these parties when called in question in the subsequent proceeding for discharge to which they were likewise parties. Sutton v. Wentworth, 247 F. 493, 501, 160 C. C. A. 3; Cromwell v. County of Sac, 94 U. S. 352, 352, 24 L. Ed. 195; Southern Pacific Railroad v. United States, 168 U. S. 1, 57, 59, 60, 18 S. Ct. 18, 42 L. Ed. 355. As the proceeding for discharge was a different cause of action from the prior one for composition, it was unnecessary to plead the prior judgment or decree in the subsequent proceeding. In such case the judgment or decree in the prior proceeding may be offered in evidence, and is conclusive as to those matters which were there directly in issue and either admitted by the pleadings or actually tried. Sutton v. Wentworth, supra; Southern Pacific Railroad v. United States, supra. The decree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the 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 "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.

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

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

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

GREAT LAKES EQUIPMENT COMPANY, Appellant, v. FLUID SYSTEMS, INCORPORATED, Appellee. No. 12082. United States Court of Appeals, Sixth Circuit. Decided Dec. 17, 1954. See also 98 F.Supp. 220. Bruce B. Krost, Cleveland, Ohio (George V. Woodling, Cleveland, Ohio, on the brief), for appellant. Edmond M. Bartholow, New Haven, Conn. (Wm. E. Williams, Cleveland, Ohio, on the brief), for appellee. Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges. ALLEN, Circuit Judge. Plaintiff, the owner of U. S. Patent No. 2,224,403 issued to Harold A. Lines, December 10, 1940, on an application filed May 12, 1938, brought an action for infringement and injunction. The claims in issue, 4, 14 and 15, are printed in the margin. The patent relates to “electrical heating of storage and transportation system of a viscous fluid.” The specifications state the problem as follows: “In the transportation or conduction of viscous liquids from a point of storage, for example, such as a tank, to a device adapted to use or ■receive the liquid, difficulty is often encountered not only in starting the flow due to the inherent resistance of the liquid to flow, but also in maintaining a steady and constant flow without the maintenance of an excessively high pressure. This is particularly true in the transportation of heavy fuel oils, for example, from a storage tank to a burner where the oil is to be used, and is of course also true in the transportation of other viscous liquids such as castor oil, molasses, etc.” The court found the claims in issue valid and infringed by defendant through the sale of an oil burning system installed at the plant of Pesco Products Division, Borg-Warner Corporation, at Bedford, Ohio, and issued an injunction. The court found that many parts of plaintiff’s system as sold and installed are old equipment such as transformers, suction pumps, transportation pipes, heated for the purpose of reducing viscosity of material to be transported and for reducing friction and increasing flowability. The court said “some heating systems are disclosed of a seeming anticipatory character in their respective arts,” but the court concluded that “this is a combination patent for transporting viscous oil, electrically heated, not an aggregation of such parts or elements as mentioned above, but constituting a unified system with novel characteristics not theretofore disclosed in the prior art giving the plaintiff’s system an unusually new, and certainly a useful, economic means or method for successfully transporting heavy fuel oil from storage to burner with return of excess to storage.” Since heavy fuel oil is cheaper than lighter oil, methods of making heavy oils available for the heating of buildings, plants, etc., have recently assumed increasing importance. As heavy oil is viscous and tends to become non-pump-able with falling temperatures, the oil must be heated, not only in order to start the initial flow from tank to burner but also to maintain flowability throughout the operation. The Lines patent discloses a method and apparatus for electrically heating heavy oil, such as bunker C or No. 6, in transportation from a tank to an oil burner. The oil is heated by electric current passing through pipes which run between the tank and the burner, setting up resistance and thus generating heat. An excess of oil is delivered to the burner in order to insure a sufficient supply and this excess of oil is returned to the tank through a “return pipe.” The Lines device discloses pipes inside the storage tank which continue with insulators and electrical connections to the burner, from which the return pipe brings the excess oil back to the tank, the line constituting an electrical circuit. Defendant between 1946 and 1948 sold 11 of plaintiff’s systems and used and was familiar with plaintiff’s literature. As to the issue of infringement, in 1948 defendant sold and supervised the installation in the plant of the Pesco Products Co. at Bedford, Ohio, of an oil burner for a boiler and other equipment, including an electric transformer. Defendant states in its brief that it understood this equipment would be used in the heating of heavy oil by the passing of a current through the pipes conveying the oil to the burner. At the same time defendant furnished the purchaser with certain drawings which suggested piping and wiring outlets and ways of mounting the suction and return pipes to the tank and providing an electrical circuit. Similar oil burning equipment has been furnished by defendant for three large buildings since the installation at Bedford. The drawings and charts included in evidence show that the defendant’s system, called the “accused system,” in its salient features is identical with plaintiff’s except for the fact that the small portions of the pipes within the storage tank are not heated by electric current in defendant’s installation. Defendant’s Exhibit 4 A shows an electrical circuit with the supply and return pipes electrically heated from the oil tank to the burner. Defendant’s Exhibit 20 shows defendant’s tank unit with concentric pipes similar to plaintiff’s and the pipe lines heated to a point immediately adjacent the exterior of the tank. While defendant does not heat the relatively short lengths within the tank, as plaintiff may under certain claims of the Lines patent not here involved, the pipe not heated in defendant’s tank unit is a small proportion of the length of the total piping. The accused system secures the effect of plaintiff’s system in the manner taught in the Lines patent and, although showing a slight change in form, uses substantially the same devices, performing precisely the same offices with no change in principle. Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147. Claim 4 is for a method and Claims 14 and 15 are for the apparatus. Neither of .them expressly requires heating of the pipes within the tank. Defendant contends that if properly read Claims 4, 14 and 15 do not cover the accused system. It claims that the phrase in Claim 4 “electrically heating the pipe line during transit of the oil from the tank to the burner and return” requires “the electrical heating of the entire pipe line all during the movement of the oil.” This construction is unsound. What the phrase means is that the pipe is electrically heated during transportation of the oil from the tank to the burner and return. Claim 4 says nothing about heating inside the tank. Defendant also claims that Claims 14 and 15, which do not have the phrase quoted, in light of the specifications and drawings require localized heating of the pipes in the tank. The specification states that it will usually be desirable to include the concentric pipes within the electric circuit “so that the supply liquid within these pipes will be heated in order to initiate the flow of liquid from the supply tank.” Defendant urges that this statement demonstrates that the claims in issue require heating throughout the entire length of the pipe, both inside and outside the tank. This ignores the further statement in the specifications that “In some instances it may be desirable to heat certain sections only of the conductor pipes, rather than the entire conductor system. Such an arrangement is shown in Figure 4. . . ” Figure 4 of the patent shows only certain sections of the pipe line as being heated. Thus the construction that we adopt for the phrase “during transit of the oil from the tank to the burner and return” is in accordance with the patent specifications and drawings. Moreover, a conclusive answer to defendant’s contention is that the limitation that the current be passed through the pipes within the tank, which does not appear in the claims in issue, was expressly included in the remaining claims of the patent. To hold that this limitation existing in other claims and not existing in the claims in issue should be read into them would violate the established law. Whitaker v. Todd, 3 Cir., 232 F. 714; Baker-Cammack Hosiery Mills, Inc., v. Davis Co., 4 Cir., 181 F.2d 550, certiorari denied 340 U.S. 824, 71 S.Ct. 58, 95 L.Ed. 605. We are in accord with the court’s conclusions as to infringement. Having previously sold plaintiff’s products and handled plaintiff’s literature, defendant was fully aware of the advantages of plaintiff’s system. In connection with the sale to Pesco Products Company, defendant represented in a purchase order that this system was the “Lines Thermal Electric System.” “Thermal Electric” is plaintiff’s trademark of its system. The District Court correctly found that the small modification made by defendant in not extending the pipes into the storage tank was adopted with a view of escaping infringement by pressing for a limited and restricted construction of plaintiff’s claims. Defendant’s system is the substantial equivalent of plaintiff’s. The two systems do the same work in substantially the same way and accomplish the same result. Hence, they are the same, even though they differ in name, form or shape. Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935; Sanitary Refrigerator Co. v. Winters, supra; Farrington v. Haywood, 6 Cir., 35 F.2d 628; Graver Tank & Mfg. Co., Inc., v. Linde Air Products Co., 339 U.S. 605, 608-609, 70 S.Ct. 854, 94 L.Ed. 1097. As to the value of plaintiff’s system the testimony is uncontradicted. Prior to its establishment the method of transporting heavy oil to a burner to be used as fuel was to heat the oil through “spot” heaters employing steam or hot water. If the operation of the pump and oil burner were discontinued the oil ceased to circulate. In order to maintain flow-ability even though no heat was required it was necessary to continue the operation of the burner. This was expensive and sometimes involved supervision by an attendant. The old system of coil or hot water heating produced localized heat in the area served by the coil or immersion heater. The thermal electric system developed from use of the Lines patent applies heat uniformly throughout the piping system to the point where it is burned. One witness who had purchased between 40 and 50 of plaintiff’s installations now employs plaintiff’s system in all jobs using residual oil, that is, heavy oil that needs heat for flowability. This witness, a building supervisor for a telephone company serving practically the entire state of Connecticut, said that the old conventional system at times produced a coking condition by reason of excess heat applied to the particular coil or immersion heater used. The biggest advantage in plaintiff’s thermal system, he said, is that the heat is applied uniformly throughout the piping system to the point where it is burned. With the old conventional system he would have to employ some outside source to warm the oil after it had become congealed, and this was true whenever there was a shutdown for any substantial period of time. In one case, this witness stated, oil which had been standing in the tanks for three or four years was set in circulation within a half hour in the winter months by the use of plaintiff’s system. Three other disinterested witnesses who had used or sold the Lines system testified that it had greatly reduced costs of installation and operation. Defendant introduced no testimony to contradict the evidence of economy and efficiency resulting from the use of plaintiff’s system, but it vigorously contends the Lines patent discloses no patentable feature. Upon this point also we agree with the District Court. The Lines pat-ent discloses a new combination of known elements, producing a new method of operation and a new and beneficial result. Webster Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177. The principal patents relied upon as constituting anticipation were before the Patent Office and thoroughly considered. (Carter, No. 1,880,794, Davis, No. 1,733,-250, Swoboda, No. 1,994,838, Batchelder, No. 1,019,413, and Berres, No. 1,332,970). Of these Carter and Swoboda, which were the disclosures closest to Lines, in addition to the electric current employed for heating the pipes had to use separate means of heating material within the supply tank. Lines provides a single circuit which promotes the flow of liquid through the pipes by keeping it at all times in a heated condition. With one system and one electrical circuit he secures everything that Carter, Swoboda and Davis suggest by two separate and independent heating means. Carter employs gas burners to melt the lead which is to be coated on telephone equipment. Swoboda uses a separate heating coil. Carter is the closest reference before the Patent Office. This patent discloses an extremely intricate apparatus for melting lead and supplying it in molten form to extruding presses. It employs a number of kettles, each provided with a gas burner to heat the metal, and calls for electrical heating of the pipes to transport the molten lead. For the purposes of this case what Carter shows is that it was old to heat pipes electrically and to transport molten metal through them. Since Carter, Swoboda, Davis, Berres, and Batchelder were before the Patent Office and, as shown by the file wrapper, were thoroughly considered, the presumption of validity which arises from the allowance of the patent is greatly strengthened. Williams Manufacturing Co. v. United Shoe Machinery Corp., 6 Cir., 121 F.2d 273, 277, affirmed 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537. The patents and publications cited for the first time in the District Court add but little to the consideration of the problem. As conceded by plaintiff, the prior art discloses that electrical heating of liquids and materials to secure fluidity was old and that transportation of such liquid and molten material in pipes electrically heated was old. We deem it unnecessary to discuss in detail the prior art patents and publications listed in defendant’s pleadings with the exception of Mills patent No. 1,461,541 and Haslam, a publication on “Fuels and Their Combustion,” which are heavily relied on. In fact, defendant says these two citations disclose everything shown by Lines except electrical heating. In order to resolve this question we consider what Lines really discloses. In addition to the electric current applied to the pipe and the transportation in heated pipes, a new feature described in the Lines specifications not claimed in any cited patent and expressly stated in every claim in issue here is that the excess liquid in the burner is returned to the tank at a point adjacent to the inlet of the supply pipe, so that this heated liquid is again drawn into the inlet of the supply pipe, as Claims 4, 14 and 15 specify, without being diffused through the colder liquid in the tank. This feature is important because it eliminates the necessity of a heater in the tank. Defendant says that this feature existed in the prior art. As to Carter, upon which it relies strongly, defendant concedes that whether the return pipe is adjacent to the supply pipe as shown in Lines is a “relative matter” depending on dimensions, but no dimensions are given. Another feature of Lines not shown in the prior art is that he heats the fuel at the outer surface of the column of oil which is against the pipe, namely, at the point of friction. This feature is disclosed in the Lines specifications and is described in the evidence. It does not exist in any cited patent or publication. One witness stated that this surface heating caused the column of oil to flow through the pipe like the action of butter on a hot knife. Obviously, when only the surface is heated, in distinction to the center or “coré” of the stream of oil, fluidity is secured with a relatively small amount of current. Haslam employs a steam coil in the tank and requires a supply of steam. Under the Lines patent the heating coil in the tank is eliminated and the excess oil is not mingled with heated oil. Not only does this feature result in added economy and efficiency but it supports the conclusion of the District Court that the prior art does not disclose the method nor the apparatus combination of Lines. The purpose of the Mills patent is to heat congealed liquids in order “to render them liquid or mobile and to maintain them in that condition,” and thus to solve the difficulties presented by the removal and transfer of such congealed liquids as, for instance, in the unloading of tank cars. Mills presents a complicated mechanism. No electric heating of pipes is disclosed. No testimony is given as to dimensions or operation. As shown by the claims and specifications, oil heated by steam is piped to a “deep or small tank” and later transferred “preferably as a shifting jet” through a rotating nozzle into the congealed or jellied substance in the storage tank for the purpose of dissolving the substance. The operation of Mills thus is the opposite of that described in Lines, for the heated oil is diffused through the substance in the tank, the velocity of the jet being increased and the nozzle being directed to distant points within the tank so as to secure liquefaction. The method and apparatus of Mills do not disclose the novel elements of Lines described above. The complex features of the prior art in this field- as compared with the compact and simple mechanism of Lines are thrown into highlight by the number of valves employed in the patents asserted to be close to Lines, namely, Carter and Mills. Mills employs 10 valves, Carter employs over 20 valves. Carter recognizes in his specifications the multiplicity of valves and suggests that multi-way valves be employed. None of the prior art devices nor publications disclose a method of transporting oil in which the oil is pumped in excess to the burner and returned to cold storage at a point adjacent to the suction line, the use of the expensive heating coil being eliminated, both supply and return pipes being heated electrically, so that the oil which is returned to the storage tank is drawn into the suction line without being diffused through the cold oil within the tank. So far as this record discloses, the statement made by one highly experienced witness that there is no fuel handling system on the market at present which will duplicate the work performed by the Lines system is correct. It is vigorously contended that plaintiff by its argument before the Patent Office “induced” the examiner, through misrepresentations of the scope of the claimed invention, to allow claims which had previously been denied. While fraud is not expressly charged, the words “induce” and “inducement” carry an implication of improper conduct. It suffices to say that the contentions advanced by plaintiff’s counsel in the argument for amendment of the original claims of the Lines patent which, after extended consideration by the Patent Office, resulted in the allowance of the claims in suit, are in general sustained by the specifications, claims and drawings of the various patents cited before the Patent Examiner and were not improper. Defendant filed a counterclaim in which it charged that plaintiff, through its engineering service in which it supplies unpatented devices, such as tank units, burners, pipe joints, and transformers built to its specifications and installed by it, has established a monopoly in violation of the anti-trust law. Plaintiff, it says, requires users of its oil supply systems to purchase unpatented items from plaintiff and to pay tribute through its service arrangement. Since the devices are built to plaintiff’s specifications we think this contention has no merit. No legal authority is cited in support of the proposition. The District Court found, we think correctly, that there is no evidence that plaintiff by its course of business attempted or intended to obtain a monopoly in the sale and installation of the unpatented parts-of its combination system. As pointed out by the court, the pieces of the system are not sold at a price per piece, but the system is quoted as a complete unit and installation. If the purchaser wishes to have plaintiff install its system and has no choice with respect to the type of transformer or piece of equipment, the fact that plaintiff specifically adapts non-patented parts and sells them in the installation in no sense constitutes a monopoly. The injunction issued by the District Court was not improper. Cf. Cugley v. Bundy Incubator Co., 6 Cir., 93 F.2d 932, 935. The judgment of the District Court is affirmed. . The parties will be denominated as in the court below. . 4. The method of transporting fuel oil or the like from a supply tank to a burner, comprising passing said oil in excess quantity through a pipe line from the tank to the burner and returning the excess to the tank, electrically heating the pipe line during transit of the oil from the tank to the burner and return, and delivering the excess heated oil to the tank at a point adjacent the pump inlet whereby heated oil is again drawn into the inlet without being diffused through the colder oil in the tank. 14. In a transportation system for viscous liquid, a supply tank, a device to which the liquid is to be transported from the tank, supply and return pipes of conducting material connecting said tank and device, the end of said supply pipe being immersed in the liquid in the tank, means to draw the liquid from the tank and deliver it to said device, means electrically connecting said pipes to form an electrical circuit and to pass a current therethrough to heat the pipes and the liquid therein, and the outlet of said return pipe being directed adjacent the inlet end of the supply pipe whereby the heated liquid returned to the tank is redrawn into the system without being diffused through the cold liquid in the tank. 15. In a transportation system for viscous liquid, a supply tank, a device to which the liquid is to be transported from the tank, supply and return pipes of conducting material connecting said tank and device, the end of said supply pipe being immersed in the liquid in the tank, means to draw the liquid from the tank and deliver it to said device, electrical means for heating said supply and return pipes to heat the liquid therein, and the outlet of the return pipe being located adjacent the inlet of the supply pipe whereby heated liquid discharged from the return pipe is redrawn into the system without being diffused through the colder liquid in the tank.

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

FULK & NEEDHAM, INC., Appellant, v. UNITED STATES of America, Appellee. No. 12975. United States Court of Appeals Fourth Circuit. Argued May 7, 1969. Decided June 9, 1969. Murray C. Greason, Jr., and Leon L. Rice, Jr., Winston-Salem, N. C. (Womble, Carlyle, Sandridge & Rice, Winston-Salem, N. C., on the brief), for appellant. Howard M. Koff, Atty., Department of Justice (Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, Jonathan S. Cohen, Attys., Department of Justice, and William H. Murdock, U. S. Attyv on the brief), for appellee. Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit Judges. SOBELOFF, Circuit Judge: The single question raised in this action for refund of corporate income taxes is whether the appellant-taxpayer, Fulk & Needham, Ine„ was eligible for treatment as a small business corporation under subchapter S of the Internal Revenue Code during the years 1960, 1961 and 1962. In order to obtain subchapter S treatment, a corporation must make a valid election to have its income taxed directly to its shareholders. In this case appellant made an election in November, 1958, which, if valid, would be effective for the calendar year 1959 and succeeding years, thus entitling the taxpayer to the refund sought. For an election to be valid the electing corporation must satisfy the specific eligibility requirements set out in 26 U.S.C. § 1371(a): (a) Small business corporation.— For purposes of this subchapter, the term “small business corporation” means a domestic corporation which is not a member of an affiliated group (as defined in section 1504) and which does not— (1) have more than 10 shareholders; (2) have as a shareholder a person (other than an estate) who is not an individual; (3) have a nonresident alien as a shareholder; and (4) have more than one class of stock. The Commissioner’s position, upheld by the District Court, is that Fulk & Need-ham’s election was invalid because certain of its shares were held in trust, and therefore not all were owned by individuals or estates as § (a) (2) requires. We too find that the conditions laid down in § (a) (2) were not met and therefore affirm the District Court’s denial of the refund. The material facts are these: On July 14, 1954, A. P. Fulk, a partner with a one-half interest in the construction firm of Fulk & Needham, died testate. Under the Will his estate passed to a trust wherein his wife was designated life beneficiary. The Will provided that at the wife’s death the trust should terminate and the testator’s two daughters should take the trust property in fee. Fulk’s wife and daughters were named co-executrices of his estate and co-trustees of the trust. The estate consisted in large part of his interest in Fulk & Needham. Five months after Fulk’s death, the partnership was incorporated as Fulk & Needham, Inc. The ownership of the new corporation was divided evenly between the Fulks and the Needhams. Each family transferred its partnership assets to the corporation in return for an ownership interest therein. No stock certificates were ever issued, but the corporation’s minutes include a direction to issue 545 shares to the trustees of the A. P. Fulk Estate. The following year the estate was closed, and the widow and daughters signed as co-trustees a document acknowledging receipt of the estate assets from themselves as co-executrices. The present appeal turns upon the ownership of the 545 shares in question. If they were held in trust, rather than by an individual or estate, then the 1958 election was invalid as the Commissioner determined and the refund was properly denied. The corporate taxpayer concedes that the Will created a trust and that the corporation’s records contain evidence that the shares were to be issued to Fulk’s widow and daughters as trustees. The contention made, however, is that the trust should be disregarded as lacking economic reality. Appellant’s argument is predicated upon the fact that Fulk’s widow had, without objection from her daughters, treated the 545 shares as her own property ever since the corporation was formed. She was accepted by the corporate management as the representative and authoritative spokesman of the Fulk interests, and in her income tax returns reported not only the distributed but also the undistributed income of Fulk & Needham, Inc. attributable to the 545 shares. No fiduciary returns were ever filed, but neither was any gift of the remainder interests from the daughters to the mother reported or any gift tax paid thereon. It is conceded that no element of tax avoidance is present. The enumerated circumstances have led appellant to the conclusion that the widow, not the trust intended by Fulk, owns the shares. Thus it is reasoned that § 1371 (a) (2) has been satisfied and consequently the election of subchapter S treatment is valid. Appellant’s contention must be rejected. We do not agree with the taxpayer that in the particular circumstances of this ease, the Internal Revenue Service’s and later the District Court’s recognition of the trust as owner of the shares exalts form over substance. To the contrary, it seems to us that adoption of the taxpayer’s theory would have that very effect. The events stressed by appellant furnish no ground for disregarding the trust created by the Will. The objective fact is that under the trust, Fulk’s widow was entitled to a life interest in her husband’s property, and this is precisely what she has received. The fact that she alone among the trustees represented the Fulk interests in running the corporate business is entirely consistent with the existence of a trust. Under North Carolina law, the vote of one trustee ordinarily is the act of all the trustees where the trust owns shares of corporate stock. There is no evidence that Mrs. Fulk appropriated the corpus of the trust to her own use, or otherwise acted in a manner at odds with the continued existence of the remainder-man’s rights under the testamentary trust. The trust’s interest in Fulk & Needham has not been invaded by the life tenant, remains entirely intact, and will be available to the life tenant’s daughters at her death, all in strict accordance with the direction in Mr. Fulk’s Will. Unquestionably, the daughters, at the termination of their mother’s life estate, will not inherit from her, but will take under their father’s Will. It is of some importance to note that we are dealing here with a family situation in which the same persons were named co-executrices, co-trustees, and beneficiaries. It may be assumed that informal administration was contemplated. However, we perceive no reason to disregard the trust merely because it was administered loosely, yet in a manner not diverging from the trust provisions. It is true that Mrs. Fulk did not always consult with her daughters in matters affecting the business in which the trust held stock. Nevertheless, the fact that the daughters were inactive trustees and were content to allow the co-trustee, their mother, to exercise trustees’ prerogatives does not obliterate the trust. Especially is this so since it is conceded that no action taken by the mother conflicted with her prescribed duties as trustee. If she had obtained a formal power of attorney authorizing her to act for her co-trustee daughters, the taxpayer would hardly be before this court urging that the trust is a nullity. To ignore the trust because the daughters executed no formal document acquiescing in the activity of their mother as co-trustee — activity entirely in line with the trust’s provisions — would be to insist on form at the expense of substance. We decline to sanction this approach. It is clear that in enacting sub-chapter S “[t]he intention of Congress was to permit small businesses to select the form of organization desired, without the necessity of taking into account major differences in tax consequences.” A & N Furniture & Appliance Co. v. United States, 271 F.Supp. 40, 42 (S.D. Ohio 1967). Under this legislation, as above noted, the income of the corporation is not taxed to the corporation, but is treated as income to the shareholders. This benefit, however, was not granted without limitation. Congress explicitly set out a number of prerequisites to qualification, and these are contained in § 1371(a). In A & N Furniture & Appliance Co. v. United States, supra at 43 the court discussed the reasons that moved Congress to prescribe the limitations in § 1371(a): “There were two reasons for limiting the right to elect under subchap-ter S to small business corporations. First, it was thought that only relatively small corporations were essentially comparable to the partnership or proprietorship, where earnings are taxed to owners rather than to the business organization. Thus the restrictions as to the amount of shareholders and to shareholders who are individuals only. Secondly, it was thought that the complexity involved in passing the earnings of a corporation through to its shareholders, where -the stock-of the corporation is held by a widely diversified group of shareholders, created accounting complications which were too great a burden for the government to bear, and thus the restriction as to one class of stock.” The formula employed by Congress in § 1371(a) (2) in defining a small business corporation entitled to the benefits of subchapter S, speaks of a domestic corporation which does not have as a shareholder “a person (other than an estate) who is not an individual.” By necessary implication a corporation in which a trust is a shareholder does not qualify. In Old Virginia Brick Co. v. Commissioner of Internal Revenue, 367 F.2d 276 (4 Cir. 1966), we were also called upon to determine whether certain shares in the electing corporation were owned by a trust, thus disqualifying the corporation. In that case, some of the corporation’s shares were retained in the name of the estate of a person who had died more than 20 years before the tax years in question. Although the estate had never been formally closed, we observed that the period of administration had long passed. We upheld the Commissioner’s contention that the estate phase had terminated and that despite the persistent use of the estate form, in reality the ownership of the shares resided in a testamentary trust, thus disqualifying the corporation from subchapter S treatment. Old Virginia Brick demonstrates that the substance of the matter governs in testing the eligibility of a corporation making a subehapter S election. The same principle is applicable in the present case. Here, as in Old Virginia, Brick, recognition must be given to the realities. There we gave effect to the fact that the estate had been converted into a testamentary trust although the parties continued to call it an estate. Here effect is to be given to the fact that the testamentary trust was never terminated or abandoned and the trust provisions have not been contravened. The.parties made no specific acknowledgment of the trust — perhaps only because they had no occasion to choose between acting in accordance with the directions of the trust and acting in some inconsistent manner — but neither did they repudiate the trust or deviate from its commands. The trust remains unimpaired in substance. Our conclusion is that the trust created in A. P. Fulk’s Will has continuously been a shareholder in the taxpayer corporation. Consequently, the election under subehapter S was invalid, and the judgment of the District Court denying the refund is Affirmed. . Current operating losses are similarly passed on to the shareholders, in the same manner as losses in a proprietorship. The House Committee of Finance observed that subchapter S is of “substantial benefit to small corporations realizing losses for a period of years where there is no way of offsetting these losses against taxable income at the corporate level, but the shareholders involved have other income which can be offset against these losses.” H.R. 775, S.R. 1983, Conf. R. 2632, Technical Amendments Act of 1958, P.C. 85-866, 85th Cong., 2d Sess., U.S.Code Cong. & Adm.News, Vol. 3, pp. 4791, 4876 (1958). Another obvious benefit of subchapter S treatment is the avoidance of a double tax on amounts distributed to shareholders which would otherwise be dividends and taxed to both the corporation and the shareholder. . Before the District Court the taxpayer contended alternatively “(i) that at the time of the subchapter S election and during the taxable years in suit, no trust existed under the laws of North Carolina, and (ii) that even if a technical trust existed under state law, it was not a trust in substance which should be recognized for purposes of federal income taxation.” On this appeal appellant has abandoned (i). . § 55-69 Gen.Stat. of N.C. provides in pertinent part: “ * * * [I]f two or more persons shall have the same fiduciary relationship respecting the same shares, then unless the instrument or order appointing them or creating the tenancy otherwise directs and it or a copy thereof is filed with the secretary of the corporation, their acts with respect to voting shall have the following effect: (1) If only one votes, in person or by proxy, his act binds all; * * * ” . Appellant draws into question the validity of Treasury Regulation § 1.1371-1 (a) (2) promulgated to implement § 1371(a) (2) of the statute. The Regulation purports broadly to disqualify any corporation in which a formal trust is a shareholder, regardless of the substance or nature of the trust. In particular, it provides that a corporation in which a voting trust or “Clifford” trust is a shareholder does not qualify under subchapter S. Taxpayer points out that the Regulation was in part invalidated in A & N Furniture Co. v. United States, 271 F.Supp. 40 (S.D. Ohio 1967) where the court held that a voting trust did not disqualify the electing corporation. The portion of the Regulation condemned in that case may well be open to challenge as conflicting with the principle of substance over form. Likewise, the portion of the Regulation which undertakes to disqualify a Clifford trust (where the form of a trust is employed but the grantor retains control and is taxed as the true owner) may be open to attack. However, the trust in this case is neither a voting trust nor a Clifford trust; it is instead a traditional testamentary trust possessing economic substance and conferring full powers and title upon the trustees. The defect in the Regulation, if there is one, does not come into play in the present case.

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

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

NATIONAL FREIGHT, INC., Dart Transit Company, Owens-Illinois, Inc., Continental Can Company, Inc. v. Thomas D. LARSON, Secretary of Transportation; Daniel Dunn, Commissioner of Pennsylvania State Police; LeRoy S. Zimmerman, Attorney General; Richard Thornburgh, Governor, Appellants. No. 84-5388. United States Court of Appeals, Third Circuit. Argued Feb. 11, 1985. Decided April 23, 1985. LeRoy S. Zimmerman, Atty. Gen., James J. Kutz, Deputy Atty. Gen. (argued) Andrew S. Gordon, Allen C. Warshaw, Sr. Deputy Attys. Gen., Michael J. McCaney, Jr., Asst. Counsel, Office of Atty. Gen., Harrisburg, Pa., for appellants. John Duncan Varda, John H. Lederer (argued), DeWitt, Sundby, Huggett, Schumacher & Morgan, S.C., Madison, Wis., for appellees. Before GARTH, BECKER and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. Historically, subject to the strictures of the commerce clause of the federal constitution, states have regulated the speed, safety and travel of vehicles on their public highways, including the regulation of truck size and the overall length of semi-trailer combinations. In 1982, Congress ventured into this area of highway regulation by enacting the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 2301 et seq., which addressed, and to some extent preempted state laws and regulations concerning, the size, weight, and configuration limits for tractor-trailers. The Commonwealth of Pennsylvania thereupon amended its vehicle code in response to this new federal law, retaining an overall length limit of 60 feet on semi-combinations with trailers over 48 feet on the “National Network” and continuing to impose a 60-foot overall length limit regardless of trailer length on other roads. See 75 Cons. Stat.Ann. § 4923(a) (Purdons Supp. 1984-1985). Although both the federal and state statutes are, at least in part, intended to protect the safety of persons on the public highways, the construction by the Commonwealth of Pennsylvania of Congress’ legislation and a differing construction by truckers and shippers of goods produced a collision in views between the parties culminating in this litigation. The case raises important questions of statutory construction and the application of the supremacy clause of the federal constitution. The district court held that Pennsylvania’s 60-foot overall length limitation conflicts with the STAA and that the federal prohibition of overall length limitations applies to all public highways within a state, not just those constituting the National Network. 583 F.Supp. 1461. We affirm as to the first issue, but reverse as to the second. I. Most states, acting under the police powers reserved to them by the Constitution, have regulated the overall length of semitrailer combinations, the predominant limit being 60 feet. Pennsylvania truck size regulations conformed to the majority of the states. For example, on June 18, 1980, Pennsylvania amended its vehicle code by increasing the maximum allowable overall length of traetor-semi-trailer combinations from 55 to 60 feet. See Act 1980-68, June 18, P.L. 229, 75 Pa.Cons.Stat. § 4923(a). Pennsylvania law did not regulate trailer length per se. However, by reason of the 60 foot overall length limitation, the statute put a practical limitation on trailer length at 53 feet, the smallest available tractor being seven feet long. At the time Pennsylvania amended its vehicle code in 1980, the federal government imposed no standards on either trailer or overall length. When Congress passed the STAA in 1982, the Act in relevant part: (1) required the states to permit commercial motor vehicles consisting of 48-foot semi-trailers, or 28-foot twin trailers, on the National Network, see 49 U.S.C. §§ 2311(a) & (c); (2) forbade each state from prohibiting commercial motor vehicle semi-trailer and trailer lengths that had previously been legally operated in the state, see 49 U.S.C. § 2311(b); and (3) prohibited each state from imposing overall length limits on most commercial motor vehicles, including semi-trailer combinations, see 49 U.S.C. § 2311(b). In response to the STAA, Pennsylvania amended its vehicle code. See 1983 Pa. Legis.Serv. 83 (Purdon) (Act No. 1983-19). On the National Network, Pennsylvania eliminated overall length limits on semi-combinations with trailers 48 feet or less in length, but retained an overall length limit of 60 feet on semi-combinations with trailers over 48 feet. See 75 Pa.Cons.Stat.Ann. § 4923(b)(6). On other roads, Pennsylvania imposed a 60-foot overall length limit regardless of trailer length. See 75 Pa.Cons. StatAnn. § 4923(a). The language of 75 Pa.Cons.Stat.Ann. § 4923 is set out in the margin. Plaintiffs, interstate shippers and carriers who desire to use 53-foot truck trailers throughout Pennsylvania without any limitations on the length of the truck tractor, brought suit in the United States District Court for the Middle District of Pennsylvania claiming that the Pennsylvania legislation of 1983 is contrary to federal law and, therefore, violative of, inter alia, the supremacy clause and commerce clause of the federal constitution. Prior to the passage of the STAA, plaintiffs had legally operated, or made use of, 53-foot trailers in Pennsylvania. Pursuant to Pennsylvania law, however, these trailers were operated within a 60-foot overall length limit. Thus, the length of the trailer plus the tractor did not exceed 60 feet. Plaintiffs now desire to use 53-foot trailers both on and off the National Network without any restrictions as to overall length, and they contend that the STAA requires Pennsylvania to permit such operations. The parties entered into a stipulation of facts after which each side moved for summary judgment. Plaintiffs’ motion was limited to their claim under the supremacy clause. On April 12, 1984, the district court granted plaintiffs’ motion for summary judgment. The district court held, first, that Pennsylvania’s 60-foot overall length limitation conflicts with the STAA and therefore was improper, even as applied to vehicles with trailers longer than 48 feet that are operating under the grandfather clause of the STAA, 49 U.S.C. § 2311(b). The court then held that the provision in subsection (b) of section 411 of the STAA (49 U.S.C. § 2311(b)), prohibiting overall length limitations, applied to all roadways within a state, not just those constituting the National Network. In so holding, the court declared sections 4923(a) and 4923(b)(6) of the Pennsylvania Motor Vehicle Code violative of the supremacy clause. The district court, and subsequently this court, denied a motion for partial stay pending appeal. Subsequent to the district court’s decision, the Federal Highway Administration (FHWA) promulgated a “final rule” which interpreted the STAA in the manner advocated by the defendants herein and contrary to the decision of the district court. The FHWA interpreted the STAA to mean that states could impose overall length limits on the National Network for tractor-trailers with trailers longer than 48 feet, if the states imposed overall length limits pri- or to enactment of the law. Moreover, the FHWA concluded that states were free to impose any overall length limit on highways other than those constituting the National Network. See 49 Fed.Reg. 23,302 (1984). . Subsequent to this FHWA interpretation, the plaintiffs filed a motion to remand for the purpose of joining the FHWA and its officials. This motion has since been withdrawn. II. The first issue before this court is whether, under the STAA, states can impose overall length limits on tractor-trailers with trailers longer than 48 feet, if the states imposed overall length limits prior to the enactment of the law. In essence, we are required to decide whether the “grandfather clause” of the STAA permits states to enforce length limitations in cases where the clause is relied upon. The defendants’ position is that the grandfather clause was not intended to broaden the situations in which trailers longer than 48 feet can be operated. In the defendants’ view, therefore, the plaintiffs are entitled to operate 53-foot trailers only as they were operated in Pennsylvania before the passage of the STAA, that is, in combination with tractors of seven feet or less. The plaintiffs rejoin that the STAA preempts any state regulation of overall length as such. They further urge that the grandfather clause requires Pennsylvania, which previously allowed certain 53-foot trailers to operate on its highways, now to allow trailers of this length to operate without regard to the overall length of the combinations of which the trailers are a part. The “grandfather clause” provides that “[n]o State shall establish, maintain, or enforce any regulation of commerce which has the effect of prohibiting the use of existing trailers or semi-trailers, of such dimensions as those that were in actual and lawful use in such State on December 1, 1982.” 49 U.S.C. § 2311(b). On December 1, 1982, Pennsylvania had in effect a 60-foot overall length limitation. After the passage of the STAA, Pennsylvania amended its vehicle code and abolished the pre-existing 60 foot limitation for combination vehicles operating on the National Network so long as the length of a single trailer did not exceed 48 feet (and the length of each twin trailer did not exceed 28 feet). The defendants argue that if a trailer is greater than 48 feet long, thus essentially requiring reliance on the grandfather clause, then the 60 foot overall length limitation is lawful and applicable. We see no merit to this argument. When interpreting a statute, the starting point is of course the language of the statute itself. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). If the language is clear and unambiguous, and there is no “clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In the instant case, the federal statute is clear in its prohibition of overall length limits as applied to single-trailer combinations. The relevant provision unambiguously requires that “[n]o State shall establish, maintain or enforce any regulation of commerce which imposes an overall length limitation on commercial motor vehicles operating in truck-tractor semitrailer or truck tractor semitrailer, trailer combinations.” 49 U.S.C. § 2311(b). This provision speaks of no exception to the broad and clear prohibition of overall length limitations. Even if the defendants’ position were accepted and Pennsylvania’s 60-foot overall length limitations were seen as a “condition” that existed prior to the STAA’s enactment for the operation of long trailers, any such “condition” is now clearly outlawed by the STAA and does not continue today under the grandfather clause. Thus, to currently impose such a condition on vehicles traveling on the National Network violates the supremacy clause of the federal constitution. Nothing in the language of the grandfather clause itself changes this result. The grandfather clause speaks to trailer size limitations that were in effect before Congress enacted the federal law. The clause indicates that, although the new federal law allows a law mandating a 48-foot maximum length trailer, a state that had previously allowed a trailer length in excess of 48 feet cannot now reduce and bring the size within that limitation. Prior to the federal law, Pennsylvania had an overall length limitation law in effect on combination tractor-trailers — a type of law that is now prohibited. This law permitted, in practical terms, a 53-foot trailer when used with a 7-foot long tractor. Under the terms of the grandfather clause of the STAA, Pennsylvania may not now prohibit the use of trailers on the National Network that are up to 53 feet in length. Although Pennsylvania had no statute permitting trailers 53 feet in length, its interpretation of its overall length limitation law permitted such a practice. The language of the STAA grandfather clause is not predicated on state statutory provisions specifically permitting trailers in excess of 48 feet in length, but upon whether trailers “of such dimensions ... were in actual and lawful use” in the state on December 1, 1982. Fifty-three foot trailers “were in actual and lawful use” in Pennsylvania on December 1, 1982. Thus, the STAA grandfather clause requires that Pennsylvania, given the practical effect of its previous law, allow 53-foot trailers on the National Network, not that it continue to allow, as Pennsylvania argues, 53-foot trailers only as part of 60-foot overall length tractor-trailer combinations. Regardless of what Pennsylvania’s or our views may be concerning the operation and safety of trailers of such length, trailers up to 53 feet in length must be allowed on the National Network in Pennsylvania in light of the previous practice even if pulled by a tractor of such length that the combination exceeds 60 feet. This reading is in conformity with the legislative history of the STAA. In including within the federal statute a prohibition against the use of overall length limitations, Congress apparently desired to reduce the use of the dangerous “short tractors” that had been developed in response to the various state overall length limitation laws. This safety concern is plainly expressed in a report of the Senate Committee on Commerce, Science, and Transportation. See S.Rep. No. 298, 97th Cong., 1st Sess. 2 (1981). To continue to impose overall length limits on the many trucks relying on the grandfather clause of the STAA would result in the continued use of short tractors and a frustration of one of the purposes Congress had for passing the STAA. As noted earlier, the FHWA interpretation is contrary to our analysis of this issue. This, however, does not change the result. It is true that the interpretation of the agency charged with the implementation of a statute is generally accorded substantial deference. See Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 492, 801, 13 L.Ed.2d 616 (1965). The question before this court, however, is a matter of pure statutory construction. In such a case, agency expertise is not controlling; the question is one which the courts are relatively more able to answer. See Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970); Cleary v. United States Lines, 728 F.2d 607, 610 n. 6 (3d Cir.1984); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir.1981). III. The second issue that this court must consider is whether § 411 of the STAA, 49 U.S.C. § 2311, prohibits the states from enforcing overall length limitations on roads which are not a part of the National Network. A review of section 2311 suggests that it was meant to apply only to the National Network, a conclusion supported by the very title of the section: “Length limitations on federally assisted highways.” The plaintiffs, however, argue that only subsections (a) and (c) of section 2311 mention the National Network, and thus subsection (b), which is the subsection that contains the prohibition against overall length limitations, should not be seen as limited to only that system of roads. The plaintiffs admit that the first sentence of subsection (b) refers to subsection (a), which, as just noted, refers to the National Network. The plaintiffs, however, maintain that the remaining provisions in subsection (b), including the overall length limit prohibition, should be read as separate sentences that address state regulations on any highway. We do not agree. It is true that subsections (a) and (c), and not (b), specifically refer to the National Network. Subsection (a) prohibits a state from imposing a length limitation of less than 48 feet for a single trailer operating on the National Network. Subsection (c) forbids a state from prohibiting the operation of twin trailers on the National Network. This does not mean, however, that the absence, in subsection (b), of an explicit reference to the National Network makes the subsection applicable to all roads. Rather, we read that subsection as essentially clarifying, and placing limits on, the more substantive provisions contained in subsections (a) and (c). For example, the first two sentences of subsection (b), the two sentences most relevant to the present discussion, are properly seen as clarifying the reference to length limits established under subsection (a) so as to limit its application only to the trailer and not to the overall vehicle. The language of these two sentences is as follows: Length limitations established, maintained, or enforced by the States under subsection (a) of this section shall apply solely to the semitrailer or trailer or trailers and not to a truck tractor. No State shall establish, maintain, or enforce any regulation of commerce which imposes an overall length limitation on commercial motor vehicles operating in truck-tractor semitrailer or truck tractor semitrailer, trailer combinations. 49 U.S.C. § 2311(b). The first sentence, by itself, implicitly prohibits the imposition of overall length limits. Because limitations may apply only to the semi-trailer and not the tractor, there can be no limitation imposed on the overall combination of the two. The implication of this provision is clear, though not directly stated. The second sentence does state it directly: it prohibits any “overall length limitation.” The latter sentence, then, would appear to be merely a clarification of what is contained in the first sentence — a sentence which by its very terms (that is, by virtue of the reference therein to subsection (a)) applies only to the National Network. That the overall length limitation prohibition is applicable only to the National Network is further supported by the argument that 49 U.S.C. § 2312 would be rendered superfluous if section 2311(b) were seen as applying to all roads. Section 2312 reads as follows: No State may enact or enforce any law denying reasonable access to commercial motor vehicles subject to this chapter between (1) the Interstate and Defense Highway System and any other qualifying Federal-aid Primary System highways, as designated by the Secretary, and (2) terminals, facilities for food, fuel, repairs, and rest, and points of loading and unloading for household goods carriers. 49 U.S.C. § 2312. This provision is not limited to twin trailers. Rather, it applies to all “commercial motor vehicles subject to this chapter,” including the semi-trailer combinations permitted under section 2311. If Congress, in section 2311(b), had already required states to permit these vehicles on all of their public highways, there would clearly be no need for section 2312. Thus, given the existence of section 2312, we believe that 49 U.S.C. § 2311 should not be seen as applying to all roads. Our reading of the statute is not contrary to legislative intent. We do not believe that, in enacting this legislation, Congress intended to completely deprive the states of the power to regulate vehicle lengths, even as to roadways off the National Network. In particular, it is difficult to believe that Congress desired to preempt state vehicle length laws as to every street, road, and alleyway in a state, thus potentially subjecting narrow streets in densely populated areas and narrow country roads to tractor-trailers seventy feet or more in length. One of the main purposes of Congress in passing the STAA was to enhance interstate commerce. See H.R.Rep. No. 555, 97th Cong., 2d Sess. 23, reprinted in 1982 U.S. Code Cong. & Ad.News 3629, 3661. This is clearly accomplished by requiring all states to permit the operation of 48-foot trailers and twin trailers on any segment of the National Network. Limiting the application of the statute to the National Network should not in any way impede interstate travel inasmuch as the Network clearly includes all interstate highways and section 2312 provides for reasonable access to terminals and facilities for food, fuel, repairs, and rest off the Network as well as points of loading and unloading for household goods carriers. Futhermore, this interpretation allows for the use of the safer “long” tractors on the National Network, although it is true that the shorter tractors may still need to be used for general travel off the National Network in Pennsylvania. Congress, however, was concerned with long distance hauling and meant to deal only with the National Network, leaving the regulation of tractor-trailer size off this Network to the discretion of the states. This is reflected in the legislative history with respect to section 2312 in which the House report states that “this provision [§ 2312] is not intended to preempt a State’s reasonable exercise of its police powers with respect to safeguarding public safety on roads within the area of its jurisdiction.” H.R. Rep. No. 555, supra, at 3662. The political dynamics of the passage of the Act are also worthy of note. As suggested above, one of the purposes of Congress in passing the STAA was to improve the productivity of truckers by establishing more uniform weight and length limits on federal roads across the country. The apparent quid pro quo for this beneficial legislation was a five cent per gallon increase in the gasoline tax and the imposition of higher fees and taxes on heavy trucks. A reading of the legislation indicates that the lion’s share of these additional taxes inured to the benefit of the National Network highway system, and not otherwise to the benefit of the states. See H.R. Rep. No. 555, supra, at 3639-42. This provides additional support for our conclusion that Congress intended that the Act’s new vehicle weight and size provisions be limited to the National Network. IV. In summary, we agree with the district court that the STAA’s prohibition against overall length limitations on semi-trailer combinations using the National Network is unequivocal and prevents the use of such limitations even with respect to trucks operating under the grandfather clause. Accordingly, that portion of the district court’s judgment will be affirmed. On the issue of whether 49 U.S.C. § 2311(b) applies to all roads or only those constituting the National Network, however, we conclude that the provision is applicable only to the Network. As to this second issue, the judgment of the district court will be reversed and the case remanded for consideration of the plaintiffs’ remaining claims. Each side to bear its own costs. . The use, in Pennsylvania, of a trailer exceeding 48 feet in length essentially involves reliance on the “grandfather clause” of the STAA which provides: “No State shall establish, maintain, or enforce any regulation of commerce which has the effect of prohibiting the use of trailers or semi-trailers of such dimensions as those that were in actual, and lawful use in such State on December 1, 1982.” 49 U.S.C. § 2311(b). Pennsylvania currently imposes a trailer length limit of 48 feet unless the overall length of the motor vehicle does not exceed 60 feet. See 75 Pa.Cons. Stat.Ann. § 4923(b)(6) (Purdons Supp. 1984-1985). The 60 foot overall length limitation was the general requirement in the older version of the Pennsylvania vehicle code. . The term "National Network” will be used to refer to that system of roads described in the federal statute as the "National System of Interstate and Defense Highways and those classes of qualifying Federal-aid Primary System highways as designated by the Secretary,” 49 U.S.C. § 2311(a), and described in the state statute as including "interstate and certain primary highways,” 75 Pa.Cons.Stat.Ann. § 4923(b)(6) (referring to 75 Pa.Cons.Stat.Ann. § 4908). . The relevant provisions read as follows: § 2311. Length limitations on federally assisted highways (a) Prohibition against certain length limitations on semitrailers and trailers No State shall establish, maintain, or enforce any regulation of commerce which imposes a vehicle length limitation of less than forty-eight feet on the length of the semitrailer unit operating in a truck tractor-semitrailer combination, and of less than twenty-eight feet on the length of any semitrailer or trailer operating in a truck tractor-semitrailer-trailer combination, on any segment of the National System of Interstate and Defense Highways and those classes of qualifying Federal-aid Primary System highways as designated by the Secretary, pursuant to subsection (e) of this section. (b) Nonapplicability of limitations to truck tractors; prohibition against overall length limitations on truck-tractor semitrailer or truck-tractor semitrailer, trailer combinations; prohibition against regulation of commerce prohibiting use of certain trailers and semitrailers Length limitations established, maintained, or enforced by the State under subsection (a) of this section shall apply solely to the semitrailer or trailer or trailers and not to a truck tractor. No State shall establish, maintain, or enforce any regulation of commerce which imposes an overall length limitation on commercial motor vehicles operating in truck-tractor semitrailer or truck tractor semitrailer, trailer combinations. No State shall establish, maintain, or enforce any regulation of commerce which has the effect of prohibiting the use of trailers or semitrailers of such dimensions as those that were in actual and lawful use in such State on December 1, 1982. No State shall establish, maintain, or enforce any regulation of commerce which has the effect of prohibiting the use of existing trailers or semitrailers, of up to twenty-eight and one-half feet in length, in a truck tractor-semitrailer-trailer combination if those trailers or semitrailers were actually and lawfully operating on December 1, 1982, within a sixty-five-foot overall length limit in any State. (c) Prohibition by State of combination of truck tractor and two trailing units forbidden No state shall prohibit commercial vehicle combinations consisting of a truck tractor and two trailing units on any segment of the National System of Interstate and Defense Highways, and those classes of qualifying Federal-aid Primary System highways as designated by the Secretary pursuant to subsection (e) of this section. Minor amendments to the STAA were recently passed. See Tandem Truck Safety Act of 1984, Pub.L. No. 98-554, 98 Stat. 2829. . § 4923. Length of vehicles (a) General rule. — Except as provided in subsection (b), no motor vehicle, including any load and bumpers, shall exceed an overall length of 40 feet, and no combination, including any load and bumpers, shall exceed an overall length of 60 feet. (b) Exceptions. — The limitations of (a) do not apply to the following: (5) A combination designed and used exclusively for carrying motor vehicles if the overall length of the combination and load does not exceed 65 feet. (6) Any combination consisting of a truck tractor and one or two trailers, when driven as described in section 4908 (relating to operation of certain combinations on interstate and certain primary highways), provided that, except when being operated as a part of a combination of a tractor and single trailer not exceeding an overall length of 60 feet, the length of a single trailer shall not exceed 48 feet and the length of each double trailer shall not exceed 28 feet. . Prior to the district court's decision, a United States District Court for the Northern District of Florida came to the same conclusion as the district court in the instant case. See United States v. Florida, No. TCA 83-7333 (N.D.Fla. Mar. 2, 1984) (holding that state law imposing overall length restrictions on any road was contrary to STAA). . Plaintiffs moved for remand of this matter in order to (1) afford the FHWA an opportunity to defend its rule, and (2) promote judicial economy. By remand, it was hoped that the FHWA could be added as a party and that the entire matter could be disposed of by two "trials" and one appeal rather than two trials and presumably two appeals. The FHWA, however, subsequently indicated that it did not desire to defend its rules in this proceeding. Furthermore, the hearing on the motion for remand was consolidated with the merits of this appeal. Thus, neither of the reasons noted above remained valid and plaintiffs withdrew the motion. . The only exception to be found anywhere in the statute appears in the last sentence of 49 U.S.C. § 2311(b). This sentence provides as follows: No State shall establish, maintain, or enforce any regulation of commerce which has the effect of prohibiting the use of existing trailers or semitrailers, of up to twenty-eight and one-half feet in length, in a truck tractor-semitrailer-trailer combination if those trailers or semitrailers were actually and lawfully operating on December 1, 1982, within a sixty-five-foot overall length limit in any State. This exception, however, is very narrow, applies only to double trailers, and is crafted to protect those fleets, in particular a fleet with over 5,000 such vehicles, that used 28-lA foot doubles trailers as opposed to the 28 foot trailers established as the uniform standard doubles trailer by 49 U.S.C. § 2311(a). See H.R.Rep. No. 555, 97th Cong., 2d Sess. 23, 24, reprinted in 1982 U.S. Code Cong. & Ad. News 3639, 3661-62. . The short tractor was developed so that most of the allowable length of the combination would be in the cargo-carrying trailer. These short tractors — e.g., the "cab over engine" variety — provide less protection for the driver than the longer "cab behind engine" variety. . In relevant part, the report states: While the prohibition on regulation of the overall length of trucks may seem to be a major change, as a practical matter it will not result in significantly larger trucks than are on the road today and it will assure that safety will not be jeopardized by undue restrictions on the power unit. The great bulk of truck length is contained in the cargo carrying unit that is still under regulation by the States. By focusing on trailer-size limitations only, there is no incentive to squeeze the truck cab down to an unsafe size in order to meet an overall length requirement. Moreover, the driver can assure that there is sufficient separation between the tractor and the trailer to provide optimum control of the vehicle and minimum weight on the front steering axle. With an overall length limit, often trucks must either be configured in a way that is less safe or else give up valuable cargo space to allow for more safe driving conditions. In the future, truckers will not have to face that dilemma. S.Rep. No. 298, 97th Cong., 1st Sess. 2 (1981) (emphasis added). It is true that this report concerned a bill, S. 1402, 97th Cong., 1st Sess. (1981), that was never actually passed. Nevertheless, the grandfather clause and overall length limit contained in the Senate version were ultimately incorporated into the House bill, H.R. 6211, 97th Cong., 1st Sess. (1981), that was adopted and passed into law. Cf. H.R.Conf. Rep. No. 987, 97th Cong., 2d Sess. 132-34, reprinted in 1982 U.S.Code Cong. & Ad. News 3692, 3713-15. Since the Conference Committee report, see id., and the House report, see H.R.Rep. No. 555, 97th Cong., 2d Sess. 22-25, reprinted in 1982 U.S.Code Cong. & Ad. News 3639, 3660-63, do little more than paraphrase the statute, it is not unreasonable to make reference to the Senate report that considered the provisions. . This approach of viewing subsection (b) as essentially only adding a "gloss” to the discussion of vehicle lengths and allowable combinations presented in subsections (a) and (c), helps explain the wording of 49 U.S.C. § 2311(e)(1). This subsection provides that "[t]he Secretary shall designate as qualifying Federal-aid Primary System highways subject to the provisions of subsections (a) and (c) of this section those Primary System highways that are capable of safely accommodating the vehicle lengths set forth therein.” (Emphasis added.) The absence of any mention of subsection (b) is, according to the approach we adopt, due to subsections (a) and (c) being the only provisions that have a “direct” impact. Any impact that subsection (b) has is "through” subsections (a) and (c) — either by way of clarification (i.e., the "overall length limitation” provisions) or exception (i.e., the grandfather clause). This same analysis explains the similar emphasis on subsections (a) and (c) found in the recent amendments to the STAA. See Tandem Truck Safety Act of 1984, Pub.L. No. 98-554, § 102, 98 Stat. 2829, 2829. . See H.R.Rep. No. 555, supra, at 3661. As proposed by the Reagan Administration, the new program would include higher fees and taxes on heavy trucks used by commercial trucking companies. In return, there would be an attempt to improve the productivity of truckers by establishing uniformly higher truck weight and length limits on Federal roads across the country. A new 80,000-pound minimum would be in effect. N.Y. Times, Nov. 30, 1982, at BIO, col. 1 (emphasis added). . Our conclusion that section 2311(b) is applicable only to the National Network is consistent with the FHWA’s similar interpretation. See 49 Fed.Reg. 23,302-23,329 (1984) ("final rule” effective June 5, 1984). As noted earlier, this interpretation is not in any way controlling here, but we mention it in the interest of completeness. Cf. Barnes v. Cohen, 749 F.2d 1009, 1016 (3d Cir.1984). . We have concluded that Pennsylvania’s application of an overall length limitation to vehicles off the National Network does not violate the supremacy clause. The plaintiffs’ complaint, in addition to raising the supremacy clause issue, alleged that the vehicle length provisions of the Pennsylvania Motor Vehicle Code were violative of the commerce clause, the fourteenth amendment, and 42 U.S.C. § 1983. The district court did not reach these latter issues.

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

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

UNITED STATES of America, Appellee, v. John Thomas DAVIDSON, Defendant, Appellant. No. 7564. United States Court of Appeals, First Circuit. July 2, 1970. Harvey A. Silverglate, Boston, Mass., with whom Flym, Zalkind & Silverglate, Boston, Mass., was on brief, for appellant. Willie J. Davis, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., and James B. Krasnoo, Asst. U. S. Atty., were on the brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. PER CURIAM. The defendant, admittedly an illegal dealer in narcotics, was convicted of violation of 26 U.S.C. § 4705(a) for selling heroin without receiving the order form thereby required. His sole ground of appeal is that section 4705(a) violates the Tenth Amendment. Concededly, no Fifth Amendment rights are involved. Minor v. United States, 1969, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283. Basically, defendant asserts that since, as an illegal dealer, he was not obliged to pay the occupational tax imposed by section 4721, and no tax was due from the buyer, there was no federal purpose to be served by the form, and hence no federal right to require it. In 1928 the Court in Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600, upheld the constitutionality of the order form requirement as to unregistered sellers on the ground that it aided in the collection of excise and occupational taxes imposed by the federal narcotics act. Defendant notes, correctly, that illegal dealers were then subject to the occupational tax, and argues that since now they are not, Nigro is inapplicable and we must reach a different result. We do not agree. It does not follow that because the defendant is exempt from the occupational tax, federal tax collection is not aided by the information sought in the order form. In the first place, although the defendant seller may not have been subject to the section 4721 tax, his supplier may have been a lawful importer who had neglected to pay his own occupational tax. Secondly, the sale may have involved narcotics subject to the excise tax, 26 U.S.C. § 4701, due from the original importer or manufacturer, but unpaid. In either case the information supplied on the order form might set in motion a chain of inquiry directly related to the collection of federal taxes. See Nigro, ante, at 347, 48 S.Ct. 388. Beyond this, we think the government has a valid interest in obtaining, information for less immediate purposes. It may wish to know, for example, how much revenue it sacrificed by its exemption of unlawful dealers, with an eye to reinstating the tax. It may want to consider a new type of taxation. We cannot believe that Congress lacks the authority to gather such information. It would be difficult to think, for example, that the informational return required from private foundations by the 1969 Tax Reform Act is unenforcible except to the extent related to present exemptions. Defendant does not advance his case by suggesting that our speculations have not been verified, and the actual motives of Congress may be something different. Cf. Watkins v. United States, 1957, 354 U.S. 178, 200, 77 S.Ct. 1173, 1 L.Ed.2d 1273. Affirmed. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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.

FOUR CERTAIN UNNAMED INMATES OF MASSACHUSETTS CORRECTIONAL INSTITUTION AT WALPOLE, MASSACHUSETTS, Plaintiffs-Appel-lees, v. Frank A. HALL et al., Defendants-Appellants. No. 76-1554. United States Court of Appeals, First Circuit. Argued Jan. 3, 1977. Decided March 18, 1977. Lee Carl Bromberg, Special Asst. Atty. Gen., Boston, Mass., for appellants. Richard J. Vita, Dorchester, Mass., and Alan P. Caplan, Boston, Mass., with whom Thomas C. Troy, Troy & Vita, Dorchester, Mass., Caplan, Christiansen & Reichlin, Martin K. Leppo, Anthony Traini, Boston, Mass., Jerry C. Effren, and Angelo P. Ca-tanzaro, Dorchester, Mass., were on brief, for appellees. Before COFFIN, Chief Judge, and ALD-RICH and CAMPBELL, Circuit Judges. PER CURIAM. After a rash of murders in the state prison at Walpole, Massachusetts, prison officials began an investigation. When an imminent newspaper story threatened the investigation’s secrecy, the officials decided to act swiftly. They seized several inmates suspected of participating in the murders and placed them in a segregation unit, where they could not be harmed or cause harm to others. See Mass. Gen’l Laws Ann. ch. 127 § 39; cf. id. § 40. Believing this to be a violation of due process, the district court ordered the officials to give the segregated inmates notice of the charges against them within two days and to begin disciplinary hearings within nine days. We stayed the district court’s order. We now must decide whether the inmates have a “liberty interest” sufficient to invoke federal guarantees of procedural due process. The inmates and the court below relied only on state law as the source of the necessary interest. The standard to be applied to such a claim is whether the inmates have “some right or justifiable expectation rooted in state law that [they] will not be transferred except for misbehavior or upon the occurrence of other specified events.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). We have it on commanding authority that no Massachusetts statute creates such a right or expectation. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Transfers to segregation units are within the Commissioner’s broad statutory discretion. Mass. Gen’l Laws Ann. ch. 127 § 39. The district court, however, relied on recent prison regulations, which, it believed, severely restrict the discretion of prison officials to order transfers in the absence of misconduct. But this circuit has recently held that the present prison regulations dealing with reclassification do not impose substantive standards on the decision to transfer an inmate. Lombardo v. Meac-hum, 548 F.2d 13 (1977). Freedom from transfer is not a “liberty interest” since an inmate may be transferred at the whim of the Commissioner. Because no “liberty interest” has been infringed by the transfer, due process does not attach, and the district court’s order cannot stand. Reversed.

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"?

Jerome A. MARENTETTE, Plaintiff-Appellant, v. LOCAL 174, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL WORKERS OF AMERICA, and Federal Screw Works, Defendants-Appellees. No. 89-1664. United States Court of Appeals, Sixth Circuit. Argued April 3, 1990. Decided July 3, 1990. Harold Dunne (argued), Livonia, Mich., for plaintiff-appellant. Chui Karega, Detroit, Mich., for Local 174, United Auto. Aerospace and Agricultural Workers of America. Frank S. Galgan (argued), Troy, Mich., for Federal Screw Works. Before KRUPANSKY and MILBURN, Circuit Judges, and THOMAS, Senior District Judge. Honorable William K. Thomas, United States Senior District Judge for the Northern District of Ohio, sitting by designation. WILLIAM K. THOMAS, Senior District Judge. In a hybrid Labor Management Relations Act, Section 301 action, plaintiff-appellant Jerome Marentette (hereafter, plaintiff or Marentette) sues his employer Federal Screw Works (FSW) for breach of its collective bargaining agreement (CBA) with Local 174, United Automobile Aerospace and Agricultural Workers of America (Local 174). In the same action, Marentette sued co-defendant Local 174 for breach of its duty of fair representation. At the center of his action is FSW’s denial of plaintiff’s grievance that he should have been classified a journeyman millwright when he returned to FSW employment after a leave of absence. Local 174 refused to carry the grievance to the fourth step. On separate motions of FSW and Local 174, the district court granted summary judgment for each defendant; and Marentette appeals. For the reasons stated, we affirm. FSW is engaged in the business of manufacturing fasteners for the auto industry and operates a nut forming plant and a heat treating plant in Romulus, Michigan. Hired by FSW on June 4, 1962 in a laborer classification, Marentette, on March 4, 1968, was transferred to the skilled trades classification as a millwright trainee. In September of 1971, according to Mar-entette, the company asked him if he was willing to “relinquish my right to go back into production and if so, would give me one hundred percent pay rate or journeyman status.” The company “Rate Card” shows entries on 9-4-71 of “Millwright-Top-Rate” and “O.K. top rate,” under the heading “Job Classification.” An entry of March 6, 1972, when he received an increase in his rate, shows “top rate millwright” under the heading “Job Classification.” On April 3, 1972, Marentette took an indefinite leave of absence from FSW. He went to work for Local 174 as its business agent. As business agent, he serviced the collective bargaining agreement between defendant FSW and defendant Local 174. Additionally, he negotiated the 1974 FSW/Local 174 collective bargaining agreement. Marentette served approximately 13 years as business agent of Local 174, but was terminated in a change of administrations. On April 15, 1985 plaintiff returned to his employment with defendant FSW. Marentette requested that he be returned to the millwright classification. He did so under the provision of the CBA that allows an employee “returning from sick leave or leave of absence or vacation [to] be returned to the same job he held prior to such leave.” When FSW assigned him to the classification of “Bench Inspector,” Local 174 filed a grievance for him on April 22, 1985. The grievance stated This is a violation of EXHIBIT “D” in the labor agreement and his seniority rights as he has held the classification of “MILLWRIGHT” since 3/4/68. FSW denied the grievance. Exhibit “D,” which in the grievance Mar-entette and Local 174 claim to have been violated, is attached to the 1971, 1974 and 1977 collective bargaining agreements. With the exception of a typographical error, Exhibit “D” to the contract of January 17, 1977, included in the joint appendix, is identical to Exhibit “D” attached to the 1971 contract which was in effect when Marentette claims to have achieved contractual journeyman millwright status. Exhibit “D” is entitled “Skilled Trades Trainee Program Agreement.” The Agreement consists of seven sections: Section 1, Scope of Training Program; Section 2, Trainee Selection; Section 3, Wages; Section 4, Seniority; Section 5, Overtime; Section 6, Tools; Section 7, General. I. While plaintiff’s claim focuses on the last paragraph of Section 3, the full text of the section is essential to understand how a skilled trades trainee progresses to, journeyman status: Section 3. Wages Trainees who are selected from the current work force shall be compensated according to the following rate schedule: 1st 6 Month Period— The Trainee shall start at a rate equivalent to 73% of the maximum of the prevailing base wage rate for the Journeyman’s classification for which he is training. 2nd 6 Months.76% 3rd 6 Months.79% 4th 6 Months.82% 5th 6 Months.85% 6th 6 Months.88% 7th 6 Months.91% 8th 6 Months.94% 9th 6 Months.97% 10th 6 Months.99% At the option of each individual Trainee who has been upgraded from the existing work force, at the end of the fifth year of his participation in the Trainee Program he may choose to waive any rights he has to exercise seniority in the Production departments and to progress to the top of Journeyman’s classification for which he is training by the end of the 6th year; or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. Trainees will be assigned to a specific Journeyman for a six-month minimum period, during which time the Journeyman will assist in teaching the Trainee in the trade for which the Journeyman will be paid a supplement of sixty cents (60$) per hour. The six-month period will be maintained, except for the emergency situations, so long as the Journeyman is doing an adequate training job to the Company’s satisfaction. The Company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee hereunder. Asked what period of time he was a trainee under the terms of Exhibit “D,” Marentette answered, “From March 4th of ’68 to September of ’71.” As to what then happened, he stated The company approached me and asked me if I was willing to relinquish my right to go back into production and if so, would give me one hundred percent pay rate or journeyman status. After giving the names of two company employees who told him that, Marentette was asked in his deposition “[w]here in Exhibit D is this change that you are discussing provided for?” He answered Exhibit D gives the company the right to propel someone faster than the above progressions [referring to the table in Section 3]. From this answer it becomes evident that Marentette is dwelling on the last paragraph of Section 3, which reads The Company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee hereunder. In paragraph seven of his Complaint, Mr. Marentette states that at the time he was placed on Union leave of absence he was a contractual journeyman millwright. Mar-entette reiterates in other deposition testimony that he relies solely on the last paragraph of Section 3 in claiming that, by its September 1971 action, the company made him a contractual journeyman millwright Q So you state that pursuant to Section 3 of Exhibit D, you became what, no longer a trainee? A That’s correct. Q Under this language? A Well, yes, that was the only language we had. Q And this language, if I understand your testimony correctly, specifically provides that at the option of each individual trainee, beginning at the top of page eighty-four, at the option of each individual trainee who has been upgraded from the existing force at the end of the fifth year of his participation in the training program, he may choose to waive any right he has to exercise seniority in the production departments and to progress to the top rates of the journeyman’s classification for which he is training by the end of the sixth year. Your testimony is that within less than that five-year period, you were moved to the top rate of the journeyman’s classification, correct? A Correct. Q And that was pursuant to the subsequently occurring provision that states that the company shall have the right to grant wage increases at a faster rate than spelled out above if merited in the company’s judgment as to the progress of any individual trainee hereunder. A Certainly. Q The events that occurred in September of ’71, that you described, took place solely under the terms of this agreement, correct? A That was the only agreement we had. Q That was my next question. There was no other agreement, there was no side deal, there was no letter of understanding or any other agreement of any kind that you are aware of; is that correct? A Not to my knowledge. Contemporaneously with FSW’s rejection of Marentette’s grievance at the third step, Roy Melton, servicing representative for Local 174, received a letter from John M. Uram, Chairman, and Ken Golden, Recording Secretary, of the Local 174 committee. They wrote On behalf of the Skilled Trade employees, especially the Millwrights, the Committee would appreciate your cooperation with the investigation of Jerome Maren-tette’s journeymans card. Thereupon, Mr. Melton took up this matter with the Skilled Trades Department, UAW International, Solidarity House. In principal part, Melton’s letter stated The problem appears that Jerome Maren-tette did not have the eight years as a Millwright Trainee as indicated in the letter from Federal Screw dated August 25, 1977. Jerome was on staff as a full time representative at UAW Local 174 from April 3, 1972 until April 22, 1985 when he returned to Federal Screw as a Bench Inspector. If indeed Jerome used false information to gain his Journeymans card, I request that appropriate action be taken to correct the problem, as this may lead to another Journeyman at Federal Screw being laid-off with twelve years in the trade. I am enclosing copies of his Journeymans card, two letters from Federal Screw, and the letter from the Committee at Federal Screw. Charles Stewart, International Representative UAW Skilled Trades Department, in an October 15, 1985 letter, informed “Brother Marentette” that “we have reviewed two work letters from Federal Screw Works dated August 25, 1977, and September 4, 1985.” Mr. Stewart then wrote Mr. Marentette Based on the Federal Screw letter dated September 4, 1985, we have determined that our 11/1/77 decision to issue you a UAW journeyman card for the Millwright trade was in error. We can only assume that the committee who reviewed your journeyman card application, and the Federal Screw letter dated August 25, 1977, were under the assumption that you had worked in the Millwright trade continually from March 1, 1968 to August 25, 1977. From a review of the Federal Screw letter dated Sept. 4, 1985, it is clear that you only worked at the Millwright trade from March 1, 1968, until the date you went on leave of absence April 3, 1972. We cannot grant you credit for the time spent on leave of absence. Mr. Stewart then informed Mr. Marentette Unless you can provide us with documentation that you have eight or more years of experience at the Millwright trade, we will have no alternative except to ask that you return your journeyman card to our office. Please advise me of any additional Millwright experience you may have. In an affidavit of March 29, 1989, Roy Melton states that he spoke with Charlie Stewart and “learned that no documentation was submitted in response to the [Stewart] letter of October 15, 1985.” Mr. Melton further states in the last paragraph of his affidavit 7. On or about November 11, 1985, at a meeting regarding the grievance of Plaintiffs classification the bargaining committee determined, after careful consideration, that Plaintiffs grievance lacked merit. This determination was based a substantial part on the information set forth at the October 15, 1985 letter of CHARLIE STEWART, and the lack of any documentation requested in that letter. Since Plaintiff was not a Journeyman, he was properly classified as trainee upon his return to the Federal Screw Works plant in April, 1985. In a letter dated November 12, 1985, the day after its November 11, 1985 meeting, the FSW UAW Local 174 committee wrote “Brother Marentette,” After considerable investigation your grievance 8610 and 8611 were found to be without merit in the step 4 Grievance meeting with the company on November 1, 1985. Before he swore to the affidavit of March 29, 1989, servicing representative Melton, on November 30, 1988, testified in a deposition that he had withdrawn the Marentette grievance. Asked his basis, Melton said he had “found that [Maren-tette’s] grievance was without merit.” Melton then testified He alleged violation of Exhibit D. After my investigation, I found that was not true. While this basis for denying the grievance is not mentioned in the Melton affidavit, it does not contradict the affidavit statement that “[t]his determination [that the grievance lacked merit] was based a substantial part on the information set forth at the October 15, 1985 letter of CHARLIE STEWART, and the lack of any documentation requested in that letter.” (Emphasis added.) Mr. Melton admitted that he did not talk to Mr. Marentette before he withdrew the grievance. He was then asked “Then you don’t know of your own personal knowledge what Mr. Marentette’s position was?” Mr. Melton answered He sent a letter to me spelling out different things. I don’t recall what they were; that was the extent of it. After the rejection of his grievance, plaintiff filed a charge under Section 8 of the National Labor Relations Act, as amended. The Detroit Regional Director, by letter of November 26, 1985, notified Mr. Maren-tette that “because there is insufficient evidence of violation, further proceedings are not warranted at this time.” Through the internal appeal procedure of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America (“UAW”), Marentette appealed the actions of defendant Local Union. UAW International President Bie-ber wrote plaintiff on October 12, 1987 You were notified of the grievance settlement on November 12, 1985, and you did not file a Constitutional appeal of the disposition reached until April 20, 1986. The April 20, 1986 request to appeal a November 26, 1985 disposition was untimely. You have indicated that mental frustration was present which may have caused the delay of appeal; nonetheless, a complaint on the subject matter was filed with the National Labor Relations Board earlier. On the other hand, there was no evidence submitted to substantiate a claim that you were mentally incapable of availing yourself to the Constitutional Appeals procedure when the final disposition was reached. In view of the above, we have no alternative but to deny your request for further appeal on the basis of untimeliness alone. Accordingly, and pursuant to Article 33, Section 4(b) and (c) of the Constitution of the International Union, UAW, the issue is closed. Thereafter, on March 13, 1988, Mr. Mar-entette filed this action. Claiming his action arises under the Labor Management Relations Act, Section 301 (as amended); Title 29 U.S.C. § 185 (1947), Mr. Marentette asserts two counts. Count I states 21. In withdrawing plaintiff’s grievance, Defendant Union breached its duty of fair representation. 22. Defendant Union acted in an arbitrary, capricious, discriminatory, and bad faith manner. Count II states 25. By not returning plaintiff to the skilled trades classification of Millwright, Defendant Employer violated plaintiff’s contractual rights. II. A. In his complaint, plaintiff states that “[a]t the time plaintiff was placed on a union leave of absence plaintiff was a contractual journeyman Millwright.” As seen, plaintiff bases his claim on the fact that in September 1971, while he was a trainee, he accepted the company’s offer to waive his right to go back to production in exchange for “100 percent pay rate or journeyman status.” Plaintiff says the company acted under the last paragraph of Section 3 “Wages” which authorizes it “to grant wage increases at a faster rate than spelled out above [see table, supra at 605], if merited in the Company’s judgment as to the progress of any individual Trainee hereunder.” The task of the district court was to decide whether any language in Exhibit D of the CBA expressly or impliedly supports the plaintiff’s claim of being a “contractual journeyman Millwright.” Referring to the final provision of Section 3, on which the plaintiff relies, the district court observed in its grant of summary judgment The plaintiff’s rights, whatever they may be, then are governed by further provision of Section 3 and by Section 4. It’s the contention of Plaintiff that he became a journeyman under a further provision under the last paragraph of Section 3 because he was paid a journeyman’s rate. That provision states that the company shall have the right to grant wage increases at a faster rate than spelled out above. The district court then found Well, the company has that option, but there’s no language that in the Court’s estimation can be interpreted to mean that the employee becomes a journeyman because the company elects to accelerate his progress as far as the pay scale is concerned. I think that the agreement is not susceptible of that sort of an interpretation. The court then proceeded to examine Section 4 I might mention that under section 4 there is language regarding the attainment of journeyman status, and under Section 4 we find this language: “Once a trainee has attained journeyman status or elects to waive his bumping privilege at the end of the fifth year [of the program in accordance with the wage agreement], he may no longer exercise [any] seniority rights [in the production departments].” There again, that seems to be an indication that if you proceed under one of these other provisions, you’re not a journeyman. The trainee can either attain journeyman status or he may elect to waive bumping privileges and so forth and so on, but certainly there’s no indication under that language that he attains journeyman status. He merely elects to receive a higher pay rate in exchange for giving up some seniority rights. The district court then determined plaintiff’s breach of contract claim against FSW It seems to the Court that the language of the contract is not susceptible of any other interpretation, and it’s the Court’s ruling that by merely being paid at a journeyman’s pay rate, the plaintiff does not become a journeyman. Plaintiff argues A Trainee can become a journeyman, under the above quoted Trainee Program, in one of three ways, which are: 1. Waiving his seniority rights to return to the Production Departments at the end of his fifth year of training; and then “to progress to the top of Journeyman’s classification for which he is training by the end of the 6th year.’’ 2. Remain at the 99% rate schedule until completing his 8th year of apprenticeship; and “during this period retain the privilege of exercising his seniority in the production departments in event of layoff.” 3. The company shall have the right to grant wage increases at a faster rate than spelled out above, if merited in the Company’s judgment as to the progress of any individual Trainee. Since the plaintiff’s claim is based solely on his third “way” this third “way” will be first examined. The third “way,” as seen, merely copies the verbatim language of the final paragraph of Section 3. The plaintiff does not quote any other language in either Section 3 Wages or Section 4 Seniority to support his claim. This is clear from the following deposition colloquy. As to Section 3 Wages, and Section 4 Seniority, the plaintiff, Mr. Marentette, was asked Q. In both paragraphs that I have read, it says at the end of the fifth year. Can you tell me how it is that you don’t have to be at the end of your fifth year? He answered A. The Company chose to grant the increases contractually and brought these people up to the hundred percent. When the Union counsel asked him, “and that relates solely and only to the pay increase, does it not?”, Mr. Marentette answered “No it does not.” Then, he was asked Q. Show me where it says anything about status classification, journeyman, trainee or otherwise. Can you show us that in the literal text of the provision? Mr. Marentette responded A. I don’t believe there is any specific language that says if you are at one hundred percent, you are in fact a journeyman. Thus, plaintiff concedes that his term “contractual journeyman Millwright” does not rest on any “specific language” of the agreement. Instead, he says the company creates this journeyman status when it exercises its right under the last paragraph of Section 3 to “grant wage increases at a faster rate.” A raise to a trainee of 100 percent of millwright rate, he says, acts to make the trainee a journeyman millwright. Since Section 3 does not bestow such authority on the company, it could not make Marentette a journeyman millwright. Plaintiff asserts he is supported in his claim of “contractual journeyman Millwright" status by two entries on his “Rate Card.” Plaintiff notes that the “Rate Card” lists him as a “Millwright Trainee” on 3/4/71, but “[o]n his next Rate Card entry the word Trainee was dropped and plaintiff was listed as ‘Millwright-Top-Rate.’ ” This argument assumes that under the “Skilled Trades Trainee Program Agreement,” FSW is empowered to vest journeyman millwright status on a trainee. Yet, as plaintiff testifies, there is no “specific language that says if you are at one hundred percent, you are in fact a journeyman.” Thus, it is circular to reason that because the “Rate Card” on 9/4/71 reads “Millwright-Top-Rate,” and on 3/6/72 reads “top rate millwright,” that he thereby achieved the status of journeyman millwright. As the district judge correctly held, “by merely being paid at a journeyman’s pay rate, the plaintiff does not become a journeyman.” While the plaintiff’s four years as a trainee would not qualify him as a journeyman millwright under his asserted first “way,” it is essential to examine his first “way” 1. Waiving his seniority rights to return to the Production Departments at the end of his fifth year of training; and then “to progress to the top of Journeyman's classification for which he is training by the end of the 6th year.” See supra at 609. A pertinent part of Section 3 Wages nullifies this asserted first “way” to become a journeyman millwright. It reads At the option of each individual Trainee who has been upgraded from the existing work force, at the end of the fifth year of his participation in the Trainee Program he may choose to waive any rights he has to exercise seniority in the Production departments and to progress to the top [rate] of Journeyman’s classification for which he is training by the end of the 6th year; or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. This language expressly permits a trainee to obtain “the top rate of Journeyman’s classification... by the end of the 6th year.” But, he does not thereby become a journeyman. Indeed, the next to the last paragraph of Section 4 Seniority concerns the seniority of any “Trainee [who] waives his production seniority at the end of the fifth year,” necessarily including trainees with six or more years. Section 4 states their “seniority shall be confined to the trainee group only for all purposes except shift preference.” Since Trainees with six or more years remain part of the “trainee group,” it is manifest that at the end of six years a trainee does not achieve journeyman status. Moreover, such six years to become a journeyman would be incompatible with the eight years of apprenticeship needed to become a journeyman required in the last clause of the second paragraph of Section 3 (this is the plaintiff’s second “way”), which provides or, the Trainee may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship and during this period retain the privilege of exercising his seniority in the Production departments in event of layoff. At oral argument, plaintiffs counsel contended that the case should be reversed and remanded to permit the receipt of parol evidence. The plaintiff says the term “Journeyman” is ambiguous, and surrounding circumstances or other extrinsic evidence should be considered in determining the meaning of “Journeyman” as used in the “Skilled Trades Trainee Program Agreement.” While the term journeyman is not defined in the CBA, it is determined that the term, as used, is not ambiguous. The capitalized term “Journeyman” appears nine times in the Skilled Trades Trainee Program Agreement Exhibit D to Contract of January 11, 1977. The term’s meaning becomes apparent from its use in the final paragraph of Section 7 General, which concludes Exhibit D Nothing contained herein shall be construed to limit the Company’s right to hire Journeymen at any time to fill such vacancies as may exist in its Skilled Trades classifications, nor shall the Company be required to place Trainees on the job prior to hiring of such Journeymen. The company’s reserved right to hire journeymen off the street implies a use of the term that has a meaning that is not dependent on the earlier paragraphs of Exhibit D. As part of a collective bargaining agreement between an employer and a UAW Local Union, it is concluded, absent some different contractual definition in the Local’s CBA, that the term is used with a meaning that coincides with the UAW International Constitution which requires eight years of apprenticeship to achieve journeyman status in the skilled trades. This conclusion is reinforced by Mr. Mar-entette’s testimony on how one becomes a journeyman under the International Constitution. As Local 174’s business agent for 13 years, he had the opportunity to become familiar with the International Constitution and the UAW’s practices. He was asked, “[Tjo'get a journeyman’s card, what do you have to do?” He answered A. There is a standard application form that you have to fill out and you take that to the Solidarity House with proof of employment in the trade and time in the trade. Q. What time in the trade is required? A. To obtain a journeyman’s card with the International, eight years is required unless you are on a bona fide apprenticeship, then it’s four. Plaintiff agrees that eight years experience under the UAW Constitution are needed for journeyman status and that the FSW Skilled Trades Trainee Program is not a bona fide apprenticeship. Therefore, Mar-entette’s four years as a skilled trades trainee do not qualify him as a journeyman. Plaintiff correctly states that the CBA does not expressly require that a journeyman millwright obtain a journeyman’s card from the International to qualify as a journeyman at FSW. Nevertheless, the CBA (Section 3 of the Skilled Trades Agreement) does demonstrate a congruence between the bona fide apprenticeship of eight years, required in the International Union’s Constitution, and Exhibit D, Section 3 Wages, which provides that a trainee “may choose to remain at the 99% rate schedule until completing his 8th year of apprenticeship." Plaintiff relies on several letters and memoranda from UAW representatives to support his claim that he is á “contractual journeyman Millwright.” On July 30, 1987 John Rucker, International Representative Region 1A, provided Charles Stewart and Frank Fish of the UAW Skilled Trades Department with a copy of the “Skilled Trades Trainee Upgrader Agreement” (FSW and Local 174) “and other documentation involved in Brother Marentette’s appeal.” Rucker asked them to review the documents and advise him “if [they] concur with [his] interpretation.” He stated, “I believe Marentette is a contractual journeyman millwright at the Federal Screw Works Unit of Local Union 174, UAW.” They responded “we have reviewed the documentation enclosed with your memo and concur with your interpretation....” The determination as to whether or not a contract is ambiguous is a decision for the court to make. Local 783, Allied Industrial Workers of America, AFL-CIO v. General Electric Corp., 471 F.2d 751, 757 (6th Cir.1973), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973). This court held, supra at 610-611, that the language in Exhibit D to the collective bargaining agreement is clear and unambiguous. Likewise, the interpretation of an unambiguous contract is a matter of law for the court, and a party’s interpretation is not permissible evidence. Kassin v. Arc-Mation, Inc., 94 Mich.App. 520, 288 N.W.2d 413 (1979). Moreover, the International Union was not a party to the collective bargaining agreement, and International Representatives Rucker, Stewart and Fish had no part in the negotiation of the FSW-Local 174 “Skilled Trades Trainee Program Agreement.” Thus, in any event, their “interpretations” are plainly not admissible. Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 737 & n. 11 (9th Cir.1980). Notwithstanding, item (e) of the items of “facts” listed in Rucker’s letter deserves discussion. Rucker states Employees who were in the Training Program at the same period as Marentette are now considered as Journeymen and are working as millwrights. While this statement would not be admissible evidence, Mr. Marentette’s testimony on this subject may be admissible evidence. Marentette was interrogated by Local 174’s counsel Q At the time this offer was made to you, do you know if the same offer was made to anyone else in the plant? A Not at the same time it wasn’t. It has been made to several others. Q Since then you mean? A Yes. Q Who were the others that have done that since then? A It was made to a plumber named John Ball, Chuck Hurworth, the millwright, Joe Marko, the electrician, and Ray Beyer, a millwright. Q Is that all you can think of? A That’s all I can think of now. Questioned further as to the number of years when these employees were “given one hundred percent,” Marentette answered that John Ball had “[l]ess than five”; Joe Marko was “asked prior to five years” and Ray Beyer “also was asked prior to five years.” Chuck Hurworth, asked at 5 years, declined. Later, “Chuck Hurworth was asked to take the leader’s job in the maintenance department and he accepted that and they gave him a hundred percent.” The company has not offered any evidence to explain or refute this testimony of Marentette. Yet, Marentette’s testimony as to these four other FSW employees adds no new element to his testimony about his own case. He says each received 100% pay before the end of five years. Thus, it still comes back to whether, in exercising the power under Section 3, “to grant wage increases at a faster rate than spelled out above” the company thereby makes the employee a “contractual journeyman.” Plaintiff insists Where it says one hundred percent. If you obtain one hundred percent of the pay rate, you are then a contractual journeyman. But neither the last paragraph of Section 3, nor any other language of the “Skilled Trades Trainee Program Agreement,” empowers the company to create a “contractual journeyman millwright.” While the company, by the collective bargaining agreement, is not given the power to create a “contractual journeyman,” it may be that the company and the Local Union could have agreed to a procedure to create a “contractual journeyman.” At least, in Page v. Curtiss-Wright Corporation, 332 F.Supp. 1060 (D.N.J.1971), the collective bargaining agreement between the corporation and Local 669-UAW defined “journeyman” to include an employee known as a “Contractual Journeyman.” See id., at 1062 n. 3. It is enough to observe that the “Skilled Trades Trainee Program Agreement” between FSW and Local 174 makes no similar provision for a “contractual journeyman.” For the foregoing reasons, it is concluded that the district court properly granted FSW’s Motion for Summary Judgment as to Count II of plaintiff’s Complaint. B. The district court also granted summary judgment on Count I against Local 174. In that count plaintiff asserts that the Local Union breached its duty of fair representation “[i]n withdrawing plaintiff’s grievance.” In his deposition testimony, Marentette concedes that the union “took the position that [he] be returned to the classification [journeyman millwright] in support of the grievance....” Marentette acknowledges that the union maintained this position through the first three steps of the grievance procedure. When asked what happened at the fourth step of the grievance procedure, Marentette replied, “That was when the Union withdrew the grievance.” Plaintiff Marentette was then asked, “Why did they withdraw it, to your knowledge?” Marentette answered, “I got a piece of paper that said [the union] withdrew it because it had no merit.” Before considering the circumstances under which Local 174 withdrew the grievance at the fourth step (arbitration was the next step), it is pertinent to cite the holding of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), regarding the “established” duty of fair representation to its members. Vaca says this about a local union’s refusal to take a grievance to arbitration: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or press 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 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.... If the

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"?

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

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

INTERSTATE COMMERCE COMMISSION, Appellant, v. ATLANTIC COAST LINE R. CO. et al., Appellees. No. 20485. United States Court of Appeals Fifth Circuit. July 8, 1964. Donald C. Lehman, Asst. U. S. Atty., Jacksonville, Fla., Leonard S. Goodman, Atty., I.C.C., Robert W. Ginnane, Gen. Counsel, I.C.C., Washington, D. C., for appellant. Phil C. Beverly, Jacksonville, Fla., J. Edgar McDonald, New York City, Urchie B. Ellis, Richmond, Va., for appellees. John F. Donolan, John M. Cleary, Washington, D. C., Harold E. Spencer, Chicago, Ill., amici curiae. Before TUTTLE, Chief Judge, and POPE and BROWN, Circuit Judges. Of the Ninth Circuit, sitting by designation. JOHN R. BROWN, Circuit Judge. The question in this case — arising for the first time in the 75-year operation of the Interstate Commerce Act — is whether a carrier may sue to set aside a reparation award of the Commission under § 16 (1) by a suit under § 17(9), 28 U.S.C.A. §§ 1336, 1398, 2321-2323, or must confine its challenge as a defense in the Shipper’s suit when, where and as brought under § 16(2). The District Court upheld the right. The ICC, joined by an array of shipper interest's, spiritedly challenges the holding. We think the attack is unavailing and affirm. The facts are very simple. In response to the complaint of the Shipper, the ICC awarded reparations in the amount of $8,889.76 with interest, for unjust and unreasonable rates collected for phosphate movements from Florida to Illinois during the period April 10, 1945, to December 31, 1950. The order called for payment on or before August 28, 1961, the effective date of compliance, Missouri Pacific R. Co. v. Austin, 5 Cir., 1961, 292 F.2d 415, 418-419. On September 6, 1961, the Carrier-appellees filed a suit in the Middle District of Florida, the venue district of Atlantic Coast Line to set aside the order. Long thereafter, on August 22, 1962, the Shipper filed suit against the Carrier and other railroads under § 16(2) in the Southern District of New York for the amount of the award with interest and, of considerable importance here, attorney’s fees. The Court below overruled the ICC’s motions to dismiss which asserted the exclusive method of review is under § 16(2). Thereafter, on the merits, it held the award and order invalid, primarily because of the statute of limitations. 213 F.Supp. 199. The ICC asserts that the sole review of an order granting reparations under § 16(1) is that provided in § 16(2). The Carrier, on the other hand, insists that § 17(9) expressly authorizes “a suit to enforce, enjoin, suspend, or set aside” an order, thus setting in train the jurisdictional-procedural provisions of 28 U.S. C.A. §§ 1336, 1398, 2321, 2322, and 2323. The ICC’s approach is a dual one. It contends, first, that construction of all of the statutes together manifests a congressional purpose to restrict review of a reparations award to the Shipper’s suit under § 16(2). Next, both as a part of that argument, and independent of it, the ICC further asserts that there is no reviewable final “order” as called for in §§ 17(9), 1336 or 1398. These arguments stress the non-self-executing aspects of a reparation award. Since they are “for the payment of money,” the Carrier is not bound to comply under the imminence of a mandatory injunction suit brought by the ICC or the United States. § 16(12), 49 U.S.C.A. § 16(12). Emphasizing that § 16 (2) provides only that “the findings and order of the commission shall be prima facie evidence of the facts therein stated,” the ICC urges isolated excerpts from early opinions of the Supreme Court to suggest that it is really not an order at all. Thus Mills v. Lehigh Valley R. R. Co., 1915, 238 U.S. 473, 482, 35 S.Ct. 888, 892, 59 L.Ed. 1414, had this to say of § 16 (2): “The statutory provision merely established a rule of evidence. It leaves every opportunity to the * * * [Carrier] to contest the claim.” But we have no doubt that this award has all of the characteristics of finality so far regarded as essential to court review under statutes comparable to those here involved. Rochester Tel. Corp. v. United States, 1939, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; Columbia Broadcasting System v. United States, 1942, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Frozen Food Express v. United States, 1956, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910; United States v. Storer Broadcasting Co., 1956, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; El Dorado Oil Works v. United States, 1946, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. An award-order is, first, administratively final. Nothing further remains to be done by the ICC. It is not a declaration of consequences dependent on further, future action. Rather, it is positive and presently operative. It declares, first, the violation of the Act (unreasonable, unjust rates, and the like) and then finds the amount of the Shipper’s claim. On the two findings, it directs the payment of the award. And as United States v. I. C. C., 1949, 337 U.S. 426, 432-433, 69 S.Ct. 1410, 93 L.Ed. 1451, and Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 205, 80 S.Ct. 1131, 4 L.Ed.2d 1165, made clear, finality for the purposes of review is not to be determined solely by the terms of the order, but by whether such order “if upheld” forecloses a right or imposes an obligation. Assuming that a § 16(2) suit is necessary for the Shipper to coerce payment, the resulting court judgment is to “uphold” the award, to hold it valid. In that judicial result, the administrative proceedings have not in any sense been superseded. The critical finding of a violation of the Act as an essential ingredient to recovery rests wholly and entirely upon the administrative decision of the ICC, not independent court determination, since recovery by the Shipper assumes that the primary jurisdiction aspect has withstood the restricted review, see note 12, supra. Bearing in mind that the problem here is the determination of the statutory mechanism for review in reparation award order cases generally, not merely the machinery which would satisfy this particular case, we perceive additional factors giving final operative effect to the award-order no matter what happened in the Shipper’s § 16(2) suit. An award-order is in two parts, (1) the determination of violation of statutory policies, unjust, unreasonable rates, discriminatory practices, or the like, and (2) specific damage to the shipper-complainants. So long as element (1) is outstanding and not set aside, it affords the basis for a § 9 suit, 49 U.S. C.A. § 9, by a shipper similarly situated without his first going through a reparation proceeding. And in A. J. Phillips v. Grand Trunk W. Ry. Co., 1915, 236 U.S. 662, 35 S.Ct. 444, 445, 59 L.Ed. 774, and many others, the Court has held that a person not a party complainant to a proceeding before the ICC may, on the general finding that the rate was unjust and unreasonable, bring his-independent suit in court. Of the administrative finding that the rates were unjust and unreasonable, the Court said the “finding * * * was general in its operation, and inured to the benefit of every person that had been obliged to pay the unjust rate. Otherwise those who filed the complaint, or intervened during the [Commission] hearing, would have secured an advantage over the general body of the public, with the result that the order of the Commission would have created a preference in favor of the parties to the record, and would have destroyed the very uniformity which that body had been organized to secure.” 236 U.S. 662, at 665, 35 S.Ct. 444, at 445. In addition, there is a substantial indication that in the day-today operations of the ICC in the fabrication and building of its own formidable body of transportation law, reparation order-awards announcing principles are regarded as precedents. Thus the opinion reports of the ICC here, note 2, supra, until set aside by a direct proceeding, remain outstanding precedents on the question of the statute of limitation notwithstanding the possibility that in the § 16(2) suit in the Southern District of New York a jury might bring in a verdict for the Carrier. Even 100% success in the § 16(2) suit leaves the Carrier faced with unsatisfactory law for all to use and unsatisfactory fact findings for all shippers to use. Symmetry also suggests a congressional purpose to allow review of an award-order granting reparations under § 17(9). It is unquestioned that if the Commission denies the Shipper’s reparation complaint, review may properly be had under §§ 1336, 1398. Cf. United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. And in a § 9 suit, 49 U.S.C.A. § 9, the administrative determination of primary jurisdiction elements on a referral to the ICC by a Court is reviewable under §§ 17(9), 1336, 1398. Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. Against this massive structure of injunctive reviewability, the Commission’s thesis comes down to the assertion that Congress meant to allow court review of the grant of an award-order granting reparation only in the shipper’s § 16(2) suit. In so doing, stress is laid on the procedural advantages given the shipper —(1) freedom from court costs, (2) attorney’s fees if successful, (3) choice of venue, and (4) relief from the burden of making out a prima facie case by introducing in evidence the administrative findings and order. Urged as a fitting, railroad analogy is the statutory mechanism for awards under the Railway Labor Act, 45 U.S.C.A. §§ 151, 153, First (p). Under this provision, an employee who has obtained an award of the National Railroad Adjustment Board may file suit in the District Court for enforcement if the carrier does not comply with the agency order. The order is prima facie evidence of the facts therein stated. In New Orleans Public Belt R. Commission v. Ward, 5 Cir., 1950, 182 F.2d 654, following Washington Terminal Co. v. Boswell, 1941, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by an equally divided court, 1943, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694, we held that a carrier could not circumvent this statutory right of the employee by resorting to a declaratory judgment suit. We think the resemblance is superficial. We would think also that to import into the highly specialized aspects of carrier regulation and the statutory scheme of determination and review especially contrived for it, the cumbersome and frequently difficult distinctions between major and minor, between court decision and Adjustment Board decision, between Adjustment Board and Mediation Board, between Court and Mediation Board will hinder, not' help, in achieving judicial review which is clearly guaranteed under the Administrative Procedure Act. 5 U.S.C.A. §§ 1009, 1001(d), (f), and (g). Many reasons may be briefly summarized. The actions of the Railway Adjustment Board are not subject to the Administrative Procedure Act. The provision of 45 U.S.C.A. § 153, First (p) expressly invests the Court with power to “enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the * * * Board.” At the same time there is no other statutory grant of review as in § 17(9). An Adjustment Board proceeding resulting in a money award carries forward no elements of primary jurisdiction with limited, restricted judicial review. Such an award is open for full review. Hodges v. Atlantic Coast Line R. R. Co., 5 Cir., 1962, 310 F.2d 438. Probably most important, that structure is hardly a model to be copied. The procedure invoked by the Carrier here is fair and efficient. Brought in the same single Judge District Court in which the Shipper’s complaint would be filed complaining of a denial of a § 16(1) reparation award or to review an unsatisfactory finding in a court referral proceeding upon which to base a § 9 suit, there may be a determination once and for all of the underlying validity of the Commission’s findings with respect' to violations of the Act (unjust, unreasonable rates, discriminatory practices, etc.). If the order vis-avis the ICC and the Carrier fails to pass muster and is therefore “not in accordance with law,” 5 U.S.C.A. § 1009(e), it may then be set aside. No one, whether Carrier or Shipper, will thereafter be subjected to the expense of useless litigation in numerous courts where separate § 16(2) shipper suits have been filed. More important, this assures some symmetry in the construction and maintenance of a national transportation policy. In the injunction suit, §§ 17(9), 1336, 1398, the United States and the ICC are parties. The Attorney General and the General Counsel of the Commission are directly and immediately responsible for the conduct of that litigation and the advoeative assertion of contentions deemed essential in the public interest. This is all the more essential where, as is quite frequent, there is an outright clash between the executive departments of the Government, the Attorney General, and the Commission. See United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. In contrast, of course, in the Shipper’s § 16(2) suit neither the Commission nor the Government is a party. Intervention, whether permissive or as a matter of right, is something less than satisfactory especially with the pendency of a number of shipper suits in a number of jurisdictions. Without intervention, the sole spokesman in behalf of the ICC’s order is the private party seeking partisan relief opposed by formidable, experienced, competent counsel for the Carrier. We cannot believe that these important' considerations were derailed by Congress out of its statutory desire to accord to a Shipper some procedural benefits. Indeed, with respect' to the element of shipper damage, it is entirely too soon to state that a Shipper may not under appropriate circumstances obtain the benefit of all, or a part, of these statutory advantages by intervening in the injunction proceeding. And considering the great flexibility open to an equity court, the conclusion reached here that an injunction suit' may be maintained by the Carrier does not force that Court to take on the adjudication of all of the damage element claims of numerous shippers. Wide latitude would be allowed to fashion appropriate, preliminary machinery by which shipper suits could be filed in appropriate venue districts and stayed pending ultimate determination of the injunction proceeding. A decree sustaining basic validity would likely leave for the individual § 16(2) suits only the limited issue of money damage, presumably a relatively simple matter for court or jury determination with the Shipper armed, as he is, with the working presumption from the prima facie case. The District Court was, therefore, correct in overruling the motion to dismiss, in sustaining the right of judicial review in that Court under §§ 1336, 1398, and in rejecting the contention that review had to be in the § 16 (2) suit pending in New York. Affirmed. . Thomson Phosphate Company. . Thomson Phosphate Co. v. Atlantic Coast Line R.R., 1953, 291 ICC 1, 1954, 293 ICC 369, 1958, 303 ICC 25. Not surprisingly, one of the Carrier’s defenses is that in this long span of years even an impersonal corporate person had expired. . By an agreed statement of the case on appeal, F.R.Civ.P. 76, the appeal presents only the question of jurisdiction. No attack is made on the District Court’s decision on the merits. . 49 U.S.C.A. § 16(1): “If, after hearing on a complaint made as provided in section 13 of this title, the commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” . Section 16(2) of the Interstate Commerce Act, 49 U.S.C.A. § 16(2) provides: “If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” . 49 U.S.C.A. § 17(9): “(9) When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” . 28 U.S.C.A. § 1336: “Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.” . 28 U.S.C.A. § 1398: “Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.” . 28 U.S.C.A. § 2321: “The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. “The orders, writs, and process of the district courts may, in the cases specified in this section and in the cases and proceedings under sections 20, 23, and 43 of Title 49, run, be served, and be returnable anywhere in the United States. . 28 U.S.C.A. § 2322: “All actions specified in section 2321 of this title shall bo brought by or against the United States.” . 28 U.S.C.A. § 2323: “The Attorney General shall represent the Government in the actions specified in section 2321 of this title * * * . “The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party. * * * ” . At the same term the Court stated in Meeker & Co. v. Lehigh Valley R. R. Co., 1915, 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644: “This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. At most, therefore, it is merely a rule of evidence. It does not abridge the right of trial by jury, or take away any of its incidents.” Its sweeping assurance of a jury trial and “contestation of all the issues, * * * of fact” must now be read with considerable reservation. All acknowledge that under the doctrine of primary jurisdiction the § 16(2) court may not independently determine the merits of the unjustness or unreasonableness of rates, discriminatory practices, and the like. We may assume, without deciding, that review of such “administrative” matters subject to the expertise of the ICC in a § 16(2) suit is no less than in one under §§ 1336, 1398. It is clear that it is not greater. New Process Gear Corp. v. New York Central R. R. Co., 2 Cir., 1957, 250 F.2d 569, 572, cert. denied, 1958, 356 U.S. 959, 78 S.Ct. 996, 2 L.Ed.2d 1066, citing United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Mitchell Coal & Coke Co. v. Pennsylvania R. R. Co., 1913, 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Glens Palls Portland Cement Co. v. Delaware & Hudson Co., 2 Cir., 1933, 66 F.2d 490, cert. denied, 1933, 290 U.S. 697, 54 S.Ct. 132, 78 L.Ed. 599. . The dissenting opinions in Pennsylvania R. R. Co. v. Day, 1959, 360 U.S. 548, 554, 79 S.Ct. 1322, 3 L.Ed.2d 1422; Union Pacific R. R. Co. v. Price, 1959, 360 U.S. 601, 617, 79 S.Ct. 1351, 3 L.Ed.2d 1460, pointing up serious constitutional questions emphasize what they describe as the one-sided nature of judicial review: the employee loses, he has no right of review whatsoever; the employee wins, the carrier loses, the carrier has unlimited review on facts and law. . United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. . The ICC’s contention that the trial court, having jurisdiction, should nevertheless have declined to exercise it for eauitable considerations is without merit.

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

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

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

James Howard BROYHILL, Appellant, v. Zeb A. MORRIS, Jr., Solicitor, 15th Solicitorial District of the State of North Carolina; and LeRoy Reavis, Sheriff of Iredell County, State of North Carolina, Appellees. No. 12596. United States Court of Appeals Fourth Circuit. Argued Oct. 31, 1968. Decided March 20, 1969. McElwee & Hall, North Wilkesboro, N. C. (John E. Hall), and Moore & Rousseau, North Wilkesboro, N. C. (Larry S. Moore), North Wilkesboro, N. C., for appellant. Raymer, Lewis & Eisele, Statesville, N. C. (Douglas G. Eisele). Battley & Frank, Statesville, N. C. (Jay F. Frank), Statesville, N. C., and Ralph Moody, Deputy Atty. Gen., State of North Carolina, Raleigh, N. C., for appellees. Before BRYAN and WINTER, Circuit Judges, and McMillan, District Judge. MeMILLAN, District Judge: James Howard Broyhill was tried under a federal indictment for bank robbery with firearms in violation of 18 U.S.C., § 2113, and was acquitted by a jury. The defendants, prosecuting authorities of North Carolina, have now taken out an indictment and propose to try him under North Carolina General Statutes 14-87 for robbery with firearms based on the same evidence. Broyhill brought this suit seeking injunction against the pending state prosecution, alleging that this prosecution violates the Fifth Amendment prohibition against double jeopardy which he contends is made applicable to the states through the Fourteenth Amendment. Judge Eugene Gordon in the Middle District of North Carolina dismissed the suit, expressing the opinion, “relying primarily upon the authority of Bartkus v. Illinois, 359 U.S. 121, [79 S.Ct. 676, 3 L.Ed.2d 684] (1959), that the plaintiff has failed to state a claim upon which relief can be granted.” The plaintiff appealed. In considering the appeal, as this Court said in Baines v. City of Danville, 337 F.2d 579, 587 (4th Cir., 1964), “we start, as we must, with Title 28 U.S.C.A. § 2283,” the anti-injunction statute. On the face of it that statute, saying that United States courts “may not grant an injunction to stay proceedings in a State court * * prohibits the use of injunction as a remedy against state court proceedings. Since injunction is the only remedy sought, § 2283 might appear to end the inquiry. However, in addition to having certain express exceptions not controlling here, § 2283 has been made the subject of numerous other exceptions through the years; now and then it has been disregarded; and its current status is by no means clear. Although it is possible that § 2283 bars issuance of an injunction, we do not rest final decision on that basis. Under the decisions of the Supreme Court as we read them, it is appropriate as a necessary part of deciding whether § 2283 applies, to inquire into the nature and effects of the state action complained of. It makes a difference whether the right allegedly invaded has constitutional protection and whether other and adequate state remedies exist. We therefore examine the complaint under the commission laid down in Sovereign Camp Woodmen of the World v. O’Neill, 266 U.S. 292, 298, 45 S.Ct. 49, 51, 69 L.Ed. 293 (1924), where it was said that § 2283: “ * * * does not deprive a district court of the jurisdiction otherwise conferred by the federal statutes, but merely goes to the question of equity in the particular bill; making it the duty of the court, in the exercise of its jurisdiction, to determine whether the specific case presented is one in which relief by injunction is prohibited by this section or may nevertheless be granted.” (Emphasis added.) Because it likewise appears from the results of the decided cases that a court has to look to the results complained of before deciding whether to abstain from equitable relief, we also carry forward into our consideration of the merits any consideration of abstention on grounds of comity from interference in the state proceedings. In order to reach the merits of the requested injunction we must therefore proceed upon the assumption that neither the apparent prohibition of § 2283 nor the indistinct shapes of the absention principles should bar a United States court from inquiry into the state action complained of. All three questions — § 2283, abstention, and the ultimate injunction decision — depend for their answer on the same set of facts. On the merits, the complaint recites a single alleged wrong — double jeopardy. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) held that a state could with constitutional propriety prosecute a man under state law although he had been acquitted of a federal offense arising out of the same acts. If it has continuing vitality, Bartkus is dis-positive. The Supreme Court has granted certiorari in a case involving the question whether the double jeopardy clause of the Fifth Amendment is applicable to the states. However, decision of that question by the Supreme Court may not determine what this court should do with plaintiff’s request for injunction. If Bartkus is not overruled, the invalidity of the plaintiff’s sole alleged basis for injunction may of course be confirmed. However, if Bartkus is overruled, we will still face the question, decided in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), whether the federal court under the circumstances should enjoin an unconstitutional prosecution or leave the constitutional decision to the state courts. Even if the district court possessed power to enjoin the pending state prosecution, notwithstanding 28 U.S.C., § 2283, this is not an appropriate case for injunctive relief. There is no allegation or showing here and no likelihood inherent in the circumstances that plaintiff’s state remedies, including a state court defense of double jeopardy, are inadequate. This is a single, previously pending prosecution. It was preceded by no threats. No misuse of the statute is charged. It does not affect free speech; the charge is bank robbery. The statute is not attacked for unconstitutionality; it is specific, not vague; narrow, not broad. A single criminal prosecution will provide an adequate forum and adequate procedures for raising all constitutional issues. It is not alleged that North Carolina courts are a poor forum to litigate constitutional questions. No oppression, bad faith or harassment is alleged. Lack of genuine expectation by the state that there will be a conviction is not alleged; in fact, a genuine apprehension of probable conviction may be plaintiff’s primary problem. If North Carolina commits error, complete remedy by appeal or certiorari is available. In short, none of the considerations which moved courts to interfere with state action in cases like Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) ; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ; and Baines v. City of Danville, 321 F.2d 643 (4th Cir., 1963), are present here. Aside from the bar of Bartkus, plaintiff simply has not shown threat or likelihood of irreparable harm, nor any other facts calling for a federal court to intervene by injunction in a routine application of a clear state criminal law. Affirmed. . G.S. 14-87: “Any person * * * who, * * * with the use or threatened use of any firearms or other dangerous weapon, * * * unlawfully takes or attempts to take personal property from another or from any * * * banking institution * * ®, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than five nor more than thirty years.” The North Carolina statute is somewhat broader than the federal statute, but it is alleged and appears clear that North Carolina has indicted the appellant for doing the same acts that formed the basis of the federal prosecution. The fact that the North Carolina statute would, for example, cover the crime if the robbery had been from a visitor in the bank whereas the federal statute would appear to cover the crime only if the robbery was from the bank itself should make no difference here. . See the comprehensive discussion and analysis of authorities in Baines v. City of Danville, 337 F.2d 579, at pages 587 through 595 (4th Cir., 1964), and the other and later forms of treatment accorded § 2283 in, for example, Dombrowski v. Pfister, 380 U.S. 479, 484, 499, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and Cameron v. Johnson, 381 U.S. 741, 742, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965), 390 U.S. 611, 613, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). . The effect of § 2283 is especially uncertain in cases where relief is sought, as here, under the Civil Rights Act, 42 U.S.C.A., § 1983. The most recent pronouncements of the Supreme Court leave open the question whether § 1983 represents an explicit statutory exception to § 2283. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and Cameron v. Johnson, 381 U.S. 741, 742, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965), 390 U.S. 611, 613, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) ; but see Baines v. City of Danville, 337 F.2d 579 (4th Cir., 1964). In the view we take of the instant case, which is not predicated upon the bar of § 2283, we find it unnecessary to effect a reconciliation between § 2283 and § 1983. . Benton v. Maryland, 393 U.S. 994, 89 S.Ct. 481, 21 L.Ed.2d 460 (cert. in forma pauperis granted June 17, 1968).

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

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

CHARLES SCHNEIDER & CO., INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. FUTURE FOAM, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. CHARLES, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. CENTRAL WOODWORKING CO. INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Nos. 73-1798 to 73-1802. United States Court of Appeals, Eighth Circuit. Submitted May 13, 1974. Decided July 10, 1974. Rehearing Denied Aug. 19, 1974. Joel Davis, Omaha, Neb., for appellants. Louis A. Bradbury, Atty. Tax Div., Dept, of Justice, Washington D. C., for appellee. Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge. TALBOT SMITH, Senior District Judge, E¡ tion. ¡tern District of Michigan, sitting by designa- VAN OOSTERHOUT, Senior Circuit Judge. The taxpayer corporations in the above-entitled cases, which were consolidated in the Tax Court and here, have taken timely appeals from the decision of the Tax Court determining deficiency income tax liability against Charles Schneider & Co., Inc. (C. S. & Co.), for the taxable years ending June 30, 1966, 1967 and 1968, in the amounts of $23,512.40, $15,333.42 and $21,721.05 respectively, and determining income tax deficiency against Future Foam, Inc., for the taxable years ending August 31, 1966, 1967 and 1968, in the amounts of $18,130.17, $3,475.46 and $7,365.58 respectively. The Tax Court’s opinion filed June 18, 1973 is reported at 32 TCM 553 (1973). Decision was entered in accordance with the opinion on August 22,1973. This appeal followed. Many issues involved in this litigation have been resolved and are no longer in controversy. Taxpayers in their brief challenge the Tax Court’s determination that under the facts of this case Charles, Inc., was not entitled to file a consolidated return with its subsidiary Chemical Corporation of America. Such issue was specifically abandoned by taxpayers on oral argument. In any event, the decision of the Tax Court on the issue is entitled to be affirmed on the basis of the Tax Court’s opinion. The issue before us is whether taxpayers C. S. & Co. and Future Foam, Inc. , are entitled to ordinary and necessary business expense deductions under § 162(a)(1) I.R.C.1954 for the compensation paid their chief executive officers for the years ending in 1966, 1967 and 1968, in excess of the amount which the Tax Court found to be reasonable compensation for services rendered to the corporations. ****More specifically, the issue is whether the Tax Court’s determination of the amount of executive compensation paid by C. S. & Co. and Future Foam, Inc., which is deductible as a reasonable expense, is clearly erroneous. We hold, that the Tax Court’s decision is supported by substantial evidence and is not clearly erroneous and affirm the judgment. The record in this case is long. Much of the evidence is stipulated. Evidence was offered in the Tax Court by both parties. Many exhibits were received in evidence. The pertinent evidence is fairly set out in considerable detail in the Tax Court’s opinion. An attempt to set out all of the facts would unduly prolong this opinion. We shall briefly summarize the basic facts. Taxpayers C. S. & Co., Future Foam, Inc., Charles, Inc., and Central Woodworking Co., Inc., are all active in various aspects of the furniture and upholstering manufacturing business at Council Bluffs, Iowa. Charles Schneider played the principal part in organizing and developing such corporations. His efforts contributed significantly to the successful operation of the corporations. During the tax years here in controversy all of the stock in C. S. & Co., 60% of the stock in Future Foam, Inc., 50% of the stock in Central Woodworking Co., Inc., and possibly all of the stock in Charles, Inc. was owned by Charles Schneider. Schneider, after substantially completing a law school course and serving in World War II, started a furniture and upholstery business about 1946. In 1954 this business was incorporated as C. S. & Co. with Schneider as president and his brother-in-law, Leon Summer, as vice-president. Summer became president in 1963 and assumed active management. Summer had an option to purchase C. S. & Co. stock which he never exercised. Schneider at all times owned all of the corporate stock and maintained an active role in the company’s affairs. In 1963 an agreement was entered into providing a basic salary of $351.00 per week for Summer and $230.00 per week for Schneider, plus bonuses to be computed as follows: Bonus No. 1. If there was sufficient net income Three-fourths of 1% of annual net sales divided equally between Schneider and Summer. Bonus No. 2. After deductions from net profits for: (a) Schneider’s and Summer’s salaries and No. 1 bonuses. (b) 2% of net sales for retained earnings; (c) federal income taxes; (d) state income taxes; remainder to be divided equally between Schneider and Summer. The amount of compensation paid by C. S. & Co. based on basic salaries and bonuses No. 1 and No. 2 for the fiscal years ending in 1966, 1967 and 1968 was $65,104.94, $59,052.98 and $65,000.00 to Schneider and $74,414.50, $66,357.95 and $74,089.36 to Summer. Bonus No. 2 provided the major portion of the compensation paid to the executives. It is undisputed that C. S. & Co. has never paid a dividend. With respect to each of the taxable years here involved, the Commissioner disallowed deductions to C. S. & Co. for compensation paid Schneider in excess of $35,000 and for compensation paid Summer in excess of $50,000. The Tax Court found and determined that for each of the years involved salaries paid by C. S. & Co. to Schneider in excess of $40,000 and to Summer in excess of $60,000 would be unreasonable and hence not allowable as a business expense deduction. Future Foam, was organized by Schneider who held all of its stock until 1965 when he sold 20% of the stock to Grassman and a similar amount to Friedman, all pursuant to a stock option. Grassman and Friedman had been with Future Foam since about 1960 and had put in long hours and capable services in building up the company. Grassman played a major part in developing a successful foam which the company manufactured and sold. Friedman was president of the company and Grassman was vice-president. In 1963 an agreement was entered into to pay Schneider a basic salary of $150.00 per week and Grassman and Friedman each $175.00 per week. Additionally, under Bonus No. 1 Friedman and Grassman were to divide % of 1% of net sales. Bonus No. 2 was in substance the same as the C. S. & Co. Bonus No. 2 with division to be made equally among Schneider, Friedman and Grassman. Pursuant to this arrangement for the fiscal year ending August 31, 1966, Friedman and Grassman each received compensation of $80,176.00 ($61,807.00 of which was based on Bonus No. 2), and Schneider received $45,000.00. Schneider received $45,780.00 in the fiscal year 1967. The Commissioner disallowed Future Foam a deduction for compensation paid Grassman and Friedman in excess of $50,000 during the fiscal year ending August 31, 1966, and compensation paid Schneider for the fiscal years 1966 and 1967 in excess of $35,000.00 per- year. The Tax Court raised the allowable deduction for compensation paid Grassman and Friedman to $65,000.00 and raised the allowable deduction for salary paid Schneider to $40,000.00 for the years 1966 and 1967. Section 162(a)(1) of the Internal Revenue Code of 1954 permits a taxpayer to deduct “a reasonable allowance for salaries or other compensation for personal services actually rendered” as ordinary and necessary business expenses. The determination of what is reasonable compensation is a factual one to be ascertained from all the facts and circumstances of a case, to which the clearly erroneous standard applies. Charles McCandless Tile Serv. v. United States, 191 Ct.Cl. 108, 422 F.2d 1336, 1338 (1970); Pacific Grains, Inc. v. Commissioner, 399 F.2d 603, 605 (9th Cir. 1968). Decisions of the Tax Court are reviewable in the same manner and to the same extent as decisions of the district courts sitting in civil actions without a jury. This court is bound by the factual determinations of the Tax Court unless they are found to be clearly erroneous or are unsupported by substantial evidence upon the record as a whole. 26 U.S.C. § 7482(a); Commissioner v. Duberstein, 363 U.S. 278, 290-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Byrne v. Commissioner, 449 F.2d 759, 760 (8th Cir. 1971); Commissioner v. Riss, 374 F.2d 161, 166 (8th Cir. 1967). Several factors to be considered in determining reasonableness of compensation have been mentioned by the courts. Such factors include the employee’s qualifications; the nature, extent and scope of the employee’s work; the size and complexities of the business; a comparison of salaries paid with the gross income and the net income; the prevailing general economic conditions ; comparison of salaries with distributions to stockholders; the prevailing rates of compensation for comparable positions in comparable concerns; the salary policy of the taxpayer as to all employees; and in the case of small corporations with a limited number of officers the amount of compensation paid to the particular employee in previous years. Mayson Mfg. Co. v. Commissioner, 178 F.2d 115, 119 (6th Cir. 1949). See also Hammond Lead Products, Inc. v. Commissioner, 425 F.2d 31, 33 (7th Cir. 1970), quoting 4A Mertens, Law of Federal Income Taxation, § 25.69 at 282 (1966); Irby Constr. Co. v. United States, 154 Ct.Cl. 342, 290 F.2d 824, 826 (1961). In the instant case, the petitioners strenuously advocate that because the compensation paid to their employees was paid pursuant to contingent compensation agreements, the reasonableness of which must be measured by conditions existing at the time of their execution, the compensation must necessarily have been reasonable. Such agreements were incentives to the officers to increase the profits, as shown by the later success of these companies. Thus, the payments were reasonable compensation to reward these executives for the successful operation of their respective companies. Support for their position may be found in the language of the regulations. Treasury Regulation § 1.162-7(a) provides: •* * * -X- * *- (2) The form or method of fixing compensation is not decisive as to de-ductibility. . . . Generally speaking, if contingent compensation is paid pursuant to a free bargain between the employer and the individual made before the services are rendered, not influenced by any consideration on the part of the employer other than that of securing on fair and advantageous terms the services of the individual, it should be allowed as a deduction even though in the actual working out of the contract it may prove to be greater than the amount which would ordinarily be paid. (3) . . . The circumstances to be taken into consideration are those existing at the date when the contract for services was made, not those existing at the date when the contract is questioned. However, Treasury Regulation § 1.162-7(a) (3) limits this by providing that “[i]n any event the allowance for the compensation paid may not exceed what is reasonable under all the circumstances. It is, in general, just to assume that reasonable and true compensation is only such amount as would ordinarily be paid for like services by like enterprises under like circumstances.” Thus, even if the conditions of § 1.162-7(a) (2) are met, a fact finder could still find a contingent compensation • agreement to be unreasonable under all the facts and circumstances of a particular case; compensation paid pursuant to such an agreement is not inherently reasonable. Generally speaking, the fact that compensation is based on a contingent compensation agreement, if fixed pursuant to a free bargain, is an element tending to show reasonableness. Bank of Palm Beach v. United States, 476 F.2d 1343, 1348 (Ct.Cl.1973); Irby Constr., supra, at 827. However, where the corporation is controlled by the very employees to whom the compensation is paid, special scrutiny must be given to such salaries, for there is a lack of arm’s length bargaining as required by Treasury Regulation § 1.162-7(a) (2). Hammond Products, supra, at 33; Heil Beauty Supplies, Inc. v. Commissioner, 199 F.2d 193, 194 (8th Cir. 1952); Hampton Co., T. C. Memo 1964-150, 23 CCH Tax Ct. Mem. 899, 902 (June 1, 1964). Cf. Miller Box Co. v. United States, 488 F.2d 695, 707 (5th Cir. 1974). In these circumstances payments under these arrangements may be distributions of earnings rather than payments of compensation for services rendered; even if they are reasonable, they would not be deductible. Irby Constr., supra, at 827. A bonus-type contract which is reasonable with a non-stockholder employee may be unreasonable if made with a large stockholder, since the incentive of the bonus would presumably not be needed to call forth the stockholder’s best efforts. Id.; Northlich, Stolley, Inc. v. United States, 177 Ct.Cl. 435, 368 F.2d 272, 278 (Ct.Cl.1966). See Hampton Corp., supra, at 902. In the instant eases, at the time these agreements were entered into, Schneider was the sole shareholder of C. S. & Co. and Future Foam. No special incentive was necessary to ensure his best efforts, for he would receive the fruits of success through his status as the majority shareholder of each of these companies. As the controlling shareholder and director, any agreement between one of these corporations and him in his status as an employee could not be at arm’s length. Summer, while owning no stock, was a member of the board of directors of C. S. & Co., and was a close relative of Schneider, factors tending to show a lack of arm’s length bargaining. He held a stock option at the time these agreements were fashioned and throughout the years in question. The ability to exercise this option at anytime would enable Summer to share in the fruits of success of C. S. & Co. as a shareholder at his will, and the agreement in question was similarly not necessary to ensure his continued best efforts. Moreover, it is reasonable to infer that Summer as chief executive officer was awarded generous compensation to make Schneider’s compensation appear reasonable. Friedman and Grassman each had the option to purchase 20% of the shares of Future Foam, which options they exercised in 1965. Thus, they too knew they could share in any profits as shareholders, and the contingent compensation plans were not necessary to ensure their best efforts on behalf of the corporation. These individuals with Schneider have been members of the board of directors of Future Foam since prior to the date their compensation agreements were effective, which fact would tend to negate an arm’s length bargaining situation. In short, even though the compensation paid to each of these insiders was based on the contingency of profits, this fact alone does not necessarily require a finding under § 1.162-7(a) of reasonableness, especially when as here there is evidence of a lack of arm’s length bargaining for the agreements. Other evidence exists which supports the Tax Court’s conclusion that these agreements were not the result of arm’s length bargaining but were in reality a mechanism for the distribution of profits “apparently without relation to the services performed.” Perhaps most important is the fact that no dividends were ever paid by any of these companies during this time, even though they enjoyed consistent profits and immense success in the industry. A substantial return of investment for the shareholders would be expected from such successful operations. McCandless, supra, at 1340. An absence of profits paid back to the shareholders as dividends justifies an inference that some of the purported compensation really represents a distribution of profits. Id.; Jones Bros. Bakery, Inc. v. United States, 188 Ct.Cl. 226, 411 F.2d 1282, 1293 (1969); Pacific Grains, supra, at 606. The provisions of the agreements themselves tend to support the notion that they provided for a distribution of profits rather than compensation for services rendered. Under the agreements the officers of each of the companies would equally divide the net profits of the companies where they worked after setting aside but 2% of the net sales for retained earnings and necessary amounts for state and federal taxes. These arrangements necessarily left little or nothing to be paid as dividends, even if the companies should become profitable (as they did), and may be seen as vehicles for distributing future profits, even though they were entered into at a time when the companies were not in healthy financial situations. The petitioner Future Foam points to a $45,000 per annum limitation on Schneider’s salary to show reasonableness. However, an excess bonus of $24,600 in 1966 was simply paid the following year, negating the effect of the limitation. Other evidence supporting the Tax Court’s determinations and conclusions include the fact that Schneider spent less time after 1963 working for each of these petitioners, although the salary paid him by each increased dramatically. During the tax years here involved, Schneider felt that he had developed competent management teams in C. S. & Co. and Future Foam and was devoting his principal attention to Charles, Inc., in building up a management team. Schneider’s total compensation from Charles, Inc., during the years here involved never exceeded $20,000. Summer also spent much time at Central Woodworking, of which he was one-half owner, detracting from thé time he devoted to C. S. & Co. The part-time nature of their work are elements which must be considered in determining the reasonableness of their compensation. As pointed out by the Tax Court, other members of the management team at C. S. & Co. and Future Foam did not have similar bonus arrangements to ensure their best efforts. As pointed out by the Tax Court in its opinion, Schneider had received a total compensation from the four taxpayers aggregating $132,000, $127,000 and $108,000 in the fiscal years ending 1966, 1967 and 1968 respectively. In addition, the factory buildings used by the corporations were leased from Cynthia Realty, of which Schneider was the sole stockholder. A most significant factor to be considered is a comparison of the compensation under consideration and the prevailing rates of compensation paid to those in similar positions in comparable companies within the same industry. Jones Bros., supra, at 1291. The Commissioner introduced evidence showing that the compensation paid by the petitioners was grossly disproportionate to the rates of compensation paid to executives in similar sized companies in the furniture industry, and approached the levels of compensation paid by much larger companies. The percentage of net profits paid by the petitioners in executive compensation during these years was two to three times the percentages paid in the rest of the industry. The Tax Court compared the compensation practices and levels of the petitioners to those of Charles, Inc., another company within the same controlled group but in direct competition with at least C. S. & Co. Charles, Inc., did not have a bonus No. 2 plan such as was in effect for C. S. & Co. and Future Foam; contingent compensation agreements at this company provided for executive bonuses of only 3.5 to 6.5% of sales, though it was run by Schneider under a similar management philosophy. The evidence showed much lower salaries paid to the executives at Charles in the absence of agreements like those at C. S. & Co. or Future Foam. The Tax Court in comparing C. S. & Co. with Charles, Inc., states: [T]he percentages of net income which were paid as compensation for officers of Charles, Inc., were 22.61%, 28.10% and 33.55% for the fiscal years ended June 30, 1966, 1967 and 1968, respectively. By comparison C. S. & Co. paid 89.21%, 77.69% and 67.53% of its net income to officers as compensation for services during those same years. Because the two businesses were quite similar in operation, size, sales and net profits during the years in issue, we can only attribute the wide, discrepancy in compensation to a distribution of profits by C. S. & Co. in the guise of salaries Taxpayers have introduced some evidence to support their contention that the compensation paid executive officers is reasonable. Such evidence is largely by way of conclusion. It is not disputed that all recipients of compensation here involved were competent and put in long hours of work and that the success of the taxpayer corporations was attributable to their efforts. Taxpayers contend that the expert evidence they introduced to the effect that the compensation paid executives was reasonable is undisputed. We disagree. Internal Revenue Agent Johnson, who had served as a revenue agent since 1955 and had examined many corporate returns, testified that the compensation paid the executives here involved was excessive and set out in detail his reasons for such conclusion. In any event, the Tax Court as a fact finder is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Riss, supra, at 166; Investers Diversified Services, Inc. v. Commissioner, 325 F.2d 341, 351 (8th Cir. 1963); Midland Ford Tractor Co. v. Commissioner, 277 F.2d 111, 115 (8th Cir. 1960). An element reflecting on the intent of the parties as to the potential effect of these agreements is the fact that the bylaws of these corporations were amended shortly after the agreements were adopted to require the employees to repay to the companies amounts which they received under the agreements but which were later declared by a court not to be deductible expenses for tax purposes. See Article VIII, Amendment to Bylaws, Charles Schneider & Co., adopted June 22, 1963. This may reflect a pre-exist-ing knowledge on the part of the taxpayers that the payments would not be reasonable for tax purposes, and could lead to an inference as to their intent. No purpose will be served in further detailing the extensive evidence. A careful examination of the record satisfies us that the Tax Court’s decision is based upon substantial evidence, that it is not induced by any erroneous view of the law, and that it is not clearly erroneous. The decision of the Tax Court is affirmed. . The Tax Court determined as a deductible business expense all executive compensation paid by Charles, Inc., and Central Woodworking Co., Inc., and such determination is not here challenged. . Future Foam held legal title to all of the stock of Charles, Inc. Agreements between Schneider and the minority stockholders of Future Foam provided that the minority stockholders acquired no interest in Charles, Inc. No adjudication of ownership of Charles, Inc., stock is essential for the disposition of this case.

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?

The RAIL-TRAILER CO., Plaintiff-Appellant, v. ACF INDUSTRIES, INC., Defendant-Appellee. No. 15277. United States Court of Appeals Seventh Circuit. March 16, 1966. Curtis F. Prangley, Douglas O. Baird, Chicago, Ill., for appellant. Victor P. Kayser, Chicago, Ill, John Hoxie, New York City, C. Lee Cook, Jr., Chicago, Ill., Chadwell, Keck, Kayser, Ruggles & McLaren, Chicago, Ill., Davis, Hoxie, Faithfull & Hapgood, New York City, of counsel, for appellee. Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges. CASTLE, Circuit Judge. The Rail-Trailer Co., plaintiff-appellant, co-owner with ACF Industries, Inc., defendant-appellee, of U.S. Patent No. 3,145,006, entitled “Collapsible Trailer Support and Anchor”, brought suit in the District Court for a declaratory judgment that an exclusive license to make the invention granted by the plaintiff to the defendant is null and void, unenforceable as an agreement in restraint of trade, and that plaintiff is entitled to make, and to license others to make, the patented device. The license was granted while the application for the patent was pending and insofar as here pertinent provides : “ * * * said The Rail-Trailer Company by these presents, to the extent of its interest in the patent application, the invention covered thereby and all patents issuing thereon, hereby grant unto the said ACF Industries, Incorporated (American Car and Foundry Division), an exclusive, irrevocable, royalty-free license to make the invention disclosed in the above mentioned patent application.” An officer and employee of Rail-Trailer, together with two employees of ACF Industries, had made application for the patent and also had executed an assignment of the application to the plaintiff and the defendant by virtue of which the plaintiff became owner of an undivided one-third interest, and the defendant became owner of an undivided two-thirds interest, in the application and in the patent which subsequently issued. In the posture in which the pleadings finally settled no issue of any material fact was presented for adjudication and the District Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.A.), heard and considered the matter on the defendant's motion for a summary judgment, granted said motion, and entered a judgment order dismissing plaintiff’s complaint with prejudice. Plaintiff by its appeal has elected to stand on its complaint with the consequence that the order appealed from, although merely dismissing the complaint, is regarded as a final appealable order. Asher v. Ruppa, 7 Cir., 173 F.2d 10; Duane v. Altenburg, 7 Cir., 297 F.2d 515, 518. The plaintiff seeks a reversal on the ground the District Court erred as a matter of law in concluding that the license agreement is not an unlawful contract in restraint of trade under the common law and in violation of Section 1 of the Sherman Act (15 U.S.C.A. § 1) and therefore void and unenforceable to bar plaintiff, a joint owner of the patent, from exercising the right to make, and to license others to make, the patented device. The plaintiff’s basic contention is that inasmuch as the grant of a patent confers on the owner only the right to exclude others from making, using or selling the invention and, under the patent laws, the joint owners of a patent each have an independent right to make, use or sell the invention, and to grant non-exclusive licenses to others to do so, without the consent of and without accounting to the other co-owner or co-owners, it must follow that the only purpose and effect of a grant by a joint owner of the patent to his co-owner of an exclusive license to manufacture the invention is the exclusion of the grantor from his right to manufacture the invention, and such a license therefore constitutes an agreement not to compete and unless it is ancillary to a joint venture of the parties is an illegal contract in restraint of trade. But, in our opinion, the conclusion the plaintiff so draws fails to give effective consideration to two highly relevant factors. First, a patentee may, without divesting himself of ownership of the patent, grant an exclusive license for the manufacture of the patented device, which license serves to exclude the patentee himself from engaging in the manufacture of the device, and which action, without more, does not constitute an illegal restraint of trade or violation of the anti-trust laws. This is so hecause the restraint arises from the patent grant and a lawful transfer of a part of the rights to which that grant attached. United States v. General Electric Company, 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362; Bement & Sons v. National Harrow Company, 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058; Brownell v. Ketcham Wire & Mfg. Co., 9 Cir., 211 F.2d 121, 129. Second, Section 262 of the Patent Act (35 U.S.C.A. § 262) recognizes the right of joint owners of a patent to contractually modify their interests in the jointly-owned patent. It is only “[i]n the absence of any agreement to the contrary” that the section recognizes the independent right of each joint owner to “make, use or sell the patented invention without the consent of and without accounting to the other owners”. Prior to the enactment of Section 262, this Court as early as 1901 in Blackledge v. Weir & Craig Mfg. Co., 7 Cir., 108 F. 71, 72, referred to Clum v. Brewer, 2 Curt. 506, as recognizing that “[n] either [joint owner} can * * * assert a superior equity, unless it has been created by some contract modifying the rights which belong to them as tenants in common”. From the standpoint of the public purposes underlying the prohibitions against unreasonable restraints of trade it logically follows that if, as has been uniformly recognized by the courts, a sole owner of a patent may by the grant of an exclusive license bar himself from making the invention without running afoul the Sherman Act or the common law prohibition of unreasonable restraints of trade, certainly a joint owner of a patent, the possessor of a less extensive and singularly qualified “monopoly” should be able to do so in favor of his co-owner. We perceive nothing in the policy of the law as reflected in the decisions and in the pertinent statutory provisions which requires otherwise. And, this is particularly so in the light of the fact that, as aptly observed in Talbot v. Quaker-State Oil Refining Co., 3 Cir., 104 F.2d 967, 968, the relationship between co-tenants of a patent is such that each co-owner is “at the mercy” of the other in that the right of each to license independently “may, for all practical purposes, destroy the monopoly and so amount to an appropriation of the whole value of the patent”. We have examined and considered the numerous cases cited and relied upon by the plaintiff but find them neither apposite to nor dispositive of the issue here presented for determination. Among the authorities to which the plaintiff has made repeated references are Kinsman v. Parkhurst, 18 How. 289, 59 U.S. 289, 15 L.Ed. 385, and McCullough v. Kammerer Corporation, 9 Cir., 166 F.2d 759. In Kinsman the two joint owners of a patent entered into a co-partnership for the manufacture and sale of the patented machine. The legality of the partnership contract, as against a contention that it was void as being in restraint of trade, was determined without reference to the effect of the provisions of the agreement concerning the patent rights or to the validity or invalidity of the patent involved, the Court observing that “[i]t is a very common and not an illegal stipulation in partnership articles, that neither partner shall carry on that business for which the partnership is formed, outside of the partnership and for his own account”. The decision contains nothing to indicate that the grant of an exclusive license by a joint owner of a patent to his co-owner is of itself illegal as being in restraint of trade unless such grant is ancillary to a joint venture of the co-owners. And, in McCullough the license involved was found illegal because it contained provisions restraining competition in other products which might compete with the patented devices, not for lack of an ancillary joint venture of the parties. This was recognized and pointed out in the subsequent decision of the Ninth Circuit in Cutter Laboratories, Inc. v. Lyophile-Cryochem Corporation, 9 Cir., 179 F.2d 80, 93, in which the Court after observing that: “Any patent owner who grants an exclusive license, reserving no right except to collect royalties, cuts himself off from practicing the art claimed in the patent until the patent has expired.” pointed out in a footnote: “McCullough v. Kammerer Corp., 9 Cir., 166 F.2d 759, is not in point. The license agreement was held illegal there not because the licensee agreed to refrain from dealing with devices covered by any patents which either of the parties might own or be entitled to obtain, but because he agreed to refrain from the use of devices which were not patented at all or were patented by outside parties and which might come into competition with the patented devices. There is no agreement of that sort here.” We are of the opinion the District Court’s finding and conclusion that the license is not unlawful as being in restraint of trade represents an application of correct legal criteria. The judgment order appealed from is therefore affirmed. Affirmed. . 35 U.S.C.A. § 154; Bloomer v. McQuewan, 14 How. 539, 55 U.S. 539, 14 L.Ed. 532; United States v. American Bell Telephone Company, 167 U.S. 224, 239, 17 S.Ct. 809, 42 L.Ed. 144; Continental Paper Bag Company v. Eastern Paper Bag Company, 210 U.S. 405, 424, 28 S.Ct. 748, 52 L.Ed. 1122; Crown Die & Tool Company v. Nye Tool & Machine Works, 261 U.S. 24, 35, 43 S.Ct. 254, 67 L.Ed. 516; Blackledge v. Weir & Craig Mfg. Co., 7 Cir., 108 E. 71, 73. . 35 U.S.C.A. § 262; Blackledge v. Weir 6 Craig Mfg. Co., 7 Cir., 108 F. 71; Central Brass & Stamping Co. v. Stuber, 7 Cir., 220 F. 909, 911-912; Drake v. Hall, 7 Cir., 220 F. 905.

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?

Philip GUTTER, Plaintiff-Appellant Cross-Appellee, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Defendant-Appellee Cross-Appellant. Nos. 79-3516, 79-3517. United States Court of Appeals, Sixth Circuit. Argued Feb. 16, 1981. Decided April 3, 1981. Rehearing and Rehearing En Banc Denied May 15, 1981. Philip Gutter, pro se. David J. Young, Dunbar, Kienzle & Mur-phey, Columbus, Ohio, John P. Witten, Columbus, Ohio, for defendant-appellee cross-appellant. Before MERRITT, BAILEY BROWN and KENNEDY, Circuit Judges. BAILEY BROWN, Circuit Judge. I This case grows out of a series of margin transactions executed by appellee and cross-appellant, Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), on behalf of appellant and cross-appellee, Philip Gutter (Gutter), in September and October of 1974. Gutter made a number of . short sales and wrote a number of option contracts through his broker Merrill Lynch, all on margin. Although some of the short sales were successful, most of the transactions resulted in losses to Gutter. To finance his margin trading Gutter deposited $122,000 in corporate bonds in a special account with Merrill Lynch. All of Gutter’s trades were financed with loans Merrill Lynch made against the collateral of the bonds. Gutter brought this action to recover his losses from Merrill Lynch, and in his amended complaint stated two types of claims. First, Gutter claimed that Merrill Lynch had violated the anti-fraud provisions of the Securities Act of 1933, 15 U.S.C. §§ 77 et seq., and the Securities Exchange Act of 1934, 15 U.S.C. §§ 78 et seq., and had committed common law fraud by failing to fully inform him of the risks involved in option trading. He also alleged that Merrill Lynch misrepresented the profits that could be obtained from option trading. Second, Gutter claimed that Merrill Lynch had violated the margin requirements of Section 7(c) of the 1934 Act, 15 U.S.C. § 78g(c), and the regulation implementing Section 7(c), Federal Reserve Board Regulation T, 12 C.F.R. §§ 220.1 et seq., by using his bonds in the special account as collateral for his margin trading rather than calling on Gutter to cover the shortfalls in his margin account. He claimed that Merrill Lynch was liable to him for his losses in the margin account. As an initial matter the district court granted Gutter’s motion for summary judgment on the Regulation T claims. On the authority of our decision in Spoon v. Walston & Co., 478 F.2d 246 (6th Cir. 1973), the district court held that an implied cause of action existed for a violation of the margin regulations. The district court then found, as Gutter contended, that Merrill Lynch had violated the margin requirements by applying the excess value of Gutter’s bonds to his margin account instead of issuing maintenance calls at times when the margin limitations were exceeded. On the basis of stipulated underlying facts, damages were determined by the court to be $7,000. Gutter’s fraud claims were tried to a jury on May 1, 1978. The district court granted a directed verdict for Merrill Lynch on Gutter’s claim that Merrill Lynch had violated Sections 12(2) and 17(a) of the 1933 Act, 15 U.S.C. §§ 777(2), 77q(a). The court noted that the protection of these sections was clearly limited to purchasers and, as an option writer, Gutter was plainly a seller and not a purchaser. The 1934 Act and common law fraud claims were submitted to the jury, which returned a verdict for Merrill Lynch. Gutter has appealed the district court’s directed verdict on his fraud claims under the 1933 Act and appealed the method used to calculate damages for Merrill Lynch’s violation of the margin requirements of Regulation T. Merrill Lynch appeals both the finding that it violated the margin requirements and the holding that a violation of the margin requirements gives rise to a private cause of action. Merrill Lynch also appeals the calculation of damages flowing from the alleged violations. We determine that the district court did not err in directing a verdict on the fraud claims under the 1933 Act. We determine, however, that the district court erred in granting summary judgment to Gutter and in awarding him damages for violations of the margin requirements of Regulation T for the reason that a private cause of action cannot be implied for a violation of Regulation T and the statute pursuant to which the regulation was issued. Since we determine that the private cause of action cannot be implied, we need not decide whether Regulation T was violated by Merrill Lynch or whether the district court applied the correct measure of damages for such violation. II Gutter’s claims under the 1933 Act related only to his option transactions. It is clear that only purchasers have standing under Sections 12(2) and 17(a) of the 1933 Act. These provisions simply are not designed to protect sellers, and this is obvious from the face of the statutes. They have also been consistently interpreted to provide protection only to purchasers. See, e. g., Simmons v. Wolfson, 428 F.2d 455 (6th Cir. 1970) (per curiam), cert. denied, 400 U.S. 999, 91 S.Ct. 459, 27 L.Ed.2d 450 (1971). It is furthermore obvious that with regard to the option contracts Gutter was a seller and not a purchaser. Under the terms of the Chicago Board Options Exchange Clearing Corporation (CBOE), whose options Gutter was writing, the writer receives a premium and agrees to deliver the underlying security to the CBOE on call at a fixed price. The option only exists for a set period of time. The option price of the underlying security is always above the market price at the time the option is written. The writer hopes the market price will not rise above the option price so the holder of the option will not exercise it. If the price of the security rises above the option price, the holder will exercise the option since he can make an immediate profit by selling the stock he purchased at the lower option price at the then higher market price. If the option is uncovered (i. e., the option writer does not already own the shares), the writer will have to cover by purchasing securities at the existing market price and delivering them at the lower option price. The option writer makes the same gamble as a short seller in that he hopes the market will go down over the life of the option. If the market declines he makes a profit (the premium the purchaser paid for the option) and does not have to purchase or sell the underlying security. It is clear that an option writer sells the right to purchase securities and is not purchasing anything. The fact that he may later have to purchase securities to cover his option is irrelevant to the determination of whether the writing of the option contract is itself a purchase or sale. The district court correctly determined that Gutter was a seller with regard to the option contracts. Although the anti-fraud provisions of the 1934 Act protect both purchasers and sellers, the anti-fraud provisions of the 1933 Act protect only purchasers. Therefore, the district court correctly granted a directed verdict for Merrill Lynch on the 1933 Act claims. Ill We next turn to the question whether a private cause of action can be implied in favor of a broker’s customer against the broker for a violation of the margin requirements established by Regulation T issued pursuant to Section 7(c) of the 1934 Act. The district court, apparently with some reluctance, concluded that a private cause of action must , be implied. It pointed out that the implication of a cause of action means that, so far as the customer is concerned, it is “heads I win, tails you lose” where there is a loss in a margin account. The district court concluded that this result was compelled by the per curiam decision of this court in Spoon v. Walston & Co., 478 F.2d 246 (6th Cir. 1973). We conclude, however, that under the circumstances presented here, Spoon is not controlling and a private cause of action cannot be implied. The reasons why we conclude that Spoon is not controlling are: (1) an amendment to Section 7 of the 1934 Act that was not applicable to the transactions involved in Spoon is applicable here; (2) in a recent decision this court indicated that the rule followed in Spoon may, in the light of more recent decisions in other courts, no longer be viable; and, (3) recent decisions of the Supreme Court establishing standards for the implication of private causes of action from criminal or regulatory statutes make clear that a private cause of action should not be implied here. In 1970, Section 7 of the 1934 Act was amended by adding Section 7(f), which made it illegal for customers of brokers to accept credit in excess of limits permitted by the margin requirements of the regulation issued pursuant to Section 7. Prior to the enactment of Section 7(f), it had been illegal, under Section 7(e), for brokers to extend excess credit but not illegal for customers to accept it. The amendment placed the responsibility on both the broker and the customer to observe the margin requirements. The Federal Reserve Board issued Regulation X, 12 C.F.R. §§ 224 et seq., to effectuate this change in the law. The margin transactions involved in Spoon took place in 1971, and the broker contended in the district court, inter alia, that the addition in 1970 of Section 7(f) to the Act prevented the implication of a cause of action in favor of the customer. The district court in Spoon recognized this argument in its opinion, 345 F.Supp. 518, 521-22 (E.D.Mich.1972), but pointed out that the amendment did not take effect until after the margin transactions involved in the case had taken place. It then concluded that a private cause of action in favor of the customer against the broker must be implied. Even so, and even though the broker had been guilty of fraud on the New York Stock Exchange in covering up its violations of the margin requirements, the district court, applying equitable principles, allowed the customer to recover only one-half of the loss incurred in the margin account. In its brief per curiam affirming the district court in Spoon, 478 F.2d 246 (6th Cir. 1973), this court relied principally on Pearlstein v. Scudder & German, 429 F.2d 1136 (2nd Cir. 1970) (Pearlstein I), cert. denied, 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971), saying: “We agree with the second Circuit that Congress intended for the loss in transactions of of this type generally to fall upon the broker.” 478 F.2d at 247. Pearlstein I, like Spoon, dealt with transactions to which the 1970 amendment (Section 7(f)) did not apply. In Utah State University v. Bear, Stearns & Co., 549 F.2d 164 (10th Cir.), cert. denied, 434 U.S. 890, 98 S.Ct. 264, 54 L.Ed.2d 176 (1977), the court held that as the 1970 amendment to the 1934 Act (Section 7(f)) and Regulation X were applicable to the transactions involved, no private cause of action in favor of the broker’s customer could be implied. It pointed out that Section 7(f) and Regulation X were not applicable to the transactions involved in Pearlstein I and Spoon. The Tenth Circuit also pointed out that when Pearlstein came before the Second Circuit again on the question of damages, 527 F.2d 1141, 1144 (2nd Cir. 1975) (Pearlstein II), the Second Circuit recognized that since the advent of the 1970 amendment and Regulation X, its pri- or decision holding that a private cause of action must be implied was of doubtful validity. In Stern v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 603 F.2d 1073 (4th Cir. 1979), the court, after reviewing at length the history of litigation on this issue, came to the generally accepted conclusion that the overall purpose of Section 7(c) and Regulation T, as macroeconomic policy, was to control the quantum of credit in the economy. It came to the further conclusion that, with the enactment of Section 7(f) and Regulation X, it could no longer be said that even an ancillary purpose of Section 7(c) was to protect customers of brokers from losses that occurred where margin requirements were violated. Accordingly, the court concluded that a private cause of action could not be implied in favor of the customer. In Fryling v. Merrill Lynch, Pierce, Fen-ner & Smith, Inc., 593 F.2d 736 (6th Cir. 1979), this court determined that the broker that had been sued by a customer on the basis of an alleged violation of Section 7(c) and Regulation T had not in fact violated those provisions and, therefore, it was not necessary for this court to determine whether a private cause of action could now be implied. This court pointed out there were contrasting views on this issue, inviting comparison of Pearlstein I, on which it had relied in Spoon, with Pearlstein II and Utah State University. Id. at 745, n. 8. Beginning with Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court has set down more stringent rules for implying private causes of action for violation of criminal and regulatory statutes. In Cort, the Court stated the rules to be: whether plaintiff is one of a class for whose especial benefit the statute was enacted; whether there is an indication of legislative intent to create a private remedy; whether implication of a private remedy is consistent with the legislative purpose; and whether such a cause of action is traditionally relegated to state law. Id. at 78, 95 S.Ct. at 2087. In Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), the Court stated that it did not intend by its holding in Cort to give equal weight to all four of the aforementioned factors, and that the central inquiry was whether Congress intended to create a private cause of action. Id. at 575, 99 S.Ct. at 2489. In Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977), the Court stated that the threshold issue was whether a tender offeror such as Chris-Craft, whose activities were regulated by the Williams Act, 15 U.S.C. § 78m(d)(l), had a cause of action for damages against other parties whose activities were regulated by the Act, on a claim that violations of the Act by other parties frustrated the tender offeror’s (Chris-Craft’s) efforts to obtain control of the target corporation. Id. at 24, 97 S.Ct. at 940. In answering this question in the negative, the Court, referring to Cort, stated, inter alia: There, the Court identified four factors as “relevant” in determining whether a private remedy is implicit in a statute not expressly providing one. The first is whether the plaintiff is “ ‘one of the class for whose especial benefit the statute was enacted ....’” Id., at 78, 45 L.Ed.2d 26, 95 S.Ct. 2080. (Emphasis in original.) As previously indicated, examination of the statute and its genesis shows that Chris-Craft is not an intended beneficiary of the Williams Act, and surely is not one “for whose especial benefit the statute was enacted.” Ibid. To the contrary, Chris-Craft is a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class, shareholders-of-ferees. As a party whose previously unregulated conduct was purposefully brought, under federal control by the statute, Chris-Craft can scarcely lay claim to the status of “beneficiary” whom Congress considered in need of protection. Id. at 37, 97 S.Ct. at 947. Applying these decisions to the instant case, we conclude that they do not permit the implication of a private cause of action in favor of Gutter. In the light of the enactment of the 1970 amendment to the 1934 Act (Section 7(f)) and the issuance of Regulation X, Gutter is not in a class for whose especial benefit this statute was enacted and, indeed, Gutter is a party whose conduct has been brought under control by the statute. Moreover, there is no indication of Congressional intent to create a cause of action in favor of the broker’s customer against the broker, and the enactment of Section 7(f) indicates a contrary intent. We therefore conclude that the judgment of the district court should be affirmed insofar as it denied relief to Gutter. We further conclude that the judgment of the district court must be reversed insofar as it granted relief to Gutter. The cause is therefore remanded to the district court with direction to enter a judgment dismissing the action with prejudice. No costs assessed.

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

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

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

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47? Answer with a number.

UNITED STATES of America, Appellant, v. Roger F. VORACHEK, Joseph W. Vorachek, Estate of Emmett J. Vorachek, Georgette I. Vorachek, Laverne V. Gaarder, Marjorie W. Vorachek, Wilmer J. Vorachek, James H. Vorachek, Keith J. Vorachek, and North Dakota State Tax Commissioner, Appellees. No. 77-1256. United States Court of Appeals, Eighth Circuit. Submitted Aug. 19, 1977. Decided Oct. 7, 1977. Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Leonard J. Henzke, Jr., Michael J. Roach, Attys., Tax Div., Dept. of Justice, Washington, D. C., Harold O. Bullis, U. S. Atty., Fargo, N. D., for appellees. Roger F. Vorachek, Lankin, for appellant. Before GIBSON, Chief Judge, VOGEL, Senior Circuit Judge, and BRIGHT, Circuit Judge. PER CURIAM. This is an appeal by the government from a district court judgment in its favor against Appellee Roger F. Vorachek for unpaid tax liability for the tax years 1965, 1966, and 1968 to 1974, and against Appel-lee Maria Vorachek for the tax years 1973 and 1974. The jurisdiction of this court is invoked under 28 U.S.C. § 1291. The case began in February 1975, when the government brought an action in district court to reduce to judgment federal income tax assessments which it had made against Roger Vorachek for the tax years 1965, 1966 and 1968 to 1972. Vorachek responded with a motion to dismiss the tax assessments in which he alleged that he had a claim against the government, based on an unauthorized release of medical records, which exceeded any tax due. In preparation for the action, the government filed a notice to take the deposition of Vorachek. At the deposition, Vorachek appeared, identified himself, and stated his employment. Thereafter, he refused to answer all questions concerning his assets, his income tax returns, and his income and deductions for the tax years in issue. On May 21, 1975, the government moved for summary judgment for the unpaid balance due, $21,539.79, for the tax years 1965, 1966, and 1968 to 1972. The motion was granted by an order of the district court entered July 11, 1975. On July 22, 1974, tax assessments were entered against Roger and Maria Vorachek for the tax year 1973. On June 2,1975, tax assessments were entered against the Vora-cheks for the tax year 1974. On December 15, 1975, the government filed a motion to amend its prior complaint to include the unpaid balance due, $3,834.00, on those assessments. The motion was granted on January 6, 1976, and the government’s amended complaint was filed on the same day. On June 9, 1976, the government moved for a summary judgment on the amended complaint. Roger Vorachek requested an extension of time in order to file response to the government’s motion and the request was granted. He did not file a response. Accordingly, the district court granted the government’s motion for summary judgment in an order filed September 2, 1976. On August 16, 1976, supplemental tax assessments in the amount of $6,194.52 were entered against the Voracheks for the tax year 1973. On July 26, 1976, supplemental tax assessments were entered against the Voracheks in the amount of $10,829.35 for the tax year 1974. The supplemental assessments were made pursuant to 26 U.S.C. § 6204(a). On August 23,1976, a tax assessment of $7,163.78 was entered against the Voracheks for the tax year 1975. The government alleges that the Internal Revenue Service did not inform the Department of Justice of its intention to file the supplemental assessments for the tax years 1973 and 1974 until after the government’s motion for summary judgment had been granted. On November 8, 1976, the government moved for an order withdrawing the district court’s order of September 2,1976, and for leave to file a supplemental complaint to include the unpaid balance due, $28,-022.13, for the supplemental assessments for 1973 and 1974 and the assessment for 1975. The district court denied the government’s motion and entered a final judgment, pursuant to Rule 54(b) of the Fed.R. Civ.P., based on the summary judgment granted on September 2,1976. The government appeals from this judgment, urging that the district court erred in denying its motions to vacate judgment and to file a supplemental complaint. The government entitled its motion as one “for leave of court to supplement complaint.” The distinction between an amended pleading under Rule 15(a) and a supplemental pleading under Rule 15(d) of the Fed.R.Civ.P. has been stated as follows: An amended pleading is designed to include matters occurring before the filing of the bill but either overlooked or not known at the time. A supplemental pleading, however, is designed to cover matters subsequently occurring but pertaining to the original cause. Berssenbrugge v. Luce Mfg. Co., 30 F.Supp. 101 (W.D.Mo.1939). See also Slavenburg Corporation v. Boston Insurance Company, 30 F.R.D. 123 (S.D.N.Y.1962); Randolph v. Missouri-Kansas-Texas R. Co., 78 F.Supp. 727, 728 (W.D.Mo.1948). While the tax assessments in the government’s proposed “supplement to the complaint” occurred subsequent to the complaint to be amended, their significance lies in tax events which allegedly occurred prior to the complaint but of which the government was not cognizant at the time. Therefore, Rule 15(a) was applicable. Fed.R.Civ.P. 15(a) provides as to amending pleadings “by leave of court” that, “leave shall be freely given when justice so requires.” In commenting on the application of Rule 15(a), the Supreme Court, in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), stated: Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), §§ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously a 1- lowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely given." Of course, the 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. (Emphasis supplied.) The only reason given by the district court for denying the government’s motions was that by granting them it would deprive the Voracheks of a possible defense of res judicata in a subsequent independent action brought by the government to collect the supplemental assessments for the tax years 1973 and 1974. We disagree with the district court, for a taxpayer is not entitled to a windfall at the public’s expense by a tax collector’s error which in no way is shown to prejudice a taxpayer. The only other legitimate hardship that we can see accruing to the taxpayers in allowing the amended complaint is delay, as the government’s request to correct its complaint came some eleven months after its prior complaint was filed. However, the taxpayer does not claim that he was prejudiced by the delay, or that the delay was due to any bad faith or dilatory motive on the part of the government. Nor do we find any evidence from the record that such was the case. We see no prejudice accruing to the taxpayers as a result of granting the government’s request to correct its pleading. No reason appears why the formality and expense of starting a new action should be required. Therefore, we believe that in light of the Supreme Court’s holding in Foman, supra, and the provisions of Fed.R. Civ.P. 15(a), the district court was required to set aside the judgment and permit the filing of a corrected complaint. We reverse and remand the case for further proceedings consistent with this opinion. . The erroneous characterization of the corrected pleading as a “supplement to the complaint” is immaterial. See United States v. Reiten, 313 F.2d 673, 674 (9th Cir. 1963); United States v. Russell, 241 F.2d 879, 882 (1st Cir. 1957).

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?

LEWIS et al. v. LILLISTON. No. 6741. United States Court of Appeals for the District of Columbia. Argued Jan. 7, 1937. Decided March 8, 1937. Christopher B. Garnett, of Washington, D. C., for appellants. Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. PER CURIAM. Accomack Banking Company, Inc., is a Virginia corporation conducting a general banking business in Accomac county. In December, 1931, it became insolvent and Metompkin Bank & Trust Company was appointed receiver by the circuit court of Accomac county, since which time the latter company has been engaged in winding up the affairs of the bank. Appellee was assistant cashier of the bank, and this suit was brought against him by creditors, alleging that he had on the day the bank closed unlawfully withdrawn $2,450 from his deposit account. Subsequently appel--lee moved to Washington and is now a resident of the District of Columbia, and this suit was instituted by appellants, suing for themselves and all other creditors similarly situated. The bill alleges that plaintiffs repeatedly called upon the receiver to bring the suit, but the receiver refused to do so. The District Judge, who heard the case below, sustained a motion to dismiss on the ground that the receiver of the closed bank (under Virginia Code, § 4149 (52) succeeded as assignee to the rights of the bank; that the receiver is under the control of the Virginia court; and that appellants have no standing to sue, without the approval or authorization of the Virginia court. We think this holding correct in result. In Virginia the State Corporation Commission is given authority over Virginia banks generally similar to the authority of the Comptroller of the Currency with relation to national banks, except that in Virginia, if the Commission shall be of opinion that a receiver should be appointed, it is authorized to apply for such an appointment to the circuit court of the county or city in which the bank is located. When the court has acted and appointed the receiver, the receiver is made by statute the assignee of the assets and the property of the bank “with power to prosecute and defend, in the name of the bank or trust company or in’ his name as such receiver or otherwise, in Virginia or elsewhere, all such suits as may be necessary” for the purpose of collecting the assets of the bank. The administration of the estate, through the receiver as the officer of the court, is for the benefit of those whom the court shall ultimately adjudge to be entitled to it. In the circumstances— as was said in Porter v. Sabin, 149 U.S. 473, 479, 13 S.Ct. 1008, 37 L.Ed. 815 — the court may in its discretion direct the receiver to sue on any claims of the bank or may direct him to adjust them and settle them without suit. The method and time of asserting such rights of action are subjects within the exclusive jurisdiction of the court so long as the receivership exists. In this view, the allegation of a refusal by the receiver to bring the suit is not sufficient. Appellants cannot maintain such a suit without showing that they have applied to the court for an order requiring the receiver to bring the suit or, in the alternative, permitting them to bring it in its stead. If upon application the court directs the receiver to sue, the rights of creditors are, of course, fully protected. If the court refuses to require the receiver to sue but grants to creditors permission to do so, they may — certainly in this jurisdiction — maintain such a suit as appellants have instituted. There are cases in other federal courts holding or implying the contrary (cf. Kelly v. Dolan [C.C.A.] 233 F. 635), but we are not disposed to follow them. If, however, the court refuses to direct suit by the receiver and also refuses permission to creditors to sue, the courts of this jurisdiction cannot, of course, undertake to maintain such a suit as appellants have brought. Porter v. Sabin, supra. All that we hold is that, until an order to show cause such as we have indicated above has been applied for and decided by the court having custody of the estate, creditors, seeking to protect rights which the Virginia law vests in the receiver alone, cannot be said to have exhausted all the means within their reach to induce by appropriate action the bringing of the suit by the statutory receiver. The lack in this case of an allegation showing the facts in this regard not only leaves the courts of this jurisdiction without basis for determining whether or not appellants have exhausted the remedies reasonably available to them, but also renders the courts unable to know whether or not by entertaining the present suit they are improperly interfering with -the Virginia court in its orderly administration of the insolvent estate. We think, however, that under the circumstances the court below should permit appellants to amend their bill by showing that they have made application to the Virginia court; and we therefore reverse the decree, at appellants’ cost, with instructions to the lower court to set aside its dismissal of the bill and to permit appellants to show whatever facts may then exist which, in the view we have expressed, will give the court below jurisdiction to proceed to adjudicate the claim. Reversed.

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

Reginald CARRELL, Appellant, v. UNITED STATES of America, Appellee. No. 18782. United States Court of Appeals District of Columbia Circuit. Argued Feb. 10, 1965. Decided March 18, 1965. Mr. William H. Clarke, Washington, D. C., with whom Mr. David F. Grim-aldi, Washington, D. C. (both appointed by this court) was on the brief, for appellant. Mr. David N. Ellenhorn, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Before Fahy, Burger and McGowan, Circuit Judges. PER CURIAM. Appellant, with others, was convicted of rape. He did not appeal within the time specified in Rule 37(a) (2), Fed.R. Crim.P. Others tried with him did appeal, one obtaining a reversal. Franklin et al. v. United States, 117 U.S.App.D.C. 331, 330 F.2d 205 (1964). Prior to that decision, but some thirteen months after he had been sentenced, appellant on February 14,1964 filed in the District Court a Motion for leave to file an appeal after the 10 days specified in the Rule had expired. He claimed in substance that his trial counsel had failed to follow his instruction to file an appeal, a failure of which appellant says he had been unaware. The motion was denied. On appeal this court remanded to the District Court: “with directions to cause the production of petitioner in open court at a hearing, at which the court will require the attendance of petitioner’s trial counsel and shall hear him, as well as petitioner, and any other competent evidence that may be offered relevant to the purpose of this remand. Upon the conclusion of such hearing, at which the Government as well as the petitioner maybe represented by counsel, the District Court will make findings of fact and conclusions of law and thereupon enter a new final order on petitioner’s motion for extension of time, based upon the record as supplemented by said findings and conclusions.” Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686, 687 (1964). On this remand the District Court immediately held a hearing at which appellant’s trial counsel was present but in the posture of a witness and not as counsel. Carrell was not represented and it is this absence of representation which is the basis of his complaint here. The issue in the hearing was whether Carrell could show a basis for some relief. We suggest no failure whatever in trial counsel’s conduct but a hearing to determine whether failure to take a timely appeal is to be excused is so critical to the basic right of appeal that one who is without counsel and urges the claim must be offered the assistance of counsel. Remanded for further proceedings.

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

Joyce C. BELL, Appellant, v. UNITED PRINCETON PROPERTIES, INC., United Princeton Properties, Inc., Pension Plan, Retirement Plan of United Princeton Properties, Inc., Robert B. Medina, Thomas D. Stanley, G. Frederick Dunn, Stephen L. Tully, John Doe Investment Manager, James F. Farrell, Appellees. No. 88-5629. United States Court of Appeals, Third Circuit. Argued March 10, 1989. Decided Sept. 5, 1989. Fredric J. Gross (argued), Mount Ephraim, N.J., for appellant. Earl M. Bennett (argued), Richard M. Conley, Herold and Haines, P.A., Liberty Corner, N.J., for appellees. Before SLOVITER and BECKER, Circuit Judges, and POLLAK, District Judge. Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT BECKER, Circuit Judge. This appeal concerns a counsel fee dispute. The underlying case involved claims that defendants had violated several provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461 (1982), with respect to two pension plans in which the plaintiff was a participant. The case settled, and the stipulation of settlement authorized the district court to award a reasonable attorneys’ fee to plaintiffs counsel. The ultimate issue on appeal is whether the district court erred in awarding a substantially lower amount of fees than plaintiffs attorneys requested. In the course of deciding that issue we must confront the important procedural question of how parties contesting fee petitions must raise their challenges thereto. We conclude that, generally, such parties need not submit counter-affidavits challenging the fee request, so long as they submit briefs that identify the portion of the fee request being challenged and state the grounds for the challenge with sufficient specificity to give the fee applicants notice that they must defend the contested portion of their fee petition. We hold that, with two exceptions, the defendants met this burden here. However, as plaintiff contends, the district court opinion was unclear as to the basis of its fee reductions. Inter alia, it is unclear whether the district court rejected certain of the fees because it found them excessive in light of plaintiffs lead counsel’s expertise (counsel who bill at a high rate should take fewer hours to do the work) and because of the ministerial nature of co-counsel’s duties (which should command a lower rate), or because the court believed that the fees claimed were disproportionate to the amount that the plaintiff recovered, or because the plaintiff recovered only on one of the claims that she alleged in her complaint. Furthermore, the district court erred in analyzing the reasonableness of the fee award by applying several factors that this Court has held are relevant only to the question whether fees should be awarded, not to the appropriate amount of a fee award. Consequently, we will vacate the district court’s fee award and remand this case to it for clarification of the basis of its award and further action consistent with this opinion. The plaintiff has also raised an issue as to the accuracy of the district court’s calculations. We believe that the better practice is to raise such mathematical contentions on a motion for reconsideration in the district court. We will therefore leave these allegations for the district court on remand. I. A. Commencing in 1977, plaintiff Joyce Bell worked as a bookkeeper for United Princeton Properties, Inc. (“UPP”), a New Jersey real estate investment and syndication firm. While Bell was employed by UPP, the firm maintained and contributed to two ERISA-qualified pension plans for the benefit of its employees. Bell was entitled to receive retirement benefits from both plans. However, in May 1985, Bell was allegedly forced to resign from her position because she refused to falsify business records. See Complaint at 3, JA at 6. Upon leaving, Bell requested immediate payment of her vested share in both pension plans. UPP refused, taking the position that it was not required to pay her until she reached age 60. On February 19, 1986, Bell brought suit in the district court for the District of New Jersey against UPP, two of UPP’s owners (both individuals), the two pension plans, and the trustees and administrators of the plans. Bell’s complaint alleged that, under the terms of the plans, UPP was obliged to pay to her the accrued benefits due her under the plan within one month of her separation from service, and that failure to do so violated ERISA. See Amended Complaint at 15, JA at 33. It further alleged a number of other violations of ERISA. These included failure to disclose to plan participants the terms of the plans, failure to obtain bonds for the pension plan fiduciaries, violation of ERISA’s minimum vesting standards, and failure to maintain required records. Bell also brought suit on behalf of the plans, contending, inter alia, that there had been mismanagement of plan assets, and that the plan had enrolled ineligible participants. Finally, Bell alleged violations of New Jersey’s racketeering laws. The parties subsequently settled the matter, and the court approved the settlement on August 25, 1987. The content of the settlement, in relevant part, is as follows: (1) Bell would immediately be paid $33,-721.00, which represented her interest in the pension plans; (2) Bell would be paid $8,139.50 as “general damages” for the delays in providing required plan documents; (3) all claims and counterclaims would be dismissed with prejudice; (4) Bell’s attorneys, Frederic J. Gross and P. Kay McGahen, would not represent others with claims against the UPP pension plans; (5) “[i]n the absence of any supplementary agreement, defendants [would] pay plaintiff’s reasonable costs and reasonable attorneys’ fees, including reasonable costs of investigation, in such amounts and for such matters as are fixed by the United States District Court on the formal application of plaintiff’s counsel”; and (6) interest would begin to accrue on all unpaid costs and attorneys’ fees 21 days after the application for fees was filed with the District Court, at the rate of 12% calculated daily and compounded annually. See Stipulation of Settlement, JA at 240-43. Consequently, after the settlement, the only item left for the court to dispose of was attorneys’ fees. B. On August 14, 1987, Bell petitioned the court for $74,804.51 in attorneys’ fees and costs. This amount represented the amount of time spent on the case by Gross, McGahen, and Gross’s law clerk, multiplied by their respective billing rates — $150 per hour for Gross, $125 per hour for McGa-hen, and $25 per hour for the law clerk— plus their expenses. It also included a requested 20% enhancement for Gross’s fees to compensate him for the risk of non-payment in the case, for the delay in payment inherent in the contingency arrangement, and for voluntarily restricting his practice by agreeing not to represent other plaintiffs against the UPP pension plans. See Magistrate’s Op. at 2 n. 1, App. at 245. The court referred the matter to a Magistrate. The pension plans did not file any counter-affidavits but argued in their several briefs that the amount Bell had requested on behalf of her attorneys was too high and that the use of a multiplier was unwarranted. They contended that this was essentially a simple suit, involving only the issue of when Bell would get her pension benefits. They also asserted that the relief Bell had obtained was minimal. More particularly, they alleged that the plaintiff had engaged in excessive discovery; that there had been unnecessary “double-chairing” by plaintiff’s counsel at pretrial conferences and depositions; that the procedures used for client communication were unduly time-consuming; that Gross’s billing rate in 1986 was lower than he claimed; that McGahen had overcharged for the largely ministerial services that she provided; that Bell’s attorneys had unnecessarily engaged accountants; that the requested fee was grossly disproportionate to the amount Bell recovered; and that the fee request included a large amount of time spent on issues unrelated to Bell's claim for benefits. Bell filed a reply brief disputing the characterization of the suit as a simple suit that obtained only minimal relief and defending the reasonableness of the hours expended and the rates charged. On March 3, 1988, the Magistrate filed a report recommending that Bell’s attorneys recover all requested fees and costs, but not receive a lodestar multiplier. First, the Magistrate found that “plaintiff’s recovery was not minimal. Her success could hardly have been more complete.” Mag. Op. at 9, JA at 252. Second, the Magistrate rejected the defendants’ contention that the attorneys’ fees award should not exceed the amount that Bell recovered in the settlement. He reasoned that defendants “could have, but did not, place a cap on fees sought” (in the settlement agreement). Id. Third, he found the hours claimed by Gross and McGahen to be reasonable, rejecting the defendants’ claim that the tasks assigned to McGahen of filing the court papers should have been delegated to a lesser-paid employee. Fourth, he accepted the fee rates requested by the attorneys and law clerk. However, he rejected the request for a multiplier for Gross’s services, finding that the contingency of non-payment in this case was no greater than average, that no novel issues were involved, and that Gross should not receive additional compensation for agreeing not to take on other clients in suits against these defendants because that restriction was “in clear violation of the ethical rules of this court and of doubtful enforceability.” Id. at 12, JA at 255. In the end, the Magistrate recommended awarding $66,634.01 to Bell’s counsel for fees and costs. C. The defendants filed objections to the Magistrate’s Report and Recommendation with the district court. Although, once again, they did not file any affidavit, they contended in a letter brief to the district court that the Magistrate’s recommendation simply fails to evaluate whether all of the hours spent by plaintiff’s counsel can be said to be reasonably related to the only claim which plaintiff engaged them to prosecute, and the only claim upon which plaintiff ultimately recovered. Although plaintiff’s severance from the defendants’ employ involved unpleasant circumstances, there was only one real question between them regarding her retirement plan benefits: were they payable soon after she left, or were they to be paid when she reached age 60-65? The resolution of this issue should have been straightforward.... Defendants’ Letter Br. at 2, JA at 260. The defendants “emphatically” challenged the assertion of Bell’s counsel that their time “was spent in a manner reasonably related to their client’s claim for benefits. Lawyers at their level could not require more than 75 or 100 hours to understand both the facts of this case and the relevant law bearing upon whether plaintiff’s benefits were payable upon severance or at retirement age.” Id. at 3, JA at 261. The Defendants also invited the district court to consider the briefs that they had submitted to the Magistrate. Id. at 3-4, JA at 261-62. Bell too filed an objection, contending that the Magistrate erred in refusing to award Gross’s requested 20% multiplier. In ruling on these cross-objections, the district court substantially decreased the award to plaintiff’s counsel from the amount recommended by the Magistrate. The district court began by setting forth several factors that this Court has identified as relevant in determining whether fees should be awarded in ERISA cases, which are governed by a statute that provides that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). These factors are: (1) the offending parties’ culpability or bad faith; (2) the ability of the offending parties to satisfy an award of attorneys’ fees; (3) the deterrent effect of an award of attorneys’ fees against the offending parties; (4) the benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ positions. Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir.1983). Although this Court, in Ursic, found these factors to be relevant only to the question whether fees should be awarded, the district court found that these factors “will help the Court arrive at reasonable fees and costs... which is contemplated by the settlement agreement between the parties.” Dist.Ct.Op. at 2 (June 29, 1988), 1988 WL 68927, JA at 276. The court went on to quote dicta from Ursic suggesting that, in a “ ‘run-of-the-mill case,’ ” attorneys’ fees should not be grossly disproportionate to the amount that the plaintiff recovered. Id. at 4, JA at 278 (quoting 719 F.2d at 677-78). The court found that the instant case was “relatively straightforward and the issues were narrow; i.e., when would plaintiffs receive her benefits.... There is only an individual, nominal benefit, and the Court notes the absence of a societal benefit.” Id. The district court proceeded to decrease the lodestar for Gross that the Magistrate had recommended. The court agreed with the contention raised by the defendants in their brief that the hours claimed by Gross were excessive in light of his expertise in ERISA law. The court found that Gross had billed over 45 hours for work on the complaint and the amended complaint, and that “[a]side from work on the brief, over 45 hours [were] spent on researching.” The court also found that “over 45 hours were spent either on the telephone or in meetings with Ms. McGahen.” Implementing its determination of excessiveness, the court then subtracted “35 hours from the time spent on the Complaint and Amended Complaint, 45 hours from the combined time spent on the brief and researching, and 30 hours from telephone calls and conferences with Ms. McGahen,” a decrease amounting to 110 of the 297.85 hours claimed by Gross. Id. The court denied Gross’s request for a multiplier on the ground that there were no special circumstances warranting it. Next, the court completely disallowed the application for fees on behalf of Gross’s law clerk, finding that “[t]here is no indication of what services were performed, or that they were in fact necessary.” Id. at 6, JA at 280. The court also reduced McGa-hen’s lodestar by fifty of the 108.10 hours that she had claimed, “to reflect the fact that she was primarily responsible for filing and serving papers,” id. at 6-7, JA at 280-81, ministerial acts as defendants had contended. The Court also noted “an absence of [McGahen’s] involvement in achieving a benefit (settlement) for the client as well as an absence of her involvement in substantive matters.” Id. In the end, the court cut down the Magistrate’s recommended fee and cost award of $66,-643.01 to $43,423. II. Bell appeals from the order of the district court. She contends that the court erred in decreasing the fee award below the level recommended by the Magistrate, although she no longer contends that Gross should be given a multiplier for his services. In attorneys’ fees cases, our scope of review of the legal standards that the district court used in calculating the lodestar is plenary, see Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1442 (3d Cir.1988); we will reverse factual findings only if they are clearly erroneous, see id.; and, as long as an allegation of legal error is not involved, we will upset a district’s court judgment with respect to the reasonableness of the lodestar request only if the court has abused its discretion. See Blum v. Witco Chemical Corp., 829 F.2d 367, 368 (3d Cir.1987). A. Bell first contends that the district court erred as a matter of law by “sua sponte” reducing the fee award from the amount requested in the fee petition. Bell cites to our opinion in Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir.1985) (“Cunningham I”), a case that involved the calculation of attorneys’ fees pursuant to 42 U.S.C. § 1988 (1982). That statute allows courts to award reasonable attorneys’ fees to parties who prevail in civil rights suits brought under 42 U.S.C. § 1983 (1982). In Cunningham I, the district court substantially reduced the amount of fees requested in the plaintiff’s fee petition, even though the defendants had never “challenge[d]... the accuracy of the [plaintiff’s] affidavit” in support of the fee petition. 753 F.2d at 265-66. We reversed, holding that a district court in a statutory fee ease may not reduce the number of hours claimed by an attorney if the adverse party has declined to “raise a material fact issue as to the accuracy of representations as to hours spent, or the necessity for their expenditure.” Id. at 267. Cunningham I recognized one narrow exception: a judge may reduce requested fees with respect to matters within the judge’s personal knowledge — for example, the amount of time spent by counsel at trial or in conference with the judge. Id. In so deciding, we reasoned first that sua sponte reduction of a fee request deprives the fee applicant of her entitlement to “to offer evidence in support of the reasonableness of her request.” Id. at 267. And second, because statutory fee litigation is adversarial litigation, there is no need to allow the district court to reduce a fee award on its own initiative. Id. Bell contends that the principle announced in Cunningham I that a judge may not sua sponte reduce a request for attorneys’ fees should extend beyond civil rights cases and apply equally to ERISA cases. We agree. The reasoning articulated in Cunningham I with respect to this principle is not unique to the area of civil rights, and we can see no reason to create a different jurisprudence of fee awards in ERISA cases. Cf. Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 762 F.2d 272, 275 (3d Cir.1985) (holding that the same standards apply for setting “reasonable” attorney’s fees under the Clean Air Act’s fee shifting provision as under 42 U.S.C. § 1988), modified on other grounds, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), rev’d on other grounds, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); see also Independent Federation of Flight Attendants v. Zipes, — U.S. —, 109 S.Ct. 2732, 2735 n. 2, 105 L.Ed.2d 639 (1989). We must therefore determine whether the defendants in the case sub judice met the Cunningham I standard of creating an issue with respect to the reasonableness of the fee petition. Bell points out that, as in Cunningham I, the defendants in this case offered no contrary affidavit challenging the accuracy of the fee petition, and submits that any objection to the petition is waived. Appellant’s Br. at 25. The defendants contend that they were not required to file contrary affidavits because their brief before the district court, which incorporated by reference the briefs submitted to the Magistrate, raised the issues upon which reduction was granted. Appellees’ Br. at 8. The first question we must address therefore is whether Cunningham I requires that parties challenging a fee petition produce affidavits or other evidence to create an issue as to the reasonableness or accuracy of the fee petition or whether it is enough for a party to make its challenge in its answering papers or brief to the court. Cunningham I did not decide the issue because in that case the defendants neither produced counter-affidavits nor challenged the reasonableness of the time spent by the plaintiff’s attorneys in any answer or brief. We believe that the two justifications for disallowing sua sponte fee reductions articulated in Cunningham I mandate only that a judge not decrease a fee award based on factors not raised at all by the adverse party. We see no reason to require that parties objecting to the fee request submit affidavits so long as answers or briefs, if sufficiently specific, can serve the same function of putting the applicant on notice that it must defend its fee petition. This case illustrates the efficacy of briefs in meeting this notice function. Bell’s attorneys were able to (and did) submit reply briefs responding to the allegations of excess raised in the defendants’ briefs, both before the Magistrate and before the district court. We read Cunningham I as holding only that a court may not sua sponte reduce the amount of the award when the defendant has not specifically taken issue with the amount of time spent or the billing rate, either by filing affidavits, or, in most cases, by raising arguments with specificity and clarity in briefs (or answering motion papers). We note however, that, to the extent the challenger seeks to raise a factual issue—for example, a claim that the fee applicant’s billing rate was lower than claimed—he or she must introduce affidavits averring the facts upon which the challenge is based. Affidavits are required in such instances because statements made in briefs are not evidence of the facts asserted. As Cunningham I makes clear, the district court, in counsel fee litigation, can never serve as an “expert witness” and may only serve as fact witness when the facts at issue are wholly within its personal knowledge. Thus, with respect to factual issues, the court must be presented with evidence and must make findings based on the evidence. Turning to the required level of detail, we emphasize that the adverse party’s submissions cannot merely allege in general terms that the time spent was excessive. In order to be sufficient, the briefs or answers challenging the fee request must be clear in two respects. First, they must generally identify the type of work being challenged, and second, they must specifically state the adverse party’s grounds for contending that the hours claimed in that area are unreasonable. The briefs must be specific and clear enough that the fee applicants have a fair chance to respond and defend their request. However, although the respondent’s objections to the fee petition must be clear, a party challenging a fee petition need not always challenge specific time entries and have the court find that some “specific time entry was unreasonable or unnecessary,” Appellant’s Br. at 28, in order to prevail. Entries in a fee applicant’s time sheets usually reflect only generally the type of work in which counsel was engaged. It would be nearly impossible, or at least extraordinarily burdensome, for parties who wish to contend that the time spent by a fee applicant was excessive in light of counsel’s expertise, or in light of the simplicity of the case, or who wish to raise some similar contention that might affect an entire category of work done by counsel, to point to all the entries that they believe to be unreasonable. The standard proposed by Bell would effectively bar those challenging fee petitions from ever prevailing on such objections. We believe that, in general, the party raising such challenges, which affect an entire category (or several categories) of work, need only specify with particularity the reason for its challenge and the category (or categories) of work being challenged; it need not point to each individual excessive entry. It bears noting that the district court retains a great deal of discretion in deciding what a reasonable fee award is, so long as any reduction is based on objections actually raised by the adverse party. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). In determining whether the fee request is excessive in light of particular categorical contentions raised by the adverse party, and in setting the amount of any reduction, the court will inevitably be required to engage in a fair amount of “judgment calling” based upon its experience with the case and its general experience as to how much time a case requires. In order to exercise its discretion fairly, a district court needs flexibility in deciding whether to reduce a fee request and, if so, by how much. B. In the instant case, the defendants’ challenge to the amount of time spent by Gross tests the outer limits of the specificity requirement. Although the issue is a close one, we hold that the challenge meets this requirement. We also hold, with less difficulty, that the challenge to the fee award requested by McGahen was raised with sufficient clarity. However, we hold that the district court erred by reducing the fee request for Gross’s law clerk, because it was never challenged by the defendants. Cf. Missouri v. Jenkins, — U.S. —, 109 S.Ct. 2463, 2469-70, 105 L.Ed.2d 229 (1989) (holding that a law clerk’s time is recoverable as part of attorneys’ fees under § 1988). The district court reduced the time spent by Gross because it found the request to be excessive in light of Gross’s expertise in ERISA law. Excessiveness of time spent in light of an applicant’s expertise is a legitimate reason for reducing a fee award. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983) (“A fee applicant cannot demand a high hourly rate — which is based on his or her experience, reputation, and a presumed familiarity with the applicable law — and then run up an inordinate amount of time researching that same law.”). The defendants had argued in their brief to the district court that lawyers at Gross’s level “could not require more than 75 or 100 hours to understand both the facts of this case and the relevant law bearing upon whether plaintiff’s benefits were payable upon severance or at retirement age.” Defendant’s Letter Br. to Dist.Ct. at 3, JA at 261. They thus raised with sufficient clarity the issue that the fee request was excessive in light of Gross’s ERISA experience. The troubling facet of the defendants’ challenge is that they never identified with precision the areas in which the district court reduced the fee petition — work on the complaints, research time, and conferencing — as areas for which the number of hours billed was excessive. We believe, however, that the defendants’ challenge, although not a model of clarity, was sufficient to notify Bell that the defendants were challenging the time that Gross spent researching and conferencing. However, we do not believe that the defendants sufficiently challenged the time that Gross spent drafting the two complaints. Although the defendants’ briefs do not explicitly mention research, such a challenge is implicit in their argument that Gross did not need much time to understand “both the facts of this case and the relevant law.” Id. As for the time spent conferencing with McGahen, defendants contended that because Gross’s billing sheets did not reflect any conferences with Bell, Bell must have met solely with McGahen, and McGahen must have then met with Gross to relay this information. Defendants contended that “[t]his procedure was, quite obviously, inordinately cumbersome and resulted in unnecessary time spent on the matter.” Defendants Medina and Stanley’s Letter Br. to Magistrate at 9 (Sep. 30, 1987), JA at 200. Thus, Bell was put on sufficient notice that she must justify the time spent by the two attorneys in conference. The court’s reduction of the time spent by Gross drafting the complaint is, however, a different matter. Although the defendants, in their briefs to the district court and the Magistrate, alleged generally that Gross spent too much time on this case in light of its simplicity and his expertise, and that Gross wasted time on issues that were not related to the issue on which Bell ultimately recovered, they never identified the drafting of the complaints as a problematic area. Consequently, although Bell was given an opportunity to contest the defendants’ characterization of the suit, she was never put on notice that she needed specifically to explain the amount of time spent on the complaint. We therefore believe that the district court erred in reducing the amount claimed on behalf of Gross with respect to drafting the complaints. The defendants’ challenge to McGahen’s lodestar was made with greater clarity. In their briefs before the Magistrate, which were incorporated by reference into their brief before the district court, defendants contended that McGa-hen’s lodestar was excessive in light of the fact that she provided “purely ministerial [services] which could have been performed by a paralegal or other support staff members.” Defendants Medina and Stanley’s Letter Br. to Magistrate at 7, JA at 198. This is a legitimate ground for decreasing a lodestar. See Delaware Valley Citizens’ Council for Clean Air, 762 F.2d at 279 (District court did not abuse its discretion in setting a rate of $25 an hour “[f]or work associated with legal work but which required little or no legal ability.”). Although the defendants urged that the district court decrease the hourly rate requested by McGahen, instead the court reduced the number of hours claimed by McGahen. However, we do not believe that this runs afoul of Cunningham I. As we see it, Cunningham I does not require that the type of reduction made by the court be exactly the same as that requested by the adverse party, as long as the fee applicant is given sufficient notice to present his or her contentions with respect to the reduction that the district court ultimately makes. In this case, Bell had an opportunity to respond and did respond to the allegation that McGahen’s lodestar should be reduced because of the allegedly ministerial nature of her services. See Plaintiff’s Letter Reply Br. to Magistrate at 12-13 (Oct. 8, 1987) (“Ms. McGahen’s responsibilities in this litigation were by no means limited to routine or ministerial chores.”), JA at 228-29. Bell has not identified any respect in which her response would have differed had she known that a reduction would be made in the number of hours McGahen claimed rather than her hourly rate. However, the defendants never challenged the request for fees for the law clerk. The district court’s reduction of the hours claimed for the law clerk was sua sponte and thus runs afoul of Cunningham I In sum, we conclude that Bell was put on notice with respect to the challenges to Gross and McGahen’s lodestars, but not with respect to the time claimed by the law clerk. Consequently, it was within the district court’s discretion to reduce the amounts claimed by Gross and McGahen in the way it did, but the court erred in declining to award the law clerk’s lodestar. C. As the Supreme Court has stated, although it is essential to allow the district court latitude to exercise its discretion in setting a fee award, “[i]t remains important... for the district court to provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Otherwise it is impossible for the reviewing court to assess whether or not the district court abused its broad discretion. Bell identifies several ambiguities in the district court opinion that make it difficult for us adequately to review its judgment. For example, she points to rhetoric in the district court’s opinion that suggests that fee awards should be proportionate to a plaintiffs recovery. She also alleges that, in determining the reasonableness of the award, the district court erroneously applied principles announced by this Court in Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir.1983), that bear only on the issue of whether attorneys’ fees should be awarded in ERISA cases. And she alleges that the district court made a number of computational errors. In contrast, the defendants urge us to defer to the broad discretion given to district court’s in setting fee awards. Although we hold that the contentions raised with respect to Gross and McGahen were sufficiently specific such that the district court could reduce their fees in the way it did, we believe that, in light of the troubling and confusing strands in the district court’s opinion that Bell identifies, a remand is warranted so that the district court can clearly express what it is doing. We cannot simply defer without knowing with certainty the reasons behind the district court’s exercise of discretion. 1. Proportionality. Near the beginning of its opinion, the district court quotes language from our opinion in Ursic which suggests that in an ordinary case fees should not be awarded that are disproportionate to the amount of relief obtained by the prevailing party. Dist.Ct.Op. at 4, JA at 278. Although the district court cited Gross’s expertise, the ministerial nature of McGahen’s duties, and a perceived inadequacy of documentation of the law clerk’s time to justify its specific reductions, Bell contends, based on the district court’s quotation from Ursic and on the fact that the amount of fees awarded by the district is almost equal to the amount of money that she obtained under the settlement, that the district court in fact reduced the fee award merely because it was disproportionate to the amount that Bell recovered. Bell charges that this constitutes reversible error. In City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), a plurality of four Justices stated that although the amount of damages awarded is “one of many factors that a court should consider in calculating an award of attorney’s fees” pursuant to 42 U.S.C. § 1988, there is no requirement under section 1988 that an award of attorneys’ fees be proportional to the damages awarded to the plaintiff. 477 U.S. at 574, 106 S.Ct. at 2694 (“We reject the proposition that fee awards under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers.”). Four other Justices dissented, contending that the plaintiff should have to demonstrate a reasonable relationship between the amount of the recovery and the amount of the fee, and that the fee could only be disproportionate in cases in which there is an identifiable specific benefit to other parties or if the defendants had through bad faith prolonged the litigation. Id. at 588-96, 106 S.Ct. at 2701-05 (Rehnquist, J., dissenting). Justice Powell concurred in the judgment, taking the position that disproportionate fee awards are permissible, but possibly suggesting that disproportion-ality is warranted only when the attorneys have vindicated the public interest. Id. at 586 & n. 3,106 S.Ct. at 2700 & n. 3 (Powell, J., concurring in the judgment). Prior to Rivera, this Court, in Cunningham I, 753 F.2d 262, invalidated a negative multiplier in a civil rights attorneys’ fees case that the district court had employed because it believed that the fee applicant “did not successfully advance new law which might serve the public interest in the future.” We held in Cunningham I that no prior case had suggested that it was appropriate to employ a negative multiplier simply because “the right in question was by its nature singular to the plaintiff.” 753 F.2d at 268-69. We pointed out that although a district court has a great deal of discretion in setting a fee award, its discretion is bounded by a “carefully crafted set of rules” that have not “been abandoned in favor of some standardless rule of district court gestalt.” Id. at 269. The Supreme Court vacated our judgment and remanded for reconsideration in light of Rivera. In Cunningham II, 807 F.2d 49 (3d Cir.

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

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

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).

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

UNITED STATES of America, Appellee, v. Walter Reed MARTINDALE, III, Appellant. No. 84-5329. United States Court of Appeals, Fourth Circuit. Argued Oct. 11, 1985. Decided May 21, 1986. Rehearing Denied July 3,1986. Blair Howard (John Frank Leino, Howard & Howard, P.C., Alexandria, Va., on brief), for appellant. Justin Williams, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., David B. Smith, U.S. Dept, of Justice, Washington, D.C., on brief), for appellee. Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges. DONALD RUSSELL, Circuit Judge: This is a bizarre case of mystery and high Mideastern intrigue reminiscent of a James Bond novel. We sketch the facts of the story only to the extent that they are necessary to an understanding of the issues on appeal. The central figure in the case and the defendant on appeal is a former officer in the State Department. He served apparently in an intelligence capacity of some importance in both the Middle East and Vietnam. During this time, he enjoyed diplomatic status and traveled under a diplomatic passport. A few yfears before the incidents which led to his prosecution, he either resigned or was terminated from government service. According to his testimony, he then engaged in private trading, being associated with a Middle Eastern group in some nebulous or indefinite ventures never entirely disclosed. In connection with his employment with this group, he undertook a careful and extensive surveillance of a member of a prominent Saudi Arabian family, the Al-Fassi’s, who resided on the outskirts of London. The defendant gave a number of reasons, none free of doubt, for the surveillance. He suggested at his English interrogation that his group was interested in inducing Mr. Al-Fassi to become a co-investor. He had early on, however, confided to a retired Government intelligence agent, Goodman, with whom he had worked while employed by the Government, that he had been asked by Sheik Ibrahim Al-Rawaf to arrange an assassination in London. He indicated that a “Prince Naif” was the financial backer of the enterprise. He requested Goodman to review the planning for what was described felicitously as “this operation.” Goodman actually visited London with the defendant for this purpose. While there, Goodman contacted a Vietnamese Phuc, whom both Goodman and the defendant had known in Vietnam. The three met and the defendant indicated to Phuc that he (the defendant) might have some work for him and other Vietnamese in the area. Sometime later, on returning to Alexandria, Virginia, the defendant told Goodman to ask Brookshire, a retired Army officer who had served with the two of them in Vietnam, to secure for him (the defendant) an Uzi semi-automatic or automatic gun of Israeli manufacture. The defendant explained he sought this gun for a foreign national who would be taking it permanently out of the United States. Brookshire secured the Uzi gun as requested and, with the assistance of another mutual friend, delivered it to the defendant at a meeting in Petersburg, Virginia. At this time, the defendant’s story to Goodman was that the gun was intended for a bodyguard of AlRawaf. The defendant later telephoned Goodman from London, told him he had “the items,” which Goodman understood to refer to the gun, and secured from him (Goodman) the name of the Vietnamese individual whom they previously had seen in London. The defendant proceeded to communicate with Phuc and sought to engage him in his surveillance of Al-Fassi. The defendant allegedly used the word “kidnap” in connection with the intended surveillance, though the defendant denies Phuc’s testimony on the use of the word “kidnap.” Phuc did not initially understand the word “kidnap” according to his testimony but, having become suspicious of the defendant and his project, he consulted a Vietnamese friend who told him the meaning of “kidnap.” Concerned, Phuc determined to consult Scotland Yard. He was instructed by Scotland Yard to maintain contact with the defendant. On his next visit to Phue’s residence, the defendant brought with him an attache box, which he explained to Phuc contained a radio to be given to a friend in the Mid-East and which he wished to leave with Phuc for a couple of weeks. Phuc accepted the box but, as soon as the defendant left, he called Scotland Yard which took possession of the attache box, opened it and discovered both the Uzi gun, a .38 calibre revolver, and ammunition for both weapons. At this point, Scotland Yard determined to break the case. Officers of Scotland Yard took the defendant into custody and, with defendant’s consent and after giving him the appropriate warnings under British law, interrogated him at some length. The defendant made many statements during this interrogation. He was later formally charged and plead guilty to firearms possession. After being held for another thirty days, he was released and allowed to board a plane to the United States without any passports (they having been seized) but with authority to travel granted by the United States Embassy in London. On arrival in the United States, the defendant was interviewed by the Customs authorities and about a week later he was interviewed by Special Agent Pederson of the Bureau of Alcohol, Tobacco and Firearms. This was followed by the indictment of defendant on nine counts. One count charged a conspiracy to violate the Gun Control Act of 1968; two counts charged the defendant with shipping a firearm in interstate commerce and in foreign commerce with intent to commit a felony; one count charged knowing receipt of an Uzi rifle in Virginia after having caused the rifle to be purchased outside Virginia; one count charged knowing delivery of a firearm to a common carrier for shipment in foreign commerce without written notice to the carrier; two counts charged unlawful use of a diplomatic passport; and, finally, two counts charged impersonating a State Department employee. After a trial he was convicted of seven of the counts and acquitted of two. Subsequent to sentence, he appealed the judgment of conviction. The defendant’s principal objections on appeal are directed at the admission in evidence of (1) the personally signed transcript of his interviews by British officers at Scotland Yard in London, (2) of his interview with the Customs officers when he returned to the United States after his British prosecution, and (3) of his interview at his own office by Officer Pederson. We shall consider in their order these several objections first. In their interrogation of the defendant, the British officers were engaged in the lawful pursuit of a separate and valid investigation into activities involving a violation of British law and conducted in compliance with British law. Of this there seems to be no dispute. Before the interrogations began, the British officers gave the customary British caution, advising the defendant that “he needn’t say anything unless he wished to do so, but what he did say would be taken down in writing and may be given in evidence.” There was no requirement on the part of the British officers of compliance with the rule either in Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and any admissions made by the defendant in the interviews by the British officers were admissible absent proof of duress or of a wilful attempt of American authorities to evade the strictures of Miranda or Massiah by employing the foreign authorities. United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983). The reason for such rule was stated in United States v. Chavarria, 443 F.2d 904, 905 (9th Cir.1971): Miranda was intended as a deterrent to unlawful police interrogations. When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police. Therefore, so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible. The district judge held an evidentiary hearing on the issue of duress in connection with the British interviews and, after such hearing, found no duress. That finding of the district judge is reversible only for clear error. United States v. Dodier, 630 F.2d 232, 236 (4th Cir.1980). The ruling of the district judge against duress was not clearly erroneous. It must be noted that the defendant is a well-educated, sophisticated individual with wide experience in the intelligence field. There is no reason to assume he was unaware either of his rights or of his surroundings. He had undoubtedly participated in investigations himself and suffered under no handicaps of inexperience, immaturity, or impaired competency. When asked if he would talk to the British officers, he had readily agreed. The interrogation was cordial throughout. Further, it must be remembered that the entire interrogation was typed and the defendant was given the opportunity to read it and verify the accuracy of the transcript. He did that and he signified his agreement with all the statements in the transcript by signing the transcript without any reservations. The only fact that the defendant adduces in support of his argument of duress is that during the interrogation he was denied the right to use a telephone. One of the British officers explained the reason for this denial and his explanation was accepted by the district judge as reasonable and credible. The denial of the use of a telephone was clearly not intended by the British officers to coerce the defendant. The facts being developed in the investigation indicated an extensive plot either to murder or kidnap an individual. Manifestly there were other parties necessarily involved in the operation in addition to the defendant. The officer feared that, if the defendant were allowed to use the telephone, the defendant might communicate with his confederates and alert them that the officers had discovered the plot and had placed him in custody. The result of such premature discovery could well thwart the officers’ ability either to prevent the crime or to apprehend and arrest others involved. Such reason appears reasonable. Plainly the denial was not intended to coerce the defendant nor, in the opinion of the district judge, did it coerce him. We, therefore, affirm the district court’s rejection of the motion of the defendant to suppress the transcript of the defendant’s British interrogation either under the Miranda rule or for duress. The defendant further objected to the introduction of his British interrogation because the statements given by him during the interrogation were not confessions but were in fact simply denials of wrongdoing and therefore exculpatory. As such, he urges they were inadmissible. We, however, have often held that exculpatory statements of the defendant, if shown to be false and fabricated, “are clearly admissible to prove [the defendant’s] guilty state of mind,” and as “evidence of guilt,” of “illicit intent” and of “consciousness of guilt.” United. States v. Hughes, 716 F.2d 234, 240-41 (4th Cir.1983); United States v. Williams, 559 F.2d 1243, 1249 (4th Cir.1977); United States v. Abney, 508 F.2d 1285, 1286 (4th Cir.), cert. denied, 420 U.S. 1007, 95 S.Ct. 1451, 43 L.Ed.2d 765 (1975); United States v. Wilkins, 385 F.2d 465, 472 (4th Cir.1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1144 (1968). To the same effect are the decisions of other circuits. United States v. Meyer, 733 F.2d 362, 363 (5th Cir.1984), and cases therein cited. The defendant offered as a further objection to the admission of the transcripts the references to statements made by Phuc in the questions addressed to the defendant by the British agents. These transcripts were offered after Phuc had testified and, so far as they related to Phuc’s testimony, were similar to his earlier testimony at trial. It is the defendant’s objection that this repetition of Phuc’s testimony in the phraseology of the agents’ questions represented an impermissible attempt to bolster the credibility of Phuc’s testimony and, as such, was inadmissible under the rule stated in Dowdy v. United States, 46 F.2d 417, 424 (4th Cir.1931): [Tjhere can be no doubt that in modern times the general rule is that a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. The defendant, however, overlooks that this evidence was not offered to bolster or corroborate Phuc’s testimony, but was offered and admitted merely “to put the question [then being answered] by the defendant in context,” in short, indicating what he was responding to. That was the sole purpose of including any reference to Phuc in the questioning. The district judge carefully cautioned the jury that it was “not to accept the truth of [such statement] as what Phuc did actually say.” That instruction was given at the instance and on the request of the defendant. We find no error here. The admissibility of defendant’s statements to the Customs agent, Fanning, and to the DEA agent, pederson, is also questioned by the defendant on this appeal because those statements were secured without giving the defendant the Miranda warnings. The flaw in this argument is that on neither occasion was the defendant in custody. Miranda is applicable only in cases where the defendant is in custody. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). In both interviews the defendant freely consented to answer the agent’s questions. He was thus under no restraint; he was subjected to no coercive action, either in word or deed. He was at liberty to terminate the discussion and to go his way anytime he chose to leave. He was neither under arrest nor in any type of custodial situation in either case. In fact, the Pederson interview was in the defendant’s own office. The district judge found that the defendant’s voluntary statements made under those circumstances were admissible. It is defendant’s position, though, that the Pederson interview was actually sufficiently custodial to require Miranda warnings since at the time, the defendant was the target of a grand jury investigation. Pederson denied that the defendant was known to him to be a target of a grand jury investigation. At the time of the interview, he knew no more of the defendant’s involvement than was set forth in a recent article in the Washington Post and that he had been given a subpoena to serve on the defendant. He inquired of the defendant about the article. The defendant proceeded unhesitatingly to give the same story he had already given the British officers and Mr. Fanning. It was, also, the same story the defendant gave in a later interview when his attorney was present. We find no error in the finding of the district judge that the defendant’s statements, statements already proved by other witnesses, as given to Officers Fanning and Pederson, were entirely voluntary. See United States v. Olmstead, 698 F.2d 224, 226-27 (4th Cir.1983); United States v. Wertz, 625 F.2d 1128, 1133-35 (4th Cir.), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136 (1980). The defendant has advanced the argument that his conviction under the conspiracy count (Count One) is inconsistent with his acquittal under the substantive counts (Counts Two and Four) and, therefore, must be voided. Implicit in this contention is the assumption that the conspiracy offense is the same as the substantive offenses in Counts Two and Four. The initial fallacy in this argument is its failure to recognize that the offense of conspiracy is a separate and distinct offense from the substantive offense or offenses and that one can be validly convicted under a conspiracy count even though acquitted of the substantive offense or offenses. Iannelli v. United States, 420 U.S. 770, 777-82, 95 S.Ct. 1284, 1289-92, 43 L.Ed.2d 616 (1975). As the Court said in United States v. Goldberg, 756 F.2d 949, 958 (2d Cir.1985): “A substantive offense and a conspiracy to commit that offense are separate and distinct crimes (citing cases). A defendant thus may be convicted of the crime of conspiracy even if the substantive offense was not actually committed.” It has long been the rule that inconsistency is not a ground for voiding a verdict of conviction. There may be a number of reasons why a jury may reach what may appear to be inconsistent verdicts but, so long as the evidence clearly supports the guilty verdict, inconsistency is no ground for invalidating the conviction. This was authoritatively settled by the Supreme Court in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), quoted and followed by us in United States v. Harris, 701 F.2d 1095, 1103 (4th Cir.), cert. denied, 463 U.S. 1214, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983): Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment____ The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. Finally, the defendant premises his contention in this regard on the assumption that the only substantive offenses related to the conspiracy are those charged in Counts Two and Four. This is in error. The conspiracy count charged had as its purpose the violation of various sections of the federal firearms statute. These violations were broadly divided into two groups: one dealt with foreign commerce, that is, with the transportation by air of the firearm from Alexandria, Virginia, to London, England; the second involved the transaction in interstate commerce as charged in Counts Three and Nine. The defendant was acquitted of the foreign commerce counts but — and this is what the defendant would disregard in his argument — he was convicted under all the substantive counts relating to interstate commerce. It is well settled that, where there is a conspiracy to violate two or more alleged criminal statutes, the jurors may properly convict if they find that the defendant conspired to violate any one of the statutes. This principle has been clearly stated in United States v. Wilkinson, 601 F.2d 791, 796 (5th Cir.1979): A single conspiracy may have several objectives (citing cases). When a conspiracy to violate two statutes is alleged, the jury may find the defendant guilty if they believe beyond a reasonable doubt that he or she conspired to violate either one of the statutes. It follows that, even if conviction on at least one of the substantive counts was essential to a conviction of conspiracy in this' case (a conclusion which, incidentally, we have already found incorrect), there was such a conviction and the conspiracy conviction would not be vulnerable to attack. There is some suggestion by the defendant, too, that the conspiracy conviction must be voided because there was a lack of proof of the commission of a murder. As Goldberg, supra, makes plain, proof of the commission of a murder is not required for conviction under the conspiracy count. The defendant was not charged with murder; he was indicted and convicted of conspiracy, as the district judge correctly declared in overruling this point raised by the defendant at trial. Finally, the defendant assails his conviction of impersonating a federal officer or employee in violation of 18 U.S.C. § 912. The defendant used his diplomatic passport not only in passing through Customs in London, England, but also in identifying himself on at least three occasions when registering at London hotels as being with the “State Department,” in presenting his diplomatic passport and asking for a discount as a U.S. State Department employee at Hertz Rent-A-Car at Gatwick Airport in England, and in receiving as such an employee a twenty-five per cent discount. This conduct on his part met the two-pronged test for conviction under section 912 as phrased in United States v. Parker, 699 F.2d 177, 178 (4th Cir.), cert. denied, 464 U.S. 836, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983). See also United States v. Cohen, 631 F.2d 1223 (5th Cir.1980), rehearing denied, 636 F.2d 315 (1981); United States v. Robbins, 613 F.2d 688 (8th Cir.1979); and United States v. Hamilton, 276 F.2d 96 (7th Cir.1960). For the reasons stated herein, we affirm the rulings of the district court and the defendant’s conviction under the indictment. AFFIRMED. . There is a statement in the record that the entire operation unraveled as a result of the investigation of the defendant, leading to the indictment in England of the defendant’s associate, Ibrahim Al-Rawaf. . The court in United States v. Di Stefano, 555 F.2d 1094, 1104 (2d Cir.1977) said: False exculpatory statements are not admissible as evidence of guilt, but rather as evidence of consciousness of guilt. This is contrary to the rule as stated by us in United States v. Williams, supra, and in United States v. Abney, supra. However, Di Stefano did not find the evidence of false exculpatory statements inadmissible; its ruling related only to jury instruction on the effect to be given such evidence. The instruction of the district judge on the weight to be accorded such evidence is not in issue in this case and Di Stefano is therefore not apposite. . See in this connection, our opinion in United States v. Parodi, 703 F.2d 768, 785-87 (4th Cir.1983).

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

NEW YORK SHIPPING ASSOCIATION, INC., International Longshoremen’s Association, AFL-CIO, Council of North Atlantic Shipping Associations, Atlantic Container Line, Ltd., Dart Containerline Company, Limited, Hapag-Lloyd Aktiengesellschaft, “Italia” S.P.A.N., Nedlloyd Lines B.V., Puerto Rico Maritime Shipping Authority, Sea-Land Service, Inc., Trans Freight Lines, Inc., and United States Lines, Inc., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. NEW YORK SHIPPING ASSOCIATION, INC., et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, American Trucking Assoc., Inc., American Warehousemen’s Assoc., West Gulf Maritime Assoc., National Customs Brokers & Forwarders Association of America, Inc., International Association of NVOCCs, et al., Intervenors. Nos. 82-1347, 87-1370. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 17, 1987. Decided Aug. 9, 1988. Donato Caruso, with whom C.P. Lambos, New York City, for New York Shipping Association, Inc.; William Karas, Washington, D.C., for Atlantic Container Line, Ltd.; Thomas W. Gleason and Ernest L. Mathews, Jr., New York City, for Intern. Longshoremen’s Ass'n, AFL-CIO; Robert S. Zuckerman, Edison, N.J., for Sea-Land Service, Inc.; Francis A. Scanlan, for Council of North Atlantic Shipping Associations, were on the joint brief, for petitioners. Nicholas G. Maglaras, New York City, also entered an appearance for New York Shipping Ass’n, Inc. in 87-1370. Edwin Longcope and Allan J. Berdon, New York City, also entered appearances for petitioner, Dart Containerline Co., in 82-1347. James W. Pewett and Ronald A. Capone, Washington, D.C., entered appearances for petitioner Puerto Rico Maritime Shipping Authority in 82-1347. Stanley O. Sher, John R. Attanasio and Robert A. Hazel, Washington, D.C., entered appearances for petitioners, Hapag-Lloyd Aktiengesellschaft, “Italia” S.P.A.N. and Nedlloyd Lines in 82-1347. John C. Cunningham, Atty., Federal Maritime Com’n, with whom Robert D. Bour-goin, Gen. Counsel, Federal Maritime Com’n, Robert B. Nicholson, Robert J. Wig-gers, Attys., Dept, of Justice and Gordon M. Shaw, Atty., Federal Maritime Com’n, Washington, D.C., were on the brief, for respondents. C. Jonathan Benner, Atty., Federal Maritime Com’n, Washington, D.C., also entered an appearance for respondent, Federal Maritime Com’n, in No. 82-1347. Gerald Ullman, New York City, for Nat. Customs Brokers and Forwarders Ass'n of America, Inc., with whom, Kenneth E. Sie-gel, Kevin M. Williams, Alexandria, Va., for American Trucking Associations, Inc.; William H. Towle, for American Ware-housemen’s Ass’n; Raymond P. deMember, Fairfax, Va., for Intern. Ass’n of NVOCC’s and Florida Customs Brokers and Forwarders Ass’n; were on the joint brief, for inter-venors, American Trucking Ass’n, Inc., et al. in 87-1370. Daniel R. Barney, Alexandria, Va., also entered an appearance for intervenor, American Trucking Ass’n, Inc., in 87-1370. R. Frederic Fisher, Lawrence N. Minch, San Francisco, Cal., and Richard D. Gluck, Washington, D.C., were on the brief, for intervenor, West Gulf Maritime Ass’n, in 87-1370. Before BUCKLEY and D.H. GINSBURG, Circuit Judges and MARKEY, Chief Judge. Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a). Opinion for the Court filed by Circuit Judge D.H. GINSBURG. D.H. GINSBURG, Circuit Judge: These two petitions for review require us to revisit the legal imbroglios arising from a collective bargaining agreement between the International Longshoremen’s Association (ILA) and ocean common carriers, known as the Rules on Containers. The Rules implement, in ports along the Eastern Seaboard and the Gulf of Mexico, a technological innovation in the ocean shipping industry referred to as “containerization.” The Supreme Court has held that the Rules are a valid work preservation agreement under the federal labor laws, in a case where the “difficult and complex problems” that the Rules pose under the federal shipping laws were “not properly before [the Court].” NLRB v. International Longshoremen’s Ass’n (ILA I), 447 U.S. 490, 512, 100 S.Ct. 2305, 2317, 65 L.Ed. 2d 289 (1980). These shipping law problems are now ripe for our consideration. The only issue in No. 82-1347 is whether the Commission properly assumed jurisdiction over the provisions of the Rules filed in carrier tariffs. In No. 87-1370, we review the Commission’s decision on the merits that certain shipping practices mandated by the collectively bargained for Rules violate, as published in tariffs, the shipping laws. The Commission held that its regulatory jurisdiction extends to those provisions of the Rules that must be published in the tariffs of the signatory carriers. In exercising that jurisdiction, the Commission concluded that “any effort... to balance ‘labor considerations’ against the clear evidence of unreasonable transportation burdens and discriminations before [it] would represent a failure... to discharge the duties assigned to [it] by Congress.... ” “50 Mile Container Rules” Implementation by Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports, 24 Shpg.Reg.Rep. (P & F) 411, 415 (1987) (hereinafter 50-Mile Rules). Analyzing the Rules under “traditional transportation factors,” the Commission held that the shipping practices mandated by the Rules were unreasonable and unjustly discriminated against certain classes of shippers. Accordingly, the respondent carriers were ordered to cease and desist from publishing the Rules in their tariffs and from enforcing them. In Part I of this opinion, we discuss the background to this dispute, containerization and its effect on the shipping industry, the Rules and prior litigation surrounding them, and the proceedings before the Commission in this case. In Part II, we determine that this court has jurisdiction over the petition for review in No. 82-1347, and that the Commission properly assumed jurisdiction over the Rules as carrier tariffs. In Part III, we uphold the Commission’s conclusion that the Rules were unreasonable and discriminatory insofar as transportation criteria alone are considered, and approve its determination to exclude from its analysis the labor policy considerations urged upon it by petitioners. Having found that the Commission’s decisions concerning both the scope of its jurisdiction and the substantive validity of the Rules are consistent with its statutory mandate, and that substantial evidence supports its ruling on the merits, we deny the petitions for review. I. Background The introduction of container technology revolutionized the maritime shipping industry, altering in fundamental ways the methods by which large quantities of ocean-bound cargo are handled and transported. It has been hailed as “the single most important innovation in ocean transport since the steamship displaced the schooner.” ILA /, 447 U.S. at 494, 100 S.Ct. at 2308 (quoting Ross, Waterfront Response to Technological Change: A Tale of Two Unions, 21 Lab.LJ. 397, 398 (1970)). A. Containerization and the Rules Containerization is important to the shipping industry primarily because it is an efficient intermodal means of transporting ocean-bound cargo to and from inland origins or destinations. Both shippers (those seeking to have cargo transported) and carriers (those actually transporting the cargo) benefit from the efficiencies of containerization. Before containerization was implemented, all cargo to be shipped by ocean common carriers was transported to the pier from inland origination points by truck or railcar. The loose, or “break-bulk,” cargo was there unloaded by employees of the ocean carriers or of steve-doring companies, known as longshoremen. These workers then transferred the cargo piece by piece to the ship. This process is self-evidently labor-intensive, requiring longshoremen to check and sort the cargo, place it on pallets, hoist it by means of a forklift or hook onto the deck of the ship, and stow it into the ship’s hold. For incoming cargo, the process was essentially reversed. Containers eliminate much of the on-pier handling of cargo. They are large metal receptacles that can be loaded (or in the parlance of the trade, “stuffed”) at off-pier facilities, attached to a truck chassis or a rail flatcar at those facilities, transported to a pier, and finally, loaded directly into specially designed “container ships.” The containers can likewise be removed from the ship and transported directly to the ultimate consignee for unloading (or “stripping”). Containers thus link land-bound methods of transportation to ocean-bound methods, with obvious advantages: The use of containers is substantially more economical than traditional methods of handling cargo. Because cargo does not have to handled and repacked as it moves from the warehouse by truck to the dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are significantly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most significantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship. As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo. ILA I, 447 U.S. at 494-95, 100 S.Ct. at 2308-09 (footnotes omitted). See generally Note, Containerization and Intermodal Service in Ocean Shipping, 21 Stan.L.Rev. 1077, 1078 (1969). The efficiencies of containerization as a means of transporting cargo between shippers and carriers have also been exploited by various cargo-handling businesses. “Non-vessel operating common carriers” (NVOs), also referred to as consolidators, offer container services to shippers with less than containerload quantities of cargo to transport. These shippers would otherwise have to transport their cargo by traditional, labor-intensive methods. The costs of shipping such smaller loads are much higher than the costs of transporting cargo in containers, not only because pier-side labor costs generally exceed off-pier labor costs, but also because break-bulk cargo is subject to higher carrier rates than containerized cargo. An NVO offers the advantages of containerization to a shipper with less than containerload quantities of cargo by consolidating its cargo with that of other shippers, stuffing it into one container, and transporting it under a single bill of lading at container rates. When the container is delivered by the ocean carrier to its port destination, it is forwarded to the NVO’s facilities where the cargo in it is sorted and transported to its various consignees. NVOs perform these consolidation and de-consolidation functions at their own facilities, or by contract with independent ware-housemen or trucking companies, or less frequently, by delivering consolidated shipments break-bulk to the pier where they are stuffed into containers by longshoremen in the first instance. NVOs take their profits by charging rates within the margin between carrier rates applicable to break-bulk shipments (which the smaller shippers would otherwise have to pay) and special “freight-all-kinds” rates governing consolidated container loads. Shippers obtain additional advantages from NVOs, including “shorter delivery times, a single bill of lading, reduced risks of loss, damage, and pilferage at dockside, and specialized services not provided by the [ocean carriers].” Council of North Atlantic Shipping Ass’ns v. FMC (CONASA), 672 F.2d 171, 174 (D.C.Cir.1982) (footnotes omitted). Despite the beneficial effects of containerization in terms of pierside productivity and transportation efficiency, containerization has not been an unalloyed blessing to the shipping industry. As is typically the case when innovative labor-saving devices become available to industry, container technology has had a considerable impact on workers. The longshore trade has been noticeably and severely affected. “In the Port of New York alone,... annual [long-shore] employment slipped from 43,000,000 man-hours in 1958 to less than 20,000,000 in 1977 while the annual volume of cargo shipped through the port doubled.” American Trucking Ass’ns v. NLRB, 734 F.2d 966, 969 (4th Cir.1984), aff'd sub nom., NLRB v. International Longshoremen’s Ass’n (ILA II), 473 U.S. 61, 105 S.Ct. 3045, 87 L.Ed.2d 47 (1985); see CONASA, 672 F.2d at 174-75. As a consequence, containerization has created deep divisions between the ILA and ocean common carriers; it has been a “hotly disputed topic of collective bargaining.” ILA I, 447 U.S. at 496, 100 S.Ct. at 2309. The Rules on Containers, the relevant portions of which are set out in Appendix A to this opinion, are the result of that collective bargaining, pitting carriers, seeking fully to implement container technology, against the ILA, bargaining to preserve jobs for its members. An agreement between these competing interests was reached only after intervention by a presi-dentially-appointed mediator and a bitter strike in 1968 that lasted 57 days in the Port of New York and more than 100 days in the Gulf ports. See CONASA, 672 F.2d at 175-76. The Rules create zones with a 50-mile radius from designated points at each ILA port along the Atlantic and Gulf coasts. The Rules require that all container-load cargo originating from or destined to locations within the zones be stuffed or stripped at the pier by ILA longshoremen. Exceptions are made for containers stuffed with mail, personal belongings of individuals taking up residence overseas, and the personal effects of military personnel. The Rules also exempt export and import cargo in full containers that have been stuffed by “qualified shippers and consignees” and meet certain other requirements. A qualified shipper is defined in the Rules as a “manufacturer or seller having a proprietary interest (other than in the transportation or physical consolidation or de-consolidation) in the export cargo being transported and who is named in the dock/cargo receipt.” A qualified consignee, likewise, is defined as a “purchaser or one who has a proprietary financial interest (other than in the transportation or the physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order.” The other requirements are that the container must be stuffed or stripped, respectively, at the qualified shipper’s or the qualified consignee’s own facilities by its own employees. An additional exemption is provided for full container-load import cargo of a qualified consignee stripped at a “bona fide public warehouse” within the 50-mile zones. The Rules prohibit ocean carriers from furnishing containers to NVOs or other consolidators or deconsolidators. As a result, these NVOs must lease or purchase containers from other suppliers if they choose to deliver containerized cargo to the pier. By contrast, carriers furnish containers at no charge to “qualified” shippers and consignees, as well as to shippers and manufacturers outside the 50-mile zones. The Rules are enforced through an elaborate system of reporting requirements and penalties. Shippers must submit documentation enabling the carriers to determine whether the shippers’ containers are exempt from pier-side stuffing and stripping. If a shipper delivers a stuffed, non-exempt container to the pier, it must be stripped and restuffed into the same container by ILA workers, at a cost that varies from $200 to $325 per container, depending upon its size. The Rules do not require that these costs be passed on to the nonconforming shipper, but generally it is the shipper who pays. Should a nonexempt container surreptitiously pass over the pier, the ocean carrier transporting it is subject to a penalty of $1000. The generally accepted net result of the Rules is that “about 20 percent of the containerized cargo [is preserved] to the longshoremen for stuffing and stripping, with the remaining 80 percent passing over the piers intact.” 50-Mile Rules, 24 Shpg. Reg.Rep. at 417; see CON ASA, 672 F.2d at 176. B. Prior Litigation Over the Rules 1. Labor Law Issues Between 1973 and 1979, the NLRB entertained a series of challenges to the Rules under sections 8(e) and 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. §§ 158(e) & 158(b)(4)(B) (1982). Those provisions generally proscribe union activity, unilateral or in concert with an employer, that is intended to have “secondary” effects — i.e., that seeks to affect labor or business relationships outside its own collective bargaining relations. Specifically, truckers and consolidators alleged that the Rules were an illegal “hot cargo” agreement — a form of prohibited secondary activity — because the ILA was attempting to obtain for its members work that had traditionally been performed at off-pier facilities. The union and the carriers, by contrast, argued that the Rules were not intended to be a vehicle for securing for longshoremen work that had traditionally been performed by truckers or consolidators; instead, they maintained that the work in question was analogous to work falling within the ILA’s traditional jurisdiction. In their view, the Rules were thus a valid “work preservation” agreement. The NLRB defined the work in dispute as “the off-pier stuffing and stripping of containers.” See, e.g., International Longshoremen’s Ass’n (Dolphin Forwarding, Inc.), 236 N.L.R.B. 525, 526 (1978). With the work so defined, the NLRB agreed with the complaining parties that the Rules were an unlawful attempt by the ILA to acquire extra-jurisdictional work. It consequently ordered the ILA and certain signatory carriers to cease and desist from enforcing the Rules. This court, however, in International Longshoremen’s Ass’n v. NLRB, 613 F.2d 890 (D.C.Cir.1979), declined to enforce an NLRB cease and desist order against the Rules. The Supreme Court affirmed our decision, holding that the NLRB had misapplied the “work preservation doctrine.” ILA I, 447 U.S. at 507-11, 100 S.Ct. at 2315-17. According to the Court, the NLRB “ignore[d] the fact that the impact of containerization occurred at the interface between ocean and motor transport....” The work in question, therefore, could reasonably be regarded as work traditionally performed either by longshoremen or by off-pier trucking and cargo-handling businesses. The Court remanded the case for the NLRB to consider in the first instance “whether the historical and functional relationship between this retained work and traditional longshore. work can support the conclusion that the objective of the [Rules] was work preservation rather than the satisfaction of union goals elsewhere.” Id. at 508, 100 S.Ct. at 2315. After the NLRB had reconsidered the matter, the Supreme Court revisited the issue, holding that the Rules in their entirety are a permissible work preservation agreement. ILA II, 473 U.S. at 84, 105 S.Ct. at 3058. Despite these two journeys from the NLRB to the Supreme Court, the question whether the Rules may lawfully be implemented and enforced by ocean common carriers remains an open one. For, in ILA II, the Court did not confront the issue it had specifically reserved in ILA I: whether the Rules on Containers run afoul of the proscriptions against unreasonable and discriminatory practices with which ocean carriers must comply under the federal shipping laws. Thus, after surviving barrages from multiple legal arsenals, it is clear only that the proponents of the Rules have won an important battle; they have not emerged victorious in this twenty-years’ war. 2. Shipping Law Issues Well before the Supreme Court decided the labor law issues in ILA I and ILA II, the Rules were embattled under the shipping laws before the Federal Maritime Commission. On March 15, 1973, two common carriers, Sea-Land Services, Inc. and Gulf Puerto Rico Lines, Inc., filed with the Commission proposed amended tariffs, which included provisions of the Rules on Containers then in effect. The Commission, acting pursuant to its authority under the Intercoastal Shipping Act, 1933, 46 U.S. C.App. § 843 et seq. (1982), suspended the tariffs and instituted an investigation to determine whether the Rules, if implemented by the carriers, violated specified sections of the Shipping Act, 1916, 46 U.S.C. App. § 813 et seq., and the Intercoastal Act. Hearings were conducted before an Administrative Law Judge (AU), who concluded that the Commission properly exercised jurisdiction over the Rules and that the Rules violated all the cited provisions of the shipping laws. Sea-Land Serv., Inc. and Gulf Puerto Rico Lines, Inc.—Proposed Rules on Containers, Initial Decision, 21 F.M.C. 7 (1978). The AU noted the “fundamental truth... that the FMC has jurisdiction over tariffs (rules, rates, etc.) of ocean common carriers,” from which it followed “the FMC clearly has jurisdiction over the lawfulness of [the] tariff rules” under investigation. He went on to observe that “unlawful tariff rule discrimination is unlawful tariff rule discrimination, regardless of the fact that it may have been caused by a work preservation rule, and it matters not at all whether the work preservation rule is lawful in and of itself.” Id. at 29. The Commission adopted the AU’s decision, changing only the effective date of the cease and desist order. In discussing the parties’ exceptions to that decision, however, the Commission addressed the issue of labor policy considerations in somewhat different terms than had the AU. It concluded that the existence of a collective bargaining agreement which affects but is not a part o/the transportation aspects of a shipper’s relationship with his carrier, need not be given overwhelming priority or weight as a transportation factor by which to justify dissimilarity of treatment [among shippers]. We may agree that such an agreement is a factor to be considered. However, there are other factors. The mere existence of a collective bargaining agreement does not preempt those other factors or foreclose our consideration of them.... We do not view the impact of the National Labor Relations Act as permitting a common carrier to disregard entirely its statutory obligations when conducting and resolving labor/management negotiations. Sea-Land Serv., Inc. and Gulf Puerto Rico Lines, Inc.—Proposed Rules on Containers (Sea-Land), 21 F.M.C. 1, 4 (1978) (emphasis in original). The Commission’s decision came before this court for review, but the only issue briefed by the petitioners was whether the Commission had jurisdiction to investigate the carriers’ tariffs. CONASA, 672 F.2d at 179. The carriers seeking review there argued that practices arising out of the terms of a collective bargaining agreement, even if they must be set forth in the carriers’ tariffs, are exempt from Commission scrutiny for either or both of two reasons: (1) the limitations on the Commission’s jurisdiction set forth in section 5 of the Maritime Labor Agreements Act of 1980 (the MLAA), 46 U.S.C.App. § 841c; and (2) a nonstatutory labor exemption. We rejected these arguments, holding first that section 6 of the MLAA, which states that that law “shall not affect... formal Commission proceedings prior to the date of [its] enactment,” Pub.L. No. 96-325, 94 Stat. 1021 (1980), rendered the jurisdictional limitations that section 5 placed on the Commission inapplicable to the case. CONASA, 672 F.2d at 182-83. We also found it was unnecessary to determine whether [a] nonstatutory [labor] exemption applies to the substantive provisions of the shipping laws, because the Rules on Containers would not qualify for such an exemption under the definition adopted by the Supreme Court. In 1978 the Court decided, in FMC v. Pacific Maritime Ass’n [(PMA), 435 U.S. 40, 98 S.Ct. 927, 55 L.Ed.2d 96 (1978)], that an agreement is not exempt if it directly imposes terms on persons or entities outside the agreement.... We conclude that, because enforcement of the Rules on Containers by inclusion in steamship company tariffs imposes terms on third parties, it raises shipping law issues which are within the FMC’s statutory responsibilities. Id. at 183. Although we thus concluded that the Commission properly exercised jurisdiction over the Rules in that case, we remanded the matter on the merits. Two important Supreme Court cases bearing on the issues before the Commission had been decided between the Commission’s final order and our decision on review. See PMA, supra; ILA I, supra. We thought that, “[i]n the interests of justice, the FMC should have the opportunity to reconsider its previous determination in light of these two decisions.” CONASA, 672 F.2d at 189. On remand, the Commission reaffirmed its initial opinion. By order of this court, however, further proceedings in that case were held in abeyance pending the Commission’s decision in the investigation presently before us. C. This Case Before the Commission After the Supreme Court decided ILA I, the union insisted that all signatory carriers unaffected by the Commission’s Sea-Land decision adhere to the practices mandated by the Rules. Many carriers complied, and the Rules were implemented until the Third Circuit enforced an NLRB order requiring carriers to cease and desist from doing so pending its decision on remand in ILA I. Pascarell v. New York Shipping Ass’n, No. 81-13 (D.N.J.), aff'd, 650 F.2d 19 (3d Cir.1981). The Rules were thus implemented only briefly during January and February 1981. This brief implementation of the Rules, however, prompted several complaints from shippers and freight handlers. In response to these complaints, the Commission opened Docket No. 81-11, an investigation naming over 140 carriers as respondents. New York Shipping Association, the Council of North Atlantic Shipping Associations, the Pacific Maritime Association, and the ILA intervened in support of the carriers and of the Rules. In an Interim Report and Order, the Commission identified five basic issues that the investigation was designed to resolve: (1) must practices determining the availability of carrier-controlled containers be published in FMC tariffs; (2) does the [MLAA] alter the Commission’s jurisdiction over tariff rates and practices; (3) is Commission regulation of the Container Rules precluded or limited by the policies of the National Labor Relations Act; (4) does the refusal to furnish containers to non-ILA consolidators located within 50 miles of the carrier’s pier, or the other Container Rules practices... violate sections 14 Fourth, 16 First, 17 or 18(a) of the Shipping Act, 1916; and (5) which of the Respondents have implemented or would necessarily implement all or part of the Container Rules. “50-Mile Container Rules Implementation By Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports — Possible Violations of the Shipping Act, 1916, Interim Report and Order, 21 Shpg.Reg. Rep. (P & F) 544, 548 (1982) (hereinafter Interim Report).” The Commission held that because the Rules restrict the shipping public’s use of shipping “privileges and facilities,” “[t]he basic features of the Container Rules must be published in an ocean carrier’s tariff,” id. at 554; that under the “tariff matter provision” of the MLAA, jurisdiction over the Rules was expressly conferred upon the Commission; and that the Rules were therefore subject to the substantive provisions of the shipping laws. Id. at 556. The Commission also determined that the Rules did not meet the criteria for immunity from Commission scrutiny under the “nonstatutory labor exemption” recognized in past Commission decisions: The Container Rules have a direct and practical impact upon both labor and shipping interests. Nonetheless, a Commission order prohibiting this particular method of resolving labor/management conflict as an unjust ocean carrier practice would not undermine the basic collective bargaining process created by the National Labor Relations Act, whereas the absence of Shipping Act regulation would eliminate the fundamental premise of the Shipping Act and other common carrier statutes — that similarly situated shippers be treated equally. Id. at 557 (footnote omitted). The Commission referred the remaining issues to an Administrative Law Judge for further hearings. Before the AU, the dispute among the parties centered on the extent to which, if any, national labor policy considerations must be taken into account in determining whether the Rules, insofar as they must be set forth in the respondent carriers’ tariffs, constituted unreasonable or unjustly discriminatory shipping practices. The AU, assaying this conflict, concluded that “[w]hat is needed then is to establish a methodology or criteria to be used in reconciling ‘labor policy’ with the requirements of the shipping statutes.” “50 Mile Container Rules” Implementation By Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports, Initial Decision, 22 Shpg.Reg.Rep. (P & F) 1660, 1680 (1985) (hereinafter Initial Decision). In fashioning such a methodology, the AU concluded that: The problem reduces itself to one of how far the ILA may go in its work preservation efforts before it impermissibly intrudes upon the rights of [others]- to conduct their business free of any discrimination or prejudice resulting from the efforts of the ILA. The answer lies in balancing the harm done to [others] against the benefits derived by the ILA. Id. at 1683. The AU acknowledged that the disparate treatment of shippers mandated by the Rules could not be justified by transportation considerations, and that his “ ‘balance of interest’ test is not itself without difficulty.” Id. at 1684, 1687-88. Nonetheless, the AU held that neither the parties urging the Commission to declare the Rules unlawful nor the Commission’s Hearing Counsel had demonstrated that the Rules had “any measurable impact” upon the complaining shippers and cargo handlers. Id. at 1684. Without such a showing, he concluded, the Commission and the complainants had failed to carry their eviden-tiary burden; the Rules, as a consequence, were upheld. In an exhaustive opinion, the Commission reversed the Initial Decision, rejecting the AU’s “balancing test” as “an illogical and intellectually untenable exercise.” 50-Mile Rules, 24 Shpg.Reg.Rep. at 458. The Commission concluded: [O]ur review of the twenty-year history of efforts by this agency, the [NLRB], the courts and Congress to reconcile the demands of the federal maritime and labor statutes indicates that any effort by the Commission to balance “labor considerations” against the clear evidence of unreasonable transportation burdens and discriminations before us would represent a failure by the Commission to discharge the duties assigned to us by Congress, and would undermine the balance between labor and shipping interests devised by Congress when it enacted the Maritime Labor Agreements Act of 1980, Pub.L. No. 96-325, 94 Stat. 1021. We believe that our responsibility to take “labor considerations” into account is limited to ensuring that the appropriate remedy for violations of the Shipping Acts is drawn no more broadly than necessary, so as to avoid any unwarranted impact on the legitimate collective bargaining interests of the carriers and the union. Id. at 415. The Commission also rejected as “inappropriately harsh” the evidentiary burden the AU had imposed on the Commission’s Hearing Counsel and the complaining shippers. In the Commission’s view, unless the complaining parties were seeking reparations, “it is sufficient that the testimony supports and confirms the evidence provided by the text of the Rules themselves.” Id. at 460. The Commission went on to note that, in any event, the complainants had adduced substantial evidence of injury. Id. at 461. Applying “traditional transportation factors,” the Commission held that the shipping practices mandated by the Rules violated sections 14 Fourth, 16 First, 17 second paragraph, and 18(a) of the 1916 Act; sections 10(b)(6)(C), 10(b)(ll)-(12), and 10(d)(1) of the Shipping Act of 1984; and section 4 of the Intercoastal Act. Id. at 468. Petitioners now seek review of these rulings. II. The Commission’s Jurisdiction Over the Rules In March 1982, New York Shipping Association and others filed a petition in this court seeking immediate review of the jurisdictional rulings in the Commission’s Interim Report, a petition which we dismissed without prejudice. New York Shipping Ass’n v. FMC, No. 82-1347, Order (D.C.Cir. May 19, 1983). In September 1987, after filing a petition for review of the Commission’s final decision on the merits, the petitioners moved to reinstate, and the Commission moved to dismiss, the 1982 petition for review of the Interim Report. We granted the motion for reinstatement, and ordered the parties to file supplemental briefs addressing in more detail both the jurisdictional basis for the Commission’s actions and the Commission’s motion to dismiss. A. The Commission’s Motion to Dismiss Preliminarily, petitioners argue that because the Commission did not oppose the motion to reinstate the 1982 petition, it “should not be permitted now... to raise objections to that motion under the guise of a separate motion to dismiss.” The question raised in the Commission’s motion goes, however, to the jurisdiction of this court, and as such can be neither foreclosed by the parties nor ignored by the court. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 2404 n. 21, 57 L.Ed.2d 274 (1978). The legal principle upon which the Commission relies in its motion to dismiss is that the Interim Report is not a “final order”; that being the case, it is not subject to review in this court under the Administrative Orders Review Act, 28 U.S.C. § 2342(3) (1982). We approach pragmatically the question whether agency action is “final” for purposes of judicial review. See FTC v. Standard Oil of California, 449 U.S. 232, 239, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980); Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Two considerations bear heavily in our analysis. We must determine “whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency decision.” Port of Boston Marine Term. Ass’n v. Rederi. Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970); see ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 603, 86 S.Ct. 1000, 1016, 16 L.Ed.2d 109 (1966); Rochester Tel. Corp. v. United States, 307 U.S. 125, 143, 59 S.Ct. 754, 763, 83 L.Ed. 1147

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

Roy Jacey EVANS, Petitioner-Appellant, v. Ward LANE, Indiana State Prison, succeeded by Russell Lash since this cause was initiated, Respondent-Appellee. No. 17431. United States Court of Appeals Seventh Circuit. Jan. 7, 1970. Ronald J. Sklar, Chicago, Ill., for petitioner-appellant. William F. Thompson, Theodore L. Sendak, Atty. Gen. of Indiana, Mark Pe-den, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee. Before KNOCH, Senior Circuit Judge, KERNER, Circuit Judge, and GORDON, District Judge. . Judge Myron L. Gordon is sitting by designation from the United States District Court for the Eastern District of Wisconsin. KERNER, Circuit Judge. Petitioner appeals from the denial, without a hearing, of his Habeas Corpus Petition, brought pursuant to 28 U.S.C. § 2254. On appeal petitioner asserts two independent grounds for relief. First, it is urged that the case be remanded for a hearing to determine whether the petitioner knowingly and intelligently waived his constitutional right to a full direct appeal. Second, it is urged that the Indiana post-conviction procedures contained in Indiana Supreme Court Rules 2-40 and 2-40A are violative of the equal protection and due process clauses of the fourteenth amendment, and that petitioner, an indigent, should be provided with a full transcript of all proceedings in his case and an attorney to pursue his rights in an attempt to obtain a belated appeal. Petitioner was convicted on April 28, 1959, of first degree murder and was sentenced to life imprisonment on May 6, 1959. Under Indiana law, petitioner had ninety days from June 2, 1959, to file an appeal, but on June 9, 1959, the petitioner was transferred from Indiana State Prison, where he had been taken after sentencing, to a State mental institution in Westville, Indiana. No steps were taken to perfect a direct appeal from the petitioner’s conviction. The petitioner remained in the institution until March 28, 1963, a period of almost four years, and then returned to Indiana State Prison, where he is presently incarcerated. Rules 2-40 and 2-40A of the Indiana Supreme Court require the public defender to represent an indigent prisoner in his attempt to secure a belated appeal if he finds any grounds upon which to sustain such proceeding. If the public defender refuses to provide such representation, because an appeal would be without merit, the Indiana Supreme Court may, after submission of a petition by the prisoner and a report by the public defender, order the public defender to provide the requested assistance. In such a proceeding before the Indiana Supreme Court, the petitioner acts pro se and is not entitled to a transcript. An indigent who is successful in such a petition before the Supreme Court, has an attorney appointed to represent him in his attempt to receive a belated appeal, and is then in the same situation as a defendant who is solvent and has retained a private lawyer to represent him, and is able to purchase a transcript. Consequently, Indiana Post-Conviction Rules 2-40 and 2-40A have been held to “create [s] an additional obstacle for an indigent in the event the public defender refuses to assist him. * * *” Newland v. Lane, 418 F.2d 143 (7th Cir., Nov. 10, 1969), and violative of the equal protection clause of the fourteenth amendment. See Frazier v. Lane, 282 F.Supp. 240 (N.D.Ind.1968): Any kind of screening procedure by which an indigent defendant such as petitioner herein must first run the gauntlet of a preliminary showing of merit before a person who, at best, stands in the position of amicus curiae, clearly does not come up to the standard demanded by the equal protection clause. The deficiency is not solved by allowing the Indiana Supreme Court to review the response and report of a public defender who has refused representation of an indigent defendant for the reason that there simply has been no representation by one acting as an active advocate. 282 F.Supp. at 245. Subsequent to petitioner’s appeal to this court, however, the Indiana Supreme Court passed new rules to provide for post-conviction relief. The new Indiana post-conviction rules entitled PC-1 and PC-2, effective August 1, 1969, provide in pertinent part that, “Upon receiving a copy of the petition including an affidavit of indigency * * * the Public Defender shall serve as counsel for petitioner.” PC-1 § 9. Petitioner asserts, however, that PC-1 and PC-2 do not afford him adequate review and suffer from the same constitutional infirmities as the old post-conviction rules 2-40 and 2-40A. Petitioner contends that PC-1 and PC-2 are unconstitutional because the new rules do not afford him access to a transcript of his trial as a matter of right, and that the only method by which he could receive such transcript would be if the public defender chose to exercise his discretion and requested one. In addition, although the petitioner admits the literal language of PC-1 § 9 requires the public defender to represent all indigents, he questions whether PC-1 § 9 will be interpreted in accordance with its literal language. In the absence of any Indiana state court interpretation of PC-1 and PC-2, it would be presumptuous of this court to speculate on what meaning the Indiana Supreme Court intended to give to PC-1 and PC-2. Principles of federalism require that the Indiana Court initially interpret its own post-conviction rules: [N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them [citations omitted]. Harrison v. N.A.A.C.P., 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1958). Consequently, pursuant to the new Indiana Post-Conviction Rules, petitioner may be able to secure his desired relief. Because the new rules may provide such relief, we find that petitioner has not exhausted all of his available state remedies as required by 28 U.S.C. § 2254. See Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Petition of Barry, 388 F.2d 592 (3d Cir.1965); Worley v. Swenson, 386 F.2d 186 (8th Cir.1967). Petitioner should attempt to obtain relief under PC-1 and PC-2, at which time such rules would be interpreted. If petitioner is denied relief he would have exhausted his remedies and may then file a § 2254 petition and raise, in light of an Indiana court interpretation, constitutional challenges to PC-1 and PC-2 and any other claims for federal relief. Mr. Ronald J. Sklar, a reputable member of the Illinois Bar, was appointed by the court to represent defendant on this appeal pursuant to the Criminal Justice Act of 1964. We thank him for his excellent professional service. Accordingly, the decision of the district court denying petitioner’s Writ of Habeas Corpus is affirmed without prejudice to the appellant’s right to assert a claim for federal relief after he has fully exhausted his available state post-conviction remedies. Affirmed. . Rules 2-40 and 2-40A of the Supreme Court of Indiana read in relevant part: Rule 2 — 40. In the event a belated motion for a new trial is filed in forma pauperis, it shall be the duty of the public defender of the State of Indiana to represent the petitioner in said proceedings, if he, after diligent inquiry, finds merit thereto, subject, however, to the provisions of Rule 2 — 40A [infra]. Rule 2 — 40A. It shall be the duty of the public defender of the State of Indiana to represent indigent persons who are inmates of penal institutions of the State of Indiana after their time for regular or timely appeal has expired, if requested so to do * * * petitions for belated motions for a new trial, and petitions for writs of cer-tiorari if he, after diligent inquiry, finds any grounds upon which to sustain such proceedings. In the event of the failure or refusal of the public defender to represent any petitioner in such cases (as provided in Rule 2 — 40 [supra]), upon petition filed in the clerk’s office of the Supreme Court setting up such facts that the public defender has failed or refused to represent them, a citation shall be issued to the public defender by this Court to show cause why he does not represent the petitioner, and he shall file his response and report with the clerk of this Court, which shall become a part of the record in this cause. Upon due consideration of said response and report, the Court shall determine wliether or not an order shall issue requiring the public defender to represent the petitioner. . RULE PC 1. POST CONVICTION RELIEF. SECTION 1. Remedy — To Whom Available — Conditions. (a) Any person who has been convicted of, or sentenced for, a crime by a court of this State, and who claims: (1) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this State; (2) that the court was without jurisdiction to impose sentence; (3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous; (4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; (5) that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or lie is otherwise unlawfully held in custody or other restraint ; (6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy; may institute at any time a proceeding under this Eule to secure relief. (b) This remedy is not a substitute for a direct appeal from the conviction and all available steps including those under Eule PC 2 should be taken to perfect such an appeal. Except as otherwise provided in this Eule, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence and it shall be used exclusively in place of them. This Eule supersedes present Supreme Court Eules 2-40, 2 — 40A and 2 — 40B. (c) This Eule does not suspend the writ of habeas corpus, but if a petitioner applies for a writ of habeas corpus, in the court having jurisdiction of his person, attacking the validity of his conviction or sentence, that court shall under this Eule transfer the cause to the court where the petitioner was convicted or sentenced, and the latter court shall treat it as a petition for relief under this Eule. * * * * * SECTION 9. Counsel. (a) Upon receiving a copy of the petition, including an affidavit of indigency, from the clerk of the court, the Public Defender shaE serve as counsel for petitioner, representing him in all proceedings under this Eule, including appeal, if necessary. Petitioner retains the right to employ his own counsel or to proceed pro se, but the court is not required to appoint counsel for a petitioner other than the Public Defender. In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner. Counsel shall confer with petitioner and ascertain ah grounds for relief under this Eule, amending the petition if necessary to include any grounds hot included by petitioner in the original petition. EULE PC 2. BELATED MOTION EOE NEW TEIAL — BELATED APPEAL. SECTION 1. Any defendant convicted after a trial or plea of guilty may petition the court of conviction for permission to file a Belated Motion for New Trial, where: (a) No timely Motion for New Trial was filed for the defendant; (b) The failure to file' a timely Motion for New Trial was not due to the fault of the defendant; and, (c) The defendant has been dfligent in requesting permission to file a Belated Motion for New Trial under this Eule. The trial court shall not consider the merits of the motion, but shaE determine whether there are grounds for allowing the Belated Motion for New Trial to be fUed, in a hearing conducted according to Sect. 5, Eule PC 1. If the trial court finds such grounds, it shaE permit the defendant to füe the motion, and the motion shall then be treated for all purposes as a Motion for New Trial filed within the prescribed period. If the trial court finds no such grounds, it shall deny defendant permission to file the motion. Defendant may appeal such a denial and the only assignment of error required is that the trial court ruling is contrary to law. SECTION 2. Any defendant convicted after a trial may petition the Supreme Court for permission to file a Belated Appeal where: (a) He filed a Motion for New Trial which was overruled; (b) No appeal was perfected for the defendant; (e) The faüure to perfect the appeal was not due to the fault of the defend-apt; and, (d) The defendant has been diligent in requesting permission to file a belated appeal. . Petitioner also raised the contention that even if PC-1 and PC-2 provide an adequate remedy, petitioner cannot receive adequate representation by the Public Defender’s Office since petitioner has twice before been denied representation by the Public Defender’s Office because his appeal was determined to be frivolous. If PC-1 and PC-2 require the public defender to represent petitioner, we see no reason why petitioner will not receive representation wliicli is commensurate with the highest standards of competency. Consequently, we find petitioner’s contention unfounded.

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?

Horatio K. HAWKINS, Plaintiff-Appellee, v. Robert STEINGUT, Chairman of the New York State Workers’ Compensation Board; Francis J. Griffin; William Kroeger; Ernest R. Latham; Henry M. Christman; Daniel Higgins; Seymour Posner; llene J. Slater; Ferdinand Tremiti; Walter Shields; William C. Mullany; Monica Gollub; and Joseph A. Tauriello, Individually and All, including the Chairman, Constituting the New York State Workers’ Compensation Board; George Bevan; Donald S. Vass; The New York State Department of Labor and The State of New York, Defendants-Appellants. No. 1297, Docket 87-7255. United States Court of Appeals, Second Circuit. Argued June 8, 1987. Decided September 18, 1987. Gail A. Wechsler, New York City (Levy, Gutman, Goldberg, and Kaplan, of counsel), for plaintiff-appellee. Lawrence S. Kahn, New York City, Deputy Sol. Gen. (Robert Abrams, Atty. Gen. of the State of N.Y., of counsel), for defendants-appellants. Before KEARSE, ALTIMARI and MAHONEY, Circuit Judges. ALTIMARI, Circuit Judge: This appeal presents the question whether the individual defendants are entitled to qualified immunity in a § 1983 action alleging that the New York State Workers’ Compensation Board failed to reappoint Horatio Hawkins as a referee because he was a Republican. The United States District Court for the Northern District of New York, Cholakis, J., denied defendants’ motion for summary judgment, holding that Hawkins had a clearly established right not to be terminated on the basis of party affiliation. We hold that defendants did not violate any of Hawkins’ clearly-established federal rights by failing to reappoint him, and therefore the individual defendants are entitled to qualified immunity as a matter of law. BACKGROUND The New York State Workers’ Compensation Board (“the Board”) is composed of thirteen members who are appointed by the Governor to staggered, seven-year terms. N.Y. Work. Comp. Law § 140 (McKinney 1965). In April 1972, the Board appointed Horatio Hawkins (“Hawkins”), who is a member of the Republican party, as a referee. The duty of a Workers' Compensation referee is “to hear and determine claims for compensation, and to conduct such hearings and investigations and to make such orders, decisions and determinations as may be required by any general or special rule or order of the board____” N.Y. Work. Comp. Law § 150(b) (McKinney 1965 & Supp. 1987). Referees are appointed for seven-year terms, id. at § 150(a), and are referred to by the Board as “Workers’ Compensation Law judges.” 12 N.Y.C. R.R. § 300.1(e). Hawkins alleges that when he was appointed in 1972, all the members of the Board were appointees of Governor Rockefeller, a Republican. In 1974, Democrat Hugh Carey was elected as Governor of New York, and according to Hawkins, proceeded to fill vacancies on the Board with members of the Democratic or Liberal parties. When Hawkins’ term expired in April 1979, the Board did not reappoint him. The Board did not, however, appoint a successor at that time, and Hawkins continued to serve as a “holdover” appointee, pursuant to N.Y. Pub. Off. Law § 5 (McKinney 1952). Hawkins contends that shortly before the expiration of his term, he informed the Board members of his desire to be reappointed. Arthur Cooperman, who was then Chairman of the Board, allegedly assured Hawkins that he would do everything in his power to get Hawkins reappointed. According to Hawkins, Cooperman encountered resistance from the Governor’s office, and ultimately failed in his efforts on Hawkins’ behalf. In July 1982, Hawkins received an official notice of termination from his Law Judge position. In June 1984, Hawkins commenced an action against defendants in the District Court for the Northern District of New York. He alleged that the Board’s failure to reappoint him as a Law Judge was based solely on Hawkins’ affiliation with the Republican party. Hawkins claimed that this politically-motivated termination violated clearly-established first amendment principles and deprived him of property without due process in violation of the fourteenth amendment. Although Hawkins requested various forms of relief, the only claim relevant to this appeal is Hawkins’ claim for damages, under 42 U.S.C. § 1983, against the Board members in their individual capacities. Defendants moved to dismiss Hawkins’ complaint on a number of grounds, including failure to state a claim, sovereign immunity and qualified immunity. On April 18, 1985, the district court granted the motion to dismiss in part, but denied the individual defendants’ motion to dismiss Hawkins’ § 1983 damages claim. The court found that the individual Board members were not entitled to qualified immunity from suit, apparently on the theory that Hawkins had a clearly-established first amendment right not to be terminated from his job because of party affiliation. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The case was subsequently reassigned to Judge Cholakis. After further proceedings, the individual defendants moved for summary judgment, again asserting their entitlement to qualified immunity from suit for damages under § 1983. The district court declined to reconsider the first amendment issue, under the doctrine of “law of the case,” holding that there had been no “change in controlling authority or other compelling reasons justifying reconsideration.” The court further held that there was a genuine issue of fact as to whether Hawkins had a property interest in the Law Judge position. The court accordingly. denied defendants’ motion for summary judgment. We hold that the individual defendants are entitled to qualified immunity, as a matter of law, because the right they are alleged to have violated was not a “clearly established ... right[ ] of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. We therefore reverse the judgment of the district court, and remand with instructions to grant summary judgment to the individual defendants. DISCUSSION 1. Hawkins’ first amendment claim Hawkins contends that the sole reason the Board did not reappoint him was his affiliation with the Republican Party. Defendants do not contest this allegation, and there is support for it in the record. Because we review the denial of a summary judgment motion, we must view the record in the light most favorable to the non-moving party, see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and accept Hawkins’ account of the reasons for his dismissal. The issue before us is thus whether, in July 1982, Hawkins had a clearly-established constitutional or statutory right not to be terminated from his position because of his political affiliation. Only if Hawkins had such a right would the individual defendants lose the protection of qualified immunity from suit under § 1983. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Hawkins asserts that the Supreme Court cases of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), as well as subsequent decisions relying on Elrod and Bran-ti, clearly established the proposition that an administrative law judge such as Hawkins could not be terminated for political reasons. In both Elrod and Branti, the Supreme Court held that “patronage” dismissals of certain public employees violated the rights to freedom of political belief and association protected by the first amendment. Elrod was a suit by former Republican employees of the Cook County, Illinois Sheriffs Office, who were dismissed following the election of a Democratic sheriff. The Court concluded that because plaintiffs were “nonpolicymaking” employees, they could not be dismissed based on party affiliation. “Policymaking” employees, on the other hand, could be dismissed for political reasons. The Elrod court did not define “policymaking,” but offered the following guidelines: An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policy-making position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. 427 U.S. at 368, 96 S.Ct. at 2687. In Branti, the Court refined the “policy-making” exception to the prohibition against patronage dismissals. Branti involved a suit by assistant public defenders who had been dismissed by a newly-appointed, Democratic Public Defender. The Branti Court noted: [T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. 445 U.S. at 518, 100 S.Ct: at 1295. The Court held that party affiliation was not an appropriate requirement for the office of assistant public defender, because such employees owe their primary allegiance to their individual clients, and do not serve to implement the political agenda of any governing body. The Branti Court expressly declined to consider whether party affiliation was an appropriate requirement for prosecuting attorneys, see id. at 519 n. 13, 100 S.Ct. at 1295 n. 13, but following Branti, the courts have held that party affiliation was an appropriate requirement for a city solicitor and assistant city solicitor, see Ness v. Marshall, 660 F.2d 517 (3rd Cir.1981), and for a city’s corporation counsel, see Bavoso v. Harding, 507 F.Supp. 313 (S.D.N.Y.1980). While Elrod and Branti developed a useful framework for assessing the constitutionality of patronage dismissals, it cannot be said that these decisions “clearly established” the law with respect to every governmental position. Following Branti, the courts have proceeded on a case-by-case basis to enumerate the permissible and impermissible instances of politically-motivated employment decisions; however, the Branti guidelines do not lend themselves to easy or automatic application. In the words of a recent First Circuit decision,' “[identifying generic categories of positions where partisan selection and rejection are permissible has ... proven tó be an elusive and intractable task.” Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir.1986) (en banc), cert, denied, — U.S. -, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). In Jimenez Fuentes, the First Circuit considered the question whether Regional Directors of the Puerto Rico Urban Development and Housing Corporation could be demoted because of their party affiliation. To aid its analysis, the court surveyed the body of circuit and district court opinions which had applied the Elrod and Branti standards to various types of governmental positions, id. at 240-41. None of the cases cited involved an administrative law judge or similar judicial position. The only case cited by Hawkins which dealt with a position somewhat similar to his own is Savage v. Commonwealth of Pennsylvania, 475 F.Supp. 524 (E.D.Pa.1979), affd, 620 F.2d 289 (3d Cir.1980), which involved the politically motivated dismissal of a Pennsylvania liquor control board hearing examiner. The Savage case, however, does not warrant the denial of qualified immunity in this case. To begin with, the function of the hearing examiner in Savage, unlike that of a Workers’ Compensation Law Judge, was solely to find facts, not to exercise any discretion. More importantly, a district court decision does not “clearly establish” the law even of its own circuit, much less that of other circuits. Although district judges within a particular circuit will frequently find each other’s decisions persuasive, they remain free to disagree. Indeed, on the very issue raised in this suit, a judge of the Southern District of New York concluded that the plaintiff, another former Workers’ Compensation Law Judge, was not likely to succeed on the merits of her § 1983 claim that Elrod and Branti protected her against politically-motivated dismissal; accordingly, the district court denied the plaintiff’s motion for a preliminary injunction. Garretto v. Cooperman, 510 F.Supp. 816 (S.D.N.Y.1981), affd, 794 F.2d 676 (2d Cir.1984). We therefore conclude that in July 1982, federal law was far from “clearly established” with respect to whether the prohibition against patronage dismissals extended to administrative law judge positions such as the one held by Hawkins. The individual defendants are thus entitled to qualified immunity as a matter of law from Hawkins’ first amendment claim. II. Deprivation of property without due process Hawkins also contends that defendants’ failure to reappoint him deprived him of property, in violation of his fourteenth amendment right to due process. Hawkins maintains that even after his statutory term expired, he continued to have a property interest in the Law Judge position for the following reasons: (1) the Workers’ Compensation Board customarily reappointed Law Judges who indicated a desire to be reappointed and whose past performance had been satisfactory; (2) the former Board Chairman, Arthur Cooperman, had assured Hawkins on numerous occasions that he was making special efforts to secure Hawkins’ reappointment. The district court found that these allegations raised a genuine issue of fact as to whether Hawkins retained a property interest in the position following the expiration of his term in 1979. We disagree. Although Hawkins continued to serve as a Law Judge after his term expired in April 1979, he was considered a “holdover” under New York law. Public Officers Law § 5 provides in relevant part: Every officer ... shall ... hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor. N.Y.Pub.Off.Law § 5 (emphasis added). A property interest in a particular position “arises only when an individual possesses ‘a legitimate claim of entitlement’ to continued job tenure.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447 (2d Cir.1980) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). Such entitlements are not created by the Constitution, but rather by independent sources such as state law. Id. In Hawkins’ case, the controlling state law created a “legitimate claim of entitlement” only during the seven-year term of appointment, N.Y.Work.Comp.Law § 150(a). Once the statutory term expired, however, state law deemed Hawkins’ office to be “vacant.” N.Y.Pub.Off.Law § 5. Hawkins’ property claim is controlled by our recent decision in Schwartz v. Mayor’s Committee on the Judiciary, 816 F.2d 54 (2d Cir.1987). In Schwartz, a former family court judge brought an action against the committee which refused to recommend her reappointment following the expiration of her ten-year term. Schwartz argued, as does Hawkins, “that it was her ‘understanding that incumbent judges of proven competence were routinely reappointed____’” Id. at 57. We held in that case: [T]he fact that many, or even most, incumbent judges have been reappointed cannot operate to raise appellant’s “subjective expectation” to a constitutionally protected right, especially when doing so would contradict the relevant statutes and rules. Id. (citation omitted). Similarly, even if the Workers’ Compensation Board customarily reappointed its referees, no cognizable property right would be created where the controlling state law provides for a fixed term of employment and deems the position to be vacant once that term expires. Nor could the assurances of former Board Chairman Arthur Cooperman serve to transform Hawkins’ subjective expectation into a protectable entitlement. These assurances amounted to no more than promises that Cooper-man would do his best to help Hawkins, and could not create a property right where state law provided expressly to the contrary. See Baden v. Koch, 638 F.2d 486, 492 (2d Cir.1980) (“mutual understandings and customs could not create a property interest ... when they [were] contrary to the express provisions of regulations and statutes”). Once Hawkins’ statutory term expired, he had no property interest in the referee position as a matter of law. CONCLUSION Because Hawkins had no clearly-established right to reappointment under either the first or fourteenth amendments, defendants are entitled to qualified immunity, in their individual capacities, from Hawkins’ claim for damages under § 1983. We reverse the decision of the district court and remand with instructions to grant the individual defendants' motion for summary judgment.

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

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

James C. BENNETT and George Isenhower, Appellants, v. Carmelita WOOD, for the Benefit of Herself and Her Minor Children, William Michael Wood, Gordon Allen Wood and Pamela Diane Wood, and Carmelita Wood, in Her Own Right, Appellee. No. 16270. United States Court of Appeals Eighth Circuit. Nov. 10, 1959. Alston Jennings, Little Rock, Ark. (John M. Harrison, Little Rock, Ark., was with him on the brief), for appellants. Henry Woods, Little Rock, Ark. (Mc-Math, Leatherman & Woods and James E. Youngdahl, Little Rock, Ark., were with him on the brief), for appellee. Before GARDNER, VOGEL, and VAN OOSTERHOUT, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. The issue involved in this appeal is the sufficiency of the evidence to support a verdict and judgment thereon in favor of the plaintiff in an action for wrongful death resulting from the collision between a feed truck operated by plaintiff’s decedent and a carnival truck operated by defendant Bennett. Diversity of citizenship jurisdiction is established. Timely motions for directed verdict and judgment n. o. v. were made by defendants and overruled. This action was brought by plaintiff, Carmelita Wood, for the benefit of herself and her minor children, to recover damages suffered by reason of the wrongful death of her husband, William M. Wood, in a motor vehicle accident. Plaintiff’s action is based on negligence. She claims that her damages were proximately caused by defendant Bennett’s negligent operation of defendant Isen-hower’s carnival truck in the following respects: failure to keep a lookout, failure to control the truck, failure to drive at a careful and lawful speed, failure to yield one-half of the traveled way and to keep on the right side of the highway, and failure to observe the law prohibiting a vehicle from turning from a direct course on the highway before such movement could be made with reasonable safety. By amendment plaintiff asserted that Isenhower was negligent in sending Bennett out to drive the truck at a time when Bennett was unfit to do so because of fatigue resulting from excessive work and loss of sleep. Defendants denied all the material allegations of the complaint as amended and that they were negligent in any respect charged, and asserted that the accident was caused or contributed to by Mr. Wood’s negligence. The following facts are undisputed. A collision occurred on September 15, 1957, at 4:45 o’clock A. M. on Highway No. 64 at a point five miles west of Clarksville, Arkansas, between the feed truck owned by General Mills and operated by Mr. Wood and the carnival truck owned by defendant Isenhower and operated by defendant Bennett, an employee of Isenhower, acting within the scope of his employment. It is conceded that Isenhower is legally responsible for any negligence in the operation of the truck by Bennett which may be established. Immediately prior to the collision Mr. Wood was driving the feed truck on the highway in an easterly direction and Mr. Bennett was driving the carnival truck in a westerly direction. The highway is covered by concrete paving 18 feet wide. Each of the trucks was approximately 22 feet long and 7% feet wide. Photographs and expert testimony tend to establish the carnival truck struck the feed truck at about a 15 degree angle, the initial impact being just to the rear of the left front axle of the feed truck. The left door of the cab of the feed'truck was sheared off and the steel body of said truck was disengaged and landed on the highway perpendicular to the line of traffic, the body covering the south half of the highway and extending 12 to 14 inches north of the center line. Mr. Wood was instantly killed as a result of the collision injuries. The truck he was driving, still in gear, came to rest against a culvert on the north side of the highway, about 165 feet east of the point of impact. The carnival truck came to rest on the north side of the highway, with its rear wheels in the ditch and its front wheels at or near the north edge of the pavement. The road was straight. There was a slight elevation to the west. A light rain was falling, and the pavement and shoulders were wet. Debris, largely in the form of splinters from the wood body of the carnival truck and glass, was found on the highway, commencing at the center line and extending to the place where the carnival truck came to rest north of the pavement. There was no debris on the south half of the highway, except the steel body of the feed truck, as previously described. Witnesses who examined the scene of the accident testified that they found no skidmarks, gouge marks, or spilled oil on the highway, to indicate the location of either of the trucks on the highway at the time of the collision. Defendant Bennett was the only eye witness to the accident. Bennett was accompanied by Caldwell, a fellow employee, who testified by deposition that he was sleeping at the time of the collision and that he knew nothing about events leading up to the collision. Caldwell, as a result of the accident impact, was thrown through the right half of the windshield of the carnival truck and was found after the accident on the north shoulder of the highway. Plaintiff’s case is based entirely on circumstantial evidence. There is some doubt whether the sufficiency of the evidence in a diversity case must be tested under standards prescribed by federal law or under state standards. See Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935; Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342. In testing the sufficiency of the evidence, this court has followed the more liberal “more reasonably probable rule,” rather than the stricter “exclusion of every other hypothesis rule.” Adair v. Reorganization Inv. Co., 8 Cir., 125 F.2d 901, 905; Cudahy Packing Co. v. N. L. R. B., 8 Cir., 116 F.2d 367, 371. In Penny v. Gulf Refining Co., 217 Ark. 805, 233 S.W.2d 372, 373, the court, in affirming directed verdict for the defendant in an automobile accident case based on circumstantial evidence, states: “ ‘A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.’ * * 99 For the purposes of this case we will assume that the Arkansas court follows the more liberal “more reasonably probable rule,” and that the same result would be reached regardless of whether standards prescribed by Arkansas law or federal law control. Courts have uniformly held that verdicts cannot be based solely upon conjecture or speculation. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4, 8; Missouri Pacific R. Co. v. Ross, 194 Ark. 877, 109 S.W.2d 1246, 1249; Adair v. Reorganization Inv. Co., supra; Henry H. Cross Co. v. Simmons, 8 Cir., 96 F.2d 482, 486; 32 C.J.S. Evidence § 1039. The plaintiff and the trial court rely upon Anglen v. Braniff Airways, 8 Cir., 237 F.2d 736, and Continental Can Co. v. Horton, 8 Cir., 250 F.2d 637. Plaintiff cites these cases in support of her contention that a jury can choose between two conflicting theories of a collision. Plaintiff overlooks the limitation that such choice can be made only when the inferences upon which such theories are based can reasonably be drawn from the evidence. That such limitation exists is made clear by a careful examination of the cases as a whole and the rule applied in each of said cases, reading (at page 643 of 250 F.2d) : “ * * * ‘In a jury case, where conflicting inferences reasonably can be drawn from the evidence, it is the function of the jury to determine what inference shall be drawn.’ * * * ” (Emphasis supplied.) In each of the cited cases we determined that evidentiary support existed for the inferences which formed the basis for the liability hypothesis. Our sole problem here is to determine whether there is substantial evidence to support a finding of negligence on the part of the driver of the carnival truck in any of the respects charged. As we have heretofore pointed out, numerous specifications of negligence are asserted. Plaintiff in her brief and argument appears to rely upon the specification of negligence that defendant Bennett failed to yield one-half the traveled way and upon the specification set out in the amendment relating to Bennett’s fatigued condition. We find no substantial evidence to support plaintiff’s contention that Bennett failed to yield one-half of the traveled way. All of the evidence that bears on this issue of negligence has heretofore been set out except the testimony of Bennett, the sole eye witness to the accident. Bennett’s testimony is that he was at all times on his (the north) half of the highway, that Mr. Wood as he approached was driving north of the center line, and that the accident occurred on defendant Bennett’s one-half of the highway. We recognize that under appropriate circumstances direct testimony can be overcome by circumstantial evidence. We have also held that the fact finder is not compelled to believe the testimony of an interested witness even if it is not directly contradicted. Seletos v. Commissioner, 8 Cir., 254 F.2d 794, 797; Doering v. Buechler, 8 Cir., 146 F.2d 784, 786. Bennett testified that prior to the accident he pulled partially onto the north shoulder. Although the shoulder was soft and would likely show tire marks, witnesses testified that they found no tracks on the shoulder at the point Bennett claimed he turned onto the shoulder. Such testimony would afford an additional basis for a refusal by the jury to believe Bennett’s testimony. In our consideration of this case we have proceeded on the basis that the jury was entitled to discredit Bennett’s testimony and give it no consideration. The rejection of Bennett’s testimony relating to the facts surrounding the accident does not aid the plaintiff in establishing her case. The burden is upon the plaintiff to prove negligence which proximately caused the injuries claimed. Defendants do not have the burden of proving freedom from negligence. Glidewell v. Arkhola Sand & Gravel Co., supra, 208 S.W.2d at page 8; Kisor v. Tulsa Rendering Co., D.C.W.D.Ark., 113 F. Supp. 10, 16. In considering a situation similar to that presented here, the Supreme Court of Wisconsin in McNamer v. American Ins. Co., 267 Wis. 494, 66 N.W.2d 342, 344, states: “ * * * But the fact that the jury was not required to believe him does not establish that he was on the wrong side of the road. The evidence must furnish proof of that fact and the rejection by the jury of his testimony does not of itself supply such proof.” There are many cases in which courts have held that circumstantial evidence offered was sufficient to support an inference of negligence. In such cases the point of collision was established by skid-marks or gouge marks made on the highway by one or both of the colliding cars, or by the character and location of the debris. The facts in each negligence case differ, and citation of cases and comparisons thereof are of but little value. Plaintiff puts great reliance on East Texas Motor Freight Lines v. Dennis, 214 Ark. 87, 215 S.W.2d 145. That case is factually distinguishable from our present case. There, disputed testimony by an officer traced skidmarks from defendant's vehicle to the wrong side of the road. There was also testimony received relating to charts with answers such as “here” and “there” which were not properly preserved for the record. In our present case plaintiff places her principal reliance upon evidence that the carnival truck hit the feed truck at a 15 degree angle. She contends that it would be impossible for the carnival truck to hit the feed truck at such an angle and still be on its side of the highway under the circumstances here existing. Scale drawings of the road and scale cutouts of the trucks were in evidence. A careful study of the road plat and the cutouts and experiments made in moving the cutouts upon the plat, as well as independent tests we have made, show that plaintiff’s contention is true only if plaintiff’s truck was being driven straight ahead, that is, parallel to the edge of the pavement. The impact at a 15 degree angle could occur on defendants’ side of the road with the carnival truck on the pavement on defendants’ side of the road if the feed truck was on the wrong side of the road and heading back to its right side of the road. It is reasonable to believe that if the feed truck were on the wrong side of the road, the driver thereof, on seeing an approaching vehicle, would make an effort to turn back to his side of the road and in so doing go across the pavement at an angle. We find no direct evidence or basis for an inference that Mr. Wood was driving the feed truck straight ahead. The Supreme Court of Missouri in Berry v. Harmon, Mo., 323 S.W.2d 691, was confronted with a rather similar problem. The contention was made that the wreckage indicated plaintiff’s car was hit by defendant’s car coming from plaintiff’s left, and that this indicated that the plaintiff had turned into defendant’s lane. The court states (323 S.W.2d at page 696): “ * * * The inference to be drawn and of necessity to be found in this case is one of negligence and the burden was upon the plaintiff to adduce evidence from which the inference of negligence could reasonably be inferred. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323. The circumstances in this case do not with compelling force indicate just where on the highway this collision occurred and even if it be assumed that the evidence supports the inference that at some point on the highway Harmon turned his automobile to the left the fact does not necessarily support the inference that he was negligent in doing so. * * * ” We are convinced that the angle of impact evidence in our present case affords no substantial support for determining the side of the highway on which the collision occurred. The damage to the feed truck could have occurred on whichever side of the highway the truck might have been at the time of the collision. Both cars came to rest on defendants’ side of the highway. The debris extended from the center of the highway to the shoulder on defendants’ side. We find nothing in the debris evidence to afford support for an inference that the collision occurred on plaintiff’s half of the highway. If anything, the evidence tends to support defendants’ hypothesis. We do not regard the fact that both cars came to rest on the north side of the highway, which was defendants’ side, or the fact that at the time of the impact the carnival truck may have climbed the side of the feed truck, affords any basis for any inference with reference to the side of the road on which the collision occurred. The plaintiff has produced no substantial evidence to support an inference that the accident occurred on plaintiff’s side of the highway. We shall briefly consider plaintiff’s contention that Isenhower was negligent in sending Bennett out to drive the carnival truck in a fatigued condition. There is evidence that Bennett, prior to the accident, had worked continuously for some 15 hours, operating the merry-go-round, breaking down and loading the equipment, and driving some 71 miles to the place of collision. If Isenhower was negligent in the respect claimed, it would afford plaintiff no basis for recovery. There is absolutely nothing in the record to show that Bennett’s fatigue proximately caused the accident. There is no evidence from which an inference can be drawn that the fatigued condition of Bennett, if it existed, in any way affected the manner in which he drove the carnival truck. Unless Bennett violated the law of the road or some duty he owed Mr. Wood, his fatigue, if any, could not possibly be the proximate cause of the accident. Plaintiff does not argue that any of the specifications of negligence which we have not discussed in detail are supported by substantial evidence. We can find no substantial evidence to support any of the specifications of negligence. We are convinced that plaintiff has failed to offer any substantial evidence to support an inference that defendants were guilty of any negligence charged which proximately caused plaintiff’s damages. Reversed and remanded with directions to dismiss. . In the trial court the truck operated by the plaintiff’s decedent was referred to as the feed truck and the truck operated by defendant Bennett was referred to as the carnival truck. Such descriptions will be used in this opinion. . Carl and Mary ,Burkhardt were made defendants to this action on the basis that they were owners of the carnival truck or had an interest therein. The trial court directed a verdict in favor of Burkhardt from which no appeal has been taken.

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

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

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

ADAMS v. WALICEK. In re WALICEK. (Circuit Court of Appeals, Fifth Circuit. November 20, 1925. Rehearing Denied December 14, 1925.) No. 4552. 1. Homestead <§=>29 — Husband may select homestead contrary to yvife.’s wishes, subject to limitation stated. Under Const. Tex.-art. 16, § 50, and Rev. St. Tex. 1911, arts. 3794, 3795, in absence of fraud on wife, husband has right to select-homestead contrary to wishes of wife; only limitation being that he cannot exclude dwelling in which he lives and appurtenances thereto, property indispensable to home, a part of which is actually used for homestead purposes. 2. Homestead <§=>29 — Farm on which wife and her children by former marriage lived held not indispensable part of husband’s homestead. Where husband with established homestead, to believe discord between families by first and second marriages, established home on a nearby farm for his second wife and her children by her first husband, and himself continued to live on former homestead with child of his first marriage, held, farm on which his wife lived was not indispensable to his home, or so much a ■ part of it that he could not, under Const. Tex. art. 16, §-50, and Rev. St. Tex. 1911, arts. 3794, 3795, exclude-it in making a homestead selection. Petition to Superintend and Revise from .the District Court of the United States for the Southern District of Texas; Joseph C. Puteheson, Judge. In the matter of the bankruptcy of F. J. Walicek. On petition - of W. F. Adams, Jr., trustee, to superintend and revise action of lower court in sustaining bankrupt’s claim to designated homestead. Petition denied. For opinion below, see 4 F.(2d) 265. . H. W. Wallace, of Cuero, Tex., for petitioner. Geo. J. Schleicher and A. C. Hartman, both of Cuero, Tex. (Crain & Hartman, of Cuero, Tex., on the brief); for respondent. Before WALKER and BRYAN, Circuit Judges. WALKER, Circuit Judge. This is a petition to superintend and -revise the action of the lower court in' sustaining a bankrupt’s claim of a designated 200 acres of land out of a larger tract as a rural homestead under the Constitution and laws of Texas. The tract so claimed as exempt included the dwelling and the appurtenances thereto actually and continuously used for homestead purposes by the bankrupt and some of his family since prior to the death of his first wife in 1908; the bankrupt’s absences therefrom having been temporary and without any intention to abandon that place as a homestead, he and his minor son by his first marriage having lived in that dwelling up to the date of the bankruptcy adjudication. The claim asserted is challenged on the ground that the bankrupt did not have the right to omit from his homestead a 90-acre tract which was occupied by his second wife, who, with her children by a former husband, for several years after her marriage to the bankrupt, lived with him in the above-mentioned dwelling. The pertinent facts with reference to that 90-aere tract are shown by the following statements contained in the opinion rendered by the District Judge: “In August, 1917, bankrupt, F. J. Wa-Heek, purchased a 90-aere farm about 3 miles distant from, the 200 acres claimed as exempt, and Mrs. Walicek, with three of her children, moved upon the 90-aere farm; the bankrupt helping her to make the move. It was the intention, at the time Mrs. Walicek moved upon the 90-aere farm, for her to make her home there with her children. There was never any separation between F. J. Walicek and his wife; they were on friendly terms, and lived together as man and wife. She made her principal home on the 90-aere farm, and he visited her there, advised with her about the cultivation of the farm, furnished her teams when she needed them, and did some work in the field. These relations existed between the bankrupt and his wife at the date of the filing of the petition in bankruptcy; Mrs Walicek at that time making her home on the 90-acre farm, and Mr. Walicek staying most of the time on the 200-acre farm. Mrs. Walicek would come over to the 200-acre farm and cook bread enough for several days’ supply, and at other times Mr. Walicek would go to the 90-acre farm, where his wife made her home, and would eat his meals there. There were no children bom to Mr. Walicek by his second wife. * .* * In November, 1917, the bankrupt deeded the 90-acre farm to his wife, and the deed from the bankrupt to his wife was filed for record January 16, 1918, and recorded January 18, 1918, in volume 80, on pages 467, 468, of the Deed Records of De Witt county, Tex. Mrs. Walicek was living on the 90-acre farm at the time the farm was deeded to her, having moved there in August, 1917, and continues to make the 90-acre farm her home to this day.” In the absence of fraud upon the wife, the husband has the right to select the homestead, and his selection may be contrary to the wishes of his wife; the only limitation upon his right in this regard being that he cannot exclude the dwelling in which he lives and appurtenances thereto, property indispensable to the home, a part of wha,t is actually used for homestead purposes. Constitution of Texas, art. 16, § 50; Revised Civil Statute of Texas 1911, arts. 3794, 3795; Hanes v. Hanes (Tex. Com. App.) 239 S. W. 190; Watkins Land Co. v. Temple (Tex. Civ. App.) 135 S. W. 1063; Hughes v. Hughes (Tex. Civ. App.) 170 S. W. 847. The just stated proposition is not controverted, and it is not claimed that the characteristics of homestead which long prior to the bankruptcy had attached to the larger tract, which included the 200 acres claimed, had been lost by abandonment by a discontinuance of the use of the premises for home purposes, coupled with an intent on the bankrupt’s part not to use them again as a home. In re Johnson (C. C. A.) 294 F, 258. The contention in behalf of the petitioner is to the effect that the use made of the above-mentioned 90-aere tract made it property indispensable to the home, or a part thereof, or appurtenant thereto, within the moaning of the above-cited decisions. We do not think that that contention is sustainable. The law does not protect two homesteads for the same family, one for the husband and one for the wife. Holliman v. Smith, 39 Tex. 357; Slavin v. Wheeler, 61 Tex. 654. If the one selected by the husband includes the dwelling in which he and some of his family live, and all property appurtenant thereto and actually used for homestead purposes, it need not include also other property used by the wife as a place of residence, hut which the husband never consented to include in the homestead selected by him, or to be substituted therefor in whole or in part. The petition is denied.

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

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

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

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

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

Orin OLSON, Appellant, v. RED WING SHOE COMPANY, Inc., a Minnesota Corporation, Appellee. No. 71-1399. United States Court of Appeals, Eighth Circuit. March 13, 1972. Russell M. Spence, Robins, Meshbesher, Singer & Spence, Minneapolis, Minn., for appellant. James G. Nye, Jr., Nye, Johnson & Bauer, Minneapolis, Minn., for appellee. Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges. PER CURIAM. The plaintiff, Orin Olson, was a block layer for Geo. W. Olson Construction Company, a general contractor, employed by the owner-defendant, Red Wing Shoe Company, Incorporated, to build a warehouse in Red Wing, Minnesota. During the course of construction plaintiff was seriously injured by the collapse of a concrete block wall. Plaintiff sued the owner and the architect of the building. Olson Construction Company could not be sued directly by reason of its exclusive liability under the Minnesota Workmen’s Compensation Act. A special jury verdict was returned finding the wall collapse was due to 100 percent negligence on the part of the general contractor. Thus judgment was rendered in favor of the defendant, Red Wing Shoe Company, Inc. The trial court refused to set aside the verdict and this appeal followed. On appeal the plaintiff urges that the trial court refused to instruct the jury that the defendant, Red Wing Shoe Company, Inc., could be found liable under § 416 of the Restatement (Second) of Torts (1965). Both parties agree that Minnesota law governs the action. The trial judge, the Honorable Philip Neville, in a well reasoned opinion held § 416 of the Restatement not applicable to the facts. Olson v. Kilstofte and Vo-sejpka, Inc., 327 F.Supp. 583 (D.Minn. 1971). We affirm the judgment of the district court for the reasons set forth in its opinion. Judgment affirmed. . Section 416 reads : “One wlio employs an independent contractor to do work which the employer should recognize ns likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take sucli precautions, even though the employer has provided for sucli precautions in the contract or otherwise.”

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?

Dennis D. HALL, Plaintiff-Appellee, v. TIME INSURANCE COMPANY, Defendant-Appellant. No. 87-8878. United States Court of Appeals, Eleventh Circuit. Sept. 6, 1988. Harvey S. Gray, Fortson and White, Atlanta, Ga., for defendant-appellant. Sandra M. Baumwald, Herbert T. Hutto, Fortson, Bentley and Griffin, R.A., Athens, Ga., for plaintiff-appellee. Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge. PER CURIAM: As part of a divorce agreement and as required by the divorce and custody decree, Dennis Hall agreed to purchase medical insurance for his minor child. The child apparently was in the custody of the child’s mother. Hall purchased a policy, effective as of February 1, 1983, from Time Insurance Company. On the application for insurance, Hall represented that the child was not covered by any other insurance policies. Hall’s former wife had obtained two other policies insuring the child, however. Hall maintains that at the time he made the representation he did not know that his former wife had obtained additional coverage, and his claim is not disputed. A few months after Hall purchased the insurance policy from Time, the child suffered a cerebral hemorrhage. The district court found that plaintiff proved the child had medical expenses of $119,402.28. Rl-31-3. According to uncontroverted assertions by Time, the other two insurance carriers covering Hall’s child have paid $159,589.17 in insurance benefits for the child, thus covering the $119,402.28 in expenses. In accordance with Georgia law, the Time policy cannot and does not contain a provision for proration or excess treatment in the event of duplicate coverage. After Time received Hall’s claim, it became aware that Hall had incorrectly represented that the child had no other insurance coverage. Time refused to pay the claim; in March of 1984 Hall contacted the Insurance Commissioner’s office about Time’s refusal to pay, and an investigation was apparently made. While the investigation was pending, Time informed Hall by a letter dated May 14, 1984, that it was setting aside his policy as of its issuance date because of the misrepresentation as to existing insurance coverage. The letter explained that Hall would “be hearing from our Policyholder Service Department regarding this action and the appropriate refund of premium.” Hall v. Time Ins. Co., 663 F.Supp. 599, 605 (M.D.Ga.1987). On May 18, 1984, Time mailed Hall a second letter, again explaining that the “policy has been Set Aside” and that the company was refunding “all premiums paid, less any claims which may have already been paid.” Id. Enclosed in the letter was a check payable to Hall for $2028.81. On July 6, 1984, Hall negotiated the check. Id. at 600. On May 20, 1986, a Georgia state court held Hall in contempt for failing to pay a portion of the hospital charges and medical expenses incurred on behalf of the child. Rl-26. Hall filed the present suit against Time, and the district court found that Time was liable to Hall, Hall, 663 F.Supp. at 604, in the amount of $115,761.28. Rl-31-3. Time appealed. Time maintains that Hall’s negotiation of the check refunding his premiums constituted accord and satisfaction. Alternatively, Time suggests that the misrepresentation as to other coverage voided the policy. The district court found no accord and satisfaction, and so dealt with the additional issue of the misrepresentation. We find the correspondence and negotiated check accomplished an accord and satisfaction, and we need not address the second contention. Georgia law strictly limits the situations to which accord and satisfaction may apply: (b) Acceptance by a creditor of a check, draft, or money order marked “payment in full” or with language of equivalent condition, in an amount less than the total indebtedness, shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt. Ga.Code Ann. § 13-4-103(b) (1982). The district court found that Hall knew the contents of the letters from Time and yet cashed the check. Nevertheless, since Hall believed Time was legally liable under the insurance policy, the court concluded that the parties could not have reached a meeting of the minds sufficient to constitute accord and satisfaction. See ADP-Financial Computer Services v. First Nat. Bank, 703 F.2d 1261, 1265-66 (11th Cir.1983). The court stated: “[i]n none of the letters sent to plaintiff was it ever communicated to him that negotiation of the $2,028.81 would prejudice or in any way be a final settlement of the dispute between plaintiff and Time.” Hall, 663 F.Supp. at 601. The district court clearly erred in finding that the letters did not inform Hall that depositing the check would end the dispute between Hall and Time. Time could not have been clearer in expressing its intent to refund the premiums rather than honor the contract. Even if the district court was correct in finding that Hall believed Time was still liable under the policy, the fact that the parties differ as to liability or the extent of liability is the very basis for an accord and satisfaction under section 13-4-103(b)(l). Although the parties must intend to reach an accord and satisfaction, ADP-Financial, 703 F.2d at 1265-66, they need not agree or intend to agree that a judicial resolution of the underlying dispute would result in a particular solution. Applying section 13-4-103(b), we conclude that the $2028.81 check resolved “[a] bona fide dispute ... as to the amount due.” ' Ga.Code Ann. § 13-4-103(b)(l) (1982). At least one Georgia court has suggested that for the dispute to have been “bona fide,” the insurer must have acted in good faith. Lewis v. Alfred L. Simpson & Co., Inc., 358 S.E.2d 262, 263 (Ga.App.1987). In Georgia a material misrepresentation can prevent recovery under an insurance policy if “[t]he insurer in good faith would ... not have issued the policy or contract ... if the true facts had been known to the insurer_" Ga.Code Ann. § 33-24-7(b)(3) (1982). Time presented testimony that it would have refused to issue the policy had it known of the double coverage. We find that the testimony evidences grounds for disagreement sufficient to constitute a “bona fide dispute” within the purview of the statute. On appeal Hall raises for the first time the issue of whether the 1984 amendment to Ga.Code Ann. § 83-24-44(c) (1982) ought to change the result in this case. Section 33-24-44 deals with cancellation of insurance policies the existence of which is not denied; in Hall’s case, however, the insurance company relied upon the misrepresentation to void the contract from its inception. Consequently, section 33-24-44 is irrelevant to the case at hand. See Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga.App. 628, 337 S.E.2d 410, 411 (1985) (“cancellation” discharges insurer from future liability, and must occur before disputed loss). The judgment by the district court is REVERSED. . Hall suggests that the dispute was not bona fide since the parties did not differ as to the amount of premium refund due. The argument skirts the central tenet of accord and satisfaction. "Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” Ga. Code Ann. § 13-4-101 (1982). Here the underlying agreement is the insurance policy. Hall and Time reached a subsequent agreement in which Time tendered and Hall accepted a $2028.81 check as satisfaction of the rights and liabilities of the parties under the first contract. Hall now may feel he made a bad deal, but the amount he received as accord and satisfaction is not at issue.

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

CONSTRUCTION AGGREGATES CORP., Plaintiff, Appellant, v. Julia RIVERA de VICENTY et al., Defendants, Appellees. No. 77-1399. United States Court of Appeals, First Circuit. Argued Dec. 8, 1977. Decided March 14, 1978. Jay A. Garda Gregory, with whom Fiddler, Gonzalez & Rodriguez, San Juan, P.R., was on brief, for plaintiff, appellant. Reina Colon de Rodriguez, Asst. Sol. Gen., Dept, of Justice, and Fidel A. Sevillano Del Rio, San Juan, P.R., with whom Hector A. Colon Cruz and Ronaldo Rodriguez Ossorio, San Juan, P.R., were on brief, for defendants, appellees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This appeal concerns the limits of Puerto Rico’s authority to apply its workmen’s compensation law to various categories of seamen, a question already addressed in many previous decisions. Beyond that it also raises complicated federal abstention questions. Construction Aggregates Corp. (“Construction”) brought suit in the United States District Court for the District of Puerto Rico in January, 1975, alleging both federal question and diversity jurisdiction and seeking a declaratory judgment and an injunction against the manager of the State Insurance Fund of the Commonwealth, the Puerto Rico Ports Authority, and the Commonwealth. Construction then moved for summary judgment after submitting certain documents. The defendants responded with motions to dismiss. The district court heard argument on the motions in August, 1975, and in April, 1977. In June, 1977 the district court ruled that no material facts were in dispute, that the eleventh amendment required dismissal of the Commonwealth as a defendant, and that principles of abstention required dismissal against all other defendants. Construction appeals from the judgment that followed. The dispute was a consequence of the hiring of Construction by the Puerto Rico Ports Authority to dredge San Juan harbor. The parties contracted in August, 1970, and work progressed until completion. Before beginning operations Construction took out a workmen’s compensation policy with the State Insurance Fund of the Commonwealth to cover the payroll period between January 1, 1971, and December 31, 1973. On January 14, 1974, Construction notified the Ports Authority that work had been completed and requested its final payment. The Ports Authority asked for several supporting documents from Construction which were required by the contract, including a letter of release from the State Insurance Fund. Construction was unable to obtain this letter, as the Insurance Fund was in the process of recalculating Construction’s liability under its policy. In order to expedite the release of the final payment, Construction agreed to give the Ports Authority an irrevocable letter of credit, permitting it to draw up to $380,000 from Construction’s account upon presentation of final notice of collection by the Insurance Fund for premiums owed. On December 10, 1974, the manager of the Insurance Fund notified Construction that its obligations under the policy had been recalculated and increased from $40,332 to $419,037.14, creating a deficiency of $378,705.14. Construction filed a petition for review of this assessment with the Industrial Commission of Puerto Rico on January 8,1975. It brought this suit nine days later, and on July 14, 1975, the Industrial Commission granted Construction’s motion to stay its proceedings until the district court had determined whether it would assume jurisdiction over the dispute. The core of the present controversy is the amount Construction owes on its workmen’s compensation policy. An important aspect of the question is which of Construction’s employees are subject to Puerto Rican workmen’s compensation coverage, and which are exempt. Of the total sum claimed by the Insurance Fund, Construction alleges $109,800.51 is attributable to the payroll of seamen who were hired in the continental United States; $92,771.27 to the payroll of seamen who were hired in Puerto Rico; and $45,808.56 to technical personnel allegedly exempted from Puerto Rico’s workmen’s compensation statute through a provision in that enactment. Duplicate insurance coverage obtained from private carriers applied to all of the above employees. Construction contends the above assessments are illegal. It further argues, in the alternative, that the assessment for locally hired seamen should in no event exceed $20,808.51. It also asserts that excessive rates were applied to the balance of its payroll and proposes a substantial reduction. According to Construction, its total deficiency should not exceed $56,733.74, not including the cost of covering locally hired seamen. As a matter collateral to the primary dispute, Construction seeks to have its letter of credit declared a nullity and to obtain an injunction against any collection on it by the Ports Authority. According to Construction, the Ports Authority cannot under Puerto Rican law be liable for any injuries suffered by employees of Construction, and as a result there was no consideration for the letter of credit. Inasmuch as Construction does not contest all of the deficiency assessed by the State Insurance Fund, the enforceability of this agreement will not be mooted by the outcome of proceedings before the Industrial Commission. Abstention In dismissing this suit, the district court stated that “[m]ost of the matters brought forth in the complaint are totally lacking in federal aspects” and that those federal claims presented could be resolved either by the Industrial Commission or the Puerto Rico Courts. Relying on Alabama Public Service Commission v. Southern Ry. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); and Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933), the district court held it inappropriate for a federal court to be involved at all. The branch of the abstention doctrine relied upon by a district court — called by some a “Burford ” abstention — is particularly difficult to define and apply. Unlike abstention in cases originating with Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this type of abstention calls for the surrender of federal jurisdiction, not its mere postponement; and there need be present neither a constitutional issue nor a difficult and unresolved question of state law. See generally Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071,1153-63 (1974). It is not necessary that there be a collateral ongoing proceeding in the state court. Compare Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); cf. Colorado River Water Conservation District v. United States, 424 U.S. 800,96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). See generally Fiss, Dombrowski, 86 Yale L.J. 1103 (1977); Field, supra at 1163-87. Rather, under the Burford -type abstention, the federal courts defer primarily because of the nature of the state regulatory interest in a particular subject matter and the potential for disruption engendered by federal intervention. Hence the doctrine may at times entirely displace the general rule that exhaustion of state administrative remedies is not a prerequisite to assertion of federal civil rights claims against state officials. The rules of a Burford abstention are perhaps best understood by reference to the facts of the various decisions in which they have been applied. The earliest, Hawks v. Hamill, supra, involved an impairment of contracts claim based on an alleged perpetual franchise for a toll bridge. The state supreme court had held perpetual grants to be prohibited by the state constitution. In refusing to place a different construction on the state constitution, the Supreme Court, per Cardozo, J., buttressed its decision by reference to equitable principles of abstention: “Caution and reluctance there must be in, any case where there is the threat of opposition, in respect of local controversies, between state and federal courts. Caution and reluctance there must be in special measure where relief, if granted, is an interference by the process of injunction with the activities of state officers discharging in good faith their supposed official duties.... Reluctance there has been to use the process of federal courts in restraint of state officials though the rights asserted by the complainants are strictly federal in origin.... There must be reluctance even greater when the rights are strictly local, jurisdiction having no other basis than the accidents of residence. The need is clamant in such circumstances for cautious hesitation.” 288 U.S. at 60-61, 53 S.Ct. at 243. The principles espoused in Hawks ripened into a holding in Burford. Sun Oil Co. attacked on due process and state law grounds the validity of a Texas Railroad Commission Order permitting Burford to drill certain wells in the East Texas oil fields. The Court began by noting: “Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion, whether its jurisdiction is invoked on the ground of diversity of citizenship or otherwise, ‘refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest’; for it ‘is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.’ ” 319 U.S. at 317-18, 63 S.Ct. at 1099 (quoting United States v. Dern, 289 U.S. 352, 360, 53 S.Ct. 614, 77 L.Ed. 1250 (1933); Pennsylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 79 L.Ed. 841 (1935)). The Court proceeded to describe the complex pattern of regulation necessitated by the peculiar nature of diverse ownership of the single East Texas field and the disruptive effect on this regulation of conflicting state and federal interpretations of the governing law. The state had concentrated all judicial review of administrative orders initially in a single state district court. Concurrent federal jurisdiction to review these orders had resulted in considerable difficulties, requiring, after one federal ruling, the imposition of martial law and after another the convening of a special session of the legislature. As the result, the Court deemed it prudent that federal courts decline to accept jurisdiction over attacks on these orders: “The state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts. The judicial review of the Commission’s decisions in the state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved here.... Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.” 319 U.S. at 333-34, 63 S.Ct. at 1107. Burford was followed in Alabama Public Service Commission, supra, where a railroad sought to challenge in federal court the refusal of the state administrative body to authorize discontinuance of a relatively small portion of its passenger service. The railroad claimed both a taking of property abridging due process and a violation of state law. The Court noted the merits of the “taking” claim depended not on the profitability of the particular route in question but on the relation of the expense of providing that particular service to the overall profitability of the railroad’s operations in the state and the public need for the service rendered. 341 U.S. at 347-48, 71 S.Ct. 762. The Court observed that these considerations were entirely of local concern, and that the state had reflected its desire for a coherent public policy toward railroad service regulation by centralizing judicial review of Public Service Commission orders in a particular circuit court. Given the important local policy in question and the adequacy of state court review of the administrative action involved, the Court held the refusal of the lower federal court to abstain from entertaining a challenge to the order constituted an abuse of discretion. Id. at 349-50. A related line of cases involves the appropriateness of abstention in diversity suits where only state claims are asserted. A federal court is not permitted to decline jurisdiction over a dispute only because it involves difficult and unresolved questions of state law, Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). However, the subject matter may sometimes be of such intensely local concern that federal courts should not entertain such suits, even though the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), would compel the federal tribunal to mirror the state court in every material respect. Questions of eminent domain implicating the relationship between state and local governments, Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), and of water rights in regions of the country where that resource is of paramount importance, Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968), have been singled out by the Supreme Court for such special treatment. See also Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) (Alaskan fishing laws held to complement and supersede federal law). But, as County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), indicates, even areas of local interest such as eminent domain are not necessarily forbidden to federal courts, if federal intervention will not have an unsettling impact on local law. See generally Field, supra at 1148-53. The peculiar facts of all these cases make generalization difficult. Although federal claims were asserted in some but not others, the Court has noted that avoidance of a constitutional issue was not a ground in any of the decisions. Colorado River Water Conservation District v. United States, supra, 424 U.S. at 815 n.21, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (citing P. Bator et al., note 3 supra at 1005). Justice Brennan, writing for the Court, has attempted to abstract the governing principles of these cases: “[T]he state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Id. at 814, 96 S.Ct. at 1245. Justice Brennan did note, however, the existence of a federal issue might make abstention less appropriate. Id. at 815 n.21, 96 S.Ct. 1236. Most recently Justice Marshall, also writing for the Court, has repeated this description of the cases, adding that “there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Zablocki v. Redhail,-U.S. -, -, n.5, 98 S.Ct. 673, 678, 54 L.Ed.2d 618 (1978). See also Zwickler v. Koota, 389 U.S. 241, 249 n.11, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415 n.5, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Elsewhere the Court has characterized this particular form of abstention as an application of the forum non conveniens doctrine. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); cf. Alabama Public Service Commission v. Southern Ry. Co., supra, 341 U.S. at 345 n.6, 71 S.Ct. 762. The most recent decision of this circuit dealing with a Burford type of abstention upheld the refusal of the district court to adjudicate a fraud claim arising out of Rhode Island’s insurance premium ratemaking system. Barry v. St. Paul Fire & Marine Ins. Co., 555 F.2d 3, 12-13 (1st Cir.), cert. granted on other: grounds, 434 U.S. 919, 98 S.Ct. 391, 54 L.Ed.2d 275 (1977). This court noted the drastic consequences of abstention as a defeat of the purposes underlying the grant of diversity jurisdiction, but felt that judicial economy and protection from disruption of important state concerns would be achieved by abstention. We expressed doubt that either judicial economy or freedom from disruption by itself would justify abstention, but held that the combination of these two factors justified the decision of the district court to decline jurisdiction. Id. at 13. In an earlier decision presenting facts not dissimilar to the case at bar, this court upheld the assertion of jurisdiction by the district court of Puerto Rico in a dispute involving the alleged preemption of local rent control laws by federal legislation. Penagaricano v. Allen Corp., 267 F.2d 550 (1st Cir. 1959). This court noted that the dispute did not involve “a complicated system of local law presumably beyond the ken of a federal court” and that the “local regulatory process has [not] been confided to a special court ‘supervisory in character,’ ” id. at 557 (citing Alabama Public Service Commission, supra; Burford, supra). See also Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953); In re President and Fellows of Harvard College, 149 F.2d 69 (1st Cir. 1945). Decisions in this circuit, as elsewhere, have reserved the Burford type of abstention for the relatively rare case where the equities strongly point in the direction of litigation exclusively in the state forum. Against this background, guided by the principles of the Supreme Court opinions, we consider the appropriateness of abstention in this case. Because the claims asserted by Construction contain different abstention issues, each will be discussed separately. 1. Coverage of Non-local Seamen More than a fourth of the assessment contested by Construction involves workmen’s compensation coverage for seamen who were hired outside of Puerto Rico. In Alcoa Steamship Co. v. Velez, 376 F.2d 521 (1st Cir. 1967), this court held: “[T]he Puerto Rico Workmen’s Accident Compensation Act cannot be applied to seamen injured in Puerto Rican waters on an American vessel owned by a corporation of a state other than Puerto Rico where the contract of employment was not entered into in Puerto Rico.” Id. at 525. Construction, a non-Puerto Rican corporation, seeks the benefit of this holding. In abstaining, the district court held that the Industrial Commission and Puerto Rico courts were the appropriate bodies for determining this federal question. Comity and federalism are concerns that apply with great force in disputes affecting the public policy of the Commonwealth of Puerto Rico. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970). The doctrine of abstention that serves these policies applies to disputes involving the powers of the Commonwealth as it would to litigation with state officials. But it seems inconceivable that the form of abstention represented by the Burford line of decisions possibly could apply to prevent a federal court from enforcing the Velez exemption. The area of seamen’s accident compensation hardly can be characterized as a peculiarly local domain; rather, under the Jones Act and the maritime law of seaworthiness, federal regulation predominates, and ordinarily is exclusive. Nor could a declaratory judgment vindicating Construction’s Velez claim be deemed a disruptive influence on local law. Such a judgment would simply remove from further consideration by the Commonwealth a class of workers formerly employed by Construction. It would not affect disputes involving other workers or interfere with future regulation properly within the power of the Commonwealth. No facial attack on a statute or regulation of any Puerto Rican governmental body is involved; the only administrative practice, if any, that would be upset by the order would be the course of conduct declared impermissible in Velez. Not only does the form of abstention invoked by the district court seem inappropriate as a means of dealing with this issue, ''but we can conceive of no other rationale warranting abstention. This claim does not raise difficult constitutional issues that might be avoided, or at least put in a different posture, by authoritative disposition of state law issues through the state courts. See Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Fornaris v. Ridge Tool Co., supra; Railroad Commission v. Pullman Co., supra. The, only federal question involved in the Velez claim is one clearly settled by prior circuit precedent, and there exist no ambiguous state law issues that might obviate the dispute. The Supreme Court previously has observed that the fact that the courts of Puerto Rico also might be expected to honor the federal claim advanced by a plaintiff does not by itself justify abstention by a federal court. Examining Board of Engineers v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). Nor does this suit seek to interfere with any ongoing proceedings in the Puerto Rico courts, thus possibly invoking the doctrine of Younger v. Harris, supra, or the prohibitions of the Anti-Injunction Act, 28 U.S.C. § 2283. See Vendo Co. v. Lektro-Vend Corp., supra. Furthermore, the Velez claim is “ripe” for adjudication, as the demand for payment by the State Insurance Fund constituted a “definite administrative or institutional determination” of the issue. Raper v. Lucey, 488 F.2d 748, 751 n. 3 (1st Cir. 1973). Perhaps defendants’ most plausible argument for declining to decide the Velez issue in this proceeding is that Construction has not yet fully exhausted all of its administrative remedies. Determinations of liability by the State Insurance Fund are appealable to the Industrial Commission, and Construction has filed appeals as to all its claims. Although the Industrial Commission stayed its proceedings pending resolution of this litigation in the district court, the Industrial Commission might overrule the State Insurance Fund and honor Construction’s Velez claim were the district court to hold up its decision. The defendants argue that at the very least the district court should be directed to defer action until the Industrial Commission has ruled. Construction responds by describing this suit as grounded on 42 U.S.C. § 1983, hence no administrative exhaustion requirement applies. But whether the assertion of Construction’s Velez claim can be treated as a § 1983 suit, and, if so, whether the usual rule of no administrative exhaustion is applicable, are difficult questions that need not be answered here. This court previously has held that the Industrial Commission does not provide an adequate administrative remedy for those employers who wish to contest an exaction by the State Insurance Fund on federal grounds. Alcoa Steamship Co. v. Perez, 424 F.2d 433 (1st Cir. 1970). This court noted in Perez that the only relief the Industrial Commission is authorized to give for an illegal exaction of this kind is a credit against future obligations. Id. at 435 — 436; P.R.Laws Ann. tit. 11, § 25(3). A credit will hardly compensate a company such as Construction that no longer is doing business in Puerto Rico. Although it is true that Construction has not yet paid any part of the deficiency to the Fund, there is no assurance that this will continue to be the case. The manager of the Fund is obligated to collect assessments promptly and without regard to pending appeals before the Industrial Commission. P.R.Laws Ann. tit. 11, § 25(2). It would appear that the manager is without authority to authorize any stay in collection. See Coca-Cola Bottling Co. v. Industrial Commission, note 2 supra. In light of the inadequate state remedy available to Construction and the absence of any other factor that traditionally has been required as a prerequisite to abstention, we are of the opinion that the district court erred in declining to address the merits of Construction’s Velez claim. To the extent Construction employed seamen in Puerto Rican waters who were hired outside of Puerto Rico, it is entitled to a declaratory judgment exempting it from liability to the State Insurance Fund for workmen’s compensation coverage relating to these seamen. Upon remand, and after such further proceedings as are necessary, the district court should enter a judgment determining the extent of such exemption here. 2. Coverage of Locally Hired Seamen A substantial portion of Construction’s liability to the State Insurance Fund involves coverage for seamen hired in Puerto Rico. Construction claims the Fund lacked the power to assess this liability, as federal admiralty and maritime law provided the exclusive means for compensating these seamen. Although it recognizes that in Fonseca v. Prann, 282 F.2d 153 (1st Cir. 1960), this circuit held directly to the contrary, Construction argues that subsequent cases have limited that holding. As recently as four years ago, however, this circuit held that the Puerto Rico workmen’s compensation statute is the exclusive remedy for locally hired seamen injured while working in Puerto Rican waters. Mojica v. Puerto Rico Lighterage Co., Inc., 492 F.2d 904 (1st Cir. 1974). Manuel Caceres v. San Juan Barge Co., 520 F.2d 305 (1st Cir. 1975), on which Construction seeks to rely, held only that a Puerto Rican seaman injured outside Puerto Rican waters could seek relief against his employer under the Jones Act. This court was careful to distinguish Mojica, Fonseca, and similar decisions on the ground that the injuries in those cases occurred within Puerto Rican, waters. Id. at 306. In terms of abstention, this particular claim by Construction stands in exactly the same posture as that previously discussed. No factor traditionally seen as a prerequisite to abstention exists. In addition, the very fact that Construction’s claim of exemption as to these seamen is patently frivolous in light of prior precedent militates in favor of accepting jurisdiction so that the claim can be resolved once and for all. By declaring that federal law provides no bar to the imposition of workmen’s compensation liability for this class of seamen, the district court would eliminate an issue that might possibly sidetrack future state proceedings in this matter. Cf. North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973). An appropriate declaratory judgment in this regard should therefore be entered upon remand. 3. The Rate Applicable to Locally Hired Seamen and Shore Workers Construction argues in the alternative that even if its locally hired seamen should not be excluded from coverage under Puerto Rico workmen’s compensation law, the manager of the State Insurance Fund acted arbitrarily and capriciously in assessing the payroll of these employees at a rate of $10.70 per $100. It makes the same claim with respect to shore workers not claimed to be exempt. Construction does not allege that these rates constitute a taking of property without just compensation or otherwise violate federal law; the claim appears to be grounded entirely on Puerto Rican law. The appropriateness of abstention as to these claims is clearly different than as to those previously discussed. To begin with, it is not even clear that the district court had any jurisdiction to decline with regard to these issues. The laws of the Commonwealth provide for review of rates set by the Insurance Fund in the Industrial Commission, with direct review of the decision of the Industrial Commission in the Supreme Court of Puerto Rico. P.R.Laws Ann. tit. 11, §§ 12, 25. Construction has not cited any statute or authority granting to the Puerto Rico courts jurisdiction to entertain an attack on an Insurance Fund rate in any other manner. If the laws of Puerto Rico do not recognize a cause of action permitting a collateral attack on these rates, a federal court in the exercise of its diversity jurisdiction would be unable to entertain any such claim. Even, however, if the district court had jurisdiction over these issues, its refusal to determine them was correct. The rate-making process of the Insurance Fund is an area of intensely local interest, and judicial review of the process has been centralized in a single court. Intervention by federal courts could disrupt the efforts of the state to develop a coherent rate structure. The administrative remedy for this sort of claim is adequate, inasmuch as cash refunds can be obtained for excessive rates, as opposed to assessments for exempt workers. See Alcoa Steamship Co. v. Perez, supra, 424 F.2d at 435-36. We accordingly affirm so much of the judgment below as dismisses with respect to these matters. 4. Coverage of Non-local Technical Workers Approximately 12% of the deficiency claimed by the Insurance Fund relates to technical workers hired in the states who enjoyed insurance benefits comparable with or superior to those provided by the Commonwealth’s workmen’s compensation coverage. To prevent duplicate compensation for such workers, Puerto Rico has provided a limited exemption to its Workmen’s Compensation Act. P.RLaws Ann. tit. 11, § 28a. An employer can obtain that exemption, however, only by applying for it to the manager of the Insurance Fund and presenting satisfactory evidence to him of eligibility. The record in this ease contains no evidence that Construction has so applied. Construction argues that the failure of the manager to exempt this class of workers constitutes a violation of the full faith and credit clause and the Puerto Rican Federal Relations Act, particularly 48 U.S.C. § 737. Inasmuch as the action of the Insurance Fund in no way interferes with Construction’s obligations to its employees under its separate insurance contracts, but only requires additional insurance coverage for these employees, these federal claims appear completely meritless. As Construction has not yet acted to obtain the exemption afforded under state law, it has at present no state law claim to press in either federal or state court. Dismissal of this portion of the suit was therefore proper. 5. Validity of the Letter of Credit In order to obtain release of the compensation owed it under the dredging contract, Construction gave the Ports Authority a letter of credit in the amount of its potential liability to the Insurance Fund. In effect Construction posted security for its workmen’s compensation obligations. Construction now seeks to void the letter of credit on the grounds that it was obtained by duress and without consideration. The question is entirely one of Commonwealth law. Furthermore, the issue is independent of the resolution of Construction’s dispute with the Insurance Fund. Even if Construction obtains every credit it seeks in its appeal to the Industrial Commission, it will still owe money to the Insurance Fund. By attempting to nullify the letter of credit, Construction is not attacking the underlying obligation but only the security. Consequently this claim involves none of the difficult jurisdictional and administrative law issues that bristle in the other relief it seeks. Diversity being present and more than $10,000 being at stake, we hold that the district court exceeded its authority in refusing to resolve this fairly straightforward contract dispute. As the Supreme Court has said, the mere presence of difficult questions of state law does not provide a district court a basis for refusing to hear a case. Meredith v. Winter Haven, supra. A determination of the merits of this claim will not interfere with the administration of the workmen’s compensation law or otherwise put the district court in the posture of disrupting the affairs of the Commonwealth. So much of the district court’s order as dismisses this part of the dispute is reversed, and the court on remand should after further proceedings decide this claim and grant such relief, if any, as it determines. 6. The Commonwealth as a Party Construction joined the Commonwealth of Puerto Rico as an additional party defendant, although all the relief it seeks can be obtained from the other defendants in their official capacity. The fiction underlying Ex parte Young, 209 U.S. 123, 28 S.Ct. 441,52 L.Ed. 714 (1908), which permits federal courts to grant equitable relief against state officials in spite of the eleventh amendment, forbids by its very terms equitable relief directed to a state itself. Those cases involving state consent to suit in federal court cited in Construction’s brief involve claims for money damages, which are not at issue here. As dismissal of the Commonwealth as a defendant on eleventh amendment grounds was entirely proper, the judgment below is, in this respect, affirmed. The judgment of the district court is affirmed in part, reversed in part, and vacated in part; and the cause is remanded for further proceedings in accordance herewith. . See, e. g., Mojica v. Puerto Rico Lighterage Co., Inc., 492 F.2d 904 (1st Cir. 1974); Alcoa Steamship Co. v. Velez, 376 F.2d 521 (1st Cir. 1967); Fonseca v. Prann, 282 F.2d 153 (1st Cir. 1960). . The precipitating factor in this lawsuit appears to have been a decision of the Insurance Fund sharply increasing the cost of workmen’s compensation coverage. As the Supreme Court of Puerto Rico explains in Coca Cola Bottling Co. v. Industrial Commission, Nos. 0-75-340; 0-75-338 (P.R.1976), between 1954 and 1969 the manager of the Fund had applied a rule fixing a ceiling of $5,200 per employee to determine the payroll figure used to calculate the employer’s liability. The assessment was determined by multiplying the payroll figure by the rate applicable to each employment category. In 1969 the manager of the Fund abandoned the $5,200 ceiling and began calculating liability according to actual payroll expenditures. No change was made in the rates to reflect the increased wage base. This new practice was not, however, communicated to the employers — for example, it was not until 1973 that the plaintiff employers in Coca Cola learned of their increased liability. The Supreme Court of Puerto Rico nonetheless sustained the application of the new method to all coverage after 1969, holding that the attempts of previous managers to limit payroll coverage were contrary to law and hence a nullity, but ordered the manager to recalculate the applicable rates in order to reduce liability to reasonable levels. . See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974);

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

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

NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent, Institutional Networks Corporation, Intervenor. No. 85-1012. United States Court of Appeals, District of Columbia Circuit. Argued April 8, 1986. Decided Sept. 30, 1986. Francis J. Wilson, with whom Robert E. Aber, Washington, D.C., was on the brief, for petitioner. Anne E. Chafer, Asst. General Counsel, S.E.C., with whom Daniel L. Goelzer, General Counsel, and Elisse B. Walter, Associate General Counsel, Washington, D.C., were on the brief, for respondent. Paul Gonson, Atty., S.E.C., Washington, D.C., also entered an appearance for respondent. Daniel T. Brooks, a member of the bar of Supreme Court of Virginia, pro hac vice, by special leave of court, with whom Ronald D. Eastman and Barry S. Spector, Washington, D.C., were on the brief, for inter-venor. Before MIKVA, GINSBURG and BUCKLEY, Circuit Judges. Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: The National Association of Securities Dealers (“NASD”) petitions this court for review of orders of the Securities and Exchange Commission (“SEC” or “Commission”) rejecting as excessive a fee that NASD proposed to charge for access to certain computerized securities information that it collects. Intervenor Institutional Networks Corp. (“Instinet”) is engaged in the business of, among other things, selling computerized securities information collected by NASD. Instinet objected to NASD’s proposed fee before the SEC and now asks this court to affirm the SEC’s rejection of that fee. Because we conclude that the SEC’s action was not arbitrary or capricious and was supported by substantial evidence, we affirm the orders of the Commission. I. Factual Background NASD is a national securities association registered with the SEC pursuant to section 15A of the Securities Exchange Act (“Act”), 15 U.S.C. § 78o-3 (1982 & Supp. 1986). NASD has over 6,700 broker-dealer members located throughout the United States. The purpose of the organization is to provide self-regulation of the over-the-counter (“OTC”) securities market. To this end, it owns and operates the NASDAQ system, a computerized securities information service. The NASDAQ system became operational in 1971 and was intended to rationalize the OTC market by providing buyers and sellers of OTC securities with up-to-the-minute information about market conditions. The NASDAQ system collects price quotation information concerning OTC securities from market makers (i.e., broker-dealers who hold themselves out as willing to buy and sell particular securities on a regular basis). This information is processed by the NASDAQ computers and made available to the public in four basic forms. NASDAQ “Level 1” service provides the best bid and offer for securities listed on the NASDAQ system to over 100,000 subscribers. NASD does not sell this information directly to subscribers. Rather, it supplies the information to vendors such as Instinet, Quotron Systems, Inc., and Bunker Ramo Corporation, who further process it and sell it to subscribers. In addition to charges assessed by the vendors, Level 1 subscribers pay a monthly fee of $8.75 per computer terminal to NASD. NASDAQ “Level 2” service provides more complete market information than Level 1. Subscribers receive a full listing of all market maker bids and offers for each NASDAQ security. Level 2 service is not available through vendors, but rather is sold directly to subscribers by NASD. There is a “query function” built into the NASDAQ computers that enables Level 2 subscribers to obtain the most current information concerning each OTC security directly from NASD. Subscribers pay $150 per terminal per month for this service. There are approximately 500 Level 2 subscribers. “Level 3” service is identical to Level 2, except that, in addition to the query function, it has an “update function” that permits market makers to enter new quotations into the NASDAQ system for securities in which they make a market. Like Level 2 service, Level 3 is provided directly by NASD and costs $150 per terminal per month. There are approximately 2,000 Level 3 subscribers. The fourth form in which NASDAQ information is made available to the public is “NQDS” service. This service provides subscribers with the same information that is available through NASDAQ Level 2 service. Unlike that service, however, NQDS service is not sold directly to subscribers by NASD. Rather, as in the case of Level 1 service, NQDS data is provided in raw form to vendors, who process the data and then sell it to subscribers. At the present time, Instinet is the only vendor engaged in the business of selling NQDS data to subscribers. This case concerns the fee that NASD may charge NQDS subscribers for the information that they receive through Instinet. NQDS service is of relatively recent origin. It was initiated as a result of a 1981 SEC decision that required NASD to make available to securities information vendors full price quotation data for those NASDAQ securities designated by NASD as “national market system” (“NMS”) securities. Instinet was the only vendor to express an interest in obtaining this data. Instinet and NASD entered negotiations aimed at reaching an agreement similar to that existing between the parties with respect to Level 1 service. Both parties understood, however, that, unlike Level 1 service, Instinet’s new service would be in direct competition with NASDAQ Level 2 service. Negotiations between the parties soon reached a deadlock over the question of fees, and in June 1983 NASD filed its proposed terms with the SEC. Under NASD’s proposal, Instinet was to be charged a $3,200 per month “vendor fee,” which would cover the cost of transmitting quotation data from NASD to Instinet. In addition, Instinet’s customers were to pay NASD a “subscriber fee” based on the $150 per terminal per month fee paid by NASD’s Level 2 and Level 3 (“Level 2/3”) customers. The $150 fee was to be discounted to reflect the fact that Instinet subscribers would receive quotations for only NMS securities rather than all securities available through Level 2/3 service. The amount of the discount was to be in rough proportion to the percentage of total NASDAQ trading volume not consisting of NMS securities. II. SEC Proceedings In July 1983, Instinet filed a petition with the SEC pursuant to section HA(b)(5) of the Act, 15 U.S.C. § 78k-l(b)(5) (1982), alleging that NASD’s proposed terms were an inappropriate prohibition or limitation of access to NASDAQ information. In particular, Instinet asserted that NASD’s proposed fees were unreasonably high. Insti-net also claimed that NASD’s refusal to provide quotation information for NASDAQ securities not designated as NMS securities would render its service unmarketable. In a preliminary ruling in August 1983, the SEC found that NASD’s proposed fees constituted a prohibition or limitation of access to services. See 48 Fed.Reg. 38,124 (1983). The SEC announced the initiation of a proceeding to determine whether NASD’s prohibition or limitation of access violated section HA(b)(5) of the Act, and partial interim relief was granted to Insti-net during the pendency of the proceeding. Specifically, NASD was ordered to begin providing full quotation data for NMS securities to Instinet, and Instinet was directed to pay into escrow an amount equal to the sum of NASD’s proposed fees. Insti-net began receiving NQDS service under the terms of this order in September 1983. NASD subsequently offered to provide Instinet with quotation data for all NASDAQ securities, not just NMS securities. NASD insisted, however, that the subscriber fee for complete data should be the full $150 fee that it charges its own customers for Level 2/3 service. Thus, the principal issue in the SEC proceeding was the reasonableness of NASD’s proposed fees. In essence, Instinet claimed that, because NASD’s situation was analogous to that of a public utility, NASD’s fees should be based on the costs incurred by it in collecting NQDS data. NASD argued, on the other hand, that its fees should be based on the value of the service provided to Insti-net, which value was defined by the fees charged for its Level 2/3 service. The SEC announced its findings in an order issued April 17, 1984 (“April order”). See 49 Fed.Reg. 17,640 (1984). The Commission agreed with Instinet that NASD’s charges must be cost-based. The Commission accordingly approved the $3,200 per month vendor fee, but it ruled that the proposed $150 per month subscriber fee was inconsistent with section HA(b)(5) of the Act. The Commission explained that NASD’s value-of-service method of computing the subscriber fee effectively would require Instinct’s subscribers to pay for services that they do not receive from NASD. In particular, the fee charged by NASD for its Level 2/3 service covers the cost of operating the Level 2/3 query function, which is not included in NQDS service and which Instinet must provide to its subscribers at its own expense. The cost to Instinet of operating its own query function is obviously reflected in the fees that Instinet charges its customers. Thus, if NASD were permitted to charge Instinet’s subscribers the full $150 fee, those subscribers would be forced to pay twice for a query function that they only receive once. In order to avoid this problem, the Commission ruled: The NASD, in effect, should recover only those costs it would incur if it operated a pure “pass-through” system — a system that only collected information and passed it on to vendors. The NASD should not recover any costs related to its own competing vendor service. Id. at 17,649. The Commission then determined that the best indication of the cost to NASD of collecting NQDS information is the $8.75 per month fee that NASD charges Level 1 subscribers. The Commission explained that Level 1 service essentially provides customers with a refined form of NQDS data. If anything, it should cost NASD more to provide Level 1 service than NQDS service because assembling Level 1 data requires an additional processing step — the NASDAQ computers must search through NQDS quotation data for all NASDAQ securities in order to determine the best bid and offer for each security. The Commission accordingly dissolved the escrow arrangement created pursuant to its preliminary ruling and reduced the subscriber fee to $8.75 per month pending submission by NASD of an acceptable cost-based fee proposal. In a separate portion of the April order, the Commission directed NASD to expand NQDS service to include NASDAQ securities not designated as NMS securities. In June 1984, NASD asked the SEC to reconsider the April order insofar as it prevents NASD from recovering the cost of the Level 2/3 query function from Insti-net subscribers. The Commission denied this request in an order issued November 8, 1984 (“November order”). See 49 Fed. Reg. 45,282 (1984). NASD thereupon petitioned this court for review of the April and November orders. NASD also filed a second request with the SEC for reconsideration of the April order which was denied by the Commission on March 8, 1985 (“March order”). See 50 Fed.Reg. 10,565 (1985). NASD subsequently filed a motion with this court urging us to include its second request for reconsideration and the March order denying that request in the record of this case. This motion must be denied because the second request and the March order were not in existence at the time of the April and November orders and therefore were not “before the agency” as required by Fed.R. App.P. 16(a). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). NASD has since filed with the SEC a new proposed NQDS subscriber fee of $79 per terminal per month. This proposal was based on a consultant’s study of the NASDAQ system which concluded that the per-subscriber cost to NASD of collecting and processing NQDS information is $79. One of the assumptions of this study was that the Level 2/3 query function is essential to collection of NQDS data. The $79 figure accordingly includes the cost of operating the query function. On February 21, 1986, the SEC preliminarily found the $79 proposal to be inconsistent with the April order, and proceedings were instituted to determine whether the proposal should be disapproved. See 51 Fed.Reg. 6,957 (1986). Like the March order, the Commission’s ruling on NASD’s latest fee proposal is not before us in this appeal. Our review therefore is limited to the Commission’s April and November orders. III. Analysis The position taken by NASD during the SEC proceedings leading up to the April order was obviously untenable. Had the Commission approved NASD’s value-of-service fee proposal, Instinet’s subscribers effectively would have been required to pay NASD retail rates for a wholesale service. In order to cover its costs, Instinet would have had to impose additional charges on top of the $150 per month NQDS subscriber fee. As a result, Instinet’s service would have been uncompetitive with NASDAQ Level 2 service, which is sold for a flat $150 per month. Under these circumstances, the Commission quite properly concluded in its April order that NASD’s proposal constituted an improper prohibition or limitation of access to services under section HA(b)(5) of the Act. Apparently recognizing that its original position was unreasonable, NASD now concedes that the NQDS subscriber fee must be cost-based. Indeed, counsel for NASD conceded at oral argument that, in view of NASD’s most recent cost-based fee proposal, the Commission’s April and November orders should be affirmed insofar as they reject a subscriber fee in excess of $79 per month. Counsel for Instinet and the Commission argued, on the other hand, that the $8.75 per month figure selected by the Commission as an interim fee is a much closer approximation of the actual cost to NASD of providing NQDS service. The parties being in agreement that the subscriber fee must be cost-based, this case raises the question of whether the SEC’s orders allow NASD to recover all costs properly allocable to NQDS service. Our review of the Commission’s orders is governed by a very deferential standard. We are required to uphold the orders unless we determine that they rest on factual determinations that are not supported by substantial evidence, 15 U.S.C. § 78y(a)(4) (1982), or that they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982). Because “[r]atemaking is ... much less a science than an art,” and because “[c]ost itself is an inexact standard,” this court has held that “great deference is given to [agency] expertise and judgment on the reasonableness of a particular rate proposal....” Alabama Electric Cooperative, Inc. v. FERC, 684 F.2d 20, 27 (D.C.Cir.1982). When reviewing ratemak-ing decisions, “the critical concern of the reviewing court is that the agency provide a coherent and reasonable explanation of its exercise of discretion. If the agency has done so, the decision may not be disturbed even if the court thinks a different decision would have been more reasonable or desirable.” MCI Telecommunications Corp. v. FCC, 675 F.2d 408, 413 (D.C.Cir.1982). We note at the outset that there is no dispute as to many of the costs that NASD seeks to recover. It is not disputed, for example, that the Level 3 update function is essential to NQDS data collection and therefore may be charged to NQDS subscribers on a pro rata basis. Nor is it disputed that NQDS subscribers may be charged for validating new quotations entered into the NASDAQ system by market makers. The principal disagreement centers on the cost of the Level 2/3 query function and the large computer storage capacity necessary to support this function. NASD advances two basic arguments for allocating query function costs to NQDS subscribers. First, it claims that because the NASDAQ system is highly integrated, the SEC was not permitted to require NASD to separate out the cost of one element of the system. Second, it claims that because market makers must examine market conditions before updating their quotations for particular securities, the query function is integral to NQDS data collection. For the reasons stated in the sections that follow, we find these arguments unpersuasive and therefore affirm the Commission’s orders. A. The Integrated Nature of the NASDAQ System NASD’s first basic argument is that the SEC improperly disregarded the integrated design and operation of the NASDAQ system in ordering NASD to exclude Level 2/3 query function costs from the NQDS subscriber fee. This argument appears in NASD’s brief in a variety of forms, but the underlying theme is the same. Seizing on the Commission’s statement that “NASD, in effect, should recover only those costs it would incur if it operated a pure ‘pass-through’ system,” April order, 49 Fed.Reg. at 17,649, NASD asserts that the Commission erroneously based its orders on “the theoretical costs of a theoretical ‘pass-through’ system” rather than “the real costs of an actual system used to provide the securities information.” NASD Br. at 27 (emphasis in the original). In a related argument, it claims that the Commission's reliance on “a hypothetical nonexistent system supplying no information” contravenes the provisions of section HA(c)(l)(C), (D) of the Act, 15 U.S.C. § 78k-l(c)(l)(C), (D) (1982), which authorize the Commission to ensure public access to such information “as is” collected or distributed by exclusive securities information processors like NASD. NASD Br. at 46. NASD also argues that the Commission could not properly exclude query function costs in view of a consultant’s finding that “the NASDAQ system architecture is monolithic, integrated with respect to functionality, and not susceptible to component analysis of that functionality in a practical sense.” Id. at 35. Thus, the essence of NASD’s argument is that it cannot be required to separate out query function costs from other NASDAQ system costs because the highly integrated design of the system does not lend itself to such a cost allocation. We must reject this argument, for it is inconsistent with one of the fundamental premises of rate regulation. The problem of allocating costs of common or integrated facilities among different groups of customers is hardly unique to the NASDAQ system; it is presented to some degree in virtually every ratemaking case. That it may be difficult to allocate costs does not provide an excuse for refusing to do so. As one economist has observed: The fact that most services are typically provided in combinations, using the same facilities, does not mean that definable shares of the common costs can not in principle be causally attributed to each.... The cost allocation formulae actually employed may achieve only a rough, rule-of-thumb approximation to the actual costs for which each product or service is responsible, but those costs have objective reality. 1 A. Kahn, The Economics of Regulation: Principles and Institutions 78 (1970) (footnote omitted). The Supreme Court has recognized that in allocating costs “[pjrecision and exactitude in the mathematical sense are not possible.” Baltimore & Ohio Railroad v. Aberdeen & Rockfish Railroad, 393 U.S. 87, 92, 89 S.Ct. 280, 283, 21 L.Ed.2d 219 (1968). Even in cases involving highly integrated facilities, cost allocations required by an agency will be upheld if they are not arbitrary and are supported by a reasoned analysis. MCI Telecommunications Corp. v. FCC, 675 F.2d at 413. Avoidance of cross-subsidization of services is a legitimate, non-arbitrary reason for requiring difficult cost allocations. See id. at 410. In the instant case, the SEC articulated persuasive reasons for excluding the cost of the Level 2/3 query function from the NQDS subscriber fee. Most importantly, the Commission wished to prevent Insti-net’s subscribers from being forced to subsidize NASDAQ Level 2 service. If permitted such a subsidy, NASD would have been given an unfair competitive edge over Insti-net in a market in which NASD already had the advantage of its former monopoly position. We find these reasons sufficient to support the Commission’s decision to require NASD to make an admittedly difficult and imprecise cost allocation with respect to the Level 2/3 query function. When the Commission’s orders are viewed in this context, it is clear that they are not based on any sort of “theoretical” model of the NASDAQ system. Nor do they require NASD to distribute anything other than such information “as is” collected by the NASDAQ system. They simply require NASD to allocate the costs of services already provided by the current system. NASD can hardly complain that it is being treated unfairly; similar cost allocations are required in virtually all other regulated industries. NASD protests that the Commission’s exclusion of costs related to the query function will prevent it from recovering the full cost of validating new quotations entered into the NASDAQ system by market makers — a cost that the Commission concedes is integral to NQDS data collection and therefore properly recoverable from NQDS subscribers. NASD seems to believe that because certain NASDAQ computer capabilities — principally computer storage capabilities — support both the validation and query functions, it is prohibited by the SEC’s orders from recovering any portion of the cost of these capabilities. NASD’s fears are not well founded. Any blanket exclusion of the cost of shared computer capabilities would violate the principle of functional cost allocation espoused in the April order. That no such blanket exclusion was intended is apparent from the language of the order, which states: The Commission believes that validation of the quotation information within specified pre-existing parameters and in the correct format is a proper function of a marketplace, and thus may be considered part of the quotation collection system- Even if validation is accomplished through comparison with inside quotations, the full storage capacity of all quotations is not necessary to validate quotations. Therefore, the Commission would expect that only a fraction of storage costs would be properly allocated to NQDS verification. April order, 49 Fed.Reg. at 17,649-50 n. 92 (emphasis added). Thus, the Commission clearly intended to permit NASD to recover costs allocable to verification, irrespective of whether the computer capabilities involved also support the Level 2/3 query function. Similar logic would apply to all other capabilities that support both update and query functions: costs properly alloca-ble to the updating of quotations may be recovered. Accordingly, NASD is free to substantiate such costs in any future rate proceeding. B. Market Maker Use of the Query Function NASD’s second basic argument is that the SEC erred in ruling that the Level 2/3 query function is not integral to the process of collecting quotations because market makers must use the function before entering new quotations into the NASDAQ system. Market makers cannot update quotations without knowing the bids and offers of other market makers, NASD explains, and the only way for them to obtain this information is through the Level 2/3 query function. This argument was set forth in NASD’s first request for reconsideration of the April order, and we think it was properly rejected by the Commission. As stated by the Commission: While NASDAQ now may be the primary source for market makers to inquire as to the full quotation stream in a stock, there is no reason why that has to hold true for the future, especially after the NQDS is expanded to cover all NASDAQ securities and other vendors offer services in competition with Level 2. November order, 49 Fed.Reg. at 45,284. NASD objects that this conclusion is contradicted by a number of affidavits submitted by it m connection with its first request for reconsideration of the April order. In these affidavits, market makers state that they currently rely on the NASDAQ query function in updating quotations and that they do not expect to ever rely on a query service provided by competing vendors such as Instinet. NASD asserts that these affidavits were the only evidence in the record concerning the ability of market makers to update quotations in reliance on competing vendor services and that the Commission cited no evidence in support of its conclusion that market makers could rely on such competing services. NASD therefore claims that the Commission’s conclusion is unsupported by substantial evidence and must be reversed. We disagree. The Commission was not required to cite record evidence for the self-evident proposition that market makers no longer have to rely on the Level 2/3 query function for current market information now that Instinet’s competing service is available. That some, most, or even all market makers do not use the Instinet service does not mean that Instinet subscribers may be forced to subsidize the query service used by those market makers. Market makers now have a choice of query services; those that elect to use NASDAQ service must bear the costs of that service, just as Instinet subscribers must bear the costs of Instinet service. We can discern no error in the Commission’s determination on this issue. C. Remaining Contentions We have examined NASD’s remaining contentions and find them to be devoid of merit. The claim that the SEC should have decided this case in a rulemaking proceeding rather than through adjudication was waived by the failure of NASD to raise the issue before the Commission. See 15 U.S.C. § 78y(c)(l) (1982). We also reject the claim that the Commission applied an improper standard in reviewing the fees NASD proposed to charge for access to NQDS data. NASD argues that the SEC sought to determine whether the fees were “fair and reasonable” rather than “not unreasonably discriminatory,” as required by section HA(c)(l)(D) of the Act, 15 U.S.C. § 78k-l(c)(l)(D). In point of fact, however, the SEC’s ruling in this case was made pursuant to section HA(b)(5)(B) of the Act, 15 U.S.C. § 78k-l(b)(5)(B), which requires it to determine whether the person seeking access has been “discriminated against unfairly” — a standard we find functionally indistinguishable from the one advocated by NASD. IV. Conclusion For the foregoing reasons, we conclude that the Commission’s determination that NASD may not recover the cost of its Level 2/3 query function from Instinet subscribers was not arbitrary or capricious and was supported by substantial evidence. The Commission’s April and November orders are therefore Affirmed. . NASD's motion to supplement the record is also denied insofar as it seeks inclusion of mem-oranda and briefs filed by the parties in connection with the proceedings leading up to the April and November orders. It is well settled that such documents are not part of the record of agency proceedings unless they contain factual information considered by the agency in reaching its decision. See Norris & Hirshberg, Inc. v. SEC, 163 F.2d 689, 693 (D.C.Cir.1947), cert. denied, 333 U.S. 867, 68 S.Ct. 788, 92 L.Ed. 1145 (1948). NASD has not claimed that these mem-oranda and briefs contain such information. . NASD also claims that the Commission's conclusion is contradicted by a study which found that over 76% of Level 2/3 queries are made by market makers with respect to OTC securities in which they make a market. The findings of this study were only presented to the Commission in connection with NASD’s second request for reconsideration and therefore are not part of the record in this case. Even if the findings were properly before us, they would not change our decision, for the fact that market makers frequently use the NASDAQ query function does not refute the Commission’s conclusion that market makers can obtain the same information from other sources, such as Instinet.

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

KEV, INC., Plaintiff-Appellant, v. KITSAP COUNTY and the Honorable Ray Aardal and John Horsley, County Commissioners of Kitsap, etc., et al., Defendants-Appellees. No. 84-4088. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 8, 1985. Decided July 7, 1986. Jack R. Burns, Burns & Meyer, Bellevue, Wash., for plaintiff-appellant. Ronald A. Franz, Deputy Pros. Atty., Port Orchard, Wash., for defendants-appel-lees. Before PREGERSON and WIGGINS, Circuit Judges, and SCHNACKE, District Judge. The Honorable Robert H. Schnacke, United States District Judge, Northern District of California, sitting by designation. PREGERSON, Circuit Judge. Kev, Inc. challenges the constitutionality of a Kitsap County ordinance regulating non-alcoholic topless dancing establishments and appeals from the district court’s order denying its motion for injunctive and declaratory relief. We affirm in part and reverse in part. BACKGROUND Appellant, Kev, Inc., (“Kev”), a Washington corporation, leased premises in Kit-sap County (“the County”) to operate a live entertainment facility called “Fantasies,” which was to feature topless dancing and sell non-alcoholic beverages to adults for consumption on the premises. In early 1983, Kev secured the appropriate business licenses and began remodeling the premises to commence business operations. On January 24, 1983, the Kitsap County Board of Commissioners proposed Ordinance No. 92, entitled “An Ordinance Regarding Erotic Dance Studios,” to regulate adult entertainment facilities. The stated purpose of the proposed ordinance was to regulate topless dancing to minimize perceived side effects, such as illegal drug dealing, fights, and prostitution, which would purportedly threaten the community’s well-being. On February 7, 1983, the County held a public hearing on the proposed ordinance. Law enforcement officials from Kitsap and surrounding counties testified that “soft drink, topless dancing” establishments in adjacent counties were the sites of crime problems such as prostitution and drug dealing. The County Board of Commissioners passed the proposed ordinance that same day. On February 14, 1983, Kev filed suit, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Western District of Washington, seeking a preliminary and permanent injunction and a declaratory judgment finding Ordinance No. 92 unconstitutional. Three weeks later, the County Board of Commissioners passed Ordinance No. 92-A as an amendment to Ordinance No. 92. Kev then filed an amended complaint challenging, on constitutional grounds, the provisions of Ordinance No. 92 as amended by Ordinance No. 92-A (“the ordinance”). Primarily, Kev alleges that topless dancing is entitled to first amendment protection and that the ordinance unduly restricts the exercise of that protected right. The ordinance defines an “erotic dance studio” as “a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patrons’ sexual desires.” Sections 2c and 3a. The ordinance regulates erotic dance studios in various ways. It requires licensing of erotic dance studios and their dancers. Sections 3-6. It also requires that dancers and patrons be at least eighteen years of age; that dancing occur on a raised platform at least ten feet from patrons; and that all books and records of erotic dance studios be open to official inspection. Sections 9d, e, i, j, and Section 10. The ordinance also proscribes the sale or possession of intoxicating liquor and controlled substances, Section 9g; fondling or caressing between dancers and patrons, Section 9k; and the payment or receipt of gratuities, Sections 91 and m. On June 9, 1983, Kev opened the business to the public. On January 14, 1984, Kev was administratively dissolved for failure to comply with state corporate licensing regulations. But, after curing the deficiencies, Kev was reinstated as a corporation on April 24, 1984. The certificate of reinstatement was back-dated to and took effect as of the January 14, 1984 dissolution date. After a hearing on Kev’s motion for a preliminary injunction, the district court held the closing hour provision of the ordinance unconstitutional, but refused to enjoin enforcement of other provisions of the ordinance pending a hearing on the merits. On July 19, 1984, following a hearing on the merits, the district court found the ordinance constitutional in its entirety. Kev timely appealed. DISCUSSION I. Jurisdiction The County contends that the district court did not have jurisdiction when it entered judgment on July 19, 1984. The County argues that because Kev was dissolved on January 14, 1984, there were no adverse parties and, therefore, no case or controversy when the district court entered judgment on July 19, 1984. For the same reasons, the County argues that this court does not have jurisdiction in the present appeal. We disagree. Although Kev was “administratively dissolved” on January 14, 1984 for failure to comply with state corporate licensing regulations, it was reinstated as a corporation on April 24, 1984 after curing its problems with the state authorities. The certificate of reinstatement provided that Kev’s reinstatement dated back to and took effect as of the January 14, 1984 dissolution. For this reason, we find the County’s motion to dismiss for mootness itself to be moot. We, therefore, have jurisdiction to hear the present appeal. II. Standard of Review This case presents questions of law, which we review de novo. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). III. Merits A. Due Process Kev contends that ordinance section 2e (defining erotic dance studios) and section 9k (prohibiting dancers from “fondling” or “caressing” any patron) are unconstitutionally vague and thus violate due process requirements. We disagree. A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Vague laws are offensive because they may entrap the innocent by not giving fair warning of what conduct is prohibited. Id.; Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Further, to avoid discriminatory or arbitrary enforcement, due process requires that laws set forth reasonably precise standards for law enforcement officials and triers of fact to follow. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. Moreover, where first amendment freedoms are at stake, an even greater degree of specificity and clarity of laws is required. Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d 125 (1975); Goguen, 415 U.S. at 573, 94 S.Ct. at 1247; Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966). Section 2e defines an erotic dance studio as as “a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patron’s sexual desires.” The ordinance classifies erotic dance studios according to the manifest intent of the operator of the studio. Thus, one who exhibits erotic dancing with an intent to arouse the sexual desires of his patrons would know that his business falls within the purview of the ordinance. The fact that the prosecutor must prove the intent of the operator of the business does not by itself render the statute void for vagueness. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952) (statute requiring drivers transporting explosives to avoid crowded thoroughfares, “so far as practicable,” not void for vagueness since statute requires a knowing violation); United States v. Doyle, 786 F.2d 1440, 1443 (9th Cir.1986) (presence of scienter requirement in statute prohibiting sale, transportation, or receiving of wildlife without a permit issued by the state enables law to withstand vagueness challenge). Thus, section 2e provides an adequate standard for enforcement and gives fair warning to the business it targets. Section 9k provides that: “No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer.” “Caressing” and “fondling” are ordinary, commonly used terms. Both words describe forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual. See Webster’s Third New International Dictionary 339, 883 (1971). However, in the context of the other definitions provided in the ordinance, e.g., § 2c (“[djancer — a person who dances or otherwise performs for an erotic dance studio and who seeks to arouse or excite the patrons’ sexual desires” (emphasis added)), section 9k is easily understood to prohibit sexual conduct between dancers and patrons whom the dancers intend to arouse sexually while the dancers are acting in the scope of their employment at the erotic dance studio. Further, to find a violation of the prohibition against “caressing” and “fondling,” prosecutors must prove that a dancer or patron engaged in a specified act, i.e., fondling or caressing with the intention to sexually arouse or excite. Section 9k thus provides an adequate standard for law enforcement officers. Cf. Kolender v. Lawson, 461 U.S. 352, 358,103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (ordinance requiring persons who loiter or wander the streets to provide “credible and reliable” identification and account for their presence held ^unconstitutional for failing to provide adequate law enforcement standards and to give fair warning of proscribed conduct). Since sections 2e and 9k provide adequate law enforcement standards and give fair warning of the proscribed conduct, the appellant’s vagueness argument fails. B. First Amendment Violations Courts have considered topless dancing to be expression, subject to constitutional protection within the free speech and press guarantees of the first and fourteenth amendments. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); Chase v. Davelaar, 645 F.2d 735, 737 (9th Cir.1981). The County erroneously asserts that even if topless dancing were protected by the first amendment, it is not entitled to the same degree of protection afforded speech clearly at the core of first amendment values. In support of its assertion, the County relies on Justice Stevens’s statement in the plurality opinion in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), that “society’s interest in protecting [erotic expression] is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate____” 427 U.S. at 70, 96 S.Ct. at 2452. However, only three other justices (Chief Justice Burger, Justices White and Rehnquist) concurred in that statement. The County fails to recognize that five other justices in Young concluded that the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts. Id. at 73 n. 1 (Powell, J., concurring), 84-85, 96 S.Ct. at 2453 n. 1, 2459-60 (Stewart, J., dissenting, joined by Brennan, J., Marshall, J., and Blackmun J.). This view continues to govern. Several circuits that have considered this question have adopted the position ascribed to the five justices in Young. See United States v. Guarino, 729 F.2d 864, 868 n. 6 (1st Cir.1984) (en banc); Avalon Cinema Corporation v. Thompson, 667 F.2d 659, 663 n. 10 (8th Cir.1981) (en banc); Hart Bookstores, Inc. v. Edmisten, 612 F.2d 821, 826-28 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). However, determining that topless dancing is protected expression does not end our inquiry. Although first amendment coverage extends to topless dancing, it “does not guarantee the right to [engage in the protected expression] at all times and places or in any manner that may be desired.” See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). A governmental entity, when acting to further legitimate ends of the community, may impose incidental burdens on free speech. City of Renton v. Playtime Theatres, Inc., — U.S.-, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). While regulations that restrain speech on the basis of content presumptively violate the first amendment, “ ‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Id. 106 S.Ct. at 928. A regulation is “content-neutral” if it is “justified without reference to the content of the regulated speech.” Id. at 929 (emphasis in original) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)). The stated purpose of the County’s ordinance is to alleviate undesirable social problems that accompany erotic dance studios, not to curtail the protected expression —namely, the dancing. At a hearing on the proposed ordinance, the County presented evidence that drug dealing, prostitution, and other social ills accompany topless dancing establishments. See California v. LaRue, 409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1972). Law enforcement officials from Kitsap and neighboring counties testified that these problems had been associated with erotic dance studios in other counties. The Supervisor of the Vice Control Department of Kings County testified that close contact between dancers and patrons facilitates prostitution. The County has a legitimate and substantial interest in preventing social problems that accompany erotic dance studios and threaten the well-being of the community. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982) (upholding regulation requiring “open booths” in adult film arcades). Thus, we conclude that the ordinance is content-neutral because it is justified without “reference to the content of the regulated speech.” See Renton, 106 S.Ct. at 929; Virginia Pharmacy, 425 U.S. at 771, 96 S.Ct. at 1830. Kev contends that the ordinance violates the first amendment because: (a) it limits the location where dancers may perform; (b) it burdens a dancer’s performance by requiring a license, prohibiting the acceptance of gratuities, restraining erotic dancers from exercising their first amendment rights until they are licensed, and prohibiting erotic dancers, in exercising their first amendment rights, from mingling with patrons; and (c) it places a reporting and inspection burden upon a business based solely on its first amendment activities, a. License Requirements The ordinance requires that all operators of erotic dance studios and all erotic dancers obtain licenses from the County. To obtain a license, a prospective operator must supply the County with various data including:, his or her name, address, phone number, and principal occupation; similar information for all partners in the venture; and descriptions of the proposed establishment, the nature of the proposed business, and the magnitude thereof. A dancer applying for a license must provide the County: his or her name, address, phone number, birth date, “aliases (past and present),” and the business name and address where the dancer intends to dance. It is well established that the government may, under its police power, require licensing of various activities involving conduct protected by the first amendment. See, e.g., American Mini Theatres, 427 U.S. at 62, 96 S.Ct. at 2448; Skuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969); Tyson & Brother— United Theatre Ticket Offices, Inc. v. Ban-ton, 273 U.S. 418, 430, 47 S.Ct. 426, 428, 71 L.Ed. 718 (1927) (“The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power____”); see also Genusa v. City of Peoria, 619 F.2d 1203, 1212-13 (7th Cir. 1980) (court relied on American Mini The-atres in upholding simple license requirement for operators of adult bookstores). A licensing requirement raises first amendment concerns when it inhibits the ability or the inclination to engage in the protected expression. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (requirement that union organizers register with state unconstitutionally inhibits free expression). Further, a licensing requirement must provide “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39. Here, there is no suggestion that the licenses required either to operate, or to perform in, a topless facility would be difficult to obtain or would for some other reason discourage either a prospective operator from exhibiting dancing, or a prospective dancer from performing. None of the information required by the County unreasonably diminishes the inclination to seek a license. Moreover, the County has no discretion in issuing the licenses. Sections 4 and 7 provide that both licenses would be issued automatically by the County within five days. Further, both license requirements serve valid governmental purposes. By monitoring erotic dancers and erotic dance studios, the County can allocate law enforcement resources to ensure compliance with the ordinance. Thus, we conclude that the County may require operators of erotic dance studios and erotic dancers to obtain licenses. However, although the County may require dancers to be licensed, the County has failed to demonstrate a need for section 7d’s five-day delay period between the dancer’s filing of an application and the County’s granting of a license. The ordinance unreasonably prevents a dancer from exercising first amendment rights while an application is pending. Because the County has not justified the five-day delay permitted by the statute with respect to the dancer’s license application, this provision is unconstitutional. Thus, we hold section 7d of the ordinance unconstitutional. b. Business Records Requirement Sections 9b and 9c of the ordinance require operators of erotic dance studios to maintain business records and complete lists of all dancers, for inspection by the County. Although the business records requirements may impose a limited burden on operators of erotic dance studios, the burden is significantly outweighed by the advancement of the County’s interest in preventing the infiltration of organized crime into erotic dance studios. The business records requirements are no more burdensome than the requirements placed on a myriad of other businesses and substantially further the County’s interest. Thus, these regulations do not violate the first amendment. c. Regulations Affecting Dancing The ordinance also regulates the manner in which dancing may be exhibited. The ordinance: (1) prohibits dancers and patrons from fondling and caressing each other; (2) requires that all dancing take place at least ten feet from the patrons and on a stage raised at least two feet from the floor; and (3) prohibits patrons from tipping dancers. The alleged purpose of these requirements is to prevent patrons and dancers from negotiating for narcotics transfers and sexual favors on the premises of an erotic dance studio. Separating dancers from patrons would reduce the opportunity for prostitution and narcotics transactions. Similarly, prohibiting dancers and patrons from engaging in sexual fondling and caressing in an erotic dance studio would probably deter prostitution. Preventing the exchange of money between dancers and patrons would also appear to reduce the likelihood of drug and sex transactions occurring on regulated premises. Further, these regulations do not significantly burden first amendment rights. While the dancer’s erotic message may be slightly less effective from ten feet, the ability to engage in the protected expression is not significantly impaired. Erotic dancers still have reasonable access to their market. See Ellwest Stereo The-atres, 681 F.2d at 1246 (open booths regulation did not affect access to adult films). Similarly, while the tipping prohibition may deny the patron one means of expressing pleasure with the dancer’s performance, sufficient alternative methods of communication exist for the patron to convey the same message. Thus, the regulations are reasonable time, place, and manner restrictions that only slightly burden speech. IV. Conclusion Except for the five-day delay between the dancer’s filing of an application for a license and the mandatory granting of the license by the County, Kitsap County’s regulations of erotic dance studios are reasonable time, place, and manner restrictions, justified without reference to the content of the protected expression. Thus, we REVERSE as to the provision permitting the five day delay in granting the dancer’s license and AFFIRM the other provisions. Each side to bear its own costs. . On March 21, 1985, however, the district court ordered that its judgment be corrected to include its earlier holding that the closing hour provision of the ordinance, section 9f, was unconstitutional. The County does not challenge this holding on appeal. . The first amendment to the United States Constitution provides in relevant part: "Congress shall make no law ... abridging the freedom of speech, or of the press____” This Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). . See also United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968) (holding that a content neutral regulation that imposes an incidental burden on speech is sufficiently justified if: [1] it is within the constitutional power of the government; [2] it furthers an important or substantial governmental interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4] the incidental restriction on first amendment freedoms is no greater than is essential to the furtherance of that interest). In United States v. Albertini, — U.S.-, 105 S.Ct. 2897, 2907, 86 L.Ed.2d 536 (1985), the Supreme Court clarified the fourth O’Brien factor, noting that "an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” . Section 1 of the ordinance states: Purpose. The purpose of this ordinance is to regulate erotic dance studios to the end that the many types of criminal activities frequently engendered by such studios will be curtailed. However it is recognized that such regulation cannot de facto approach prohibition. Otherwise a protected form of expression would vanish. This ordinance represents a balancing of competing interests: reduced criminal activity through the regulation of erotic dance studios versus the protected rights of erotic dancers and their patrons. . Kev argues that requiring the dancer to provide a list of "aliases (past and present)” unjustifiably invades the dancer’s privacy. In Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980), the Seventh Circuit invalidated a similar requirement for operators of adult book stores, noting that the “alias disclosure requirement involves an invasion of privacy not justified by the zoning interest and is not otherwise justified.” Id. at 1216. In the instant case, the alias disclosure requirement for dancers is justified by the County’s substantial interest in preventing prostitution in erotic dance studios. The requirement will enable the County to monitor more effectively dance studios employing known prostitutes. . Kev also asserts that the five-day delay in granting the license to operate an erotic dance studio burdens the operators first amendment rights. We conclude, however, that the County presented a sufficiently compelling justification for this delay. The County contends that topless dancing establishments are likely to require a significant reallocation of law enforcement resources. As the district court concluded, ”[b]ecause such resources in Kitsap County are limited, five days to adjust is reasonable. There is no reason for a new studio operator not to apply for a license one week before he plans to open his facility.” Thus, there seems to be an important justification for the five-day waiting period in licensing dance establishments. . In striking down section 7d, we note that the Kitsap ordinance 'contains a severability clause. Under Washington law, a statute is not to be declared unconstitutional in its entirety unless the remainder of the act is incapable of achieving the legislative purposes. Brockett v. Spokane Arcades, Inc., — U.S.-, 105 S.Ct. 2794, 2803, 86 L.Ed.2d 394 (1985). Because the effectiveness of this ordinance does not depend on the five-day period between the filing of an application for a license and its mandatory granting by the County, we need not strike down the ordinance in its entirety. . Section 9b requires that: No later than March 1 of each year an erotic dance studio licensee shall file a verified report with the Auditor showing the licensee’s gross receipts and amounts paid to dancers for the preceding calendar year. Section 9c provides: An erotic dance studio licensee shall maintain and retain for a period of two (2) years the names, addresses, and ages of all persons employed as dancers by the licensee. . Section 9i provides: All dancing shall occur on a platform intended for that purpose which is raised at least two feet (2') from the level of the floor. Section 9j provides: No dancing shall occur closer than ten feet (10') to any patron. Section 9k provides: No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer. Sections 91 and 9m provide: No patron shall directly pay or give any gratuity to any dancer [and n]o dancer shall solicit any pay or gratuity from any patron." . The County presented testimony that close contact between dancers and patrons facilitated these transactions. . As we construe section 9k to prohibit only sexual fondling and caressing occurring in an erotic dance studio, we reject Kev’s argument that the ordinance is overbroad. Our holding today does not address the dancers' and the patrons' right of privacy to associate freely with each other under other circumstances. We hold simply that because of the County’s legitimate and substantial interest in preventing the demonstrated likelihood of prostitution occurring in erotic dance studios, the County may prevent dancers and patrons from sexually touching each other while the dancers are acting in the scope of their employment. . In International Society for Krishna Consciousness, 452 U.S. at 650-51, 101 S.Ct. at 2565-66, the Supreme Court noted that "consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Given the characteristics of erotic dance studios, the ordinance does not impair the dancer’s ability to display her art.

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

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

WHITE, Warden, v. STEIGLEDER. Circuit Court of Appeals, Tenth. Circuit. January 24, 1930. No. 116 October Term, 1929. Alton. H. Skinner, Asst. TJ. S. Atty., of Topeka, Kan. (Al F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellant. Charles A. Coakley, of Tulsa, Okl. (Walter I. Biddle, of Leavenworth, Kan., C. B. Stuart, of Oklahoma City, Okl., and E. J. Doemer, of Tulsa, Okl., on the brief), for appellee. Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges. , COTTERAL, Circuit Judge. This appeal is brought by appellant as warden of the penitentiary at Leavenworth, Kan., to obtain a reversal of an order of the District Court for Kansas, granting to the appellee a writ of habeas corpus for his discharge, subject to terms of probation. The appellee was convicted on eight counts of an indictment for violations of the National Banking Act in the Northern District of Oklahoma. He was there sentenced to serve a term of one year and a day and pay a fine of $2,500 on the first count. He was further sentenced to serve a term of five years and pay a fine of $100 on each of the other counts, the sentences to run concurrently and begin at the expiration of sentence on the first count. The convictions were affirmed on appeal. Steigleder v. United States (C. C. A.) 25 F.(2d) 959. Thereafter, at a hearing of defendant’s application for probation, it was ordered that a-commitment be issued for service of the sentence by the defendant on the first count of the indictment, and probation was granted for his release on the other counts, until further order and during good behavior. His petition for the writ of habeas corpus which he filed in the District Court for Kansas recites he had served the sentence required on the first count of the indictment and an additional 30 days on account of the fine therein imposed, and is entitled to a dischax’ge by virtue of the probation order applicable to the other counts. The warden moved to dismiss the cause and deny the discharge for want of jurisdiction in the Oklahoma District Court to suspend execution of any part of the original sentence. The case was heard, and, the warden electing to stand on his motion, appellee was discharged, subject to the probation terms. It is conceded the appellee had fully served the sentence and was exonerated from the fine imposed under the first count of the indictment. The question involved is whether the trial court had the power, after the sentence term and affirmance of the convictions, to grant the probation, effective in the future as to the last seven counts, after completion of the sentence on the first count. We conceive of no sound reason why this may not be done. The Probation Act (43 Stat. 1259 [18 USCA §§ 724-727]) confers the power on the Federal Courts to suspend a sentence or grant probation after conviction, or a plea of guilty or nolo contendere. The act was construed by the Supreme Court as meaning that the power might be exercised before execution of the sentence begins. United States v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309. This construction was rested on the ground that probation was not intended to coexist with executive clemency under the pardon and parole acts. We are of opinion it is decisive of the controversy before us, as it limits the exercise of the power only in eases where service of a sentence has begun. The intervention of an appeal does not affect the power of the district courts to grant probation. The act does not purport to so curtail it. When the convictions of appellee were upheld on appeal, he still clearly had the status of an offender whose sentence had not begun. Nor is the objection tenable that probation is not grantable after the sentence term, as the power is broadly authorized after conviction or plea, and its exercise neither vacates nor modifies the judgments of conviction. Nix v. James (C. C. A.) 7 F.(2d) 590; Kriebel v. United States (C. C. A.) 10 F.(2d) 762; Ackerson v. United States (C. C. A.) 15 F.(2d) 268; United States v. Young (D. C.) 17 F.(2d) 129; United States v. Davis (D. C.) 19 F.(2d) 536; United States v. Gargano (D. C.) 25 F.(2d) 723. It is urged that appellee is not entitled to the benefit of probation, because he was imprisoned some four months before he was released by a supersedeas bond on his appeal. We doubt if the fact in such a ease would affect a right to probation, the convictions not having reached finality. But the fact does not appear in the record. And assuming there was a partial service of the sentence, it was necessarily for the separate offense charged in count 1 of the indictment, and not for the different offenses charged in the remaining counts wherein sentence was deferred until the expiration of sentence on the first count. Clearly, sentence had not begun under the counts affected by the probation order. The order of the District Court was right, and it is accordingly 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?

PRUDENTIAL-BACHE SECURITIES, INC., Plaintiff-Appellee, v. James M. STRICKLIN, Defendant-Appellant. No. 89-2042. United States Court of Appeals, Fourth Circuit. Argued Oct. 3, 1989. Decided Dec. 6, 1989. L. Holmes Eleazer, Jr. (Fenton T. Erwin, Jr., Weinstein & Sturges, P.A., Charlotte, N.C., on brief), for defendant-appellant. Richard Byron Whisnant (John R. Wes-ter, Robinson, Bradshaw & Hinson, P.A., Charlotte, N.C., on brief) for plaintiff-appel-lee. Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and ERVIN, Chief Circuit Judge, and HILTON, United States District Judge, sitting by designation. POWELL, Associate Justice: The question presented is whether appel-lee wrongfully liquidated appellant’s trading positions in “naked put options” on October 16, 1987. We find that appellee’s action was authorized by contract and does not provide a legal defense to a valid debt owed by appellant to appellee. Accordingly, we affirm the district court’s grant of appellee’s motion for summary judgment. I. Appellant James M. Stricklin was a broker in the Charlotte office of the brokerage firm J.C. Bradford & Company. On March 5,1987, he signed an agreement with appel-lee Prudential-Bache Securities, Inc. opening a personal trading account. Appellant used his Prudential-Bache account to sell (or "write”) put option contracts based on the Standard & Poors Index. For a fixed premium, one of appellant’s customers could purchase the option to sell to appellant, within some period of time, a certain number of “shares” in the Standard & Poors Index for a fixed price. If the index rose above the fixed price during the period of the option, the customer would not exercise the option since he could sell the shares for a higher price on the open market. The option would then expire, and appellant would keep the premium. If the index declined below the fixed price, the customer would exercise the option, and appellant would have to buy the shares at a price higher than the price for which he could then sell those shares on the open market. The greater the decline in the index, the greater appellant’s losses. If appellant also owned put option contracts, or maintained a short position, on the Standard & Poors Index, his positions would be “covered.” If a customer exercised an option, appellant could purchase the customer’s shares and then immediately sell those shares at a fixed price to a third party. Appellant did not hold such positions. The put option contracts he sold were “naked” (or “uncovered”). As such, he needed either to deposit in his Prudential-Bache account an amount equal to the aggregate exercise prices of all of the put option contracts he wrote or to maintain his account “on margin.” Appellant chose the latter. In essence, he deposited with appel-lee a portion of the money needed to cover all of the options he sold and borrowed the rest from appellee. Once this relationship is established, the holder of the option will look to the brokerage house, not to the broker operating the account on margin, for performance in the event of exercise. See G. Munn, Encyclopedia of Banking and Finance 738 (8th ed. 1983). If appellant’s customers exercise their options, appellee will purchase the shares for the price stated in the put option and then post a loss to appellant’s account. The amount of the loss is the difference between the amount paid for the shares and the value of those shares on the open market. If the losses exceed the original deposit, appellee can recover this amount from appellant. As the Standard & Poors Index drops, the put writer’s losses increase, thus increasing his liability to appellee. Since the index can drop hypothetically all the way to zero, this liability can increase almost infinitely. Since brokers often cannot pay back such enormous losses, securities firms try to limit their exposure by using two methods. First, the firm can issue a margin call. This means that the put writer must deposit more of his own funds into the account to continue activity. Second, the firm can liquidate the put writer’s position by buying back all of the put options the writer sold. This is generally done at a substantial loss, but it eliminates the possibility of greater losses if the index drops even farther. II. Friday, October 16, 1987, was the first of two consecutive trading days in which our nation’s securities exchanges took historic plunges. At 9:30 a.m., losses in appellant’s account exceeded $100,000.00. See Joint Appendix (“J.A.”) at 48-49, 78. To protect itself from further losses, appellee — by telephone — issued a margin call for appellant’s account. Appellant stated that he did not have enough cash immediately available to meet the call, but could do so by Monday. See id. at 77. The stock market continued to plummet, creating ever-escalating losses on appellant’s account. At approximately 10:45 a.m., appel-lee notified appellant that it was closing out his positions by buying back all of the put options appellant had written. The total loss on appellant’s account was $134,-713.91. Appellee filed suit to recover the amount due on the account. Appellant defended and counterclaimed, asserting that appellee had wrongfully terminated his positions by failing to give him the customary 24 hours to meet his margin calls. The district court granted appellee’s motion for summary judgment. The court found that appellee’s liquidation of the account was authorized by the contract appellant signed to establish his margin account. The court also held that, given the volatile state of the market and the fact that appellant’s negative account balance meant essentially that he was trading with appellee’s money, ap-pellee’s actions were prudent. III. The Client Agreement signed by appellant states in pertinent part: Whenever in your [appellee’s] discretion you deem it desirable for your protection (and without the necessity of a margin call) ... you may, without prior demand, tender, and without any notice of the time or place of sale, all of which are expressly waived, ... buy any securities, or commodities or contracts relating thereto of which my account or accounts may be short, in order to close out in whole or in part any commitment in my behalf ... and neither any demands, calls, tenders or notices which you may make or give in any one or more instances nor any prior course of conduct or dealings between us shall invalidate the aforesaid waivers on my part. Id. at 6, 115. Appellant is an experienced, knowledgeable, sophisticated trader. See Brief of Appellant at 2. He has not alleged that he did not understand the provisions of the Client Agreement. In exchange for the privilege of trading on margin (i.e., with funds borrowed from Prudential-Bache), appellant gave appellee the right to protect these loaned funds by closing out his trading positions “whenever” in appel-lee’s discretion it deemed it desirable to do so. Appellant argues that the agreement must be construed in light of established courses of conduct and the reasonable expectations of the parties. Both appellant and the Prudential-Bache broker handling his account testified in depositions that clients generally were given 24 hours to meet margin calls before their positions were liquidated. See J.A. at 77, 80-81. Appellant was given slightly over an hour. The Client Agreement, however, does not contain a 24-hour notice provision. Rather, the agreement specifically states that no “prior course of conduct or dealings” shall invalidate appellant’s waiver of his right to demand any notice of liquidation. Paragraph 5 of the Client Agreement expressly authorized appellee’s decision to liquidate appellant’s account without notice. Such provisions are reasonable in the volatile and risky put options market. A brokerage house should not have to risk a nearly unlimited amount of its own funds while waiting 24 hours to see if a client can meet a margin call. Indeed, if Prudential-Bache had waited until the end of the trading day on Friday, October 16, 1987, to close out appellant’s positions, the account’s losses would have exceeded $200,-000.00. See id. at 50. For much the same reason, the Eighth Circuit Court of Appeals found a similar provision enforceable in the commodities market context. See Geldermann & Co., Inc. v. Lane Processing, Inc., 527 F.2d 571 (8th Cir.1975). Furthermore, even without reliance on paragraph 5 of the Client Agreement, appellee would be entitled to judgment as matter of law. In general, an individual who opens a brokerage account is responsible to the brokerage house for losses on that account. Appellant seeks to escape that obligation in this case by arguing that appellee acted wrongfully. In liquidating appellant’s account, appellee did two things. First, it bought back all of the put option contracts appellant had written. Second, it prevented appellant from further buying or selling on his account until he provided additional funds. Appellant has no legal basis to complain about either of these actions. By buying back appellant’s put option contracts at 10:45 a.m. on Friday rather than waiting until Monday, appellee saved appellant over $65,000.00. See J.A. at 50. Appellant cannot avoid a valid debt by arguing that his creditor wrongfully saved him money. He suffered no injury due to the first aspect of appellee’s liquidation of his account, and appellee’s decision to close out appellant’s positions sooner rather than later, given the market conditions, was certainly prudent and reasonable. As for the second aspect of appellee’s conduct, on Friday, October 16,1987, appellant owed appellee over $100,000.00. As noted above, he was trading exclusively with appellee’s money. His argument is essentially that, if appellee had “loaned” him more money by allowing him to trade without investing any more of his own funds, he could have purchased put option contracts, at a cost of $51,000.00, and eliminated his debt. See J.A. at 90. This sounds suspiciously like the gambler who is $100,000.00 in debt to the casino arguing that he should not be liable for the debt because if it had just let him borrow another $50,000.00 he would have won the very next hand of poker. As a matter of law, once appellant was in debt to appellee, ap-pellee had no duty, contractual or otherwise, to lend appellant even more money. IV. Appellee’s liquidation of appellant’s margin account was authorized by contract. Even in the absence of such contractual authorization, appellee would be entitled to summary judgment because appellant’s defenses are untenable. The judgment of the district court is therefore AFFIRMED. . The maximum loss is limited only by the exercise price of the put option sold. If a broker wrote a put option contract entitling the option holder to sell to the broker 1,000 shares of the index at $320.00 per share and the index dropped to zero, the broker’s total loss would be $320,000.00. If the broker wrote ten such contracts, his loss would be $3.2 million. . Although quite risky, the commodities market is actually less risky than the put options market because the Chicago Board of Trade closes all trading when a commodity price has increased or decreased by some previously determined daily maximum. See Geldermann, 527 F.2d at 576-77. No such limits apply on the New York Stock Exchange. Thus, the need for brokerage houses to protect themselves from adverse market conditions is even stronger in this case than in Geldermann.

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

Norman J. DESCHENES, Appellant, v. UNITED STATES of America, Appellee. No. 5054. United States Court of Appeals Tenth Circuit. July 9, 1955. A. D. Weiskirch, Wichita, Kan. (A. Lewis Oswald, Hutchinson, Kan., on the brief), for appellant. William C. Farmer, Wichita, Kan. (Milton P. Beach, Oskaloosa, Kan., Selby S. Soward, Topeka, Kan., Chas. W. Ward, Peabody, Kan., and Royee D. Sickler, Topeka, Kan., on the brief), for appellee. Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and WALLACE, District Judge. MURRAH, Circuit Judge. The appellant, Norman J. Deschenes, and his co-defendants Lowell F. Reinhardt and LeRoy O. Kretzer, were prosecuted upon an indictment consisting of eight counts, each charging the use of the mails for the purpose of effecting a scheme or artifice to defraud in violation of 18 U.S.C. § 1341. Reinhardt and Kretzer pleaded guilty, were placed on probation and testified against appellant at his trial. Upon a jury verdict of guilty, the appellant was sentenced to three years imprisonment on each of the eight counts, the sentences to run concurrently. Appellant does not deny his role in the “scheme” alleged in the indictment, but assigns numerous errors in the trial of his case, based on alleged erroneous admission of evidence, prejudicial conduct of the trial court and of the United States Attorney, and erroneous instructions of the court to the jury. The alleged scheme to defraud as developed by the evidence consisted of a “check kiting” scheme. Appellant, a public accountant, was retained, among other clients, by the Salt City Electric Company of Hutchinson, Kansas. Co-defendant Kretzer was a partner in the Company. In the early part of 1952, the Company was in a precarious financial condition with insufficient funds to meet its payroll and other expenses. As a result of a discussion concerning the matter between appellant and Kretzer, appellant contacted co-defendant Reinhardt, a relative by marriage, who lived at Bison, Kansas. Reinhardt agreed to help save the Company from bankruptcy and the “kiting” plan was devised. Knowing that both Reinhardt and the Company had insufficient funds in their respective accounts, Reinhardt and the appellant agreed that Reinhardt would furnish the Company his personal checks in exchange for checks of like amounts from the Company. The Company would deposit the Reinhardt checks from time to time in the Central State Bank of Hutchinson, and for the period of time required for the Reinhardt checks to clear through the normal banking channels through the United States mails and be delivered to the Bison State Bank to be charged against Reinhardt’s account, the Company would receive credit from the Hutchinson Bank. When the Reinhardt checks arrived at the Bison Bank, he would immediately deposit Company checks of like amount to cover them. This check exchange continued from March 1952 until about September 1952, when a State Bank Examiner at the Bison Bank became suspicious and discovered the scheme. During the life of the scheme, the face amount of the kited checks totalled $713,350, and the largest overdraft in the Company and Reinhardt accounts was $14,155.83. Appellant first contends that no scheme to defraud is shown since it was intended at all times to ultimately pay the kited checks; and that in any event, the mails were not used in furtherance of such scheme since any alleged crime was committed and completed immediately upon depositing the checks in the respective banks before they were placed in the mail for clearance and collection. United States v. Lowe, 7 Cir., 115 F.2d 596, 598, is a complete and conclusive answer to this contention. Under indistinguishable facts, the court held that the plan was to obtain checking account credit from the bank, and that such credit “is a thing of value.” And, the court went on to say, “The defendant included in his scheme the use of a banking practice which necessarily required the forwarding of the deposited check for collection, a practice which would enable the defendant to utilize, at least temporarily, the credit given him by the Chase-burg Bank; and the utilization of this practice was as much a part of the scheme to obtain credit as the drawing and presenting of the worthless check.” Clearly, the appellant here knew and intended that the mails would be used in transferring the cheeks from one bank to the other in the regular course of business. In fact, the time consumed by such transfer was the very essence of the scheme which made it possible, and this practice constitutes a violation of the mail fraud statute. Federman v. United States, 7 Cir., 36 F.2d 441; United States v. Feldman, 2 Cir., 136 F.2d 394. At the beginning of the trial, the court, when examining the jury, asked if any of them were then or had been peace officers, to which juror Miller replied that he had been a guard or employee at some penal institution. No objection was made to this juror and he subsequently became foreman of the jury. After the trial, appellant learned for the first time that Miller was a member of the Wichita, Kansas Crime Commission, and contends that since the fact was admittedly known to the trial court on voir dire, the juror should have been dismissed as a “peace officer”. When this matter was presented in an argument on a motion for new trial, the trial court was of the view that being a member of the Wichita Crime Commission did not make Miller a peace officer. In his brief, appellant describes the Wichita Crime Commission as a group of voluntary citizens organized for the purpose of detecting and suppressing crime, but we can find nothing in the record to show the nature or functions of the Commission or the members thereof. Certainly there is nothing from which we can conclude that its members were peace officers. The trial court did not so consider the juror and we will not infer it from the statements in the brief. It cannot be said that membership in the Wichita Crime Commission was “so obvious a disqualification or so inherently prejudicial as a matter of law * * * as to require the court * * * to set the verdict aside and grant a new trial.” Frazier v. United States, 335 U.S. 497, 513, 69 S.Ct. 201, 210, 93 L.Ed. 187; See, also, Cavness v. United States, 9 Cir., 187 F.2d 719. On several occasions when appellant was testifying, the court admonished him to “eliminate those side remarks. Now I mean what I am telling you. * * * Well, we are going to conduct this case in a dignified and orderly manner. * * * You answer counsel’s question instead of asking counsel questions yourself. * * * Now, that is not an answer, you are arguing with counsel again, the very thing that I have told you that I won’t permit * * Appellant contends that these remarks made as he attempted to testify in his own behalf confused and intimidated him to his prejudice before the jury. It was of course within the province of the trial court as the governor of the trial to admonish witnesses to answer questions fairly propounded, and not to engage in argumentative discourses. Harris v. United States, 5 Cir., 8 F.2d 841; Brink v. United States, 6 Cir., 60 F.2d 231. A review of the testimony shows that the admonitions of the court were clearly justified in the interest of an orderly trial. Appellant also complains of the conduct of the United States Attorney in the examination and interruption of character witnesses for the appellant. The United States Attorney asked preliminary questions of these witnesses as to whether they had talked to anyone in the community concerning appellant’s reputation, and when they answered “no”, the court ruled that they were not qualified to testify as to his reputation. It is suggested with good reason that one’s reputation is never the subject of conversation unless it is bad, for one having a good reputation seldom provokes outward comment. On that hypothesis, silence speaks in his favor and the fact that a character witness has never heard ill said of the defendant is evidence within itself of a good reputation. On this theory the witness was permitted to say that he had never heard the defendant’s character for truth and veracity questioned in the community. The court, however, sustained the government’s objections to the stock question of whether the defendant’s reputation in the community for truth and veracity and law obedience was good or bad on the premise that since he had never heard it discussed, he was incompetent to testify concerning it. Unfortunately, “one’s reputation is what others say about him, not necessarily what they know of him.” Interstate Securities Co. v. United States, 10 Cir., 151 F.2d 224, 226, and cases cited. And, a character witness is incompetent to testify concerning one’s general reputation based solely upon his own personal knowledge of the person. State v. Todd, 28 N.M. 518, 214 P. 899; State v. Williams, 38 Wyo. 340, 266 P. 1056; Berneker v. State, 40 Neb. 810, 59 N.W. 372; 20 Am. Jur., Evidence, § 326, p. 307. The trial court correctly permitted the United States Attorney to question the witnesses for purposes of qualification and properly ruled on the admissibility of the proffered evidence. When appellant and his two co-defendants were questioned as to whether they intended to cheat and defraud the banks and to use the mails in the operation of the check kiting scheme, the trial court rejected such testimony, stating, “that is a question for the jury.” Later, after a discussion with counsel for appellant, the witnesses were recalled and permitted to testify in that regard. Appellant and his co-defendants testified that they had no intention to cheat the banks; that the original plan was to run only one check through hoping that funds would be available to cover it; that they didn’t contemplate that the banks would lose anything or that the mails would be used in furtherance of the scheme. Appellant claims that by permitting the witnesses to be recalled, the trial court did not cure the former erroneous ruling. In that respect it is contended that since the jury had already gotten the court’s.'version of the worth of the testimony, it was prejudicially harmful; that the force and effect of the evidence, when finally elicited, was practically nil, and to a great extent destroyed the whole defense of the lawsuit. We cannot agree that the exclusion of competent testimony leaves in the minds of the jury such a lingering doubt concerning its worth as to impair its probative value when subsequently admitted in the course of the trial under the corrected ruling of the court. To indulge in this presumption would deny the indisputable power of the court to correct its ruling on admissibility of evidence. During the course of the trial, an agent of the Federal Bureau of Investigation, by the use of a graphic schedule, testified to the daily overdraft positions of both banks as a result of the kiting scheme. Relying on Elder v. United States, 5 Cir., 213 F.2d 876, 881, appellant contends that admission in evidence of this chart was reversible error. In that case, the court criticized the admission of a chart prepared by the Federal Bureau of Investigation showing in brief and graphic form. information on the interstate transportation of stolen automobiles, on the theory that the chart represented only “isolated pieces of evidence in such brief and graphic form as to purport to forge the links in the chain of evidence so closely and so convincingly as to completely destroy defendant’s claim that he was the innocent tool of a professional and accomplished criminal.” The court held, however, that in view of instructions to the jury, the admission of the chart was not reversible error. But the schedule under consideration here does not purport to represent a chain of events, it merely reduced in concise form a summary of the checks and other exhibits, all admitted in evidence, and showing the amounts of the overdrafts at the banks during the operation of the scheme. There was no error in admitting this schedule. Graves v. United States, 10 Cir., 191 F.2d 579; Carlson v. United States, 10 Cir., 187 F.2d 366. Moreover, no question was raised as to its admissibility at the trial of the case or on the motion for new trial, and it may not be raised here on appeal for the first time. The jury was instructed: “If, therefore, you believe beyond a reasonable doubt that this defendant, when he put in circulation or caused to be put in circulation, the checks in evidence in this case, knew that the account of the Salt City Electric Company in the Central State Bank of Hutchinson, Kansas, was insufficient to honor said checks on presentation, and he further knew that in the ordinary course of events there would not be sufficient funds in the account of Salt City Electric Company to honor said checks when they were presented other than by the deposit in rapid succession of checks of L. F. Reinhardt, drawn on the Bison State Bank, Bison, Kansas, which he knew or should have known were insufficient fund checks themselves, in an endless chain, then you will be justified in finding that the necessary intent existed.” This charge is challenged, first, because it failed to point out the essential element of intent to defraud, but elsewhere in the court’s instructions, the jury was told: “The crime with which this defendant is charged consists of two elements. First, devising or intending to devise any scheme or artifice to defraud, and second, using, or causing to be used, the mails in the execution or attempted execution thereof.” And, in another place, the jury was told: “Intent is something that in a way exists in a man’s mind and cannot always be proved by exact and demonstrable evidence. Therefore one’s intent has to be judged, to a certain extent, at least, by his intelligence as shown by the evidence; by his experience in life as shown by the evidence; and generally by judging him as reasonable, prudent men, experienced in the every day affairs of life, judge each other, and it is the law that a person intends the usual and probable consequences of his acts.” It cannot be said that the jury would go against the clear meaning of these words to find appellant guilty if they did not believe beyond a reasonable doubt that he intended to cheat and defraud the banks as charged. United States v. Broxmeyer, 2 Cir., 192 F.2d 230. Appellant also contends that the court’s use of the descriptive words “deposit in rapid succession”, “insufficient fund checks” and “in an endless chain” was highly prejudicial because it assumed facts which were within the province of the jury to determine. There is no basis for this contention. These terms were used freely and often in the course of the trial to describe the transactions and they do not become preju-dicially harmful when the court chooses to use them in the same vernacular in its characterization of the charge under the adduced facts. Considered as a whole, the court’s instructions were proper and correctly apprised the jury of all elements of the offense. The final question is whether conferences of the court and counsel on questions of law at the bench or in chambers, out of hearing of the appellant and the jury, denied appellant his constitutional right to be present at every stage of the trial. In the first place, neither appellant nor his counsel made a specific request for appellant to be present at these conferences, and no complaint or objection was lodged to the practice. He therefore cannot complain of any possible prejudice. Steiner v. United States, 5 Cir., 134 F.2d 931, cer-tiorari denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721. Moreover, it is settled law that the exclusion of a defendant and a jury from the courtroom during argument on a question of law does not violate defendant’s constitutional right to be present at every step of the proceedings. United States v. Johnson, 3 Cir., 129 F.2d 954, 144 A.L.R. 182, affirmed on other grounds, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704. 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. 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.

THE HAVEN BELLE. THE SEMINOLE. HUDGINS v. GATEWOOD et al. No. 4032. Circuit Court of Appeals, Fourth Circuit. Oct. 6, 1936. R. Arthur Jett and D. Arthur Kelsey, both of Norfolk, Va. (Kelsey & Jett, of Norfolk, Va., on the brief), for appellant. Leon T. Seawell, of Norfolk, Va., for appellees. Before PARKER and NORTHCOTT, Circuit Judges, and CHES NUT, District Judge. PARKER, Circuit Judge. This is an appeal by the owner of the motor vessel Haven Belle, which on October 27, 1934, was in collision with the motor vessel Seminole in the James River off the coal piers at Newport News, Va. Libels were filed by the owners of each of the vessels against the other, and these were duly consolidated in the court below. From a decree holding the Haven Belle solely in fault and awarding damages of $2,800 to the owners of the Seminole, this appeal is prosecuted. The Plaven Belle is a tanker 118.1 feet long, 23.2 feet beam and 7.8 feet deep, of 184 tons burden. At the time of the collision she was partly loaded with 50,000 gallons of gasoline and was proceeding down the James River bound for Hampton, Va. The Seminole is a freighter 105 feet long, 27.1 feet beam and 8 feet deep, of 292 tons burden. She was proceeding up the river bound for Richmond. The collision occurred shortly after 8 o’clock p. m. The night was dark and the wind was blowing a gale of about 40 miles an hour, from the northwest. The tide had just changed to flood, and the water was rough. The speed of the Haven Belle was approximately nine miles per hour and that of the Seminole seven. Both vessels had proper lights burning and lookouts properly stationed. The contention of the Plaven Belle is that shortly after she passed through the James River bridge and was approaching the C. &*0. Piers at Newport News she saw the steamer Delaware River back out into the channel from Pier 6 or 8 and proceed down the channel about half a mile ahead of her; that she followed in the path of the Delaware River about in the center of the channel and with the coal piers about 300 feet to her port, shifting her course to south southeast as she passed Pier 8; that, about a quarter or a half a mile south of Pier 9, she observed the lights of a vessel, which later proved to be the Seminole, about 300 or 350 yards distant and about four or five points on her starboard bow; that she saw all of the lights' of the Seminole, but that the green light was showing stronger than the red; that she considered it impossible to negotiate a port to port passage and immediately blew two blasts of her whistle and swung a little to port; that, receiving no, reply from the Seminole, and observing that the lights of that vessel continued to bear on her, after proceeding about ISO yards she blew attention signals; and that receiving no .-eply to these, she proceeded at full speed in an attempt to clear the Seminole, but was struck about 8 feet from her stern by the stem of that vessel. The contention of the Seminole is that, having left the Army Base at Norfolk about 7:30 p. m., she was approaching Newport News when she saw the Delaware River back out of the coal pier and proceed down stream; that she received a signal from the Delaware River for a starboard to starboard passage which she accepted, veering slightly to port for that purpose; that shortly thereafter she saw the green light and white stern light of the Haven. Belle about 500 yards distant and two points on her port bow; that she heard a signal of one blast of the whistle from the Haven Belle which she answered with one blast; that she thereupon continued on her course until, when about 100 yards distant from the Haven Belle, she observed that the latter vessel was not altering her course; that she then blew three blasts of her whistle and reversed her engines; and that she had almost stopped when the collision occurred, her stem being twisted about 90 degrees to starboard as a result of this fact and of the speed of the Haven-Belle at the time of the collision; The testimony of the masters and crews of both vessels involved in the collision was taken orally in the court below, the only deposition offered being that of the master of' the Delaware River; and the learned trial judge, who is thoroughly familiar with the, waters in question, thus had the advantage of seeing and hearing the witnesses whose credibility and seamanship were in issue, before him. His findings are therefore entitled to great weight and should not be .disturbed unless-clearly wrong. Lewis v. Jones (The Amoy) (C.C.A.4th) 27 F.(2d) 72. He found that the Haven Belle had changed her course for the purpose of proceeding to her destination at Hampton and was crossing the bow of the Seminole with that vessel on her starboard quarter and was in fault in failing to keep out of her way. He absolved the Seminole of fault on the ground that, as a result of weather conditions, she misunderstood the signal given her as being one blast, calling for a port to port passage, and that, when she understood that the Haven Belle was crossing her bow, she did all that she could to avoid the collision. A careful study of the record in the light of the arguments and briefs of counsel convinces us that the conclusion of the District Judge as to the cause of the collision is correct. Unquestionably the vessels were approaching each other on crossing courses. The master of the Haven Belle so testifies (R.30). He has filed with the court a -diagram showing the relative courses of the vessels; and from this it appears that their courses crossed each other at an angle of approximately 53 degrees. A diagram filed by. the master of the Seminole shows the same angle of crossing. It is . clear, therefore, that one of the vessels must have been going across the channel at a decided angle if the other was proceeding with the channel; and there are two things that show that this must have been the Haven Belle: In the first place, she is placed by the master of the Delaware River as a half á mile distant from Pier 6, bearing approximately west by north quarter north, when the Delaware River backed out of that pier. (See Anderson Ex. 2). This would place her well out in the channel, a quarter of a mile or more from the coa 1 piers on the eastern side. The-evidence establishes pretty ¿onclusively that she Was only three or four hundred feet from the piers' at the time of the collision (R.100) ; and this shows that she must in the meantime have come over to the eastern side of the channel. In the second place, the Delaware River, proceeding down the eastern side of the channel, 200 or 300 feet off the coal piers (R.25, 99), had passed the Seminole starboard to starboard at a distance of only 50 to 100 yards. (The captain of the Delaware River fixed the distance at 200 feet.) There would be no occasion, therefore, for that vessel to be going across the channel at such an angle. These circumstances, together with those adverted to by the judge below, i. e., the destinations of the two vessels, the courses they would reasonably take, and the fact that the Haven Belle at all times showed her green and not her red light to the Seminole, indicate pretty clearly that it was the Haven Belle and not the Seminole which was crossing the channel. But the crossing courses being established, as they unquestionably are, it would make no difference if the fact were, as contended by counsel for the Haven Belle, that the Seminole were the one whose course was across the channel. The Haven Belle did not know that the Seminole was bound for Richmond and that her course was up the river. All that she 'knew was that a vessel was approaching four or five points off her starboard bow and only 350 to 500 yards distant. Captain Hudgins of the Haven Belle said that the Seminole was headed for Pier 9 when he saw her (R.36); and, for all that he knew, she might have been crossing the channel to go to that pier. The situation was one of danger, for the speed which the vessels were making would bring them together in approximately a minute of time. As the Haven Belle had the Seminole on her starboard bow, her duty to change her course and speed to avoid the collision was clear. Inland Rules, art. 19. And there is little question that the proper maneuver under the circumstances was to steer her course to starboard and pass under the stern of the Seminole. Instead of doing this, she veered to port in an attempt “to get away from” the Seminole, and we think it clear that she was in fault in thus attempting to cross the course of that vessel. Knight’s Modern Seamanship (8th Ed.) pp. -147-452. The testimony on the part of the Haven Belle leaves considerable doubt as to whether she was within a few hundred feet of the coal piers or in mid-channel when she sighted the Seminole. As the vessels were on crossing courses and the Haven Belle had the burden of keeping out of the way of the Seminole, we do not think that this location is of controlling importance; but, if the Haven Belle was in mid-channel proceeding down stream as she contends, there would have been no difficulty in her negotiating a port to port passage with the Seminole as required by Inland Rule, article 18, for the Seminole could not have been far from midstream, if the uncontradicted testimony as to the distance at which she passed the Delaware River is to be believed. If, however, it be assumed that the Haven Belle was near the coal piers, she was in fault in being on the wrong side of the channel. Whatever view be taken of the case, it is perfectly clear, not only that the collision could not have occurred, but also that not even a dangerous situation could have been created, if the Haven Belle had stayed on her proper side of the channel and obeyed the passing rules. Had she done this, no danger from the crossing of the courses of the two vessels could have arisen. And we agree with the judge below that fault is not to be imputed to the Seminole. The rule is well settled that “the burden rests upon a vessel guilty of a major fault in navigation,” as was the Haven Belle here, “to establish by clear and convincing evidence that faults in the management of another vessel in collision contributed to the result, and that doubts regarding the management of the other vessel should be resolved in her favor.” Williams v. Norfolk, Baltimore & Carolina Line (C.C.A.4th) 85 F.(2d) 935 (this day decided) ; The Victory (The Plymothian), 168 U.S. 410, 422, 423, 18 S.Ct. 149, 42 L. Ed. 519. In view of the weather conditions prevailing we think that no fault is to be imputed to the Seminole in misunderstanding the signal given; and her master had no other reason to think that the Haven Belle would attempt to cross her bow. As soon as he discovered that this dangerous maneuver was being attempted, He reversed his engines, starboarded his helm, and did everything possible to avert the collision. “A steamer, when the privileged vessel, in crossing, is not required to reverse to avoid a collision until it becomes evident that the other vessel will not or cannot keep out of the way.” The Mary Powell (C.C.A.2d) 92 F. 408. Alleged faults of the Seminole in not having proper lights or a proper lookout do not merit discussion. The captain of the Delaware River testifies that he had no difficulty in seeing her lights a mile and a half away. The testimony on the part of the Seminole shows that a proper lookout was kept; and the only evidence from which a contrary conclusion could be drawn is that the passing signal of the Haven Belle was misunderstood. The court below finds, however, that this misunderstanding was due to weather conditions prevailing instead of to inattention, and we see no reason to disturb that finding. For the reasons stated, the decree appealed from will be affirmed. Affirmed.

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

KEV, INC., Plaintiff-Appellant, v. KITSAP COUNTY and the Honorable Ray Aardal and John Horsley, County Commissioners of Kitsap, etc., et al., Defendants-Appellees. No. 84-4088. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 8, 1985. Decided July 7, 1986. Jack R. Burns, Burns & Meyer, Bellevue, Wash., for plaintiff-appellant. Ronald A. Franz, Deputy Pros. Atty., Port Orchard, Wash., for defendants-appel-lees. Before PREGERSON and WIGGINS, Circuit Judges, and SCHNACKE, District Judge. The Honorable Robert H. Schnacke, United States District Judge, Northern District of California, sitting by designation. PREGERSON, Circuit Judge. Kev, Inc. challenges the constitutionality of a Kitsap County ordinance regulating non-alcoholic topless dancing establishments and appeals from the district court’s order denying its motion for injunctive and declaratory relief. We affirm in part and reverse in part. BACKGROUND Appellant, Kev, Inc., (“Kev”), a Washington corporation, leased premises in Kit-sap County (“the County”) to operate a live entertainment facility called “Fantasies,” which was to feature topless dancing and sell non-alcoholic beverages to adults for consumption on the premises. In early 1983, Kev secured the appropriate business licenses and began remodeling the premises to commence business operations. On January 24, 1983, the Kitsap County Board of Commissioners proposed Ordinance No. 92, entitled “An Ordinance Regarding Erotic Dance Studios,” to regulate adult entertainment facilities. The stated purpose of the proposed ordinance was to regulate topless dancing to minimize perceived side effects, such as illegal drug dealing, fights, and prostitution, which would purportedly threaten the community’s well-being. On February 7, 1983, the County held a public hearing on the proposed ordinance. Law enforcement officials from Kitsap and surrounding counties testified that “soft drink, topless dancing” establishments in adjacent counties were the sites of crime problems such as prostitution and drug dealing. The County Board of Commissioners passed the proposed ordinance that same day. On February 14, 1983, Kev filed suit, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Western District of Washington, seeking a preliminary and permanent injunction and a declaratory judgment finding Ordinance No. 92 unconstitutional. Three weeks later, the County Board of Commissioners passed Ordinance No. 92-A as an amendment to Ordinance No. 92. Kev then filed an amended complaint challenging, on constitutional grounds, the provisions of Ordinance No. 92 as amended by Ordinance No. 92-A (“the ordinance”). Primarily, Kev alleges that topless dancing is entitled to first amendment protection and that the ordinance unduly restricts the exercise of that protected right. The ordinance defines an “erotic dance studio” as “a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patrons’ sexual desires.” Sections 2c and 3a. The ordinance regulates erotic dance studios in various ways. It requires licensing of erotic dance studios and their dancers. Sections 3-6. It also requires that dancers and patrons be at least eighteen years of age; that dancing occur on a raised platform at least ten feet from patrons; and that all books and records of erotic dance studios be open to official inspection. Sections 9d, e, i, j, and Section 10. The ordinance also proscribes the sale or possession of intoxicating liquor and controlled substances, Section 9g; fondling or caressing between dancers and patrons, Section 9k; and the payment or receipt of gratuities, Sections 91 and m. On June 9, 1983, Kev opened the business to the public. On January 14, 1984, Kev was administratively dissolved for failure to comply with state corporate licensing regulations. But, after curing the deficiencies, Kev was reinstated as a corporation on April 24, 1984. The certificate of reinstatement was back-dated to and took effect as of the January 14, 1984 dissolution date. After a hearing on Kev’s motion for a preliminary injunction, the district court held the closing hour provision of the ordinance unconstitutional, but refused to enjoin enforcement of other provisions of the ordinance pending a hearing on the merits. On July 19, 1984, following a hearing on the merits, the district court found the ordinance constitutional in its entirety. Kev timely appealed. DISCUSSION I. Jurisdiction The County contends that the district court did not have jurisdiction when it entered judgment on July 19, 1984. The County argues that because Kev was dissolved on January 14, 1984, there were no adverse parties and, therefore, no case or controversy when the district court entered judgment on July 19, 1984. For the same reasons, the County argues that this court does not have jurisdiction in the present appeal. We disagree. Although Kev was “administratively dissolved” on January 14, 1984 for failure to comply with state corporate licensing regulations, it was reinstated as a corporation on April 24, 1984 after curing its problems with the state authorities. The certificate of reinstatement provided that Kev’s reinstatement dated back to and took effect as of the January 14, 1984 dissolution. For this reason, we find the County’s motion to dismiss for mootness itself to be moot. We, therefore, have jurisdiction to hear the present appeal. II. Standard of Review This case presents questions of law, which we review de novo. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). III. Merits A. Due Process Kev contends that ordinance section 2e (defining erotic dance studios) and section 9k (prohibiting dancers from “fondling” or “caressing” any patron) are unconstitutionally vague and thus violate due process requirements. We disagree. A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Vague laws are offensive because they may entrap the innocent by not giving fair warning of what conduct is prohibited. Id.; Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Further, to avoid discriminatory or arbitrary enforcement, due process requires that laws set forth reasonably precise standards for law enforcement officials and triers of fact to follow. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. Moreover, where first amendment freedoms are at stake, an even greater degree of specificity and clarity of laws is required. Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d 125 (1975); Goguen, 415 U.S. at 573, 94 S.Ct. at 1247; Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966). Section 2e defines an erotic dance studio as as “a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patron’s sexual desires.” The ordinance classifies erotic dance studios according to the manifest intent of the operator of the studio. Thus, one who exhibits erotic dancing with an intent to arouse the sexual desires of his patrons would know that his business falls within the purview of the ordinance. The fact that the prosecutor must prove the intent of the operator of the business does not by itself render the statute void for vagueness. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952) (statute requiring drivers transporting explosives to avoid crowded thoroughfares, “so far as practicable,” not void for vagueness since statute requires a knowing violation); United States v. Doyle, 786 F.2d 1440, 1443 (9th Cir.1986) (presence of scienter requirement in statute prohibiting sale, transportation, or receiving of wildlife without a permit issued by the state enables law to withstand vagueness challenge). Thus, section 2e provides an adequate standard for enforcement and gives fair warning to the business it targets. Section 9k provides that: “No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer.” “Caressing” and “fondling” are ordinary, commonly used terms. Both words describe forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual. See Webster’s Third New International Dictionary 339, 883 (1971). However, in the context of the other definitions provided in the ordinance, e.g., § 2c (“[djancer — a person who dances or otherwise performs for an erotic dance studio and who seeks to arouse or excite the patrons’ sexual desires” (emphasis added)), section 9k is easily understood to prohibit sexual conduct between dancers and patrons whom the dancers intend to arouse sexually while the dancers are acting in the scope of their employment at the erotic dance studio. Further, to find a violation of the prohibition against “caressing” and “fondling,” prosecutors must prove that a dancer or patron engaged in a specified act, i.e., fondling or caressing with the intention to sexually arouse or excite. Section 9k thus provides an adequate standard for law enforcement officers. Cf. Kolender v. Lawson, 461 U.S. 352, 358,103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (ordinance requiring persons who loiter or wander the streets to provide “credible and reliable” identification and account for their presence held ^unconstitutional for failing to provide adequate law enforcement standards and to give fair warning of proscribed conduct). Since sections 2e and 9k provide adequate law enforcement standards and give fair warning of the proscribed conduct, the appellant’s vagueness argument fails. B. First Amendment Violations Courts have considered topless dancing to be expression, subject to constitutional protection within the free speech and press guarantees of the first and fourteenth amendments. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); Chase v. Davelaar, 645 F.2d 735, 737 (9th Cir.1981). The County erroneously asserts that even if topless dancing were protected by the first amendment, it is not entitled to the same degree of protection afforded speech clearly at the core of first amendment values. In support of its assertion, the County relies on Justice Stevens’s statement in the plurality opinion in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), that “society’s interest in protecting [erotic expression] is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate____” 427 U.S. at 70, 96 S.Ct. at 2452. However, only three other justices (Chief Justice Burger, Justices White and Rehnquist) concurred in that statement. The County fails to recognize that five other justices in Young concluded that the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts. Id. at 73 n. 1 (Powell, J., concurring), 84-85, 96 S.Ct. at 2453 n. 1, 2459-60 (Stewart, J., dissenting, joined by Brennan, J., Marshall, J., and Blackmun J.). This view continues to govern. Several circuits that have considered this question have adopted the position ascribed to the five justices in Young. See United States v. Guarino, 729 F.2d 864, 868 n. 6 (1st Cir.1984) (en banc); Avalon Cinema Corporation v. Thompson, 667 F.2d 659, 663 n. 10 (8th Cir.1981) (en banc); Hart Bookstores, Inc. v. Edmisten, 612 F.2d 821, 826-28 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). However, determining that topless dancing is protected expression does not end our inquiry. Although first amendment coverage extends to topless dancing, it “does not guarantee the right to [engage in the protected expression] at all times and places or in any manner that may be desired.” See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). A governmental entity, when acting to further legitimate ends of the community, may impose incidental burdens on free speech. City of Renton v. Playtime Theatres, Inc., — U.S.-, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). While regulations that restrain speech on the basis of content presumptively violate the first amendment, “ ‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Id. 106 S.Ct. at 928. A regulation is “content-neutral” if it is “justified without reference to the content of the regulated speech.” Id. at 929 (emphasis in original) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)). The stated purpose of the County’s ordinance is to alleviate undesirable social problems that accompany erotic dance studios, not to curtail the protected expression —namely, the dancing. At a hearing on the proposed ordinance, the County presented evidence that drug dealing, prostitution, and other social ills accompany topless dancing establishments. See California v. LaRue, 409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1972). Law enforcement officials from Kitsap and neighboring counties testified that these problems had been associated with erotic dance studios in other counties. The Supervisor of the Vice Control Department of Kings County testified that close contact between dancers and patrons facilitates prostitution. The County has a legitimate and substantial interest in preventing social problems that accompany erotic dance studios and threaten the well-being of the community. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982) (upholding regulation requiring “open booths” in adult film arcades). Thus, we conclude that the ordinance is content-neutral because it is justified without “reference to the content of the regulated speech.” See Renton, 106 S.Ct. at 929; Virginia Pharmacy, 425 U.S. at 771, 96 S.Ct. at 1830. Kev contends that the ordinance violates the first amendment because: (a) it limits the location where dancers may perform; (b) it burdens a dancer’s performance by requiring a license, prohibiting the acceptance of gratuities, restraining erotic dancers from exercising their first amendment rights until they are licensed, and prohibiting erotic dancers, in exercising their first amendment rights, from mingling with patrons; and (c) it places a reporting and inspection burden upon a business based solely on its first amendment activities, a. License Requirements The ordinance requires that all operators of erotic dance studios and all erotic dancers obtain licenses from the County. To obtain a license, a prospective operator must supply the County with various data including:, his or her name, address, phone number, and principal occupation; similar information for all partners in the venture; and descriptions of the proposed establishment, the nature of the proposed business, and the magnitude thereof. A dancer applying for a license must provide the County: his or her name, address, phone number, birth date, “aliases (past and present),” and the business name and address where the dancer intends to dance. It is well established that the government may, under its police power, require licensing of various activities involving conduct protected by the first amendment. See, e.g., American Mini Theatres, 427 U.S. at 62, 96 S.Ct. at 2448; Skuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969); Tyson & Brother— United Theatre Ticket Offices, Inc. v. Ban-ton, 273 U.S. 418, 430, 47 S.Ct. 426, 428, 71 L.Ed. 718 (1927) (“The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power____”); see also Genusa v. City of Peoria, 619 F.2d 1203, 1212-13 (7th Cir. 1980) (court relied on American Mini The-atres in upholding simple license requirement for operators of adult bookstores). A licensing requirement raises first amendment concerns when it inhibits the ability or the inclination to engage in the protected expression. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (requirement that union organizers register with state unconstitutionally inhibits free expression). Further, a licensing requirement must provide “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39. Here, there is no suggestion that the licenses required either to operate, or to perform in, a topless facility would be difficult to obtain or would for some other reason discourage either a prospective operator from exhibiting dancing, or a prospective dancer from performing. None of the information required by the County unreasonably diminishes the inclination to seek a license. Moreover, the County has no discretion in issuing the licenses. Sections 4 and 7 provide that both licenses would be issued automatically by the County within five days. Further, both license requirements serve valid governmental purposes. By monitoring erotic dancers and erotic dance studios, the County can allocate law enforcement resources to ensure compliance with the ordinance. Thus, we conclude that the County may require operators of erotic dance studios and erotic dancers to obtain licenses. However, although the County may require dancers to be licensed, the County has failed to demonstrate a need for section 7d’s five-day delay period between the dancer’s filing of an application and the County’s granting of a license. The ordinance unreasonably prevents a dancer from exercising first amendment rights while an application is pending. Because the County has not justified the five-day delay permitted by the statute with respect to the dancer’s license application, this provision is unconstitutional. Thus, we hold section 7d of the ordinance unconstitutional. b. Business Records Requirement Sections 9b and 9c of the ordinance require operators of erotic dance studios to maintain business records and complete lists of all dancers, for inspection by the County. Although the business records requirements may impose a limited burden on operators of erotic dance studios, the burden is significantly outweighed by the advancement of the County’s interest in preventing the infiltration of organized crime into erotic dance studios. The business records requirements are no more burdensome than the requirements placed on a myriad of other businesses and substantially further the County’s interest. Thus, these regulations do not violate the first amendment. c. Regulations Affecting Dancing The ordinance also regulates the manner in which dancing may be exhibited. The ordinance: (1) prohibits dancers and patrons from fondling and caressing each other; (2) requires that all dancing take place at least ten feet from the patrons and on a stage raised at least two feet from the floor; and (3) prohibits patrons from tipping dancers. The alleged purpose of these requirements is to prevent patrons and dancers from negotiating for narcotics transfers and sexual favors on the premises of an erotic dance studio. Separating dancers from patrons would reduce the opportunity for prostitution and narcotics transactions. Similarly, prohibiting dancers and patrons from engaging in sexual fondling and caressing in an erotic dance studio would probably deter prostitution. Preventing the exchange of money between dancers and patrons would also appear to reduce the likelihood of drug and sex transactions occurring on regulated premises. Further, these regulations do not significantly burden first amendment rights. While the dancer’s erotic message may be slightly less effective from ten feet, the ability to engage in the protected expression is not significantly impaired. Erotic dancers still have reasonable access to their market. See Ellwest Stereo The-atres, 681 F.2d at 1246 (open booths regulation did not affect access to adult films). Similarly, while the tipping prohibition may deny the patron one means of expressing pleasure with the dancer’s performance, sufficient alternative methods of communication exist for the patron to convey the same message. Thus, the regulations are reasonable time, place, and manner restrictions that only slightly burden speech. IV. Conclusion Except for the five-day delay between the dancer’s filing of an application for a license and the mandatory granting of the license by the County, Kitsap County’s regulations of erotic dance studios are reasonable time, place, and manner restrictions, justified without reference to the content of the protected expression. Thus, we REVERSE as to the provision permitting the five day delay in granting the dancer’s license and AFFIRM the other provisions. Each side to bear its own costs. . On March 21, 1985, however, the district court ordered that its judgment be corrected to include its earlier holding that the closing hour provision of the ordinance, section 9f, was unconstitutional. The County does not challenge this holding on appeal. . The first amendment to the United States Constitution provides in relevant part: "Congress shall make no law ... abridging the freedom of speech, or of the press____” This Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). . See also United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968) (holding that a content neutral regulation that imposes an incidental burden on speech is sufficiently justified if: [1] it is within the constitutional power of the government; [2] it furthers an important or substantial governmental interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4] the incidental restriction on first amendment freedoms is no greater than is essential to the furtherance of that interest). In United States v. Albertini, — U.S.-, 105 S.Ct. 2897, 2907, 86 L.Ed.2d 536 (1985), the Supreme Court clarified the fourth O’Brien factor, noting that "an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” . Section 1 of the ordinance states: Purpose. The purpose of this ordinance is to regulate erotic dance studios to the end that the many types of criminal activities frequently engendered by such studios will be curtailed. However it is recognized that such regulation cannot de facto approach prohibition. Otherwise a protected form of expression would vanish. This ordinance represents a balancing of competing interests: reduced criminal activity through the regulation of erotic dance studios versus the protected rights of erotic dancers and their patrons. . Kev argues that requiring the dancer to provide a list of "aliases (past and present)” unjustifiably invades the dancer’s privacy. In Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980), the Seventh Circuit invalidated a similar requirement for operators of adult book stores, noting that the “alias disclosure requirement involves an invasion of privacy not justified by the zoning interest and is not otherwise justified.” Id. at 1216. In the instant case, the alias disclosure requirement for dancers is justified by the County’s substantial interest in preventing prostitution in erotic dance studios. The requirement will enable the County to monitor more effectively dance studios employing known prostitutes. . Kev also asserts that the five-day delay in granting the license to operate an erotic dance studio burdens the operators first amendment rights. We conclude, however, that the County presented a sufficiently compelling justification for this delay. The County contends that topless dancing establishments are likely to require a significant reallocation of law enforcement resources. As the district court concluded, ”[b]ecause such resources in Kitsap County are limited, five days to adjust is reasonable. There is no reason for a new studio operator not to apply for a license one week before he plans to open his facility.” Thus, there seems to be an important justification for the five-day waiting period in licensing dance establishments. . In striking down section 7d, we note that the Kitsap ordinance 'contains a severability clause. Under Washington law, a statute is not to be declared unconstitutional in its entirety unless the remainder of the act is incapable of achieving the legislative purposes. Brockett v. Spokane Arcades, Inc., — U.S.-, 105 S.Ct. 2794, 2803, 86 L.Ed.2d 394 (1985). Because the effectiveness of this ordinance does not depend on the five-day period between the filing of an application for a license and its mandatory granting by the County, we need not strike down the ordinance in its entirety. . Section 9b requires that: No later than March 1 of each year an erotic dance studio licensee shall file a verified report with the Auditor showing the licensee’s gross receipts and amounts paid to dancers for the preceding calendar year. Section 9c provides: An erotic dance studio licensee shall maintain and retain for a period of two (2) years the names, addresses, and ages of all persons employed as dancers by the licensee. . Section 9i provides: All dancing shall occur on a platform intended for that purpose which is raised at least two feet (2') from the level of the floor. Section 9j provides: No dancing shall occur closer than ten feet (10') to any patron. Section 9k provides: No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer. Sections 91 and 9m provide: No patron shall directly pay or give any gratuity to any dancer [and n]o dancer shall solicit any pay or gratuity from any patron." . The County presented testimony that close contact between dancers and patrons facilitated these transactions. . As we construe section 9k to prohibit only sexual fondling and caressing occurring in an erotic dance studio, we reject Kev’s argument that the ordinance is overbroad. Our holding today does not address the dancers' and the patrons' right of privacy to associate freely with each other under other circumstances. We hold simply that because of the County’s legitimate and substantial interest in preventing the demonstrated likelihood of prostitution occurring in erotic dance studios, the County may prevent dancers and patrons from sexually touching each other while the dancers are acting in the scope of their employment. . In International Society for Krishna Consciousness, 452 U.S. at 650-51, 101 S.Ct. at 2565-66, the Supreme Court noted that "consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Given the characteristics of erotic dance studios, the ordinance does not impair the dancer’s ability to display her art.

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

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

UNITED STATES POSTAL SERVICE v. GREGORY No. 00-758. Argued October 9, 2001 Decided November 13, 2001 O’CONNOR, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 11. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 14. Gregory G. Garre argued the cause for petitioner. With him on the briefs were Solicitor General Olson, former Acting Solicitor General Underwood, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, David M. Cohen, Todd M. Hughes, David B. Stinson, Mary Anne Gibbons, Lori J. Dym, and Stephan J. Boardman. Henk Brands argued the cause and filed a brief for respondent. Briefs of amici curiae urging affirmance were filed for the American Federation of Government Employees, AFL-CIO, by Mark D. Roth and Charles A Hobbie; for the National Association of Letter Carriers, AFL-CIO, by Keith E. Secular; for the National Employment Lawyers Association by Edward H. Passman and Paula A Brantner; and for the National Treasury Employees Union by Gregory O’Duden, Barbara A. Atkin, and Kerry L. Adams. Justice O’Connor delivered the opinion of the Court. The Civil Service Reform Act of 1978 allows eligible employees to appeal termination and other serious disciplinary actions to the Merit Systems Protection Board. 5 U. S. C. §§7512-7513. The Federal Circuit ruled that, when assessing the reasonableness of these actions, the Board may not consider prior disciplinary actions that are pending in collectively bargained grievance proceedings. 212 F. 3d 1296, 1298 (2000). Because the Board has broad discretion in determining how to review prior disciplinary actions and need not adopt the Federal Circuit’s rule, we now vacate and remand for further proceedings. I Respondent Maria Gregory worked for petitioner United States Postal Service as a letter technician with responsibility for overseeing letter carriers on five mail routes, and serving as a replacement carrier on those routes. App. to Pet. for Cert. A-15. On April 7,1997, respondent left work early to take her daughter to the doctor, ignoring her supervisor’s instructions to sort the mail for her route before leaving. She received a letter of warning for insubordination. App. 47-48. Respondent filed a grievance under the procedure established in the collective bargaining agreement between her union and her employer, see generally 1998-2001 Agreement Between National Association of Letter Carriers, AFL-CIO and U. S. Postal Service, Art. 15. App. 43. Later that same month respondent was cited for delaying the mail, after mail from another route was found in her truck at the end of the day. Id., at 45-46. The Postal Service suspended her for seven days, and respondent filed a second grievance. Id., at 41-42. In August 1997, respondent was again disciplined for various violations, including failing to deliver certified mail and attempting to receive unauthorized or unnecessary overtime. Id., at 38-40. She received a 14-day suspension, and again filed a grievance. While these three disciplinary actions were pending in grievance proceedings pursuant to the collective bargaining agreement, respondent was disciplined one final time. On September 13, 1997, respondent filed a form requesting assistance in completing her route or, alternatively, SVfe hours of overtime. Considering this request excessive, respondent’s supervisor accompanied her on her route and determined that she had overestimated the necessary overtime by more than an hour. Id., at 31-33. In light of this violation and respondent’s previous violations, her supervisor recommended that she be removed from her employment at the Postal Service. Ibid. On November 17, 1997, the Postal Service ordered respondent’s termination effective nine days later. Id., at 24-29. Because respondent previously served in the Army, she falls into the category of “preference eligible” Postal Service employees covered by the Civil Service Reform Act of 1978 (CSRA). 5 U. S. C. §7511(a)(l)(B)(ii). The CSRA provides covered employees the opportunity to appeal removals and other serious disciplinary actions to the Merit Systems Protection Board (Board). §§7512-7513. Under the CSRA, respondent could appeal her termination to the Board or seek relief , through the negotiated grievance procedure, but could not do both. § 7121(e)(1). Respondent chose to appeal to the Board. When an employing agency’s disciplinary action is challenged before the Board, the agency bears the burden of proving its charge by a preponderance of the evidence. § 7701(c)(1)(B). Under the Board’s settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it. Douglas v. Veterans Admin., 5 M. S. P. B. 313, 333-334 (1981). Following these guidelines, a Board Administrative Law Judge (ALJ) upheld respondent’s termination, concluding that the Postal Service had shown that respondent overestimated her overtime beyond permissible limits on September 13, App. to Pet. for Cert. A-29, and that her termination was reasonable in light of this violation and her prior violations. Id., at A-36 to A-40. Although the three prior disciplinary actions were the subject of pending grievances, the ALJ analyzed them independently, following the approach set forth in Bolling v. Department of Air Force, 8 M. S. P. B. 658 (1981). Bolling provides for de novo review of prior disciplinary actions unless: “(1) [the employee] was informed of the action in writing; (2) the action is a matter of record; and (3) [the employee] was given the opportunity to dispute the charges to a higher level than the authority that imposed the discipline.” Id., at 660-661. If these conditions are met, Board review of prior disciplinary action is limited to determining whether the action is clearly erroneous. Id., at 660. After finding that respondent’s three prior disciplinary actions met Bolling’s three conditions, the ALJ concluded that there was no clear evidence of error. App. to Pet. for Cert. A-37. Respondent petitioned the Board for review of the ALJ’s decision. While this appeal was pending, an arbitrator resolved respondent’s first grievance (relating to the April 7 incident) in her favor, and ordered that the letter of warning be expunged. App. 3-16. Respondent did not advise the Board of that ruling. The Board then denied her request for' review of the ALJ’s determination. App. to Pet. for Cert. A-9 to A-10. Respondent petitioned for review of the Board’s decision in the United States Court of Appeals for the Federal Circuit. 5 U. S. C. § 7703(a). That court affirmed the Board’s decision to uphold the ALJ’s factual findings with respect to the September 13 incident. 212 F. 3d, at 1299. Taking judicial notice of the fact that one of the three disciplinary actions underlying respondent’s termination had been overturned in arbitration, and noting that respondent’s two remaining grievances were still pending, it reversed the Board’s determination that the penalty was reasonable. Ibid. While recognizing that disciplinary history is an “important factor” in assessing any penalty, id., at 1300, the Federal Circuit held that “prior disciplinary actions that are subject to ongoing proceedings may not be used to support” a penalty’s reasonableness, id., at 1298. It therefore vacated the Board’s decision in part and remanded for further proceedings. Id., at 1300. We granted certiorari, 531 U. S. 1143 (2001). II The Federal Circuit’s statutory review of the substance of Board decisions is limited to determining whether they are unsupported by substantial evidence or are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. § 7703(c). Like its counterpart in the Administrative Procedure Act, 5 U. S. C. § 706(2), the arbitrary and capricious standard is extremely narrow, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971), and allows the Board wide latitude in fulfilling its obligation to review agency disciplinary actions. It is not for the Federal Circuit to substitute its own judgment for that of the Board. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). The role of judicial review is only to ascertain if the Board has met the minimum standards set forth in the statute. We conclude that the Board need not adopt the Federal Circuit’s rule in order to meet these standards. The Postal Service argues that the Board’s independent review of prior disciplinary actions is sufficient to meet its statutory obligations. The adequacy of the Board’s particular review mechanism — Bolling review, see Bolling v. Department of Air Force, supra—is not before us. The Federal Circuit said nothing about Bolling, instead adopting a sweeping rule that the Board may never rely on prior disciplinary actions subject to ongoing grievance procedures, regardless of the sort of independent review the Board provides. Respondent likewise asks this Court only to uphold the Federal Circuit’s rule forbidding independent Board review. She does not seek a ruling requiring a different Board review mechanism, nor did she do so before the Federal Circuit. Her brief in that court mentioned neither Bolling nor its standard, arguing only that the Board should hold off its review altogether pending the outcome of collectively bargained grievance proceedings. Brief for Petitioner in No. 00-3123 (CA Fed.), p. 2. Moreover, even if the adequacy of Bolling review were before us, we lack sufficient briefing on its specific functioning in this case. We thus consider only whether the Board may permissibly review prior disciplinary actions subject to ongoing grievance procedures independently, not whether the particular way in which it does so meets the statutory standard. There is certainly nothing arbitrary about the Board’s decision to independently review prior disciplinary violations. Neither the Federal Circuit nor respondent has suggested that the Board has applied this policy inconsistently — indeed, the Board has taken this same approach for 19 years. See Carr v. Department of Air Force, 9 M. S. P. B. 714 (1982). Nor have they argued that the Board lacks reasons for its approach. Following the Federal Circuit’s rule would require the Board either to wait until challenges to disciplinary actions pending in grievance proceedings are completed before rendering its decision, or to ignore altogether the violations being challenged in grievance in determining the reasonableness of the penalty. The former may cause undue delay. See Reply Brief for Petitioner 6-7. The latter would, in many cases, effectively preclude agencies from relying on an employee’s disciplinary history, which the Federal Circuit itself acknowledged to be an “important factor” in any disciplinary decision. 212 F. 3d, at 1300. Nor is independent review by the Board contrary to any law. The Federal Circuit cited no provision of the CSRA or any other statute to justify its new rule. Id., at 1299-1300. At oral argument in this Court, respondent’s counsel pointed to the Federal Circuit’s statement that, if pending grievances were later overturned in arbitration, “the foundation of the Board’s Douglas analysis would be compromised.” Tr. of Oral Arg. 49; 212 F. 3d, at 1300 (citing Douglas v. Veterans Admin., 5 M. S. P. B. 313 (1981)). The Board’s Douglas decision set out a general framework for reviewing agency disciplinary actions. Because Douglas at one point specifically discussed 5 U. S. C. § 7701(c)(1)(B), the CSRA provision placing the burden of proof on the employing agency to justify its disciplinary action, counsel claimed, the Federal Circuit must have thought the Board’s policy violates that section. Tr. of Oral Arg. 49. We do not read the Federal Circuit’s citation of Douglas as an implicit reference to § 7701(c)(1)(B), particularly given that the Federal Circuit’s opinion nowhere mentions that section’s standard. Rather, we interpret the Federal Circuit’s reference to Douglas as a way of describing the entire process of Board review of disciplinary actions. More importantly, any suggestion that the Board’s decision to independently review prior disciplinary actions violates § 7701(c)(l)(B)’s preponderance of the evidence standard would be incorrect. To the extent that that standard places the burden upon employing agencies to justify all of the violations — including those dealt with in prior disciplinary actions — that are the'basis for the penalty, the Board has its own mechanism for allowing agencies to meet that burden. Insofar as Bolling review is adequate to meet this burden of proof, an employing agency may meet its statutory burden to justify prior actions by prevailing either in grievance or before the Board. Amicus National Treasury' Employees Union (NTEU) argues that independent Board review of prior disciplinary actions pending in grievance violates the CSRA’s general statutory scheme. Brief for National Treasury Employees Union as Amicus Curiae 8-12. Employees covered by the CSRA may elect Board review only for disciplinary actions of a certain seriousness, such as termination, suspension for more than 14 days, or a reduction in grade or pay. 5 U. S. C. §§7512-7513. For more minor actions, workers may only seek review through negotiated grievance procedures, if they exist. §7121. According to NTEU, this scheme deprives the Board of the statutory authority to review minor disciplinary actions like the three that were pending in this case. It is true that the CSRA contemplates that at least some eligible employees (those represented by unions) will have two different forums for challenging disciplinary actions, depending in part on their seriousness. If the Board had attempted to review respondent’s first disciplinary action before she was terminated, it would have exceeded its statutory authority. In this case, however, the Board was asked to review respondent’s termination, something it clearly has authority to do. §§7512-7513. Because this termination was based on a series of disciplinary actions, some of which are minor, the Board’s authority to review the termination must also include the authority to review each of the prior disciplinary actions to establish the reasonableness of the penalty as a whole. Independent Board review of disciplinary actions pending in grievance proceedings may at times result in the Board reaching a different conclusion than the arbitrator. It may also result in a terminated employee never reaching a resolution of her grievance at all, because some collective bargaining agreements require unions to withdraw grievances when an employee’s termination becomes final before the Board. Brief for Respondent 10-11, 37; Reply Brief for Petitioner 14. Rather than being inconsistent with the statutory scheme, however, these possibilities are the result of the parallel structures of review set forth in the CSRA. Such results are not necessarily unfair. Any employee who appeals a disciplinary action to the Board receives independent Board review. If the Board’s mechanism for reviewing prior disciplinary actions is itself adequate, the review such an employee receives is fair. Although the fairness of the Board’s oWn procedure is not before us, we note that a presumption of regularity attaches to the actions of Government agencies, United States v. Chemical Foundation, Inc., 272 U. S. 1, 14—15 (1926), and that some deference to agency disciplinary actions is appropriate. II Although the Board independently reviews prior disciplinary actions pending in grievance, it also has a policy of not relying upon disciplinary actions that have already been overturned in grievance proceedings at the time of Board review. See Jones v. Department of Air Force, 24 MSPR 429, 431 (1984). As one of respondent’s disciplinary actions was overturned in arbitration before the Board rendered its decision, the Postal Service concedes that a remand to the Federal Circuit is necessary to determine the effect of this reversal on respondent’s termination. Reply Brief for Petitioner 15-16. The judgment of the United States Court of Appeals for the Federal Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

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

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

REES v. PEYTON, PENITENTIARY SUPERINTENDENT. No. 321, Misc. Decided May 31, 1966. S. White Rhyne, Jr., and Charles A. Dukes, Jr., for petitioner. Reno S. Harp III, Assistant Attorney General of Virginia, for respondent. Monroe H. Freedman and Melvin L. Wulf for the American Civil Liberties Union et al., as amici curiae, in support of the petition. Per Curiam. Following a related federal conviction and life sentences for kidnapping, United States v. Rees, 193 F. Supp. 849, Melvin Davis Rees, Jr., was convicted of murder and sentenced to death by a state court in Virginia, and the judgment was affirmed on appeal in 1962. Rees v. Commonwealth, 203 Va. 850, 127 S. E. 2d 406, cert. denied, 372 U. S. 964. Thereafter, a habeas corpus petition was filed in the United States District Court for the Eastern District of Virginia, alleging that the state court conviction had violated federal constitutional rights of Rees. The District Court rejected these claims, 225 F. Supp. 507, and the Court of Appeals for the Fourth Circuit affirmed, 341 F. 2d 859. With Rees’ consent, his counsel then filed in this Court on June 23, 1965, the present petition for certiorari to review the Court of Appeals’ decision, and the petition is therefore properly before us for disposition. Nearly one month after this petition had been filed, Rees directed his counsel to withdraw the petition and forgo any further legal proceedings. Counsel advised this Court that he could not conscientiously accede to these instructions without a psychiatric evaluation of Rees because evidence cast doubt on Rees’ mental competency. After further letters from Rees to his counsel and to this Court maintaining his position, counsel had Rees examined by a psychiatrist who filed a detailed report concluding that Rees was mentally incompetent. Psychiatrists selected by the State who sought to examine Rees at the state prison found themselves thwarted by his lack of cooperation, but expressed doubts that he was insane. Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees’ mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court’s certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees’ mental competence and render a report on the matter to us. While other courses have been suggested, cf. Anderson v. Kentucky, 376 U. S. 940, we think that all things considered the initial step should be the one just indicated. Until that step has been taken, we do not consider ourselves in a position to determine what disposition should be made of Rees’ petition for certiorari. Accordingly, we shall retain jurisdiction over the cause in this Court and direct the District Court to determine Rees’ mental competence in the present posture of things, that is, whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. To that end, it will be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. 18 U. S. C. §§4244-4245 (1964 ed.). If the State wishes to obtain additional evidence for the federal inquiry by examining Rees in its own facilities, we do not foreclose such a supplemental course of action. The District Court will hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so desire, and will report its findings and conclusions to this Court with all convenient speed. It is so ordered.

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

What is the issue of the decision?

NATIONAL CONTROLS CORPORATION v. NATIONAL SEMICONDUCTOR CORPORATION, Appellant. No. 86-3784. United States Court of Appeals, Third Circuit. Argued Oct. 5, 1987. Decided Nov. 23, 1987. David A. Brownlee (argued), Kenneth M. Argentieri, Jeffrey T. Barbour, Kirkpatrick & Lockhart, Pittsburgh, Pa., for appellant. T. Lawrence Palmer (argued), Wexford, Pa., for appellee. Before BECKER, SCIRICA and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. Defendant, National Semiconductor Corporation (NSC), appeals an adverse jury verdict in a breach of contract and warranties suit brought in diversity by National Controls Corporation (NCC) in the United States District Court for the Western District of Pennsylvania. NSC asserts that it was entitled to a judgment notwithstanding the verdict (judgment N.O.V.) because the jury’s award of $1,400,000 in damages was based on its improper consideration of consequential damages and the trial court’s erroneous instructions with respect to such damages. NSC also contends that the district court committed reversible error in several of its evidentiary rulings. We reverse. I. NCC is a small Pennsylvania company involved in the design and production of control systems and electrical devices for its various customers. It also was participating in the development and production of a new or “SNAP” type of telephone for MCI, a national telephone company exclusively engaged in providing long distance service. This “SNAP” telephone would allow consumers direct access to MCI’s long distance telephone services by automatically dialing the MCI code numbers and would also reach the rotary market. The development of the project was to proceed in four phases and the project was subject to termination at any time for a variety of business reasons. The proposed new telephone was to use certain specific devices called COPS, microcontroller units which are a type of integrated circuit, essentially a computer on a chip, produced by NSC, a Delaware corporation based in California. NCC participated in the first, or “development,” phase of MCI’s project by supplying ten test telephones. The telephones contained COPS microcontroller units produced by NSC and sold to NCC in the summer of 1982. NCC raises no claim with respect to this phase and none of the damages awarded relate to it. NCC also participated in the next, pretest, phase of the project. MCI ordered 200 test telephones from NCC in December of 1982 for a total price of $27,400. Purchase orders for additional quantities were to be authorized “only after the 200 sets are tested, approved and accepted.” Dissatisfied with the small quantity of telephones ordered, NCC sought to gain MCI’s commitment to an order for 60,000 telephone units. MCI was unwilling to place such a large order and, after further negotiations, MCI issued a final purchase order on February 7, 1983, for an aggregate of 450 test telephone units at a total price of $55,400. MCI’s purchase order specifically limited its purchase commitment to the 450 telephones. NCC planned to use NSC’s chips to produce the phones. Late in 1982, NCC entered into a contract with NSC, through NSC’s agent CAM/RPC, in which it ordered a total of 1,200 microprocessor units from NSC. NSC breached its contract and its warranties of merchantability and fitness for a particular purpose with respect to this order by delivering only a small number of defective microcontroller units. As a consequence, NCC supplied only 126 of the first 200 test telephone sets, and some of those failed because of the poor quality of the microprocessors supplied by NSC. Notwithstanding the failure to make the required delivery for the 450 test telephones, MCI ordered 6,000 NSC COPS units from NCC in May of 1983 in anticipation of the third, or pilot test, phase of the SNAP phone project. The total purchase price of the order was $38,580. NCC in turn ordered 6,100 microcontroller units from the defendant for a purchase price of $35,014. In addition, NCC sent MCI a price quotation for 5,000 telephones for this pilot test phase of the project, but MCI never issued a purchase order accepting that quotation. NSC failed to deliver any of the 6,100 chips ordered by NCC and MCI eventually cancelled the purchase order for chips that it had placed with NCC. Some five months later, MCI terminated the SNAP phone project in its entirety. After hearing evidence regarding NCC’s relationship with MCI and its contracts with MCI and NSC, the jury found that NSC had breached its contract and its warranties of merchantability and fitness for a particular purpose and awarded $1,400,000 in damages to NCC. A large portion of this award can only represent the jury’s acceptance of NCC’s claims of “lost profits” on the potential sale of thousands of telephones to MCI. NSC’s motions for a directed verdict and for judgment N.O.V. were denied. II. NSC challenges the denial of its motion for a directed verdict and for a judgment N.O.V. on several theories. It asserts that (1) the damages sought by NCC were not recoverable as a matter of law, (2) the evidence was too speculative to support a jury verdict, and (3) the jury’s verdict was not supported by the evidence. Our review of the district court’s denial of the judgment N.O.V. is determined by whether there is sufficient evidence in the record to sustain the verdict of the jury on the issue of consequential damages. Acosta v. Honda Motor Co., Ltd., 717 F.2d 828, 839-40 (3d Cir.1983). The record must be viewed in the light most favorable to the non-moving party, and the denial of the motion should be affirmed unless the record is “ ‘critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.’ ” Id. at 840 (citation omitted). It is undisputed that Pennsylvania law governs the jury’s consideration of damages in this action. Pennsylvania has adopted the Uniform Commercial Code (UCC) and permits recovery of consequential damages resulting from breach of warranty or contract by a seller. 13 Penn. Cons. StatAnn. § 2714(c) (Purdon 1984). Such consequential damages may include “any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise.” 13 Pa. Cons. StatAnn. § 2715(b)(1) (Purdon 1984). Lost profits are recoverable as consequential damages in a proper case, such as where a seller knows or has reason to know that a buyer is purchasing a good for resale. See, e.g., Kunststoffwerk Alfred Huber v. R.J. Dick, 621 F.2d 560 (3d Cir.1980). The award of such damages, how ever, pits the plaintiff’s right to the bargain of his contract against the need to prevent jury verdicts based on speculation rather than proper proof. At issue in the present case is the application of section 2715 where the plaintiff attempted to show that the defendant’s breaches of contract and warranty in sales aggregating 7,300 microcomputer chips were the proximate cause of lost profits on the sale of up to 180,000 telephones. The defendant asserts that the consequential damages sought by NCC constitute losses of “good will” or mere speculative profits and, as such, are not recoverable under Pennsylvania law. NCC, however, argues that its consequential damages claim is predicated only on commitments for orders that the jury legitimately found were lost to NSC’s breaches of contract and warranty. Under Pennsylvania law, lost profits are recoverable when they are “lost on a particular sale or contract for the performance of which the goods in question were purchased.” Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1226 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). In contrast, a breach of contract or warranty may lead to non-recoverable loss of good will where the defendant’s breach causes customer dissatisfaction with the plaintiff which is then translated into a loss of expected profits. Id. at 1225 (citing Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968)). The bar to recovery of damages for loss of good will, including proof of such damages, is a matter of law in Pennsylvania, thus precluding the plaintiff from attempting to show that in his case the damages would not be speculative. Comment, Loss of Goodmll and Business Reputation as Recoverable Elements of Damages Under Uniform Commercial Code § 2-715 — The Pennsylvania Experience, 75 Dickinson L.Rev. 63, 78 (1970). Even where the plaintiff’s claim truly represents a claim for lost profits, rather than loss of good will, it may be rejected as speculative and unrecoverable. This is particularly true where the claim of lost profits is made in the context of a new and untried business venture. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 117-26, 464 A.2d 1243, 1257-61 (1983) (burden of proof is high with respect to new business profits). No matter how the lost profits claim is characterized, however, an underlying prerequisite to the recovery of damages is proof of proximate cause. Id., 318 Pa.Super. at 120, 464 A.2d at 1258. Therefore, we need not explore the intricacies of Pennsylvania law to determine whether recovery for lost profits or lost good will is at issue. Instead, we will directly address NCC’s contention that its consequential damage claim was based on commitments for orders to determine whether the plaintiffs proof provided a basis upon which the jury could have found that NSC’s breach proximately caused the loss of profits on MCI’s non-contractual and contractual commitments. III. To sustain a damages award, NCC must have provided sufficient evidence from which the jury could have found that its lost profits were proximately caused by the defendant’s breach. See Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super, at 120, 464 A.2d at 1258. The damages sought must be “ ‘a proximate consequence of the breach, not merely remote or possible.’ ” Dairymen’s Cooperative Sales Ass’n v. McCreary, 132 Pa.Super. 524, 528, 1 A.2d 508, 510 (1938) (citation omitted). The element of causation defines the range of socially and economically desirable recovery and requires not only “ ‘but-for’ causation in fact” but also “that the conduct be a ‘substantial factor’ in bringing about the harm.” Klages v. General Ordnance Equip. Co., 240 Pa.Super. 356, 373, 367 A.2d 304, 313 (1976). Where the losses cannot be allocated between those caused by the defendant’s breach and those not, an entire claim may be rejected. Lichter v. Mellon-Stuart Co., 305 F.2d 216, 220 (3d Cir.1962). NCC thus had to prove that any lost profits were proximately caused by NSC’s breach, and not through some other cause. In essence, the proximate causation requirement demands that the plaintiff prove that the defendant’s breach was a substantial factor in causing some harm. Two types of proof will thus be relevant: evidence of MCI’s commitments to NCC and evidence of a causal relationship between the defendant’s breaches and the alleged repudiation. NCC claims damages based on profits lost on (1) the contract for the sale of 450 telephones, (2) the contract for the sale of 6,000 microchips, (3) the “commitment” for the sale of 5,000 telephones, and (4) the “commitment” for the sale of at least 60,-000 telephones. It also claims damages based on its engineering and lease expenditures. Each of the bases for recovery will be examined in turn. A. The Order for 450 Telephones The evidence clearly showed that NCC had a purchase order for 450 telephones from MCI. Further, the evidence was sufficient to show that NSC breached its contract to produce the microchips that NCC had planned to use to build the 450 phones. As a result, only 126 phones were delivered, and some of those were defective. The plaintiff thus presented sufficient evidence from which the jury could have readily found that NSC’s breaches were the proximate cause of some damage to NCC. Unfortunately, the plaintiff does not point to any evidence, and we have not been able to independently find any, to show that it lost money on this order or that it was not paid by MCI for its purchase order of February 7,1983. The claim for lost profits on this contract must therefore be rejected. B. The Loss of Profits on 6,000 Microchips A similar fate befalls the plaintiff’s claim for lost profits on the resale of 6,000 microchips to MCI. NCC provided evidence to show that MCI had ordered the microcontroller units from it, and that it had in turn ordered the chips from NSC for a potential profit of $3,566 on the entire transaction. The plaintiff also presented uncontroverted evidence that NSC failed to deliver any of the ordered chips and that MCI eventually cancelled its purchase order. However, the record indicates that MCI had paid the purchase price to NCC, and the plaintiffs failed to present any evidence to the contrary or evidence that MCI has sought or obtained reimbursement. Thus, absent proof that NCC was legally liable to MCI for a specific amount or that it had lost expected profits on the contract, the claim with respect to the 6,000 microcontroller chips must fail. See, e.g., Neville, 422 F.2d 1205, 1222-23 (breaching party not liable for payments made to others by injured party unless that party was legally liable for the payments). C. The Loss of Profits on 5,000 Telephones NCC claimed that the order for 6,000 chips also included a commitment from MCI for the purchase of 5,000 telephones on which NCC had quoted a price of $70.37 for an aggregate purchase price of $351,850. At a 10% net profit, counsel contended that NCC would have earned $35,185 on this item. Because NSC failed to deliver any of the necessary chips for this “commitment,” proximate causation will not be an issue. Our analysis must instead focus on the nature of “the commitment” to determine whether NCC in fact sustained any losses. As to the alleged loss of profits for the 5,000 teleset telephones it expected to produce on the basis of the purchase order from MCI for 6,000 microcomputer chips, NCC is correct in stating that it sent MCI a price quotation for 5,000 telephones expected to be used in connection with the pilot test phase of the project. However, there is no evidence that MCI ever accepted the quotation: Browne, NCC’s president, unequivocally conceded in his testimony that MCI nevér issued a purchase order in response to the quotation, although he claimed that NCC started production even without the purchase order. On the other hand, Thomas, Director of Customer Service for MCI, testified that the purpose of ordering the 6,000 “teleset chips” from NCC was not to have NCC manufacture the telephones. MCI ordered the chips so that it could “give them to a quantity manufacturing company to produce 6,000 marketable telephones so that we could get on with the next phase of the roll out of the product.” He stated that the quantity manufacturing company referred to was a company other than NCC. Therefore, the claim for this item must also be rejected. D. The Loss of Profits on up to 180,000 Telephones NCC asserts that “there was substantial evidence of a firm commitment for an immediate requirement of 60,000 telephone units and subsequently for at least 20,000 units per month.” It further avers that there was similar evidence of “an oral and written acknowledgement by MCI of its contract with [NCC] ... to produce the first generation teleset.” NCC argues that it had been chosen to produce the first generation phones, and predicates its damage claims presumably on the loss of profits and on the expenses incurred in connection with the production of these phones. The telephones expected to be produced in the first two phases of the telephone project are referred to by the plaintiff as the “first generation teleset.” It vigorously argues that the price for such units had been established at $63.87 for the first 60,000 and $59.85 for the next 60,000 units and beyond. On March 28, 1983, MCI had requested that the plaintiff obtain mass production scheduling from NSC for high volume production quantities of the microprocessor, and MCI had internally projected the sale of a minimum of 800,000 telephones for the first year. NSC’s microprocessor failed both merchantability standards and its use for the particular purposes, the plaintiff asserts, and NSC also breached its contract with respect to the original order. It delivered only 126 microprocessors, some of which were flawed. NCC never was able, the plaintiff argues, to deliver any portion of the balance of the 60,000 units scheduled because of defendant’s repeated breaches. Thus, plaintiff contends, “The first generation teleset project was cancelled.” The problem with the plaintiff’s argument, however, is that the record fails to sustain it. An award of lost profits required speculation by the jury on the likelihood that, absent NSC’s breaches, MCI would have proceeded with the project and on the likelihood that MCI would have chosen NCC as a supplier of some portion of the telephones produced. The plaintiff failed to present evidence sufficient to transform the jury’s speculation on these two probabilities into the reasoned assessment necessary to support a damage award. The first flaw in NCC’s argument concerns the absence of evidence to suggest that MCI would have chosen NCC as a supplier of some of the telephones produced. There never was any commitment by MCI for the 60,000 units. MCI described its SNAP phone project in its internal memorandum of July 27, 1983, as consisting of four phases commencing with the development phase and ending with the roll out phase. The memorandum stated that “[pjresently the SNAP Phone Program is in the Pre-Test Phase, gearing up for the Pilot Test of 5000 units.” There was no evidence of a contract between MCI and NCC for anything other than the sale of the 450 telephones and 6,000 microcontrol-ler units. The purchase order for the 450 telephones specifically stated that MCI was not obligated to purchase any additional units. Similarly, MCI representatives testified that the 6,000 microchip order did not include the purchase of any additional telephones. The evidence suggested, at most, that MCI might also have orally expressed an interest in continuing to order either more COPS units or more telephones if it went forward with its SNAP phone project. The total of the evidence supporting any further agreement between MCI and NCC consists of inquiries by MCI regarding NCC’s production capacity and the statement by MCI in a Request For Proposal (RFP) to suppliers for production of computerized single line telesets that MCI already had contracted for the production of a first generation telephone. The statements in the RFP do not contradict the written terms of MCI’s purchase orders limiting its purchases to 450 telephones. Nor do MCI’s inquiries as to NCC’s ability to produce large quantities of telephones indicate that NCC had been given a contract for such production. There is no evidence to show that there were any other contracts or that MCI cancelled any other commitments because of NSC’s breaches. In its initial pleadings and its arguments in the district court, NCC recognized that it had no contract for the production of the thousands of telephones for which it claimed lost profits. NCC’s belated argument in this court that its contract with MCI included commitments for later orders of such phones is without support in the record. Even if such commitments were made and provide a sufficient basis upon which to award lost profits, compare Neville, 422 F.2d at 1225 (good will), and Delahanty, 318 Pa.Super. at 117-26, 464 A.2d at 1257-61 (new business profits), the plaintiff still failed to show that the commitments were lost because of NSC’s breaches. The defendants contend that the uncontroverted evidence establishes that MCI decided not to go forward with the SNAP phone project because of its own business dictates, and that this decision is reflected in its failure to go forward with the project with any supplier, not just with NCC. Long before any breach by NSC, MCI showed its disinclination to order large numbers of telephones from NCC by refusing NCC’s importuning to order 60,000 telephones instead of 450. After NSC’s first breach in the spring of 1983, MCI continued to proceed with the telephone project: it ordered microcontroller units from NCC and issued an RFP to fifteen companies, including NCC, who might be interested in producing third phase telephones. The evidence thus shows that MCI had doubts about NCC’s ability to produce large quantities of telephones long before NSC’s second breach of contract in the summer of 1983. Compare Argo Welded Products v. J.T. Ryerson Steel & Sons, 528 F.Supp. 583, 589 (E.D.Pa.1981) (potential causation problems noted where loss of sales might have been caused by factors other than defendant’s breach). Finally, NCC did not present evidence to show that MCI aborted the SNAP telephone project based on NSC’s breaches. MCI continued to explore the third phase of the project with other vendors, finally terminating the program more than five months later without any stated reason or explanation. There was no evidence in the record regarding the reason for the cancellation of the project. The barren state of the record forces NCC to rely for its causation element solely upon the testimony given regarding the reason for the cancellation of the order for 6,000 microchips. From this evidence the jury was forced to speculate that NSC’s breach led to the termination of the entire project. NCC thus gained a large jury damage award for telephone orders without a minimum of proof to show that NSC’s earlier breach was the proximate cause of NCC’s loss of profits, even if one presumes a “firm commitment” by MCI to NCC for future telephone purchases. E. Loss of Engineering and Lease Expenses NCC presented some evidence to the jury regarding engineering expenses of $197,000 sustained in the design of the SNAP telephone and lease expenses of $30,000 incurred because new space was rented in anticipation of increased production. With respect to the engineering and lease claims, NSC argues in its brief that these alleged expenses “were to be offset by potential revenues received from MCI in calculating NCC’s alleged lost profits. By seeking both lost profits and expenses on a potential contract, NCC seeks an impermissible recovery.” We agree. The engineering and lease expenses sustained by NCC constitute damages based on its reliance interest. Recovery for reliance damages is an alternative to recovery for lost profits, not a measure of additional damages. Restatement (Second) Contracts §§ 347, 349 [hereinafter Restatement ]; see also P.A. Samuelson, Economics (10th ed. 1976) (price often includes both profit and recovery of fixed and variable expenses). NCC is entitled to receive either reimbursement for its expenses or its net profits but not both. The plaintiff may choose to recover expenditures made in reliance on a contract or commitment when there is insufficient proof of lost profits. Restatement at § 349. This rule presupposes, however, that the plaintiff presented proof that its expenditures were made reasonably. Here, NCC assumed the risk that it would never recoup its engineering and lease expenses if it did not receive future orders from MCI. See Gershman v. International Business Machines Corporation, 619 F.Supp. 1530, 1534 (E.D.Pa.1985). In Gersham, the plaintiff claimed damages from IBM for parts it had already produced in reliance on IBM's specifications, later changed. The court found that IBM was not liable for any losses: Regardless of how many parts Vanguard was forced to scrap, IBM’s responsibility cannot extend beyond the 500 parts requested in the purchase order. If Vanguard chose to manufacture parts not yet on order, it cannot claim damages when its customer orders parts which do not correspond to those Vanguard, on its own, decided to produce. By producing parts before receiving an order, Vanguard assumed the risk that the orders it anticipated would not be forthcoming. Id. at 1534. Here it seems equally clear that NSC cannot be held liable for expenses undertaken by NCC without a purchase order. NCC presented no proof to suggest that, but for NSC’s breaches, NCC would have obtained orders that would have allowed it to recoup these expenses. In fact, the evidence shows that MCI decided to terminate the project for its own reasons. The plaintiff's claim for its fixed expenses must also be rejected. IV. In summary, the trial court should have entered judgment N.O.V. in favor of National Semiconductor Corporation because of the plaintiff’s failure to prove that NSC’s breaches were the proximate cause of its alleged loss of profits and because of the lack of evidence to sustain its claims for losses on existing contracts or expenses allegedly incurred in connection with potential contracts. Accordingly, the judgment of the district court will be reversed and the case remanded with directions to enter judgment N.O. V. in favor of the defendant, National Semiconductor Corporation. Costs taxed against the appellees. . MCI’s purchase order stated: "It is recognized and agreed to by the parties that this purchase order represents MCI’s total obligation to purchase Telesets from Seller." . Microprocessor units are interchangeably referred to by the parties and in this opinion as microcontroller units, microchips, "chips,” and teleset chips. . Thus, NCC’s potential profit on the sale of the 6,000 microchips amounted to $3,566. . NCC’s contention that this issue was not preserved for review is without merit. NSC argued in the district court and on appeal that the evidence was not sufficient to support the jury’s award of damages. As part of this argument, NSC has continuously contended that its breaches did not lead to the lost profits claimed. . There is no evidence that MCI had a "first generation” project separate and independent of the four-phase project referred to in its internal memorandum of July 27, 1983, and otherwise described in MCI documents. Although its Request for Proposal of April 15, 1982, does refer to its current contract "with one firm to provide the first generation of the MCI telesets,’’ this obviously refers to the 450 telesets. . Judge Becker would rely solely on the first ground, i.e., NCC’s inability to prove that MCI's cancellation of the project was caused by NSC’s default, as he believes there was sufficient evidence for the jury to find that MCI would have chosen NCC as a supplier of some portion of the phones, had MCI continued with the project. . NCC relies upon a statement in MCI's RFP for the second generation of telephones: You are advised that MCI currently has under contract one firm to provide the first generation of the MCI Teleset. The requirement to be satisfied by the Request for Proposal does, however, represent an additional requirement with different specifications from the current product. . Some portion of the engineering expenses could be related to the contracts for the 450 telephones and 6,000 microchips. However, NCC has provided no basis upon which to allocate its expenditures, and indeed, no evidence to support the expenditures other than the testimony of its president. Where a damage claim cannot be allocated between amounts caused by a defendant’s breach and those not, the entire claim may be rejected. Lichter v. Mellon-Stuart Co., 305 F.2d 216, 220 (3d Cir.1962). . In light of our disposition of this appeal, there is no need to reach NSC’s contentions that the district court erred in its evidentiary rulings and in its instructions to the jury.

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

PACKARD MOTOR CAR CO. v. NATIONAL LABOR RELATIONS BOARD. No. 658. Argued January 9, 1947. Decided March 10, 1947. Louis F. Dahling argued the cause and filed a brief for petitioner. Gerhard P. Van Arkel argued the cause for respondent. With him on the brief were Acting Solicitor General Washington, Morris P. Glushien, A. Norman Somers, Ruth Weyand and Mozart G. Ratner. Briefs were filed as amici curiae by Nathan L. Miller, Roger M. Blough, Borden Burr and Paul R. Conaghan for the Carnegie-Illinois Steel Corp. et al.; Harry P. Jeffrey for the Foremen’s League for Education and Association et al.; and Nicholas Kelley for the Chrysler Corporation, urging reversal. Walter M. Nelson filed a brief for the Foreman’s Association of America, urging affirmance. Mr. Justice Jackson delivered the opinion of the Court. The question presented by this case is whether foremen are entitled as a class to the rights of self-organization, collective bargaining, and other concerted activities as assured to employees generally by the National Labor Relations Act. The case grows out of conditions in the automotive industry, and so far as they are important to the legal issues here the facts are simple. The Packard Motor Car Company employs about 32,000 rank-and-file workmen. Since 1937 they have been represented by the United Automobile Workers of America affiliated with the Congress of Industrial Organizations. These employees are supervised by approximately 1,100 employees of foreman rank, consisting of about 125 “general foremen,” 643 “foremen,” 273 “assistant foremen,” and 65 “special assignment men.” Each general foreman is in charge of one or more departments, and under him in authority are foremen and their assistant foremen. Special assignment men are described as “troubleshooters.” The function of these foremen in generalas typical of the duties of foremen in mass-production industry generally. Foremen carry the responsibility for maintaining quantity and quality of production, subject, of course, to the overall control and supervision of the management. Hiring is done by the labor relations department, as is the discharging and laying off of employees. But the foremen are provided with forms and with detailed lists of penalties to be applied in cases of violations of discipline, and initiate recommendations for promotion, demotion and discipline. All such recommendations are subject to the reviewing procedure concerning grievances provided in the collectively-bargained agreement between the Company and the rank-and-file union. The foremen as a group are highly paid and, unlike the workmen, are paid for justifiable absence and for holidays, are not docked in pay when tardy, receive longer paid vacations, and are given severance pay upon release by the Company. These foremen determined to organize as a unit of the Foremen’s Association of America, an unaffiliated organization which represents supervisory employees exclusively. Following the usual procedure, after the Board had decided that “all general foremen, foremen, assistant foremen, and special assignment men employed by the Company at its plants in Detroit, Michigan, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act,” the Foremen’s Association was certified as the bargaining representative. The Company asserted that foremen were not “employees” entitled to the advantages of the Labor Act, and refused to bargain with the union. After hearing on charge of unfair labor practice, the Board issued the usual cease-and-desist order. The Company resisted and challenged validity of the order. The judgment of the court below decreed its enforcement, 157 F. 2d 80, and we granted certiorari. 329 U. S. 707. The issue of law as to the power of the National Labor Relations Board under the National Labor Relations Act is simple and our only function is to determine whether the order of the Board is authorized by the statute. The privileges and benefits of the Act are conferred upon employees, and § 2 (3) of the Act, so far as relevant, provides “The term 'employee’ shall include any employee . . . .” 49 Stat. 450. The point that these foremen are employees both in the most technical sense at common law as well as in common acceptance of the term, is too obvious to be labored. The Company, however, turns to the Act’s definition of employer, which it contends reads foremen out of the employee class and into the class of employers. Section 2 (2) reads: “The term 'employer’ includes any person acting in the interest of an employer, directly or indirectly . . . .” 49 Stat. 450. The context of the Act, we think, leaves no room for a construction of this section to deny the organizational privilege to employees because they act in the interest of an employer. Every employee, from the very fact of employment in the master’s business, is required to act in his interest. He owes to the employer faithful performance of service in his interest, the protection of the employer’s property in his custody or control, and all employees may, as to third parties, act in the interests of the employer to such an extent that he is liable for their wrongful acts. A familiar example would be that of a truck driver for whose negligence the Company might have to answer. The purpose of § 2 (2) seems obviously to render employers responsible in labor practices for acts of any persons performed in their interests. It is an adaptation of the ancient maxim of the common law, respondeat superior, by which a principal is made liable for the tortious acts of his agent and the master for the wrongful acts of his servants. Even without special statutory provision, the rule would apply to many relations. But Congress was creating a new class of wrongful acts to be known as unfair labor practices, and it could not be certain that the courts would apply the tort rule of respondeat superior to those derelictions. Even if it did, the problem of proof as applied to this kind of wrongs might easily be complicated by questions as to the scope of the actor’s authority and of variance between his apparent and his real authority. Hence, it was provided that in administering this act the employer, for its purposes, should be not merely the individual or corporation which was the employing entity, but also others, whether employee or not, who are “acting in the,interest of an employer.” Even those who act for the employer in some matters, including the service of standing between management and manual labor, still have interests of their own as employees. Though the foreman is the faithful representative of the employer in maintaining a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, hours, seniority rights or working conditions. He does not lose his right to serve himself in these respects because he serves his master in others. And we see no basis in this Act whatever for holding that foremen are forbidden the protection of the Act when they take collective action to protect their collective interests. The company’s argument is really addressed to the undesirability of permitting foremen to organize. It wants selfless representatives of its interest. It fears that if foremen combine to bargain advantages for themselves, they will sometimes be governed by interests of their own or of their fellow foremen, rather than by the company’s interest. There is nothing new in this argument. It is rooted in the misconception that because the employer has the right to wholehearted loyalty in the performance of the contract of employment, the employee does not have the right to protect his independent and adverse interest in the terms of the contract itself and the conditions of work. But the effect of the National Labor Relations Act is otherwise, and it is for Congress, not for us, to create exceptions or qualifications at odds with its plain terms. Moreover, the company concedes that foremen have a right to organize. What it denies is that the statute compels it to recognize the union. In other words, it wants to be free to fight the foremen’s union in the way that companies fought other unions before the Labor Act. But there is nothing in the Act which indicates that Congress intended to deny its benefits to foremen as employees, if they choose to believe that their interests as employees would be better served by organization than by individual competition. N. L. R. B. v. Skinner & Kennedy Stationery Co., 113 F. 2d 667; see N. L. R. B. v. Armour & Co., 154 F. 2d 570, 574. There is no more reason to conclude that the law prohibits foremen as a class from constituting an appropriate bargaining unit than there is for concluding that they are not within the Act at all. Section 9(b) of the Act confers upon the Board a broad discretion to determine appropriate units. It reads, “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” 49 Stat. 453. Our power of review also is circumscribed by the provision that findings of the Board as to the facts, if supported by evidence, shall be conclusive. § 10 (e), 49 Stat. 454. So we have power only to determine whether there is substantial evidence to support the Board, or its order oversteps the law. N. L. R. B. v. Link-Belt Co., 311 U. S. 584; Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146. There is clearly substantial evidence in support of the determination that foremen are an appropriate unit by themselves and there is equal evidence that, while the foremen included in this unit have different degrees of responsibility and work at different levels of authority, they have such a common relationship to the enterprise and to other levels of workmen that inclusion of all such grades of foremen in a single unit is appropriate. Hence the order insofar as it depends on facts is beyond our power of review. The issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed. While we do not say that a determination of a unit of representation cannot be so unreasonable and arbitrary as to exceed the Board’s power, we are clear that the decision in question does not do so. That settled, our power is at an end. We are invited to make a lengthy examination of views expressed in Congress while this and later legislation was pending to show that exclusion of foremen was intended. There is, however, no ambiguity in this Act to be clarified by resort to legislative history, either of the Act itself or of subsequent legislative proposals which failed to become law. Counsel also would persuade us to make a contrary interpretation by citing a long record of inaction, vacillation and division of the National Labor Relations Board in applying this Act to foremen. If we were obliged to depend upon administrative interpretation for light in finding the meaning of the statute, the inconsistency of the Board’s decisions would leave us in the dark. But there are difficult questions of policy involved in these cases which, together with changes in Board membership, account for the contradictory views that characterize their history in the Board. Whatever special questions there are in determining the appropriate bargaining unit for foremen are for the Board, and the history of the issue in the Board shows the difficulty of the problem committed to its discretion. We are not at liberty to be governed by those policy considerations in deciding the naked question of law whether the Board is now, in this case, acting within the terms of the statute. It is also urged upon us most seriously that unionization of foremen is from many points bad industrial policy, that it puts the union foreman in the position of serving two masters, divides his loyalty and makes generally for bad relations between management and labor. However we might appraise the force of these arguments as a policy matter, we are not authorized to base decision of a question of law upon them. They concern the wisdom of the legislation; they cannot alter the meaning of otherwise plain provisions. The judgment of enforcement is Affirmed. 61 N. L. R. B. 4, 26. If a union of vice presidents, presidents or others of like relationship to a corporation comes here claiming rights under this Act, it will be time enough then to point out the obvious and relevant differences between the 1,100 foremen of this company and corporate officers elected by the board of directors. The Board had held that supervisory employees may organize in an independent union, Union Collieries Coal Co., 41 N. L. R. B. 961, 44 N. L. R. B. 165; and in an affiliated union, Godchaux Sugars, Inc., 44 N. L. R. B. 874. Then it held that there was no unit appropriate to the organization of supervisory employees. Maryland Drydock Co., 49 N. L. R. B. 733; Boeing Aircraft Co., 51 N. L. R. B. 67; Murray Corp. of America, 51 N. L. R. B. 94; General Motors Corp., 51 N. L. R. B. 457. In this case, 61 N. L. R. B. 4, 64 N. L. R. B. 1212; in L. A. Young Spring & Wire Corp., 65 N. L. R. B. 298; Jones & Laughlin Steel Corp., 66 N. L. R. B. 386, 71 N. L. R. B. 1261; and in California Packing Corp., 66 N. L. R. B. 1461, the Board re-embraced its earlier conclusions with the same progressive boldness it had shown in the Union Collieries and Godchaux Sugars cases. In none of this series of cases did the Board hold that supervisors were not employees. See Soss Manufacturing Co., 56 N. L. R. B. 348.

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?

FEDERAL LAND BANK OF WICHITA v. BOARD OF COUNTY COMMISSIONERS OF KIOWA COUNTY, KANSAS, et al. No. 25. Argued October 16, 1961. Decided December 11, 1961. J. William Doolittle argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, I. Henry Kutz, Paul 0. Ritter, William G. Plested, Jr. and Edward H. Jamison. Robert C. Londerholm, Special Assistant Attorney General of Kansas, argued the cause for respondents. With him on the briefs were William M. Ferguson, Attorney General, and A. K. Stavely, Assistant Attorney General. MR. Chief Justice Warren delivered the opinion of the Court. A political subdivision of a State has levied a personal property tax on a federal instrumentality despite a claim of immunity by virtue of a federal statute. Petitioner, the Federal Land Bank of Wichita, acquired a mortgage on realty in Kiowa County, Kansas, in the course of its business as a federal instrumentality duly organized under the Federal Farm Loan Act. Upon default, foreclosure, purchase at a sheriff’s sale, and confirmation, petitioner became the owner of the land. Subsequently the land was conveyed to a third party, the deed reserving an undivided one-half interest in the mineral estate. By the time of this conveyance petitioner had recovered the entire loss occasioned by the default on the mortgage. Petitioner executed an oil and gas lease on the reserved mineral estate, and the discovery of a gas pool in the area ultimately led to the payment of royalties. A Kansas statute declared that oil and gas leases and the royalties derived therefrom were personal property and were subject to taxation by the counties. Pursuant to this statute, Kiowa County levied a personal property tax on petitioner’s interest in the oil and gas lease and on the royalties for the year 1967. By the time the tax was levied, petitioner had owned the mineral estate some 14 years. The statute which authorized federal land banks to acquire mortgaged lands limited the period of ownership to five years unless special permission could be obtained from the Farm Credit Administration. That agency had promulgated a regulation granting blanket permission to all land banks to hold mineral rights longer than five years. Petitioner sought an injunction against collection of the personal property tax in the state court, claiming an exemption under 12 U. S. C. § 931, which provides, in part, that federal land banks “shall be exempt from . . . State, municipal, and local taxation, except taxes upon real estate held . . . under the provisions of [section] . . . 781.” The injunction was denied. On appeal, the Supreme Court of Kansas affirmed, holding that Congress did not intend § 931 to exempt this personal property from taxation because the mineral estate was being held longer than the express time limit established by Congress and because the holding of the mineral estate after the loss had been recouped did not serve the governmental function assigned to the Federal Land Bank. The Court also held that no immunity could be implied. Certiorari was granted in order to determine whether the State had exacted a tax forbidden by the Supremacy Clause of the Constitution. 365 U. S. 841. The Supreme Court of Kansas correctly concedes that a federal instrumentality is not subject to the plenary power of the States to tax, that the Congress has the power to determine, within the limits of the Constitution, the extent that its instrumentalities shall enjoy immunity from state taxation, that the federal land bank is a constitutionally created federal instrumentality, and that Congress has immunized it from personal property taxes on activities in furtherance of its lending functions. The controversy arises over the holding by the Supreme Court of Kansas on alternative grounds that Congress did not intend § 931 to apply to oil and gas leases in the circumstances of this case. I. The Court found that the retention of the mineral estate by the petitioner after the loss incurred upon the default on the mortgage had been recovered did not serve the governmental function assigned to the land bank and, as Congress intended immunity to apply only to protect this function, § 931 did not apply here. The Court did not define the type of function that petitioner did perform. Legitimate activities of governments are sometimes classified as "governmental” or “proprietary”; however, our decisions have made it clear that the Federal Government performs no “proprietary” functions. If the enabling Act is constitutional and if the instrumentality’s activity is within the authority granted by the Act, a governmental function is being performed. Since the Act establishing the federal land banks has been held to be constitutional, Smith v. Kansas City Title Co., 255 U. S. 180, we need only to determine whether the challenged ownership comes within the purview of the statute. The purpose of the Federal Farm Loan Act and its subsequent amendments was to provide loans for agricultural purposes at the lowest possible interest rates. One method of keeping the interest rate low was to authorize the federal land bank to make a profit to be distributed to the shareholders in the form of dividends. Because the associations of farmer-borrowers were required by law to be shareholders, the distribution of dividends effectively reduced the interest rates. This profit could be earned in two ways: interest from the loans on mortgaged lands and gains on the sale of lands acquired under the provisions of § 781 Fourth. The Kansas Court construes § 781 Fourth (b) to grant the limited power to sell land acquired in satisfaction of a debt only to recoup the loss incurred upon the default. We find no such limitation expressed or implied. The loans on the mortgages are limited to a percentage of the current value of the lands that is considerably less than full value, but there is no limit on the amount of the sale price. The banks are therefore authorized to sell lands acquired after default at the best possible price, absorbing the losses in the reserve accounts and distributing the profits in dividends. It follows that the land banks are not restricted to a sale price merely sufficient to recoup any losses. The retention of a mineral interest might well be a method of increasing the recovery from lands acquired through mortgage defaults. Consequently, we find that the holding of the mineral estate involved here is in furtherance of the bank’s governmental function. II. The alternative ground relied upon by the Supreme Court of Kansas for concluding that Congress did not intend to confer immunity here relates to the asserted illegality of petitioner’s ownership of the mineral estate. Section 781 Fourth (b) limits the time that a federal land bank may own realty acquired after default on the mortgage to five years unless special permission can be obtained from the Farm Credit Administration. Mineral estates are realty under the state law, and at the time of the tax levy petitioner had owned the mineral estate longer than five years, relying upon the following regulation promulgated by the Farm Credit Administration to supply the requisite special permission: “Holding mineral rights for more than 5 years. In cases where, in connection with a sale of bank-owned real estate, the bank has retained royalty or other rights in or to minerals, and desires to hold such rights for a period in excess of 5 years, it is not considered that the bank has both ‘title and possession’ of real estate within the meaning of section 13 Fourth (b) of the Federal Farm Loan Act (12 U. S. C. 781 Fourth (b)). However, retention of such minerals and mineral rights for periods in excess of 5 years, when in the bank’s opinion it is in the bank’s interest to do so, has the approval of the Administration.” Although the reasons are not altogether clear, the Court found this special permission invalid, concluding that petitioner is, therefore, owning the land without authority. First, the Court found “much to be said” for the trial court’s holding that the regulation was not effective because the Farm Credit Administration could not delegate the power to determine when mineral interests might be retained longer than five years to the federal land banks, so that no “special permission” had been given. Assuming that this is a holding by the highest state court, we are of the opinion that no delegation problem has been presented. Analytically, the power given to the Farm Credit Administration by § 781 Fourth (b) is a licensing power, not a rule-making, an adjudicating, or an investigating power. The regulation states that federal land banks have permission to retain mineral interests longer than five years. This is an exercise of the power to license, not a delegation of it. The second ground for invalidating the permission given by the Farm Credit Administration was that permission could not be given unless the holding of the land was necessary to recoup the loss on the defaulted mortgage. As we have indicated, the holding of a mineral estate after the bank has recouped its loss is within the authority granted by Congress, and thus the Administration had the power to grant this permission. While the court below did challenge the power of the Farm Credit Administration to give the permission required by §781 Fourth (b), it did not challenge the interpretation placed on that statute when blanket permission was given. The Administration interpreted § 781 Fourth (b) to exclude mineral estates. We, therefore, are not required to review that interpretation or to examine the jurisdiction, if any, of a state court to review the statutory construction made by a federal administrative agency in a collateral attack on the issuance of a license. While it is not necessary to this decision, it is at least of interest that there have been efforts in successive sessions of Congress to amend the Act to accomplish the result achieved by the Supreme Court of Kansas and that these efforts have failed. The extent of the mineral estates owned by federal land banks is considerable: petitioner owns an interest in approximately 283,000 acres; all land banks own an interest in 9,900,000 acres. III. Since there are no infirmities in the holding of the mineral estate by the petitioner, there is no basis for implying that Congress did not intend § 931 to provide immunity in this case. As an express immunity has been conferred, there is no need to consider whether the doctrine of implied immunity applies. We conclude that the state personal property tax imposed on petitioner’s oil and gas lease and upon the royalties derived therefrom must fall as being unconstitutional by virtue of the Supremacy Clause of the Constitution. Reversed. Mr. Justice Black concurs in the result. The Act of July 17, 1916, 39 Stat. 360, as amended, currently codified at 12 U. S. C. § 641 et seq. General Statutes of Kansas, 1949, §§ 79-329 to 79-334. Section 79-329 reads as follows: “Oil and gas property as personalty. That for the purpose of valuation and taxation, all oil and gas leases and all oil and gas wells, producing or capable of producing oil or gas in paying quantities, together with all easing, tubing or other material therein, and all other equipment and material used in operating the oil or gas wells are hereby declared to be personal property and shall be assessed and taxed as such.” “Fourth. Acquiring and disposing of property. — To acquire and dispose of— “ (a) Such property, real or personal, as may be necessary or convenient for the transaction of its business, which, however, may be in part leased to others for revenue purposes. “(b) Parcels of land acquired in satisfaction of debts or purchased at sales under judgments, decrees, or mortgages held by it. But no such bank shall hold title and possession of any real estate purchased or acquired to secure any debt due to it, for a longer period than five years, except with the special approval of the Farm Credit Administration in writing.” 12 U. S. C. § 781 Fourth, 39 Stat. 372, § 13. 6 CFR § 10.64. See text p. 153, infra. “Every Federal land bank . . . including the capital and reserve or surplus therein and the income derived therefrom, shall be exempt from Federal, State, municipal, and local taxation, except taxes upon real estate held, purchased, or taken by said bank . . . under the provisions of [section] . . . 781 of this title. . . .” See note 3, supra. 187 Kan. 148, 354 P. 2d 679. Article VI, cl. 2. McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of the United States, 9 Wheat. 738. Carson v. Roane-Anderson Co., 342 U. S. 232; Cleveland v. United States, 323 U. S. 329; Maricopa County v. Valley National Bank, 318 U. S. 357; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95; Pittman v. Home Owners’ Loan Corp., 308 U. S. 21; Graves v. New York ex rel. O’Keefe, 306 U. S. 466; Des Moines National Bank v. Fairweather, 263 U. S. 103; First National Bank v. Adams, 258 U. S. 362; Owensboro National Bank v. Owensboro, 173 U. S. 664. Smith v. Kansas City Title Co., 255 U. S. 180. Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95. See also Federal Land Bank v. Crosland, 261 U. S. 374. Cf. Federal Land Bank v. Priddy, 295 U. S. 229. Oil and gas leases are personal property under the law of Kansas, a characterization accepted by the Court and all parties below. We do not need to consider the situation when oil and gas leases are characterized as real property under state law. See, e. g., Stokely v. State, 149 Miss. 435, 115 So. 563; Terry v. Humphreys, 27 N. M. 564, 203 P. 539; Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 290. Other jurisdictions classify oil and gas leases as profits á prendre or incorporeal interests. See generally 1A Summers, Oil & Gas, §§ 151-170. Cf. Concepts of the nature of mineral interests discussed in footnote 21, infra. These general terms serve as a basis for determining, inter alia, whether the doctrine of sovereign immunity protects a municipality from liability for a tort committed by one of its servants, see, e. g., Dallas v. City of St. Louis, 338 S. W. 2d 39 (Mo.); Clark v. Scheld, 253 N. C. 732, 117 S. E. 2d 838; Osborn v. City of Akron, 171 Ohio St. 361, 171 N. E. 2d 492; Wade v. Salt Lake City, 10 Utah 2d 374, 353 P. 2d 914; Francke v. City of West Bend, 12 Wis. 2d 574, 107 N. W. 2d 500; 18 McQuillin, Municipal Corporations, §§ 53.01, 53.23, 53.24 (3d ed. 1950). But cf. New Fork v. United States, 326 U. S. 572. “The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. ... It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental [citing cases].” Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95, 102. See Pittman v. Home Owners’ Loan Corp., 308 U. S. 21, 32; Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 477. S. Rep. No. 144, 64th Cong., 1st Sess. 1, 2, 4, 7-9; H. R. Rep. No. 630, 64th Cong., 1st Sess. 4, 5; H. Doc. No. 494, 64th Cong., 1st Sess., 8; 53 Cong. Rec. 6696, 7021, 7023, 7024. Nothing in the subsequent amendments has been called to our attention which modifies this purpose. See Faulkner, American Economic History, 388-390 (6th ed. 1949); Bogart and Kemmerer, Economic History of the American People, 698 (1944). Federal Land Bank v. Priddy, 295 U. S. 229, 233. The Act of July 17, 1916, 39 Stat. 360, §23, now 12 U. S. C. §901 et seq.; S. Rep. No. 144, 64th Cong., 1st Sess. 5. H. R. Rep. No. 630, 64th Cong., 1st Sess. 10. Persons engaged in agriculture are the only class authorized to borrow from the federal land banks. To obtain a loan, application is made for membership in an association comprised solely of other borrowers. The prospective borrower is required to subscribe to stock in the association in proportion to the loan he desires to obtain. The association approaches the federal land bank, obtains the loan, and subscribes to stock in the federal land bank in proportion to the loan. See 12 U. S. C. §§ 721, 733. Cf. 12 U. S. C. § 723. See note 3, supra. 12 U. S. C. § 901. We take this statement from the opinion below. We note that petitioner has paid real estate taxes on the mineral estate. Mineral interests receive varying characterizations among the States. Some jurisdictions recognize a . horizontal severance of the freehold into surface and mineral estates; others treat the mineral interests as incorporeal hereditaments. Compare Ohio Oil Co. v. Indiana, 177 U. S. 190, with Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 166, 254 S. W. 290, 291. Cf. Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899. See Masterson, A 1952 Survey of Basic Oil and Gas Law, 6 Sw. L. J. 1; Walker, Fee Simple Ownership of Oil and Gas in Texas, 6 Tex. L. Rev. 125. 6 CFR § 10.64. “The word ‘license,’ means permission, or authority; and a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license.” Gibbons v. Ogden, 9 Wheat. 1, 213-214; see, e. g., Sinnot v. Davenport, 22 How. 227, 240; Southern Pac. R. Co. v. Olympian Dredging Co., 260 U. S. 205; Pan-Atlantic S. S. Corp. v. Atlantic C. L. R. Co., 353 U. S. 436; Administrative Procedure Act, § 2 (e), 5 U. S. C. § 1001 (e). 6 CFR § 10.64 quoted in text at p. 153, supra. See, e. g., Skidmore v. Swift & Co., 323 U. S. 134, 139-140; Unemployment Comp. Comm’n v. Aragon, 329 U. S. 143, 153; Administrative Procedure Act, § 10 (e), 5 U. S. C. § 1009 (e); see also, e. g, Witherspoon, Administrative Discretion to Determine Statutory Meaning: “The High Road,” 35 Tex. L. Rev. 63; ibid., “The Low Road,” 38 Tex. L. Rev. 392, 572; Nathanson, Administrative Discretion in the Interpretation of Statutes, 3 Vand. L. Rev. 470. See H. R. 9290, 76th Cong., 3d Sess.; H. R. 667, 79th Cong., 1st Sess.; H. R. 583, 80th Cong., 1st Sess. See also H. R. 1721 and H. R. 2358, 80th Cong., 1st Sess.; H. R. 1264, 81st Cong., 1st Sess.; S. 2904, 82d Cong., 2d Sess., and H. R. 428, 82d Cong., 1st Sess.; S. 75, H. R. 102 and H. R. 1313, 83d Cong., 1st Sess.; S. 538, 84th Cong., 1st Sess. Petition for writ of certiorari, pp. 8, 9.

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PUBLICKER INDUSTRIES, INC. and Continental Distilling Corporation v. ROMAN CERAMICS CORPORATION, Publicker Industries, Inc., Appellant. No. 80-2378. United States Court of Appeals, Third Circuit. Argued Feb. 24, 1981. Decided June 26, 1981. Harold Cramer, Anthony E. Creato (argued), Jeffrey Cooper, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for appellant. Thomas P. Preston (argued), Duane Morris & Hecksher, Philadelphia, Pa., Meyer J. Myer, Myer, New, Berlin & Braude, Chicago, 111., for appellee. Before ADAMS, ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. This contract action presents the question whether the seller, Roman Ceramics Corporation, must seek breach-of-contract relief from Continental Distilling Corporation, with whom Roman shares a common state of incorporation, or whether, on the contrary, Roman is entitled to full relief from Publicker Industries, Inc., a party whose citizenship is diverse from Roman’s. If the former route is necessary, the case must be dismissed for lack of subject matter jurisdiction. If, on the other hand, the latter course is permissible, then the case is properly before the federal courts under 28 U.S.C. § 1332 (1976), and we must address the further question whether the district court awarded Roman the proper measure of damages. Except for a slight modification in the amount of damages awarded, we affirm the judgment of the district court. Our inquiry must proceed within the confines of our decision in a prior appeal of this same case. See Publicker Industries, Inc. v. Roman Ceramics Corp., 603 F.2d 1065 (3d Cir. 1979). Because the factual background of this case is set out there in some detail, we recount the facts in abbreviated form. In January 1976 Roman, negotiating with individuals who were officials of both Continental and its parent, Publicker, agreed to sell them 40,000 ceramic “liberty bells.” In return Roman was to receive $2.50 per bell. By September, Roman had become unhappy with the buyers’ failure to move ahead with the transaction, and failure to provide shipping instructions to deliver the bells. Publicker thereupon entered into settlement negotiations with Roman and paid Roman $40,000 to be applied on account of settlement of the January deal. Some time afterward, however, Publicker called the settlement off and, together with Continental, brought this diversity suit against Roman in federal district court for restitution of the $40,000. Roman counterclaimed for the unpaid balance of the January purchase price. Continental was ultimately dismissed from the suit due to its and Roman’s common Delaware citizenship. The district court then entered judgment against Publicker. I. We begin with the liability question. The seeds of furor over this issue were sown by the district court’s brief recitation of the theory upon which it originally held Pub-licker liable on the contract: I will note for the record that thus far I have spoken of the plaintiffs [Publicker and Continental] interchangeably, and I did that deliberately. I rule that on the present record there is no basis for distinguishing between the two. There is nothing in the record to show that they are indeed separate entities, that they are not alter egos for each other. Because of the way they worked interchangeably throughout this transaction, I treat them as one in the same; and the finding on the counterclaim is against both plaintiffs. On appeal to this court we noted that there was no evidence to support application of the traditional alter ego theory to pierce the corporate veil. 603 F.2d at 1069-70. However, we went on to acknowledge that a legal framework for imposition of liability upon Publicker might be provided by the principles of agency, in that it might be concluded that Publicker and Continental created mutual agencies in one another with respect to their dealings with Roman.... Under the agency theory, ... it could be argued that Continental, acting both on its own behalf and under apparent authority from Publicker, bound Publicker as well as itself to the January contract with Roman. Id. at 1070. However, because the district court made no findings under an agency theory and because we could not discern any other ground upon which an alter ego theory could be made applicable to this suit, we remanded “to allow the trial judge to make the necessary findings and to explain the legal underpinnings of his determination.” Id. at 1071. Upon remand the parties presented additional evidence to support their theories on the proper scope of Publicker’s liability under principles of agency. In light of the additional evidence, the district court resolved the liability question in Roman’s favor. It found that the principal actors for the buyer in the transaction were acting as officers, employees, and agents of Publicker rather than Continental. In support of this conclusion, the district court noted that the letters from the various buyer representatives comprising exhibit D-8 were designed to give the reader “the clear impression that Publicker Industries was the main force in this situation.” Secondly, the court noted that when Roman demanded some sort of action in response to buyer’s nonperformance of the January agreement, it was Publicker that initially shouldered the burden of setting things straight. “[I]f Pub-licker didn’t have an interest in this transaction it doesn’t make any sense at all in this abortive attempt to settle the transaction.” The court then suggested that Publicker’s interest in the transaction encompassed the entire scope of the relief sought by Roman — the expectation that Roman was seeking to protect in this suit was identical, in economic impact, to the expectation that Publicker had admittedly created in the aborted settlement attempt. Finally, Judge Fullam noted that the original complaint filed by Publicker and Continental for recovery of the $40,000 had expressly alleged that it was Publicker that had agreed to buy the defective bottles, and that had paid the $40,000 on account of the settlement. The complaint also, he noted, had alleged that “Publicker and/or Continental were and are selling Liberty Bells.” The judge further observed that plaintiff’s pre-trial memorandum of July 13,1977 set forth that on two occasions, both plaintiffs agreed to buy the defective bottles. Based on these facts, the court concluded that “it was Publicker which was the moving force throughout.” It therefore held that Publicker was directly liable under the contract, rendering it unnecessary “to go into the question of agency.” Alternatively, however, the court noted that “at the very least” Publicker was acting as agent for its subsidiary, Continental, “that it had an interest in the transaction and that therefore [it] is liable as principal.” Pub-licker appealed, chiefly on the ground, it seems, that if Continental could have been held liable under the contract (and we tend to believe that it could have), this would perforce exclude liability by Publicker. The question to be decided now is not whether Continental could have been sued on a contract for the purchase of 40,000 liberty bells from Roman. Rather, the question is whether Publicker is liable under such an agreement, either solely or jointly. Although the direct method of inquiry would be to ask whether Publicker was a party to “the contract” (notwithstanding the absence of its name on some of the documents that passed between the parties), we recognized on the earlier appeal that Publicker’s contract liability could be deduced as a matter of law from the existence of a putative principal-agent relation between Publicker and Continental. Under such a theory, the sort of findings ordinarily bearing directly on the contract question might have been rendered unnecessary in part. In their stead, the district court could have made findings upon which to predicate a holding that Continental executed the contract for the bells as agent for Publicker. From such a holding, Publicker’s liability would have followed as a matter of law. In addition, a further finding that Continental was not liable would not have been inconsistent with such a finding of Publicker’s liability. “Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.” Restatement (Second) of Agency [Restatement] § 320. See generally Viso v. Werner, 471 Pa. 42, 369 A.2d 1185 (1977); Vernon D. Cox & Co. v. Giles, 267 Pa. Super. 411, 406 A.2d 1107 (1979). However, the additional findings of the district court revealed that Publicker’s liability was not to be neatly confined to such a theory. Thus, through the findings developed upon remand, the district court resumed ab initio the liability inquiry, bypassing the agency theory as an automatic basis for holding Publicker liable. Before us now is solely the question whether the district court’s findings support its conclusion that Publicker bore direct liability on the January contract. Even assuming that for some purposes Publicker is to be characterized as Continental’s agent, the opening proviso to Restatement § 320 leads us to reject application of Publicker’s “either-or” theory of contract liability. Therefore, we cannot agree with Publicker when it argues that its exclusion from any direct contractual undertaking is the “law of the case.” Obviously, an explicit written statement signed expressly on behalf of Publicker would have made the case simple. However, evidence of a more circumstantial nature is also legally sufficient to establish liability. Stripped of the contention that Continental’s admitted liability negates Publicker’s liability, we believe that Publicker’s argument reduces to a mere disagreement with the district court’s factual determinations. Although it is true that findings of ultimate, rather than evidentiary, facts are reviewable free of the clearly erroneous rule, Publicker has invoked no authority, and we have discovered none, that would indicate that the district court applied an erroneous legal analysis in arriving at its ultimate conclusion. We find ourselves in agreement with the district court that Publicker’s entire course of conduct throughout the negotiation, renegotiation, and partial performance of the aborted transaction manifested Publicker’s agreement to bear direct liability in the anticipated sale. Therefore we affirm the district court’s holding that Publicker is liable upon its own direct commitment under the contract. II. We turn to the issue of damages. At the conclusion of the first trial the district court awarded Roman $2.50 per bottle, less offsetting sums received by Roman from Publicker and the outside party purchasers. On the first appeal, we concluded that the district court had apparently awarded Roman recovery of the price under U.C.C. § 2-709. However, we noted that the district court’s failure to decide whether Roman was unable to resell the bottles at a reasonable price rendered a damage award under section 2-709 unsupportable. In addition, we noted that the findings were similarly inadequate to support recovery under U.C.C. § 2-708(1) of the difference between the contract price and the market price. Therefore, we directed that if on remand the district court were to determine that Publicker was liable, then it should make findings necessary “to support the calculation of damages under the appropriate provision of the Uniform Commercial Code.” 603 F.2d at 1073. At the hearing on remand, Harold Roman testified that after offering the bells to several potential buyers, he received an offer of 40 cents per bell for all 40,000. Pub-licker, on the other hand, presented a witness who had conducted inventory audits of Roman’s warehouses in 1979 and 1980, and who testified that at that time Roman did not, apparently, possess 40,000 bells and tops in finished form. Publicker also presented witnesses who testified to sales of bells at prices between $1.00 and $3.50 per bell. Based on this evidence, the district court chose to award damages under Pa. Stat. Ann. tit. 12A, § 2-708. It found that the contract price was $2.50 per bottle, that the market price on the date of the breach was 40 cents, “and therefore that damages should be calculated on the basis of $2.10 per bottle.” The court then calculated a total award of $84,000 of which $40,000 had already been paid, leaving a balance of $44,-000 plus interest. Publicker now contends that the damage award (1) is calculated on the basis of an unduly low market price, (2) is calculated on the basis of an unduly high number of bells to be purchased under the contract, and (3) fails to account for expenses saved as a result of the breach. Initially, we must reject Publicker’s contention as to market price. The evidence on this issue was conflicting, but the most probative evidence of “the market price at the time and place for tender” was clearly Roman’s. Publicker’s witnesses produced evidence of transactions only long after the time for tender, and for quantities vastly smaller than 40,000. Moreover, it was not even clear whether the buyers in these transactions knew that the bells were defective. Secondly, we must reject Publicker’s contention that the contract was limited to the sale of only those bells for which tops were available at the time of Publicker’s audit of Roman’s inventory. The district court found an agreement to purchase 40,000 bells. Publicker introduced no evidence of a contrary agreement, but only a lesser number of bell tops in inventory in 1980. We fail to see the relevance of Roman’s apparent short-fall in tops several years after the transaction was to take place, except as indicating perhaps a saved expense. This brings us to Publicker’s most serious contention, namely that the district court failed to give any credit for expenses saved. The district court heard conflicting evidence on this issue but concluded only that it was uncertain “concerning the identification of these bottles with the contract” and uncertain “as to whether it would have cost more than 40 cents per [bell] to resell them.” It is clear, however, that the 1,200 bells sold earlier by Roman to an outside party for $3,250 were identified to the contract. Such a finding was made at the end of the first trial, and was not challenged on remand. Furthermore, Roman’s right to sell any bells outside the sale to Publicker was a matter governed by the contract between Roman and Publicker. Therefore we have no difficulty holding, consistently with the opinions rendered in the first round of this litigation, that the outside sale constituted a gain made possible only by the buyer’s breach, rather than a separate, unrelated sale comparable to that of a “lost volume” seller. As a result, we will not uphold that portion of the damage award that, in effect, compensates Roman doubly for the 1,200 sold bottles. On the other hand, Publicker would also have us award it credit for the expenses supposedly saved by Roman’s failure to conform all 40,000 bells to the contract. The district court specifically refused to make findings on this issue, saying only that it was “uncertain” as to the existence of any expenses saved. However, it was settled at the end of the first trial that (a) Roman was ready, willing and able to ship over 50,000 bells upon instructions from Publicker, and (b) that Publicker gave Roman no clue as to the “finishing touches” it wished Roman to apply to the bottles. Thus, Publicker’s present argument relating to expenses saved seems to us to be an attempt to exercise an option that it may once have held, but that it chose to forego. True, the district court had no doubt that, even in light of Publicker’s failure to give additional instructions, Roman could not now perform its end of the bargain without incurring additional costs. However, we cannot tell whether the court saw Roman’s problem as one of antiquing the bells, of manufacturing more tops, or of packing the bells in shipping cases. We must reject the notion that Roman would have been obliged to antique the bells, because Publicker never made it clear whether such antiquing was necessary. As to the tops, we see no evidence in the record that sufficient tops were not in Roman’s possession in 1976, or what their cost would have been had Roman been obliged to make them. In other words, the district court made no findings as to how much additional expense would have been incurred by Roman had it completed all work on the bells in 1976. The uncertainty on this issue was engendered by Publicker’s dilatory and erratic course of conduct. Therefore, we believe that it would be unfair, at this stage, to saddle Roman with the burden of quantifying the wholly speculative amount of expense saved in 1976. We conclude that the district court’s damage award represents a considered determination that this element of the expense saved, if indeed it was saved, was too speculative, and most likely too insignificant, to enter into the damage award. Given the unusual circumstances presented by this litigation, we will not disturb that determination. Finally, there was conflicting evidence on the packing expenses allegedly saved by Roman. Harold Roman testified that it would have been unreasonable to accept the outside offer of 40 cents per bell for all 40.000 bells because 40 cents would not even cover his packing costs. Publicker’s counsel claimed by way of rebuttal that at least 23.000 bells had already been packed at the time of the 1980 inventory audit, thus relieving Roman of such expense upon resale. In reality, it was necessary for Roman to pack the bottles for storage during the five year period in which this dispute has ground along. Viewing the evidence under the “clearly erroneous” standard, we see no reason to believe that Roman incurred less cost in packing the bells for storage than in packing the bells for shipment to Publicker. On the contrary, we are satisfied that the district court’s damage award is supportable (outside of its failure to credit Publicker for the $3,259 received! by Roman in outside sales, plus interest for the appropriate period) notwithstanding its failure to deduct the wholly speculative elements of finishing and packing charges now asserted by Publicker. III. Having decided to affirm the judgment of the district court in substantially all respects, we must address Roman’s request for damages under Fed.R.App.P. 38. At the first trial, the district court concluded that Publicker’s entire course of dealing between January 1976 and the time of the first trial evinced a carefully conceived but not very subtle plan to stick Roman Ceramics Corporation with a lot of liberty bell bottles which the plaintiffs agreed to take and later reneged on. ... They wanted to leave the defendant, Roman Ceramics Corporation, stuck with these bottles until so late in the Bicentennial year that they would not be able to dispose of them at decent prices elsewhere and then hoped to limit their exposure to a very modest sum in order to protect their sales of their $20 whiskey bottles. ... [E]ven having done that at $2.50 per bottle, they didn’t pay hoping that they would be able to get the defendant in a position where the price would be worked out still lower. The history of this litigation and this additional appeal also raise serious questions whether Publicker was motivated by chances of success or by a desire to draw out the proceedings as long as possible. On the issue of Publicker’s liability, the district court noted after the second trial that reviewing the record as a whole, one is left with the distinct impression that this is a case of button-button, who has got the button or which pod has the pea under it insofar as the corporate set-up as between Publicker and Continental.!! Moreover, Publicker provided neither this court nor the district court with any substantial legal arguments to justify the positions taken on this appeal, nor with any probative factual data upon which to upset the district court’s damage award, perhaps the most vulnerable aspect of the award and the only one as to which we believed Publicker might have had a colorable claim. We recognize that in reducing the judgment against Publicker by over $3000, it is apparent that not all aspects of its appeal were, strictly speaking, without merit. However, we note that Publicker apparently did not request the modification that we now make when it submitted its proposed order to the district court; and we have now entertained Publicker’s dilatory claim for relief on this issue only because the issue was so fully and clearly disposed of in the first round of litigation. Therefore, it may be fairly argued that the “full record reveals little real excuse for this second appeal.” United States ex rel. Soda v. Montgomery, 269 F.2d 752, 755 (3d Cir. 1959). We are left with the lingering suspicion that Publicker may have deliberately delayed the payment of the money owed under the judgment because of the differential between the legal rate of interest and the interest that may be earned in the money market or elsewhere. However, given the uncertainties expressed by the district court with respect to credits claimed by Publicker, and given the divergence between the theories set forth in the earlier proceedings and the theory ultimately adopted by the district court, we will deny Roman’s claim for damages under Rule 38. IV. The decision of the district court will be affirmed, except insofar as it fails to credit Publicker for the $3,259 received by Roman in outside sales of liberty bells, plus the interest on that sum for the appropriate period. Costs taxed against appellant. . The 40,000 bells to which we refer were “defective” in the sense that although they were originally designed to serve as whiskey bottles, they leaked. Roman had previously shipped Continental 200,000 sound liberty bell-bottles, of the same design, for which Roman has yet to receive $9,864.30 in payment. See n.13 infra. . Roman had already sold some 1,200 bells to outside parties for $3,259. The propriety of those sales was adjudicated on the first appeal and is not in issue here. See 603 F.2d at 1071-72. . Perhaps because the case had proceeded to trial and the merits had been decided before Continental had been dismissed from the case, the parties and the district court had not paid the same attention to theories of Publicker’s individual liability as they had to Roman’s entitlement to recovery against at least one of the two putative “buyers,” Publicker and Continental. . The court reached this conclusion notwithstanding its finding that Publicker had given instructions to prepare “the actual contract documents to the extent that there were contract documents, namely the invoices and shipping instructions and so forth,” to Continental, and that “Continental issued the checks in the payment of the good bottles which were delivered.” . See, e. g., Restatement (Second) of Agency (1958) [hereinafter cited as Restatement]: § 149. Written Contracts Not Containing Principal’s Name A disclosed or partially disclosed principal is subject to liability upon an authorized contract in writing, if not negotiable or sealed, although it purports to be the contract of the agent, unless the principal is excluded as a party by the terms of the instrument or by the agreement of the parties. * * $ * * § 159. Apparent Authority A disclosed or partially disclosed principal is subject to liability upon contracts made by an agent acting within his apparent authority if made in proper form and with the understanding that the apparent principal is a party. The rules as to the liability of a principal for authorized acts, are applicable to unauthorized acts which are apparently authorized. . Due to the parties’ failure to raise any conflict of laws question, we apply the substantive law of the forum (Pennsylvania) on the liability issue as well as the damages issue. See, e. g., Montgomery Ward & Co. v. Pacific Indem. Co., 557 F.2d 51, 58 n.11 (3d Cir. 1977). . That is not to say that the evidence adduced on remand was insufficient to support a finding that Publicker created “apparent authority” in Continental to act as its agent in purchasing the bells from Roman. Other courts have noted, when faced with claims that a subsidiary acted as its parent’s agent, that “agency control may be easier to establish when a parent-subsidiary relationship is involved.” Beary v. Norton-Simon, Inc., 479 F.Supp. 812, 815 (W.D. Pa. 1979) (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 419 (9th Cir. 1977)). Furthermore, they have apparently applied this principle independently of the separate inquiry whether to pierce the corporate veil under the “alter ego” theory of corporate ownership. 556 F.2d at 420 n.13. However, it seems that the district court simply found it unnecessary to make findings relating to Continental’s “apparent authority.” . Publicker does not contend that the district court’s findings of fact were “clearly erroneous.” . Accord, Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 492 (5th Cir. 1974); B & M Homes, Inc. v. Hogan, 376 So.2d 667, 676 (Ala. 1979); Russello v. Mori, 153 Cal.App.2d 828, 315 P.2d 343, 346 (1957); Thilman & Co. v. Esposito, 87 Ill.App.3d 289, 42 Ill.Dec. 305, 408 N.E.2d 1014, 1020 (1980); Clark Advertising Agency, Inc. v. Avco Broadcasting Corp., 383 N.E.2d 353, 355 & n.2 (lnd.App.1978); Looman Realty Corp. v. Broad St. Nat’l Bank, 32 N.J. 461, 161 A.2d 247, 255 (1960); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237, 239 (App.Div.1970); Simmons v. Cherry, 43 N.C.App. 499, 259 S.E.2d 410 (1979); Kal-berg v. Gilpin Co., 279 S.W.2d 177, 181 (Mo. App.1955). . For instance, “[t]he inference that the agent is not a party to a contract may be overcome” on the basis of evidence “that the other party declared that he did not care who the principal was or that he was satisfied with the credit of the agent.” Restatement § 320, Comment c. Accord, Kiska v. Rosen, 181 Pa.Super. 506, 124 A.2d 468, 469-70 (1956) (“A person contracting as an agent will be liable, whether he is known to be an agent or not, in all cases where he .. . voluntarily incurs a personal responsibility either expressed or implied.”); Western Cas. & Sur. Co. v. Bauman Ins. Agency, Inc., 81 Ill. App.3d 485, 36 Ill.Dec. 773, 401 N.E.2d 614, 615-16 (1980) (“An agent may expressly agree to be personally bound or it may be inferred by implication reasonably drawn from all the facts and circumstances in evidence.”); Simmons v. Cherry, 259 S.E.2d at 412; Kalberg v. Gilpin Co., 279 S.W.2d at 181 (exception to general rule “where the contract or circumstances of the transaction discloses a mutual intention to impose a personal responsibility on the agent”). . E.g., Joseph Lupowitz Sons, Inc. v. Commissioner, 497 F.2d 862, 865 (3d Cir. 1974). . Indeed, Pennsylvania courts have held an agent bound on a contract where evidence of the agent’s personal undertaking was much slimmer than it is here. See Darlington Brick & Clay Prods. Co. v. Aino, 225 Pa.Super. 186, 310 A.2d 401 (1973); cf. Weimer v. Bockel, 128 Pa.Super. 385, 194 A. 318 (1937) (holding officer-stockholder liable on a contract for services rendered on behalf of the corporation). . Our discussion will relate solely to the damages for Publicker’s repudiation of its agreement to pay for the 40,000 “defective” bells. See n.l supra. Publicker was also held liable, at the end of the original trial, on a claim of $9,864.30 for the balance due on open account for the “sound” bells. That award was not challenged by Publicker at any time subsequent to the first trial except on the (erroneous) theory that Publicker could not be held liable on an agreement to purchase liberty bells. As we have rejected that theory in Part I supra, and as Publicker has offered nothing to distinguish its liability to pay for the “sound” bells from its liability to pay for the “defective” bells (and we can certainly discern no meaningful distinction on this record), we affirm that part of the district court order awarding Roman judgment, with interest, on the open book account. . This section was repealed effective January 1, 1980, and replaced by a substantially similar section, 13 Pa.Cons.Stat.Ann. § 2708 (Purdon Supp.1980). . 5 A. Corbin, Contracts § 1041 (1964); see Restatement (Second) of Contracts § 361, Comment d, at 33 (Tent.Draft No. 14, 1979) (“If the injured party avoids further loss by making substitute arrangements for the use of his resources that are no longer needed to perform the contract, the net profit from such arrangements is also subtracted.”); Buono Sales, Inc. v. Chrysler Motors Corp., 449 F.2d 715, 720 (3d Cir. 1971); Burks v. Sinclair Ref. Co., 183 F.2d 239, 243-44 (3d Cir. 1950). . See generally Restatement (Second) of Contracts § 361, Comment f, at 38 (Tent.Draft No. 14, 1979); Famous Knitwear Corp. v. Drug Fair, Inc., 493 F.2d 251, 254 n.5 (4th Cir. 1974). . Our decision on this issue is not in any way intended to indicate a general rule for the allocation of the burden of proof on questions of expenses saved under U.C.C. § 2-708(1). Cf. Annot., 17 A.L.R.2d 968, 972 (1951). . The district court denied Roman’s claim for storage charges, believing that it would have been “inconsistent with the terms of the remand to permit this new issue to be raised and litigated at this late date.” Arguably, some of the charges incident to storage were “incidental damages” for which findings could have been made, pursuant to the terms of our remand, under U.C.C. § 2-708(1). However, we agree with the district court that at this late date we ought not to begin entertaining arguments on factual questions of damage that were totally ignored by the parties at the time of the original trial. By the same token, it would be unfair to Roman to turn around and take the opposite view with respect to Publicker’s new claims on expenses saved. . Rule 38. Damages for Delay. If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. . Cf. Fluoro Elec. Corp. v. Branford Assocs., 489 F.2d 320, 326 (2d Cir. 1973) (awarding Rule 38 damages after three appeals in which there was no pretense to any ground for appeal other than the claim that the judgment was against the wrong entity). . Cf. Mid-Jersey Nat’l Bank v. Fidelity Mortgage Investors, 518 F.2d 640, 642 n.1 (3d Cir. 1975); Babcock & Wilcox Co. v. Foster Wheeler Corp., 432 F.2d 385, 388 (3d Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 930, 28 L.Ed.2d 217 (1971). In each of these cases, the court denied Rule 38 damages. However, in each case, the court was presented with credible legal arguments for overturning the decision of the district court.

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

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

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

COOPER v. OKLAHOMA No. 95-5207. Argued January 17, 1996 Decided April 16, 1996 Stevens, J., delivered the opinion for a unanimous Court. Robert A. Ravitz argued the cause and filed briefs for petitioner. W. A. Drew Edmondson, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was Sandra D. Howard, Assistant Attorney General. Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis and Barbara E. Bergman; and for the National Association of Criminal Defense Lawyers by Charles D. Weisselberg, Dennis E. Curtis, Denise Meyer, and Larry J. Fleming. A brief of amicus curiae urging affirmance was filed for the State of Utah et al. by Jan Graham, Attorney General of Utah, J. Kevin Murphy, Assistant Attorney General, and Carol Clawson, Solicitor General, John M. Bailey, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Betty D. Montgomery of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, and James S. Gilmore III of Virginia. Justice Stevens delivered the, opinion of the Court. In Oklahoma the defendant in a criminal prosecution is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B) (1991). Under that standard a defendant may be put to trial even though it is more likely than not that he is incompetent. The question we address in this case is whether the application of that standard to petitioner violated his right to due process under the Fourteenth Amendment. I In 1989 petitioner was charged with the brutal killing of an 86-year-old man in the course of a burglary. After an Oklahoma jury found him guilty of first-degree murder and recommended punishment by death, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals affirmed the conviction and sentence. Petitioner’s competence was the focus of significant attention both before and during his trial. On five separate occasions á judge considered whether petitioner had the ability to understand the charges against him and to assist defense counsel. On the first occasion, a pretrial judge relied on the opinion of a clinical psychologist employed by the State to find petitioner incompetent. Based on that determination, he committed petitioner to a state mental health facility for treatment. Upon petitioner’s release from the hospital some three months later, the trial judge heard testimony concerning petitioner’s competence from two state-employed psychologists. These experts expressed conflicting opinions regarding petitioner’s ability to participate in his defense. The judge resolved the dispute against petitioner, ordering him to proceed to trial. At the close of a pretrial hearing held one week before the trial was scheduled to begin, the lead defense attorney raised the issue of petitioner’s competence for a third time. Counsel advised the court that petitioner was behaving oddly and refusing to communicate with him. Defense counsel opined that it would be a serious matter “if he’s not faking.” App. 6. After listening to counsel’s concerns, however, the judge declined to revisit his earlier determination that petitioner was competent to stand trial. Petitioner’s competence was addressed a fourth time on the first day of trial, when petitioner’s bizarre behavior prompted the court to conduct a further competency hearing at which the judge observed petitioner and heard testimony from several lay witnesses, a third psychologist, and petitioner himself. The expert concluded that petitioner was presently incompetent and unable to communicate effectively with counsel, but that he could probably achieve competence within six weeks if treated aggressively. While stating that he did not dispute the psychologist’s diagnosis, the trial judge ruled against petitioner. In so holding, however, the court voiced uncertainty: “Well, I think I’ve used the expression... in the past that normal is like us. Anybody that’s not like us is not normal, so I don’t think normal is a proper definition that we are to use with incompetence. My shirtsleeve opinion of Mr. Cooper is that he’s not normal. Now, to say he’s not competent is something else. “But you know, all things considered, I suppose it’s possible for a client to be in such a predicament that he can’t help his defense and still not be incompetent. I suppose that’s a possibility, too. “I think it’s going to take smarter people than me to make a decision here. I’m going to say that I don’t believe he has carried the burden by clear and convincing evidence of his incompetency and I’m going to say we’re going to go to trial.” Id., at 42-43. Incidents that occurred during the trial, as well as the sordid history of petitioner’s childhood that was recounted during the sentencing phase of the proceeding, were consistent with the conclusions expressed by the expert. In a final effort to protect his client’s interests, defense counsel moved for a mistrial or a renewed investigation into petitioner’s competence. After the court summarily denied these motions, petitioner was convicted and sentenced to death. In the Court of Criminal Appeals, petitioner contended that Oklahoma’s presumption of competence, combined with its statutory requirement that a criminal defendant establish incompetence by clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B) (1991), placed such an onerous burden on him as to violate his right to due process of law. The appellate court rejected this argument.' After noting that it can be difficult to determine whether a defendant is malingering, given “the inexactness and uncertainty attached to [competency] proceedings,” the court held that the standard was justified because the “State has great interest in assuring its citizens a thorough and speedy judicial process,” and because a “truly incompetent criminal defendant, through his attorneys and experts, can prove incompetency with relative ease.” 889 P. 2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals’ conclusion that application of the clear and convincing evidence standard does not violate due process. 516 U. S. 910 (1995). II No one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consistently recognized that “the criminal trial of an incompetent defendant violates due process.” Medina v. California, 505 U. S. 437, 453 (1992); Drope v. Missouri, 420 U. S. 162, 171-172 (1975); Pate v. Robinson, 383 U. S. 375, 378 (1966). Nor is the significance of this right open to dispute. As Justice Kennedy recently emphasized: “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171-172 (1975).” Riggins v. Nevada, 504 U. S. 127, 139-140 (1992) (opinion concurring in judgment). The test for incompetence is also well settled. A defendant may not be put to trial unless he “‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding... [and] a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam). Our recent decision in Medina v. California, 505 U. S. 437 (1992), establishes that a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Id., at 449. In reaching that conclusion we held that the relevant inquiry was whether the presumption “ 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id., at 445 (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). We contrasted the “deep roots in our common-law heritage” underlying the prohibition against trying the incompetent with the absence of any settled tradition concerning the allocation of the burden of proof in a competency proceeding. 505 U. S., at 446. Our conclusion that the presumption of competence offends no recognized principle of “fundamental fairness” rested in part on the fact that the procedural rule affects the outcome “only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent.” Id., at 449. The question we address today is quite different from the question posed in Medina. Petitioner’s claim requires us to consider whether a State may proceed with a criminal trial after the defendant has demonstrated that he is more likely than not incompetent. Oklahoma does not contend that it may require the defendant to prove incompetence beyond a reasonable doubt. The State maintains, however, that the clear and convincing standard provides a reasonable accommodation of the opposing interests of the State and the defendant. We are persuaded, by both traditional and modern practice and the importance of the constitutional interest at stake, that the State’s argument must be rejected. III “Historical practice is probative of whether a procedural rule can be characterized as fundamental,” Medina, 505 U. S., at 446. In this case, unlike in Medina, there is no indication that the rule Oklahoma seeks to defend has any roots in prior practice. Indeed, it appears that a rule significantly more favorable to the defendant has had a long and consistent application. We turn first to an examination of the relevant common-law traditions of England and this country. The prohibition against trying the incompetent defendant was well established by the time Hale and Blackstone wrote their famous commentaries. 4 W. Blackstone, Commentaries *24 (“[I]f a man in his sound memory commits a capital offence... [a]nd if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence?”); 1 M. Hale, Pleas of the Crown *34-*35 (same). The English cases which predate our Constitution provide no guidance, however, concerning the applicable standard of proof in competency determinations. See Trial of Charles Bateman (1685), reported in 11 How. St. Tr. 464, 467 (1816), and Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476 (1816) (noting that the court in the 1685 trial incurred “censure” for proceeding to trial with a doubt as to the defendant’s competence); Kinloch’s Case (1746), 18 How. St. Tr. 395, 411 (1813); King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787). Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith, 22 How. St. Tr. 307 (1790), for example, the court instructed the jury to “diligently inquire... whether John Frith, the now prisoner at the bar... be of sound mind and understanding or not....” Id., at 311. Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode, 7 Ad. & E. 536, 112 Eng. Rep. 572 (K. B. 1837): ‘“You shall diligently inquire, and true presentment make... whether John Goode... be insane or not....”’ Id., at 536, n. (a), 112 Eng. Rep., at 572-573, n. (a)2. Similarly, in King v. Pritchard, 7 Car. & R 303, 173 Eng. Rep. 135 (1836), the court empaneled a jury to consider “whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial....” Ibid. See also King v. Dyson, 73 Car. & R 305, n. (a), 173 Eng. Rep. 135-136, n. (a) (1831); Queen v. Southey, 4 F. & F. 864, 895, 176 Eng. Rep. 825, 838 (1865); Queen v. Berry, 1 Q. B. Rep. 447, 449 (1876). Ibid. These authorities, while still speaking less clearly than we might wish, are instructive. By phrasing the inquiry in a simple disjunctive, Frith, Goode, and Pritchard suggest that traditional practice required the jury to determine whether the defendant was “more' likely than not” incompetent. Nothing in the jury instructions of these cases will bear the interpretation of a clear and convincing standard. What is more, the cases contain no indication that the use of a preponderance standard represented a departure from earlier (pre-Constitution) practice. Modern English authority confirms our interpretation of these early cases as applying a preponderance standard. Relying on “principles... laid down in a number of cases,” including Pritchard and King v. Dyson, 7 Car. & R 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), the court in Queen v. Podola, 43 Crim. App. 220, 3 All E. R. 418 (1959), ruled: “If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgment, a burden upon the defence of satisfying the jury of the accused’s insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused’s insanity has been made out.” Id., at 235, 3 All E. R., at 429. Likewise, we are aware of no decisional law from this country suggesting that any State employed Oklahoma’s heightened standard until quite recently. Rather, the earliest available sources typically refer to English authorities, see, e. g., Freeman v. People, 47 Am. Dec. 216, 223-225 (N. Y. 1847), State v. Harris, 78 Am. Dec. 272, 272-275 (N. C. 1860) (adopting procedures outlined in King v. Dyson, 7 Car. & R 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & R 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive language used by the English courts, see, e. g., Commonwealth v. Hathaway, 13 Mass. 299 (1816); People v. Kleim, 1 N. Y. 13, 15 (1845); Harris, 78 Am. Dec., at 275; United States v. Chisolm, 149 F. 284, 290 (SD Ala. 1906). By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that “[t]he burden is upon the prisoner to show by a preponderance of the proof that he is insane.” State v. O’Grady, 5 Ohio Dec. 654, 655 (1896). Some 15 years later, the Tennessee Supreme Court described the competency determination as “controlled by the preponderance of the proof,” Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911), and the highest court of Pennsylvania held that competence is “decided by a preponderance of the evidence,” Commonwealth v. Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913). These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard. Contemporary practice demonstrates that the vast majority of jurisdictions remain persuaded that the heightened standard of proof imposed on the accused in Oklahoma is not necessary to vindicate the State’s interest in prompt and orderly disposition of criminal cases. Only 4 of the 50 States presently require the criminal defendant to prove his incompetence by clear and convincing evidence. None of the remaining 46 jurisdictions imposes such a heavy burden on the defendant. Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to prove the defendant’s competence to stand trial once a question about competency has been credibly raised. The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U. S. C. §4241. The near-uniform application of a standard that is more protective of the defendant’s rights than Oklahoma’s clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply “rooted in the traditions and conscience of our people.” Medina v. California, 505 U. S., at 445 (internal quotation marks omitted). We turn next to a consideration of whether the rule exhibits “ ‘fundamental fairness’ in operation.” Id., at 448 (quoting Dowling v. United States, 493 U. S. 342, 352 (1990)). IV Contemporary and historical procedures are fully consistent with our evaluation of the risks inherent in Oklahoma’s practice of requiring the defendant to prove incompetence by clear and convincing evidence. In Addington v. Texas, 441 U. S. 418, 423 (1979), we explained that: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring).” The “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 283 (1990). For that reason, we have held that due process places a heightened burden of proof on the State in civil proceedings in which the “individual interests at stake... are both ‘particularly important’ and ‘more substantial than mere loss of money.’” Santosky v. Kramer, 455 U. S. 745, 756 (1982) (termination of parental rights) (quoting Addington, 441 U. S., at 424). Far from “jealously guarding],” Jacob v. New York City, 315 U. S. 752, 752-753 (1942), an incompetent criminal defendant’s fundamental right not to stand trial, Oklahoma’s practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is competent. In Medina we found no comparable risk because the presumption would affect only the narrow class of cases in which the evidence on either side was equally balanced. “Once a State provides a defendant access to procedures for making a competency evaluation,” we stated, there is “no basis for holding that due process further requires the State to assume the burden of vindicating the defendant’s constitutional right by persuading the trier of fact that the defendant is competent to stand trial.” 505 U. S., at 449. Unlike the presumption at issue in Medina, however, Oklahoma’s clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent. For the defendant, the consequences of an erroneous determination of competence are dire. Because he lacks the ability to communicate effectively with counsel, he may be unable to exercise other “rights deemed essential to a fair trial.” Riggins v. Nevada, 504 U. S., at 139 (Kennedy, J., concurring in judgment). After making the “profound” choice whether to plead guilty, Godinez v. Moran, 509 U. S. 389, 398 (1993), the defendant who proceeds to trial “will ordinarily have to decide whether to waive his ‘privilege against compulsory self-incrimination,’ Boykin v. Alabama, 395 U. S. 238, 243 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his ‘right to trial by jury,’ ibid.; and, in consultation with counsel, he may have to decide whether to waive his ‘right to confront [his] accusers,’ ibid., by declining to cross-examine witnesses for the prosecution.” Ibid. With the assistance of counsel, the defendant also is called upon to make myriad smaller decisions concerning the course of his defense. The importance of these rights and decisions demonstrates that an erroneous determination of competence threatens a “fundamental component of our criminal justice system” — the basic fairness of the trial itself. By comparison to the defendant’s interest, the injury to the State of the opposite error — a conclusion that the defendant is incompetent when he is in fact malingering — is modest. To be sure, such an error imposes an expense on the state treasury and frustrates the State’s interest in the prompt disposition of criminal charges. But the error is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for “the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future.” Jackson v. Indiana, 406 U. S. 715, 738 (1972). The Oklahoma Court of Criminal Appeals correctly observed that the “inexactness and uncertainty” that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering. 889 P. 2d, at 303. We presume, however, that it is unusual for even the most artful malingerer to feign incompetence successfully for a period of time while under professional care. In this regard it is worth reiterating that only four jurisdictions currently consider it necessary to impose on the criminal defendant the burden of proving incompetence by clear and convincing evidence. Moreover, there is no reason to believe that the art of dissimilation is new. Eighteenth and nineteenth century courts, for example, warned jurors charged with making competency determinations that “ ‘there may be great fraud in this matter,’ ” King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep., at 136, n. (a) (quoting 1 Hale, Pleas of the Crown, at *35), and that “[i]t would be a reproach to justice if a guilty man... postponed his trial upon a feigned condition of mind, as to his inability to aid in his defense,” United States v. Chisolm, 149 F., at 288. Although they recognized this risk, the early authorities did not resort to a heightened burden of proof in competency proceedings. See Part III, supra. More fundamentally, while the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue, it does not justify the additional onus of an especially high standard of proof. As the Chisolm Court continued, “[I]t would be likewise a reproach to justice and our institutions, if a human being... were compelled to go to trial at a time when he is not sufficiently in possession of his mental faculties to enable him to make a rational and proper defense. The latter would be a more grievous error than the former; since in the one case an individual would go unwhipped of justice, while in the other the great safeguards which the law adopts in the punishment of crime and the upholding of justice would be rudely invaded by the tribunal whose sacred duty it is to uphold the law in all its integrity.” 149 F., at 288. A heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties. See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 283. In cases in which competence is at issue, we perceive no sound basis for allocating to the criminal defendant the large share of the risk which accompanies a clear and convincing evidence standard. We assume that questions of competence will arise in a range of cases including not only those in which one side will prevail with relative ease, but also those in which it is more likely than not that the defendant is incompetent but the evidence is insufficiently strong to satisfy a clear and convincing standard. While important •state interests are unquestionably at stake, in these latter cases the defendant’s fundamental right to be tried only while competent outweighs the State’s interest in the efficient operation of its criminal justice system. V Oklahoma makes two additional arguments in support of its procedural rule that warrant discussion. First, Oklahoma correctly reminds us that it is normally within the power of the State to establish the procedures through which its laws are given effect, including those related to the burden of producing evidence and the burden of persuasion. See Patterson v. New York, 432 U. S., at 201-202. In Patterson we upheld New York’s requirement that in a prosecution for second-degree murder the defendant must bear the burden of proving the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. Id., at 207-208. After observing that the rule was consistent with common-law practice, id., at 202, we held that “[t]he Due Process Clause... does not put New York to the choice of abandoning [statutory] defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment,” id., at 207-208. Although we found no violation in Patterson, we noted that the State’s power to regulate procedural burdens was subject to proscription under the Due Process Clause if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” id., at 201-202 (internal quotation marks omitted). This case involves such a rule. Unlike Patterson, which concerned procedures for proving a statutory defense, we consider here whether a State’s procedures for guaranteeing a fundamental constitutional right are sufficiently protective of that right. The deep roots and fundamental character of the defendant’s right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection. Finally, Oklahoma suggests that our decision in Addington v. Texas, 441 U. S. 418 (1979), in which we held that due process requires a clear and convincing standard of proof in an involuntary civil commitment proceeding, supports imposition of such a rule in competency proceedings. The argument is unpersuasive because commitment and competency proceedings address entirely different substantive issues. Although we have not had the opportunity to consider the outer limits of a State’s authority to civilly commit an unwilling individual, O’Connor v. Donaldson, 422 U. S. 563, 573-574 (1975), our decision in Donaldson makes clear that due process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of “surviving safely in freedom,” id., at 573-576. The test for competence to stand trial, by contrast, is whether the defendant has the present ability to understand the charges against him and communicate effectively with defense counsel. Dusky v. United States, 362 U. S., at 402. Even if we were to uphold Oklahoma’s imposition of the clear and convincing evidence rule in competency proceedings, the comparable standards in the two proceedings would not guarantee parallel results. More importantly, our decision today is in complete accord with the basis for our ruling in Addington. Both cases concern the proper protection of fundamental rights in circumstances in which the State proposes to take drastic action against an individual. The requirement that the grounds for civil commitment be shown by clear and convincing evidence.protects the individual’s fundamental interest in liberty. The prohibition against requiring the criminal defendant to demonstrate incompetence by clear and convincing evidence safeguards the fundamental right not to stand trial while incompetent. Because Oklahoma’s procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process. VI For the foregoing reasons, the judgment is reversed, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion. It is so ordered. During the hearing petitioner, who had refused to change out of prison overalls for the trial because the proffered clothes were “burning” him, Tr. of Pretrial Motions and Competency Hearings 3-4 (May 4-5, 1992), talked to himself and to an imaginary “spirit” who petitioner claimed gave him counsel. On the witness stand petitioner expressed fear that the lead defense attorney wanted to kill him. In his argument at the close of the proceeding, defense counsel reminded the court of an incident that occurred during petitioner’s testimony: “Every time I would get close to his space where he is seated in this little witness enclave... he would stand up and he would get away from me as far as he could and so I would back off and I’d give him a little space.... So, I’ve approached him from every side.... except I haven’t approached him from the front. So yesterday, I approach him from the front. And that’s the last thing I did. I regret doing that. “He stood up and he got as far back against the rail behind the witness chair as he could get. I edged closer. He got as far back and he got up on that rail. So I’ve got him up on the rail and I’m thinking, hey, what can I lose? Let me just see what he does now because he can go no further back, but as the Court knows, there’s a space of about two-and-a-half feet behind this rail and a marble wall. “Without looking for his safety at all and looking what’s behind him, when I moved the least bit and I didn’t move very far towards him, he fell to get away from me. He fell. He hit his head. The thud on that marble when he jackknifed backward off of that railing into that marble could be heard at the back of that courtroom.... “We got him back up here in the witness enclave, he’s just busted his head, tears are streaming down his eyes and he does not respond in any normal fashion.” App. 37-38. Petitioner did not communicate with or sit near defense counsel during the trial. Through much of the proceedings he remained in prison overalls, crouching in the fetal position and talking to himself. Section 1175.4(B) provides, in relevant part: “The court, at the hearing on the application [for determination of competency], shall determine, by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence.” Section 1175.4 was amended in 1991, during the pretrial period of petitioner’s prosecution. The amendment did not alter the text of subsection B. Indeed, the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Pate v. Robinson, 383 U. S. 375, 384 (1966). The Oklahoma statute defines competence as “the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and rationally assist in his defense.” Okla. Stat., Tit. 22, §1175.1(1) (Supp. 1996). In her concurring opinion, Justice O’Connor expressed the view that placing the burden on the defendant in this limited group of eases was permissible because it provided the defendant with an incentive to cooperate with the information-gathering process necessary to a reliable competency determination. Medina, 505 U. S., at 455. Tr. of Oral Arg. 46-48. Courts often referred to the prisoner’s insanity (or present insanity) rather than incompetence, even when the proceeding concerned the defendant’s competence to stand trial. Beginning with the earliest'cases, the issue at a sanity or competency hearing has been “whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.” King v. Pritchard, 7 Car. & P. 303, 304, 173 Eng. Rep. 135 (1836). In 1800 England codified the common-law rule that a court could empanel a jury to determine whether a defendant charged with treason, murder, or a felony offense was competent to stand trial. Criminal Lunatics Act, 1800, 39 & 40, Geo. 3, ch. 94, § 2. Indeed, although in Medina we concluded that it is permissible for a State to require the defendant to shoulder the burden of demonstrating his incompetence, we noted that some 19th-century English authorities placed the burden on the prosecutor once competence was put in issue. Medina v. California, 505 U. S., at 447. See Queen v. Davies, 3 Car. & K. 328, 329, 175 Eng. Rep. 575, 575 (1853) (judge ruled that “[the prosecutor] should begin, and call his witnesses, to show that the prisoner is sane, and capable of pleading”); Ley’s Case, 1 Lewin 239, 240, 168 Eng. Rep. 1026 (1828) (“ ‘If there be a doubt as to the prisoner’s sanity... you cannot say that he is in a fit state to be put upon his trial’ ”). See also Halsbury, 10 Laws of England 403 (3d ed. 1955) (“Where a jury is so empanelled [to determine competency], the onus is on the prosecution to prove the sanity of the defendant”). But see Queen v. Podola, 43 Crim. App. 220, 236, 3 All E. R. 418, 430 (1959) (explicitly rejecting the suggestion that the prosecutor must prove the defendant’s competence to stand trial). Given the disagreement among English courts concerning which party bore the burden of proof, it is unlikely that in cases in which the burden was placed on the defendant that burden was as weighty as clear and convincing evidence. The Podola court opined that the tests laid down in Pritchard “have been followed so often that they may be said to be firmly embodied in our law.” 43 Crim. App., at 238, 3 All E. R., at 431. In Commonwealth v. Braley, 1 Mass. 102, 103 (1804), a ease decided -shortly after the Constitution was ratified, the court instructed the jury to consider “whether [the accused] neglected or refused to plead to the indictment against him for murder, of his free will and malice, or whether he did so neglect by the act of God.” This instruction may be a precursor to the “sane or insane” disjunctive. See also State v. Tyler, 7 Ohio N. P. 443, 444 (1898) (“What I mean by the preponderance of the evidence is that the accused must show that he is now at the time of this trial probably not sane”). Cf. People v. Ah Ying, 42 Cal. 18, 20 (1872

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COVEY OIL COMPANY, Valley Oil Company, Frank Ferguson, Fred Smith and Jack Wiles, Appellants, v. CONTINENTAL OIL COMPANY and Texaco, Inc., Appellees. PYRAMID OIL COMPANY, Premium Oil Company and Quality Oil Company, Appellants, v. CONTINENTAL OIL COMPANY and Texaco, Inc., Appellees. SLIM OLSON, INC., Appellant, v. CONTINENTAL OIL COMPANY and Texaco, Inc., Appellees. Nos. 7989-7991. United States Court of Appeals Tenth Circuit. Jan. 21, 1965. Rehearing Denied March 2, 1965. Certiorari Denied April 5, 1965. See 85 S.Ct. 1110. Lynn S. Richards, Salt Lake City, Utah (Richard L. Bird, Jr., and M. Byron Fisher, Salt Lake City, Utah,- were with him on the brief), for appellants in No. 7989. Louis H. Callister, Sr., Salt Lake City, Utah (Louis H. Callister, Jr., Salt Lake City, Utah, was with him on the brief), for appellants in No. 7990. George K. Fadel, Bountiful, Utah, filed a brief for appellant in No. 7991. Everett B. Clary, Los Angeles, Cal. (Brayton, Lowe & Hurley, John W. Lowe, Salt Lake City, Utah, A. T. Smith, Denver, Colo., O’Melveny & Myers, Henry C. Thumann, and Alan I. Rothenberg, Los Angeles, Cal., were with him on the brief), for appellee Continental Oil Co. George W. Jansen, Los Angeles, Cal., for appellee Texaco, Inc. Before PICKETT, BREITEN STEIN and HILL, Circuit Judges. BREITEN STEIN, Circuit Judge. These appeals, which were considered on a consolidated record, relate to orders on motions to quash subpoenas duces tecum issued to non-party witnesses. The trial court modified the subpoenas by striking therefrom a requirement as to an identified category of information and otherwise denied the motions to quash. The action was brought by Uinta Oil Refining Company and Utah Cooperative Association, which are not parties to these appeals, against Continental Oil Company and Texaco, Inc., appellees herein, to recover damages for alleged violations of §§ 1 and 2 of the Sherman Act and of § 2(a), (d), and (e) of the Clayton Act as amended by the Robinson-Patman Price Discrimination Act. Uinta and Utah Cooperative own a refinery in Colorado and market petroleum products in Utah. Continental and Texaco are major, integrated oil companies doing business in Utah. The Sherman Act allegations of the complaint charge a conspiracy to restrain trade and an attempt to monopolize commerce in gasoline by controlling sources of supply, by fixing and maintaining wholesale and retail gasoline prices, and by suppressing competition of independent jobbers. The Robinson-Patman violations are said to consist of price discriminations which effect competition and tend to monopoly. The Continental answer denies these allegations and, as an affirmative defense to the Robinson-Pat-man charge, says that if there has been price discrimination, the lower price to any purchaser was made in good faith to meet an equally low price of a competitor or was in response to changing conditions affecting the gasoline market. Continental caused subpoenas duces tecum to be served on the appellants and a number of other non-party witnesses who are independent oil marketers. The appellants moved to quash the subpoenas. After extensive hearings the trial court filed a comprehensive memorandum and ordered the production of information by the non-party witnesses relating to their purchase price of gasoline, their sale prices and gallonage of gasoline sold other than at retail, and the number and location of their service stations. Texaco has adopted and supports the position of Continental. The threshold question is the jurisdiction of this court to review the order. Under 28 U.S.C. § 1291 the courts of appeals have jurisdiction “of appeals from all final decisions of the district courts of the United States.” Continental says that the order is interlocutory and not final. Appellants recognize that generally the denial of a motion to quash a subpoena issued under Rule 45, F.R.Civ. P., is not appealable because the order is interlocutory to the main litigation and the effect of the discovery will be determined at the trial; but they say that this rule does not apply when the subpoena is enforced against nonparty witnesses who will suffer irreparable harm from the enforced disclosures and who have no recourse other than appeal from the order itself. In Cobbledick v. United States, 309 U. S. 323, 60 S.Ct. 540, 84 L.Ed. 783, an appeal from the denial of a motion to quash a subpoena for appearance before a grand jury, the Supreme Court stated the general rule of unreviewability of interlocutory orders and the reasons therefor— principally the avoidance of piecemeal reviews of litigation. In so deciding the Court commented that due regard for efficiency in litigation must not go so far as to deny all opportunity for the review contemplated by the statutes. This concept was enlarged in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 547, 69 S.Ct. 1221, 1225, 1226, 93 L.Ed. 1528, which recognized a small class of cases “which finally determine claims of right separable from, and collateral to, rights asserted in the action” and held an interlocutory order appealable “because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.” Beneficial was followed in Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 688-689, 70 S.Ct. 861, 865, 94 L.Ed. 1206, where the Court held an interlocutory order appealable and said that in the circumstances of the case the provision for appeals only from final decision “should not be construed so as to deny effective review of a claim fairly severable from the context of a larger litigious process.” The principle was again recognized in DiBella v. United States, 369 U.S. 121, 125, 82 S.Ct. 654, 657, 7 L.Ed.2d 614, where the Court said that “the concept of finality as a condition of review has encountered situations which make clear that it need not invite self-defeating judicial construction.” The threshold question of appeal-ability is not to be decided by rote, because cognizance must be given to the competing requirements of finality and fairness to the witness. Appellants say that the trial court’s order will cause irreparable harm because the revelation of their trade secrets will destroy their businesses. This claim is without the mainstream of the litigation. Postponement of consideration might destroy the claimed right. More importantly, the appellants, as nonparties to the main suit, will have no right of appeal from a judgment therein. The trial court’s, order, final as to these appellants, commands them to divulge the requested information. Such order is both collateral to the main suit and final as to these appellants. DiBella says that the concept of finality must not be used to frustrate appellate review of an order collateral to the principal litigation “when the practical effect of the order will be irreparable by any subsequent appeal.” Severability of the appellants’ claim from the issues presented by the plaintiffs and defendants must not be confused with relevance of the information sought by the subpoenas. In one instance the question is the right of protection against disclosure of alleged trade secrets. In the other the question is the pertinence of the information to main suit issues. Relevance will be determined in the trial of the main issues and the dissatisfied party will have the right of review. So far as the appellants are concerned the ultimate determination of relevance will be an “empty rite” because the harm which they fear will have occurred. We are not impressed with the argument of Continental that the appellants may obtain review by disobedience of the order and appeal from a subsequent adjudication of contempt. These non-party witnesses should not be required to expose themselves to the hazard of punishment in order to obtain a determination of their claimed rights. What we have said does not mean that every order on a motion to quash a subpoena is appealable. Here we have a serious claim by non-party witnesses of a right to protection from the disclosure of trade secrets. Their claims are, in the language of Swift & Co. Packers v. Compania Colombiani Del Caribe, “fairly severable from the context of a larger litigious process.” The practical effect of the order will be irreparable by any subsequent appeal. In our opinion the order is appealable. The subpoena as limited by the court order requires the production of documents showing, for the state of Utah during a designated period: “1. Actual purchase price of all gasoline purchased. D' “2. Actual sales price of all gasoline sold other than at retail. “3. Volume in gallons of gasoline sold each month segregated according to City, with separate figures for regular and premium. “4. Number and location of service stations owned, operated or leased.” Rule 45(d) covers subpoenas for taking depositions and permits them to require the production of designated documents which are within the scope of the examination permitted by Rule 26(b), subject however to the provisions of Rule 30(b) and Rule 45(b). Rule 26(b) permits the examination of a deponent on any matter “which is relevant to the subject matter involved in the pending action.” Rule 30(b) provides that “for good cause shown” the court may make any order “which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.” Rule 45(b) authorizes the court to “quash or modify the subpoena if it is unreasonable and oppressive.” Accordingly, if the documents are relevant and are sought for good cause they should be enforced unless the documents are privileged or the subpoenas are unreasonable, oppressive, annoying, or embarrassing. Relevancy is shown. The complaint charges restraint of trade and monopoly in the fixing of gasoline prices and in the suppression of competition. Affidavits of some of the appellants establish that “fierce” competition pervades the Utah gasoline market; that appellants are “substantial competitors” of Continental; and that several of the appellants are supplied by major integrated oil companies which the complaint names as co-conspirators with Continental. The Robinson-Patman charge of price discrimination is met by the defense of a good faith effort to meet competition. Continental submitted proof that it was losing market position in Utah; that its management believed that its wholesale prices were above competitive levels; that competitive wholesale prices could not be obtained by estimates from observable retail price levels; and that from the available information it concluded that most independent service sta- ‘ tions, including those supplied or operated by appellants, were being charged less for gasoline than Continental was charging its dealers. The wholesale price and volume of admitted competitors directly pertain to both the Sherman Act and the Robinson-Patman Act charges and to the defenses asserted against those charges. Appellants insist that the good faith meeting competition defense is not available because of the decision in Federal Trade Commission v. Sun Oil Co., 371 U. S. 505, 83 S.Ct. 358, 9 L.Ed.2d 466. The cases are different. In Sun Oil an integrated supplier-dealer lowered its price to the lessee-operator of one of its stations so that he could meet the competition of another retailer. The court said that Congress in passing the RobinsonPatman Act intended that “businessmen at the same functional level would start on equal competitive footing so far as price is concerned.” The Sun Oil case dealt with different functional levels and the Court held that the good faith meeting competition defense was not available. In so doing the Court pointed out that the defense is usually available in a situation where one supplier reduces its prices and another supplier then reduces its prices to prevent its customer from shifting his business to the competing supplier. In the case at bar Continental claims that the appellants are supplier-retailers and their competition with Continental is admitted. We are dealing with a preliminary matter — the right to take depositions and to force the production of documents. The showing of Continental is of competition in the area of the charges made in the complaint and of operations at the same functional level. In these circumstances the good faith meeting competition defense is available under § 2(b) of the Robinson-Patman Act. Additionally, we believe that the showing is sufficient under the Sherman Act charges of restraint of trade and monopoly by fixing gasoline prices and suppressing competition of independent jobbers. Exploration into the businesses of admitted, rivals may well reveal the validity or invalidity of the charge of competition suppression. In holding that the material sought by the subpoenas is relevant to the issues of the case we express no opinion as to whether any evidence so produced will be admissible at the trial or,, if admissible, what its effect will be. Such determina-' tions are not appropriate at this stage of the case. The evidence sought has substantial value because it is relevant and vital to the defenses asserted. The fact that it might be obtained, at least in part, from others has no pertinence because a person may not avoid a subpoena by saying that the evidence sought from him is obtainable from another. The argument that Continental knows the appellants’ retail prices, which are posted in public view, means nothing because Continental asserts that competition exists at the wholesale level. Appellants say that if Continental did not know the wholesale prices, it may not rely on them to support a meeting competition defense. The test is not actual knowledge but “the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor.” Continental says that it had reason to believe that it was meeting a lower price and that it acted on the best available information. The reasonableness of Continental’s action can best be shown by the production of the competitive prices. Enough has been said to dispose of the argument that Continental has failed to show good cause. The burden of so showing is sustained by proof of relevance and need. The cases relied on by appellants are not apposite. In neither Hartley Pen Co. v. United States District Court, 9 Cir., 287 F.2d 324, nor United States v. Serta Associates, Inc., N.D.Ill., 29 F.R.D. 136, was relevancy established. Appellants contend that general relevancy is not sufficient to require a nonparty witness to divulge trade secrets. The claimed trade secrets do not relate to processes, formulas, or methods but rather to price, cost, and volume of sales of gasoline. The argument is that the disclosure of this information will enable Continental and others to destroy appellants’ businesses because the integrated companies can lose money in marketing and still show an over-all profit while the small independents, such as appellants, cannot do so. The position is based on the fact that Continental and appellants compete in the wholesale market. No absolute privilege protects the information sought here, from disclosure in discovery proceedings. The claim of irreparable competitive injury must be balanced against the need for the information in the preparation of the defense. Judicial inquiry should not be unduly hampered. Inconvenience to third parties may be outweighed by the public interest in seeking the truth in every litigated case. The balancing demands the exercise of a sound discretion by the trial court. In the case at bar the trial court reasonably concluded that the interests of justice require the enforcement of the subpoenas. With great care it imposed conditions designed to protect appellants. The documents were made available only to counsel and independent certified public accountants and only for the purposes of the case. The court forbade the use of the material “for business or competitive purposes.” The right to presence at the depositions was limited. The documents and depositions were to be held by the clerk under seal with access thereto only upon order of the judge. The right to further protective orders upon an appropriate showing was specifically recognized. In our opinion the actions of the trial court display a sound exercise of discretion. The need for the information is held paramount but reasonable protective measures are supplied to minimize the effect on the appellants. We are concerned with preliminary matters. If the information obtained is pertinent to the antitrust charges and defenses which arise from the Utah gasoline price wars, that information should be available at the trial. Harm may result to some of the appellants but that harm will be a by-product of competition. Certain it is that in this preliminary matter we “can neither eliminate nor mitigate the major economic forces which are productive of these price wars.” All questions of the admissibility and effect of the information obtained through the discovery proceedings discussed herein are left for determination at the trial on the merits Affirmed. . 15 U.S.C. §§ 1, and 2. . 15 U.S.C. § 13(a), (d), and (e). . 28 U.S.C. § 1292 relating to appeals from certain interlocutory orders is not applicable and no effort is made to sustain jurisdiction under that section. . See 5 Moore, Federal Practice 1726 (24 ed.). . Our recent decision in Paramount Film Distrib. Corp. v. Civic Center Theatre, 10 Cir., 333 F.2d 358, has no application because there the complaints against discovery were made by parties to the litigation. . 309 U.S. 323, 329, 60 S.Ct. 540. . Horizons Titanium Corp. v. Norton Co., 1 Cir., 290 F.2d 421, 423. . See Lee v. Western Wool Processors, Inc., 10 Cir., 313 F.2d 13, 15, certiorari denied 374 U.S. 806, 83 S.Ct. 1695, 10 L.Ed.2d 1031. . 369 U.S. 121, 126, 82 S.Ct. 654, 657. . . See Swift & Co. Packers v. Compania Colombiani Del Caribe, 339 U.S. 684, 689, 70 S.Ct. 861. . 339 U.S. 684, 689, 70 S.Ct 861, 865. . DiBella v. United States, 369 U.S. 121, 125, 82 S.Ct. 654. . Boeing Airplane Co. v. Coggeshall, 108 U.S.App.D.C. 106, 280 F.2d 654, 659. . 371 U.S. 505, 520, 83 S.Ct. 358, 367. . The Court said, 371 U.S. 505, 512, 83 S.Ct. 358, 363, n. 7, that if Super Test, the retail competitor of Sun’s dealer, were “an integrated supplier-retailer, or that it had received a price cut from its own supplier — presumably a competitor of Sun — we would be presented with a different case, as to which we herein neither express nor intimate any opinion.” . Federal Trade Commission v. A. E. Staley Mfg. Co., 324 U.S. 746, 759-760, 65 S.Ct. 971, 977, 89 L.Ed. 1338. See also Forster Mfg. Co. v. Federal Trade Commission, 1 Cir., 335 F.2d 47, 56. . See Boeing Airplane Co. v. Coggeshall, 108 U.S.App.D.C. 106, 280 F.2d 654, 659. . See 4 Moore, Federal Practice 1288-1289 (2d. ed.). . United States v. Lever Bros. Co., S.D.N.Y., 193 F.Supp. 254, 257-258, appeal dismissed 371 U.S. 207, 83 S.Ct. 207, 9 L.Ed.2d 269, motion for leave to file petition for certiorari denied 371 U.S. 932, 83 S.Ct. 310, 9 L.Ed.2d 272. . In H.R.Rep. No. 1422, 81st Cong., 1st Sess. 5-6, quoted in Sun Oil decision, 371 U.S. 505, 519, 83 S.Ct. 358, 366, it is said that: “In any competitive economy we cannot avoid injury to some of the competitors.” . 371 U.S. 505, 525, 83 S.Ct. 358, 370.

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

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

UNITED STATES v. COLD METAL PROCESS CO. et al. No. 10338. Circuit Court of Appeals, Sixth Circuit Dec. 12, 1947. Roy C. Hackley, Jr., of Washington, D. C. (John F. Sonnett, Roy C. Hackley, Jr. and Alfred C. Aurich, all of Washington, D. C., Don C. Miller, of Cleveland, Ohio, and Peyton Ford, of Washington, D. C., on the brief), for appellant. Howard F. Burns, of Cleveland, Ohio, and C. B. Zewadsld, of Detroit, Mich. (Clarence B. Zewadski, of Detroit, Mich., Franklin B. Powers, of Youngstown, Ohio, and Ploward F. Burns, of Cleveland, Ohio, on the brief; Whittemore, HuDert & Belknap, of Detroit, Mich., Manchester, Bennett, Powers & Ullman, of Youngstown, Ohio, and Baker, Hostetler & Patterson, of Cleveland, Ohio, of counsel), for appellees. Before HICKS, ALLEN and MARTIN, Circuit Judges. 0 ALLEN, Circuit Judge. This is an action praying for cancellation ab initio of Steckel patents 1,744,016, and 1,779,195, for fraud upon the Commissioner of Patents in the procurement thereof, or in the alternative, as to 1,744,016, for mutual mistake of fact upon the part of the applicant and the Commissioner of Patents. • Patent 1,744,016, issued January 14, 1930, solved the problem of cold-rolling steel and other metals to thin strip form without the intermediate annealing processes theretofore practiced. Patent 1,799,195, issued October 21, 1930, applies to 4-high mills, and particularly to the rolling of thin sheetlike material in long lengths. It solved the problem of rolling hot or cold strip metal of great thinness relative to its width and at high speed in such a way as to substantially prevent buckling or riffling. Both patents have previously been held valid in extended litigation: Cold Metal Process Co. v. United Engineering & Foundry Co., D.C., 3 F.Supp. 120, 3 Cir., 68 F.2d 564; certiorari denied, 291 U.S. 675, 54 S.Ct. 530, 78 L.Ed. 1064; Cold Metal Process, Co. v. American Sheet & Tin Plate Co., D.C., 22 F.Supp. 75; Cold Metal Process Co. v. Carnegie-Illinois Steel Corp., 3 Cir., 108 F.2d 322. This record shows that the inventions they embodied have been adopted widely in the industry. The principal fraud claimed to have been practiced in the procurement of 1,-744,016 is that appellees’ expert witness, Clark, is alleged to have falsely represented to the Patent Office under oath that the Steckel Mill and its process inherently produced a revolutionary type of steel and oth- or metals in that it eliminated objectionable preferred orientation of the crystal grains which impairs the quality of the product and necessitates an intermediate annealing process. It is alleged that Clark falsely declared that the Steckel process and mill secured the desirable random orientation and that the Patent Office was thereby induced to allow the process and apparatus claims of the patent theretofore rejected. We have no difficulty with this phase of the case. As pointed out in the careful and elaborate findings of fact of the District Court, which are amply supported by the record, appellant’s contention as to patent 1,744,016 is based upon the theory that Clark represented to the Patent Office that the Steckel Mill secured complete and perfect random orientation. A careful reading of Clark’s reports and affidavits shows that what he did represent is fairly summarized in his statement that “The Steckel pattern more nearly approaches the ideal x-ray pattern than any I have ever observed in my own researches or have ever seen published.” The record supports the finding of the District Court that this and similar statements were believed by Clark to be true, and were, when considered in their entirety, true. The District Court was clearly correct in concluding that neither fraud nor mutual mistake of fact existed in the procurement of this patent. A less simple situation is presented as to patent 1,799,195; but we think that the District Court correctly disposed of this phase of the case also. The circumstance that both Steckel and Biggert & Johnson, who at the time were prosecuting separate patent applications covering overlapping processes and, disclosures in 4-h rolling mills, were represented in the Patent Office in the allowance of their patents and in interference proceedings by the same attorneys, the Byrnes firm, of course resulted in difficulty. Both parties insisted upon the retention of the attorneys and the representation of their conflicting interests by the same firm was by express consent; hence the action taken by the attorneys, so far from being fraudulent, was in strict accord with the sixth canon of ethics of the American Bar Association. The Patent Office, which handled the separate patent applications through the same primary examiner and the same assistant examiner, necessarily was aware of the representation of two sets of parties by one firm and of the common ground covered by the patent applications. Over 14 years after the event the former Commissioner of Patents declared, in effect, that he wras not apprised of the circumstances surrounding the allowance of the Steckel patent; and yet before its issuance a formal motion to reopen the interference proceedings was filed by Biggert & Johnson, to which was appended as an exhibit the contract of June 20, 1927, negotiated by the Byrnes firm between Biggert & Johnson and Steckel, and here alleged to be fraudulent. The motion also attacked the proceedings because of situations which arose from representation of conflicting interests by one and the same firm of attorneys, the Byrnes firm. The Commissioner’s decision dismissing the motion to reopen, dated October 8, 1930, recites the existence of the contract. He testified that his office gave these matters careful consideration, and it is evident that he could not have been misled. While all questions presented have been considered, it would serve no purpose to detail the extremely voluminous testimony and exhibits, the salient portions of which have been summarized in the findings of the District Court, which.are complete, responsive to and amply supported by the record. These findings are binding here if the record offers an adequate basis for the conclusions and inferences drawn by the District Court. Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883. But appellant’s contentions repeatedly ignore the findings and the substantial evidence upon which they are based. The weight of the testimony establishes, and the District Court found, that the parties did not enter into any plan to deceive the Patent Office. No perjury was committed in the proceedings before the Patent Office, as ivas the case in Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381. Nor, as found bv the District Court, were the facts misrepresented to the Commissioner or his examiners, as was the case in Federal Communications Commission v. WOKO, Inc., 329 U.S. 223, 67 S.Ct. 213. The essential acts and relationship of the parties were known to the Patent Office before patent 1,799,195 was issued. Both patents have now expired. If, as significantly found by the District Court, the Government was as strongly convinced that these patents were procured by fraud as is now urged, there is no adequate explanation why the present suit to cancel the patents was not filed until some 13 years after all of the facts were fully revealed to the Patent Office. The judgment of the District Court is affirmed.

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

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

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO (IAM), IAM District Lodge 143, Appellees, v. NORTHWEST AIRLINES, INC., Appellant. No. 87-5235. United States Court of Appeals, Eighth Circuit. Submitted Sept. 2, 1987. Decided April 5, 1988. John J. Gallagher, Washington, D.C., for appellant. Joseph Guerrieri, Jr., Washington, D.C., for appellees. Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge. MAGILL, Circuit Judge. Northwest Airlines (NWA) appeals from the grant of a permanent injunction by the district court requiring NWA to continue to abide by union security and dues check-off provisions in two collective bargaining agreements administered by the International Association of Machinists (IAM). On appeal NWA contends that the district court did not have jurisdiction to issue the injunction. We disagree with the district court as to its analysis of the case, and we hold that the court was without jurisdiction under the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq. (1982), to grant the injunction. I. BACKGROUND. On August 12, 1986, NWA merged with Republic Air. Before the merger employees of both airlines had been represented separately by three unions: Brotherhood of Railway, Airline and Steamship Clerks (BRAC), Air Line Employees Association (ALEA), or IAM. IAM represented NWA employees in the mechanics-related craft or class under a collective bargaining agreement referred to as the Tan Book. That agreement is not at issue in this suit. BRAC represented NWA employees in the office, clerical, fleet and passenger service craft or class (clerical class), under another bargaining agreement (the Green Book). At Republic Air, both classes of employees were represented by ALEA under the Orange Book. On the date of the merger, NWA notified BRAC, IAM, and ALEA that ALEA’s certification was extinguished by the merger. NWA also informed the unions that the former Republic Air employees in the clerical class would now be represented by BRAC, and the former Republic Air mechanics-related workers would be represented by IAM. Thus, IAM continued to represent NWA workers under the Tan Book and IAM administered the Orange Book for former Republic Air workers. In anticipation of the merger, BRAC and NWA had worked out a Transition Agreement. Paragraph 13 of the Transition Agreement provided that the Agreement shall be binding on any successor labor organization. The Transition Agreement generally provided that the Green Book would be now applicable to those employees formerly in ALEA. Specifically, paragraph 8(b) of the Transition Agreement stated that Article 29 of the Green Book would govern the employees formerly represented by ALEA, as well as all BRAC-represented employees. Paragraph 8(a) specifically made any conflicting provisions of the Orange Book inoperative. No transition agreement was worked out with IAM concerning the former Republic Air mechanics-related employees, but it was undisputed that the Orange Book set forth the collective bargaining agreement applicable to those former ALEA employees represented by IAM. Throughout this process, with specified exceptions not relevant here, NWA continued operating under the terms of the collective bargaining agreements negotiated with the predecessor unions. However, it refused to honor the dues check-off and union security provisions based on the Green Book and the Orange Book. Article 29 of the Green Book is entitled “Union Security.” Article 29H. contains the dues check-off provision. Article 291. states: “This article shall be in force only so long as the Union continues as the recognized representative of the employees under this Agreement.” Article 29 also defines the term Union “as used herein” to mean BRAC. The Orange Book, which governed ALEA and Republic Air before the merger, was cast in different terms. There was no express provision in the sections on dues check-off and union security which would limit the effectiveness of those sections to only ALEA. However, NWA apparently interpreted section 24 of the Orange Book as an implied authorization for cessation of deduction of the union dues. Section 24 states that NWA is to deduct dues and remit them to the “Union.” The “Union” in the Orange Book was originally defined in the preamble as the “Air Line Employees Association, International.” NWA also relied on the authorization forms described in the Orange Book, which expressly assigned to ALEA the dues that were subject to checkoff. On May 12, 1987, the National Mediation Board ordered a runoff election between BRAC, ALEA, and IAM to determine who would be the sole representative for all classes of employees. IAM was certified as the representative of the clerical class as a result of that election. Thus, IAM became the representative of both classes of workers and has administered all three collective bargaining agreements from that time on. It is undisputed that IAM and NWA are both bound by the existing agreements. NWA refused to honor the dues checkoff and security provisions of the Orange and Green Books, reasoning that they were not binding because BRAC and ALEA were replaced by a successor union. IAM brought suit against NWA, seeking an order requiring NWA to honor the dues check-off and union security provisions of the Orange and Green Books. The district court entered a permanent injunction which, in its judgment, preserved the status quo by requiring NWA to abide by the provisions. The injunction required NWA to deduct employees’ union dues and remit them to IAM if an individual employee had authorized such action. The district court found the disagreement to be a major dispute and held that “it must be resolved according to the notice, negotiation, and mediation procedures outlined in the Railway Labor Act, 45 U.S.C. Sections 151 et seq.” Joint Appendix at 299. The district court then ordered that pending mediation, the security provisions and the contract obligations of NWA to check-off dues must continue as part of the status quo. The district court characterized the determinative issue as whether the dispute was major or minor. The court stated: The Court rejects and holds that there is not any reading of paragraph 13 which would render [Article 29] a nullity in the event of the selection of any other union than BRAC by the employees. Joint Appendix at 294. The court then concluded: Paragraph 13 of the transition agreement served to modify the BRAC-North-west agreement’s prohibition, if any, there was on the application of the union’s security and dues check-off provisions of that agreement to any labor organization other than BRAC. Paragraph 13 specifically contemplated that Article 29 as well as other provisions of the BRAC-Northwest agreement would be binding on a successor labor organization such as the IAM. Joint Appendix at 297-98. The district court also found the relevant provisions of the Orange Book did not even “purport on their face to limit [their] application.” Joint Appendix at 298. II. ANALYSIS. In our view, this case presents a clear example of a minor dispute, and thus the district court was not properly vested with jurisdiction. A minor dispute is a disagreement over the interpretation and application of an existing collective bargaining agreement. The district court characterized the dispute in this case as major, based on its conclusion that the contract provisions at issue were susceptible to only one construction. The court held that NWA’s actions constituted a change in the collective bargaining agreement, mandating resolution under section 6 of the RLA. We disagree. NWA submits that the proper construction of Article 29 of the Green Book, read in conjunction with the Transition Agreement, is that the dues check-off and security provisions ceased, or “dropped dead,” when IAM succeeded BRAC in May of 1987. NWA makes the following argument in support of its position: (1) by virtue of paragraph 13 of the Transition Agreement, IAM was bound by the Transition Agreement as the certified successor labor union; (2) by virtue of paragraph 8(b) of the Transition Agreement, Article 29 of the Green Book continued in full force and effect from the date of the merger, and its provisions could be triggered by the election of IAM as the successor labor union to BRAC; (3) by virtue of Article 29, section I of the Green Book, Article 29 ceased to be a part of the Green Book, or “dropped dead” when IAM replaced BRAC because BRAC was no longer the recognized representative of the NWA clerical workers. It is not our function to interpret or construe the language of the contract. Rather, our function is to determine whether this case implicates a question of contract interpretation. We conclude that it does. The salient feature characterizing a section 3 minor dispute is that its resolution turns upon interpretation of the contract. See supra n. 3. Moreover, where the parties disagree over whether the dispute can be resolved by reference to an agreement, the dispute is minor unless the claims of contractual justification are “frivolous” or “obviously insubstantial.” Maine Central Railroad Co. v. United Transportation Union, 787 F.2d 780, 783 (1st Cir.), cert. denied, — U.S. —, 107 S.Ct. 169, 93 L.Ed.2d 107 (1986); Chicago and Northwestern Transportation Co. v. United Transportation Union, 656 F.2d 274, 278-79 (7th Cir.1981) (listing cases). This circuit has framed the test as follows: This Court has said that a dispute is minor if the agreement is “reasonably susceptible” of the interpretations sought by both the employer and the employees. Other courts have said that a dispute is minor if the employer’s action can be arguably justified under the terms of the existing agreement, or that the dispute is minor unless the employer’s argument that its actions are within the contract is “obviously insubstantial.” These locutions are essentially the same in their result. They illustrate the relatively light burden which the [airline] must bear in showing that its actions are at most minor changes and thus within the status quo. Brotherhood of Maintenance of Way Employees v. Burlington Northern Railroad Co., 802 F.2d 1016, 1022 (8th Cir.1986) (citations omitted); see also United Transportation Union v. Burlington Northern, Inc., 458 F.2d 354, 357 (8th Cir.1972). This rule is a necessary adjunct of the need to protect the arbitrator’s exclusive jurisdiction over minor disputes; this concern supports the additional corollary that “when in doubt, the courts construe disputes as minor.” Brotherhood of Locomotive Engineers v. Atchison, Topeka and Santa Fe Railway Co., 768 F.2d 914, 920 (7th Cir.1985). Because we believe that NWA’s contract construction is plausible, and in any event not frivolous or obviously insubstantial, we conclude that the district court erroneously asserted jurisdiction over a minor dispute. The “drop dead” provision is nothing more than a durational clause similar to the one construed in Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 809 F.2d 483 (8th Cir.1987), aff'd per curiam by an equally divided court, — U.S. —, 108 S.Ct. 1101, 99 L.Ed.2d 150 (1988). To hold that any dura-tional clause embodied in a collective bargaining agreement is inoperable as a matter of law and the contract continues subject to procedures under section 6 of the RLA is an impermissible restriction on the parties’ ability to contract. Although we agree that the collective bargaining agreement should be construed in a manner consistent with RLA policy, it does not follow that a court should disregard entirely the negotiated terms of the agreement. This court has noted that “a dues checkoff provision is purely a creature of contract.” Trans World Airlines, 809 F.2d at 491. The same is true of union security. Thus, we do not believe that it is proper for a federal court to disrupt the collective bargaining process by issuing a status quo injunction artificially extending a contractual right throughout the “almost interminable” process under section 6 of the RLA. In this context a status quo injunction would not be a neutral act. It would directly benefit the Union and could have the effect of extending the union security and dues check-off provisions far beyond the time contemplated by the parties. One of the laudatory goals of the RLA is to promote good faith bargaining between union and management, but giving the Union the leverage of a status quo injunction enforcing the dues check-off and union security provisions may in fact disrupt good faith bargaining. We think that the First Circuit stated it best in International Association of Machinists and Aerospace Workers v. Eastern Airlines, Inc., 826 F.2d 1141 (1st Cir.1987), when it stated that: The granting of the preliminary injunction in this case [will give] the IAM an advantage that neither the law, the collective bargaining agreement, nor labor relations practice contemplates. * * * If [IAM loses its union security and dues check-off rights], the answer to this problem is not through judicial intervention in the reformation of a collective bargaining agreement, but rather through the renegotiation of these provisions when the appropriate time arises. This is a private matter between the negotiating parties in which the courts have no business intervening. Id. at 1148 (citations omitted). Further, to the extent that the district court relied on Manning v. American Airlines, Inc., 329 F.2d 32 (2d Cir.), cert. denied, 379 U.S. 817, 85 S.Ct. 33, 13 L.Ed.2d 29 (1964), we disagree. The Manning court construed the durational language governing dues check-off found in an agreement that was separate from the main collective bargaining agreement. The language provided that the check-off agreement “shall be subject to renewal thereafter only by mutual agreement of the parties hereto.” Manning, 329 F.2d at 34. The court stated that “[i]n our view the * * * language meant only that automatic renewal of the basic agreement would not carry the check-off agreement along with it.” Id. We disagree with the Manning decision for two reasons. First, we disagree with the court’s interpretation of the check-off agreement’s durational clause. We think it is clear that the language in the check-off agreement was intended to prevent its automatic renewal. Second, to the extent that the Manning court attempted to interpret the check-off agreement language, the court exceeded its role. The court should only have looked at the language of the agreement to determine if management had met its “relatively light” burden of showing that its action was based on its interpretation of the agreement. That is the role that we exercise in this case. We believe that NWA’s actions were based on a plausible reading of the relevant agreements. Finally, we note in passing that there is a strong public policy against judicial involvement in labor disputes by way of injunctive relief. See IAM v. Eastern Air Lines, 826 F.2d 1141, 1145 (1st Cir.1987). Based on the foregoing, we conclude that the district court lacked jurisdiction to issue an injunction in this case. Accordingly, the order of the district court is reversed, and the injunction is dissolved. . A union security provision requires that an employee be a member in good standing of the union as a condition of continued employment. A dues check-off provision requires the carrier to deduct union dues from the paychecks of employees who expressly authorize such deductions, and remit the deductions to the union. . NWA did in fact deduct dues for BRAC-repre-sented NWA employees in the clerical class up until the time that IAM was certified as the representative of that class. However, on August 12, 1986, NWA ceased dues check-off for the ALEA group when IAM assumed representation of them. IAM did not make a demand for union dues check-off until May 12, 1987, when it was elected and certified as the sole bargaining representative. . A minor dispute is a disagreement over the interpretation and application of an existing agreement, and may be resolved by the National Railroad Adjustment Board pursuant to section 3 of the RLA, codified at 45 U.S.C. § 153. On the other hand, a major dispute is a disagreement over the formation of or a change in a collective bargaining agreement. Only if the dispute is properly categorized as major does jurisdiction lie in the federal courts to preserve the status quo while the parties pursue mediation under section 6 of the RLA, codified at 45 U.S.C. § 156. See Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945). . Similar considerations govern our analysis of the Orange Book and lead us to conclude that it is reasonably susceptible to more than one interpretation. We believe that Section 24, when read in conjunction with the preamble, could support NWA’s interpretation that the agreement authorized the cessation of dues check-off when IAM succeeded ALEA in the administration of the Orange Book. . With respect to successor unions and their rights under collective bargaining agreements negotiated by a prior union, the National Mediation Board (NMB) has taken the position that "a change in representation does not alter or cancel any existing agreement made in behalf of the employees by their previous representatives.” The First Annual Report of the NMB at 23-24 (1935) (II Joint Appendix at 312-13). We agree with this position, and we do not believe that giving effect to the “drop dead” clause violates the principles announced by the NMB. Giving effect to the "drop dead" clause will honor the CBA as negotiated by the prior representative with the clause left intact. For us to accept IAM’s argument in support of excising the "drop dead" clause, however, would violate these principles announced by the NMB.

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"?

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

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

Winnie Ruth MOTTELER, Plaintiff-Appellant, v. J. A. JONES CONSTRUCTION COMPANY, Defendant-Appellee. No. 71-1156. United States Court of Appeals, Seventh Circuit. June 28, 1971. Norman E. Hay, Cannelton, Ind., Charles S. Gleason, Indianapolis, Ind., Gleason, Woods & Johnson, Indianapolis, Ind., Birchler & Hay, Cannelton, Ind., for plaintiff-appellant. James V. Donadío, Indianapolis, Ind., for appellee. Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges. PER CURIAM. The plaintiff-appellant has petitioned for a rehearing en banc of the order entered April 22, 1971, in the above-entitled cause. No judge in active service has requested that a vote be taken on the suggestion for an en banc rehearing, and the petition for rehearing, insofar as it requested en banc consideration, is denied. However, on the basis of additional facts presented to it and for the reasons set forth below, the panel has concluded that the order entered April 22, 1971, dismissing the appeal in the above-entitled matter, must be vacated. The petition for rehearing is therefore granted and it is ordered that this appeal be reinstated. On February 20, 1970, appellant filed a complaint which alleged admiralty or maritime claims. The district court granted summary judgment for appellee on October 26, 1970. Appellant filed her notice of appeal on January 15, 1971. On April 22, 1971, we dismissed appellant’s appeal for her failure to comply with the requirement of Rule 4(a), Fed. R.App.P., that her notice of appeal be filed “within 30 days of the date of the entry of the judgment or order appealed from.” At that time, appellant relied, on 28 U.S.C. § 2107, which allows 90 days for filing the notice of appeal in admiralty matters. Our April 22, 1971, order corectly pointed out that under 28 U.S.C. § 2072, Rule 4(a), Fed.R.App.P., overrides such conflicting statutes. However, appellant has now pointed out, for the first time, that she filed a “Motion to Reconsider” in the district court. Appellant argues that the filing of this motion terminated the running of the time within which she was required to file her notice of appeal. On November 5, 1970, within ten days of the entry of summary judgment against her, appellant filed a “Motion for Enlargement of Time to File Motion to Reconsider Judgment Entry.” On November 9, 1970, the district court granted this motion, extending to November 30 the time within which appellant could file her motion to reconsider. Appellant’s motion to reconsider was then filed within the time limits set by the district court. On January 12, 1971, the district court, sua sponte, denied the motion to reconsider as untimely filed. We believe that appellant’s “Motion to Reconsider” was, in effect, a motion under Rule 59(e), Fed.R.Civ.P., to alter or amend judgment. See Pierre v. Jordan, 333 F.2d 951, 955 (9th Cir. 1964), cert. denied, 379 U.S. 974, 85 S.Ct. 664, 13 L.Ed.2d 565 (1965). Under Rule 4(a), Fed.R.App.P., the motion would, if timely filed, have terminated the running of the time for filing an appeal. Appellee correctly points out that a motion under Rule 59(e) must be filed within ten days of the entry of judgment and that under Rule 6(b), Fed.R.Civ.P., the district court is powerless to extend the time within which such a motion may be filed. Appellee argues that the November 9, 1970, order enlarging the time within which the motion to reconsider could be filed was therefore a nullity and that the motion to reconsider was not “timely” as required by Rule 4(a), Fed. R.App.P., and could not terminate the running of the time for filing an appeal. While a literal reading of the Federal Rules of Civil and Appellate Procedure would support the appellee’s position, the Supreme Court has refused to deny a litigant access to the court of appeals because of late filing of his notice of appeal where the late filing resulted from the litigant’s reliance on a district court’s erroneous grant of an extension of time within which to file a motion which, if properly filed, would terminate the running of the time for filing an appeal. The leading case is Thompson v. Immigration and Naturalization Service, 875 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), which reversed a decision of this court dismissing a late-filed appeal. There the district court had taken an untimely motion for new trial under advisement, had declared that the motion was made “in ample time,” and had subsequently denied the motion for a new trial after the time for filing an appeal from the initial decision had expired. The Supreme Court held that where a party files a post-judgment motion which, if timely filed, would postpone the deadline for his appeal, but files it too late under the applicable rule, his reliance on statements or actions of the district court indicating that his motion was timely filed will relieve him of the detrimental consequences that would otherwise result. In Wolfsohn v. Hankin, 116 U.S.App.D.C. 127, 321 F.2d 393 (1963), rev’d, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964), the court of appeals dismissed as untimely filed an appeal almost identical to the one before us. There the district court had entered an order extending the time within which the appellant could move for rehearing under Rule 59. In reliance on this extension of time, the appellant did not file his motion for rehearing within ten days and did not file his notice of appeal until after his motion for rehearing was denied, several months after the original judgment entry. The Supreme Court summarily reversed the court of appeals on the authority of Thompson, supra. See also Pierre v. Jordan, supra, Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967); and 9 J. Moore, Federal Practice ¶ 204.12 [2] (2d ed. 1970). Our analysis of the foregoing authorities convinces us that appellant’s appeal should not have been dismissed. The district court erroneously extended the time within which appellant could file her motion to reconsider. The court took the motion under advisement and gave every indication that it intended to rule on the motion on its merits. After holding the motion until the time within which appellant might have appealed from the initial judgment had run, the court, sua sponte, dismissed the motion to reconsider as untimely filed. This is precisely the situation which the Supreme Court considered in Wolfsohn v. Hankin, supra, and that decision compels us to vacate our order dismissing this appeal as untimely filed.

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.

Jose SIABA-FERNANDEZ, Petitioner, v. George K. ROSENBERG, District Director of Immigration and Naturalization, Respondent. No. 17654. United States Court of Appeals Ninth Circuit. April 11, 1962. Philip Barnett, Los Angeles, Cal., for appellant. Francis C. Whelan, U. S. Atty., Donald Fareed and James R. Dooley, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before BARNES, HAMLEY and JERTBERG, Circuit Judges. PER CURIAM. Plaintiff filed this action in the district court praying that “the matter be remanded to the Immigration and Naturalization Service for further hearing on plaintiff’s rights to further discretionary relief based upon his family ties in the United States,” and that a “declaratory judgment be made herein declaring the outstanding order and warrant for his deportation null, void and unenforceable.” By order dated November 7, 1961 the district court transferred the action to this court pursuant to Section 5(b) of Public Law 87-301 (75 Stat. 653), 8 U.S.C.A. § 1105a note. Plaintiff is an alien, a native and citizen of Spain. He was admitted to the United States on or about April, 1955 as a nonimmigrant crewman, and was authorized to remain in the United States as a nonimmigrant for a period not to exceed twenty-nine days. On November 3, 1960 (more than four years after his authorized stay had expired) an order to show cause and notice of hearing was issued by the Immigration and Naturalization Service, Los Angeles, California (hereinafter referred to as defendant), charging that the plaintiff was subject to deportation pursuant to: “Section 241(a)(2) of the Immigration and Nationality Act, in that, after admission as a nonimmigrant under Section 101(a) (15) of said Act you have remained in the United States for a longer time than permitted.” On November 10,1960, pursuant to the above order, a deportation hearing was commenced at Los Angeles, California. At this, hearing the special inquiry officer advised plaintiff, inter alia, that plaintiff had a right to be represented, at no expense to the government, by counsel of his choice. Upon learning that plaintiff had not retained counsel and was without financial means to do so, the special inquiry officer informed plaintiff that some special agencies might furnish him representation without charge. After indicating a desire to contact these agencies, the addresses of certain agencies were provided the plaintiff and the special inquiry officer adjourned the deportation hearing for the purpose of affording plaintiff an opportunity to obtain representation. The deportation hearing was continued on November 17, 1960. Plaintiff was represented by Mrs. Agnes P. Matica of the International Institute of Los Angeles. Plaintiff affirmatively stated his wish to be represented by Mrs. Matica at the hearing. During the deportation hearing, plaintiff admitted the factual allegations contained in the order to show cause and also admitted that he was deportable on the charges set forth therein. Plaintiff did not request, nor did anyone make reference to, the privilege of voluntary departure during the hearing. When asked if there was any evidence to be presented or if any questions were to be asked of plaintiff, his representative replied: “It is not our intention to ask any questions of [plaintiff], and we have written a communication to Congressman Rousselot who, on the basis of the information at his disposal at present, has agreed to introduce a private bill on behalf of [plaintiff] when Congress reconvenes. We have this letter here and can present it as evidence, and may wish to present further medical evidence relating to [plaintiff’s] condition at some future time.” The special inquiry officer rendered his decision at the close of the November 17, 1960 hearing, and ordered that plaintiff be deported from the United States in the manner provided by law on the charge contained in the order to show cause. A copy of the decision was furnished plaintiff’s representative during the deportation hearing, and plaintiff’s representative thereafter waived the right to appeal. The questions presented to this court are: 1. Does this court have jurisdiction? 2. Was plaintiff denied due process of law with respect to his right to be represented by counsel or his right to file an application for discretionary relief, to wit: voluntary departure ? 3. Is plaintiff’s good moral character or his statutory eligibility for voluntary departure an issue in this proceeding? 4. Is the decision of deportability based upon reasonable, substantial, and probative evidence? Defendant contends that the plaintiff’s failure to take an administrative appeal precludes this court from exercising jurisdiction under Public Law 87-301. Defendant is correct. The order of deportation was entered by the special inquiry officer on November 17, 1960 at the conclusion of the deportation hearing, and his written decision was served upon plaintiff’s representative at that time. Having waived his right to an administrative appeal, and, alternatively, since the ten days specified time for plaintiff to take such an appeal expired before the instant cause was commenced, the deportation order outstanding against plaintiff is final. Section 106(c) of the Immigration and Nationality Act, as amended by Public Law 87-301 (75 Stat. 653, 8 U.S.C.A. § 1105a(c) provides in pertinent part: “(c) An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies-available to him as of right under the immigration laws and regulations * * Under the regulations, promulgated pursuant to the Immigration and Nationality Act, plaintiff was entitled to take an appeal from the decision of the special inquiry officer to the Board of Immigration Appeals. Did Congress intend to deny, by Section 106(c), judicial review to aliens who failed to take advantage of their right to appeal to the Board of Immigration Appeals ? Or did Congress, by Section 106(c), not deny judicial review where the order of deportation is, as here, final because an alien has failed to exhaust, or has waived, administrative remedies? The portion of Section 106(e) quoted above seems to us clear and unambiguous. We hold Congress intended to deny judicial review to aliens who failed to take advantage of their right to administrative remedies. Congress must be held to have been aware that the theory of exhaustion of administrative remedies by not pursuing them is without support in precedent or in reasoning and “It is one of the necessities of the administration of justice that even fundamental questions should be determined in an orderly way.” We have so held previously, and do again. This court has no jurisdiction. The petition is dismissed without prejudice to the plaintiff to seek any other relief which may be available to him. . Section 106(a) of the Immigration and Nationality Act, as amended by Public Daw 87-301 (75 Stat. 651, 8 U.S.C.A. § 1105a(a)) confers original jurisdiction upon this court to review “ * * * all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Acc or comparable provisions of any prior Act * * . Mrs. Matica filed a Notice of Appearance as “an accredited representative of the following named religious, charitable, social service, or similar organization established in the United States and which is so recognized by the Board: International Institute of Los Angeles.” Such representation is authorized by regulation. 8 C.F.R. § 292.1, 23 F.R. 2672, 9124; 8 C.F.R. § 1.1 (j), 23 F.B.. 9115. . 8 C.F.R. § 242.21, 22 F.R. .9798, in pertinent part, reads: “§ 242.21 Appeals. * * * * * “(c) Time for taking appeal. An appeal shall be taken within ten clays after the mailing of a written decision or of a typewritten copy of an oral decision or the service of a summary decision on Form 1-38 or 1-39.” . 8 C.F.R. § 242.20, 22 F.R. 9798, as amended by 23 F.R. 9123, in pertinent part reads: “§ 242.20 Finality of order. The order of the special inquiry officer shall be final except when the case has been certified as provided in Part 3 or Part 103 of this chapter, or an appeal is taken to the Board of Immigration Appeals by the respondent or the examining officer.” . 8 C.F.R. § 242.21, as see also 8 C.F.R. § 3.1. . Olinger v. Partridge, 9 Cir. 1952, 196 F.2d 986, at 987; see also, Batista v. Nicolls, 1 Cir. 1954, 213 F.2d 20. . United States v. Sing Tuck, 1904, 194 U.S. 161, at 168, 24 S.Ct. 621, at 623, 48 L.Ed. 917; see also Florentine v. Landon, 9 Cir. 1953, 206 F.2d 870.

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

IOWA TERMINAL RAILROAD CO., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Iowa Traction Railroad Co., Intervenor. No. 87-1051. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 9, 1987. Decided Aug. 9, 1988. Peter A. Greene, with whom R. Hale Foote, Washington, D.C., was on the brief, for petitioner. Laurence H. Schecker, Atty., I.C.C., with whom Robert S. Burk, Gen. Counsel, John J. McCarthy, Jr., Deputy Associate Gen. Counsel, I.C.C., and Catherine G. O’Sullivan and Marion L. Jetton, Attys., U.S. Dept, of Justice, Washington, D.C., were on the brief, for respondents. Thomas F. McFarland, entered an appearance for intervenor Iowa Traction R. Co. Before EDWARDS, SILBERMAN and BUCKLEY, Circuit Judges. Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: Iowa Terminal Railroad Company petitions for review of an Interstate Commerce Commission order establishing the sale price for a 10.4-mile section of Iowa Terminal’s line. The Commission issued the order pursuant to a statute that permits a prospective purchaser to require the sale of railroad facilities that would otherwise be abandoned. Because we find certain of the Commission’s valuations to be unsupported by either the evidence or the statute, we remand them to the Commission for further consideration. I. Background On March 7, 1986, Iowa Terminal Railroad Company (“Iowa Terminal”) filed an application with the Interstate Commerce Commission (“ICC” or “Commission”) to abandon its entire 26.1-mile electric railroad line in Cerro Gordo and Floyd Counties, Iowa. Petitioner’s decision to abandon the line brought the railroad within the terms of a detailed statutory framework designed by Congress to keep viable lines in operation. Because of the importance of rail transportation, Congress has declared that railroads may not terminate service except with prior approval of the ICC, 49 U.S.C. § 10903 et seq. (1982), or pursuant to an exemption by the ICC from the approval provisions of the Interstate Commerce Act. 49 U.S.C. § 10505. Furthermore, within ten days after the ICC publishes a decision allowing a railroad to abandon a line, any person may offer to purchase it. 49 U.S.C. § 10905(c). If the ICC finds that an offer is bona fide and the offeror financially responsible, it must suspend its permission to abandon in order to allow the parties to negotiate a sale. 49 U.S.C. § 10905(d). In the event the parties cannot agree on terms, either party may ask the ICC to determine the price and other terms of sale. 49 U.S.C. § 10905(e). The Commission shall “[i]n no case ... set a price which is below the fair market value of the line (including ... all facilities on the line or portion necessary to provide effective transportation services).” 49 U.S.C. § 10905(f)(1)(C). Unless the offeror withdraws his offer within ten days of the ICC’s determination of the terms of the sale, the offeror is bound by that determination. 49 U.S.C. § 10905(f)(2). Once the line has been purchased, the purchaser may not discontinue service for at least two years. 49 U.S.C. § 10905(f)(4). In this case, the ICC granted petitioner permission to abandon the line. Shortly thereafter, on September 16, 1986, Iowa Traction Railroad Company (“Iowa Traction”) offered $263,161 to purchase a 10.4-mile portion of petitioner’s line known as the Mason City Division. The ICC accepted the offer as bona fide and stayed the abandonment certificate to permit the parties to complete the transaction. The companies were unable to reach an agreement and, pursuant to section 10905(e), Iowa Traction asked the ICC to set the purchase price. After reviewing written submissions by both railroads, the ICC determined that the proper price for the Mason City Division was $319,500. Iowa Terminal Railroad Co., Docket No. AB-269 (Jan. 8, 1987) ^Valuation Decision”), Joint Appendix (“J.A.”) at 384. Iowa Traction accepted the terms, J.A. at 398, and Iowa Terminal filed a petition for review. It also petitioned the ICC to stay the sale pending review, which the ICC declined to do. Iowa Terminal Railroad Co., Docket No. AB-269 (Mar. 24, 1987) (“Denial of Stay”), J.A. at 468. Petitioner contends that the ICC substantially undervalued the Mason City Division in violation of its statutory obligation to set a price no lower than the “fair market value” of the line. Indeed, petitioner argues that the price set by the ICC is so woefully inadequate that it constitutes an “unconstitutional taking” in violation of the Fifth Amendment to the United States Constitution. II. DISCUSSION A. The Meaning of “Fair Market Value” The ICC establishes the “fair market value” of rail facilities under 49 U.S.C. § 10905(f)(1)(C) by calculating the net liquidation value of the assets for their “highest and best nonrail use.” Chicago & North W. Transp. Co., 363 I.C.C. 956, 958 (1981), aff'd, 678 F.2d 665 (7th Cir.1982). In a thoughtful analysis of the statute, which we here adopt, the Seventh Circuit concluded that the ICC’s application of section 10905 was appropriate, and that the sales price established in accordance with its terms met the constitutional obligation to provide the seller with just compensation. Chicago & North W. Transp. Co. v. United States, 678 F.2d 665 (7th Cir.1982). Because the provisions of section 10905 “generally affect only those lines which ... have been found not economically viable,” a railroad intent on abandoning a line is fairly compensated when it receives “what [it] would have had but for the taking,” namely, “the nonrail market value of [its] assets.” Id. at 668. To assist the Commission in determining the net liquidation value of rail facilities, ICC regulations provide that the prospective purchaser must submit an estimate of their value and “provide reasons why its estimates are correct_” 49 C.F.R. § 1152.27(h)(3) (1987). The seller then submits a reply. 49 C.F.R. § 1152.27(h)(4) (1987). Because the Commission must render its decision within sixty days from the date on which a request for ICC intervention is made, 49 U.S.C. § 10905(f)(1)(A), the price and other terms of sale will normally derive entirely from these written submissions. Chicago & North W., 678 F.2d at 671. Nevertheless, the buyer “has the burden of proof as to all issues in dispute,” 49 C.F.R. § 1152.27(h)(3), and must present sufficient evidence of the line’s value to meet that burden. B. The Value of the Mason City Division Petitioner argues that the ICC undervalued the Mason City Division’s right-of-way, track, land, buildings, and rolling stock. In considering each element of the valuation order, we are mindful that the ICC’s decision “must be upheld if, based on the record before it, the ICC decision is not arbitrary or capricious.” Illinois Cent. Gulf R.R. Co. v. ICC, 717 F.2d 408, 412 (7th Cir.1983). While we may not substitute our judgment for that of the agency, we must nevertheless satisfy ourselves that the ICC considered all relevant factors and provided a reasoned explanation for its decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). 1. The Right-of-Way Petitioner owns three sections of the railroad’s right-of-way in fee simple, and argues that the ICC erred in concluding that they have no value. We agree with petitioner in the case of two of the rights-of-way, but not in the case of one it had agreed to donate, in the event of an abandonment, to the Cerro Gordo County Conservation Board. Letter of Agreement dated October 13, 1986 (“Letter of Agreement”), J.A. at 319-20. Petitioner asserts that as the abandonment did not take place, the proposed gift should be viewed as a nullity; and as Iowa Traction would be using the right-of-way in its operations, it should be required to pay for it. Section 10905 requires, however, that the sales price be calculated on the basis of what the seller would have realized from the sale of the assets had the line in fact been abandoned. Nobody disputes that “but for the taking” in this case, petitioner would have transferred the right-of-way to the Conservation Board without compensation. It is irrelevant that Iowa Traction will realize a minor windfall because, as the Seventh Circuit noted in Chicago & North Western, “[t]he purpose of [section 10905] would be frustrated if the Commission were required to consider the value of the [right-of-way] to the offeror” as part of an operating railway rather than the price the seller would have received from the sale of the right-of-way for non-rail uses. 678 F.2d at 668. Petitioner argues, on appeal, that it is at least entitled to the benefit of the tax savings it would have realized had it been able to deduct the value of the right-of-way as a charitable gift in its income tax returns. Reply Brief for Petitioner at 15. Such a position stretches the statute too far. Subsection 10905(f)(1)(C) requires the ICC to determine the fair market value of an asset to a nonrail purchaser, not its after-tax value to the vendor. We have trouble, however, with the ICC’s decision to ascribe no value to a section of fee simple right-of-way between mileposts 0.0 and 1.5. The ICC discounted written offers of $21,500 and $7,000 for portions of the right-of-way because they were “vague, have expired, and include more land and assets than the [right-of-way].” Valuation Decision, J.A. at 388. Instead, the ICC held that the land was worth only $2,500, which the ICC claimed to be petitioner’s own assessment of the interest’s value. Id. The ICC then concluded that Iowa Traction need not pay even $2,500 because “street crossing removal and resurfacing costs will substantially exceed this amount.” Id. The ICC misinterpreted petitioner’s valuation of the interest. In the estimate it submitted to the Commission, petitioner referred to the two written offers for distinct portions of the right-of-way, to an inquiry by a third buyer interested in acquiring another portion of the right-of-way for $1,500, and then placed a value of $2,500 on “the balance of the right-of-way from milepost 0.0 to approximately milepost 1.5.” J.A. at 275. Adding these figures to the railroad's estimate that the balance of the right-of-way not covered by the offers and inquiry is worth $2,500, we find that petitioner valued the entire 1.5-mile stretch at $32,600. In recalculating the value of the right-of-way, the Commission should again consider the written offers submitted by petitioner and determine with some precision the cost of any street-crossing removal and resurfacing petitioner would have been obliged to undertake on abandonment. The fact that the offers have expired is of little relevance absent evidence that the value of the land has since decreased. Lastly, we find no support for the ICC’s conclusion that the fee simple right-of-way between mileposts 2.5 and 6.5 has no value. Petitioner submitted evidence that it had received an offer to buy this and other land for $92,000. J.A. at 274-75. The ICC addressed the offer for the first time in its appellate brief, where it asserted that the offer merited “little weight” because it covered more than simply the right-of-way. Brief for Respondents at 25. While we agree that the offer is not as neatly tailored as it might be, this defect does not by itself support the Commission’s conclusion that the four-mile right-of-way has no value whatsoever. 2. Track and Ties Petitioner argues that the ICC committed a “glaring error” in placing a net value of $50,529 on track and ties. Brief for Petitioner at 21. The Commission based this figure on an Iowa Department of Transportation (“IDOT”) estimate that the tracks had a scrap value of $52,359 after removal costs, and that the cost of removing the ties would exceed their salvage value by $1,830. At the same time, the ICC dismissed three bids petitioner had received for the rail and other track materials that indicated steel scrap values ranging from $58,222 to $73,194. The ICC rejected the first because removal costs were not specifically identified; the second, because it was phrased as “depending on market value at such time” as the transaction would actually take place; and the third, because removal costs were based on the cost of removing rail from a section of the line not subject to the sale. Valuation Decision, J.A. at 388, 389. Petitioner argues that the ICC should not have rejected this evidence and, particularly, that the ICC’s attempt to discredit the removal costs outlined in the third bid “is simply meaningless” because the track on which the estimate was based is only thirty miles from the Mason City Division. Brief for Petitioner at 22. These shortcomings, however, were not decisive; they merely helped persuade the Commission that the IDOT estimate submitted by Iowa Traction was “the most complete and credible evidence of record.” Valuation Decision, J.A. at 389. This decision was not arbitrary or capricious, particularly because Iowa Traction’s submission had been prepared by the IDOT and shared none of the deficiencies that caused the ICC to discredit petitioner’s bids. Nor can we fault the ICC for its approach to the valuation of the railroad ties. The ICC agreed with the IDOT’s conclusion that the ties have a negative value of $1,830 based on its estimate that only fifteen percent of the ties are salvageable and that it will cost 50 cents each to remove them. While petitioner disputes the ICC’s finding as to the percentage of ties that are salvageable, the Commission did not abuse its discretion in crediting the IDOT estimate, informed as it was by that department’s “knowledge of the condition of the ties from routine inspection of the line.” Id. Petitioner correctly points out, however, that had the line been abandoned, it would have had the benefit of the terms of its gift to the Cerro Gordo Conservation Board. These provided that while Iowa Terminal retained the right to salvage rails, ties, and other materials from the 2,000-foot right-of-way, the Board agreed to relieve the railroad of any obligation to remove them. Reply Brief for Petitioner at 15; Letter of Agreement, J.A. at 319. Therefore in its calculation of the salvage value of the ties on this right-of-way, the ICC should have included only those that could have been removed and sold at a profit. Just as the ICC was entitled to rely on petitioner’s conditional gift in finding that the Mason City Division right-of-way has no value, so must it grant petitioner the benefit of having relieved itself, by virtue of the gift, of the obligation to remove the ties. 3. Land at Emery The ICC determined that Iowa Traction should be permitted to purchase an approximately ten-acre parcel of land at Emery at a price of $2,000 an acre. Petitioner argues that only two acres of land should be included in the transaction, and that the land is worth $5,000 an acre. We uphold the ICC’s decision on both counts. Under subsection 10905(f)(1)(C), the ICC is instructed to calculate the value of “all facilities on the line or portion necessary to provide effective transportation services.” Petitioner argues that only two acres of the Emery parcel are “necessary” to operate a railroad. Brief for Petitioner at 12. Indeed, petitioner notes that the remaining land has been leased for many years to a third party for nonrail purposes. Id. In the course of denying Iowa Terminal's petition for a stay, the ICC defended the inclusion of the full parcel: Simply because the land may not have been used in the past for rail operations does not mean that the land cannot be deemed essential for the acquiring party’s future effective transportation services. [Iowa Traction] indicated in its request to set terms that it needed to purchase the entire 10-acre parcel of land ... to conduct operations and to allow for expansion of the shop when a second car storage building was necessary. Denial of Stay, J.A. at 470-71 (footnotes omitted). We accept the ICC’s analysis. The purpose of the statute empowering the Commission to mandate a sale is to keep viable lines in operation. While the land has not been used for rail operations in the past, we will not challenge the ICC’s expert determination that the continued availability of the land is required to assure the effective operation of the Mason City Division in the future. Nor do we believe the Commission acted arbitrarily when it established a value of $2,000 an acre for the land in light of the “lack of sewers, water, or paved streets in Emery....” Although two appraisals (including one by the IDOT) valued the land at approximately $5,000 an acre, J.A. at 220, 306, the ICC found the basis for these valuations inadequately explained. Valuation Decision, J.A. at 388. The ICC relied instead on an appraisal by Edgington Realty that was based on sales of nearby land at between $1,500 and $2,150 an acre. J.A. at 222. While we have certain reservations about the Commission’s decision, we do not find it arbitrary or capricious. The ICC weighed conflicting evidence and, in reasoned fashion, explained why it found the Edgington Realty estimate to be the most credible. 4. The Emery Buildings Petitioner charges that the ICC undervalued two buildings on the land at Emery, an industrial shop and an old car barn. We agree. The ICC determined that Iowa Traction need not purchase the old car barn because it is not necessary to the operation of the line. Thus it placed no value on the structure. At the same time, however, the Commission concluded that the land underlying the barn was necessary to the line’s operation. To resolve this apparent dilemma, the Commission treated the land and structure as severable, noted that Iowa Traction had offered to pay rent for the barn after taking title to the land, and directed the parties to negotiate its disposition. Denial of Stay, J.A. at 471 n. 4. We see nothing in the language or logic of section 10905 that would require a railroad intent on abandoning a line to become an unwilling landlord, or to dispose of less than its entire interest in a “facility” deemed necessary for the line’s continued operation. Buildings and the land on which they are situated are not normally sold independently of one another, and we find it arbitrary and capricious to require petitioner to do so in this instance. If the ICC is to place petitioner in the position it would have been in had it been permitted to abandon the line, the Commission on remand must determine the fair market value of the property, including the barn, to a non-rail user. The Commission’s valuation of the industrial shop is also flawed. Both companies had the shop appraised. Petitioner’s appraiser placed the replacement cost of the building at $260,440. J.A. at 316. Iowa Traction’s appraiser placed it at $258,-300. J.A. at 219. Both agreed that the replacement cost must be depreciated to reach present fair market value; thus, Iowa Traction’s appraiser depreciated his cost by forty percent to reach a present value of $155,900. Id. The ICC rejected these appraisals in favor of a third estimate, also offered by Iowa Traction, which valued the building at $90,000. The ICC rejected the higher appraisals for two reasons. First, the Commission noted that they both included the value of the land underneath the shop, and asserted that it was “unable to evaluate separately the value of the building from the land.” Valuation Decision, J.A. at 390. Second, the ICC rejected the appraisals because “the replacement-cost basis is not proper.” Id., J.A. at 391. The ICC’s decision with respect to the industrial shop is neither rational nor consistent. The Commission could easily have arrived at the value of the building from the total valuation simply by subtracting the per acre values placed on adjoining land. See J.A. at 220, 306. Furthermore, the Commission’s reason for rejecting the higher appraisals, on the ground that “the replacement-cost basis is not proper,” is inconsistent with its acceptance of the third. The $90,000 estimate accepted by the Commission was derived in the same manner. The third appraiser began by determining that it would cost $150,000 to replace the building with one “[sjpecially designed for railroad use (detriment to non-railroad purchasers),” and then depreciated that cost by forty percent. J.A. at 198. Contrary to what the ICC suggested, the distinction between this estimate and those it rejected lies not in its methodology, but in its premise. The third appraiser evidently thought his task was to determine the value of the building for rail use, hence the choice of a replacement model that may well be less suitable than the existing building for non-railroad users. If so, this contradicts the mandate of section 10905, which requires that assets be appraised at market value for nonrail rather than railroad use. Because the ICC did not adequately explain why the third estimate is the most reliable, the valuation must be rejected. 5. Rolling Stock Based on estimates of useful service value provided by Iowa Traction, the Commission assigned a price of $3,500 each to petitioner’s electric locomotives (“motors”), and a value of $3,000 to its single box motor line car. In reaching this conclusion, the ICC rejected several written estimates offered by petitioner that set the total liquidation value of the four motors at between $77,550 and $138,950, and of the box motor line car at between $15,200 and $24,250. J.A. at 285. The ICC rejected petitioner’s estimate for the motors because it was predicated on their spare parts and scrap values. Therefore, the Commission asserted, the estimate did not “establish[] the fair market value of the motors for operational purposes.” Valuation Decision, J.A. at 390 (emphasis added). Yet the operational value of the motors is irrelevant for the purposes of determining net liquidation value unless their operational value is higher than their scrap value. Chicago & North W., 678 F.2d at 669 (salvage value is the “constitutional minimum”). The ICC clarified its decision in the course of rejecting Iowa Terminal’s petition for a stay by explaining that petitioner’s prices were “far in excess of accepted scrap values” and that Iowa Traction had therefore “met its burden” by introducing evidence of their operational value. Denial of Stay, J.A. at 471. This logic is flawed in two important respects. First, the ICC points to no evidence in support of its conclusion that petitioner’s valuations are “excessive.” Second, even if true, simply declaring that petitioner’s estimates are excessive does not mean that Iowa Traction satisfied its burden of establishing that the motors’ operational value exceeds their scrap value. The Commission may accept Iowa Traction’s figures only if it concludes, from record evidence, that this is the case. While Iowa Traction submitted a summary of conversations with various authorities concerning the value of the motors, J.A. at 114-19, the ICC never referred to or endorsed this evidence, or explained why this second-hand summary is more believable than the independent estimates submitted by Iowa Terminal. Because the Commission refused to consider the motors’ spare parts and scrap value, it is impossible for us to say that the ICC’s ultimate reliance on the operational value was justifiable. The Commission also failed to explain adequately its decision to price the single box motor car at $3,000. The ICC disregarded estimates submitted by petitioner placing the value of the motor car at between $15,200 and $24,250, J.A. at 285, in favor of Iowa Traction s statement that the car “is believed ... to be worth $3,000.” J.A. at 119. We think the statute requires something more than a seat-of-the-pants statement by the purchaser to offset third-party appraisals offered by the seller. III. Conclusion We direct the Commission to reconsider the value of the rights-of-way, the ties located on the right-of-way subject to the contingent gift, the industrial shop and old car barn, and the rolling stock. In all other respects, the petition is denied. 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?

UNITED STATES of America, Plaintiff-Appellant, v. Millard E. BOLDEN, Defendant-Appellee. No. 88-5183. United States Court of Appeals, Fourth Circuit. Argued Oct. 4, 1989. Decided Nov. 22, 1989. Jennie L. Montgomery, Asst. U.S. Atty. (John R. Alderman, U.S. Atty., on brief) for plaintiff-appellant. Emanuel Claborn Edwards, for defendant-appellee. Before WINTER, HALL, and PHILLIPS, Circuit Judges. HARRISON L. WINTER, Circuit Judge: The principal question that this appeal presents is whether, under the applicable Sentencing Guidelines, the district court correctly sentenced the defendant to probation without any confinement upon his conviction of two charges of cheek kiting and two charges of aiding in false statements to a bank. We hold that it did not. It is our view that confinement of some type was mandated, and no basis existed for a downward departure from this requirement. On the government’s appeal, we reverse and remand for resentencing in accordance with the views we set forth. I. The facts concerning the offenses were stipulated. Defendant, Millard E. Bolden, a Roanoke City school teacher, during the period June 1987 through April 1988, used three checking accounts, two at the Colonial American National Bank (one for the Estate of Oscar Dearing and Nellie Dear-ing, and one for Janet L. Carr) and one at the Roanoke Teachers Federal Credit Union (in the name of Bolden and his wife) in a check kiting scheme. Bolden would make withdrawals on one account in amounts in excess of the balance of that account and cover the withdrawals with checks drawn on one or both of the other accounts in amounts in excess of the balances in those accounts. It was later determined that the aggregate loss to the bank and the credit union exceeded $33,-000. After the scheme was discovered, Bolden sought to obtain funds to repay the overdrafts. He was successful in borrowing some funds from friends, and he solicited other friends and associates to borrow funds for him to eliminate the overdrafts. In connection with the latter activity, Bol-den aided in the filing of at least two false loan application forms with the Colonial American National Bank requesting home improvement loans when in fact the purpose of the loans was to pay the overdrafts. These loan applications were denied. Overall, Bolden successfully raised funds to reduce his indebtedness to the bank and the credit union to approximately $6,400, but he remains indebted to friends and associates who advanced him funds in a substantial sum. Bolden pled guilty to a four count information charging two violations of 18 U.S.C. § 1344 based upon the deposit of two worthless checks and the subsequent drawing upon those worthless checks, and two violations of 18 U.S.C. §§ 1014 and 2 for aiding and abetting two loan applications in which false representations as to the purpose of the loan were made. By agreement, Bolden proceeded immediately to sentencing. For purposes of sentencing, the district court consolidated the two § 1344 charges and consolidated the two § 1014 and 2 charges. See U.S. Sentencing Comm’n Guidelines Manual §§ 3D1.1, 3D1.2 (rev. ed. 1988) [hereinafter “Guidelines”]. The government, Bolden, and the district court disagreed over the applicable offense total and guideline range. In their formal written plea agreement, Bolden and the government agreed upon an offense level of 10 subject to a criminal history check and subject to Bolden’s full disclosure of the events upon which the charges were based so as to entitle him to the 2 point allowance for acceptance of responsibility given him in computing the offense level of 10. Nevertheless, after various witnesses testified about the criminal activity, Bolden argued that the offense level should be 8 with probation and restitution to the banks and injured parties. In his presentence report, the probation officer recommended a total offense level of 11, as the officer found that Bolden received a substantial portion of his income from the check kiting scheme. Despite this offense level, however, the presentence report recommended a downward departure in the sentence of a level 11 offender (the range of which is 12-18 months). The probation officer noted that “[t]he defendant is a good candidate for probation in that he does not have a prior record, has been a law abiding citizen, and is very active in the community.” The government disagreed, and argued that the plea agreement correctly stipulated level 10 as the proper offense level. During the sentencing proceedings, the district court noted its inclination to deviate from the guidelines and sentence only to probation if the school board voted to allow the defendant to keep his job. However, the district judge stated that “if he loses his job and doesn’t have any work, the court is probably going to follow the guidelines.” At the final sentencing hearing, the district court again heard evidence concerning the 3 point enhancement for criminal livelihood. Apparently abandoning its insistence on a level 10 offense, the government now argued for a level 11 offense. The district court, however, rejected this position and found that a 3 level enhancement was unjustified. Consequently, it found offense level 8 to be the correct total. After making that finding, the district judge stated: I am going to deviate from the guidelines in this ease for the following reasons. One, you haven’t been in any trouble before. Second, if I send you off, I think you’re going to lose your job. You're going to lose your ability to pay, and nobody is going to gain by my sending you off. So I’m going to sentence you to a period of probation of five (5) years. The district judge repeated the same thought later when he stated: And I’m deviating from the guidelines, I'm saying once again, because you haven’t been in any trouble before, because I think you’re trying to turn your life around, and if I send you away you’re definitely going to lose your job. And if I leave you here, hopefully you can get to work on making restitution, not only to the bank but to these people who’ve come to your rescue and have loaned you money because they’re your friends. Although probation is allowable for a level 8 offender, the guidelines require in addition some conditions that impose intermittent confinement or community confinement. Guidelines § 5B1.1. The district court departed from this requirement when it sentenced the defendant to probation with no condition of confinement. The government appeals both this deviation and the finding of offense level 8. II. The scope of our review is set forth in 18 U.S.C.A. § 3742(e) (West Supp.1989). In this appeal, we are charged with a determination of whether the sentence was imposed “as a result of an incorrect application of the sentencing guidelines” or “is outside the applicable guideline range, and is unreasonable.” 18 U.S.C.A. § 3742(e)(2) and (3). We think that the sentence was so imposed. Specifically, we conclude that the district court erroneously computed the base offense level; it relied on impermissible factors to effect a downward departure from the Guidelines; and it failed to impose some condition of confinement as a condition precedent to probation as required by the guidelines. III. In our view, the correct base offense level is 10. We arrive at this figure in this manner: For a conviction of fraud, the base offense level is 6, and because the amount of the loss was in the range of $20,000-$50,000, the level is raised 4 points to 10. Guidelines § 2F1.1(b)(1). Moreover, the offense involved “more than minimal planning” and was a “scheme to defraud more than one victim.” Thus, the offense level is raised an additional 2 points to 12. Guidelines § 2F1.1(b)(2). Indeed, Bolden stipulated in his plea agreement that his offenses involved more than minimal planning. From level 12, Bolden is entitled to a 2 point reduction for acceptance of responsibility. The district court found that Bolden had accepted responsibility for his criminal conduct and hence was entitled to a reduction to level 10. Guidelines § 3E1.1. The government does not contest this finding on appeal, and we conclude that it is not clearly erroneous. IV. With a base offense level of 10, the guidelines provide that, having no prior criminal record, Bolden should be sentenced to a term of 6-12 months. The guidelines do, however, permit a sentence of probation where, inter alia, as here, the minimum term of imprisonment is not more than six months “provided that the court imposes a condition or combination of conditions requiring intermittent confinement or community confinement as provided in § 502.1(c)(2)....” Guidelines § 5B1.1. By statute, the district court must sentence a convicted defendant to a term within the range set forth in the guidelines unless it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines_” 18 U.S.C.A. § 3553(b) (West Supp.1989); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). Thus, no departure is permitted on the basis of circumstances adequately considered by the Sentencing Commission. United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). Additionally, appellate review of departures is plenary. Uca, supra; United States v. Ryan, 866 F.2d 604, 610 (3d Cir.1989). When the sentence fashioned by the district court is analyzed under these rules, several errors become apparent. First, in fashioning a sentence after computation of the correct offense level, the district court cannot credit Bolden for lack of a record of prior criminal behavior. The fact that Bolden had not previously committed any crime is a factor that is taken into consideration in the Sentencing Table. Thus, when the offense level of 10 is correctly computed, an offender who has no criminal record (or a record of only one prior conviction) may be sentenced to 6-12 months (according to the Sentencing Table). An offender who has two or three prior offenses must be sentenced in the range of 8-14 months and one with four, five, or six prior offenses must be sentenced in the range of 10-16 months. See Guidelines Ch. 5, Pt. A (Sentencing Table). Having received credit for his lack of prior offenses in the determination of the sentence range, Bolden is not entitled to further credit in the form of a downward adjustment of the permissible sentence that may be imposed. Second, we do not think that the economic desirability of attempting to preserve Bolden’s job so as to enable him to make restitution warrants a downward adjustment from the guidelines. Although the guidelines are silent as to whether ability to maintain employment is a ground for departure, it was clearly the intention of the Sentencing Commission that the crime of which Bolden was convicted should carry some period of confinement. The Commission frankly noted that the guidelines make mandatory a prison sentence for a number of crimes, including theft and fraud, upon which probation was previously given, but as a countervailing consideration the guidelines permit the imposition of short prison terms in many cases. Guidelines Ch. 1, Pt. A4(d), at 1.8-1.9. “The Commission’s view is that the definite prospect of prison, though the term is short, will act as a significant deterrent to many of these crimes, particularly when compared with the status quo where probation, not prison, is the norm.” Id., at 1.9. Of course, the minimum sentences fixed by the guidelines are not totally inflexible. Appellate review of sentencing decisions should not, as the Sentencing Commission points out, take place in ignorance of the district court’s superior “feel” for the defendant and the trial proceedings. See Guidelines Ch. 1, Pt. A4(b) (Policy Statement) (Commission recognizes “the difficulty of foreseeing and capturing a single set of guidelines that encompass the vast range of human conduct potentially relevant to a sentencing decision”); id. at § 5K2.0 (Policy Statement) (“The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing.”). Cf. United States v. Diaz-Villafane, 874 F.2d 43, 50 (1st Cir.1989) (“We will not lightly disturb decisions to de-part_”). However, the guidelines mandate that downward adjustments are appropriate only in the unusual case. Guidelines Ch. 1, Pt. A4(b), at 1.6-1.7 (Policy Statement). The test for downward departure set forth in the statute requires a finding that “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C.A. § 3553(b) (West Supp.1989). In making such a finding, the statute further specifies that the court shall consider “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” Id. In turn the Sentencing Commission, in addition to its policy about sentences of confinement for white collar criminals, has said that a departure from the guidelines should be undertaken only if “a particular case presents atypical features.... ” Guidelines Ch. 1, Pt. A2; see also Uca, 867 F.2d at 787 (“attempts to impose uniformity will be destroyed if courts depart often from the Guidelines”). We do not perceive any factors present in Bolden’s case that would reasonably warrant a downward departure from the sentencing range set forth in the guidelines. If incarcerated under conditions that would render him unable to work, Bolden is no different from any other person convicted of a similar offense. Both would be unable to work; it is not unlikely that both would be discharged; without earned income both would be hindered or prevented from making restitution. Similarly, we do not think that the fact that Bolden has made some restitution, if borrowing from friends to pay the bank and the credit union may be deemed such, and promises to make future restitution is any justification to adjust downward the minimum sentence of confinement set forth in the guidelines, although they may be relevant to the sentencing court in deciding what sentence within the guidelines to impose. See 18 U.S.C.A. § 8553(a)(7) (West Supp.1989) (court, “in determining the particular sentence to be imposed, shall consider— ... the need to provide restitution to any victim of the offense.”). V. In the light of what has been said, the sentence imposed on Bolden is vacated and his case is remanded to the district court for resentencing in accordance with the views expressed herein. VACATED AND REMANDED. . Bolden arrived at this figure by adding to the base offense level of 6 covering 18 U.S.C. §§ 1014, 1344, a 4 point enhancement for the amount of money involved (over $20,000), and subtracting 2 points for acceptance of responsibility. See Guidelines §§ 2F1.1, 3E1.1. . The probation officer arrived at 11 by adding a 3 point enhancement for criminal livelihood to the 8 point level advocated by the defendant. See Guidelines § 4B1.3 (offense level shall be not less than 11 if defendant committed an offense "from which he derived a substantial portion of his income” and acceptance of responsibility applies). . The government arrived at this level by adding to the base offense level of 6, a 4 point enhancement for the amount of money taken by fraud, and a 2 point enhancement for "more than minimal planning" (see Guidelines § 2F1.1), subtracting therefrom a 2 point reduction for acceptance of responsibility. The sentence range for a level 10 offender is 6 to 12 months. Id., at Ch. 5, Pt. A (Sentencing Table). . The sentence range for a level 8 offender is 2-8 months. However, probation is allowable only if the court imposes a condition or conditions requiring at least two months of community confinement or intermittent confinement to-talling at least two months. Guidelines § 5B1.1, comment, (m.l(b)). . The court also ordered Bolden to make restitution to the Colonial American National Bank of $6,474 and perform 300 hours of community service. . Although this increment was urged in the district court by the government, the district court made no finding with respect thereto nor did it adopt the increment. In our view, the record is undisputed that the check kiting scheme required more than minimal planning and both the bank and the credit union were defrauded so that any finding of fact that the increment was not justified would be clearly erroneous. As a matter of law the increment must be added. See Guidelines § 2F1.1(b)(2). . Because this appeal turns primarily on a legal interpretation of a guideline term as well as on which offense level applies, our review is de novo. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.1989). . The guidelines do, however, permit an upward departure where the criminal history category does not reflect adequately the seriousness of the defendant’s past criminal conduct. Guidelines § 4A1.3 (Policy Statement). . Although the guidelines provide for imprisonment, they also provide the sentencing court with other options that may allow Bolden to keep his job. Because the minimum sentence for Bolden is fixed at not more than six months, he could be placed on probation "provided that the court imposes a condition or combination of conditions requiring intermittent confinement or community confinement as provided in § 5C2.1(c)(2) (Imposition of a Term of Imprisonment).” Guidelines § 5B1.1(a)(2). Section 502.1(c)(2) states that the minimum term of a sentence may be satisfied by "a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement or community confinement for imprisonment according to the schedule in § 502.1(e),” and the latter section prescribes as substitutes for a month of imprisonment (a) thirty days of intermittent confinement provided that one day shall be credited for any calendar day during which the defendant is employed in the community and confined during all remaining hours, and (b) one month of residence in a community treatment center, halfway house or similar residential facility. Guidelines § 5C2.1(e)(l)-(2).

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

Nellie KABATOFF, Plaintiff-Appellee, v. SAFECO INSURANCE COMPANY OF AMERICA, a corporation, Defendant-Appellant. No. 78-2717. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 8, 1980. Decided Sept. 10, 1980. Carrell F. Bradley, Schwenn, Bradley & Batchelor, Hillsboro, Or., for defendant-appellant. William F. Schulte, Portland, Or., for plaintiff-appellee. Before KILKENNY and PREGERSON, Circuit Judges, and TAKASUGI, District Judge. The Honorable Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation. PREGERSON, Circuit Judge: This diversity case involves a claim under Oregon law against an insurer for bad faith failure to settle a claim asserted against its insured. The insurer, Safeco Insurance Co., appeals from the district court’s judgment awarding the insured, appellee Nellie Kabatoff, $20,000 in damages for Safeco’s failure to settle a personal injury claim asserted against her. Safeco also appeals from the district court’s award to Kabatoff of $25,-000 as reasonable attorney’s fees. Finding no error, we affirm. Appellee Nellie Kabatoff was involved in an automobile accident with Jack McElwain in Marion County, Oregon on February 28, 1974. McElwain sued Kabatoff in Oregon state court for $57,000 in damages for personal injuries sustained in the accident. Appellant Safeco was Kabatoff’s insurer, and by the terms of the insurance contract, Safeco exercised total control over the defense and settlement of the McElwain action. During pretrial settlement negotiations, McElwain offered to settle the litigation for $10,000. Safeco’s highest settlement offer was $6,500, even though Safeco had established a cash reserve of $22,500. The case was ultimately tried to an Oregon jury which returned a verdict in favor of McElwain for $45,000. Kabatoff’s policy limit was $25,000; hence, she was personally liable for the excess $20,000. Kabatoff then filed the present action in United States District Court for the District of Oregon, seeking $20,000 in damages for Safeco’s asserted bad faith failure to settle the state case. A federal jury returned a verdict in favor of Kabatoff for the full $20,000. In addition, United States District Judge Belloni ordered Safeco to pay Kabatoff $25,000 as reasonable attorney’s fees. Safeco now argues on appeal that: (1) the federal district judge erred in instructing the jury that Safeco was liable if it acted in bad faith or if it failed to exercise due care in settling the claim against its insured; (2) the evidence is insufficient to support the verdict; and (3) the award of attorney’s fees is unreasonable. In this diversity action, the federal district court must apply the substantive law of the forum state, Oregon. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We accord substantial deference to the district court’s construction of the law of the state in which it sits. Holcomb Construction Co. v. Armstrong, 590 F.2d 811, 813 (9th Cir. 1979) ; Lewis v. Anderson, 615 F.2d 778 (9th Cir. 1979). Moreover, we will not overrule a district judge on questions of construction of state law unless the judge’s determinations are “clearly wrong.” Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980). As to the $20,000 jury verdict, under the federal standard of review, a jury’s verdict may not be disturbed unless it is clearly erroneous. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). Although Oregon applies the substantial evidence test to support a jury verdict, see Myers v. Cessna Aircraft Corp., 275 Or. 501, 553 P.2d 355, 362 n.2 (1976), the state and federal standards are basically equivalent. Ronish v. St. Louis, 621 F.2d 949 at 949-951 (9th Cir. 1980) . To support the jury’s verdict, we, therefore, need not decide which standard— federal or state — is appropriate. Longenecker v. General Motors Corp., 594 F.2d 1283, 1285 (9th Cir. 1979). The district judge, in substance, instructed the jury that Safeco was liable if it negligently failed to settle the claim against its insured or failed to settle the claim because of bad faith. Safeco contends that under Eastham v. Oregon Automobile Insurance Co., 273 Or. 600, 540 P.2d 364, rehearing denied, 273 Or. 610, 542 P.2d 895 (1975), its sole duty toward its insured was to act in good faith and that, therefore, the inclusion of a negligence standard in the jury instructions was error. We disagree. Although the Eastham decision analyzes the insurer’s duty to settle a third party’s claim against the insured in terms of “good faith,” the Oregon Supreme Court, in denying a petition for rehearing in East-ham, made clear that there is little difference between the concepts of good faith and due care in the context of an insurer accepting or rejecting a settlement offer in a case where there is a likelihood of a verdict in excess of the policy limits. 542 P.2d at 896. See also Kriz v. Government Employees Insurance Co., 42 Or.App. 339, 600 P.2d 496, 500 (1979) (“It is well established that an insurer may be liable to its insured for the excess of a judgment over the limits of a liability policy if the insurer has failed, negligently or in bad faith, to settle the claim against the insured.”). The district judge’s challenged instruction, framed in terms of negligence or bad faith, was, therefore, correct. Safeco’s next argument is that the evidence is insufficient to support the verdict. Evidence supporting the $20,000 verdict against Safeco includes: (1) Safeco’s determination that Kabatoff was clearly liable for McElwain’s injuries; (2) Safeco’s knowledge before trial that McElwain’s injuries were substantial; (3) McElwain’s offer to settle his claim in full for $10,000, a sum well within the policy limits; (4) Safeco’s final settlement offer to McElwain of $6,500; (5) Safeco’s willingness, unbeknownst to McElwain, to increase the settlement offer to $8,200 if McElwain lowered his demand; (6) Safeco’s cash reserve of $22,500 on McElwain’s claim; (7) Expert testimony that McElwain’s $10,000 settlement offer was reasonable and should have been accepted by a prudent insurer and that a jury verdict below $10,000 was improbable. Both parties agree that the central question at trial was whether Safeco acted as though there were no policy limits applicable to the claim so that the risk of loss would presumably be borne by Safeco entirely. Put another way, Safeco is liable under the negligence/bad faith test if “the risks [to the insured] of unfavorable results were out of proportion to the chances of a favorable outcome [i. e., one within the policy limits].” Eastham, 540 P.2d at 367. The facts summarized above provide an adequate basis for a jury to conclude that there was an unreasonable risk to the insured of a verdict in excess of the policy limits and that, therefore, Safeco acted negligently or in bad faith when it failed to settle McElwain’s claim against Kabotoff for a sum well within her policy limits. The jury’s verdict was supported by substantial evidence and, accordingly, is not clearly erroneous. Finally, Safeco argues that the district court’s award of $25,000 as attorney’s fees is unreasonable where the underlying federal complaint prayed for damages in the amount of $20,000. Safeco argues that Kabatoff’s attorneys spent an inordinate amount of time on a case presenting no novel or complex issues and that the attorneys unnecessarily duplicated work. In a diversity action, the question of attorney’s fees is governed by state law. Schulz v. Lamb, 591 F.2d 1268, 1272 (9th Cir. 1978); Interform Co. v. Mitchell, 575 F.2d 1270, 1280 (9th Cir. 1978). Under Oregon law, the question of what amount constitutes a reasonable attorney’s fee is an issue of fact to be determined as any other issue of fact. Progress Quarries, Inc. v. Lewis, 281 Or. 441, 575 P.2d 158, 163 (1978). The standard of review of a finding of fact by a federal court applying state law is the clearly erroneous standard of Fed.R.Civ.P. 52(a). See Felder v. United States, 543 F.2d 657, 664 (9th Cir. 1976). In determining a reasonable attorney’s fee under Oregon law, the following factors are relevant: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the result obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyers performing the services; and (8) whether the fee is fixed or contingent. See Chalmers v. Oregon Automobile Insurance Co., 263 Or. 449, 502 P.2d 1378, 1381-82 (1972). Having reviewed the record in light of these factors, we cannot say that the district court’s award of fees is clearly erroneous. The district court’s judgment in this case is AFFIRMED. . The verdict was affirmed on appeal and is reported at McElwain v. Kabatoff, 275 Or. 393, 551 P.2d 105 (1976). . While we are not required to decide this question, we believe that, in a diversity case, the federal standard of review of a jury verdict should apply. As this court has previously stated: In general the standard of appellate review is a procedural matter in which the forum will utilize its own standards even when it is applying the substantive law of another jurisdiction. ... In [the] context [of review of finding of fact] the state standard is not binding upon a federal court. Felder v. United States, 543 F.2d 657, 664 (9th Cir. 1976) (footnote omitted); cf. Restatement (Second) of Conflict of Laws § 135, Comment a (1971) (the law of the forum determines whether a party has introduced sufficient evidence to warrant a finding in its favor on an issue of fact); Safeway Stores v. Fannan, 308 F.2d 94, 97 (9th Cir. 1962) (federal standard applies to whether evidence was sufficient to raise a question of fact for the jury); 5 Moore’s Federal Practice ¶ 38.10 at 101-08 (2d ed. 1979) (effect of Erie RR. Co. v. Tompkins on sufficiency of evidence to present question for jury).

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

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. § 2000e-5(e). If, on the other hand, there is no such state or local law, charges may be filed directly with the EEOC, but the time period is reduced to 180 days from the date of the occurrence. Id. Once it receives a charge, the EEOC investigates; if it finds no reasonable cause to believe that the charge is true, it

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

COMMUNITY NUTRITION INSTITUTE, et al, Appellants, v. John R. BLOCK, Secretary, United States Department of Agriculture, et al. No. 81-2191. United States Court of Appeals, District of Columbia Circuit. Argued 4 Oct. 1982. Decided 21 Jan. 1983. Janie A. Kinney, Washington, D.C., with whom Ronald L. Plesser and Steven H. Leyton, Washington, D.C., were on the brief, for appellants. Susan Sleater, Atty., Dept, of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty. and Leonard Schaitman, Atty., Dept, of Justice, Washington, D.C., were on the brief, for appellees, Block, et al. Sydney Berde, St. Paul, Minn., of the Bar of the Supreme Court of Minnesota, pro hac vice by special leave of Court, with whom James R. Murphy and Charles W. Bills, Washington, D.C., Richard M. Hagstrom, Gary W. Schokmiller, St. Paul, Minn., were on the brief, for appellees, Nat. Milk Producers Federation, et al. Before TAMM, WILKEY and SCALIA, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Opinion concurring in part and dissenting in part filed by Circuit Judge SCALIA. WILKEY, Circuit Judge: Appellants, three individual consumers of milk, a non-profit consumer organization and a handler of milk products, have joined forces to challenge the manner in which reconstituted milk is regulated under forty-seven milk market orders adopted pursuant to the Agricultural Marketing Agreement Act (AMAA). The district court dismissed their complaint, holding that the individual consumers and the organization lacked standing and that the handler failed to exhaust his administrative remedies. We reverse the district court’s decision with respect to the individual consumers and remand the case for a decision on the merits. I. Background A. The Regulatory Scheme The Secretary of Agriculture (the Secretary) has regulated the milk industry through the use of milk market orders since 1937. These orders, issued pursuant to section 608c of the AMAA, regulate the price milk producers receive for their dairy products. The orders are effective on a regional basis and cover most, but not all, of the United States. Under the orders, dairy products are divided into separate classes, based on the use to which the raw milk is ultimately put. Raw milk which is processed and bottled for fluid consumption is Class I milk. Raw milk which is used to produce manufactured milk products such as butter, cheese, or dry milk powder is classified as Class II milk. Class I milk must be consumed rather quickly after it is produced because it is a fertile field for bacteria. It is therefore sold mostly on a regional basis. Class II milk products, on the other hand, can be stored for a longer period of time and therefore compete directly with similar products from across the nation. As a result of this increased competition, Class II milk commands a lower price on the market than fluid milk. In order to provide dairy farmers with the stability needed to prevent a recurrence of the ruinous competition that devastated the milk industry during the depression, section 608c authorizes the Secretary to issue milk market orders ensuring that producers receive uniform prices for their raw milk irrespective of the use to which it is put. Thus, under current milk market orders “handlers” (who buy the milk from the producers) pay a minimum price for Class I milk and a lower minimum price for Class II milk. The handlers make all payments into a regional pool, and producers are then paid out of the pool on the basis of the average price received for milk in all uses. Reconstituted milk products are fluid products manufactured by combining water with whole milk powder or nonfat powder. Reconstituted milk was not regulated under the milk market orders for nearly thirty years, but in 1964 the Secretary issued the regulations which are the subject of this dispute. Under these regulations, a handler who purchases milk powder from outside the order area and manufactures it into a reconstituted milk product pays the Class II price and reports the purchase to the order area administrator. The reconstituted milk product is then regulated as though it were fresh milk coming into the area from an unregulated area (an area not subject to a milk market order). It is assumed that the handler will use the reconstituted milk to manufacture Class II products, but if the handler’s records show that he has not manufactured enough Class II products to account for all the reconstituted milk, he is required to make a compensatory payment on the remainder. The compensatory payment is equal to the difference between the Class I and Class II prices and is put into the regional pool for distribution, not to the seller of the milk powder, but to the local producers of fresh milk. It is undisputed that the compensatory payment requirement raises the handler’s cost of producing reconstituted fluid milk and it is this aspect of the various milk market orders which appellants challenge. B. The Present Litigation On 23 August 1979 appellants petitioned the Secretary of Agriculture to eliminate the compensatory payment requirement from the various milk market orders. Nineteen months later, having failed to receive a response to their petition, appellants filed the present action in federal district court, claiming that the regulation requiring compensatory payments exceeded the Secretary’s authority under the AMAA and violated the provision of the AMAA prohibiting economic trade barriers on milk and milk products, and that his refusal to act on their petition was arbitrary and capricious. Appellants asked the court to invalidate, and enjoin the enforcement of, the compensatory payment provisions of the various milk market orders. On 7 April 1981, four months after this suit was filed, the Secretary denied appellant’s petition. This decision was made after “a careful and thorough review of the issues,” based on public comments and “a comprehensive preliminary economic impact statement” developed by the agency. On 29 September 1981 the district court granted appellees’ motion to dismiss appellants’ complaint. The court first held that the individual consumers and the Community Nutrition Institute (CNI) lacked standing, concluding that they had not shown the requisite injury in fact, that their interests were not within the zone of interests arguably protected by the relevant statute, and that, in any event, Congress intended to preclude consumers from challenging milk market orders in court. The court dismissed the milk handler as well, noting that although he had standing (since the AM A A specifically authorizes judicial review for handlers), he could not be allowed to prosecute the present litigation because he had not complied with the procedural requirements outlined in the statute, thereby failing to exhaust his administrative remedies. This appeal followed. II. Standing A. General Principles In the last decade the Supreme Court has addressed the issue of standing in a variety of contexts. This increased activity has not resulted in a complete clarification of the law; nevertheless, some discernable guidelines have been laid down. It will be helpful to examine these guidelines before applying them to the specific facts of the case at hand. It is clear that “[t]he term ‘standing’ subsumes a blend of constitutional requirements and prudential considerations.” It is now also clear that there are at least three elements a plaintiff must establish in order to satisfy the constitutionally imposed standing requirements. [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show [1] that he personally has suffered some actual and threatened injury as a result of the putatively illegal conduct of the defendant,”... and [2] that the injury “fairly can be traced to the challenged action” and [3] “is likely to be redressed by a favorable decision.” Establishing the first element (injury in fact) requires the plaintiff to allege facts demonstrating a definable and discernable injury and an adequate connection between that injury and himself. The requirements of the second and third elements, however, have not always been as clear. Some confusion has arisen because the Supreme Court has used language which seems to indicate that the “fairly traceable causation” requirement and the “redressability” requirement are interchangeable. However, the Court’s articulation of the Art. Ill standing limits in VaHey Forge recognizes that the two considerations are not necessarily the same. The fairly traceable causation inquiry is directed toward the connection between the injury and the defendant’s actions. The redressability inquiry, on the other hand, focuses on the connection between the injury and the action requested of the court. The fairly traceable causation requirement is therefore generally based on past or present occurrences (the effect of the defendant’s actions), while the redressability requirement is based on future probabilities (the effect of the court’s decision). Of course, there is a correlation between the two elements. As the connection between the alleged injury and the defendant’s actions becomes more direct, the likelihood that requiring the defendant to change his behavior will redress that injury increases. However, it is important to keep the two inquiries separate, lest the confusion continue. Therefore, in order to satisfy the Art. Ill requirements of standing a plaintiff must show three things: (1) that he has suffered an actual or threatened injury (an adequate connection between a definable and discern-able injury and the plaintiff); (2) that the injury fairly can be traced to the challenged action (an adequate connection between the alleged injury and the defendant’s actions); and (3) that the injury is likely to be redressed by a favorable decision (an adequate connection between the alleged injury and the action requested of the court). Once a plaintiff has met the constitutionally imposed requirements of standing he may still be prevented from prosecuting his suit if prudential considerations dictate that the court stay its hand. Of particular concern to this litigation are the requirement that the plaintiff’s complaint be “arguably within the zone of interests to be protected or regulated by the statute... in question,”- and the reluctance of federal courts to adjudicate “ ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” These prudential considerations also focus on the connection between the alleged injury and various aspects of the suit. The zone of interests requirement focuses on the connection between the alleged injury and the relevant statute, while the generalized grievance limit seems to require an inquiry into the connection between the alleged injury and the public in general. Thus, in order to withstand the present motion to dismiss for lack of standing, appellants must allege a definable and discernible injury and then establish the proper connection between that injury and themselves, the Secretary’s actions, the requested relief, the relevant statute, and the public in general. We hold that the individual consumers have met this burden, while CNI has not. B. Individual Consumer Standing Deborah Harrell, Ralph Desmarais, and Zy Weinberg (Consumers) are, according to their allegations, consumers of fluid dairy products who seek to decrease their food expenditures without sacrificing taste or the nutritional value of their diet. The district court dismissed them from the present litigation, holding that they had failed to establish either the constitutional or prudential elements of standing. Applying the analysis outlined above, we must reverse. 1. Art. Ill Considerations a. Injury in fact (connection between definable and discernable injury and the plaintiff) In order to establish the required injury, a plaintiff need not allege facts establishing a substantial injury, “an identifiable trifle will suffice.” However, the injury must be definable and discernable and, in order to establish the proper connection to the plaintiff, it must be specific. Consumers have alleged just such an injury. Consumers allege that the existing reconstituted milk regulations injure them in •two ways. First, they claim they are precluded from purchasing “a nutritious dairy beverage at a lower price than fresh drinking milk.” Second, they allege that they are deprived “of a stabilizing market influence,” since “[a] reconstituted fluid product could quickly expand the fluid milk supply when [seasonal] changes result in a reduction of the whole fluid milk supply.” Appellees maintain that these injuries fail to meet the constitutional standard of concreteness. They argue that since milk powder is available to Consumers at retail markets, Consumers could buy the powder and reconstitute the milk themselves at less than the price of whole milk. Thus, appellees contend, the injury asserted by Consumers is merely an objection to the taste of reconstituted milk from products presently marketed at retail. This, they claim, is not a definable and discernable injury. However, even assuming appellees are correct in asserting that undesirable taste is an insufficient injury, their argument is still unpersuasive. In determining whether a plaintiff has alleged a definable and discernable injury, the focus is on the plaintiffs allegations, not on the availability of alternative remedies. Consumers allege that they are being deprived of a lower priced alternative to whole milk. If these allegations are true, as we must assume, Consumers have been injured economically, even if they could ameliorate this injury by purchasing some alternative product. Further, if as Consumers allege, the absence of manufacturer reconstituted milk results in seasonal shortages in the milk supply, they have sustained a further injury. At the trial Consumers may be unable to prove that they have actually sustained these injuries, but their allegations meet the constitutional requirement of injury in fact. b. Causation (connection between the alleged injury and the defendant’s actions) In order to establish the second constitutional element of standing, a plaintiff must show that the injury “ ‘fairly can be traced to the challenged action.’ ” Although this requirement has not been applied consistently in all cases, it is met if the plaintiff alleges a fairly traceable connection between the defendant’s action and the alleged injury. A plaintiff need only make a reasonable showing that “but for” defendant’s action the alleged injury would not have occurred. Consumers have sufficiently established this connection. Consumers allege that when the compensatory payment is added to the other costs incurred by a handler in producing reconstituted milk, the resulting price makes reconstituted milk products uncompetitive with fresh milk. They claim that “but for” the regulation, handlers would be able to market reconstituted milk for less than fresh milk and that, as a result, reconstituted milk would be available at a lower retail price than whole milk. Appellees dispute the factual basis of Consumers’ allegations. According to appellees, the market structure of the dairy industry is so complex that it is impossible to determine whether lower handler costs would have been passed on to Consumers. Thus, appellees argue, it cannot be said with any certainty that the challenged regulation is the cause of Consumers’ injury. Again, however, appellees’ argument misses the mark. It may well be that the structure of the dairy market is so complex that a reduction in handler costs does not inevitably result in lower consumer prices. Nonetheless, Consumers are not required to prove that lower prices will result, they are only required to assert a fairly traceable causal connection between the challenged action and the alleged injury. Consumers’ contention that if handlers were not required to make a compensatory payment they would pass the savings on to the consumer is a reasonable one. Nothing more is required. If standing depended on a plaintiff’s ability to allege uncontrovertible facts, there would be very few plaintiffs who could establish standing in a lawsuit of any complexity. Having alleged a reasonable connection between the challenged regulations and their alleged injuries, Consumers are entitled to a trial on the merits to determine what the facts really are. c. Redressability (connection between the alleged injury and the action requested of the court) The third element of the Art. Ill limit on standing is met when a plaintiff establishes that his alleged injury “ ‘is likely to be redressed by a favorable decision.’ ” The degree of likelihood required is not completely clear. However, because the relevant inquiry is directed to the effect of a future act (the court’s grant of the requested relief) it would be unreasonable to require the plaintiff to prove that granting the requested relief is certain to alleviate his injury. Furthermore, as cases such as the present one show, litigation often “present[s] complex interrelationships between private and government activity that make difficult absolute proof that the harm will be removed.” Thus, a court should be careful not to require too much from a plaintiff attempting to show redressability, lest it abdicate its responsibility of granting relief to those injured by illegal governmental action. Consumers argue that they have established the required likelihood of redress by producing a United States Department of Agriculture Impact Statement which predicts that if the compensatory payment requirement were eliminated, consumers nationwide would save $186 million annually within three years, and by offering evidence that handlers in non-regulated areas have manufactured and marketed lower-priced reconstituted milk. The district court found this showing inadequate because the same USD A statement relied upon by Consumers estimated that elimination of the compensatory payment requirement would cost milk producers $576 million. The court observed that this drop in producer earnings “might interfere with the public’s access to an adequate supply of milk and might result in higher prices for milk products.” The court concluded that since the structure of the dairy industry is so complex, “any benefit to the plaintiffs from the proposed changes in the regulations is hypothetical and speculative.” We conclude that the district court required too much of Consumers. Admittedly, it is hard to predict the effect of removing the compensatory payment requirement, but Consumers produced evidence indicating that the immediate result of removing the contested regulation will be increased savings for all consumers. The possibility that the change would also harm producers is relevant to the standing issue only in that such a harm might cause market disruptions which might ultimately harm Consumers. Whether the potential long term deleterious effects of the requested change outweigh the potential immediate benefits is a question the court will have to resolve in order to determine the validity of the regulation. However, Consumers should not be required to prove that the potentially harmful effects will not occur in order to establish standing. As the Supreme Court has observed, a plaintiff is not required to negate every “speculative and hypothetical possibilit[y]... in order to demonstrate the likely effectiveness of judicial relief.” Requiring Consumers to show more than they did in this case forces them to prove their case in order to acquire standing. This is not what the Constitution requires. The redressability element of Art. Ill is designed to bar disputes which will not be resolved by judicial action. It does not prevent a court from hearing a case which may ultimately be unsuccessful. 2. Prudential Considerations As noted above, there are valid nonconstitutional requirements which a plaintiff may be required to meet in order to establish standing. The district court found that one of these, the zone of interests requirement, had not been met by Consumers. On appeal, appellees point to another nonconstitutional standing requirement which they claim Consumers have not satisfied — the requirement that the alleged injury be more than a generalized grievance. We hold that Consumers have satisfied both of these requirements. a. Zone of Interests (connection between the alleged injury and the relevant statute) The Supreme Court has stated that a plaintiff may be dismissed for lack of standing if his alleged injury is not “arguably within the zone of interests protected or regulated by the statute... in question.” Whether Consumers’ alleged injuries are arguably within the zone of interests protected by the relevant statute in this case depends on which statutes are relevant. Consumers point to two portions of the AMAA policy section which indicate an intent to protect consumers from the type of injuries they have allegedly incurred. Section 602(2) expresses Congress’ intent to protect consumers against unwarrantably rapid or excessive price increases by limiting the Secretary’s authority to fix prices at parity and no higher. Section 602(4) expresses the policy of protecting consumers 'from “unreasonable fluctuations in supplies and prices.” The district court, relying on this court’s opinion in Tax Analysts and Advocates v. Blumenthal, held that these sections were not relevant to the present suit, pointing out that the challenged regulations were issued pursuant to section 608c which does not mention consumers. In Tax Analysts we held that the general policy section of a statute may be read in conjunction with the challenged portion only if the two parts of the statute share “an identity of purpose.” The district court ruled that section 608c and sections 602(2) and (4) do not share this identity of purpose. The court noted that section 608c was enacted as part of the original AMAA in the 1930’s and that it dealt solely with milk market orders. Section 602(4), on the other hand, was added to the AMAA in 1954. Relying extensively on legislative history, the court concluded that the 1954 amendment was designed to counter the falling farm prices caused by the surplus of commodities after the Korean War and that the expressed intent to protect consumers was limited to situations involving price supports and parity pricing. Thus, in the district court’s view, section 602(4) was not a “relevant statute” since it was enacted at a different time, in response to a different problem than section 608c. The court also found section 602(2) irrelevant since it dealt with parity pricing and not milk market orders. However, the district court’s approach in analyzing the identity of purpose issue, although undeniably thorough in its own right, was not consistent with the reasoning we utilized in Tax Analysts. As a result, the district court failed to reach the correct result. In Tax Analysts we stressed the “generous nature” of the zone of interests test. In particular we noted that a plaintiff was only required to assert an interest “which is arguable from the face of the statute.” Consumers have clearly done this much. Although section 608c deals exclusively with the Secretary’s authority to issue market orders, it is not immunized from the effect of the general policy sections. Section 608c(4) requires the Secretary to find that an order “will tend to effectuate the declared policy of this chapter” before he issues that order. The declared policies of the AMAA are contained in section 602. Section 602(4) clearly expresses the policy that the Secretary use “the powers conferred... under this chapter... as will provide in the interests of producers and consumers, an orderly supply [of milk]... to avoid unreasonable fluctuations in supplies and prices.” Since Consumers allege that the challenged portion of the milk market orders prohibits the sale of reconstituted milk, resulting in higher milk prices and seasonal shortages, they have asserted an interest which is at least “arguably” within the zone of protected interests. The district court’s efforts to distinguish the two sections by examining the legislative history in great detail is simply inconsistent with the purposes behind the zone of interests test. b. Generalized Grievance The Supreme Court has noted that even when a plaintiff meets the Art. Ill standing requirements, a federal court may refrain from adjudicating issues which “amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Appellees argue that Consumers’ injury falls into this category since it is an injury suffered in “some indefinite way in common with people generally.” However, a review of the cases relied on by appellees and an examination of the argument they advance make it apparent that they confuse this prudential consideration with the constitutional requirement of injury in fact. As we have already noted, Consumers’ alleged injury is sufficiently definable and discernable to meet the constitutional requirement and appellees’ efforts to litigate this issue under a new title must be rejected. Consumers’ injury is a generalized grievance only in the sense that it is shared by many other persons, i.e., every other cost-conscious consumer of milk. It may be argued that the widespread nature of the injury requires us to dismiss the claim as a generalized grievance. However, we refuse to believe that the mere fact that a plaintiff’s injury is shared by many people requires a court to dismiss his complaint. If dismissal were required in such cases, consumer injuries would never be justiciable because “[cjonsumer injuries, by their very nature tend to be shared in common by many other similarly situated individuals.” Although it is not clear what the limits of the generalized grievance restriction are, we hold that the mere fact that the injury may be shared by many consumers does not require us to dismiss this complaint on that ground. Finding that neither constitutional nor prudential considerations prevent Consumers from bringing the present action, we reverse the district court and hold that Consumers have standing. C. CNI’s Organizational Standing Community Nutrition Institute (CNI) is a non-profit charitable organization specializing in food and nutrition issues. CNI seeks to establish standing as an organization in its own right. The district court held that CNI failed to meet the standing requirements and accordingly, dismissed the organization. Because we conclude that CNI has not met the constitutional requirements of standing, we affirm the district court on this issue. 1. Injury in fact CNI alleges that it has suffered two injuries as a result of the allegedly illegal compensatory payment requirement: (1) the requirement obstructs CNI’s institutional interest in “seeing that consumers” have nutritious fluid dairy products available at the lowest possible price; and (2) it prevents CNI from fully achieving its educational objective of informing low-income individuals about sources of low-cost nutritional food. Only the later allegation satisfies the injury in fact requirement. An obstruction of an organization’s interest in “seeing” that consumers have nutritious fluid products available at the lowest possible price is not the type of definable and discernible injury that permits an organization to establish standing. In Simon v. Eastern Kentucky Welfare Rights Organization the Supreme Court held that an organization interested in seeing that poor people had access to health services, “could not establish... standing on the basis of that goal.” The Court, citing Sierra Club v. Morton, noted that “an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III.” In Sierra Club the Court held that an injury to the Sierra Club’s institutional interest in seeing that the nation’s natural resources were protected from man’s degradation was not a sufficient basis for establishing standing. CNI’s interest in “seeing” that consumers have the nutrition they need at the lowest possible price is the same type of abstract interest which the Supreme Court held was insufficient in Eastern Kentucky Welfare Rights and Sierra Club. CNI cites GNI v. Bergland as support for its contention that its alleged injury is sufficient to establish standing. In Berg-land the court held that CNI had standing as a representative of consumers to challenge regulations implementing the National School Lunch and Breakfast program. The court noted that CNI had standing because it was an organization “speaking for individuals, whose health and nutrition interests are affected by the Secretary’s action.” In the present case CNI seeks to establish standing on the basis of its institutional interests. It is not acting as a spokesman for individual consumers. CNI further seeks to shore up its argument by citing Havens Realty Corp. v. Coleman. In Havens Realty the Supreme Court held that a plaintiff organization had institutional standing because it alleged that defendant’s racial steering practices frustrated “its efforts to assist equal access to housing through counseling and other referral services.” CNI argues that their alleged injury is identical to that alleged by the organization in Havens Realty. However, the Court in Havens Realty noted that the defendant’s actions interfered with the “organization’s activities,” distinguishing those activities from the “organization’s abstract social interests.” In the present case CNI claims it has an interest in “seeing” that consumers receive dairy products at the lowest possible price. It does not allege that it assists them in doing this, nor does it allege that the contested regulation impedes it from assisting consumers. It seeks standing on the basis of its abstract interest in seeing that consumers achieve this goal. Such an injury is not sufficiently concrete to establish standing. CNI’s second alleged injury does meet the injury in fact requirement. If, as CNI alleges, it has been prevented from informing low-income individuals about sources of low-cost food, it has suffered a definable and discernible injury because it would be prevented from carrying out one of its primary activities. However, this alleged injury cannot be the basis for establishing standing in this case because CNI has failed to establish any connection between the alleged injury and the challenged regulation. 2. Causation CNI alleges that the challenged regulation interferes with its efforts to inform low-income individuals about the sources of low cost food. However, CNI fails to assert any reasonable connection between that injury and the Secretary’s actions. Nothing in the challenged regulation affect CNI’s ability to inform consumers about sources of low cost food. Thus, this case is distinguishable from Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, on which CNI relies. In Scientists’ Institute this court held that an association’s educational activities were impaired by the AEC’s refusal to prepare an impact statement. In the present case the Secretary has made a study of the effect of removing the contested portion of the milk market orders and has made that information available to the public. The contested regulation has no impact on the availability of information which CNI seeks to disseminate. It may limit the availability of low-priced dairy products, but that is not the injury of which CNI complains. CNI has failed to establish any connection between the Secretary’s actions and an injury to its educational activities. Having failed to satisfy the constitutional requirements of standing, CNI is precluded from litigating the issues on the merits. III. Exhaustion of Administrative Remedies Appellant Joseph Oberweis is a handler of milk products. It is undisputed that he has standing to bring the present suit. Nevertheless, the district court dismissed Oberweis, holding that he failed to exhaust his administrative remedies. Oberweis admits that he has not meticulously followed the statutory procedures for filing a “handler petition” under section 608c(15)(A), but he argues that he should not be required to file another petition because he has substantially complied with the requirements of that section. We must reject that argument, however, because of the context in which the present action arose. The present action is not an appeal from the Secretary’s decision denying the petition filed by Oberweis and the other appellants in 1979. The complaint in this action was filed 2 December 1980, four months before the Secretary acted on the 1979 petition. In the complaint appellants asked the court, inter alia, to hold that the Secretary’s refusal to act on the petition was arbitrary and capricious, but they did not seek review of the decision itself. Appellants challenge the Secretary’s authority to adopt the compensatory payment regulation in the first place; their complaint did not attack his subsequent refusal to correct that alleged wrong. Thus, Oberweis’ argument that he substantially complied with section 15(A) by joining the other appellants in filing a petition in 1979 is misguided since he is not seeking a review of the Secretary’s decision with respect to that petition. If Oberweis wants a court to decide whether his 1979 petition substantially complies with the exhaustion requirements of section 15(A) he will have to challenge the Secretary’s decision on that petition. We express no opinion on the validity of Oberweis’ argument in that respect because the present case does not involve that petition. Since Oberweis is not appealing from a ruling in which he first petitioned the Secretary for relief, we hold that he has not exhausted his administrative remedies as required by the statute. IY. Conclusion The individual consumers in this case established a definable and discernible injury and the proper connection between that injury and the various aspects of the suit. The district court’s insistence that they prove more than they did was improper. A plaintiff is not required to prove his case in order to acquire standing. The district court did, however, correctly conclude that CNI failed to satisfy the constitutional elements of standing. An organization cannot establish standing on the basis of its abstract interest in seeing that justice prevails. The district court was also correct in its decision to dismiss Oberweis. Accordingly, the district court’s opinion is affirmed in part and reversed in part, and the case is remanded to the district court for a decision on the merits. It is so ordered. . 7 U.S.C. §§ 601-624 (1976 & Supp. V 1981). . The conditions leading to the enactment of the AMAA have been chronicled in previous judicial decisions. See, e.g., Zuber v. Allen, 396 U.S. 168, 172-76, 90 S.Ct. 314, 317-19, 24 L.Ed.2d 345 (1969); Shepps Dairy, Inc. v. Bergland, 628 F.2d 11, 13-15 (D.C.Cir.1979). . 7 U.S.C. § 608c (1976 & Supp. V 1981). . A producer is “any person who produces milk in compliance with the inspection requirements of a duly constituted health authority, which milk is received at a pool plant or diverted... from a pool plant to a non-pool plant.” 7 C.F.R. § 1012.12 (1982) (Tampa Bay Marketing Order). . 7 C.F.R. §§ 1001-1139 (1982). . See, e.g., Id., § 1012.40(a). . See, e.g., Id., § 1012.40(b). Under many orders milk is divided into three classes. However, for purposes of this case, all milk other than milk used for fluid purposes will be referred to as Class II milk. . See note 2 supra. . 7 U.S.C. § 608c(5)(B)(ii) (1976). . Handlers are “processors, associations of producers, and others engaged in the handling of any agricultural commodity or product.” 7 U.S.C. § 608c(l) (1976). . This average price is referred to as the “uniform price” or “blend price.” The method for computing this price is set out in 7 C.F.R. § 1012.61 (1982). . Butterfat or nondairy fats such as coconut oil may also be added. The milk is then considered to be “filled” milk. . 28 Fed.Reg. 11,848 (1963); 28 Fed.Reg. 11,-956, 12,000 (1963); 29 Fed.Reg. 9,002, 9,110, 9,214 (1964). In 1969 the regulations were expanded to cover “filled” milk. 34 Fed.Reg. 16,548 (1969). . 7 C.F.R. § 1012.30(a)(b) (1982). . Id., § 1012.14(c). . See, e.g., Id., § 1012.44(a)(5)(i). . Id., § 1012.60(e). . Id, § 1012.71(a)(1). . Letter from William T. Manley, Deputy Administrator, Marketing Program Operations, to Community Nutrition Institute, 7 April 1981 (USDA Decision Letter) at 1, reprinted in Joint Appendix (JA) at 170. . Appellees include the Secretary of Agriculture and the United States Department of Agriculture (the Secretary) and the National Milk Producers Federation, Associated Milk Producers, Inc., and Central Milk Producers Cooperative (Producers). . 7 U.S.C. § 608c(15) (1976). . E.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ; Warth v

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

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, Appellant, v. BRANDTJEN & KLUGE, Incorporated, Defendant, Appellee. No. 4996. United States Court of Appeals First Circuit. Dec. 15, 1955. Bessie Margolin, Asst. Solicitor, Washington, D. C., with whom Stuart Rothman, Solicitor, Harry A. Tuell, Atty., Washington, D. C.,. and Thomas L. Thistle, Regional Atty., Boston, Mass., were on brief, for appellant. David W. Kelley, Boston, Mass., with whom Peter D. Cole, Badger, Pratt, Doyle & Badger, Boston, Mass., and Fel-haber & Larson, St. Paul, Minn., were on brief, for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. In this case the Secretary of Labor filed a complaint seeking an injunction against defendant-appellee forbidding the corporation from violating the overtime provisions of § 7 of the Fair Labor Standards Act of 1938, as amended. 52 Stat. 1063, 63 Stat. 912, 29 U.S.C.A. § 207. The district court found that the wage payments which defendant had been making to its employees in question, in weeks in which any of them worked more than 40 hours, had been in pursuance of bona fide individual contracts of employment which in all respects complied with the requirements of § 7(e) of the Act.' Accordingly the court ruled that the evidence did not warrant a finding that the defendant had violated the provisions of § 7, and entered judgment dismissing the complaint, from which judgment the Secretary of Labor has taken the present appeal. Subsection (e) of § 7 was added to the Act by the amendments of 1949 in order to give specific legislative sanction to wage arrangements of the “Belo” type, which the Supreme Court had theretofore approved, by a sharply divided Court and without the aid of express statutory language, in Walling v. A. H. Belo Corp., 1942, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716. The difficulty which gave rise to the litigation in the Belo case was that, in § 7 of the original act as enacted in 1938, there was no statutory definition of what Congress meant by the phrase “the regular rate at which, he is employed.” Section 7(a) provided, with exceptions not now relevant, that no employer should employ any of his employees who is engaged in commerce or in the production of goods for commerce, as defined, for a workweek longer than 40 hours, “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.” It became firmly established that an employer might be guilty of an overtime violation under § 7, even though the total compensation which an employee of his might have received for a workweek in excess of 40 hours was equal to or in excess of the minimum hourly rate prescribed in § 6, for 40 hours of work, plus time and one-half such minimum hourly rate for every hour in the workweek in excess of 40 hours. Overnight Motor Transp. Co., Inc., v. Missel, 1942, 316 U.S. 572, 577-578, 62 S.Ct. 1216, 86 L.Ed. 1682. Also, it became established that the contract of employment need not express the agreed compensation in terms of an hourly rate, but might, for example, fix the compensation in terms of a lump sum weekly salary, regardless of the number of hours worked in any particular workweek. In such a case “the regular rate” for a particular week had to be determined by translating the agreed weekly salary into an hourly rate, through the device of dividing the amount of salary paid for the week by the number of hours actually worked in that week; and if the employee worked more than 40 hours in any particular week he was entitled to receive extra compensation for such excess hours, in addition to his weekly salary, in an amount at least equal to one-half the regular hourly rate so determined. See Overnight Motor Transp. Co., Inc., v. Missel, supra, 316 U.S. at page 580, 62 S.Ct. at page 1221. As the Supreme Court explained in the Missel case, instead of forbidding outright any employment in excess of 40 hours a week, as Congress might constitutionally have done, Congress chose, in general, to discourage such overtime work by making it cost something extra to the employer to work his employees in excess of 40 hours a week. “By this requirement, although overtime was not flatly prohibited, financial pressure was applied to spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the act. In a period of widespread unemployment and small profits, the economy inherent in avoiding extra pay was expected to have an appreciable effect in the distribution of available work. Reduction of hours was a part of the plan from the beginning.” 316 U.S. at pages 577-578, 62 S.Ct. at page 1220. In the Belo case, the Supreme Court had before it an employer who, prior to the effective date of the Fair Labor Standards Act, had been paying weekly salaries by way of compensation to employees the length of whose workweeks fluctuated widely from week to week. If the compensation basis had been shifted merely to an hourly rate, the employees, due to the irregular hours of employment, never could count on an assured compensation per week. For the dual purpose of conforming its wage arrangements to the requirements of the Act, and at the same time to assure its employees that their previous weekly salaries would not be reduced, the employer entered into bona fide individual contracts of employment which fixed the employee’s basic or regular rate of pay at an hourly rate substantially in excess of the minimum prescribed in § 6, and provided that the employee would receive not less than one and one-half times this basic hourly rate for each hour worked in excess of the maximum workweek stipulated in § 7, with a guaranty to the employee that, regardless of the fluctuations in the length of the workweeks, he would always receive at least an amount equivalent to his prior weekly salary. Under the contracts, because of the fixed relationship between the stipulated hourly rate and the weekly guaranty, each employee had to work at least 54% hours a week before his guaranty was exceeded, in which event he would be compensated for the hours worked in excess of 54% at a rate equal to time and one-half the basic hourly rate; but whether he worked 30 hours or 54% hours in a particular workweek, the employee was still assured of receiving his guaranteed- weekly salary. As indicating that the hourly rate stipulated in the contract .was not an artificial or fictitious contrivance, the Court emphasized that whenever an employee received a raise in pay the employer would make a conjoint adjustment both of the employee’s basic hourly rate and of his guaranteed weekly salary. The Supreme Court upheld the foregoing wage arrangement in the Belo ease. The basic hourly rate specified in the contract became the lawful “regular rate,” and this was still true despite the additional provision of a weekly guaranty. There was such a consistent and reasonable relationship between the stated hourly rate and the guaranteed weekly sum that, in any week in which the employee worked a number of hours in excess of the maximum fixed in § 7 [44 hours originally, now 40] but not enough to exceed the weekly guaranty, the parties might fairly be deemed to have contemplated that the guaranteed weekly sum embraced two factors: (1) A sum equal to 44 hours of employment [now it would be 40] at the basic hourly rate, and (2) the balance, regarded as the equivalent of not less than one and one-half times the basic hourly rate for each hour worked in excess of the statutory maximum. In any week in which the employee worked in excess of the statutory maximum, but less than 54% hours, it was true that this assumed overtime component of the guaranteed weekly wage was a sum in excess of that arrived at by applying the formula of time and one-half the stipulated basic hourly rate. However, the Court pointed out: “But the Act does not prohibit paying more; it requires only that the overtime rate be ‘not less than’ 150% of the basic rate.” 316 U.S. at page 632, 62 S.Ct. at page 1227. Prom the start, the Administrator of the Wage and Hour Division has disliked the Belo decision and has sought to whittle it down because, to the extent that it was applicable, an employer might make a wage bargain with his employees which would permit him to work them for hours in , excess of the maximum specified in § 7 without having to pay a premium therefor, provided the weekly guaranty is not exceeded. While this is true enough, the answer of the Supreme Court in the Belo case was as follows, 316 U.S. at page 635, 62 S.Ct. at page 1229: “When employer and employees have agreed upon an arrangement which has proven mutually satisfactory, we should not upset it and approve an inflexible and artificial interpretation of the Act which finds no support in its text and which as a practical matter eliminates the possibility of steady income to employees with irregular hours. Where the question is as close as this one, it is well to follow the Congressional lead and to afford the fullest possible scope to agreements among the individuals who are actually affected. This policy is based upon a common sense recognition of the special problems confronting employer and employee in businesses where the work hours fluctuate from week to week and from day to day. Many such employees value the security of a regular weekly income. They want to operate on a family budget, to make commitments for payments on homes and automobiles and insurance. Congress has said nothing to prevent this desirable objective. This Court should not.” Accordingly, the Supreme Court declined to overrule the Belo case in Walling v. Halliburton Oil Well Cementing Co., 1947, 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312, but on the contrary applied it to approve a wage arrangement where-under the employees had to work more than 84 hours a week in order to exceed their weekly guaranties and thus earn additional compensation at one and one-half times the stipulated regular hourly rate. When in 1949 the Congress set itself the task of making an extensive revision of the Fair Labor Standards Act, it determined to write into the law a provision giving specific approval to wage arrangements of the Belo type. Whereas the Administrator has regarded it as a basic and overriding policy of the original act to encourage employers to “spread the work” by the device of exacting from them a wage premium for hours worked in excess of the maximum stipulated in § 7, it may be that in the economic conditions prevailing in 1949 the Congress did not deem this policy to be so strong and controlling as it might have been in 1938 when the Act was originally passed. At any rate, it is clear from what the Congress did in 1949 that it thought that there were important counter-considerations of policy applicable in the cases of employers with wide and unpredictable fluctuations of the workweek. The policy decision was one for the Congress to make, whatever the Administrator, or the courts, might think as to its wisdom. Section 7(e), which the Congress added in 1949, reads as follows, 63 Stat. 914: “ ‘No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of forty hours if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in section 6(a) and compensation at not less than one and one-half times such rate for all hours worked in excess of forty in any workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified.’ ” Notwithstanding this new § 7(e), appellant urges that the case at bar is determined by the ruling of this court in McComb v. Roig, 1 Cir., 1950, 181 F.2d 726. We think this is clearly not so, since the overtime compensation which we held to be due in the Roig case was for workweeks prior to the effective date of the 1949 amendments, and we pointed out, 181 F.2d at page 727 that “Congress has finally, in the 1949 amendments, 63 Stat. 910, supplied more detailed statutory guides in the Belo and related situations, but these amendments do not control the disposition of the case at bar.” In the Roig case we did not consider the provisions of § 7(e) at all. Though the present case involves overtime compensation alleged to be due for workweeks as to which the new § 7(e) is undoubtedly applicable, if we understand appellant’s contention we are to decide this case just as though § 7(e) had not been enacted, which would throw us back into the morass of cases in which the courts, groping in the dark, so to speak, without specific statutory guidance, were struggling with the implications of the Belo doctrine, as enunciated originally in Walling v. A. H. Belo Corp., 1942, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716. We think no such burden now rests upon us. Though the legislative history makes clear that the Congress had the Belo decision in mind when it enacted the self-sufficient substantive provisions of new § 7(e), we cannot infer that the Congress meant § 7(e) to be merely clarifying language approving the principle of the Belo case as elaborated and applied in subsequent court decisions. Upon the contrary, the concluding language in § 7(e) requires that the contract of employment must provide “a weekly guaranty of pay for not more than sixty hours based on the rates so specified” — which would rule out such a wage agreement as was present in Walling v. Halliburton Oil Well Cementing Co., 1947, 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312, though the Supreme Court had regarded that wage agreement as being lawful and valid within the principle of the Belo case. On the other hand, it is clear that the Congress has disapproved such decisions as Bay Ridge Operating Co., Inc., v. Aaron, 1948, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502, for it promptly amended the Act to overturn the ruling in that case, notwithstanding the fact that a majority of the Court had held that the wage agreement there involved was not within the Belo principle and did not save the employer from making additional overtime payments for work in excess of the statutory maximum. See 63 Stat. 446; Sen. Rep. No. 402, 81st Cong., 1st Sess. The substance of this amendment now appears in §§ 7(d) (5), (6) and (7), and § 7(g) of the Act. See 63 Stat. 914, 915. Therefore we think that the new § 7(e) enables the courts to make a fresh start, and in any case of wage agreements which fall within the unambiguous language of that subsection, the employer must be deemed not to have violated the overtime provisions of § 7(a), whatever the courts might have held without the statutory guidance of § 7 (e). With the foregoing preliminary observations, we now come to the facts of the present case. They are contained in an agreed stipulation and are not in dispute. Appellee is a Minnesota corporation engaged in the manufacture, sale, distribution, installation and repair of printing presses and related equipment. Though it has its headquarters in St. Paul, Minn., it operates eleven branch offices in various cities and states throughout the country, at which branch offices it employs one or more persons known as “erectors.” The number of erectors employed at any one time was subject to variation, but during the period from August 1, 1950, to September 6, 1953, appellee employed a total of seventeen erectors at its various branch offices, including the one in Boston, Massachusetts. Each of these erectors was employed under a standard form of individual contract which specified that the employee’s “basic rate of pay” would be a certain amount per hour (in all cases in excess of the minimum stated in § 6) for the first 40 hours of work each week, and provided further that for time employed over 40 hours during each week the employee would receive for such excess hours “not less than one and one-half times such basic rate above mentioned,” with a guaranty on the part of the employer that the employee would receive at least a stated minimum sum each week. This sum was designed to be the equivalent of what the employee would receive for 48 hours of work at the stated basic hourly rate for the first 40 hours and one and one-half times such basic rate for the additional eight hours. Thus since the guaranty assured to each employee weekly earnings which would be equivalent to what he would earn at the basic hourly rate, plus statutory overtime, for 48 hours of employment each week, the contracts clearly complied with the concluding requirement of the new § 7(e) to the effect that the weekly guaranty must be “for not more than sixty hours based on .the rates so specified.” The hours worked by the said erectors during a workweek varied widely from week to week and from erector to erector due largely to the irregularity and unpredictability of demand for their services. This variation ranged from a minimum of eight hours a week in one case to a maximum of 75 hours a week in another. More often than not these erectors worked less than 40 hours a week, but in over 20 per cent of the total number of workweeks in which these seventeen erectors were employed the hours worked were in excess of 40, and in about 3 per cent of the total workweeks the hours worked were in excess of the 48 upon which the guaranty was based; and of course in these cases where the erector worked more than 48 hours and thus exceeded his guaranty, he received additional compensation for the hours in excess of 48 on the basis of one and one-half times his stated hourly rate. The individual contracts of employment in the present case thus indubitably met another requirement of § 7(e) of the Act in that the duties of the employees involved necessitated “irregular hours of work”. As bearing on the genuineness of the basic hourly rate stated in the contracts, it is a fact that whenever one of the erectors received an increase in pay a new contract was issued to the employee and signed by him to signify his acceptance, with appropriate changes therein both in the basic hourly rate and in the weekly guaranty so as to maintain the consistent relationship between the hourly rate and the weekly guaranty, the amount of the guaranty being in all cases designed to assure to the employee weekly earnings equivalent to what he would receive for 48 hours of employment at the stated basic hourly rate for the first 40 hours and the statutory overtime thereon for the additional eight hours. We are in entire agreement with the following paragraphs from the opinion of the district court: “In this case the wage plan employed by the defendant clearly complies with the provisions of Section 7(e) in the following respects: the employment contracts specify as a regular rate of pay an hourly sum which in each case is at or above the minimum prescribed by the Act; compensation at not less than one and one-half times the hourly rate is provided for all hours worked in excess of forty in any workweek; and a weekly guarantee of pay is also provided for at not more than sixty hours based on the rate specified. In this case the guarantee is for forty-eight hours of work. “There does not seem to be any dispute either as to the fact that the employees are employed pursuant to bona fide individual contracts. In any case, I find this to be the faet. I also find from the evidence in the case that the duties of the erectors; necessitate irregular hours of work. This fact is apparent from but a cursory examination of the payroll records of the employees. Thus the wage contracts in this case comply in all respects with the express, provisions of Section 7(e) supra, and! for this reason should be sustained; by this Court.” [129 F.Supp. 677.] It would, in our opinion, be unwarranted judicial legislation on our part to read into § 7(e) another requirement which the Congress chose not to put there, namely, that under individual contracts which in all other respects comply with § 7(e) the employees concerned must, in a certain percentage of workweeks, or in a “substantial” or a “significant” number of workweeks, actually have worked enough hours to exceed their respective guaranties so as to entitle them to extra compensation for such excess hours on the basis of time and one-half the basic hourly rate. This contention by the government was rightly rejected in Tobin v. Little Rock Packing Co., 8 Cir., 1953, 202 F.2d 234, certiorari denied 1953, 346 U.S. 832, 74 S.Ct. 26, 98 L.Ed. 355. To the same effect see Mitchell v. Adams, D.C.M.D. Ga.1955, 129 F.Supp. 377. Similarly, we think we would not be warranted in reading into § 7(e) an additional requirement that the weekly guaranty must be based upon an assumed average number of hours the employee might be expected to work per week during the performance of a contract of employment of indefinite duration. The only requirement in this respect which the Congress chose to insert in § 7(e) was that the weekly guaranty must not be for “more than sixty hours based on. the rates so specified.” So far as the record discloses, the employees concerned have not complained, but are satisfied with the wage bargains they respectively made, under which they are assured of a stable weekly pay notwithstanding that the nature of their employment is such as to make inevitable a wide and unpredictable fluctuation in the number of hours actually worked per week. In this aspect of the case, the observations of the Supreme Court in the Belo case, 316 U.S. at page 635, 62 S.Ct. at page 1229, which we have quoted earlier in this opinion, are very much in point and have an obvious persuasive force. The judgment of the District Court is affirmed. . Though we do not in the present case have to decide the point, it may be that wage agreements in terms like those we dealt with in McComb v. Roig, 1 Cir., 1950, 181 P.2d 726, would not fall within the saving provisions of § 7(e). The argument would be that when § 7(e) requires that a bona fide contract of employment must specify, among other things, “a regular rate of pay of not less than the minimum hourly rate provided in section 6(a)”, it is not enough that the contract of employment may name an hourly rate and label it the “regular rate of pay”, where it is obvious that such hourly rate is merely an arbitrary and fictitious figure not really meant by the parties to be the basis upon which the agreed compensation is to be calculated. As we pointed out in the Roig case, all the employees there concerned, regardless of the wide differences in the kind of jobs that they severally performed, were listed as working at the same contract hourly rate of 47 cents, though their weekly guaranties varied from $24.44 to $40.00. Since there was an absence of any logically consistent or reasonable relation, either on an individual or on a group basis, between the weekly guaranties and the specified hourly rates, we concluded that the hourly rates of 47 cents mentioned in the contracts were artificial contrivances which did not really set the “regular rate” at which the workers were employed; and that therefore the plan failed “even though it is true that four of the eight workers involved, at times, though not often, took home more than their weekly guaranties.” 181 F.2d at page 730. We also pointed out that it is a clear indication that the stated hourly rate is wholly artificial if the employees from time to time receive wage increases in the form of increases in the weekly guaranties while the hourly rate remains unchanged.

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"?

Pearl E. LANEY, Administratrix of the Estate of Wilbur R. Laney, deceased, Plaintiff-Appellee, v. AMERICAN AIRLINES, INC., A Delaware corporation, Defendant-Appellant. No. 14488. United States Court of Appeals Sixth Circuit. Nov. 20, 1961. Robert E. Rutt, Detroit, Mich. (Ward, Plunkett & Cooney, Detroit, Mich., on the brief), for appellant. Thomas L. Conklin, of Conklin & Maloney, Detroit, Mich. (Mack & Kelley, Alpena, Mich., on the brief), for appellee. Before MILLER, Chief Judge, and MAGRUDER and WEICK, Circuit Judges. PER CURIAM. Decedent, Wilbur R. Laney, who was 91 years of age, fell down an escalator at the Detroit Metropolitan Airport and received injuries which resulted in his death. His widow, as administratrix of his estate, brought an action in the District Court against American Airlines, Inc. to recover damages for the wrongful death of her husband, claiming Airlines was negligent in failing to furnish aid and assistance to him while he was at the airport. The case was tried before a jury resulting in a verdict in favor of the plaintiff in the amount of $7,500. The principal errors relied upon for reversal relate to instructions of the Trial Judge to the jury to the effect that defendant was negligent in failing to keep proper records to indicate to its ticket agent at the Metropolitan Airport that aid and assistance was to be furnished to the Laneys. Laney and his wife, who was 72 years old, lived in Alpena, Michigan. One of their sons, Richard Laney, resided in Phoenix, Arizona and had invited them to spend the winter with him. On January 17, 1959 Richard purchased and paid for two tickets for his parents at Airlines’ ticket office in Phoenix on Flight 621 leaving Detroit on January 22nd at 12:20 a. m. Richard advised the ticket agent that his parents were elderly and had never flown before; that his father was 91 years old and would need assistance in getting on and off the plane and around the airport. The agent told him that this assistance would be furnished. Code messages were sent from Phoenix to Airlines’ downtown office in Detroit advising of the purchase and payment of the tickets and that the Laneys were “first riders — elderly” which conveyed information that they would need assistance. On January 21st Mrs. Laney called Airlines in Detroit on the telephone from the home of another son at Flint and can-celled their reservations for the flight scheduled for January 22nd because of the icy conditions of the Michigan roads which made driving by automobile to the airport hazardous. The parties are in disagreement as to what happened thereafter. Airlines’ records indicate that reservations were made for the same flight on the 23rd and that a new card was made up and filed for this flight. A flight manifest was prepared for this flight on which the names of the Laneys appeared and were circled in red which meant that they did not show up. The manifest indicated that the Laneys were first riders, but did not reveal that they were elderly. When the Laneys did not appear on the 23rd their reservations were marked cancelled and the cards were placed in Airlines’ back files. The records also indicate that another reservation was made on the 23rd for the same flight on the 24th at 12:20 a. m. It was on the 23rd, close to midnight, that the accident occurred. Mrs. Laney’s version was that she called Airlines on the telephone on the 22nd and that a girl advised her that all of Airlines planes were grounded because of weather conditions; that the same girl called her on the 23rd and told her she could come to the airport that day and leave on the flight on the 24th at 12:20 a. m. Airlines records for the 22nd and 23rd did not show that any outgoing flights from Metropolitan Airport were cancelled on these dates. The Laneys were driven in an automobile by another son from Flint to the airport on the 23rd in the afternoon. The car was parked in the airport parking lot and they walked to the airport building. Mr. Laney used a cane and was .assisted by his son. They went to the .second floor by escalator to the ticket •counter where Mrs. Laney asked Mr. •Campau the ticket agent, for the tickets for herself and husband, which her son had paid for. He called the downtown •office on the telephone and learned that the tickets had been paid for and wrote them up and delivered them to Mrs. Laney. He instructed her to return at 11:45 p. m. Mrs. Laney testified that she related to Campau that her son had made arrangements for assistance to the •plane. Mrs. Laney testified that she and her husband returned to the ticket desk at 11:45 p. m.; that her son and his wife had left for home on account of the bad weather; that Mr. Campau told her to take the escalator and go out at gate 4. She said that she and her husband waited .•at the escalator for several minutes expecting assistance to come and when no .assistance arrived proceeded down the ■escalator. Mr. Campau testified that he had received no instructions from the Detroit ■office relative to providing assistance to the Laneys. He was uninformed about Mr. Laney’s age and did not remember ■ever seeing him and had no conversation with him. He did not recall having seen Mrs. Laney at 11:45 p. m. although he .admitted it was possible for him to have .seen her and instructed her to use the ■escalator to get to gate 4. It was the contention of Airlines that the information concerning the Laneys being elderly and first riders was no longer available to Detroit reservations and to ticket agent Campau since it had been back filed or placed in dead files when the Laneys failed to keep their reservations for the 23rd and that the only record kept was the Prepaid Ticket Authority Book showing that the transportation had been paid for in advance. The District Judge charged the jury that the flight of the 24th was, as a matter of law, a continuation of the flight of the 22nd. The reservations of the Laneys for the flight on the 22nd concerning which arrangements had been made for aid and assistance to them had admittedly been cancelled. The parties were in disagreement about what took place thereafter. Airlines’ records did not agree with the testimony of Mrs. Laney. Under the circumstances, we think that reasonable minds might have reached different conclusions on the issues whether the flight on the 24th was a continuation of the flight on the 22nd and whether the defendant was negligent. Both of these factual issues should have been submitted to the jury for determination under proper instructions. We think the District Court erred in determining these two issues as a matter of law. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed. 2d 953; Sandri v. Byram, 30 F.2d 784 (CA6); McKinney v. Yelavich, 352 Mich. 687, 90 N.W.2d 883. Airlines next complains about the conduct of the Trial Judge in inferring to the jury that it had corrected its records for purposes of trial; in inferring that Airlines had failed to produce material witnesses; in telling the jury there was no evidence that Mrs. Laney was not telling the truth; in inferring that defendant had produced a “phoney” stamped envelope as an exhibit; in .stating in the presence of the jury that the attorney for Airlines was confusing everyone and wasting time; in stating that Airlines had “slipped up” in handling plaintiff’s reservations and in making other derogatory remarks concerning Airlines during the course of the trial. Remarks made by the court in the presence of the jury have a great tendency to influence the jury verdict. This in itself is not forbidden in the federal system. It is a question of degree. But when the Trial Judge becomes in effect the lawyer for one of the litigants, he oversteps the bounds of judicial propriety. It is impossible for us to say that appellant was not prejudiced by the various untoward remarks of the judge in this case. If necessary we would reverse the Trial Judge on this ground alone, though we find it unnecessary to do so in the present case. There was no error in denying the motion for a directed verdict. Judgment reversed.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Ramon BUSTOS-GUZMAN, Pedro Benara-Agamez, Luis Enrique Diaz-Nunoz, Victor Manuel Barrantes, Defendants-Appellants. No. 81-5457. United States Court of Appeals, Eleventh Circuit. Sept. 13, 1982. Jose J. Larraz, Jr., Asst. Federal Public Defender, Miami, Fla., for Bustos-Guzman. Philip Carlton, Jr., Miami, Fla., court appointed, for Diaz-Nunoz. Mark Alan LeVine, Robyn J. Hermann, Deputy Federal Public Defender, Benedict P. Kuehne, Miami, Fla., court appointed, for Agamez. Blas E. Padrino, Coral Gables, Fla., court appointed, for Barrantes. Jon May, Asst. U. S. Atty., Miami, Fla., for the U. S. Before TUTTLE, RONEY and CLARK, Circuit Judges. PER CURIAM: Convicted after a nonjury trial of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C.A. § 955c and possession with intent to distribute over 5,000 pounds of marijuana found on a United States vessel in violation of 21 U.S.C.A. § 955a and 18 U.S.C.A. § 2, four defendants raise on appeal several points involving sufficiency of the evidence, suppression of evidence and constitutionality of 21 U.S. C.A. § 955a. We affirm. A Coast Guard cutter encountered in international waters a 52-foot fishing vessel flying an American flag. A radio inquiry revealed the vessel was the BETTY H with a home port of Eureka, California, its last port of call was Panama en route to Nassau, the purpose of the voyage was to have a good time, and there was no cargo on board. Although the BETTY H was on the Coast Guard’s suspect list, an armed boarding party was sent for the sole purpose of ascertaining compliance with U.S. law. The captain, defendant Diaz-Nunoz, produced a customs clearance from Cristobal, Panama, that listed Diaz-Nunoz as master, only one crew member and no passengers. There were four men including the captain aboard the BETTY H when boarded. The Coast Guard certificate of consolidated enrollment and license was two years out of date and listed O. W. Handy as master. The lieutenant in charge of the boarding party instructed another Coast Guard officer to check the main beam number. Diaz then informed the lieutenant that marijuana was on the boat. A search of the vessel revealed 5,760 pounds of marijuana. Seventy bales of marijuana were found in the ship’s forward hold, 30 bales in the aft hold. Two charts found on the vessel showed track lines beginning in Panama or Hispaniola and ending in the Bahamas. The crew members were arrested, advised of their rights, and taken with the ship to Miami where defendant Bustos-Guzman told a Drug Enforcement Administration Agent (DEA) he boarded the BETTY H in Panama, was recruited for the job, and knew marijuana was on board. On appeal defendants first attack the proof of venue. Because defendants did not file a motion for a change of venue prior to trial, they waived any objection to venue and may not raise it for the first time on appeal. See United States v. Richards, 646 F.2d 962 (5th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). In addition, there was ample circumstantial evidence to support venue in the Southern District of Florida. Direct evidence is not required. United States v. Martino, 648 F.2d 367, 400 (5th Cir. 1981). Although the defendants raised numerous objections as to the constitutionality of 21 U.S.C.A. § 955a, the point has been resolved against them in this Circuit by the recent decisions in United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir. 1982); United States v. Julio-Diaz, 678 F.2d 1031 (11th Cir. 1982); United States v. Riker, 670 F.2d 987, 988 (11th Cir. 1982). Defendants argue the Government did not prove that the BETTY H was a vessel of the United States, as required by 21 U.S.C.A. § 955a(a). The BETTY H flew an American flag, its home port was Eureka, California, it was registered in the United States, and the owner was a United States citizen. The flag under which a ship sails is prima facie proof of her nationality, Hartwig v. United States, 19 F.2d 417 (5th Cir. 1927), and the “law of the flag” governs conduct aboard the ship. See United States v. Flores, 289 U.S. 137, 150-51, 53 S.Ct. 580, 582-83, 77 L.Ed. 1086 (1933). The evidence was sufficient to establish the BETTY H was a vessel documented under the laws of the United States. See 21 U.S.C.A. § 955b(e). Defendants’ contention that the marijuana should have been suppressed by the trial court is without merit. Under 14 U.S.C.A. § 89(a) the Coast Guard can stop and board a vessel for a document and safety check without any particularized suspicion. United States v. Alonso, 673 F.2d 334, 336 (11th Cir. 1982). The marijuana was in plain view of the officer who checked the vessel’s main beam number. See United States v. Robbins, 623 F.2d 418, 419 (5th Cir. 1980). Since the Coast Guard had authority to board the vessel under 14 U.S.C.A. § 89(a), the defendants could not have any reasonable expectation of privacy protected by the Fourth Amendment in an area where the Coast Guard’s presence is authorized, regardless of the subjective expectations or intent of the boarding party. United States v. Willis, 639 F.2d 1335, 1337 (5th Cir. 1981). The stop and subsequent search of the BETTY H did not violate any constitutional rights of the defendants. All defendants challenge the sufficiency of the evidence to sustain conviction. They argue that the marijuana was securely stored below deck with the hatches closed and there was no evidence that any of them had been in either hold or had handled the marijuana. There was, however, ample evidence that the defendants committed the offenses charged. More than mere presence on the boat was established. See United States v. Alfrey, 620 F.2d 551, 556 (5th Cir.), cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 160 (1980). Possession of contraband may be constructive as well as actual and may be proved by circumstantial evidence. United States v. Goldstein, 635 F.2d 356, 362-63 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981); United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir. 1977), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 150 (1978). The evidence showed that the BETTY H was designed to be a fishing vessel, yet it contained no ice, tackle, refrigeration equipment, nets, or bait. A dangerous condition resulted from the maldistribution of the vessel’s cargo. By the time the ship was boarded the defendants had been on board the vessel from 9 to 11 days. The sleeping area was used for storing the marijuana. There is no evidence to indicate where the crew actually slept, but it is unlikely they remained on deck the entire time. Taken as a whole the evidence is sufficient to sustain the convictions. AFFIRMED. . The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981.

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

FOUNT-WIP, INC., a California Corporation, and National Fount-Wip Vegetable Products, Inc., an Illinois Corporation, Plaintiffs-Appellants, v. REDDI-WIP, INC., a corporation, Hunt-Wesson Foods, Inc., a corporation, Marcus Lipsky, an Individual, Brookhill Farms, Inc., a corporation, Farm Fresh Sales, Inc., a corporation, and Chicago Fount-Wip Distributing Company, Inc., a corporation, Defendants-Respondents. No. 74-1818. United States Court of Appeals, Ninth Circuit. Feb. 6, 1978. Gary B. Lovell, Newport Beach, Cal. (argued), of Baltaxe & Klein, Beverly Hills, Cal., for appellant. Maxwell M. Blecher (argued), of Blecher, Collins & Hoecker, Los Angeles, Cal., for appellee. Before CHAMBERS and HUFSTED-LER, Circuit Judges, and WONG, District Judge. Honorable Dick Yin Wong, United States District Judge for the District of Hawaii, sitting by designation. HUFSTEDLER, Circuit Judge: The plaintiffs won this antitrust case before a jury, but promptly lost their victory when the district court granted defendants’ motion for judgment notwithstanding the verdict and, in the alternative, their motion for a new trial. We affirm judgment for the defendants on the Sherman Act, Section 2 and Clayton Act, Section 7 claims, but we remand plaintiffs’ Sherman Act, Section 1 claim for a new trial because the district court could not properly take away from the jury that portion of the case. This whipped cream battle is an outgrowth of a bitter family feud. Plaintiff corporations are owned by Lapin, the brother-in-law and former business partner of Lipsky. From 1951 to 1959, Lapin and Lip-sky jointly owned and operated Reddi-Wip, which licensed the production and distribution of aerosol whipped cream topping. Irreconcilable differences arose in the family in 1959, and Lapin and Lipsky parted. Lip-sky retain control of Reddi-Wip; Lapin acquired control of Reddi-Wip’s former subsidiaries, Fount-Wip and National FountWip Vegetable Products. Fount-Wip produces aerosol whipped cream topping from a dairy base. National Fount-Wip Vegetable Products produces whipped cream from a vegetable base. As part of the dissolution agreement, Lapin and Lipsky entered into a covenant of non-competition covering the seven-year period from 1959 to 1966. Lipsky agreed to confine Reddi-Wip’s licensees to the production and distribution of aerosol whipped cream for sale to the retail trade, primarily supermarkets, and Lapin agreed to confine the Fount-Wip companies to the institutional trade, such as restaurants, hotels, and quick-service food chains. In Chicago, the center of the activities involved, the two principal independent whipped cream producing dairies were Brookhill Farms and Super Whip Sales. Super Whip sold primarily to the retail market. Brookhill sold both to the retail and to the institutional trades. The other important whipped cream production facility in Chicago was the Instant-Whip plant; Instant-Whip is not a party to this litigation. Unlike Brookhill and Super Whip, Instant-Whip was not a licensee of a whipped cream formula franchisor; its facilities were used only by its parent, the Instant-Whip company. Lipsky offered to purchase Lapin’s interest in Fount-Wip in 1964. According to Lapin, the offer was made at a private meeting attended only by Lapin and Lip-sky. Lapin testified that when he rejected the offer, Lipsky threatened to drive him out of business. Reddi-Wip acquired Super Whip in 1964. The following year, Reddi-Wip, acting through Super Whip, acquired Brookhill and two-thirds of the stock of Super Whip Valve Company, which was engaged in the production of aerosol valves for sale to manufacturers of aerosol whipped toppings. Lipsky thereafter took no action to terminate Brookhill’s contract with Fount-Wip. Rather, Fount-Wip’s contract was extended two years to the end of 1967 on the same terms that previously existed. Six months before the expiration of that contract, the parties began negotiating for a new agreement. The negotiations were characterized by hard bargaining on both sides, but the parties were soon deadlocked about the size of the royalty that Brookhill would pay Fount-Wip and about the duration of the new contract. In November, 1967, the defendants offered to continue the royalty terms of the old contract for a period of one year, with a potential renewal for a second year. Lapin held out for a three-year agreement. Lapin claimed that in December, he decided to accept the Brookhill offer. However, the parties were unable to get together until February, 1968, at which time the Brookhill offer was withdrawn. By April, the negotiations had collapsed, and Lapin lost Brook-hill as a franchisee. The parties’ explanations for failing to reach agreement are sharply conflicting. According to Lipsky, Fount-Wip was the victim of technological progress in the aerosol whipped cream industry. Until 1965, Fount-Wip’s position in the production of aerosol whipped cream was secure because Lapin owned the patent rights of the so-called Neilsen gun, a large reusable aerosol container which held more fill and was more suitable to institutional use than the seven-ounce disposable cans used for the production of whipped cream for retail sales. Lipsky claimed that the Neilsen gun had many disadvantages; it was more expensive and less sanitary than disposable cans, and it required substantial labor costs to make it reusable. In 1965, the American Can Company developed a large disposable can which eliminated the disadvantages of the Neilsen gun while preserving its advantages. Brookhill began ordering disposable cans from FountWip, and, by the end of 1967, almost all of Brookhill’s sales of Fount-Wip’s product were in disposable cans. Nevertheless, Brookhill performed its contractual obligations by continuing to pay Fount-Wip a three and one-half cents per can royalty on the disposable cans which, unlike the Neil-sen gun, could be purchased directly by Brookhill without paying royalties. During the lengthy negotiations Brookhill pressed for a reduction in the royalty to one and one-half cents per can. Lapin refused, but offered to continue the old royalty for a shorter time. By February, 1968, when no agreement was reached, defendants asserted that their offer had been rejected. Lapin argued that the collapse of negotiations and the termination of Brookhill’s dealings with Fount-Wip were a part of Lipsky’s plan to drive him out of business. He insisted that the collapse of negotiations was caused by Lipsky and that Lipsky knew that Lapin was prepared to accept Lipsky’s offer during December and January. Lapin charges that Lipsky was negotiating in bad faith, evidenced by a number of incidents that he described as malicious during the 1967-68 period. During the fall of 1967, Brookhill began ordering disposable cans directly from American Can Company, and it also prepared the art work for the new Brookhill label which was to replace the Fount-Wip labels. Brookhill changed the mix of disposable and returnable cans to facilitate replacement of Fount-Wip’s labels with Brookhill’s. During the same period, a similar dispute erupted in the New York distribution area, where a Reddi-Wip franchise production facility stopped making Fount-Wip products, and, at the conclusion of the contractual period, Brookhill failed to return returnable cans to the appellants. Plaintiffs claim that the breakdown of the Brookhill-Fount-Wip talks, together with the termination of their contractual relationship, constituted an unlawful refusal to deal in violation of the Sherman Act. The theory is that Lipsky, through the companies that he controlled, undertook a series of acquisitions and bad faith commercial activities in a successful effort to drive the plaintiffs out of business in the Chicago area. In support of this theory, plaintiffs point out that the only aerosol whipped cream production facilities in Chicago were those of Brookhill, Super Whip, and Instant-Whip. When the contract negotiations collapsed, the Brookhill plant was no longer available to Fount-Wip, and Instant-Whip produced only Instant-Whip whipped cream. Lapin claimed that opening new production facilities in the Chicago market was not economically feasible by reason of the size of defendants’ operations. Thus, plaintiffs argue, the effect of Reddi-Wip’s acquisitions of Brookhill and Super Whip, together with the termination of the Brook-hill-Fount-Wip contract, was the exclusion of the Fount-Wip companies from the Chicago market. Plaintiffs also contend that defendants’ control over the aerosol whipped topping production plants in the Chicago area constituted monopolization in violation of Section 2 of the Sherman Act (15 U.S.C. § 2) and that the effects of Reddi-Wip’s acquisitions of Brookhill, Super Whip, and Super Whip Valve “may be to lessen competition, or to tend to create a monopoly” in violation of Section 7 of the Clayton Act (15 U.S.C. § 18). Although a company may ordinarily deal or refuse to deal with whomever it pleases without fear of violating the antitrust laws (e. g., United States v. Colgate & Co. (1919) 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992), refusal to deal which is anticompetitive in purpose or effect, or both, constitutes an unreasonable restraint of trade in violation of the Sherman Act. (See, e. g., Mutual Fund Investors, Inc. v. Putnam Management Co. (9th Cir. 1977) 553 F.2d 620, 626; Westinghouse Electric Corp. v. CX Processing Laboratories, Inc. (9th Cir. 1975) 523 F.2d 668, 673; Trixler Brokerage Co. v. Ralston Purina Co. (9th Cir. 1974) 505 F.2d 1045, 1051; Bushie v. Stenocord Corp. (9th Cir. 1972) 460 F.2d 116, 119; Alpha Distributing Co. of California v. Jack Daniel Distillery (9th Cir. 1972) 454 F.2d 442, 452; cf. Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors Ltd. (9th Cir. 1969) 416 F.2d 71, 77-78.) Two contested factual issues were presented: (1) Did defendants refuse to deal, and (2) if so, was the refusal a product of anticompetitive motive? These factual issues could not be taken from the jury “unless ‘the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict . . .’” (Cockrum v. Whitney (9th Cir. 1973) 479 F.2d 84, 85, quoting Brady v. Southern Ry. (1943) 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239.) In making that determination, we are bound to view the evidence in the light most favorable to the party in whose favor the jury verdict was rendered and to give that party the benefit of all inferences that might fairly have been drawn by the jury. (Continental Ore Co. v. Union Carbide & Carbon Corp. (1962) 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777.) We must also be mindful of the Supreme Court’s admonition that summary procedures which take a case away from the jury “should be used sparingly in complex antitrust litigation where motive and intent play leading roles.” (Poller v. Columbia Broadcasting System, Inc. (1962) 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458.) Although substantial evidence was in the record from which the jury could have found that Lapin, rather than Lipsky, was responsible for the collapse of the negotiations or that the termination was based upon legitimate business purposes, the record also contains sufficient evidence, apparently credited by the jury, that the opposite was true. There was testimony that Lipsky had threatened to wipe out Lapin and that Lipsky had also taken steps to drive Lapin out of the New York market area. Moreover, evidence was abundant that personal enmity between the two men was long standing. To be sure, Lipsky’s anticompetitive purpose was primarily founded in personal animosity. Fount-Wip and Reddi-Wip apparently did not view each other as competitors, and only after Reddi-Wip had acquired Brookhill did they become, even indirectly, trading partners. Nevertheless, Lapin and Lipsky, warring through their separate corporations, chose to fight out their personal conflict on an economic battlefield. If defendants did conspire to drive Lapin out of business, then a combination in restraint of trade existed which fits within the plain words of the statute. The pernicious consequences to competition of the claimed combination are not lessened because the motivation underlying intentionally anticompetitive conduct is personal malice rather than economic self-interest. The weight of the evidence may well have supported the district court’s conclusion that the termination of Fount-Wip’s contract and the collapse of negotiations were the result of Lapin’s obduracy and of technological progress. But, “[i]t is the jury, not the judge, which ‘weighs the contradictory evidence and inferences, judges the credibility of witnesses, . . . and draws the ultimate conclusion as to the facts . . . . Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.’” (Cockrum v. Whitney, supra, 479 F.2d at 86, quoting Tennant v. Peoria & P. U. Ry. (1944) 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520.) Applying these well-settled principles to the record, we cannot sustain the district court’s grant of judgment notwithstanding the verdict in favor of defendants on the refusal to deal claim. The gist of plaintiffs’ two monopolization claims is that Lipsky’s acquisitions “tend to create a monopoly” in violation of Section 7 of the Clayton Act, and have in fact created such a monopoly, in violation of Section 2 of the Sherman Act. Plaintiffs' contentions must fail because of their failure adequately to define and to prove the relevant market, which is “a necessary predicate” for evaluating claims under these provisions of the antitrust laws. (United States v. Marine Bancorporation, Inc. (1974) 418 U.S. 602, 618, 94 S.Ct. 2856, 41 L.Ed.2d 978 (Clayton Act); accord United States v. E. I. duPont de Nemours & Co. (1956) 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (Sherman Act, Section 2).) In defining the relevant market, the court must look beyond the particular commodity produced by an alleged monopolist because the relevant product market for determining monopoly power, or the threat of monopoly control, depends upon the availability of alternative commodities for buyers. Illegal monopoly does not exist merely because the production of a particular product is “monopolized.” “What is called for is an appraisal of the ‘cross-elasticity’ of demand in the trade.” (duPont, supra, 351 U.S. at 394, 76 S.Ct. at 1007; accord Twin City Sportservice, Inc. v. Charles O. Finley & Co., Inc. (9th Cir. 1975) 512 F.2d 1264, 1271.) “In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodifies reasonably interchangeable by consumers for the same purposes make up that ‘part of the trade or commerce’ monopolization of which may be illegal.” (duPont, supra, 351 U.S. at 395, 76 S.Ct. at 1007.) Plaintiffs have proposed a very narrow definition of the relevant market: the facilities available in the Chicago area for the production and sale of aerosol whipped topping to the institutional trade. This market definition is premised on the unsupported assumptions that the institutional and retail trades constitute separate markets and that the production facilities outside Chicago have no impact on the Chicago market area. Nothing in the record supports plaintiffs’ narrow definition. They adduced no evidence that their market concept reflects the economic realities of the whipped topping industry. Moreover, defendants introduced evidence that (1) a variety of commodities functionally interchangeable with aerosol whipped cream were available in Chicago, and (2) these alternative toppings — such as whipped topping in plastic tubes, and dry powder to which milk is added — were responsive to changes in the aerosol price structure. Plaintiffs did not rebut defendants’ substantial evidence that these other forms of whipped topping are “significant substitutes] in fact” for aerosols for relevant market purposes. (Greyhound Computer Corp. v. International Business Machines Corp. (9th Cir. 1977) 559 F.2d 488, 493.) Plaintiffs were unsuccessful in shrinking the relevant market to the dimension of their product. (duPont, supra.) They failed to bear their burden of proof in establishing the relevant market, and the district court correctly rendered judgment notwithstanding the verdict on this phase of the case. The district court did not abuse its discretion in granting a new trial on the Section 1 Sherman Act claim. On a motion for a new trial, the district court may properly consider the credibility of witnesses and the weight of the evidence. (9 C. Wright & A. Miller, Federal Practice and Procedure § 2531, at 575 (1971).) Although the district court could not take the case away from the jury by granting a motion for summary judgment, it acted well within its discretion in granting defendants’ motion for a new trial. We vacate the judgment in favor of defendants on plaintiffs’ Sherman Act, Section 1 claim; in all other respects, we affirm the district court, and we remand the case for a new trial on the Section 1 claim. The parties shall each bear their own costs on appeal. . As a result of Brookhill’s failure to return the returnable cans Lapin sued Brookhill in federal district court in Chicago for breach of contract. At that time Lapin alleged that the failure to return the cans precluded Fount-Wip from securing a new licensee in Chicago and thus brought about its exclusion from the Chicago market. That action was settled, and Lapin received a payment from defendants. Defendants now argue that since the injury claimed in both the contract and antitrust actions (exclusion from the Chicago whipped topping market) is the same, and since, as a part of the settlement of the former action, Lapin relieved defendants from the claims asserted in the contract case, plaintiffs’ antitrust action is barred by res judicata. However, the parties expressly reserved any antitrust claims from the settlement, and, in any event, the release and res judicata defenses were not preserved because they were not raised in the pleadings or the pretrial statement. . Rejecting plaintiffs’ claim on the.ground that defendants’ anticompetitive conduct was based on personal rather than economic considerations would, in effect, be an application in the antitrust context of a distinction between motivation and intent which has been rejected as unworkable in constitutional adjudication. See, e. g., Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887, 1887-88 n. 1 (1970) (“It is probably fruitless to attempt a principled articulation of the distinction between motive and purpose.”); accord, Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1217-21 (1970). . Because there was a complete failure of proof on the relevant market issue, we need not examine the adequacy of plaintiffs’ efforts on the monopolization count in computing market shares. Nor need we consider whether the Chicago institutional aerosol whipped topping market may be a “well-defined submarket” which the Supreme Court has recognized may constitute a product market under the Clayton Act (Brown Shoe Co. v. United States (1962) 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510). The plaintiffs failed to introduce adequate evidence supporting such a possibility.

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

AGHNIDES v. GOODRIE et al. No. 10910. United States Court of Appeals, Seventh Circuit. Feb. 24, 1954. Rehearing Denied March 31, 1954. Albert L. Ely, Bernard C. Frye, Akron, Ohio, John Rex Allen, Bradford Wiles, Chicago, 111., Everett R. Hamilton, Akron, Ohio' (Ely, Frye & Hamilton, Akron, Ohio, Schroeder, Merriam, Hofgren & Brady, Chicago, Ill., of counsel), for appellant. George N. Hibben, Chicago, Ill., Albert J. Fihe, Burbank, Cal., for appellees. Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges. LINDLEY, Circuit Judge. Plaintiff’s suit for infringement of his patent 2,210,846, applied for in the United States December 31, 1937, and in Belgium December 8, 1934, and allowed August 6, 1940, having resulted in a judgment of invalidity and dismissal of the action, he brings this appeal. The device of the patent is not complicated in structure or operation. The inventor described it as a “fluid mixing device,” “for intimately mixing a gas-with a fluid.” Apparently the only practical use experienced has been in mixing air and water, or “aerating water.” Claim 1 which is typical of all, five in number, appears in the footnote. It is clear that the patentee’s conception envisaged an attachment for a water tap from which water flows under pressure and enters the contrivance at the top, passes through an aperture or apertures or a screen near the top thereof thus dividing and separating the stream as it continues into a mixing chamber, into which incoming air enters through air ports leading into the chamber, thus mingling the air with the rushing water. The mixture of air and water then continues to the outlet, passing over barriers or screens, thus-causing to flow from the outlet into-the kitchen sink or other receptacle an aerated stream of water, which falls in what is called a “coherent” stream whitish in color, due to the added air, without splashing or spattering. It is said also that such aerated water lends itself more readily to the efficient use of soap. Thus the housewife finds the “mixer” or “aerator” helpful in her housework. The whole idea then embraces water under pressure flowing from an open faucet into a chamber after it has been divided by a screen, then subjected to added air, plus a further breaking up, after the air has been added, by another screen or barriers and then released. The application, as plaintiff admits, had “a stormy time in the Patent Office” and was first denied on various references, but eventually allowed by the Board of Appeals. The District Judge heard the testimony of the plaintiff, his expert and Mr. Goodrie, one of the defendants, received certain documentary evidence and observed certain tests of the patented, the allegedly infringing and other devices in open court, participated in by both parties. He had before him evidence bearing upon alleged commercial success and various references to the prior art. At the conclusion of the trial, he took the cause under advisement, giving the parties the privilege of filing written briefs and argument, the time for filing which was extended at various times. Finally, when they were all in, the judge, on November 3, 1952, announced his decision, saying: “In my opinion the Aghnides patent Number 2,210,846 upon which plaintiff relies in this case is anticipated by British patents Number 6012 of 1909 and 405316 of 1933 and is therefore invalid. Counsel may prepare findings of fact and conclusions of law and submit them to Casper W. Ooms as Special Master in this case for the purpose of passing on such findings and conclusions.” Following the Special Master’s report on March 20, 1953, the court entered formal findings and conclusions, in which, after discussing the details of the patent, pointing out the salient elements of the prior art and describing the tests performed in open court, it found that all the elements of Aghnides were old in the art in the Felten British patent No. 6012 of 1909, its counterpart, No. 1090044 to Fuss 1914, and Solomon British patent No. 405,316 of 1933; that Aghnides’ assembly of old elements performs no new or additional function, and achieves no new or unusual or surprising result but that the devices of the prior patents to Solomon and Felten achieved substantially the same results and that to produce the disclosure of the patent required no invention. The court concluded that the claims were anticipated by Felten and Solomon and were invalid because of such anticipation and because of lack of invention. At the outset we are met with plaintiff’s contention that the findings are not entitled to the proverbial weight to be given trial court findings under Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A. He attacks only those heretofore summarized, insisting that they were proposed by the Master, who, though he had examined the oral and documentary evidence, did not see the tests performed in open court and that they were therefore wrongfully adopted by the court, after a protracted interval had intervened between the conclusion of the trial and the date of the entry of the findings. He argues that the court had forgotten the facts, and merely accepted the Master’s proposals, which did not take into consideration the tests which the court had observed. At the conclusion of the trial, November 15, 1951, both parties waived oral argument. After various extensions of time, plaintiff filed its brief and argument on May 22, 1952; thereafter defendants filed their brief and argument and plaintiff filed his reply brief. In September, 1952, Judge Holly suggested that, as he had been ill during the summer and unable to work on his decision, perhaps the parties would desire to have the case assigned to another judge. Counsel for both parties consulted and agreed that the case should remain with Judge Holly for decision. Consequently, with the consent of both parties, Judge Holly retained the case and finally, on November 2, 1952, entered the findings hereinbefore summarized that the patent in suit was anticipated and was invalid. At the same time he directed that both parties submit suggested formal findings to Casper W. Ooms, an erudite and experienced patent attorney and former Commissioner of Patents, as Special Master, to be considered by him. The formal findings and conclusions and judgment dismissing the suit were entered March 20, 1953. Denying a motion for new trial on April 10, 1953, the court said that the findings were not affected by his illness in the summer of 1952 and that the motion for a rehearing was without merit. The Master reported that there had been a dispute before him only as to findings 9 and 13 inclusive; that he had examined the evidence and that the findings suggested were based thereon and not upon the tests in open court and that he submitted them for such action as the court might consider proper upon the whole record. The Master did not make findings on the merits but explicitly stated that it was up to the court to do so, based upon the record and the court’s knowledge of what had transpired at the trial. Of course, when the court entered the findings, they became its findings and not those of the Master; the latter’s report was merely advisory; the court made the final determination. Furthermore the formal findings adopted were in strict conformity with the court’s decision before it asked the parties to suggest more formal findings and conclusions. Under these circumstances, we find no justification for lending to the trial court’s findings any less weight than we normally do under Rule 52(a). Consequently our question is the usual one of whether there is adequate evidence to support them. Such cases as Sales Affiliates v. National Mineral Co., 7 Cir., 172 F.2d 608; Falkenberg v. Golding, 7 Cir., 195 F.2d 482, 483 and Charles Peckat Mfg. Co. v. Jacobs, 7 Cir., 178 F.2d 794, decided by this court, wherein we were dealing with records made up of documentary evidence, which we were as capable of interpreting as was the district court are not applicable here. The present case comes more clearly within our decision in National Rejectors v. A. B. T. Mfg. Corp., 7 Cir., 184 F.2d 612, at page 615, where we said: “In view of the fact that the court, having seen the devices demonstrated and heard the witnesses, expert and otherwise, of each of the parties, having their conflicting testimony before it, made a finding which has adequate substantiation in the record, under the federal rules of procedure, we have no right to interfere. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672; Hazeltine Research, Inc. v. Admiral Corp., 7 Cir., 183 F.2d 953.” We, too, have had the benefit of tests in open court at the time of the argument before us. We, too, have the transcript of the oral and documentary evidence. After careful consideration of all that has been presented, we think the trial court was amply justified in entering the findings and conclusions of which complaint is made. Indeed, we are of the opinion that any determination to the contrary would have been erroneous. Felten is prior art. He designated his invention as “improvements in or relating tonMixing Devices” and as a “Mixing device for producing * * * mixtures from a gas or vapor like substance and a liquid substance,” and an “apparatus for mixing gases with fluids.” The patent in suit uses similar language. “This invention relates to a device for intimately mixing a gas with a liquid.” Felten introduced ozone into water under pressure and mixed them. Aghnides introduced air into water under pressure and mixed them. Each called his process one for mixing a gas with a fluid. Felten reads literally on the claims of Aghnides. An asserted difference is that the mixing chamber of Aghnides is larger than that of Felten, but that, so far as the tests and the evidence shows, is not an inventive difference. Then, too, plaintiff insists that the air vent of Felten introducing air into the mixing chamber does not in fact lead into the chamber but only into the top thereof, thus weakening the mixing effect. Yet in both Felten and Aghnides, the vent enters the chamber just below the diaphragm, which in turn, is just below the intake for the water. Felten as well as Agh-nides brings the gas into the mixing chamber. If in practice, it has proved desirable to introduce the gas at a point lower than that indicated by either, that lower placement cannot amount to invention. The important thing is that each introduces a vapor, a gas, ozone or air, into moving water in order to mix the two substances. It seems to us utterly immaterial that Felten’s apparatus may also be used as a vacuum pump; so indeed may one form of Aghnides. Element for element, the two are the same. In tests the two accomplish the same results, though perhaps not with equal efficiency. We conclude then that the trial court rightfully found that Felten anticipated Aghnides and taught the latter all that he needed to know in order to build his mixer of gas and fluid, i. e., air and water. We think it unnecessary to prolong this opinion by detailed discussion of other prior art. Suffice it to say that in our opinion, after carefully examining it, the teachings of the other patents in evidence were such that, with them before him, Aghnides did not achieve invention. If for the moment we indulge the presumption of validity, we think Agh-nides’ claims must be very narrowly construed and limited to the specific structure disclosed by him. Consequently, defendants, who do not employ the same structure, but prescribe a different means for separating the incoming water into jets, does not infringe. We conclude that Aghnides was anticipated; that, if not fully anticipated, the prior art, of which he was bound to take notice, was such that any skilled delver in the art of mixing gases and fluids could have built Aghnides’ device, — in other words, that he did not achieve invention but accomplished the result of a skilled mechanic. In view of our conclusions we consider it unnecessary to extend this discussion to other points urged by the respective parties. The judgment is affirmed. . A device for producing a coherent jet of water containing air bubbles, comprising a chamber, the inlet end of which is adapted for connection with the discharge end of a tube containing water under pressure and the outlet end of which is adapted to discharge thg said coherent jet, a diaphragm at the upstream end of the chamber having at least one orifice through which the stream of water is adapted to be forced into the chamber with substantial velocity, an air port opening into the chamber through which air is induced by the stream of water, and means, in the path of the stream of water after it leaves the orifice and before it discharges at the outlet end, for finely breaking up the water and for offering sufficient resistance for thoroughly mixing it with air and for thereafter uniting the aerated water to form a coherent jet having small bubbles disseminated throughout the jet.

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

Fred CASSIDY, Plaintiff-Appellant, v. Richard HORAN, James Richard, Betty Ponticello, Larry Storey, Joseph Vaccaro, David Conner, Ray Jund, Alex Riola, Miriam Wells and Charles Bence, Sr., Defendants-Appellees. No. 19, Docket 32126. United States Court of Appeals Second Circuit. Argued Sept. 9, 1968. Decided Dec. 30, 1968. David O. Boehm, Rochester, N. Y. (Cucci, Welch & Boehm, Rochester, N. Y., on the brief), for plaintiff-appellant. Bertram Diamond, Stamford, Conn. (Baker & Diamond, Stamford, Conn., and Andrew G. Celli, Rochester, N. Y., on the brief), for defendants-appellees. Before LUMBARD, Chief Judge, and SMITH and ANDERSON, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: Plaintiff, a member and officer of Rochester Independent Workers Union Local No. 1, sued defendants, who in 1964 were officers, committee chairmen or committee members of Local No. 1, for breach of fiduciary duty to the union, purportedly under Section 501 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501. After trial by the Court, Chief Judge Harold P. Burke presiding, the action was dismissed and plaintiff appeals. We find no error and affirm the judgment dismissing the action. Plaintiff made demand by letter on the defendants for return to the union of sums of money which he alleged had been received from the union and had been spent against the interests of the union. No demand was ever made that the officers institute suit for these sums on behalf of the union. They included sums allegedly spent for publication of a union publication, a pamphlet, meetings, officers’ salaries and expenses, during a period when defendants were advocating affiliation of RIW Local 1 with International Union of Electrical, Radio and Machine Workers AFL-CIO, known as IUE, and during an NLRB representation election in the two plants in which Local 1 had members, in which Local 1 lost to IUE in one production, maintenance and factory clerical unit while winning in one production, maintenance and factory clerical unit and both office clerical and technical units. The court held that plaintiff could not maintain the action because he had not complied with the procedural requirements of § 501(b), and that there could be no recovery for breach of fiduciary responsibility, since the challenged expenditures were for proper union purposes. We agree that the precedural requirements of § 501(b) have not been met and therefore find it unnecessary to reach the other questions raised by appellant. Section 501(b), so far as pertinent here, provides: When any officer, agent * * * of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent * * * in any district court of the United States * * * for the benefit of the labor organization [emphasis added]. Plaintiff claims that a demand for a sum of money is sufficient and that, in any event, a request that defendants sue themselves would be futile. With regal’d to the latter claim, this court has stated: We hold that this provision of the statute is mandatory and that its requirements cannot be met by anything short of an actual request. An allegation of the futility of such a request will not suffice. Coleman v. Brotherhood of Ry. & Steamship Clerks, etc., 340 F.2d 206, 208, 15 A.L.R.3d 933 (2d Cir. 1965); see Horner v. Ferron, 362 F.2d 224, 231 (9th Cir.), cert. denied 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (1966). A demand for a sum of money is not sufficient. The statutory language requiring a request that the labor organization “sue or recover” has been construed to mean “sue to recover”; Penuelas v. Moreno, 198 F.Supp. 441 (S.D.Calif.1961); Persico v. Daley, 239 F.Supp. 629, 630 (S.D.N.Y.1965), pointing out that both House and Senate reports referred to § 501(b) as being worded “ to recover.” This construction, to which we adhere, is fatal to plaintiff’s claim. Defendants seek counsel fees, by analogy to cases involving corporate officers and directors acquitted of wrongdoing. This claim, however, would seem to be one to be made, if at all, to the local union, through its governing board and members; see Highway Truck Drivers, etc. v. Cohen, 284 F.2d 162, 164 (3d Cir. 1960); Holdeman v. Sheldon, 311 F.2d 2, 3 (2d Cir. 1962); cf. Milone v. English, 113 U.S.App.D.C. 207, 306 F.2d 814, 817 (1962). The judgment dismissing the action is affirmed. . Were we to reach the merits, the result would be the same. The Court’s finding No. 34 that no funds of Local No. 1 were diverted to IUE or expended for its use, but were used for legitimate purposes of Local No. 1, is supported by testimony in the record and may not be upset. Until after a membership meeting on May 27, 1964, efforts of the defendants to promote the IUE were quite plainly intended to encourage affiliation of the Local with the International union, a goal which could legitimately be sought by the officers of the local. The May 27 meeting-ended in disorder when efforts were made to allow Carey, the president of IUE to address the meeting, and efforts were made to bring on a vote on affiliation although not on the published agenda of the meeting. Only after this meeting and after an election was sought on June 3, 1964 by IUE were defendants’ efforts on IUE directed against continuation of Local No. 1 as bargaining agent. The only expenditure of local funds in this regard, if any was made, was the expenditure for one “Your President Speaks” leaflet, Exhibit 22, and this may be considered de minimis. Defendants or some of them continued to function as salaried officers of Local No. 1 until replaced by those elected in an interim election in October, 1964. This was, however, necessary to carry on the day to day functions of the Local, such as grievance procedures, and was not for the benefit of IUE.

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

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

NATIONAL CITY TRADING CORP., Ira J. Sands, and Michel Gharbi Caradimi-fropoulo, Petitioners-Appellants, v. UNITED STATES of America and the United States Attorney for the Southern District of New York, Respondents-Ap-pellees. No. 159, Docket 80-6093. United States Court of Appeals, Second Circuit. Argued Oct. 2, 1980. Decided Nov. 28, 1980. Lawrence S. Bader, New York City (Marvin B. Segal, Edward M. Chikofsky, Segal & Hundley, New York City, of counsel), for petitioners-appellants. Lesley Oelsner, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Richard F. Ziegler, Asst. U. S. Atty., New York City, of counsel), for respondents-ap-pellees. Before OAKES and NEWMAN, Circuit Judges, and COFFRIN, District Judge. Of the District Court of Vermont, sitting by designation. OAKES, Circuit Judge: This appeal is from a judgment of the United States District Court for the South-era District of New York, Pierre N. Leval, Judge, denying a petition by National City Trading Corporation (NCTC), Ira J. Sands (Sands), and Michel Gharbi Caradimitropou-lo (Gharbi) under Federal Rule of Criminal Procedure 41(e) for the return of property seized pursuant to a search warrant for the premises at Suite 333, 515 Madison Avenue, New York, New York. The appellants urge that the warrant’s description of the place to be searched — a business suite including an attorney’s office — was insufficiently particular; that the warrant did not satisfy the Fourth Amendment’s requirement of “reasonableness,” see Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); and that the warrant’s description of the items to be seized was insufficiently particular. These objections are without merit and we affirm the judgment below. FACTS The warrant here, issued by Magistrate Nina Gershon, authorized the search of the premises in question for evidence and in-strumentalities of violations of 7 U.S.C. § 6b(2) (antifraud provisions of the Commodity Exchange Act), 7 U.S.C. § 6c(c) (unlawfully engaging in transactions in commodity options), 18 U.S.C. §§ 1341 and 1343 (mail and wire fraud), and 18 U.S.C. § 371 (conspiracy to commit the foregoing offenses). According to the warrant, the evidence consisted of property of National City Trading Corp. and persons associated with it, to wit, customer files, customer lists, personnel files, financial records, banking records including cancelled checks, telephone records, correspondence, mail and telegram records, sales literature, contracts, tape recordings, calendars, diaries, silver bullion and a “Polaroid” type photograph of a middle-aged man seated at a desk on which appears several-colored bars. FBI agent William M. Mackey, who had investigated about twenty of the forty or so complaints received from NCTC customers, filed an affidavit in support of the search warrant. The affidavit fully described the operations of NCTC. Gharbi was president of NCTC and Sands was serving as counsel at the time of the search. NCTC stock was wholly owned by Gharbi’s wife and Sands’s wife, and the company’s offices were in Suite 333, though the name on the main door to the suite was only that of Ira J. Sands. NCTC employed a number of salesmen to conduct telephone solicitations and sales in which members of the public, believing they were buying a classic commodity option, were in fact being defrauded of substantial sums of money in connection with the trading of silver. Working by telephone, NCTC sales representatives solicited investments from potential customers throughout the United States. They advised customers that for a fixed, nonrefundable service fee or premium, paid at the outset of the transaction, the purchaser would have the right to buy a fixed amount of a commodity such as silver, at a fixed future time, at a fixed price, irrespective of any rise in price in the interval. Thus the customer was assured of a profit if the price of the commodity rose enough during the interval to cover the service fee. The sales representatives told the customer that he would not have to pay anything more when the contract matured, and NCTC would simply send him a check for the difference between the price quoted at the time of the transaction and the price to which the commodity had risen. The service fee, however, had to be paid immediately. After receipt of a customer's money, NCTC sent out a “purchase confirmation slip,” on the reverse side of which the fine print advised the customer that he had to take actual delivery of the commodity and implied that he would indeed have to pay the full purchase price. Mailgrams sent just before the maturity date were even more explicit, stating that the purchase price had to be paid on the maturity date of the contract even though the commodity would not be delivered until five days thereafter and that customers must also pay the 8% New York City sales tax. Some mailgrams advanced the maturity date of the contracts. As a result of these practices, people who were unwilling or unable to pay the full purchase price of the commodity (the service fee was only a small percentage of the full price) forfeited the initial fee that they had paid to NCTC. But even NCTC customers who were willing to pay the full amount and take delivery of the commodity usually lost their initial payments because, when they tendered the full purchase price to NCTC, they were informed that they were too late — NCTC had unilaterally advanced the payment date. For example, one customer, accompanied by agent Mack-ey in an undercover capacity, was prepared to tender the full purchase price to NCTC but was informed by Sands, who identified himself as NCTC counsel, that he was too late — the date on which the customer was required to pay had been advanced by one week to the day of the visit and, because the banks had already closed for the day, the customer had defaulted on his contract, losing both his service fee and his right to profit from the appreciation in the price of silver during the period of the contract. Another customer, also accompanied by an agent, had a December 5, 1979, maturity date. By mailgram on November 26 NCTC had accelerated the maturity date to November 28. The customer tendered a cashier’s check for the purchase price, but this was rejected by Gharbi on the basis that payment on it could be stopped. Then, when Gharbi discovered the November 28 “revised” maturity date, he refused to return the service fee on the ground that to do so would violate regulations of the Commodities Futures Trade Commission. Only when the undercover agent suggested that Gharbi might be committing a crime did Gharbi refund the service fee. A third customer, once again accompanied by an agent, had bought for a service fee of $1,080 a silver contract in September 1979 permitting him to control 1,000 ounces for four months. When advised that he would have to pay the full purchase price of over $15,000 if he wished to realize his profit, yet would have to wait until five days after payment to receive the silver, the customer decided not to risk the additional money and had to forego his service fee and the interim price appreciation. The affidavit also described the physical layout of the NCTC premises. Offices within the suite were located on both sides of a central corridor which began at the end of the reception area. Down the corridor, after a left ninety-degree turn, two agents had been received with the customers they accompanied in a corner room with a red filing cabinet in which an NCTC representative had searched to find the customers’ file folders. The room also had two telephones, each on a desk, as well as printed documents bearing the NCTC name. The third agent had met with Gharbi in one of two rooms to the left of the main corridor. The rooms were apparently connected and used as a law library. In one of these rooms agent Mackey observed two rows of five or six desks, with a telephone on each, giving the appearance of the typical telephone “boiler room.” As for the fact that only Sands’s name was on the outer door of the suite, Gharbi told one agent that NCTC obtained its office space free because Mrs. Sands was a stockholder. Following the issuance of the warrant, agent Mackey prepared a memorandum regarding the contemplated search of Suite 338, a copy of which was given to each of the twenty-five agents assigned to participate in the search. The memorandum read as follows: RE: NATIONAL CITY TRADING COMPANY SUITE 333 515 MADISON AVENUE NEW YORK, NEW YORK Captioned company involved in selling fraudulent commodities contracts. On instant date, a search warrant was issued by US Magistrate, SDNY, for the premises of Suite 333, 515 Madison Ave. regarding the operation of National City Trading Company. It is noted that National City Trading Company’s offices are contained in a Suite of law offices belonging to attorney IRA J. SANDS. Although SANDS is the Corporate Attorney for NCTC, the search will only concern NCTC and not SANDS general law practice. We have authority to search the entire suite of offices. However, every effort should be made to avoid disrupting SANDS general law practice. Beyond this, an Assistant United States Attorney instructed the agents on how the search warrant was to be executed and told them not to seize any documents that did not pertain to NCTC or to search any briefcases or bags of persons not associated with NCTC. The attorney further directed the agents, first, to secure each room within Suite 333; then to search the “boiler room,” Gharbi’s office, the controller’s office, and Sands’s office; and finally to search any other office which a cursory examination indicated might be connected to NCTC and to leave alone those offices which had no such connection. Although appellants originally sought a hearing on whether the search had been properly conducted, they waived it when Sands was unavailable and they did not seek a continuance. There is nothing in the record, therefore, to indicate that the search was conducted in any manner, shape, or form differently from the directions set forth in agent Mackey’s memorandum or the oral instructions of the Assistant United States Attorney. NCTC records were found in ten different rooms within the suite, which had a total of some eighteen rooms in addition to the lobby. Appellant Sands was not present when the agents showed up at Suite 333, and the agents did not enter his personal office until after he arrived at the suite. The agents did not search any of the closed file cabinets in his office but did see a file in an open drawer bearing the name of an NCTC salesman, which Sands handed over. The agents also asked Sands to produce the NCTC legal records, and he gave them one such file. The agents sealed this file without inspecting it, and the Government furnished Sands and Gharbi with copies of all materials seized. Sands, Gharbi, and NCTC subsequently petitioned the district court, pursuant to Federal Rule of Criminal Procedure 41(e), for return of the seized property. Judge Leval heard oral argument on the matter, decided that the warrant and search had been proper, and denied the petition. DISCUSSION Appellants first argue that the warrant’s description of the place to be searched does not satisfy the requirement of the Fourth Amendment that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched . ... ” This argument is one of over-breadth: appellants claim that probable cause, as set forth within the four corners of the affidavit, related only to the activities of NCTC and, therefore, the search of the entire suite, which supposedly was a law office, was unlawful. Appellants analogize to cases involving multi-unit apartment houses or dwellings, such as United States v. Votteller, 544 F.2d 1355, 1362-64 (6th Cir. 1976), and United States v. Bermudez, 526 F.2d 89, 96-97 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976), in which the courts have required that the warrant identify with specificity the unit to be searched. And, the argument runs, a warrant permitting a search of the entire suite is a general warrant, condemned as such to the present day, e. g., Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965). But there was no demarcation within Suite 333 between the rooms occupied by NCTC and those occupied by the law office. From what the agent had observed, various rooms in the suite were being utilized for the operations of NCTC; what appeared to the agents to be a law library-at least it contained law books-was used as the boiler room for telephoning potential customers. And the president of NCTC occupied a corner office. As execution of the warrant was to prove, even though NCTC supposedly occupied but three rooms in the suite, NCTC records were to be found in ten rooms. In short, the space utilized by the law office on the one hand and the business operation on the other was for all intents and purposes commingled. As such the entire suite, really being one set of offices, was properly subject to search for NCTC books and papers, just as the warrant indicated. The Fourth Amendment’s requirement of particularity was satisfied because “[i]t is enough if the description is such that the officer[s] armed with a search warrant can with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925) (garage business on first floor and storage business above, under one lease, were of such character and so related to the elevator that there was no real division in fact or in use of the building; thus upstairs could be searched even though agents had seen whiskey only in garage). Here, as in Steele, the description of the NCTC premises as Suite 333 correctly indicated the entire suite as the place intended to be searched. See also United States v. Santore, 290 F.2d 51, 66-67 (2d Cir. 1959) (warrant describing premises as one-family house was proper, even though it actually a two-family house, when outward appearances and local registration indicated only a one-family dwelling), aff’d in part, 290 F.2d 74 (2d Cir. 1960) (en banc), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961). As we stated long ago in United States v. Fitzmaurice, 45 F.2d 133, 135 (2d Cir. 1930), we are concerned primarily with the “practical accuracy” of the description of the premises to be searched. Sands’s authorization of the indiscriminate use of his law office for the commodity trading of NCTC prevented the agents from describing the area to be searched with any further degree of accuracy than that set forth in the affidavit and the warrant. The fact that this was a law office is thus wholly coincidental. The commingling of space here also distinguishes this case from others such as Votteller, 544 F.2d at 1362-64, and Bermudez, 526 F.2d at 96-97, involving multi-unit apartment houses or dwellings. Indeed, appellants’ own brief demonstrates the fallacy of their position when it states that the following principle may be gleaned from these cases: “[W]hen the Government knows or reasonably should know that a particular area contains identifiable separate subunits some of which are owned or controlled by unrelated persons against whom no probable cause is shown, (in the absence of common occupancy of each such subunit) a search warrant may not authorize the search of any such unrelated subunit absent a showing of probable cause to believe that evidence or instrumentalities of a crime will be found in each particular subunit to be searched,” Brief for Appellants at 17-18. Suite 333 simply did not contain “identifiable separate subunits.” Cf. United States v. Gusan, 549 F.2d 15, 19 (7th Cir.) (upholding search warrant covering more than one apartment where defendant’s exercise of dominion over otherwise vacant apartment not his own was a regular occurrence), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). The appellants’ second contention, a variation on the theme of the first, goes to the “reasonableness” of the search. Rather than asserting that the Mackey affidavit failed to establish probable cause for believing that evidence of NCTC’s criminality would be found in Sands’s law office, the argument now is that the search was unreasonable because it involved a law office absent probable cause to believe that the lawyer in question had committed a crime. Appellants call attention to the fact that Sands had other clients, and that the warrant permitted the search of privileged communications with these clients. But appellants address themselves only to the situation in which a warrant is issued to search a lawyer’s office to obtain evidence of a client’s criminal activity from the client’s file. See O’Connor v. Johnson, Minn., 287 N.W.2d 400 (1979); Deukmejian v. Superior Court, 103 Cal.App.3d 253, 162 Cal.Rptr. 857 (Ct.App.1980). Totally distinguishing this case from O’Connor and Deukmejian is the fact that here the lawyer actually permitted the allegedly criminal business operation to take place at his office. Appellants concede that there was probable cause to believe that members of NCTC were violating the mail fraud and commodities trading laws. Suite 333 was the only location of NCTC’s operation, and there is nothing more sacred about a law office used for business purposes-indeed some would suggest for First Amendment reasons quite the contrary-than there is about the premises of a newspaper. Of course, in the latter instance, the Supreme Court has upheld the Use of a warrant to search and seize evidence. See Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S.Ct. 1970, 1975, 56 L.Ed.2d 525 (1978) (“valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found”). Although a law office search should be executed with special care to avoid unnecessary intrusion on attorney-client communications, it is nevertheless proper if there is reasonable cause to believe that the specific items sought are located on the property to be searched, see Zurcher, 436 U.S. at 556, 98 S.Ct. at 1977. Beyond this, we emphasize again the commingling of the activities involved here. Judge Leval stated it as well as we could: “[A] criminal enterprise does not exempt itself from a search warrant by conducting its business and keeping its records in its lawyer’s office.” The appellants’ third argument is that the warrant insufficiently described “the things to be seized.” Appellants remind us of the broad statement in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927), that “[a]s to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” The warrant here is said to be deficient in three respects: it authorized seizure of (1) privileged communications between NCTC and Sands, and Sands’s work product in connection with NCTC matters; (2) property merely belonging to a person “associated” with NCTC but wholly unrelated to NCTC’s operations; and (3) property of NCTC for which there was no showing of probable cause in the affidavit. As to the point that the warrant authorized seizure of privileged communications between NCTC and Sands as well as Sands’s work product in connection with NCTC matters, we begin by again noting that there was probable cause to believe that NCTC’s business was permeated with fraud. Accordingly, the agents could properly seize all of the business records of NCTC described in the warrant. See United States v. Brien, 617 F.2d 299, 309 (1st Cir. 1980), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). Turning to Sands, as lawyer-lessor of NCTC and husband of a principal stockholder, his activities were significantly intermingled with those of the company. Indeed, Sands had even held a discussion with an NCTC customer culminating in the customer’s loss of his “investment.” Therefore, the agents also had probable cause for making Sands’s files on NCTC a target for search. Although the warrant may have encompassed privileged materials, the same was doubtless true of the warrants directed at the law office in Andresen v. Maryland, 427 U.S. 463, 482-84, 96 S.Ct. 2737, 2748-50, 49 L.Ed.2d 547 (1976). And the warrant here was as specific if not more so than those deemed “models of particularity” in Andresen, id. at 479-82, 96 S.Ct. at 2748-49 (upholding warrant permitting search of a lawyer’s office for, among other things, “books, records, documents, papers, memoranda and correspondence” relating to a fraudulent transaction). To the extent that the files obtained here were privileged, but see In re Doe, 551 F.2d 899 (2d Cir. 1977); Union Camp Corp. v. Lewis, 385 F.2d 143 (4th Cir. 1967), the remedy is suppression and return of the documents in question, not invalidation of the search, see Andresen, 427 U.S. at 482 n.11, 96 S.Ct. at 2749 n.11; United States v. Dunloy, 584 F.2d 6, 11 n.4 (2d Cir. 1978); VonderAhe v. Howland, 508 F.2d 364, 372 (9th Cir. 1974). In this connection, and being aware of the “grave dangers” inherent in executing a warrant authorizing a search and seizure of papers, Andresen, 427 U.S. at 482 n.11, 96 S.Ct. at 2749 n.11, we note with approval the care taken by the Government in the search involved here. That care was evidenced not only by agent Mackey’s memorandum of instructions and by the directions of the Assistant United States Attorney, but also by the fact that the agents did not search Sands’s office until he was present, they did not examine closed files, and they sealed the “legal” file seized. Such self-regulatory care is conduct highly becoming to the Government; some would suggest that these police-made rules go to the heart of the Fourth Amendment, see generally Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 416-29 (1974); United States v. Barbera, 514 F.2d 294, 301-04 (2d Cir. 1975). It surely is in no way harmful to the Government’s position here. The argument that the warrant could be interpreted as authorizing seizure of property from persons “associated” with NCTC even if the property did not pertain to NCTC’s fraud simply does not represent a “common-sense and realistic” reading of the warrant, see United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Appellants also point out that the phrase “persons associated with [NCTC]” left the executing officers without any guidance as to the identity of those individuals. We find this equally unpersuasive. While it might have been preferable to identify anyone associated with NCTC whose name was known, it was obvious in view of the number of desks and the apparent size of the operation that some unknown persons associated with NCTC would be present at the time of the search. We do not believe that the appellants’ proposed standard represents a reasonable approach to the mandates of the Fourth Amendment. See United States v. Abrams, 615 F.2d 541, 550-51 (1st Cir. 1980) (Campbell, J., concurring). The final point made by appellants is that the Government failed to establish probable cause to believe that either the silver bullion or the Polaroid photograph of a man behind a desk on which appear several silver-colored bars were in any way connected with the scheme to defraud NCTC customers. There was, of course, probable cause to suppose that these items were in Suite 333; they were seen there, according to paragraph 17 of the affidavit, by one of the undercover agents. But there was also probable cause to believe that these items were evidence of the fraud: Both Gharbi and an NCTC salesman told agents that customers had successfully come to claim their silver and that the picture was of one such “satisfied customer,” yet one agent, when shown a photograph of Sands, thought it “likely” that the “customer” was Sands himself. Thus, we find no merit to these exceptions by appellants to the warrant. Judgment affirmed. . Fed.R.Crim.P. 41(e) provides, in relevant part: A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial.... . Also weakening the persuasive authority of these two cases is the fact that the court in O’Connor recognized that its decision went beyond the requirements of the Fourth Amendment and it therefore explicitly based its holding on the Minnesota Constitution, see 287 N.W.2d at 405; and the court in Deukmejian, noting that search warrants directed at law offices are not per se “unreasonable,” did not have to decide this Fourth Amendment issue because the California legislature, while the case was pending, had provided a special procedure for performing searches of law offices, see 103 Cal.App.3d at 258-60, 162 Cal.Rptr. at 860-62. . The fact that Congress has now enacted the Privacy Protection Act of 1980, Pub.L.No.96-440, 94 Stat. 1879 (Oct. 13, 1980), which limits the circumstances under which documentary material may be seized from journalists and authors, does not affect the Supreme Court’s interpretation of the requirements of the Fourth Amendment in Zurcher.

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

Arthur BARY, also known as Achilles Diamantis Daramparis; Anna Bary; Harold Zepelin, also known as Harry Zepelinsky; Lewis Martin Johnson; Joseph William Scherrer; Maia Scherrer, also known, as Maia Turchin; Patricia Julia Blau, Appellants, v. UNITED STATES of America, Appellee. Nos. 5240-5246 United States Court of Appeals Tenth Circuit. Aug. 23, 1957. William A. Bryans, III and Forrest C. O’Dell, Denver, Colo., and Mary M. Kaufman, New York City (Bryant O’Donnell and Harry A. Frumess, Denver, Colo., on the brief), for appellants. Thomas J. Mitchell, Sp. Asst, to Atty. Gen. of U. S., Philip T. White, Atty., Department of Justice, Washington, D. C., and Donald E. Kelley, U. S. Atty., Denver, Colo., for appellee. Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges. BRATTON, Chief Judge. This was a prosecution for an alleged conspiracy to violate section 2 of the so-called Smith Act, 54 Stat. 670, 671. The offense laid in the indictment was that from on or about April 1, 1945, to and including the date of the return of the indictment, in the District of Colorado, and elsewhere, Arthur Bary, also known as Achilles Diamantis Daramparis, also known as Arthur Daramparis; Anna Bary; Harold Zepelin, also known as Harry Zepelinsky; Lewis Martin Johnson; Joseph William Scherrer; Maia Scherrer, also known as Maia Turchin; and Patricia Julia Blau; unlawfully, wilfully, and knowingly conspired with each other and with William Z. Foster, Eugene Dennis, John B. Williamson, Jacob Staehel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates, Irvin Potash, Gilbert Green, Carl Winter, Gus Hall, and Elizabeth Gurley Flynn, co-conspirators but not defendants herein, and with divers other persons to the grand jury unknown, to commit offenses against the United States prohibited by section 2 of the Smith Act, 54 Stat. 671, 18 U.S.C. § 10 (1940 Ed.), and 18 U.S.C. § 2885 (1948 Ed.), in violation of 18 U.S.C. § 11 (1940 Ed.), being section 3 of the Smith Act, while such section remained effective, and thereafter in violation of 18 U.S.C. § 371 (1948 Ed.), by (1) unlawfully, wilfully, and knowingly advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; and (2) by unlawfully, wilfully, and knowingly organizing, and helping to organize, as the Communist Party of the United States, a society, group, and a^embly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit. The indictment charged that it was a part of the conspiracy that the defendants and their co-conspirators would become members, officers, and functionaries of the Communist Party; would in those capacities assume leadership of the party and responsibility for carrying out its policies and activities; would cause to be organized groups, clubs, sections, and national, state, district, and city units of the party in the States of Colorado, Utah, New York, and elsewhere; would recruit, and encourage the recruitment of members of the party, concentrating upon recruiting persons employed in key basic industries and plants; would publish and circulate, and cause to be published and circulated, books, articles, magazines, and newspapers teaching and advocating the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would write, and cause to be written, articles and directives in the publications of the Communist Party, including but not limited to “Political Affairs”, “Daily Worker”, and “The Worker”, teaching and advocating the necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would conduct, and cause to be conducted, schools and classes in which recruits and members of the Communist Party would be indoctrinated in the principles of Marxism-Leninism and in which would be taught and advocated'the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would agree upon, and carry into effect, detailed plans for the vital parts of the Communist Party in the United States to go underground, in the event of emergency, and from such underground position to continue in all respects the conspiracy; would use false names and false documents in order to conceal their identities and activities as members and functionaries of the Communist Party; and would do other and further things to conceal the existence and operations of such conspiracy. The defendants were without counsel. The court appointed eleven members of the Bar in Colorado to act as their counsel. Later, retained counsel represented one of them. Including recesses and intermissions, the trial consumed about sixty days. All of the defendants were found guilty and were sentenced to imprisonment for specified periods and to pay fines in specified amounts, respectively. Separate appeals were seasonably perfected and the causes were brought here on a single record. For convenience and clarity, appellant Arthur Bary will sometimes be referred to as Bary, appellant Anna Bary as Anna, appellant Harold Zepelin as Zepelin, appellant Lewis Martin Johnson as Johnson, appellant Joseph William Scherrer as Scherrer, appellant Maia Scherrer, as Maia, and appellant Patricia Julia Blau as Patricia. A motion was filed in the case to dismiss the indictment. One ground of the motion was that the array of the grand jury was defective in that it was not selected, drawn or summoned in accordance with law; that there had been a systematic exclusion therefrom by the clerk and the jury commissioner of Negroes, persons of Spanish-American or Mexican descent, and other minority groups; that there had been a systematic exclusion of manual workers and wage earners; that the representation of Negroes, persons of Spanish-American or Mexican descent, other minority groups, manual workers, and wage earners, had been limited to token representation; that the array had been weighted in favor of and dominated by representatives of the owner-manager groups of the community ; and that the clerk had failed to carry out the statutory and constitutional mandate to employ methods and procedures which would insure representation of a cross section of the community. And based upon similar grounds, a motion was lodged to quash the panel from which the petit jury would be drawn to try the case. While officials charged with the responsibility of selecting names of persons for service on grand and petit juries may exercise some discretion to the end that competent persons be selected, it is the long and unbroken tradition that methods and procedures must be employed which contemplate grand and petit juries from and truly representative of the cross-section of the community. It is not essential however that every grand jury or petit jury include representatives of all racial, economic, or social groups of the community. Neither is exact proportional representation of ethnic, economic, or social groups a prerequisite to validity. Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. But an indictment returned by a grand jury or a verdict of guilty returned by a petit jury in a criminal case cannot stand if representatives of such groups were systematically and arbitrarily excluded from the list of persons from which such grand jury or petit jury was chosen. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. With these general principles serving as directing guides, the court conducted a hearing upon the challenge to the array of the grand jury and the panel of the petit jury. The clerk, three of his deputies, and the jury commissioner testified. A complete explanation was given of the methods and procedures employed in making up the lists from which arrays or panels of grand and petit juries were selected. And the crux of the testimony was that there had not been any systematic exclusion or token representation of Negroes, persons of Spanish-American descent, manual workers, wage earners, or members of lower economic groups. In connection with the challenge, appellants filed a motion for permission to examine the questionnaires sent out daring the last ten years, and to examine other records in the office of the clerk. The court entered an order permitting appellants to examine the grand and petit jury panels for the last four years; permitting appellants to examine all of the questionnaires returned within the last four years but providing that the examination of the questionnaires should be made in the presence of an employee of the elerk and that such employee should keep the name and address on each questionnaire confidential; and permitting appellants to examine all letters, records, books, and other papers which may have been used by the clerk in selecting names for the arrays or panels during the last four years. Dissatisfied with the examination of the questionnaires in the manner specified in the order, appellants later filed a motion for permission to examine them completely. The thrust of the motion was for permission to examine the questionnaires particularly in respect to names and addresses of the persons who signed and delivered or forwarded them to the clerk. The motion was denied. And based in part upon the testimony adduced at the hearing, in part upon the records of the court, and in part upon its knowledge of conditions in Colorado, the court found that there had not been any systematic exclusion or token representation of the groups referred to in the challenge. The court was not required by statute, rule, or otherwise, to make the names and addresses on the questionnaires available to appellants for examination and scrutiny. Whether they should be made available for such purpose was a matter resting in the sound discretion of the court. And there being no showing of total exclusion from the lists of persons within the groups referred to in the challenge to the array or panel of grand and petit juries, there being evidence that there had not been any systematic or token representation of persons within such groups, and the court having expressly found with supporting foundation that there had been no systematic exclusion or token representation of that kind, it cannot be said that the denial of the motion for permission to examine the questionnaires in respect to addresses and signatures of the persons who returned them to the clerk constituted prejudicial error. Another ground in the motion to dismiss the indictment was that the Smith Act as applied to this case is unconstitutional. The contention was and is that the act abridges the freedom of speech expressly protected by the First Amendment. Since the contention presents an asserted abridgement of the fundamental right of free speech, its consideration requires a sensitive awareness of the delicacy of the question involved. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Dunne v. United States, 8 Cir., 138 F.2d 137, certiorari denied, 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476. But the contention is not entirely new. It does not find its source in virgin soil. It is now the definitely charted rule that mere advocacy in the abstract that the Government should be overthrown and destroyed, if unrelated to any effort to incite or instigate action to that end by force and violence, falls within the range of free speech protected by the First Amendment. But at the same time there is no area for doubt that as a reasonable concomitant of the right of the Government to protect itself against overthrow or destruction by force and violence from within, Congress may enact legislation making penal declarations, statements, utterances, or teachings in the nature of incitement to action intended to produce the forbidden result of overthrow or destruction by force and violence. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. And it is not essential that incitement in the form of speech be directed only to the actual and immediate step of employing force and violence for the purpose of bringing about such overthrow or destruction. It is enough if the incitement is directed with intended precision to the taking of steps or the doing of things in preliminary preparation for the employment of force and violence in an effort to effectuate the overthrow or destruction of the Government when the propitious moment is at hand. And therefore in its application to a case in which incitement of that nature is shown to exist, the Smith Act is not open to successful attack for constitutional invalidity. Dennis v. United States, supra; Yates v. United States, supra. A further ground of the motion to dismiss the indictment was that the indictment did not relate the overt acts pleaded therein to the alleged conspiracy. Eleven overt acts were pleaded. In its instructions, the court withdrew two from the jury. Those submitted to the jury were attending and participating in meetings of members of the party, attending and participating in a school of the party, and using aliases. The essence of the argument attacking the sufficiency of the overt acts pleaded and proved is that overt acts must be in furtherance of the conspiracy; and that attending and participating in meetings of members of the party, attending and participating in schools or educationals conducted by the party, expressing views in respect to books, writings, and literature, and using aliases were not acts in furtherance of the conspiracy charged in the indictment. While an overt act was essential to render punishable the conspiracy charged in the indictment, it was not necessary that the act itself be unlawful if performed in furtherance of the conspiracy. Carlson v. United States, 10 Cir., 187 F.2d 366, certiorari denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed. 1367. And no elaboration is required to make clear that attending and participating in meetings held and attending and participating in educationals conducted for the purpose of advocating, promoting, or furthering incitement to action in an effort to overthrow the Government by force and violence were overt acts in furtherance of the conspiracy charged in the indictment. And still another ground of the motion to dismiss the indictment was the failure of the indictment to charge that either the conduct of appellants or the situation at the times complained of, or both, constituted a clear and present danger that the Government would be overthrown by force and violence. But the existence of near and present danger created or arising out of the acts and conduct of appellants, or the situation existing at.the times referred to, was not an essential element of the crime to be charged in the indictment. It was merely a judicial yardstick to be used by the court in determining whether the First Amendment immunized from punishment the statements, utterances, and teachings of appellants, or whether they fell within the range of the Smith Act. Dennis v. United States, supra. After the introduction of evidence had been concluded and before the arguments to the jury began, a motion was filed for a hearing for the presentation of evidence upon the issue of the existence of a near and present danger required by the Constitution. The court was not obliged to hold a hearing and permit the introduction of evidence relating to the question of near and present danger. It was within the province of the court to determine the question of law based upon common knowledge of conditions currently existing throughout the world and throughout the United States, particularly conditions relating to ideological trends and levels to which nations and peoples were then attuned, of which the court could take notice without the introduction of evidence bearing thereon. Based upon its knowledge of such conditions, the court concluded as a matter of law that there was a clear and present danger arising out of statements, utterances, and teachings of appellants which justified the application of the Smith Act in the case, and that such application did not violate the First Amendment. And we are not persuaded that the determination should be overturned. The question of limitation was appropriately presented to the trial court and preserved for review on appeal. One object of the conspiracy charged in the indictment was organizing and helping to organize, as the Communist Party of the United States, a group of persons who teach and advocate the overthrow of the Government by force and violence. The evidence adduced at the trial showed without conflict that the Communist Party, as it existed at the time of the return of the indictment, was organized in New York City in 1945. The indictment was not returned until 1954. And the period of limitation fixed by the controlling statute is three years. 62 Stat. 828, 18 U.S.C. § 3282. Following the then definite trend of judicial viewpoint, the trial court denied the plea of limitation ; instructed the jury that the word “organize”, as used in the Smith Act, included the recruiting of members, the forming of new units, and the regrouping or expansion of existing units of any society, party, group, or other organization; and further instructed the jury in effect that if they found that the conspiracy to organize or help to organize the Communist Party began on or about April 1, 1945, and continued thereafter until the return of the indictment, or at any time within three years prior thereto, they could properly convict such of the appellants as were parties to such conspiracy within the three year period. But it is now the settled law that in respect to the charge of conspiring to organize or help to organize, as the Communist Party, a group of persons who teach and advocate the overthrow of the Government by force and violence, the period of limitation began to run at the time the party was organized in 1945. Yates v. United States, supra. The Communist Party having come into existence in 1945, and the indictment having been returned in 1954, the three-year statute of limitations had run on the organizing charge contained in the indictment, and therefore such charge should have been withdrawn from the consideration of the jury. Yates v. United States, supra. While not set out separately as one of their main contentions, appellants argue that error was committed in the admission of certain evidence. It is particularly urged that the court erred in admitting the testimony of the witness Lautner in which he detailed his career as a member of the Communist Party covering a period of approximately fifteen years and testified as an expert in respect to the ultimate aims and objectives of the party. And it is also urged that the court erred in admitting other evidence. It is sufficient to say without detailed discussion that we think the testimony of the witness Lautner was admissible, and that we are unable to share the view that appellants suffered prejudicial consequences from the admission of the other evidence now challenged. The court instructed the jury that the Smith Act was not aimed against the teaching of the mere abstract doctrine of overthrowing the Government or the mere teaching of the historical doctrine of Marxism or Leninism; that the Communist Party and its members were entitled to do that so long as their teaching did not go to the extent of advocating action for the accomplishment of a violent revolution by language reasonably and ordinarily calculated to incite persons to action; and that any advocacy or teaching which did not include the urging of force and violence as the means of overthrowing and destroying the Government was not within the issues of the indictment and constituted no basis for a finding against the appellants. The sufficiency of the evidence to establish incitement to action in an effort to overthrow the Government by force and violence is challenged. It is argued that the evidence merely disclosed advocacy in the abstract, divorced from or unrelated to incitement to action. The evidence, considered in its totality, tended to establish these facts and circumstances. Given certain objective and subjective conditions, the ultimate aims and objectives of the Communist Party were the destruction of imperialism and its governments through force and violence, the establishment of the dictatorship of the proletariat, and the establishment of socialism. Appellants were active members of the party, held official positions in the party attended meetings of the party, attended edueationals of the party, some of them addressed meetings of the party, some of them taught in educationals of the party, and some of them were centra] figures in the control of the party in Colorado and in certain adjoining states. Bary was organizer and state chairman in Colorado; was a member of the state board; was regional director; attended and taught in educationals; and attended two national conventions. Anna was a member of the state board in Colorado; was on a section committee ; was a party organizer; attended and taught in educationals; and was a delegate to one national convention. Zepelin acted for a time as state chairman in Colorado; was a member of the state board; was a member of a review committee; was chairman of a youth committee; was a member of an educational committee; and attended meetings and educationals. Johnson was a member of the state board in Arizona; was organizer for Utah; attended meetings in Arizona, Utah, and Wyoming; and attended and taught in educationals. Scherrer was organizer for the section at Boulder, Colorado; was organizer for the section at Pueblo, Colorado; attended meetings; and attended and taught in educationals. Maia began her party activities in New York. Later, she was a member of the state board in Colorado; was a member of the educational and labor committee; attended meetings; and attended and taught in educationals. And Patricia was a member of the state board in Colorado; was organizational secretary; was organizer for the section at Pueblo, Colorado; was a delegate to a national convention; attended meetings ; and attended and taught at educationals. At the meetings and educationals, Marxism-Leninism was expounded, taught, and studied as the preferred form of government; and in connection therewith certain well recognized literature expounding such viewpoint was used. Meetings were held in secret; sometimes curtains were drawn; sometimes voices were lowered at meetings; sometimes fictitious names were used at meetings; sometimes those attending went to and from meetings in small numbers as a means of avoiding notice or detection; and in some instances, aliases were used in dealing with outsiders. In the course of a certain educational, Bary stated that the basic strategy of the party was to overthrow the existing government by revolution. During another educational, he stated that the socialist revolution would never come about without the use of force and arms. On a similar occasion, he said that capitalism was not going to let Communists take over peacefully; that capitalism was not going to fall by its own accord; and that Communists would have to shove it in. On still another occasion, he stated that Communists had to overthrow the capitalist machinery and substitute for it proletarian machinery; and that the Communists had to immediately organize an army to crush all of the resistance and meet the counter-revolution. In making a report to the state board of a national convention which he and Patricia attended, he stated that it was the policy to concentrate activities within key basic industries; and that in Colorado such industries would be steel, meat packing, rubber, and coal mining. And on another occasion, he stated at an educational that the party was like any army staff, and that the party must put cadres in key industries so that they would be in correct position when the right time came. In a lecture delivered at an educational, he said that their job was to get the politicians to fight and thus create a political crisis; that an economic crisis and then a political crisis were the two prerequisites to the revolution itself; and that the job of members of the party was to work for peace as a tactic, to establish an economic crisis and also to work in the political field. He was present at a meeting when a speaker said that the workers would create a force and through such force would resort to violence and that some of them would have to die. He was present at an educational at which a speaker said that Communists must put the party above and beyond everything as the vanguard; that they would take over the state; that they would substitute for it their own machinery; that they would set up a dictatorship of the proletariat; and that they would create an army to smash the resistance. He was present at a meeting at which a speaker said that the party was going to liberate Negro and Mexican workers by revolution. And he was present at a meeting at which a speaker stated that it was necessary for the party to create a huge Mexican organization in the Southwest to overthrow the capitalists. In the course of addressing an educational, Anna said that force was the midwife of every old society pregnant with the new. In the course of another address she said that the party was going to work among Negro and Mexican workers and liberate them by revolution. On still another occasion, she said in the presence of others that the party was going to educate Negroes, was going to supply them with leadership, and after fully educating them was going to liberate them by revolution. And on a different occasion, she said that if the party was in power in steel, meat packing, rubber, and mining industries in Colorado and there were strikes, they would be in position to shut down such industries and thus affect the economy of the region and the nation. She was present at a meeting when a speaker said that it was necessary to create a huge Mexican organization in the Southwest to overthrow the capitalists; was present at an educational when Bary compared the party to an army staff and talked of having cadres in correct position in key industries when the proper time came; was present at a meeting at which Zepelin said that if an attempt was made to outlaw the party, it would go underground; and was present at a meeting when a speaker said that the workers would create a force and through it would resort to violence, and that some of them would have to die. Zepelin stated at an educational that the party through the workers of the United States and the world was going to lead the workers out from under oppression by revolution. He said at a meeting that the party must organize the Negro and Mexican people, and that the party would fight for the liberation of such people. And he said at a different meeting that if an effort was made to outlaw the party, it would go underground. He was present on the occasion when Bary stated that capitalism would not let the Communists take over peacefully; was present when Bary said that the party should concentrate its work in key industries; was present when Anna said that if the party was in power among workers in the basic industries in Colorado and there were strikes, they could take over and have an effect on the regional and national economy; was present when Anna said that the party would liberate Negro and Mexican workers by revolution; was present at a meeting at which a speaker said that it was necessary to create a huge Mexican organization in the Southwest to overthrow the capitalists; and was present on the occasion at which the speaker said that the workers would create a force and through it would resort to violence, and that some of them would have to die. Johnson said in the course of an educational that every member of the party should be willing to give up his life for the cause if necessary. At a state board meeting, he said that the socialist revolution would come within the next five years. At a club meeting at which recruiting was discussed, he said that they were trying to recruit a lot of people in the name of William Z. Foster and urged his listeners to make a sincere effort to bring someone into the party; and he read a letter from the national organization secretary addressed to all clubs in which it was said that the workers wanted militant leadership of day to day struggle in the shops and working class communities. He was an instructor at an educational during which one of the leaders was asked whether it was possible to overthrow the government without force and violence. The person to whom the question was propounded answered by asking the question “Do you think they would give up the reins of government without a fight?” He was present at an educational when Bary said that the basic strategy of the party was the overthrow of existing government by revolution; and was present on another occasion when Bary stated to those attending an educational that the socialist revolution would never come about without the use of force and arms. And he was present at an educational at which a speaker said that the workers in France had been able to take over the industries and factories; that the party in France was not strong enough to take over the government; that there were enough labor unions in this country to take over the industries “but we shouldn’t attempt to do that until the Party was strong enough to take over the Government.” On one occasion Scherrer said to a group that the transition from capitalism to socialism could not be effected by a slow change and could only be effected by a revolution. On another occasion, he stated to a group that workers in the United States could relieve their oppression just as the workers in Russia did by revolution. On a different occasion he stated to a group that Negroes should have the right to govern themselves, make their own laws, and have complete autonomy as the people of the Ukraine did. On another occasion, he stated how Negroes in the South could protect themselves with arms and face terrific odds against them, and that people anywhere could protect themselves at any time against terrific odds by taking up arms and using force. And on still another occasion, he said workers in Bessemer, Alabama, had some pitched battles; that a local leader was successful in using firearms; that the Communists could get in power in Pueblo through the Union; and that they could have their labor difficulties and do the same as was done in Bessemer. He was present when Anna said that force was the midwife of every old society pregnant with the new; was present at an educational when Zepelin said that the party through the workers of the United States and the world was going to lead the workers out from under oppression by revolution; was present at a group meeting when Maia said that after civil, legal, and political means were exhausted, Negroes should take up arms to protect themselves; and was present when a speaker said that workers would create force and through it would resort to violence and that some of them would have to die. On an occasion fixed in the record, Maia said in the course of a meeting that after all civil, legal, and political means had been exhausted, Negroes should take up arms to protect themselves. On another occasion, she said that the party was going to supply leadership to millions of workers and that as the result they were going to liberate them by revolution. And she said at a meeting that she thought it was not impossible to get some members of the party in the Ordnance Depot at Pueblo, and that it could be done very silently and safely. She was present when Anna said that force was the midwife of every old society pregnant with the new; was present when Anna said that the party would liberate the Negro and Mexican workers by revolution; was present when Anna said that if the party was in power among the workers in the basic industries in Colorado and there were strikes, they could affect the regional and national economy; and was present when Zepelin said that if an effort was made to outlaw the party, it would go underground. She was present when Scherrer said that Negroes could use arms to protect themselves; was present when he talked of autonomy for Negroes like that in the Ukraine; and was present when he said that workers in the United States could relieve their oppression just as workers in Russia did by revolution. She was present when Bary compared the party to an army general staff and talked of having cadres in correct position when the right time came; was present when Zepelin said the party must organize the Negro and Mexican people, and that it would fight to liberate the Negro people; was present when Patricia said that it • was necessary to create a huge Mexican organization in the Southwest to overthrow the capitalists; and was present when the speaker at a meeting said that the party would create a force and through it would resort to violence, and that some of them would have to die. Patricia stated in the course of a meeting that it was necessary to create a huge Mexican organization in the Southwest to overthrow the capitalists; and on another occasion, she said that it would be very fine if certain dissatisfied persons working at White Sands and Los Alamos, New Mexico, could be brought into the party because they were working on such highly secret and important government projects. She was present when Bary said that the party should concentrate work in key basic industries; was present when Maia said that members of the party could be got into the Ordnance Depot at Pueblo very silently and very safely; and was present when Zepelin said that the party should organize the Negro and Mexican people as allies, and that the party would fight for the libera■tios of the Negro nation. The evidence did not merely disclose advocacy, utterances, or teachings in the abstract — unrelated to or divorced from incitement to action — that the democratic form of government in the United States should be overturned or terminated through peaceful methods and means of education or otherwise and be superseded by a different form of government. Neither did it merely disclose discussion or exposition of violent overthrow as an abstract theory. Considered in its totality, the evidence disclosed as to each of the appellants incitement and advocacy of action in an effort to overthrow the Government by force and violence as speedily as circumstances would permit, within the intent and meaning of the Smith Act, supra. Compare Dunne v. United States, supra; United States v. Dennis, 2 Cir., 183 F.2d 201, affirmed, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Frankfeld v. United States, 4 Cir., 198 F.2d 679, certiorari denied, 344 U.S. 922, 73 S.Ct. 389, 97 L.Ed. 710; United States v. Flynn, 2 Cir., 216 F.2d 354, certiorari denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713. Complaint is made respecting the closing argument of the United States Attorney to the jury. The contention is that portions of the argument were inflammatory and reasonably calculated to arouse prejudice against appellants; and that portions amounted to.references by innuendo to the failure of appellants to testify in their own behalf. In the course of his argument, the United States Attorney stated to the jury that the appellants were traitors. At one juncture, he referred to the cold war between Governments of the United States and Russia; referred to the possibility of actual war between the two nations; and clearly inferred that in the event of such war, he believed appellants would be on the side of Russia. At another juncture, he referred to Klaus Fuchs and the Rosenbergs in a manner from which it could be inferred that in his opinion appellants should be placed in the same category with Fuchs and the Rosenbergs. And the final words of the argument were that the jury could return a verdict in favor of America. It is the recognized privilege of counsel to indulge freely in fair argument to the jury. But there are certain well established limits beyond which counsel is forbidden to go even in a moment of enthusiasm, ardor, or zeal. The portions of the argument referred to were reasonably calculated to arouse prejudice against appellants and therefore exceeded permitted bounds. Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734; August v. United States, 8 Cir., 257 F. 388. But with this word of caution, it is confidently believed that like argument will not be repeated on the subsequent trial of the case. Appellants offered no testimony except the honorable discharges from the Army of Zepelin and Scherrer. No express reference was made in the argument of the United States Attorney to the failure of appellants to testify in their own behalf. Fairly construed, the substance of the argument challenged upon the ground that it constituted a reference to the failure of the appellants to testify was that the evidence adduced by the Government made a clear case of guilt and that no one testified to the contrary. And argument of that kind is not open to attack. Exceptions were taken to portions of the instructions given to the jury. No good purpose would be served by reviewing them seriatim. The instructions should be considered in their entirety. Particular portions should not be separated and considered apart from the whole. Martin v. United States, 10 Cir., 100 F.2d 490, certiorari denied, 306 U.S. 649, 59 S.Ct. 590, 83 L.Ed. 1048; Graham v. United States, 10 Cir., 120 F.2d 543; Moffitt v. United States, 10 Cir., 154 F.2d 402, certiorari denied, 328 U.S

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

Are there two issues in the case?

UNITED STATES of America, Plaintiff-Appellee, v. Paul PHILLIPS, Jr., Defendant-Appellant. No. 74-1216. United States Court of Appeals, Sixth Circuit. Feb. 11, 1975. James L. Gay, Versailles, Ky. (court appointed), for defendant-appellant. Eugene E. Siler, U. S. Atty., R. Burl McCoy, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee. Before WEICK and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge. PER CURIAM. Phillips has appealed from his conviction by a jury in the District Court for knowingly transporting a motor vehicle, to wit, a stolen farm tractor, in interstate commerce, in violation of 18 U.S.C. § 2312. Phillips complains (1) that inflammatory and prejudicial remarks were made by an Assistant United States Attorney in his closing argument to the jury; (2) that pretrial confrontations were conducted in such a suggestive manner as to render his identification unreliable; (3) that the District Court erred in not giving a specific instruction on identification, although such instruction was not requested by defense counsel; and (4) that the maximum prison sentence imposed was unduly harsh and was based on assumptions not in the record. We will discuss only items 1 and 4 above, as we are of the opinion that items 2 and 3 have no merit. The principal remarks of the Assistant District Attorney, complained of, are: . now, Mr. Ponder insists that he is the person who rented the truck and for signing the contract. He says that Mr. Phillips was not with him. Well, I suggest to you that Mr. Ponder has purgered [sic] himself in that respect. (R. 241). I submit to you that the testimony of the defendant and Mr. Ponder are, for the most part, a fabricated story, for the purpose of exonerating this defendant inasmuch as Mr. Ponder has already received a sentence after pleading guilty to this charge. (R. 247). No objection to the argument was made at the trial. We are therefore required to find that the argument constituted plain error, in order to warrant reversal. It is contended that these remarks constituted the personal belief or opinion of the Assistant United States Attorney and therefore were improper. We disagree. In reading the entire argument of the prosecutor to the jury, we are of the opinion that he was arguing on the basis of disputed evidence in the record, and was not stating his personal belief or opinion. The difference is pointed out in Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957). See also United States v. Hamilton, 409 F.2d 404 (7th Cir. 1969). In sentencing Phillips, the District Judge stated: . I just think this is a part of a theft ring, and this man [Phillips] was a cog in the wheel. How big a cog he was I don’t know, whether it was his idea or whether he saw a chance to make some quick money or whatever it was, I don’t know, but there is one thing certain the whole story hasn’t been told. There is no evidence in the record to support any such charge against Phillips. The Court further stated: I have to consider the fact that Mr. Ponder has come in here and obviously perjured himself and I have to further consider the fact, in the opinion of the Judge of the Court, this defendant has perjured himself. I don’t believe for one minute that he was over there hitchhiking there by Aberdeen, Maryland [sic] and just happened this U-Haul truck came along and he got in. Neither Ponder nor Phillips, have ever been convicted of perjury, and it was error for the District Court, in its sentencing, to treat Phillips as if he had been convicted of perjury. Furthermore, Ponder was the principal actor in the matter; he rented the U-Haul in Kentucky. There is no proof that Phillips did anything other than to be present at the time of renting the U-Haul, and as a passenger in the truck; and as to his presence in Kentucky even that was disputed. Ponder had pleaded guilty to the Dyer Act violation and testified that Phillips was not with him at the time of the rental in Kentucky, but that he picked up Phillips later in Ohio. The District Judge had imposed on Ponder the maximum sentence of five years, and he imposed on Phillips, whom he termed as only a “cog in the wheel,” the same maximum sentence. This simply does not seem reasonable. Phillips had only one previous conviction, about ten years ago, for which he had been placed on three years’ probation. He is married and the father of five children who are dependent upon him for their support. Also, he had been ill and the Court ordered that he be examined at the United States Medical Center at Springfield, Missouri. The judgment of conviction is affirmed. The sentence is vacated for abuse of discretion, and the cause is remanded for resentencing.

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

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

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

Pedro BENNETT, Jr., Appellant, v. Arturo SOTO, Chairman of Parole, Edwin Potter, Director of Bureau of Correction, Clavin R. Edwards, Warden of Lewisburg Prison. No. 87-3696. United States Court of Appeals, Third Circuit. Submitted under Third Circuit Rule 12(6) April 22, 1988. Decided June 24, 1988. Pedro Bennett, Jr., pro se. Godfrey R. de Castro, Atty. Gen., Michael W.L. McCrory, Asst. Atty. Gen., Rosalie Simmonds Ballentine, Sol. Gen., Dept, of Justice, Charlotte Amalie, St. Thomas, U.S. V.I., for appellees. Before SEITZ, SLOVITER and BECKER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. I. FACTS AND PROCEDURAL POSTURE Appellant Pedro Bennett, Jr. appeals from the district court’s denial of his pro se habeas corpus petition seeking to challenge the discretionary decision by the Virgin Islands Board of Parole revoking his parole. Bennett is presently incarcerated in the federal penitentiary at Lewisburg, Pennsylvania, where he is serving a fifteen-year sentence imposed by the District Court of the Virgin Islands following his conviction for assault and use of a weapon in the commission of a crime. Bennett committed this crime while he was on parole granted by the Virgin Islands Board of Parole after he had served part of his sentence for a 1969 conviction for first degree murder. Bennett had been charged in 1984 on an assault and weapon offense while on parole, and had been acquitted. He was again charged in 1985 with a separate assault and weapon charge. Following his conviction on this charge, he was notified that there would be a hearing on revocation of his parole on the murder charge. Bennett was transported to the Virgin Islands for that hearing which he attended, along with an attorney. Thereafter, Bennett’s parole was revoked on the ground that he failed to follow the rules of his parole in that he was convicted of assault while on parole for murder. As a result of the revocation, once Bennett finishes serving his prison sentence on the assault conviction, he will be required to serve the remainder of the sentence imposed on the earlier murder conviction. Bennett petitioned the District Court of the Virgin Islands for a writ of habeas corpus. In his petition, Bennett challenged, inter alia, the constitutionality of the procedure for parole revocation and specifically the procedure followed in his case, the ineffectiveness of his counsel at the parole revocation hearing, and the conduct of the Assistant Attorney General in referring to the earlier assault charge. His petition also referred to the absence of Virgin Islands law books at Lewisburg. Although Bennett’s petition expressly stated that the ground for jurisdiction was 28 U.S.C. § 2241, the district court considered the petition as one under 28 U.S.C. § 2255. The court stated that because Bennett’s petition did not question the validity of the conviction on which he was currently incarcerated, it was not properly brought under 28 U.S.C. § 2255. The district court denied the petition, and Bennett appeals. II. JURISDICTION OF THE DISTRICT COURT The Government of the Virgin Islands concedes that the district court erred in its determination to consider the petition as a section 2255 motion. The jurisdictional authority of 28 U.S.C. § 2255 is limited to challenges to the legality of a sentence and does not encompass the power to entertain a claim of wrongful revocation of parole. See United States v. Addonizio, 442 U.S. 178, 187, 99 S.Ct. 2235, 2241, 60 L.Ed. 2d 805 (1979) (section 2255 challenges the lawfulness of the sentence, not the lawfulness of the actions of the parole commission); United States v. Ferri, 686 F.2d 147 (3d Cir.1982) (challenge to constitutionality of Parole Commission’s action does not fall under section 2255), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); Musto v. United States, 571 F.2d 136, 140 (3d Cir.1978) (recognizing danger of expanding section 2255 jurisdiction to allow for review of individual parole decisions); Wright v. United States Board of Parole, 557 F.2d 74, 77 (6th Cir.1977) (section 2255 jurisdiction is limited to claims arising from an imposition of a sentence, not the execution of a sentence). Bennett is challenging the execution of his sentence in that he seeks review of the process by which the Parole Board revoked his parole. It was therefore error to treat his claim as one falling under the ambit of section 2255. Ordinarily, a federal habeas corpus challenge to a parole board’s decision is properly brought under 28 U.S.C. § 2241, the provision on which Bennett relies. See Ferri, 686 F.2d at 158; Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir.1977); United States v. DiRusso, 535 F.2d 673, 675 (1st Cir.1976); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.), cert. denied, 429 U.S. 851, 97 S.Ct. 140, 50 L.Ed.2d 125 (1976); Zannino v. Arnold, 531 F.2d 687, 689 n. 5 (3d Cir.1976). However, in Ali v. Gibson, 572 F.2d 971, 974 (3d Cir.1978), this court held that the District Court of the Virgin Islands does not have the statutory authority to entertain a petition for habeas corpus based on section 2241. We reached that conclusion because the District Court of the Virgin Islands does not fall within the statutory definition of the term “district courts” as used in section 2241(a). Bennett refers us to Congress’ amendment of section 2255 to make that section applicable in the district courts in the Territories and possessions. See section 114 of the Act of May 24, 1949, Pub.L. No. 81-72, 63 Stat. 105 (striking out the words “court of the United States” from section 2255 and substituting the words “court established by Act of Congress”); H.R. No. 352, 81st Cong., 1st Sess. 18, reprinted in 1949 U.S.Code Cong. & Admin.News 1254, 1272; see also United States ex rel. Leguillou v. Davis, 212 F.2d 681, 682 n. 1 (3d Cir.1954). However, there was no parallel amendment with regard to section 2241, and thus, as we held in Ali, there was no jurisdictional authority for the district court over Bennett’s section 2241 claim. However, Virgin Islands law does provide for maintenance of a writ of habeas corpus, V.I.Code Ann. tit. 5, §§ 1301-1325 (1967), and in Ali we held that the Virgin Islands statute authorizes a claim for relief against the custodian even when the petitioner is imprisoned elsewhere. 572 F.2d at 974. The custodian is the person responsible for the prisoner’s incarceration and that term is not limited to the warden of the prison where the prisoner is located. The person responsible for revocation of Bennett’s parole is Arturo Soto, Chairman of Parole, in his official capacity. As such, the case is properly brought against him. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129-30, 35 L.Ed.2d 443 (1973); see also Jones v. Cunningham, 371 U.S. 236, 243-44, 83 S.Ct. 373, 377-78, 9 L.Ed.2d 285 (1963). Because Bennett is proceeding pro se, his petition for habeas corpus must be construed liberally as having sought relief under the only statute available to him, the Virgin Islands habeas corpus statute. Therefore, the district court had jurisdiction over Bennett’s petition. Moreover, it was error for the district court to have ruled that Bennett was precluded from maintaining the petition on the ground that it did not challenge the sentence for the assault conviction Bennett was currently serving. See Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968) (prisoner incarcerated under consecutive sentences may use habeas to challenge the validity of the sentence s/he is not yet serving). We must therefore decide what disposition is now appropriate. III. FURTHER PROCEEDINGS IN THE DISTRICT COURT The Government argues that it is not necessary for us to remand this matter to the district court because the procedures provided Bennett at his parole revocation hearing satisfy all of the relevant constitutional parameters. The district court never reached the merits of Bennett’s petition for habeas corpus, and we believe it appropriate for it to do so in the first instance. In the interests of judicial expediency, however, we reach the Government’s argument that V.I.Code Ann. tit. 5, §§ 1309-1311 does not require Bennett’s production in the Virgin Islands for the habeas proceeding. Such a construction of the statute, the Government continues, “would impose an intolerable burden upon the government and court system of the Virgin Islands.” Appellee’s brief at 11. The Virgin Islands Code provides that once the writ is issued persons under restraint must be produced before a court for a hearing. V.I.Code Ann. tit. 5, §§ 1309, 1310. In Ali, we stated that “[t]his requirement appears to apply to [Ali] even though he is confined” outside the Virgin Islands “and his presence in the Virgin Islands for hearing poses certain risks and burdens.” Ali v. Gibson, 572 F.2d at 975. We agree with the Government that that language does not require that in every habeas case before the district court, the petitioner must necessarily be produced. Section 1309, requiring physical production of the prisoner, must be read in conjunction with section 1304, which provides that the court shall grant the writ without delay “if it appears that the writ ought to issue.” A reasonable construction of sections 1304 and 1309 in tandem leaves some discretion in the district court to determine whether production of the petitioner is required. For example, if the petition fails to set forth grounds that establish a basis for the issuance of the writ, there would be no reason to have a hearing. Cf. 28 U.S.C. § 2243 (writ need not issue [and hearing therefore not held] if “it appears from the application that the applicant or person detained is not entitled thereto”). In this connection, the district court will have to distinguish between issues of law, which can be resolved without a hearing, and issues of fact, which will require a hearing only if the papers produced by the parties show that there is a genuine issue as to any material fact. Fed.R.Civ.P. 56 provides a useful vehicle for fleshing out whether there are genuine and material fact issues. See Dr. Bernard Heller Foundation v. Lee, 847 F.2d 83, 86 (3d Cir.1988) (Federal Rules of Civil Procedure applicable to the District Court of the Virgin Islands when sitting on cases under Virgin Islands law). We assume that the district court would exhaust all possibilities before requiring a hearing and the production of a Virgin Islands prisoner incarcerated abroad, provided that the petitioner is given the requisite notice of the procedure and an opportunity to show that a genuine material fact issue does exist. If it does, and if there are exigent circumstances that counsel against transporting the prisoner to the Virgin Islands, we do not discount the possibility that a hearing at the prison before a magistrate or a master appointed pursuant to Fed.R.Civ.P. 53 would satisfy section 1309. IV. CONCLUSION For the reasons set forth above, we will vacate the district court’s denial of the petition and remand this case to the district court for further proceedings consistent with this opinion. . The Director of Corrections in the Virgin Islands is authorized to utilize United States prison facilities in accordance with an agreement between the Virgin Islands and the United States Department of Justice "when the Director determines that detention and/or correctional facilities within the Virgin Islands are inadequate to serve the best interests of the inmate or the general welfare of the Territory.” V.I.Code Ann. tit. 5, § 4503(g) (Supp.1986). . The Virgin Islands legislature may wish to enact legislation embodying rules comparable to those governing habeas cases pending in the United States District Courts. See Rules Governing Section 2254 [and 2255] cases in the United States District Courts.

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