Datasets:

ricdomolm

/

caselawqa-8k

like 2

FRY v. FARIS et al. No. 5016. Circuit Court of Appeals, Third Circuit. June 6, 1933. Robert A. Henderson, of Altoona, Pa., and Lewis M. Alpem, of Pittsburgh, Pa., for appellant. Robert' W. Smith, of Hollidaysburg, Pa., for appellees. Before BUPPINGTON, WOOLLEY, and THOMPSON, Circuit Judges. THOMPSON, Circuit Judge. This is an appeal from an order of the District Court for the Western District of Pennsylvania sitting in bankruptcy. The appellant is the receiver of the Second National Bank of Altoona, hereinafter referred to as the bank. The appellees are the trustees in bankruptcy of the estate of the Altoona Textile Company, Inc., hereinafter referred to as the textile company. The textile company imported raw silk from Japan. The bank, in accordance with a credit agreement between it and the textile company, paid for the raw silk with commercial letters of credit. . The account of the textile company with the bank was guaranteed up to $150,000 by five individuals, among whom were V. A. Oswald, president of the bank and a director of the textile company, and W. H. Hughes, vice president of the textile company. A consignment of five bales of raw silk arrived at Altoona on November 15, 1930. The cashier of the bank indorsed the bill of lading over to the textile company and gave it to an employee of that company. The latter obtained the silk from the carrier upon presentation of the indorsed bill of lading and took it to the throwing plant of the textile company. On November 16, 1930, Oswald notified the superintendent of the textile company that the silk was to be stored for the bank. On November 20, 1930, an oral agreement was entered into between Oswald and Hughes that, when the next consignment of silk arrived at Altoona, it, together with the first consignment, was to be stored with the textile company for the bank. Fifteen bales of silk arrived on December 18, 1930; the bank cashier indorsed the bill of lading; and the silk was stored with the textile company. It appears that the oral agreement was entered into without the knowledge, consent, or authority of the president or board of directors of the textile company. At the time of the arrival of both consignments at Altoona, it was known to the president and cashier of the bank that the textile company was in financial difficulties. On February 17, 1931, the textile company was declared a bankrupt. The bank filed a reclamation petition with the referee in bankruptcy claiming that the twenty bales of silk in the possession of the trustees in bankruptcy were the property of the bank. The referee in a carefully considered opinion dismissed the petition and the District Court affirmed the order of the referee. We agree with the conclusion of the District Court that title to the twenty bales of silk was not retained by the bank. Our decision is based upon the following grounds: The bank indorsed the bills of lading over to the textile company and delivered them to an employee of the textile company without restriction. The bank at no time exercised any right of ownership, control, or possession of the silk from the time of its storage with the textile company. There is ample evidence of a credit arrangement for the benefit of the textile company, which had previously given satisfactory security to the bank. The alleged oral agreement entered into within four months of bankruptcy amounted to an attempted unlawful preference over other creditors, in view of the knowledge of the officials of the bank that the textile company was in financial distress. Oswald and Hughes, who testified to the terms of the agreement before the referee, were guarantors of the textile company’s account with the bank and, as such, were personally liable for the value of the twenty bales of silk unless the bank were the owner of the silk. The parties, who assumed to enter into the agreement on behalf of the textile company, were without authority to do so. For the reasons indicated above, we are satisfied that title to the silk had been transferred by the bank to the textile company. The order of the court below is affirmed.

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

PRESTON v. FERRER CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT No. 06-1463. Argued January 14, 2008 Decided February 20, 2008 Joseph D. Schleimer argued the cause for petitioner. With him on the briefs was Kenneth D. Freundlich. G. Eric Brunstad, Jr., argued the cause for respondent. With him on the brief were Rheba Rutkowski, Brian R. Hole, Collin O’Connor Udell, and Robert M. Dudnik. Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Gene C. Schaerr, Steffen N. Johnson, Robin S. Conrad, Amar D. Sarwal, and Linda T. Coberly; for CTIA-The Wireless Association by Andrew J. Pincus, Evan M. Tager, David M. Gossett, and Michael F. Altschul; for Macy’s Group Inc. by Glen D. Nager and C. Kevin Marshall; and for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur. Briefs of amici curiae urging affirmance were filed for the Screen Actors Guild, Inc., et al. by Duncan Crabtree-Ireland and Danielle S. Van Lier; and for the William Morris Agency by David J. Bederman. Justice Ginsburg delivered the opinion of the Court. As this Court recognized in Southland Corp. v. Keating, 465 U. S. 1 (1984), the Federal Arbitration Act (FAA or Act), 9 U. S. C. § 1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. The Act, which rests on Congress’ authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. 465 U. S., at 16. More recently, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 (2006), the Court clarified that, when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, not by a federal or state court. The instant petition presents the following question: Does the FAA override not only state statutes that refer certain state-law controversies initially to a judicial forum, but also state statutes that refer certain disputes initially to an administrative agency? We hold today that, when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA. I This case concerns a contract between respondent Alex E. Ferrer, a former Florida trial court judge who currently appears as “Judge Alex” on a Fox television network program, and petitioner Arnold M. Preston, a California attorney who renders services to persons in the entertainment industry. Seeking fees allegedly due under the contract, Preston invoked the parties’ agreement to arbitrate “any dispute . . . relating to the terms of [the contract] or the breach, validity, or legality thereof... in accordance with the rules [of the American Arbitration Association].” App. 18. Preston’s demand for arbitration, made in June 2005, was countered a month later by Ferrer’s petition to the California Labor Commissioner charging that the contract was invalid and unenforceable under the California Talent Agencies Act (TAA), Cal. Lab. Code Ann. §1700 et seq. (West 2003 and Supp. 2008). Ferrer asserted that Preston acted as a talent agent without the license required by the TAA, and that Preston’s unlicensed status rendered the entire contract void. The Labor Commissioner’s hearing officer, in November 2005, determined that Ferrer had stated a “colorable basis for exercise of the Labor Commissioner’s jurisdiction.” App. 33. The officer denied Ferrer’s motion to stay the arbitration, however, on the ground that the Labor Commissioner lacked authority to order such relief. Ferrer then filed suit in the Los Angeles Superior Court, seeking a declaration that the controversy between the parties “arising from the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration.” Id., at 29. As interim relief, Ferrer sought an injunction restraining Preston from proceeding before the arbitrator. Preston responded by moving to compel arbitration. In December 2005, the Superior Court denied Preston’s motion to compel arbitration and enjoined Preston from proceeding before the arbitrator “unless and until the Labor Commissioner determines that . . . she is without jurisdiction over the disputes between Preston and Ferrer.” No. BC342454 (Dec. 7, 2005), App. C to Pet. for Cert. 18a, 26a-27a. During the pendency of Preston’s appeal from the Superior Court’s decision, this Court reaffirmed, in Buckeye, that challenges to the validity of a contract providing for arbitration ordinarily “should ... be considered by an arbitrator, not a court.” 546 U. S., at 446. In a 2-to-l decision issued in November 2006, the California Court of Appeal affirmed the Superior Court’s judgment. The appeals court held that the relevant provision of the TAA, Cal. Lab. Code Ann. § 1700.44(a) (West 2003), vests “exclusive original jurisdiction” over the dispute in the Labor Commissioner. 145 Cal. App. 4th 440, 447, 51 Cal. Rptr. 3d 628, 634. Buckeye is “inapposite,” the court said, because that case “did not involve an administrative agency with exclusive jurisdiction over a disputed issue.” 145 Cal. App. 4th, at 447, 51 Cal. Rptr. 3d, at 634. The dissenting judge, in contrast, viewed Buckeye as controlling; she reasoned that the FAA called for immediate recognition and enforcement of the parties’ agreement to arbitrate and afforded no basis for distinguishing prior resort to a state administrative agency from prior resort to a state court. 145 Cal. App. 4th, at 450-451,51 Cal. Rptr. 3d, at 636-637 (Vogel, J., dissenting). The California Supreme Court denied Preston’s petition for review. No. S149190 (Feb. 14, 2007), 2007 Cal. LEXIS 1539, App. A to Pet. for Cert. la. We granted certiorari to determine whether the FAA overrides a state law vesting initial adjudicatory authority in an administrative agency. 551 U. S. 1190 (2007). II An easily stated question underlies this controversy. Ferrer claims that Preston was a talent agent who operated without a license in violation of the TAA. Accordingly, he urges, the contract between the parties, purportedly for “personal management,” is void, and Preston is entitled to no compensation for any services he rendered. Preston, on the other hand, maintains that he acted as a personal manager, not as a talent agent, hence his contract with Ferrer is not governed by the TAA and is both lawful and fully binding on the parties. Because the contract between Ferrer and Preston provides that “any dispute . . . relating to the . . . validity, or legality,” of the agreement “shall be submitted to arbitration,” App. 18, Preston urges that Ferrer must litigate “his TAA defense in the arbitral forum,” Reply Brief 31. Ferrer insists, however, that the “personal manager” or “talent agent” inquiry falls, under California law, within the exclusive original jurisdiction of the Labor Commissioner, and that the FAA does not displace the Commissioner’s primary jurisdiction. Brief for Respondent 14, 30, 40-44. The dispositive issue, then, contrary to Ferrer’s suggestion, is not whether the FAA preempts the TAA wholesale. See id., at 44-48. The FAA plainly has no such destructive aim or effect. Instead, the question is simply who decides whether Preston acted as personal manager or as talent agent. III Section 2 of the FAA states: “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. § 2. Section 2 “declared] a national policy favoring arbitration” of claims that parties contract to settle in that manner. Southland Corp., 465 U. S., at 10. That national policy, we held in Southland, “appli[es] in state as well as federal courts” and “foreclosed] state legislative attempts to undercut the enforceability of arbitration agreements.” Id., at 16. The FAA’s displacement of conflicting state law is “now well-established,” Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272 (1995), and has been repeatedly reaffirmed, see, e. g., Buckeye, 546 U. S., at 445-446; Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 684-685 (1996); Perry v. Thomas, 482 U. S. 483, 489 (1987). A recurring question under §2 is who should decide whether “grounds ... exist at law or in equity” to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-404 (1967), we held that attacks on the validity of an entire contract, as distinct from attacks aimed at the arbitration clause, are within the arbitrator’s ken. The litigation in Prima Paint originated in federal court, but the same rule, we held in Buckeye, applies in state court. 546 U. S., at 447-448. The plaintiffs in Buckeye alleged that the contracts they signed, which contained arbitration clauses, were illegal under state law and void ab initio. Id., at 443. Relying on Southland, we held that the plaintiffs’ challenge was within the province of the arbitrator to decide. See 546 U. S., at 446. Buckeye largely, if not entirely, resolves the dispute before us. The contract between Preston and Ferrer clearly “evidenced] a transaction involving commerce,” 9 U. S. C. § 2, and Ferrer has never disputed that the written arbitration provision in the contract falls within the purview of §2. Moreover, Ferrer sought invalidation of the contract as a whole. In the proceedings below, he made no discrete challenge to the validity of the arbitration clause. See 145 Cal. App. 4th, at 449, 51 Cal. Rptr. 3d, at 635 (Vogel, J., dissenting). Ferrer thus urged the Labor Commissioner and California courts to override the contract’s arbitration clause on a ground that Buckeye requires the arbitrator to decide in the first instance. IV Ferrer attempts to distinguish Buckeye by arguing that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. We reject that argument. A The TAA regulates talent agents and talent agency agreements. “Talent agency” is defined, with exceptions not relevant here, as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists.” Cal. Lab. Code Ann. § 1700.4(a) (West 2003). The definition “does not cover other services for which artists often contract, such as personal and career management (i. e., advice, direction, coordination, and oversight with respect to an artist’s career or personal or financial affairs).” Styne v. Stevens, 26 Cal. 4th 42, 51, 26 P. 3d 343, 349 (2001) (emphasis deleted). The TAA requires talent agents to procure a license from the Labor Commissioner. § 1700.5. “In furtherance of the [TAA’s] protective aims, an unlicensed person’s contract with an artist to provide the services of a talent agency is illegal and void.” Ibid. Section 1700.44(a) of the TAA states: “In cases of controversy arising under this chapter, the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.” Absent a notice of appeal filed within ten days, the Labor Commissioner’s determination becomes final and binding on the parties. REO Broadcasting Consultants v. Martin, 69 Cal. App. 4th 489, 495, 81 Cal. Rptr. 2d 639, 642-643 (1999). The TAA permits arbitration in lieu of proceeding before the Labor Commissioner if an arbitration provision “in a contract between a talent agency and [an artist]” both “provides for reasonable notice to the Labor Commissioner of the time and place of all arbitration hearings” and gives the Commissioner “the right to attend all arbitration hearings.” § 1700.45. This prescription demonstrates that there is no inherent conflict between the TAA and arbitration as a dispute resolution mechanism. But § 1700.45 was of no utility to Preston. He has consistently maintained that he is not a talent agent as that term is defined in § 1700.4(a), but is, instead, a personal manager not subject to the TAA’s regulatory regime. 145 Cal. App. 4th, at 444, 51 Cal. Rptr. 3d, at 631. To invoke § 1700.45, Preston would have been required to concede a point fatal to his claim for compensation — i. e., that he is a talent agent, albeit an unlicensed one — and to have drafted his contract in compliance with a statute that he maintains is inapplicable. Procedural prescriptions of the TAA thus conflict with the FAA’s dispute resolution regime in two basic respects: First, the TAA, in § 1700.44(a), grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; second, the TAA, in § 1700.45, imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor’s Associates, Inc., 517 U. S., at 687. B Ferrer contends that the TAA is nevertheless compatible with the FAA because § 1700.44(a) merely postpones arbitration until after the Labor Commissioner has exercised her primary jurisdiction. Brief for Respondent 14, 40. The party that loses before the Labor Commissioner may file for de novo review in Superior Court. See § 1700.44(a). At that point, Ferrer asserts, either party could move to compel arbitration under Cal. Civ. Proc. Code Ann. § 1281.2 (West 2007), and thereby obtain an arbitrator’s determination prior to judicial review. See Brief for Respondent 13. That is not the position Ferrer took in the California courts. In his complaint, he urged the Superior Court to declare that “the [contract, including in particular the issue of the validity of the [cjontract, is not subject to arbitration,” and he sought an injunction stopping arbitration “unless and until, if ever, the Labor Commissioner determines that he/ she has no jurisdiction over the parties’ dispute.” App. 29 (emphasis added). Ferrer also told the Superior Court: “[I]f . . . the Commissioner rules that the [cjontract is void, Preston may appeal that ruling and have a hearing de novo before this Court.” Appellant’s App. in No. B188997 (Cal. App.), p. 157, n. 1 (emphasis added). Nor does Ferrer’s current argument — that § 1700.44(a) merely postpones arbitration — withstand examination. Section 1700.44(a) provides for de novo review in Superior Court, not elsewhere. Arbitration, if it ever occurred following the Labor Commissioner’s decision, would likely be long delayed, in contravention of Congress’ intent “to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983). If Ferrer prevailed in the California courts, moreover, he would no doubt argue that judicial findings of fact and conclusions of law, made after a full and fair de novo hearing in court, are binding on the parties and preclude the arbitrator from making any contrary rulings. A prime objective of an agreement to arbitrate is to achieve “streamlined proceedings and expeditious results.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 633 (1985). See also Allied-Bruce Terminix Cos., 513 U. S., at 278; Southland Corp., 465 U. S., at 7. That objective would be frustrated even if Preston could compel arbitration in lieu of de novo Superior Court review. Requiring initial reference of the parties’ dispute to the Labor Commissioner would, at the least, hinder speedy resolution of the controversy. Ferrer asks us to overlook the apparent conflict between the arbitration clause and § 1700.44(a) because proceedings before the Labor Commissioner are administrative rather than judicial. Brief for Respondent 40-48. Allowing parties to proceed directly to arbitration, Ferrer contends, would undermine the Labor Commissioner’s ability to stay informed of potentially illegal activity, id., at 43, and would deprive artists protected by the TAA of the Labor Commissioner’s expertise, id., at 41-43. In Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), we considered and rejected a similar argument, namely, that arbitration of age discrimination claims would undermine the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal law. The “mere involvement of an administrative agency in the enforcement of a statute,” we held, does not limit private parties’ obligation to comply with their arbitration agreements. Id., at 28-29. Ferrer points to our holding in EEOC v. Waffle House, Inc., 534 U. S. 279, 293-294 (2002), that an arbitration agreement signed by an employee who becomes a discrimination complainant does not bar the EEOC from filing an enforcement suit in its own name. He further emphasizes our observation in Gilmer that individuals who agreed to arbitrate their discrimination claims would “still be free to file a charge with the EEOC.” 500 U. S., at 28. Consistent with these decisions, Ferrer argues, the arbitration clause in his contract with Preston leaves undisturbed the Labor Commissioner’s independent authority to enforce the TAA. See Brief for Respondent 44-48. And so it may. But in proceedings under § 1700.44(a), the Labor Commissioner functions not as an advocate advancing a cause before a tribunal authorized to find the facts and apply the law; instead, the Commissioner serves as impartial arbiter. That role is just what the FAA-governed agreement between Ferrer and Preston reserves for the arbitrator. In contrast, in Waffle House and in the Gilmer aside Ferrer quotes, the Court addressed the role of an agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own name or reviewing a discrimination charge to determine whether to initiate judicial proceedings. Finally, it bears repeating that Preston’s petition presents precisely and only a question concerning the forum in which the parties’ dispute will be heard. See supra, at 352. “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral... forum.” Mitsubishi Motors Corp., 473 U. S., at 628. So here, Ferrer relinquishes no substantive rights the TAA or other California law may accord him. But under the contract he signed, he cannot escape resolution of those rights in an arbitral forum. In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer and adopted by the appeals court. When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. V Ferrer’s final attempt to distinguish Buckeye relies on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989). Volt involved a California statute dealing with cases in which “[a] party to [an] arbitration agreement is also a party to a pending court action . . . [involving] a third party [not bound by the arbitration agreement], arising out of the same transaction or series of related transactions.” Cal. Civ. Proc. Code Ann. § 1281.2(c) (West 2007). To avoid the “possibility of conflicting rulings on a common issue of law or fact,” the statute gives the Superior Court authority, inter alia, to stay the court proceeding “pending the outcome of the arbitration” or to stay the arbitration “pending the outcome of the court action.” Ibid. Volt Information Sciences and Stanford University were parties to a construction contract containing an ¿rbitration clause. When a dispute arose and Volt demanded arbitration, Stanford sued Volt and two other companies involved in the construction project. Those other companies were not parties to the arbitration agreement; Stanford sought indemnification from them in the event that Volt prevailed against Stanford. At Stanford’s request, the Superior Court stayed the arbitration. The California Court of Appeal affirmed the stay order. Volt and Stanford incorporated § 1281.2(c) into their agreement, the appeals court held. They did so by stipulating that the contract — otherwise silent on the priority of suits drawing in parties not subject to arbitration— would be governed by California law. Board of Trustees of Leland Stanford Junior Univ. v. Volt Information Sciences, Inc., 240 Cal. Rptr. 558, 561 (1987) (officially depublished). Relying on the Court of Appeal’s interpretation of the contract, we held that the FAA did not bar a stay of arbitration pending the resolution of Stanford’s Superior Court suit against Volt and the two companies not bound by the arbitration agreement. Preston and Ferrer’s contract also contains a choice-of-law clause, which states that the “agreement shall be governed by the laws of the state of California.” App. 17. A separate saving clause provides: “If there is any conflict between this agreement and any present or future law,” the law prevails over the contract “to the extent necessary to bring [the contract] within the requirements of said law.” Id., at 18. Those contractual terms, according to Ferrer, call for the application of California procedural law, including § 1700.44(a)’s grant of exclusive jurisdiction to the Labor Commissioner. Ferrer’s reliance on Volt is misplaced for two discrete reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Nothing in the arbitration agreement addressed the order of proceedings when pending litigation with third parties presented the prospect of inconsistent rulings. We thought it proper, in those circumstances, to recognize state law as the gap filler. Here, in contrast, the arbitration clause speaks to the matter in controversy; it states that “any dispute . . . relating to ... the breach, validity, or legality” of the contract should be arbitrated in accordance with the American Arbitration Association (AAA) rules. App. 18. Both parties are bound by the arbitration agreement; the question of Preston’s status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill. Second, we are guided by our more recent decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (1995). Although the contract in Volt provided for “arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association,” 489 U. S., at 470, n. 1 (internal quotation marks omitted), Volt never argued that incorporation of those rules trumped the choice-of-law clause contained in the contract, see Brief for Appellant, and Reply Brief, in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., O. T. 1988, No. 87-1318. Therefore, neither our decision in Volt nor the decision of the California appeals court in that case addressed the import of the contract’s incorporation by reference of privately promulgated arbitration rules. In Mastrobuono, we reached that open question while interpreting a contract with both a New York choice-of-law clause and a clause providing for arbitration in accordance with the rules of the National Association of Securities Dealers (NASD). 514 U. S., at 58-59. The “best way to harmonize” the two clauses, we held, was to read the choice-of-law clause “to encompass substantive principles that New York courts would apply, but not to include [New York’s] special rules limiting the authority of arbitrators.” Id., at 63-64. Preston and Ferrer’s contract, as noted, provides for arbitration in accordance with the AAA rules. App. 18. One of those rules states that “[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” AAA, Commercial Arbitration Rules ¶ R-7(b) (2007), online at http:// www.adr.org/sp.asp?id=22440 (as visited Feb. 15,2008, and in Clerk of Court’s case file). The incorporation of the AAA rules, and in particular Rule 7(b), weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first instance, by the Labor Commissioner. Following the guide Mastrobuono provides, the “best way to harmonize” the parties’ adoption of the AAA rules and their selection of California law is to read the latter to encompass prescriptions governing the substantive rights and obligations of the parties, but not the State’s “special rules limiting the authority of arbitrators.” 514 U. S., at 63-64. For the reasons stated, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The TAA uses the term “talent agency” to describe both corporations and individual talent agents. We use the terms “talent agent” and “talent agency” interchangeably. Although Ferrer urges us to overrule Southland, he relies on the same arguments we considered and rejected in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). Compare Brief for Respondent 55-59 with Brief for Attorney General of Alabama et al. as Amici Curiae in AlliedBruce Terminix Cos. v. Dobson, O. T. 1994, No. 93-1001, pp. 11-19. Adhering to precedent, we do not take up Ferrer’s invitation to overrule Southland. Ferrer’s petition to the Labor Commissioner sought a declaration that the contract “is void under the [TAA].” App. 23. His complaint in Superior Court seeking to enjoin arbitration asserted: “[T]he [contract is void by reason of [Preston’s] attempt to procure employment for [Ferrer] in violation of the [TAA],” and “the Contract’s arbitration clause does not vest authority in an arbitrator to determine whether the contract is void.” Id., at 27. His brief in the appeals court stated: “Ferrer does not contend that the arbitration clause in the Contract was procured by fraud. Ferrer contends that Preston unlawfully acted as an unlicensed talent agent and hence cannot enforce the Contract.” Brief for Respondent in No. B188997, p. 18. Courts “may void the entire contract” where talent agency services regulated by the TAA are “inseparable from [unregulated] managerial services.” Marathon Entertainment, Inc. v. Blasi, 42 Cal. 4th 974, 998, 174 P. 3d 741,744 (2008). If the contractual terms are severable, however, “an isolated instance” of unlicensed conduct “does not automatically bar recovery for services that could lawfully be provided without a license.” Ibid. To appeal the Labor Commissioner’s decision, an aggrieved party must post a bond of at least $ 1,000 and up to twice the amount of any judgment approved by the Commissioner. § 1700.44(a). From Superior Court an appeal lies in the Court of Appeal. Cal. Civ. Proe. Code Ann. § 904.1(a) (West 2007); Cal. Rule of Court 8.100(a) (Appellate Rules) (West 2007 rev. ed.). Thereafter, the losing party may seek review in the California Supreme Court, Rule 8.500(a)(1) (Appellate Rules), perhaps followed by a petition for a writ of certiorari in this Court, 28 U. S. C. § 1257. Ferrer has not identified a single case holding that ' California law permits interruption of this chain of appeals to allow the arbitrator to review the Labor Commissioner’s decision. See Tr. of Oral Arg. 35. Enforcement of the parties’ arbitration agreement in this case does not displace any independent authority the Labor Commissioner may have to investigate and rectify violations of the TAA. See Brief for Respondent 47 (“[T]he Commissioner has independent investigatory authority and may receive information concerning alleged violations of the TAA from any source.” (citation omitted)). See also Tr. of Oral Arg. 13-14. The question in Mastrobuono was whether the arbitrator could award punitive damages. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 53-54 (1995). New York law prohibited arbitrators, but not courts, from awarding such damages. Id., at 55. The NASD rules, in contrast, authorized “damages and other relief,” which, according to an NASD arbitration manual, included punitive damages. Id., at 61 (internal quotation marks omitted). Relying on Volt, respondents argued that the choice-of-law clause incorporated into the parties’ arbitration agreement New York’s ban on arbitral awards of punitive damages. Opposing that argument, petitioners successfully urged that the agreement to arbitrate in accordance with the NASD rules controlled.

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?

Jerry ACKERMAN, et al., Plaintiffs-Appellants, v. Howard K. SCHWARTZ and Bassey, Selesko and Couzens P.C., Defendants-Appellees. No. 91-1794. United States Court of Appeals, Seventh Circuit. Submitted Aug. 9, 1991. Decided Nov. 14, 1991. Robert W. Mysliwiec, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, Ind., for plaintiffs-appellants. Paul E. Becher, J. Scott Troeger, Barnes & Thornburg, Elkhart, Ind., William J. Reinke, Ernest J. Szarwark, Barnes & Thornburg, South Bend, Ind., for defendants-appellees. Before COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges. Oral argument in a prior appeal, No. 90-1493, took place on December 11, 1990. On January 2, 1991, the court dismissed that appeal for want of jurisdiction, because the district court's order invoking Fed.R.Civ.P. 54(b) did not specify which claims were finally resolved. 922 F.2d 843. The order provided that any further proceedings would return to this panel. After the district court entered a fresh, and complete, judgment under Fed.R.Civ.P. 54(b), accompanied by an explanation why the claims covered by the judgment are distinct from those retained for future decision, see Buckley v. Fitzsimmons, 919 F.2d 1230, 1237-38 (7th Cir.1990); Olympia Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d 1363, 1366 (7th Cir.1990), the plaintiffs filed a new notice of appeal. Both sides agreed to use the original briefs, and there is no point to a second oral argument. Plaintiffs have filed a motion to certify a question to the Supreme Court of Indiana. This motion, first made after oral argument on the merits of the appeal, is denied as belated. The case is ready for decision on the merits. EASTERBROOK, Circuit Judge. In 1983 and 1984 Gary Van Waeyen-berghe and Carl Leibowitz promoted a tax shelter: each $10,000 invested would produce an immediate tax credit of $20,000, a deduction of $10,000, and the opportunity to reap profits from an ethanol manufacturing business. Like most opportunities too good to be true, this was too good to be true — although that did not stop more than 100 persons from taking the bait. The IRS disallowed the deductions and credits while tacking on interest and penalties. To make matters worse, Van Waeyenberghe and Leibowitz siphoned off the cash. Both pleaded guilty to tax and securities crimes; Leibowitz also was convicted of hiring a hit man to dispose of Van Waeyenberghe, after he concluded that Van Waeyenberghe might sing to the authorities. United States v. Leibowitz, 857 F.2d 373 (7th Cir. 1988), 919 F.2d 482 (7th Cir.1990). It was a fiasco. The money is gone; Van Waeyenberghe and Leibowitz are in prison. The investors turned to the most convenient solvent party — Howard Schwartz, who wrote an opinion saying that taxpayers were entitled under the Internal Revenue Code to the credits and deductions Van Waeyenberghe and Leibowitz touted. (Schwartz’s law firm is the other defendant, and we suppose the firm’s insurer also takes keen interest; for simplicity we refer only to Schwartz.) The offering circular promised that the investors’ money would be used to lease equipment to manufacture ethanol for use as fuel. Multi-Equipment Leasing Corp. (MEL) would receive money (designated as “rental”) and order equipment from Good-Wrench Industries, which was to subcontract the work to S & H Manufacturing Company. According to the offering documents, each $10,000 of prepaid rent would lead MEL to purchase equipment with a market value of $100,000; after using the cash for a down payment, MEL would issue its 14-year note for the balance. MEL would sublease the equipment on the investors’ behalf to Organized Producers Energy Corp. (OPEC), which would make ethanol. OPEC promised to pay as rental a portion of its profits, which MEL would pass on to the investors after deducting the balance of the purchase price owed to Good-Wrench. OPEC was to put the equipment in service by the end of 1983; the documents asserted that the investors would be entitled to the investment tax credit on the $100,000 purchase price and to amortize the rentals as ordinary and necessary business expenses. Were all this done at arms’ length and real prices, the tax angle would be implausible enough. But it was not done at arms’ length; Lei-bowitz and Van Waeyenberghe controlled all four firms directly or indirectly. It was not done at market prices; the stills, burners, and related equipment said to have a market value of $100,000 were worth some $5,000. In the end, it was not done at all; Leibowitz, Van Waeyenberghe, and a few confederates skedaddled with the money. Schwartz gave the promoters an opinion letter reciting “facts” that made this venture look legitimate — that the four corporations were unaffiliated, that the equipment would be sold at market price, that all of the equipment would be placed in service by the end of 1983, and so on — and concluding that the IRS would be unable to deny investors the $20,000 credit and $10,000 deduction per $10,000 unit of investment. The “facts” so recited were fictions. Schwartz says that he told Robert Clem-ente, an associate at the law firm, to conduct the due diligence inquiry. Clemente recalls things differently, testifying at his deposition that Schwartz said he would check the facts personally. Whether the lack of inquiry was attributable to an Al-fonse-and-Gaston routine or to utter indifference to the truth, there was no verification. The letter says that the law firm examined documents “as we deem relevant” and relied on unnamed persons for unspecified facts. Although it added that “[w]e have not made an attempt to independently verify the various representations”, the letter also said that it was prepared “in a manner that ... complies with the requirements of both the proposed Treasury Regulations [Treas.Reg. 230] and [the ABA’s] Formal Opinion 346”. Both Regulation 230 and Opinion 346 require a lawyer to verify questionable assertions by the promoters. Assertions that every piece of equipment in an ethanol manufacturing business has a market value of precisely $100,000, that the transactions among four shell corporations were at arms’ length, and that equipment that could not be ordered until late 1983 (counsel’s letter is dated August 30, 1983, and the money-raising lay ahead) would be placed in service by the end of December 1983, carry warning signals — especially considering that one of the promoters, Leibowitz, was a disbarred lawyer — so a reader of the letter might well infer that the law firm had inquired independently. The letter explained that under Opinion 346 the author of a tax opinion must “make inquiry as to all relevant facts, be satisfied the material facts are accurately and completely described in the offering materials, and assure that any representations as to future activities are clearly identified, reasonable and complete”, so the reader would not have to be a connoisseur of the ABA’s ethics opinions to get the point. The complaint initiating this lawsuit on behalf of 106 bilked investors is considerably longer than Schwartz's opinion letter but no better thought out. Despite amendments it is packed with implausible assertions and references to inapplicable statutes. The district court sliced off claims based on Indiana’s securities law, and state and federal versions of RICO, in a thoughtful opinion. 733 F.Supp. 1231, 1251-56 (N.D.Ind.1989). We see no need to add to the district court’s discussion of these issues. The district court also granted summary judgment to Schwartz on claims under the federal securities laws and state malpractice law — limited to the 1983 tax shelter. Id. at 1240-51. By the time Schwartz wrote a comfort letter concerning the 1984 program, the district court believed, he may have had actual knowledge of the falsity of the representations and may have become involved as a co-venturer. (Evidence in the record suggests that MEL invested in a partnership of which Schwartz was a general partner.) The district judge concluded that Schwartz could not be liable under the federal securities laws because he was not a “seller” (excluding liability under § 12 of the Securities Act of 1933, 15 U.S.C. § 771) and because he did not have the mental state necessary for liability under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and the SEC’s Rule 10b-5,17 C.F.R. § 240.-10b-5. The malpractice claim foundered, the district court held, because Schwartz owed no duty to the investors. We turn first to plaintiffs’ claims under § 12. I Section 12 creates a remedy against any person (1) who “offers or sells a security in violation of section 5” (that is, sells a security that should have been registered but was not) or (2) who “offers or sells a security ... by means of a prospectus or oral communication, which includes an untrue statement of a material fact”. A person who violates either § 12(1) or § 12(2) “shall be liable to the person purchasing such security from him” under a rescissionary standard. Pinter v. Dahl, 486 U.S. 622, 641-54, 108 S.Ct. 2063, 2075-83, 100 L.Ed.2d 658 (1988), holds that although § 12(1) reaches “sellers” who do not stand in a relation of privity to the purchaser, it does not reach persons such as attorneys who facilitated the sale but were not statutory “sellers”. That holding dooms the plaintiffs’ efforts to hold Schwartz liable under § 12. Although the investors maintain that Schwartz is amenable to liability under § 12(2) even if not under § 12(1), the statute does not permit such differentiation. Both § 12(1) and § 12(2) identify the person who “offers or sells a security” as the one potentially liable. “Offer” and “sell” are defined terms in the ’33 Act (see § 2(3)) and cannot mean one thing in § 12(1) and something else in § 12(2). “Clearly the word [sell] has the same meaning in subdivision (2) as in subdivision (1) of section 12.” Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875, 878 (2d Cir.1943). Moreover, only “the person purchasing such security from” a seller may use § 12; this language, which the Court emphasized in Pinter, applies to both subsection (1) and subsection (2). Under Pinter a lawyer is not a seller, and the investor is not “the person purchasing such security from” a lawyer. 486 U.S. at 651 & n. 27, 108 S.Ct. at 2081 & n. 27. Plaintiffs’ theory that Schwartz is a seller because his opinion letter played an important role in making the units marketable is just another version of the proposition that § 12 covers anyone whose participation is a “substantial factor” leading to the transaction. Pinter considered and rejected, id. at 648-54, 108 S.Ct. at 2079-82, the “substantial factor” approach to liability under § 12. If the language of § 12 left any doubt, the structure of the ’33 Act would resolve it. Section 12 must be understood as a partner to § 11. Pinter, 486 U.S. at 650 n. 26, 108 S.Ct. at 2080 n. 26. Section 11 creates liability for the issuer, underwriter, and anyone who signs a registration statement containing a materially false or misleading statement. Everyone except the issuer has statutory defenses: persons who conduct a “reasonable investigation”, § 11(b)(3)(A) (the “due diligence” defense), or who rely on the opinion of an expert, § 11(b)(3)(B), may escape liability; persons held liable may attempt to show that their wrongs did not cause the investors’ loss, § 11(e), and may obtain contribution from more culpable parties, § 11(f). Section 12 treats the issuer and sellers more harshly. Gone are the due diligence and expertise defenses. Missing is any reference to causation and contribution. If courts read “seller” and “person purchasing such security from him” in § 12 broadly, all of the limitations and defenses in § 11 would vanish, for investors always would use § 12. In limiting the scope of § 12 in a way that excludes attorneys who furnish advice, we honor the decision of Congress to give such persons a set of defenses. Our investors try to escape this conclusion by contending that Schwartz, if not liable as a principal, is at least answerable as an aider and abettor. Yet this approach, no less than an expansive reading of § 12 itself, would destroy the limitations built into the ’33 Act. “[NJotions of aiding and abetting liability would be inconsistent with the intent and language of the statutory provision which expressly limits to offerors and sellers the categories of persons who may be sued.” Schlifke v. Seafirst Corp., 866 F.2d 935, 942 (7th Cir.1989). Section 15 of the 33 Act provides that persons who directly or indirectly “controlf ] any person liable under section 11 or 12” shall be liable to the same extent as the controlled person. It would upset this decision, as well as the interaction between § 11 and § 12, to add persons such as attorneys to the list. Plaintiffs do not contend that Schwartz controlled MEL; that is that. Plaintiffs take comfort in the concluding sentence of this section of Schlifke: “[W]e see no reason at this time to imply a right of action for aiding and abetting under section 12(2).” 866 F.2d at 942 (emphasis added). Our court was not reserving for the future a possibility that it rejected explicitly earlier in the same paragraph; words such as “at this time” in judicial opinions carry the message that judges resolve no more than they consider. New arguments, like new developments in Congress or the Supreme Court, receive fresh consideration. Until then, however, a subject fully considered is closed. Plaintiffs have no new arguments, and we therefore stand with Schlifke in holding that there is no liability for aiding or abetting a violation of § 12. Accord, Wilson v. Saintine Exploration & Drilling Corp., 872 F.2d 1124 (2d Cir.1989); In re Craftmatic Securities Litigation, 890 F.2d 628, 634-37 (3d Cir. 1989); Thomas Lee Hazen, 1 The Law of Securities Regulation 354-56 (2d ed. 1990). II The district court characterized the investors’ claim under § 10(b) and Rule 10b-5 as another species of vicarious liability. Several of our opinions say that to be liable as an aider or abettor under the ’34 Act, the defendant must act with the mental state required for primary liability, must violate a duty to investors established by state law, and also must perform acts that promote the underlying scheme. E.g., Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490, 495-97 (7th Cir.1986); LHLC Corp. v. Cluett, Peabody & Co., 842 F.2d 928, 932-33 (7th Cir.1988); Schlifke, 866 F.2d at 946-48. The district court concluded that Schwartz lacked the necessary mental state — not so much because a jury would be bound to conclude that Schwartz was negligent rather than reckless, but because Schwartz’s duty ran only to the promoters, to whom the letter was addressed. As the promoters knew the truth, the representations in the letter could not deceive them. “That which might be grossly reckless in a letter destined for investors ... might be nothing more than negligence in a letter destined only for the client.” 733 F.Supp. at 1250. In the end, the court held, “[t]he investors have proceeded no further than did the plaintiffs in Barker. They have presented nothing to support the inference that Mr. Schwartz or his firm knew, when they issued the opinion letter, of a strong likelihood that MEL, Leibowitz, or VanWaeyenberghe would distribute the letter to potential investors.” Id. at 1251. In focusing on the distribution of the letter, the district court hinted at a more fundamental question: whether Schwartz had a duty to the investors. Federal law requires persons to tell the truth about material facts once they commence speaking, but with rare exceptions does not oblige them to start speaking. The duty to speak comes from a fiduciary relation established by state law. Dirks v. SEC, 463 U.S. 646, 658, 103 S.Ct. 3255, 3263, 77 L.Ed.2d 911 (1983); Chiarella v. United States, 445 U.S. 222, 228, 100 S.Ct. 1108, 1114, 63 L.Ed.2d 348 (1980); Schatz v. Rosenberg, 943 F.2d 485 (4th Cir.1991); Barker, 797 F.2d at 496. The district judge treats Schwartz as a silent participant in the transactions, and liability of silent persons depends on state law, to which we turn. Indiana follows Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441 (1931) (Cardozo, J.), in limiting the liability of accountants, lawyers, and other professionals when persons receive their reports and opinions second-hand. See Essex v. Ryan, 446 N.E.2d 368 (Ind.App. 1983). (The district court concluded that Indiana rather than Michigan law applies, 733 F.Supp. at 1240-41, and we agree with this assessment.) We concluded in Toro Co. v. Krouse, Kern & Co., 827 F.2d 155, 161-62 (7th Cir.1987), that as an Ultra-mares jurisdiction Indiana likely would follow the slight modification of its approach in Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110 (1985). In order to recover from a professional for a report rendered to his client, the third party must establish that the professional was aware that the report would be used for a particular purpose, in furtherance of which a known person would rely, and the professional must show an understanding of this impending reliance. 493 N.Y.S.2d at 443, 483 N.E.2d at 118. The district judge found it beyond dispute on this record that Schwartz did not expect that his 1983 letter would be distributed to investors. 733 F.Supp. at 1250-51 & nn. 6-8. Schwartz did not know who would see or rely on the letter and therefore, under Ultramares, owed these strangers no duties. This not only knocked out the claim under state law but also meant that the letter could not deceive its audience in violation of federal law — for the promoters knew their own scheme, and Schwartz had no duty to anyone else. Ultramares reflects a judgment that providers of information need protection from the sort of liability that routinely falls on manufacturers of defective products. This may be in part because providers of information have a harder time capturing the benefits of their skills than do sellers of products, see Greycas, Inc. v. Proud, 826 F.2d 1560, 1564 (7th Cir.1987), although the issuer of securities can cope with part of this problem by promising to indemnify its professional assistants. A privity rule also likely reflects recognition that damages in securities cases often bear tangential relation to social loss. Pecuniary losses in securities markets greatly exceed social losses. An error in stating accounts receivable may cause the price of stock to fluctuate; if the price rises unduly, sellers gain at the expense of buyers; when the truth comes out and the prices adjust again the flow is reversed. The fluctuation causes a transfer among investors, rather than a transfer from investors to promoters or their advisers. Litigation seeking to collect the entire price movement from the accountant — while leaving other investors with the gains in their pockets — produces a damages award unrelated to the real loss created by the error (an increase in volatility of stock prices and a slight reduction in the propensity to invest, to the detriment of society at large). Although considerations of this kind support the Ultramares rule when the accountant or lawyer is negligent, they do not support immunity from damages for fraud. The optimal amount of fraud is zero; judges worry less about overdeter-rence of socially productive activities (although error in separating fraud from negligence leaves a residuum of concern). Ul-tramares itself was a negligence case, and Judge Cardozo carefully observed that his opinion was not designed to “emancipate accountants from the consequences of fraud.” 255 N.Y. at 189, 174 N.E. at 448. Indiana does not apply a privity rule in fraud cases, Parke County v. Ropak, Inc., 526 N.E.2d 732, 736 (Ind.App.1988); Plymale v. Upright, 419 N.E.2d 756, 760 (Ind. App.1981). We therefore concluded in Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1284 (7th Cir.1989), that Indiana would not apply Ultramares in fraud actions. Both the fraud and the direct dissemination qualifications of Ultramares come into play. Let us start with the latter. Schwartz expressly consented to the distribution of his letter to accountants, attorneys, and tax advisers — that is, to the professional assistants of investors. Schwartz treats these persons as if they were distinct from investors, but they are not. They are agents of investors. To give information to an agent is to give it to the principal. The SEC treats a sophisticated adviser (that is, a “purchaser representative” under Rule 501(h)) as a proxy for a sophisticated investor when deciding the allowable scope of an unregistered § 4(2) or Regulation D offering. See Rule 506(b)(2)(ii). Information sent to such “purchaser representatives” is designed to affect investment decisions. That the effect is indirect is no more a defense to liability than it would be to observe that the erroneous description of a drug’s effects appeared in the literature distributed to physicians but was not stuffed in the box when the patient picked up a prescription. Information is given to physicians precisely so that it will affect the choice of drugs; information is given to accountants and tax advisers so that it will affect the choice of investment — sometimes via an investment the agent makes for the client’s account, sometimes via the advice the agent gives to the client, and sometimes the agent passes along the information verbatim. Nothing in the rationale of Ultra-mares implies a line between a tax adviser and a taxpayer. Perhaps some of the 101 appellants (who bought one or more units in the 1983 program) did not have attorneys, accountants, or tax counsellors (or had agents who did not get the letter); but those who did receive this information with Schwartz’s consent through their agents (or whose agents acted on the basis of the information) are entitled to proceed against its author. Then there is the matter of fraud. Plaintiffs would like to be able to recover from Schwartz for negligence, but § 10(b) and Rule 10b-5 do not allow this, and we agree with the district judge that neither does Indiana law except to the extent Schwartz authorized the distribution of the letter to the investors’ advisers. But if Schwartz acted recklessly, he had the mental state that identifies fraud under both state and federal law. Indiana law allows an action for fraud even when Ultramares blocks recovery for negligence. See Ash-land Oil. The district court’s only reason why the record, viewed in the light most favorable to the investors, would not allow an inference of recklessness is that the promoters were the only audience to which Schwartz owed a duty. That conclusion cannot stand, for it assumes that Ultra-mares interdicts even fraud actions. Under Rule 10b-5, moreover, the lack of an independent duty does not excuse a material lie. A subject of a tender offer or merger bid has no duty to issue a press release, but if it chooses to speak it must tell the truth about material issues. Basic Inc. v. Levinson, 485 U.S. 224, 232-86, 108 S.Ct. 978, 983-85, 99 L.Ed.2d 194 (1988). Although the lack of duty to investors means that Schwartz had no obligation to blow the whistle, see Barker and, e.g., Schatz; Renovitch v. Kaufman, 905 F.2d 1040 (7th Cir.1990); Latigo Ventures v. Laventhal & Horwath, 876 F.2d 1322, 1327 (7th Cir. 1989); Abell v. Potomac Insurance Co., 858 F.2d 1104 (5th Cir.1988), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989); First Interstate Bank v. Chapman & Cutler, 837 F.2d 775, 780 n. 4 (7th Cir.1988); Windon Third Oil & Gas Drilling Partnership v. FDIC, 805 F.2d 342, 347 (10th Cir.1986), and none to correct a letter he had not authorized to be circulated in the first place (similarly, Basic’s press release misrepresenting the negotiating position of the would-be acquiror did not compel the bidder to issue its own press release correcting Basic’s bobble), Schwartz cannot evade responsibility to the extent he permitted the promoters to release his letter. Although this is a closer question— and will turn out to be irrelevant if all of the plaintiffs had advisers who received the letter with Schwartz’s consent — we also conclude that the district court should not have found that Schwartz withheld authorization for the use of his letter in the offering materials. Schwartz testified by deposition that he told Van Waeyenberghe and Leibowitz not to include the letter in the offering materials. 733 F.Supp. at 1250 n. 7. The investors have no contrary direct evidence, but then Van Waeyenberghe and Leibowitz are not talking. A jury might disbelieve Schwartz’s uncorroborated assertion. Several things undercut it: (a) The letter discusses tax consequences for investors, not for MEL or the promoters; what was the point of the document if not to circulate?; (b) The letter professes adherence to an ABA standard (Formal Opinion 346) that is designed for documents that will be disseminated to investors, supporting an inference that Schwartz contemplated such dissemination (and authorized what he contemplated would occur); (c) Schwartz concedes that he authorized the letter’s dissemination to advisers; what was the point of this limit? (The letter might be more misleading to a careful tax adviser than to a lay person, because it professes observance to an ABA standard that to a professional would signal a careful investigation.); (d) Schwartz never committed to writing his opposition to the inclusion of the document with the offering materials; is it likely that an attorney would fail to put something so important on paper?; (e) After the inclusion of his letter in the offering circular, Schwartz continued to cooperate with the promoters as if nothing had happened. He proposed an escrow agreement under which $100 of every unit (up to $100,000) would be withheld to finance litigation against the IRS, and he drafted a new letter for the 1984 offering. Although as the district court observed, 733 F.Supp. at 1250 n. 6, this did not ratify any earlier missteps by the promoters, a continuing congenial relation casts doubt on Schwartz’s assertion that he withheld authorization. If a jury should conclude that Schwartz authorized the inclusion of the letter with the offering documents, then he appears as a principal— just as all who prepare or sign the registration statement and its attachments are principals under § 11(a)(4) — and not as an aider or abettor. (We conform the implied rights of action to the express ones to the extent possible.) The duty to correct statements so long as the offering continues snaps into place. Offering materials must be correct and non-misleading at the time of the sale, and not just as of the time they were written. SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1099-1100 (2d Cir.1972). This duty comes from federal securities law rather than state law. If as the investors submit Schwartz came to doubt the representations in his letter but continued to allow its circulation, this may be powerful evidence of recklessness, and so establish liability under § 10(b) and Rule 10b-5. III Schwartz offers in support of his judgment a ground on which he lost in the district court: that his errors did not cause the investors’ loss. Causation is an essential element of liability. LHLC Corp., 842 F.2d at 931; Bastían v. Petren Resources Corp., 892 F.2d 680 (7th Cir.1990). In the district court Schwartz insisted that the source of the investors’ loss was the promoters’ making off with the money, and that errors in his letters did not cause this loss. To this the district court responded that “had the facts been as represented to investors in the opinion letter, the plaintiffs would not have suffered a loss”. 733 F.Supp. at 1246. (To be precise, the district judge said that the evidence, taken in the light most favorable to the investors, could support such a conclusion.) This is a sensible appreciation of the current state of the evidence. Schwartz insists that the district judge should have segregated the loss attributable to the IRS’s denial of credits and deductions from the loss attributable to the principals’ defalcations. Although such a line may be appropriate, it cannot support the judgment. Unless Schwartz knocks out the possibility of any damages the case must continue, with apportionment in the hands of the triers of fact. On remand the district court should consider this question along with the many other issues that remain for decisions. The judgment is affirmed to the extent it grants judgment for the defendants on state and federal versions of RICO, state securities law, and § 12 of the ’33 Act (plus theories of aiding and abetting a violation of § 12) and determines that Indiana law governs state-law claims. The judgment is otherwise reversed, and the case is remanded for further proceedings consistent with this opinion. ABA Formal Opinion 346 provides in part: "[WJhere essential underlying information, such as an appraisal or financial projection, makes little common sense, or where the reputation or expertise of the person who has prepared the appraisal or projection is dubious, further inquiry clearly is required. Indeed, failure to make further inquiry may result in a false opinion [which violates the disciplinary standards].” Summing up, Formal Opinion 346 states that a lawyer must "[m]ake inquiry as to the relevant facts and, consistent with the standards developed in ABA Formal Opinion 335, be satisfied that the material facts are accurately and completely stated in the offering materials, and that the representations as to intended future activities are clearly identified, reasonable and complete.”

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

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

NAFCO OIL AND GAS, INC., a corporation, Appellant, v. Nathan APPLEMAN, Appellee. No. 8772. United States Court of Appeals Tenth Circuit. July 3, 1967. Rehearing Denied Aug. 8, 1967. Thomas H. Lee, Houston, Tex. (Thomas J. Binig, Houston, Tex., with him on the brief), for appellant. A. F. Ringold, Tulsa, Okl. (C. H. Rosenstein, Tulsa, Okl., with him on the brief), for appellee. Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge. SETH, Circuit Judge. This action was brought by the ap-pellee, who was the grantor in a conveyance of certain oil and gas interests, against the successor in interest of the original grantee. The action is for a declaratory judgment seeking to establish the grantor’s right to receive $1,000 a month for audit and overhead expense from the grantee for so long as a production payment reserved in the conveyance remains in effect. Both parties sought summary judgment in the trial court and judgment was entered in favor of the plaintiff. The trial court concluded that the audit and overhead expense provision of the conveyance was ambiguous and incomplete because it did not name the person to whom payment was to be made for such expenses nor the length of time over which payment was to be made; and consequently, parol evidence was admissible to ascertain the intent of the parties to the agreement. From the evidence before it, which was primarily depositions and letters of the interested parties and the evidence as to how the parties had construed the contract over a period of several years, the trial court concluded that the parties had agreed that the grantor-plaintiff was to receive the $1,000 per month so long as the production payment payable to the grantor remained in effect. The contract provision contained in the conveyance of the oil and gas rights with a reservation of a production payment, and which was the subject of the litigation, reads as follows: “(1) There shall first be taken, as incurred, the amount of all of Grantee’s direct outlays * * * in developing, equipping and operating the oil and gas leases * * * to the extent of Grantor’s interest therein hereby conveyed and assigned, including outlays in the nature of delay rentals on undeveloped acreage and direct taxes, * * * There shall also be added to the expenses of the Grantee as set forth above a fixed charge for audit and overhead expense of $807.70 per month * * There is no issue but that the appellee is the grantor as appears in the above quotation, and that the appellant corporation as successor in interest is the grantee therein. A similar contract was executed by appellee’s wife as grantor with a similar charge for a part of the overhead expense, but in a lesser amount. For the purpose of trial and appeal, the parties considered both contracts as one. The record before us does not of course disclose the exact theories upon which the parties relied to support their cross-motions for summary judgment. The appellant here has advanced alternative arguments to show that the disposition of the action by summary judgment was improper. The first argument is that the trial court was in error in considering parol evidence to interpret the contract provisions since the contract was complete on its face. Secondly, the appellee urges that even if parol evidence were properly admissible to determine the intent of the parties and the meaning of the contract,.....the evidence the court considered did not establish the right of the appellee to receive the monthly payments for the term of the reserve production payments. The standards relating to summary judgment are of course well established, and it must be clear that no material issue of fact has survived the pretrial proceedings. Frey v. Frankel, 361 F.2d 437 (10th Cir.); Norton v. Lindsay, 350 F.2d 46 (10th Cir.); Singer v. Rehm, 334 F.2d 240 (10th Cir.). On this appeal if it is assumed that the trial court properly concluded as a matter of law that the questioned provision in the contract was ambiguous or incomplete, then it became necessary that facts be established by parol evidence from which the court could construe the contract. The trial court here did so and made findings relative to the intent of the parties from the depositions, affidavits, and exhibits. This intent of the parties under this theory was a material issue of fact not disposed of by the pretrial proceedings. It was an issue upon which the court had before it evidence giving rise to several inferences, and consequently, disposition of the case by summary judgment was error. The appellee urges that since both parties filed motions for summary judgment in the trial court this constituted an acknowledgment by the appellant that there was no material issue of fact remaining for the trial court, and thus summary judgment was appropriate. We do not agree. The filing of cross-motions for summary judgment does not necessarily concede the absence of a material issue of fact. This must be so because by the filing of a motion a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary’s theory is adopted. Summary judgment is not a substitute for trial and in the event that cross-motions have been filed and material issues of fact remain, a trial must of course be had. American Fid. & Cas. Co. v. London & Edinburgh Ins. Co., 354 F.2d 214 (4th Cir.); Union Ins. Soc. v. William Gluckin & Co., 353 F.2d 946 (2d Cir.); Jacobson v. Maryland Cas. Co., 336 F.2d 72 (8th Cir.); 6 Moore, Federal Practice § 56.13 (2d ed. 1966). The trial court’s summary judgment disposing of the “audit and overhead expense” provision of the contract is reversed, and the case is remanded.

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

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

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

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

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.

Edgardo A. GONZALEZ, Jr., Plaintiff-Appellee, v. C.Y. BENAVIDES, Jr., Webb County Judge, et al., Defendants-Appellants. No. 84-2440. United States Court of Appeals, Fifth Circuit. Oct. 24, 1985. Rehearing Denied Nov. 21, 1985. Richard Morales, Sr., Laredo, Tex., for Webb Comm’s Court & Webb County. Lawrence A. Mann, Laredo, Tex., for Be-navides & Webb County Comm. Oscar M. Laurel, Jr., Laredo, Tex., for plaintiff-appellee. Before WISDOM, POLITZ and TATE, Circuit Judges. OPINION WISDOM, Circuit Judge. In this case, before us for the second time, we must balance a public employee’s right to free speech against a public employer’s interest in the effective and efficient performance of the agency the employee serves. In affirming the district court, we strike the constitutional balance in favor of the employee. I. Plaintiff Edgardo Gonzalez was Executive Director of the Laredo-Webb County Community Action Agency (CAA). The CAA administers a variety of federally funded anti-poverty programs in Webb County, Texas. Congress created community action agencies to involve local residents, including representatives of the poor and business and civic leaders, in developing and carrying out policies to reduce poverty. See H.Rep. No. 1458, 88th Cong. 2nd Sess., reprinted in 1964 U.S. Code Cong. & Ad.News 2900, 2945. In 1967, Congress amended the Economic Opportunity Act to create a larger role for local elected officials. See H.Rep. No. 866, 90th Cong. 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 2428, 2448-49. The 1967 amendments permit states or political subdivisions of states to designate themselves as community action agencies. 42 U.S.C. § 2790(a). If the state or political subdivision does so, it must create an “Administering Board” composed of equal numbers of representatives of the poor, representatives from “major groups and interests in the community”, and elected officials. 42 U.S.C. § 2791(b). The Webb County Commissioners’ Court designated itself as the community action agency for Webb County. The commissioners created an Administering Board of 21 persons and approved a set of regulations to govern the operations of the CAA. The Commissioners’ Court appointed the senior staff of the CAA, including the Executive Director and the Deputy Director. The commissioners also reviewed policies, plans, and regulations developed by the staff and the Administering Board, and ratified the minutes of Administering Board meetings. The Administering Board oversaw CAA planning and administration. We accept the district court’s finding that the Administering Board “was clearly charged with the day-to-day supervision of Gonzalez and explicitly directed to evaluate his job performance.” Gonzalez began working for the predecessor of the CAA, the Webb County Economic Opportunities Development Corporation, in 1969. He became Executive Director of the CAA in March 1979. In May of 1980, Gonzalez discharged the Deputy Director of the CAA, Oscar Chavez. The County Commissioners’ Court reinstated Chavez, publicly reprimanded Gonzalez for exceeding his authority, and began an investigation of Gonzalez’s job performance. Gonzalez appeared before the Commissioners’ Court and stated publicly that the investigation violated CAA regulations. During a lengthy closed session following his public statement, Gonzalez maintained that he was specifically authorized to dismiss any employee under a regulation approved by the commissioners. Gonzalez apparently did not contest the commissioners’ power to reinstate the Deputy Director. Instead, he objected that Chavez had not appealed first to the Administering Board, as required by the regulations. Gonzalez conceded that the Commissioners’ Court had the power to fire him with or without cause. He insisted, however, that the regulations deprived the Commissioners’ Court of authority to evaluate the Executive Director’s job performance. The commissioners argued that their power to fire Gonzalez necessarily included the power to evaluate him. They demanded that Gonzalez publicly acknowledge their authority to evaluate his performance. Gonzalez refused, and the commissioners fired him. Gonzalez brought suit under 42 U.S.C. § 1983, contending that his termination was an unconstitutional retaliation for protected speech and a violation of protected liberty and property interests. The district court rejected the due process claims, but concluded that Gonzalez’s statements were protected by the First Amendment and awarded damages. Employees may recover for actions taken by government employers in retaliation for protected speech even if the employee has no protected liberty or property interest in his job. Mount Healthy City Board of Education v. Doyle, 1977, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471. On appeal, we observed that Gonzalez apparently had wide discretion to carry out or subvert the policies of elected officials, and remanded so that the district court could determine whether the Executive Director’s relationship with the Commissioners’ Court fell “into that narrow band of fragile relationships requiring for job security loyalty at the expense of unfettered speech". Gonzalez I, 712 F.2d at 150. We remanded the case to the district court to determine whether such a fragile relationship existed and if so, whether Gonzalez’s speech undermined the relationship. In an unpublished opinion, the district court found that Gonzalez occupied a sensitive policymaking position, but concluded that his speech was protected because it caused no significant harm to his relationship with the commissioners. II. The Supreme Court has rejected the sweeping proposition that public employees may be required to surrender First Amendment rights as a condition of employment. See Keyeshian v. Board of Regents, 1967, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629. Shortly after it handed down the Keyeshian opinion, the Court concluded that government employees are not always free to speak as private citizens. Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811. The balancing test announced in Pickering, although simply stated, is often difficult and uncertain of application. Pickering instructs us to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568, 88 S.Ct. at 1734. The Pickering Court suggested some factors to be weighed in the balance: whether the statements were directed against persons with whom the speaker “would normally be in contact in the course of his daily work”; whether they had an adverse effect on “discipline by immediate superiors or harmony among coworkers”; whether “it can persuasively be claimed that personal loyalty and confidence are necessary” to a successful employment relationship; whether the employee’s statements “either impeded [the] proper performance of his daily duties ... or ... interfered with the address operation of the [agency]”; and whether the statements addressed a matter of public concern. Id. at 568-73, 88 S.Ct. at 1734-37. The Court refined the Pickering analysis in Connick v. Myers, 1983, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. Under Connick, the employee’s speech is entitled to judicial protection only if it addresses a matter of public concern. The Court reasoned that “speech concerning public affairs” is entitled to greater judicial protection because it “is more than self-expression; it is the essence of self-government”. Connick, 461 U.S. at 145, 103 S.Ct. at 1689, quoting Garrison v. Louisiana, 1964, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125. Public employees, by virtue of their public employment, may make valuable contributions to the public debate. See Pickering, 391 U.S. at 572, 88 S.Ct. at 1736-37. The majority in Connick held that, if the employee commented on matters of only personal interest, the employee’s discharge is not subject to First Amendment review “absent the most unusual circumstances”. 461 U.S. at 147, 103 S.Ct. at 1690. Employee speech, even on issues of public concern, must be balanced against the government’s interest in “promoting] efficiency and integrity in the discharge of official duties” and in “maintainpng] proper discipline in the public service”. Connick, 461 U.S. at 150-51, 103 S.Ct. at 1692, quoting Ex parte Curtis, 1882, 106 U.S. 371, 373, 1 S.Ct. 381, 383-84, 27 L.Ed. 232. The Connick Court considered whether the employee’s speech impeded her ability to carry out her job; whether close working relationships with superiors were disrupted; and the time, place, and manner of the speech. 461 U.S. at 151-53, 103 S.Ct. at 1692-93. Both Connick and Pickering emphasize that the Supreme Court’s enumeration of factors to weigh in the balance is not exhaustive. See 461 U.S. at 153, 103 S.Ct. at 1693; 391 U.S. at 569, 88 S.Ct. at 1735. When we first considered this case, we identified an additional factor that may limit the employee’s right to speak freely. We noted that senior government employees who exercise broad discretionary authority may be able to “make or break” the programs and policies of elected officials. Gonzalez I, 712 F.2d at 149. We analogized the interest at stake to the government’s interest in the party affiliation of some employees. Id. at 147-49. Cf. Branti v. Finkel, 1980, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574; Elrod v. Burns, 1976, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547. We concluded that the speech rights of such employees might have to be curtailed to safeguard the political process. III. We now apply the Pickering-Con-nick scheme to the Gonzalez case. Although this Court will not disturb the district court’s findings of fact unless they are clearly erroneous, we must weigh the facts for ourselves to arrive at an “independent constitutional judgment”. See Connick, 461 U.S. at 150 n. 10, 103 S.Ct. at 1692 n. 10, quoting Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 88 S.Ct. 1676, 1679, 12 L.Ed.2d 793 (opinion of Brennan, J.). The defendants concede that Gonzalez was fired because of his speech. The plaintiff therefore satisfies the causation requirement established in Mount Healthy City Board of Education v. Doyle, 1977, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. A. Whether Gonzalez commented upon matters of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record”. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-1691. We are mindful of Connick's admonition that not every conflict between public servants should be elevated to an issue of public concern. Id. at 149, 103 S.Ct. at 1691. Gonzalez’s disagreement with the commissioners indisputably was a matter of concern to Gonzalez as an employee. We do not read Connick, however, to exclude the possibility that an issue of private concern to the employee may also be an issue of public concern. Indeed, the teacher dress code at issue in Mount Healthy, and the school bonds under discussion in Pickering, appear to have been “mixed” issues of both public and private concern. See The Supreme Court, 1982 Term, 97 Harv.L.Rev. 70, 171 (1984). We are persuaded that Gonzalez raised such a mixed issue. First, Gonzalez raised the possibility that violations of CAA regulations would result in a loss of federal funds for poverty programs in Webb County. Federal policy favors ensuring that representatives of the poor participate in policymaking. See 42 U.S.C. § 2791(b). The direct intervention of the county commissioners contravened this policy. Although the Administering Board ratified the action of the Commissioners’ Court by a vote of eight to seven, the result might have been different if the Board had been consulted before the commissioners acted. Had federal funding been cut off, thousands of needy Webb County residents would have lost over a million dollars a year in federal assistance. While such a catastrophe may have been unlikely, we believe the importance of the programs at stake raised the issue to a matter of significant public concern. Second, whether the Commissioners’ Court complied with CAA regulations is a question of public concern. The regulations relied on by Gonzalez were ratified by the County Court itself. While Gonzalez’s reading of the regulations is not indisputably correct, he raised legitimate questions of interpretation. We consider that compliance with the regulations by the Commissioners’ Court is a matter of significant public concern. Third, the uncertain allocation of authority and responsibility among the County Court, the CAA’s Administering Board, the Executive Director, and the Deputy Director was a matter of public concern. That uncertainty resulted in this expensive and time-consuming lawsuit. Even before Gonzalez fired his deputy, this uncertainty generated friction and reduced the efficiency of the agency. B. Because we agree with the district court’s conclusion that Gonzalez’s speech raised issues of significant public concern, we next consider the government interest at stake. In Connick, the Court found that a close working relationship with superiors was essential to the employee’s job. 461 U.S. at 152, 103 S.Ct. at 1693. This case is different. The district court found that Gonzalez’s job did not require frequent meetings with the Commissioners’ Court. The Administering Board monitored the performance of Gonzalez and his staff; the Commissioners’ Court generally limited its involvement to ratifying the minutes of Administering Board meetings. We noted, however, that a senior executive employee might be required to curtail his speech even though that employee does not have a close working relationship with elected officials. Gonzalez I, 712 F.2d at 148. We asked the trial judge to consider whether Gonzalez’s relationship to the Commissioners’ Court was particularly fragile because Gonzalez was in a position to frustrate policies on which the commissioners may have based their election campaigns. Id. at 149-50. The district court found that Gonzalez occupied a “policymak-ing” position giving rise to such a fragile relationship. . [13] In considering party affiliation as a qualification for public employment, the Supreme Court has concluded that the “pol-icymaking” label is not always decisive. Branti v. Finkel, 1980, 445 U.S. 507, 518, 100 S.Ct. 1287,1294-95, 63 L.Ed.2d 574. In this instance, we think that the policymak-ing nature of Gonzalez’s position is highly relevant to the question whether he could defeat the political program of elected officials. Gonzalez exercised broad discretion over the whole range of CAA programs. Although the evidence suggests that CAA policies often were developed by the Administering Board rather than the Commissioners’ Court, CAA programs were a crucial political concern of the county commissioners. We will not disturb the district court’s finding on this issue. C. Finally, we must weigh the government’s interest in the loyalty of a key executive employee against the employee’s speech rights. “That weighing is required because we do not decide that all speech by persons in such relationships is unprotected. Rather, the speech must be weighed against its impact upon the relationship and that relationship’s role in the elected official’s discharge of his duties.” Gonzalez I, 712 F.2d at 150. “[T]he [government’s] burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.” Connick, 461 U.S. at 150, 103 S.Ct. at 1691-92. In Connick, the Court held that the public employer was justified in dismissing the employee because the employer reasonably believed the employee’s speech was likely to disrupt its operations. 461 U.S. at 152, 103 S.Ct. at 1693. The majority carefully noted, however, that a stronger showing of disruption may be necessary if the employee’s speech more substantially involves matters of public concern. Id. We have concluded that Gonzalez directly addressed matters of substantial public concern. We conclude, moreover, that the defendants have not made even the lesser showing required in Connick. The defendants offered no evidence to show that Gonzalez’s speech was likely to undermine the commissioners’ political program. Gonzalez’s refusal to acquiesce posed no immediate threat to the operation of the CAA. Gonzalez did not refuse to carry out the County Commissioners’ directives so long as they were consistent with CAA regulations. The district court found that there was “absolutely no evidence or contention that Gonzalez refused to abide by” the commissioners’ decision. He offered to help amend the regulations to suit the commissioners. There is no suggestion that the commissioners’ policies were in such imminent danger that there was no time to amend the procedures to settle the dispute. Gonzalez did not challenge the commissioners’ power to fire him. He did not deny that the Commissioners had authority to reinstate Deputy Director Chavez; Gonzalez merely insisted that he had the authority to fire Chavez in the first place, and that Chavez should have followed regulations by appealing to the Administering Board. Gonzalez did not attempt to obstruct the commissioners’ investigation; he merely protested that the commissioners were violating agency regulations. The defendants argue that Gonzalez’s refusal to acquiesce was a challenge to their authority. That argument begs the question. If the commissioners acted contrary to CAA procedures, as Gonzalez maintains, they exceeded the authority allocated to them by regulations the Commissioners’ Court itself had approved. Gonzalez merely stated that, in his opinion, the commissioners were acting ultra vires. Following his public statement, Gonzalez spoke in closed session. His speech retains its protected status. See Givhan v. Western Line Consolidated School District, 1979, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619. “When a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message, but also by the manner, time, and place in which it is delivered.” Id. 439 U.S. at 439 n. 4, 99 S.Ct. at 701 n. 4. We agree with the district court’s conclusion that “there was nothing about the manner, time or place of Gonzalez’s statement that would justify his dismissal”. Gonzalez was polite throughout his exchanges with the Commissioners’ Court. He did not launch personal attacks on the commissioners. At several points he offered to cooperate in amending the CAA procedures to meet the commissioners’ wishes. As the district court found, Gonzalez’s conduct could not be characterized as a “mini-insurrection”. Cf. Connick, 461 U.S. at 141, 103 S.Ct. at 1687. The time and place were selected by the commissioners, who began their investigation with little warning to Gonzalez. The district court found that Gonzalez’s loyalties were divided. On the one hand, he served at the pleasure of the Commissioners’ Court, which sought direct control over the CAA. On the other hand, Gonzalez was obliged to carry out federal policies designed to remove the CAA from local political influence. This conflict accurately describes Gonzalez’s predicament. It is pertinent, but we need not rely on this finding because we conclude that Gonzalez’s speech was entitled to First Amendment protection even if the Commissioners’ Court is viewed as the sole government employer. IV. Our discussion suggests the familiar disadvantages of case-by-case balancing of First Amendment rights. Examination of the facts is difficult and time-consuming. In many cases judges are free to decide the case on a hunch. Because of this unpredictability, individualized balancing inevitably chills some protected speech even as it discourages government officials from acting vigorously against some unprotected speech. See T. Emerson, Toward a General Theory of the First Amendment. 72 Yale L.J. 877, 913-14 (1962). Nevertheless, because public employees speak in a great variety of circumstances, individualized balancing seems preferable to a predictable but inflexible categorical approach. And in the context of such cases great reliance should be placed on the judicial discretion exercised by the trial judge in the fact-finding process. Here, on remand the trial judge faithfully followed the clear but demanding mandate of Gonzalez I. For the reasons we have discussed, the judgment of the district court is AFFIRMED. . See Gonzalez v. Benavides, 5 Cir.1983, 712 F.2d 142 (Gonzalez I). . Gonzalez relied on a CAA regulation providing, in part: "Any employee may be dismissed by the Executive Director ... for cause". Policies and Procedures, Laredo-Webb County Community Action Agency ch. XVI § 7. . Gonzalez maintained that Chavez was obliged to follow the CAA’s personnel grievance procedure. That procedure calls for an appeal in writing to the Administering Board. Id. ch. XVII § 3(3). . Our impression in the earlier case that Gonzalez "den[ied] the core authority of the commissioners to fire him”, Gonzalez I, 712 F.2d at 146, was mistaken. The district court so found. Indeed, another CAA regulation states that the Executive Director serves at the pleasure of the Commissioners' Court. See Policies and Procedures, Laredo-Webb County Community Action Agency ch. XIX § 1. . Gonzalez cited a regulation providing that ‘[t]he performance evaluation of the Executive Director shall be made by the Administering Board.” Id. ch. XII § 1. He maintained that the wording of the regulation precludes evaluation by any other body. . The defendants suggest that the commissioners merely asked Gonzalez to recognize that their view differed from his. The district court, however, found that the commissioners required Gonzalez to accept their view. Our reading of the record supports the district court’s finding. Gonzalez was unlikely to have risked his job simply to deny that the commissioners actually held the view they purported to hold. . Employees wrongfully dismissed for exercising their First Amendment rights generally are entitled to backpay and reinstatement, see Kingsville Indep. School Dist. v. Cooper, 5 Cir.1980, 611 F.2d 1109, 1114, as well as attorney’s fees, see Stolberg v. Members of Bd. of Trustees, 2 Cir.1973, 474 F.2d 485, 490, and punitive damages for dismissals in bad faith, see Donahue v. Staunton, 7 Cir.1972, 471 F.2d 475, 482, cert. denied 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973). Gonzalez, however, has found another job at a slightly lower salary, while the County Court has hired a new Executive Director. The parties therefore agree that Gonzalez should recover only lost income and attorney’s fees. . We said: On remand the trial court is free to take additional evidence. It should first decide from the facts whether in Gonzalez's relationship with the county commissioners his true position and power were such as to implicate the governmental interest we describe. If such an interest is implicated the trial court should then weigh that interest against the asserted rights of free speech. That weighing is required because we do not decide that all speech by persons in such relationships is unprotected. Rather, the speech must be weighed against its impact upon the relationship and that relationship’s role in the elected official’s discharge of his duties. In this weighing one must look at what was said. We are wary of reviewing content in an a priori inquiry into entitlement to protection but that does not mean that content is irrelevant to the balancing exercise. In Connick the Court analyzed the nature of the asserted speech in determining its relevance to public issues. We require that here. The able trial judge has approached this case in a sensitive and thoughtful manner. We are reluctant to ask him to continue that effort, but we must do so. 712 F.2d at 150. . Our analogy does not conflate the categorical approach of the political affiliation cases with the individualized balancing required in employee speech cases. We simply identified an additional government interest to be weighed in the balance. This court has since viewed employee speech and employee party affiliation as endpoints on a single continuum. See McBee v. Jim Hogg County, 5 Cir.1984, 730 F.2d 1009 (en banc). McBee is unnecessary to our analysis here. . The dissenters in Connick object that the majority’s formulation weighs “context" twice, first to determine whether the speech addressed an issue of public concern, and then to balance the interests of speaker and government. 461 U.S. at 159-61, 103 S.Ct. at 1696-97. We do not see the force of this objection. Case-by-case adjudication requires consideration of "the whole record”, including the "context" of the speech, to determine whether the speaker addressed an issue of actual, as opposed to merely potential, public concern. . In 1969, the Office of Economic Opportunity (superseded by the Community Services Administration in 1974) issued a memorandum stating that any community action agency failing to comply with the requirements of the statutes risked loss of federal funding. The memorandum stated that persistent failure to consult the Administering Board might result in loss of funding. Community Action Memorandum No. 81 at 8. A 1979 "instruction” from the Community Services Agency requires that the Administering Board must participate in the selection of the Executive Director. CSA Instruction 6400-01a. Gonzalez neglected to tell the Commissioners’ Court about the more recent regulation before his final interview with them. We do not think Gonzalez’s failure, however culpable, decreases the public importance of the issue he raised. Moreover, the earlier memorandum raised the possibility that failure to consult the Administering Board would result in a loss of funds. . Our analysis suggests that the Executive Director might have been dismissed because of his party affiliation under Elrod and Branti. We need not, and do not, express an opinion on this question. We note, however, that Congress has expressed a preference for insulating community action agencies from some local political pressures, and that the Community Services Administration now requires Administering Board participation in the selection, if not the dismissal, of the Executive Director.

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

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

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

Jeffrey M. ARLEN, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees. No. 58, Docket 71-1446. United States Court of Appeals, Second Circuit. Argued Sept. 14, 1971. Decided Oct. 28, 1971. Michael N. Pollet, New York City, for petitioner-appellant. Joseph P. Marro, Asst. U. S. Atty., for respondents-appellees. Before MOORE, SMITH and HAYS, Circuit Judges. HAYS, Circuit Judge: This is an appeal from an order of the District Court for the Southern District of New York, 325 F.Supp. 1334, dismissing appellant’s petition for a writ of ha-beas corpus on the ground that the court lacked jurisdiction over the person of the Commanding Officer of the United States Army Reserve Components Personnel Center, who was held to be the proper respondent. The district court dissolved a stay of the order requiring petitioner-appellant to report for active duty. We reverse. Petitioner is a physician, presently holding the rank of First Lieutenant in the United States Army Reserve. In 1969, while interning at a hospital in San Francisco, he enlisted in the Medical Corps of the United States Army Reserve at the headquarters of the Sixth United States Army, Presidio < of San Francisco. He has never been assigned to a military unit for active duty nor has he been attached to a specific reserve component. In military parlance, petitioner is an unattached, inactive reservist. His nominal commanding officer is the Commanding Officer of the Reserve Officer Components Personnel Center, located at Fort Benjamin Harrison, Indiana. That Center is the administrative clearing-house for all assignments, orders, and notices affecting unattached, inactive reservists such as petitioner. All such material directed to petitioner is issued by the Commanding Officer of the Center and sent to petitioner via the Commanding Officer, Sixth United States Army. In October, 1969 petitioner completed his internship and returned to New York where his family lives. Since November, 1969, he has resided and carried on his practice in this judicial circuit, first in Long Island and, since January 1970, in Manhattan. During this period petitioner at all times continued in his status as an unattached, inactive reservist. In August, 1970 petitioner filed an application with the Commanding Officer, Sixth United States Army, for discharge from the United States Army Reserve. Petitioner advanced as the basis for his application his conscientious objection to war in any form. Because petitioner was then residing within the geographical jurisdiction of the First United States Army, the Commanding Officer of the Sixth Army forwarded the application to the Commanding Officer of the First Army for administrative action. In accordance with the provisions of Army Regulation 135-25, petitioner was interviewed in New York City during October and November, 1970, by the officers designated in the Army Regulations, all of whom, petitioner alleges, recommended his discharge. On December 29, 1970 petitioner was ordered by the Commanding Officer of the Center at Fort Benjamin Harrison to report on February 5, 1971 to Fort Polk, Louisiana for active duty. On January 8, 1971 the Commanding Officer of the Sixth Army forwarded petitioner’s application for discharge and the. recommendations of the interviewing officers to the Commanding Officer of the Center, together with his own recommendation that the discharge be granted. On February 3, 1971, the conscientious objector discharge review board of Fort Benjamin Harrison, which reviews reserve officers’ applications for discharge, denied petitioner’s application. Petitioner thereupon filed in the United States District Court for the Southern District of New York, the application now under consideration. The district court issued an order to show cause and stayed petitioner’s removal from the jurisdiction pending a determination of his petition. On April 21 the district court denied the petition. In denying petitioner’s application the district court relied upon Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). Schlanger involved the unusual situation of a serviceman on active duty assigned to a duty station outside the territorial jurisdiction of his commanding officer. In that case the petitioner, assigned to an Air Force unit at Moody Air Force Base in Georgia, applied for and received from his commanding officer a temporary duty assignment at Arizona State University. While at that duty station, he filed a petition for habeas corpus in the United States District Court in Arizona. The petition was denied on the ground that the only respondent with custody over this active duty serviceman, the Commanding Officer of Moody Air Force Base, was not within the territorial jurisdiction of the Arizona District Court. The Supreme Court affirmed. See 401 U.S. at 490-491, 91 S.Ct. 995. A serviceman in the position of petitioner in the present case is “in custody” in this jurisdiction within the meaning of 28 U.S.C. § 2241(c) (1970). See United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); Donigian v. Laird, 308 F. Supp. 449, 451-452 (D.Md.1969), discussed infra. The only question presented, therefore, is whether the district court had jurisdiction under 28 U. S.C. § 2241(a) (1970) to issue the writ when the petitioner is an unattached reservist within the court’s territorial jurisdiction but the commander of all such reservists is not physically within that jurisdiction. The Supreme Court was faced in Schlanger with a situation involving a serviceman on active duty and under specific orders who was in the rare position of not being within the same territorial jurisdiction as his commanding officer. Before the decision in Schlanger this court had held that a serviceman on active duty outside the territorial jurisdiction of his commanding officer cannot petition for the writ in the jurisdiction in which he happens to be, but must proceed in the jurisdiction where his commanding officer is present. United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir.), cert. denied 396 U.S. 918, 90 S.Ct. 244, 24 L. Ed.2d 197 (1969). See Feliciano v. Laird, 426 F.2d 424, 427 n. 4 (2d Cir. 1970). The specific question of the unattached reservist has not been decided in this Circuit. Schlanger, as we view its holding, does not preclude a district court, with jurisdiction over the territory in which an unattached reservist is in custody and in which he resides and works, from entertaining his petition for habeas corpus solely because his nominal “commanding officer” is not physically present in the jurisdiction. The Supreme Court reserved decision on this precise question, 401 U.S. at 489, 491 n. 5, 91 S.Ct. 995 and cited, apparently with approval, Donigian v. Laird, 308 F.Supp. 449 (D.Md.1969). Donigiam. involved the same question as is presented by our case; whether, in a habeas corpus proceeding commenced by an unattached reservist, the Commanding Officer of the Reserve Officer Components Personnel Center in Indiana could be sued in the district court of the district in which the reservist resided. It was decided in favor of such exercise of jurisdiction. We reject the limited interpretation of Schlanger adopted in Strait v. Laird, 445 F.2d 843 (9th Cir. 1971); Lipinski v. Resor (1st Cir. July 14, 1971). The practical circumstances of the serviceman on active duty and the unattached reservist are sufficiently different to warrant different results in deciding the question of jurisdiction. Usually a serviceman and his commanding officer are physically present within the same territorial jurisdiction. Schlanger involved an unusual situation of detached, temporary duty; Rudick and Feliciano involved servicemen on leave from or in transit to active duty stations. In those cases the servicemen were directly under orders of immediate commanding officers, and their physical separation from their commanding officers was temporary. The unattached reservist such as petitioner does not in fact have a direct commanding officer. The title of “commanding officer” given to the commander of the “centrally located, nationwide record keeping center” at Fort Benjamin Harrison is hardly more than a convenient fiction. See Hansen, The Jurisdictional Bases of Federal Court Review of Denials of Administrative Discharges from the Military I, 3 Sel.Serv.L.Rep. 4001, 4006 n. 60 (1971). Petitioner has never been in the same jurisdiction as his nominal “commanding officer.” Petitioner’s presence within the jurisdiction of the District Court for the Southern District of New York is neither temporary as in Rudick and Feliciano nor sham for purposes of forum shopping. Since November, 1969 petitioner has worked and resided here. Whatever contact the commanding officer of the Center has had with petitioner has been in New York. The respondent had custody of petitioner in New York; petitioner initiated his application for discharge from New York and the required interviews were conducted here; all orders were sent to petitioner in New York. At no time was he required or requested to go to Fort Benjamin Harrison. Unlike the petitioners in Schlanger, Rudick, and Feliciano, the military has never required petitioner to be in the same jurisdiction as his “custodian.” In those cases it was sensible to require that the petitions be filed in the jurisdictions where the petitioners normally resided, worked, were, in custody, and were subject to orders. But where, as here, petitioner has never been within the same jurisdiction as his “commanding officer” and where for almost two years any contacts petitioner had with his commanding officer and the military have occurred within this jurisdiction, we believe that, if it is necessary to find that the nominal custodian is “present” in the jurisdiction, respondent’s contacts with petitioner in New York are sufficient to be termed “presence.” It would be quite unreasonable and inequitable to read § 2241(a) as requiring this petitioner to file for the writ in a distant jurisdiction in which he has never been and with which he has no real contacts at all. Such a requirement would entail needless expense and inconvenience. There is no justification for requiring all unattached reservists to resort to the district court in Indiana having jurisdiction over Fort Benjamin Harrison. Compare Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948) with 28 U.S.C. § 2255 (1970) discussed in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952) and 28 U.S.C. § 2241(d) (1970). Quite unlike a commanding officer who is responsible for the day to day control of his subordinates, the commanding officer of the Center is the head of a basically administrative organization that merely keeps the records of unattached reservists. To give the commanding officer of the Center “custody” of the thousands of reservists throughout the United States and to hold at the same time that the commanding officer is present for ha-beas corpus purposes only within one small geographical area is to ignore reality. The Government has no substantial interest in having a district court in Indiana (or Louisiana) hear this petition. See Note, Developments in the Law— Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1160-61 (1970). The Government has abundant counsel in this jurisdiction and records can easily be forwarded from Indiana. To assert, as the Government has, that petitioner should first comply with his orders to report to Fort Polk and then petition for the writ in Louisiana, demonstrates the lack of genuine interest the Government and the Army have in requiring the unattached reservist to petition in Indiana. The suggested procedure would force the petitioner to leave his home and his work in order to contest the power of the army to force him to do so. Reversed and remanded with directions to entertain the petition.

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?

UNITED STATES of America, Plaintiff-Appellee, v. John Scott KILLIP a/k/a “Little Wolf,” Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Johnnie Lee ADAMS a/k/a “Squirrel,” Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Sam MARR a/k/a “Sampson,” Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Virgil Earl NELSON a/k/a “Arlo,” Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marcel TEAGUE a/k/a “Tramp,” Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Dale KROUT a/k/a “Krout,” Defendant-Appellant. Nos. 85-1836 to 85-1839, 85-1882 and 85-2284. United States Court of Appeals, Tenth Circuit. June 1, 1987. Susan M. Otto, Asst. Federal Public Defender (David Booth, Federal Public Defender, with her on the briefs), Oklahoma City, Okl., arguing.separately for each defendant-appellant. ” Arlene Joplin, Asst. U.S. Atty., for plaintiff-appellee in case numbers 85-1836, 85-1839, and 85-1882. Ted A. Richardson, Asst. U.S. Atty., for plaintiff-appellee in case numbers 85-1837, 85-1838, and 85-2284 (William S. Price, U.S. Atty., and Ted A. Richardson, Asst. U.S. Atty., Western District of Oklahoma, on all briefs of plaintiff-appellee). Before McKAY, REINHARDT and BALDOCK, Circuit Judges. Honorable Stephen R. Reinhardt, Circuit Judge for the United States Court of Appeals for the Ninth Circuit, sitting by designation. McKAY, Circuit Judge. On February 6, 1985, John Scott Killip, Johnnie Lee Adams, Donald Edward Car-rail, Jr., Ronald Dale Krout, James Sam Marr, Virgil Earl Nelson, Steven Allan Pfaff and Marcel Teague were indicted in the Western District of Oklahoma. Count one of the indictment charged Messrs. Kil-lip, Adams, Krout, Nelson, Pfaff and Teag-ue with violations of the substantive provisions of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (1982 & Supp. Ill 1985) (RICO). The Government alleged that each defendant, as a past or present member of the Oklahoma City chapter of the Outlaws Motorcycle Club, was associated with an enterprise, the conduct of which affected interstate commerce, and charged each defendant with engaging in the affairs of an enterprise through a pattern of racketeering activity as defined in 18 U.S.C. § 1961(1)(A), (B) & (D). The Government specifically identified seven predicate acts that allegedly showed a pattern of racketeering: 1. The Oklahoma drug conspiracy — a conspiracy during January and February of 1980 to distribute drugs in the Western District of Oklahoma; 2. The Belleville drug transactions— travel between Oklahoma City, Oklahoma and Belleville, Illinois between November 198Ó.and March 1981 with the intent to engage in drug trafficking; 3. Possession of drugs — possession with intent to distribute on July 29, 1981, in Oklahoma City. 4. The Florida drug transactions — travel from Oklahoma City, Oklahoma to Tampa, Florida; Orlando, Florida; and Atlanta, Georgia during March and April of 1982 with the intent to engage in drug trafficking; 5. The Ardmore kidnapping — kidnapping of a victim on April 11, 1982, at a place near Ardmore, Oklahoma; 6. The Fort Smith incident — an arrest at Fort Smith, Arkansas in October 1982 when traveling from Oklahoma City, Oklahoma towards Memphis, Tennessee with money obtained from the sale of controlled substances; and 7. Arson — attempted arson on March 10, 1983, on a house located at 700 S.E. 21st Street in Oklahoma City, Oklahoma. The Government alleged that Messrs. Kil-lip, Adams, Nelson and Teague participated in the Oklahoma drug conspiracy; that Mr. Killip and Mr. Teague were involved in the Belleville transactions; that Mr. Pfaff possessed LSD in Oklahoma City; that Mr. Killip and Mr. Krout engaged in the Florida drug transactions; that Messrs. Killip, Adams, Nelson, Krout and Pfaff participated in the kidnapping; that Mr. Killip and Mr. Krout were guilty of drug trafficking in the Fort Smith incident; and that Mr. Adams attempted to commit arson on the house in Oklahoma City. In count two, the same defendants were charged with conspiracy to violate substantive RICO provisions. The Government incorporated the predicate acts alleged in count one and recited numerous other overt acts that showed the conspiracy. In count three the Government charged Mr. Carrall and Mr. Marr with engaging in a conspiracy to distribute drugs. These charges were based on Mr. Carrall’s and Mr. Marr’s participation in distribution of drugs by members of the Oklahoma City chapter of the Outlaws Motorcycle Club. , Before trial, Mr. Carrall moved for a separate trial under Fed.R.Crim.P. 14, claiming that a joint trial would prejudice his defense. The trial court denied Mr. Carrall’s motion, and Mr. Carrall pleaded guilty. The remaining defendants proceeded tó a jury trial. The jury returned its verdicts on April 18, 1985. It found Messrs. Killip, Adams and Nelson guilty of the substantive RICO violations and Messrs. Krout, Pfaff and Teague not guilty. On the RICO conspiracy charges the jury found Messrs. Killip, Adams, Krout, Nelson, Pfaff and Teague guilty, and on the drug conspiracy charges it found Mr. Marr guilty. The district court entered judgment on the jury verdict and sentenced each of the defendants. Each appealed to this court. I. Facts All defendants either are, or were, members of the Oklahoma City chapter of the Outlaws Motorcycle Club. This club is an international association comprised of local chapters in the United States and Canada, although the members refer to the overall association as a national club. The local chapters are divided into six regions; thus each member is a part of a local chapter as well as a regional and a national organization. Officers at the national, regional and local levels are chosen from the membership of the club. The national club has a constitution that sets forth prerequisites for becoming a member, gives directions for conduct of members and provides for disengagement of members in both good and bad standing. The constitution also permits local chapters to adopt their own guidelines. Thus, the national guidelines are supplemented by local bylaws from each chapter. Becoming a member of the Outlaws involves a three-stage process. First, a prospective member associates himself with the club by becoming a “hangaround” at a local chapter. A hangaround attends chapter parties and must follow all orders given by members. However, he is not permitted to participate in any club meetings and, in fact, is not allowed in the club house during meetings. A hangaround starts on the track to full patchwearing membership by obtaining the sponsorship of a member. Hfe then becomes a “probate.” A probate, like a han-garound, attends chapter parties, follows members’ orders and is not allowed to participate in club meetings. Unlike a han-garound, however, a probate may wear a probationary Outlaw patch and knows that he is on the track to membership. After serving his probationary period, a period determined by the local chapter, a probate will be considered for full patch-wearing membership. The patchwearing members of the local chapter vote on a probate’s admission to the club, and will admit him only if the full patchwearing membership votes unanimously to accept him as a member. Once a member, he has all rights, privileges and responsibilities of a patchwearing member. Each member of the Outlaws is required to attend national runs, to attend funerals and to pay monthly dues. Failure to attend any mandatory run or funeral results in a $100 fine, half of which is payable to the national organization and half of which is payable to the local chapter. If a member fails to pay fines or monthly dues, the chapter can require him to relinquish the title to his motorcycle. Continued delinquencies result in the sale of the motorcycle. Because membership in the club requires ownership of'a motorcycle (American-made), a member'whose motorcycle is sold is demoted to probate status. While the national or regional levels of the club sponsor runs, local chapters frequently sponsor parties to increase the camaraderie of members and to encourage others to join the club. Members, probates and hangarounds always attend these parties. In addition, members may invite other guests. Typically the parties are held in secluded areas to avoid interference from outsiders. Security guards are positioned at the perimeter of the party to watch for uninvited guests and to insure that no one leaves until the party is over — usually the next morning. When party-goers do leave, they go a few at a time to avoid attracting attention. The waiting requirement also protects a guest who has consumed large portions of alcohol and other drugs at the party from the dangers associated with riding a motorcycle while under the influence. Before a local chapter is admitted to the Outlaws Motorcycle Club, it must serve a probationary period. Messrs. Killip, Nelson, Carrall and four other men formed the Oklahoma City probationary chapter in 1979, and it received its charter at a national run on October 31, 1979, after meeting all the requirements set forth in the national constitution. It is the activities of the Oklahoma City chapter and its individual members that form the basis for the seven predicate acts that the Government claims support the defendants’ convictions. We must review whether the evidence is sufficient to establish these predicate acts in a light most favorable to the Government, and “all reasonable inferences and credibility choices must be made in support of the jury’s verdict.” United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Beginning sometime in December 1979, Outlaws from Florida made frequent trips to Oklahoma to deliver drugs. During January and February of 1980, the Oklahoma City chapter had frequent chapter meetings to discuss prices for and means of distributing these drugs. In addition, members would occasionally discuss additional sources for drugs. These meetings form the basis for the alleged Oklahoma drug conspiracy. Messrs. Killip, Adams, Marr, and Nelson were present at these* meetings, but Mr. Teague was only a probate at the time, and as such he was not permitted to attend chapter meetings. Thus, Mr. Teague did not participate in the Oklahoma drug conspiracy. ' Mr. Teague was, however, involved in the Belleville drug transactions. Undercover agents had arranged to purchase a one-thousand-tablet lot of LSD from Sheila Darlene Nichols. On November 26, 1980, they were in her house in Belleville, Illinois, when Mr. Killip and Mr. Teague arrived on the scene. Mr. Teague was carrying a brown paper bag, and Ms. Nichols took the two defendants into a bedroom, where the contents of the paper bag were poured on the bed. The agents saw the tablets and identified them as the same tablets that were later sold as, and confirmed to be, LSD. Mr. Killip also made subsequent deliveries of LSD to Ms. Nichols on December 5, 1980, and March 28, 1981. On July 29, 1981, Mr. Pfaff and another man were arrested for driving under the influence of alcohol. After taking the two men to the police station in a scout car, the arresting officer searched the car and found a small bottle underneath the rear seat containing, chemical analysis later revealed, LSD. Mr. Pfaff subsequently was convicted in state court for possession of LSD. The Florida drug transactions began in March 1982 when, as former Outlaw, William Edward Gorman, testified, he, Mr. Kil-lip and Mr. Krout traveled to various cities in Florida. While in Tampa, the three men visited the home of the Tampa chapter president, Tony Harrell Wilson, where they “snorted” cocaine. Mr. Killip, Mr. Krout, and Mr. Gorman were all present when Mr. Harrell was arrested on March 9, 1982. After leaving Florida, Mr. Gorman and Mr. Killip engaged in further drug activities in Atlanta. On April 11, 1982, the Oklahoma City chapter had a party outside Ardmore, Oklahoma. Maria Elizabeth Higgins and her escort were admitted to the party as invited guests. They were enjoying the party until Ms. Higgins mentioned the name of a well-known government informant. The atmosphere immediately became very tense, and Mr. Killip ordered that Ms. Higgins and her escort would not be permitted to leave the party. When Ms. Higgins attempted to sneak away, Mr. Killip beat her severely and ordered Mr. Gorman to confine her to a tent. Guards were posted outside the tent, and numerous Outlaws participated in a gang-rape of Ms. Higgins. While the testimony is unclear as to who participated in the kidnapping and rape, Messrs. Killip, Adams, Krout, Nelson and Pfaff were clearly present. Furthermore, as members of the club, Messrs. Adams, Krout, Nelson and Pfaff were required to enforce Mr. Killip’s order forbidding Ms. Higgins and her escort from leaving the party. Based upon the circumstances, the jury apparently inferred that these men either committed or agreed to commit the kidnapping. Seven months later, on October 27, 1982, Mr. Killip and Mr. Krout, who were carrying $2199 in cash, were arrested in Fort Smith, Arkansas. The cash was payment for cocaine that an Outlaw named Mendot-ta had fronted to Mr. Killip at a regional run in Oklahoma. Even though the charges in connection with this incident were dismissed, the jury could conclude that Mr. Killip and Mr. Krout had transported money in interstate commerce to repay a debt created by a drug transaction. The final predicate offense was the attempted arson on the Oklahoma City club house. The owner of the house rented it to Mr. Adams, apparently believing it would be used as a family residence. When she checked on the house, she discovered it had been converted into an Outlaws’ club house. The windows were boarded up, with only slits left as peepholes; a bar had been set up in the dining room; a motorcycle ramp rested on the front porch where motorcycles were parked; and mattresses covered the floors. The owner expressed her disapproval and threatened to evict Mr., Adams. Mr. Adams displayed his Outlaws tattoos and proclaimed that he was an Outlaw and that the owner had no right to talk to him in that manner. He then threatened to burn the house down and claimed that he had connections at the courthouse that would “take care of everything.” On March 10, 1983, after the Outlaws had abandoned the house, the owner returned with a police officer. All the doors wereHocked, and the owner did not have the key to the locks. When they found an open window, the owner and the police officer smelled gas coming from the kitchr en. Upon examination, they saw that the gas knobs on the stove had been removed and a continuous stream of gas was flowing1 from the connection. The police officer, who felt the condition of the house was extremely dangerous, immediately called the fire department and cleared the area of all residents. The jury apparently concluded that the Outlaws had attempted to destroy the house. Before trial, the Government used the above information to obtain a grand jury indictment. After the indictment was returned, the Government sought a search warrant allowing it to search the Oklahoma City chapter club house for indication of membership in the Outlaws Motorcycle Club. The affidavit in support of the warrant was signed by an FBI agent who had been involved in the investigation of illegal activities by the club. The affidavit identified the defendants, explained that they kept various indicia of club membership at the club house, and set forth in greaI~'detail many of the facts underlying the indictment. The court is~ued a search warrant, which was executed on February 12, 1985. During execution of the warrant, officers seized-and the Government subsequently presented in evidence-guns, wearing apparel, flags, a police scanner and assorted papers, including club mottos, mailing lists, house rules and Christmas cards. The validity of the search warrant, called an mdi-cia warrant because it sought indicia of membership, was challenged in the trial court; but the court overruled defendants' objections. II. Issues on Appeal The defendants raisb four issues on appeal. First, Mr. Marr claims that even though he did not move for a separate trial, the trial court should have ordered a separate trial. Second, Mr. Krout and Mr. Teague argue that their convictions cannot stand because the Government has not presented any evidence showing that they committed or agreed to commit at least two predicate acts. Third, Messrs. Killip, Adams, Krout and Nelson contend that tl~e Government has not shown any connection between the illegal acts by individual defendants and the alleged RICO enterprise, the Outlaws Motorcycle Club. Finally, Messrs. Killip, Adams, Krout, Marr and Nelson claim that the indicia warrant was invalid and the evidence obtained pursuant to the warrant should have been suppressed by the trial court. A. Severance Mr. Marr did not ask for severanàe in the trial court; rather, he contends that a joint trial was so prejudicial that the trial court was required to sever his trial. Join-der is clearly proper under Fed.R.Crim.P. 8(b), because the Government alleged that Mr. Marr had "participated in the same series of acts or transactions" as the other defendants. Thus, Mr. Marr can only obtain a separate trial under Fed.R.Crim.P. 14, and the Government argues that he has waived that right. Since Mr. Marr did not seek severance in the trial court, he has waived the issue unless he can show that actual prejudice~ resulted from the joint trial. United States v. Butler, 792 F.2d 1528, 1534 (11th Cir.), cert. denied, - U.S. -, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986); United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir.1982); see also United States v. Panza, 750 F.2d 1141, 1149 (2d Cir.1984) (defendant "waived any right he might have had to a severance under Fed.R.Crim.P. 14 by failing to request it before trial"); United States v. Cyr, 712 F.2d 729, 735 n. 4 (1st Cir.1983) ("A motion for severance must be made prior to trial ... or it is waived . . Fed.R.Crim.P. 12(b)(5) (motion to sever must be raised prior to trial). Mr. Marr has not shown actual prejudice and, thus, is not entitled to a separate trial. B. Substantial Evidence of Predicate Acts Mr. Krout and Mr. Teague were acquitted of any substantive RICO violations, but were convicted on the RICO conspiracy charges. They now contend that the Government did not produce evidence of their commission of, or agreement to commit, at least two predicate acts, as is required for a RICO conspiracy conviction. While admitting that the circuits are split on the issue of whether the defendant must agree to personally commit two predicate acts or merely agree to the commission of two predicate offenses by any conspirator, compare United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984) and United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983), with United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, - U.S. -, 107 S.Ct. 421, 93 L.Ed.2d 371, cert. denied, - U.S. -, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986); Unit ed States v. Joseph, 781 F.2d 549, 554 (6th Cir.1986); United States v. DiDonato, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, — U.S. —, 106 S.Ct. 275, 88 L.Ed.2d 236 cert. denied, — U.S. —, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985); United States v. Tille, 729 F.2d 615, 619 (9th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93, cert. denied, 469 U.S. 848, 105 S.Ct. 164, 83 L.Ed.2d 100 (1984), and United States v. Carter, 721 F.2d 1514, 1531 (11th Cir.), cert. denied, 469 U.S. 819, 105 S.Ct. 89, 83 L.Ed.2d 36 (1984), the Government argues that it need only show that the defendants have agreed to the commission of at least two acts by any conspirator. This court has not decided the issue, but because of the trial court’s instructions in this case, we do not reach it here. The court instructed the jury that to establish a RICO conspiracy the Government was required to show three elements: (1) a conspiracy was formed to participate in RICO activities; (2) the defendant agreed to join the conspiracy; and (3) one or more of the conspirators committed at least one overt act. The specific instructions on the second element read: [The Government must prove that] a defendant, by his words or actions, objectively manifested an agreement to willfully participate, directly or indirectly, in the affairs of the enterprise through the commission of two or more offenses which make up the pattern of racketeering activity in this case, that is, kidnapping, attempted arson, travel in interstate commerce related to controlled substances in violation of federal laws, possession of controlled substances with intent to distribute in violation of federal law, and conspiracy to distribute controlled substances in violation of federal laws. Record, vol. 2, at 467-68 (emphasis added). The court further clarified: With regard to the second element, you may find that the defendant agreed to participate in the affairs of the enterprise through a pattern of racketeering activity if you find that he agreed personally to commit two or more racketeering acts to further the affairs of the enterprise. You need only find that he agreed to commit these acts; you need not find that he actually committed them. Id. at 468 (emphasis added). Thus, the law of this case is that a defendant cannot be convicted of the RICO conspiracy charge unless he “agreed personally to commit two or more racketeering acts.” Consequently, we must review Mr. Krout’s and Mr. Teague’s cases to determine whether the Government has shown that each personally committed or agreed to commit two or more predicate acts. 1. Mr. Teague Mr. Teague was named in only two predicate acts: (1) the Oklahoma drug conspiracy, and (2) the Belleville drug transactions. He admits that the Government produced substantial evidence to show his involvement in the Belleville drug transactions, but claims it has not shown that he personally agreed to participate in the Oklahoma drug conspiracy. The Government’s evidence shows that the Oklahoma City chapter held meetings during January and February of 1980, and that in those meetings members of the chapter discussed distribution of drugs. However, the witnesses who testified about those meetings also testified that Mr. Teague was only a hangaround at the time, and that hanga-rounds are not allowed to attend any club meetings. Thus, Mr. Teague could not have joined the conspiracy through his attendance at the meetings. Furthermore, the Government produced no other evidence of Mr. Teague’s participation in the Oklahoma drug conspiracy. Thus, the Government did not supply any evidence showing that Mr. Teague participated in the Oklahoma drug conspiracy. Under the law of this case, the Government has not presented substantial evidence to support Mr. Teague’s RICO conspiracy conviction and it must be reversed. 2. Mr. Krout The indictment named Mr. Krout'in three predicate acts: (1) the Florida drug transactions; (2) the Ardmore kidnapping; and (3) the Fort Smith incident. Mr. Krout does not challenge the evidence on the Florida drug transactions, but claims that the evidence on the other two events is insufficient. Because the evidence is sufficient to support the Fort Smith incident as a predicate act, we need not reach the Ardmore kidnapping. Mr. Krout argues that, since the charges were dismissed, his participation in the Fort Smith incident cannot be used to support his RICO conspiracy conviction. However, his conviction does not turn on whether the charges filed in 1982 were dismissed, but on whether the Government has provided substantial evidence showing that Mr. Krout did engage in interstate transportation of drug money. The evidence is more than sufficient to support such a finding. It indicates that Mr. Killip and Mr. Krout were traveling from Oklahoma to Tennessee, via Arkansas, and that they delivered drug money to Mendotta. Thus, the Government has presented sufficient evidence to support Mr. Krout's conviction on the RICO conspiracy chargr. C. Nexus Between Illegal Acts and the RICO Enterprise Messrs. Killip, Adams, Krout and Nelson admit that the Government has shown illegal acts by individuals and that those individuals are or were members of the Outlaws Motorcycle Club, but they claim that the Government has not shown any connection between the illegal acts and the alleged RICO enterprise, the Oklahoma City chapter of the Outlaws Motorcycle Club. Essentially, the claim is that the evidence is not sufficient to show a connection between the illegal acts and the club. As with all sufficiency of the evidence questions, we must review the evidence in a manner most favorable to the• Government's position. Dickey, 736 F.2d at 581. In order to uphold the finding of a nexus between the illegal acts and the alleged RICO enterprise, the Outlaws Motorcycle Club, we need only find a relation between the predicate offenses and the affairs of the enterprise. Carter, 721 F.2d at 1527. In Carter, a dairy farm was used to facilitate distribution of drugs. The defendants used land on the dairy both as an airstrip and as a stash house for drugs. Farm employees assisted in the drug smuggling. No evidence showed that the farm actually benefited from the drug s~muggling activities; rather, the court concluded that use of the farm facilities in the drug smuggling was sufficient to provide a nexus between the illegal acts and the farm. Id. Similarly, the club facilitated the defendants' drug activities. Defendants do not argue that the club did not assist in the drug distribution; rather, they argue that the club did not benefit from the drug distribution. This misinterprets the nexus requirement. The Government need only show that the club facilitated the illegal activities. The club furnished connections in Florida who provided drugs to Oklahoma City club members who wished to profit from selling drugs. Furthermore, Mr. Kil-lip, as president of the chapter, decided who was and who was not allowed to sell drugs in Oklahoma City. Finally, at some of the chapter meetings, the price of drugs was discussed. The Outlaws Motorcycle Club played an important role in the predicate acts involving drug transactions. In fact, the jury could have inferred that some of the predicate acts actually benefited the club. Although we need not decide whether Mr. Krout participated or agreed to participate in the kidnapping, we have no doubt that the requisite nexus existed between that predicate act and the illegal enterprise. The Government argues that the kidnapping was a sign to everyone of what would happen to those who attempted to hinder the activities of the club. Ms. Higgins was kidnapped and beaten only after she mentioned a well-known government informant. Thus, concludes the Government, the activities were a sign of the consequences of becoming a government "snitch." In addition, many government witnesses testified that they would not disclose where they were li$ng, because they were afraid the Outlaws would seek their lives. When that evidence is combined with the Outlaws motto: "God forgives, Outlaws don't," the jury is justified in reaching the conclusion that the kidnapping was meant to protect the illegal activities of the club. Altogether, the evidence indicates that anyone who impeded the Outlaws’ activities would have to pay. The Government also argues that the attempted arson benefited the club. The threats made by Mr. Adams intimidated the owner of the house and could have resulted in her allowing the Outlaws to stay in the house. When this did not work, the Outlaws apparently planned to destroy the house. Essentially, this attitude of “if we can’t have it, no one can” showed that the members of the club, were willing to go to great lengths to maintain their organization — even to illegal acts such as arson. Given the evidence in this case, we conclude the jury could reasonably find a nexus between the illegal acts and the club. D. Validity of Indicia Search Warrant Finally, Messrs. Killip, Adams, Krout, Marr and Nelson claim that the search warrant allowing the Government to search for indicia of membership in the Outlaws Motorcycle Club was invalid. Their argument is based on United States v. Rubio, 727 F.2d 786 (9th Cir.1983). In that case a federal magistrate had issued an indicia warrant authorizing the search for, and seizure of, “indicia of membership in or association with the Hell’s Angels.” The affidavits in support of those warrants stated the types of indicia customarily kept by members and associates of the Hell’s Angels Motorcycle Club, indicated specific facts showing each individual’s membership or association with the club and informed the magistrate that a grand jury indictment charging the defendants with RICO violations had been returned. Id. at 794. In reviewing the affidavit, the Ninth Circuit stated: [Virtually all of the items described in the search warrants were “mere evidence.” Therefore, in addition to examining the warrants for probable cause to believe the evidence sought would be found in the places described in the warrants, see United States v. Flores, 679 F.2d 173, 175 (9th Cir.1982), we must also examine the warrants for probable cause to believe there was a connection between the evidence sought and a violation of the RICO statute. Rubio, 727 F.2d at 793. - The court then found that the magistrate had no basis for finding probable cause to believe that the evidence sought would show a violation of the RICO statute. The only basis for finding such probable cause was that an indictment had been returned by a grand jury. The court concluded that it was the magistrate’s obligation to determine whether the facts showed probable cause of RICO violations, and that the grand jury indictment alone was not sufficient to show probable cause. Thus, the warrant was invalid. Id. at 794-95. The affidavit in the present case is different from the one in Rubio. The affidavit here does not simply state that an indictment has been returned; rather, it lists facts from the indictment that tend to support the conclusion that the Outlaws Motorcycle Club is a RICO enterprise and that association with that enterprise may be illegal. The facts given provide a magistrate with probable cause to believe such connection exists. As a result, the missing element in Rubio, probable cause to believe that the evidence sought is connected with a violation of the RICO statute, is present in this case. The indicia warrant is valid, and thus, the evidence obtained pursuant to that warrant is admissible. III. Conclusion Our review of this case shows that Mr. Teague’s conviction should be reversed, and the other convictions should be affirmed. Mr. Marr waived his right to a separate trial and has not shown any actual prejudice resulting from the joint trial. The Government presented sufficient evidence to show that Mr. Krout committed or agreed to commit at least two predicate acts and to show a nexus between the illegal acts and the Outlaws Motorcycle Club. Finally, the magistrate who issued the indicia search warrant had probable cause to issue the warrant. Only Mr. Teague, who has, shown that the Government did not show his participation in two predicate acts, provides grounds for reversal of his conviction. Accordingly, Mr. Teague’s conviction is REVERSED, and the other defendants’ convictions are AFFIRMED. . We did not hear oral arguments in Mr. Pfaffs , case and thus delay disposition of his case until oral arguments have been heard. Although docketed and processed as companion cases, we have concluded to order them consolidated (except for Mr. PfafFs appeal) for purposes of opinion and disposition.

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

PROPAK CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 76-2292. United States Court of Appeals, Sixth Circuit. Argued June 6, 1978. Decided June 30, 1978. Robert L. Larson, Keith Ashmus, Thompson, Hiñe & Flory, Cleveland, Ohio, for petitioner. Elliott Moore, Norman Moscowitz, Deputy Associate Gen. Counsel, N.L.R.B., Marion Griffin, Washington, D. C., William E. Caldwell, Acting Regional Director, Region 10, N.L.R.B., Atlanta, Ga., for respondent. Before CELEBREZZE, LIVELY and KEITH, Circuit Judges. PER CURIAM. Propak Corporation has petitioned for review of an order of the National Labor Relations Board and the Board has filed a cross-application for enforcement. The order is reported at 225 NLRB No. 160 (1976). The Board found that Propak violated Section 8(a)(1) of the National Labor Relations Act, as amended, by coercively interrogating employees concerning union activities and the Board’s investigation of complaints against the company. Upon consideration of the entire record the court concludes that these § 8(a)(1) findings are supported by substantial evidence. The Board also found that Propak violated Section 8(a)(3) and (1) of the Act by discharging the employee Ganues for his union activities. Ganues was employed in July 1972 and performed well, receiving several raises and promotions. He had a “nervous breakdown” in August 1974 and was required to take sick leave. After returning to work, Ganues had difficulty performing jobs to which he was assigned. This necessitated his removal from several jobs and transfers to others. His discharge took place on the Monday following an event the preceding Thursday where an operation assigned to Ganues was left unattended, resulting in a costly spillage of materials. The administrative law judge found that during the last several months of Ganues’ employment Propak “might well have had adequate grounds to discharge Ganues for cause on at least two or three different occasions.” He concluded, however, that the actual motivation for the discharge was union activity by Ganues. The administrative law judge based this conclusion on his finding that union activity which Ganues engaged in over the week-end following the “spill” became known to the company on the morning of the discharge. This finding was based upon several inferences, but there was no direct evidence that the company officials who made the determination to discharge Ganues prior to 8:45 on Monday morning had in fact been informed of his most recent union activities. These officers testified that they did not know of this activity and that the discharge resulted from a period of unsatisfactory performance by Ganues, culminating in the serious incident of the previous Thursday. Upon consideration of the entire record we conclude that there is not substantial evidence to support a finding that Ganues was discharged because of his union activities. The Board’s General Counsel had the burden of proving that the discharge was impelled by a discriminatory or anti-union motive. N.L.R.B. v. Howell Automatic Machine Co., 454 F.2d 1077, 1080 (6th Cir. 1972). The evidence and the inferences properly drawn from it do not demonstrate that the company had knowledge of the latest union activities of Ganues prior to discharging him. See N.L.R.B. v. Armitage Sand & Gravel, Inc., 495 F.2d 759 (6th Cir. 1974). On the other hand, company officials had known of his earlier union activities and had made no effort to interfere. The record does not support a finding that the actual impelling motive for the discharge of Ganues was to punish him for his union activities of the previous week-end. N.L.R.B. v. Stemun Mfg. Co., 423 F.2d 737, 741 (6th Cir. 1970). Enforcement is denied with respect to the Section 8(a)(3) violation, paragraphs 2.(a) and (b) of the order. Enforcement is granted as to the Section 8(a)(1) violations, paragraphs 1. and 2.(c) of the order. No costs allowed.

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"?

Gerald Lee GRIFFIN and Elizabeth Griffin, his wife, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff-Appellee, v. MATSON TERMINALS, INC., Third-Party Defendant-Appellant. No. 73-2811. United States Court of Appeals, Ninth Circuit. April 2, 1975. Robert Y. Holland (argued), Seattle, Wash., for appellants. Wm. E. Gwatkin, III (argued), Dept, of Justice, San Francisco, Cal., for appel-lee. . “The Contractor shall be . responsible for, and hold the Government harmless from, bodily injuries . . . occasioned either in whole or in part by the negligence or fault of the Contractor, his officers, agents, or employees in the performance of work under this contract. The Contractor shall not be responsible to the Government for and does not agree to hold the Government harmless against loss or damage to property or bodily injury to or death of persons if: (i) the unseaworthiness of the vessel or failure or defect of the gear or equipment furnished by the Government contributed jointly with the fault or negligence of the Contractor in causing such damage, injury or death, and the Contractor, in his officers, agents, and employees, by the exercise of due diligence, could not have discovered such unseaworthiness or defect of gear or equipment, or through the exercise of due diligence could not otherwise have avoided such damage, injury, or death . . OPINION Before CHOY and GOODWIN, Circuit Judges, and BURNS, District Judge. PER CURIAM: Matson Terminals appeals a judgment of liability under an indemnity contract with the United States, owner of a vessel on which a longshoreman was injured. We affirm. Gerald Griffin, a longshoreman employed by Matson, was loading lumber aboard the USNS “Lt. Robert Craig” on February 19, 1969. While climbing up a ladder from a ship hold, he sustained an eye injury when struck by an unidentified falling object. Griffin’s action' against the United States for unseaworthiness was dismissed by the district court. This court reversed, determined that the ship was unseaworthy, and remanded for computation of damages and resolution of the indemnity claim. Griffin v. United States, 469 F.2d 671 (9th Cir. 1972). The indemnity contract sets two conditions to Matson’s liability. First, a Matson employee must have been negligent. Second, unseaworthiness of the ship must have been discoverable, or the injury otherwise avoidable, through the exercise of due diligence by Matson. Taking no new testimony, relying instead on the trial transcript, the district court on remand held Matson liable under the indemnity agreement. The court concluded that one of Griffin’s fellow workers, Reihing, had negligently caused the object to fall, but made no formal finding of fact to this effect. No formal or informal finding on due diligence was made. Any error in the trial court’s failure to make a designated Rule 52 (F.R. Civ.P.) finding of fact that Reihing was negligent was harmless. Boutte v. M/V Malay Maru, 370 F.2d 906, 907 (5th Cir. 1967). The record discloses that critical determination in the judge’s explicit statement during the trial. See generally, Dann v. Studebaker-Packard Corp., 288 F.2d 201, 205-206 (6th Cir. 1961); Graham v. United States, 243 F.2d 919, 923 (9th Cir. 1957). Applying the clearly erroneous standard, we affirm the trial court’s informal finding of negligence. Reihing had a duty to exercise reasonable care for the safety of his fellow employees. See, Arista Cia. DeVapores, S.A. v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). Reihing did not look beneath his feet while climbing up the ladder, a failure that the trial court could plausibly conclude was a breach of his duty. Matson’s liability to the United States depends also on its failure to exercise due diligence. Although the trial court made no finding on this point, in an opinion or elsewhere in the record, reversal is not required. Since Reihing’s negligence sent the unidentified object falling and caused the injury, the accident would not have occurred if Matson, acting through its agent Reihing, had observed a proper standard of care. Conversely, Matson, again through its agent Reihing, could have prevented the accident by the exercise of due diligence, assuming that the agent’s and Matson’s standards of care are congruent. In Arista Cia., supra, this court held, in effect, that a longshoreman’s duty of care was equivalent to his employer stevedore’s implied warranty of workmanlike service. That equivalence is particularly appropriate here, where the longshoreman’s negligence was in failing to watch out for debris on the ladder, precisely the condition of unseaworthiness Matson should have discovered. In these circumstances, the trial court’s failure to make findings as to Matson’s due diligence is therefore harmless error. Affirmed. Honorable James M. Burns, United States District Court for the District of Oregon, sitting by designation. . Matson’s negligence and the ship’s unseaworthiness are not mutually exclusive. “An unseaworthy condition that causes no damage until brought into play by the negligence of a longshoreman employed by the stevedore is nonetheless an unseaworthy condition in the workman’s action against the shipowner. E. g., Alaska Steamship Co. v. Garcia, 378 F.2d 153 (9th Cir. 1967).” Griffin v. United States, 469 F.2d 671, 672 (9th Cir. 1972). On the previous appeal, this court held that the ship was unseaworthy because dangerous debris had accumulated in a place from which it could fall and injure someone. . The court made a determination of the amount of plaintiff’s damages as required by the remand. . “Also, I find that there was negligence on the part of the fellow employees [sic], who obviously stepped and kicked something down, —that is what he said he did, anyhow, stepped on something and caused it to fall down the escape hatch shaft, and struck Mr. Griffin in the eye.” R.T. 168-169. “Well, I conclude that there was something that fell, and that Reihing caused it to fall, I have already told you that, and that it was his fault that it fell. I have already made up my mind on that.” R.T. 209.

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?

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 second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

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

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

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael MARTINEZ, Defendant-Appellant. No. 74-1227. United States Court of Appeals, Tenth Circuit. Dec. 16, 1974. Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M., for plaintiff-appellee. Jack L. Love, Federal Public Defender, Albuquerque, N. M., for defendant-appellant. Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges. PICKETT, Circuit Judge. Thomas Michael Martinez was charged in a single count indictment with possession of a quantity of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Pretrial motions attacking the validity of the statute and the indictment were filed. There was also a motion to suppress a quantity of marijuana seized in an alleged unlawful search. These motions were all denied. The case was then submitted to the court without a jury upon a stipulation of facts including the use of the evidence offered by the parties at a hearing on a motion to suppress. The court found Martinez guilty and sentenced him to five years probation. The constitutionality of 21 U.S.C. § 841(a)(1) is attacked on the ground of vagueness insofar as it charges an offense, with intent to distribute a controlled substance. With reference to a. similar argument, the constitutionality of the section was discussed by this court in United States v. King, 485 F.2d 353, 357 (10th Cir. 1973), where it was said: [T]hat § 841(a) is constitutionally deficient because it fails to state “how much” of the controlled substance is necessary to permit the inference that the possessor had an intent to distribute. We deem this argument of the alleged vagueness of the statute to be without merit. The statute clearly, and without vagueness, makes unlawful the possession of any controlled substance with an intent to distribute. The question as to the quantity which would permit the inference that the possessor had an intent to distribute is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case at hand, and mention thereof in the statute is entirely unnecessary. The King case also disposes of the contention that 21 U.S.C. § 841(b)(4) is unconstitutionally ambiguous because that section provided that the distribution of a small amount of marijuana without remuneration shall be treated as provided in another section of the statute. As in the King case, the indictment in this case, in clear and concise language, charges an offense under § 841(a)(1), not § 841(b)(4). Our research has disclosed no cases holding that the statute is unconstitutional or that a similar indictment is insufficient. A more serious question is whether the recovery of the marijuana thrown from the Martinez car resulted from an unlawful search. The recovery was made by an officer of the United States Border Patrol about fifteen miles from the border between Mexico and the State of New Mexico. The trial court held that the seizure of the marijuana was not the result of a “roving search” as condemned in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). We agree. At about 6:30 in the evening of December 8, 1973, a border patrol officer, while patrolling a road west of Columbus, New Mexico, along the Mexican border, was notified over the patrol radio system by an inspector at the established port of entry facilities located near Columbus that a small light blue car with a taillight missing, driven by a female, was about to pick up a “load.” The term “load” was used to designate aliens unlawfully in the United States. Shortly thereafter the officer observed an automobile of that description about IV2 miles from the border proceeding easterly on the border road toward the town of Columbus. He followed the vehicle into the westerly edge of Columbus, where it turned onto another road leading northward to Deming, New Mexico, thereby avoiding the port of entry at Columbus. Between 10 and 20 miles north of Columbus the vehicle turned off the road and stopped in a wide parking space. The patrolman also stopped and approached the Volks wagon station wagon where he requested identification papers of the occupants. Martinez produced his driver’s license and stated that he was an American citizen. The female stated that she was born in Japan but was an American citizen; After observing that the back portion of the station wagon was empty, the officer saw that the space between the front and back seats was filled with something covered by a blanket. There was room in that space where two or three humans could be hidden under the blanket. The officer lifted the blanket to ascertain if there were any persons hidden there. He found that the space was filled with suitcases and clothing. Martinez quickly entered the vehicle and drove away. Within a short distance the patrolman observed a leather bag thrown from the window of the car, which he recovered, and found that it contained a substantial amount of marijuana. Martinez later returned to the same place where he and the patrol officer had formerly met and he was placed under arrest. We think that the patrol officer’s conduct here was well within his right to approach Martinez and investigate the possibility that a crime was being committed. In United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973), a border patrol officer stopped an automobile within 100 miles of the border to determine if aliens illegally in the United States were being transported in the vehicle driven by Bowman. While in the process of making inquiry, the experienced patrolman detected the odor of marijuana and proceeded to search the car. This court held that the initial stopping of the car was not a violation of constitutional rights and that after the stop, the smell of marijuana constituted probable cause to make the search. The court said: Immigration officers are authorized under 8 U.S.C. § 1357(a)(1) to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” The constitutionality of this provision has been consistently upheld. Fernandez v. United States, 9 Cir., 321 F.2d 283; United States v. Correia, 3 Cir., 207 F.2d 595; United States v. Mon-tez-Hernandez, E.D.Cal., 291 F.Supp. 712. The brief detention of a motorist for the purpose of determining his nationality has also been upheld without resort to this statutory provision. Contreras v. United States, 9 Cir., 291 F.2d 63. While the Almeida-Sanchez decision refers to 8 U.S.C. § 1357(a) generally, it is clear from both the reasoning and language of the majority opinion that it is the limitations of 8 U.S.C. § 1357(a)(3) specifically which are brought into question, for only that subsection authorizes the search and seizure which the Court found constitutionally impermissible under the facts of that ease. We therefore do not read the Court’s decision as challenging the right of immigration officials to make routine inquiries as to an individual’s nationality. (487 F.2d at 1231) The Ninth Circuit disagrees with the Bowman decision, believing that it is inconsistent with the Almeida-Sanchez decision. See United States v. Brignoni-Ponce, 499 F.2d 1109 (1974). We do not, however, construe Almeida-Sanchez as designed to strip border patrol officers of all authority under statute 8 U.S.C. § 1357(a) to briefly detain and interrogate those suspected of illegal entry, and to make a reasonable investigation for reasons not reaching the level of probable cause for the purpose of ascertaining their citizenship status and their right to remain in the United States. Nor do we think that the decision has any effect on the right of an officer of the law in the course of his duties, under appropriate circumstances, to approach and question persons as to possible crimes, even though there are insufficient grounds at the time for an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Nevarez-Alcantar, 495 F.2d 678 (10th Cir. 1974); United States v. Granado, 453 F.2d 769 (10th Cir. 1972); United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971). The record discloses that in the instant case the border patrol officer was one of long experience in border patrol activities. For the past four years he had been assigned to the border near Columbus, New Mexico. That area had been particularly plagued with unlawful entries into the United States. Thousands had been arrested there, including more than 1,000 by the officer over the last four years. At the time that he first observed the Martinez car he was patrolling the road paralleling the border, which was about IV2 miles away. He had received notice to be on the lookout for that car. After following it to a point where it stopped, he made a routine check as to the citizenship of the occupants and observed from the outside the visible contents of the vehicle. Aside from the lifting of the blanket, no search was made, and the flight of Martinez and his attempt to dispose of the marijuana in his possession were his own voluntary acts. Under the circumstances, there was no violation of Martinez’ Fourth Amendment rights. Other assignments of error have been considered and found to be without merit. 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?

In the Matter of GREENE COUNTY HOSPITAL, Debtor. PATH-SCIENCE LABORATORIES, INC. and its successor and assigns, Sergio G. Gonzalez MD PA, Plaintiff-Appellant, v. GREENE COUNTY HOSPITAL, Defendant-Appellee. Nos. 86-4504, 86-4507. United States Court of Appeals, Fifth Circuit. Jan. 14, 1988. Rehearing and Rehearing En Banc Denied Feb. 19,1988. C. Everette Boutwell, Laurel, Miss., for plaintiff-appellant. Robert A. Byrd, Biloxi, Miss., for defendant-appellee. Before GOLDBERG and JOHNSON, Circuit Judges. Due to his death on October 19, 1987, Judge Robert Madden Hill did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d). GOLDBERG, Circuit Judge: To every thing there is a season. Ecclesiastes, 3.1. It isn’t over till it’s over. In re Moody (Smith v. Revie), 817 F.2d 365 (5th Cir.1987) (quoting Yogi Berra). A paradox of appellate jurisdiction is that the season begins only after the game has ended. In baseball, it is easy to tell when the game is over. In bankruptcy, Title 11 of the United States Code not only changes the rules of the game, it reshapes the concept of game. This case requires us to explore this new definition of the term “game,” and then to redefine its end accordingly. Dr. Gonzalez challenges the district court’s determination that Chapter 9 of the Bankruptcy Code confers jurisdiction over the reorganization of an unincorporated municipal hospital on the bankruptcy court. We cannot reach this question because we lack subject matter jurisdiction. 28 U.S.C. § 158 limits circuit court jurisdiction to “final” orders of district courts. A district court’s remand, affirming a bankruptcy court’s determination that it has subject matter jurisdiction, is simply not a final order, even under the more liberal definition of the word “final” used in bankruptcy appeals. To find otherwise would allow piecemeal and dilatory appeal of inconsequential decisions while the strains of the Star Spangled Banner still echo. We therefore affirm the order of the district court. I. Facts A. The Lineup Plaintiff: Sergio Gonzalez, MD PA is the assignee of Path-Science Laboratories, Inc. a laboratory which provided diagnostic services to Greene County Hospital (the “Hospital”). Plaintiff holds a past due promissory note payable by the Hospital in the principal amount of $67,316.60. Defendant: Greene County Hospital is an unincorporated unit of Greene County Mississippi (the “County”). The Hospital is governed by a Board of Trustees (the “Trustees”), appointed by the Greene County Board of Supervisors (the “Board of Supervisors”). The County purchased the land for the Hospital in 1948 and soon thereafter built the facility at an original cost of $150,000. The Hospital was expanded in 1976, and in 1984 the Board of Supervisors authorized a construction contract to build a $1,027,000 addition to the Hospital. The Hospital, built with funds from the sale of revenue bonds, is county owned. Greene County is located in southeastern Mississippi. Of the County’s 9,000 residents, 23% are unemployed and 78% receive some form of public assistance. The Hospital is the second largest employer in the County, second only to the school system. Nonetheless the Hospital has not received any operating funds from the County since 1982, and has been functioning in the nature of a charity hospital for a number of years. Not surprisingly, the financial condition of the Hospital has deteriorated substantially. Hospital revenues cannot satisfy the Hospital’s debt load. Faced with imminent levy and execution by creditors, the Hospital has sought reorganization under Chapter 11 of the Bankruptcy Code. B. The Pitch Dr. Gonzalez filed a motion to dismiss the Hospital’s Bankruptcy petition, contending that the Hospital is not eligible to file for bankruptcy. The Bankruptcy Court held that the Hospital was not eligible to file under either Chapter 11 or Chapter 7 of the Bankruptcy Code but that it was eligible to file under Chapter 9 of the Code, which covers adjustment of debts of municipalities. Plaintiff appealed the judgment of eligibility to the United States District Court for the Southern District of Mississippi. Judge Russell affirmed the Bankruptcy Court. Plaintiffs now appeal to the court challenging the jurisdictional determination of both the district court and the bankruptcy court. II. Discussion Neither plaintiff nor defendants raised the issue of this court’s jurisdiction to hear this appeal, but federal courts must satisfy themselves as to their own subject matter jurisdiction. We are convinced that a bankruptcy court’s determination that it does have subject matter jurisdiction over a case is not a final order. Jurisdiction over appeals from bankruptcy courts is governed by 28 U.S.C. § 158, which provides: (a) The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. (d) The courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsection (a) ... of this section. The parties may appeal all final orders of the bankruptcy judge to the district court as of right. The parties may also appeal final orders to the court of appeals as of right. A district court may, in its discretion, take jurisdiction over interlocutory appeals from the bankruptcy court, but we have no such discretion. We have jurisdiction only over final orders. Our task is to explain why the order of the district court was not final. This is not a trivial task. Congress has amended the statute governing appellate jurisdiction over bankruptcy appeals twice in the last nine years. Under the current statutory formulation two distinct approaches to determining whether an order is final have emerged among the circuits, and these competing definitions of finality have not been explained with uniform conceptual clarity. We do well to note at the outset that the difficulty of deciphering the law is not matched by the difficulty of deciding this case. This order is interlocutory under both current formulations, and would have been interlocutory under both former versions of the statute. To state our rationale, however, it is necessary to sort through the competing approaches to finality applied to orders of bankruptcy courts. A. Appellate Jurisdiction Under The Bankruptcy Act of 1898 — Laying Out the Ground Rules When a baseball umpire makes a difficult call, the text of the applicable rule is not as important as simply knowing how to play the game. Similarly, to understand the text of the current provisions of the bankruptcy law, it is necessary to understand how the game was played prior to the Bankruptcy Reform Act of 1978. 1. Controversy and Proceeding — Games Within the Game There is a long history of interlocutory appeal of certain kinds of disputes in a bankruptcy case. Until 1978, § 24(a) of the Bankruptcy Act of (1898) (the “Bankruptcy Act”) governed appellate jurisdiction over disputes in bankruptcy. The section provided that: The United States courts of appeals ... are invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy either interlocutory or final and in controversies arising in proceedings in bankruptcy, to review, affirm, revise or reverse both in matters of law and in matters of fact. 11 U.S.C. § 47(a) (repealed 1978). Courts read this provision as allowing interlocutory appeals to circuit courts as of right in “proceedings in bankruptcy” (“proceedings”) but allowing appeal as of right only from final orders in “controversies arising in proceedings in bankruptcy” (“controversies”). The “distinction between ‘proceedings’ and ‘controversies’ ... long eluded concise and easily ascertainable definition.” In re Durensky, 519 F.2d 1024 (5th Cir.1975). Courts commonly distinguished between questions regarding administration of the estate and questions as to whether certain property ought to be included in the estate. Id. at 1028; see United Kingdom Mutual S.S. Assur. Assoc, v. Liman, 418 F.2d 9, 10 (2d Cir.1969). For all the intricacy of the proceeding/controversy distinction, though, § 24(a) allowed the possibility of a tremendous number of interlocutory appeals. As one recent court, applying the old provision put it: [Sjection 24(a) creates the prospect that most of the hundreds of orders that a court issues in the course of a protracted reorganization ... are appealable as a matter of right. Matter of Chicago, Milwaukee, St. Paul & P.R. Co., 756 F.2d 508, 511 (7th Cir.1985). The present dispute would have been characterized as a proceeding. In Duren-sky when faced with the determination of subject matter jurisdiction by a bankruptcy judge, we said, “we believe that it is clear as anything can be in this terminological morass that the instant case constitutes a proceeding.” 2. Interlocutory Finality — Playing Games with Trivial Proceedings Motivated by a policy against piecemeal appeals, the courts developed a “trivial order” exception. This exception imported notions of finality into the jurisdictional requirement for appeal from orders in proceedings in bankruptcy. Orders were held to be trivial when they failed to finally resolve the rights at issue. Again, as we said in Durensky: [T]he Government’s motion to dismiss ... would surely be an appealable order in view of our determination that this case is a proceeding in bankruptcy. Such a sweeping conclusion would be ill-advised however, for the courts of appeals have interpreted section 24a so as to allow appeals from interlocutory orders in proceedings only when the orders dispose of some right or duty asserted by one of the parties, (citations omitted) The obvious explanation for this judicial gloss on the statutory language is that if every word issuing from the bankruptcy judge’s mouth or pen were to be a proper subject for immediate review . . . bankruptcy proceedings would cease to offer reasonably swift resolution of pressing economic difficulties, (citations omitted) This Court has consistently ruled that in order for an interlocutory order in a bankruptcy proceeding to be appealable as of right, it must possess a “definitive operative finality.” 519 F.2d at 1028-29 (emphasis added). This requirement of “definitive operative finality” rendered the distinction between controversies and proceedings substantially less important. In proceedings as well as controversies, the order had to be final with respect to the rights at issue. This finality variant of the trivial order exception was noted as having the potential to eliminate interlocutory bankruptcy appeals. Thus from the jurisprudence under the old Bankruptcy Act two important concepts emerge, the concept of the proceeding as the relevant jurisdictional unit and the concept of finality as a prerequisite to appeala-bility of bankruptcy orders. But, the legal analysis in cases applying these concepts was far from clear, and a judicial gloss had substantially changed the understanding of the statutory language. B. Playing the Same Games Under The New Rules When the Bankruptcy Code was enacted in 1978, and amended in 1984, the drafters of the Code solidified the two trends that had been developing in the case law. First, Congress abolished the distinction between controversies and proceedings, which was disappearing as a functional matter anyway. Second, Congress made the requirement of finality explicit. Under the amended statute, courts of appeals have jurisdiction only over “final decisions, judgments, orders and decrees.” 28 U.S.C. § 158. Section 158 replaced a nearly identical provision, 28 U.S.C. § 1293(a), which was in turn patterned on the general final order rule of 28 U.S.C. § 1291. In re County Management, Inc., 788 F.2d 311, 313 n. 2 (5th Cir.1986). The case law that has grown up around this new provision has recognized that § 1291 and § 158 do not give the same meaning to the same language. Many courts have referred to the more flexible notions of finality included in the traditional bankruptcy jurisprudence, and have noted that § 158 “finality” is not the same as § 1291 “finality.” To understand this distinction, we must separate the definition of the game itself from the definition of the end of the game. 1. Proceeding and Case — The Relevant Jurisdictional Unit is the Name of the New Game. To be appealable an order must be final with respect to a “single jurisdictional unit.” 788 F.2d at 313. Section 158 does away with the proceeding/controversy distinction, but it offers no further guidance as to the relevant jurisdictional unit which does apply. For the purposes of § 1291, the single jurisdictional unit is the case as a whole. In In re Saco Development Corp., 711 F.2d 441 (1st Cir.1983), however, Judge Breyer pointed out that Although Congress has defined appellate bankruptcy jurisdiction in terms ... similar to those appearing in other jurisdictional statutes ... the history of prior federal law and the 1978 Act convinces us that Congress did not intend the word “final” here to have the same meaning— at least not with respect to the application of the traditional “single judicial unit rule.” Id. at 444. The court further noted, Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case, and concluded, In sum, given a longstanding Congressional policy of appealability, an uninterrupted tradition of judicial interpretation in which courts have viewed a “proceeding” within a bankruptcy case as the relevant “judicial unit” for purposes of finality, and a legislative history that is consistent with this tradition, we conclude that a “final judgment, order or decree” ... includes an order that conclusively determines a separable dispute over a creditor's claim or priority. Id. at 445-446; see In re Moody (Smith v. Revie), 817 F.2d at 363; Levin, Bankruptcy Appeals, 58 N.C.L.Rev. 967, 985 (1980) (the relevant unit is called, “a proceeding arising under Title 11.” (emphasis added)). The circuit courts agree that proceedings are the relevant unit and no dispute has arisen over whether a given order is a product of a proceeding or something less. In this circuit a case certainly “need not be appealed as a single judicial unit” at the termination of the proceeding as a whole. In re County Management, Inc., 788 F.2d 311, 313 (5th Cir.1986). C. The End of the Game — Defining Finality But a split has developed between the Circuits over when such a dispute should be deemed over. The Third Circuit holds that the game ends when the bankruptcy court says it does, In re Marin Motor Oil, Inc., 689 F.2d 445 (3rd Cir.1982), while the Fifth and Seventh Circuits hold that the game ends only when the district court says it does. In re County Management, Inc., 788 F.2d 311 (5th Cir.1986); In re Riggsby, 745 F.2d 1153 (7th Cir.1984). In Marin Oil, the Third Circuit allowed an appeal in a case where the bankruptcy court denied a creditor’s committee’s motion to intervene, in spite of the fact that the district court reversed and remanded, because they determined that the finality of an order is determined by the character of the action of the bankruptcy court. This is not the approach followed in this Circuit. As Judge Rubin said, in In Re Moody (Smith v. Revie), 817 F.2d 365 (5th Cir.1987), when determining that a turnover order by the bankruptcy court was a final order. For the purpose of Yogi Berra’s celebrated maxim, “The game isn’t over till it’s over,” a bankruptcy proceeding is over when an order has been entered that ends a discrete judicial unit in a larger case. Id. at 368. For the order to be appealable, the game must really be over. To determine whether a remand by a district court really signals the end of the game, we must follow a two step inquiry. First, we must ask whether the order of the bankruptcy court itself is final in character, Matter of Moody, 825 F.2d 81 (5th Cir.1987), and second, if it is, we must ask if the remand by the district court requires extensive further proceedings. In re County Management, 788 F.2d at 314. The answer to the first question must be in the affirmative while the answer to the second question must be in the negative. 1. Character of the Order In order to be final in character, an order by a bankruptcy court must resolve a discrete unit in the larger case. The character of the bankruptcy court’s order determines whether appeal is available as of right to the district court. A final order must “conclusively determine substantive rights.” In re Delta Services Industries, 782 F.2d 1267, 1271 (5th Cir.1986). For example, in In re County Management a bankruptcy court order granting defendant’s motion for summary judgment and dismissing a complaint was appealed to the district court as of right. 788 F.2d at 312. Dismissal of a complaint obviously ends a dispute. See also, In re Bowman, 821 F.2d 245, 246 (5th Cir.1987) (dismissal of complaint as untimely filed appealed to district court). A bankruptcy court’s recognition of a creditor’s security interest is a final order. In re Lift & Equipment Service, Inc., 816 F.2d 1013, 1015 (5th Cir.1987). Such an order conclusively establishes a claim against the estate. Similarly, a turnover order, ordering an individual to turn over an antique coin, is final, settling authoritatively the inclusion of a piece of property in the estate. In re Moody, 817 F.2d 365 (5th Cir.1987). “On the other hand, the courts of appeals have considered bankruptcy court orders that constitute only a preliminary step in some phase of the bankruptcy proceeding and that do not directly affect the disposition of the estate’s assets interlocutory and not appealable.” In re Delta Services Industries, 782 F.2d at 1270-71. Thus an order appointing an interim trustee is not final. Id. An order requiring the winding up of a partnership prior to the final turnover order is not final. Matter of Moody, 825 F.2d 81 (5th Cir.1987). Applying these principles to the facts of this case, the question is whether a bankruptcy court’s order denying a motion to dismiss for lack of jurisdiction is final. Of course a determination that a bankruptcy proceeding may go on does affect the rights of the litigants. But our inquiry on this point is controlled by precedent in this circuit. In County Management the issue of subject matter jurisdiction was raised before the bankruptcy court, and on appeal and was held not to be a ground for jurisdiction over the appeal: Defendants in their brief to this court have dusted off their argument that the bankruptcy court did not have subject matter jurisdiction of this dispute. Even if we were to infer that the district court actually reviewed the merits of defendant’s motion in the bankruptcy court to dismiss for lack of subject matter jurisdiction and determined that it was properly denied — a dubious proposition in light of the wording of their brief to the district court — it is clear that the denial of a motion to dismiss for lack of subject matter jurisdiction is not a final order. Catlin v. United States, 324 U.S. 229 [65 S.Ct. 631, 89 L.Ed. 911] (1945) (motion to dismiss, even on jurisdictional grounds, not immediately reviewable absent exceptional circumstances). 788 F.2d at 313-14 n. 3. This is not to say that Dr. Gonzalez will never be able to have his challenge to the jurisdiction of the bankruptcy court determined by this court. As we said in Durensky: An order denying a motion to dismiss for lack of jurisdiction is perhaps unique in its incapacity permanently to affect the rights of the moving party, for jurisdictional defects may be recognized by a court at any time, on the motion of the parties or on its own motion. In Re Durensky, 519 F.2d 1024, 1029 (5th Cir.1975). Gonzalez must simply await an appeal from some order of the bankruptcy court that actually resolves his rights with finality. 2. Nature of The Remand Our conclusion is bolstered by the fact that even if Dr. Gonzalez had reached the end of the game in the bankruptcy court, the remand by the district court does not meet the level of finality required in this circuit. A remand from the district court reversing a final order of the bankruptcy court. In re County Management, Inc., 788 F.2d at 314. Accordingly, in In re Moody, 817 F.2d 365 (5th Cir.1987), a turnover order was deemed final even though additional proceedings would be necessary in order to enforce that order. Similarly, in In re Lift & Equipment Service, Inc., 816 F.2d 1013 (5th Cir.1987), where nothing more than “the bankruptcy court’s review of the scheduled expenses,” was required, the order was deemed final. Id. at 1016. Here, by way of contrast, the entire bankruptcy proceeding remains before the parties. Far from a mere ministerial task, the entire reorganization remains to be accomplished. Thus this appeal fails to rise to the level of a final order on both counts. The order of the bankruptcy court was not final in nature, and the remand of the district court is one that will require extensive proceedings on the merits. 3. The Collateral Order Exception Does Not Apply Appellants also contend that this case fits within the collateral order exception to the final order rule. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To fit within the collateral order exception, “an order must at a minimum satisfy three conditions: [1] it must ‘conclusively determine the question,’ [2] ‘resolve an important issue completely separate from the merits of the action,’ and [3] ‘be effectively unreviewable on appeal from a final judgment.’ ” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). This argument fails under the third prong of this test. The question of subject matter jurisdiction is far from unreviewable on appeal from a final judgment. When there is a final judgment in this case appellants will be free to raise the issue of subject matter jurisdiction yet again. III. Conclusion For these reasons, the judgment of the district court is Affirmed. . A baseball game ends at the end of the first inning, after the eighth, that does not end in a tie. . 28 U.S.C. § 1291 governs jurisdiction of ordinary appeals from district courts. Under § 1291 the order must be final with respect to the case as a whole. 28 U.S.C. § 158(d) governs bankruptcy appeals from the district court to the court of appeals. As will be discussed later, to be appealable a bankruptcy order must also be final, but not as final. The order must only be final with respect to a discrete dispute within the larger case. .The issuance of such revenue bonds is now authorized by the Mississippi Legislature. Miss. Code Ann. 41-13-35(5)(k) (1972 and pocket part), gives the board of trustees of a municipal hospital the authority to incur debt. That section provides that the “power of the board of trustees [of any municipal hospital] shall specifically include, but not be limited to ... the ... authority ... to borrow money and enter other financing arrangements for community hospital and related purposes.” . 11 U.S.C. §§ 1101-1174. . 11 U.S.C. §§ 701-766. . 11 U.S.C. §§ 901-946. . This issue was first raised at oral argument, but both parties have filed supplemental briefs. . The Circuits are split over whether a final order of a bankruptcy court is appealable from a remand by the district court. See note 11 and accompanying text. A final order of the district court is always appealable. See note 9 and accompanying text. . In re Moody (Smith v. Revie), 817 F.2d 365, 366 (5th Cir.1987). In In re Delta Services, 782 F.2d 1267 (5th Cir.1986) we pointed out that “We have jurisdiction only if the underlying order of the bankruptcy court was final.” Id. at 1268. But an interlocutory appeal may gain finality at the district court level if the district court’s order leaves nothing for the bankruptcy court to do but enter the final order. In re Bowman, 821 F.2d 245, 246 (5th Cir.1987); In the Matter of Ben Hyman & Co., 577 F.2d 966 (5th Cir.1978). The district court seems to have believed the order of the bankruptcy court to be final. Indeed, after ruling, when plaintiffs asked the district court to reconsider his decision, the district judge instructed the parties that the next step in this lawsuit should be appeal to this court. The district court had the authority to hear the appeal regardless of whether the order was final. We do not. . Appellate jurisdiction was originally governed by § 24(a) of the Bankruptcy Act of 1898 (the "Bankruptcy Act”), codified at 11 U.S.C. § 47(a) (repealed 1978). In 1978 the Bankruptcy Reform Act of 1978 (the "Bankruptcy Code”) 92 Stat. 2549 (1978) replaced the Bankruptcy Act. Congress replaced § 24(a) with 28 U.S.C. § 1293, which adopted the "final order" approach of the present statute. After the Supreme Court held sections of the 1978 act unconstitutional, Northern Pipeline Co. v. Marathon Pipeline Co. 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), Congress amended the jurisdictional provisions to the their present form. See 28 U.S.C. § 158. . See In re Marin Oil, Inc., 689 F.2d 445, 449 (3d Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983); contra, In re Riggsby, 745 F.2d 1153 (7th Cir.1984). This Circuit follows the Seventh Circuit. In re County Management, Inc., 788 F.2d 311 (5th Cir.1986); In Re Delta Services Industries, 782 F.2d 1267 (5th Cir.1986). . 92 Stat. 2549 (1978). . Wright, Miller, Cooper and Gressman, Federal Practice and Procedure § 3926 at 103 (1977 and Supp. 1987). . In Durensky the government argued that the bankruptcy court had no jurisdiction "to determine the amount and legality of federal taxes due and owing by a bankrupt ... where the United States has filed no claim in the bankruptcy proceeding." 519 F.2d at 1028. . Id. . Appeals from proceedings were held to be trivial for several reasons: (1) because they were truly trivial, In re W.F. Breuss, Inc., 586 F.2d 983, 987-89 (3rd Cir.1978) (dissent); (2) because no matter of bankruptcy administration was involved. In re Continental Investment Corp., 637 F.2d 1, 4 (1st Cir.1980); and finally and most importantly, (3) because the order did not definitively resolve the issue on which appellate review was sought, and was therefore trivial in its consequences. In re Durensky, 519 F.2d 1024, 1029 (5th Cir.1975); In re Bacchus, 718 F.2d 736 (5th Cir.1983); In re Abingdon Realty Corp., 634 F.2d 133 (4th Cir.1980); In re Lloyd, Carr & Co., 614 F.2d 17, 20 (1st Cir.1980); Good Hope Refineries v. Brashear, 588 F.2d 846, 848 (1st Cir.1978). ."It may well be that appellate distaste for interlocutory review will gradually expand the trivial order exception." 16 Wright, Miller, Cooper and Gressman, Federal Practice and Procedure § 3926 at 108 (1977 and Supp. 1987). “Under this open-ended approach, large numbers of orders could be found inherently open to reconsideration, and denied appeal." Id. at 109. . § 1293(a) states: "[A] court of appeals shall have jurisdiction of an appeal from a final judgment, order, or decree of a District court of the United States ...” . 28 U.S.C. § 1291 says: "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States....” . The split in circuits can be represented graphically. The law of this circuit can be depicted as follows: In the Third Circuit, the law is as follows: In this case, both the district court and the bankruptcy court agreed that the bankruptcy court had jurisdiction. The question therefore is whether under any circumstances a court's determination that it has subject matter jurisdiction can be a final order. . Note that this would have involved a controversy under the old law rather than a proceeding and therefore appeal would only have been available if this was a final order anyway. . Other circuits have consistently followed this approach, In re Delta Services, 782 F.2d at 1270: accordingly, an order allowing or disallowing an exemption is final; an order dismissing an objection to discharge of the bankrupt is final; and an order granting relief from the automatic stay is final. Id. .Other circuits have applied this theory as well: an order authorizing a special master to negotiate a sale of assets is not final; an order denying application for approval of a settlement agreement is not final; an order denying confirmation of a Chapter 13 plan is not final; and an order denying a trustee’s conversion motion is not final. In re Delta Services, 782 F.2d at 1271.

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

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

UNITED STATES v. ROBINS DRY DOCK & REPAIR CO. et al., and three other cases. THE NEPONSET CASES. (Circuit Court of Appeals, First Circuit. June 8, 1926.) Nos. 1983-1986. 1. Shipping <6=24 — Sale contract held to have superseded charter agreement, where charterer operated vessel thereunder and paid initial instalimnt, though not signing contract. Where, after operating a vessel' owned by the Shipping Board under a charter containing an option to purchase, a sale contract was prepared and signed by the Shipping Board, and the charterer, while not signing it because of objection to one of its provisions, afterward modified, paid the initial installment of the purchase price and continued to operate the vessel, such operation was under the new contract, the terms of which superseded those of the charter agreement. 2. Maritime liens <6=30. Under Ship Mortgage Act June 5, 1920, § 30, subsec. R. (Comp. St. Ann. Supp. 1923, § 8146I4PP), a furnisher of supplies to a vessel is bound to inquire as to the authority of the person ordering to bind the vessel, and is chargeable, with knowledge of whatever such inquiry, made with reasonable diligence, would have disclosed. 3. Maritime liens <6=30 — Furnishers of supplies to vessel of Shipping Board, operated by purchaser under conditional sales contract, are charged with notice of want of authority of purchaser to impose lien, shown by ship’s papers. Under a provision of a contract for conditional sale of a ship by the Shipping Board, requiring the buyer “to carry a properly certified copy of this agreement with the ship’s papers, and take such other appropriate steps * * * as will give notice to the world that the buyer has no right, power, nor authority to suffer or permit to be imposed on or against the vessel any liens which might be deemed superior to, or a charge against, the interest of the seller,” furnishers of supplies on order of the buyer are charged' with notice of its want of authority to bind the ship, which they could have learned in the exercise of reasonable diligence by examination of the ship’s papers. 4. Maritime liens <6=28. Charter provision or contract of sale of a ship, that charterer or purchaser “will not suL fer nor permit to be continued any lien,” should be read as meaning that he will not suffer any lien, nor permit one to be continued should it arise under the law, as for wages, or in case of salvage or collision. ■5. Shipping <6=154. Freight is incident to the ship, and there can be no maritime lien on freights, if there is none on the ship. 6. Shipping <6=149. On retaking a ship from a purchaser by the United States, before delivery of her cargo, for breach of the contract, the right of the purchaser to the freights terminated, and vested in the United States. Appeals from the District Court of the United States for the District of .Massachusetts; James Arnold Lowell, Judge. Suit in admiralty by the United States against certain freight money due the steamship Neponset, with intervening libels by the Robins Dry Dock & Repair Company and others, by the Standard Oil Company (New Jersey), by the McCormack Stevedoring Company, Inc., and by the Robins Dry Dock & Repair Company, claiming liens, who also filed independent suits against the United States. From the decrees in favor of the lien elaimánts, the United States appeals. Reversed and remanded, with directions. For opinions below, see 300 F. 981, 4 F. (2d) 132.. Arthur M. Boal, of Washington, D. C., and George R. Famum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Atty., of Boston, Mass., on the brief), for the United States. Henry Parkman, Jr., of -Boston, Mass. (Putnam, Bell, Dutch & Santry, of Boston, Mass., and Haight, Smith, Griffin & Deming, of New York City,- on the brief), for Robins Dry Dock & Repair Co. Charles R. Hiekox, of New York City (Frank A. Bernero, of New York City, and Charles S.-Bolster, of Boston, Mass., on the brief), for Standard Oil Co. and McCormack Stevedoring Co. Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge. HALE, District Judge. These cases come before us upon four appeals from 'final- decrees of the District Court for, the District of Massachusetts. In No. 1983, the United States proceeded by libel against certain freight moneys due the steamship Neponset. Pursuant to the libel, the freight moneys were paid into court. Then followed certain intervening libels of parties claiming maritime liens superior to the claim of the United States. In No. 1984, the Standard Oil Company, in this independent libel, as well as in its intervening petition, claims to have furnished fuel oil to the Neponset at San Pedro, Cal., and in the Canal Zone on May 31, 1922, and it appears that the orders for this fuel oil were given in New York by an official of the Elder Steel Steamship Company, Inc., to an official of the Standard Oil Company. In No. 1985, the McCormack Stevedoring Company, in this independent libel and in its intervening petition, claims to have rendered services to the Neponset at the port of New York, in connection with the cargo discharged at that port in the early part of June, 1922, just before the vessel proceeded to Boston, where she was seized on or about June 19, 1922. The orders in this case were given by an official of the Elder Company to an official of the McCormack Stevedoring Company. In No. 1986, the Robins Dry Dock & Repair Company, in this independent libel and in its intervening petition, claims to have máde certain repairs to the Neponset in the port of New York in March, 1922, on the order of an officer of the Elder Steel Steamship Company. It does not appear that in any of the above eases there was any order given by the master or any officer of the vessel. The District Court hold the three libelants and interveners, the Standard Oil Company, the McCormack Stevedoring Company, Inc., and the Robins Dry Dock & Repair Company, to be entitled to maritime liens on the freight moneys; that these liens were superior to the claim of the United States; and it entered decrees in their favor for the full amount claimed against the freight moneys. Erom these decrees, appeals are taken to this court. The case shows that, at all times involved in these proceedings, the steamship Neponset was owned by the United States; as represented by the Shipping Board; that on April 10, 1920, the Shipping Board entered into an agreement with the Elder Steel Steamship Company, Inc., the agreement being known as the “charter agreement,” by which it chartered the ship to the Elder Steel Steamship Company, Inc. In pursuance of that agreement the Neponset was delivered to the Elder Steel Steamship Company, Inc., on May 13, 1920. The charter agreement contains these provisions: “(1) The owner agrees to let, and the charterer agrees to hire, said vessel from the time of delivery for the period of 18 months. * * * “(2) The charterer shall, at its sole expense, man, operate, victual and supply said vessel. * * * “The charterer will not suffer nor permit to be continued any lien, incumbrance, or charge which has or might have priority over the title and interest of the owner in said vessel. * * * “In general, the charterer shall operate the said vessel free of any expense to the owner of any nature or kind whatsoever. “(4) The charterer shall pay to the owner upon delivery of the vessel the sum of $48,-062.16, for the option to purchase hereinafter contained, and in addition thereto shall pay to the owner for the use of said vessel $48,625 ($5 per ewt) per calendar month in advance commencing on and from the day of her delivery as aforesaid, and at and after the same rate for any part of a month; hire to continue until her delivery in like good order and condition to the owner (unless lost or unless charterer exercises option to purchase) at a United States Atlantic port, north of Hatteras. * * * “The owner shall have a lien upon all cargoes, and all subfreights, for any amounts due under this charter party.” By section 10, the Elder Company had an • option to purchase the vessel for $1,922,486.-62, and.payments of charter hire were to apply as payments on account of the purchase priee. Subsequently to the execution of the charter agreement, negotiations were entered into looking to an outright agreement of purchase. That agreement— which may be called the sales agreement —dated November 24, 1920, was drawn up and executed by the Shipping Board and forwarded to the Elder Company. The company refused to execute thé agreement, because it objected to certain sinking fund provisions, and for this reason Only.’ The November agreement — the sales agreement— fixed the purchase priee at $1,907,-364.25, provided that the buyer (Elder Steel Steamship Company, Inc.) should pay 10 per cent, in cash, $190,736.42; and the rest in stated installments, and provided, also, when the buyer should have paid 50 per cent, of the purchase priee, that the seller (the United States) should execute and deliver to the buyer a bill of sale of the vessel, and that the buyer would immediately execute a mortgage (substantially in the form of the mortgage attached to the agreement) to secure the unpaid purchase price. It then provided in section 5 as follows: “Erom the time of the delivery of the vessel by the seller to the buyer, and until title to the vessel shall have been transferred to the buyer in accordance with the provisions of paragraph 6 hereof, the buyer agrees [among other things to the following]: “ ‘(d) The buyer shall not suffer to be continued any lien or charge having priority to or preference over the title of the seller in the vessel, or any part therfeof. “(g) To carry a properly certified copy of this agreement with the ship’s papers, and to take such other appropriate steps designated to it by the seller from time to time as will give notice to the world that the buyer has no right, power, nor authority to suffer or permit to be imposed on or against the vessel any liens or claims which might be deemed superior to or a charge against the interests of the seller in the vessel.'” The form of mortgage attached to the sales agreement contained the following covenant in section 3: “Not to suffer nor permit to be continued any lien, incumbrance, or charge which has, or might have, priority over this mortgage of the vessel to the party of the second part.” The agreement of sale .also provided in section 3 as follows: “Upon execution of this agreement, the said charter sales agreement hereinbefore referred to shall be superseded by this agreement.” The charterer, the Elder Company, continued to operate the Neponset until she was seized by the United States marshal on June 19, 1922, at the port of Boston, pursuant to the possessory libel by the United States. The District Court held that the provisions of the charter sales agreement, namely, the April agreement, prohibited the Elder Steel Steamship Company from imposing maritime liens on the Neponset, but that this agreement had been abandoned. The court based its ruling upon United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361, in which case the Supreme Court construed the identical provision contained in the April agreement, namely: “The charterer will not suffer nor permit to be continued any lien, incumbrance, or charge which has or might have priority over the title and interest of the owner in said vessel.” After the lapse of the 18 months which the charter agreement had to run, and after the sales agreement of November, 1920, had. been sent to the Elder Company, that company paid the initial 10 per cent, payment, but still objected to the provision in the agreement that the freight earned by the steamer should be set aside as a sinking fund, and, at its request, the requirement for the sinking fund was extended. The Elder Company did not execute the agreement, but continued in possession and in operation of the ship until she was seized by the United States marshal on June 19,1922, at the port of Boston, pursuant to a possessory libel filed by the United States. The Elder Company never paid the second installment on the purchase price. We think the District Court was right in holding that the charter party under which the Neponset was first operated had been abandoned, and that, while the new sales agreement was never executed by the Elder Steel Steamship Company, the Neponset was being operated under an arrangement in substantial accordance therewith. The District Court ruled that the decision in United States v. Carver requires all furnishers of repairs or supplies always to make inquiry, whether or not they know facts which would lead them to think that the vessel was not owned by the company operating it. The court was clearly right in this ruling. It ruled also that, under the Carver Case, the charterer need go no farther in his investigations, if he finds that the person ordering the repairs or supplies is the owner, or his agent, unless he has reasonable grounds to suppose that the owner was in possession, under an agreement for purchase, which forbade the imposition of liens, and that in the latter case he must use reasonable diligence to discover the terms of the agreement of purchase. The District Court proceeds: “The doctrine of the Carver Case should not be extended. Even if there are circumstances which put the furnisher on inquiry, he should not be obliged to conduct an investigation into facts often complicated, sometimes requiring judicial determination for their final interpretation, and to decide at his peril whether a lien was possible or not. “Upon the facts in this case I find that the Standard Oil Company, the Robins Dry Dock Company, and the McCormack Stevedoring Company are entitled to liens. * * * If I am in error as to the scope of the decision in United States v. Carver, and there was a duty imposed on the libelants to find out the terms of the agreement for purchase, I rule that the agreement for purchase in this case gave the vendee in possession a right to impose a lien for repairs or supplies. • • • The provisions of paragraph 5 (d) show that liens were within the contemplation of the parties, and clause (g) does not add any further restriction,' but merely provides for notice. The proper construction of clause 5 (d) and clause 5 (g) is in my opinion not that the Elder Company had no power to allow a lien to be imposed, but that its neglect to pay it within 15 days after it became due would be a breach of the agreement.” We are unable to agree with the learned judge of the District Court in his construction of the sales agreement or in his conclusions. The record shows that the Standard Oil Company had been informed that the Shipping Board had sold the Neponset on a plan for partial payments, and that it had received a report from the American Audit Company showing that the Elder Company owed the Shipping Board $1,750,000 on the Neponset. We must conclude that the Standard Oil Company had knowledge that the Elder Company had bought the Neponset from the Shipping Board under an installment contract, and that it was an agreed purchaser in possession. It does not appear that, having this knowledge, the Standard Oil Company made any inquiry to ascertain the terms of the agreement under which the Elder Company had obtained the vessel, or as to the arrangement under which the Elder Company was operating the ship. It does not appear that any inquiry of any kind was made by either the McCormack Stevedoring Company or the Robins Dry Dock & Repair Company. We cannot agree with the District Court that these lienors exercised the reasonable diligence required by the law to ascertain the authority of the person in possession to bind the ship. In United States v. Carver, 260 U. S. 482, 488, 43 S. Ct. 181, 182, 67 L. Ed. 361, in speaking for the Supreme Court, Mr. Justice Holmes said: “The act of 1910, * * * after enlarging the right to a maritime lien and providing who shall be presumed to have authority for the owner to procure supplies for the vessel, qualifies the whole in section 3 as follows: 'But nothing in this act shall be construed to confer a lien when the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor/ We regard these words as too plain for argument. They do not allow the materialman to rest upon presumptions until ho is put upon inquiry, they call upon him to inquire. To ascertain is to find out by investigation. If by investigation with reasonable diligence the materialman could have found out that the vessel was under charter, he was chargeable with notice that there was a charter; if in the same way he could have found out its terms he was chargeable with notice of its terms. * * * But it is said that the charter party, if known, would have shown that the master at least, if not the agent who ordered the supplies, had authority to impose a lien, since the charter party contemplated the possibility of one being created and provided for its removal. The South Coast, 251 U. S. 519 [40 S. Ct. 233, 64 L. Ed. 386], is cited as establishing the position. But there is a sufficient difference in the language employed there and here to bring about a different result. In the South Coast the contract went no farther than to agree to discharge liens within a month. Here the primary undertaking was that ‘the charterers will not suffer nor permit to be continued any lien,’ etc. We read this as meaning will not suffer any lien, nor permit the same to be continued. Naturally there are provisions for the removal of the lien if, in spite of the primary undertaking, one is imposed or claimed. But the primary undertaking is that a lien shall not be imposed.” In P. H. Gill & Sons Forge & Machine Works v. United States, 1 F.(2d) 964, 965, the Circuit Court of Appeals for the Fourth Circuit followed the Carver Case, and said: “The statutory requirement of reasonable diligence on the part of a furnisher of a vessel to ascertain the authority of a person in possession to bind the vessel is not necessarily met by reliance on the mere statement of the person in possession that he is the owner. If such a statement were held always to take the place of inquiry from accessible sources, the statute would afford no protection to persons having the right to contract that their vessels should be kept free from liens.” In Frey & Sons v. United States, 1 F.(2d) 963, 964, the' Circuit Court of Appeals for the Fourth Circuit had before it a contract of sale substantially identical with the agreements in the ease at bar. It held that the agreed purchaser in possession was without authority to pledge the credit of the vessel and denied the supply man a lien for that reason. The court said: “The argument is that this provision brings the case under the reasoning and decision in The South Coast Case, 251 U. S. 519, 40 S. Ct. 233, 64 L. Ed. 386, and not under United States v. Carver, 260 U. S. 482, 489, 43 S. Ct. 181, 67 L. Ed. 361. There may be doubt whether this provision of the contract, standing alone, forbade the creation of any lien on the vessel by the conditional purchaser ; but we think all doubt is dispelled by another provision of the contract for the sale of the vessel: “ ‘The buyer agrees to carry a properly certified copy of this agreement with the ship’s papers, and to take such other appropriate steps designated to it by the seller from time to time as required by circumstances as will give notice to the world that the buyer has no right, power, nor authority to suffer or permit to be imposed on or against the vessel any liens or claims whieh might be deemed superior to or a charge against the interest of the seller in the vessel.’ “The contract of sale forbade the creation of a lien on the vessel by the conditional purchaser. The libelant knew that there was a conditional contract of sale, and that the purchase money had not been paid, and it was charged with inquiry as to its terms.” Then follows a citation of the Carver Case and other cases. In Cordova v. Hood, 17 Wall. 1, 8 (21 L. Ed. 587), the Supreme Court said: “Wherever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge, with the duty of using them, are, in equity, equivalent to knowledge itself.” If the lienors in the instant ease had examined the contracts, and looked into the relations and arrangements existing between the Elder Company and the Shipping Board, they would have found that the Neponset had been delivered to the Elder Company in May, 1920, under a charter agreement to last 18 months, and containing a clause forbidding liens, and providing that the charterer shall operate the ship free of expense to the owner. It would have found also that the sales agreement of November, 1920, under the terms of which the Elder Company was then acting, provided: “Erom the time of delivery of the vessel by the seller to the buyer, and until title to the vessel shall have been transferred to the buyer in accordance with the provisions of paragraph 6 hereof, the buyer agrees: “(d) The buyer shall not suffer to be continued any lien or charge having priority to or preference over the title of the seller in the vessel or any part thereof. * * * ” And: “(g) To carry a properly certified copy of this agreement with the ship’s papers and to take such other appropriate steps designated to it by the seller from- time to time as will give notice to the world that the buyer has no right, power, .nor authority to suffer or permit to be imposed on or against the vessel any liens- or claims which might be deemed superior to or a charge against the interest of the seller in the vessel.” It would have been found also that only 10 per cent, of the purchase price had ever been paid, and the title had never passed from the. United States to the Elder Company. . _ • Jn construing the above provisions of the sales 'agreement we think the District Court did not give force-enough to clause (g). It is clear that liens were within the contemplation of the parties. There are many liens which may be imposed by the operation of law, in spite of any prohibition inserted in the charter or in the sales agreement. Among such liens are those for salvage services, for collision, for seamen’s wages. It seems clear to us that clause (g) in the sales agreement was intended to provide for giving notice of an existing provision in that agreement, that the primary undertaking in this case was the same that Mr. Justice Holmes found in the Carver Case, namely, that “the charterers will not suffer nor permit to be continued any lien,” etc., and that we should read this in the same- way that the Supreme Court read it, in that case, viz. as meaning “that the charterers will not suffer any lien, nor permit the same to be continued.” Clearly the parties indicated their understanding of the contract that' the buyer had no authority to impose liens upon the ship and that it was their duty to give notice of that fact. We are of the opinion that the sales agreement denied to the Elder Company the power to impose liens on ship or on freight moneys for supplies, stevedoring services, or repairs. The proofs show, we think, that under the rule of reasonable diligence laid down in United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361, supra, none of the lienors in the instant case used such diligence. If the lienors had attempted to obtain accurate ’information, they could have readily found it from reliable sources by examining the ship’s papers, or by inquiring of the Shipping Board, or of the Elder Company, to see the contracts under which the ship had been acquired and under which it was being operated. We think they were charged with knowledge of the terms of these agreements and that they did not acquire maritime liens upon the ship. The rule laid down by the Supreme Court in the Carver Case may perhaps impose a greater burden upon the lienors than any case brought to our attention; but we feel compelled to follow the rule, as it has been followed in the eases we have cited. .It is urged by the learned proctor for the Standard Oil Company and the McCormack Stevedoring Company, Inc., that these lienors are entitled to maritime liens against the freights for all the supplies and labor furnished by them; that freights are entirely distinct from the ship herself; that, even ■though the court shall find that the lienors did not use reasonable diligence in ascertaining the -terms under which the Elder Company was in possession of the Neponset, and even though the lienors should be held to be charged with knowledge of the terms of the agreement of the parties and of the relations existing between the Elder Company and the Shipping Board, and prohibited from acquiring liens on the ship, these lienors may still en toree their liens upon the freight, inasmuch as freights are entirely distinct from the ship. They insist that, under general maritime law, the furnishers of supplies and labor are entitled to a maritime lien against the freights which the supplies and labor helped to earn. They refer to cases in which Judge Addison Brown has held that the freight is liable for all charges incurred in earning it, and that, where the proceeds of the ship are insufficient to pay such charges, they are entitled to come against the freight money. The Velox (D. C.) 21 F. 479; The Olga (D. C.) 32 F. 329; Freights of the Kate (D. C.) 63 F. 707. They insist that the admiralty rules of the Supreme Court recognize that ship and freight are entirely distinct; that rule 13 allows a material-man to sue for supplies, repairs, or other necessaries “in rem against the ship and freight or in personam against any party liable.” They cite The Charles C. Lister (D. C.) 161 F. 585, 586, in which case Judge Adams held that freight is not part of the vessel, as her tackle is; that the rules of the Supreme Court have the force of law. They refer to numerous other cases to the effect, as they urge, that a lien may exist on freights apart from any lien on the ship. The Larch (C. C. 1st) Fed. Cas. No. 8,085; Ex parte Clark (D. C. Mass. 1843) 5 Fed. Cas. 832; Ingersoll v. Von Bokkelin (1827) 7 Cow. (N. Y.) 671; The Packet, Fed. Case No. 10,654; Drinkwater v. The Spartan, Id. 4,085; The J. F. Spencer, 5 Ben. 151, Fed. Cas. No. 7,316; The Charles H. Cramp (D. C.) 3 F.(2d) 311; and other cases to the same effect. - • The record shows that the freight moneys were not fully earned until after the seizure of the ship by the United States in the possessory proceedings in June, 1923. The cargo was discharged from June 19 to June 30, 1922. In discharging the cargo and in earning the freight, the government expended $12,947.63, and this expenditure was necessary to enable the vessel to deliver her cargó and earn freight money. We think the learned judge of the District Court was right in finding that the United States followed the agreement in withdrawing the ship from the Elder Company for its failure to pay the second installment of the purchase money, and that, under the terms of the agreement, the rights of the company ceased as soon as the libel for possession wag filed, and that the freight was not earned until after that time. We agree with Judge Lowell in holding that the “freight is regarded as belonging to the vessel, and the lien attaches to it as if it were a part of the ship, like the tackle.” Thirteenth admiralty rule, 254 U. S., Appendix. The American rule as to freights is derived from the English rule — that the freight follows the ship. In Case v. Davidson, 5 M. & Sel. 79, 82, Lord Ellenborough said: “Although this question now comes distinctly in judgment before us for the first time, yet it has, I own, been long considered, in my mind, as settled, that freight follows as an incident the property in the ship, and therefore, as between the respective underwriters on ship and freight, an abandonment of the ship carries the freight along with it.” And this case has been followed by a long line of decisions in the British court. In The Castlegate, Appeal Cases, 38, it was hold that there could be no maritime lien on the freights if there was none on the ship. This rule appears to have been adopted by the Circuit Court of Appeals for the Second Circuit in Merchants’ Bank v. Cargo of the Afton, 134 F. 727, 728, 67 C. C. A. 618. See In re A. G. & P. Steamship Co. (D. C.) 289 F. 145; Brown v. Tanner, Law Reports, 3 Chancery Appeal Cases, 597; Pelayo v. Fox, 9 Pa. 489; In re Atlantic Gulf & Pac. S. S. Co.; In re Orr & Son (D. C.) 3 F.(2d) 309; Carver on Carriage by Sea (7th Ed.) 592. In The Erie, 3 Ware, 225, 229, Fed. Cas. 4512, Judge Ware defined freight as meaning “in its largest and most general sense the hire of the ship.” 1 Valin, 329. In The Bowditch, 3 Ware, 71, 74, Fed. Cas. 1,717, Judge Ware said: “The reason given for refusing the master a lien on the freight is that he has no lien on the ship for his wages and that the freight is incident to the ship. But the master is authorized to receive the freight,, and if he has it in his hands he may pay himself.” See, also, Drinkwater v. Spartan, 1 Ware, 145, Fed. Cas. No. 4,085. It will be- seen that Judge Ware based his definition upon the theory that a maritime lien on freights and the remedy in rem for freight money depend upon the like remedy being available against the ship. Carver on Carriage of Goods by Sea, § 601. Clearly he adopted the English view-that freight is incident to the ship, and that title to the ship carries title to the accruing freight. If there was no lien on the ship, there can be no lien on the freight. We find nothing to the contrary of this view in the eases brought before us by the learned counsel for the libelants. We do not find in any of those cases that a lien was held to exist on freights in cases where no lien could exist on the ship. In The Velox (D. C.) 21 F. 479, the claims for liens involve the Code of the Netherlands, and not a question arising under American or English law. In the case of The Charles C. Lister (D. C.) 161 F. 585, the decision was based upon rules of. the Supreme Court, providing that the supplyman might proceed against the ship and freight in rem, and that mariners in wage cases might proceed against the ship and freight in rem. While it is true that in a general sense the rules of the Supreme Court may be said to have the force of law, in Washington Southern Co. v. Baltimore, 263 U. S. 629, 635, 44 S. Ct. 220, 222 (68 L. Ed. 480) in speaking for the court, Mr. Justice Brandéis said: “The function of rules is to regulate the practice of the court and to facilitate the transaction of its business. This function embraces, among other things, the regulation of the forms, operation and effect of process, and the prescribing of forms, modes and times for proceedings. Most rules are merely á formulation of the previous practice of the courts'. Occasionally, a rule is employed to express, in convenient form, as applicable to certain classes of cases, a principle of substantive law which has been established by statute or decisions. But no rule of court can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law.” We are of the opinion that under the sales agreement the Elder Steel Steamship Company had authority to collect freights when they were fully earned and became due, and this authority was terminated on the seizure of the ship. We have already found that it had no power to impose liens on the ship, and we find further that it had no power to impose liens on the freights; for freight is the hire of the ship and incident to the ship. It had no authority to deal in any way with the freights of the Neponset earned after her seizure. Our conclusion is that the District Court erred in holding that the interveners and libelants had liens on either the Neponset-or her freight moneys. The decrees of the District Court in the independent libel proceedings, No. 1984, Standard Oil Company v. United States, 1985, McCormack Stevedoring Company v. United States, and in 1986, Robins Dry Dock & Repair Company v. United States, are reversed. In No. 1983, the decree in favor of the interveners, the Standard Oil Company, the McCormack Stevedoring Company, and the Robins Dry Dock & Repair Company, is reversed. The cases are remanded to the District Court, with instructions that the libels in Nos. 1984, 1985, and 1986 be dismissed, with costs to the United States; that the petitions for intervention of the Standard Oil Company, the McCormack Stevedoring Company, and the Robins Dry Dock & Repair Company, in No. 1983, be dismissed, with costs to the United States; and that the freight moneys now in the registry of the court be awarded to the United States. No party recovers costs in this court.

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?

Heinz H. HEITLAND ([ AXX XXX XXX ]) and Hennelore Heitland ([ AXX XXX XXX ]), Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 293, Docket 76-4141. United States Court of Appeals, Second Circuit, Argued Oct. 8, 1976. Decided Jan. 27, 1977. Jules E. Coven, New York City (Abraham Lebenkoff, Lebenkoff & Coven, New York City, of counsel), for petitioners. Robert S. Groban, Jr., Sp. Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty., Southern District of New York, Mary P. Maguire, Sp. Asst. U. S. Atty., New York City, of counsel), for respondent. Before KAUFMAN, Chief Judge, and MANSFIELD and MESKILL, Circuit Judges. MANSFIELD, Circuit Judge: Pursuant to § 106 of the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1105a, Heinz H. Heitland and his wife, Hennelore, seek review of an order of deportation entered by the Board of Immigration Appeals (the “Board”) on January 25, 1974, in accordance with a Board decision denying their applications, pursuant to § 245 of the Act, 8 U.S.C. § 1255(a), for adjustment of their immigration status from that of non-immigrants admitted as temporary visitors under § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), who had remained beyond their authorized stay, to that of aliens lawfully admitted for permanent residence. The case had been remanded to the Immigration Judge to determine whether they were eligible for discretionary relief from deportation. The Heitlands also seek review of the Board order dated April 13, 1976, denying their applications pursuant to § 244 of the Act, 8 U.S.C. § 1254(a), for suspension of deportation in the discretion of the Attorney General. For the reasons stated below, we affirm both orders. Heinz H. Heitland was born in Germany in 1932 and after his first marriage moved with his wife to Canada, where his first child was born, and became a naturalized Canadian citizen. Following a divorce in Canada from his first wife in 1962, he married petitioner Hennelore Heitland, a native and citizen of Germany, in Canada in 1963. In 1968 Heitland and his second wife were admitted to the United States as non-immigrant visitors, permitted to remain for not more than six months. Except for approximately six weeks in December, 1970, they have without permission remained here ever since. Shortly after their arrival they moved to Brooklyn, illegally obtained employment, and filed with the Immigration and Naturalization Service an application for adjustment of Mr. Heitland’s status on the basis of his employment as a mechanic. In August, 1968, however, he left this job, purchased a Volkswagen truck and went into the business of delivering letters and small packages, thus abandoning his first effort to obtain an adjustment of status, for which he would not have been eligible unless he could submit a certification by the Secretary of Labor to the Attorney General pursuant to § 212(a) of the Act, 8 U.S.C. § 1182(a), and 29 C.F.R. § 60.3(c), to the effect that he was needed for the job on which he was employed. In July, 1969, Mrs. Heitland gave birth to their daughter in Brooklyn. Meanwhile Mr. Heitland continued operating his panel truck with its two-way radio as a one-man delivery service, obtaining most of his business from the Mid-Island Messenger Company, which paid him 60 percent of receipts realized from his deliveries. In 1970 his receipts from this business were approximately $14,000, from which he netted about $4,500. In 1971 he bought a second truck for $3,022 for use in his business, paying $250 down and financing the balance through an auto loan. In December, 1970, the Heitlands and their daughter, a United States citizen by birth, went to Germany for six weeks on an emergency trip to see his ailing sister. On February 4, 1971, they returned, Mr. Heitland travelling on a Canadian passport he had obtained in New York in October, 1970, his wife on her German passport and their child on her United States passport. While in Germany, Mrs. Heitland obtained a non-immigrant visitor’s visa authorizing her to enter the United States and remain until August, 1971, and was admitted as a temporary visitor upon their return to the United States in 1971. Mr. Heitland was admitted to the United States as a non-immigrant in transit to Canada, and their child as a United States citizen. The Heitlands then resumed residence at the Brooklyn apartment where they had previously and have since resided. In April 1971, the Immigration and Naturalization Service instituted deportation proceedings against Mr. Heitland, alleging he had entered the United States in February 1971 with the intention of remaining here indefinitely without a valid immigration visa or permanent-entry document. He conceded his deportability by admitting these allegations but countered by filing another application for change of status, claiming that his wife and he were eligible under § 212(a)(14) of the Act for non-preference quota immigrant visas entitling them to status as permanent residents, see § 203(a)(8) of the Act, 8 U.S.C. § 1153(a)(8), on the ground that he was exempted from the requirement of obtaining a labor certification under § 212(a)(14) of the Act because he was engaged “in a commercial. enterprise in which he had invested. a substantial amount of capital” and thus had created new employment rather than having taken away an existing job opportunity. See 8 C.F.R § 212.8(b)(4). He claimed eligibility for his wife as his dependent. The Immigration and Naturalization Service then instituted deportation proceedings against Mrs. Heitland, alleging she had remained in the United States beyond August 3, 1971, without permission. Upon her admission that she had remained beyond the authorized period she was joined with her husband in his pending application for change of status. On October 4, 1972, the Immigration Judge found the Heitlands deportable but eligible as investors for change of status under 8 C.F.R. § 212.8(b)(4), based on Mr. Heitland’s delivery business, and recommended that the application for change of status be granted. The Board, however, on January 25, 1974, sustained the INS’s position on appeal, holding that the investment made by the Heitlands in delivery vans was not sufficiently substantial to satisfy the requirements of 8 C.F.R. § 212.8(b)(4). In the light of Congress’ desire to safeguard existing employment, the Board interpreted the regulation as requiring an investment that would expand existing jobs and thereby offset the adverse impact which the alien’s employment might have on the job market. Although the Board thus denied the Heitlands an adjustment of status, it nevertheless remanded the case to the Immigration Judge to determine whether the Heitlands were entitled to discretionary relief from deportation under § 244(a)(1) of the Act. In the meantime, in December, 1973, Mr. Heitland was injured in an automobile accident, which forced him to terminate his delivery service. Upon remand the Heitlands in 1975 reapplied to the INS for adjustment of status and also sought suspension of deportation pursuant to § 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), which authorizes the INS in its discretion to grant relief from deportation upon proof (1) that the petitioners have been present in the United States for a continuous period of not less than seven years preceding their application, (2) that they are of good moral character, and (3) that their deportation would result in extreme hardship to themselves or to their citizen child. On November 18, 1975, the Immigration Judge denied the Heitlands’ latest applications for adjustment of status on the ground that Mr. Heitland’s accident had precluded him from continuing his delivery service. The application for discretionary suspension of deportation was also denied on the ground that the Heitlands’ six-week trip to Germany in 1970-71 interrupted their presence in the United States, precluding them from showing that they had “been physically present for a continuous period of not less than seven years immediately preceding the date of such application” as required by § 244(a). On April 13, 1976, the Board dismissed the Heitlands’ appeal from the Immigration Judge’s decision denying suspension of a deportation and held that the visit to Germany constituted a “meaningful interruption” of the continuity of their stay in the United States. On June 4, 1976, the Heitlands filed in this court their petition for review of the Board’s January 25, 1974, and April 13,1976, decisions, which automatically stayed deportation pending our review, see § 106(a)(3) of the Act, 8 U.S.C. § 1105a(a)(3). DISCUSSION A threshold question is whether we have jurisdiction to review the Board’s January 25,1974, decision reversing the Immigration Judge’s decision and denying the Heitlands an adjustment of status. The Board contends that review is precluded by § 106(a)(1) of the Act, 8 U.S.C. § 1105(a)(1), which requires that the petition for review be filed not later than six months from the date of the final deportation order. See United States ex rel. Tanfara v. Esperdy, 347 F.2d 149 (2d Cir. 1965). Since the Board’s January 25,1974, decision constituted a final order in that appeal, see Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), and the Heitlands did not file their petition for review for 2V2 years thereafter, the Board argues that the petition must be dismissed. We disagree. Although the Board’s January 25, 1974, decision denied a status change, it cannot be labelled “final” because it also remanded the case to the Immigration Judge to determine whether deportation should be suspended under § 244(a)(1). Had the latter relief been granted, the effect might have been to render unnecessary any review of the earlier order. On the other hand, had suspension been denied (as actually occurred), both decisions would be reviewable simultaneously rather than in piecemeal fashion. Accordingly we hold that, in view of the Board’s remand, the only final order of deportation was that entered on April 13, 1976, from which the Heitlands took a timely appeal. It therefore becomes unnecessary for us to decide whether they had exhausted their administrative remedies with respect to their third application for adjustment of status, which was made to the Immigration Judge upon the remand ordered by the Board. For present purposes, this latter petition is significant only as further evidence that they had not waived or abandoned their earlier claim for adjustment of status. Turning to the Board’s denial of petitioners’ application for adjustment of status under § 245 of the Act, it is undisputed that, following his 1968 entry into the United States, Mr. Heitland needed employment to support himself and his family and that he did not obtain a certification from the Secretary of Labor under § 212 of the Act which would enable him to perform skilled or unskilled labor. However, he contends that the Board erred in concluding that his investment in vehicles for operation of his one-man delivery service was insufficient to gain him an exemption from the labor certification requirement as an “investor” within the meaning of 8 C.F.R. § 212.8(b)(4) as it existed prior to January 12,1973, which was more favorable to him than the regulation as it was later amended. We disagree. The Board’s interpretation of the INS’s regulation, which is entitled to considerable weight, appears to be reasonable and supported by substantial evidence. See § 106(a)(4) of the Act, 8 U.S.C. § 1105a(a)(4); Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). Whether an investment is “substantial” within the meaning of the regulation depends upon its likelihood of creating new jobs, as distinguished from merely taking advantage of existing employment opportunities by filling them with persons who perform labor or render services as independent contractors rather than as employees. To permit the latter would be to circumvent the purpose of the regulation, which is to protect American workers from unemployment attributable to an influx of aliens competing for a limited number of jobs. United States v. Londono, 433 F.2d 635 (2d Cir. 1970) (per curiam). In the present case, Mr. Heitland’s cash outlay for the two vehicles used in his delivery service totalled $953.97, plus bank loans amounting to $4,772.70. Most of his delivery business was not obtained from sources which had not previously employed persons to make deliveries, but from the Mid-Island Messenger Company, which was engaged in the delivery business. Instead of itself delivering the messages or packages, Mid-Island employed Heitland to do so, for which it paid him 60 percent of the receipts from such deliveries. Thus it could reasonably be inferred that Heitland was not creating a new job but merely performing a service that would otherwise have been rendered by Mid-Island, either directly or through one or more of the many other competing delivery service drivers. The threat to existing employment of resident American workers remained the same, whether they were la-belled “employees,” “workers,” “independent contractors” or “businesses.” Absent some expansion of the market or increase in job opportunities, the existing work force would be adversely affected by the alien’s entry. In any event, Mr. Heitland’s December, 1973, automobile accident terminated his one-man delivery service, leaving him unfortunately dependent upon disability payments, his wife’s salary and their limited capital. Accordingly we affirm the Board’s holding to the effect that Mr. Heitland does not qualify for the “investor” exemption provided by 8 C.F.R. § 212-8(b)(4). The eligibility of the Heitlands for discretionary suspension of deportation pursuant to § 244(a)(1) of the Act presents a more difficult question. Since the Board denied their application solely on the ground that their six-week trip to Germany at the end of 1970 precluded their showing seven years continuous presence in the United States, the issue turns on the significance of that absence and on whether the Heitlands sustained their burden, see Ex parte Orlando, 131 F.Supp. 485 (S.D.N.Y.), affd., 222 F.2d 537 (2d Cir.), cert. denied, 350 U.S. 862, 76 S.Ct. 103, 100 L.Ed. 764 (1954), of proving that it did not meaningfully interrupt the continuity of their presence. In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), the Supreme Court held that the return to the United States of an alien who had been a lawful permanent resident of the United States, after a visit for “about a couple of hours” to Mexico, did not constitute an “entry” as that term is defined in § 101(a)(13) of the Act. If it constituted a new “entry” the alien might be excludable because of an intervening disability, despite the legality of his original entry and later presence in the United States. The Court reasoned that the question turned on whether the alien could upon remand prove that “his departure to a foreign port or place was not intended,” as that phrase was used in the statute, and that this issue should be resolved by reference to various factors relevant to the meaningfulness of the interruption, including the length of his absence, whether his purpose was “to accomplish some object... contrary to some policy reflected in our immigration laws,” and whether the alien engaged in conduct, such as procurement of travel documents, indicating deliberateness and an appreciation for the implications of his departure. 374 U.S. at 462, 83 S.Ct. at 1812. The Court declared that since an absence which was “an innocent, casual and brief excursion” could not be classified as an “intended” departure, it would not be “meaningfully interruptive” of his unlawful permanent residence. Said the Court: “The more civilized application of our immigration laws given recognition by Congress in § 101(a)(13) and other provisions of the 1952 Act protects the resident alien from unsuspected risks and unintended consequences of such a wholly innocent action.” 374 U.S. at 462, 83 S.Ct. at 1812. In Wadman v. Immigration and Naturalization Service, 329 F.2d 812 (9th Cir. 1964), the Ninth Circuit applied these principles in construing the term “continuous period of not less than seven years” as used in § 244(a)(1) of the Act (the section at issue in this case), holding that an alien’s ten-day vacation trip, five days of which were spent in Mexico, did not interrupt the continuity of his presence in the United States sufficiently to preclude discretionary relief, stating: “In our judgment the term ‘continuous’ is no more subject to a hard and fast construction than is the term ‘intended.’ The question is whether the interruption, viewed in balance with its consequences, can be said to have been a significant one under the guides laid down in Fleuti.” 329 F.2d at 816. We agree that Rosenberg v. Fleuti, although construing a different section of the Act, supports a liberal rather than a niggardly or technical construction of the phrase “continuous period” as used in § 244(a)(1). The continuous presence of an alien as a resident in the United States for a long period is undoubtedly one factor of importance in determining whether deportation would result in an unusually severe hardship. Deportation of an alien who had resided in the United States for but a few months, for instance, would not be likely to result in as much hardship as for one who had resided in this country without interruption for seven years. Similarly, deportation of an alien who had accumulated seven years of fragmented residence in the United States, interrupted by frequent or long absences abroad, would not be expected to work as much hardship upon him as might result if he.had resided in this country for an uhbroken seven-year period, since the latter might reduce the likelihood of his being able to establish his home elsewhere. The statute surely was not designed to protect the wanderers or the rootless. Hence Congress used the word “continuous.” On the other hand, to deny a person the benefits of seven years’ continuous residence because of one or two short interruptions might well defeat the purpose of § 244(a)(1), since the hardship in such a case would not be substantially different from that where the presence has been uninterrupted. Applying these principles to the present case, we agree with the Board, after consideration of all of the relevant factors, that the Heitlands’ six-week visit to Germany was “meaningfully interruptive” of their presence in the United States, and that the Heitlands have therefore failed to sustain their burden of demonstrating eligibility for the benefits of § 244(a). It is true that at all relevant times the Heitlands intended to make Brooklyn their permanent residence, that their six-week trip to Germany at the end of 1970 was apparently for the purpose of visiting with his ailing sister, which was consistent with their intent to return and resume residence in the United States, and that they did indeed return. However, while these circumstances might favor application of the liberal principles of Fleuti to preserve the continuity of their presence, other relevant factors militate strongly against such a result. First is the fact that, unlike the petitioners in Fleuti and Wadman, who were at all times lawful permanent resident aliens prior to their departure, the Heitlands, once they remained beyond the six-month period for which they were originally admitted to stay in the United States, were at all times present in this country in violation of its laws. Even assuming that their illegal presence, standing alone, might not preclude § 244(a) eligibility, see Git Foo Wong v. Immigration and Naturalization Service, 358 F.2d 151, 153 (9th Cir. 1966), they had no reasonable basis to expect the government to permit them to further remain in the United States, much less for a continuous period of seven years, or to readmit them upon their return from Germany. Further assuming the petitioner might have become a permanent resident based on his application for adjustment of status by virtue of his employment as a mechanic, that application became moot when he left employment with the union that had sponsored him and started his own delivery business. According to the government, all documents that had been submitted to the INS in support of that application were returned in August, 1968. Thereafter, with no legal right to reside in the United States, the Heitlands nevertheless remained for the next two years, risking deportation, without applying for permission to stay or for change of status until deportation proceedings were instituted against them in 1971, shortly after their return from Germany. While their motive may be understandable, the circumstances hardly add up to an injustice of the type found in Fleuti, Wadman and similar cases where permanent resident aliens, who had the right to reside in the United States, would not have been subject to deportation if they had simply remained within this country’s borders. The aliens in those cases, unlike the Heitlands, were truly the victims of “unsuspected risks and unintended consequences,” 374 U.S. at 462, 83 S.Ct. 1804, and the hardship to them was far greater than that faced by the Heitlands, who had no right at all to reside in this country at the time of their departure for their native land, Germany. The interruptive significance of the Heitlands’ six-week visit to Germany is further evidenced by the deliberateness with which it was undertaken and the implicit misrepresentations used to secure their return to the United States. This was no sudden, spur-of-the-moment holiday or trip across the border into Mexico or Canada, undertaken without appreciating the consequences and without any travel papers other than a state automobile license or some other evidence of residence in the United States. In order to proceed to Germany, the petitioners had to obtain passports and visas, which is a far cry from the situation in Fleuti. Indeed, the Court there emphasized the significance of such conduct, stating: “Still another [relevant factor] is whether the alien has to procure any travel documents in order to make his trip, since the need to obtain such items might well cause the alien to consider more fully the implications involved in his leaving the country.” 374 U.S. at 462, 83 S.Ct. at 1812. Aware that they had been illegal residents of the United States for some years, the Heitlands, in order to leave the country for a substantial period and gain return without exposing their deportability, had to resort to maneuvers that hardly bear the hallmarks of innocence. Lacking any right to return to the United States as a lawful resident, Mr. Heitland, according to his sworn statement to the INS, gained entry on his Canadian passport as a non-immigrant in transit to Canada, see 8 C.F.R. §§ 212.1(a) and (e)(1), when, in fact, he had no intention of proceeding to Canada. His plan was to return to his Brooklyn residence and remain permanently in the United States. Similarly, Heitland admitted that his wife, returning on her German passport, gained entry on the basis of a temporary non-immigrant visitor’s visa obtained by her in Germany from the United States Consulate. Although she thus represented expressly or impliedly that she was going to the United States as a visitor (authorized to stay not more than six months) she in fact intended to resume permanent residence in Brooklyn. She simply planned to repeat what she had done three years earlier — overstay her “visit” and remain unlawfully in the United States. There is no evidence that the INS, upon admitting the Heitlands for the limited time and purposes indicated by their papers, knew of their Brooklyn residence or of their intent to remain permanently. In short, in using implicitly deceptive methods to secure re-entry in the United States, the Heitlands were engaged in a course of conduct directly contrary to a “policy reflected in our immigration laws,” 374 U.S. at 462, 83 S.Ct. at 1812. To permit them to treat their six-week absence and re-entry as if these events had never occurred would be to reward them for what amounted to misleading conduct and would render meaningless the express requirement that the seven-year residence be “continuous.” The implicitly fraudulent circumstances of their return, when considered with the admitted illegality of their presence in the United States before their departure and the substantial period of time for which they absented themselves, do not present a picture of the type of hardship or injustice which Fleuti or its progeny were intended to remedy. This was a substantial and deliberate interruption of an illegal presence in the United States, accomplished through consciously misleading conduct. In concluding that the Heitlands are not eligible for suspension, we do not hold that an absence longer than the few hours in Fleuti or the five days in Wadman necessarily constitutes a “meaningful interruption” of an alien’s continuous presence in the United States. As the Supreme Court made clear in Fleuti the significance of an absence will depend upon the relevant factors and circumstances found in each case. In Wong v. Immigration and Naturalization Service, 363 F.2d 234 (9th Cir. 1966), for instance, the Ninth Circuit held that the unexpected six-month absence of a 16-year old youth in Canada, which was neither voluntary nor with an appreciation for the consequences but by order of his foster parents, did not necessarily constitute a meaningful break of his continuous presence in the United States under § 244(a)(1) and remanded the case to the Board for a hearing on the issue of his intent. Similarly, in Itzcovitz v. Selective Service Local Bd. No. 6, N.Y., N.Y., 447 F.2d 888 (2d Cir. 1971), we held that a permanent resident alien lawfully in the United States might go for two or three weeks to a special training course in Israel at his employer’s discretion without risking exclusion on the grounds that while in the United States he had exercised his treaty right to claim exemption from United States military service. However, these decisions are clearly distinguishable from the present case and did not involve illegality of the type which characterized the Heitlands’ presence in the United States or misleading conduct of the type inherent in their return. Indeed, in Itzcovitz we expressly noted that “The purpose of his [the alien’s] trip is entirely bona fide, honorable and lawful... indeed, the sole purpose of the three week trip is to qualify him for more useful employment service as he continues his permanent residence.” 447 F.2d at 894. For these reasons we affirm the Board’s order denying suspension of deportation. . Section 245 of the Act, 8 U.S.C. § 1255(a), as amended, provides in pertinent part: “(a) The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.” . Section 244(a) of the Act, 8 U.S.C. § 1254(a), provides in pertinent part: “(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and— “(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence;.. . Section 241(a)(9) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(9) provides for the deportation of any alien admitted as a non-immigrant who fails to maintain that status. The application for a visitor’s visa provides that gainful employment in the United States is a violation of visa conditions. See 8 C.F.R. § 214.1(a). . “Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor” are excludable pursuant to 8 U.S.C. § 1182(a)(14) unless they obtain labor certification from the Department of Labor. See Londono v. Immigration and Naturalization Service, 433 F.2d 635 (2d Cir. 1970) (per curiam) (aliens admitted as visitors may not obtain employment). . Mr. Heitland paid $703.97 in cash toward the purchase price and financed the balance through an auto loan. . Section 212(a) of the Act, 8 U.S.C. § 1182(a) provides in pertinent part: “Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission in the United States;... “(14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skill or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” The purpose of this statute is to assure that immigrant aliens seeking to enter with a view to obtaining jobs will not displace American workers. Congress has sought to achieve this objective by denying entry unless the Secretary of Labor certifies that the labor force in which the alien proposes to work is inadequate and that employment of aliens will not adversely affect wages and working conditions. . 8 C.F.R. § 212.8(b)(4), as it existed at the time when the 1971 application by the Heitlands for adjustment of status was filed, provided in pertinent part: “(b) Aliens not required to obtain labor certifications. The following persons are not considered to be within the purview of section 212(a)(14) of the Act and do not require a labor certification:... (4) an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital.” Effective January 12, 1973, the regulation was amended, see 38 Fed.Reg. 1380, to require that the alien invest capital totalling at least $10,000 in the commercial enterprise and establish that he has at least one year’s experience or training qualifying him to engage in it. Effective October 7, 1976, the regulation was further amended to require an investment of at least $40,000 in an enterprise in which “he will be a principal manager, and that the enterprise will employ persons in the United States who are United States citizens or aliens lawfully admitted for permanent residence, exclusive of the alien, his spouse and children.” . The record does not reveal whether Mr. Heitland, after acquiring the second van, continued to use the first in his business. . Although the Heitlands in 1970 had approximately $6,000 in a savings bank account and Florida real estate valued at $11,000, there is no showing that these resources were invested in the operation of any commercial enterprise. . Section 101(a)(13) of the Act, 8 U.S.C. § 1101, defines “entry” as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary.” . Although Mr. Heitland testified that he went to Germany because his mother had recently died and his sister was ill, the record is bare of any further details as to the surrounding circumstances, including the reason why it was necessary for him and his wife to stay in Germany from December 22, 1970, to February 4, 1971, a period of 44 days. . In his dissent Chief Judge Kaufman disputes the persuasive record evidence that the Heitlands, upon returning to the United States from Germany on February 4, 1971, implicitly lied to the INS about their intention to remain permanently in the United States and points to self-serving testimony given in 1975 by Mr. Heitland after he had filed his § 244(a) application for suspension of deportation, to the effect that he told the INS of his true intentions when he re-entered from Germany. Of course the Heitlands’ credibility was a matter to be determined exclusively by the Immigration Judge, see Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Masamichi Ikeda v. Burnett, 68 F.2d 276 (9th Cir. 1933); Wong Gim Ngoon v. Proctor, 93 F.2d 704 (9th Cir. 1937), who in this case obviously preferred to believe that Mr. Heitland was “admitted N/C” in order “to pass thru the U.S. to go to Canada, because you had no other kind of permit” and not to reside here, and that Mrs. Heitland claimed only the right to visit the United States for six months. Indeed there is convincing record support for the inference that the Heitlands implicitly misrepresented their intentions to the INS. On April 23, 1971, only a couple of months after his return from the six-week stay in Germany, Mr. Heitland swore in an affidavit in his own handwriting filed with the INS that he had been admitted on February 4, 1971 as a “visitor.” At an INS hearing on May 12, 1971, Mr. Heitland conceded that he was “illegally here as charged in the order to show cause,” which had been issued by the INS on April 23, 1971, seeking his deportation

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?

Henry JEFFERSON, Appellant, v. UNITED STATES of America, Appellee. Robert COOPER, Appellant, v. UNITED STATES of America, Appellee. Nos. 18878, 18924. United States Court of Appeals District of Columbia Circuit. Argued June 14, 1965. Decided July 9, 1965. Mr. John L. Kilcullen (appointed by this court), Washington, D. C., for appellant in No. 18,878. Mr. John A. Shorter, Jr., Washington, D. C., for appellant in No. 18,924. Mr. John R. Kramer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Before Fahy, McGowan and Leven-thal, Circuit Judges. PER CURIAM: The error asserted to infect these convictions of housebreaking and larceny derives from the trial court’s failure to suppress evidence obtained from an allegedly unlawful search in connection with an allegedly unlawful arrest. We find no such error. A police officer in a scout car saw a parked car bearing temporary D. C. tags and a Virginia inspection sticker. Deciding to check the ownership, he approached the driver who, with three other persons (including the appellants), was sitting in it. The driver said the car belonged to appellant Cooper, who was seated on the other side of the front seat. When the officer walked around to talk to him, he observed a blackjack lying on the floor of the car. The possession of a blackjack being illegal (22 D.C.Code § 3214(a)), the officer asked whose it was. When all four denied knowing anything about it, he asked them to get out of the car and told them that he was going to charge them all with the illegal possession. See 23 D.C.Code § 306(a) and (b), providing expressly for arrests without warrant, and for incidental searches, in respect of the possession of illegal weapons. Having already observed a tape recorder and other articles in the car, the officer asked the driver to unlock the trunk, which he did. There a number of other articles were found which were, with the tape recorder, eventually introduced into evidence as stolen. At the scene of the arrest, the officer directed the four to follow him in their car to the station, where the articles in question were removed from the car. The officer was, it appears to us, fully authorized to make the initial inquiry about the ownership of the car, and, in the course thereof, to make the arrest for illegal possession of a blackjack. The search of the car, as an incident to that arrest, was not so remote from it in point of time or place as to be unreasonable. See Price v. United States, 120 U.S.App.D.C. -, 348 F.2d 68, decided June 10, 1965; Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567 (1965). The judgments appealed from are Affirmed.

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

EMPIRE DISTRICT ELECTRIC CO. v. RUPERT. No. 14571. United States Court of Appeals Eighth Circuit. Nov. 18, 1952. Rehearing Denied Dec. 10, 1952. Johnsen, Circuit Judge, dissented. E. P. Dwyer, Jr., and A. E. Spencer, Jr., Joplin, Mo., for appellant. William G. Boatright, Kansas City, Mo., for appellee. Before THOMAS, JOHNSEN and RID-DICK, Circuit Judges. THOMAS, Circuit Judge. This is an action for damages for personal injuries. A judgment based upon the verdict of a jury for the plaintiff for $25,-000 was entered, and the defendant appeals. Jurisdiction of the federal court is based on diversity of citizenship and the amount involved. The defendant owns and operates an hydroelectric plant on the White river in Taney County, Missouri. In connection with its business it owns and operates a dam on the river approximately 50 feet high from the bed of the river. The plaintiff in his complaint alleged that on June 12, 1950, while navigating the lake above the dam in a small fishing boat with an outboard motor he, without any warning, was sucked, swept or thrown over the dam and severly injured. He charged that his injuries were proximately caused by the negligence of the defendant, in that (a) no warning signs were maintained to advise one approaching that surplus water was being spilled over the top of the dam and that there was danger of boats being sucked, swept or thrown over the top of the dam, and (b) that defendant failed to maintain any barriers, booms, chains, ropes or obstructions in front of the dam to prevent plaintiff and others navigating the river from being swept over the dam. The defendant admitted the jurisdiction of the court and that plaintiff had been injured by going over the dam, denied any negligence, and alleged that plaintiff was guilty of contributory negligence which was the direct and proximate cause of his injury in that he had full knowledge and notice of the existence of the dam; that he knew and saw the situation and the danger existing and that he intentionally operated his boat too near the spillway and within the danger zone for the purpose of taking pictures, all in utter disregard of his safety. It was stipulated that the waters of the White river at and above the dam constitute navigable waters of the United States; that the dam was constructed pursuant to an Act of Congress, see 33 U.S.C.A. § 401, and also Public Law No. 342-, 36 U.S.Stat. 897, by defendant’s predecessor; and that its authorized crest was 700 feet above sea level plus an additional 5 feet to be maintained by flashboards. The Act of Congress provided that the dam should be constructed and operated in accordance with the provisions of the Act approved June 23, 1910, entitled “An Act to amend an Act entitled ‘An Act to regulate the construction of dams across navigable waters,’ approved June twenty-first, nineteen hundred and six,” 36 U.S.Stat. 593, 33 U.S.C.A. note preceding section 401. The latter Act provided that the plans and specifications for such dams were subject to the approval of the Secretary of War and the Chief of Engineers, and that “ * * * it shall not be lawful to deviate from such plans or specifications either before or after completion of the structure unless the modification of such plans or specifications has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War: * * The Act provided further that: “The persons owning or operating any such dam * * shall maintain * * * such lights and other signals thereon * * * as the Secretary of Commerce (and Labor) shall prescribe * * The entire dam structure including the power house on the right is approximately 1300 feet long. The spillway section is about 593 feet long and 50 feet above the river bed. Water does not flow over the earth embankment on the left which is about 420 feet in length. A lookout observation place where the earth embankment joins the spillway section is about 20 feet higher than the spillway. The power plant at the right including the intake for the engines is 228 feet long. The lake impounded above the dam is approximately 15 miles long and is known as Lake Taneycomo, and the dam is commonly called the Powersite dam. Splashboards 26 inches high were in use over the entire length of the spillway, and on the day of the accident the water going over the top of them was about 24 inches deep, which was equivalent to an elevation of 54.90 feet. The plaintiff-appellee, Captain Oran H. Rupert, Infantry, U. S. Army, testified that in June, 1950, he obtained a leave of absence from his military duties. With his wife he went to Lake Taneycomo where they rented a cabin at Rockaway Beach on the lake. This was his first trip there, and he knew only that it was a recreational area. For the six days prior to the accident on June 12th he fished practically every morning and evening and took pictures during the day. He had fished on lakes in small fishing boats before, had used outboard motors and was familiar with their operation. Photography had been his principal hobby since 1940. June 12th was a beautiful day with the sun shining brightly, and he decided to take some pictures of the lake or of the docks. He had rented a boat for his use and mounted on it a U/2 horsepower Evinrude motor which he had brought with him on his vacation. He then started downstream for the purpose of viewing the lake and taking pictures. The first indication of the dam was the concrete structures on either side of the stream or lake. The structure on the right was large, and some sort of tower was on the left bank (going downstream). No one had ever described the dam to him. He had no information that a 600-foot open spillway was across its center. He had never seen a dam with an open spillway through the center 600 feet and did not know that such type dam was constructed. He saw no warning signs of any kind, no boom across the lake in front of the structures, no floating buoys. No one had given him any warning, and he proceeded downstream with his motor half open, as was customary. There was no turbulence or current in the water. It was more turbulent upstream than immediately above the dam. He did not observe any current nor see any driftwood, twigs or leaves moving down the lake. On his first trip down he did not observe the 600-foot open spillway and did not know it was a spillway until long afterwards. He proceeded toward the low concrete structure and when he got closer to the dam he made a short arc and reversed himself. He was in the middle third of the lake all the time, interested in what scene he could observe for the purpose of taking a picture. As he was approaching the dam, seeing what he could, he made a turn to the left, an arc, turned back and proceeded upstream a couple of hundred yards on the right side going up from the dam. He then let the motor idle, took the cameras from the case, and adjusted a filter to take a cloud picture. He testified “I intended to retrace my first course and take the picture, and that is the last thing I remember.” He remembered nothing about going over the dam or the fall into the whirlpool below. His testimony was not entirely consistent in every particular. In one part of his testimony, referring to his first trip down to the dam, he stated: “ * * * at a distance of 25 feet above the spillway, seated in the boat, I do not recall ever seeing the river below the dam. I do recall seeing trees and foliage at a lower level than the top of the lake.” Again, he said: “On my first trip, anticipating the picture downstream, I saw the river below the dam at a distance — the distant scene was my interest and the river below the dam was a part of the scene.” Further, on cross-examination he testified that his last memory was when 200 yards upstream from the dam he turned his boat and started back down to the dam to take the picture of the scene below the dam. He remembered nothing that occurred thereafter, but, he said, “ * * * I am confident that I re-did exactly what I did before. “Q. But that is just a surmise ? A. Yes, sir. “Q. On the other hand, from as far as your memory, you might have steered and sailed right over? A. I may have, but I don’t know. I know what my intentions were.” His next conscious memory was in the hospital. • Engineers familiar with several dams in .rivers with open spillways testified in regard to the safety devices or the absence of them at dams with which they were familiar. Their testimony disclosed that at some such dams, booms, buoys, danger signs and lights are used to warn the public of danger or to prevent accidents whereas, at many others no such warnings are used. While there is nothing in the record to indicate when the dam was constructed, Leroy Smith, plant superintendent for the defendant, stated that lights have been maintained on the dam for the past 30 years. One red light is at each end of the spillway and white lights, like street lights, are maintained on the upstream side which' illuminate the dam at night. No signs are maintained in the daytime, “ * * * because you can see the concrete structure and would know there was a dam.” Lawrence Bartlett, general superintendent of the defendant, testified: “There is danger when water is flowing over the dam of anybody in a boat getting down very close to the dam where there is a flow or current. There were no warning signs of any kind or character maintained to warn people of the danger of approaching a given area near the dam * * * I * * felt that it [the danger] was self-evident to any one who might be on the water * * .” At the ¡close of the plaintiff’s case and again at the close of all the evidence the defendant moved the court to instruct the jury to return a verdict for the defendant on the ground that the record failed to show a breach of lawful duty to the plaintiff on the part of the defendant, but that the evidence conclusively showed that the plaintiff was guilty of negligence which directly and proximately contributed to his injuries as a matter of law. Both motions were overruled. The case was submitted to the jury upon instructions to which.no exception is taken here. The only contention in this court is that these motions for a directed verdict, or one of them, should have been sustained by the court. The instructions are important, therefore, only as tests to be applied to the testimony to determine whether or not it was sufficient to support a verdict for the plaintiff. On the question of negligence the court instructed that “ * * * if you find and believe from * * * the greater weight of the evidence * * * that there was a dangerous condition existing as a result of the impounding of the water, and that no notice thereof was given, no signs posted, that the plaintiff in the exercise of ordinary care on his part could not have seen or observed the dangers incident to the water flowing over that dam, and that as a result of that carelessness and negligence the boat in which he was riding, propelling, was caused to be sucked over the dam and he was injured, you'r verdict should be for the plaintiff. “On the contrary, * * * contributory negligence in this case is pleaded as an affirmative defense, and just as the duty is upon the plaintiff to prove his case by the preponderance or greater weight of the evidence, so is the duty upon the defendant to prove the contributory negligence of the plaintiff by the same degree of care * * * if you find that the accident was a result of his own carelessness and negligence in failing to observe that which could have been observed in the exercise of ordinary care, then it would be your duty to find for the defendant. “ * * * As I stated to you, if there was a dangerous condition created and existing as a result of the impounding of the waters which could not be observed by a person in the exercise of ordinary care, it would then have been the duty of the defendant to provide such warning. But if the danger, if it existed, was so obvious and appreciable that a person, in the exercise of ordinary care could have seen it and understood it, then the question of posting notices or placing buoys or other obstacles, would have no place in this case * * * it isn’t required that one be given notice of that which can be seen and observed in the exercise of ordinary care * ,* * If it [the danger] was apparent to an ordinarily prudent person, the warning would make no difference * * *.” The vital question for determination on this appeal is whether the evidence is such that this court can say as a matter of law that the plaintiff in the exercise of ordinary care could have seen and avoided the danger created by the dam; that the danger was apparent to an ordinarily prudent person. Under Missouri law the burden of proof was upon the plaintiff to plead and to prove that the specific negligence of the defendant was the proximate cause of his injury, Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197; and upon the defendant to prove the alleged contributory negligence of the plaintiff. Brady v. St. Louis Public Service Co., Mo.Sup., 233 S.W.2d 841, 844. The rule in federal courts is that the burden of showing grounds on which a judgment should be reversed rests on the appellant. Elias v. Clarke, 2 Cir., 143 F.2d 640, certiorari denied 323 U.S. 778, 65 S.Ct. 191, 89 L.Ed. 622. And we are well aware that on ap-, peal from a judgment rendered on a jury verdict in favor of plaintiff for personal injuries the testimony must be considered most favorably to support the judgment. St. Paul Hotel Co. v. Lohm, 8 Cir., 196 F.2d 233. Further, we realize that this court is “an appellate court sitting to review alleged errors of law, and not to try the action de novo.” Twentieth Century Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, 852. Nor can it be forgotten that “A jury does not have the power to render a capricious and arbitrary verdict in total disregard of the evidence.” Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, 310. With all this in mind we find that the plaintiff admitted he knew the dam was there, but he did not know that the spillway was between the high walls on the ends of the dam; that he supposed it was on the right side of the river where the power house was seen to be. The crucial evidence to be considered is plaintiff’s testimony that on his first trip down to the dam on June 12th, to determine where he would take a picture, when he approached to within 25 to 50 feet of the dam, looking over the top of it, he saw the .river and trees below, and he then decided that was the scene which he desired to photograph. But he testified in substance that he did not appreciate the fact that water was pouring over the dam at that point; he considered it to-be only the edge of the “pond.” The fact was, however, that it was not the edge of a pond. That water was passing over the dam would necessarily have been evident to any observer. No part of the spillway was above the surface of the water; the water was less turbulent near the dam than it was further upstream. It is difficult to understand how any person could fail to see that the water was spilling over the top of the dam at that point. It is true that a person in these circumstances, unless he observed carefully, might not be able to estimate how much water was going over the dam or its velocity. It is well established Missouri law that “Where one is charged with the duty to look, and to look is to see, he must be held to have seen what looking would have revealed.” Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548; Weis v. Melvin, Mo.Sup., 219 S.W.2d 310; Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626. And “The law is further well settled that ‘a failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law.’ ” State ex rel. Kansas City So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 918; Harding v. Triplett, Mo.App., 235 S.W.2d 112. And see, also, Clark v. Missouri Natural Gas Co., Mo.Sup., 251 S.W.2d 27. But, says counsel for plaintiff, the plaintiff on his second and fatal trip down the lake is presumed in the absence of evidence to the contrary to have exercised due care because of loss of memory, citing Stotler v. Chicago & A. R. Co., 200 Mo. 107, 98 S.W. 509, 521. In the cited case plaintiff was injured at a railroad crossing, and the court said that “Eugenia [the plaintiff] being unable to speak on her own behalf, being left by her injuries as though dead, and having no knowledge of the affair, she is entitled to certain presumptions in her favor, and those presumptions are that, in the absence of evidence to the contrary (because of the natural instinct of love of life), she did exercise due care.” ‘In response to a like contention, Mr. Justice Lamm in Mackowik v. Kansas City, St. J. & C. B. R. Co., 196 Mo. 550, 94 S.W. 256, 262, said: “ * * * presumptions have no place in the presence of the actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care * * *And he quoted the adage that “Presumptions * * * may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.” Here it is not necessarily what the plaintiff saw and observed on his second trip to the dam, but it is what he should have seen and observed on his first trip. That is, should he not have observed the water going over the dam at that time and appreciated the danger, since he was bound to exercise the care for his own safety commensurate with the situation in which he found himself? The only excuse for such neglect is that at the time he was interested only in the view below the dam as presenting an attractive scene for a picture. Further, his lapse of memory reached back only to the beginning of 'his second trip. He recalled with apparent clarity his observations on the first trip to the dam only a few minutes prior to the last trip. His failure to observe what was apparent and to« appreciate the danger was «carelessness. It was not a case of traumatic amnesia as in Knight v. Richie, Mo. Sup., 250 S.W.2d 972, or of retrograde amnesia as in Prewitt v. Rutherford, 238 Iowa 1321, 30 N.W.2d 141, in which cases •doctors testified to the effect of shock on •one’s memory. We cannot escape the conclusion that the plaintiff was contributorily negligent and .that such negligence was the direct and proximate cause of his injury. As said by the Supreme Court of Missouri in Tietze v. New York, C. & St. L. R. Co., 250 S.W.2d 486, 488. “No one can assume there will not be a violation of the law or negligence •of others and then offer such assumption as an excuse for failure to exercise care.” The judgment must, therefore, be 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?

ARBOGAST v. GOTTFRIED. No. 6064. Circuit Court of Appeals, Sixth Circuit. April 14, 1932. Frick & D’Arcy, of Tiffin, Ohio, for appellant. Niles & Peters and Paul A. Flynn, all of Tiffin, Ohio, for appellee. Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges. MOORMAN, Circuit Judge. The bankrupt was a married man living with his wife, and at the time of his bankruptcy owned live stock, farming implements, and machinery .upon which there were a valid first mortgage for $657.73, and a second mortgage to his mother, admittedly preferential, for $1,110. He had no other property of consequence. The property in question was sold at public auction for $1,536.83. The bankrupt’s mother released her mortgage by withdrawing it from the files of the office of the county recorder, and later filed proof of an unsecured claim. The bankrupt asked to be allowed $500 in lieu of a homestead exemption out of the proceeds of the sale of the property in excess of the valid mortgage. The referee and District Court allowed the exemption, and the trustee appeals. The only question presented is: May a bankrupt claim a homestead exemption in property which was transferred as a preference but which has been returned to his trustee? Section 24, title 11, USCA, provides that the Bankruptcy Act shall not affect the allowance to the bankrupt of the exemptions prescribed by the state laws. Section 11738 of the General Code of Ohio provides for an exemption of $500 in lieu of a homestead. In determining the rights of bankrupts to exemptions, courts of bankruptcy will follow the construction placed upon local statutes by the highest court of the state. In re Tollett, 106 F. 866, 54 L. R. A. 222 (6 C. C. A.); In re National Grocer Co., 181 F. 33, 35, 30 L. R. A. (N. S.) 982 (6 C. C. A.); In re Baker, 182 F. 392, 393 (6 C. C. A.). The Supreme Court of Ohio has decided that a homestead exemption may be allowed from property fraudulently conveyed, and recovered by creditors. Sears v. Hanks, 14 Ohio St. 298, 84 Am. Dec. 378; Tracy v. Cover, 28 Ohio St. 61; Bills v. Bills, 41 Ohio St. 206; Roig v. Schults, 42 Ohio St. 165. The first two of the above-cited cases state that such exemptions are based upon the policy of the homestead act to protect the family of the debtor, irrespective of his censurable acts. To the same effect are In re Hewitt, 244 F. 245, 247 (1917 D. C. N. D. Ohio), per Judge Westenhaver, and In re Cabot, 295 F. 765 (1921 D. C. S. D. Ohio), per Judge Peek. Appellant concedes the controlling effect of these eases as to property fraudulently conveyed, but insists that there is a distinction to be made between the right to claim exemption from property thus conveyed and recovered back and from property that has been preferentially conveyed. The Supreme Court of Ohio has never been called upon to consider the rights of a homestead claimant to property preferentially conveyed; but see In re Assignment of White, Ohio (Goebels) Prob. Rep. 153. The only ease cited in support of appellant’s contention is In re Neal, 14 A. B. R. 550 (Ohio Referee). This decision is not supported by the Ohio decisions in fraudulent conveyance cases which proceed upon the theory that, if the creditors are seeking to subject the property to a debt on the ground that it is the property of the debtor, they may not contest the right of the debtor to claim exemptions on the same ground. Sears v. Hanks, 14 Ohio St. 298-300, 84 Am. Dee. 378; Tracy v. Cover, 28 Ohio St. 61, 65. Collier on Bankruptcy (1927), page 198, finds no good reason for the Neal decision, stating: “The effect of the surrender or recovery of preferences received by creditors is to restore the property of the bankrupt to his estate as if such preference had not been given. When a preferential transfer is set aside it has the same effect as the setting aside of a fraudulent transfer. The property then becomes restored to the bankrupt’s estate and is subject to his exemptions.” In construing and applying. the exemption statutes of Ohio, the Supreme Court of that state, as pointed out in Re Hewitt, supra, “has extended their protection, whenever the law or the facts brought a case within the policy and reason thereof.” The giving of a preference is no more reprehensible than the making of a fraudulent conveyance. In either ease the effect of the recovery of the property, as said by Collier, supra, is to restore it to the bankrupt’s estate. It being the policy of the Ohio exemption laws to protect the family of the debtor, we can see no reason why property which has been preferentially conveyed but voluntarily restored to the trustee, as in this case, is not subject to homestead exemptions. The judgment is affirmed.

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

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

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

Dr. Pedro SILVA et al., Plaintiffs-Appellees, v. SECRETARY OF LABOR et al., Defendants-Appellants. No. 74-1410. United States Court of Appeals, First Circuit. Argued March 6, 1975. Decided June 10, 1975. James P. Morris, Atty., Dept, of Justice, with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., and Paul G. Gorman, Atty., Dept, of Justice, Washington, D. C., were on brief, for defendants-appellants. S. Joseph Ciccia, Springfield, Mass., with whom Lawrence J. Kenney, Springfield, Mass., was on brief, for plaintiffsappellees. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This is an appeal by the Government from an order of the district court setting aside the Secretary of Labor’s refusal to issue an alien labor certification in favor of Miss Laurinda Pires, a citizen of Portugal, who has agreed to work as a live-in maid at the home of Dr. Pedro Silva in Springfield, Massachusetts. The court directed the Secretary to issue the certification. Alien labor certification is provided for in section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14). Aliens “seeking to enter the United States for the purpose of performing skilled or unskilled labor” comprise one of a number of categories excluded from admission, “unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” Dr. Silva, a gynecologist and obstetrician, sought to obtain certification for Miss Pires in the fall of 1972 by filing with the Massachusetts Division of Employment Security in Springfield the completed forms and back-up papers required under the Secretary’s regulations. 29 C.F.R. § 60.2. As we must decide in the course of this appeal whether or not the Secretary’s denial was arbitrary or unlawful, we set forth in rather elaborate detail the information furnished therein and the proceedings generally as they appear in the record. A form entitled “Statement of Qualification of Alien”, executed by Miss Pires, was submitted. She indicated that she had had 30 years experience as a maid, cook and domestic servant, and was seeking work as a “domestic.” In a companion form, “Job Offer for Alien Employment,” Dr. and Mrs. Silva attested that they would hire a qualified U.S. worker if one were available; that efforts had been made to fill the job through the “Unemployment Office, bulletins at three hospitals”; that the job to be performed was “House cleaning, cooking, mending, washing, ironing and occasional child care”; that the total number of hours per week was “40 hours” (the space for overtime was left blank); that “basic” and also “overtime” pay would be $2.00 per hour; that room and board would be provided and the employee would have a private room; and “some knowledge of Portuguese language is helpful.” In a third form entitled “Supplemental Statement for Live-at-work Job Offers,” Dr. Silva indicated that his household contained two adults and three children, ages six to eleven, and that the alien would be paid $80.00 weekly, with $5 to be deducted weekly for 57 weeks in order to repay anticipated advances for visa, medical fees and travel from Portugal to Springfield. Dr. Silva reported that there had been no respondents to job advertisements he had placed at the hospitals. Under the question, “if alien will be required to give special care or attention to any persons, please explain,” Dr. Silva replied “None.” Submitted with the forms was a copy of the employment contract signed by the Silvas and Miss Pires. Miss Pires was described as a “live-in domestic.” Her workweek was to be 40 hours. The “exact hours of daily employment” were described as from 8 a. m. to 5 p. m. with one hour off for lunch Monday through Friday. The employee was to be “free to leave the premises of the employer at all other times except that she may work overtime paid at the hourly rate of $2.00 U.S. dollars.” Further it was “understood that the employee will reside on the employer’s premises,” and no money was to be advanced “except if the employee needs the same.” Shortly after the above forms had been filed, the Manpower Administration in Boston asked the Silvas and state employment security officials for further information as to what had been done to locate legal resident workers for the job, especially day workers. The following were then submitted: 1. Form executed on behalf of the local Springfield office of the Massachusetts Division of Employment Security that the prevailing wage in that area for a Maid General (Dom. Ser.) was $2.00 per hour plus room and board, and that the regular and overtime wage Dr. Silva offered equalled the prevailing wage. The form included the statements, “We have been unable to refer any qualified applicants for live in domestic employment,” and that “Workers are not available in this occupation (live in domestics).” The number of “active applications on file” was “21” [presumably meaning day worker applicants]. 2. Statements under oath by Reverends George Farland and Edward Kennedy of the Sacred Heart Parish that they had attempted unsuccessfully to locate someone who would work for the Silvas as a live-in maid. 3. Statement under oath of Phyllis O’Brien, director of Social Services at Mercy Hospital, of unavailing efforts for a considerable period of time to find a live-in maid for the Silvas, “as most of the people were only available for part-time work and were not able to provide the range of services the doctor needed.” 4. Affidavit of Dr. and Mrs. Silva attesting to unavailing efforts through employment agencies listed in the Yellow Pages of the phone book as well as through his parish and hospital to secure a live-in maid. Dr. Silva also replied to the few newspaper ads found in local newspapers, finding more often than not that they are “for part-time situations and by people more involved in cleaning rather than cooking, etc.1 went on to say, Dr. Silva “The reason why a day worker would not be suitable for this position is that as a doctor of Obstetrics and Gynecology, I am working long hours and irregular hours, and I am out of my home a great deal. My demands of my wife are great in terms of helping me in communications with patients in being in attendance at social functions, meetings, conferences and seminars out of the city and in addition to having an unusually large home which needs a lot of attention. She has also been doing some volunteer teaching. It is important that someone be physically present in our home with whom our children will be comfortable at meals and other times without their mother and father present. A person living in our home would also be more available for our irregular schedule and also for overtime in unusual time demanding situations. A special relationship through her physical presence with the children would facilitate keeping the children on a regular schedule. We have employed day workers from time to time and this has not proved successful at all in terms of availability and capability. . . .” On December 14, 1972, the Secretary’s certifying officer in Boston issued a form response to Dr. Silva, to the effect that the Secretary could not issue the certification required by section 212(a)(14) because “Available job market information will not warrant a certification of unavailability of workers in the U.S.” Dr. Silva promptly sought review of the decision, in accordance with the Seeretary’s procedures. Dr. Silva’s counsel, by letter dated February 14, 1973, listed as the grounds for review that all available information, from both private and public sources, continued to demonstrate the unavailability of persons who could be hired. Further, it was urged that Dr. Silva’s and his wife’s need was “compelling”. Accompanying was a psychiatrist’s letter to the effect that she had examined Mrs. Silva on February 14, and that Mrs. Silva had described complaints dating from June, 1972, involving “intermittent spells of severe anxiety, accompanied by nightmares, insomnia and severe irritability.” Reference was made to weight loss and impulses to run away. These symptoms occurred exclusively at night, when Dr. Silva was out on call. Dr. Silva had attempted to cope by installing an expensive alarm system. The psychiatrist wrote that Mrs. Silva had been “chronically depressed by her geographic separation from her extended family”, and recommended, “a live-in companion ... to protect this woman’s mental health during her husband’s frequent absences. In my opinion she suffers from severe and disabling anxiety neurosis which is exacerbated by her being left alone in the house.” Together with the psychiatrist’s letter was an affidavit of Dr. Silva, relating that he had made continued, unavailing efforts to secure a worker, and that the Massachusetts Division of Employment Security had not produced any prospective workers even for interview. In addition, Dr. Silva said that the hours of his work caused him to be absent from home many hours during the evening and early morning, and that notwithstanding installation of an alarm, his wife’s needs persisted. The denial for certification was thereafter reviewed by the Assistant Regional Manpower Administrator, see 29 C.F.R. § 60.4, who on March 26, 1973, notified Dr. Silva’s attorney that, after review, he failed to find any grounds warranting reversal of the certifying officer’s decision. He went on to state, “The concerns raised by Dr. E. Deborah Gilman, M.D. [the psychiatrist] strongly limit any reasonable access to possibly qualified and available applicants from the resident U.S. labor force, under the job classification cited by your client (Domestic Live-in). To the contrary, the duty requirements cited by Dr. Gilman to ‘protect this woman’s mental health’ are above and beyond those normally expected for the occupational classification requested at the wage offered.” Upon receipt of this letter, Dr. Silva’s attorney submitted a further letter from Dr. Gilman, to the effect that she never meant to say that Mrs. Silva was in need of any kind of professional or paraprofessional psychiatric nursing attention. Rather, given Dr. Silva’s frequent and irregular absences from his home during the night, she needed a live-in servant to provide her “the reassurance that only another adult in the home can give.” This, the psychiatrist stated, could be adequately fulfilled by a domestic servant. On April 28, 1973, the reviewing officer wrote that he had again reviewed the case in light of the enclosure and found no grounds to reverse. Thereafter appellees commenced suit in the district court, seeking a declaratory judgment and review under 28 U.S.C. § 2201 and section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 70A-06. The thrust of the complaint was that given the abundant evidence that United States labor to fulfill the job requirements was unavailable, it was arbitrary for the Secretary to deny certification. The Government moved to dismiss. It argued that the certification statute was not designed to protect potential employers but only the American labor market; therefore, it was claimed, Dr. Silva lacked standing. See Braude v. Wirtz, 350 F.2d 702, 706-08 (9th Cir. 1965). With this argument was coupled the argument that labor certification was non-reviewable as “agency action committed to agency discretion by law. . . . ” 5 U.S.C. § 701(a)(2). Finally the Government argued that it was not an abuse of discretion for the Labor Department to determine that day workers could adequately fulfill the job requirements and were available in the Springfield area. The Government pointed to the 8 a. m. to 5 p. m. hours of employment listed in Silvas’ contract with Miss Pires. It also urged that the purpose of the statute — to protect American workers — would be eroded by creating subclassifications within the domestic help category. Plaintiffs, in turn, moved for summary judgment. The court then entered a Memorandum ruling that appellees had standing, and finding that the Secretary and Regional Manpower Administrator had been advised by the Massachusetts Division of Employment Security that its local Springfield office had not been able to refer qualified applicants for live-in domestic employment to plaintiffs, and that such live-in workers were not available. The court went on to say that while the Division of Employment Security advised that day workers were available for domestic work, “Nothing in the administrative record . . . demonstrates that defendants had information from other sources of any worker to meet plaintiff Silva’s job requirements. Nor does the record show any finding or determination by defendants of any workers ‘able, willing, qualified, and available ... at the place to which the alien is destined to perform . ’, within the meaning of 8 U.S.C. § 1182(a)(14). There are no facts set out in the administrative record that support the conclusory statement of reasons assigned for the decision that ‘Available job market information will not warrant a certification of unavailability of workers at the place of intended employment, viz. Springfield.’ ” The court thereupon remanded to defendants for the limited purpose of furnishing “a statement of the specific factual basis on which the decision rests.” The court indicated that it was persuaded to adopt this course by our decision in Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974). See also Bitang v. Regional Manpower Administration, 351 F.Supp. 1342 (N.D.Ill.1972). Eventually, after delay, a statement was produced (executed and one might suppose prepared by the local Assistant United States Attorney handling the case rather than by Labor Department officials). It recited that defendants “hereby furnish to the court a statement of the specific and factual basis supporting their decisions of December 11, 1972, March 26, 1973, and April 25, 1973.” However, the contents of the statement added nothing to the existing record and were simply arguments for the result reached, to wit: 1. The live-in requirement was arbitrary and restrictive and intended to preclude legal residents from the offered employment. This was so because the contract was for daytime hours and the employee would be free to leave the premises (except for overtime). Thus day workers who were available could allegedly have performed the necessary services. 2. Referrals from the eligible pool of household day workers maintained by the Massachusetts Division of Employment Security were supposedly not sought. 3. The presence of another adult in the house to provide reassurance was not a reasonable basis for issuance of a labor certification because that consideration was not “related to the usual job duties performed by a Maid, General”. In an ensuing Memorandum and Order, the court found the Government’s statement to be argumentative and unresponsive to its order requiring a statement of the specific factual basis “on which the decision rests.” It was found not to furnish any factual data not already before the court. The court said that it would not remand a second time for a statement of facts, and would decide on the existing record. The court held that plaintiff’s job specifications required more than merely 8:00 a. m. to 5:00 p. m. domestic work; they required also that the worker live in and perform some additional duties. According to the court, “No such workers were available to perform such duties in Springfield, Massachusetts, according to the Massachusetts Division of Employment Security. Without any proof offered to the court, the defendants view the live-in requirement as ‘arbitrary and restrictive and intended to preclude legal residents from the offered employment'. This is clearly an attack upon the good faith of the plaintiff’s personnel requirements, an exercise in which the defendants have no right to engage absent proof . . .. Moreover, defendants have declared that the offered employment can fully be met by day domestic workers, and thus they seek to exercise the privilege of determining the - qualifications for the job to be filled, a privilege which they do not possess.” The court concluded that the decisions of defendants were arbitrary, an abuse of discretion, and contrary to law. They were ordered set aside and plaintiffs’ request for alien labor certification was remanded to defendants with directions to grant the same. I The present case presents a question comparable to that in Digilab, supra, where the Secretary denied certification of an electrical engineer of very specialized skills sought by Digilab, on the ground that there were 200 unemployed engineers listed in a Registry maintained in California. Id., 495 F.2d at 326. Judge Moore, writing for the court, agreed with the district court that a showing that there were numerous unemployed engineers did not indicate that there were other workers in the United States “able, willing, qualified, and available” to do the specialized work required. In the present case the Secretary believes that the active applicant file of the Massachusetts Division of Employment Security, showing 21 persons registered in Springfield for housework of some variety, established that United States workers were available to perform Dr. Silva’s work. Yet the Massachusetts Division asserted that none of these were available to live in. Moreover, it is not clear that any of the day-workers would be available for fulltime work, or possessed the cooking or other skills sought. Miss Pires attested in her qualifications form to 30 years experience as maid, cook, and domestic servant. Details of her previous employments were provided, and her last employer certified that she was “a most reliable person and an excellent cook.” There is no showing that comparable workers were available even by the day. Indeed, the only evidence in the record is to the contrary. Dr. Silva stated in his affidavit that when he followed up newspaper ads, he found that most people were interested in part-time work and in cleaning, not cooking. He said the Silvas had employed day workers from time to time and “this had not proved successful at all in terms of availability and capability.” He spoke, moreover, of a desire to find someone with whom the children will be “comfortable at meals and other times without their mother and father present.” Thus the record is less than persuasive even as to the availability of day workers suited to the Silvas’ needs. The more basic question, however, is, assuming the availability of day household workers of some kind, whether the Secretary may for that reason refuse to certify an alien live-in domestic. It is undisputed that legal resident live-ins were unavailable. The Secretary argues that because Miss Pires’ contract hours were to be from 8:00 a. m. to 5:00 p. m., and because she would be free to leave the premises at will, she would be no different from a day worker. This reasoning borders on the absurd. The contract requires Miss Pires to live on the premises and provides for overtime. Obviously there would be marked advantages and convenience to the Silvas from such a live-in arrangement. Anyone of advanced years or a mother with infant children and an absent husband appreciates the difference between a domestic worker who is frequently on the premises and one present only during regular working hours. Even if the live-in worker performs no actual overtime work (and of course her constant availability for that purpose is itself a decided benefit), her off-duty presence in the house is a reassurance in the event of illness or emergency. It is true, of course, that a live-in employee may be more readily induced to provide extra work — such as baby sitting or answering the phone — for no extra pay; and the ever-present risk of exploitation may entitle the Secretary, as the protector of United States resident labor, to examine the position suspiciously. But these issues, further discussed below, are not the same as whether a live-in housekeeper-maid is the functional equivalent of a day worker. In the present case, plaintiffs represented that Mrs. Silva was nervous and apprehensive during the frequent absences of her husband, a busy obstetrician. The Secretary’s attempt, without supporting evidence, to belittle these understandable assertions does not commend itself to us anymore than it did to the district court. Nor does the Secretary’s studied effort to pretend that what the Silvas wanted was a psychiatric nurse. It is true that Mrs. Silva’s nervousness was not brought to the fore until after the original adverse decision. Yet the Secretary’s own instructions encourage the submission of additional evidence at the review stage. And the Silvas may well not have known how strong a showing of need was required. The Secretary’s policies are not spelled out, and the applicant is not in a position to know in advance what drift his case may take. We do not think that the Secretary can summarily reject the Silvas’ assertion, supported by a psychiatrist’s letter and by the facts of Dr. Silva’s job, that Mrs. Silva’s nervousness was a factor in designing the job requirements. If not, it is obvious that a day worker cannot fulfill the Silvas’ job requirements. We thus agree with the district court that the certifying officer’s laconic finding that there were United States workers available was arbitrary and, in fact, simply wrong. Part (A) of section 1182(a)(14) attaches to the concept of availability that the workers be “able,” “willing” and “qualified.” The record does not support a finding that the kind of domestic coverage desired by the Silvas was available in Springfield from local labor sources. II The Secretary does not now seriously argue that the local labor market could fulfill the Silvas’ requirements, especially with respect to companionship for Mrs. Silva during Dr. Silva’s absences. Rather he argues that the latter function is an impermissible utilization of a domestic worker. Mrs. Silva must choose, it is said, between a day worker and being in such dire need as to hire a nurse attendant. By this logic, an 85-year old person in good health desirous of a live-in housekeeper as a reassurance in the event of sudden illness would have to choose between a day worker and an unwarranted, expensive, round-the-clock service. The logical intermediate choice of a live-in worker would be denied. The District of Columbia Circuit recently supported the Secretary’s right not to honor the full gamut of an employer’s requirements. In Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974), a case also involving a physician’s request for live-in help (but without the added aspect of Mrs. Silva’s disability and Dr. Silva’s irregular hours), the court held that the Secretary could treat “Dr. Pesikoff’s live-in requirement for his maid as a personal preference irrelevant to determination of whether there was ... a pool of potential workers willing to perform the Pesikoff’s domestic tasks.” 501 F.2d at 762. The court reached this result (and its Orwellian designation of the employer’s needs as irrelevant “personal preferences”) in light of its reading of the entire statute. It pointed out that prior to enactment of the 1965 Amendments to the Immigration and Nationality Act, section 212(a)(14) was structured to permit entry of aliens seeking to perform work in the United States unless the Secretary certified that there were sufficient American workers to perform the labor of that the employment of aliens would adversely affect the wages and working conditions of American workers. The 1965 Amendments reversed the language so as to create a presumption against entry. It follows that the burden is on the alien or his prospective employer to prove that it is not possible for the employer to find a qualified American worker. This burden of proof, however, seems to us a different point from the Secretary’s purported right to treat as irrelevant the employer’s job preferences. That right, if it exists, would seem to rest not on part (A) of the statute (dealing with whether resident workers are available to perform the desired task) but on part (B), requiring the Secretary to find, as a further prerequisite to certification, no adverse effect on the wages and working conditions of the workers in the United States similarly employed. Conceivably the sheer administrative difficulty of making refined distinctions and the need to guard against cheating by employers, Pesikoff, supra at 763, coupled with the fact that more competent and more highly skilled aliens will threaten the job opportunities of marginally qualified Americans in similar if not identical employment, might lead the Secretary to refuse to certify live-in domestics even though available American day workers are demonstrably less satisfactory from the employer’s viewpoint. See The Elton Orchards, Inc. v. Brennan, 508 F.2d 493 (1st Cir. 1974), rev’g 382 F.Supp. 1049 (D.N.H.1974). Were live-in domestic workers to be treated separately from day workers, the Secretary might fear such a steady influx as to curtail the day-work jobs available for residents. Under a broad reading of the words “similarly employed,” the Secretary might be empowered to guard against that danger. But if the Secretary intends to limit live-in domestic entries on this ground, it would seem necessary for him to express this policy openly, rather than by basing individual denials on the specious ground that there are available and qualified United States workers when, in fact, there are none. On the present record, we do not decide to what extent the Secretary may subordinate the employer’s reasonable needs to the welfare of American labor. Undoubtedly the statute has a major, perhaps even dominant, purpose to protect American workers (although in Digilab, supra at 326, we said that it had both that purpose and the purpose of admitting and absorbing skilled workers from other lands). But whatever can be said about the Secretary’s power under part (B) of the statute, we think our review limited to the ground stated by the Secretary— the purported availability of United States workers. That ground, as we have stated, is unsupported in the record, hence the Secretary’s finding is arbitrary and capricious, and must be set aside. 5 U.S.C. § 706. Ill We must also decide whether to affirm the district court’s order directing the Secretary to grant certification. The district court was understandably frustrated by the inexcusable failure of the Secretary to comply with its request for a factual explanation. Power to compel agency action is limited, however, to action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. Congress has invested the Secretary with very substantial discretion in this area, and while the Secretary’s actions to date, based on the reasons he has provided, were arbitrary and capricious, we cannot quite say that they are unlawful or an effort to delay an inevitable result, in the sense that the Secretary could on no conceivable ground decline to certify. See, e. g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). However, time is running out. Accordingly we vacate the district court’s judgment insofar as it orders the matter remanded to the Secretary with instructions to grant a certificate. Instead, while ordering that the Secretary’s decision be set aside insofar as it holds that there are available United States workers for the task sought to be performed, we direct, modification of the Court’s judgment so as to remand to the Secretary for further consideration of Dr. Silva’s request in light' of this opinion. Given the unfairness with which the Silvas have been treated to date, we would anticipate prompt certification unless, on sufficient grounds other than the one we have ruled invalid, the Secretary feels compelled to rule that he cannot conscientiously make the requisite certification. Such grounds, if found to exist, should be stated, and their adequacy may be reviewed in the district court. We would note by addendum that much, of the confusion in this area could be avoided were the Secretary to promulgate suitable regulations with respect to domestic workers, live-in and day, rather than to formulate general* policy case-by-case. We can appreciate that there are problems of delicacy in adjusting the needs of United States employers to those of resident workers.. But in an area where the Secretary has considerable power under general statutory standards and must decide numerous cases in a routine fashion, the clarification of policy through rules or published pronouncements would protect against arbitrary action. At present the regulations contain nothing material but a flat prohibition against alien domestic workers with less than a year’s experience. Until a rule or governing policy is clearly adopted and published with respect to live-ins, prospective employers like the Silvas will expend time and effort seeking to hire an alien, only to be turned down for reasons they could not have' anticipated. Thus if, for example, alien live-ins are to be certified to meet only particular needs — such as to work for shut-ins, the elderly, and the like— such policies should be announced. The present case in large measure reflects a lack of coherent announced policies. Affirmed in part and remanded to the district court for remand to the Secretary for further proceedings in accordance herewith. . The Secretary’s regulations list certain skilled occupations as to which he has found an insufficient supply of U. S. workers and no adverse affect on wages and conditions of those similarly employed. 29 C.F.R. § 60.7, Schedule A. In Schedule B are listed other occupations found by the Secretary not to qualify for certification. Household Domestic Service Workers having less than one year of experience are listed in Schedule B. Because she had extensive experience, Miss Pires’ eligibility was unaffected by Schedule B. No other public expressions of policy, in regulation form or otherwise, have been called to our attention, although at oral argument counsel for the Secretary seemed to indicate that the Secretary had a policy against admitting live-in domestics except, perhaps, in some exceptional circumstances. . At about the same time in a letter to Senator Edward W. Brooke, the Acting Regional Manpower Administrator wrote, in the same vein, “On the basis of labor market information that legal resident domestic household service workers were available in the Springfield, Massachusetts, area, the certification required by Section 212(a)(14) could not be issued.” . A form attached to the certifying officer’s determination provided information as to how to seek review. It advised that “any new or additional matters not previously considered” should be presented with the request for a formal review. . The Immigration and Nationality Act does not establish any special procedure for review of certification decisions, nor does it preclude judicial review. The Government has not questioned standing and reviewability on appeal. The district court correctly ruled in appellees’ favor on both scores. See Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974); Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). . Using denigrating language to transform an employer’s reasonable requirements into something less seems to us unfair. It may be that to protect United States resident workers the Secretary is empowered to deny certification even where the alien labor would clearly prove more satisfactory from the employer’s viewpoint. We would rather say so than belittle the employer’s job description. . Nothing herein, of course, is to be construed as passing one way or the other on the validity of any such regulation or policy. Our point is not to suggest here what policies the Secretary should adopt but merely that they should be articulated so as to avoid the sort of injustice and confusion reflected in this case.

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

BUSH v. PALM BEACH COUNTY CANVASSING BOARD et al. No. 00-836. Argued December 1, 2000 Decided December 4, 2000 Theodore B. Olson argued the cause for petitioner. With him on the briefs were Terence P. Ross, Douglas R. Cox, Thomas G. Hungar, Mark A. Perry, Benjamin L. Ginsberg, Michael A. Carvin, Barry Richard, John F. Manning, William K. Kelley, Bradford R. Clark, George J. Terwilliger III, Timothy E. Flanigan, and Marcos D. Jiménez. Joseph P. Klock, Jr., argued the cause for Katherine Harris et al., respondents under this Court’s Rule 12.6, in support of petitioner. With him on the briefs were John W. Little HI, Ricardo M. Martinez-Cid, and Bill L. Bryant, Jr. Paul F. Hancock, Deputy argued the cause for respondent Butterworth, Attorney General of Florida. With him on the brief were Mr. Butter-worth, pro se, and Jason Vail and Kimberly J. Tucker, Assistant Attorneys General. Laurence H. Tribe argued the cause for respondents Gore et al. With him on the briefs were David Boies, Kathleen M. Sullivan, Thomas C. Gold-stein, Teresa Wynn Roseborough, James A. Orr, Andrew J. Pincus, Kendall Coffey, Jonathan S. Massey, and Peter J. Rubin. Samuel S. Goren, Edward A. Dion, and Tamara M. Scrudders filed a brief for respondents Broward County Canvassing Board et al. Bruce S. Rogow, Beverly A. Pohl, and Denise D. Dytrych filed a brief for respondent Palm Beach County Canvassing Board. Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, and Margaret L. Fleming, John J. Park, Jr., Charles B. Campbell, Scott L. Rouse, A. Vernon Barnett IV, and Richard E. Trewhella, Jr., Assistant Attorneys General; for the Commonwealth of Virginia et al. by Mark L. Earley, Attorney General of Virginia, Randolph A. Beales, Chief Deputy Attorney General, William Henry Hurd, Solicitor General, Judith Williams Jagdmann, Deputy Attorney General, Siran S. Faulders and Maureen Riley Matsen, Senior Assistant Attorneys General, Eleanor Anne Ches-ney, Anthony P. Meredith, and Valerie L. Myers, Assistant Attorneys General, Charlie Condon, Attorney General of South Carolina, and Don Stenberg, Attorney General of Nebraska; and for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz. Steven R. Shapiro, Laughlin McDonald, and James K. Green filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. Briefs of amici curiae were filed for the Florida Senate et al. by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for the State of Iowa et al. by Thomas J. Miller, Attorney General of Iowa, Dennis W Johnson, Solicitor General, and Tam B. Ormiston, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Richard Blumenthal of Connecticut, Earl I. Anzai of Hawaii, Karen M. Freeman-Wilson of Indiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Drew Edmondson of Oklahoma, Hardy Myers of Oregon, and Sheldon Whitehouse of Rhode Island; for the American Civil Rights Union by John C. Armor and Peter Ferrara; for the Coalition for Local Sovereignty by Kenneth B. Clark; and for the Disenfranchised Voters in the USA et al. by Ilise Levy Feitshans. Per Curiam. The Supreme Court of the State of Florida interpreted its elections statutes in proceedings brought to require manual recounts of ballots, and the certification of the recount results, for votes cast in the quadrennial Presidential election held on November 7, 2000. Governor George W. Bush, Republican candidate for the Presidency, filed a petition for certiorari to review the Florida Supreme Court decision. We granted certiorari on two of the questions presented by petitioner: whether the decision of the Florida Supreme Court, by effectively changing the State’s elector appointment procedures after election day, violated the Due Process Clause or 3 U. S. C. § 5, and whether the decision of that court changed the manner in which the State’s electors are to be selected, in violation of the legislature’s power to designate the manner for selection under Art. II, § 1, cl. 2, of the United States Constitution. Post, p. 1004. On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that Governor Bush had received 2,909,135 votes, and respondent Democrat Vice President Albert Gore, Jr., had received 2,907,351, a margin of 1,784 in Governor Bush’s favor. Under Fla. Stat. § 102.141(4) (2000), because the margin of victory was equal to or less than one-half of one percent of the votes cast, an automatic machine recount occurred. The recount resulted in a much smaller margin of. victory for Governor Bush. Vice President Gore then exercised his statutory right to submit written requests for manual recounts to the canvassing board of any county. See § 102.166. He requested recounts in four counties: Volusia, Palm Beach, Broward, and Miami-Dade. The parties urged conflicting interpretations of the Florida Election Code respecting the authority of the canvassing boards, the Secretary of State (hereinafter Secretary), and the Elections Canvassing Commission. On November 14, in an action brought by Volusia County, and joined by the Palm Beach County Canvassing Board, Vice President Gore, and the Florida Democratic Party, the Florida Circuit Court ruled that the statutory 7-day deadline was mandatory, but that the Volusia board could amend its returns at a later date. The court further ruled that the Secretary, after “considering all attendant facts and circumstances,” App. to Pet. for Cert. 49a, could exercise her discretion in deciding whether to include the late amended returns in the statewide certification. The Secretary responded by issuing a set of criteria by which she would decide whether to allow a late filing. The Secretary ordered that, by 2 p.m. the following day, November 15, any county desiring to forward late returns submit a written statement of the facts and circumstances justifying a later filing. Four counties submitted statements, and, after reviewing the submissions, the Secretary determined that none justified an extension of the filing deadline. On November 16, the Florida Democratic Party and Vice President Gore filed an emergency motion in the state court, arguing that the Secretary had acted arbitrarily and in contempt of the court’s earlier ruling. The following day, the court denied the motion, ruling that the Secretary had not acted arbitrarily and had exercised her discretion in a reasonable manner consistent with the court’s earlier ruling. The Democratic Party and Vice President Gore appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. That court accepted jurisdiction and sua sponte entered an order enjoining the Secretary and the Elections Canvassing Commission from finally certifying the results of the election and declaring a winner until further order of that court. The Supreme Court, with the expedition requisite for the controversy, issued its decision on November 21. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000). As the court saw the matter, there were two principal questions: whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an “error in vote tabulation” justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida’s election laws: (a) between the timeframe for conducting a manual recount under Fla. Stat. §102.166 (2000) and the timeframe for submitting county returns under §§102.111 and 102.112, and (b) between § 102.111, which provides that the Secretary “shall. . . ignor[e]” late election returns, and § 102.112, which provides that she “may . . . ignor[e]” such returns. With regard to the first issue, the court held that, under the plain text of the statute, a discrepancy between a sample manual recount and machine returns due to the way in which a ballot was punched or marked did constitute an “error in vote tabulation” sufficient to trigger the statutory provisions for a full manual recount. With regard to the second issue, the court held that the “shall. . . ignorfe]” provision of § 102.111 conflicts with the “may ... ignor[e]” provision of § 102.112, and that the “may . . . ignor[e]” provision controlled. The court turned to the questions whether and when the Secretary may ignore late manual recounts. The court relied in part upon the right to vote set forth in the Declaration of Rights of the Florida Constitution in concluding that late manual recounts could be rejected only under limited circumstances. The court then stated: “[B]ecause of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy . . . .” 772 So. 2d, at 1240. The court thus imposed a deadline of November 26, at 5 p.m., for a return of ballot counts. The 7-day. deadline of § 102.111, assuming it would have applied, was effectively extended by 12 days. The court further directed the Secretary to accept manual counts submitted prior to that deadline. As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution. That provision reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ....” Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said: “[Art. II, § 1, cl. 2,] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion, of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.” There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.” The opinion states, for example, that “[t]o the éxtent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no ‘unreasonable or unnecessary’ restraints on the right of suffrage” guaranteed by the State Constitution. 772 So. 2d, at 1236. The opinion also states that “[b]ecause election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote ....” Id., at 1237. § 5 provides in pertinent part: “If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.” The parties before us agree that whatever else may be the effect of this section, it creates a “safe harbor” for a State insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to election day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors. The Florida Supreme Court cited 3 U. S. C. §§ 1-10 in a footnote of its opinion, 772 So. 2d, at 1238, n. 55, but did not discuss §5. Since §5 contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law. After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” Minnesota v. National Tea Co., 309 U. S. 551, 555 (1940). This is sufficient reason for us to decline at this time to review the federal questions asserted to be present. See ibid. “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases.” Id., at 557. Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority under Art. II, §1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. § 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion. 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?

UNITED STATES of America, Plaintiff-Appellee, v. Victor DANTE and Edward Levine, a/k/a “Eddie”, Defendants-Appellants. No. 84-8031. United States Court of Appeals, Eleventh Circuit. Aug. 20, 1984. Jerome J. Froelich, Jr., Atlanta, Ga., Bruce S. Rogow, Fort Lauderdale, Fla., for Dante. Jack I. Zalkind, Boston, Mass., Theodore Lackland, Atlanta, Ga., for Levine. James M. Deichert, Asst. U.S. Atty., Atlanta, Ga., William C. Bryson, U.S. Dept, of Justice, Washington, D.C., for plaintiff-appellee. Before KRAVITCH and JOHNSON, Circuit Judges, and ALLGOOD , District Judge. Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation. ALLGOOD, District Judge: The defendants, Victor Dante and Edward Levine, appeal the order of the district court denying their motion to dismiss their indictment on double jeopardy grounds. Victor Dante was charged with extortionate credit transactions in violation of 18 U.S.C. § 894 and income tax evasion in violation of 26 U.S.C. § 7206. Edward Levine was charged as a conspirator in the extortionate credit transactions in violation of 18 U.S.C. § 894. On the day of the trial, but prior to the selection of the jury, Dante’s, attorney obtained an order from the judge that the prosecutor would not mention the term “organized crime” in the presence of the jury without first bringing it to the court’s attention. However, a short time later, in his opening statement, the prosecutor, on more than one occasion referred to his witnesses’ connections to organized crime. He did not connect the defendants to any organized crime families. The defense made no objections to those references, even though other objections were made during the opening statement. At the close of all the opening statements the defendants moved for a mistrial. Over the strenuous objections of the prosecutor, the judge granted a mistrial and rescheduled the case for one month later. Prior to the date set for the second trial the defendants moved to dismiss the indictment, claiming that a second trial would violate the Double Jeopardy Clause of the Fifth Amendment. The defendants argued that the prosecutor had intentionally provoked them into making the mistrial motion, thus denying them their right to a trial before the jury of their choosing. After a hearing on the issue, the court denied the motion saying, “the defendants have failed to establish that the government intended or wanted a mistrial.” It is from this order that the defendants appeal. The defendants urge this court to make an independent review of the facts and circumstances rather than applying a clearly erroneous standard, arguing that the issue of the prosecutor’s intent is a mixed question of law and fact, citing Douglas v. Wainwright, 714 F.2d 1532, 1554 (11th Cir.1983), to support this contention. Douglas v. Wainwright provides little if any support for such an argument since the issue held to be a mixed question of law and fact in that case was the ineffective assistance of counsel. The Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), said that the determination of the prosecutor’s intent is a finding of fact for the court. Id. at 675, 102 S.Ct. at 2089. Thus this court must only determine whether the findings of the trial court were clearly erroneous. The Supreme Court has recently said in Oregon v. Kennedy that a defendant is entitled to a dismissal on double jeopardy grounds if the court finds the prosecutor intentionally provoked the defendants into moving for a mistrial so the government would have the opportunity to try the case before another jury. Conduct that would be sufficient to justify a mistrial would not bar retrial unless the court does find such intent on the part of the prosecutor. Id. at 675, 676, 102 S.Ct. at 2089-2090. The trial judge observed the prosecutor during his opening remarks. The judge also heard and observed the prosecutor as he explained his unilateral decision to violate the court order to refrain from using the term “organized crime.” After these observations, reviewing the statements made and applying the standard of Oregon v. Kennedy, the judge concluded that the requisite intent to provoke a mistrial was absent. The court pointed to the fact that the references to organized crime referred to the government’s witnesses only and there was no direct reference to either of the defendants in that regard. The court further noted that the delay will work to the defendants’ advantage rather than disadvantage and the failure of the defendants to object to the violations of the court’s order at the time they were made when the infraction could have been cured with proper instructions to the jury, “mitigate to a certain extent the Government’s violation.” The findings of the trial court are amply supported by the record, thus the denial of the defendant’s motion is AFFIRMED and the case is REMANDED to the district court for retrial.

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

GOSS et al. v. LOPEZ et al. No. 73-898. Argued October 16, 1974 Decided January 22, 1975 White, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, and Marshall, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined, post, p. 584. Thomas A. Bustin argued the cause for appellants. With him on the briefs were James J. Hughes, Jr., Robert A. Bell, and Patrick M. McGrath. Peter D. Roos argued the cause for appellees. With him on the brief were Denis Murphy and Kenneth C. Curtin John F. Lewis filed a brief for the Buckeye Association of School Administrators et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by David Bonderman, Peter Van N. Lockwood, Paid L. Tractenberg, David Rubin, and W. William Hodes for the National Committee for Citizens in Education et al.; by Alan H. Levine, Melvin L. Wulf, and Joel M. Gora for the American Civil Liberties Union; by Robert H. Kapp, R. Stephen Browning, and Nathaniel R. Jones for the National Association for the Advancement of Colored People et al.; and by Marian Wright Edelman for the Children’s Defense Fund of the Washington Research Project, Inc., et al. MR. Justice White delivered the opinion of the Court. This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appellees — various high school students in the CPSS— were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students' records. I Ohio law, Rev. Code Ann. § 3313.64 (1972), provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student’s p'arents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the ■Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions. Nor, so far as the record reflects, had any of the individual high schools involved in this case. Each, however, had formally or informally described the conduct for which suspension could be imposed. The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U. S. C. § 1983 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66 and to require them to remove references to the past suspensions from the records of the students in question. The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student’s future. Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey Junior High School, respectively. The former was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property. Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing. Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others, taken to the police station, and released without being formally charged. Before she went to school on the following day, she was notified that she had been suspended for a 10-day period. Because no one from the school testified with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear frdm the record that no hearing was ever held. There was no testimony with respect to the suspension of the ninth named plaintiff, Carl Smith. The school files were also silent as to his suspension, although as to some, but not all, of the other named plaintiffs the files contained either direct references to their suspensions or copies of letters sent to their parents advising them of the suspension. On the basis of this evidence, the three-judge court declared that plaintiffs were denied due process of law because they were “suspended without hearing prior to suspension or within a reasonable time thereafter,” and that Ohio Rev. Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. It was ordered that all references to plaintiffs’ suspensions be removed from school files. Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them “free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality,” the District Court declared that there were “minimum requirements of notice and a hearing prior to suspension, except in emergency situations.” In explication, the court stated that relevant case authority would: (1) permit “[ijmmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property”; (2) require notice of suspension proceedings to be sent to the student’s parents within 24 hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel. The defendant school administrators have appealed the three-judge court’s decision. Because the order below granted plaintiffs’ request for an injunction — ordering defendants to expunge their records — this Court has jurisdiction of the appeal pursuant to 28 XL S. C. § 1253. We affirm. II At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally “not created by the Constitution. Rather, they are created and their dimensions are defined” by an independent source such as state statutes or rules entitling the citizen to certain benefits. Board of Regents v. Roth, 408 U. S. 564, 577 (1972). Accordingly, a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process. Connell v. Higginbotham, 403 U. S. 207 (1971); Wieman v. Updegraff, 344 U. S. 183, 191-192 (1952); Arnett v. Kennedy, 416 U. S. 134, 164 (Powell, J., concurring), 171 (White, J., concurring and dissenting) (1974). So may welfare recipients who have statutory rights to welfare as long as they maintain the specified qualifications. Goldberg v. Kelly, 397 U. S. 254 (1970). Morrissey v. Brewer, 408 U. S. 471 (1972), applied the limitations of the Due Process Clause to governmental decisions to revoke parole, although a parolee has no constitutional right to that status. In like vein was Wolff v. McDonnell, 418 U. S. 539 (1974), where the procedural protections of the Due Process Clause were triggered by official cancellation of a prisoner’s good-time credits accumulated under state law, although those benefits were not mandated by the Constitution. Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education. Ohio Rev. Code Ann. §§ 3313.48 and 3313.64 (1972 and Supp. 1973) direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory-attendance law requires attendance for a school year of not less than 32 weeks. Ohio Rev. Code Ann. §3321.04 (1972). It is true that §3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred. Arnett v. Kennedy, supra, at 164 (Powell, J., concurring), 171 (White, J., concurring and dissenting), 206 (Marshall, J., dissenting). Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. Those young people do not “shed their constitutional rights” at the schoolhouse door. Tinker v. Des Moines School Dist., 393 U. S. 503, 506 (1969). “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted.” West Virginia Board of Education v. Barnette, 319 U. S. 624, 637 (1943). The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. The Due Process Clause also forbids arbitrary deprivations of liberty. “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U. S. 433, 437 (1971); Board of Regents v. Roth, supra, at 573. School authorities here suspended appellees from school for periods of up to 10 days based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution. Appellants proceed to argue that even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a “severe detriment or grievous loss.” The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. Appellants’ argument is again refuted by our prior decisions; for in determining “whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Board of Regents v. Roth, supra, at 570-571. Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, “is not decisive of the basic right” to a hearing of some kind. Fuentes v. Shevin, 407 U. S. 67, 86 (1972). The Court’s view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U. S. 337, 342 (1969) (Harlan, J., concurring) ; Boddie v. Connecticut, 401 U. S. 371, 378-379 (1971); Board of Regents v. Roth, supra, at 570 n. 8. A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause. A short suspension is, of course, a far milder deprivation than expulsion. But, “education is perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U. S. 483, 493 (1954), and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. III “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S., at 481. We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). We are also mindful of our own admonition: “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities.” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). There are certain bench marks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U. S. 306 (1950), a case*often invoked by later opinions, said that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id., at 313. “The fundamental requisite of due process of law is the opportunity to be heard,” Grannis v. Ordean, 234 U. S. 385, 394 (1914), a right that “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to... contest.” Mullane v. Central Hanover Trust Co., supra, at 314. See also Armstrong v. Manzo, 380 U. S. 545, 550 (1965); Anti-Fascist Committee v. McGrath, 341 U. S. 123, 168-169 (1951) (Frankfurter, J., concurring). At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233 (1864). It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. Cafeteria Workers v. McElroy, supra, at 895; Morrissey v. Brewer, supra, at 481. The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process. The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. “[F] airness can rarely be obtained by secret, one-sided determination of facts decisive of rights....” “Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been dévised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Anti-Fascist Committee v. McGrath, supra, at 170, 171-172 (Frankfurter, J., concurring). We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. There need be no delay between the time “notice” is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. Lower courts which have addressed the question of the nature of the procedures required in short suspension cases have reached the same conclusion. Tate v. Board of Education, 453 F. 2d 975, 979 (CA8 1972); Vail v. Board of Education, 354 F. Supp. 592, 603 (NH 1973). Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated. In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, remarkably similar to that which we now require, applicable to suspensions generally but which was not followed in this case. Similarly, according to the most recent memorandum applicable to the entire CPSS, see n. 1, supra, school principals in the CPSS are now required by local rule to provide at least as much as the constitutional minimum which we have described. We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process. On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced. Requiring that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension, will add little to the factfinding function where the disciplinarian himself has witnessed the conduct forming the basis for the charge. But things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct arid put it in what he deems the proper context. We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required. IV The District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional insofar as it permits such suspensions without notice or hearing. Accordingly, the judgment is Affirmed At the time of the events involved in this case, the only administrative regulation on this subject was § 1010.04 of the Administrative Guide of the Columbus Public Schools which provided: “Pupils may be suspended or expelled from school in accordance with the provisions of Section 3313.66 of the Revised Code.” Subsequent to the events involved in this lawsuit, the Department of Pupil Personnel of the CPSS issued three memoranda relating to suspension procedures, dated August 16, 1971, February 21, 1973, and July 10, 1973, respectively. The first two are substantially similar to each other and require no factfinding hearing at any time in connection with a suspension. The third, which was apparently in effect when this case was argued, places upon the principal the obligation to “investigate” “before commencing suspension procedures”; and provides as part of the procedures that the principal shall discuss the case with the pupil, so that the pupil may “be heard with respect to the alleged offense,” unless the pupil is “unavailable” for such a discussion or “unwilling” to participate in it. The suspensions involved in this case occurred, and records thereof were made, prior to the effective date of these memoranda. The District Court’s judgment, including its expunction order, turns on the propriety of the procedures existing at the time the-suspensions were ordered and by which they were imposed. According to the testimony of Phillip Fulton, the principal of one of the high schools involved in this case, there was an informal procedure applicable at the Marion-Franklin High School. It provided that in the routine case of misconduct, occurring in the presence of a teacher, the teacher would describe the misconduct on a form provided for that purpose and would send the student, with the form, to the principal’s office. There, the principal would obtain the student’s version of the story, and, if it conflicted with the teacher’s written version, would send for the teacher to obtain the teacher’s oral version — apparently in the presence of the student. Mr. Fulton testified that, if a discrepancy still existed, the teacher’s version would be believed and the principal would arrive at a disciplinary decision based on it. The plaintiffs sought to bring the action on behalf of all students of the Columbus Public Schools suspended on or after February 1971, and a class action was declared accordingly. Since the complaint sought to restrain the “enforcement” and “operation” of a state statute “by restraining the action of any officer of such state in the enforcement or execution of such statute,” a three-judge court was requested pursuant to 28 U. S. C. §2281 and convened. The students also alleged that the conduct for which they could be suspended was not adequately defined by Ohio law. This vagueness and overbreadth argument was rejected by the court below and the students have not appealed from this part of the court’s decision. Fox was given two separate 10-day suspensions for misconduct occurring on two separate occasions — the second following immediately upon her return to school. In addition to his suspension, Sutton was transferred to another school. Lopez was actually absent from school, following his suspension, for over 20 days. This seems to have occurred because of a misunderstanding as to the length of the suspension. A letter sent to Lopez after he had been out for over 10 days purports to assume that, being over compulsory school age, he was voluntarily staying away. Upon asserting that this was not the case, Lopez was transferred to another school. In its judgment, the court stated that the statute is unconstitutional in that it provides “for suspension... without first affording the student due process of law.” (Emphasis supplied.) However, the language of the judgment must be read in light of the language in the opinion which expressly contemplates that under some circumstances students may properly be removed from school before a hearing is held, so long as the hearing follows promptly. Appellees assert in their brief that four of 12 randomly selected Ohio colleges specifically inquire of the high school of every applicant for admission whether the applicant has ever been suspended. Brief for Appellees 34-35 and n. 40. Appellees also contend that many employers request similar information. Ibid. Congress has recently enacted legislation limiting access to information contained in the files of a school receiving federal funds. Section 513 of the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 571, 20 U. S. C. § 1232g (1970 ed., Supp. IV), adding § 438 to the General Education Provisions Act. That section would preclude release of “verified reports of serious or recurrent behavior patterns” to employers without written consent of the student’s parents. While subsection (b)(1)(B) permits release of such information to “other schools... in which the student intends to enroll,” it does so only upon condition that the parent be advised of the release of the information and be given an opportunity at a hearing to challenge the content of the information ■ to insure against inclusion of inaccurate or misleading information. The statute does not expressly state whether the parent can contest the underlying basis for a suspension, the fact of which is contained in the student’s school record. Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F. 2d 150, cert. denied, 368 U. S. 930 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion. Hagopian v. Knowlton, 470 F. 2d 201, 211 (CA2 1972); Wasson v. Trowbridge, 382 F. 2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969), cert. denied, 398 U. S. 965 (1970); Vought v. Van Buren Public Schools, 306 F. Supp. 1388 (ED Mich.1969); Whitfield v. Simpson, 312 F. Supp. 889 (ED Ill. 1970); Fielder v. Board of Education of School District of Winnebago, Neb., 346 F. Supp. 722, 729 (Neb. 1972); DeJesus v. Penberthy, 344 F. Supp. 70, 74 (Conn. 1972); Soglin v. Kauffman, 295 F. Supp. 978, 994 (WD Wis. 1968), aff’d, 418 F. 2d 163 (CA7 1969); Stricklin v. Regents of University of Wisconsin, 297 F. Supp. 416, 420 (WD Wis. 1969), appeal dismissed, 420 F. 2d 1257 (CA7 1970); Buck v. Carter, 308 F. Supp. 1246 (WD Wis. 1970); General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F. R. D. 133,147-148 (WD Mo. 1968) (en banc). The lower courts have been less uniform, however, on the question whether removal from school for some shorter period may ever be so trivial a deprivation as to require no process, and, if so, how short the removal must be to qualify. Courts of Appeals have held or assumed the Due Process Clause applicable to long suspensions, Pervis v. LaMarque Ind. School Dist., 466 F. 2d 1054 (CA5 1972); to indefinite suspensions, Sullivan v. Houston Ind. School Dist., 475 F. 2d 1071 (CA5), cert. denied, 414 U. S. 1032 (1973); to the addition of a 30-day suspension to a 10-day suspension, Williams v. Dade County School Board, 441 F. 2d 299 (CA5 1971); to a 10-day suspension, Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 470 F. 2d 957 (CA5 1972); to “mild” suspensions, Farrell v. Joel, 437 F. 2d 160 (CA2 1971), and Tate v. Board of Education, 453 F. 2d 975 (CA8 1972); and to a three-day suspension, Shanley v. Northeast Ind. School Dist., Bexar County, Texas, 462 F. 2d 960, 967 n. 4 (CA5 1972); but inapplicable to a seven-day suspension, Linwood v. Board of Ed. of City of Peoria, 463 F. 2d 763 (CA7), cert. denied, 409 U. S. 1027 (1972); to a three-day suspension, Dunn v. Tyler Ind. School Dist., 460 F. 2d 137 (CA5 1972); to a suspension for not “more than a few days,” Murray v. West Baton Rouge Parish School Board, 472 F. 2d 438 (CA5 1973); and to all suspensions no matter how short, Black Coalition v. Portland School District No. 1, 484 F. 2d 1040 (CA9 1973). The Federal District Courts have held the Due Process Clause applicable to an interim suspension pending expulsion proceedings in Stricklin v. Regents of University of Wisconsin, supra, and Buck v. Carter, supra; to a 10-day suspension, Banks v. Board of Public Instruction of Dade County, 314 F. Supp. 285 (SD Fla. 1970), vacated, 401 U. S. 988 (1971) (for entry of a fresh decree so that a timely appeal might be taken to the Court of Appeals), aff’d, 450 F. 2d 1103 (CA5 1971); to suspensions of under five days, Vail v. Board of Education of Portsmouth School Dist., 354 F. Supp. 592 (NH 1973); and to all suspensions, Mills v. Board of Education of the Dist. of Columbia, 348 F. Supp. 866 (DC 1972), and Givens v. Poe, 346 F. Supp. 202 (WDNC 1972); but inapplicable to suspensions of 25 days, Hernandez v. School District Number One, Denver, Colorado, 315 F. Supp. 289 (Colo. 1970); to suspensions of 10 days, Baker v. Downey City Board of Education, 307 F. Supp. 517 (CD Cal. 1969); and to suspensions of eight days, Hatter v. Los Angeles City High School District, 310 F. Supp. 1309 (CD Cal. 1970), rev’d on other grounds, 452 F. 2d 673 (CA9 1971).

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?

FRONT ROYAL AND WARREN COUNTY INDUSTRIAL PARK CORPORATION, a Virginia Corporation; Fred W. McLaughlin; Gladys L. McLaughlin, Plaintiffs-Appellees, v. TOWN OF FRONT ROYAL, VIRGINIA, a municipal corporation; John Marlow, individually and as Mayor of the Town of Front Royal; Michael Kitts, individually and as a member of the Town Council of the Town of Front Royal, Virginia; Edwin L. Pomeroy, individually and as a former member of the Town Council of the Town of Front Royal, Virginia; Albert G. Ruff, Jr., individually and as a former member of the Town Council of the Town of Front Royal, Virginia; George E. Banks, individually and as a former member of the Town Council of the Town of Front Royal, Virginia; Brackenridge H. Bentley, individually and as Town Manager of the Town of Front Royal, Virginia, Defendants-Appellants, Virginia Association of Counties; Local Government Attorneys of Virginia, Incorporated, Amici Curiae. FRONT ROYAL AND WARREN COUNTY INDUSTRIAL PARK CORPORATION, a Virginia Corporation; Fred W. McLaughlin; Gladys L. McLaughlin, Plaintiffs-Appellants, v. TOWN OF FRONT ROYAL, VIRGINIA, a municipal corporation; John Marlow, individually and as Mayor of the Town of Front Royal; Michael Kitts, individually and as a member of the Town Council of the Town of Front Royal, Virginia; Edwin L. Pomeroy, individually and as a former member of the Town Council of the Town of Front Royal, Virginia; Albert G. Ruff, Jr., individually and as a former member of the Town Council of the Town of Front Royal, Virginia; George E. Banks, individually and as a former member of the Town Council of the Town of Front Royal, Virginia; Brackenridge H. Bentley, individually and as Town Manager of the Town of Front Royal, Virginia, Defendants-Appellees, Virginia Association of Counties; Local Government Attorneys of Virginia, Incorporated, Amici Curiae. Nos. 90-1875, 90-1884. United States Court of Appeals, Fourth Circuit. Argued June 3, 1991. Decided Sept. 19, 1991. Glenn M. Hodge, Wharton, Aldhizer & Weaver, Harrisonburg, Va., argued (Douglas L. Guynn, Mark D. Obenshain, Harri-sonburg, Va., David N. Crump, Adamson, Crump & Sharp, Front Royal, Va., on brief), for defendants-appellants. Harold Jonathan Krent, University of Virginia School of Law, Charlottesville, Va., argued (Harold P. Juren, G. Timothy Oksman, Joseph P. Rapisarda, Jr., Local Government Attys. of Virginia, Inc., Char-lottesville, Va., C. Flippo Hicks, Virginia Ass’n of Counties, Richmond, Va., on brief), for amici curiae. Robert C. Fitzgerald, Fitzgerald & Smith, P.C., Fairfax, Va., argued (Myron C. Smith, on brief), for plaintiffs-appellees. Before ERVIN, Chief Judge, and SPROUSE and WILKINS, Circuit Judges. OPINION ERVIN, Chief Judge: Plaintiffs in this consolidated § 1983 action are Warren County Industrial Park Corporation (“Front Royal Corporation”) and two Front Royal, Virginia, landowners. They sought damages from the Town of Front Royal (“Front Royal”) and several Front Royal officials, alleging that they violated plaintiffs’ fifth and fourteenth amendment rights. Although plaintiffs had remedies available to them under state law, they did not pursue those remedies but instead came into federal court seeking relief. The district court granted summary judgment in favor of plaintiffs. We find that the district court should have abstained from ruling in this case and therefore vacate the order granting summary judgment. I Plaintiffs own parcels of land which were annexed by Front Royal in 1976 and 1978 pursuant to separate Annexation Court orders. The orders directed Front Royal to extend sewer service to the parcels of land covered by the annexation orders as expeditiously as practicable, but in any event within 5 years of the entry of the orders. Front Royal failed to extend sewer service to plaintiffs’ parcels. As a result, plaintiffs sought to vindicate their rights under the fifth and fourteenth amendments and 42 U.S.C. § 1983 in the United States District Court for the Western District of Virginia. Plaintiffs alleged that the refusal by the defendants to extend sewer service to their parcels deprived them of all economically viable uses of their property. Plaintiffs also contended that they were denied equal protection of the law because defendants provided sewer service to similarly situated landowners within the annexed area, while denying the same service to plaintiffs. Defendants raised several affirmative defenses including absolute legislative immunity and executive qualified immunity. The district court granted plaintiffs’ motion to strike the absolute immunity defense, and defendants appealed to this court in an interlocutory appeal. In a previous holding, we upheld the district court’s holding that absolute legislative immunity was not available to defendants. Front Royal & Warren County Indus. Park Corp. v. Front Royal, 865 F.2d 77 (4th Cir.1989) (“Front Royal I”). Thereafter, the district court granted plaintiffs’ motion to strike defendants’ asserted qualified immunity defense. Front Royal & Warren County Indus. Park Corp. v. Front Royal, 708 F.Supp. 1477, 1480-82 (W.D.Va.1989) (“Front Royal II”). On cross motions for summary judgment, the district court granted plaintiffs’ motion on the § 1983 takings claim. Id. at 1483-85. The court rejected defendants’ argument that (1) there was no compensable taking; and (2) adequate state remedies existed which should have counselled the district court to abstain from hearing the case at all. The district court also granted summary judgment in favor of plaintiffs on the equal protection claim. Id. at 1487. The court held that the actions taken by the town counsel served no legitimate governmental purpose and that the actions deprived plaintiffs of equal protection of the laws. After granting summary judgment in favor of plaintiffs, the district court held a bench trial on the issue of damages and awarded the following amounts: $176,-526.56 to the individual landowners and $489,072.59 to the Front Royal Corporation. Front Royal & Warren County v. Front Royal, 749 F.Supp. 1439, 1448-49 (W.D.Va.1990) (“Front Royal III”). Both parties appealed from the judgment of the district court. Defendants alleged that there were numerous erroneous rulings by the district court, and plaintiffs asserted that the court should have awarded punitive damages. II The defendants and amici curiae urge us to abstain from ruling in this case. They assert that under Virginia law, alternative remedies were available to plaintiffs. In addition, they argue that land use policy is local in nature and that federal courts should not intrude into this area unless absolutely necessary. We note at the outset that we are not barred from abstaining in this case because we previously issued an opinion in Front Royal I, 865 F.2d 77. There, we addressed the issue of absolute immunity on interlocutory appeal. We held that the district court’s order dismissing the absolute immunity defense was immediately appealable. Front Royal I, 865 F.2d at 79. However, the fact that we had jurisdiction over the district court’s order regarding absolute immunity did not permit us to review other claims raised below. See Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977). We could have considered the abstention issue only if it fell within the exception to the final-judgment rule set out in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). Therefore, it is proper for us to now consider whether abstention is appropriate even though we have already issued an opinion in this case. Plaintiffs argue that we should not consider the abstention issue because it was not raised by defendants, but was raised by amici curiae on this appeal. We note, however, that we may apply the abstention doctrine at our own instance even if no party urges the doctrine upon us. Caleb Stowe Associates, Ltd. v. County of Albemarle, 724 F.2d 1079, 1080 (4th Cir.1984); AFA Distributing Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir.1973). Therefore, we turn to the issue of whether we should abstain from ruling on the case before us. In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Supreme Court set out a form of abstention which is appropriate in order to prevent unnecessary interference by the federal courts in the interpretation of a complex state regulatory scheme. This court has explained the purpose of the Burford abstention doctrine as follows: The purpose of Burford abstention is to prevent a federal court from interfering with a “complex state regulatory scheme concerning important matters of state policy for which impartial and fair administrative determinations subject to expeditious and adequate judicial review are afforded.” Aluminum Co. v. Utilities Commission of North Carolina, 713 F.2d 1024 (4th Cir.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984). Browning-Ferris, Inc. v. Baltimore County, 774 F.2d 77, 79 (4th Cir.1985). In Browning-Ferris, complex state regulations governing landfill operations were at issue. We held that abstention was proper based on the following reasons: [T]he state regulations governing landfill operations are lengthy and detailed and involve complex scientific questions that must be reviewed before a permit for a waste disposal facility is approved. The Burford requirement that a complex state regulatory scheme be involved in order for a district court to abstain is sufficiently present in this case. Additionally, land use questions, ... are the peculiar concern of local and state governments, and traditionally, federal courts have not interfered with state courts in the area of land use policy. Id. at 79. Similarly, in Caleb Stowe Associates, 724 F.2d 1079 (4th Cir.1984), we abstained from deciding the case because it involved a matter of state and local land use law. Id. at 1080. There, ... all of the plaintiffs’ state and federal claims necessarily depended] upon the construction of state land use law concerning the scope of authority of local planning bodies and Boards of Supervisors, the proper interpretation of state and local land use law and county zoning practices and procedure. Id. In Fralin & Waldron, Inc. v. Martinsville, 493 F.2d 481 (4th Cir.1974), we abstained from deciding a land use case because “the courts of Virginia ha[d] extensive familiarity and experience with such matters, and ... should have the initial opportunity to pass upon them.” Id. at 482. We noted that a state adjudication might avoid: (1) the necessity of a decision on the federal constitutional questions presented; and (2) “needless friction in federal-state relations over the administration of purely state affairs.” Id. at 483. We find the reasoning of the above cases persuasive. Here, we are asked to determine that Front Royal violated the orders of the Annexation Courts and that, as a result, plaintiffs’ land was taken without just compensation, and plaintiffs were denied equal protection of the law. All of plaintiffs’ claims stem from their assertion that Front Royal violated the Annexation Courts’ orders. In Virginia, Annexation Courts are established by statute to determine whether a city or town may annex adjacent land. Va. Code Ann. § 15.1-1035 et seq. (1989 Repl. Vol.). The Annexation Court is composed of three judges designated by the Supreme Court of Virginia. Va.Code Ann. § 15.1— 1038 (1989 Repl.Vol.). The Annexation Court is to determine the “necessity for an expediency of annexation” considering the best interests of the city or town and the people in the area to be annexed. Va.Code Ann. § 15.1-1041(b) (Repl.Vol.). If the Annexation Court grants the petition for annexation, the Court “shall set forth in detail all such terms and conditions upon which the petition is granted.” Va.Code Ann. § 15.1-1041(d). The Annexation Court “shall enter an order setting forth what it deems fair and reasonable terms and conditions, and shall direct the annexation in conformity therewith.” Va.Code Ann. § 15.1-1042 (1989 Repl.Vol.). The Annexation Court remains in existence for 10 years from the effective date of any annexation order entered. Va. Code Ann. § 15.1-1047(a) (1989 Repl.Vol.). The Annexation Court can be reconvened ... at any time during the ten-year period on its own motion, or on motion of the governing body of the county, or of the city or town, or on petition of not less than fifty registered voters or property owners in the area annexed; provided, however, if the area annexed contains less than 100 registered voters or property owners, then a majority of such registered voters or property owners may petition for the reconvening of the court. Va.Code Ann. § 15.1-1047(b) (1989 Repl. Vol.). The Annexation Court has the power during the ten year period to enforce the performance of the terms and conditions under which annexation was granted. Va. Code Ann. § 15.1-1047(c) (1989 Repl.Vol.). Any action by the Annexation Court under § 15.1-1047(c) is subject to review by the Supreme Court of Appeals of Virginia. Va.Code Ann. § 15.1-1047(d) (1989 Repl. Vol.). In addition, “[mjandamus and prohibition shall lie from the Supreme Court of Appeals or any circuit court to compel a city or town to carry out the provisions of [the annexation statute] or to forbid any violation of the same.” Va.Code Ann. § 15.1-1048 (1989 Repl.Vol.). In this case, the orders of two separate Annexation Courts are at issue. The 1978 Annexation Court, whose order covered property owned by the Front Royal Corporation, reconvened itself in 1983 after being petitioned by the Front Royal Corporation for the purpose of determining whether its order had been obeyed. Based on representations made by the town at that hearing regarding their plans for adding sewer lines, the Annexation Court found that Front Royal was in substantial compliance with the 1978 order. The 1976 Annexation Court, whose order covered the individual landowners’ property, was never reconvened. At the heart of the case before us is the question whether Front Royal ever complied with the orders of the Annexation Courts. The answer requires interpretation of the Annexation Courts’ orders, which is a determination that the Annexation Court was uniquely qualified to make. The annexation system as set up in Virginia is a complex scheme. It involves a court system set up specifically to deal with the annexation process. It provides for appeal to the Virginia courts if the town fails to comply with the Annexation Court’s orders. See Va.Code Ann. § 15.1-1048. We believe that this annexation scheme is sufficiently local in nature to warrant our abstaining from deciding the issues before us. Like the claims in Fralin and Caleb Stowe, all of plaintiffs’ federal claims necessarily depend upon the construction of state law — here the orders of the Annexation Courts. The courts of Virginia have much greater familiarity with the operations of the Virginia annexation scheme, and we believe that they should have the first opportunity to pass upon them. See Fralin, 493 F.2d at 482. In addition, there are other state remedies which might be available to plaintiffs. The Virginia Constitution provides due process protection to those who have been unlawfully deprived of their property. Va. Const, art. I, § 11. Virginia courts have consistently recognized a common law cause of action to protect this right. See Groves v. Cox, 559 F.Supp. 772, 777 (E.D.Va.1983); Morris v. Elizabeth River Tunnel District, 203 Va. 196, 123 S.E.2d 398 (1962). Because the annexation court system is a matter of purely state and local law, and because there may be other state remedies available to plaintiffs in this case, we vacate the district court’s orders granting summary judgment and damages in favor of plaintiffs. However, we think that it is appropriate for the district court to retain jurisdiction over the case pending the outcome of the state proceedings because they may not fully dispose of all of the federal claims. See Caleb Stowe, 724 F.2d at 1080-81 (directing the district court to retain jurisdiction over the case pending a state court determination); Forest Hills Utility Co. v. City of Heath, Ohio, 539 F.2d 592, 596 (6th Cir.1976) (holding that the district court should have retained jurisdiction over the claims pending the outcome of state proceedings when it abstained under the Pullman and Burford doctrines). Therefore, we vacate the district court’s orders and remand with instructions to retain jurisdiction of the case pending the outcome of the state court proceedings. VACATED AND REMANDED WITH INSTRUCTIONS. We note that 10 years have now run from the date of the Annexation Courts’ original orders. Thus, there is a question whether the Courts could be reconvened at this time. However, because of the defendants’ behavior in this case contributing to the passing of these deadlines, it might be that the Annexation Courts could reconvene under the special circumstances of this case. That is not for us to decide, however.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Harry M. KATZ, Defendant-Appellant. No. 71-2063 Summary Calendar. United States Court of Appeals, Fifth Circuit. Feb. 23, 1972. Rehearing Denied March 17, 1972. Michael L. Kinney, St. Petersburg, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee. Before BELL, DYER and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Interprises, Inc. v. Citizens Casualty Co. of New York et al.. 5 Cir. 1970, 431 F.2d 409. BELL, Circuit Judge: This appeal is from a judgment of conviction entered on a jury verdict finding Dr. Katz guilty on five counts of an indictment, two of which charged him with filing false statements in violation of 18 U.S.C.A. § 1001, and three counts of which charged him with filing false statements in violation of 42 U.S. C.A. § 408(c). He was acquitted on a conspiracy count and on an additional count charging a violation of § 1001. Dr. Amadio, another defendant, was found guilty on two counts charging violations of § 408(c), supra. Two employees of Pinellas General Hospital, charged in the conspiracy count, were acquitted. Dr. Amadio received a suspended sentence. Dr. Katz was given concurrent sentences with two years imprisonment. This appeal is by Dr. Katz. The gist of the indictment was that Dr. Katz, a medical doctor, Chief of Staff of Pinellas General Hospital in Largo, Florida, and president of the corporation which owned the hospital, individually, and in conspiracy with others, falsified and misrepresented claims to the Social Security Administration for services allegedly rendered to Medicare patients. See Health Insurance For the Aged Act. 42 U.S.C.A. § 1395 et seq. There was much evidence concerning the government’s contention that needless and unauthorized hospital and treatment services were rendered to patients for which statements were submitted. There was also evidence to support the government’s claim of billings for services of this type which were not rendered. There were acquittals on the counts embracing these charges. The convictions rested on counts charging that Dr. Katz and Dr. Amadio billed for patient visits in the hospital which were not made. Dr. Katz vigorously disputes the sufficiency of the evidence in this regard. He also complains of the failure of the district court, on two occasions, to order a mistrial as a result of statements made in the presence of the jury which he categorizes as prejudicial. Finding no error, we affirm. I. The test by which we adjudge the sufficiency of the evidence is the now familiar one that the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704; Strauss v. United States, 5 Cir., 1963, 311 F.2d 926, 928. Each of the counts in question charged that Dr. Katz billed for and received Medicare payments for hospital visits to patients which were not made. The five counts involve five patients, each count resting on transactions having to do with a single patient. The patient visits for which billings were made at either ten or fifteen dollars per visit, were in the totals of 40, 18, 10, 9, and 9 visits. The uniform procedure established on the trial was that Dr. Katz billed for one visit per day during each day that a patient was confined to the hospital. The evidence in support of the government’s case was in the form of testimony of some patients and relatives of some patients that many of the visits were not made. One nurse testified that Dr. Katz made visits to patients on two out of three days at best. Another nurse testified that Dr. Katz visited the approximately twenty five patients in the hospital in a total of twenty minutes. There was other testimony that a patient visit by a doctor was generally noted on the nurse’s patient notes. These notes disclosed only nine of the claimed visits. A doctor who resigned after three weeks with the hospital, testified that he never saw Dr. Katz make patient visits. The evidence by way of a defense of Dr. Katz was to the contrary. There was testimony from nurses and office assistants that Dr. Katz made daily rounds in the hospital which would have included all patients. His own testimony was to the same effect and that often he made rounds twice daily. The testimony of some of the patients was negative in the sense that they could have been sleeping or under medication and might not have known of a visit by Dr. Katz. There was some testimony that nurses did not always record a visit by a doctor. In sum, this evidence was sufficient to make a question for the jury as to each count. The jury resolved the issues against Dr. Katz on the five counts and there the matter ends. II. The other assignment of error relates to two occurrences during the trial which gave rise to motions for a mistrial. We have carefully examined the substance of each of them by considering them in context and in light of the corrective action taken by the district court. We conclude that the district court did not abuse its discretion in denying the motions for mistrial. Cf. United States v. Pritchard, 5 Cir., 1969, 417 F.2d 327; Leonard v. United States, 5 Cir., 1967, 386 F.2d 423. Affirmed. . 18 U.S.C.A. § 1001: “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” . 42 U.S.C.A. § 408(c) : “Whoever— 3: * * * * “(c) at any time makes or causes to be made any false statement or representation of a material fact for use in determining rights to payment under this subchapter; * # s¡t '•!: “shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned for more than one year, or both.”

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

Jimmy L. HAMILTON, Appellant/Cross-Appellee, v. Lawrence V. ROTH, Jr., Individually and in his official capacity as Warden of Montgomery County Prison, W. Anastasia, Individually and in his official capacity as Deputy Warden of Montgomery County Prison, Dr. Andries, Individually and in his official capacity as Physician of Montgomery County Prison, Montgomery County Board of Prison Inspectors, Individually and in their official capacities: Robert McCracken, James Hogg, Theodore Ellis, Robert Asher, Barry Haines, Charles L. Peixoto, Jr., Montgomery County Commissioners, Individually and in their official capacities: A. Russell Parkhouse, Frank W. Jenkins, Lawrence H. Curry, Julius T. Cuyler, Individually and in his official capacity as Warden of the State Correctional Institution at Graterford, Dr. Gaffney, Individually and in his official capacity as Physician at the State Correctional Institution at Graterford, Glen R. Jeffes, Individually and in his official capacity as Warden of the State Correctional Institution at Dallas, Mr. Kilgannon, Individually and in his official capacity as Assistant Warden at Montgomery County Prison, and Mr. Carlin, Individually and in his official capacity as Administrator of work release at Montgomery County Prison, Appellees, Dr. Edmund Gaffney, Appellee/Cross-Appellant. Nos. 79-2171, 79-2285. United States Court of Appeals, Third Circuit. Argued March 27, 1980. Decided July 2, 1980. Rosenn, Circuit Judge, concurred in part and dissented in part and filed opinion. Stanley I. Slipakoff (argued), Asst. Atty. Gen., John O. J. Shellenberger, Deputy Atty. Gen., Eastern Regional Director, Edward G. Biester, Jr., Atty. Gen., Commonwealth of Pennsylvania Dept, of Justice, Philadelphia, Pa., for appellee/cross-appel-lant, Gaffney. Arthur W. Lefco (argued), Marguerite J. Ayres, Mesirov, Gelman, Jaffee, Cramer & Jamieson, Philadelphia, Pa., for appellant/cross-appellee, Hamilton. Before ROSENN, GARTH and SLOVI-TER, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge: Jimmy Lee Hamilton, the appellant, suffers from a recurrent growth on his penis known as an intraurethral condyloma acu-minatum of Buschke and Lowenstein. Such condylomas resemble in appearance large warts. He first developed this growth while serving in the Marines. It reappeared shortly before he was incarcerated in the Pennsylvania State Correctional Institution at Graterford. The military doctors were rather more attentive to his problem than those at Graterford. Indeed, in the two months he spent at Graterford, Hamilton’s repeated requests for treatment resulted only in Excedrin being provided, when it is acknowledged that the proper treatment is prompt surgical excision. Thus, Hamilton brought suit charging that his lack of treatment constituted cruel and unusual punishment in violation of the Eighth Amendment. To this claim he added a state claim of medical malpractice. At the completion of the presentation of evidence to the jury, the district court directed a verdict on the Eighth Amendment claim in favor of Dr. Edmund Gaffney, Medical Director at Graterford, who was the sole remaining defendant at the time of trial. Hamilton appeals this ruling. The malpractice claim was submitted to the jury, which returned a verdict in Hamilton’s favor of $2,500. Dr. Gaffney cross-appeals from this verdict. The doctor claims that under Pennsylvania’s Health Care Services Malpractice Act, 40 Pa.Stat.Ann. § 1301.101 to § 1301.1006 (Supp.1979), and this court’s recent decision in Edelson v. Soricelli, 610 F.2d 131 (3d Cir. 1979), the district court was without subject matter jurisdiction to entertain the malpractice claim, since that claim had not first been submitted to a Pennsylvania malpractice arbitration panel. Submission of malpractice claims to arbitration panels, prior to such claims being asserted in any court action, is required by the Health Care Services Malpractice Act. See 40 Pa.Stat.Ann. § 1301.309. This court held in Edelson that the Pennsylvania arbitration requirement for malpractice claims was binding on the federal courts in the exercise of their diversity jurisdiction, under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 66, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We hold that the district court did not err in directing a verdict in favor of Dr. Gaff-ney on Hamilton’s Eighth Amendment claim. We agree, however, with Dr. Gaff-ney on his cross-appeal that the district court had no jurisdiction to hear Hamilton’s pendent malpractice claim. I. Jimmy Lee Hamilton was convicted of criminal charges in the Pennsylvania state courts and was confined in the Montgomery County Prison on May 20,1975. The condy-loma about which the instant controversy revolves began to develop shortly before Hamilton was sent to Montgomery, but he sought no treatment for it before his incarceration. On January 12, 1976, Hamilton was transferred from Montgomery to the Pennsylvania State Correctional Institution at Graterford. Shortly after his transfer, on January 15, 1976, Hamilton was examined for the first time by Dr. Gaffney. Dr. Gaffney examined the condyloma, and told Hamilton that he would order a consultation by an outside urologist. In accordance with prison procedures, Dr. Gaffney then ordered this consultation. He did so by filing an order for urological consultation with the prison’s medical administrator. Unfortunately, this consultation never took place. Over the course of the next two months, Hamilton complained regularly about his problem and the absence of treatment to staff doctors and other prison personnel. His complaints went unanswered. Hamilton, however, made none of these complaints to Dr. Gaffney. Hamilton did see Dr. Gaffney a second time, shortly before Hamilton was transferred from Graterford to the Pennsylvania State Correctional Institution at Dallas on March 8, 1976. At this time, Hamilton complained that he had never had the consultation that Dr. Gaffney had ordered. Surprised at learning that no consultation had taken place, Dr. Gaffney went directly to the chief medical administrator of the prison and issued an oral direction for the consultation. Hamilton was transferred out of Graterford, however, before the consultation could take place. A few weeks after Hamilton’s transfer to Dallas, he was examined by a urologist. The condyloma was surgically removed four days later. Hamilton brought suit against various officials of the Montgomery County Prison System, the State Correctional Institution at Graterford, and the State Correctional Institution at Dallas. He presented two claims: that the failure to provide prompt medical treatment constituted cruel and unusual punishment in violation of the Eighth Amendment; and, that this same failure constituted medical malpractice. This latter claim invoked the court’s pendent jurisdiction. A settlement was reached with the Montgomery County officials and they were dismissed from the suit. Hamilton then consented to the dismissal of all the remaining Graterford and Dallas defendants, with the exception of Dr. Gaffney. A jury trial was held on Hamilton’s contentions over the course of two days. As noted, the district court granted Dr. Gaffney’s motion for a directed verdict on the Eighth Amendment claim at the close of testimony, ruling “that there is no evidence which would be sufficient to go to the jury on any violation of constitutional rights.” The malpractice claim was submitted to the jury, and it returned a $2,500 verdict for Hamilton. Cross-appeals were then filed by the parties. Hamilton challenges the directed verdict on the Eighth Amendment claim, while Dr. Gaffney challenges the submission of the malpractice claim to the jury. We address these contentions in turn, finding merit in Dr. Gaffney’s cross-appeal, but no merit in Hamilton’s Eighth Amendment contention. II. The parties agree on the legal principles applicable to Hamilton’s charge that the lack of treatment at Graterford constituted cruel and unusual punishment in violation of the Eighth Amendment. The standard is defined by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976): the Eighth Amendment proscribes only “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. at 291. We must determine, then, whether Hamilton has adduced sufficient evidence of Dr. Gaffney’s deliberate indifference to Hamilton’s serious medical needs to survive a motion for a directed verdict. A directed verdict, like a summary judgment, should not lightly be granted. Outside its proper sphere, a directed verdict results in the impermissible substitution of fact finding by the trial court for fact finding by the jury. We recently described the standard of review of a directed verdict as follows: Because this is an appeal from a directed verdict for the defendant, we must examine the record in a light most favorable to the plaintiff, and review the specific evidence in the record and all inferences reasonably capable of being drawn therefrom. We must determine whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief. If the evidence is of such character that reasonable men, in the impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury. Since a directed verdict motion deprives a party of jury fact-determination, it should be granted sparingly and circumspectly. Nevertheless the federal courts do not follow the rule that a scintilla of evidence is enough. The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party. Patzig v. O’Neil, 577 F.2d 841, 846 (3d Cir. 1978) (citations and internal quotations omitted). Despite the rigorous review to which a directed verdict is subject on appeal, it is evident here that the district court did not err in granting Dr. Gaffney’s motion for a directed verdict on Hamilton’s Eight Amendment claim. Estelle v. Gamble enunciates a two part test: the medical needs must be serious, and the defendant’s response must be deliberate indifference. We do not question that Hamilton has offered sufficient evidence to permit a jury to find that his medical needs were serious, and that he could thereby survive a directed verdict as to one half of the Estelle standard. But we cannot say the same with respect to the requirement that there be evidence of Dr. Gaffney’s deliberate indifference. Hamilton’s proofs are critically deficient in providing a basis on which a jury could reasonably conclude that Dr. Gaffney had been deliberately indifferent to Hamilton’s problem. Rather, the evidence adduced at trial points in the opposite direction. The uncontroverted evidence at trial demonstrated a division of responsibility on medical matters at Graterford between the treating physicians and the medical administrative staff. When a physician orders a consultation with an outside specialist, it is not the responsibility of the prison physician to follow up his order to ensure that the consultation has been performed. Rather, it is the responsibility of the medical administrative staff. This responsibility is divided because the treating physicians order a great number of outside consultations, sometimes as many as twenty a day, and it is inefficient, if not impossible, for the physician himself to maintain administrative control over each such order. This division of responsibility highlights the evidentiary deficiencies in Hamilton’s case. When Dr. Gaffney first saw Hamilton on January 15, 1976, he ordered a consultation with an outside urologist. The responsibility thereafter for implementing that order devolved not upon Dr. Gaffney, but rather upon the medical administrative staff. When Dr. Gaffney saw Hamilton several weeks later, and learned that the consultation had yet to take place, he again directed that there be a consultation. This time, Dr. Gaffney personally issued his consultation order to the chief medical administrator. That neither consultation ever took place may demonstrate a defect in the prison’s administrative system, but it can have no probative value in demonstrating deliberate indifference on Dr. Gaffney’s part. To the contrary, rather than revealing a deliberate indifference, the evidence demonstrates a professional concern on the part of the treating physician. Not only does this evidence fail to support Hamilton’s claims, but there is no other evidence which can support even an inference of deliberate indifference. Hamilton’s case against Gaff-ney thus depends on the uncontroverted facts that, on two occasions, Dr. Gaffney ordered specialty consultations; that the medical administrator was charged with executing these orders; and that the administrator, and not Dr. Gaffney, failed to do so. On this record, we can find no error in the district court granting Dr. Gaffney’s motion for a directed verdict on the Eighth Amendment issue. III. We turn now to a consideration of Dr. Gaffney’s cross-appeal. He argues that the district court erred in submitting the pendent medical malpractice claim to the jury, on the ground that the court was without subject matter jurisdiction to hear the claim. He bases this contention, as noted above, on Pennsylvania’s Health Care Services Malpractice Act, 40 Pa.Stat.Ann. § 1301.101 to § 1301.1006 (Supp.1979), and the recent decision of this court in Edelson v. Soricelli, 610 F.2d 131 (3d Cir. 1979). In the Malpractice Act, Pennsylvania established an elaborate administrative scheme for the resolution of medical malpractice claims. Edelson described the Act as requiring arbitration as “a condition precedent to entry into the state judicial system.” 610 F.2d at 134. Original jurisdiction over medical malpractice claims is conferred by the Act on the arbitration panels that the Act sets up. Section 1301.309 provides in pertinent part: The arbitration panel shall have original exclusive jurisdiction to hear and decide any claim brought by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided. (emphasis supplied). The Act also provides for judicial review, including trial de novo, of final arbitration awards. 40 Pa.Stat.Ann. § 1301.509 (Supp. 1979). We considered the significance of this statutory scheme in the context of a federal court exercising its diversity jurisdiction in Edelson v. Soricelli, 610 F.2d 131 (3d Cir. 1979). We held that a federal court in a diversity action, under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), must give effect to Pennsylvania’s Malpractice Act, and has no jurisdiction to entertain Pennsylvania medical malpractice suits that have not yet been submitted to arbitration. Thus, we held in Edelson that arbitration was a precondition to bringing suit on a medical malpractice claim in any court, state or federal. Dr. Gaffney now contends that Edelson controls this case, that the district court here, like the courts of the State of Pennsylvania, was without subject matter jurisdiction to hear this suit. Hamilton offers a two-fold response. First, he claims that Edelson was wrongly decided and should be overruled at this time. The short answer to this argument is that a precedent established by this court can only be overturned by the court sitting en banc, and not by a subsequent panel determination. See 3d Cir. Internal Operating Procedures, VIII (C); Sikora v. American Can Co., 622 F.2d 1116 at 1124, (3d Cir. 1980); Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221, 1222 & n. 3 (3d Cir. 1978) (en banc). Second, he argues that Edelson arose in the diversity context, while the present case involves this court’s jurisdiction that is pendent to a properly asserted section 1983 claim. Hamilton argues that this difference supports, and, indeed, requires a result different from that reached in Edelson. He thus argues that the district court in this “pendent” context has jurisdiction to retain and adjudicate a Pennsylvania malpractice claim. His argument, cast in the most favorable light, proceeds as follows. The determination whether a state rule shall be applied by a federal court under Erie must be made with reference to two central considerations: will a different federal rule contribute to a different result in a federal forum than a state forum, thus leading to forum shopping by litigants; and do countervailing federal considerations compel adherence to the federal rule and rejection of the conflicting state rule. Both of these concerns, according to Hamilton, require a different result under Erie in a pendent jurisdiction context as opposed to a diversity context. First, Hamilton asserts, forum shopping presents a minimal problem in the present context because pendent jurisdiction may only be invoked by a plaintiff who is already in federal court and who is relying upon an independent basis of federal jurisdiction. Second, since pendent jurisdiction is exercised only where two claims are so closely related as to be normally tried in a single action, see United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), and since the related federal claim must be entertained in any event, there is a federal interest in adjudicating the state claim at the same time, rather than remitting it to an arbitration panel. By doing so, a multiplicity of actions is thus avoided, claims Hamilton. While Hamilton’s argument is not without some surface appeal, we are not persuaded by it. The principle of Erie is that federal courts adjudicating rights conferred by state law must do so through the application of substantive state law. The Erie doctrine in no sense varies with the particular basis of jurisdiction through which state-created causes of action make their way into federal court. The Erie principle is concerned not with the source of federal jurisdiction, but rather with the source of the rights being adjudicated: state-created rights must be determined in accordance with state law. See Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 781 (2d Cir. 1964), cert. denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965). To adopt Hamilton’s logic would lead to the bizarre result of applying Pennsylvania state law to a Pennsylvania claim in a diversity case, but federal law to the same Pennsylvania claim when that claim is heard under pendent jurisdiction. Having once held, in Edelson, albeit in a diversity context, that a Pennsylvania malpractice claim must first be heard by the Pennsylvania arbitration board, we have been offered no sound reason by Hamilton why this ruling should be modified simply because a different basis of jurisdiction has been alleged. The concerns of forum shopping and countervailing federal considerations are, of course, relevant to the initial determination whether Erie requires the application of a state rule by a federal court adjudicating a state law claim. But having once resolved those issues, and having once made the determination that state law must be applied, the mere assertion of a different jurisdictional basis cannot require either a redetermination of those factors, or a different result. While no case that has been called to our attention has considered the precise argument presented here by Hamilton — that the Erie doctrine applies differently in the pendent and diversity jurisdiction contexts— the more general proposition that Erie does apply to state claims heard under pendent jurisdiction has received the uniform support of lower federal courts and commentators. E. g., Van Gemert v. Boeing Co., 553 F.2d 812, 813 (2d Cir. 1977); Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 780-81 (2d Cir. 1964), cert. denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965); Chavez v. Southern Pacific Transportation Co., 413 F.Supp. 1203, 1205 (E.D.Cal.1976); Briskin v. Glickman, 267 F.Supp. 600, 603 (S.D.N.Y.1967); Mintz v. Allen, 254 F.Supp. 1012, 1013 (S.D.N.Y.1966); 1A Moore’s Federal Practice U 0.305[3], at 3050-51 (2d ed. 1979); Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Colum.L.Rev. 1018, 1043 & n.142 (1962). It also seems fairly compelled by the Supreme Court’s own discussion of pendent jurisdiction. In the leading case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Court noted: Its [pendent jurisdiction’s] justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. 383 U.S. at 726, 86 S.Ct. at 1139 (emphasis added, footnote omitted). None of these authorities provide even the least support for the view that a state rule deemed binding on a federal court under Erie in the diversity context can be ignored by a federal court exercising pendent jurisdiction. We thus find our result not merely a product of the logic of Erie, but soundly based in precedent as well. We conclude, then, that the status of Hamilton’s malpractice action as a pendent claim provides no basis for rejecting the rule of Edelson v. Soricelli. IV. We thus conclude that the district court did not err in directing a verdict in favor of Dr. Gaffney on Hamilton’s claim under the Eighth Amendment. Accordingly, the judgment of the district court in Hamilton’s appeal at No. 79-2285 will be affirmed. We hold further that the district court was without subject matter jurisdiction to hear Hamilton’s related medical malpractice claim. Thus, the court’s judgment of $2,500 in Hamilton’s favor, based on a jury verdict entered July 20, 1979, and appealed by Dr. Gaffney at No. 79-2171, will be vacated. That cause will be remanded to the district court with a direction to dismiss Hamilton’s malpractice claim without prejudice to Hamilton’s “right to file [a] fresh com-plaintf ] after completing arbitration.” See Edelson v. Soricelli, 610 F.2d at 133. Costs in both appeals will be taxed against Hamilton. . In addition to other evidence, the expert witness who testified for Hamilton stated that the growth had a potential to become malignant. . This issue, involving as it does subject matter jurisdiction, may be raised at any time. . For a discussion of the Malpractice Act and its objectives, see Edelson v. Soricelli, 610 F.2d 131, 135-36 (3d Cir. 1979). . The view that Edelson v. Soricelli was wrongly decided likewise appears to be the principal underpinning of Judge Rosenn’s dissent. It is a sufficient response to this view, and thus to the subsidiary arguments underlying it, that each of the rationales now advanced by Hamilton and the dissent were considered by the court in Edelson and were rejected. This court held there that submission to the Pennsylvania malpractice arbitration panel was a precondition to judicial consideration of a Pennsylvania malpractice claim, whether the claim was asserted in state or federal court. We therefore hold that no court had subject matter jurisdiction over a malpractice suit until after arbitration proceedings had been completed. Thus, the position taken by the dissent here has been foreclosed by our earlier decision in Edelson v. Soricelli. . For the overriding reasons discussed in text, we need not rebut in detail Hamilton’s arguments concerning forum shopping and countervailing federal considerations. We note, however, that the federal interest in avoiding a multiplicity of actions, on which Hamilton relies, is an interest not confined to the pendent jurisdiction context; it can arise as well under diversity jurisdiction. Whenever a plaintiff, invoking diversity jurisdiction, brings suit on two related claims, the federal interest in avoiding a multiplicity of actions is implicated. If one of these diversity claims alleges medical malpractice, that claim under Edelson must be submitted to arbitration, even though the related claim is retained for adjudication in the federal court. Hence, there is no distinction between diversity and pendent jurisdiction in this respect. . In addition to its argument that Edelson v. Soricelli was wrongly decided, see note 4 supra, the dissent seeks to distinguish this case from Edelson, claiming a substantive difference between diversity and pendent jurisdiction in this context. The dissent first contends that a federal court has power to hear this claim under pendent jurisdiction because the claim derives from the “nucleus of operative fact” giving rise to the federal claim sued upon. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); dissenting op., at 1213. There is no question that we have power under Gibbs to consider this claim. But Gibbs also requires that the federal court determine pendent claims in accordance with the applicable state law. See id. at 726, 86 S.Ct. at 1139. Here, the applicable state law requires that a malpractice claim be submitted to arbitration before being considered in court. Thus, while a federal court has the power under the Gibbs test of pendent jurisdiction to hear a malpractice claim, it may exercise this power only after the claim has been submitted to arbitration. We have so held first in Edelson and now here. Similarly, two other principal arguments of the dissent fail. The dissent contends that, by refusing to exercise pendent jurisdiction here, we are giving insufficient weight to the strong federal interest in pendent jurisdiction, and are burdening a plaintiffs right to have a federal claim heard in a federal forum. We cannot agree. As we have previously stated, pendent jurisdiction may be exercised over a state law medical malpractice claim, thus honoring a plaintiffs right to a federal forum, but only when, under the applicable state law, that claim is ripe for judicial consideration. Under Pennsylvania law, that point is only reached when arbitration proceedings have been completed. The dissent’s final argument is that Erie requires a different result in this pendent jurisdiction context, as opposed to the diversity context considered in Edelson, because forum shopping presents a lesser problem here. The dissent argues that forum shopping is of no concern in a pendent jurisdiction context because pendent jurisdiction may only be invoked by a plaintiff who is already in federal court on a valid, independent basis of federal jurisdiction. But in so arguing, the dissent ignores the primary evil of forum shopping, an evil which results whenever a plaintiff has the ability to chose between state and federal fora, and can obtain more favorable result in federal court. Such would be the case here, if we were to permit a plaintiff in Hamilton’s position to have his medical malpractice claim initially adjudicated by a federal court. If, by invoking pendent jurisdiction in federal court, a plaintiff can circumvent the mandatory arbitration procedure for malpractice claims under Pennsylvania state law, the governing principle upon which the Erie doctrine is predicated will have been frustrated. . The Flexitized case presents the same question in a slightly different context. The Court of Appeals for the Second Circuit there considered the law to be applied to a state law unfair competition claim heard not under diversity jurisdiction but under the statutory pendent jurisdiction to hear such claims conferred by 28 U.S.C. § 1338(b) (1976). Section 1338(a) confers subject matter jurisdiction on the district courts to hear suits arising under federal patent, copyright, and trademark statutes. Section 1338(b) confers pendent jurisdiction to hear state law unfair competition claims “when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws.” The court held that state law governed the adjudication of the state law unfair competition claim without regard to the jurisdictional basis on which the claim rested: In Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540-41 (2d Cir. 1956), we had occasion to discuss in detail in a lengthy first footnote to that opinion, the law to be applied in adjudicating an unfair competition claim over which federal jurisdiction had been acquired only because of the pendent jurisdiction provisions of 28 U.S.C. § 1338(b). Basing our conclusions there upon a synthesis of American Auto. Ass’n v. Spiegel, 205 F.2d 771 (2d Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953), wherein the court held that the Lanham Act did not provide a federally created right of unfair competition, and Artype, Inc. v. Zappulla, 228 F.2d 695 (2d Cir. 1956), wherein this court held that state law governed an unfair competition claim joined with a federal trademark claim where diversity of citizenship existed, we indicated in Maternally Yours, that state law was properly to govern even where federal jurisdiction was pendent, for we noted that the source of the right sued upon, rather than the ground used to obtain federal jurisdiction, should determine the governing law. 335 F.2d at 780-81 (emphasis added). While the instant matter presents the question in the context of judicially created pendent jurisdiction, see United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), rather than statutory pendent jurisdiction, we join the Second Circuit in holding that it is “the source of the right sued upon, rather than the ground used to obtain federal jurisdiction,” 335 F.2d at 781, that determines the applicable law.

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?

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

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

Melville HARRIS, as Trustee in Bankruptcy of Leonard Massello and William Massello, Plaintiff-Appellee, v. STANDARD ACCIDENT AND INSURANCE COMPANY, Defendant-Appellant. No. 38, Docket 26892. United States Court of Appeals Second Circuit. Argued Sept. 28, 1961. Decided Dec. 6, 1961. Maurice Rosenberg, New York City (Reid A. Curtis, James B. Donovan, Patrick J. Hughes, and Watters & Donovan, New York City, on the brief), for defendant-appellant. William A. Hyman, New York City (Harold W. Hayman, New York City, on the brief), for plaintiff-appellee. Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges. LUMBARD, Chief Judge. Plaintiff, the trustee in bankruptcy of Leonard and William Massello, brought this action to recover damages for defendant’s refusal, allegedly in bad faith, to settle a personal injury action brought against the Massellos, within the limit of a $10,000 automobile liability insurance policy issued by the defendant, Standard Accident and Insurance Company. The district court awarded $89,-000 damages, and Standard appeals. Since there was no showing that the insured suffered any loss, we reverse the judgment of the district court. In view of this, it is unnecessary for us to determine whether New York law recognizes a cause of, action for refusal to settle under the circumstances of this case. Standard issued an automobile liability insurance policy to Leonard Massello with a limit of liability of $10,000 for any one person for any one accident. On January 5, 1952 William Massello, while driving a panel truck owned by his broth-«r Leonard, collided with a taxicab in Yonkers, New York. As a result of this collision, the taxicab ricocheted onto the sidewalk where it struck a pedestrian, Mrs. Elizabeth Pease Van Suetendael, inflicting serious injuries. Mrs. Van Suetendael sued the owners and drivers of both vehicles in the New York Supreme Court. Pursuant to the policy, Standard assumed the defense of the action on behalf of the Massellos. Although numerous settlement discussions were had both before and during the.trial, at which Mrs. Van Suetendael was willing to settle for the policy limits or a little less, no settlement was reached and, after a trial in March 1957, the jury brought in a $105,000 verdict for Mrs. Van Suetendael upon which Judge Fanelli entered judgment. Standard paid Mrs. Van Suetendael the sum of $10,-000, the limit of its policy; the Travelers Insurance Co. paid on behalf of the taxicab owner the sum of $5,000, the limit of its policy; and the taxicab owner personally paid an additional $1,-000, receiving a release of the lien of the judgment against him. The sum of $89,-000 remained uncollected upon the judgment, and for this amount the trustee brought suit against Standard. Even before entry of the Van Suetendael judgment, the Massellos were insolvent. In August 1956 they had lost their business to creditors. Subsequent to the entry of judgment, the Massellos filed petitions in bankruptcy in the United States District Court for the Southern District of New York and were adjudicated bankrupts. Although the Massellos were discharged in bankruptcy on November 17, 1958, the bankruptcy proceedings have remained open pending the outcome of this damage action against Standard. The district judge tried the case without a jury. Judge Fanelli of the New York Supreme Court, who had presided at the personal injury trial, testified that when he told Standard’s counsel, Reid Curtis, that he thought all the defendants would be held liable and that Standard could not win, Mr. Curtis replied that he knew it. Mrs. Van Suetendael’s attorney, William Hyman, testified that Mr. Curtis told him that since Standard had nothing to lose, he would finish the trial. Although Mr. Curtis denied these statements, the district judge credited Judge Fanelli and Mr. Hyman. William Massello, the driver of the truck, at all times contended that he was not responsible for the accident and both Massellos admitted that since they were already insolvent, they could not pay any excess judgment. The district court held that since the insurer had exclusive control of settlement, it had an obligation to consider, in g00d faith, the insured’s interests as well as its own when making decisions as to settlement. In light of the severity of Mrs. Van Suetendael’s injuries and the probability of a verdict in her favor, coupled with the statements made by Standard’s trial attorney during the personal injury action, the judge concluded that the trustee in bankruptcy had a cause of action for Standard’s bad faith in its conduct of the defense. The district court held that payment by the insured should not be a prerequisite to recovery as the insurer could then “easily avoid the duty of good faith owed to the insured.” 191 F.Supp. at 544. He pointed out that New York had not yet adopted any rule on damages in such a case and cited Iowa, California and Tennessee authority to support his view that entry of judgment was sufficient, The district court had jurisdiction under § 23, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 46, sub. b, which gives federal courts jurisdiction of suits brought by the trustee provided the defendant consents. The courts have increasingly recognized a duty on the insurer to exercise some degree of care or good faith toward the insured in deciding whether to settle, although most contracts of insurance merely give the insurer the sole right to settle actions arising within the coverage of the policy but do not require it to do so. The interests of the insured and insurer often conflict. A settlement within the limits of the policy coverage is usually advantageous for the insured, for then he avoids all risk of personal liability for a judgment in excess of the policy limits. On the other hand, rather than consent to a settlement which would require the payment of substantially the entire amount of its coverage, the insurance company would generally prefer to proceed to trial and seek to avoid liability; should it lose, it may not be liable for much more than it would have had to pay in settlement. Consequently, the majority of jurisdictions which have ruled on the point do impose a duty upon the insurer in some situations where it has failed to give appropriate weight to the insured’s interests. Standard’s duties and liabilities in this case are governed by the law of New York, and this the parties do not dispute. But we do not pause to discuss whether the New York courts would hold Standard liable in this situation. The plaintiff has failed to prove any damage whatever under New York law. Therefore, we reverse the judgment of the district court and direct that the complaint be dismissed. In the discussion of damages to which we now turn, we assume arguendo that the plaintiff has otherwise made out a sufficient case for recovery. New York’s insurance statutes, relied upon by Judge SMITH in his dissenting opinion, have no persuasive effect as to what constitutes such damage to an insured as to render the insurer liable on an excess judgment. There are two types of insurance policies, those indemnifying the insured against liability and those indemnifying against loss. In order for the insured to recover against the insurer under the first type, the insured need prove only that a judgment has been entered against him. On the other hand, policies of the second type require proof that a loss has actually been suffered. To emphasize the nature of this type j of policy, insurance companies often in- j sert provisions that the insured shall not f recover from them until he has actually i paid a judgment against him. Because of an increasing feeling that automobile liability insurance should protect the in-; jured person as well as the negligent driver, coupled with the idea that having received the premiums the insurance company should not avoid liability to a person injured within the scope of the policy merely because the insured was unable to pay, the legislatures of New York and many other states have prohibited this type of policy in certain situations. The New York statute, first enacted in 1917, prohibits the use of the insured’s insolvency or bankruptcy as a defense to the insurance company and creates a cause of action by the injured person directly against the insurer if the former’s judgment against the insured remains unsatisfied for 30 days. Standard’s policy issued to Leonard Massello incorporates these provisions. Pursuant thereto, Standard paid Mrs. Van Suetendael’s judgment against the Massellos to the ■extent of the limit of coverage of the policy, $10,000. It is to be noted, however, that this New York statute explicitly prohibits use of the insured’s insolvency or bankruptcy as a defense only to the face amount of the policy; it does not forbid such defense as to the excess judgment. , -'The reasons for the enactment of the Statute warrant its application to the coverage of the policy only and not to the excess liability. The argument that insurance should protect the injured person ag wejj ag insured applies only to the extent that the insured has taken out insurance. The argument that having received premiums the insurance company should not be relieved of liability because of the insured’s bankruptcy does not apply to the excess judgment since the insurer has received premiums only for the face amount of the policy, here $10,-x000. If, as our dissenting colleague suggests, we are to decide this case on “the spirit of New York’s concern for the injured victim” we would be usurping the function of New York’s legislature. Perhaps New York should require those in the trucking business to carry more adequate liability insurance. But so long as the state leaves in the hands of the potential wrongdoer the amount of insurance he shall carry, courts should not depart from well-settled principles of tort law and damages in order to impose a liability for which the parties did not contract. Therefore, the New York insurance law does not require Standard to pay the excess judgment against the Massellos; proof of tort damages is necessary. The law of New York requires proof of actual loss to support recovery for a tort of this type. The purpose of tort damages is to compensate an injured person for a loss suffered and only for that. The law attempts to put the plaintiff in a position as nearly as possible equivalent to his position before the tort. Recovery is permitted not in order to penalize the tortfeasor, but only to give damages “precisely commensurate with the injury.” The trustee argues that although the Massellos were insolvent before the rendition of the excess judgment, have never paid any part of it, and have been discharged from liability for it by bankruptcy, they have nevertheless been injured by it to the extent of $89,000, the face amount of the excess judgment. The New York courts have not passed on this question. The courts of other. states have split on whether the insured is damaged by an uncollectible excess judgment against him. In the leading case of Dumas v. Hartford Acc. & Indem. Co., 92 N.H. 140, 26 A.2d 361 (1942), the New Hampshire court held that since an actual injury rather than the mere possibility of an injury is a prerequisite to a tort recovery, either the insured must pay the excess judgment or his financial status must be such that it is sure to be collected. See also Universal Auto. Ins. Co. v. Culberson, 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475 (1935); State Auto. Mut. Ins. Co. of Columbus, Ohio v. York, 104 F.2d 730, 734 (4 Cir.) (alt. holding), cert. denied, 308 U.S. 591, 60 S.Ct. 120, 84 L.Ed. 495 (1939); Norwood v. Travelers Ins. Co., 204 Minn. 595, 284 N.W. 785, 131 A.L.R. 1496 (1939); Restatement, Torts, § 871 comment (j); cf. American Mutual Liability Ins. Co. of Boston, Mass. v. Cooper, 61 F.2d 446 (5 Cir. 1932), cert. denied, 289 U.S. 736, 53 S.Ct. 595, 77 L.Ed. 1483 (1933); Boling v. New Amsterdam Casualty Co., 173 Okl. 160, 46 P.2d 916 (1935). But see 8 R.C.L. p. 500. Those cases which apparently hold that the rendition of an excess judgment is sufficient damage to permit a recovery for the amount of the unpaid judgment are all distinguishable. The only case in which the insured went through bankruptcy and thus was discharged from the necessity of future payments, as were the Massellos in this case, was Brown v. Guaranty Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202 (Dist.Ct.App.1958). However, in that case there was no evidence that the insured was insolvent before the excess judgment was imposed upon him, as were the Massellos. For if the insured’s assets exceeded his liabilities exclusive of the excess judgment, then the insured, although discharged in bankruptcy, would actually be damaged by the value of his net estate before rendition of the excess judgment. However, the recovery of that amount by his trustee in bankrutey would be applied to the payment of his debts. The only way to make the insured whole, i. e., to place him in a position where his net assets are as. great after as before payment of the excess judgment, would be to allow him to recover the entire amount of that judgment. In several other cases heavily relied upon by the trustee, the courts were' dealing with estates which were solvent, before the excess judgments were rendered. In none of the other cases permitting recovery of the amount of the excess judgment without payment was there any evidence that the insured had been discharged from the liability, and in only two cases was there even a hint that the insured was insolvent prior to the excess judgment. Although no case has found damage in the situation here presented, namely, an insured who was already insolvent before rendition of the excess judgment and has since been discharged in bankruptcy, it is desirable to examine the reasons urged to support liability where the ■excess judgment rendered the insured insolvent or even where he was already insolvent but did not obtain a bankruptcy ■discharge, in order to determine whether they are pertinent and therefore persuasive here. The basis most frequently urged for finding damage although there has been no payment is that the insurance ■company would receive an unjustified windfall if it is released from liability when its insured turns out to be insolvent. We do not agree. The insurer has received premiums only upon the face.amount of the policy, and this much it must pay regardless of the insured’s ■financial condition. Although, arguendo, the insurance company has committed a ■tort by refusing to settle in good faith, the gist of tort liability is recompense for harm actually sustained. To argue that the insurer gets an unjustified windfall merely avoids the crucial question whether the insured has actually been harmed. Moreover, if discussion of windfalls were relevant, it should be pointed ■out that recovery by the trustee would result in a fortuitous recovery for Mrs. Van Suetendael who, but for the insured’s breach of duty to its policyholder, would not have recovered a figure in excess of the policy limit. Another ground often advanced in support of recovery, that the insurer will be less responsive to its duty to settle if it can avoid liability when its insured is insolvent, is of slender stature, at least as to the situation here. Presumably it is only in a very small percentage of the cases that the insured would be insolvent at the time of settlement negotiations and would later go into bankruptcy, an eventuality the insurer cannot predict. Moreover, this argument obscures the essential question — whether the insured has actually been harmed by the bad faith refusal to settle. A third theory, advanced as additional support for the idea that damage arises on rendition of the excess judgment, is that the insured might otherwise be forced to pay the judgment at a juncture when his tort action has become barred by the statute of limitations. The argument would hardly be persuasive even if our holding were that damage can never arise merely on rendition of the judgment but only upon its payment — which it is not. For a jurisdiction so holding would necessarily postpone the accrual of the tort claim until the event giving rise to it, i. e., payment The final theory frequently relied upon by cases holding the insurer liable although the insured has not paid the excess judgment is that the liability should be treated like medical expenses. Most courts hold that an injured person can recover, as one element of damages in a personal injury action, the fair value of medical treatment required because of the tort although the injured party has not paid for the treatment. In the great bulk of cases the injured party is liable for the bills at the time of trial and there is no evidence of his inability to pay. In the present case the Massellos have not paid the judgment and will not be required to pay it. Those few cases where the injured party will never have to pay his medical bills because a friend or relative or an insurance company has paid them are not inconsistent with our holding. Although the injured person is not out of pocket the amount of the bills, if a friend or relative pays them, he and his family or friends are. Their generosity has not been directed to the tortfeasor but to their injured friend or relative. Had they given him the money and let him use it to pay his own bills sufficient damage would have been shown. The formal difference that they paid the bills directed should not cause a difference in result. If the bills are paid by an insurance company under an accident or health insurance plan taken out by the injured person, the premiums which he has paid are the price of his protection ; thus he has indirectly paid his own medical expenses. In the present case the judgment was not paid by the Massellos’ friends or relatives nor did the Massellos pay premiums on anything above the $10,000 face amount of the policy. We have found only four medical expense cases which reach a result which would support liability by Standard to the trustee in this case. In one case where the medical bills had been discharged in bankruptcy and in three where they were barred by the statute of limitations, courts outside New York permitted the injured party to recover the value of his medical treatment from the tortfeasor. New York, however, in an early case held that the injured party cannot recover for medical expenses which have not been paid if there is a showing that the injured party is unable to pay them. In none of the later New York cases allowing recovery of medical expenses which the injured party had not yet paid is there evidence that he could not pay them. Therefore, it seems doubtful that New York would follow the above-mentioned four cases. Furthermore, the reasoning which supports recovery of medical expenses which the injured person will never pay does not apply to the present case. In personal injury cases the gist of the action is the damage to the plaintiff’s person and the medical expenses are merely incidental, whereas in the present case financial damage to the insured constitutes the basis of the cause of action. This case more closely resembles a suit for indemnity or contribution than one for medical expenses. The New York cases hold that a person secondarily liable for a tort cannot get indemnity from one primarily liable by merely proving that he has suffered an adverse judgment. “The contract of indemnity implied by law in favor of one who is legally liable for the negligence of another covers loss or damage, and not mere liability.” Thus until the judgment is actually paid, there is no damage and no recovery. Similarly, New York does not permit contribution until one joint tortfeasor has actually paid more than his pro rata share of a judgment against the joint tortfeasors. Consequently, there is no support in the indemnity or contribution cases for a finding of damage here. Our view is further buttressed by New York’s holding in Cumming v. Hackley. The plaintiff acted as an accommodation indorser of the defendant’s note. After default the plaintiff gave the holder of the note a bond to guarantee payment. Since the plaintiff then received a discharge from his liability on the note and bond under the insolvency act, he was not permitted to recover from the maker. It is irrelevant that the plaintiff in Cumming would have profited had he been allowed to recover since there was no assurance that he would decide to pay the holder of the note, while in the present case the Massellos would not profit since any recovery would go to their trustee in bankruptcy and be used to pay their debts. The question is not whether the plaintiff will profit from recovery but whether he will be damaged by a denial of recovery. Since the Massellos have been discharged from paying the excess judgment, they, just like the plaintiff in the Cumming case, will not suffer any damages if recovery is denied. Therefore, since the Massellos were insolvent before the excess judgment was rendered, have not paid any part of it, and have been discharged from any future obligation to pay it, their trustee has not shown any right to recover as the existence of the $89,000 judgment has not constituted any actual damage to them. Even though there is no pecuniary loss to the Massellos, it may be argued that they have suffered injury to reputation and credit. Although it is not clear whether such injuries are within the range of damages to be allowed for a bad faith refusal to settle, the trustee, in his brief, argues that the excess judgment forced them into bankruptcy and that unless it is paid in full they will be unable to go back into business and establish their credit. We do not agree. The record makes it clear that nearly a year before the entry of Mrs. Van Suetendael’s judgment the Massellos’ two businesses were sold by the City Marshal of Yonkers at the request of creditors, that after the sale there were and still are unpaid debts owing by the Massellos totaling in excess of $12,000, that the Massellos had been employed as truck drivers immediately prior to their petition in bankruptcy, and that they had total assets of $200. The trustee introduced no testimony of any specific injury to the Massellos’ credit or reputation. On such a record it is clear that there is no proof that the Massellos’ inability to pay the Van Suetendael judgment resulted in any damage to them. One possible theory of damage remains. Without Mrs. Van Suetendael’s excess judgment, the Massellos’ creditors other than Mrs. Van Suetendael would have received the entire bankruptcy estate. Because she proved her claims in bankruptcy the other creditors will receive only about 12% of the Massellos’ estate. Therefore, Standard’s bad faith has damaged the other creditors by the amount of the decrease in assets which they will receive. It is not at all clear that under New York law Standard has any obligation to its insured’s creditors upon which to found a liability to them for failure to settle in good faith. Nor if New York created such a duty does there appear to be any provision in the bankruptcy act that empowers a trustee in bankruptcy to sue on such a cause of action which belongs to his bankrupt’s creditors. However, because of the facts of this ease, we need not even reach these questions. Since the Massellos’ assets total only $200, we cannot suppose that after payment of the costs of administration, there would be anything remaining for distribution to the other creditors. Therefore, Mrs. Van Suetendael’s claim will not reduce the dividends of the other creditors and they have not been damaged by Standard’s bad faith. As there has been no proof of damage, the judgment of the district court is reversed and the complaint is dismissed. . The plaintiff introduced in evidence a sample policy 'which was in identical form to that issued to Leonard Massello. Under this policy, the “ ‘insured’ includes the named insured and also includes any person while using the automobile * * * with his permission.” Standard agrees to “defend any suit against the insured.” Furthermore, Standard “may make such * * * settlement of any claim or suit as it deems expedient” and “the insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur- any expense * * *" . Hereinafter this amount in excess of the policy coverage will be referred to as the excess judgment. . The record does not disclose facts upon which diversity jurisdiction could rest. The complaint alleges only that the plaintifE-trustee in bankruptcy is a citizen of New York, that the defendant Standard is incorporated in Michigan, and that more than $10,000 is in controversy. The district court did not discuss jurisdiction nor did the parties’ briefs on this appeal. According to the Bankruptcy Act, § 23, 11 U.S.C.A. § 46, the citizenship of the bankrupt and not that of the trustee is relevant in determining diversity. Moreover, under 28 U.S.C. § 1332(c) which applies to suits commenced after July 25, 1958, a corporation is deemed a citizen of the state wherein is located its principal place of business. Although this action was filed on October 15, 1958, there is no allegation as to Standard’s principal place of business. Therefore, the facts necessary to diversity jurisdiction both as to the bankrupts and Standard are lacking. Nevertheless, the district court had jurisdiction on another basis. The Bankruptcy Act, § 23; sub. b, 11 U.S.C.A. § 46, sub. b, gives federal courts, jurisdiction over all suits brought by a trustee in bankruptcy if the defendant consents. See Schumacker v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934). The courts have held that a defendant consents if he argues the merits without objection to jurisdiction. See, e. g., Cline v. Kaplan, 323 U.S. 97, 65 S.Ct. 155, 89 L.Ed. 97 (1944); Toledo Fence & Post Co. v. Lyons, 290 F. 637, 640 (6 Cir. 1923); Seegmiller v. Day, 249 F. 177, 178-179 (7 Cir. 1918); In re Read York, Inc., 152 F.2d 313 (7 Cir. 1945); In re Berry, 247 F. 700, 704-705 (E.D.Mich.1917). . See, e. g., Keeton, Liability Insurance and the Responsibility for Settlement, 67 Harv.L.Rev. 1136, 1138 (1954); Wymore, Safeguarding Against Claims in Excess of Policy Limits, 2S Ins.Counsel J. 44, 48-57 (1961) (catalog of cases). . See, e. g., Harrigan v. Bergdoll, 270 U.S. 560, 46 S.Ct. 413, 70 L.Ed. 733 (1926); Austrian v. Williams, 198 F.2d 697 (2 Cir.), cert. denied, 344 U.S. 909, 73 S.Ct. 328, 97 L.Ed. 701 (1952); Hill, The Erie Doctrine in Bankruptcy, 66 Harv.L.Rev. 1013, 1046-48 (1955). . It is not clear whether New York would hold that Standard had violated its duty to its insured under the-facts of this case. See Auerbach v. Maryland Cas. Co., 236 N.Y. 247, 140 N.E. 577, 28 A.L.R. 1294 (1923); Best Building Co. v. Employers’ Liab. Assur. Corp., 247 N.Y. 451, 160 N.E. 911, 71 A.L.R. 1464 (1928); Streat Coal Co. v. Frankfort Gen. Ins. Co., 237 N.Y. 60, 142 N.E. 352 (1923); Brunswick Realty Co. v. Frankfort Ins. Co., 99 Misc. 639, 166 N.Y.S. 36 (Sup.Ct.1917). No case bearing upon this question has been decided by the New York Court of Appeals since the Best case in 1928. . See Saratoga Trap Rock Co. v. Standard Acc. Ins. Co., 143 App.Div. 852, 855-856, 128 N.Y.S. 822 (1911); 37 A.L.R. 644 (1925). . See, e. g., Lauritano v. American Fidelity Fire Ins. Co., 3 A.D.2d 564, 567-568, 162 N.Y.S.2d 553, 556-557 (1957), aff’d without opinion, 4 N.Y.2d 1028, 177 N.Y.S.2d 520 (1958). . See, e. g., Guerin v. Indemnity Ins. Co. of North America, 107 Conn. 649, 142 A. 268 (1928). . Laws of 1917, Ch. 524, Now York Insurance Law, § 109; now New York Insurance Law, McKinney’s Consol.Laws, c. 28, § 167 (1) (a, b); see Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 160 N.E. 367, 72 A.L.R. 1443 (1928). . Reno v. Bull, 226 N.Y. 546, 553, 124 N.E. 144, 146 (1919); Rusciano & Son Corp. v. Milhalyfi, 165 Misc. 932, 942-943, 1 N.Y.S.2d 787, 797 (Sup.Ct.1938); Abell v. Cornwall Ind. Corp., 241 N.Y. 327, 335, 150 N.E. 132, 135, 43 A.L.R. 880 (1925); Halpern v. Budner, 149 N.Y.S.2d 716 (Sup.Ct.1956), modified, 5 A.D.2d 1011, 174 N.Y.S.2d 254 (1958). . Restatement, Torts § 901 and comments. . Victor A. Harden Realty & Const. Co. v. City of New York, 64 N.Y.S.2d 310, 322 (Sup.Ct.1946). . Gressman v. Morning Journal Assoc., 197 N.Y. 474, 480, 90 N.E. 1131, 1133 (1910). . See Keeton, supra note 3, at 1173-74. . Henke v. Iowa Home Mutual Casualty Co., 250 Iowa 1123, 97 N.W.2d 108, 180-81 (1959); Lee v. Nationwide Mutual Ins. Co., 286 F.2d 295 (4 Cir. 1961). The heirs of a deceased insured’s estate step into the shoes of the insured and" are entitled to receive his net estate unreduced by the excess judgment. The facts in Farmers Ins. Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404 (1957), make it appear that the insured was solvent before the excess judgment. . Schwartz v. Norwich Union Indemnity Co., 212 Wis. 593, 250 N.W. 446 (1933); Wessing v. American Indemnity Co., 127 F.Supp. 775 (W.D.Mo.1955); Southern Fire & Casualty Co. v. Norris, 35 Tenn. App. 657, 250 S.W.2d 785 (1952); Alabama Farm Bureau Mutual Casualty Ins. Co. v. Dalrymple, 270 Ala. 119, 116 So.2d 924 (1959). . Southern Fire & Casualty Co. v. Norris, supra, note 16; Alabama Farm Bureau Mutual Casualty Ins. Co. v. Dalrymple, supra, note 16. . Southern Fire & Casualty Co. v. Norris, supra, note 16, 250 S.W.2d at 791; Alabama Farm Bureau Mutual Casualty Ins. Co. v. Dalrymple, supra, note 16, 116 So.2d at 926. . See cases cited in footnote 18. . Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 76, 66 A.L.R.2d 1202 (Dist.Ct.App.1958); Wessing v. American Indemnity Co., supra, note 16, 127 F.Supp. at 781. . See American Mutual Liability Ins. Co. v. Cooper, 61 F.2d 446 (5 Cir. 1932), cert. den., 289 U.S. 736, 53 S.Ct. 595, 77 L.Ed. 1483 (1933); Boling v. New Amsterdam Casualty Co., 173 Okl. 160, 46 P.2d 916 (1935); case Note, 72 H.L.R. 568, 569-70 (1959). . Brown v. Guarantee Ins. Co., supra, note 20, 319 P.2d at 76; Wessing v. American Indemnity Co., supra, note 16, 127 F.Supp. at 781. . 25 C.J.S. Damages § 47(b). . See McNair v. Manhattan Ry. Co., 51 Hun 644, 22 N.Y.St.Rep. 840, 4 N.Y.S. 310 (N.Y.Sup.Ct.1889), aff’d without opinion, 123 N.Y. 664, 26 N.E. 750 (1890); Baumgart v. Finewood, 255 App.Div. 826, 7 N.Y.S.2d 74 (1938); Reynolds v. City of Niagara Falls, 81 Hun 353, 63 N.Y.St.Rep. 118, 30 N.Y.S. 954 (N.Y.Sup.Ct.1894); Heater v. Delaware, L. & W. R. R. Co., 90 App.Div. 495, 85 N.Y.S. 524 (1904); Giovagnioli v. Fort Orange Const. Co., 148 App.Div. 489, 133 N.Y.S. 92 (1911); Santasiero v. Briggs, 278 App.Div. 15, 103 N.Y.S.2d 1 (1951); Restatement, Torts § 924, comment (f). . McCormick on Damages § 90 (1935); Restatement, Torts § 924, comment (f); 128 A.L.R. 686, 687 (1940). . Bradburn v. Great Western R. R. Co., L.R. 10 Exch. 1, 44 L.J.Exch.N.S. 9, 31 L.T.N.S. 464, 23 Week.Rep. 48 (1874) (summarized 18 A.L.R. 678, 683); Johnson v. Kellam, 162 Va. 757, 175 S.E. 634, 636-637 (1934). . Sibley v. Nason, 196 Mass. 125, 81 N.E. 887, 12 L.R.A.,N.S., 1173 (1907); see Sutherland, Damages § 159 (1916). In the case of Patterson v. Springfield Traction Co., 178 Mo.App. 250, 163 S.W. 955, 960 (1914), where the injured party was merely insolvent but not bankrupt, the court allowed recovery. . Anderson v. Evans, 168 Neb. 373, 96 N.W.2d 44, 54-55 (1959); Houston & T. C. R. Co. v. Gerald, 60 Tex.Civ.App. 151, 128 S.W. 166, 170-71 (1910); Mueller v. Kuhn, 59 Ill.App. 353, 356 (1895). . McNair v. Manhattan Ry. Co., supra, note 24. . See cases cited in footnote 24. Moreover, New York may not even follow the majority rule to the extent of permitting recovery for medical expenses paid by friends and relatives or insurance. See Drinkwater v. Dinsmore, 80 N.Y. 390 (1880); McCormick on Damages § 87 (1935); 128 A.L.R. 686, 692 (1940). . Sibley v.

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?

CALF LEATHER TANNERS’ ASS’N et al. v. MORGENTHAU, Secretary of the Treasury. No. 6461. United States Court of Appeals for the District of Columbia. Argued Oct. 10, 1935. Decided Nov. 11, 1935. A. K. Shipe, of Washington, D. C., for appellants. Leslie C. Garnett, U. S. Atty., and John J. Wilson and Henry A. Schweinhaut, Asst. U. S. Attys., all of Washington, D. G, for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. Writ of certiorari denied 56 S. Ct. 536, 80 L. Ed. —. STEPHENS, Associate Justice. Appeal from a judgment in the Supreme Court of the 'District of Columbia dismissing a petition for a writ of mandamus directing the Secretary of thé Treasury to comply with paragraph 1530 (cl) of section 1 of the Tariff Act of 1930, Public No. 361, approved June 17, 1930, 46 Stat. 666 (19 U.S.C.A. § 1001, par. 1530 (d), as construed by the United -States Court of Customs and Patent Appeals in United States v. John B. Stetson Co., T.D. 46319, 63 Treas.Dec. 642. This suit is here upon the pleadings. The appellants, as plaintiffs below, filed a petition, and an amended petition, praying for the issuance of a writ of mandamus against the appellee, as defendant below, and for a rule to show cause why such writ should not be issued. The appellee made answer to the petition and again to the amended petition. Appellants replied to the answer to the amended petition, and to this reply the appellee demurred. The trial court treated the demurrer as searching the record, and held that no cause of action was stated in the petition and amended petition. The appellants then elected to stand upon these pleadings, whereon the trial court dismissed them and discharged the rule to show cause. The case for the appellants, as set forth in their pleadings, is this: The appellants, all citizens of the United States, are, except the Calf Leather Tanners’ Association, American manufacturers, producers or wholesalers of leather; they tan and finish calf and kip leather, used principally in the manufacture of shoes and sundry leather goods. Their products compete with foreign importations of like kinds not made from American products. The appellant Calf Leather Tanners’ Association is an association organized to foster the calf leather industry in the United States; all of the other appellants belong to it. The appellee is Secretary of the Treasury of the United States and as such is required to assess and collect customs duties on all duty-bearing imports. The Tariff Act of 1930 imposed a duty by paragraph 1530 (d), set out in full in the margin, of 30 per cent, ad valorem upon leather of all kinds, “grained, printed, embossed, ornamented, or decorated, in any manner or to any extent * * * or by any other process (in addition to tanning) made into fancy leather.” By paragraph 1530 (b) (4), 19 U.S.C.A. § 1001, par. 1530 (b) (4), set out in full in the margin, it imposed a duty of 15 per cent, ad valorem upon “side upper leather, * * * patent leather, and leather made from calf or kip skins, rough, partly finished, or finished.” In July, 3930, there was submitted to the Secretary of the Treasury, i. e., to appellee’s predecessor in office, under section 516 of Public No. 361 (19 U.S.C.A. § 1516), a request (made by the appellants, they assert, and this is herein assumed, though the record is not clear) for a ruling upon what kinds of leathers were properly dutiable at 30 per cent, ad valorem under paragraph 1530 (d), above. Domestic tanners contended that all leathers enumerated in the paragraph, whether or not commercially known as fancy leather, were so dutiable. Shoe manufacturers on the contrary took the position that no leathers were dutiable under the paragraph at 30 per cent., unless they were ’ commercially known as fancy leathers. The Secretary held that the latter was the correct view. T.D. 44213, 58 Treas.Dec. 160. On August 21, 1930, the John B. Stetson Company, not a party to the suit at bar, made two entries of imported leather at the port of Philadelphia under the Tariff Act of 1930. They were classified by the collector for duty as grained sheepskin under paragraph 1530 (d), i. e., at 30 per cent. The importer filed protest, asserting at the hearing in the United States Customs Court that the goods were dutiable at 25 per cent, under paragraph 1530 (c) of the act (19 U.S.C.A. § 1001, par. 1530 (c) as finished leather. This protest was sustained (John B. Stetson Co. v. United States, T.D. 45615, 61 Treas.Dec. 878), and the government appealed to the United States Court of Customs and Patent Appeals which, in United States v. John B. Stetson Co., T.D. 46319, 63 Treas.Dec. 642, reversed the trial court, thus holding the imports dutiable at 30 per cent, under paragraph 1530 (d). It is asserted by the appellants that in the Stetson Case the government, in support of its position that the imports were dutiable under paragraph 1530 (d) at 30 per cent., contended that any leather which has been “boarded” is “grained” and that any grained leather is fancy leather within the provisions of paragraph 1530 (d); and the appellants assert that the Stetson Case, not having been appealed from and the time within which an appeal can be prosecuted having expired, establishes what the government contended. By letters of July 7 and August 26, 1933,. directed by the Collector of Customs in New York City to the Commissioner of Customs, the Treasury Department was called upon to rule, under the Stetson Case, as to the proper classification of “English leather lining sides,” and briefs were filed on the question. Domestic tanners asserted that under the Stetson Case any leather which has been boarded is grained leather and therefore subject to duty under paragraph 1530 (d) at 30 per cent, whereas importers contended that leather is not “grained” as that term is used in paragraph 1530 (d) merely because it has been slightly boarded so as to render it softer and more pliable and thus more desirable for use in the manufacture of shoes. In a letter, directed to the Collector of Customs in New York City, stating the question and commenting upon the course of reasoning in the Stetson Case, the Commissioner of Customs, on October 25, 1933, ruled as follows: “The Bureau does not read the court’s, decision as holding that merely because a leather has been boarded it is ipso facto a grained leather, or that leather which has been boarded for the temporary purpose of making it more pliable so as to be more easily used in the manufacture of shoes is necessarily a grained leather. In this connection it is noted that the Court in its decision stated that the operation of ‘boarding’ was to produce a surface finish upon the leather which would otherwise not have been, there. “The Bureau is of the opinion, therefore, that only leather upon which a clearly perceptible grain has been produced by some process of manipulation, should, under the court’s decision, be classified under paragraph 1530 (d) as a grained leather, and that leather, such as English leather lining sides, boarded for the purpose of softening it and facilitating its further manufacture, is not so dutiable by reason of a slight change in the surface finish not producing such a grain. You will be governed accordingly.” In addition to all set out above, there are, in the • appellants’ pleadings, allegations of damage by reason of the alleged refusal of the Secretary, appellee, to impose a duty upon grained leather according to the statute and the Stetson Case, and the consequent competitive importation of foreign-made products; and the assertions thus made, as above set forth, constitute the case of appellants for a writ of mandamus against the Secretary. The appellants contend that the instructions of the Bureau of Customs of the Treasury Department in the letter of October 25, 1933, are palpably violative of the decision of the United States Court of Customs and Patent -Appeals in the Stetson Case interpreting paragraph 1530 (d) of the Tariff Act. They assert that under that decision and act it is the clear and purely ministerial duty of the Secretary to instruct all customs officials to impose and collect a duty of 30 per cent, upon “ * * * all boarded or grained calf and kip leathers in accordance with * * * ” paragraph 1.530 (d) as construed in the Stetson Case, or in the alternative to instruct them to impose and collect such duty upon “ * * * all leather, which after tanning, has been grained or embellished in any manner, or to any extent, whether by ‘boarding’ by hand or machine, or by any other process * * or to amend the instructions issued by the Bureau of Customs so as to instruct all customs officials that “ * * * all leathers, in which the actual grain of the skin is brought out, accentuated and raised by a process of handboarding or any other process producing such effect is grained leather and dutiable at 30% as fancy leather * * * ” within paragraph 1530 (d); and the appellants pray that a writ of mandamus issue in the terms of one of the alternatives above set forth. Very briefly stated, the appellants’ contention is that under the statute and the Stetson Case any leather which has been “boarded” is “grained” and therefore dutiable at 30 per cent., and that it is hence the plain duty of the Secretary of the Treasury so to instruct all customs officials. The letter of the Commissioner of Customs of October 25, 1933, ruling, in effect, that leather which has been “boarded” but only for the purpose of softening and facilitating its further manufacture, is not dutiable at 30 per cent, by reason of a slight change in the surface finish not producing a clearly perceptible grain, is, say the appellants, a plain violation of the statute as construed in the Stetson Case and a departure from the plain duty of the Secretary. To this case for the appellants, the appellee asserts the following: First. The appellants have not a sufficient legal interest, nor have they suffered such legal injury as to permit them to maintain their suit. Second. The law confers the power to liquidate upon collectors of customs only and not upon the appellee. Third. The duties of the appellee with respect to the subject-matter of the appellants’ case are discretionary and therefore not controllable by mandamtis. Fourth. The appellants have an adequate and sole remedy under section 516 (b) of the Tariff Act of 1930 (19 U.S.C.A. § 1516 (b) and they have not pursued the same. Fifth. This court is without jurisdiction of the subject-matter of this suit. Sixth. The proceeding is a suit against the United States, which has not been named and which cannot be named because it has not consented to be sued. The fifth point, that the court has no jurisdiction over the subject-matter of the suit, was not argued in terms by the appellee either orally or in the brief. It is apparently intended only to assert in another way that the facts set out in the appellants’ pleadings constitute no cause of action, and it will be considered in that sense only and not as if it were intended to assert that this court has no power to hear this class of case, i. e., a mandamus case. Appellee’s third and fourth points will be considered first. The third point: Did the duty of the Secretary under the statute and the Stetson Case involve the exercise of discretion, or was the duty plain and the letter of October 25, 1933, a violation thereof? Whatever may have been the contention of the government in the Court of Customs and Patent Appeals, that court, in reaching the conclusion that the imports in the. Stetson Case were dutiable at 30 per cent. _ under paragraph 1530 (d), reasoned, and ruled as follows: At the outset it rejected the ancillary contention made by the importer that to come under paragraph 1530 (d) leather must not only be “grained, printed, embossed, ornamented, or decorated,” but also known commercially as “fancy” leather. As above pointed out, that had been the ruling in T.D. 44213, 58 Treas.Dec. 160, upon the request submitted by the appellants to the Secretary. The important question, according to the court, was not whether the goods are known as “fancy,” but whether they are properly known as “grained.” Discussing this point, the court said that the record established no commercial designation and that it must therefore determine the state of the law and the record on the question of the common designation of the imported goods. The court held that the testimony in the record applicable to the exhibits in the case was of little value in determining the common meaning of the term “grained leather,” but that it had disclosed the character and structure of the imported material itself. It had shown Exhibit 1 to be finished sheepskin leather, russet in color, with a polished and attractive appearance, with its finished surface covered in large part with wavy broken lines. The skin with the hair removed made ready for tanning had been treated in a weak solution of sumac extracts at room temperature and then subjected to a process of boarding in one direction only. This p.ocess consisted of folding a hide with the wool side in and then passing a board with a cork surface over the outside of the folded hide, as if ironing. According to the testimony, this process brings out, accentuates, and raises the natural grain of the skin. Exhibit 2, also finished sheepskin leather of russet color, with a polished and attractive appearance, had its finished side covered with a vast number of small raised portions giving its surface a granular or pebbly appearance. It had been tanned in a strong solution at elevated temperatures which had resulted in a puckering or drawing of the hide, said to accentuate the natural grain, and it had then been boarded in four directions instead of one, as in the case of Exhibit. 1. The court concluded that from the testimony two facts were shown: “First, the imported leather had been handboarded, that represented by Exhibit 1, once, and that represented by Exhibit 2, four times [i. e., in four directions as above stated]; second, this operation of boarding cuts up, accentuates, and pulls out the natural grain of the skin, and if such operation were not performed the natural grain of the skin would not be noticeable.” The court next had recourse to lexicographers as to the common meaning of the term “grained leather.” For example, Funk & Wagnalls New Standard Dictionary, defining the verb “grain” in leather making as “to rub with a board to raise the grain or pattern * * * ”; Webster’s New International Dictionary, defining the adjective “grain” as “having a grain; divided into small particles or grains; having or showing a grain or granulated structure or surface; hence, rough.” The court also looked to the lexicographers for the meaning of the word “boarding.” Thus, Webster on the verb “board” as “to work or rub with a board, as in the process of making leather supple and giving it a granular appearance by means of a graining board”; The Dictionary of Leather Terminology upon the term “boarded leathers” as “sides or skins finished by folding with grain side in and rubbing the surface together under pressure of an instrument known as a handboard * * The court considered also other sources, as well as the meaning of the term “embossed leathers.” The court said: “A consideration of these authorities, in view of the evidence, leads the mind to the conclusion that the imported leathers have been ‘grained’ within the common meaning of that word. The operation of ‘boarding’ was to produce a surface finish upon the leather which would otherwise not have been there.” This detailed description of the course of reasoning of the court in the Stetson Case has been set out in order that it may be made apparent herein whether the Secretary, in ruling as he did by virtue of the Bureau of Customs letter of October 25th, violated a plain duty, as alleged by the appellants, or exercised a proper discretion. We are of the view.that in ruling as he did in the Bureau of Customs letter, the Secretary of the Treasury was exercising a necessary and proper discretion, and that to issue the writ of mandamus in the terms sought would be for the court to assume to control that discretion. The question presented to the Bureau was this: Is leather such as English leather lining sides, boarded for the purpose of softening it and of facilitating its further manufacture, with only a slight change in the surface finish not producing a clearly perceptible grain, dutiable at 30 per cent, under paragraph 1530 (d) and the Stetson Case? The appellants assert that such leather is so clearly covered by the statute and- the case that the duty of the Secretary so to classify it was palpably ministerial. Apparently using the terms “boarded” and “grained” interchangeably, appellants contend that all leather which has been subjected to the process oí boarding, whether or not that process has resulted in a perceptible grain, is covered by the statute as interpreted by the decision. They particularly assert in support of their view that no such leather as English leather lining sides, the subject of the letter of October 25, was within the record in the Stetson Case. That fact is, in our view, the very fact which compels a conclusion contrary to that reached by the appellants, i. e., the conclusion that the Secretary, in classifying such leather, was obliged to exercise his judgment as to the meaning of the statute and the case. All that the Stetson Case actually held on its facts was that the two imports in question, having been subjected to a process called “boarding” with resultant wavy broken lines upon the finished surface of one, and a vast number of small raised portions, giving the surface a granular or pebbly appearance, upon the other, were “grained leather” within paragraph 1530 (d) and therefore dutiable at 30 per cent. Thus that case did not, either in terms or on its facts, rule upon the durability of leather subjected to the process of boarding only to the extent of making it more pliable and not to the extent of producing a perceptible grain. In order to determine the dutiability of that kind of leather, the Secretary was bound to reason in order to ascertain what the decision meant in respect of leather not boarded to the extent of producing a perceptible grain. It cannot be said that the Stetson Case so clearly covers that kind of leather as to make the application of the 30 per cent, duty to it a merely ministerial act. In view of the statement of the court in the Stetson Case that “ * * * the operation of ‘boarding’ was to produce a surface finish upon the leather which would otherwise not have been there,” and in view of the fact that in the Stetson Case the exhibits in the one instance had wavy broken lines thereon and in the other a granular or pebbly appearance, there is much to be said in favor of the conclusion of the Secretary, as evidenced in the letter of the Bureau of Customs, that the ruling in the Stetson Case cannot be said to include leathers boarded only so far as to cause them to be more pliable but not so far as to produce a clearly perceptible grain. If the conclusion of the Secretary was sound, i. e., consistent with the statute as construed by the Stetson Case, the letter of instructions was not violative thereof, and he ought not be compelled, as the writ would, in effect, compel him, to withdraw it. But it is not necessary to pass upon the soundness of the Secretary’s conclusion, and we do not do so. All that it is necessary to determine here is whether the Secretary, under the statute and the Stetson Case, was fairly confronted with a problem invoking the exercise of his judgment and discretion, or whether the meaning of the. statute and the case is so clear as to make the raising of a question by the Secretary capricious or arbitrary. To put the point otherwise and briefly: Do the statute and the Stetson Case so clearly impose a 30 per cent, duty upon all leathers which have been subjected to the process of boarding, whether or not the process has been carried so far as to produce a perceptible grain, that there was no question of any reasonable kind for the Secretary to pass upon thereunder? We think that that cannot be said, but that on the contrary the Secretary was necessarily called upon to construe and determine the meaning of the statute and the decision in respect of leathers not boarded sufficiently to produce a perceptible grain. The appellants assert in their reply brief that leather cannot be “boarded,” however slightly, without producing a “grained leather,” and refer to the fact that in the Stetson Case Exhibit 1 had been boarded but once [in one direction] and yet was held grained. But whether or not the process of boarding can be carried out in such manner or to such limited degree as to make leather more pliable but not perceptibly grained is a question of fact; and that question was not as such before the court in the Stetson Case and does not seem to us so plainly by inference determined therein in the negative as to make the Secretary’s ruling in the affirmative in the letter of October 25th arbitrary. It is of course settled that if a duty imposed by law is plain, an administrative officer must perform that duty and is subject to mandamus if he refuses. He cannot rely upon the mere necessity of reading a statute or decision in respect of its applicability to facts before him and thereby capriciously, under the pretense of the exercise of discretion, avoid a plain duty. Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 50 S.Ct. 103, 74 L.Ed. 445; Roberts v. United States, 176 U.S. 221, 20 S.Ct. 376, 44 L.Ed. 443. But the law is equally clear that where an exercise of judgment or discretion by an administrative officer is necessary in determining his duty, mandamus will not lie. Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 50 S.Ct. 320, 74 L.Ed. 809; Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561; United States ex rel. Ness v. Fisher, 223 U.S. 683, 32 S.Ct. 356, 56 L.Ed. 610; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S.Ct. 698, 47 L.Ed. 1074; Decatur v. Paulding, 14 Pet. 497, 599 Appx., 10 L.Ed. 559, 609. Appellee’s fourth point: Have the appellants an adequate remedy at law, and, if so, did they pursue it? It is the view of this court that they have a sufficient remedy and that they did not pursue it. Section 516, paragraphs (b) and (c), 19 U.S.C.A. § 1516 (b, c), together with sections 501 (19 U.S.C.A. § 1501), and 515 (19 U.S.C.A. § 1515), of the Tariff Act under consideration, provide a complete administrative remedy for American manufacturers, producers, and wholesalers claiming to be injured through incorrect classification of, or imposition of duties upon, imported merchandise. This statute sets out in detail the • procedure which is to be followed in obtaining information concerning the classification of, and rate of duty upon, imported merchandise and the procedure to be followed in contesting such classification and rate. This procedure includes: The making of a request upon the Secretary of the Treasury for information as to the classification and rate; the filing of a complaint; a decision by the Secretary as to the correctness of the classification and rate; the publication of such decision and of notice that the classification and rate will be subject to the decision of the United States Customs Court in the event of protest; the filing of a protest by the dissatisfied complainant, upon information furnished by the Secretary as to entries and consignees; the giving of notice to the protestant upon liquidation of the first entry; the filing of a protest with the collector against particular entries; the suspension by the Secretary, pending decision in the United States Customs Court upon the protest, of the liquidation at all ports of all unliquidated entries; a hearing. and decision by the United States Customs Court; and an appeal therefrom to the United States Court of Customs and Patent Appeals. The statute also provides that all entries shall be liquidated, or if already liquidated, shall, if necessary, be reliquidated, in conformity with the ultimate decision. This remedy provides a proper hearing, both trial and appellate, upon the very type of issue sought to be determined in this suit and before tribunals especially set up by the Congress for the determination of such issues. The provision for final liquidation in accordance with the ultimate decision is intended to protect the American manufacturer, producer, and wholesaler from competitive damage and seems adequate to that end. The appellants did not pursue this remedy. After the ruling of the Secretary upon the request made by them as above described under section 516 (b), the appellants, so far as the record shows, abandoned the remedy of complaint and appeal available to them under the act. The John B. Stetson Company, not a party to this suit, and not appearing as an American manufacturer, producer, or wholesaler, but as an importer, originated and carried forward the proceedings resulting in the decisions of the United States Customs Court and the United States Court of Customs and Patent Appeals upon the applicability of paragraph 1530 (d) to the imports, Exhibits 1 and 2 in the Stetson Case. The law is settled that where another and adequate remedy exists, mandamus will not issue. United States ex rel. Frey v. Robertson, 61 App.D.C. 394, 63 F.(2d) 457; United States ex rel. Finley v. Hines, 58 App.D.C. 120, 25 F.(2d) 544; United States ex rel. Carroll Electric Co. v. McCarl, 56 App.D.C. 49, 8 F.(2d) 910. It is not necessary to pass upon the assertion of appellee that the administrative remedy is sole. The considerations above set forth are determinative of the case, and the court therefore finds it unnecessary to pass upon appellee’s first, second, and sixth points. The judgment of the trial court is affirmed. (d) Leather of all kinds, grained, printed, embossed, ornamented, or decorated. in any manner or to any extent (including leather finished in gold, silver, aluminum, or like effects), or by any other process (in addition to tanning) made into fancy leather, and any of the foregoing cut or wholly or partly manufactured into uppers, vamps, or any forms or shapes suitable for conversion into boots, shoes, or footwear, all the foregoing by whatever name known, and to whatever use applied, 30 per centum ad valorem. (4) Side upper leather (including grains and splits), patent leather, and leather made from calf or kip skins, rough, partly finished, or finished, or cut or wholly or partly manufactured into uppers, vamps, or any forms or shapes suitable for conversion into boots, shoes, or footwear, 15 per centum ad valorem. This section, more particularly discussed under appellee’s fourth point below, provides the procedure to be followed in obtaining information concerning the appraised value of, the classification of, and the rate of duty upon, imported merchandise, and in contesting such appraised value, classification, and rate. In the amended petition (R. 32) this request is described as having been filed pursuant to the provisions of section 516 (a), which has to do with complaints concerning the appraised value of imports. But the substance of the request as described in the amended petition indicates that it was filed under section 516 (b), which has to do with complaints as to the classification of, and duty upon, imports, and it will be treated as if so filed. (c) Leather (except leather provided for in subparagraph (d) of this paragraph), made from hides or skins of animals (including fish, reptiles, and birds, but not including cattle of the bovine species), in the rough, in the white, crust, or russet, partly finished, or finished, 25 per centum ad valorem. A process more particularly referred to below, consisting of folding a hide with the wool side in and passing a cork surfaced board over the outside of the folded hide. These letters and briefs do not themselves appear in the record. They are referred to in Exhibit A (R. 39). The two entries which were the subject of the controversy in the Stetson Case were therein designated Exhibits 1 and 2.

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?

SALES AFFILIATES, Inc. v. NATIONAL MINERAL CO. et al. No. 9695. United States Court of Appeals Seventh Circuit. Feb. 7, 1949. Rehearing Denied March 14, 1949. Maurice S. Cayne and Casper W. Ooms, both of Chicago, 111., for appellant. Geo. B. Finnegan, Jr., Hobert N. Durham, and James J. Dwyer, all of New York City, and James P. Hume, and Gerrit P. Groen, both of Chicago, 111., for appellee. Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. Defendant appeals from a judgment holding valid and infringed Winkel patent 2,-051,063, August 18, 1936, and Evans and McDonough reissue patent 22,660, August 7, 1945. It contends that neither patent is valid and that if either is valid, defendant has not infringed. Each patent has to do with the art of hair curling, especially that involved in creating “permanent” waves. Needless to say, by the very nature of things, this art is of ancient origin. It involves, so far as “permanent” waves are concerned, winding the hair on separate curlers; applying a waving lotion to the curled hair; heating the moistened hair wound about the curlers for a pre-determined period of time and, finally, cooling the hair before removing it from the curlers. An operator practicing the earlier art procured the essential heat from an external source, usually an electric current, thus necessitating the use of relatively complicated apparatus. But the art with which we are concerned progressed a step further by eliminating any external source of heating and providing heat by chemical reaction in material wound about the hair after it had been curled. Thus, Winkel, in the first patent, stated that his objectives were to provide an operation whereby the use of an external heating device is avoided and to supply a permanent waver which does not require any fastening means for maintaining it intact on the hair while the latter is being treated. As interpreted by plaintiff’s expert, he provided a hair waving pad which can be used to enclose a preformed tress, the pad being so constructed as to evolve from exothermic chemical within itself sufficient heat to wave the tress, the evolution of the heat occurring as a result of moistening the chemical. It is undisputed, therefore, that Winkel successfully did away with external means of heating and avoided the use of a metal clamp to hold the hair and waver in place. This he accomplished by providing in a single unit a backing sheet having a sachet secured adjacent one edge thereof. This sachet, of impervious material, such as metal foil, contains a chemical such as calcium oxide or an oxide compound intended to be combined with a liquid such as ammonium hydroxide to develop heat sufficient to fix the wave in the hair relatively permanently. He attached, also, an apron, to be moistened by the aforesaid ammonium hydroxide, and prescribed that, before wrapping the pad around the curled hair, the sachet containing the chemical be perforated. When -the pad is then wound around the hair, next to the hair is the apron, moistened as aforesaid by the ammonium hydroxide;- then around this is wrapped the sachet containing the chemical so that the sachet having been perforated, the moisture from the apron generates the heat necessary to effectuate the desired result. When he has thus wound around. the curled hair the apron, the sachet and the outer covering, integral in one continuous flexible pad, so that wrapping is facile, he fastens the pad, thus wound around the hair, by twisting the ends of the outside enveloping metal foil above and below, the pad on the curler, thereby eliminating any necessity of a clamp and providing, as he said, effective means to prevent the escape of vapors generated -by the chemical reaction. This is his alleged invention. Winkel was preceded in the art by Lackenbach 18,346 and Frederics 1,596,247. Lackenbach claimed a device described as a flexible rectangular absorbent strip containing hair treating substance, -adapted to be wrapped about' hair wound upon a curler. He attached to the strip a sheet of water-proof material, adapted to be wrapped around said strip after the latter has been rolled about the hair on the curler, so as to form a cylindrical covering for said strip, and -an integral tab upon said strip and sheet, the tab being adapted to be folded upon the hair before the rolling operation is commenced. Frederics, too, described an appliance for creating a permanent wave. He recognized that the first step was to curl the hair about curlers and mentioned -that one -of the methods previously practiced was to impregnate a strip of -absorbent material with a fluid having a tendency to soften the hair under the influence of heat or with a pasty mass of which borax had been the principal constituent part. He described other methods. He pointed out his objection thereto and claimed that he had eliminated alleged defects by providing a device which is proof against the escape of steam through its side walls and ' prevents hot water from escaping. He claims a device comprising a flat envelope formed of flexible material, one face of which is provided with a plurality of interstices, and has a strip of impervious fire-proof material secured there^ to, adapted to be wrapped around the latter to form a cylindrical covering when the envelope is wrapped about a tress of hair upon a curler. But he, too, described and claimed a curling pad dependent upon heat from an external source. The teaching of each of these patentees is pertinent only to the extent that they disclose prior conceptions of curler pads adapted to be wrapped about the hair before heat is applied. Sartory 1,565,509 likewise preceded Winkel. In this patent we find for the first time the idea of elimination of heat from an outside source and the conception of a pad containing a sachet or envelope in which is inserted a chemical, which, when subjected to moisture, will generate the necessary heat. His application was filed in 1924 and the patent issued December 15, 1925. Sartory stated as one of his objectives, the provision of a heater in which -the heat required for the steaming operation was to be obtained by exothermic reaction by placing a chemical substance in the sachet container upon which water was to react to produce the heat requirement. This chemical was placed in the heater during manufacture and the water brought in contact with the chemical substance at the time of the curling operation. He specified a stratum of chemical material which would react exothermically with -a liquid reagent. He applied water to the heating pad by enveloping the latter in cotton, wool or any like fibrous material which -can be saturated with water. His pad, therefore, had an inner annular layer of chemical material and an outer layer of fibrous material. .This was wrapped around curled hair as in Winkel. The difference between the two patents lies almost entirely upon one fact. Sartory placed his moistening element outside of the heating element while Winkel placed his on the inside. To our minds in this distinction lies all vital differences between the present parties. It seems quite clear to us that the object and purpose of Sartory was exactly the same as that of Winkel, — first, to avoid an external source of heat and the necessary machinery supplying the same; second, to supply, in lieu of such external source of heating, a pad containing chemical of such character as, when brought in contact with water, would result in a chemical reaction generating the necessary heat. Each of the patentees had this conception; each of them taught it; each of them applied it. In their respective conceptions, they differed only as to the relative orders of application of the heating element and the moistening element. One placed the moistening element on the outside; .the other placed it on the inside. Thus it is clear that Winkel was not a pioneer worker in the art. He had before him the teaching of construction of proper hair curling pads in earlier patents and the explicit teaching of Sartory of a properly constructed pad containing an element not found in the earlier art, that is, the chemical element supplied to generate the heat. If Winkel improved upon Sartory, he did it only by changing the relative position of the two elements and in his deft preparation of the ensemble. Reduction of weight of the pad or making it more compact or more easily handled is not invention ; these are merely the product of skill in the art. Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005; National Pressure Cooker Co. v. Aluminum Goods Mfg. Co., 7 Cir., 162 F.2d 26; Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 1516. We have examined the record carefully and we are unable to find anything in the evidence indicating that in this slight variation, Winkel accomplished anything in the way of invention. Indeed we do not find any change by Winkel that amounted to improvement of any character. As the Court of Appeals for the Second Circuit said in Zotos Corp. v. Rader, 91 F.2d 935, 937: “It (the plaintiff) says that the art for over a quarter of a century had needed an effective chemical waving pad; and yet, though every element had been known — all the tools so to speak had been at hand — not until Evans had the insight to combine them, had satisfaction come. The result was immediate success. This reasoning disregards the facts. Evans did not invent the curling pad; Sartory did.” This conclusion seems inevitable to us upon comparison of the respective disclosures of Sartory and Winkel, quotations from each of which appear in the footnote. Perhaps we should refer briefly to another inventive element claimed by Winkel, namely; that of having a metal foil backing for the pad, the ends of which can be twisted over the tress of hair being curled and over the heating pad at the upper and lower ends thereof so as to prevent escaping vapors. This, Winkel said, eliminates the necessity of a clamped container. It may well be that in the operation here involved, it is preferable to have a flexible material of the character prescribed by Winkel rather than the original comparatively light container clamped on over the curling pad. But again this is choice of means open to the skilled operator, in which we do not believe invention lies. We conclude that the record is devoid of evidence to support a finding of validity of the Winkel patent. Evans et al., Reissue 22,660, contains claims of a compound of materials for generating an exothermic reaction when water is added and claims for the method involved in treating hair with the heat thus generated. Certain claims recite in functional terms the five elements prescribed by the alleged invention. Plaintiff’s expert witness testified that the patent calls for “five separate types of materials” to be placed in the curling pad, in addition to the added water, namely, “an oxidizable material, a reducible material, a hydrogen-ion control' material, an electron transfer material and a water absorbent diluent material.” We think complete .anticipation exists in the prior Baker patent, 1,760,102, It seems clear that every one of the claims for the compound of matter for generating heat reads upon the composition disclosed by Baker. Each patentee prescribes an electron losing material, -such as aluminum. Each includes an. electron accepting material. Thus the reissue patent includes persulphates and chlorates and Baker, potassium chlorate. Each calls for a solid material to give proper hydrogen-ion concentration. In this connection the reissue patent calls for a small amount of strong acid and a large amount of weak acid or acid salts such as bisulphates, bitartrates or chlorides, while Baker prescribes copper sulphate, sodium chloride or calcium chloride. Each specifies a copper containing material to form nascent metallic copper and copper ions upon addition of water to the mixture. Thus the reissue prescribes an oxide or salt such as copper oxide, and Baker, copper sulphate. Each includes an inert solid absorbent, the reissue patent mentioning clay and Baker sawdust. The record discloses that the respective prescriptions are equivalents; thus copper sulphate is a salt formed of a strong acid and a weak base and constitutes a substance supplying proper hydrogen-ion concentration. Sodium chloride has practically the same properties as ammonium chloride. Calcium chloride is a salt formed of a strong acid and a weak base and it too, is a solid material which will supply proper hydrogen-ion concentration. Other evidence in the record corroborates the fact that the respective compounds are equivalents. Plaintiff contends that sawdust is not a proper inert element in this kind of set-up, as there might be danger of explosion. Of course, this woqld be obvious to one skilled in chemical science and suggest substituting truly inert material for the so-called inert sawdust. Clearly the substitution of clay did not rise to the dignity of invention. But says plaintiff, Baker was dealing in a non-analogous art, as he was prescribing a composition for a body-warming pad. But Baker made it clear that what he was claiming was a heating pad based on an exothermic oxidation-reduction reaction. A chemical heating pad used for body warming is one example of the general art of heating mixtures; a chemical heating pad for hair waving is only another specific example of that general art. This the reissue patentees recognized when they said that their invention relates generally to the art of chemical heaters. The Supreme Court had occasion to pass .upon a similar- question in Mandel Bros., Inc. v. Wallace, 335 U.S. 291, 69 S.Ct. 73. The court held that a patent for improvement of a cosmetic preparation intended to retard or inhibit perspiration by adding urea to the old salt cosmetics was invalid in view of the prior use of urea as a corrosion inhibitor in compositions used to protect fabrics in dry cleaning or finishing fabrics and that the specified use was only one specific application of recognized principles in a particular situation. Similar in intent are the decisions in Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Frederics v. Eugene, Ltd., 2 Cir., 3 F.2d 543; Jay et al. v. Weinberg, 7 Cir., 262 F. 973. In the Mandel case, this court had thought that when the patentee found that addition of urea to his perspiration inhibitor would perfect it so that it would protect the clothing and skin of the wearer from irritating effects formerly existing and no one in the immediate prior art had discovered this fact, invention resulted. We held that prior uses of urea in a dry cleaning solution or in a compound used in finishing fabric were so far afield as not to be prior art references as against the patentee, who was interested only in perspiration inhibiting compounds. But the Supreme Court disagreed. We think the only fair conclusion, under that decision, is that, in the present case, Baker and the reissue patentees were both dealing with the same scientific creations, that is chemical generating heaters, and that the reissue patentees did not achieve invention by making specific application of the art to hair curling pads when it had been taught generally. What we have said in this connection disposes of the method claims also. Under the federal rules we are not at liberty to review a finding of fact of the District Court unless it is "clearly erroneous.” Here the question of whether the patents are valid or invalid depends entirely upon an analysis of prior patents and a comparison of what is taught by them and what is taught by the patentees in the two patents in suit. This is not a case where the findings of fact depend upon disputed evidence or controverted facts but is Tather one where the ultimate findings depend upon whether recorded prior art is such that the patentee has achieved invention over and above the same. In such a situation, we think that the decision of the Supreme Court in Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 31, 50 S. Ct. 9, 74 L.Ed. 147, is directly in point. See also Singer Company v. Cramer, 192 U.S. 265, 24 S.Ct. 291, 48 L.Ed. 437; Uihlein v. General Electric Co., 8 Cir., 47 F.2d 997, and Process Engineers v. Container Corp., 7 Cir., 70 F.2d 487. Defendant has presented a motion 'to remand for the reception of what is said to be newly discovered evidence. In' view of our conclusion, action upon this motion- is no longer necessary and it is, therefore, denied. In view of what we have said concerning the merits, it is not necessary to comment upon other points argued for reversal. There remains a question of costs. After this appeal had been taken, defendant filed with this court a petition for an injunction against plaintiff from circulating certain correspondence; this we denied. Counsel for plaintiff have now moved that we tax as costs, against defendant, plaintiffs counsel’s fee and expenditures incurred in defending that petition. The order was that the petition be denied at the costs of the petitioner. Plaintiff contends that the court is permitted to-tax these items as costs because of the provision of U.S.C.A., Title 35, Patents, Sec. 70, that: “The court may in its discretion¡ award reasonable attorney’s fees tó the ■ prevailing party upon the entry of judgment on any patent case.” The applicability of this statute is not apparent. ' The-i proceeding with which we are directly concerned on this motion was merely an interlocutory petition for injunction which-1 was denied. We doubt that such a proceeding comes within the terms of the statute. However, it has sometimes been said that a court of equity may award counsel costs and fees without specific statutory authority. Franz v. Budcr, 8 Cir., 38 F.2d' 605. But, if this is correct as a matter of law, the circumstances must be such as to justify a court of equity in so acting. In other words, even if this court, as a court of equity, may within its discretion, as an exception to the general rule, if the circumstances justify, allow the recovery of counsel’s fee and expenses, it must be remembered that such action is extraordinary in character allowed only when the equities of the cause appeal strongly to the chancellor. Under the rule announced by the Supreme Court in Kansas City S. R. Co. v. Guardian Trust Co., 281 U. S. 1, 50 S.Ct. 194,, 74 L.Ed. 659, we conclude that the circumstances here are not such as to justify us as a court of equity in allowing any such unusual and extraordinary remedy. The motion to include as taxable costs, counsel’s fees and expenditures, is denied. The judgment is reversed with directions to proceed in accord with this decision. Sartory Pat. No. 1.565,509. (December 15, 1925) “This invention relates to a process of curling and waving human hair on the head.” (Page 1, Lines 10, 11.) “ * * * to provide means for obtaining and applying chemical heat to the hair under treatment.” (Page 1, Lines 12-14.) “According to this invention the heat developed by the reaction of calcium oxide or other suitable material or materials with water or other liquid reagent is utilized to effect the required heating and steaming of the hair under treatment in processes of curling and waving hair.” (Page 1, Lines 17-24.) “ * * * thus dispensing with the use of the various electrical and other heating devices hitherto employed.” (Page 1, Lines 14-16.) “Figs. 3 and 4 being, respectively, longitudinal and cross-sectional views showing the pad applied to a coiled tress of hair, and enclosed in a steaming tube together with an absorbent pad for applying moisture to the heating pad. * * * ” (Pago 1, Lines 85-90.) Winkel Patent in Suit (August 18, 1936.) “This invention relates to new and useful improvements in means for and method of permanently waving hair.” (Page 1, Col. 1, Lines 1-3.) “ * * * to provide a hair waving device wherein a chemical reaction is Utilized for creating a vapor of sufficient heat to permanently wave the hair.” (Pago 1, Col. 1, lines 6-9.) “ * * * ,to provide a permanent hair waving device wherein means are provided for completing the operations required in the waving of hair without the application of external heating devices.” (Page 1, Col. 1, Lines 10-14.)

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

COMMISSIONER OF INTERNAL REVENUE v. DOBBINS. No. 5407. Circuit Court of Appeals, Third Circuit. Sept. 13, 1934. Prank J. Wideman, Asst. Atty. Gen., and Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., for petitioner. Joseph A. Lamorelle and William H. S. Wells, both of Philadelphia, Pa., for respondent. Before DAVIS, Circuit Judge, and DICKINSON and PAKE, District Judges. DAVIS, Circuit Judge. Heretofore, this court determined the law' applicable to this ease on facts which were substantially like those now before the court and in a controversy between the same parties. Dobbins v. Commissioner, 31 F.(2d) 935, 936 (C. C. A. 3). ■ The Commissioner of Internal Revenue in effect has asked that we reconsider the questions involved in that ease in view of subsequent decisions of the courts which he -believes are contrary to our decision. Briefly, the facts set out before and in this case are as follows: Edward T. Dobbins died testate and left his residuary estate in trust. The income of the trust was payable to his sister and brother, Mary and Murrell, for the life of Mary. Murrell died and under his will his wife, Emily, received his interest for the life of Mary in the trust. The Commissioner assessed an estate tax against the interests in the trust. Emily died, leaving a will, the effect of which gave, among other things, her son, the taxpayer, T. Munroe Dobbins, one-half of Murrell’s interest in the trust for the life of Mary. The estate of Emily Dobbins paid an estate tax on the interest for the life of Mary in the trust estate. Prior to the termination of the trust estate by the death of Mary, the taxpayer received one-half of the share of the income of the trust of his father, Murrell, and, after the death of his sister, Laura, two years prior to the termination of the trust with the death of Mary, the taxpayer became entitled by the terms of Laura’s will to the whole of his father’s share in the life estate in the trust. In 1929, the year here involved, the taxpayer received $27,729.67 from the trust of the estate of Edward. The Commissioner included this amount in the taxpayer’s gross income for 1929. On the authority of Dobbins v. Commissioner, supra, the Board of Tax Appeals disallowed the determination of the Commissioner and upheld the taxpayer. The Commissioner petitioned this court for a review. Section 22 of the Revenue Act of 1928 (26 USCA § 2022) excludes from gross income property acquired by bequests, devises, or inheritances and exempts it from taxation. The income to property held in trust is taxable to the trustee except that a deduction is allowed the trustee on income which is to be distributed currently to beneficiaries. Sections 161 and 162 of the Revenue Act of 1928 (26 USCA §§ 2161, 2162). In a case within, the exception the beneficiary is taxable. The important thing is not to confuse income from inheritances with inheritances. The Commissioner, himself, twice treated the value of the interest of Murrell in the trust as an inheritance or legacy by imposing the estate tax on that interest. In our former opinion we expressed our judgment in the following language: “While the fund here taxed might have been income to the estate of Murrell, it was a legacy in the hands of Emily M. Dobbins, received not from Edward T. Dobbins or his estate, but from Murrell Dobbins, under the residuary provisions of his will, and as such it was not taxable to Emily.” The Commissioner relies on several subsequent decisions. The most recent of these, Helvering v. Butterworth, 290 U. S. 365, 54 S. Ct. 221, 78 L. Ed. 365, held that a trustee was entitled to deduct income to the trustee paid over to the beneficiary, a widow, who elected to take under the terms of her husband’s will. The Commissioner in that ease argued that the election was the equivalent of purchasing an annuity and, therefore, the payments over were taxable to the trustee as in Burnet v. Whitehouse, 283 U. S. 148, 51 S. Ct. 374, 75 L. Ed. 916, 73 A. L. R. 1534, wherein the will directed payment to the annuitant without reference to the existence or absence of income. The fact is that in this case the amounts received by the taxpayer were distributions of a fund received under the will of Emily from the estate of Murrell. The taxpayer did not receive income on any fund. Section 22 (b) (3) of the act, 26 USCA § 2022 (b) (3), expressly excludes from gross income the value of property received by bequest. The exemption is plain, and only by a total disregard of the laws relating to testamentary dispositions of property could we hold that the fund received by the taxpayer was income to him. Waud v. United States (Ct. Cl.) 48 F.(2d) 444, and Darcy v. Commissioner, 66 F.(2d) 581 (C. C. A. 2), were cited by the Commissioner to show that in a proper case there was no objection to subjecting property to both estate and an income tax. The decisions in these eases are not apposite to the questions involved in the ease at bar and do not affect it. The order of redetermination of the Board of Tax Appeals 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.

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

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

CABLE v. UNITED STATES. No. 6568. Circuit Court of Appeals, Seventh Circuit. May 25, 1939. Edward H. S. Martin, of Chicago, Ill., for appellant. Keith L. Seegmiller, of Washington, D. C., Michael L. Igoe, U. S. Atty., and William M. Lytle, Atty., Department of Justice, both of Chicago, Ill., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett and Fendall Marbury, Sp. Assts. to Atty. Gen. Before EVANS, SPARKS, and TREANOR, Circuit Judges. TREANOR, Circuit Judge. This is an appeal from the judgment of the District Court entered pursuant to an order dismissing plaintiff’s suit. Plaintiff’s suit was brought as beneficiary and ■administratrix to recover total and permanent disability and death benefits under a war risk insurance policy.” Plaintiff’s complaint included two counts, the first based upon the alleged occurrence of total and permanent disability as of October 17, 1918, which date was prior to the discontinuance of payment of premiums by the soldier. As a result of the recent decision of the United States Supreme Court in United States v. Towery, the right of action asserted under, count one of the complaint is barred by the statute of limitations. In. the Towery case it was stated that under insurance policies providing for permanent and total disability benefits and for death benefits “there shall be but one right, — that is, the right to benefit payments, and but one critical contingency which conditions that right, namely, the occurrence of permanent total disability or death while the policy remains in force.” The Supreme Court concluded that the period of limitations began to run against a suit for permanent total disability benefits and death benefits at the date of the occurrence of total and permanent disability. Since in the instant suit the allegations of count one of the complaint disclose that permanent and total disability occurred on October 17, 1918, it follows, under the Tow-ery decision, that plaintiff’s suit under count one is barred for death benefits as well as for permanent and total disability benefits. The second count alleges that from the time of his discharge from service the soldier was so suffering from disease, disability or injuries incurred in or aggravated by his service that he had become entitled to disability compensation in an amount sufficient to have paid the premiums on his insurance from the date of his discharge to March 17, 1929; that such disability compensation remained unpaid in an amount sufficient to have paid such premiums until at least July 9, 1930, when such rating of disability for compensation service was made by the United States Veterans Bureau. It is further alleged in the second count that the deceased soldier “became totally and permanently disabled on, to wit: June 30, 1927, and became entitled to receive from defendant on such insurance $57.50 per month for each month thereafter until his death, and (that) plaintiff in her own right as such beneficiary became entitled to receive from defendant on said insurance $57.50 per month beginning at the death of said deceased, and (that) upon her appointment as such ad-ministratrix became entitled to receive from defendant said monthly installments so due to said deceased in his lifetime.” Certain facts were stipulated by parties as “true and complete facts relating to the question of jurisdiction raised by the defendant in its motion to dismiss.” Among the facts stipulated is that on June 24, 1930, the Central Board of Appeals of the United States Veterans Bureau held that the veteran was permanently and totally disabled from July 10, 1929, for insurance purposes. Also it was stipulated that on June 24, 1930, the Central Board of Appeals decided that the soldier was at the time of his discharge from military service suffering from a compensable disability and the soldier was awarded disability compensation for the period of time from his discharge until the date of such award and thereafter; and it was further stipulated that such compensation would have been sufficient, if properly paid, to have paid all of the premiums on-said insurance as they matured to and including June 2, 1927; and that the disability compensation remained wholly unpaid until the year 1930. Section 305 of the World War Veterans’ Act provides that “Where any person has heretofore allowed his insurance to lapse, * * * while suffering from a compensable disability for which compensation was not collected and dies or has died, or becomes or has become permanently and totally disabled and at the time of such death or permanent total disability was or is entitled to compensation remaining uncollected, then and in that event so much of his insurance as said uncollected compensation * * * would purchase if applied as premiums when due, shall not be considered as lapsed, * * * and the Veterans’ Administration is hereby authorized and directed to pay to said soldier, or his beneficiaries, * * * the amount of said insurance less the unpaid premiums and interest thereon at 5 per centum per annum compounded annually in installments. * * * ” Prior to the decision of the Supreme Court in United States v. McClure it was a disputed question whether Section 305 should be given the effect of reviving the insurance of the veteran under a renewable term policy when the insured became permanently and totally disabled after July 2, 1927. In the McClure case the Supreme Court held that the insurance of the veteran, who had become permanently and totally disabled in December, 1929, was revived under Section 305. It is stipulated in the instant case that the disability compensation remained wholly unpaid until the year 1930, and that such compensation would have been sufficient to have paid all the premiums on said insurance as they matured to and including June 2, 1927. Such stipulation necessarily carries with it the fact that the uncollected compensation was sufficient to purchase some insurance for a period in-, eluding July 10, 1929, the date of occurrence of total permanent disability. Applying the holding of the McClure case to the allegations of the complaint and the facts stipulated in the instant suit, it follows that the veteran’s insurance was in force on July 10, 1929, the stipulated date of total and permanent disability, for so much of his insurance as the then uncollected compensation would have purchased if applied to due premiums. It follows from the foregoing that the second count of plaintiff’s complaint is good against the motion to dismiss unless under its allegations and the stipulation of facts suit was barred by expiration of the statutory period of limitation. This depends upon the date of the occurrence of total and permanent disability and the length of the period of suspension of the running of the statutory period ■ by pen-dency of “the claim sued upon.” Defendant contends that since the plaintiff alleged in the second count that total and permanent disability occurred on June 30, 1927, that such date must be taken as the date of the beginning of the running of the statute of limitations against plaintiff’s suit. But plaintiff urges that defendant’s contention is untenable for two reasons, (1) that an allegation of total and permanent disability as of June 30, 1927, is necessarily an allegation of total and permanent disability on any and all subsequent dates; and (2) that when a date is alleged under a videlicet, as it was in the instant case, the pleader is not held to proof of the date alleged but may make proof of any date within the statutory period. The latter proposition is supported by decisions of federal courts and by decisions of the Supreme Court of Illinois; and as against a motion to dismiss on the ground that the suit is barred by the statute of limitations we are of the opinion that the allegation of permanent and total disability as of June 30, 1927, would be sustained by evidence of the occurrence of total and permanent disability on any date subsequent thereto within the period of limitation. The stipulation of facts shows that one claim was filed on July 10, 1929, and that a second claim was filed on January 26, 1930. The stipulation further shows that a third claim was filed on June 26, 1931. By letter dated September 10, 1930, the veteran was notified of the denial of the first two claims and also was informed that benefits were not payable as claimed because it had been held that he had been permanently and totally disabled on July 10, 1929, when “there was no insurance subject to revival under Section 305.” (The later decision in the McClure case rendered the foregoing reason invalid.) The third claim dated June 26, 1931, requested a permanent and total rating for insurance purposes from date of lapse of policy for nonpayment of premiums which was stated to have been June 1, 1921. The letter of notification of denial of this claim on February 14, 1936, stated that permanent and total disability during the life of the veteran’s war risk term insurance contract had not been established. It is defendant’s contention that the instant suit is a suit upon the first two claims which were denied on September 10, 1930; and that the period of pendency of the third claim cannot be taken into consideration for the purpose of determining whether the instant suit was brought within the time allowed by statute. If defendant is correct in this contention the suit was commenced one day too late, even under our holding that the date of the occurrence of total and permanent disability can be considered July 10, 1929 for purposes of the motion to dismiss, since the statutory period would have expired on September 10, 1936, and the instant suit was not commenced until the next day, September 11, 1936. On the other hand, if the six year period of limitation was suspended during the period of pendency of the third claim, the instant suit was commenced in ample time whether the date of occurrence of total and permanent disability is considered to have been June 30, 1927, or July 10, 1929. We see no reason for disregarding the period of pendency of the third claim. It was duly filed and was considered and denied on the ground that permanent and total disability during the life of the veteran’s war risk contract had not been established. It is true, as indicated by defendant, that the period of time during which the running of the period of limitation is suspended is “the period elapsing between the filing in the Bureau of the claim sued upon and the denial of said claim.” But we are of the opinion that in the instant case the “claim sued upon” Is asserted in the third claim as truly as it is in the first or second claim. In Coffey v. United States this Court stated that no language in Section 19 of the Veterans’ Act, 38 U.S.C.A. § 445, purported “expressly to limit the right to commence an action to the person filing the claim, or to that person in the capacity in which he files the claim.” It was also stated that “A ‘claim’ may be ‘any writing’ which alleges ‘permanent and total disability at a time when the contract of insurance was in force,’ or which ‘uses words showing an intention to claim insurance benefits’ ”; and that “the term ‘claim,’ as thus defined, is merely the physical writing which furnishes the desired information and not an assertion of a legal right.” The substance of a claim, as that term is used in the statute, is a declaration of an intention . to claim insurance benefits under the contract of insurance. The decision of the Supreme Court in the Towery case, supra, which asserts that there is only “one right,” namely, the “right to benefit payments” carries with it, logically, the necessary implication that there can be but one claim, that is, a claim for benefits under the insurance contract. The “claim” which was filed June 26, 1931, was equally with the first two “claims”, a "writing which alleged permanent and total disability at a time when the contract of insurance was in force,” and, equally with the first two claims, was a “writing” which used “words showing an intention to claim insurance benefits.” As stated above, the third claim was filed on June 26, 1931, within the statutory period and approximately a year after the decision of June 24, 1930 by the Central Board of Appeals, which decision was that the soldier was suffering from a compensable disability from the date of his discharge and was permanently and totally disabled from July 10, 1929, for insurance purposes. The recognition by the Bureau of partial disability from the date of discharge, and total disability from July 10, 1929, was sufficient to justify the veteran’s refiling his claim, and the Administration did in fact reexamine and consider the claim and made a final decision on February 14, 1936; the decision being that permanent and total disability during the life of the veteran’s war risk insurance contract had not been established. It is stipulated that the Insurance Claims Council rendered a decision on May 1, 1935, denying that the veteran was permanently and totally disabled for insurance purposes at any time prior to the lapse of his insurance contract, and that on May 13, 1935, the present plaintiff was notified of the action taken by the Insurance Claims Council, the notification letter stating that an application for review on appeal could be filed with the Veterans’ Administration prior to the expiration of one year and that if no appeal was taken within the year then the denial of the claim by the Insurance Claims Council was final. Pursuant to the letter of May 13, 1935, the present plaintiff on September 28, 1935, filed an application with the Administrator of Veterans Affairs for a review of the action of the Insurance Claims Council; and on February 14, 1936, the Board of Veteran Appeals, acting for the Administrator of Veterans Affairs and under authority given by him, affirmed the decision of the Insurance Claims Council. Obviously, the United States Veterans Bureau treated the claim of June 26, 1931, as a claim under the act and passed upon and denied the same. The claimant was justified in relying upon the pendency of his claim and in awaiting final action thereon before beginning suit. That he was so relying is indicated by the language of the claim which contains the following statement: “In the event that this request is not granted, I intend to bring this matter into the federal courts for final decision.” In our opinion the running of the statutory period of limitations was suspended during the pendency of the claim filed on June 26, 1931. Since the claim pended for more than four years, the instant suit, which was filed on September 11, 1936, was brought within the statutory period, whether the date of occurrence of permanent and total disability is considered to have been June 30, 1927, or July 10, 1929. We conclude that the District Court erred in granting defendant’s motion to dismiss plaintiff’s suit. The judgment must be reversed. The cause is remanded with instructions to overrule defendant’s motion to dismiss and for further proceedings not inconsistent with this opinion. Judgment reversed. 59 S.Ct. 522, 525, 83 L.Ed. —. 38 U.S.C.A. § 516. 305 U.S. 472, 59 S.Ct. 335, 83 L.Ed. 296. Collins v. Sanitary District of Chicago, 270 Ill. 108, 110 N.E. 318; Long v. Conklin, 75 Ill. 32; City of St. Charles v. Stookey, 8 Cir., 154 F. 772. 97 F.2d 762, 764, 117 A.L.R. 940. Section 19 of the World War Veterans’ Act, as amended, 88 U.S.C.A. § 445.

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

COMMERCIAL CREDIT CO., Inc., v. UNITED STATES. No. 6221. Circuit Court of Appeals, Fifth Circuit. Dec. 2, 1931. Dallas C. Biggers and Roy W. McDonald, both of Dallas, Tex., Duane R. Dills, and Berthold Muecke, Jr., both of New York City, for appellant. H. M. Holden, U. S. Atty., and M. S. McCorquodale, Asst. U. S. Atty., both of Houston, Tex., for the United States. Before BRYAN, FOSTER, and SIBLEY, Circuit Judges. SIBLEY, Circuit Judge. This is a consolidated appeal from judgments of absolute forfeiture under the customs laws of three automobiles on which appellant had valid liens to secure a balance of purchase money. Appellant’s contention is that on the face of the libels, and upon the facts found, forfeiture cannot be had under the customs laws, but only under the National Prohibition Act, 27 U. S. C. | 40 (27 USCA § 40), under which its rights as an innocent lienor would be protected. The contrary contention is that the customs laws constitute an independent system which may be enforced regardless of parallel provisions of the Prohibition Law. Each libel asserts a seizure of the automobile by a customs officer in a named county of Texas while there was being concealed and transported therein foreign merchandise, to wit, whisky and alcohol which had lately theretofore been unlawfully imported into the United States. Taking as typical the first case iñ the record, the facts found are that on October 29, 1930, a customs inspector seized the automobile and arrested the driver in Brooks county, Tex., while transporting eighteen five-gallon cans of al■cohol, and seventeen quarts of whisky which had been bought in Mexico and smuggled by the seller across the Rio Grande into Texas, and loaded in Texas on the automobile and thence transported to the place of seizure. The merchandise was not declared, and a tax was due on it but not paid, and no revenue stamps appeared on the packages. The seizing officer, though a customs inspector, was engaged wholly in seizing contraband liquors and the carrying vehicles; his headquarters being at Falfurrias, Tex., about seventy miles from the border. The appellant held by transfer a valid purchase-money mortgage for $765.40 against the automobile which had been taken by the mortgagee and acquired by appellant in good faith with due diligence, and without any intent to defraud the United States, and without knowledge that the ear would be used to violate the law. The facts make a clear ease for forfeiture under 19 U. S. C., §§ 482, 483 (19 USCA §§ 482, 483), as of a vehicle, not that of a common carrier, conveying merchandise which had been unlawfully introduced into the United States. The Tariff Act of 1930, § 401 (c), 19 USCA § 1401 (e), repeats the provision of the Act of 1922 that the word “merchandise” shall include articles the importation of which is prohibited. But the case is with equal clearness within the language of 27 U. S. C., § 40 (27 USCA § 40). The opening words of that section: “When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors,” etc., are on their face not restricted to prohibition officers. United States officers and not state officers are meant (Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381), but a customs officer of the United States is an officer of the law and included. He is bound to seize the liquor. A customs officer made the seizure in Commercial Credit Co. v. United States, 276 U. S. 226, 48 S. Ct. 232, 72 L. Ed. 541. So in the succeeding sentence, “Whenever intoxicating liquors transported -or possessed illegally shall be seized by an officer he shall take possession of the vehicle is * * and shall arrest any person in charge thereof,” the language is not less broad. The same situation and the same officers as defined in the previous sentence are still in view. The section next requires the arresting officer to proceed against the person arrested “under the provisions of this chapter,” that is, title 2 of the National Prohibition Act, and requires certain dispositions of the vehicle which in case of conviction result in its sale, a satisfaction of bona fide liens, and payment of the balance into the Treasury. Though theré are in the section no express words of forfeiture, it has always been understood to provide a forfeiture of the vehicle with a saving of the rights of innocent persons. Especially to effectuate this just saving it has been held that the language of the section was made mandatory, and that its provisions must be followed where they apply. Richbourg Motor Co. v. United States, 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A. L. R. 1081. In that case, the arrest and seizure were not made by a customs officer, and the competing laws were those affecting the internal revenue rather than those affecting customs duties; but we see therein no tenable ground of distinction. Neither as respects the internal revenue nor the customs laws should it be said that there is a repeal by the National Prohibition Act. Consistency of taxation with prohibition has been often asserted. United States v. One Ford Coupe, 272 U. S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025; United States v. Ryan, 52 S. Ct. 65, 76 L. Ed., decided by Supreme Court November 23, 1931. The provisions for forfeiture of vehicles and the like used for the fraudulent removal, transportation, or concealment of articles taxed under each system, 19 U. S. C., §§ 482, 483 (19 USCA §§ 482, 483); 26 U. S. C., § 1181 (26 USCA § 1181) stand unrepealed. They are general, and apply to many taxed articles other than intoxicating liquors, and to many situations which 27 U. S. C. § 40 (27 USCA § 40) does not fit. The latter is in the nature of specific legislation which operates where it applies by way of exception to the general legislation. U. S. v. One Ford Coupe, 272 U. S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025. If no person can be arrested; or if the transportation by reason of proper permits be lawful under the prohibition law and unlawful only because of fraud on the revenue, so that there could be no prosecution under the prohibition law; or if the person arrested be an ignorant and therefore innocent dupe of a guilty owner and be acquitted for that reason, grave question may exist of the exclusive application of 27 U. S. C., § 40 (27 USCA § 40). So there might be such question if the vehicles here involved had contained substantial quantities of contraband merchandise other than intoxicating liquor on account of which forfeiture was sought. x\md it has been held that a vessel or vehicle used in the act of unlawful importation of intoxicating liquors might be forfeited under the customs and shipping laws; the subsequent unlawful transportation within the United States not superseding or annulling the offense and the forfeiture completed at the border. United States v. One Nash Auto (D. C.) 23.F.(2d) 126; The Pilot (C. C. A.) 43 F.(2d) 491. But none of these considerations arise here. The vehicles involved were used only in transportation within the United States, and carried intoxicating liquors alone, and the persons in charge were arrested, and, for aught that appears, are guilty under the prohibition laws. No reason exists why the mandate of 27 U. S. C., § 40 (27 USGA § 40) should not be followed out by the officers of the United States in their efforts to condemn the vehicles. The judgment is accordingly reversed, with direction to dismiss the libels without prejudice.

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 19. 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 19? Answer with a number.

THE WILDWOOD. AMERICAN FOREIGN S. S. CORPORATION et al. v. AMTORG TRADING CORPORATION et al. No. 10070. Circuit Court of Appeals, Ninth Circuit. Feb. 23, 1943. See, also, D.C. 40 F.Supp. 796. Lord, Day & Lord and George deForest Lord, all of New York City, Hayden, Merritt, Summers & Bucey, of Seattle, Wash., Gerald H. Bucey, of New Orleans, La., and Maurice Finkelstein, of New York City, for appellants. Bogle, Bogle & Gates, Edward G. Dobrin, and Claude E. Wakefield, all of Seattle, Wash., and Charles Recht, of New York City, for appellees. Before DENMAN, HANEY, and HEA-LY, Circuit Judges. DENMAN, Circuit Judge. This is an appeal in admiralty from a decree of the district court holding appellant, American Foreign Steamship Corporation, hereinafter called Carrier, liable to appellee, Amtorg Trading Corporation, hereinafter called Shipper, (1) for non-performance of Carrier’s agreement to carry from the port of Jersey City, New Jersey, to the port of Petropavlovsk or the port of Vladivostok, Siberia, in Carrier’s American Steamer Wildwood, miscellaneous cargo, largely copper bullion, delivered to the Carrier by the Shipper and stowed on the Wildwood'by the Shipper, and (2) for damage to cargo while on the Wildwood. (1) The bills of lading, issued on February 20, 1940, provided for a voyage from Jersey City to Vladivostok. The Wild-wood had proceeded on that voyage to a point between Balboa, Panama, and Honolulu, Hawaii, when, on March 18th, the Carrier and Shipper, for an added consideration, made an agreement that the vessel should go to and discharge her cargo at Petropavlovsk or, at the Shipper’s option, discharge part'of the cargo there and proceed to Vladivostok to discharge the balance. The Shipper exercised its option in a letter to the Carrier of March 27th, stating the Wildwood was to “discharge part of the cargo at Petropavlovsk and will proceed to Vladivostok to discharge the balance.” The agreement further provided that “all other items and conditions are in accordance with the original bookings and bills of lading.” The vessel arrived at and sailed from Honolulu. Later, on March 27th, the Carrier learned that the British were asserting for the first time in the northern waters of the Pacific Ocean their right of “contraband control” of war material cargoes in neutral vessels which they suspected ultimately might reach Germany. On March 15th British haval vessels had seized the neutral Russian steamer Mayakovsky, also with a cargo of copper bullion, on a voyage from San Francisco, also to Vladivostok via Petropavlovsk, while that steamer was in the North Pacific some 100 miles off Tsugaru Strait, and taken the vessel to Hong Kong some 1700 miles from Vladivostok. In such a situation the Carrier is required to consider, for the protection of the Shipper’s cargo and of his own vessel, the provisions of the bills of lading for abandoning or deviating from the agreed voyage. Clause 4 of the bill of lading provides, “In any situation whatsoever or wheresoever occurring * * * which in the judgment of the carrier or master is likely to give rise to capture, seizure, detention, damage, delay or disadvantage to or loss of the ship or any part of her cargo, or to make it unsafe, imprudent, or unlawful for any reason to proceed on or continue the voyage or to enter or discharge the goods at the port of discharge, or to give rise to delay or difficulty in arriving, discharging at or leaving the port of discharge * * * ” the master may “proceed or return, directly or indirectly, to or stop at such other port or place whatsoever as he or the carrier may consider safe or advisable under the circumstances ***." Carrier and Shipper properly agree that “such a clause must be given a reasonable interpretation, and the discretion-conferred may not be exercised in an arbitrary or unreasonable manner, nor without substantial grounds, nor will good faith alone suffice.” On March 28, 1940, the Carrier radioed to the Wildwood’s captain to bring the Wildwood to Seattle, Washington, and notified the Shipper of the abandonment of the voyage, as warranted by Clause 4 of the bill of lading. She proceeded to Tacoma, Washington, and there returned the cargo to the Shipper. The testimony establishes that when the above right to deviate or abandon the voyage was created in the Carrier, Britain, being at war with Germany, though not with the United States or Russia, was exercising on the Atlantic and Mediterranean a war practice of “contraband control” over the vessels of the United States and other neutrals. Many such neutral vessels — over 100 American owned — had been seized in Atlantic and Mediterranean waters on the claim that they carried cargoes owned by Germany, and taken to British ports for final determination of their character. However, no contraband control of any kind had been claimed or exercised anywhere in Pacific Ocean waters, save on January 15, 1940, in the peculiar distinguishing incident, later discussed, of the seizure by the British of the Russian vessel, the Selenga, off Formosa in the South China Sea, on a voyage from Manila to Vladivostok, and her taking to the nearby port of Hong Kong. Both the Carrier and the Shipper knew when Clause 4 was agreed upon that the New Jersey-Petropavlovsk-Vladivostok voyage was not as free of likelihood of seizure by a belligerent as in peace time. The parties are agreed that Clause 4 empowered the Carrier to abandon that voyage only if it was a reasonable inference from facts chargeable to the Carrier’s knowledge when the voyage contract was made and the voyage later abandoned, that the hazard of such seizure had become substantially greater during the voyage than anticipated by the parties at its beginning. This agreement as to the Carrier’s discretion to abandon the voyage gives no more power of abandonment than exists in the absence of Clause 4. The right to exercise süch discretion to abandon has long been established in American and British decisions. In The Kronprinzessin Cecilie, 244 U.S. 12, 37 S.Ct. 490, 61 L.Ed. 960, that German vessel had sailed from New York bound to Plymouth, England. Because of grave apprehension of war between England and Germany, she turned back to New York before war was declared. In holding the right to abandon was properly exercised, the court declared, (page 24 of 244 U.S., page 492 of 37 S.Ct., 61 L.Ed. 960), “We are wholly unable to accept the argument that although a shipowner may give up his voyage to avoid capture after war is declared, he never is at liberty to anticipate war. In this case the anticipation was correct, and the master is not to be put in the wrong by nice calculations that if all went well he might have delivered the gold and escaped capture by the margin of a few hours.” The reasonableness of the carrier’s or master’s apprehension of the increased hazard is not determined by subsequent events. In The Styria v. Morgan, 186 U.S. 1, 22 S.Ct. 731, 46 L.Ed. 1027, the Styria’s master, with the concurrence of the owner’s agent, having just loaded a cargo of sulphur consigned to New York, discharged it at its Sicilian loading port on learning of the war between the United States and Spain and that sulphur was on the Spanish contraband list. The master was charged with knowledge of news reports to the effect that there were negotiations with Spain to permit the free carriage of sulphur. It later turned out that the reports were true and the negotiations successful. Not a single sulphur ship was seized by Spain during the entire war (page 7 of 186 U.S., page 736 of 22 S.Ct., 46 L.Ed. 1027.) Nevertheless, the court held proper the discharge of the sulphur and that the action taken could not be judged in, the light of “knowledge gained after the event” or “knowledge of subsequent events” (pages 13, 22 of 186 U.S., pages 736, 739 of 22 S.Ct., 46 L.Ed. 1027), but that the court must put itself in the position of the actors in the transaction. So tested, the master’s conduct was held to be “a reasonable exercise of judgment.” What those concerned have a right to demand is “not an infallible, but a deliberate and considerate, judgment,” (pages 9, 10 of 186 U.S., page 734 of 22 S.Ct., 46 L.Ed. 1027). Similarly in Nobel’s Explosives Co. v. Jenkins, (1896) 2 Q.B. 326, 8 Aspinwall (N.S.) 818, the abandonment of the voyage was justified because the captain had a ■“reasonable and well founded belief” of a danger of capture. The carrier’s right is excellently expressed in the recent case of The George J. Goulandris, D.C.Me.1941, 36 F.Supp. 827, 834, where a “reasonable apprehension” of seizure is described as arising when “the degree of danger gets beyond the category of rumored or fanciful danger and may be properly called actual and substantial.” In all of the following cases the abandonment of the voyage or turning back of the vessel, because of the -increase of hazard over that existing at the time the agreement to carry was made, was held justified. Atlantic Fruit Co. v. Solari, D.C.S.D.N.Y.1916, 238 F. 217, 224; M. A. Quina Export Co. v. Seebold, 5 Cir., 1923, 287 F. 626; Israel v. Luckenbach S. S. Co., 2 Cir., 1925, 6 F.2d 996, 997, 998, 999, 1000; Compagnie de Trefileries v. F. & C. S. S. Co., Ltd., 1920, 192 App.Div. 709, 183 N.Y.S. 169, affirmed 233 N.Y. 596, 135 N.E. 932. Cf. Allanwilde Tr. Corp. v. Vacuum Oil Co., 248 U.S. 377, 39 S.Ct. 147, 63 L.Ed. 312, 3 A.L.R. 15. The district court found that the British seizure of the Russian ship Mayakovsky, the first in North Pacific waters, disclosed to the Carrier no reasonable apprehension of increased hazard over that contemplated on March 18th, when the agreement was made relative to proceeding to Vladivostok via Petropavlovsk and discharging part of the cargo at the latter port. It found that the abandonment of the voyage was not warranted by the news of the seizure of the Mayakovsky. While an admiralty appeal receives a trial de novo, we accord respect to the findings of the district court. The Ernest H. Meyer, 9 Cir., 84 F.2d 496, 500. Here we are unable to accept that court’s finding of no increase in hazard disclosed by the Mayakovsky’s seizure. This is because this finding is in large part based upon another finding of a major probative fact, in determining the extent of the hazard contemplated by the Carrier and Shipper on March 18th, which latter finding has no support whatsoever in the evidence. In four places, two in his opinion and two in his findings of fact, the venerable district judge assumed as proved that the hazard the parties agreed upon on March 18th, when the contract for the PetropavlovskVladivostok voyage was made, was that the British interference with the trade in Russian goods shipped to Vladivostok then amounted to a “blockade.” In these four places the judge finds that during the discussions leading to the Petropavlovsk amendment to the contract of March 18th, the Shipper’s agent, a Mr. Vassiliev, told the Carrier’s representative that it was safer to go to Petropavlovsk “because of the blockade” of Vladivostok. However, the district court mistook a later conversation concerning a blockade of Vladivostok, occurring on March 28th, after the Carrier learned on the day before of the seizure of the Mayakovsky, as having occurred ten days earlier, on March 18th, when the Petropavlovsk agreement was made. On March 28th, in urging the Carrier to resume the Wildwood’s abandoned voyage to Petropavlovsk, Shipper’s Mr. Vassiliev said to the Carrier’s officers, “It is more safe to go further north than to go to Vladivostok on account of the blockade.” There is no evidence that the parties contemplated an existing blockade of that port at any time prior to the abandonment of the voyage. An error so grave is such a patent factor in the district court’s decision, that we cannot say that the decision would have been for the Shipper if the court had realized that there was no evidence that the Carrier had agreed to carry to a blockaded port. In considering de novo the question whether the news of the Mayakovsky warranted the inference of an increased hazard over that contemplated by the Carrier on March 18th, before it was known to it, we thus have the Shipper’s own estimate that, when the voyage was abandoned, the port of Vladivostok was blockaded. As stated, we cannot find that prior to the Mayakovsky’s seizure there was evidence that the hazard in the voyage to Vladivostok amounted to running a blockade or anything approaching it. Assuming that the word “blockade” is at all applicable to the port of Vladivostok, the action of the British in seizing the Selenga off Formosa in the channel approaching Vladivostok, some 1700 miles distant to the south of that port, is at most but a partial blockade. It is such a partial blockade which is the risk assumed by the Carrier. It seems clear that it is more than doubling the hazard of that partial blockade to have the hovering of British naval vessels 1800 miles northerly from Formosa, on the great sailing circle from the United States leading from the northeast to Tsugaru Strait, the normal channel or approach to Vladivostok from the northeast, and but 500 miles distant from that port. It is such an increase of hazard as would require the Carrier to exercise the powers given it under Clause 4 and give it the right to turn the Wildwood away from this newly threatened danger. It is obvious that if a carrier risked a hazard greater than that anticipated by a shipper, and the shipper’s cargo was seized, the carrier would be liable to the shipper for its loss, — here of a cargo worth $5,000,000, greatly exceeding the value of the Carrier’s 2400-ton steamer. However that may be, the published facts concerning the single incident of seizure of the Selenga chargeable to the knowledge of the carrier and the shipper, disclose no general British policy of the seizure of all neutral vessels carrying war used metals either to Japan or to Asiatic Russia, — both countries then known to be friendly to Germany. These facts are stated in the Shipper’s Exhibit 71, containing articles published in the New York Times on January 14th and January 23,1940. The headline of the Times’ article of January 14th discloses that the ground of the Selenga’s seizure was not a claim to seize all military metal cargoes destined to Siberia. On the contrary the incident is confined to a prohibition of the reimport of goods claimed to be German, taken out before the war began. The headline reads, “Honk Kong Puts Ban on Nazi Shipments. Re-import of Goods Taken Out Before War Prohibited.” (Emphasis supplied.) The article of January 23rd is a Shanghai dispatch of January 22nd, explaining in detail the facts constituting the grounds of the Selenga’s seizure. They are that several years prior to the war, the Germans had obtained a concession for the major part of China’s production of wolfram ore, essential to the manufacture of munitions. After the war had started, German agents had succeeded in shipping out a large quantity of such ore to Manila. In January, 1940, the British censors at Hong Kong intercepted cables between the German consulate at Shanghai and other German sources in China, indicating that an attempt was going to be made to ship this German owned war material out of Manila, aboard the Selenga. The ship was accordingly intercepted, after it had left Manila, and taken to Hong Kong. The Russians protested that the wolfram ore aboard belonged to Russia, but the British retained it on the ground that they had proof it was German owned. In the Times’ report of March 2, 1940, likewise, the material aboard the Selenga is described as “consigned to Germany.” It is thus apparent that the detention of the Selenga was merely an isolated incident, arising from a special cause, viz., the presence on board of German owned material, derived from a German owned concession, being sought to be shipped surreptitiously under the direction of German agents in the Far East. It did not in any way involve, as did the seizure of the Mayakovsky, a general policy of blockade or seizure of neutral vessels, bound for Russian Pacific ports, for contraband detention, irrespective of the prior or present ownership of the cargo, or of the nature of its consignees, merely because there was war material on board, which was going into Russia, and might, thereafter, as it was feared, be made available to Germany. The cargo aboard the Wildwood was not, and had not been, German owned, the sole ground of action in the Selenga detention: it was not consigned to Germany; it was not being juggled about by German agents in surreptitious endeavor to escape the •British. The Selenga’s seizure, in these special circumstances, as related prior to March 27th, afforded no reasonable ground for apprehension on the part of the Carrier that the British “contraband control” which had led to the seizure of great numbers of neutral vessels, over 100 of which were American owned, on the Atlantic and Mediterranean waters, had been extended to the Pacific waters. To the contrary, a London dispatch of February 24, 1940, published in the New York Times on February 28, 1940, reported a colloquy in the House of Commons with Ronald Cross, British Minister for Economic Warfare, in part, as follows: “Ronald Cross, British Minister for Economic Warfare, revealed in the House of Commons tonight that Britain is considering establishing contraband control of the Pacific particularly around Vladivostok, Russia, in order to prevent Russian imports from reaching Germany. “He spoke during a debate on the efficiency of the British blockade, precipitated by charges that Russia was buying in the United States large quantities of tin, rubber, copper and other war materials for transshipment to Germany. jjí í}í ‡ “To charges that looseness of the British blockade was inflicting grave injury to British interests and making great difficulty for the navy, Cross replied that there was no control in the Pacific.” (Emphasis supplied.) This categorical statement by the British Minister in charge that there was no contraband control in the Pacific, and the fact that at most there might or might not be in the future, completely refutes the Shipper’s contention that the agreement of March 18th for the discharge of part of the cargo at Vladivostok contemplated attempting to evade seizure by the British cruisers exercising such control over vessels bound to that port. The fact of seizure of the Mayakovsky was very widely and reasonably taken to indicate that the British Government had decided to institute, or had already instituted, a blockade or strict “contraband control” over Russian Pacific ports, Thus, the report in the March 27th issue of the New York Evening Post declared that, “Confirmation of the Shanghai report would be most important, a tacit announcement that the British blockade had been extended to Russian Pacific ports at the same time that France had demanded the recall of the Russian Ambassador at Paris. “Britain long has believed that Russia was importing U. S. copper in tremendous quantities for Germany. “Ronald Cross, minister for economic warfare, told the House of Commons last Thursday that the government zvas closely watching Russian purchases of war materials, especially copper, from the U.. S.” (Emphasis supplied.) The London correspondent of the New York Herald Tribune drew a similar conclusion from the known facts. “London, March 27.- — -Extension of the British blockade to the Pacific to regulate large-scale exports of raw material from the United States to Soviet Russia, some of which the British believe ‘trickle’ through Germany’s back door, was foreshadowed today by the news that British warships had intercepted the Russian merchantman Vladimir Mayakovsky near Japan and brought her to Hong Kong for examination. “The Mayakovsky, first Soviet freighter in the trans-Pacific trade to be caught by the British, is said to have sailed a month ago from Manzanillo, Mexico, with 5,000 tons of American copper. Calling at San Pedro, Calif., the ship took on 200 tons of molybdenum, a metal used for hardening high-grade steel, and headed across the Pacific for Vladivostok, terminus of the Trans-Siberian Railway.” (Emphasis supplied.) The United Press London correspondent interpreted the news to the same effect, stating, “London, March 27. — British Russian relations are being subjected to severe strain by extension of the British blockade to the Pacific, it was disclosed today. “Russian Ambassador to London Ivan Maisky has protested vainly for a month against the detention of the Russian steamship Mayakovsky at Hong Kong, it * * * was disclosed. "The Mayakovsky was the first ship engaged in direct United States-Russian trade to fall to the Allied blockade.” (Emphasis supplied.) On the evening of March 27th, the well-known commentator, Elmer Davis, reviewing the news on the radio, declared his opinion that it was a question of “contraband control” of the type which the British had exercised previously in Atlantic waters. The same evening, Lowell Thomas broadcast the news as indicating that the British blockade had finally reached to the Pacific, and that the “British theory in seizing the vessel was that she was carrying copper and other materials which eventually would find their way into Germany.” The Associated Press news broadcast, also on the night of March 27th, informed its hearers of the constant surveillance of the ship by the British during its tortuous course from one Pacific port to another, and, speaking of another Russian ship recently loaded with copper off the West Coast, asked, the “question now is, will she escape the British Blockade?” These reports and comments, all of which were read or heard by one or more of Carrier’s officials, furnished abundant grounds for acute fear that the Wildwood, heavily loaded with a similar cargo and bound for a similar port, was in a perilous position. They were not mere fanciful and unfounded rumors, but the natural and world-wide interpretation of admitted facts by persons who were' experts on foreign affairs. It would have been foolhardy for the Carrier to set up its judgment in opposition to facts stated by the press and the most experienced radio and news commentators of the day who appear to have been convinced that the seizure of the Mayakovsky meant “blockade” or strict contraband control of Russian Siberian ports. Whether the threatened seizures were to be made in pursuit of a technical “blockade” or of a strict “contraband control,” or whether there was what the district court called, without definition, a “war zone,” was wholly immaterial, in any case, the danger of seizure and indefinitely prolonged detention was the same. Carrier made proper efforts to obtain whatever further official information might be available. Through its Washington attorneys, it approached the Russian Embassy, the British Embassy, and the United States Department of State, but could obtain no denial. At the Russian Embassy no contact could be made with the Ambassador, and inquiries were referred by a subordinate to Ámtorg. The British Embassy would make no statement whatever. The United States Department of State declared that it was unable to give any information that would cast doubt upon the accuracy of the published accounts. Under these circumstances, no conclusion could reasonably be reached by Carrier, or any other persons similarly placed, save that the further progress of the Wild-wood, with its cargo of metals, similar to those on the seized vessel, towards its ports of destination, was fraught with serious risk. No formal declaration of war is necessary to justify a ship in refusing to sail into a zone of danger (Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham S. S. Co. (1939) 2 K. B. 544); nor is a formal declaration of blockade, or of “contraband control”; nor any explicit official announcement that goods being carried to ports hitherto undisturbed, would subsequently be seized. What counts is not the formality of the declaration, but the reality, or apparent reality, of the danger. Nor is it relevant that the British concluded not further to harass the Russians and that there were no further seizures in the Pacific. We hold that, based upon its knowledge on March 27, 1940, that the British had seized the neutral Mayakovsky, on a similar voyage, the Carrier had a reasonable apprehension of a real danger of the seizure of the Wildwood by the British naval vessels on her voyage to Vladivostok via Petropavlovsk; that the danger so reasonably apprehended was a far greater war hazard than that contemplated by the parties when the charter was made for the voyage to Vladivostok, the bills of lading issued on February 20th, and on March 18th when the agreement was altered to discharge part of the cargo at Petropavlovsk ; and that on March 28th, the Carrier was entitled under Clause 4 of the bill of lading, as well as under the general maritime law, to abandon the voyage and return to Tacoma, Washington. (2) The Shipper filed a supplemental libel for damage to cargo in the No. 1 between decks and lower hold. The damage was both by fresh and salt water. The cargo was loaded by the Shipper in rainy weather, which caused the fresh water damage of which the Shipper cannot complain. o As to the salt water damage, the Carrier relies on Section 4(2), subdivision (c) of the Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. § 1304(2) (c), by which a carrier is exempted from liability if he prove the cargo damage was caused by a peril of the sea. The Carrier proved a storm of several days, with very heavy weather, in which the seas crossed the decks and damaged the No. 1 hold hatch coverings so that it was possible for the salt water to enter. There was other damage to the vessel, the heavy seas aboard smashing the door to the saloon alley and breaking off the guard plates for the steam pipes on the side of the No. 3 hatches. The district court made no finding on the issue tendered by the Carrier that the damage was caused by a peril of the sea. Instead, he found that “The salt water which came in contact with the cargo in No. 1 hold came from the chain locker which is immediately forward of No. 1 hold. * '* * Water entered the chain locker through the chain pipes which open onto the deck. These chain pipes are usually covered or filled with a cement plug to keep out the water. The function of the chain pipe cover or plug is likely to be impaired by the straining of the vessel in a rough sea.” The evidence is contrary to this finding. In the ship carpenter’s deposition is his uncontradicted testimony that the chain pipes were cemented up by him at each port and found intact on arrival at each succeeding port. The Shipper must be regarded as having accepted this statement as true, for its proctor not only did not cross-examine the carpenter on this testimony, but also failed to introduce any evidence to the contrary concerning the actual condition of the cement plugs on arrival at the various ports of the voyage. It was proved that the ship’s plates had not been strained. Since the only possible entrances of the sea water into the chain lock were sealed up, the water in-the No. 1 hold could not have come from that source. We find that the sea water damage to the cargo was due to the heavy storm, a peril of the sea, which caused an opening in the hatches through which the water entered. The interlocutory decree is set aside and we decree that the Carrier is not liable to the Shipper by reason of the deviation from the voyage to Vladivostok via Petropavlovsk, or because of any damage to the Shipper’s cargo while in the possession of the Carrier, and that the libel and supplemental libel be dismissed. Reversed, with decree for appellants.

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

Mrs. Fannie Lou HAMER et al., Appellants, v. Sam J. ELY, Jr., et al., Appellees. No. 25610. United States Court of Appeals Fifth Circuit. April 10, 1969. Benjamin E. Smith, New Orleans, La., Morton Stavis, Dennis J. Roberts, George Logan, III, Harriet Van Tassel, Newark, N. J., Alvin J. Bronstein, L. H. Rosenthal, Jackson, Miss., William M. Kunstler, Arthur Kinoy, New York City, for appellants; Irving M. King, Cotton, Watt, Jones & King, Chicago, Ill., of counsel. W. Dean Belk, Jr., Indianola, Miss., Joe T. Patterson, Atty. Gen., Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellees. Before WISDOM, THORNBERRY, and GOLDBERG, Circuit Judges. WISDOM, Circuit Judge: May 2, 1967, was a historic day in the Town of Sunflower, Mississippi. That day there was an election to choose a mayor and five aldermen. For most of the Negro electors, it was the first time in their lives that they could cast a ballot. Moreover, the Negroes, constituting a majority of the 900 residents of Sunflower, had a black candidate for mayor and six black candidates for the five aldermanie positions that were to be filled. The list of registered voters showed 190 Negro registrants and 160 white registrants. The candidates campaigned vigorously. Negro leaders extended themselves to educate the voters, many of whom were illiterate, and to explain the mechanics of voting. Came election day. Sunflower overflowed with strangers. These were reporters, representing the wire services and newspapers, and broadcasters and cameramen, some of whom represented national television networks. The wires to Washington had hummed before the election. Three federal observers were present inside the polling place. A federal “team captain” came to the polling booth from time to time during the day. Two attorneys from the Department of Justice were on hand. To the chagrin of the hardworking Negro campaigners, their candidate for mayor lost by a vote of 190 to 121. The five white candidates for aldermen won by votes of 180, 165, 165, 161, and 160 to 111, 105, 105, 104, 77, and 32. It is easy to understand the feeling of the Negro candidates and their supporters. They felt that there must have been skullduggery at the polls. Indeed, with reason, they could and did say that the Board of Election Commissioners should have shown more consideration for the uninformed, often illiterate, Negro casting his first ballot. In a motion asking the district court to set aside the election, the plaintiffs focused their attack on the Election Commission’s refusal to permit illiterate Negro voters to have voting assistance from Negro election officials. After a hearing, the district judge found that the election “was conducted in a completely fair, objective way and that the results thereof truly represent the will of a majority who voted that day”. On the record as a whole, we cannot say that the district court erred. I. The campaign manager for the Negro candidate for mayor and for five of the six Negro candidates for aldermen was Mr. Joseph Harris. He was not a registered voter in Sunflower but he was an employee of the Delta Ministry of the National Council of Churches who had been active for several years in encouraging Negroes in the Delta to register. In preparing for the election, Mr. Harris conducted a survey to determine the number of Negro voters who would need assistance in marking their ballots. Based on this survey and a practice election, he concluded that over one-third of the Negro voters would need assistance at the polls. Attorneys for the plaintiffs discussed this key problem with Mr. Will Wells, counsel for the defendants and an Assistant Attorney General for the State of Mississippi, and arrived at an “understanding”. Mr. Wells testified: That sometime in the latter part of April, prior to the election in May, that I conferred with Mr. Stavis, at the Attorney General’s office in Jackson, discussing the coming election, and I did advise him at that time that it was my understanding, based on conversations which I had had with Mr. Oscar Townsend, who is attorney for the Town of Sunflower, that there would be two Negro men who would be appointed as election officials, clerks, for the holding of that election, and that I further understood that one of them was Joseph Harris; That it was further my understanding, based on my conversations, that in the matter of aiding and assisting illiterates, that those two Negro men would be authorized to assist any illiterate who requested that they aid them in casting their ballots; That on the day before the election * * * it was still at that time my understanding that that would be the procedure. On the evening of May 1, while the Negroes in Sunflower were being assured at a meeting that they would receive voting assistance, the Board of Election Commissioners held a meeting. General Wells urged the Commissioners to allow Negro voting officials to assist Negro voters. The Board of Commissioners, however, decided that only members of the Commission were permitted to render aid to illiterate voters. In addition, there is some indication that the Commission considered that Mr. Harris, both because he was not a registered voter in Sunflower and because he was Campaign Manager of six of the seven Negro candidates, would be an inappropriate choice for an election official. All three commissioners are white. To make matters worse, so the plaintiffs say, one of the commissioners is “a plantation owner” who was running for County Sheriff; he had been a deputy sheriff; and his brother was a candidate for alderman in the May 2 election. Another commissioner operates a grocery store where Negroes frequently purchase goods on credit. The Commission did appoint two Negroes to serve as election officials but they were assigned only ministerial functions. Mr. Harris inscribed the names of the voters in a book. The other Negro official stood near the ballot box and placed ballots in the box as they were handed to him by the voters. The plaintiffs contend that many illiterate Negro voters cast their ballots without aid, rather than disclose how they voted. In support of this contention they point to the fact that there were 27 rejected irregular ballots. The plaintiffs assume that these ballots were all cast by Negroes. This is not necessarily true. In Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659, 662, in setting aside an election, we pointed out: “ * * * the trial Court legally could not assume — as it evidently did — that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election.” An analysis of the rejected and assisted ballots is inconclusive. On - election night 38 ballots were marked “irregular”, exclusive of 31 ballots marked “assisted”. The Commission accepted 11 of the irregular ballots. Of these, eight had votes for Negro candidates only; two split the votes between Negro and white candidates; one had votes for white candidates only. Of the 27 rejected ballots, 14 had votes for Negro candidates only; 11 split the votes; two had votes for white candidates only. In the race for mayor, an analysis of the 31 assisted ballots shows that 12 votes were east for the white candidate and 19 for the Negro candidate. In the race for aider-men, of the assisted ballots four were for all white candidates; eight were split; 19 were for all Negro candidates. The district judge noted: “It is significant that not one witness was offered, not one witness testified that he or she was illiterate and needed assistance in casting his ballot, but refused to ask for assistance because he did not want a white person to know how his vote was cast.” Of course, it would be naive to doubt that there must have been some Negroes who were unwilling to ask for aid because of a reluctance to disclose or fear of disclosing how they intended to vote. But this election was held in a fishbowl. The report of the federal observers is in the record. Commenting on the report the district judge said: “It speaks clearly and demonstrates that this election was fairly and properly held in every respect, and it is not questioned but that every person who was given assistance was assisted fairly and impartially with the ballot in each instance being marked in exact accord with the voter’s wishes.” II. The larger issue is whether the refusal of the Election Commissioners to appoint two Negro officials to render voting aid was a failure to provide “adequate assistance” to illiterates as required by a proper construction of Voting Rights Act of 1965. This requirement of voter assistance stems from the Voting Rights Act, specifically 42 U.S.C.A. § 1973l(c) (1) which defines the terms “vote” and “voting” as including “all action necessary to make a vote effective * * As the three-judge court said in United States v. State of Louisiana, E.D.La. 1966, 265 F.Supp. 703, 708, aff’d 386 U.S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39: “We cannot impute to Congress the self-defeating notion that an illiterate has the right [to] pull the lever of a voting machine, but not the right to know for whom he pulls the lever.” In light of this requirement, it becomes “ * * * the duty and responsibility of the precinct officials at each election to provide to each illiterate voter who may request it such reasonable assistance as may be necessary to permit such voter to cast his ballot in accordance with the voter’s own decision.” United States v. State of Mississippi, S.D.Mississippi 1966, 256 F.Supp. 344, 349. The appellants’ position, then, is that the use of only white poll assisters was not “reasonable assistance” in the circumstances prevailing at the Sunflower election. The Sunflower election was governed by the Declaratory Judgment entered in the case of United States v. State of Mississippi, supra, and not by any Mississippi statute. The Mississippi statute dealing with poll assistance was repealed in 1965. This statute provided: “§ 3273. Illiterate voter to have aid. A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to the same.” The action of the Sunflower Election Commissioners, however, was in compliance with the statute as it stood before its repeal. In light of the order in United States v. State of Louisiana, supra, which was tailored to the precise terms of a repealed Louisiana voter assistance statute, the action of the Election Commissioners in the present case, tailored to the terms of a repealed Mississippi statute, would appear to be reasonable. Voters may be motivated by reasons other than fear for not seeking voter assistance, and they have at their disposal a variety of measures to cast their votes without it. Thus, in United States v. State of Louisiana, E.D.Louisiana, 265 F.Supp. 703, 715, the court said: There are varying degrees of illiteracy, and varying degrees of voter intelligence among functionally illiterate electors. Many illiterates are able to respond to symbols and numbers; others will memorize the positions on the ballot of those for whom they wish to vote. Still others, even if unable to do these things, are willing to take their chances rather than reveal their choices to polling officials. Nonetheless, those few voters who do not trust their own ability to cast a ballot effectively and are willing to seek assistance are, under the Voting Rights Act of 1965 as we read it, entitled to that assistance.” The Act requires that voters be apprised of their right to assistance, not that they be induced to accept it. In the Sunflower election, voters were apprised of their right and each was informed that he could request a federal observer to be with him in the voting booth to check the quality of assistance rendered by the election official. On the cold record before us, the attitude of Sunflower’s Election Commissioners may have been shoddy, but it does not justify the “drastic, if not staggering” procedure (Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659) of a federal court’s voiding a state election. Such “drastic” measures are properly reserved for cases involving serious violations of voting rights. Hamer v. Campbell, supra; McGill v. Ryals, M.D.Alabama, 253 F.Supp. 374. III. The plaintiffs also charged that the Election Commissioners used segregated voting lines by giving preference to individual white voters over Negro voters standing in line. The evidence is conflicting. Two witnesses for the plaintiffs testified that while Negroes were waiting in line, whites were admitted to the polling place without any wait at all. A witness for the defendants, employed as bailiff during the Sunflower election, denied the existence of segregated voting lines. He testified that on one occasion he did escort a white voter into the polling place ahead of some Negroes, but that was because the individual concerned was a newspaperman and not a voter. This witness admitted that on two other occasions he had escorted white voters into the polling place, but he insisted that he received permission to do so from the voters in line. One of these preferred voters was a nurse said to be urgently needed; two were a salesman and his wife who worked out of town. The district court concluded that the claim of segregated voting lines was “not sustained by the evidence.” The court noted the absence of any testimony to this effect by the federal observers or members of the news media, and the further fact that of 190 Negroes in Sunflower eligible to vote in the May 2 election, more than 180 participated. * * * Taking the record, as a whole, we cannot say that the findings of the district court were clearly erroneous. The judgment is affirmed. . The election was held under order of the district court issued in accordance with this Court’s decision in Hamer v. Campbell, 5 Cir. 1966, 358 F.2d 215, cert. den. 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79. In that case we concluded that the district court should have enjoined the 1965 election; we ordered that the elec-. tion be set aside and a new one held under a plan to be directed by 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. 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.

STANDARD MICROSYSTEMS CORPORATION, Plaintiff-Appellee, v. TEXAS INSTRUMENTS INCORPORATED, Defendant-Appellant. No. 1441, Docket 90-7260. United States Court of Appeals, Second Circuit. Argued May 14, 1990. Decided Oct. 10, 1990. Mari M.G. Shaw, Philadelphia, Pa. (Nancy J. Bregstein, Tamara J. Kessler, Martin J. Black, Dechert Price & Rhoads, Philadelphia, Pa., Melvin A. Schwarz, Dechert Price & Rhoads, New York City, on the brief), for plaintiff-appellee. Barry R. Satine, New York City (Hal D. Cooper, Robert C. Kahrl, David Lavey, Jones, Day, Reavis & Pogue, New York City, on the brief), for defendant-appellant. Before OAKES and PRATT, Circuit Judges and LEVAL, District Judge. Pierre N. Leval, United States District Judge, sitting by designation. LEVAL, District Judge: This appeal seeks to enforce the Anti-Injunction Act, 28 U.S.C. § 2283. In a patent-licensing dispute, the district judge enjoined the defendant-appellant from prosecuting a suit which it had instituted against plaintiff-appellee in the Texas state courts. Because we hold that this order violated the terms of the Act, the injunction is vacated. The dispute arises out of a patent cross-licensing agreement between Standard Mi-crosystems Corp. (“SMC”), the plaintiff-ap-pellee, and Texas Instruments, Inc., (“TI”), the defendant-appellant, dated October 1, 1976 (the “Agreement”). The Agreement grants to each party the right to make royalty-free use of semiconductor technology owned by the other. It apparently also contains provisions requiring the parties to keep the agreement confidential, and prohibiting the assignment of rights under the Agreement. TI has licensed certain Japanese and Korean companies to exploit TI’s “Kilby patents,” which are part of the cross-licensed technology. SMC now proposes to transfer its rights under the Agreement to make royalty-free use of the same TI technology. It proposes to offer these rights to Japanese and Korean entities. TI apparently advised SMC that it would consider such a sale, and disclosure by SMC in preparation for such a sale, as a violation of the Agreement. On Friday, January 19, 1990, SMC filed this action against TI in the Eastern District of New York. The complaint alleges violations of federal antitrust and securities statutes and breach of contract, and further seeks declaratory relief that SMC’s actions do not breach its Agreement. Simultaneously with the filing of the suit, SMC obtained a temporary restraining order signed by Judge Joseph McLaughlin. The order restrained TI from terminating its License Agreement dated October 1, 1976, with plaintiff or revoking any of plaintiff’s rights under that Agreement. Judge McLaughlin’s order included an Order to Show Cause setting a hearing before Judge Leonard Wexler, the assigned judge, on SMC’s application for a preliminary injunction to be held on Monday, January 22, 1990. At 8:00 a.m. on Monday morning, January 22, TI filed suit in the Texas state court against SMC. The suit seeks to bar SMC from making disclosures in violation of the Agreement and to bar SMC from interfering with TI’s license negotiations in Japan. On January 22, Judge Wexler continued the TRO and adjourned the preliminary injunction hearing to Friday, January 26. On January 26, counsel for SMC advised Judge Wexler that SMC “would like [the court] to enjoin TI along the same lines as the temporary restraining order, to begin with. We would also like, Your honor, ... to enjoin TI from specifically proceeding in the [Texas] State Court action or any other action with respect to the same contract issues.... ” Judge Wexler proceeded to make the following order: Until there is a determination, Mr. Cooper [TI’s counsel], I’m directing you, your firm, your client, anyone connected with you are stayed from doing anything in Texas or in relationship to that action that has previously been filed. Cease and desist immediately. That is the order from which TI appeals. Discussion TI contends that Judge Wexler’s order violates the Anti-Injunction Act, 28 U.S.C. § 2283. The Act provides: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. Its purpose is, inter alia, to avoid intergovernmental friction that may result from a federal injunction staying state court proceedings. The Supreme Court has construed the Act to forbid a federal court from enjoining a party from prosecuting a state court action unless one of the three exceptions stated in the statute obtains. The three excepted circumstances are (i) the express provisions of another act of Congress authorizing such an order; (ii) necessity in aid of the federal court’s jurisdiction and (iii) the need to protect or effectuate the federal court’s judgments. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287-88, 90 S.Ct. 1739, 1743-44, 26 L.Ed.2d 234 (1970). None of the three statutory exceptions is here pertinent. There is no contrary act of Congress. And the injunction is not necessary either in aid of the federal court’s jurisdiction or to protect or effectuate its judgments. A number of circumstances may justify a finding that the exceptions govern. Where the federal court’s jurisdiction is in rem and the state court action may effectively deprive the federal court of the opportunity to adjudicate as to the res, the exception for necessity “in aid of jurisdiction” may be appropriate. Compare Kline v. Burke Construction Co., 260 U.S. 226, 230, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922) (declining to uphold federal court injunction against state court proceedings where contract obligations were in dispute, rather than rights relating to a res); Heyman v. Kline, 456 F.2d 123 (2d Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972) (Act bars federal court injunction issued in in personam proceeding involving employment contract); Vernitron Corp. v. Benjamin, 440 F.2d 105 (2d Cir.), cert. denied, 402 U.S. 987, 91 S.Ct. 1664, 29 L.Ed.2d 154 (1971) (reversing issuance of injunction justified only by the possibility of collateral estoppel in parallel securities litigations); with Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935) (affirming injunction against state court proceedings to protect court’s ability to control and dispose of property in liquidation proceeding). Analogous circumstances may be found where a federal court is on the verge of settling a complex matter, and state court proceedings may undermine its ability to achieve that objective, see In re Baldwin-United Corp., 770 F.2d 328, 337 (2d Cir.1985) (upholding injunction against state court actions to protect ability of federal court to manage and to settle multidistrict class action proceeding which was far advanced and in which court had extensive involvement). Or, where a federal court has made conclusive rulings and their effect may be undermined by threatened relitigation in state courts, the exception may be appropriate. See, e.g., Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 669 (S.D.N.Y.1966) (enjoining state court from hearing claims when federal court had found those claims to be properly heard only before an arbitrator). The suits at issue here are in personam actions, brought on successive business days in two different courts, disputing the interpretation of a contract. The existence of the state court action does not in any way impair the jurisdiction of the federal court or its ability to render justice. It is well-settled that such circumstances as these do not justify invocation of the exceptions of the Anti-Injunction Act. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 642, 97 S.Ct. 2881, 2893, 53 L.Ed.2d 1009 (1977) (reversing injunction oí state court proceedings which, like federal court action, involved dispute arising out of covenant not to compete; “[w]e have never viewed parallel in personam actions as interfering with the jurisdiction of either court”); Kline v. Burke Construction Co., 260 U.S. at 230, 43 S.Ct. at 81; Vernitron Corp. v. Benjamin, 440 F.2d at 108; Heyman v. Kline, 456 F.2d at 131-32. 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 application of the principles of res adjudícala.... Vendo Co., 433 U.S. at 642, 97 S.Ct. at 2893 (quoting Kline v. Burke Construction Co., 260 U.S. at 230, 43 S.Ct. at 81); see also Atlantic Line Coast R.R., 398 U.S. at 295, 90 S.Ct. at 1747 (“the state and federal courts had concurrent jurisdiction in this [labor dispute] and neither court was free to prevent either party from simultaneously pursuing claims in both courts”). SMC argues that, nonetheless, Judge Wexler’s injunction must be affirmed because it falls within two additional judicially created exceptions to the Act. First, the Act has been held inapplicable to federal injunctions issued prior to the institution of the state court action. Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 1119 n. 2, 14 L.Ed.2d 22 (1965); In re Baldwin-United Corp., 770 F.2d 328, 335 (2d Cir.1985). This exception is based both on policy and the explicit terms of the act. Where no state court proceeding exists, there is less danger that a federal court injunction barring the institution of such a proceeding will cause affront to state authority. Furthermore, the Act bars grant of “an injunction to stay proceedings in a State court,” 28 U.S.C. § 2283 (emph. added), which seems to refer literally to existing proceedings, rather than contemplated proceedings. SMC contends this case falls within the Dombrowski exception because Judge McLaughlin’s TRO predated the institution of the Texas action. The contention is frivolous. Although it is true that the TRO predated the Texas action, the TRO did not forbid TI from starting a separate action. The TRO restrained TI only “from terminating [SMC’s] License Agreement ... or revoking ... [SMC’s] rights under that Agreement.” There is no factual basis for SMC’s argument that TI’s Texas court action was instituted in violation of a federal injunction barring such suit. No order was issued against TI’s maintenance of its state court action until January 26, four days after TI started the action. Second, SMC contends that, notwithstanding the Act, a state court action may be enjoined if a motion to bar the state court action was made before the state court action was started. This argument depends on an exception to the Act created by judicial decision in the Seventh Circuit, Barancik v. Investors Funding Corp., 489 F.2d 933 (7th Cir.1973), and followed in the First and Eighth Circuits, see National City Lines, Inc., v. LLC Corp., 687 F.2d 1122, 1127-28 (8th Cir.1982) (following Barancik ); Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837 (1st Cir.1988), but re jected in the Sixth, see Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir.1978) (criticizing reasoning of Barancik), cert. dismissed, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979). This circuit has never considered the issue. In Barancik, defendants filed an action in state court while plaintiff’s preliminary injunction motion was pending in federal court seeking to bar defendants from commencing a separate legal action. The federal district judge enjoined prosecution of the state court action. The Seventh Circuit affirmed, noting that if the federal judge had immediately decided the motion, the injunction would have preceded the filing of the state court action and therefore, under Dombrowski, would not have violated the Anti-Injunction Act. The court found anomalous the possibility that the federal court’s authority to rule on a pending motion could be terminated by the action of one of the litigants and concluded that the Anti-Injunction Act did not prohibit a stay of state court proceedings if the state court proceeding was commenced after filing of a motion seeking to enjoin it. We have considerable doubt whether the Barancik rule should be adopted in this circuit. We do not find its reasoning compelling. The Barancik court found it “unseemly” that a court’s power to rule could be defeated by the quicker action of a litigant. 489 F.2d at 937. But it is axiomatic that one is not disabled from acting merely because an adverse litigant has applied for an order to bar such action. A party that has not been enjoined is ordinarily free to act, notwithstanding the penden-cy of applications to enjoin the action. In many circumstances litigants may lawfully moot an application by acting before the court has ruled. To enjoin conduct requires a judge’s order, not merely an application for a judge’s order. Where speed is needed, the rules of procedure provide for temporary restraining orders, even without notice, to prevent irreparable harm. See Fed.R.Civ.Pro. Rule 65. However anomalous it may seem that a party can moot an issue by acting more rapidly than the court, it is far more anomalous and dangerous that a mere application for injunctive relief be deemed equivalent to a court’s order issuing an injunction. The Barancik rule, furthermore, creates a still more serious anomaly. Under Bar-ancik, merely by filing an application for relief, a party nullifies an Act of Congress. In passing the Anti-Injunction Act, Congress meant to avoid friction in the relationship between federal courts and state courts. The Barancik rule places the power in the hands of the plaintiff unilaterally to nullify the effectiveness of an Act of Congress and to create exactly the kind of federal-state conflict that Congress sought to prevent. Compare Hicks v. Miranda, 422 U.S. 332, 348-50, 95 S.Ct. 2281, 2291-92, 45 L.Ed.2d 223 (1975). We need not decide whether the Baran-cik rule will be followed in this circuit because, in any event, it does not apply to these facts. At the time of TI’s commencement of the Texas action, there was no application before the federal court to bar it from doing so. The Order to Show Cause sought a preliminary injunction barring TI from a. coercing SMC’s compliance in TI’s interpretation of the License Agreement; b. interfering with SMC’s dealings ...; c. attempting to monopolize through the coercive acts alleged herein; and d. terminating the License Agreement and ... revoking any of SMC’s rights thereunder ...” SMC’s counsel reaches beyond the limits of ingenuity to contrive an argument that the Order to Show Cause applied for an injunction to bar the filing of a parallel action. The argument is to the effect that the application to enjoin TI’s “attempts] to monopolize ... through the coercive acts alleged herein,” especially when combined with the concluding prayer for such “other and different relief as [the court] deems proper and just,” incorporates by reference the allegation in the complaint of threats of “sham litigation.” Taking all this together, SMC contends its application should be construed as having sought an injunction barring institution of the “sham” Texas action. The argument is more convoluted than convincing. In fact, there was no application before the court to bar TI from starting a lawsuit. Thus, even if we were to adopt the reasoning of Barancik, it would not apply to this case. The district court’s order enjoining TI from further prosecuting its action in the Texas state court was issued in violation of the Anti-Injunction Act. Accordingly the order is vacated. . In a written order issued on March 1, 1990, Judge Wexler summarized his earlier order as follows: Further, as indicated on the record on January 26, 1990, this Court directed Texas Instruments, its agents and its attorneys, from taking any steps in relation to an action which it instituted on the same issue in Texas state court on the morning of January 22, 1990, shortly before or during the hearing then proceeding in this 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 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?

INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 15537. United States Court of Appeals District of Columbia Circuit. Argued Nov. 3, 1960. Decided June 21, 1965. Miss Betty H. Olchin, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, Cristobal, Canal Zone, with whom Messrs. Mozart G. Ratner and Isaac N. Groner, Washington, D. C., were on the brief for petitioners. Miss Margaret M. Farmer, Atty., N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel, N. L. R. B., at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., N. L. R. B., at the time the brief was filed, were on the brief for respondent. Messrs. Arnold Ordman, Gen. Counsel, and Melvin Pollack, Atty., N. L. R. B., were on the pleadings subsequent to remand. Before Washington, Danaher and Burger, Circuit Judges. . These provisions were redrafted without relevant change in the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542, 29 U.S.C. § 158(b) (4) (i) and (ii) (Supp. V, 1964). PER CURIAM: This case was first argued in this court November 3, 1960 when the petitioners, the International Organization of Masters, Mates & Pilots (hereinafter MMP), International Vice President Johnson, and MMP Local '47, asked us to review and set aside the Board’s cease and desist order which had outlawed a secondary boycott. Petitioners had been engaged in a dispute with the Shipping Federation of Canada over alleged discrimination in the hiring of American pilots on foreign-owned vessels operating on the Great Lakes. The Board had determined that MMP and its Local 47 as agent of MMP had picketed Federation vessels as they engaged in loading or unloading in American ports. The Board asked us to enforce its order. Deeming the record before us inadequate, we entered our order of December 20, 1960 remanding the case to the Board with the request that specific findings be made in certain respects. As of November 6, 1963, the Board renewed its prayer for enforcement based upon a Supplemental Decision. Once again, we insisted that the Board deal specifically with particulars we deemed essential. Under date of January 81» 1964, we entered an order requiring the Board to do so. (Infra, page 776.) Thereafter as of February 28, 1964, the Board transmitted its Second Supplemental Decision with respect to which we invited and the parties submitted detailed memoranda. Now, in light of the record as thus completed and after consideration of the contentions of the respective parties, we agree with the conclusion of the Trial Examiner, as adopted by the Board, that MMP is a “labor organization” within the meaning of sections 2(5) and 8(b) of the Act, as amended. Moreover we are satisfied that the Board could correctly find, as the General Counsel had charged, that Local 47, International Vice President Johnson and MMP, all petitioners herein, were intimately and jointly involved in the illegal secondary boycott. We are not persuaded that we should disturb the Board’s conclusion that Local 47 was an agent of MMP. Accordingly, the petition for enforcement will be granted, and the petition to review and set aside the Board’s order must be denied. The background for our determination had its origin in the General Counsel’s complaint against the petitioners that picketing activities on or near the docks in Chicago, Milwaukee and Cleveland were in violation of section 8(b) (4) (A) of the Act, as amended, 61 Stat. 141, 29 U.S.C. § 158(b) (4) (A) (1958), one of the “secondary boycott” provisions. The Trial Examiner, in his Intermediate Report, determined that petitioners’ activities in Cleveland violated section 8(b) (4) (A) but that in all other respects the complaint should be dismissed. In addition, the Examiner found that MMP was a “labor organization” within the meaning of sections 2 (5) and 8(b) of the Act, that the Board had no jurisdiction to decide whether petitioner Local 47 was a “labor organization” because the individual complaint filed in connection with the activities in Cleveland did not name it as a respondent, but that both Local 47 and petitioner Johnson were liable as “agents” within the meaning of sections 2(13) and 8(b) of the Act. The Board subsequently adopted the findings, conclusions, and recommendations of the Trial Examiner. It ordered the petitioners (1) to cease and desist from continuing the illegal boycott and (2) to take certain affirmative actions to effectuate the policies of the Act. In their petition to review, the petitioners did not contest the finding that their activities in Cleveland would constitute unfair labor practices if engaged in by a “labor organization.” Petitioners contended only that the Board had erroneously concluded that MMP was a “labor organization.” The Trial Examiner had recognized that “the unfair labor practices proscribed in section 8 (b) (4) (A) of the Act may be committed only by a ‘labor organization or its agents’ * * *.” He pointed out that the Act, in defining the term “labor organization,” laid down two tests as determinative. Petitioners had acknowledged that MMP existed for the purpose, in part, “of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” In addition the Examiner concluded, MMP was also an organization in which “employees” participated because: (1) petitioners had agreed that the members of MMP Local 3 (Associated Maritime Workers) were “employees” within the meaning of the Act; (2) the Board had found MMP to be a labor organization in Standard Oil Co., 121 N.L.R.B. 208 (1958), enforced sub nom Nat’l Marine Engineers Beneficial Ass’n v. NLRB, 274 F.2d 167 (2 Cir. 1960); (3) MMP had conceded in prior cases that it was a “labor organization”; and (4) the requirement that “employees” participate did not mean that the workers involved in the particular dispute before the Board had to be “employees” but, instead, meant that a union was a “labor organization” if the members of any local fitted the category of “employees.” Because of this conclusion, the Examiner found it unnecessary to determine whether the pilots themselves were “employees” within the meaning of section 2(5). The petitioners, on brief, contended here that the Examiner, and thus the Board, erred in deciding that MMP was a “labor organization.” They argued principally that MMP could not be held responsible for an unfair labor practice as a “labor organization” unless the pilots for whose benefit the secondary boycott had been effected were themselves “employees.” Again, it would be particularly unfair in this case to focus attention on the status of members of Local 3 because that local represented such a small percentage of the total MMP membership and was affiliated with MMP in only a limited capacity. In sum, petitioners would have it that MMP was a “labor organization” insofar as the activities of Local 3 were involved but not such an organization when operating on behalf of its other locals. Both the Board and the courts, moreover, had refused to extend to MMP the benefits of the Act when it was representing the interests of non-employee members. See Wilson Transit Co., 80 N.L.R.B. 1476 (1948); Wyandotte Transportation Co., 67 N.L.R.B. 930 (1946), enforcement granted, 162 F.2d 101 (6 Cir. 1947), only later to be denied on rehearing, 166 F.2d 434 (6 Cir. 1948), after the Taft-Hartley amendments had become effective. Finally, the “admissions” by MMP that it was a “labor organization” in such cases as J. W. Banta Towing Co., Inc., supra note 10, were not in fact admissions and, if they were, could not be relied on by the Board in the present context. See Nat’l Marine Engineers Beneficial Ass’n, etc. v. NLRB, 274 F.2d 167, 172 (2 Cir. 1960). After oral argument, we reached the conclusion that neither the petitioners nor the Board had been quite correct in their respective analyses of the issue as to whether MMP was a “labor organization.” It was clear enough that only a “labor organization or its agents” could be held liable for a violation of the secondary boycott provisions. Section 2(5) of the Act is also specific in requiring that a “labor organization” must be one in which “employees” participate. Although the term “employees” is broad, section 2(3) excludes certain classes of workers from this category, and the petitioners contended accordingly that pilots fell within the category of “independent contractors” or “supervisors.” Since the wrongful acts found by the Board to have been committed on the Cleveland docks were committed only by non-“employees,” MMP could not be a “labor organization” for the purpose of this case. We rejected this argument. In Di Giorgio Fruit Corp. v. NLRB, 89 U.S.App.D.C. 155, 191 F.2d 642, 28 A.L.R.2d 377, cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653 (1951), we held that the word “employees,” as used in section 2(5) to define “labor organization,” was not itself to be defined in its generic sense. It was to be given only the meaning attributed to it by section 2(3) when the question before the court was whether a given organization was subject to the restrictions of the secondary boycott provision. In that case we decided that a union local composed entirely of agricultural workers was not a “labor organization” because this class of workers was specifically excluded from the definition of “employees.” But that case was not controlling here. After all, the conclusion that a local which contained no “employees” was not a “labor organization” did not apply to an International which admittedly had some “employee” members. In Di Giorgio the statute by its own terms did not apply; here, assuming alternatives were open, we were necessarily forced to select the more appropriate construction in light of the purposes of the Act. In that approach, we were persuaded by the reasoning of the Second Circuit in Nat’l Marine Engineers Beneficial Ass’n v. NLRB, supra page 774, a case almost identical to our own and involving the same union. There the court held that the Board did not err in finding that MMP was a “labor organization” and, thus, could be guilty of unfair labor practices under sections 8(b) (4) (A) and (B). We agreed with Judge Friendly that the Board was warranted in looking to the entire membership of the union charged with a violation of the secondary boycott provision in determining whether or not that union was a “labor organization.” Nothing in the Act or its legislative history precluded such an interpretative approach. A local composed entirely of supervisors could not be a “labor organization,” as we have seen. But it is not inconsistent to hold the parent responsible as a “labor organization” if it be an organization in which “employees” otherwise have participated, despite the fact that the parent may have engaged in the illegal activities solely for the benefit of its non-“employee” local. It may well be, on the other hand, that a collective bargaining agreement entered into by MMP on behalf of Local 47 would not be within section 301 of the Taft-Hartley Act, 61 Stat. 156, 29 U.S.C. § 185 (1958), since that section deals only with “contracts between an employer and a labor organization representing employees * * (Emphasis added.) Such a construction of this language would seem to be eminently correct in the context of section 301. While there is language in A. H. Bull Steamship Co. v. National Marine Eng. Ben. Ass’n, 250 F.2d 332, 336 (2 Cir. 1957), approving this reading of section 301, the Second Circuit has since pointed out, United States v. National Marine Eng. Ben. Ass’n, 294 F.2d 385, 390 (2 Cir. 1961), that its earlier case did not decide this issue, the outcome there really having turned on the application of section 4 of the Norris-LaGuardia Act. In any event, the construction of section 301 has no necessary bearing on the present question whether MMP may be liable as a “labor organization.” Neither the language nor the legislative history of section 8(b) (4) (A) warrants reading in a requirement that a “labor organization” must act on behalf of “employee” members in order to violate the ban on secondary boycotts. There was thus no basis on which MMP might build an implied exception for itself if in fact it were a “labor organization.” So reasoning, we thought Bull Steamship, supra, of little relevance to the instant situation. But we could not accept the Board's position that any union was a “labor organization” as long as one of its members fell within the category of “employees.” Although we agreed with the Board that the members of Local 47 did not have to be “employees” in order to hold MMP as a “labor organization” for the purposes of this case, we were of the view that the Act required the substantial and meaningful participation of “employees” in order to constitute an organization a “labor organization” within the meaning of section 2(5). Since the Board had deemed it unnecessary to make findings of this nature, we adopted the suggestion made by counsel for the Board and remanded the case. So it was that in our order of December 20, I960, we directed the Board to review the entire case in light of the order and to make specific findings with respect to (1) whether the members of Local 47 included in substantial number or proportion persons who were “employees” and whether such “employees,” if any, participated in the Local and in MMP in a substantial and meaningful manner; and (2) whether the members of MMP included “employees” in such a relationship. The Board responded to our order in a Supplemental Decision of October 23, 1963 based on facts stipulated by the parties. Thus the record was caused to show and the Board accordingly found that there were approximately 170 “employees” in MMP, all members of Associated Maritime Workers’ locals (1%% of the total MMP membership); the relationship of these locals to the parent union could be determined by the provisions of the MMP constitution; except for 12 workers who were pilots, Local 47 contained no “employees”; and finally, it had been stipulated that the Board should decide the status of these 12 pilots. The Board found that the number of “employees” in the Associated Maritime Workers’ locals was not insubstantial in relation to the total membership of MMP and that the participation of these locals in MMP did not lack substance or meaning. It found it unnecessary to determine the status of the pilots because they numbered only one-tenth of one per cent of the total MMP membership and were, therefore, insubstantial. The Board concluded by urging on us, once again, approval of the broad rule it had adopted in its 1959 decision. When filing the Supplemental Decision with the court, the Board on November 6, 1963, renewed its petition for enforcement. The petitioners thereupon contended in their answer that the Board had not complied with our order in that it had failed to determine whether the pilots were “employees,” whether they represented a substantial proportion of Local 47, and whether they participated in the affairs of Local 47 in a substantial and meaningful manner. We agreed with the petitioners and again remanded by order of January 31, 1964 directing the Board to make additional findings in the required respects and to do sg within thirty days. In a Second Supplemental Decision entered on February 26, 1964, the Board, with two members dissenting, found that the pilots who were members of Local 47 at the times relevant to this proceeding were either “independent contractors” or “supervisors,” and were not “employees” within the meaning of the Act. The Board also found that if the pilots were “employees,” they comprised a substantial proportion of Local 47’s membership and participated in its affairs in a substantial and meaningful manner. Thus, finally we were in position to turn to the issues presented by the Board’s two Supplemental Decisions. First, we will now affirm the finding of the Board on the first remand that MMP is a “labor organization.” Even as we do so, we observe that this characterization of MMP as a “labor organization” means simply that that entity, as presently constituted, is such an organization for all purposes under the Act. In other words, the use of the term “labor organization” in any section of the Act must apply to MMP unless some further language of the section or its legislative history indicates a contrary result. There is ample evidence on the record to support its conclusion that the number or proportion of “employees” participating in MMP at the time of the activities in question was not insubstantial and that they participated in the parent union in a substantial and meaningful manner. Next, we must uphold the finding by the Board that the pilot-members of Local 47 are not “employees.” Neither party contests this finding, and it too finds support in the record and in other court cases. See, e. g., Local 28, Internat’l Organization of Masters, Mates & Pilots v. N. L. R. B., 116 U.S.App.D.C. 110, 321 F.2d 376 (1963). Finally, we turn to an issue (not raised by the petitioners until after the first Supplemental Decision) as to whether Local 47, with no “employee” members, may be held liable for a violation of section 8(b) (4) (A) as an “agent” of MMP. We answer affirmatively, as did the Board. It would be anomalous indeed to hold that MMP may be liable for the secondary boycott but that its picketing Local 47 though acting as its “agent,” may not be. See Nat’l Marine Engineers Beneficial Ass’n v. NLRB, supra page 774, 274 F.2d at 170-171. This conclusion in no way derogates from the position expressed in the Di Giorgio Fruit Corp. case, supra. We realized there that an expanded definition of the word “agent” could result in a virtual negation of the rule that a union with no “employees” was not subject to the secondary boycott provision. By the same token there may be many situations where an alleged joint venture or agency status is more apparent than real. Between such extremes it well may be that in cases which seem to fall within the instantly presented category, the Board should devise and apply a stricter doctrine of agency. Certainly to be avoided would be a rule which might seem without more, to bring all locals of this nature within the prohibitions of the Act involved here. Our record now presents no problem on any such score, for we are bound to note that here the petitioners have not contested the Board’s finding that, as a matter of fact, Local 47 and MMP were intimately and jointly involved in the illegal secondary boycott. That finding is in strict accordance with the teaching of the Court as to what constitutes an “agency”: “[W]hen any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them.” Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917). Absent a challenge to the Board’s finding on this final point, we are not now disposed to disturb the Board’s conclusion that Local 47 was an “agent” within the meaning of section 8(b). Petition for enforcement granted; petition for review denied. . See 24 LRRM 2624 (1960), notice of which was taken by the Supreme Court in Marine Engineers Beneficial Ass’n v. In-terlake S.S. Co., 370 U.S. 173, 178-185, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962). . See 144 N.L.R.B. 1172 (1963). . 146 N.L.R.B. 116 (1964). . The complaint dated May 23, 1958, had been lodged pursuant to charges brought by several stevedoring and warehouse companies. . 125 N.L.R.B. 113 (1959). . Local 47 covered the category of masters, mates, or pilots, whom petitioners alleged to be “supervisors” and thus not “employees” within the meaning of the statute. . 125 N.L.R.B. at 131. . Section 2(5) of the Act defines “labor organization” as “any organization of any kind * * * in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” . See, e. g., J. W. Banta Towing Co., Inc., 116 N.L.R.B. 1787 (1956), enforcement denied sub nom NLRB v. Nat’l Org. Masters, Mates & Pilots, 253 F.2d 66 (7 Cir. 1958). . The petitioners also argued that pilots were excluded because not employed by “employers,” as required by section 2(3). The basis of this argument was that “employers” should not be construed to mean “foreign employers.” For reasons which will be made clear later, we do not reach any of these contentions. . Prior decisions had already pointed in this direction. See, e. g., NLRB v. American Furnace Co., 158 F.2d 376 (7 Cir. 1946); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6 Cir. 1948), cert denied, Foreman’s Ass’n v. Edward G. Budd Mfg. Co., 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949). . We were, therefore, unable to dispose of the instant case in the manner open to Judge Friendly, who held that the Board’s decision on the “labor organization” issue there met the standards laid down in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), despite the Board’s mistaken reliance on certain evidentiary factors. In 274 F.2d at 175, indeed, he urged; “We earnestly suggest to the Board that the issue whether these two unions, whose activities concern almost every ocean and inland port of the United States, are ‘labor organizations’ witli-in the meaning of the National Labor Relations Act deserves more thorough treatment than it has had here.” . Even so, we confronted a real problem in appraising the weight to be given to the small percentage of MMP’s members who admittedly were “employees” and to the fact that these “employees” were termed “Associated Maritime Workers” and connected with the International in only a limited capacity. . Our order is set out at 24 LRRM 2624 (1960), and see note 1, supra. . 144 N.L.R.B. 1172 (1963). . 146 N.L.R.B. 116 (1964). . See 125 N.L.R.B. at 128-131. That the Supreme Court deems the Board to possess primary jurisdiction in resolving problems like this, see Marine Engineers Beneficial Ass’n v. Interlake S.S. Co., supra note 1, 370 U.S. at 180-182, 82 S.Ct. 1237.

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

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

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

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

William S. RUTLEDGE, Plaintiff-Appellant, v. ALUMINUM, BRICK AND CLAY WORKERS INTERNATIONAL UNION; Lawrence A. Holley, et al., Defendants-Appellees. No. 82-7001 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Aug. 2, 1982. George C. Longshore, Birmingham, Ala., for plaintiff-appellant. John C. Falkenberry, Birmingham, Ala., for defendants-appellees. Before GODBOLD, Chief Judge, JOHNSON and ANDERSON, Circuit Judges. GODBOLD, Chief Judge: Appellant appeals from the district court’s denial of his request for injunctive relief. We affirm. Rutledge was a regional director of the Southeastern states for the union. He attended a union convention in 1981 as a delegate from his local and during the convention campaigned actively for a presidential candidate who lost the election. The winner, appellee Holley, soon transferred Rutledge from his region to serve as regional director for the west coast. Rutledge alleges that Holley knew that his [Rutledge’s] life had been threatened by union members in Los Angeles previously. Rutledge refused the transfer and began picketing the union offices. Holley withdrew the transfer and fired him. Appellant claimed that appellees violated 29 U.S.C. §§ 411(a)(1) and (2), which guarantee union members the right to freely participate in elections and to express their views about candidates and union business, by transferring and then firing him. He also alleged that the union violated 29 U.S.C. § 411(a)(5) by discharging him without notice of the charges and a hearing. Finally, he contended that he was terminated without “just cause” as required by the union’s constitution. Rutledge asked for declaratory, equitable and injunctive relief and compensatory and punitive damages. After a hearing, the district court denied the request for injunctive relief on the ground that he had not established a likelihood of success on the merits, relying in part upon Wambles v. Teamsters, 488 F.2d 888 (5th Cir. 1974). Denial of a preliminary injunction lies within the discretion of the district court and is reviewable on appeal only for abuse of discretion. Dallas Cowboy Cheerleaders v. Scoreboard Posters, 600 F.2d 1184, 1187 (5th Cir. 1979). We find no abuse of discretion, particularly in light of Finnegan v. Leu, - U.S. -, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982), which recently resolved a conflict among circuits in favor of the position taken by the former Fifth Circuit in Wambles, supra. The Court held in Finnegan that 29 U.S.C. §§ 411(a)(1) and (2) do not prohibit a union president from choosing a staff loyal to him as long as the union status of those fired remains unaffected. The Court also observed that § 411(a)(5) does not require the union to give notice and a hearing before removing a union officer from his position. The section only applies to the suspension of union membership. - U.S. at -, 102 S.Ct. at 1871, 72 L.Ed.2d at 245. We agree with the district court that Rutledge is not likely to prevail on his claims after Finnegan. The district court’s finding that Rutledge’s membership in the union has not been revoked by his discharge is supported by the complaint and the evidence. See Record, Volume 1 and 2 and Volume 2 at 91-92. Also, the court’s preliminary conclusion that appellant’s picketing interfered with the union’s legal obligations to provide regional representation seriously enough to outweigh his right of free speech was within the court’s discretion. The denial of injunctive relief is AFFIRMED. . Finnegan v. Leu, supra, does not foreclose all claims of retaliatory discharge. See - U.S. at -, 102 S.Ct. at 1873, 72 L.Ed.2d at 247. However, the facts of this case so closely parallel those in Finnegan that Rutledge would have difficulty prevailing on his claims.

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?

Neftali PEREZ, Appellant, v. Everett JONES, Superintendent, Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Appellees. No. 743, Docket 90-2336. United States Court of Appeals, Second Circuit. Argued April 4, 1991. Decided June 5, 1991. Abraham L. Clott, New York City (The Legal Aid Society, Federal Defender Services Appeals Unit, New York City, of counsel), for appellant. Marc Frazier Scholl, Asst. Dist. Atty., New York County, N.Y. (Robert M. Mor-genthau, Dist. Atty., New York County, N.Y., Nancy J. Dunn, Asst. Dist. Atty., of counsel), for appellees. Before LUMBARD, WINTER and MINER, Circuit Judges. LUMBARD, Circuit Judge: Following remand from the Supreme Court, 490 U.S. 1033, 109 S.Ct. 1928, 104 L.Ed.2d 400, we again consider Neftalí Perez’s appeal from a dismissal by the Southern District of New York, John E. Sprizzo, Judge, of Perez’s petition for a writ of habeas corpus. Perez is imprisoned for his 1980 conviction, after a jury trial in New York County Supreme Court, of murder in the second degree. He was sentenced to 25 years to life imprisonment and is incarcerated in the Great Meadow Correctional Facility, where respondent Everett Jones is superintendent. Perez contends that during his trial he was denied due process of law when the prosecutor attempted to impeach the credibility of the only defense witness by asking repeated questions to which the witness invoked his fifth amendment right against self-incrimination. Perez also argues that the cross-examination violated his sixth amendment right to procure testimony. Because these claims lack merit, we affirm. Shortly before midnight on February 28, 1979, a man brandishing a gun entered the Dominican Social Club, at 502 Amsterdam Avenue in Manhattan. He ordered everyone to the floor, and demanded to see the owner, who was not present. When a drunk patron challenged the gunman, he was shot and killed. Seven other patrons were in the club at the time of the shooting; two of them subsequently identified Perez as the perpetrator. In addition, another person, Odalis Quilez, was watching the club from a window across the street. She claimed that she saw Perez argue with the club’s owner at about 10:30 p.m., return later, enter the club and leave, tucking a gun into his pants. At trial, Nelson Camacho was the only defense witness. Camacho testified that he was at the club at the time of the shooting, and that Perez was not involved in the shooting. Camacho also testified that he first met Perez two weeks before trial, when they were incarcerated at Rik-ers Island. The prosecutor cross-examined Camacho regarding the events of February 28. In an attempt to impeach Camacho’s credibility, the prosecutor also inquired about his employment, his living arrangements, and his gold jewelry. When Camacho testified that he had about $100 a week in spending money, the prosecutor asked, “Did you ever have any more money?” Defense counsel objected. Out of the hearing of the jury, the prosecutor explained to the court that he had information that Camacho had “more money” because he had recently been involved in two substantial drug sales, for which he had been indicted. Camacho allegedly possessed a weapon in one of these transactions. The prosecutor sought to use this information to impeach Camacho’s credibility. The defense objected that the questioning would raise self-incrimination issues and, consequently, Camacho’s attorney should be present. The court agreed, and adjourned the trial. The next day, accompanied by an attorney, Camacho returned to the stand. The prosecutor asked him 14 questions. To each, Camacho responded, “I respectfully refuse to testify on the grounds that the answer to this question may tend to incriminate me or degrade me.” The questions were as follows: Mr. Camacho, I believe you said yesterday that you reside with your mother, is that right? Mr. Camacho, is your telephone # 873-5318? Mr. Camacho, is your mother’s name Antonia Camacho? Mr. Camacho, isn’t it accurate that your mother doesn’t live at 147 West 83 Street but that she actually resides at 509 Amsterdam Avenue? Mr. Camacho, isn’t it true that the telephone number that I read before, 873-5318 is registered to Antonia Camacho, your mother, at 509 Amsterdam? Mr. Camacho, have you ever been at the address, 160 West 84 St.? Mr. Camacho, isn’t it accurate that on March 18, 1980, just a few weeks ago, you were at — 160 West 84 St — in a third floor apartment in that building? Is it accurate that you were there at that address on that date with individuals by the names of Shorty and Pete? Mr. Camacho, isn’t it accurate that you and this individual, other individual, Shorty, had a gun that was kept in that apartment on that date in a speaker box under a table? It was only after these nine questions that defense counsel objected. He stated: Your Honor, with respect to this new development, where the [witness] is invoking the fifth amendment, I respectfully request that he be granted immunity to avoid prejudice to [the defendant’s] case by the continued questions that are being put to him in front of the jury from which certain inferences, unfavorable to the defendant, may be drawn since he was called as a witness for the defense. The court and counsel discussed whether the court would have the authority to grant immunity under these circumstances, as the witness was called by the defense and the impeachment concerned events unrelated to the current trial. The court determined that, even if it had such authority, it would not compel the grant of immunity. Neither the prosecutor nor the defense challenged the basis for Camacho’s invocation of the privilege; neither requested that the judge instruct the jury about the use of the testimonial privilege. Thereafter, the prosecutor asked the following questions, which Camacho again refused to answer. Mr. Camacho, isn’t it accurate on the date that I mentioned, March 18, 1980 in the apartment that I mentioned at 160 West 84 St. that you sold almost three ounces of cocaine for $4,200? Mr. Camacho, I direct your attention to March 24, 1980 just a few weeks ago, were you in the same third floor apartment at 160 West 84 St.? And were you not there with a fellow by the name of Pete again? And isn’t it accurate that you sold a quantity of cocaine for about $350 on that date in that apartment to the same person you had sold cocaine just a few days before? Did you indicate that you would be able to supply a half-a-pound of cocaine at a later date for about $14,000? After this question, defense counsel approached the bench. He moved for a mistrial, arguing that the prosecutor’s questions were very prejudicial to the credibility of Camacho, destroyed his value as a defense witness, and that, as a consequence, Perez was being denied a fair trial. The court denied the motion. The prosecutor asked one final question: Mr. Camacho, I direct your attention to January 24, 1980 on that date did you possess a quantity of narcotics and did you possess a quantity of stolen property on that date? On redirect, defense counsel made one inquiry: Is it fair to say that early this month, April, that on Rikers Island you heard some talk about this case. The witness again responded by invoking his fifth amendment privilege. Defense counsel indicated that he would ask no further questions because he believed that the witness would refuse to answer them for the same reason. In his petition, Perez contends that the prosecutor’s continued questioning after Camacho’s invocation of the fifth amendment improperly undermined the witness’ credibility, thereby violating his sixth amendment right to procure testimony and his fourteenth amendment right to due process of law. Perez first argues that the prosecutor’s cross-examination of Camacho was designed solely to elicit an invocation of the fifth amendment from Camacho and was, therefore, an improper means to impeach his credibility. He contends that the court should have prevented the prosecutor from so questioning Camacho and that the error denied him due process of law. We disagree. A witness’ invocation of his fifth amendment privilege may deny a defendant due process of law when the prosecutor commits misconduct by making a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege and when, in the circumstances of a given case, inferences from a witness’ refusal to answer adds critical weight to the prosecution’s case. See Rado v. Connecticut, 607 F.2d 572, 581 (2d Cir.1979) (citing Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963)), cert. denied, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980); see also United States v. Casamento, 887 F.2d 1141, 1186 (2d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). Here, the prosecutor did not make a conscious and flagrant attempt to build its case out of inferences arising from Camacho’s assertion of the testimonial privilege. Camacho was a defense witness. The prosecutor cross-examined Camacho about the events of February 28, then attempted to impeach his credibility with specific instances of misconduct, in accordance with Fed.R.Evid. 608(b). The first five of these questions concerned Camacho’s background, and there is no reason to believe that the prosecutor knew that Camacho would invoke the fifth amendment. Indeed, Camacho had answered similar questions during his first day of testimony, before his attorney was present. The remaining nine questions concerned events wholly unrelated to the crime for which Perez was charged. As such, inferences drawn from Camacho’s invocation of the privilege could not have been used to build the state’s case-in-chief against Perez. Nor can it be said that inferences from Camacho's refusal to answer added critical weight to the state's case. Three government witnesses had identified Perez as the perpetrator of the shooting. In addition, defense counsel raised no objection to the cross-examination until the prosecutor had already asked 9 of the 14 questions. At that time, defense counsel only requested that Camacho be granted immunity, so that he could respond to the questions without the possibility of self-incrimination. Defense counsel did not challenge the witness’ invocation of the fifth amendment, object to the questioning itself, or request that the court instruct the jury regarding the testimonial privilege. After the thirteenth question, defense counsel moved for a mistrial, claiming Perez was denied a fair trial because the prosecutor’s questions “are very prejudicial to the credibility of the witness and destroying his value as a witness.” Under these circumstances, we find that the cross-exam-¡nation of Camacho did not deny Perez due process of law. Relying on United States v. Pardo, 636 F.2d 535, 542-46 (D.C.Cir.1980), Perez also claims that the improper impeachment of Camacho violated his sixth amendment right to procure testimony because it rendered Camacho useless as a witness. In Pardo, the D.C. Court of Appeals found that the trial court erred in not compelling a witness, who had invoked his right against self-incrimination, to testify. 636 F.2d at 546. This witness was a defendant who had pleaded guilty to the offenses charged. Id. at 537. His co-defendants sought to have him testify as to the events relating to the charges; they agreed not to inquire into other matters for which the defendant might still have a fifth amendment right. Id. at 544. Because the defendant faced no further threat of incrimination for the matters for which he would testify, the appellate court determined that there was no conflict between his fifth amendment right and his co-defendants’ right to procure testimony. Id. at 544-45. The court, therefore, reversed the convictions of the co-defendants who sought to use the testimony. Id. at 545. Unlike the defendant in Pardo, Perez was not prevented from obtaining the direct testimony of Camacho on issues relating to the February 28 shooting. Rather, Camacho was a defense witness who testified freely on direct examination by Perez’s counsel; he invoked the fifth amendment only when he was cross-examined, regarding issues unrelated to the crime for which Perez was charged. The prosecutor asked these questions in an attempt to impeach Camacho’s credibility. Although Camacho also invoked the privilege in response to defense counsel’s first question on redirect, defense counsel did not object; he simply stated that because he believed that the witness would refuse to answer, he would ask no further questions. Perez did introduce Camacho’s testimony; he was not prevented from procuring it. We also find no merit in Perez’s contention that the prosecutor’s cross-examination of Camacho violated his sixth amendment right to procure testimony. Affirmed. . Perez filed his petition in 1986, which was dismissed on the grounds of state procedural default. This court denied Perez a certificate of probable cause, but the Supreme Court granted his pro se petition for a writ of certiorari. On April 24, 1989, the Supreme Court vacated the order denying the certificate of probable cause and remanded the case to this court for further consideration in light of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (holding that procedural default does not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar). This court remanded the action to Judge Sprizzo, who considered the petition's merits and dismissed it in a July 16, 1990 order. . In reaching the merits of this appeal, we reject the government's contention that Perez’s claim is procedurally infirm. The government argues that although Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) does not preclude us from reaching the merits of this appeal, it does not compel us to do so. Assuming, arguendo, that we have such authority, we decline the government’s invitation. Second, because Perez does not seek to establish a "new rule” of federal constitutional law, his claim is not precluded by Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), and Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).

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

Marion F. TURNAGE, Robert Gardner, Carey Hightower, Richard Vereen, James Jacobs, Henderson Shaw, and the Home Indemnity Company, Appellants, v. NORTHERN VIRGINIA STEEL CORPORATION, Appellee. No. 9249. United States Court of Appeals Fourth Circuit. Argued Jan. 24, 1964. Decided Sept. 21, 1964. Andrew B. Ferrari, Arlington, Va. (Robert C. Heeney, Rockville, Md., on brief), for appellants. Oren R. Lewis, Jr., Arlington, Va. (Tolbert, Lewis & FitzGerald, Arlington, Va., on brief), for appellee. Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges. BOREMAN, Circuit Judge. The sole issue on this appeal involves interpretation and application of the Virginia Workmen’s Compensation Act. Plaintiffs are six employees of William Seltzer, a cement finisher, who were injured when the first floor of an apartment building on which they were working collapsed, and Home Indemnity Company. The apartment building, in Arlington, Virginia, known as the Dor-chester Towers, was being constructed by Reinseh Construction Company, its owner, as general contractor. Since Reinseh Construction Company had only a few supervisory employees in its service, the construction work was performed primarily by subcontractors. Reinseh Construction Company contracted with architects Sheridan & Behm to design the building; with Fortune Engineering Associates to prepare the structural design; with Northern Virginia Steel Corporation to fabricate and supply the structural steel, steeltex and steel joists; with Monitor Construction Company to erect the steel; with Parker Construction Company to install the steeltex; with William Seltzer to pour and finish the concrete flooring; and with several other concerns to perform additional construction work. The accident giving rise to plaintiffs’ claims for relief was allegedly caused by the negligence of the defendant, Northern Virginia Steel Corporation, in supplying defective steel bar joists and other steel products for use in the building. Home Indemnity Company, as William Seltzer’s workmen’s compensation insurance carrier, has paid workmen’s compensation benefits and medical expenses to the individual plaintiffs and death benefits to the personal representative of another of Seltzer’s employees who was killed in the accident; it bases its claim for relief upon its subrogation rights to the extent of the payments. In its answer Northern Virginia Steel Corporation denied that it was negligent in fabricating the steel and asserted further that the action against it was barred by certain provisions of the Virginia Workmen’s Compensation Act. The issue as to Northern Virginia’s status under the Act was tried separately. The District Court determined that Northern Virginia was engaged in the business of the owner-builder, Reinsch Construction Company, and, therefore, was under the canopy of the Act and immune from suit at common law. Accordingly, it dismissed the action and plaintiffs appealed. We think the judgment of the District Court was compelled by the Virginia Workmen’s Compensation Act, as interpreted by the Supreme Court of Appeals of Virginia, and should be affirmed. Several provisions of that Act are relevant here. Section 65-37 (Va.Code Ann. § 65-37, Miehie 1950) provides in essence that the rights and remedies granted an employee under the Act shall exclude all others. Although that section’s prohibition of other remedies is in terms absolute, an exception thereto is created by section 65-38 which, in pertinent part, provides: “ * * * The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured employee or his personal representative, the legal liability of such other party. * * * ” (Emphasis added.) Under section 65-38 any amount collected by the employer in excess of the amount which he has paid or for which he is liable is held for the benefit of the injured employee. The effect of section 65-38, as construed by the Virginia Supreme Court of Appeals, is to preserve, subject to the subrogation rights of the employer, the injured employee’s common-law right of action against any “other party.” The term “other party” is nowhere defined in the Act but section 65-99, in addition to requiring the employer to maintain insurance for the payment of compensation, provides that “[wjhile such insurance remains in force he or those conducting his business shall only be liable to an employee for personal injury or death by accident to the extent and in the manner herein specified.” (Emphasis added.) Interpreting section 65-38 (then section 12) in accordance with the language of section 65-99 (then section 11) and considering “the theory, the history and the broad purpose of the act,” the Virginia Supreme Court of Appeals in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, 76 (1946), held that the term “any other party” refers exclusively “to those persons who are strangers to the employment and the work, and does not include those who have accepted the act and are within the express terms of section 11— 'he (employer) or those conducting his business.’ ” In addition to the sections mentioned, sections 65-26, 65-27 and 65-28 of the Act are particularly pertinent here. Essentially, these sections provide (1) that an owner who contracts with any other person to perform work which is a part of his trade, business or occupation shall be liable under the Act to all employees engaged in the work as if they were employed directly by him; and (2) that a contractor who contracts to perform work for another person (for example, the owner) which work is not a part of such other person’s trade, business or occupation, shall be liable under the Act to all employees engaged in such work. As explained in Sykes v. Stone & Webster Engineering Corporation, 186 Va. 116, 41 S.E.2d 469 (1947), the purpose of these sections is “to bring within the operation of the Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employe engaged in that work every such owner, or contractor, and subcontractor, above such employe. But when the employe reaches an employer in the ascending scale, of whose trade, business or occupation the work being performed by the employe is not a part, then that employer is not liable to that employe for compensation under section 20(a) [now §§ 65-26 to 65-29]. At that point paragraph 5 of section 12 intervenes and the employe’s right of action at common law is preserved.” Id. at 41 S.E.2d 472. Stated another way, the effect of sections 65-26 to 65-29 in the specified circumstances is to render the owner or contractor the statutory employer of all employees engaged in the work. Thus, the owner is not only liable under the Act to all employees engaged in work which is part of his trade, business or occupation, regardless of how far removed they may be from contractual relationship with him, but in accordance with sections 65-37 and 65-99 he is immune from suit at common law by such employees. Moreover, under section 65-99 those persons conducting the business of the owner or contractor who is made a statutory employer are likewise protected from actions for damages brought by such employees. As this court recently emphasized in Bristow v. Safway Steel Products, 327 F.2d 608 (1964), it is the aim of the Virginia Workmen’s Compensation Act, as interpreted by that state's highest court, that the financial risk of accidental personal injuries inherent in any project be borne by and limited to that project to the extent specified therein. Consequently, where a project is undertaken either by an owner as part of his trade, business or occupation or by a general contractor, the responsibility in damages of any party to a workman injured in the project must be tested with reference to his relationship to the overall project. If the defendant was engaged in work which was part of the undertaking of the owner or general contractor, regardless of his relationship to the injured workman and his immediate employer, the sections previously mentioned operate to place the economic loss upon the project and to limit the workman’s recovery to that specified in the Act. On the other hand, where the injury was caused by the negligence of one not engaged in the over-all undertaking-,, a “stranger to the business,” it is not an accident inherent in the project, the- eost of which should ultimately be borne by the project, and the injured workman’s rights and remedies outside of the statute are preserved. In the instant case it is undisputed that the construction of the apartment building was a part of the business of Reinsch Construction Company as owner and general contractor. The injured workmen who were working as cement finishers and helpers in the employ of a subcontractor, William Seltzer, at the time of the accident were unquestionably engaged in the work undertaken by Reinsch Construction Company and under sections 65-26 to 65-29 became its statutory employees. The crucial inquiry is whether the defendant, Northern Virginia Steel Corporation, was also engaged in the work of Reinsch Construction Company. Plaintiffs take the position that Northern Virginia was a mere supplier of steel and, as such, was not engaged in the business of Reinsch Construction Company. We think this position is untenable. The evidence disclosed that the activities of Northern Virginia in connection with the construction project went far beyond the mere fabrication and supplying of steel. In the latter part of 1959 Northern Virginia contracted with Reinsch Construction Company to fabricate the structural steel, steel bar joists and steeltex for use in the project. The quantity, size and tensile strength of the steel required was determined from the preliminary drawings prepared by the structural engineer, George Fortune, and a tentative price, covering only the fabrication of steel, was agreed upon. The steel joists had to be custom built, that is, they had to be fabricated to meet the requirements of the particular project. Northern Virginia designed the joists and prepared erection drawings which, in detail, went significantly beyond the basic structural plan prepared by the structural engineer. Perhaps the activities of Northern Virginia to that point were consistent with plaintiffs’ characterization of it as a mere supplier. However, its activities did not stop there. Employees of Northern Virginia were required to visit the job site on a number of occasions in order to make field measurements, a task which the evidence indicated is by trade-custom and practice the responsibility of the owner or general contractor. Furthermore, the evidence disclosed that Emerson G. Reinsch, the owner and manager of Reinsch Construction Company, decided to make a number of changes in the design and structure of the building as the work progressed. These changes, which included the substitution of masonry walls for the concrete walls originally planned, changes in the size of individual apartments and the addition of a putting green on the roof, required Northern Virginia to make extensive alterations in the erection drawings and in the design of the structural steel and steel joists. Additionally, because of errors committed by other building trades engaged in the construction, employees of Northern Virginia visited the job site on a number of occasions to there make alterations in the steel. On one occasion, for example, due to irregularities in the masonry walls, a crew of Northern Virginia employees was required to cut and shorten some two hundred steel joists on the job site. On other occasions crews of Northern Virginia employees visited the job site to alter a balcony frame and to work on steel canopies, cutting and welding steel. The record also indicates that Northern Virginia was frequently called upon by Reinsch and his superintendents for construction and engineering advice. Clarence Roberts, chief engineer for Northern Virginia, testified that he visited the job site at least twice a week and frequently was consulted by Reinsch and the job superintendents about construction problems. James Baxter, Northern Virginia’s vice president, testified that he and Roberts were frequently called to the job site in connection with various problems of construction, once to offer advice as to how chairs could be anchored to the floors of the apartments to keep them from being stolen. The record also indicates that Northern Virginia employees were subject to a significant amount of supervision by Reinsch and his superintendents and felt compelled to comply with their directives. The final price received by Northern Virginia included, in addition to the price of the fabrication of steel, charges for alterations, sex-vices in the field and construction advice. Manifestly, the total picture suggested by these recited circumstances is not that of a mere fabricator or supplier of steel. In support of their position, plaintiffs rely principally upon Garrett v. Tubular Products, Incorporated, 176 F.Supp. 101 (E.D.Va.1959), a case decided by the same District Judge who decided the case below. Involved in that case was an action brought by an employee of one of the subcontractors engaged in work in connection with the construction of a parking garage who was injured during the unloading of steel columns to be used in the construction. The defendants were Tubular Products, Incorporated, the fabricator of the steel columns, and its employee, Jett, whose negligence allegedly caused the plaintiff’s injury. On a motion for summary judgment, the court held that the defendants were “other parties” within the meaning of section 65-38 of the Compensation Act and, therefore, amenable to suit at common-law. A mere reading of the Garrett case discloses that it is readily distinguishable from the case here. There, the defendant Tubular was in fact a mere supplier of steel. In the circumstances here, we think the conclusion is inescapable that Northern Virginia, unlike Tubular, was directly concerned with and actively engaged in the construction of the Dorchester Towers project. Unlike a mere supplier, it did not simply fill an order for a product. On the contrary, the work of Northern Virginia, like that of other contractors engaged in the project, was closely related to and dependent upon the work of the other trades and when changes in the steel wex-e required, either by modifications in design or errors of other trades, it went to the job site and made them. By performing such work which was the responsibility of the general contractor, by giving advice relative to various construction problems and by working generally under Reinsch’s supervision, Northern Virginia was conducting the business of Reinsch Constx-uction Company. In Doane v. E. I. du Pont de Nemours & Co., 209 F.2d 921, 926 (1954), this couxrt concluded that the purpose of the Virginia Workmen’s Compensation Act is “to limit the recovery of all persons engaged in the business under consideration to compensation under the act, and to deny an injured person the right of recovery against any other person unless he be a stranger to the business.” We adhere to that conclusion. Northern Virginia was not a stranger to the business ; it is within the coverage of the Act and immune from suit at common law. Accox-dingly, the judgment of the District Court is Affirmed. . Va.Code Arm. § 65-1 to § 65-128 (Michie 1950). . The architects who designed the building, Sheridan & Behm, and the structural engineer, Fortune Engineering Associates, were originally joined as defendants but at the conclusion of the evidence plaintiffs took a voluntary nonsuit as to them. . Provision for the subrogation of an insurance carrier to the rights of an employer is made by Va.Code Ann. § 65-108 (Miehie 1950) which in pertinent part provides: “When any employer is insured against liability for compensation with any insurance carrier, and such insurance carrier shall have paid any compensation for which the employer is liable or shall have assumed the liability of the employer therefor, it shall be subrogated to all the rights and duties of the employer and may enforce any such rights in its own name or in the name of the injured employee or bis or ber personal representative; * * . Section 65-37 is set forth below: “The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.” As originally enacted, the Compensation Act contained no equivalent of the present § 65-38, and the above section was construed literally to bar common-law actions by an injured employee against any person. See Sykes v. Stone & Webster Engineering Corporation, 186 Va. 116, 41 S.E.2d 469, 471 (1947). . See, e.g., Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37 (1957); Sykes v. Stone & Webster Engineering Corporation, supra note 4; Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946). . Va.Code Ann. § 65-26 (Michie 1950) provides: “When any person (in tbis section and §§ 65-28 and 65-29 referred to as ‘owner’) undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 65-28 to 65-31 referred to as ‘sub-contractor’) for the execution or performance by or under such sub-contractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by him.” Va.Code Ann. § 65-27 (Michie 1950) provides : “When any person (in this and the four succeeding sections referred to as ‘contractor’) contracts to perform or execute any work for another person which work or undertaking is not a part of the trade, business or occupation of such other person and contracts with any other person (in this section and §§ 65-28, 65-29, 65-30 and 65-31 referred to as ‘sub-contractor’) for the execution or performance by or under the sub-contractor of the whole or any part of the work undertaken by such contractor, then the contractor shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him.” Va.Code Ann. § 65-28 (Michie 1950) states: “When the sub-contractor in turn contracts with still another person (in this section and §§ 65-29, 65-30 and 65-31 also referred to as ‘sub-contractor’) for the performance or execution by or under such last sub-contractor of the whole or any part of the work undertaken by the first sub-contractor, then the liability of the owner or contractor shall be the same as the liability imposed by the two preceding sections.” . Paragraph 5 of section 12 mentioned in the Sykes ease is now Va.Code Ann. § 65-5 (Michie 1950) which states that “[n]othing in this Act contained shall be construed to make, for the purposes of this Act, the employees of an independent contractor the employees of the person or corporation employing or contracting with such independent contractor.” . Home Indemnity Company of New York v. Poladian, 270 F.2d 156 (4 Cir. 1959) ; Anderson v. Thorington Construction Company, 201 Va. 266, 110 S.E.2d 396 (1959). . See, e.g., Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369 (1962); Anderson v. Thorington Construction Company, 201 Va. 266, 110 S.E.2d 396 (1959). . Applying the test above suggested, this court and the Supreme Court of Appeals of Virginia have held that an employee could not sue his fellow servant for injuries sustained in the course of his work (Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582 (1963); Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946)); that the employee of a subcontractor engaged in the work of the general contractor could not sue the general contractor (Sykes v. Stone & Webster Engineering Corporation, 186 Va. 116, 41 S.E.2d 469 (1947)); that an employee of a general contractor could not sue a subcontractor engaged in the general contractor’s work (Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957)); that an employee of the owner could not sue subcontractors engaged in the owner’s business (Doane v. E. I. du Pont de Nemours & Co., 209 F.2d 921 (4 Cir. 1954); Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369 (1962); Williams v. E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959)); and that the employee of one independent contractor engaged in the business of the owner could not sue another independent contractor engaged in that business (Anderson v. Thorington Construction Company, 201 Va. 266, 110 S.E.2d 396 (1959)). On the other hand, this court has held that the employee of a subcontractor engaged in work which was not a part of the trade, business or occupation of the owner could maintain an action for damages against the owner. Sears, Roebuck & Co. v. Wallace, 172 F.2d 802 (4 Cir. 1949). Similarly, where the work being performed was not a part of the owner’s trade, business or occupation and there was no general contractor, Virginia’s highest court held that the employee of one independent contractor engaged in the work could sue _ another independent contractor. Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37 (1957).

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

DECK v. MISSOURI No. 04-5293. Argued March 1, 2005 Decided May 23, 2005 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 635. Rosemary E. Percival argued the cause and filed briefs for petitioner. Cheryl Caponegro Nield, Assistant Attorney General of Missouri, argued the cause for respondent. With her on the briefs were Jeremiah W. (Jay) Nixon, Attorney General, James R. Layton, State Solicitor, and Evan J. Buchheim, Assistant Attorney General. A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Ward A. Campbell, Supervising Deputy Attorney General, and Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, by John W. Suthers, Interim Attorney General of Colorado, and by the Attorneys General for their respective States as follows: Troy King of Alabama, M. Jane Brady of Delaware, Steve Carter of Indiana, Jim Hood of Mississippi, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Rob McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming. Thomas H. Speedy Rice filed a brief for the Bar Human Rights Committee of England and Wales et al. as amici curiae. Justice Breyer delivered the opinion of the Court. We here consider whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is “justified by an essential state interest” — such as the interest in courtroom security — specific to the defendant on trial. Holbrook v. Flynn, 475 U. S. 560, 568-569 (1986); see also Illinois v. Allen, 397 U. S. 337, 343-344 (1970). I In July 1996, petitioner Carman Deck robbed, shot, and killed an elderly couple. In 1998, the State of Missouri tried Deck for the murders and the robbery. At trial, state authorities required Deck to wear leg braces that apparently were not visible to the jury. App. 5; Tr. of Oral Arg. 21, 25, 29. Deck was convicted and sentenced to death. The State Supreme Court upheld Deck’s conviction but set aside the sentence. 68 S. W. 3d 418, 432 (2002) (en banc). The State then held a new sentencing proceeding.- From the first day of the new proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. App. 58. Before the jury voir dire began, Deck’s counsel objected to the shackles. The objection was overruled. Ibid.; see also id., at 41-55. During the voir dire, Deck’s counsel renewed the objection. The objection was again overruled, the court stating that Deck “has been convicted and will remain in legirons and a belly chain.” Id., at 58. After the voir dire, Deck’s counsel once again objected, moving to strike the jury panel “because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is . . . violent today.” Id., at 58-59. The objection was again overruled, the court stating that his “being shackled takes any fear out of their minds.” Id., at 59. The penalty phase then proceeded with Deck in shackles. Deck was again sentenced to death. 136 S. W. 3d 481, 485 (Mo. 2004) (en banc). On appeal, Deck claimed that his shackling violated both Missouri law and the Federal Constitution. The Missouri Supreme Court rejected these claims, writing that there was “no record of the extent of the jury’s awareness of the restraints”; there was no “claim that the restraints impeded” Deck “from participating in the proceedings”; and there was “evidence” of “a risk” that Deck “might flee in that he was a repeat offender” who may have “killed his two victims to avoid being returned to custody.” Ibid. Thus, there was “sufficient evidence in the record to support the trial court’s exercise of its discretion” to require shackles, and in any event Deck “has not demonstrated that the outcome of his trial was prejudiced. . . . Neither being viewed in shackles by the venire panel prior to trial, nor being viewed while restrained throughout the entire trial, alone, is proof of prejudice.” Ibid. The court rejected Deck’s other claims of error and affirmed the sentence. We granted certiorari to review Deck’s claim that his shackling violated the Federal Constitution. II We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need. This rule has deep roots in the common law. In the 18th century, Blackstone wrote that “it is laid down in our antient books, that, though under an indictment of the highest nature,” a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 (“If felons come in judgement to answer,. . . they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will”). Blackstone and other English authorities recognized that the rule did not apply at “the time of arraignment,” or like proceedings before the judge. Blackstone, supra, at 317; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K. B. 1722). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) (“[B]eing put upon his trial, the Court immediately ordered [the defendant’s] fetters to be knocked off”). American courts have traditionally followed Blackstone’s “ancient” English rule, while making clear that “in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained.” 1 J. Bishop, New Criminal Procedure §955, p. 578 (4th ed. 1895); see also id., at 572-573 (“[O]ne at the trial should have the unrestrained use of his reason, and all advantages, to clear his innocence. Our American courts adhere pretty closely to this doctrine” (internal quotation marks omitted)); State v. Roberts, 86 N. J. Super. 159, 163-165, 206 A. 2d 200, 203 (App. Div. 1965); French v. State, 377 P. 2d 501, 502-504 (Okla. Crim. App. 1962); Eaddy v. People, 115 Colo. 488, 490, 174 P. 2d 717, 718 (1946) (en banc); State v. McKay, 63 Nev. 118, 153-158, 165 P. 2d 389, 405-406 (1946); Blaine v. United States, 136 F. 2d 284, 285 (CADC 1943) (per curiam); Blair v. Commonwealth, 171 Ky. 319, 327-329, 188 S. W. 390, 393 (App. 1916); Hauser v. People, 210 Ill. 253, 264-267, 71 N. E. 416, 421 (1904); Parker v. Territory, 5 Ariz. 283, 287, 52 P. 361, 363 (1898); State v. Williams, 18 Wash. 47, 48-50, 50 P. 580, 581 (1897); Rainey v. State, 20 Tex. App. 455, 472-473 (1886) (opinion of White, P. J.); State v. Smith, 11 Ore. 205, 8 P. 343 (1883); Poe v. State, 78 Tenn. 673, 674-678 (1882); State v. Kring, 64 Mo. 591, 592 (1877); People v. Harrington, 42 Cal. 165, 167 (1871); see also F. Wharton, Criminal Pleading and Practice § 540a, p. 369 (8th ed. 1880); 12 Cyclopedia of Law and Procedure 529 (1904). While these earlier courts disagreed about the degree of discretion to be afforded trial judges, see post, at 643-648 (Thomas, J., dissenting), they settled virtually without exception on a basic rule embodying notions of fundamental fairness: Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. More recently, this Court has suggested that a version of this rule forms part of the Fifth and Fourteenth Amendments’ due process guarantee. Thirty-five years ago, when considering the trial of an unusually obstreperous criminal defendant, the Court held that the Constitution sometimes permitted special measures, including physical restraints. Allen, 397 U. S., at 343-344. The Court wrote that “binding and gagging might possibly be the fairest and most reasonable way to handle” such a defendant. Id., at 344. But the Court immediately added that “even to contemplate such a technique ... arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Ibid. Sixteen years later, the Court considered a special courtroom security arrangement that involved having uniformed security personnel sit in the first row of the courtroom’s spectator section. The Court held that the Constitution allowed the arrangement, stating that the deployment of security personnel during trial is not “the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial.” Holbrook, 475 U. S., at 568-569. See also Estelle v. Williams, 425 U. S. 501, 503, 505 (1976) (making a defendant appear in prison garb poses such a threat to the “fairness of the factfinding process” that it must be justified by an “essential state policy”). Lower courts have treated these statements as setting forth a constitutional standard that embodies Blackstone’s rule. Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. See, e. g., Dyas v. Poole, 309 F. 3d 586, 588-589 (CA9 2002) (per curiam); Harrell v. Israel, 672 F. 2d 632, 635 (CA7 1982) (per curiam); State v. Herrick, 324 Mont. 76, 78-82, 101 P. 3d 755, 757-759 (2004); Hill v. Commonwealth, 125 S. W. 3d 221, 233-234 (Ky. 2004); State v. Turner, 143 Wash. 2d 715, 723-727, 23 P. 3d 499, 504-505 (2001) (en banc); Myers v. State, 2000 OK CR 25, ¶ 19, 17 P. 3d 1021, 1033; State v. Shoen, 598 N. W. 2d 370, 374-377 (Minn. 1999); Lovell v. State, 347 Md. 623, 635-645, 702 A. 2d 261, 268-272 (1997); People v. Jackson, 14 Cal. App. 4th 1818, 1822-1830, 18 Cal. Rptr. 2d 586, 588-594 (1993); Cooks v. State, 844 S. W. 2d 697, 722 (Tex. Crim. App. 1992) (en banc); State v. Tweedy, 219 Conn. 489, 504-508, 594 A. 2d 906, 914-915 (1991); State v. Crawford, 99 Idaho 87, 93-98, 577 P. 2d 1135, 1141-1146 (1978); People v. Brown, 45 Ill. App. 3d 24, 26-28, 358 N. E. 2d 1362, 1363-1364 (1977); State v. Tolley, 290 N. C. 349, 362-371, 226 S. E. 2d 353, 365-369 (1976); see also 21A Am. Jur. 2d, Criminal Law §§ 1016,1019 (1998); see generally Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U. L. J. 351 (1970-1971); ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp. 188-191 (3d ed. 1996). Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle. They have emphasized the importance of preserving trial court discretion (reversing only in cases of clear abuse), but they have applied the limits on that discretion described in Holbrook, Allen, and the early English cases. In light of this precedent, and of a lower court consensus disapproving routine shackling dating back to the 19th century, it is clear that this Court’s prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements identify a basic element of the “due process of law” protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such-a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial. III We here consider shackling not during the guilt phase of an ordinary criminal trial, but during the punishment phase of a capital case. And we must decide whether that change of circumstance makes a constitutional difference. To do so, we examine the reasons that motivate the guilt-phase constitutional rule and determine whether they apply with similar force in this context. A Judicial hostility to shackling may once primarily have reflected concern for the suffering — the “tortures” and “torments” — that “very painful” chains could cause. Krauskopf, supra, at 351, 353 (internal quotation marks omitted); see also Riggins v. Nevada, 504 U. S. 127, 154, n. 4 (1992) (Thomas, J., dissenting) (citing English cases curbing the use of restraints). More recently, this Court’s opinions have not stressed the need to prevent physical suffering (for not all modern physical restraints are painful). Instead they have emphasized the importance of giving effect to three fundamental legal principles. First, the criminal process presumes that the defendant is innocent until proved guilty. Coffin v. United States, 156 U. S. 432, 453 (1895) (presumption of innocence “lies at the foundation óf the administration of our criminal law”). Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. Cf. Estelle, supra, at 503. It suggests to the jury that the justice system itself sees a “need to separate a defendant from the community at large.” Holbrook, supra, at 569; cf. State v. Roberts, 86 N. J. Super., at 162, 206 A. 2d, at 202 (“[A] defendant ‘ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach . . . unless there be some Danger of a Rescous [rescue] or Escape’ ” (quoting 2 W. Hawkins, Pleas of the Crown, ch. 28, §1, p. 308 (1716-1721) (section on arraignments))). Second, the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel. See, e. g., Amdt. 6; Gideon v. Wainwright, 372 U. S. 335, 340-341 (1963). The use of physical restraints diminishes that right. Shackles can interfere with the accused’s “ability to communicate” with his lawyer. Allen, 397 U. S., at 344. Indeed, they can interfere with a defendant’s ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf. Cf. Cranburne’s Case, 13 How. St. Tr. 222 (K. B. 1696) (“Look you, keeper, you should take off the prisoners irons when they are at the bar, for they should stand at their ease when they are tried” (footnote omitted)); People v. Harrington, 42 Cal., at 168 (shackles “imposte] physical burdens, pains, and restraints ...,. ten[d] to confuse and embarrass” defendants’ “mental faculties,” and thereby tend “materially to abridge and prejudicially affect his constitutional rights”). Third, judges must seek to maintain a judicial process that is a dignified process. The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has ■ said, the use of shackles at trial “affront[s]” the “dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Allen, supra, at 344; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) (“[T]o have a man plead for his life” in shackles before “a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present,” undermines the “dignity of the Court”). There will be cases, of course, where these perils of shackling are unavoidable. See Allen, supra, at 344. We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations. We are mindful of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case. B The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant’s conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury’s effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the “ ‘severity’ ” and “ ‘finality’ ” of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U. S. 721; 732 (1998) (quoting Gardner v. Florida, 430 U. S. 349, 357 (1977)). Neither is accuracy in making that decision any less critical. The Court has stressed the “acute need” for reliable decisionmaking when the death penalty is at issue. Monge, supra, at 732 (citing Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community— often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Cf. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury’s perception of the character of the defendant. See Zant v. Stephens, 462 U. S. 862, 900 (1983) (Rehnquist, J., concurring in judgment) (character and propensities of the defendant are part of a “unique, individualized judgment regarding the punishment that a particular person deserves”). And it thereby inevitably undermines the jury’s ability to weigh accurately all relevant considerations — considerations that are often unquantifiable and elusive — when it determines whether a defendant deserves death. In these ways, the use of shackles can be a “thumb [on] death’s side of the scale.” Sochor v. Florida, 504 U. S. 527, 532 (1992) (internal quotation marks omitted); see also Riggins, 504 U. S., at 142 (Kennedy, J., concurring in judgment) (through control of a defendant’s appearance, the State can exert a “powerful influence on the outcome of the trial”). Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial. IV Missouri claims that the decision of its high court meets the Constitution’s requirements in this case. It argues that the Missouri Supreme Court properly found: (1) that the record lacks evidence that the jury saw the restraints; (2) that the trial court acted within its discretion; and, in any event, (3) that the defendant suffered no prejudice. We find these arguments unconvincing. The first argument is inconsistent with the record in this case, which makes clear that the jury was aware of the shackles. See App. 58-59 (Deck’s attorney stated on the record that “Mr. Deck [was] shackled in front of the jury” (emphasis added)); id., at 59 (trial court responded that “him being shackled takes any fear out of their minds”). The argument also overstates the Missouri Supreme Court’s holding. The court said: “Trial counsel made no record of the extent of the jury’s awareness of the restraints throughout the penalty phase, and Appellant does not claim that the restraints impeded him from participating in the proceedings.” 136 S. W. 3d, at 485 (emphasis added). This statement does not suggest that the jury was unaware of the restraints. Rather, it refers to the degree of the jury’s awareness, and hence to the kinds of prejudice that might have occurred. The second argument — that the its discretion — founders on the record’s failure to indicate that the trial judge saw the matter as one calling for discretion. The record contains no formal or informal findings. Cf. supra, at 632 (requiring a case-by-case determination). The judge did not refer to a risk of escape — a risk the State has raised in this Court, see Tr. of Oral Arg. 36-37 — or a threat to courtroom security. Rather, he gave as his reason for imposing the shackles the fact that Deck already “has been convicted.” App. 58. While he also said that the shackles would “tak[e] any fear out of” the juror’s “minds,” he nowhere explained any special reason for fear. Id., at 59. Nor did he explain why, if shackles were necessary, he chose not to provide for shackles that the jury could not see — apparently the arrangement used at trial. If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one. The third argument fails to take account of this Court’s statement in Holbrook that shackling is “inherently prejudicial.” 475 U. S., at 568. That statement is rooted in our belief that the practice will often have negative effects, but — like “the consequences of compelling a defendant to wear prison clothing” or of forcing him to stand trial while medicated — those effects “cannot be shown from a trial transcript.” Riggins, supra, at 137. Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U. S. 18, 24 (1967). V For these reasons, the judgment of the Missouri Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 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?

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

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?

Gerys DESSALERNOS, Appellant, v. Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Appellee. No. 16340. United States Court of Appeals Fifth Circuit. April 22, 1957. David W. Walters, Miami, Fla., for appellant. Richard R. Booth, Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee. Before TUTTLE, JONES and BROWN, Circuit Judges. TUTTLE, Circuit Judge. This is an appeal from a judgment in an action to review a determination of the Board of Immigration Appeals by which the district court held that appellant is subject to deportation and is statutorily ineligible for waiver of deportation. The undisputed facts are that appellant is an alien, a native and a citizen of Greece, who last entered the United States on March 11,1947, as a seaman on a Certificate of Admission permitting a stay of not over 29 days; no extension has ever been applied for or granted. In 1952 appellant registered for the first and only time under the provisions of the Alien Registration Act, 2*****and he has since failed to file the annual registration required by 8 U.S.C.A. § 1305. The Special Inquiry Officer determined, and the Board of Immigration Appeals and the district court agreed, and appellant does not dispute, that the failure to register was willful and without reasonable excuse. Appellant is thus deportable both as a nonimmigrant who has failed to comply with the conditions of that status, 8 U.S.C.A. § 1251(a) (9), and as an alien who has failed to comply with the provisions of the Alien Registration Act, 8 U.S.C.A. § 1251(a) (5). The only issue is whether appellant’s application for suspension of deportation should be treated as falling under section 1254(a) (1) of the Title, under which he could qualify for discretionary relief by the Attorney General, or under section 1254(a) (5), under which he cannot qualify. Appellant contends that since he qualifies under one category established by section 1254(a) his application for suspension should be considered under that paragraph, even though he is ineligible under another category whose provisions are applicable to his situation but whose requirements he fails to meet. In particular, appellant argues that Congress, in drafting the 1952 Act, had wished to preserve the right of all aliens whose last entry had occurred before June 27, 1950, (two years prior to date of enactment of the Act) to apply for suspension of deportation under substantially the provisions and standards of the pre-1952 law, as long as they filed their application at any time before December 31, 1957 (five years after the effective date of the chapter). To support this proposition he points to the provisions of the Act, in which, as detailed below, a generally clear distinction is indeed made, in several paragraphs listed in the disjunctive, between those aliens who entered before and those who entered on or after June 27,1950; in addition he refers us to the report of the Senate Judiciary Committee which first considered these provisions, which stated: “The subcommittee recommends that the present suspension of deportation provisions of the law be abolished within 5 years and that no alien who entered the United States within a period of 2 years prior to the enactment of the proposed legislation shall be eligible under the present suspension provision of the law, as modified.” and then continued with its recommendations for the altered provisions of the new law. The Government argues, in effect, that the provisions are meant to be mutually exclusive, and that since paragraph (5) refers specifically to the situation of the appellant, i. e. to one who violated the Alien Registration Act, while paragraph (1) only refers generally to aliens “de-portable under any law of the United States,” under the usual rules of statutory construction he must be treated as a member of the “particular class” into which he falls. Baltimore National Bank v. State Tax Commission of Maryland, 297 U.S. 209, 215, 56 S.Ct. 417, 80 L.Ed. 586; 82 C.J.S. Statutes § 347 b. The question raised is unfortunately not as easily resolved as each of the parties would have it; as in many cases under this Act the courts must resort to a close study of the complex interrelation of the several provisions of both the present and the former law, both internally and, as required by the frequent erossreferences, with each other. On this particular narrow issue there appear to be no cases to guide us 4 nor has any legislative history more helpful than the general language quoted above been called to our attention. To arrive at the most reasonable construction it will therefore be necessary to examine the entire background and pattern of the pertinent sections. Prior to 1940 there was no statute under which relief from deportation could be granted, and in general such aid could only be secured by means of a private bill in Congress. By the Alien Registration Act of 1940 the Attorney General was given discretionary authority to suspend deportation of aliens not guilty of any major misbehavior, defined by excluding from the relief provision aliens who fell into any of a number of listed categories of undesirables, upon a showing of good moral character for five years and of the threat of serious economic detriment to any legally resident, close relative of the alien, unless Congress passed a concurrent resolution disapproving of such a suspension. 54 Stat. 671, 8 U.S.C. §§ 155 (c), (d) (1946 ed.). In 1948 the provision was changed by also permitting the suspension of deportation of aliens not in the excluded categories upon a mere showing of seven years residence (regardless of considerations of hardship to them or to their families), but requiring that in all cases of suspension Congress pass an affirmative concurrent resolution approving the stay. 62 Stat. 1206, 8 U.S.C. § 155(c) (1946 ed., Supp. 11, 1949). The 1952 Act completely recast the former suspension provisions. Five general categories of aliens were designated by successive paragraphs of 8 U.S.C.A. § 1254(a): (1) those whose “offense” did not disqualify them for suspension under the former Act (referred to as § 19(d) of the Immigration Act of 1917, as amended), who had entered the United States, properly or improperly, before June 27, 1950, and who prior to their application for suspension of deportation had resided here for at least seven years and had maintained a good moral' character; (2) those whose deportability arises from some circumstance existing at or before their entry, but not involving any major misbehavior or improper entry (defined by excluding those aliens falling into category (4)), whose entry was subsequent to June 26, 1950, and who have maintained at least five years of residence with good moral character up to the time of application; (3)- those whose situation is similar to that of category (2) except that their deportability arises from circumstances after entry; (4) those whose deportability arises either from an improper entry or from major misbehavior before entry, who entered after June 26,1950, and who have maintained at least ten years of residence with good moral character; (5) those whose deportability arises either from overstaying their permitted time in the United States or who belong in one of eleven enumerated categories of major undesirables (based generally on post-entry activities), regardless of their date of entry, who have maintained at least ten years of residence with good moral character. In all categories suspension may only be effected if deportation would “result in exceptional and extremely unusual hardship” to the alien or to a legally resident close relative. Also, in suspensions under paragraphs (l)-(3) the relief may be granted unless disapproved by a concurrent resolution of Congress, while under paragraphs (4) and (5) an affirmative resolution is required to make the stay permanent. In general the pattern of the new Act is thus clear: it continues in general terms and for a limited period the category of those who might seek suspension of deportation under the former Act, provided the alien entered before June 27, 1950, substituting, however, a uniform seven years residence with good moral character requirement and the harsher “hardship” provision of the new Act, and restoring the pre-1948 requirement of a mere absence of congressional disapproval. In general aliens in similar circumstances who entered after June 26, 1950,- can now qualify for suspension after five years of residence under the provisions of paragraphs (2) and (3), except if their entry was improper, in which case they fall under the ten year requirement of paragraph (4), or if their de-portability arises by reason of failure to register (§ 1251(a) (5)) or because of violation of war emergency laws (§ 1251 (a) (17)) in which case the ten year requirement of paragraph (5) applies. In addition, practically all aliens whose deportation could not have been suspended at all under the former Act may now qualify after ten years under the provisions of paragraphs (4) and (5). Also the racial eligibility provision of the former Acts has been removed, but additional restrictions are imposed on citizens of contiguous countries. It thus appears that Congress very thoroughly reshaped the statute, easing the requirements somewhat by reducing the qualifying time in some instances, eliminating the need for positive congressional approval in many situations, and in making it possible for some persons to qualify for deportation after ten years of reputable residence and subject to positive congressional approval who could, not have qualified at all under the former law; on the other hand requirements were made more severe in other ways, by adopting a rather stricter “hardship” test and by changing the five or seven year requirement to-ten for those guilty of certain offenses— including the failure to register under the-Alien Registration Act. Even with respect to the pre-June 27, 1950, category-changes were made, including the imposition of the uniform seven years residence with good moral character, the new “hardship” clause, and the December 31,. 1957, terminal date for application. It. cannot be said that the provisions as a whole are meant to be generally more or-less restrictive than the former ones; all that can be said is that they appear to be more selectively drawn. Nor can it be said that there was an apparent congressional intent to preserve inviolate all the rights under the former statutes of the pre-June 27, 1950, category, It should also be noted that for the most part the categories are mutually exclusive. Apparently practically the only clear breakdown in that separation involves the very provision here under consideration: deportability due to failure to register, 8 U.S.C.A. § 1251(a) (5), which was not an offense precluding suspension of deportation under the former Act, and which thus does not explicitly preclude the applicability of paragraph (1) relief under the present Act, but which is specifically listed as included in category (5). It is certainly clear that Congress in 1952 took a much more serious view of failure to register than had former legislatures; it is one of the few provisions in which suspension of deportation was made distinctly more difficult (at least for aliens who entered after June 26,1950) than it had been under the former law, and no liberalizing features have been added. The principal other offense for which this is true is the offense of illegal entry, § 1251(a) (2), which, like failing to register, makes control over the alien more difficult and simplifies the offender’s problem of avoiding investigation during the qualifying period. In addition aliens who aid others to enter illegally, § 1251(a) (13), are entirely precluded from seeking suspension of deportation, thus suggesting that Congress intended to penalize through the immigration laws those who violated them. In the case of improper entry the Act is clear that only entries subsequent to June 26, 1950, shall be subject to the more severe suspension requirements, for the applicable paragraph is (4), which includes the cut-off restriction, rather than (5), which does not. For failing to register the more severe conditions clearly apply to aliens entering after June 26, 1950, for they are not covered at all by paragraph (1). It would therefore be highly anomalous for Congress, having expressed the more severe view it now takes of the offense of failure to register, to permit certain persons who violate the registration provisions of the new Act after its passage (e. g., as here, in 1953 and 1954) to receive more consideration than others who are guilty of precisely the same omission át precisely the same time, merely because the former entered the United States earlier than the latter. Such might be the result where both the entry and the offense occurred-before the enactment of the new Act (or before the cut-off date two years earlier), but in the present situation, where the new Act gave notice of the more severe consequences of a failure to comply and compliance was still not forthcoming, such a construction is not reasonable. Congress-should not be thought to have created two categories of aliens, distinguishable only by their date of entry, whose improper behavior carries different consequences. In view of the above, and in view also of the apparent congressional intent to make the five categories of §■ 1254(a) mutually exclusive, we must hold that the explicit inclusion in category (5) of deportability for failure to register implicitly excludes it from category d). The judgment of the district court is affirmed. . 8 U.S.C.A. § 1302, formerly 8 U.S.C. 5 452 (1946 ed.). . § 244(a) (1) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1254(a) (1), provides as follows: “§ 1254. Suspension of deportation— Adjustment of status for permanent residence; contents “(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who— “(1) applies to the Attorney General within five years after the effective date of this chapter for suspension of deportation; last entered the United States more than two years prior to June 27, 1952; is deportable under any law of the United States and is not a member of a class of aliens whose deportation could not have been suspended by reason of section 19(d) of the Immigration Act of 1917, as amended; and has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent or child, who is a citizen or an alien lawfully admitted for - permanent residence; or * * The application for suspension was filed on August 10, 1954, more than seven years after appellant’s entry; the failure to register annually as required by law would apparently not automatically make him a person not “of good moral character” as that term is defined by 8 U.S.C.A. § 1101(f), nor would it make him ineligible for suspension of deportation under the now repealed provisions of § 19(d) of the Immigration Act of 1917, as amended (formerly 8 U.S.C. § 155(d) (1946 ed.)), which read as follows : “§ 155. Deportation of undesirable aliens generally ***** “(d) The provisions of subsection (c) [permitting suspension of deportation] shall not be applicable in the case of any alien who is deportable under (1) section 137 of this title; (2) section 175 of Title 21; (3) section 156a of this title; (4) any of the provisions of so much of subsection (a) of this section as relates to criminals, prostitutes, procurers, or other immoral persons, the mentally and physically deficient, anarchists, and similar classes; or. .(5) subsection (b) of this section.” None of the cited exclusions include the failure of an alien to -register as required by law; see footnote 7, infra, . . § 244(a) (5) of the Act, 8 U.S.C.A. § 1254(a) (5), provides in part as follows: “§ 1254. Suspension of deportation— Adjustment of status for permanent residence ; contents “(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who— ***** “(5) is deportable under paragraphs (4)-(7), (11), (12), (14)-(17), or (18) of section 1251(a) of this title for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States, within two years prior to, or at any time after June 27, 1952, is deporta-ble under paragraph (2) of section 1251 (a) of this title as a person who has remained longer in the United States than the period for which he was admitted; has been physically present in the United States for a continuous period of not less than ten years immediately following the .commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; has not been served with a final order of deportation issued pursuant to this chapter in deportation proceedings up to the time of applying to the Attorney General for suspension of de- ' portation; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, .who is a citizen or an alien lawfully admitted for permanent residence.” Appellant of course has not been a resident of the United States for 10 years since his last failure to register in January 1954, which is an “act” that makes him liable tQ deportation under .§ 1251(a) ■<5). -•.. ' „ . “Report of the Senate Committee on the Judiciary pursuant to S.Res. 137,” S.Rep. No. 1515, 81st Cong., 2nd Sess., April 20, 1950. . See, however, the just reported district court case, Sevitt v. Del Guerico, D.C.S.D.Cal., 150 F.Supp. 56, which reaches a result contrary to our’s below. . This requirement -was intended to be harsher than that in the former statutes. See S.Rep. No. 1137, 82nd Cong., 2nd Sess., quoted in 8 U.S.C.A. §§ 1-1280 at pages 67-68: . Paragraph (1) excludes all those in paragraphs (2)-(4) and part of paragraph (5) by means of the June 27, 1950, cut-off date; paragraph (2) deals with deportability arising from circumstances at or before entry, while paragraph (3) explicitly and paragraph (5) implicitly deals with those arising from post-entry circumstances; both paragraph (2) and (3) explicitly exclude aliens falling into paragraph (4) and paragraph (3) also explicitly excludes those falling into paragraph (5); the provisions of paragraphs (4) and (5) arc also explicitly or implicitly mutually exclusive; paragraph (5) in its principal part lists eleven grounds of deportability to which it applies, nine of which match exclusions under the former act which are now incorporated into paragraph (1), and one inclusion in paragraph (4) similarly matches one more exception to paragraph (1): § 19(d) of the 1917 Act, as amended, 8 U.S.C. § 155(d) (1946 ed.) (quoted in footnote 2, supra) includes the following exceptions, which may be matched as follows with the inclusions in paragraphs (4) and (5) : Exclusions from paragraph (1) (all references to fox-mer sections of Title 8) Inclusions in paragraphs (4) and (5) (All references to present sections of Title 8) § 155(d) (1) referring to § 137: anarchists, subversives, etc. § 1251(a) (7)* § 155(d) (2) referring to 21 U.S.C.A. § 175: importing narcotics § 1251(a) (11)* § 155(d) (3) referring to § 156a: trading in narcotics § 1251(a) (11)* § 155(d) (4) referring to § 155(a): excludable at time of entry § 1251(a) (1)§ ** anarchists, subversives, etc. § 1251(a) (7)* conviction of crime involving moral turpitude § 1251(a) (4)* prostitution, white slavery, etc. §§ 1251(a) (12), * (18)* § 155(d) (5) referring to § 155(b): aiding other aliens to enter illegally § 1251(a) (13)*** conviction of possessing automatic weapon § 1251(a) (14)* conviction of subversion within 5 years of entry § 1251(a) (15)* more than one conviction of subversion § 1251(a) (16)* * included in paragraph (5) ** included in paragraph (4) *** not included in any paragraph (thus no suspension possible). (All cross-references taken from cross-reference table, 8 U.S.O.A. xxv-xxx.) § 1251(a) (2) (entry in violation of law) is apparently the only offense included in paragraph (4) which was not excluded from paragraph (1) relief (though the offense of illegal entry is listed in former § 155 (a) it is not an exclusion under § 155(d) (4) because it does not relate to “criminals, prostitutes, procurers, or other immoral persons, the mentally and physically deficient, anarchists, and similar classes”) — hut the date of the entry determines positively into which category an alien falls. Similarly §§ 1251(a) (5) (failure to register) and (17) (conviction of violation of war emergency and security laws) are the only offenses included in category (5) which are not excluded from paragraph (1) relief except insofar as § 1251(a) (17) overlaps §§ 1251(a) (4), (15), (16). Only to this extent is there a breakdown in the mutual exclusiveness of the categories.

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?

HASKELL PLUMBING AND HEATING COMPANY, a corporation, Appellant, v. Jimmy WEEKS, Tommy Judson, Mike Cullinane, Ole Franz, Roy Callaway, Tom Mulcahy, Ben Holbrook, Jesse Hobbs and W. Van Smith, Appellees. No. 14724. United States Court of Appeals Ninth Circuit. Oct. 2, 1956. Bell, Sanders & Tallman, Bailey E. Bell, Anchorage, Alaska, for appellant. Harold J. Butcher, Anchorage, Alaska, for appellee. Before POPE and CHAMBERS, Circuit Judges, and BOLDT, District Judge. POPE, Circuit Judge. The plaintiffs in this action were all employees of the defendant. Claiming that each of them severally suffered damages arising out of the same occurrence, or series of occurrences, alleged to have been brought about through a breach of duty on the part of the defendant, they joined in this one action their several claims, and each of them recovered judgment against the defendant. Defendant appeals. Each of the plaintiffs was a plumber and all were employed by the defendant to work upon a construction job at a military base at a place called King Salmon, some eight miles from Naknek, Alaska. The prime contractor under the Government contract was Gaasland Construction Company. The defendant was subcontractor doing the plumbing and heating portion of the construction work. The contract of employment provided that these employees would be furnished housing or living facilities including board and meals while they were employed on this job. At the job location, the only available transient accommodations were at a motel which was inadequate to provide for the number of men employed on this job, and hence the plaintiffs were housed in barracks established in a Quonset hut near the job location. They boarded at a mess hall nearby. The housing and board facilities were furnished by the Gaasland Construction Company under an arrangement with the defendant Plumbing and Heating Company whereby the latter paid the former on a man-day basis. During the time while the plaintiffs were thus being furnished housing accommodations as agreed upon, the barracks caught fire and were completely destroyed. Each of the plaintiffs had in his assigned place in the barracks clothing, traveling bags, toilet articles, and some of them had guns, ammunition, and fishing tackle; some had watches, others had cameras, watches and clocks, and one of them had a set of upper and lower dental plates. All of this personal property was lost in the fire and plaintiffs claimed damages to the extent of its value. Each separate cause of action alleged that the fire was caused by the negligence and breach of duty of the employer Plumbing and Heating Company. The evidence showed and the court found that the fire was started by an explosion occurring in a heating stove in the barracks building. The explosion was caused by a certain “bullcook” employed to look after and attend to the fire. He negligently mixed gasoline with fuel oil which was fed into the stove. The stove was designed to burn fuel oil but the “bullcook” added the gasoline to the fluid in the hope that this would “stop the stove carboning up as they have been carboning up”. Each of the plaintiffs was left with nothing except the clothes he was wearing at the time of the explosion. The evidence further indicates that the “bullcook” was an employee of Gaasland Construction Company, he be-' ing the person employed by the prime contractor to look after and take care of the living quarters. Appellant says that it cannot be liable for the person guilty of negligence was not its servant. We think, however, that the trial court rightly held that the defendant Plumbing and Heating Company was responsible and liable for the damages suffered by these plaintiffs. As employer it owed to the plaintiffs the common law duty to provide its employees with a reasonably safe place to work and reasonably safe equipment and appliances in connection therewith. Ordinarily the employer’s duty in this connection has reference only to the place where the employee actually does his work; but it has been held that in a case like this, where the circumstances of the employment are such that the employee is required in connection with his employment to be absent from his own home and to occupy a place furnished by the employer, then the master’s duty with respect to safe places and safe appliances extends to the premises where the employee is required to stay. This rule has been applied in cases of domestic servants and of railroad construction employees required to sleep or stay in a railroad construction camp. Illustrative of the latter type of case is Milburn v. Chicago, M. St. P. & P. R. Co., 331 Mo. 1171, 56 S.W.2d 80, 88, where the Missouri court in interpreting the common law of Iowa, held that the railroad company’s duty to furnish its employees a safe place to work extended to the furnishing of appliances for building fires in a bunkhouse constituting a part of the railroad construction camp where the employees were required to stay. In that case the “bullcook” put gasoline in the kerosene barrel from which the employees usually took coal oil to help start fires. The plaintiff employee recovered for persbnal injuries received when he was burned by the explosion of gasoline. The court called attention to the fact that .the employee’s occupancy of the bunkhouse was for the benefit of the master and as an accessory or aid to the performance of his duties as a servant, and that under those circumstances the master was liable for injuries caused by the defective condition of the premises. The court said: “So, likewise,, the master is liable under such conditions, for any negligence which makes the place where he required his employee to stay, ■ unsafe.” We think that the statement just quoted sets forth a sound principle of law and that, it is applicable .here. In consequence, the defendant employer owed-a duty in respect to the safety of these barracks where his employees were re-, quired to stay; and, under equally well established principles, that duty is one. which the employer cannot escape by delegation to another. “The master’s duty to provide the servant with a reasonably safe place to work is nondelegable.” Myers v. Little Church by the Side of the Road, Wash., 227 P.2d 165, 170. It is therefore of no consequence, that the defendant here arranged by contract with the prime contractor for the furnishing of the lodging facilities, or that the “bullcook” was Gaasland’s employee. We think also that liability was properly charged to the defendant for a further reason: The testimony shows that some ten or eleven days prior to the fire, one of the plaintiffs saw the bullcook mixing the gasoline with the fuel oil and called this to the attention of the defendant’s superintendent who assured this employee and one of the others that he knew that this procedure was unsafe but he would take measures “to have it taken care of so that .they would not do that any more”. It seems plain to us that the employee had the right to rely upon the superintendent’s assurance. It is also plain that the superintendent was himself guilty of negligence after receipt of this notice in failing to take such steps as were necessary to put a stop to these procedures. The record unquestionably shows that the court properly held the defendant liable to each of these plaintiffs. We do, however, find ourselves compelled to order a portion of this cause to be remanded for the taking of further evidence of damages. Upon the trial the plaintiff Callaway testified in full and at length with respect to the personal property which he lost in the fire and as to its value. The court had before it not only Callaway’s testimony as to the items and their value, but it also had other testimony on the basis of which it arrived at a conclusion as to a proper allowance for depreciation, and found Callaway’s damages or loss to be $765.46. Plaintiff Hobbs also had given a deposition in which he likewise testified at length with respect to the items and value of personal property lost by him. However, after Callaway had testified and been cross-examined extensively with respect to the items and values which he claimed were destroyed, the court suggested that the proceedings might be shortened greatly if the plaintiffs would offer in evidence as proof of the damage and loss suffered by the other plaintiffs, their several answers given in response to interrogateries which had been propounded to each of them by the defendant. Counsel for the plaintiffs acquiesced in this suggestion and the court admitted these answers upon the theory that they would be admissible as evidence on behalf of the plaintiffs under that portion of Rule 33, as amended, which provides: “ * * * and the answers may be used to the same extent as provided in Rule 26(d) for the use of a deposition of a party.” This ruling was made over the objection of the defendant. It seems clear that the trial court was in error in permitting these answers, which were self-serving, to be introduced on behalf of the plaintiffs and that this error was compounded by refusal to permit the plaintiffs to be cross-examined upon the question of the amount of their losses. It is true that Rule 26(d) permits the use of depositions or portions thereof, but only “so far as admissible under the rules of evidence”. The rules of evidence would permit answers such as these to be used against the party giving them, but because they are self-serving they should not have been admitted on behalf of these plaintiffs. Lobel v. American Airlines, 2 Cir., 192 F.2d 217, 221. See 4 Moore’s Federal Practice, (1950 ed.) § 33.29. The judgment of the court, insofar as it awards damages in favor of the appellees Roy Callaway and Jesse Hobbs, is not subject to any infirmity, and to the extent that it awards judgment to those appellees, it is affirmed. The remainder of the cause is remanded to the court below with directions to take further testimony with respect to damages only as the same concern the other appellees Weeks, Judson, Cullinane, Franz, Mulcahy and Holbrook. The findings and conclusions of the court to the effect that such appellees are entitled to recover their damages from the appellant shall stand, and upon ascertainment of the amount of damages properly to be awarded to such appellees, judgment shall be entered in their favor for such amounts. The judgment in favor of the appellees last named is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. A separate order will be filed respecting the costs upon this appeal. . No complaint is made about the joinder of these several claims. See Rule 20 Rules Civil Procedure, 28 U.S.C.A., and Farmers Co-op Oil Co. v. Socony-Vacuum Oil Co., 8 Cir., 133 F.2d 301, 105. . This arrangement was provided for in an agreement made between defendant and other members of an employers’ association and the employees’ union of which plaintiffs were members. It provided “Members sent out of town by the employers shall be furnished first class board, room and transportation and straight times wages, etc.”

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?

AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, and R. & W. Equipment, Inc., Appellants, v. ARROW ROAD CONSTRUCTION CO. and Camco Construction Co., Inc., Appellees. No. 17577. United States Court of Appeals Ninth Circuit. Oct. 30, 1962. Anderson, McPharlin & Conners and Kenneth E. Lewis, Los Angeles, Cal., for appellant American Cas. Co. of Reading, Pa. Everett H. Swing, San Bernardino, Cal., for appellant R. & W. Equipment, Inc. James D. Garibaldi, Warren J. Lane, and Abe Mutchnik, Los Angeles, Cal., for appellee Arrow Road Const. Co. Before CHAMBERS and BARNES, Circuit Judges, and ROSS, District Judge. ROSS, District Judge. This action involves a claim under the Public Buildings and Works Act (Miller Act), sec. 2, 49 Stat. 794 (1935), 40 U.S. C. § 270b (1958), for labor and material furnished to defendants by use-plaintiff Arrow Road Construction Co. (hereinafter Arrow Road). The District Court had jurisdiction pursuant to the provisions of the above mentioned section of the Miller Act, and this Court has jurisdiction under 28 U.S.C. § 1291. The pertinent facts are as follows: On or about March 3, 1959, defendant Cameo Construction Co., Inc. (hereinafter Cameo) entered into a written contract with the United States of America for work at Vandenberg Air Force Base. Defendant American Casualty Company of Reading, Pennsylvania (hereinafter American Casualty) executed and delivered to the United States a payment bond wherein Cameo was the principal. Cameo subcontracted to defendant R & W Equipment Inc. (hereinafter R & W) certain grading and excavating work required by the prime contract. R & W commenced work but a work stoppage temporarily prevented it from proceeding with the work. Arrow Road contends that when it was again possible for the grading and excavating work to be resumed, R & W informed Cameo that it was unable to return its machinery and equipment to the project. That Arrow Road’s general superintendent met with Cameo’s general superintendent and with R & W’s representative and that the three men worked out an arrangement whereby Arrow Road was authorized to complete the grading and excavating work. That no payment was made to Arrow Road by any of the defendants. R & W denies that it entered into any agreement whatsoever with Arrow Road. American Casualty asserts that there was no contractual relationship, express or implied, between Arrow Road and Cameo, its principal. After a bench trial the court entered a judgment for Arrow Road and against R & W and American Casualty. However a judgment was not entered against Cameo or Elvis O’Neal, a superintendent of R & W. R & W and American Casualty appealed from said judgment. In its brief R & W asserts four contentions. The first contention states that there was a total lack of required proof and the last two refer to the insufficiency of the evidence. We have considered these contentions and hold that they are without merit. For its fourth contention R & W states that the evidence does not support the findings, and the findings are inconsistent with the conclusions and the judgment. R & W notes that the District Court concluded that Arrow Road is entitled to judgment against R & W and American Casualty, but not against Cameo, the principal of American Casualty and gave judgment accordingly. We agree that the conclusions of law and judgment are inconsistent with the findings. However, the inconsistency relates only to Cameo and its surety American Casualty and not to R & W. Therefore, the judgment as to R & W will be affirmed. Turning now to the appeal of American Casualty. American Casualty states that it is a well established rule-of suretyship law that if principal and a surety are jointly sued and the action fails as to the principal, the surety is for that reason discharged and judgment against it cannot be taken. As authority for this rule American Casualty cites 50 Am.Jur., Suretyship, sec. 208, p. 1041. In its brief Arrow Road notes that the-cited material contains an exception to-the rule discharging a surety where there-is a “statutory provision to the contrary.” Further, that Indemnity Insurance Co. of North America v. Browning-Ferris Machinery Co., 227 F.2d 804 (5th Cir., 1955), points out that the United States Supreme Court has declared that the general rule is not applicable to Miller Act cases. In Indemnity the court states: “ ‘[Tjechnical rules otherwise protecting sureties from liability have never been applied in proceedings under this statute [the Heard Act, for which the Miller Act is a substitute] ’ ” Id. at 807. The court then refers to two United States Supreme Court cases. It is apparent from a reading of these cases as well as Indemnity that the factual situations therein were distinguishable from the present case. Further, we hasten to add that in holding that a surety is discharged where a principal is discharged we are not applying a “technical rule.” It has been stated in a Heard Act case, “that the surety is liable in those cases in which the principal would be liable.” Royal Indemnity Co. v. Woodbury Granite Co., 69 App.D.C. 364, 101 F.2d 689, 692 (1938). In a Miller Act ease a court said, “the surety is liable wherever the contractor is liable, and to the same extent.” United States for Use and Benefit of Miller & Bentley Equipment Co. v. Kelly, 192 F.Supp. 274, 278 (D. Alaska 1961). In another Miller Act case a court stated, “while the statutes are remedial in character and therefore should be liberally construed, it was not the intention of Congress to extend or enlarge the liability of the surety beyond the contractual or quasi-contractual obligations of the contractor who remains primarily liable.” United States for Use of Harrington v. Trione, 97 F.Supp. 522, 526 (D.Colo.1951). Since the District Court concluded that Arrow Road was not entitled to recover against the principal Cameo it is likewise not entitled to recover against American Casualty the surety. In accordance with this opinion it is, therefore, ORDERED, that the judgment of the District Court entered in the above entitled action in favor of Arrow Road and against R & W is hereby affirmed. It is, FURTHER ORDERED, that the judgment of the District Court entered in the above entitled action in favor of Arrow Road and against American Casualty is hereby reversed. . The Miller Act contains no provision relating to this matter.

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

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

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

OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 4-367, Plaintiff-Appellant, v. ROHM & HAAS, TEXAS INC., Defendant-Appellee. No. 81-2418 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 1, 1982. Chris Dixie & Associates, Chris Dixie, Houston, Tex., for plaintiff-appellant. Baker & Botts, John B. Abercrombie, Tony P. Rosenstein, Houston, Tex., for defendant-appellee. Before BROWN, POLITZ and WILLIAMS, Circuit Judges. PER CURIAM: This case, tried on stipulated facts, seeks to compel enforcement of an arbitration award so as to apply the award prospectively to similar occurrences. The facts make clear that the employer has complied with the specific arbitration order and the only issue is the scope of the relief- — whether the award should apply generally rather than only specifically to the employee in question. The issues submitted to an arbitrator, or the grievance itself when no submission agreement is used, define the limits of the arbitration award. See Piggly Wiggly Operator’s Warehouse, Inc. v. Piggly Wiggly Operator’s Warehouse Independent Truck Drivers’ Union Local No. 1, 611 F.2d 580 (5th Cir. 1980). Here the issue of future application of the award to other employees was not specifically submitted to the arbitrator. We affirm on the basis of the District Court’s opinion, attached as an appendix to this opinion. We wish to add that even if the arbitration award could be read to have considered future applicability, the arbitrator refused to so apply his decision, stating: One additional point must be discussed. The Union prayed that the Company be directed to re-instate the call in of encumbent employees to their position under the 1973 No. 24. I will deny the Union’s prayer because the Agreement clearly states that the Company has the sole right to institute and change procedures subject only to the limitation that the Company discuss the procedure with the Union and the procedure must not violate the Agreement. That language is unambiguous and no construction is necessary. If this statement concerning the issue of whether the employer should be ordered to reinstate the overtime procedure forming the heart of the grievance is viewed as synoymous with the issue of future applicability of the award, the effect would be to request that we review the merits of the arbitrator’s decision refusing to require a return to the prior procedure. This we cannot do. The arbitrator’s award is not subject to judicial review on the merits, for “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424, 1427 (1960). See Safeway Stores v. American Bakery & Confectionery Workers, 390 F.2d 79 (5th Cir. 1968). “Whether the award can be given an effect akin to res judicata or stare decisis with regard to future disputes that may arise between the parties, neither the district court nor this court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration.” New Orleans Steamship Ass’n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), cert. granted sub nom. Jacksonville Bulk Terminals, Inc. v. Longshoremen’s, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981), argued, 50 U.S. L.W. 3605 (January 18, 1982). AFFIRMED. APPENDIX CIRE, District Judge: This case has been submitted on stipulated facts accompanied by exhibits, and has been briefed by both parties. After consideration of the pleadings, stipulations, exhibits, and briefs, the Court enters this opinion and accompanying final judgment. The Oil, Chemical & Atomic Workers International Union, Local 4-367 (the Union) brought this suit pursuant to 29 U.S.C. § 185 to enforce an arbitration award against Rohm & Haas, Texas, Inc. (the Company). The arbitration award was the result of a grievance and arbitration pursued on behalf of R. H. Brown, an employee and union member. Under the applicable collective bargaining agreement, the Company was authorized to make procedural changes that affected the day-to-day operations of the plant. The Union was entitled to grieve the effects of any such procedural changes. When the Company instituted a new procedure for filling temporary shift vacancies, Brown missed the opportunity to earn some overtime pay. The adverse effect of the procedural change on Brown was grieved and eventually arbitrated. The award stated that the Union’s right to grieve the effects of procedural changes included the right to pursue those grievances to arbitration, and the Company was directed to pay Brown for the hours of overtime he would have earned under the prior procedure. The Union does not claim that the Company has subsequently refused to arbitrate grievances stemming from procedural changes, nor does the Union complain that the Company has failed to pay the overtime to Brown. Nevertheless, the Union seeks to “enforce” the award by means of an injunction ordering compliance. The Company insists that it has fully complied. The heart of the Union’s complaint is that the Company has refused to pay other employees who, like Brown, have lost the opportunity to earn additional pay as a result of the new procedure for filling vacancies. The Union seeks to give the arbitration award precedential value through this suit for enforcement; the injunction sought would direct the Company to pay overtime rates to any employee who missed the opportunity to fill a vacancy under the new procedure. The Court concludes that it may not grant the requested relief. To do so would usurp the function of the arbitrator and violate the rule that awards may be enforced only as written. New Orleans Steamship Association v. General Long-shore Workers, 626 F.2d 455 (5th Cir. 1980), cert. granted sub nom. Jacksonville Bulk Terminals Inc. v. International Longshoremen’s Assoc., [450] U.S. [1029], 101 S.Ct. 1737 [68 L.Ed.2d 223] (1981). The issue of the general applicability of this award was not submitted to the arbitrator, and the Court may not, under the guise of enforcement, broaden the scope of the award by deciding that issue itself. A Court on occasion may find that the answer to a collateral dispute is implicit in the award. Staffman’s Organizing Committee v. United Steelworkers of America, 399 F.Supp. 102 (W.D.Mich.1975) (award of reinstatement presumed to mean reinstatement to a particular plant). Generally, however, collateral questions about the scope or application of an award are themselves questions for arbitration. New Orleans Steamship Association v. General Long-shore Workers, supra. It is sometimes a prodigious task to enforce an award even when its applicability to similar cases is explicit. In Oil, Chemical and Atomic Workers International Union, Local 4-16000 v. Ethyl Corporation, 644 F.2d 1044 (5th Cir. 1981), the award prohibited “like violations.” The Fifth Circuit outlined in great detail the course to be followed in determining whether a given incident is a “like violation” requiring judicial enforcement or whether the conduct is sufficiently distinguishable from the original facts to require an arbitrator’s decision. The Court’s role is carefully delineated in order to preserve the integrity of the arbitration process. Clearly the Court may not bypass that process when the question, as here, is not what constitutes a “like violation” but whether the award was intended to apply to “like violations” at all. The Court notes that remand to the arbitrator is the appropriate disposition of an enforcement action when an award is patently ambiguous, when the issues submitted were not fully resolved, or when the language of the award has generated a collateral dispute. United Papermakers and Paperworkers, AFL-CIO v. Westvaco Corp., 461 F.Supp. 1022 (W.D.Va.1978). In such a case a remand is necessary to clarify precisely what the Court is being asked to enforce. A remand is not appropriate, however, where it would force a decision on an issue not previously submitted to the arbitrator. Id. Under those circumstances, the Plaintiff must again invoke the grievance and arbitration procedure in order to resolve the collateral issue. Id. See also International Brotherhood of Electrical Workers, AFL-CIO v. New England Telephone and Telegraph Co., 628 F.2d 644 (1st Cir. 1981); and International Association of Machinists and Aerospace Workers v. Aerojet-General Corp., 263 F.Supp. 343 (C.D.Cal. 1966). In this case, the express terms of the award have been complied with, and there appears to be no ambiguity with respect to general applicability, since that issue was not previously presented to the arbitrator. Accordingly, a new grievance is preferable to remand. Plaintiff not being entitled to relief in this case, judgment shall be entered for Defendant. . The Court does not find inapposite International Association of Machinists v. Texas Steel, 639 F.2d 279 (5th Cir. 1981). There a remand on the issue of general applicability of the award was deemed “proper,” but it is not clear whether the issue was truly collateral or whether it arose because of ambiguity in the award. In any event, it is possible that the Court’s reluctance to require new arbitration in that case was attributable to the Defendant’s recalcitrance. The Defendant obdurately disregarded the original award and two supplemental clarifications.

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"?

TAGGART v. KEIM et al. No. 6718. Circuit Court of Appeals, Third Circuit. March 29, 1939. Rehearing Denied May 11, 1939. Guy K. Bard, Atty. Gen. of Pennsylvania, and Percival H. Granger, of Philadelphia, Pa., for appellant. Franklin E. Barr, of Philadelphia, Pa., J. Hector McNeal, of Philadelphia, Pa., for original respondents-appellees. Paul Freeman and Freeman, Fox & Steeble, all of Philadelphia, Pa., and Ralph W. Rymer, of Scranton, Pa., for appellees. Before DAVIS, MARIS, and BUFFINGTON, Circuit Judges. MARIS, Circuit Judge. This is an appeal by the Insurance Commissioner of Pennsylvania as statutory liquidator of Independence Indemnity Company (hereinafter called the Independence), a Pennsylvania corporation, from a decree ot the District Court for the Eastern District of Pennsylvania dismissing a bill in equity and supplemental bill filed by him against the ancillary receivers of International Re-Insurance Corporation (hereinafter called the International), a Delaware Corporation, and others. In order to understand the questions which the appeal raises, a somewhat full statement of the facts is necessary. On September 16, 1931 the Independence was chartered as an insurance company by the Commonwealth of Pennsylvania as a result of the merger of several other insurance companies, some of which were in financial difficulty and unable to continue business alone. The Insurance Commissioner of Pennsylvania was unwilling to issue a certificate of authority to do business to the newly formed Independence because of its unsound financial condition, and negotiations thereupon took place between the Independence and the International looking toward the reinsurance by the International of the liabilities of the Independence. As a result of these negotiations a treaty of reinsurance was executed on September 30, 1931, the contracting clauses of which were as follows : “Now therefore, in consideration of the payment to International Re-Insurance Corporation of a premium equal to the entire assets of the Company, or such proportion thereof as may be necessary to liquidate the liabilities of the Company outstanding at the date hereof, and such liabilities as may accrue until the Independence Indemnity Company is shown to be satisfactorily rehabilitated financially conformably to the legal requirements of the State of Pennsylvania, the Reinsurer hereby reinsures all of the outstanding liabilities of the Company in addition to the liabilities mentioned in the Treaty of Reinsurance hereinabove referred to and existing as of the date of this agreement, and such liabilities as may be incurred hereafter by the Company until the Company shall be satisfactorily rehabilitated financially conformably to the requirements of the State of Pennsylvania. “The Company upon its part agrees to pay International Re-Insurance Corporation in consideration of the obligations undertaken by it hereunder the amount of premium hereinabove set forth.” Under the Pennsylvania statute the Insurance Commissioner was required to examine and approve all such arrangements for reinsurance of companies doing business in the state and the treaty was, therefore, submitted to him in connection with the application of the Independence for a certificate to do business. Conferences were had between the officials of the Independence and the International and the Commissioner with the view to determining the advisability of authorizing the Independence to do business with the baeking of the International as provided for in the treaty. In the course of these conferences and negotiations a question was raised as to when and how the International expected to be reimbursed for the liability assumed under the treaty; and in pursuance of the discussion the President of the International wrote on January 2, 1932 to the Commissioner confirming the arrangement of the treaty and stating that it was not the intention of the International to take over any more of the assets of the Independence than would be necessary to reimburse the International for the liabilities of the 'Independence paid or assumed. He also expressed in the letter the hope that the Independence might be rehabilitated and the International relieved from its obligations. Soon after the receipt of this letter the Insurance Commissioner approved the treaty and on March 2, 1932 issued a certificate to the Independence authorizing it to do business in Pennsylvania. The treaty of reinsurance was regularly adopted by the directors of the Independence on January 11, 1932, and the executive committee of the- International formally approved it on April 26, 1932. During this time the Pennsylvania Insurance Department was in the process of making a complete examination of the Independence for the purpose of determining its solvency, and about May, 1932 the examination' was completed although the report was not officially filed by the Department until July 28th. It showed that the Independence was actually insolvent to the extent of about $700,000 as of December 31, 1931. Although the Independence was shown to be insolvent, the Insurance Commissioner on July 8, 1932 sent out a circular letter reciting the status of the Independence as to capital and surplus and stating that its liabilities had been satisfactorily reinsured with the International by the approved treaty and the Independence would continue the writing of insurance in the state. Further negotiations were had between the officials of the International and the Independence and the Insurance Commissioner with a view to determining the future of the business, and considerable correspondence passed between the parties and the Commissioner showing the urgency of the situation and the efforts made to adopt a satisfactory plan. It was agreed that because of the insolvency of the Independence it could not be permitted to continue and that it must either be taken over for liquidation by the Commissioner, or the International would have to take over its assets and settle its liabilities under the treaty of September 30, 1931. In this situation the International proposed to take over the assets of the Independence and settle its liabilities as provided in the treaty. The Insurance Commissioner, having satisfied himself that the International was solvent and financially able to assume the obligations of the Independence, approved the proposal. Pursuant thereto, after authorization by its stockholders at an adjourned annual meeting held on October 31, 1932, the Independence executed an agreement and bill of sale of that date under which pursuant to the treaty of September 30, 1931 it conveyed to the International all its assets and the International assumed the obligation to pay and discharge all its liabilities, with the provision, however, that the International should reconvey such sum as should exceed the liabilities so paid by the International. The bill of sale was stated to be absolute and free and clear of any trusts and the International was expressly given full right of disposition of the assets conveyed. The agreement and bill of sale were approved by the Insurance Commissioner and the securities of the Independence on deposit with his Department were turned over by him to the International. The certificate ,of authority of the Independence was surrendered as of the same date and the Commissioner authorized the International to take over and continue the business of the Independence. At the same time the President of the Independence notified all of its agents that the International was behind its policies and that the same management and organization would continue to do business as the Independence Indemnity Underwriters of International Reinsurance Corporation. The same information was also published in general insurance publications. Thereafter the International began to operate as a general insurance writing company but maintained as a separate organization for this purpose the officers, employees and records of the Independence. After the transfer some of the policies issued were those of the Independence, others contained explanatory riders, and when new forms were printed the policies were those of the Independence Indemnity Underwriters of the International. This course of operations continued until April 19, 1933. During this period a considerable number of persons procured policies from the International. A number of these were purchased upon the strength of the amalgamation of the assets of the two companies and of the statements issued by the Insurance Commissioner and the President of the Independence. On April 19, 1933 receivers were appointed by the Chancellor of Delaware for the International, which had then become insolvent. Shortly thereafter ancillary receivers for the Eastern District of Pennsylvania were appointed by the court below. Ancillary receivers were also appointed by the District Court for the Middle District of Pennsylvania and by a large number of other courts throughout the country. On May 11, 1933 the Insurance Commissioner of Pennsylvania, upon his own application, was appointed as liquidator of the Independence by the Court of Common Pleas of Dauphin County, Pennsylvania. In January, 1934 the Insurance Commissioner filed his original bill in this proceeding, and later his supplemental bill, averring that the transfer of assets from the Independence to the International on October 31, 1932 was fraudulent and void and that the assets should, therefore, be restored to him and an accounting made of their disposition. The cause was referred by the court below to a special master who after lengthy hearings filed an exhaustive report recommending the dismissal of the bill for want of equity. Exceptions to his report were dismissed by the court below,- which on February 9, 1938 entered a decree dismissing the bill for want of equity. After full consideration we are, satisfied that it committed no error in so doing. 1. The treaty of reinsurance entered into between the International and the Independence on September 30, 1931 was a valid and binding contract. This much is conceded by the appellant, who contends, however, that the contract was in effect an agreement of guaranty which the Pennsylvania statute, 8 P.S.Pa. § 1, converted into an agreement of suretyship. We do not so construe it. The agreement by its terms was a contract of reinsurance. It provided that “the Reinsurer hereby reinsures all of the outstanding liabilities of the” Independence. It was a promise to indemnify the Independence and was made directly to that company and not to its policyholders, who could claim under it only as donee beneficiaries. Since there was no privity between the persons originally insured by the Independence and the International as reinsurer it was a true agreement of reinsurance, and not a contract of guaranty. Goodrich and Hick’s Appeal, 109 Pa. 523, 2 A. 209. As a contract of reinsurance the treaty obligated the 'International to indemnify the Independence against all its liabilities then outstanding and against those which might thereafter be incurred until the Independence should be financially rehabilitated to the satisfaction of the Insurance Commissioner of Pennsylvania. It obligated the Independence to pay to the International as a premium such proportion of the assets of the Independence as might be necessary to liquidate its liabilities. If by reason of the insolvency of the Independence it could not be rehabilitated it was clearly obligated to pay over to the International its entire assets since the entire amount would in that case be needed to meet its liabilities. Such an agreement by an insurance company reinsuring its entire schedule of policies in consideration of the transfer of its entire property, with the approval of the Insurance Commissioner, is contemplated by Section 502 of the Pennsylvania Insurance Department Act of 1921, 40 P.S.Pa. § 202, and by Section 319 of the Pennsylvania Insurance Company Law of 1921, 40 P.S.Pa. § 442. We do not think that the letter written by the President of the International-to the Insurance Commissioner on January 2, 1932 modified the obligations of the treaty as we have outlined them. That letter was not addressed to the Independence, the other party to the treaty, and it merely informed the Commissioner that it was not the intention of the International to demand the transfer to it of the assets of the Independence, so long as the rehabilitation of the latter was possible, except as they might be needed to reimburse it for the payment of the Independence losses. The letter obviously referred to the relations between the parties pending the rehabilitation of the Independence and it was not intended to release the latter from its duty to convey all its assets' in case its rehabilitation should become impossible because of its insolvency. 2. Prior to October, 1932 it became clear to everyone involved that the Independence was hopelessly insolvent and had been at least since December 31, 1931. Its officers reported that they were unable to procure additional capital and its rehabilitation, therefore, became impossible. Only two courses were open to it, liquidation by the Insurance Commissioner or the transfer of all its assets to the International under the reinsurance treaty of 1931. The latter course was chosen with the approval of the Insurance Commissioner, if not at his insistence. There was no competent evidence that the International was not then entirely solvent. It agreed in good faith to take over the assets and business of the Independence and assume and pay all its liabilities in accordance with the treaty of September 30, 1931, even though the transaction had become an obviously losing one for it. Pursuant to the agreement the Independence on October 31, 1932 by bill of sale conveyed all its assets to the International and they are now held by its receivers, The appellant urged in the court below that this conveyance was procured by fraud. That court found, howqver, that no actual fraud had been shown and the appellant has not contended in this court that this finding was erroneous. Certainly the creditors of the Independence could hardly be said to have been defrauded by a transaction which provided them with a solvent debtor in place of an insolvent one. The appellant argues, however, that the transfer must be deemed fraudulent under the Uniform Fraudulent Conveyance Act, 39 P.S.Pa. §§ 351 to 363. That act declares that “Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.” 39 P.S.Pa. § 354. The act further declares that “Fair consideration is given for property * * * When, in exchange for such - property * * * as a fair equivalent therefor and in good faith * * * an antecedent debt is satisfied.” 39 P.S.Pa. § 353. As we have indicated the treaty of reinsurance imposed upon the Independence the obligation to convey its assets to the international in consideration of the reinsurance granted by the latter. When its insolvency became apparent this obligation matured. It was an antecedent debt of the Independence which was the exact equivalent of the property conveyed. Consequently the Uniform Fraudulent Conveyance Act can furnish no basis for the relief sought by the appellant. The defense of ultra vires also urged by the appellant is equally without support in the record and requires no discussion here. 3. Following the consolidation of the assets of the two companies by the conveyance of October 31st many policies of insurance were issued upon the faith of the combined assets in the hands of the International. Numerous claims upon these policies have matured and many of the creditors have • intervened as parties defendant. To grant the relief sought by the appellant would deprive these creditors of assets upon which they are entitled to rely. As we have seen, legal title to the Independence assets is now in the International. The equity of these creditors in those assets is at least equal to that of the prior creditors of the Independence who, under the reinsurance treaty, will be entitled to share in them in the hands of the receivers of the International. In this situation the maxim is applicable that “Between equal equities the law will prevail.” See Brill v. W. B. Foshay Co., 8 Cir., 65 F.2d 420; Dettra v. Kestner, 147 Pa. 566, 23 A. 889; Van Dyke v. Baker, 214 Pa. 168, 63 A. 594. Decree affirmed.

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

INDEPENDENT OIL WELL CEMENTING CO. v. HALLIBURTON et al. No. 468. Circuit Court of Appeals, Tenth Circuit. Jan. 11, 1932. Arthur C. Brown, of Kansas City, Mo. (C. E. Hall and Hall & Thompson, all of Oklahoma City, Okl., on the brief), for appellant. Leonard S. Lyon, of Los Angeles, Cal. (Henry S. Richmond, of Los Angeles, Cal., Hubert Ambrister, of Oklahoma City, Okl., and Ben F. Saye, of Duncan, Old., on the brief), for appellees. Before COTTERAL and PHILLIPS, Circuit Judges, and JOHNSON, District Judge. Rebearing denied February 15, 1932. PHILLIPS, Circuit Judge. Erie P. Halliburton and Halliburton Oil Well Cementing Company brought this suit against the Independent Oil Well Cementing Company for infringement of patents 1,486,-883 and 1,500,385. Halliburton is the patentee and owner of the patents in suit, and the Halliburton Oil Well Cementing Company is the exclusive licensee thereunder for the Mid-Continent Oil Field, which includes Okla^ homa. The trial court held the patents valid and infringed, and entered a decree accordingly. Patent 1,486,883 was applied for June 20, 1922, and was issued March 18, 1924. It is for a method of hydrating cement and other comminuted materials. Patent 1,500,385 was applied for January 4, 1924, and was issued July 8, 1924. It is for a method of hydrating cement and other comminuted materials and conveying such mixture to the point of use, with the speed of the mixing process and the speed of the conveying operation so synchronized that no substantial setting of Ihe mixture takes place before it is deposited at the place it is intended to remain, and for devices to carry out the methods of both patents. Hydrating cement consists in enveloping the particles of cement with water to bring about the chemical action whieh produces setting or hardening of the cement. While the inventions of the patents in suit are not so limited, they were primarily intended to provide a new method of mixing and conveying cement and a new means for employing the same in the cementing of oil wells. The cementing of an oil well is usually accomplished in the following manner. A string of pipe is lowered into the well so that it extends from the top of the well to a point shortly off the bottom of the hole. Neat cement, whieh is a mixture of water and Portland cement, is pumped down this pipe and forced through the bottom up around the outside of the pipe and there allowed to set. After it has set the hole is drilled through the cement. The purpose of the operation is to shut off water that flows in from the adjacent strata and down the outside of the pipe. Prior to the Halliburton inventions, it was standard practice to mix such cement by hand. Mechanical mixers were tried but were not satisfactory, because they did not assure a proper proportioning of the cement and water. The method of hydrating cement under the patents in suit contemplates the projection of a high velocity stream of water into a cement mixing chamber, the depositing of the dry cement into a hopper adjacent to such high velocity stream, the creation of a region of reduced pressure or suction by means of such high velocity stream, the drawing of the particles of dry cement into the stream by reason of such suction, the entraining of the cement in the stream, the mixing of the cement and water by the impact of the particles of water of the high velocity stream against the particles of dry cement, and the carrying of the mixture through the outlet of the mixing chamber by the force of such stream. Figure II of the patent drawings illustrates an apparatus suitable for carrying out such method, and is as follows: The apparatus is provided with a hopper 9 into whieh the cement is fed from the supply sacks. When in operation, the hopper is kept approximately full. Below the hopper is a mixing chamber 5. 19 is a fluid conducting pipe through which water it forced under high pressure. The water passes through a nozzle 16 and, by reason of the restriction of the nozzle and the pressure of the water, a high velocity stream of water is projected from such nozzle into the mixing chamber. This high velocity stream produces a zone of reduced pressure and eauses what is commonly called suction. This suction draws the dry cement into the high velocity stream and the force of the impact on the cement breaks up the column of cement into particles, forces away the envelope of air about the particles of cement, and covers such particles with a film of moisture. The outlet of the mixing chamber 21 is smaller than the mixing chamber. This slightly retards the passing of water and cement through the mixing chamber and insures complete hydration of the cement particles. The consistency of the mixture may be varied by changing the size of the nozzle. The quantity of the mixture produced may be regulated by increasing or decreasing the velocity of the stream of water. If the velocity of the stream is increased or •decreased, the amount of dry cement drawn in will increase or decrease in fixed proportion and the consistency of the mixture will remain constant. The cement and water are proportioned and mixed by means of suction and force inherent in a high velocity stream of water. When he ascertained that increasing or decreasing the velocity of the stream would vary the quantity of the mixture, but that the proportions of cement and water would remain constant, Halliburton empirically discovered a new principle which underlies his inventions. Patent 1,509,385 was filed as a continuation of, and during the time the application for patent 1,486,883 was pending. The patent office examiner ruled that the mixing art was classified in Division 25, and the conveying art in Division 4 of the patent office, and that only claims referring to mixing per se could be retained in the first patent. Thereupon the claims now appearing in the second patent were canceled from the application for the first patent, but with notice that they were not abandoned but reserved for the second application. The claims of the first and second patents are not eo-extensive. Such being the facts it is clear that the first patent is not an anticipation of the second. Anderson v. Collins (C. C. A. 8) 122 F. 451, 458; Ryan v. Newark Spring Mattress Co. (C. C. N. J.) 96 F. 101, 103; Nestle Pat. Holding Co. v. E. Frederics, Inc. (C. C. A. 2) 261 F. 780. Figures 5 and 9 of the patent drawings in the seeond patent are as.follows: The mixing per se is the same as in the first patent. It is accomplished by means of a mixing pump 45, water supply line 51, nozzle 8a by means of which a high velocity stream of water is introduced into the mixing chamber 7, which draws in the cement from the hopper 5, hydrates the same and deposits it in container 54. The fluid cement is then drawn from container 54 by delivery pump 46 and pumped into the well. During the cementing of an oil well, conditions may arise that render it necessary to vary from time to time the rate at which the cement is being pumped into the well. For example the earth may cave in, requiring the operator to slow down the delivery of cement into the well, or the cement may siphon, requiring the operator to speed up such delivery. After the cement has been hydrated it must not be permitted to stand for any substantial period before it is put in place, because if the chemical process of setting or hardening is permitted to take place to an appreciable degree the quality of the mixture is impaired. It is desirable therefore that the mixing of the cement should be speeded up or slowed down as the speed of the delivery of the cement into the well is increased or decreased. Under the methods of the seeond patent this is accomplished by simultaneously increasing or decreasing the speed of both the mixing pump 45 and the delivery pump 46. Changing the speed of the delivery pump increases or decreases the rate at which the cement mixture is fed into the well. Changing the speed of the mixing pump changes both the velocity and quantity of the water passing into the mixing chamber, and in fixed proportion the amount of dry eement drawn into the mixing chamber. Thus, by changing the speed of the pumps, the quantity of mixture produced and conveyed may be varied without changing the consistency of the mixture. It will be noted that the new principle discovered by Halliburton that one may vary the quantity of the mixture produced by adjusting the velocity of the stream of water and at the same time keep the proportions of water and eement constant and the consistency of the mixture uniform is an essential element in the synchronous method of mixing and conveying eement to the point of use of the second patent. The claims of the first patent, which embody the hydraulic principle for proportioning the eement and water and mixing the same, are set out in marginal Note l. The claims of the second patent which embody such principle are set out in marginal Note 2. While the decree of the trial court generally adjudged the patents valid and infringed, the memorandum opinion of the trial judge shows he had in mind the claims embracing the hydraulic principle for proportioning and mixing cement with water of the first patent, and the synchronous method of the second patent, and devices for carrying out such methods. We now pass to a consideration of certain prior patents and prior uses, which the defendant cites and relies upon as anticipations of the patents in suit. The Schaffer patent 1,220,995 is for an apparatus for hydrating lime. It employs downwardly directed sprays of water in part to hydrate the lime, but it does not disclose a high velocity stream of water solely for mixing lime and water, nor a high velocity stream of water for inducting the lime into the mixing chamber and proportioning the lime and water. The Taller patent 998,762 is for an apparatus for combining comminuted solids and liquids. It employs a jet of liquid for mixing the liquid with the solids, while the solids are suspended in a current of air, but it does not disclose a high velocity stream of water for proportioning the solids and liquids. ' The MeMichaels patent 1,127,660 is for a method and apparatus for transporting concrete. Under it the cement and aggregate are measured and placed in a closed container. After being so placed, air pressure is developed upon the top of the mass of concrete, and water is introduced in the forward part of the aggregate mass to lubricate the ingredients thereof. The compressed air which acts on the top surface of the mass is supplemented by a high velocity stream of air near the forward part of the mass to assist in mixing and in moving the mass up through the delivery pipe. The water introduced into the apparatus does not function to proportion the cement and water, or the cement, water, and aggregate. The patent discloses a high velocity stream of air for the purpose of mixing the several ingredients but not for proportioning them. The DuRell patent 1,157,092 is for a mixer and disintegrator. The patent drawings are as follows: The device consisttruncated cone 2 with its truncated end hanging downwardly into the casing and its base connected rigidly with the upper end of the casing, a vertically positioned adjustable vortex' nozzle 8 to force a liquid into and through the truncation of the cone, a chute 13 to direct the solid materials into the cone and holes in the cone to allow the mixture to boil and agitate above and below the cone, and a discharge opening 5. The specification of the patent states: “The liquid coming out of the vortex jet 8, being forced into and through the truncation 4 of the cone 2, causes a violent boiling and agitation in the mixer, by which the mixture from below the cone 2 is running back through the holes 7 from where it is again and again forced into and through the truncated cone 2. By this boiling and agitation, any solid, as sand, day and the like, which can be broken up by a jet, being fed into the mixer by the chutes 12, will be mixed with the liquid eoming out from the vortex jet 8, and it will b'e mixed also with any additional gas or other liquid to be discharged into the mixer from the tubes 14, agitating, disintegrating and mixing, as any heavy piece will sooner go through the lower holes 7 in the cone 2 before it will escape through the discharge opening 5, and thus a good equalized stream will flow out of the mixer at the discharge opening 5.” While this patent discloses a high velocity stream of liquid in connection with a truncated cone for the purpose of mixing- liquid and solid materials, it does not.disclose a high velocity stream of water as a means for proportioning and mixing cement and water, and the high velocity jet is not designed to draw in the solid materials nor control the proportions of liquid and solid materials. Such was the conclusion of the United States District Court for the Southern District of California in Halliburton & Perkins Oil Well Cementing Co. v. California Oil Well Cementing Co. (Equity H-85-B). Counsel for defendant place strong reliance upon the Scott mixer, used as early as 1910. The evidence clearly established, and the trial court found, that Scott’s device was a purely mechanical mixer, and that it did not employ a high velocity stream of water for proportioning and mixing cement and water. The Scott mixer has a mixing chamber or barrel with a shaft extending axially through the barrel, upon which shaft are mounted blades or paddles of the shape of a propeller blade. Above the mixing chamber there is a hopper with an outlet at the bottom regulated by a sliding iron door. The amount of cement fed from the hopper into the mixing chamber is regulated by manipulation, by means of a lever, of this sheet iron door. Water is introduced through two two-inch pipes which open into the head of the mixing chamber opposite the blades at the end of the shaft. The amount of water is regulated by valves in such pipes. The cement and water are proportioned by manually regulating the opening at the outlet of the hopper and the valves in the water pipes. The cement and water are mixed in the mixing chamber mechanically by the power driven blades which mix and force the cement out through the outlet at the end of the mixing barrel into a tank. A delivery pump draws the cement from such tank and delivers it into the well. If for any reason the speed of the delivery pump is varied, it is necessary to manually adjust the door on the hopper to vary the amount of cement fed into the mixing chamber, and to manually regulate the valves on the water lines to vary the amount of water fed into the mixing chamber. If a high velocity stream of water were projected into the mixing chamber, it would be broken up by the blades. The water and cement are not proportioned and mixed by means of a high velocity stream of water. We have examined the other patents and prior uses relied upon and are of the opinion that they do not employ a high velocity stream of water to proportion and mix the cement and water, do not anticipate the claims above set out of the patents in suit, and do not merit specific discussion. Counsel for defendant contend that the claims of the second patent in suit are mere aggregations and not patentable combinations. With respeet to the result produced, it is not essential that it be a wholly new result, but it is sufficient if an old result is effected in a more facile, economical, or efficient way. Galvin Elec. Mfg. Co. v. Emerson Elec. Mfg. Co. (C. C. A. 8) 19 F.(2d) 885, 888; Ottumwa Box Car Loader Co. v. Christy Box Car Loader Co. (C. C. A. 8) 215 F. 362, 369; New York Scaffolding Co. v. Whitney (C. C. A. 8) 224 F. 452, 456; National Hollow Brake-Beam Co. v. Interchangeable B. B. Co. (C. C. A. 8) 106 F. 693, 706, 707; Skinner Bros. Belting Co. v. Oil Well Imp. Co. (C. C. A. 10) 54 F.(2d) 896; Grinnell Washing Mach. Co. v. E. E. Johnson Co., 247 U. S. 426, 432, 38 S. Ct. 547, 62 L. Ed. 1196. When the respective individual functions of the elements assembled are not changed and where they produce no result other than the added results of such functions, there is a mere aggregation of elements. Pelton WaterWheel Co. v. Doble (C. C. A. 9) 190 F. 760, 766; Jones-McLaughlin, Inc., v. Amerada Petroleum Corp. (C. C. A. 10) 47 F.(2d) 828, 830. When the elements are so united that by their reciprocal influence upon each other, or by their joint action on a common objective, they perform additional functions and accomplish additional results, the union is a true combination. Stutz v. Armstrong (C. C. Pa.) 20 F. 843; United States Hoffman Machinery Corp. v. Pantex Pressing Mach. Co., Inc. (D. C. Del.) 35 F.(2d) 523, 525. The result must be due to the joint and co-operative action of all the elements, not a mere aggregation of the several results of the separate elements acting independently (National Cash Register Co. v. American Cash-Register Co. [C. C. A. 3] 53 F. 367, 371; Anton v. Grier Bros. Co. [C. C. A. 3] 185 F. 796; Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co. [C. C. A. 6] 116 F. 363, 370); it must be the product of the combination and not a mere aggregate of several results, each a complete product of one of the combined elements. Muser v. Bell (C. C. A. 2) 278 F. 904, 910; Victor Cooler Door Co. v. Jamison Cold Storage Door Co. (C. C. A. 4) 44 F.(2d) 288, 293; Pelton Water Wheel Co. v. Doble (C. C. A. 9) 190 F. 760, 766; Grinnell Wash. Machine Co. v. E. E. Johnson Co., 247 U. S. 426, 432, 38 S. Ct. 547, 62 L. Ed. 1196; Palmer v. Corning, 156 U. S. 342, 15 S. Ct. 381, 39 L. Ed. 445; Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L. Ed. 241; Reckendorfer v. Faber, 92 U. S. 347, 357, 23 L. Ed. 719. It is not necessary that the action of the elements be simultaneous. Independent Coal Tar Co. v. Cressy Contracting Co. (C. C. A. 1) 260 F. 463, 468; Willard v. Union Tool Co. (C. C. A. 9) 253 F. 48, 53; Novelty Glass Mfg. Co. v. Brookfield (C. C. A. 3) 170 F. 946, 954; Manville Mach. Co. v. Excelsior Needle Co. (C. C. A. 2) 167 F. 538, 540; Forbush v. Cook, 9 Fed. Cas. page 423, No. 4931; Reckendorfer v. Faber, 92 U. S. 347, 357, 23 L. Ed. 719. Neither is it necessary that the mutual interaction of the elements be constant. Lyman Mfg. Co. v. Bassick Mfg. Co. (C. C. A. 6) 18 F.(2d) 29, 33. Nor is it objectionable that the joint action which produces the unitary result comes through the mediation of the operator or from the operating force. Dudlo Mfg. Co. v. Varley Duplex Magnet Co. (C. C. A. 7) 253 F. 745; Krell Auto Grand Piano Co. v. Story & Clark Co. (C. C. A. 7) 207 F. 946. It is sufficient that the elements so co-act or co-operate that as a consequence of their union a new and useful result or an old result in a more facile, economical, or efficient way, and not a mere aggregation of the product of each element, is produced. Ohmer Fare Register Co. v. Ohmer (C. C. A. 6) 238 F. 182, 190; International Mausoleum Co. v. Sievert (C. C. A. 6) 213 F. 225, 229; National Cash Register Co. v. American Cash Register Co. (C. C. A. 3) 53 F. 367, 371. The distinction between a combination and an aggregation is aptly stated by Robinson in his work on Patents, vol. 1, §§ 154, 155, and 156, as follows: “Where operations or instruments are ■* * * united, one of two results must follow. Either each element remains unchanged in function and effect; or by the action of the elements upon eaeh other, or their joint action on their common object, they perform additional functions and accomplish additional effects. The former union is a mere collocation or aggregation of the elements. Although they have been brought together in an apparent organism and rendered more available for use, they still remain the same distinct and independent means, still acting as so many separate units and not cooperating with each other to perform additional functions and accomplish additional results. Such unions, therefore, are not the creation of new means. They do not involve an exercise of the inventive faculties, nor can they be protected by a patent. “But when these elements are so united that by their reciprocal influence upon each other, or their joint action on their common object, they perform additional functions and accomplish additional results, the union is a true combination. While every element remains a unit, retaining its own individuality and identity as a complete and operative means, their combination embodies an entirely new idea of means, and thus becomes another unit, whose essential attributes depend on the co-operative union of the elements of which it is composed. Such a combination is a different invention from the elements themselves, whether considered in their separate or their aggregated state, the method of their co-operation in the combination being the result of the inventive act. Whether the elements are new or old, and whether they co-act successively or simultaneously is of no importance. To unite them in a new means by the exercise of inventive skill is invention, and renders the combination, as an entirety, the subject-matter of a patent. “This union of elemental instruments or operations in a new operation or instrument must necessarily produce effects beyond the sum of the effects producible by all the elements in their separated state. This is often the only test by which a combination can be distinguished from an aggregation, and is the one usually applied by the courts. And it is certainly reliable. For sinee diversity of end necessitates diversity of means, if the new combination accomplishes results that could not have been achieved either by its individual or collective elements, their union must inevitably have brought into action some new or as yet unawakened energy, which constitutes a new and independent means.” The primary ob ject of the second patent is to provide a method and apparatus for mixing water and cement and for conveying the mixture to the point of use and depositing it in its final form before its quality has been impaired by setting or hardening to an appreciable degree. This is a unitary result produced by the combined forces of the mixer and conveyer, and it could only be accomplished by maintaining a synchronous relation between the speed of the mixer and the speed of the conveyer. While it is true that the mixer mixes the cement and the conveyer thereafter takes it and conveys it to the point of use, yet it is because of co-operation and co-ordination between the two that the object of depositing the mixture in place with such speed as conditions permit and require and with the quality unimpaired by reason of the setting or hardening of the cement is accomplished. There is co-ordination of action between the mixer and the conveyer in that their speeds are synchronized; there is cooperation in that one mixes and the other conveys, and the mixture produced by the former exactly equals that which the latter immediately conveys and puts in place. This coordination and co-operation is possible because the speed of the mixer can be controlled by regulating the pressure and velocity of the stream of water which proportions and mixes the cement and water. The result produced is more than the aggregate of mixing and conveying, it is mixing and conveying in synchronous relation so that the cement is put in place with its quality unimpaired. While the result is old, it is accomplished in a new and more facile, economical, and efficient way. We conclude that the claims of the second patent in suit, set out in Note 2, are patentable combinations. The alleged infringing method and apparatus are illustrated by the following drawings: Counsel for defendant contend that its method does, not embrace and its apparatus does not employ a high velocity stream of water to proportion and mix the cement and water, but that it uses a mechanical means to induct the cement into the mixing chamber and to hydrate the cement. Defendant’s mixer consists of a hopper similar in shape to an inverted truncated pyramid. Beneath this hopper is a cylinder 2. Between the hopper and cylinder is a throat or opening 1 which connects the hopper and the cylinder. In the hopper is a one-inch pipe 3 extending horizontally and adjacent to one side of the hopper. In this pipe are seven holes 4, approximately five-sixteenths of an inch in diameter and three and one-eighth inches apart. On the side opposite the water pipe is a screw type of auger or helix 5. A shaft 12 extends through the cylindrical chamber and on it is mounted paddles 6 approximately two and one-half inches apart. These'paddles are set at a slight angle and are arranged spirally around the shaft. The auger 5 in the hopper and the paddles 6 in the cylindrical chamber revolve by means of roller chain 7 which drives the shaft 12 through sprockets ffiounted thereon. At the outer end of the cylindrical chamber is an opening 8 which allows the mixture to pass into an adjacent container 9. Plaintiffs’ expert witnesses testified that in the operation' of defendant’s apparatus water is introduced under pressure into pipe 3 by means of a pressure pump and is discharged at high velocity through the seven openings 4 in such pipe; that it travels downwardly and approximately parallel to the side of the hopper next to pipe 3, in the throat between the hopper and the cylindrical chamber; that the hopper is kept filled with cement ; that such streams of water create areas of reduced pressure; that the suction force created thereby draws the dry cement into such high velocity streams of water; that the water and cement are mixed by the impact and shock of the particles of water in such streams upon the particles of cement; that such mixing is substantially completed in the spaee between pipe 3 and the cylindrical chamber; that the proportioning and mixing of the cement and water is effected by the high velocity streams of water; and that the auger 5 and the shaft 12, and the paddles 6 serve no useful purpose. They further testified that they made certain tests of defendant’s apparatus; that they operated it first with the driving chains removed and then with the shaft and paddles wholly removed, and that in each instance it proportioned and mixed the cement and water as efficiently and rapidly as when the shaft and paddle wheels were driven normally;. that such tests demonstrated that such streams of water form practically a sheet of water moving at high velocity downwardly and approximately parallel to the side of the mixer in which the water pipe is situated, that they create areas of reduced pressure which draw in the dry cement, and that they hydrate it by the impact and shock of the water. They further testified that they saw one of defendant’s machines on a cementing job mixing and delivering neat cement with its usual speed and efficiency, while the power which moves the shaft and auger was shut off. There was testimony to the contrary, hut the trial court, who heard the witnesses testify and had the opportunity to observe their demeanor while testifying, found the facts in accordance with the testimony of plaintiffs’ witnesses. The finding of a chancellor made on conflicting evidence is presumptively correct and will not be set aside unless some serious mistake has been made in the consideration of the evidence. Crawford v. Briant (C. C. A. 10) 53 F.(2d) 754; New York Life Ins. Co. v. Griffith (C. C. A. 10) 35 F.(2d) 945; Adamson v. Gilliland, 242 U. S. 350, 37 S. Ct. 169, 61 L. Ed. 356; Fienup v. Kleinman (C. C. A. 8) 5 F.(2d) 137; Rogers v. Jones (C. C. A. 10) 40 F.(2d) 333; Blettner v. Gill (C. C. A. 7) 251 F. 81; Diamond Patent Co. v. Webster Bros. (C. C. A. 9) 249 F. 155. Furthermore, from a careful examination of the record, we are convinced that the'trial court correctly resolved the facts in favor of plaintiffs. We conclude therefore that defendant employs high velocity streams of water to proportion and mix the water and cement and to discharge the hydrated cement from the mixer, as described in the claims set out in Note 1, and that it infringes such claims. In the operation of defendant’s apparatus in cementing an oil well after the mixture has been deposited in the container 9, it is drawn therefrom by the delivery pump and forced down through the well casing to the point of use. ' Plaintiffs’ witnesses testified that in the operation of defendant’s device in the cementing of an oil well, the operator maintains a synchronous relation between the speed of the mixing device and the speed of the conveying device by regulating the water pressure and delivery pressure generated by the pumps. This of course would only be possible if the proportioning of the cement and water was effected by high velocity streams. Here again the trial court found the facts in accordance with the testimony of plaintiffs’ witnesses and in accordance, wa think, with the great weight of the evidence. Thus, it will be seen that defendant employs the combinations of the methods and means described in the claims set out in bfote 2, and that the elements of such combinations perform the same functions and accomplish the same result as the elements of such claims. We therefore conclude that the methods and device employed by defendant infringes the several claims set out in Notes 1 and 2. We hold that such claims of the patents in suit are valid and infringed. We construe the decree below as so adjudging and as not passing upon the other claims. The decree is affirmed. Note 1. “5. The method of reducing cement and its content to a state of moist fluidity which comprises depositing the cement adjacent to a mixing chamber ahd directing a high velocity stream or current of liquid only into the mixing chamber for creating a partial vacuum therein for inducting cement into said chamber and for mixing the cement and liquid to cause the liquid to penetrate the particles of cement. “6. The method of producing a fluent mixture of liquid and cement, which comprises depositing the cement adjacent to a mixing chamber and directing a high velocity stream or current only of such liquid through the mixing chamber for creating a region of suction therein for inducting cement into said chamber at a rate proportional to the rate of flow of said stream and for synchronously with said induction mixing the cement and liquid to cause the liquid to penetrate the particles of cement.” "8. The method of producing a fluent mixture of liquid and cement which comprises mixing the cement and such liquid in substantially a vacuum created only by the action of a high velocity stream or current of such liquid, and varying the rate of flow of such liquid for varying the quantity of mixture produced. “9. The rgethod of producing a fluent mixture of liquid and cement which comprises mixing the cement and such liquid in substantially a vacuum created only by the action of a high velocity stream or current of such liquid, discharging the mixture subject to a limited retardation and varying the rate of flow of such liquid for varying the quantity of mixture produced. **10. The method of producing a fluent mixture of cement and a liquid, which comprises depositing cement adjacent to a mixing chamber and inducting the cement into said chamber and simultaneously mixing and discharging such cement subject to retardation in the presence of a partial vacuum created solely by the action of a high velocity-stream of such liquid. “11. The method of producing a fluent mixture of cement and liquid, which comprises producing a high velocity stream or current of such liquid which forms the sole medium for ‘creating a region of suction in a mixing chamber, and depositing the cement adjacent to said chamber for permitting such stream or current of liquid to advance the cement in response to the action and in the presence of such suction, and imposing limited retardation on the mixture to bring the liquid and cement into intimate association for producing an absorption of the liquid by the particles of cement. “12. The method of producing a fluent mixture of liquid and cement which comprises creating a reduced atmospheric pressure in a chamber solely by a high velocity stream or current of such liquid for inducting such cement into said stream or current and retarding the discharge of the liquid mixture to cause said stream to create an increased atmospheric pressure in such chamber for impregnating the particles of cement with such liquid.” Note 2. *‘l. A mixing device comprising an upright substantially cylindrical mixing chamber, a lateral outlet conduit having therein a constricted zone, means for introducing a jet of liquid at high velocity into said upright mixing chamber, such introduction being in the direction of the mass at the point of such introduction, means for delivering solid pulverulent material directly into said mixing chamber.” “10. A mixer for producing fluid cement grout, including a feed hopper, a substantially cylindrical mixing chamber mounted below the same and; adapted to receive dry cement therefrom, said chamber being wholly unobstructed interiorly, a downwardly projecting nozzle substantially concentric with said mixing chamber and terminating at near the upper end of said mixing chamber, and means for supplying liquid under pressure to said nozzle. “11. A mixer for producing fluid cement grout, including a feed hopper, a substantially cylindrical chamber mounted below the same and adapted to> receive dry cement therefrom, a free unobstructed, opening being provided from said hopper into said mixing chamber, a downwardly projecting nozzle substantially concentric with said mixing chamber and terminating at near tbe upper end of said mixing chamber, and means for supplying liquid under pressure to said nozzle, an outlet conduit leading from said mixing chamber having a portion thereof adapted to impede the efflux of said grout through the same.” “14. The process of continuously feeding dry cement and for continuously reducing same to plastic state, which includes, induction, by, a

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

Dale HILLBURN, by his parents and next friends Ralph and Eleanor HILLBURN, James Corbett, by his next friend Roberta Reid, Sandra Fuchs, by her mother and next friend Florence Fuchs, Stephen Kaplanka and Mark Kaplanka, by their mother and next friend Dorothy Napolitano, Plaintiffs-Appellants-Cross-Appellees, v. Edward MAHER, Commissioner of the Connecticut Department of Income Maintenance, and New Brook Hollow Health Care Center, Inc., Defendants-Appellees, Edward Maher, Commissioner of the Connecticut Department of Income Maintenance, Defendant-Appellee-Cross-Appellant. Nos. 853, 897, Dockets 85-7900,85-7908. United States Court of Appeals, Second Circuit. Argued March 10, 1986. Decided June 30, 1986. David C. Shaw, Hartford, Conn. (Trow-bridge, Ide & Greenwald, P.C., Shelley White, Hartford, Conn., on brief), for plaintiffs-appellants-cross-appellees. Hugh Barber, Asst. Atty. Gen., Hartford, Conn. (Joseph I. Lieberman, Atty. Gen., Hartford, Conn., on brief), for defendant-appellee-cross-appellant. Public Interest Law Center of Philadelphia, Philadelphia, Pa. (Frank J. Laski, Judith A. Gran, Philadelphia, Pa. of counsel), filed a brief for amicus curiae The Ass’n for Retarded Citizens, Connecticut. Before KEARSE and CARDAMONE, Circuit Judges, and POLLACK, District Judge. Honorable Milton Pollack, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation. KEARSE, Circuit Judge: Plaintiffs Dale Hillburn, et al., recipients of aid under the Medicaid program, Title XIX of the Social Security Act (“Title XIX” or “Medicaid Act”), as amended, 42 U.S.C. §§ 1396-1396p (1982 & Supp. I 1983 & Supp. II 1984), who reside in “skilled nursing facilities” (“SNFs”) in the State of Connecticut (“State”), appeal on behalf of themselves and a class of those similarly situated, from a final judgment entered in the United States District Court for the District of Connecticut after a bench trial before Jose A. Cabranes, Judge, granting the relief sought in their complaint to the extent of enjoining defendant Commissioner of the Connecticut Department of Income Maintenance (together “CDIM”) to ensure that SNFs with which CDIM has Medicaid provider agreements provide appropriate adaptive wheelchairs and related services to members of the plaintiff class, and to take “corrective action as needed” against SNFs that fail to provide such wheelchairs and services. On appeal, plaintiffs contend principally that the district court’s judgment is not broad enough and that the court should have considered plaintiffs’ claims relating to essential programs other than adaptive wheelchairs and “order[ed CDIM] to implement the federal Medicaid law in Connecticut SNFs.” CDIM cross-appeals, contending principally that the district court erred in finding its reviews of the care provided by SNFs inadequate, and that the injunction inappropriately requires CDIM to terminate its provider agreements with SNFs that fail to provide appropriate adaptive wheelchairs and related services even if the SNFs remain certified for participation in the Medicaid program by other regulatory bodies. We conclude that the injunction against CDIM was proper and that plaintiffs were not entitled to broader relief, and we accordingly affirm the judgment of the district court. I. BACKGROUND As the term is used in the Medicaid Act, an SNF is, essentially, an institution whose staff includes at least one registered professional nurse full time, whose policies are developed with the advice of a group of professional personnel including at least one physician, and which is engaged primarily in providing skilled nursing care and related services to resident patients who require medical or nursing care. See 42 U.S.C. § 1395x(j) (1982 & Supp. II 1984); id. § 1396a(a)(28). Plaintiffs were, at the time this suit was filed, disabled residents of SNFs in Connecticut. The principal defendant, and the only party against which the district court’s judgment is directed, is CDIM, which is the single Connecticut agency responsible for administering the State’s Medicaid plan. CDIM itself does not provide health care services but enters into “provider agreements” with Connecticut SNFs that are certified to participate in the Medicaid program. The provider agreements, which are renewed yearly, state that the SNF will provide care and services in conformity with Title XIX and will meet the conditions of participation detailed in regulations promulgated by the United States Department of Health and Human Services (“HHS”), see 42 C.F.R. §§ 405.1101-405.-1137 (1985). Under the federal Medicaid laws, CDIM has two methods of making payment for SNF care: (1) payments to SNFs according to per diem rates for “skilled nursing facility services,” as defined in 42 U.S.C. § 1396d(f) and 42 C.F.R. § 440.40(a) (1985), and (2) payments to suppliers for other Medicaid benefits. In general, CDIM pays SNFs for services rendered to Medicaid-eligible persons resident in such facilities principally on a per diem basis calculated with reference to the SNF’s costs, which include expenditures not only for salaries, fees, supplies, staff training, and so forth, but also for equipment purchased by the SNF. Under this method of payment, CDIM’s reimbursement of an SNF for a particular expenditure may take as long as 18 months. For certain equipment that may not fall within the definition of “skilled nursing facility services” (hereinafter “separate Medicaid benefits”), CDIM pays the supplier of the equipment directly, and the SNF incurs no cost. An adaptive wheelchair is a piece of equipment designed to support and properly position the body of a disabled person; it is used for a person whose disabilities preclude the effective use of a standard wheelchair. An adaptive wheelchair must be designed with a particular individual in mind and is usually unsuitable for use by any other individual. Such wheelchairs have only recently become commercially available for adults and may be expensive to purchase and maintain. A. The Complaint and CDIM’s Revision of Policy Prior to the commencement of this lawsuit in February 1982, CDIM’s policy was to reimburse SNFs for the cost of adaptive wheelchairs as part of their per diem rates rather than to pay the suppliers of such chairs directly. The thrust of plaintiffs' complaint was that this policy had resulted in SNFs’ failing to provide needed adaptive wheelchairs to their disabled Medicaid-eligible residents because the cost was great and the delay in reimbursement too long. Contending that CDIM’s policy therefore violated Medicaid regulations, plaintiffs sued on behalf of themselves and a class eventually certified as Plaintiffs also complained that as SNF residents they were treated differently from Medicaid-eligible persons who did not reside in SNFs. For the latter group, CDIM paid the suppliers directly for needed adaptive wheelchairs. Plaintiffs contended that CDIM’s policy of using only the per diem method of reimbursement for such chairs for Medicaid-eligible SNF residents thus discriminated against them in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982 & Supp. II 1984), and the Equal Protection Clause of the Constitution. [a]ll Medicaid recipients residing in or admitted to Skilled Nursing Facilities in the State of Connecticut on or after February 18, 1982, who, under defendant’s policies and practices, cannot obtain the adaptive wheelchairs necessary to maintain their health and insure their effective development. The complaint principally sought injunc-tive relief requiring CDIM and SNFs to provide adaptive wheelchairs to members of the plaintiff class and to provide “related professional support services necessary to ensure that such adaptive wheelchairs are safely and properly used.” A five-day trial was held between December 17, 1982, and April 3, 1984, with substantial continuances on consent of the parties in an effort to promote settlement. After several days of trial had been completed, CDIM amended its policy in October 1983 (and modified it further in February 1984), undertaking to make payment directly to suppliers for the cost of adaptive wheelchairs for Medicaid-eligible SNF residents. In light of its amended policy, CDIM moved in November 1983 for dismissal of the complaint, contending that its new payment system rendered the action moot. The district court denied the motion. It concluded that since, under the new policy, SNFs were given the responsibility for identifying those SNF residents who needed adaptive wheelchairs and for monitoring their use, “[i]t cannot be said with assurance that the new policy will cause adaptive wheelchairs to be provided to all members of the plaintiff class.” With its motion to dismiss, CDIM filed a motion in limine seeking to exclude all future evidence at trial “concerning the care, habilitation or development of retarded persons residing in [SNFs]... unless such testimony is strictly limited to what professional services are required to ‘adequately and safely use adaptive wheelchairs in nursing homes.’ ” The court stated that CDIM was perhaps attempting to tie plaintiffs too inflexibly to the language of the complaint, and it denied the motion without prejudice, noting that Fed.R.Civ.P. 1 provides that the Rules “shall be construed to secure the just, speedy, and inexpensive determination of every action,” and that Fed.R.Civ.P. 8(f) provides that, “[a]ll pleadings shall be so construed as to do substantial justice.” B. Plaintiffs’ Efforts To Broaden the Scope of the Action In June 1984, two months after the close of trial, plaintiffs moved to expand the definition of the plaintiff class in order to, inter alia, include in the class all persons who were or would be unable to obtain adaptive wheelchairs “as part of an overall therapeutic program that is necessary to maintain their health and insure their effective development.” CDIM objected to this redefinition on the ground that it in effect sought to amend the complaint to expand plaintiff’s claims into areas unrelated to adaptive wheelchairs; it argued that Fed.R. Civ.P. 15(b) did not authorize such a post-trial amendment of the complaint because these broader issues had not been tried with the express or implied consent of CDIM. The court denied plaintiff’s motion to redefine the class insofar as it sought expansion of the class’s substantive claims, noting that CDIM had “objected consistently to the introduction of evidence concerning programming to maximize the ‘physical, mental and psychosocial functioning’ of class members.” The court expressly intimated no view as to the appropriateness of a properly filed motion to amend the complaint. In October 1984, plaintiffs formally moved pursuant to Fed.R.Civ.P. 15(a) and (b) to amend the complaint, seeking principally to expand the action beyond the claims relating to adaptive wheelchairs and related services in order to demand “programming... to maximize the physical, mental and psychosocial functioning” of class members. After receiving extensive oral argument and briefing, the court observed that the motion had been inexplicably delayed, without permission, until long after the trial had ended and the case had been submitted to the court for decision; that CDIM had objected at trial to the introduction of evidence relating to these broader issues and would be prejudiced by the amendment; and that the amendment might necessitate supplemental evidentiary proceedings. Concluding that “[r]e-opening discovery and trial of the action at this late date would not serve the interests of justice,” the court denied the motion to amend the complaint. C. The District Court’s Findings, Conclusions, and Judgment In a Memorandum of Decision dated July 17, 1985 (“Opinion”), the court ruled that plaintiffs were entitled to some relief, although most of their claims had been mooted by CDIM’s new policy. First, the court found that adaptive wheelchairs are medical necessities for many severely disabled persons: 23. An adaptive wheelchair can be helpful in preventing the development of contractures____ Adaptive wheelchairs also reduce pain and discomfort caused by improper body positioning, and promote skin integrity by alleviating pressure points____ By providing appropriate body alignment, adaptive wheelchairs also facilitate safe and proper breathing, swallowing, and digestion____ 24. For many severely disabled persons, including some residents of SNFs, adaptive wheelchairs are a medical necessity---- Failure to provide an adaptive wheelchair can lead to deterioration of health and skills, and increases the risk of injury and death____ 25. An individual who needs an adaptive wheelchair and does not have one will not be able fully to benefit from the physical therapy that is necessary to promote his health and physical well-being— For this reason, some class members receive little or no needed physical therapy____ 26. Many residents of SNFs who have been provided with adaptive wheelchairs have exhibited noticeable improvement as a direct result of using their adaptive wheelchairs____ Opinion at 15-16. The court concluded that “the prescription of an adaptive wheelchair, like that of any necessary item of medical care, is a service that the SNF is required to provide as a condition of participation in the Medicaid program.” Id. at 38. The court held that insofar as plaintiffs had challenged CDIM’s failure to pay suppliers directly for adaptive wheelchairs for Medicaid-eligible SNF residents, their claims were mooted by CDIM’s 1983 amendment to its policy. The court decided, however, to construe the complaint as asserting also that CDIM had violated pertinent Medicaid standards by failing to ensure that SNFs properly (a) evaluated class members for appropriate adaptive wheelchairs and (b) provided appropriate services related to such wheelchairs. As thus construed, the complaint was not mooted by CDIM’s new policy. Under that policy, the SNFs, not CDIM, had the responsibility for identifying SNF residents needing adaptive wheelchairs, performing interdisciplinary assessments of each resident’s need, training their staffs in the safe and efficient use of such wheelchairs, and monitoring the residents who receive such chairs. The court noted that the costs incurred by SNFs in meeting these responsibilities would be reimbursed as part of their per diem rates, with the usual delays, and hence there still might exist some disincentive for SNFs to seek adaptive wheelchairs for their residents who are Medicaid recipients. The court concluded that CDIM had failed to comply with its obligations under federal law to ensure the adequacy of the SNFs’ provision of such wheelchairs and services. It noted that CDIM is obligated by 42 C.F.R. §§ 456.600-456.614 (1985) to have medical review teams make periodic inspections of the adequacy of the care and programs provided by SNFs with which CDIM has provider agreements, and to have these teams report on “(1) ‘the adequacy, appropriateness and quality of all services provided in the facility or through other arrangements, including physician services to recipients,’ and (2) ‘[sjpecific findings about individual recipients in the facility.’ 42 C.F.R. § 456.611.” Opinion at 40. It noted further that CDIM is required to “ ‘take corrective action as needed based on the report and the recommendations of the team....’ 42 C.F.R. § 456.613.” Opinion at 40. The court found that, notwithstanding these requirements, CDIM’s medical review teams made no effort to assess the appropriateness of the plan of care ordered by a physician for an SNF resident and hence CDIM could not properly evaluate the adequacy of care provided by SNFs. Thus, the court concluded that CDIM had failed to comply with its obligations under federal law to ensure the adequacy of the services provided by the SNFs with which it had provider agreements. Accordingly, the court entered judgment against CDIM (“Judgment”), enjoining it principally (1) to ensure that its medical review teams, in the course of the required inspections of the adequacy of care provided by SNFs, inspect and determine whether or not participating SNFs have (a) adequately evaluated class members’ needs for adaptive wheelchairs, and (b) arranged for the provision of such chairs and for related services necessary to ensure the safe and adequate use of such chairs in SNFs for class members who require such services; and (2) to “take corrective action as needed” if its medical review team finds that a participating SNF has failed adequately to assess the need for, provide, or provide needed services with respect to, adaptive wheelchairs for its resident Medicaid recipients. The Judgment defines “corrective action as needed,” which is not defined in the regulations, to “include[ ] those steps which [CDIM], or [its] designees, deem to be reasonable to ensure that [SNFs] provide adaptive wheelchairs and related services to class members, including, but not necessarily limited, to:” (1) consultation with the medical staff of the SNF, (2) requesting peer review by appropriate medical societies, and (3) filing complaints with appropriate State agencies such as the Connecticut Department of Health Services (“CDHS”), which could lead to the decertification of the SNF as a Medicaid provider. Judgment at 9-11. Finally, the Judgment provides that if the corrective action taken or initiated by CDIM fails to remedy the failure of a participating SNF to provide an appropriate adaptive wheelchair, or related services necessary to ensure its safe and adequate use, to one or more Medicaid recipients residing in the facility, CDIM shall terminate the facility’s provider agreement [with CDIM,] notwithstanding the fact that the facility is otherwise certified to participate in the Title XIX Medical Assistance Program by [CDHS] or [HHS] pursuant to the provision of 42 U.S.C. § 1396a(a)(9), 42 U.S.C. § 1396a (a)(33), 42 U.S.C. § 1396a(i), 42 U.S.C. § 1396i, 42 C.F.R. § 440.40 and 42 C.F.R. § 442.1-442.202, and there is no other basis in federal law (such as violation of civil right requirements) for a termination of the provider agreement. Judgment at 12-13. The Judgment provides that any such termination “shall comply with the procedural requirements of federal law, including the requirements of notice and an opportunity for an administrative hearing by the facility. See 42 C. F.R. § 431.151 — §' 431.154.” Judgment at 13. D. Issues on Appeal Plaintiffs seek affirmance of the Judgment so far as it goes, but they have appealed, contending principally that the district court erred in granting them only narrow relief. They argue that the court should have (1) made a finding of fact that the health of class members had deteriorated as a result of their failure to receive adaptive wheelchairs, (2) issued a broad injunction requiring CDIM to “implement the federal Medicaid law in Connecticut SNFs,” and (3) permitted them to amend the complaint to allege claims extending to programs and services other than those related to adaptive wheelchairs. CDIM has cross-appealed, contending principally that the district court erred (1) in finding that CDIM’s reviews of SNF care have failed to meet federal Medicaid standards, and (2) in enjoining CDIM to terminate its provider agreements with noncom-pliant SNFs that continue to be certified for Medicaid participation by HHS or CDHS. For the reasons below, we find merit in none of the arguments advanced in support of the appeal or the cross-appeal. We turn first to the cross-appeal issues, to determine whether such relief as was granted was proper, and then to the appeal issues, to determine whether the denial of additional relief was proper. II. CDIM’S CONTENTIONS The principal issues presented by CDIM’s cross-appeal are whether the district court erred in ruling that the reviews conducted by CDIM’s medical review teams failed to comply with Medicaid regulations, and whether the court could properly require CDIM to terminate its provider agreements with SNFs that fail to provide appropriate care for their Medicaid-eligible residents but continue to be certified by HHS or CDHS to participate in the Medicaid program. We find no clear error in the court's findings of fact, nor any misapplication of legal principles, nor any abuse of discretion in its fashioning of remedy. A. The Finding of Inadequate CDIM Review of SNF Care CDIM contends that the district court erred in ruling that the reviews of the care provided by SNFs conducted by CDIM’s medical review teams failed to comply with federal law. We find no error. The court found that although the evidence at trial was insufficient to show that the infrequency with which CDIM reviews were conducted violated Medicaid regulations, the evidence was ample to show that the content of those reviews failed to meet the requirements of federal law. The court’s findings of fact with respect to the substance of CDIM’s reviews of the adequacy of the care provided by SNFs included the following: (1) that CDIM has entered into an agreement with CDHS which requires CDHS to perform periodic survey and certification inspections of SNFs participating in the Medicaid program. The purpose of these inspections is to determine whether such SNFs satisfy the conditions prescribed by HHS for participation in the program; (2) that the survey teams sent out by CDHS determine whether assessments prescribed by SNF physicians have been performed, whether a physician has approved a plan of care, and whether the plan of care is being executed; but they do not attempt to assess whether the plan of care ordered by the SNF physician is appropriate; (3) that if the CDHS review team finds deficiencies affecting the SNF population as a whole, they will prepare reports that could lead to the decertification of the SNF; but they do not report deficiencies that affect only a single SNF resident; and (4) that CDIM’s own medical review teams also review physicians’ orders for Medicaid recipients and determine whether the physician’s orders are being executed; but they, like the CDHS survey teams, do not attempt to assess the appropriateness of the physician’s orders____ Accordingly, if the physician of an SNF resident has ordered that the resident be assessed for an adaptive wheelchair, [C]DIM’s inspection teams determine whether the assessment has been conducted. If no assessment has been ordered by a physician, the teams do not attempt to determine whether the resident has been assessed for an adaptive wheelchair, or whether such an assessment would be appropriate. Opinion at 23. The court found that if a CDIM review team finds a deficiency and the SNF fails to correct it, CDIM will discuss the matter with the SNF’s administrators; but CDIM “takes no action to compel the SNF to correct the deficiencies.” Id. The court noted that 42 C.F.R. § 456.611 requires that a Medicaid agency’s review team make “inspection reports [that] contain ‘observations, conclusions and recommendations’ concerning ‘the adequacy, appropriateness and quality of all services provided in the facility... including physician services... [,]’ 42 C.F.R. § 456.611...” Opinion at 41 (emphasis in Opinion), and that the agency is required to determine “whether the ‘services available in the facility’ are adequate ‘to meet [each resident’s] current health needs and promote his maximum physical well-being,’ ” id. at 42. It concluded that since CDIM’s inspection teams did not, as a general matter, attempt to determine whether SNF residents have been properly evaluated for adaptive wheelchairs, CDIM was not providing the supervision of SNF health care required by federal law. We find no error in the above findings of fact, and, indeed, CDIM, could hardly contend that they were erroneous: It entered into stipulations that squarely support them. Rather, CDIM contends that in seeking to determine what observations and evaluations CDIM’s medical review teams were required by law to make, the court should not have looked to § 456.611 of 42 C.F.R., which is entitled “Reports on inspections,” but rather should have looked to §§ 456.609 and 456.610, which are entitled, respectively, “Determinations by team,” and “Basis for determinations.” It argues that under the latter provisions, its reviews were not defective. This argument is poorly conceived and ill supported. First, in stating the requirements for the contents of review team reports, § 456.611 can hardly be thought to require that the report be more extensive than the investigation; if the matter must be reported, it must first be investigated. Thus the court did not err in looking to § 456.611 for guidance as to the requirements for the contents of the investigation. Further, the sections relied on by CDIM do not show that review teams are not required to evaluate the adequacy, appropriateness, and quality of all services, including physician services. Section 456.610 sets forth a number of items the team “may” consider; it does not purport to state that there are no other items that the team should consider. Certainly such a list of possible considerations cannot be read as nullifying express statements in other sections as to what must be determined. Section 456.609 is even less helpful to CDIM, for both its language and its effect appear to have been recognized by the court, That section states that [t]he team must determine in its inspection whether— (a) The services available in the facility are adequate to— (1) Meet the health needs of each recipient,...; and (2) Promote his maximum physical, mental, and psychosocial functioning. Although the district court’s opinion did not include a citation to § 456.609, the court's recognition that the review teams must “determine whether the ‘services available in the facility’ are adequate ‘to meet [each resident’s] current health needs and promote his maximum well-being,’ ” Opinion at 42, virtually recites the language of that section. And, as the court found, CDIM’s ’ team reviews could not meet these requirements: Since the team makes no attempt to determine whether it would have been appropriate to evaluate a given patient for an adaptive wheelchair — a device that is a medical necessity for some SNF residents — the team cannot determine whether the SNF’s service, in light of its failure to make such an evaluation, was adequate to meet the health needs of the patient. We conclude that the district court neither erred in its findings of fact nor failed to apply the correct legal standards, and that there is no basis for overturning its conclusion that CDIM’s inspections did not comply with federal law. B. The Propriety of the Injunction Requiring CDIM To Terminate Its Provider Agreements With Irremediably Noncompliant SNFs CDIM also contends that the district court “clearly erred by ordering [CDIM] to terminate Title XIX provider agreements with SNFs based on the findings of [CDIM’s] patient review teams on individual class members when the facility is certified to participate in” the Medicaid program. In support of this challenge, CDIM points out that Title XIX “links nursing facility participation in the program to the certification decision of [CDHS] or [HHS],” that CDIM is not the agency that makes certification determinations, and that CDIM thus cannot be required to terminate its provider agreements with SNFs that are certified. We are unpersuaded. First, as a practical matter, we note that CDIM appears to ignore the major thrust of the injunction entered against it. The Judgment does not require CDIM instantly to terminate a provider agreement upon the report of its review team that SNF care with regard to adaptive wheelchairs is inadequate. Rather, CDIM is enjoined to “take corrective action as needed” to attempt to remedy the deficiency. The Judgment defines “corrective action as needed” to include consultation by CDIM officials with the management of the SNF, the solicitation of peer review from medical societies, and the filing of complaints with other state agencies that could lead to the decer-tification of the SNF as a Medicaid provider. Only if the corrective actions taken or initiated by CDIM fail to induce the SNF to bring its services relating to adaptive wheelchairs into compliance with the law does the Judgment require CDIM to terminate its provider agreement with the SNF. The Judgment thus seems a prudent exercise of the district court’s discretion, and we find nothing in the Medicaid scheme that prohibits it. The fact that CDIM is not the agency responsible for certification of facilities as Medicaid providers is of no consequence. As the district court noted, the reason for the requirement that a state designate a “single State agency” to administer its Medicaid program, see 42 U.S.C. § 1396a(a)(5); 42 C.F.R. §§ 431.1 and 431.-10 (1985), was to avoid a lack of accountability for the appropriate operation of the program. See generally S.Rep.No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2016-17 (suggesting that certain provisions of Medicaid bill were intended to achieve “simplicity of administration” and “assurance... that the States will not administer the provisions for services in a way which adversely affects the availability or the quality of the care to be provided.”). CDIM, as the single agency designated by Connecticut, retains the authority to “[e]xercise administrative discretion in the administration or supervision of the plan,” and to “[i]ssue policies, rules, and regulations on program matters.” 42 C.F.R. § 431.10(e). These regulations do not permit CDIM’s responsibility to be diminished or altered by the action or inaction of other state offices or agencies. Id. Nor does CDIM’s argument that certification is required before CDIM may enter into provider agreements carry the day. Although CDIM is prohibited from entering into such agreements with SNFs that are not certified, see, e.g., 42 C.F.R. § 442.-12(a) (1985), we find nothing in the Medicaid scheme that requires CDIM to maintain a provider agreement with an SNF simply because it is certified. Indeed there are provisions that suggest precisely the contrary. Sections 431.151-431.154 of 42 C.F.R., for example, set out the appeal procedures that the state must make available to an SNF when the state has terminated “certification or a provider agreement for the Medicaid program,” id. § 431.151 (emphasis added). Given that there can be no lawful provider agreement with a facility that is not certified, if the provider agreement could not be terminated while a facility remained certified, the use of the disjunctive in § 431.151 et seq. would be meaningless. More to the point of the substantive issue here, 42 C.F.R. § 442.12(d) (1985), as the district court noted, expressly allows the single state agency responsible for administering the Medicaid program to terminate, for good cause, a provider agreement with a certified SNF. That section provides as follows: (d) Denial for good cause. (1) If the Medicaid agency has adequate documentation showing good cause, it may refuse to execute an agreement, or may cancel an agreement, with a certified facility. (2) A provider agreement is not a valid agreement for purposes of this part even though certified by the State survey agency, if the facility fails to meet the civil rights requirements set forth in 45 CFR Parts 80, 84, and 90. (Emphasis in text added.) CDIM contends that this provision does not authorize the district court’s injunction that CDIM terminate provider agreements with SNFs as to which corrective action relating to adaptive wheelchairs has failed, because the section applies only to considerations unrelated to quality of care, such as civil rights requirements. We see no basis in law or in reason to find § 442.12(d)(1) so limited. The very purpose of the Medicaid program is to provide the needy with medical assistance, and many of Title XIX’s provisions are plainly designed to enhance the quality of care that is provided. Certainly the language of the section does not suggest that poor quality health care cannot be good cause for termination; and if the provision of poor quality health care cannot constitute good cause for the termination, the goal of the Medicaid program is thwarted. Thus, we conclude that the Medicaid scheme did not preclude the relief fashioned by the district court. To the extent that a facility engaged to provide appropriate medical care fails to do so and cannot be persuaded to do so by such methods as consultation or the commencement of de-certification proceedings, its provision of inadequate care and services may be found to constitute good cause for termination of the provider agreement. The Judgment's requirement that CDIM terminate its provider agreements with such recalcitrant SNFs was not improper. We have considered all of the arguments advanced by CDIM in support of its cross-appeal and have found them to be without merit. We conclude that the Judgment of the district court is proper as far as it goes, and we turn now to plaintiffs’ contentions that the Judgment did not go far enough. III. PLAINTIFFS’ CONTENTIONS Plaintiffs, while urging us to affirm the Judgment to the extent that it grants them relief, contend that the district court should have granted broader relief in their favor, and they ask that we “remand this case to the district court with instructions to order the defendant to implement Subpart I of 42 C.F.R. part 456 [i.e., §§ 456.600-456.614] fully and effectively.” In support of their appeal, they contend (1) that the district court erred in failing to find that the health of class members had deteriorated for want of adaptive wheelchairs; (2) that their complaint as filed was broad enough to justify the granting of more extensive relief; and (3) that if the complaint as filed was not broad enough, the court should have granted their motion to amend. We have considered all of plaintiffs’ arguments in support of a broader judgment and find no merit in any of them. A. The District Court’s Findings as to Injury In its assessment of the evidence at trial, the district court stated that it cannot be determined, on the basis of credible evidence in the record of this case, whether and to what extent the health of any particular class member has deteriorated since his admission into an SNF as a result of the SNF’s failure to provide him with an adaptive wheelchair. Opinion at 16. Plaintiffs contend that the “court’s failure to make any finding in this respect is... clearly erroneous.” Even if accepted, this contention provides no ground for a remand. As detailed in Part I.C. above, the court found, inter alia, that adaptive wheelchairs were, for many severely disabled persons, a medical necessity that SNFs are required to provide. It found that CDIM’s medical review teams did not adequately determine whether SNFs provided appropriate adaptive wheelchairs and related services to their Medicaid patients who need them. And on the basis of thesé findings, the court entered its Judgment enjoining CDIM to ensure that class members are properly evaluated for, provided with, and monitored for the safe and productive use of, appropriate adaptive wheelchairs. We are hard pressed to see how an additional finding by the court that the failure of SNFs to provide adaptive wheelchairs had actually caused harm to the health of particular class members would have resulted in the granting of any additional relief. Plaintiffs’ complaint made no demand for damages; it requested injunctive and declaratory relief; and its requests Were focused squarely on the provision of adaptive wheelchairs and services related thereto, see Part III.B. below. Much of the relief sought was forthcoming as a result of CDIM’s postcomplaint change of policy with respect to its method of payment for such wheelchairs; the remainder was granted by the Judgment that was entered. Thus, even were we to view as error the court’s failure to make the finding requested by plaintiffs, we could not find that that failure resulted in any flaw in the Judgment. B. The Appropriate Breadth of the Relief We likewise find no merit in plaintiffs’ contention that the district court should have enjoined CDIM generally to “implement the federal Medicaid law in Connecticut SNFs,” or to take steps to ensure that SNFs provide appropriate programming and services for all the needs of class members, not just the needs relating to adaptive wheelch

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

TWENTIETH CENTURY-FOX FILM CORPORATION v. DIECKHAUS. No. 13(21. Circuit Court of Appeals, Eighth Circuit. Feb. 25, 1946. Rehearing Denied March 25, 1946. JOHNSEN, Circuit Judge, dissenting. John Fletcher Caskey, of New York City (Samuel W. Fordyce, George T. Priest, and Thomas W. White, all of St. Louis, Mo., and Edwin P. Kilroe, of New York City, were on the brief), for appellant. J. Porter Henry, of St. Louis, Mo., (John Raeburn Green and Robert D. Evans, both of St. Louis, Mo., on the brief), for ap-pellee. Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges. WOODROUGH, Circuit Judge. In her complaint in this action the plaintiff accused the defendant film corporation of copying her unpublished and uncopy-righted book “Love Girl” without her consent in the production and presentation by defendant of its sound motion picture “Alexander’s Ragtime Band.” There was jurisdiction by reason of diversity of citizenship and amount involved, and on the trial of the issue joined the court entered interlocutory decree in favor of the plaintiff awarding an accounting for damages and profits and injunction against further exhibition of the picture. Dieckhaus v. Twentieth Century Fox, D.C., 54 F.Supp. 425. There was no extraneous evidence that defendant had ever had access to the plaintiff’s book prior to the exhibition of its picture on August 19, 1938, and there was direct evidence that it had had no access thereto, but the court found from comparison of the book with the picture that there were similarities which could not be the result of coincidence and which, therefore, were the result of access to the book by defendant and of “conscious or unconscious” copying thereof. It recognized as the parties here agree, that in law the unauthorized copying of the whole or substantial part of the literary property of another is a tort and that in an action such as this the burden of proof to establish the commission of the tort was upon plaintiff. Also that the law of literary property and copyright, differing from patent law, protects the property right of the originator of a composition, even though the composition he has originated is the same as that which another has originated. Each originator has property right in his own and the action does not lie unless the defendant had access to the plaintiff’s work and copied therefrom. But as summarized in its written opinion, included in the record, the court inferred from the existence of similarities which it found “that this is a -case where plaintiff’s treatment has been consciously or unconsciously purloined.” The defendant prosecutes this appeal to reverse the decree and contends, among other things, (1) that the court erroneously applied the doctrine of unconscious plagiarism and that upon proper application of the law relating to access and copying to the evidence before the court, the defendant was entitled to a finding that it hád not had access to the plaintiff’s book and to dismissal of the action. It also contends (2) that the plaintiff in the prosecution of her action practiced fraud upon the court in connection with documentary evidence introduced by her to sustain her claims and therefore is not entitled to relief in equity. These contentions present the only substantial questions for decision here. (1) The trial court recognized in its findings that the defendant had adduced the testimony of witnesses and documentary evidence tending to show that its named servants acting in its behalf originally composed and produced Alexander’s Ragtime Band, and that “each of them denies having ever seen or heard of plaintiff’s story or knowing plaintiff or any of the literary agents mentioned above (referring to a Mrs. Malone and a Mr. Laurence R. D’Orsay, to whom plaintiff had entrusted her book for brief periods for criticism)”, but immediately following, in the findings, the court said: “Nevertheless access may be inferred from similarity between the two works as stated above and we will therefore, proceed to an examination of the alleged similarities between the novel and the movie.” The court did not find any of the particulars testified to by any of defendant’s witnesses or reflected in its documents, to be false, but concluded that the similarities revealed by the comparison of the book with the picture established defendant’s “conscious or unconscious” plagiarism of specified parts of the book. The evidence as to the production of defendant’s picture shows that Mr. Zaryl Zanuck, production vice president of defendant, originated the idea of making a picture to be called “Alexander’s Ragtime Band” (that being the title of Irving Berlin’s earliest great song hit success) reflecting the life of Berlin which would present the playing and singing of, and dancing and acting to his famous songs. He broached the matter to Mr. Berlin in 1936 while Mr. Berlin was in Hollywood working under contract with defendant on another picture. Berlin “had done a cavalcade of his songs on the radio” and at or about the time of Zanuck’s suggestion a “cavalcade” of Berlin’s songs was being presented to the public over the radio to which “the reaction was a very enthusiastic one.” Berlin accordingly responded favorably to Zanuck’s suggestion to put the music on a screen production under the title Alexander’s Ragtime Band, with the qualification that he (Berlin) should not be pictured as the hero, but that the hero should be a fictional character, a composite of several men identified with the rise of Jazz music, and he applied himself for a month or more to composing an outline for the picture which would tell with the music the story of what he and those in this field of music regard as American music during the period of his conspicuous activity in that field. He completed the outline and had it typed by his secretary in October, 1936. The outline as he wrote it, is entitled Alexander’s Ragtime Band, and is a story of a fictitious “Alexander” and of his jazz band and of the steps through which the band and the kind of music it played advanced from gaining the attention and approval of small and lowly audiences until, as the climax of the story, it was acclaimed by most critical and conservative authorities in music at an historical performance in New York at Carnegie Hall. Study of the outline and the testimony concerning its composition and the use made of it after it was submitted to Zanuck in December, 1936, convinces that it included the substance of the musical plotting of the final production and was closely adhered to throughout the period devoted to the work of producing the picture. It had its historical basis in the lives of Berlin and his intimates, White-man, Gershwin and others. Berlin appended a note to his outline stating that it was merely his attempt to put down on paper an idea of a story around “Alexander’s Rag-time Band” title and character; that the love story had not been developed and that he had made no effort to “cue any musical spots other than the old songs that are tied up to the story.” After Zanuck received the outline from Berlin and approved it, they proceeded with the project and Berlin testified as to his part in the production that he “was on it continually with the exception of an Alaskan trip and a couple of trips I might have made to New York. I was on it continually'. I did nothing but that.” The period referred to being twenty months. Mr. Zanuck assigned Richard Sherman, an experienced scenarist, to write in association with Berlin, an arrangement or treatment of the scenario for the projected Alexander’s Ragtime Band picture and they worked together on it for some three months. By March 3, 1937, they had finished and their draft had been mimeographed and submitted. It contains 121 typewritten pages and seeks to present the kind of love story contemplated in Berlin’s outline. The time element, including the period from the date of Alexander’s Ragtime Band in 1911 through the first World War and up to the climax of the concert at Carnegie Hall, some time around the middle of the 1920’s, is preserved, but the main contribution of the Berlin-Sherman treatment was the supplying of the climax of the love story to coincide with the climax of the victory of the jazz music at that musical performance. The incidents bringing together the hero and heroine lovers as the triumphant finale of the hero’s victory in both his music and his love affair, was developed in this composition in indicated action and in dialogue substantially as finally produced. Zanuck then engaged Sheridan Gibney, another well known writer, who in association with Berlin began work on March 9, 1937, and finished an outline of proposed scenarios of date April 3, 1937, and a complete dialogue scenario of date May 21, 1937. The dialogue scenario followed closely the composition of Berlin and Sherman but expanded and developed it. Mr. Zanuck testified that he considered the,work of Sherman and Gibney in their association with Berlin to be fine contributions but “we were disappointed still with our individual characterizations. We had a script that was away over length. It was not dramatically compact. * * * We decided to try other writers.” He picked for the assignment Mr. Lamar Trotti, whom he considered the finest scenario writer in the moving picture business, and Miss Kathryn Scola. They commenced work June 10, 1937, and in their work they hit upon correction of what Zanuck considered a defect of the preceding scripts which was an insufficient contrasting of the type of the hero and the type of the heroine, by making the hero a high born gentleman of conventional culture in accepted music and in general, and showing the heroine to be of the type drawn from the other side of the tracks. The clash and struggle between the types of music personified by “Alexander” after he devoted his life to jazz and its advancement, and the type approved in the established order in music, shown in Berlin’s original outline and in this contribution brought out the same fundamental elements of dramatic conflict in the love story. (Nothing similar is in the book). They produced a script of date August 11, 1937. Conferences were held on this script of Trotti and Scola September 8 and September 14, 1937. This resulted in revision, and on September 28, 1937, they submitted the first sixty two pages of a new script to Mr. Zanuck. A conference was held September 29, 1937. The final script was dated October 18, 1937, and the revised final January 7, 1938. The “shooting” final was completed January 27, 1938. Photography began in December, 1937, and was completed in .May, 1938. During the entire progress of this work it was frequently and fully discussed at conferences between the writers and Mr. Zanuck, Mr. Harry Joe Brown, the associate producer, and after his assignment to the picture, the director, Henry King. Full notes of the conferences were taken and they were stenographically reported by the secretary skilled in that work. The outline by Mr. Berlin and the several treatments subsequently composed and presented by the named authors together with the stenographic reports of the conferences, all of which were kept by the corporation in the usual course of business, presents a completely documented history of the original composition of “Alexander’s Ragtime Band” except as it is shown by the testimony of the director that in the process of the production after the script has been composed and agreed upon some minor changes may be made. The director finds that some items of picturization may, as a practical matter, be accomplished more effectively by his trial and error work in the studio. Each and all of defendant’s employees who had directional authority over any part of the production in question were called and testified as witnesses and their testimony developing all the details of the progress of the work cannot be read without the feeling that each individual testified with complete freedom, candor and frankness, without mental reservation. Collectively they are seen in the testimony to have been a hard working group, concentrating their energies upon their task of original composition and production: None of the witnesses on defendant’s behalf was in any way discredited, and no question arises as to their conduct and demeanor while testifying because their testimony is in depositions. Each testified to his or her own part in originating the production. One or more specified items of similarity is claimed by plaintiff as to each of the respective contributions. Under the plaintiff’s theory of copying, therefore, it was necessary to conclude from the comparison that there was concerted false swearing as to the fact of access by all of the witnesses who testified to their several contributions. Throughout the great volume of the oral and documentary evidence on behalf of defendant each and all of the statements and circumstances disclosed tend consistently to establish the origination of the picture by the defendant as a complete unified and coherent work in general accord with the original conception of Zanuclc and Berlin’s outline. Witnesses also testified who had nothing to do with the origination but were employed in carrying out the system maintained by defendant to identify and record the literary material made accessible to defendant and rejected or accepted for use by it. Considering the vital importance of that function to defendant (of which this case presents only a single illustration out of thousands) we think the testimony of these witnesses that the defendant never had access to plaintiff’s book is also strong corroborative evidence of the fact. Defendant accepted iio literary property from an unknown author like plaintiff for any purpose except through certain agents on its list of agents. The only two agents upon whom plaintiff has sought to cast suspicion were unknown to defendant and the testimony is that it would not have and did not have access to plaintiff’s manuscript through either of them. The testimony which emanates from plaintiff must also be held to be directly probative of defendant’s lack of access to plaintiff’s book when it is impartially looked at for what it shows rather than for what the plaintiff sees fit to suspect. She makes no claim in her testimony that she gave or caused access to her book to be given the defendant. She claims that one copy of the two copies of it that she had was kept sealed up on and after January 21, 1937, and the other confided to only two persons, who could, within rational possibility, have given access to defendant before defendant’s exhibition. The persons were a Mrs. Malone and Mr. Laurence R. D’Orsay. Mrs. Malone not only testified positively that she made no disclosures and gave no access to the book to defendant but also that she had no acquaintance or contact with any of defendant’s employees through whom she could have done so. Mr. D’Orsay also testified positively that he made no disclosure and gave no access to defendant and had no acquaintance or contact through which he could have done so. He kept the manuscript while it was in his possession in a closet in his private office and he expressed his certainty that no one else had taken it by saying that if anybody stole it, he stole it, but he did not steal it. The evidence satisfies us that there was no rational possibility of access by defendant before the receipt of the manuscript by D’Orsay at Los Angeles the last of January, 1937. The oral and documentary evidence in the record therefore establishes the fact that the defendant had no access to plaintiff’s book unless the law of plagiarism permits the court to draw an inference contrary to such proof from its finding of similarities on comparison of the book with the picture. Although this action is brought in Missouri under the laws of that state and not for infringement of federal copyright, the law to be applied to it is found in the very numerous federal decisions which have fully expounded the origins, principles and philosophy governing the ascertainment, definition and protection of the right of property in literary productions, and there is nothing in any Missouri decision in conflict therewith. The District Court relied upon them. More than two hundred of the decisions have been brought to our attention by the diligence of able counsel and we have considered them. As to the doctrine of unconscious plagiarism upon which the District Court made its determination against the defendant here, we are convinced that the proof in this case did not present a situation in which that doctrine may become applicable and that the court was in error in applying it. The substance of the doctrine is that one may copy from memory, and where something has become familiar to his mind’s eye and he produc.es it from memory and writes it down he may be held to copy it just the same without conscious plagiarism, Edwards & Deutsch Lithographing Co. v. Boorman, 7 Cir., 15 F.2d 35. Our search of the authorities has convinced it has never been and may not be applied in such a case a's the present. The only cas'es we find in which it has been applied are cases in which access has been established actually or in consequence of copyright registration. As this plaintiff neither published her book nor registered it for copyright, and there is only a possibility in the sense that all things are possible, that defendant could have had access to it, it cannot be assumed that it had become familiar to the defendant’s servants or that they unconsciously copied from it. Under the evidence in this case the defendant could not have come by plaintiff’s document lawfully and if the bald assumption should be made that it did obtain access unlawfully in order to copy from it, then an unconscious copying would not be credible. But we are equally convinced that the law of plagiarism has never been declared to sanction a determination of access upon a finding of mere similarities like those here involved in the face of such probative evidence of independent origination and of non-access as appears in this record. There is no question here of comparison disclosing any co-existing identities of substantial originated matter in the book “Love Girl” and the musical production “Alexander’s Ragtime Band.” The book is laid in part in the same period as the picture but it is about the loves of the love girl and her several lovers and there is no note of music in it. The picture’s real interest and value as to every scene and action in it are in the music. Its presentation requires an hour and three-quarters and each minute is filled with action attuned to the music. Its audiences were “justly thrilled by the Berlin melodies, by the reminiscence they stir up, by the association they recall.” All the alleged similarities have been carefully studied in the light of the elaborate arguments of able counsel, but we are not persuaded that there is any similarity meriting discussion in the characters in the book and those in the picture, or in the themes, plots, structures, numerous locales, values or interests. There is no line of dialogue or wording common to both. As the texts of the parts of the book and of the picture that are questioned are too long to be set out for comparison purposes in their arguments, counsel on both sides have argued upon synopses of their own composition respecting each of the matters subjected to comparison. The synopses themselves are works of art eligible to copyright. Echevarria v. Warner Bros., D.C., 12 F.Supp 632. In the findings and opinion of the trial court those prepared for plaintiff have been adopted. We cannot reproduce them within the compass of an opinion and see no good purpose to be served by such an attempt, but upon careful study of them we content ourselves with stating baldly that the ultimate gist of the similarities which merit discussion is that both the book and the picture have a “gag” about a bootlegger concealing bottles of liquor in a baby carriage; a “gag” about a soldier in camp putting on a sweater too small for him; a “gag” about a soldier in the first war (shown sleeping in long underwear) hating to get up in the morning; in both a girl in a Pullman listens to a phonograph played by sentimental young folks “necking” there (the plaintiff called the song being played “Remember” but in the picture the words and music are of one of Berlin’s most famous songs which was old at that time); an old music professor protests against his pupil playing jazz; musicians have trouble starting to play a new song; young women flutter around a handsome young musician at a musical affair; a lover composes a song to his beloved (in the picture it is one of Berlin’s); a young man objects to a girl’s costume; parted lovers meet each other in a theater; a returned soldier finds his sweetheart married to another man and she tells him of it; a love scene on a moonlit balcony between a leader of musicians who has turned the lead over to the pianist and joined his lady; lovers parted as soldiers leave for camp or war; an approach is made to the interest of a prospective employer through a good meal provided him; a music professor uses the word “pizzicato” in speaking to his pupil, though in a different sense in the book and the picture; the heroine rides in a taxi, overhears music and converses with the driver who makes a small charge. We have concluded that in their essence each of the items appearing to be similar (except those which plaintiff obviously copied from Berlin’s old material) is a matter in the public domain. Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F. 2d 49. In the picture each of the items connects up and is an integral part of the unity of both the musical and the action plot so that the originated matter composed in relation to the stock and commonplace matter in the public domain is readily distinguishable. But in the book most of the items are brought in haphazard, none being of apparent materiality to any discernible story plan. No ordinary observer would receive any impression that the film is a picturization of plaintiff’s book. The items dwelt upon in the arguments have been and can be discovered only upon a dissection of the 295 typewritten pages of the book and of the picture, and the minutiae so culled out of their setting are in that way magnified out of proportion to their real insignificance in the respective compositions to the ordinary seeker of entertainment from them. A number of plagiarism cases that have turned in the accuser’s favor upon the comparison between the accused and the accuser’s composition have been cases where there was access and where the identities or very great similarities were in original copyrighted matter of substantial importance in the accuser’s work which we find lacking here, and even in those cases we find none analogous to the situation here where the fact of non-access has been established by evidence of witnesses and documents which exclude all reasonable probability of access and leave only the bare possibility that all the witnesses intentionally swore falsely upon the matter of access of which they had full knowledge. After all the long study of the plagiarism cases we must come back to recognition that the question in this case is simply whether the circumstantial evidence of the comparison from which one fair reader may draw one inference and another fair reader another, and neither can do more than speculate or suspect, can be held to sustain the plaintiff’s burden to prove access and copying against the direct evidence of credible unimpeached witnesses and unquestioned documents that there was no access. We think the ruling must be controlled by the late decisions arrived at in full view of the long course of decision. In the Second Circuit, the judges having had most to do with declaring the law on the subject noted in Dellar v. Goldwyn, 2 Cir., 104 F.2d 661, 662, that a practice of disposing of plagiarism cases summarily on comparisons between a book and a play would be regrettable and pointed out that such comparison could not dispose of a case (unless against the plaintiff) because “if [the plaintiff] wins [on the comparison] the issue of copying remains to be tried.” And in Darrell v. Morris, 2 Cir., 113 F.2d 80, that court although it considered the compared compositions so much alike “that the supposed piracy appears almost inevitable”, and although there was some extraneous evidence of access, affirmed the decree dismissing the complaint for want of access and copying. See Sarkadi v. Wiman, 2 Cir., 135 F.2d 1002; Dellar v. Goldwyn, 2 Cir., 150 F.2d 612; Becker v. Loew’s, Inc., 7 Cir., 133 F.2d 889; McConnor v. Kaufman, D.C., 49 F. Supp. 738, affirmed 2 Cir., 139 F.2d 116. Although our circuit has not had occasion to declare the law in cases involving plagiarism, it is thoroughly committed upon mature consideration to the doctrine that the law does not permit the oath of credible witnesses testifying to matters within their knowledge to be disregarded because of suspicion that they may be lying. There must be impeachment of such witness or substantial contradiction, or, if the circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point. The most that can be claimed for the result of the comparison between the book and the picture in this case is that it raises a doubt or suspicion that defendant might have had access. The suspicion cannot stand against the oaths of the witnesses who know the facts. We denied power in the fact finding body to find in disregard of this settled law. American Smelting & R. Co. v. National Labor Relations Board, 8 Cir., 126 F.2d 680, loc.cit. 688. See also Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 216, 217, 51 S.Ct. 453, 75 L.Ed. 983; Cf. Massachusetts Protective Assn. v. Mouber, 8 Cir., 110 F.2d 203, 206, 207. The comparison here, when it is made in the atmosphere of the synopses of plaintiff’s able counsel, does arouse speculation and it may be suspicion as to how the similarities may have come about. But the function of the court is to apply the law so as to uphold property right in literary composition and not to undermine it or render it precarious, both for the obscure author who has only his own labor in his product, and for the producing corporations which have millions invested in their literary properties. Both must be made subject to and be afforded the protection of adjudication which is rested on the evidence of witnesses who know the facts and swear to them as against, circumstantial evidence which merely arouses speculation or suspicion. As the evidence here, when given the effect the law requires, proves that the defendant did not have access to the plaintiff’s book, the decree in her favor based as we have determined, on error of law, must be' reversed and the case dismissed at her costs. It is unnecessary to consider the defendant’s charge that the record conclusively shows that the plaintiff perpetrated a fraud upon the court in the prosecution of her action. The judgment appealed from is reversed, with directions to dismiss the case. The New York Times and the metropolitan newspapers generally throughout the country published full synojises of Alexander’s Ragtime Band during August of 1938 and a great volume of magazine and news accounts of it are readily accessible in the publications of that year. We do not set it out in our opinion. Synopsis of Berlin’s Outline of October, 1980 (defendant’s), is as follows,: “A five-piece band in which George Stephenson is the clarinet player is playing in a cheap saloon. George lives with his mother who does not approve of his playing in the band. The bartender hands to the leader of the band, as part of his mail, an orchestration of Berlin’s ‘Alexander’s Ragtime Band’ which has been sent by a New York publisher. The piano player of the band runs over the number but they do not like it and the leader discards it. But later a well-dressed customer in the saloon asks a waiter to have the band play ‘Alexander’s Ragtime Band’. The band retrieves the music but cannot play it well. George then commences to improvise and the music makes a hit with the patrons. The leader, however, disapproves and fires George. “George returns home to his mother and, despite her objections, declares his determination to have a ragtime band of his own called ‘Alexander’s Ragtime Band’ and adopts the name ‘Alexander’ for himself. Alexander forms his band, which works its way up from a honky-tonk saloon to a cabaret and finally to a fine casino. Through these episodes Berlin numbers are played to show the historical development of jazz music. “Then follows a scene where Alexander is headliner at an Orpheum Theatre where Peggy Howard, a pretty singer, is an early act. Peggy introduces herself to Alexander and makes a play for him, but he discovers that the reason for this is that sho sings ‘Alexander’s Ragtime Band’ as the opening number of her act and she doesn’t want Alexander to use the song. He insists and she has to nso another song which spoils her act; they quarrel. “In 1917 Alexander is playing in a San Francisco cafe and has a piano player who does a specialty. His band is famous and Hammerstein wants him to go to New York. The war comes along and Alexander is drafted. At Camp Upton Irving Berlin organizes an army show and gets Alexander to lead its orchestra. On the day of the opening, orders to leave for Franco are received. The show goes on, however, and Berlin sings ‘Oh, How 1 Hate to Get Up in the Morning.’ At the end of the show, the orchestra and the cast march out and down the street on their way to France. “The next scene finds Alexander in 1920 returned to New York from the war and out of a job. Ragtime has gone and the era of jazz has arrived. Alexander goes to Berlin for help. Berlin is writing a new Broadway show and is in the midst of rehearsals. Alexander goes to the theatre and from the pit looks up into the face of Peggy Howard who has become famous and is the female lead in the show. She has forgiven him but Alexander is too proud to stay. Ha leaves and organizes a band of old ragtime musicians which plays in a small night club and becomes successful. “Alexander begins to dream of a big concert at Carnegie Hall. A playboy arranges for a Carnegie Hall concert for Alexander. Ho sends for his mother and sister to come to New York for the concert. On the concert night Alexander leads the symphony orchestra in an arrangement of ‘Alexander’s Ragtime Band.’ Peggy is in the audience, very moved, and after the curtain she rushes backstage and the story ends happily.” Plaintiff’s book does not lend itself to any synopsis within reasonable compass. It has not been put together in accord with any definite plot. It has many pages of expressions of sentiment in prose arid in short lines without end rimes, narrates many occurrences, including, inter alia., a murder, suicide, “alienation suit,” many love affairs, licit and illicit, automobile accidents, etc. and brings in lawyers, deaths, wills, legacies, birth of a baby and its kidnapping, fake telegrams, a hateful stepmother, a titled Englishman, a drunken and despised lover, assault and battery of the heroine, fighting in France and many coincidences that do not seem credible and many instances of past and expected plagiarism. It is only by a process of -laborious search and dissection that anything in the book could be or has been formulated so as to present it for comparison with other compositions. It cannot be, and has not been claimed, that it ever has been rea'd for any interest or entertainment it affords or any information it contains. What would be retained in memory from a reading of it for entertainment cannot be conjectured. Many long hours have been spent by the court confronting those suspicions fanned by the arguments of'able counsel which have been fully studied and considered. The fruit of our endless speculation (forming no part of the court’s opinion which is based on the proof and not the speculation) may be stated: Plaintiff lived and wrote in the Berlin era of American music and with millions of others experienced some of its impacts. She was outside of it and expressed her longings by imitating the master. She says she “wrote Berlin style”; she copied the Berlin idea of naming a song “a band” and called the only short lines in her book shown to have been set to music for her, “Ditty Band”; it contained two lines lifted from Berlin; she took and used the main features of Berlin’s successful army show of 1918 and as her book is gone through in detail many effects ultimately attributable to Berlin influence and to her interest in the Berlin work can be seen. But she only lived in the era, while Berlin was the great part of it. H© wrote a thousand of its songs and in every year for thirty years he produced in a crowded song market either the most outstanding song hits of the year or one or more among the most successful. It seems possible that when he applied himself for twenty months with the others to composing the settings for his songs on the historic basis of his own associations and memories that their version included particulars that had come within plaintiff’s range and so were in her book in some more or less discernible similarity. Undoubtedly Irving Berlin arid his collaborators were intimately familiar with a myriad of scenic tricks, gags, and stage actions that had been used and were usable to put over the Berlin songs and music. Perhaps it was only coincidence that plaintiff, living and writing in the same period, also knew of a few.

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?

Mrs. Geraldine W. GREENE, Administratrix of the Estate of Robert Greene, Deceased, Appellee, v. VANTAGE STEAMSHIP CORPORATION, Appellant. VANTAGE STEAMSHIP CORPORATION, Appellant, v. UNITED STATES of America, Appellee. Nos. 72-1035, 72-1036. United States Court of Appeals, Fourth Circuit. Argued May 10, 1972. Decided Aug. 29, 1972. Carter B. S. Furr, Norfolk, Va. (Jett, Berkley, Furr & Heilig, Norfolk, Va., on brief), for appellant in No. 72-1035 and No. 72-1036. Sidney H. Kelsey, Norfolk, Va. (Kelsey & Kelsey, Norfolk, Va., on brief), for appellee in No. 72-1035. William D. Appier, Atty., Department of Justice (L. Patrick Gray, III, Asst. Atty. Gen., and Morton Hollander, Atty., Department of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellee in No. 72-1036. Before WINTER and FIELD, Circuit Judges, and BLATT, District Judge. WINTER, Circuit Judge: Robert Greene, a longshoreman employed by the United States at the Naval Supply Center, Norfolk, Virginia, was fatally injured when a hatch board on the SS RACHEL V gave way, causing him to fall to the deck below. The decedent’s wife, as administratrix of his estate, instituted this action against Vantage Steamship Corporation (Vantage), owner of the RACHEL V, claiming that Vantage had breached its duty to provide a seaworthy vessel. Vantage then filed a third party action against the stevedore, the United States, alleging that it had breached its implied warranty of workmanlike performance. The district court directed a verdict in favor of the plaintiff on the issue of unseaworthiness and submitted only the question of damages to the jury. It returned a verdict of $100,000. In the third party action, the district court, sitting without a jury, held that the United States had not breached its implied warranty and gave judgment against Vantage. Vantage appeals from the final orders in both causes of action. I On March 19, 1971, Vantage contracted to charter the RACHEL V to the Military Sealift Command. Prior to the delivery of the RACHEL V to the MSC, a joint survey of the ship was conducted. The survey revealed that in the No. 1 hold four hatch boards on the upper ’tween deck were broken, one hatch beam was bowed, and two hatch beams had their underside flanges toed up. After the survey, the ship sailed from Bayonne, New Jersey, to the Naval Supply Center in Norfolk, Virginia, to take on government cargo. The No. 1 hold of the RACHEL V consists of an upper ’tween deck, a lower ’tween deck, and a lower hold. The ’tween deck hatch squares contained the standard type of hatch boards laid over hatch beams. The hatch beams run athwartship and the hatch boards fit between the beams, resting on a three to four inch lip of the beam. The district court did not make a specific finding with reference to the number of hatch beams, noting only that it “appears there were five or six hatch beams and six or seven rows of hatch boards.” On the morning of April 3, 1971, Robert Greene was a member of a longshoreman gang assigned to prepare the RACHEL V to take on cargo in her No. 1 hold. His immediate supervisor was Chambers, the gang boss, who, in turn, was under the supervision of Nesbit, the stevedore supervisor. The cargo was to be loaded into the lower hold, and therefore it was necessary to open the hatch squares on the two upper decks. After the main deck hatch cover was removed, Nesbit and Chambers examined the hatch boards on the upper ’tween deck. Some of the hatch boards in the forward end of the hatch were in disarray and some were missing. The boards in the aft end, however, appeared to be in proper order; and since this was the area in which the men were scheduled to work, the order to proceed was given. The decedent and his co-worker, Avery, descended to the upper ’tween deck to remove the hatch boards. As was their custom, the men began removing the hatch boards from the middle part of the hatch. Greene walked to the middle of the row, picked up a hatch board, turned to carry it to the edge or erowl of the ship, when the board on which he was standing gave way causing him to fall to the lower ’tween deck. As the result of his fall, Greene suffered severe injuries from which he died thirty-six hours later. II In plaintiff’s case against Vantage, the district court directed a verdict in favor of the plaintiff, holding that as a matter of law, the RACHEL V was unseaworthy. The district court also directed a verdict for the plaintiff on the issue of the decedent’s contributory negligence. Vantage contends that there was insufficient evidence to take either of these two questions from the jury. We disagree. A ship owner has an absolute duty to provide a “vessel and appurtenances reasonably fit for their intended use.” Mitchell v. Trawler Racer, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). Vantage’s duty in this case was therefore to supply hatch boards which would support a man in the process of opening up a hold. That Vantage failed to meet its duty is too plain for argument. Whether an issue of alleged unseaworthiness should be submitted to a jury depends on whether “fair minded men, viewing all the facts and the inferences to be drawn from the facts can differ over whether the ship and its gear are reasonably fit for service. ” Lundy v. Isthmian Lines, Inc., 423 F.2d 913, 915 (4 Cir. 1970). Here, plaintiff established that the hatch boards in the area where the decedent was working appeared to be in proper order, that there were no visible defects, and that the hatch board on which the decedent was standing slipped off the hatch beams causing him to fall to the lower ’tween deck. Since this evidence was uncontradicted, we agree with the district court that fair minded men viewing the facts and the logical inferences to be drawn from them could only conclude that the vessel was unseaworthy. Vantage contends, however, that before a case can be taken from the jury, it is necessary for the plaintiff to show how or why the board upended, i. e., that it was too short or that the hatch beam was bowed, etc. Vantage misconstrues the plaintiff’s burden of proof on the question of unseaworthiness. In Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2 Cir. 1970), a sliding door held open by a wedge and hook slid shut injuring a seaman’s hand. No proof was offered why the door slid shut. On the basis of this evidence, the jury returned a verdict in favor of the ship owner. On appeal the second circuit reversed, holding that the seaman was entitled to a directed verdict despite the fact that he had failed to show why the door slammed shut : Nothing more need be shown except that the device in question failed under conditions when it should have functioned properly. On the issue of the ship’s unseaworthiness it is of no moment to speculate as to why the hook and wedge, fittings intended to keep the sliding door open, failed to function. Id. at 816. Where an appliance or piece of equipment breaks or fails in the normal course of use, a plaintiff need not show why the failure occurred, but only that it did occur with the resulting injury. See Oliveras v. American Export Isbrandtsen Lines, Inc., supra; Gibbs v. Kiesel, 382 F.2d 917 (5 Cir. 1967); Vega v. The Malula, 291 F.2d 415 (5 Cir. 1961); see also Petterson v. Alaska S.S. Co., 205 F.2d 478 (9 Cir.) aff’d 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954); Satchell v. Svenska Ostasiatiska Kompaniet, 385 F.2d 76 (4 Cir. 1967). Nor is there merit in Vantage’s argument that the issue of contributory negligence should have been permitted to go to the jury. “The admiralty rule is that the defense of contributory negligence must be affirmatively pleaded and proved by the defendant.” W. E. Hedger Transp. Corp. v. United Fruit Co., 198 F.2d 376, 379 (2 Cir.) cert. denied 344 U.S. 896, 73 S.Ct. 275, 97 L.Ed. 692 (1952). Vantage offered no evidence to show that the decedent knew or should have known that the hatch boards were unsafe. Moreover, plaintiff’s witnesses, who observed the hatch boards prior to the accident, testified that the boards in the aft end of the upper ’tween deck appeared safe and that there was no space between the boards and the flanges of the hatch beams. In light of the evidence presented by both parties, we conclude that the district court correctly directed a verdict for the plaintiff on the issue of contributory negligence. III Vantage seeks to set aside the jury’s award of $100,000 on the ground that the district court erred in instructing the jury on the issue of damages. The district court instructed the jury that they could award damages for the plaintiff’s pecuniary loss, her grief and mental anguish, the decedent’s pain and suffering prior to his death, and funeral expenses. Vantage contends that damages for a wrongful death in general maritime law are limited to pecuniary loss. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L. Ed.2d 339 (1970), the Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) and held that general maritime law affords a cause of action for wrongful death. The Court declined to specify the measure of damages in such an action, preferring instead to defer that issue for “further sifting through the lower courts in future litigation.” Id. at 408, 90 S.Ct. at 1792. The Court did note, however, that the lower courts would not be without persuasive analogy for guidance. “Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades.” Id. The basis for Vantage’s argument that damages for this new cause of action are limited to pecuniary loss is the principle that general maritime law be uniform. In 1920, Congress passed the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq. [hereinafter DOHSA], which provided a cause of action for wrongful death occurring on the high seas. Damages under the DOHSA are limited to pecuniary loss. Since this new Moragne cause of action is most analogous to the existing DOHSA, Vantage argues that the doctrine of uniformity requires that we adopt the same measure of damages for wrongful death under general maritime law as is presently provided by DOHSA. Vantage’s position is not without support. In Petition of United States Steel Corporation, 436 F.2d 1256 (6 Cir. 1970), cert. denied Lamp v. United States Steel Corp., 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153, reh. denied Fuhrman v. United States Steel Corp., 403 U.S. 924, 91 S.Ct. 2227, 29 L.Ed.2d 703 (1971), the court reversed a district court award for a wrongful death occurring on territorial waters which included damages for loss of consortium, loss of love, and loss of companionship and guidance to the adult emancipated children, elements of loss, all of which were compensable under the Michigan Wrongful Death Act. The court held that since those items of damages conflicted with those provided under the general maritime law, the state law must give way to the federal. It should be noted, however, that the court did not specifically state what was the measure of damages under general maritime law. Similarly, in Simpson v. Knutsen, 444 F.2d 523, 524, 525 (9 Cir. 1971), the court held that the “District Court did not err in refusing to award damages for loss of consortium...,” but again there was no discussion of what constituted the proper measure of damages. Presumably, both the sixth and ninth circuits felt that the proper measure was that embodied in DOHSA. In contrast to these decisions, the court, in Dennis v. Central Gulf Steamship, 453 F.2d 137 (5 Cir. 1972), permitted the plaintiff in a wrongful death ease under general maritime law to recover for the decedent’s pain and suffering and for funeral expenses. The court rejected the argument that the doctrine of uniformity required that damages be limited to those provided by DOHSA. The court stated that the “ ‘uniformity’ that is fundamental in maritime law has to do with the bases of liability, not with differing elements of damages that may be recoverable in differing circumstances with differing classes of beneficiaries.” Id. at 140. We agree that Moragne was concerned with establishing a uniform basis of liability for wrongful death occurring on territorial waters, but that that decision should not be read as requiring that damages for this new cause of action be controlled by DOHSA. The doctrine of uniformity, as a constitutional doctrine, is inapplicable to the issue of damages under Moragne. The doctrine, first enunciated in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), holds that a state law is invalid “where it actually conflicts with the general maritime law or federal statutes.” Gilmore and Black, The Law of Admiralty § § 1— 17 (1957). Here there is no conflict between state and federal law, because as yet there is no federal law on the issue. The task of deciding damages for wrongful death under general maritime law was left, in the first instance, to the lower federal courts. Moragne v. States Marine Lines, Inc., supra, 398 U.S. at 408, 90 S.Ct. 1772, 26 L.Ed.2d 339. And, in directing the lower courts to make this initial determination, the court suggested that reference be made not only to the existing federal statutes, but also to the numerous state wrongful death statutes. Our task, then, is not to apply “state law” or “federal law,” but" to decide the most appropriate measure of damages for this new cause of action. The approach of the court in Moragne, in concluding that general maritime law affords a cause of action for wrongful death, should be used to determine the proper measure of damages. In holding that general maritime law provides recovery for wrongful death, the Court was influenced by the fact that every jurisdiction had enacted a wrongful death statute. The significance of that fact was that wrongful death had become part of the common law: These numerous and broadly applicable statutes, taken as a whole, make it clear that there is no present public policy against allowing recovery for wrongful death.... This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law. . It has always been the duty of the common law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles — many of them deriving from earlier legislative exertions. Moragne v. States Marine Lines, Inc., supra, 398 U.S. at 390-392, 90 S.Ct. at 1782. So, in this case also, this body of law must be examined to determine what the proper measure of damages should be. In examining state wrongful death statutes, we do not give them preference over federal law, but rather we view them as indicators of what has come to be the accepted measure of damages in such actions. Of course, in so doing, we do not undertake to define all of the elements of damages for wrongful death under general maritime law. Rather, we consider only what is presented by this case — whether recovery can be had for the decedent’s pain and suffering, funeral expenses, and the plaintiff’s grief and mental anguish. Damages for the decedent’s pain and suffering are not ordinarily awarded in wrongful death actions. Only nine statutes permit recovery for the decedent’s pain and suffering, but two of these are federal, the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-59, and the Jones Act, 46 U.S.C.A. § 688. See Comment, “Wrongful Death Damages in North Carolina,” 44 N.C.L.Rev. 402 (1966). The majority of states, however, permit recovery for pain and suffering under survival statutes. Despite the fact that pain and suffering of a decedent are not usually compensated under wrongful death statutes, several considerations dictate that recovery for this element of damage be permitted under a Moragne cause of action. Maritime law permits recovery for pain and suffering. Dennis v. Central Gulf Steamship Corp., supra, 453 F.2d at 140; Downie v. United States Lines Co., 359 F.2d 344, 347 (3 Cir.) cert. denied 385 U.S. 897, 87 S.Ct. 201, 17 L. Ed.2d 130 (1966); Heredia v. Davies, 12 F.2d 500, 501 (4 Cir. 1926). Traditionally, however, recovery has been denied where the seaman dies of his injuries. Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368 (1932) (dictum). The basis for this rule is the now outmoded felony merger doctrine, a doctrine which has no place in contemporary jurisprudence (Cf. Moragne v. States Marine Lines, Inc., supra, 398 U.S. at 379-387, 90 S.Ct. 1772), as evidenced by the numerous statutes, both state and federal, which have abrogated the rule. In light of the Court’s holding and discussion in Moragne, we do not believe that the dictum in Cortes is still controlling. The same rationale which the Court used to overturn the Harrisburg is equally, if not more, applicable to the recognition of the right to recover for the decedent’s pain and suffering prior to his death, especially since what is involved is not the creation of a new cause of action as in Moragne, but only removal of an archaic bar to the bringing of a traditional admiralty suit. In the great majority of states, a plaintiff could join with his Moragne action, an action under the state survival statute and in that way recover for the decedent’s pain and suffering. But to require the institution and joinder of separate suits would be to create different recoveries for a breach of the same duty since not every state has a survival action and, in those that do the statutes may differ. By failing to include the decedent’s pain and suffering as a part of the recovery under the general maritime law, we would force plaintiffs to rely on divergent state statutes for a duty entirely federal in nature. Relief, then, would depend solely on the “fortuitous circumstances of location.” See generally, Note, “Maritime Wrongful Death After Moragne: The Seamen’s Legal Lifeboat,” 50 Geo.L.J. 1411, 1434-1437 (1971). Finally, we do not believe that the Moragne decision was intended to narrow the relief available for wrongful death. Dennis v. Central Gulf Steamship, supra, 453 F.2d at 140. Yet, this would be the result if recovery were limited to pecuniary loss since under the state statutes used prior to Moragne, recovery was usually broader than provided by DOHSA. We believe that it is more consistent with the spirit of admiralty law to permit recovery for pain and suffering than to deny it. “ ‘ [C] ertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established inflexible rules.’ ” Moragne v. State Marine Lines, Inc., supra, 398 U.S. at 387, 90 S.Ct. at 1781, 26 L.Ed. 2d 339, quoting from the Sea Gull, 21 F.Cas.P. 909 (No. 12,578) (CC Md.1865). We hold therefore that in a wrongful death action under general maritime law, recovery may be had for decedent’s pain and suffering. We also hold funeral expenses are a proper element of recovery. Although none of the federal statutes permit such a recovery, the majority of states do. Perhaps more significant is the fact that prior to the Harrisburg, recovery of funeral expenses was permitted under general admiralty law. See Keene v. The David Reeves, 12 F.Cas.P. 386 (No. 6,625) (D.Md.1879). “The overruling of The Harrisburg revives those cases as guides for decision here.” Dennis v. Central Gulf Steamship Corp., 323 F. Supp. 943, 950 (E.D.La.1971) aff’d 453 F.2d 137 (1972). In many instances funeral expenses represent out-of-pocket expenses to the beneficiaries of the wrongful death action and hence, in a broad sense, these expenses may be viewed as pecuniary losses. The strongest argument in favor of denying these items of recovery, and limiting recovery to pecuniary loss, is the existence of DOHSA. This act is most analogous to the cause of action created by the Moragne decision. In Moragne, the United States, appearing as an amicus curiae, argued that the new cause of action should follow DOHSA. “It is the congressional enactment that deals specifically and exclusively with actions for wrongful death... There is no occasion... to borrow from the law of the relevant coastal State, since the underlying duties to be effectuated are entirely federal and Congress has expressed its preference.” Moragne v. States Marine Lines, Inc., supra, 398 U.S. at 407, 90 S.Ct. at 1791. While this argument is not without force, we find it unpersuasive in light of the legislative history of DOHSA. In enacting DOHSA, Congress specifically declined to extend its coverage to territorial waters. More significantly, however, Congress permitted the states to provide remedies for wrongful death on territorial waters which were not only diverse, but which in many instances permitted more liberal recovery than the recovery provided under DOHSA. This seems to negate any suggestion that Congress intended to have a uniform remedy or that it opposed the existence of remedies on territorial waters which differed from those provided for death on the high seas. In contrast to recovery for pain and suffering and funeral expenses, only a small number of jurisdictions permit a beneficiary in a wrongful death action to recover for grief and mental anguish. None of the federal statutes permit such a recovery and it is permitted in only a small number of states. “Wrongful Death Damages,” supra, 44 N.C.L.Rev. at 411. Since this item of damages has not become generally accepted in wrongful death actions, recovery therefor should not now be permitted in a Moragne cause of action. Because the district court permitted the jury to award part of the damages on the basis of grief and mental anguish, the case must be remanded for a new trial on the issue of damages. IV In the third party action, the district court held that the stevedore, the United States, had not breached its warranty of workmanlike performance. Vantage challenges that decision on sew* eral grounds. First, Vantage argues that the district court erroneously applied the “cursory inspection” standard instead of the “reasonable inspection” standard. Second, Vantage contends that the stevedore rendered a substandard performance since it failed to make a more detailed inspection of the No. 1 upper ’tween deck after observing that some of the hatch boards in the forward end were missing and in disarray. As a counterpart to that argument, the ship owner contends that the stevedore was required to make a more detailed inspection because of the knowledge it had obtained in the joint survey that four hatch boards were broken, one beam was bowed, and two beams had their underside flanges toed up. Finally, Vantage cites as error the district court’s failure to consider whether the stevedore breached its implied warranty by failing to comply with longshoring regulation 29 C.F.R. § 1504.1. We will consider these arguments seriatim. Where a party contracts to provide stevedoring services, he impliedly warrants, even if he has not done so expressly, that those services will be performed properly and safely. Ryan Stevedoring Co. v. Pan-Atlantic SS. Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 100 L.Ed. 133 (1956). This warranty of workmanlike performance is the essence of a stevedoring contract. Id. A vessel may be rendered unseaworthy by a stevedore’s breach of his warranty; and in such a case, the ship owner may recover indemnity from the stevedore. Even if the vessel is unseaworthy in the first instance, the ship owner may recover from the stevedore if the stevedore “brought the unseaworthiness of the vessel into play.” Crumady v. “Joachim Hendrik Fisser,” 358 U.S. 423, 429, 79 S.Ct. 445, 448, 3 L.Ed.2d 413 (1959). The stevedore’s warranty also includes the use of equipment incidental to the handling of cargo. Weyerhaeuser Steamship Co. v. Nacirema Operating Company, 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). Should a substandard performance by the stevedore with this equipment lead to foreseeable liability, the ship owner may recover indemnity. Id. Vantage contends that had the stevedore made a proper inspection of the upper ’tween deck before sending its men down to remove the hatch boards, it would have discovered the defect which resulted in the accident. Vantage challenges the district court’s finding that a proper inspection was made on the ground that the district court’s finding was based on the use of an improper test, i. e., that the stevedore is required only to make a “cursory inspection.” It is Vantage’s position that the proper standard is a “reasonable inspection.” We find Vantage’s argument unpersuasive. It is clear from the district court’s opinion that under either test — cursory inspection or reasonable inspection — its findings would have been the same. There was ample evidence from. which the district court could conclude that there was no visible defect in the hatch boards. The testimony of the three persons who examined the upper ’tween deck prior to the accident was that the hatch boards appeared in proper order and that there was no visible space between the board and the flange. To rebut this testimony, Vantage offered the testimony of an expert witness who testified that since the hatch board did not break, but slipped between the beams, there must have been a space between the board and the flange which would have been visible and which would have indicated a dangerous condition. While this analysis appears to be perfectly logical, the trier of fact was free to reject this explanation of the accident in favor of the testimony of those persons who actually observed the boards. Since there was evidence from which the trier of fact could find that the defect was not visible, we are bound by the clearly erroneous doctrine and must affirm his finding that the stevedore did not breach its warranty by failing to find and correct a visible defect in the ship. Upon removing the hatch cover, the stevedore observed that the hatch boards in the forward end of the upper ’tween deck were in disarray — some were missing and some were too short. Relying on the testimony of its expert witness, Rykbos, Vantage argues that the stevedore was required to make a more detailed inspection because of the hazardous condition existing in the forward end of the deck. Rykbos testified that the condition in the forward end of the upper ’tween deck might have indicated a bowed beam. A bowed beam may appear straight when the hatch boards are on since the boards exert a pressure to straighten the beam; but, if so, the removal of a hatch board on one side may cause the beam to spring back to its bowed position. Rykbos explained that if a beam was bowed forward and one of the hatch boards was removed, the beam could return to its bowed position, and would widen the space between it and the beam to the aft, causing the hatch boards to slip between the two beams. The district court rejected Rykbos’ explanation of the accident, and we believe properly so. Assuming, as did Rykbos, that the beam immediately forward of where Greene fell was bowed forward, the removal of a board to the aft of that beam would not cause it to spring back to a forward bowed position. A beam bowed forward is kept straight by the hatch boards on its forward side. Only the removal of a board to the forward of such a beam would permit it to return to a forward bowed position. And, assuming that the beam was bowed to the aft, the removal of a hatch board by the decedent would have caused the beam to bow to the aft which would have narrowed, not widened, the space between it and the beam to the aft. Because Vantage failed to explain how the condition in the forward end of the upper ’tween deck affected the aft end, or how a more thorough inspection would have uncovered the defect responsible for the accident, we think the district court was correct in denying Vantage’s action for indemnity on this theory. Nor do we see any merit in Vantage’s argument that the stevedore was required to make a more thorough inspection because of the knowledge acquired through the joint survey conducted in New Jersey. That survey revealed that some of the hatch boards were broken, one beam was bowed, and two beams had their underside flanges toed up. We note first that there is no evidence that the defects found in New Jersey still existed when the ship reached Norfolk. Indeed, the evidence indicated that there were no broken hatch boards at the time of the accident, suggesting that the other defects which were originally noted had been eliminated prior to the vessel’s arrival in Norfolk. Furthermore, there is no evidence that either a bowed beam or a beam with its underside flange toed up was the cause of the accident. Hence, even if we assume that the stevedore failed to make a proper inspection to determine whether these defects still existed, there is nothing to suggest that this failure was the proximate cause of the accident. Finally, Vantage argues that the stevedore breached its warranty by failing to comply with the applicable long-shoring regulations. 29 C.F.R. § 1504.1 prohibits longshoremen from working in those sections of the hatch containing “missing, broken, split, or poorly fitting hatch covers, or in adjacent sections.” Vantage contends that there were only six rows of hatch boards, that rows four and five from the aft end were in disarray, and that the decedent was working on the third row from the aft end when he fell. This would have put him on the row immediately adjacent to one of the rows which was in disarray, thus violating the regulation. A violation of a longshoring regulation may render a vessel unseaworthy “and if such unseaworthiness was the proximate cause of the. injury, it would... render the defendant shipowner liable.” Provenza v. American Export Lines, Inc., 324 F.2d 660, 665 (4 Cir. 1963) cert. denied 376 U.S. 956, 84 S.Ct. 970, 11 L.Ed.2d 971 (1964); Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347, 353 (4 Cir. 1968). However, if the stevedore is responsible for the violation of the regulation, the ship owner is entitled to indemnity from the stevedore. Frasca v. S/S SAFINS E. ISMAIL, supra; Provenza v. American Export Lines, Inc., supra. The district court made no specific findings as to the number of rows of hatch boards; nor did it make any finding as to which rows were in disarray. Our reading of the record indicates that there were probably six rows of hatch boards and the fourth and fifth rows from the aft (or the second and third rows from the forward) end were probably the ones in disarray. If we are correct, then when the decedent was working on the third row of hatch boards, he was immediately adjacent to one of the rows which was in disarray in violation of 29 C.F.R. § 1504.31; and if the violation of this regulation by the stevedore was the proximate cause of the accident, the ship owner is entitled to indemnity from the stevedore. We, therefore, vacate the judgment in the third party action and remand it for further findings on the present record, supplemented, in the discretion of the district court, with additional relevant evidence which may be tendered. The judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Affirmed in part; reversed in part; and remanded. . The Military Sealift Command (MSC) provides shipping services for the Department of Defense. When a ship is chartered by MSC, that agency informs the Army’s Military Terminals Management Transportation Service (MTMTS) of the availability of ship space. MTMTS then informs the Department of Defense of the space available. . The purpose of the survey was to record the condition of the vessel to insure that it would be returned in the same condition as received. Copies of the survey are not ordinarily distributed to other government agencies. . In an early case, Hamburg-American Steam Packet Co. v. Baker, 185 F. 70 (4 Cir. 1911), this circuit recognized the necessity of providing safe hatch covers: It is well known that in order to handle the hatch covers the men must go upon the hatch, and therefore they must be made safe to bear that weight and to hold their position under that strain, and if they are not and that is

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

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

Julius L. FINKELSTEIN, Plaintiff-Appellee, v. Louis P. BERGNA, Defendant-Appellant. No. 87-2943. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1988. Decided Aug. 2, 1989. Craig M. Brown, San Jose, Cal, for defendant-appellant. Alan B. Exelrod, San Francisco, Cal., for plaintiff-appellee. Before FLETCHER and BEEZER, Circuit Judges, and KING, District Judge. The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation. BEEZER, Circuit Judge: Julius Finkelstein brought suit against Louis Bergna in federal court under 42 U.S.C. § 1983 claiming violations of first and fourteenth amendment rights in addition to several pendent state law claims. Bergna moved for summary judgment on the ground that he was entitled to qualified immunity from suit on all claims. The district court denied Bergna’s motion. Bergna appeals. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We affirm. In 1982 Julius Finkelstein was a deputy district attorney in Santa Clara County, California. Finkelstein worked for Louis Bergna, the elected District Attorney in Santa Clara County. Bergna did not run for reelection in 1982. Finkelstein and Leo Himmelsbach, another deputy district attorney, were running for Bergna’s position. Bergna supported Himmelsbach’s bid to succeed him in office. Finkelstein lost the election. Shortly before the election, the press received information about Himmelsbach’s allegedly improper conduct while a deputy district attorney in 1974. Bergna believed that Finkelstein was the source of the “leak” to the newspapers and that Finkel-stein had retrieved the leaked information by making unauthorized entry into the office’s confidential personnel files. Bergna suspended Finkelstein without providing him an opportunity to deny that he was responsible for the leak. Immediately thereafter, Bergna held a press conference announcing Finkelstein’s suspension and implicating Finkelstein in the unauthorized entry into the personnel files and the subsequent leak to the press. Bergna’s comments received widespread coverage in the newspapers. Finkelstein alleges that the suspension, and its announcement at a press conference, was intended to thwart his bid for office. A subsequent report from the Attorney General’s office stated that there was insufficient evidence to determine who leaked the information to the press. Further, due to lax record keeping in the office, it could not be determined whether the personnel files had been accessed in an unauthorized manner. Finkelstein challenged the propriety of the suspension in postsuspension hearings. He lost those challenges. Finkelstein was reinstated to his position and continues to work as a deputy prosecutor in Santa Clara County. This suit followed. I An official is entitled to qualified immunity when the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Schwartzman v. Valenzuela, 846 F.2d 1209, 1211 (9th Cir.1988). In order for an official to violate clearly established rights, the unlawfulness of the challenged conduct must be apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Whether the law was clearly established is a question of law reviewed de novo. Brady v. Gebbie, 859 F.2d 1543, 1556 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). A Bergna concedes that Finkelstein has a protected property interest in his job under California law. Once a protected interest is found, the inquiry turns to what process is due. Orloff v. Cleland, 708 F.2d 372, 378-79 (9th Cir.1983). Bergna contends that it was not clearly established in 1982 that a temporary suspension, as opposed to a discharge, could implicate the procedural protections of the due process clause. Bergna is incorrect. See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (suspension of student implicated liberty and property interests requiring procedural due process); Devine v. Cleland, 616 F.2d 1080 (9th Cir.1980) (suspension of VA educational benefits required presuspension process). Bergna next contends that the postdepri-vation process afforded Finkelstein was sufficient to meet the requirements of the due process clause. Bergna is again incorrect. Pursuant to the three-part test announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), we have consistently held that where predepri-vation process is feasible, it must be afforded before a person may be deprived of a protected interest. Sinaloa Lake Owners Ass’n. v. City of Simi Valley, 864 F.2d 1475, 1481-83 (9th Cir.1989), modified in unrelated part, 882 F.2d 1398 (9th Cir.1989); Merritt v. Mackey, 827 F.2d 1368, 1372 (9th Cir.1987); Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 778 (9th Cir.1982). The district court correctly concluded that Finkelstein alleged a violation of clearly established law and we accordingly affirm the denial of qualified immunity with regard to the property interest claim. B Finkelstein also claims that his suspension deprived him of a liberty interest without due process of law. Bergna again contends that it was not clearly established that a temporary suspension could implicate a liberty interest. We disagree. Goss, 419 U.S. at 574-76, 95 S.Ct. at 736-37 (ten-day suspension implicated a liberty interest); see also Click v. Board of Police Comm’rs, 609 F.Supp. 1199, 1204 (W.D.Mo. 1985) (three-day suspension implicated a protected liberty interest). In Vanelli — a discharge case — we stated that a liberty interest is “implicated if a charge impairs [one’s] reputation for honesty or morality. The procedural protections of due process apply if the accuracy of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment or the alteration of some right or status recognized by state law.” Vanelli, 667 F.2d at 777-78 (footnotes omitted and emphasis added). It is clear that Finkelstein’s honesty and morality were impugned when Bergna intimated that he had gained access to confidential personnel files in an unauthorized, underhanded, and perhaps illegal manner. Fink-elstein contested those publicly disclosed charges. He also alleges that his right to continued employment, a right or status conferred by state law, was altered by the suspension. Finkelstein thus alleges a cognizable liberty interest claim. Bergna again argues that it was not clearly established that presuspension process is required when a liberty interest is at issue. He argues that the posttermination name-clearing hearing afforded to Finkelstein was alone sufficient to meet the requirements of due process. We have rejected that argument. Vanelli, 667 F.2d at 778 n. 8. The district court correctly concluded that Finkelstein alleged a violation of clearly established law and we accordingly affirm the denial of qualified immunity on the liberty interest claim. C Bergna also contends that his suspension of Finkelstein was reasonable and authorized by state law, thereby entitling him to qualified immunity. This misconceives the question at issue. The question before us is not whether Bergna’s actions were reasonable under state law, but whether the challenged conduct violates clearly established law, here the due process clause of the fourteenth amendment. It is for the jury to decide whether Bergna’s conduct was reasonable in light of clearly established law. Brady, 859 F.2d at 1556; Thorsted v. Kelly, 858 F.2d 571, 575-76 (9th Cir.1988). D Bergna moved for summary judgment on the pendent state law claims and argued that Harlow immunity analysis should be applied to those claims. The district court rejected this argument. We agree with the district court and find this argument merit-less for the reason stated by the Seventh Circuit. Oyler v. National Guard Ass’n of United States, 743 F.2d 545, 554 (7th Cir.1984) (rejecting this argument as it would “obviously constitute an unwarranted interference by this court with the substantive law of [a state].”). II The district court concluded that Bergna was not entitled to qualified immunity on the first amendment claim because the law was clearly established that assistant prosecutors may not be disciplined solely for exercising their first amendment rights. We agree. We agree with the Seventh Circuit that disciplinary action discouraging a particular candidate’s bid for elective office “represents] punishment by the state based on the content of a communicative act” which is protected by the first amendment. Newcomb v. Brennan, 558 F.2d 825, 828-29 (7th Cir.1977). Finkelstein’s allegation that he was disciplined in order to hinder his candidacy thus brings his claim within the protection of the first amendment. In general, a public employee may not be disciplined solely for exercising first amendment rights relating to matters of public concern. Determining whether an employee’s first amendment rights have been violated requires a balancing of the nature and context of the employee’s speech against the governmental employer’s interest in an orderly and efficient workplace. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Roth v. Veteran’s Administration, 856 F.2d 1401, 1404-08 (9th Cir.1988). Cf. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)(plurality opinion) (indicating that patronage dismissals of public employees in policymaking positions would not violate the first amendment). In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court held that assistant public defenders could not be discharged from office solely because of their political affiliation. Id. at 519-20, 100 S.Ct. at 1295-96. The Court rejected a claim that Elrod v. Burns justified discharging public defenders because they were policymaking officials who could be discharged based upon political affiliation. Branti, 445 U.S. at 517-20, 100 S.Ct. at 1294-96. The Court distinguished public defenders from other governmental officials on the ground that the responsibility of public defenders was to represent “individual citizens in controversy with the State.” Id. at 519, 100 S.Ct. at 1295. In a footnote following the above quotation, the Court stated: This is in contrast to the broader public responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on grounds of political party affiliation or loyalty. Cf. Newcomb v. Brennan, 558 F.2d 825 (CA7 1977), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (dismissal of deputy city attorney). Id. at 519 n. 13, 100 S.Ct. at 1295 n. 13. However, only three terms after the Supreme Court decided Branti, the Court considered a first amendment challenge to the discharge of an assistant prosecutor. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Sheila Myers was an Assistant District Attorney in New Orleans. She was dischargeable at-will by her employer, Harry Connick, the District Attorney for Orleans Parish, Louisiana. Myers and Connick were in sharp conflict over Myers’ job duties. Myers had distributed a questionnaire to her fellow assistant prosecutors addressing matters concerning Connick’s managment of the prosecutor’s office. Connick fired Myers for refusing to accept a change in her job duties and told her that he considered her distribution of the questionnaire an act of insubordination. Myers sued Connick under 42 U.S.C. § 1983, contending that her discharge violated her first amendment rights. The Supreme Court held that the majority of the questions in the questionnaire were merely managerial “housekeeping” questions which did not address matters of public concern and consequently did not implicate the protections of the first amendment. Id. at 144-49, 103 S.Ct. at 1688-91. The Court did, however, conclude that a single question in the questionnaire which inquired if assistant district attorneys “ever feel pressured to work in political campaigns on behalf of office supported candidates” did implicate matters of public concern and required first amendment scrutiny. Id. at 149, 103 S.Ct. at 1691. The Court ultimately concluded that Con-nick was justified in firing Myers notwithstanding its finding that Myers had engaged in protected speech. Id. at 150-54, 103 S.Ct. at 1691-94. From Connick we draw two important points. First, Myers’ position as an assistant prosecutor was unimportant to the Court’s straightforward application of the general rule prohibiting discharge of public employees solely for exercising first amendment rights. Second, the Court made no reference to footnote 13 in Branti v. Finkel. We thus conclude that there is no bar to Finkelstein’s first amendment claim due solely to his status as an assistant prosecutor. Connick precludes such a conclusion. See also Giacalone v. Abrams, 850 F.2d 79 (2nd Cir.1988)(apply-ing traditional balancing of interests in § 1983 claim brought by a prosecutor for violation of first amendment rights). A number of circuit courts have confronted the scope of an assistant prosecutor’s first amendment right not to be discharged on grounds of political affiliation or loyalty and have concluded that they may be discharged for virtually any reason without implicating first amendment concerns. Clark v. Brown, 861 F.2d 66, 68 (4th Cir.1988); Liras v. Petka, 711 F.2d 798, 800-01 (7th Cir.1983); Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir.1982); Newcomb, 558 F.2d at 829-31. To the extent that these cases state either that assistant prosecutors may not bring suit for violations of the first amendment arising in the employment context or that it is not clearly established that assistant prosecutors may vindicate first amendment rights in an employment context, we respectfully disagree in light of Connick. Cf. Clark, 861 F.2d at 68 (not clearly established, no discussion of Connick); Livas, 711 F.2d at 800-01 (decided shortly after and without reference to Connick and holding that assistant prosecutors are policymaking officials not protected by the first amendment); Mummau, 687 F.2d at 10 (pre-Connick); Newcomb, 558 F.2d at 829-31 (pre-Connick). Bergna argues, however, that it was not clearly established that suspensions could implicate first amendment concerns. Berg-na is incorrect. It was clearly established at the time of Finkelstein’s suspension that disciplinary suspensions based upon proper exercise of first amendment rights may give rise to § 1983 liability. See Peacock v. Dural, 694 F.2d 644, 645 (9th Cir.1982)(suspension and discharge case); Porter v. Califano, 592 F.2d 770, 771 (5th Cir.1979)(thirty-day suspension implicated first amendment rights). Finkelstein has alleged that Bergna suspended him in retaliation for opposing Bergna’s chosen successor for the elected position of District Attorney of Santa Clara County. Candidacy for office is of great public importance and the free and spirited clash of opinions in the pursuit of public office is to be expected and encouraged. Bergna was well within his rights in supporting a candidate other than Finkelstein. What Bergna could not do without some strong governmental justification, not present on the record in this appeal, was to use his position as District Attorney to hinder Finkelstein’s candidacy by suspending him from his job. Connick, 461 U.S. at 152, 103 S.Ct. at 1692-93. We conclude that Finkelstein’s first amendment interests greatly outweigh any governmental interests asserted in this appeal and that it would be apparent that a public employer’s retaliation against a candidate for office because the employer supports another candidate violates clearly established law. See Roth, 856 F.2d at 1408 (distilling the relevant balancing tests in public employee discharge cases and specifically declining to adopt a cramped view of what constitutes clearly established law in cases in which the courts must engage in fact-specific balancing of competing interests). Accordingly, Bergna’s motion for summary judgment on the first amendment claim was properly denied. AFFIRMED. . These cases largely turned on determinations that assistant prosecutors are policymaking officials not subject to the general rule that public employees may not be disciplined solely for speaking about matters of public concern. Bergna has not argued that Finkelstein held a policymaking position. . Indeed, if we assume (as we must, viewing the evidence in the light most favorable to Finkel-stein) that Bergna’s actions were motivated by political considerations, there is no evidence in the record of a counterbalancing governmental interest supporting the suspension. Cf. Roth, 856 F.2d at 1408 (noting the existence of underlying factual issues with respect to the extent of office disruption caused by Roth’s first amendment activities). Moreover, Bergna’s claim that the suspension was somehow justified by his own first amendment right to comment on Finkelstein’s qualifications is without merit. Bergna’s use of his official authority as District Attorney to discipline Finkelstein may be justified only by governmental interests in effective functioning of the District Attorney’s office, not by Bergna’s interests as a private citizen. . In fact, Bergna’s brief virtually concedes this point as his claim of qualified immunity is focused on the erroneous argument that suspensions do not implicate first amendment concerns.

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

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

Honorable Ronald V. DELLUMS et al. v. James M. POWELL, Chief, U. S. Capitol Police, et al. Richard M. Nixon, Appellant. No. 80-1134. United States Court of Appeals, District of Columbia Circuit. Argued June 16, 1980. Decided Sept. 25, 1980. As Amended on Denial of Rehearing Jan. 23, 1981. R. Stan Mortens on, Washington, D. C., with whom Herbert J. Miller, Jr. and James E. Rocap, III, Washington, D. C., were on brief, for appellant. Warren Kaplan, Washington, D. C., with whom Lawrence H. Mirel, Washington, D. C., was on brief, for appellee. Before McGOWAN, ROBINSON and EDWARDS, Circuit Judges. Opinion for the court filed by McGOWAN, Circuit Judge. Concurring opinion filed by EDWARDS, Circuit Judge. McGOWAN, Circuit Judge: In this appeal we are asked for a second time to resolve a dispute over plaintiffs-appellees’ attempted discovery of a large number of transcripts of taped conversations between former President Nixon and his associates. Mr. Nixon presented his objections to the production of the transcripts to the District Court in a series of documents styled as a Vaughn index. The District Court held that the index failed to present the objections adequately and ordered that the transcripts be turned over to counsel for appellees. For the reasons that follow, we agree with the District Court’s conclusion that Mr. Nixon’s “Vaughn index” is totally inadequate as a vehicle for presenting his objections to production, but we conclude that the District Court should have directed Mr. Nixon to prepare another index rather than ordered immediate production of the transcripts. I. From the last week in April through the first week in May, 1971, scores of thousands of demonstrators came to Washington, D.C., to protest this country’s involvement in the war in Southeast Asia. As part of those protest activities, on May 5, two thousand persons met on the Mall and then moved on to the Capitol steps to give and to listen to antiwar speeches. Approximately 1,200 of the demonstrators were arrested on the Capitol steps, including plaintiffs-appellees in this litigation. This class action suit, which was brought on behalf of all the persons arrested on the Capitol steps on May 5,1971, “was predicated on an allegation that the defendant officials had engaged in a civil conspiracy to arrest and detain the class members with the purpose of frustrating their First Amendment right to protest against the war.” The District Court dismissed the claims against certain of the defendants and severed the claim against John Mitchell, and after a trial before a jury, judgment was entered in favor of plaintiffs and their class. In the course of pretrial discovery, appellees had issued a subpoena duces tecum to Philip Buchen, then counsel to President Ford, that instructed him to appear and produce “all tapes and transcripts of White House conversations during the period of April 16 through May 10, 1971, at which ‘May Day’ demonstrations (5/3-5/7/71) were discussed.” Mr. Buchen filed a motion to quash the subpoena, which the District Court, on November 14, 1974, denied. When Mr. Nixon learned of the November 14 production order, he filed motions to quash the subpoena and to stay the production order. On December 2, 1974, the District Court granted the stay motion, explaining that the pending trial of the class action suit would be threatened by enforcement of the production order, which would probably engender lengthy litigation. The court never ruled on Mr. Nixon’s motion to quash. Following the trial of the original lawsuit, plaintiffs resumed their action against Mr. Mitchell, the remaining untried defendant, and renewed their request for the tapes and transcripts. Mr. Nixon again interposed an objection to their production, giving the following reasons for his objection: (1) the doctrine of Presidential or executive privilege absolutely bars discovery of a former President’s confidential conversations and documents in civil litigation; (2) even if the privilege is not absolute and the documents are discoverable, plaintiffs had not made a showing of compelling need sufficient to overcome the claim of Presidential privilege; and (3) an order permitting Mr. Buchen to review the conversations and files in order to locate material identified in the subpoena “would ‘countenance an unlawful wholesale invasion of the confidentiality’ of the Nixon materials, as well as invade Nixon’s personal privacy insofar as the recorded conversations might be with his wife, doctor, friends, attorney, or daughter.” The District Court rejected all of Mr. Nixon’s objections, denied the motion to quash, and dissolved the prior stay of the November 14 production order. On appeal, this court affirmed in part and reversed in part. Dellums v. Powell, 561 F.2d 242 (D.C.Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977). We rejected the argument that “a formal claim of privilege based on the generalized interest of presidential confidentiality, without more, works an absolute bar to discovery of presidential conversations in civil litigation, regardless of the relevancy or necessity or the information sought.” Id. at 245-46. Rather, “‘the detrimental effects of disclosure [must be weighed] against the necessity for production shown.’ ” In addition, we affirmed the District Court’s ruling that appellees had made a showing of need sufficient to overcome the claim of Presidential privilege: “[P]laintiffs-appellees have certainly made at least a ‘preliminary showing of necessity’ for information that is not merely ‘demonstrably relevant’ but indeed substantially material to their case.” Id. at 249 (footnotes omitted). Finally, we reversed and remanded to the District Court on the issue of the level of protection afforded Mr. Nixon’s common-law privacy interests by the District Court’s production order. The production order could have been read literally to require Mr. Buchen to turn over to appellees’ counsel any tape, in its entirety, that contains a conversation relating to the May Day demonstrations, even if the tape also contains other entirely personal conversations as to which Mr. Nixon could maintain that a common-law privilege applies. “In our view,” we wrote, “the privacy interests of a former President must be safeguarded.” Id. at 250. Our opinion in Dellums also indicated the procedures that the District Court should follow on remand to ensure that Mr. Nixon’s privacy interests were adequately protected. We suggested that the District Court appoint a professional archivist as special master to the court for the limited purpose of reviewing the designated tape recordings, transcribing those portions of the taped conversations that relate to the May Day demonstrations, and transmitting such isolated transcripts to the District Court. In addition, we stated that the determination of what constitutes material in compliance with the subpoena shall be left with the Special Master. Following the transmittal of relevant materials to the Court, and before they are turned over to counsel for plaintiffs, Mr. Nixon shall be afforded the right to assert ‘any rights, defenses or privileges’— whatever they might be — in accordance with the appropriate implementing regulation of the [Presidential Recordings and Materials Preservation] Act. 41 C.F.R. § 105-63.303. Under such circumstances, we contemplate a procedure in the District Court identical to that outlined in this court’s en banc opinion in Nixon v. Sirica, supra, 159 U.S.App.D.C. at 79, 487 F.2d at 721. While the parties are directed to that order, we think it sufficient to indicate that the procedure there developed contemplates in camera review of the challenged material at which time Mr. Nixon will be able to assert any claims of privilege with particularity. Counsel for the plaintiffs will be entitled to inspect the materials in chambers to assist the Court in determining the validity of any claim of privilege. Any ruling adverse to Mr. Nixon is subject to appeal, if that course of action is deemed appropriate. II. On November 8, 1978, the District Court mapped out the procedures that would govern the proceedings on remand. The court’s two principal concerns were to identify those conversations that arguably were covered by the subpoena and to ensure that Mr. Nixon was afforded an adequate opportunity to object to the production of the conversation. In framing the guidelines for the archivist’s search to ensure that all relevant conversations were identified and transcribed, the District Court adopted appellees’ suggestion that “the Administrator transcribe and produce all conversations relating ‘directly or indirectly’ or having any bearing or significance to any of the following:” (1) Anti-war demonstrations; (2) Anti-war demonstrators; (3) Plans of the United States government or any officials of the United States government, or any other government, relative to demonstrations held or to be held in Washington, D.C. during April or May, 1971; (4) Responses of the United States government officials, or officials of any other government, or any private citizens, relative to demonstrations or other activities of persons opposed to the war in Vietnam during April or May of 1971; (5) Plans, procedures or proposals for handling persons arrested or to be arrested or otherwise detained or controlled for anti-war activities in Washington, D.C. or elsewhere during April and May, 1971; (6) Authority for law enforcement in the District of Columbia during demonstrations. The District Court acknowledged the potentially overbroad reach of these search instructions, but noted that Mr. Nixon’s interests would not be compromised: [A]ny doubts may be resolved in favor of inclusion. In short, the objective of the Administrator should be to ferret out any and all conversations which relate, explicitly or by inference, to the subject of whether and to what extent Mr. Mitchell was involved in the violations of plaintiffs’ fundamental constitutional rights during the May Day demonstrations. Defendant Mr. Mitchell and Mr. Nixon will have just and ample opportunities at the administrative appeal, in camera review, and appellate appeal stages of this process to raise objections based upon relevance and other privileges. In addition, the District Court established the following procedures as to transcriptions, access, control, and appeals: (2) While the transcribed materials are still in custody, possession and control of the Administrator and before their submission to the Court, Mr. Nixon should be given notice of contemplated release of the materials and opportunity to file and exhaust his administrative objections, in accordance with 41 C.F.R. 105-63.603 and 41 C.F.R. 105-63.204(f) (3) Upon compliance with 41 C.F.R. 105-63.204(f), the Administrator will transmit to the Court the materials he deems relevant. Following the transmittal of these materials, but before they are turned over to counsel for plaintiffs, Mr. Nixon shall be afforded the right to assert any rights, defenses, or privileges he may wish to raise in accordance with the provisions of 41 C.F.R. 105-63.303, Dellums, supra at 250. These claims of right, defense, or privilege are to be designated by an itemized index of the materials containing correlated descriptions specific enough to identify the basis of the particular claim or claims, Nixon v. Sirica, supra at 721, which would be submitted to the Court and opposing counsel at the time the claims are asserted.... Using the District Court’s broad “search” guidelines, the archivist transcribed all or portions of 133 conversations encompassing 759 typed pages of transcript. Most of the conversations took place in the Oval Office of the White House; others occurred in the Old Executive Office Building, the Lincoln Sitting Room, or the Cabinet Room. Some conversations were carried out over the telephone, while others took place among up to two dozen persons actually present in the place described. Mr. Nixon bypassed the administrative appeal provided for by both this court’s opinion and the District Court’s order of November 8, 1978. Instead, he initially presented his objections to the production of parts or all of some of the transcripts directly to the District Court. He presented his “claims of right, defense or privilege” in a series of documents that he claims satisfies this court’s requirement of a Vaughn-type index. Mr. Nixon’s index consists of three separate documents. First, he submitted one- or two-page summaries of all 133 conversations. The summaries identify the date, time of day, and place of each conversation, as well as the participants. He purports to have summarized every topic of conversation included in the transcript. At the bottom of every page are listed “Objections to Production”; in every case, the objections are (1) “Irrelevant,” (2) “Presidential privilege,” (3) “Privacy,” or a combination of these. As indicated in the table set out in the margin of this opinion, Mr. Nixon objected to all or parts of 95 conversations on all three grounds while one conversation is not objected to at all. Second, Mr. Nixon filed papers that divide the numbered conversations into four categories. The four categories are as follows: Category I: “all conversations, or portions thereof, which mentioned in any way activities, actual or threatened, at the Capitol and any matters pertaining thereto” (23 conversations or portions thereof); Category II: “all conversations in which John Mitchell was a participant” (6 conversations or parts thereof); Category III: “all conversations in which reference was made either to the Attorney General or to Mr. Mitchell by name” (17 conversations or parts thereof); Category IV: none of the above (133 conversations or parts thereof). Each of four sheets identified a single category by number (I-IV) and contents (approximately as described in the quotations immediately above), and listed by number the conversations, or portions of conversations, that had been assigned to that category. The cover pages for categories I through III were followed by photocopies of the relevant transcript pages. For instance, the cover page for Category I, which identifies by number all “Category I” conversations, is followed by transcript pages for conversation number 3, the first of the Category I conversations, with non-Category I portions masked out. Mr. Nixon voluntarily waived all objections to Category I conversations (or fragments) and apparently turned over redacted photocopies to plaintiff’s counsel. Finally, Mr. Nixon submitted a memorandum that purports to “explain to the Court and counsel the structure of the Vaughn -type index and presents] a legal analysis of the bases for the asserted objections to production of the conversations not being voluntarily disclosed.” The District Court ruled, in a memorandum and order dated January 22, 1980, that Mr. Nixon’s Vaughn submissions were insufficient and ordered “that all conversations transcribed by the Administrator in response to the subpoena and this court’s November 8, 1978, order be made available immediately to attorneys for plaintiffs.” The court held that Mr. Nixon’s Vaughn index “is obviously not responsive to the Court of Appeals decisions in Nixon, supra, and Dellums, supra, and to this court’s November 8, 1978 memorandum opinion for four reasons”: First, Mr. Nixon provided a summary of all 759 pages of transcription, rather than providing manageable segments of the tape transcripts for which he claims privilege. Second, the descriptions themselves are not specific enough to identify the basis of the particular claim or claims being asserted. Third, even if the descriptions are specific enough, the blanket claim of one or more privileges is not correlated to any particular segment of conversations. “Unless Mr. Nixon would have the court understand that every segment of each conversation is objectionable on every ground... stated on each one-page summary, the privilege claims are woefully inadequate.” Finally, blanket claims of “privacy” or “Presidential privilege” are not sufficiently particularized to describe the precise aspect of the privilege or interest that would be threatened by release of the transcripts. In addition, the District Court rejected Mr. Nixon’s claims of irrelevancy out of hand. It stated, “Since the court has already ruled that any material responsive to the subpoena should be turned over to the plaintiffs absent a valid claim of privilege by Mr. Nixon, November 8,1978, memorandum opinion, unless Mr. Nixon is questioning the Administrator’s fulfillment of the subpoena his objection to the material on the ground of irrelevance is immaterial.” Mr. Nixon now appeals from the District Court’s ruling and production order. He challenges both the conclusion that his “Vaughn index” is insufficient as a matter of law and the holding that he is foreclosed on the basis of our earlier opinion in this case from objecting to the production of certain transcripts on grounds of relevancy. In addition, Mr. Nixon argues that, even if his submission fails to satisfy the requirements established by our opinion and by the District Court in its November 8, 1978, order, the District Court erred in not giving him another opportunity to satisfy those requirements by submitting an adequate index. III. As we noted at the outset of this opinion, we find ourselves in substantial agreement with the District Court’s rejection of Mr. Nixon’s index. The claims and objections based upon the Presidential privilege and upon privacy, however, are entitled to a considerable measure of deference by the courts. United States v. Nixon, 418 U.S. 683, 715, 94 S.Ct. 3090, 3111, 41 L.Ed.2d 1039 (1974); Dellums v. Powell, 561 F.2d 242, 249, 250 (D.C.Cir.1977). Thus, we conclude that the District Court should have afforded Mr. Nixon one more opportunity to submit a satisfactory index, rather than to ignore his objections and order the immediate release of all of the transcripts to appellees’ counsel. In this Part of our opinion, we highlight the specific shortcomings in the index submitted below that should be remedied by Mr. Nixon on remand. In Part IV, we explain why we conclude that the District Court erred in disallowing Mr. Nixon’s relevancy-related objections. In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), this court “set out suggested procedures to allow the courts to determine the validity of the government’s claims [that certain documents were exempted under Freedom of Information Act from the duty of disclosure] without physically examining each document.” Our analysis in that case of the problems created by undifferentiated, blanket claims of multiple exemptions stands as a blueprint of how an index should not be constructed, and comes quite close to describing precisely the dilemma posed to the District Court by Mr. Nixon’s index in this case: The Government claims that the documents, as a whole, are exempt under three distinct exemptions. From the record, we do not and cannot know whether a particular portion is, for example, allegedly exempt because it constitutes an unwarranted invasion of a person's privacy or because it is related solely to the internal rules and practices of an agency. While it is not impossible, it seems highly unlikely that a particular element of the information sought would be exempt under both exemptions. Even if isolated portions of the document are exempt under more than one exemption, it is preposterous to contend that all of the information is equally exempt under all of the alleged exemptions. It seems probable that some portions may fit under one exemption, while other segments fall under another, while still other segments are not exempt at all and should be disclosed. The itemization and indexing that we herein require should reflect this. 484 F.2d at 827-28. We have recently indicated the bare minimum requirements of any acceptable Vaughn index: (1) The index should be contained in one document, complete in itself. (2) The index must adequately describe each withheld document or deletion from a released document. (3) The index must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant.... Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C.Cir.1979). And in another recent case we upheld the District Court’s rejection Of a Vaughn index that was depressingly similar to the one submitted by Mr. Nixon in this case: We repeat, once again, that conclusory assertions of privilege, will not suffice to carry the Government’s burden of proof in defending FOIA cases. A typical line from the index supplied in this case identifies who wrote the memorandum, to whom it was addressed, its date, and a brief description of the memorandum such as “Advice on audit of reseller whether product costs can include imported freight charges, discounts, or rental fees. Sections 212.93 and 212.92.” DOE claimed this document was “PD” (predecisional), “ATWP” (attorney work-product) and that “some” of it was in an investigatory file. That is all we are told, save for the affidavits submitted by the regional counsel which repeat in conclusory terms that all the documents withheld fall within one or another of the exemptions. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C.Cir.1980). With these cases as background, we turn to a point-by-point review of the District Court’s rejection of Mr. Nixon’s index. We do this so that appellant’s counsel will have the clearest possible understanding of what is expected of them on their second attempt to satisfy our earlier order. We agree with the District Court that Mr. Nixon has failed to “present [ ] managable segments of the tape transcripts to which he claims privilege.” As noted earlier in our opinion, Mr. Nixon has voluntarily released portions of twenty-three conversations, leading to the conclusion that he does not claim that their release is barred by any claim, defense, or privilege. Yet his index summarizes each of these twenty-three conversations and lists his objections to their production. As a first step in preparing any Vaughn index, the party on whom the burden of production rests should provide a clear and cogent summary of exactly what material is being withheld (or, in this case, of exactly what material is subject to his claim, defense, or privilege), and what material is being produced without objection. In addition, at least for purposes of correlating claims, defenses, and privileges to manageable segments of the transcripts, counsel should identify all relevant portions of the transcripts by page number and line, so that all claims and objections can be fully evaluated and reviewed. The requirement that the material be presented in manageable segments takes on added meaning and importance when it is remembered that the underlying purpose of the Vaughn index is to permit the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render the District Court’s decision capable of meaningful review on appeal. Thus, each document must be broken down into manageable segments that are cross-referenced to the relevant claim, defense, or privilege. The work is undoubtedly painstaking and time-consuming, but it must be done if a District Court is to analyze claims that apply to most of 759 pages of conversation transcripts. Mr. Nixon’s summaries consist of a summary sheet that identifies the date, time, and place of the conversation, names the participants, and provides brief one-line synopses of each topic touched upon in the conversation. Many describe a dozen or more conversations. At the bottom of each summary sheet, Mr. Nixon lists his objections to the production of that conversation. In fifteen instances, his objections are expressly limited to certain portions of the conversation, and in one instance he lists no objection at all to the production of a transcript in its entirety. In 117 instances, however, he simply lists one, two, or three objections at the bottom of the summary. As noted earlier, 82 summaries list all three objections without delineating the precise applicability of the objections to discrete topics discussed by the participants. In addition, Mr. Nixon categorized the conversations according to their perceived relevance to the subpoena. This, in our view, adds nothing to the index except an unneeded element of confusion. Without an itemized explanation of each segment sought to be protected, the District Court is left with the unavoidable impression that nearly every segment is objectionable on every ground. To paraphrase our opinion in Vaughn v. Rosen, supra, it is preposterous to contend that all of the conversations are equally privileged under all of the alleged privileges. If this claim were taken at face value, we would have to conclude that Mr. Nixon actually claims that the Presidential privilege prevents the disclosure of a conversation with Mr. Nixon’s secretary concerning Democratic Party fund-raising dinners or of a meeting with a score of Congressmen, Senators, and aides concerning the cost of living. If this is Mr. Nixon’s claim, it should be made much more explicitly and the theory behind such a claim should also be made clear. The need for “a relatively detailed justification, specifically identifying the reasons why a particular exemption [or, in this case, privilege] is relevant and correlating those claims with the particular part of a withheld document to which they apply” has not yet been satisfied in this case. The District Court also stated that it did not believe that the summaries of conversations that form the backbone of the Vaughn index contain “ ‘descriptions [of the conversations] specific enough to identify the basis of the particular claim or claims.’ ” We agree with this assessment. Many of the one-line summaries consist of nothing more than a noun phrase that is so brief and cryptic as to be unintelligible. While this court has consistently stated that counsel need not prepare so complete a summary that the summary itself reveals that which is being withheld, a more detailed summary is required than that which Mr. Nixon’s counsel have provided in this case. The District Court also ruled that Mr. Nixon has not made clear the basis for his claim that either the Presidential privilege or his right to privacy would be violated by the release of any of the conversations. For the reasons that follow, we think the District Court correctly held that the showing required of Mr. Nixon at this stage of the proceedings is a more particularized showing than that which was made below. In Nixon v. Sirica, 487 F.2d 700 (D.C.Cir. 1973), Mr. Nixon challenged the District Court’s order to produce certain items identified in a subpoena duces tecum so that the court could determine, by means of an in camera inspection, whether the items were exempted from disclosure by evidentiary privilege. Id. at 705. One of Mr. Nixon’s arguments against the validity of the District Court’s order was “that Executive privilege is absolute with respect to presidential communications, so that disclosure is at the sole discretion of the President.” Id. at 708. After rejecting the contention that the President’s privilege is absolute, we addressed the conflict between a less-than-absolute Presidential privilege and the evidentiary needs of a particular case: [Application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case.... [T]he President asserts that the tapes should be deemed privileged because of the great public interest in maintaining the confidentiality of conversations that take place in the President’s performance of his official duties.... [W]e think that this presumption of privilege premised on the public interest in confidentiality must fail in the face of the uniquely powerful showing made by the Special Prosecutor in this case.... [T]he Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence... for which no effective substitute is available. Id. at 716-17 (footnote omitted). After finding that the Special Prosecutor's showing of need outweighed the President’s assertion of a generalized interest in the confidentiality of Presidential conversations, we turned to the procedures and standards to be employed by the District Court in determining which materials would in fact be turned over to the grand jury: [W]e hold that the District Court may order disclosure of all portions of the tapes relevant to matters within the proper scope of the grand jury’s investigation, unless the Court judges that the public interest served by nondisclosure of particular statements of information outweighs the need for that information demonstrated by the grand jury. Id. at 718 (emphasis added). We continued: We contemplate a procedure in the District Court, following the issuance of our mandate, that follows the path delineated in Reynolds, Mink, and by this court in Vaughn v. Rosen. With rejection of his all-embracing claim of prerogative, the President will have an opportunity to present more particular claims of privilege, if accompanied by an analysis in manageable segments. Id. at 721 (emphasis added) (footnote omitted). Thereafter, we considered the obviously analogous case presented by Mr. Nixon’s first appeal in the instant case, in which he challenged the subpoena duces tecum on the ground, among others, “that the [presidential] privilege must be absolute when asserted in civil litigation,” Dellums v. Powell, 561 F.2d 242, 245 (D.C.Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977). We reached the same conclusion in this earlier Dellums opinion as we had reached in Nixon v. Sirica. The privilege is not an absolute evidentiary privilege, and it may be overcome by a sufficiently strong showing of litigating need; moreover, the parties seeking discovery in this case had overcome the presumptive privilege by a particularly strong showing of litigating need. Id. at 248. We continued: Concededly, plaintiffs-appellees have not established with absolute certainty that conversations concerning the demonstrations actually took place between Mr. Nixon and those with whom he consulted during the time frame embraced by the subpoena. It is enough for present purposes that it is highly likely that such conversations did take place and were recorded, and there is a substantial possibility that Mr. Nixon discussed the matter with Mr. Mitchell, who was both his attorney general and a person who enjoyed a close working relationship with the President. Only if such conversations do exist, will plaintiffs have access to any record. If they do not exist, the assumed privilege will remain intact and there will be no public disclosure.... Id. at 248-49. We also considered the evidentiary privilege based upon Mr. Nixon’s privacy interest and concluded that “the privacy interests of a former President must be safeguarded,” id. at 250. As for the conduct of proceedings in the District Court on remand, we wrote: Under such circumstances, we contemplate a procedure in the District Court identical to that outlined in this court's en banc opinion in Nixon v. Sirica, supra, 159 U.S.App.D.C. at 79, 487 F.2d at 721. While the parties are directed to that order, we think it sufficient to indicate that the procedure there developed contemplates in camera review of the challenged material at which time Mr. Nixon will be able to assert any claims of privilege with particularity.... Id. at 251 (emphasis added). We think it abundantly clear from the preceding passages that any claim of privilege, whether of executive or Presidential privilege or of common-law evidentiary privilege based upon Mr. Nixon’s privacy interests, must be made with particularity. Only if Mr. Nixon can show that the interest in secrecy or nondisclosure outweighs the need for a particular transcript should that transcript be withheld from appellees’ counsel. Instead, Mr. Nixon has in effect reasserted an absolute Presidential privilege and made no attempt to balance the competing interests, as our opinions require. Under the circumstances, the District Court correctly rejected the blanket assertion of privilege as an attempt to relitigate the issue of absolute privilege that Mr. Nixon has lost twice before in this court. The memorandum that Mr. Nixon submitted along with his transcript summaries and his categorizations fails to state the basis, even on a generalized level of abstraction, for his assertions that the transcripts should be withheld on grounds of Presidential privilege, privacy, and relevancy. Indeed, the memorandum is little more than a vehicle for the presentation of self-serving quotations from the transcript designed to show the former President’s lack of involvement with the law enforcement activities on May 5,1971. It need hardly be said that such selections from the transcripts are largely irrelevant to the purpose to be served by a Vaughn index and, to the extent that this memorandum purports to justify the claimed privilege, it is wholly inadequate. IV. The District Court rejected the index in this case based upon its view, in which we concur, that the index utterly failed to present Mr. Nixon’s claims as to Presidential privilege and privacy in a manner contemplated by our earlier opinions and conducive to analysis and review. The District Court, however, erroneously failed to consider Mr. Nixon’s objections on grounds of relevancy. It wrote: Since the court has already ruled that any material responsive to the subpoena should be turned over to the plaintiffs absent a valid claim of privilege by Mr. Nixon, November 8, 1978 memorandum opinion, unless Mr. Nixon is questioning the Administrator’s fulfillment of the subpoena his objection to the material on the ground of irrelevance is immaterial. While the District Court’s refusal to consider such claims had no effect on the outcome below, we wish to make it clear that on remand from this court Mr. Nixon should be given the opportunity to present with particularity his relevancy-based objections to production. In our prior opinion, we stated, “Following transmittal of relevant materials to the Court, and before they are turned over to counsel for plaintiffs, Mr. Nixon shall be afforded the right to assert ‘any rights, defenses or privileges’-whatever they might be....” 561 F.2d at 250. As our earlier discussion of the Presidential privilege should make clear, the weighing process is designed to balance the particular interest in confidentiality against the specific need for a given transcript, and the relevancy of a transcribed conversation will be an important consideration in any such balancing process. In addition, the District Court’s November 8 order, in which it established the screening guidelines to be used by the archivist in identifying conversations that are covered by the subpoena, significantly expanded upon the scope of the subpoena language, establishing standards that would err, if at all, on the side of over-inclusion. The District Court stated that “[a]ny doubts may be resolved in favor of inclusion,” and added that “Mr. Nixon will have just and ample opportunities at the administrative appeal, in camera review, and appellate appeal stages of this process to raise objections based upon relevance and other privileges.” Thus, Mr. Nixon properly raised objections based upon relevancy in his Vaughn index, although in a totally inadequate manner, and relevancy-based objections should be considered on remand by the District Court if they are particularized and supported by analysis that relates to manageable segments of the transcripts. In view of our holding in the earlier Dellums case, in which we upheld the subpoena duces tecum upon appellees’ “‘preliminary showing of necessity’ for information that is not merely ‘demonstrably relevant,’ but indeed substantially material to their case,” transcripts of conversations produced by the archivist in response to the subpoena are presumptively relevant and material. This presumption obtains even though the District Court (properly, in our view) expanded upon the language of the subpoena in framing search instructions for the archivist. Thus, the burden of persuasion is on Mr. Nixon to demonstrate that particular transcripts are not relevant and should not be produced. The standard to be applied by the District Court in ruling on Mr. Nixon’s relevancy objections should be the relevancy standard ordinarily applied to discovery, rather than the admissibility standard. This is not to say, of course, that all transcripts that meet this threshold standard must be turned over to appellees’ counsel, because Mr. Nixon must be given an opportunity to present his particularized claims of Presidential privilege. But unless he can demonstrate that the interests that are promoted by the privilége outweigh those that favor discovery in this class action, appellees’ counsel shall be entitled to obtain the transcripts, subject to an appropriate order. For the reasons stated above, the memorandum and order of the District Court are affirmed in part, 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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.

This question concerns the second listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.

UNITED STATES of America ex rel. Charles “Chuck” MILLER, Petitioner-Appellant, v. James GREER, Warden, Menard Correctional Center, Respondent-Appellee. No. 84-2679. United States Court of Appeals, Seventh Circuit. Argued Feb. 5, 1986. Decided April 9, 1986. Cummings, Chief Judge filed dissenting opinion, in which Harlington Wood, Jr. and Coffey, Circuit Judges joined. Easterbrook, Circuit Judge filed dissenting opinion. Daniel D. Yuhas, Office of State Appellate Defender, Judith N. Kirby, Springfield, Ill., for petitioner-appellant. Marie Quinlivan Czech, Atty. Gen. Office, Chicago, Ill., for respondent-appellee. Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges. FLAUM, Circuit Judge, with whom BAUER, CUDAHY, POSNER, and RIPPLE, Circuit Judges, join. Petitioner Charles Miller appeals the district court’s denial of his petition for writ of habeas corpus, contending that his constitutional rights were violated when the prosecutor improperly commented on his post-arrest silence during his trial in state court for murder, kidnapping, and robbery. This court reversed the district court in a panel opinion issued August 27, 1985. Rehearing en banc was granted on November 14, 1985 and the original decision vacated. We reverse the district court’s denial of the writ. I. This case involves the brutal kidnapping, murder, and robbery of Neil Gorsuch during the early morning hours of February 9, 1980, in Morgan County, Illinois. Miller was indicted for the crimes on February 11, 1980, along with Clarence Armstrong and Randy Williams. Williams entered into a plea agreement with the state whereby the murder, aggravated kidnapping, and robbery charges against him were dropped in exchange for his guilty plea to one count of kidnapping and his testimony in the separate trials of Miller and Armstrong. Randy Williams testified at trial as follows: he, his brother Rick, and Armstrong met Gorsuch in a tavern on the evening of February 8. The four men left together at about 1:30 a.m. the following morning, Armstrong having offered to give Gorsuch a ride back to his motel. After taking Rick home, Williams started driving to Gor-such’s motel. En route, Armstrong began beating Gorsuch in the back seat. Armstrong then told Williams to drive to Williams’s house, where Armstrong again beat Gorsuch and got Williams’s twelve-gauge shotgun out of the bedroom. The three men then got back into the car and drove to the trailer home where Miller was staying. While Williams and Gorsuch waited in the car, Armstrong went in and talked briefly to Miller. Armstrong and Miller then left the trailer and got into the car. Williams drove to a bridge in an isolated rural area, where Armstrong removed Gorsuch from the car and stood him up against the bridge railing. Williams, Armstrong, and Miller then each shot Gorsuch once in the head with the shotgun, and Armstrong pushed the body over the railing into the creek below. Charles Miller testified that Armstrong came to his trailer in the early morning hours of February 9 and said that he needed to talk to Miller because he and Williams had killed somebody. Miller went with Armstrong to Williams’s house and talked to the two men for awhile. He and Williams then took Armstrong home and had breakfast at Dottie’s Cafe, which was run by Williams’s mother. After breakfast, Miller returned to the trailer. He and Williams were arrested that night at a gas station on their way home from a party. Other witnesses testified that Gorsuch left the tavern on the morning of February 9 in the company of the two Williams brothers and Armstrong. The people in the trailer where Miller was staying that night testified that Armstrong arrived at the trailer during the early morning hours of February 9 (estimates varied from 4:15 a.m. to 6:30 a.m.) and left with Miller after a short conversation. Williams’s mother testified that Williams and Miller arrived at her cafe for breakfast at approximately 6:15 a.m. Shotgun shells, other evidence found near the bridge, and the autopsy reports indicated that the murder had taken place essentially as Williams described. After Miller testified, the prosecutor began his cross-examination by asking: Prosecutor: Mr. Miller, how old are you? Defendant: Twenty-three. Prosecutor: Why didn’t you tell this story to anybody when you got arrested? Defense counsel immediately objected and, out of the presence of the jury, asked for a mistrial. The judge denied the motion and instructed the jury to “ignore that last question for the time being.” The judge did not further instruct the jury on the prosecutor’s reference to Miller’s post-arrest silence. The jury found Miller guilty of robbery, kidnapping, aggravated kidnapping, and murder. He was found not guilty of armed robbery. Miller was sentenced to concurrent terms of eighty years for murder, thirty years for aggravated kidnapping, and seven years for robbery. On direct appeal, a unanimous panel of the Illinois Appellate Court reversed Miller’s conviction and remanded for a new trial. People v. Miller, 104 Ill.App.3d 57, 59 Ill.Dec. 864, 432 N.E.2d 650 (1982). The appellate court held that the prosecutor’s reference to Miller’s post-arrest silence directly violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that the trial court’s attempt to cure the error was insufficient. 104 Ill.App.3d at 61, 59 Ill.Dec. at 867-68, 432 N.E.2d at 653-54. The appellate court found that the evidence against Miller was not overwhelming: [Tjhere is corroboration for the testimony of the accomplice, Randy Williams. However, nothing except Williams’ testimony directly links Miller with the crimes. The trial was essentially a credibility contest between defendant Miller and Randy Williams. The reference to post-arrest silence cast aspersions on Miller’s credibility and may have irreparably prejudiced him in the eyes of the jury. Thus, reversal is required. Id. at 61, 59 Ill.Dec. at 868, 432 N.E.2d at 654. The Illinois Supreme Court granted leave to appeal and reversed the appellate court’s decision. People v. Miller, 96 Ill.2d 385, 70 Ill.Dec. 879, 450 N.E.2d 322 (1983). The majority held that although the prosecutor’s comment violated Doyle, the error was harmless because the comment was a single, isolated reference during the course of a lengthy trial, because Randy Williams s testimony was corroborated in many respects, and because the jury was instructed to disregard the comment. Id. at 396, 70 Ill.Dec. at 884, 450 N.E.2d at 327. In dissent, Justice Simon pointed out that accomplice testimony is inherently unreliable and that the judge’s allegedly curative instruction was insufficient. Id. at 397-99, 70 Ill.Dec. at 885-86, 450 N.E.2d at 328-29. Charles Miller filed a petition for a writ of habeas corpus in the United States District Court on August 22,1983, pursuant to 28 U.S.C. § 2254 (1982). On August 27, 1984, the district court entered an order granting the state’s motion for summary judgment and denying the petition for the writ. United States ex rel. Miller v. Greer, No. 83-3254 (C.D. Ill. Aug. 27, 1984). The district court essentially adopted the Illinois Supreme Court’s analysis, holding that the state’s violation of Doyle was harmless beyond a reasonable doubt. II. The Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that “the use for impeachment purposes of [a] petitioner's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. at 2245. The state’s first argument in response to Miller’s appeal is that, despite the fact that the Illinois Appellate Court, the Illinois Supreme Court, the United States District Court, and this court’s original panel all held otherwise, there was no Doyle violation in this case. Charles Miller was not given Miranda warnings when he and Williams were arrested at a gas station in the early morning hours of February 10, 1980, for unlawful use of weapons (a handgun was found under the seat of the car that they were driving). Later that day, Williams gave a formal statement to the police implicating himself, Armstrong, and Miller in Gor-such’s murder. Immediately following Williams’s statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch. The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor’s reference to Miller’s post-arrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor’s comment therefore did not violate Miller’s due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (same). The state asserts that it would have been natural for Miller to have attempted to exculpate himself from any involvement in the Gorsuch murder during the period following his initial arrest because he was arrested with Williams and knew of Williams’s involvement in the crime. We cannot agree with the respondent’s contentions. Although the prosecutor’s question may have been intended to refer in part to Miller’s silence following his arrest on the weapons charge, it cannot seriously be maintained that the prosecutor intended no reference to Miller’s silence after his arrest for Neil Gorsuch’s murder. From the jury’s standpoint, the only reasonable inference to be drawn from the prosecutor’s question — “Why didn’t you tell this story to anybody when you got arrested?” — is that Miller was silent at the time of his arrest for the offenses for which he was then on trial. The respondent asserts that it would have been “natural” for Miller to attempt to exculpate himself when he was arrested on the weapons charge merely because he was with Randy Williams. Although Williams may already have been a suspect in the murder because he had been seen leaving the tavern with Gorsuch, Miller was never even implicated in the crime until Williams gave his formal statement to the police later that day. It is not in the least bit “natural” for a person to try to exculpate himself of a crime of which he has not been accused. Indeed, the statement — “I did not kill anybody” — upon being arrested for unlawful use of weapons, drunken driving, or running a red light, would tend only to inculpate, rather than exculpate, the ar-restee. We conclude, as did the courts before us, that Miller was advised of his right to remain silent for purposes of Doyle when he was given the Miranda warnings at the time of his arrest for the offenses charged at trial. See People v. Miller, 96 Ill.2d at 394, 70 Ill.Dec. at 883, 450 N.E.2d at 326. The prosecutor’s reference to Miller’s silence at the time of his arrest therefore violated his constitutional right to a fair trial. Id. III. The conclusion that there was a Doyle violation in this case does not end the inquiry, however, since constitutional trial errors of this sort can in certain circumstances constitute harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has imposed on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985). This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral argument in this case, as does Judge East-erbrook in his dissent. Proponents of the lesser standard make several arguments. First, they urge that the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), adopted a two-level harmless error standard: the Chapman standard for direct violations of rights specifically enumerated in the Bill of Rights, and a standard requiring the defendant to demonstrate that the violation had a substantial influence on the trial for fourteenth amendment violations. As a variant of this position, it has been suggested that the latter standard is applicable because Doyle is not an innocence-protecting rule but, rather, a prophylactic rule designed only to buttress Miranda, another prophylactic doctrine. A third variant argues that, no matter what the standard applied to direct appeals of Doyle violations, constitutional rules are enforced less strictly on habeas corpus review. Analysis of these arguments is aided by the Supreme Court’s recent pronouncement in Wainwright v. Greenfield, — U.S. —, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). There, in its review of a habeas petition, the Court affirmed the Eleventh Circuit’s decision that Doyle is violated when a prosecutor uses post-Miranda warnings silence as evidence of sanity. Although the harmless error issue was not before the Court, Greenfield is particularly notable for its strong affirmation of Doyle’s constitutional underpinnings and for the twice-mentioned assumption in Justice Rehnquist’s concurrence that the Chapman standard applies to habeas review of Doyle violations. See Rehnquist, J., concurring (joined by Burger, C.J.). Guided by this and other precedent discussed below, we conclude that the “harmless beyond a reasonable doubt” standard remains the law to which we must adhere, and that the state’s position and its variants are misguided. First, a careful reading of Donnelly and other cases reveals that the Supreme Court does not vary the harmless error standard with the kind of constitutional right at issue. Rather, the Court prescribes one standard — the Chapman standard — for determining harmlessness in the context of constitutional trial error and another standard for determining whether ordinarily nonconstitutional trial error, for example, prosecutorial misconduct, is so prejudicial as to rise to the level of a due process violation. Once the trial error has been identified as one of constitutional magnitude, then the Chapman standard is applied to determine whether the conviction must be reversed. For a recent explanation of this distinction, see United States v. Mazzone, 782 F.2d 757, 763 (7th Cir.1986) (Posner, J.). See also United States v. Young, — U.S.-, 105 S.Ct. 1038, 1045 n.10, 84 L.Ed.2d 1 (1985). Donnelly itself made clear this scheme, explaining that the habeas petitioner there could point to nothing in his trial that specifically violated the constitution, such as prosecutorial comments on his right to remain silent. 416 U.S. at 643, 94 S.Ct. at 1871. Instead, the petitioner complained of the prosecutor’s expression of personal opinion as to guilt, an error that would not implicate the petitioner’s fourteenth amendment right to due process unless it actually “infected the trial with unfairness.” Id. Thus, the petitioner has an uphill battle when he seeks to establish general trial error as constitutional error. But where the violation at trial is one of constitutional magnitude, then the government bears the “more onerous” burden of Chapman. See United States v. Lane, — U.S. —, 106 S.Ct. 725, 730 n.9, 88 L.Ed.2d 814 (1986) (Burger, C.J.) (“the standard for harmless-error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors adopted in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)”). In United States v. Bagley, the Court was urged to reverse automatically or apply the Chapman standard to the government’s failure to disclose impeachment material to the defendant. — U.S. —, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Court explained that a threshold inquiry first had to be undertaken to determine whether the nondisclosure amounted to a constitutional violation: “such suppression of. evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial.” 105 S.Ct. at 3381. Justice Marshall argued in dissent that any suppression of impeachment evidence should be considered constitutional error and thus urged the Court to “apply our normal constitutional error test and reverse unless it is clear beyond a reasonable doubt that the withheld evidence would not have affected the outcome of the trial.” 105 S.Ct. at 3394-95 (Marshall, J.). The express underpinning of Bagley was United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976): “to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Thus, the Court to date never has differentiated for harmless error standard purposes between Bill of Rights and fourteenth amendment violations, or between Doyle and other constitutional trial violations, or between direct and collateral review of constitutional violations. Indeed, the Court continues to manifest its complete adherence to a unitary standard of harmless error for constitutional trial violations. For example, the Court recently reaffirmed the constitutional/nonconstitu-tional distinction and the viability of Chapman as the analysis for constitutional trial errors, see the language from Lane, supra p. 9. Regarding Doyle specifically, its constitutional importance was reiterated by the Court in Greenfield. That opinion makes clear that Doyle is not of “secondary” constitutional status and is not merely a rule designed to increase adherence to Miranda. Instead, the court emphasized that drawing attention to post-Miranda warnings silence is fundamentally unfair and constitutes a direct, wholly independent violation of the due process clause of the fourteenth amendment. 106 S.Ct. at 638-39. See, e.g., South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983); Fletcher v. Weir, 455 U.S. 603, 604-05, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982). Finally, Justice Rehnquist’s assumption in Greenfield that the Chapman standard would apply there, 106 S.Ct. at 641, 644, is an additional entry in a long list of evidence that leads to the conclusion that Chapman is the law for Doyle violations in the context of habeas review. Although Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded collateral review of exclusionary rule claims litigated in state proceedings, we can find nothing to indicate that where collateral review is permitted, the Court has prescribed a different standard for determining harmlessness. The Stone doctrine, moreover, depends on the peculiar nature of the exclusionary rule as a “judicially created remedy rather than a personal constitutional right,” 428 U.S. at 495 n.37, 96 S.Ct. at 3052 n. 37. In an exclusionary rule situation, the constitutional violation occurs pre-trial and the rule operates to discourage law enforcement officials from future infidelity to the constitutional strictures. Id. at 492, 96 S.Ct. at 3051. Thus, the Court reasonably could conduct a cost/benefit analysis and conclude that collateral review there is unnecessarily costly, since there is no “reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk” of overturning convictions in federal habeas proceedings. Id. at 493, 96 S.Ct. at 3052. By contrast, the violation at issue in a Doyle situation is constitutional and personal to the petitioner. It occurs when the post-warnings silence is used at trial, and it offends due process. It denies the petitioner a fair trial, unless, and only unless, it can be said that the petitioner beyond reasonable doubt would have been convicted in the absence of the violation. Unless we are to conduct our own cost/benefit analysis and declare habeas relief from constitutional violations a thing of the past, this inquiry remains our responsibility. Accordingly, the Doyle violation must be examined in the context of petitioner Miller’s trial in order to determine whether it was harmless beyond a reasonable doubt. IV. The Illinois Supreme Court based its conclusion that the prosecutor’s improper comment was harmless error on three factors: the comment was a single, isolated reference during the course of a lengthy trial, Williams’s testimony was corroborated in many respects, and the trial judge gave a curative instruction. We cannot agree with the Illinois Supreme Court’s reliance on these factors. Beginning with the court’s observation that the prosecutor’s improper comment was but a single, isolated reference to Miller’s post-arrest silence during the course of a week-long trial, we believe that the timing of the comment overshadows its singularity. No matter how many days a trial may have lasted or how many witnesses may have appeared, the jury will pay close attention when a defendant accused of crimes as horrible as these takes the stand. That attention undoubtedly is heightened when the prosecutor rises to attack the defendant’s story on cross-examination. When one of the first questions from the prosecutor is “Why didn’t you tell this story to anybody when you got arrested?”, the comment cannot be so easily dismissed as a single, isolated reference. Turning to the corroboration of Randy Williams’s testimony, the bulk of the testimony and physical evidence cited by the Illinois Supreme Court corroborated portions of Randy Williams’s testimony that Miller did not even dispute: (1) that Williams, his brother Rick, Armstrong, and Gorsuch left the tavern together at approximately 1:30 a.m. on the morning of February 9; (2) that Gorsuch was beaten and then killed on the bridge by several shotgun blasts to the head; (3) that Armstrong went to the trailer where Miller was staying sometime that morning, talked to him briefly, and then left with him; and (4) that Williams and Miller had breakfast together near daybreak that morning at Dottie’s Cafe. With regard to the crucial part of Williams’s testimony — his assertion that Miller took part in the murder of Neil Gorsuch — there was no direct corroborative evidence and Miller denied being present when the murder was committed. There was no reason to find Miller’s testimony particularly incredible or Randy Williams’s testimony particularly credible on this point, especially since accomplice testimony of this kind is inherently unreliable, often motivated by factors such as malice toward the accused and a promise of leniency or immunity. In short, this evidence does not approach the overwhelming evidence necessary to overcome constitutional error such as a Doyle violation. Compare United States v. Hasting, 461 U.S. 499, 511-12, 103 S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983) (finding harmless error where victims promptly picked the defendants out of a line-up, neutral witnesses corroborated critical aspects of the victims’ testimony, property of the victims was found in one of the defendant’s possession, and there was identification of the car used and one of the defendant’s fingerprints); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (finding harmless error where defendant had an implausible alibi and was arrested near the scene of the robbery with the vest, gloves, and handgun used by the robber); United States v. Wilkins, 659 F.2d 769, 774 (7th Cir.) (finding harmless error where defendant was arrested in the getaway car with the stolen money and guns several blocks from the bank), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). The crux of this trial was whether the jury believed the Williamses or believed Miller. The prosecutor’s improper inquiry, magnified by coming at a time when the jury’s attention was focused on Miller, cast substantial doubt on Miller’s credibility. We simply cannot assume beyond a reasonable doubt that the prosecutor’s comment had no effect on the jury’s assessment of Miller’s credibility, and hence on the jury’s verdict. See, e.g., Velarde v. Shulsen, 757 F.2d 1093, 1095 (10th Cir.1985) (where case comes down to the word of defendant against the word of key prosecution witness, Doyle violation can never be harmless); United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976) (where Doyle-violative remark strikes at the “jugular” of defendant’s story, error cannot be classified as harmless). Finally, in regard to the allegedly curative instruction given by the trial judge, we believe that the judge’s admonition to ignore the prosecutor’s reference to Miller’s post-arrest silence “for the time being” was simply too ambiguous in the setting of a clear-cut Doyle violation to cure the effect of the prosecutor’s improper comment. The record reflects that the judge was apparently unaware that the prosecutor’s question was a violation of Doyle. At the side bar conference following defense counsel’s objection to the prosecutor’s comment, the judge stated: “I will do some checking during the time he is on the witness stand on Cross Examination and if I find where he can, I will let him ask the question.” Thus, the instruction that the judge gave to the jury reflected what he apparently was thinking at the time, which was that the jury might be able to consider the prosecutor’s comment and the implications arising therefrom at some point in the future. Because of the important fourteenth amendment guarantees protected by Doyle, we hesitate to hold that anything other than a clear, immediate, and unambiguous cautionary instruction can be sufficient to cure a Doyle violation. See United States ex rel. Burke v. Greer, 756 F.2d 1295, 1303 (7th Cir.1985) (final jury instructions ordinarily not sufficient to cure constitutional errors). Even if we were willing to consider a flawed cautionary instruction sufficient under certain circumstances, we could not conclude that the Doyle violation in the circumstances of this case was rendered harmless by the trial judge’s obscure instruction. In sum, we hold that the state has not met its burden of proving that the prosecutor’s clear violation of Doyle was harmless beyond a reasonable doubt. In reaching this conclusion, we are not unmindful of the appropriateness of deferring to the state courts’ assessment of the impact of prosecutorial error on state trials. However, we are respectfully unable to accept the Illinois Supreme Court’s analysis in this case, although our conclusions track closely those of the unanimous Illinois Appellate Court. Because the crucial issue at trial was credibility, the Doyle violation went to the heart of the truth-seeking process. The evidence against Miller was not overwhelming, his story was not implausible, and the trial court's cautionary instruction was insufficient to cure the error. In these circumstances, we must conclude that it is not clear beyond a reasonable doubt that, absent the prosecutor’s improper comment, the jury would have found Miller guilty of the crimes for which he was convicted. V. The district court’s judgment denying a petition for a writ of habeas corpus is accordingly reversed, and the matter remanded with instructions to order Miller’s release from custody unless the state retries him within the 120-day time limit. . The trial court vacated Miller’s kidnapping conviction because kidnapping is a lesser-in-eluded offense of aggravated kidnapping. . There may also be a different approach to constitutional errors that do not affect trials. The Supreme Court in Morris v. Mathews, — U.S. —, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), held that in the double jeopardy context, once a jeopardy-barred conviction is removed and a lesser-included offense conviction substituted, the defendant bears the burden of demonstrating that the jury would not have convicted him of the lesser-included offense. The majority in Morris stressed the distinction between double jeopardy cases and cases involving constitutional trial errors, stating that "this [Morris ] is not a 'harmless error’ case.” Id. at 1037. Thus, the Morris approach does not pertain to our analysis. . In any event, it may be inappropriate to do so since all Bill of Rights provisions are enforced against the states as fourteenth amendment rights. . It may taint the truth-seeking process as well. Silence after a state authority has promised that any statement one makes may be used at trial surely has questionable probative value. The Supreme Court suggested as much in United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975), and the difference in probative value between post-warnings silence and silence without warnings formed part of the Court’s rationale in Fletcher v. Weir for holding that only post-warnings silence implicates Doyle. 455 U.S. 603, 604-06, 102 S.Ct. at 1310-11 (1982). . Any confusion on this point may be engendered by a possible misreading of Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). In Henderson, the Court reversed a grant of the writ because it found that the petitioner’s due process rights had not been violated by deficient jury instructions. The Court noted that the petitioner’s burden in making a collateral attack on constitutionality was greater than in seeking direct review, because the question on direct review in the state court was merely whether the instruction was “undesirable, erroneous, or even universally condemned.” Id. at 154, 97 S.Ct. at 1737. . Rick Williams testified that on the evening following Gorsuch’s murder, Randy Williams and Miller told Rick that they had killed Gor-such and that Rick should keep quiet about it if the police began asking questions. Miller denied being present when this conversation took place. At most, this testimony provides indirect evidence that Miller was involved in the murder. Moreover, Rick Williams knew at the time of his testimony that his brother Randy had been promised leniency in exchange for testifying at trial. Thus Rick’s credibility is questionable, since his testimony in no way endangered his brother and in fact may have been helpful in making Randy’s version of the murder more attractive to the state. . Counsel for the state represented during oral argument that the state had agreed prior to Miller’s trial to drop all charges against Williams except for kidnapping, in return for his testimony. After Miller’s conviction, Williams was sentenced on the kidnapping charge to two years of probation. Miller and Armstrong each were sentenced to eighty years in prison.

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?

MISSOURI-ILLINOIS TRACTOR & EQUIPMENT CO., Inc., Appellant, v. D & L CONSTRUCTION COMPANY & ASSOCIATES and Continental Casualty Company, Appellees. No. 17632. United States Court of Appeals Eighth Circuit. Oct. 22, 1964. R. Richard Straub, of Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., made argument for appellant and filed brief. John A. Biersmith, of Rafter, Bier-smith, Miller & Walsh, Kansas City, Mo., made argument for appellee and filed brief. Before MATTHES, BLACKMUN and RIDGE, Circuit Judges. BLACKMUN, Circuit Judge. Is a Capehart payment bond suit brought by a subcontractor’s supplier controlled by the limitation period set forth in § 2(b) of the Miller Act, 40 U.S.C. § 270b(b) (“[B]ut no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied” by the plaintiff), or, instead, by the period the bond itself specifies (“No suit or action shall be commenced hereunder by any claimant * * * [a]fter the expiration of one (1) year following the date on which Principal [the prime contractor] ceases work on the contract”) ? This is the issue presented by this appeal. It was the first issue resolved by the court below in its general opinion, Travis Equip. Co. v. D & L Constr. Co. & Associates, 224 F.Supp. 410, 411-417 (W.D.Mo.1963), applicable not only to this but, as well, to a number of other eases. Koppers Co. v. Continental Cas. Co., 337 F.2d 499 (8 Cir. 1964), which we also decide today, has to do with the second issue the district court considered, pp. 417-418 of 224 F.Supp. The claimant, Missouri-Ulinois Tractor & Equipment Co., Inc., instituted the present action in federal court in June 1962. It asserted jurisdiction under the Capehart Act, 42 U.S.C. § 1594(a), under the general bond statute, 28 U.S.C. § 1352, and, perhaps somewhat significantly, under the very § 2(b) of the Miller Act quoted in part above. It is a suit to recover $9,478.46 for labor and material furnished by the plaintiff to W. S. Conner, a subcontractor on the Capehart project at Fort Leonard Wood, Missouri. The defendants are a joint venture, D & L Construction Company & Associates, the prime contractor, and Continental Casualty Company, Inc., the surety on its two Capehart bonds. The plaintiff’s labor and material were all supplied more than one year prior to the institution of its action. The suit, however, was begun within the year following the date on which D & L, as prime contractor and as principal on the Capehart bonds, ceased work on its contract. The defense of the Miller Act’s limitation period was affirmatively pleaded by the surety. The situation, thus, is one where the suit is barred if the Miller Act controls but where it is not barred if the bonds’ provision governs. The district court held that it was the Miller Act which was applicable. Pursuant to the suggestion contained in that opinion, p. 418 of 224 F.Supp., the defendants then moved for summary judgment. That motion was granted and judgment was entered in their favor. There is no genuine issue as to any material fact within the meaning of Rule 56(e), F.R.Civ.P. We are told that the question comes to us as a matter of first impression at the appellate level. We note, however, that one other federal district court has reached the same result and did so upon the authority of Judge Oliver’s opinion below. Economy Forms Corp. v. Trinity Universal Ins. Co., (D.N.D.1964, 234 F.Supp. 930). Our approach to these CapehartMiller cases has been outlined at length in recent opinions. Continental Cas. Co. v. United States for Use and Benefit of Robertson Lumber Co., 305 F.2d 794 (8 Cir. 1962), cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231; D & L Constr. Co. v. Triangle Elec. Supply Co., 332 F.2d 1009 (8 Cir. 1964); Continental Cas. Co. v. Allsop Lumber Co., 336 F.2d 445 (8 Cir. 1964); Koppers Co. v. Continental Cas. Co., supra, 337 F.2d 499 (8 Cir. 1964). We need not repeat here what has been said in those four cases. We observe only that we have decided, expressly or by implication, that the Miller Act does have general application to Capehart bonds except, of course, where the two statutes are clearly different, or where the Miller Act’s provisions have no sensible application to a Capehart bond, or where a procedural aspect, such as a more stringent but not unreasonable notice provision in the bond than is present in the statute, is in issue. The plaintiff argues that the entry of summary judgment for the defendants here is in conflict with our decision in Robertson; that it is also in conflict with recent decisions of other courts; and that the limitation provision in the Cape-hart bonds is procedural in nature and is controlling. The first of these arguments is fully answered, so far as we are concerned, by what we said in Allsop and by what we have today repeated in Hoppers, particularly our statement, “If strict logic perforce demands a conclusion that this decision is but another way of saying that § 270b (b) of the Miller Act has application to a Capehart bond suit, we may be understood as going that far in our present holding” ; by our listing of and reference, p. 452 of 336 F.2d, to the factors prompting our conclusion there; and by our statements, in both Allsop and Hoppers, that Robertson must be read “in context and not out of it, and in the light of the issue and holding of that case” and “Robertson stands for what it holds, namely, that the notice provisions of a Capehart bond prevail over the less stringent notice provisions in the Miller Act.” The plaintiff’s second point also is fully answered by our observations in Hoppers relative to United States for Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363 (10 Cir. 1962), cert. denied 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229, and to the three state court decisions, Ireland’s Lumber Yard v. Progressive Contractors, Inc., 122 N.W.2d 554, 556-561 (N.D.1963); Allsop Lumber Co. v. Continental Cas. Co., 73 N.M. 64, 385 P.2d 625, 628-629 (1963), and Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., 41 N.J. 500, 197 A.2d 557 (1964). Three other cases which the plaintiff has cited, National State Bank of Newark v. Terminal Constr. Corp., 217 F.Supp. 341 (D.N.J.1963), aff’d 328 F.2d 315 (3 Cir. 1964); United States for Use and Benefit of Fogle v. Hal B. Hayes & Associates, 221 F.Supp. 260 (N.D.Cal.1963), and United States for Use and Benefit of Robertson Lumber Co. v. Cedric Sanders Co., 223 F.Supp. 435 (D.N.D.1963), add little force to its argument. All three concerned notice provisions of the Cape-hart bond. The New Jersey federal case also raised the question of the necessity of bringing the action in the name of the United States, although the court there did say, p. 351 of 217 F.Supp., “To this extent the two acts should be interpreted together, and this court will do so except in those cases where the Miller Act, or the eases decided under it, are contradicted by the Capehart Act, the cases decided under it, or the terms of the bond”. The plaintiff’s final case, Northwest Lumber Sales, Inc. v. S. S. Silberblatt, Inc., 211 F.Supp. 749 (E.D.Mo.1962), concerned itself primarily with what was felt to be a question of venue. None of these issues is present here. This leaves us with the last of the plaintiff’s arguments, namely, the nature of the limitation issue and its suggested qualification as a procedural matter within the reach of our Robertson decision. The plaintiff in its brief concedes that it “does not take issue with the conclusion of the District Court that the limitation provision of the Miller Act is jurisdictional in nature, since it operates upon the liability created by the same statute”. In view of what we have said in Allsop and Koppers, this concession forecloses plaintiff’s case. We feel, also, that a short answer to the plaintiff’s position is that there is nothing, which we have been able to find, indicating a congressional intent, by the Capehart Act, to give the Secretary of Defense the power, through provisions of the payment bond, to extend the limitation period beyond that so specifically and clearly fixed by the Miller Act to which the Capehart Act refers. Whether the Secretary has the power to prescribe a period shorter than that of the Miller Act is a question we need not now decide. Neither is it necessary for us to concern ourselves with the “technical niceties of distinction between procedural and jurisdictional and substantive aspects” to which we referred in Allsop, p. 452 of 336 F.2d. See, also, United States to Use of Gibson Lumber Co. v. Boomer, 183 F. 726, 730 (8 Cir. 1910); United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 162, 34 S.Ct. 550, 58 L.Ed. 893 (1914); Kansas City, Missouri v. Federal Pac. Elec. Co., 310 F.2d 271, 282 (8 Cir. 1962), cert. denied 371 U.S. 912, 83 S.Ct. 256, 9 L.Ed.2d 171 and 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 415. We observe, finally, that there are certain desirable practical results and an appealing equality of treatment which flow from the conclusion we reach. The period specified by the statute is, of course, to be presumed as known by all suppliers. It treats each one equally by giving it a like limitation period, i. e., one full year after supplying the last of its labor or material. It does not, therefore, favor earlier suppliers with a longer time in which to sue, as would be the case if the limitation period is to be measured, as the bond would have it, from the date the prime contractor ceases its work. Further, mere reference to its records enables a supplier to determine exactly when its limitation period begins and when it ends; it need not resort to an investigation of the prime contractor’s activity. Each of these factors has the same appeal for a Capehart situation as for a Miller situation. Both were noted when the 1959 amendment to the Miller Act, P.L. 86-135, § 1, 73 Stat. 279, was under consideration by the Congress. Senate Report No. 551 and House Report. No. 351, 86th Cong., 1st Sess., 2 U.S.Code-Congressional and Administrative News, 86th Cong., 1st Sess., 1959, pp. 1995-2000. Both were emphasized by the-Comptroller General and by the legislative committees. Both, we think, are of significance. 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?

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FANT MILLING COMPANY, Inc., d/b/a Gladiola Biscuit Company, Respondent. No. 8571. United States Court of Appeals Fourth Circuit. Argued June 6, 1962. Decided Sept. 19, 1962. Melvin Pollack, Attorney, National Labor Relations Board (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and James A. Ryan, Attorney, National Labor Relations Board, on brief), for petitioner. R. D. Douglas, Jr., Greensboro, N. C. (Karl H. Mueller, Fort Worth, Tex., Douglas, Ravenel, Josey & Hardy, Greensboro, N. C., and Mueller & Mueller, Fort Worth, Tex., on brief), for respondent. Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges. BOREMAN, Circuit Judge. The National Labor Relations Board petitions for enforcement of its order of November 22, 1961 (134 N.L. R.B. No. 70), against Fant Milling Company, Inc., doing business as Gladiola Biscuit Company. Fant Milling Company is a Texas corporation and has plants in several states including its plant in Greensboro, North Carolina, where the activities which concern us occurred. The sole question presented is whether there is substantial evidence on the record considered as a whole to support the Board’s finding that the Company violated section 8(a) (1) of the National Labor Relations Act by discharging three employees for their acts and conduct which, according to the Board’s decision, constituted concerted activity for their mutual aid or protection. We think there is not. The Company manufactures rolls and biscuits at its Greensboro plant where, at the time of the occurrences here involved, it employed about seven truck drivers to deliver its products. Frank Kempner was employed during the summer of 1960 to supervise the Company’s trucking deliveries. Sales Manager Grady Hale had actually hired Kempner with express authority from his superior in the Texas home office, and he assumed, as did Kempner, that he was Kempner’s superior. There was no resident manager of the Greensboro plant which was controlled by the Company officers who lived in Texas. Three of the drivers, John Jones, his brother, Joe, and Edward Martin, were discharged on April 18-19, 1961. The Board issued a complaint on June 6, 1961, charging the Company with several unfair labor practices in violation of section 8(a) (1) of the Act, including the dismissal of the three drivers which action also allegedly constituted a violation of section 8(a) (3) of the Act. After the hearing, however, the Board adopted the Trial Examiner’s findings that the unfair labor charges were unsupported except to the extent that the dismissals were violations of section 8(a) (1); the 8(a) (3) charge was dropped. The Board’s order requires the Company to desist from discharging or otherwise discriminating against its employees for engaging in concerted activities for their mutual aid or protection and from interfering in any like or related manner with rights guaranteed its employees under section 7 of the Act. Affirmatively the Company was ordered to reinstate the dismissed employees with back pay, to post the usual notices, and to make its payroll and personnel records available to the Board. Prior to his discharge, John Jones had been employed by the Company about two years. In January 1961 he was getting ready to leave on a trip to deliver biscuits when he noticed that his truck did not have a set of roller conveyors or “tracks” used in unloading. There were not enough tracks at that time for each truck to have a set and it had been customary for the drivers with seniority to get the sets that were available. John protested to Kempner, who explained that a new driver, unfamiliar with his route which included several stops, needed the tracks more than did John, who had only one stop to make. Refusing to accept Kempner’s decision to let the new driver use the tracks, John called Hale who was then in Florida. Hale said he would require Kempner to give John the tracks. Later, when John found that the tracks had not been put in his truck, he picked them up and left on his scheduled trip. On'another occasion John had to drive an overloaded truck by an indirect route to its destination to avoid a weighing station. He was not compensated for the extra miles he had driven and complained about this to Kempner, who told him to take another such trip and that he would be paid extra for both trips. John received the extra pay and did not talk to Hale about this problem. John testified that he had had a few other insignificant disputes with Kempner but that he could not remember what they were about and that Kempner became angry when he (John) complained. He said, “we couldn’t get anything done” at two or three meetings attended by Hale, Kemp-ner and the drivers. Early in February 1961 the other drivers asked John to arrange a meeting with Hale without Kempner. He did so and Hale invited all the drivers to a meeting at his home. Six accepted and arrived at the Hale residence shortly after noon one Saturday. They discussed John’s complaint about the tracks, Edward Martin’s complaint concerning his removal by Kempner on one occasion from a “run” he customarily made, and “a lot of little things” that no one could recall. The meeting turned into a party with the men having a steak dinner at a restaurant that evening; they also consumed some alcoholic beverages and ended the meeting-party about midnight. John Jones testified that the only time he complained to Hale about Kempner’s orders was when the conveyor-track incident occurred. He did say, however, that he went to Hale “a lot of times” on the drivers’ behalf but he was unable to recall any particular occasion when he had done so or what matters were discussed with Hale. At another point, with some apparent self-contradiction, he indicated that he had no other disputes with Kempner, nor had any of the other drivers, to his knowledge. Joseph Jones, John’s brother, said he had had minor arguments with Kempner but he recalled only one of them. On one occasion he was not paid extra mileage for driving an overloaded truck around a weighing station; he complained about this to Kempner but did not mention it to Hale. Apparently nothing was ever done about the matter. He said he could not talk to Kempner without arguing. Edward Martin had worked for the Company about two and a half years prior to his discharge. He was the senior driver and regularly made a long run through West Virginia, Kentucky, and Tennessee. The other drivers did not like the trip and were content to let Martin keep it. On one occasion in January 1961 Kempner assigned the run to another driver. Martin did not complain to Kempner but immediately placed a call to Hale, who was then in Miami, Florida. The next morning Hale called Kempner and told him to let Martin make the long trip as he customarily did. Kempner became angry and, in the presence of some of the drivers who were in his office at the time, said to Hale, “Why don’t, we fire all these damn griping truck drivers and get some good drivers?” Martin testified that Kempner had tried to get all the drivers off their regular runs, but Hale’s uncontradicted testimony was that he and Kempner decided to alternate all the routes except Martin’s to equalize the pay and that the drivers made no complaint. Soon after Kempner began working at the plant, he gave Martin some instructions which Martin apparently did not like. Martin walked away and, according to Kempner’s testimony, remarked to one of the warehousemen that no dispatcher was going to tell him what to do and that he was going down the road to figure out ways to mess him (Kempner) up. On another occasion Martin accused Kemp-ner of trying to get him off his regular route to which Kempner responded, “Ed, that’s just a damn lie.” Martin told Kempner never to raise his voice to him again, It is conceded that the party or meeting at Hale’s house in February 1961 was “concerted activity” which is protected by section 7 of the Act. However, the Company urges that the discharges in question had nothing whatsoever to do with that meeting. It is our view that the evidence supports the Company’s position. First, it is undisputed that no one at the Greensboro plant had the authority to hire or fire anyone without permission from the Texas office. One V. I. Martin, vice-president of the Company, had received complaints about some of the truck drivers (whose names he did not know) from Kempner, McGill and J. W. Bannister, the latter two from the Texas office as was vice-president Martin himself. McGill' had been told by a Kroger purchasing agent in Salem, Virginia, that Kroger was not satisfied with deliveries because the orders frequently arrived late due to the fact that the drivers refused to take the trip. The Kroger agent also told McGill that he thought the truck drivers were running the Gladiola operations. V. I. Martin went to Greensboro to investigate the complaints and reported to Mr. Fant, president of the Company, in Texas. Fant and Martin decided that they had to discharge Kempner or the drivers who could not get along with Kempner. They had no knowledge of the drivers’ meeting with Hale or of any other concerted activity. The decision was reached to instruct Bannister to call' Kempner and tell him to fire those drivers who did not cooperate with him. After receiving Bannister’s phone call, Kempner gave dismissal notices and severance pay to the Jones brothers and Ed Martin. Kempner testified that he selected those men for dismissal because each wanted his own way as to trips, mileage and layovers and seemed to be continually demanding individual preferential treatment. Kemp-ner said he had had no trouble with the other drivers. The Board emphasized Kempner’s admission that he resented having John; Jones and Ed Martin go to Hale when¡ problems arose. Kempner’s reaction,, though not admirable, is at least understandable. Such resentment, however,, did not stem from the fact that these drivers participated in concerted activities. The meeting-party at Hale’s house over two months before the discharges had nothing to do with Kempner’s selecting the three men he dismissed. Since six drivers were at the meeting and Kempner knew nothing of the details of the discussion which took place there, the discharges can hardly be traced or attributed to that party. The actual decision to discharge the men was made by Fant and V. I. Martin because of the failure of the drivers to work effectively with the man in charge of trucking operations at the Greensboro plant and not for any reason proscribed by the Act. It is apparent from the record that Kempner had a rather unpleasant disposition and was difficult to work with. It is also clear that Hale invited appeals to him over Kempner’s orders if the drivers objected to such orders. Under these circumstances, perhaps the Company’s top management would have been wiser in discharging Kempner instead of the drivers, but neither the Board nor this court is empowered to dictate to businessmen how they should conduct their labor affairs so long as the Act is not violated. See N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46, 57 S.Ct. 615, 628, 81 L.Ed. 893 (1937). The conduct which is the subject of the Board’s order in this case may have been unwise, but it was not illegal. As this court pointed out in Joanna Cotton Mills Co. v. N. L. R. B., 176 F.2d 749, 753 (4th Cir. 1949): “ * * * We must not forget that the National Labor Relations Act ‘does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them’; that the employer ‘may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.’ N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, * * * N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 254, 59 S.Ct. 490, 83 L.Ed. 627 * * * ” We have examined the “concerted-activity” cases cited in the Board’s brief and find them so clearly distinguishable ■on their facts that we need not discuss them. Indeed, there is no claim that there is supporting authority based upon facts similar to those here. Enforcement denied. . Section 10(e) of tlie National Labor Relations Act, 61 Stat. 136, 147 (1947), as amended, 29 U.S.C.A. § 160(e) (1961 Supp.). . Tlie only substantial factual dispute in the record concerns Joe’s purported refusal to obey Kempner’s order to take a truck to Salem, Virginia. The Board found that at the time of the “refusal” the Company was short of trucks and gave delivery trips to the drivers according to their seniority status. Once Joe did decline to take a trip to Salem but did so in order that another driver with less seniority could make the trip and earn some “grocery money” that .week. Joe had just returned from one trip when he was given the opportunity to take the trip to Salem. Kempner and another Company official, McGill, testified with respect to the “refusal” incident, but neither could recall Joe’s reason for refusing to take the trip. In view of the other circumstances surrounding this matter, the Board was justified in accepting Joe’s explanation and account of the event. . Kempner said he knew nothing about the meeting except that it took place and that some of the drivers drank too much of intoxicating beverages. He said he assumed that Hale would tell him anything lie needed to know about the meeting. Hale told him nothing, according to the testimony.

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"?

Marvin DALTON, Appellant, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; and North Carolina State Personnel Commission, Appellees. No. 81-1242. United States Court of Appeals, Fourth Circuit. Argued Nov. 3, 1981. Decided Feb. 25, 1982. Rehearing and Rehearing En Banc Denied April 21,1982. Kenneth N. Flaxman, Durham, N. C. (Julius LeVonne Chambers, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P. A., Charlotte, N. C., on brief), for appellant. Norma S. Harrell, Asst. Atty. Gen., Thomas S. Whitaker, Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N. C., on brief), for appellees. Before HAYNSWORTH, Senior Circuit Judge, and RUSSELL and HALL, Circuit Judges. DONALD RUSSELL, Circuit Judge: The plaintiff/appellant Marvin Dalton, along with three other plaintiffs, suing individually and as representatives of a proposed class, filed in May, 1975, a discrimination action under Title VII, 42 U.S.C. § 2000e et seq., and § 1981, 42 U.S.C., against the defendant Employment Security Commission of North Carolina, and certain individual defendants. Early in the proceedings the individual defendants were, however, dismissed as parties, by consent. The action seems to have proceeded haltingly with the plaintiffs seeking class certification only in 1979, about three years after the action was filed. In response to what the defendants urged was plaintiffs’ belated request for class certification, the defendants moved for summary judgment for failure of the plaintiffs to prosecute their action diligently. The district judge refused to grant summary judgment at this stage of the proceedings for failure to prosecute diligently. He construed, though, the § 1981 action against the defendants who remained, (i.e., the two State Departments) as in effect one against the State and held that, under the Eleventh Amendment, the plaintiffs could not recover against those Departments a money judgment but were restricted in remedy to injunctive relief. That ruling is not challenged in this appeal. In the same order the district judge did dismiss three of the plaintiffs, including the plaintiff Dalton, as plaintiffs because of their failure to file a charge with, or to obtain a right-to-sue letter from, the Equal Employment Opportunity Commission before suit. In each instance, however, he authorized the participation of the dismissed plaintiffs as members of the class simultaneously certified with Bailey as a class representative, if they qualified as a member of such class. At the same time a class certification, stated to be tentative and conditional, was approved with Bailey designated as class representative. This tentative class certification, entered on May 7, 1980, was later amended to define the certified class as: “All black persons employed by the Employment Security Commission of North Carolina on or after May 17, 1973 who were denied promotions, or who were deterred from applying for promotions, because of the promotional testing program used by the Employment Security Commission prior to November, 1975.” On the eve of trial, some five or six years after the action had been begun, the parties agreed on a “Consent Decree” which expressly stipulated that it was “a final adjudication of all issues raised in this action, excepting that of Walter Bailey.” This Decree was consented to by counsel for the defendants and by the attorneys for the plaintiffs who had filed the action originally on behalf of all four plaintiffs and for whom an allowance of attorneys fees and costs was made. The district judge to whom the Decree was submitted for approval, ordered notice to be given to all interested parties, with opportunity to anyone dissatisfied to object, before determining to approve .it. Such notice was published in some seventeen newspapers located in all parts of the State, including all the leading dailies. There being no objection filed, the Decree was duly entered on November 10, 1980, after a finding by the Court “that this Decree will further the objectives of Title VII, and should be approved pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.” The Court retained “jurisdiction of this matter for the entry of such orders as [might] be necessary.” Primarily, this retention of jurisdiction was to resolve the claim of the plaintiff Walter Bailey. Finally, on January 28, 1980, the Court finding that the “personal claims of plaintiff Walter Bailey [had] been resolved among the parties,” dismissed the action “with prejudice,” adding “that this order shall serve as the final adjudication of all issues raised in this action.” That order was also agreed to by counsel. The plaintiff Dalton has now appealed from the final decision in this proceeding “insofar as said order made final and appealable a) the order of May 5, 1978 dismissing original plaintiff Dalton as a named plaintiff and b) the order of May 7, 1980 excluding unsuccessful applicants for employment from the plaintiff class.” The basis for the district court’s order dismissing Dalton as a plaintiff in the Title VII action, which is Dalton’s first assignment of error, was his failure to file a charge with or to receive a right-to-sue letter from the EEOC. It is the position of Dalton that the filing of a charge with the EEOC is not an essential qualification of a plaintiff under Title VII in a multi-plaintiff action. Concededly any Title VII claim of Dalton, had he filed as the sole plaintiff, would have been properly dismissed for failure to file a charge with the EEOC. There is some confusion in the decisions on the treatment to be accorded his claim if he sues along with other plaintiffs who have qualified by filing charges with, and receiving a right-to-sue letter from, the EEOC. Some of the decisions hold categorically that such a plaintiff should be dismissed. That was the rule followed by the district court in this case. In other decisions, the standing of a non-charging plaintiff has been upheld if his claim is “substantially identical” with that of another plaintiff who has standing under Title VII to sue. Though the district court did not advert to this more liberal line of cases, it is obvious that Dalton would not have had a right to remain as a party plaintiff under the rationale of such cases since his claim was not “substantially identical” with that of Bailey, the only plaintiff with standing to maintain a Title VII action. Dalton’s complaint alleged discrimination in hiring; Bailey’s charges were for discriminatory treatment in employment. Dalton’s dismissal as a party plaintiff in the Title VII action was accordingly proper. The conclusion that his dismissal as plaintiff was proper also disposes of Dalton’s second claim on appeal (so far as a Title VII action is concerned) that he was improperly denied the right to represent applicants for employment as a class representative. But Dalton argued that, even if his dismissal as a plaintiff in the Title VII action and the failure to certify him as a class representative were appropriate, the dismissal of his claim under § 1981 was erroneous, since the filing of a charge with the EEOC is not a condition to the right to maintain a § 1981 action. The position of Dalton on this point is sound. However, he has actually suffered no prejudice by the dismissal of such action. Under the ruling of the district court — not contested by Dalton — Dalton’s remedy in the § 1981 action was limited to injunctive relief. The Consent Decree provides complete injunctive relief against “discriminating on the basis of race, sex or national origin in hiring, promotion, upgrading, training, assignment or discharge or otherwise discriminating against an individual employee with respect to compensation, terms and conditions or privileges of employment because of such individual’s race, sex or national origin.” That provides as much relief as Dalton could have secured had he,continued as a plaintiff in the § 1981 action and had been certified as a class representative. Thus any error in dismissing Dalton as a plaintiff in the § 1981 action and as a class representative was harmless. Finally, it would seem that the Consent Decree precludes continued assertion of a claim in this proceeding by Dalton. His counsel consented to the Consent Decree. Moreover, the fullest possible public notice of that Decree was given all interested parties, including the plaintiff Dalton. That Decree was expressly declared to be a final resolution of all issues in the case with a single exception in favor of the claim of the plaintiff Bailey. The Decree should be given proper effect. If it is given such effect, there is no basis for appeal herein. We accordingly find no merit in the appellant’s claim for the reasons assigned and affirm the judgment of the district court. AFFIRMED. . On motion of the Employment Security Commission, the State Personnel Commission of North Carolina was added as a defendant. . Of the four plaintiffs only the plaintiff Bailey had filed charges of discrimination with the EEOC and obtained a right-to-sue letter prior to suit. The plaintiff McLean had filed charges but she had not received a right-to-sue letter. Neither the plaintiff Hubbard nor the plaintiff-appellant Dalton had filed charges of discrimination with the EEOC or obtained a right-to-sue letter. The claim of discrimination by Bailey was discriminatory treatment as an employee; that by McLean discriminatory denial of promotion, and that by Dalton and Hubbard discriminatory failure to hire after successfully passing the test for applicants. There is, however, in the record an affidavit from the official in charge of the records of the defendant that there is no record that Dalton either ever applied for employment or had taken the test for applicants. This discrepancy between the defendants’ records and the plaintiff Dalton’s claim was not resolved. . This certification was, oddly enough, different from the actual charges filed by Bailey with the EEOC. Bailey had filed three complaints with the EEOC; the first on November 9, 1973, the second on February 17, 1975, and the third (designated as “Amended”) on October 6, 1975. In his first charge he claimed that he was being required to “spend an hour to an hour and a half [of] my day relieving the receptionist,” despite the fact that this was not “required of the other Employment Counselor who is white.” The second charge complained of harassment “because [he] filed a complaint charging unlawful employment practices with EEOC in November of 1973.” The final, or “Amended,” charge was that the complainant had been “discharged .. . because of [his] race (Negro) and retaliated against because [he] previously filed a charge alleging unlawful employment practices.” . Inda v. United Air Lines, Inc., 565 F.2d 554, 558-59 (9th Cir. 1977). . Crawford v. United States Steel Corp., 660 F.2d 663, 665-66 (5th Cir. 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 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?

PARAMOUNT PEST CONTROL SERVICE, a Corporation, Appellant, v. UNITED STATES of America, Appellee. No. 16512. United States Court of Appeals Ninth Circuit. June 14, 1962. Avakian & Johnston, and J. Richard Johnston, Oakland, Cal., for appellant. Louis F. Oberdorfer, Asst. Atty. Gen., Cecil F. Poole, U. S. Atty., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Joseph Kovner, Attorneys, Department of Justice, Lynn J. Gillard, U. S. Atty., Washington, D. C., and Thomas E. Smail, Jr., U. S. Atty., San Francisco, Cal., for appellee. Before STEPHENS, ORR and KOELSCH, Circuit Judges. KOELSCH, Circuit Judge. In this taxpayer’s suit for the recovery of federal income and excess profits taxes for 1953 and 1954, paid pursuant to the deficiency determination by the District Director of Internal Revenue, both parties made motions for summary judgment. The District Court granted the Government’s motion and the taxpayer has appealed. Taxpayer is presently engaged in the structural pest control business in the San Francisco Bay Area; prior to 1953 it also maintained staffed and outfitted branch offices in other localities where it carried on business under its corporate name Paramount Pest Control Service, Inc.; during and between the years 1948 and 1953 it transferred all these outlying establishments to the various managers of those branches. There were-eight of these transactions, each of which was evidenced by a written agreement. In computing its taxable income, taxpayer dealt with certain of the sums paid by the transferees as proceeds from the sale of capital assets, but the District Director, concluding that the transactions in fact were leases and not sales of the several businesses, held that the payments constituted ordinary income not eligible for preferred tax treatment. The motion was submitted on the agreements, a stipulation of facts; and several affidavits filed by taxpayer. It appears frcm a memorandum opinion that the District Court, believing the parol evidence rule prevented a consideration of the affidavits, excluded them, and rested the judgment against the taxpayer solely upon the agreements and the facts appearing in the stipulation. Taxpayer urges a number of reasons why the affidavits should have been accepted by the court, but in our view of the matter only one need be discussed. Rule 56 (e), Federal Rules of Civil Procedure, 28 U.S.C.A., permits the use of affidavits in support of or in opposition to a motion for summary judgment, but also requires that the facts stated in them be admissible in evidence upon a trial. Obviously then, it was incumbent upon the court to determine whether the proffered proof would be admissible in evidence, and if it clearly infringed upon the parol evidence rule then there was no alternative save to reject it. Ford v. Luria Steel & Trading Corp., 192 F.2d 880 (8th Cir.1951); conversely, however, if the extrinsic evidence would be admissible under some exception to that general rule then it should have been considered. Simpson Bros., Inc. v. District of Columbia, 85 U.S.App.D.C. 275, 179 F.2d 430 (1949). The agreements purport to embrace both sales and leases; they contain numerous provisions commonly appearing in instruments of either kind; they provide for two types of payments: one, a liquidated installment payable monthly to apply on a stated amount designated the “purchase price” and which is allocated to the property that is sold, and the other in the nature of a continuing royalty also payable monthly and measured by a percentage of business receipts payable for the property that is licensed. In most of the agreements the “sold property” is referred to generally as all assets comprising the business, but elsewhere good will is expressly excluded from the sale; a further provision relating to the royalty payments contains the statement that those payments are the fee or rental for the licensed use of the name Paramount Pest Control Service. Taxpayer, consistent with its contention that the transactions were in part sales and in part licenses, reported the installment payments as return of capital and the royalty payments as ordinary income, so that the deficiency resulted only from taxpayer’s failure to include the whole of the installments as taxable income. However, the District Director conceded after making the deficiency assessments, and by the stipulation filed in this suit acknowledged that insofar as the installment payments were attributable to a sale of tangible property of the branch businesses, they represented a return of capital. If the amount of the “purchase price” designated in the several agreements reflected the approximate or agreed value of the property described in the provision to which the installment payments were related then the parol evidence rule would dictate the exclusion of the taxpayer’s affidavits, since the affiants’ statements were to the effect that the purchase price included not only the physical assets but also “running service contracts” and other items that make up good will (Grace Bros. v. Commissioner, 173 F.2d 170 (9th Cir. 1949); Dairy Dale Co. v. Azevedo (1931), 211 Cal. 344, 295 P. 10), and to this extent the facts appearing in the affidavits conflicted with the further provision of the agreements allocating the royalties to that particular asset. However, the stipulation before the court clearly demonstrates a vast difference exists in all eight transactions between the value of the property appearing to be sold and the sum of the installments required by each contract. The hybrid character of the agreements themselves renders the intentions of the parties far from clear and we think requires a resort to extrinsic evidence to assist in discovering what the parties actually contemplated. The stipulated facts tend to fortify this conclusion for it is impossible to reconcile those facts with the agreements themselves which make the installment payments part of the purchase price and contain elaborate and separate provisions fully covering the matter of royalties. In short, we conclude the lower court erred in rejecting these affidavits. But the Government also urges that the result would have been the same even if the proof had been received; it contends that “[a] 11 of the good will of the taxpayer’s service business was associated with its name, the lease of the name necessarily carried with it the good will. of the customers who knew the name.” It is apparent that the Government’s arguments rest upon a factual basis that must first be established before the asserted conclusion may follow. While trade-name and good will of the business are often one and the same thing the name is not necessarily the sole element of good will. In Grace Brothers v. Commissioner, 173 F.2d 170, 176 (9th Cir. 1949) this court made an extended investigation of the nature and components of good will and concluded that “the good will may attach to (1) the business as an entity, (2) the physical plant in which it is conducted, (3) the trade-name under which it is carried on and the right to conduct it at the particular place or within a particular area, under a trade-name or trademark; (4) the special knowledge or the ‘know-how’ of its staff; (5) the number and quality of its customers”; and it has been held that the name under which a business was conducted may be excluded from a transfer of the remainder of the good will. Masquelette’s Estate v. Commissioner, 239 F.2d 322 (5th Cir. 1956). As a question of fact, it must be determined whether there are other elements of good will which are transferred apart from the business name and if so, what kind of interest is passed in them. Here the affidavits show the existence of a factual issue regarding the real nature of these transactions, a matter that can only be resolved upon a trial at which either party may submit evidence tending to proper construction of the agreements. The judgment is reversed and the case remanded to the trial court with directions to proceed in accordance with this opinion. . For a statement of the parol evidence rule see Ford v. Luria Steel & Trading Corp., 102 F.2d 880 at 882 (8th Cir. 1951). . The physical assets of the branches consisted both of inventory items (proceeds of which were ordinary income, Section 22, Revenue Code of 1939, 26 U.S. C.A. § 22) and of “property used in trade or business” proceeds of which under sections 117(j) (1) and (2) Revenue Code of 1950 as amended, are “considered” as long-term capital gain. The adjustment made necessary by virtue of the stipulation resulted in a slight reduction in the amount of the deficiency and since taxpayer had already paid the sum initially demanded by the District Director, the District Court, by amended judgment, awarded taxpayer the overplus and thus in fact ultimately rendered judgment for taxpayer (but in a sum far less than taxpayer sought to recover). .These affidavits were made by all parties to, as well as the attorney who prepared, the agreements. Therein the affiants stated that the taxpayer intended to sell and the transferees to purchase the branch businesses as going concerns and that the figure designated in the agreements as “the purchase price” reflected not only the agreed value of the physical property belonging to each branch but also customer accounts and other items of good will which are referred to as “contracts”; they further stated that the consideration for this latter item was computed by multiplying by six the average gross receipts of the business for the twelve months immediately prior to the transfer, and they further said that although the agreements speak of the lease of good will, the parties meant the lease to extend only to the trade name.

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.

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

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

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

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

Barbara SABOL, Appellee, v. John E. SNYDER, Appellant. No. 74-1178. United States Court of Appeals, Tenth Circuit. Argued Aug. 18, 1975. Decided Oct. 31, 1975. Wesley A. Weathers, of Crane, Martin, Claussen, Hamilton & Barry, Topeka, Kan. (Clayton M. Davis, of Davis & Bennett, Topeka, Kan., with him on the brief), for appellant. Charles S. Scott, of Scott, Scott, Scott & Scott, Topeka, Kan., for appellee. Before SETH, McWILLIAMS and DOYLE, Circuit Judges. SETH, Circuit Judge. Plaintiff, Barbara Sabol, brought suit charging discrimination on the basis of racé in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986 against defendants, John E. Snyder, Assistant Commissioner, Division of Vocational Education, Department of Education for the State of Kansas; and C. Taylor Whittier, Commissioner of Education for the State of Kansas. The United States District Court for the District of Kansas sustained a motion to dismiss on behalf of Whittier, finding no evidence to sustain plaintiff’s claim against him. The case was tried to the judge, and as against defendant Snyder, the court found discrimination in violation of section 1981 and granted plaintiff a judgment in the amount of $1,760, later amended to $2,475, as actual damages, $1,000 punitive damages, and $1,000 attorney’s fees. It is from this judgment that defendant Snyder appeals. Plaintiff, a black American, is a licensed practical nurse and a registered professional nurse with a Master’s Degree in counseling, guidance, and personnel administration. She has an employment background as a nurse, personnel service associate, and instructor. She became aware that the position of Health Occupations Supervisor for the Kansas State Board of Education would be open in July 1970. She accompanied the then occupant of that position, who later recommended plaintiff for the job, to defendant’s office to discuss the position. It was the defendant’s job to review all applications for the position and recommend to Commissioner Whittier the best qualified applicant. Plaintiff later filed an application for the position, which was publicized in the ordinary course of business by the Department of Education. A closing date for applications was established, and on that date the only qualified applicant for the position was plaintiff. Some nine or ten days thereafter Mr. George Bridges filed an application. On this application, he indicated his first choice to be another section supervisor’s position that was also vacant, listing the Health Occupations position as second choice. Mr. Bridges, however, was offered and did accept the position of Health Occupations Supervisor. Plaintiff was notified that the position for which she had applied was filled. The cutoff or closing date for applications for the position was chosen by the acting personnel director for the Board in the ordinary course of business without consulting either defendant or the Commissioner. Applications received after a cutoff date were sometimes considered and if so were given the same weight as applications filed prior to the deadline. As part of the application process, the personnel director contacted one of plaintiff’s former employers, who gave plaintiff a negative recommendation. None of the other references were contacted, including her most recent employer. In contrast, all of Mr. Bridges’ previous employers were contacted. At the time of the Bridges application, he was in the process of receiving his Ph.D. in Education Administration. His employment background included experience in school administration, some of which involved administration of health-related occupational programs. Prior to her filing of a formal application, plaintiff was a consultant at a workshop conducted for nurses and nursing students throughout the state by the then Health Occupations Supervisor. This workshop became a source of controversy as a result of complaints from four nurse participants about plaintiff’s actions there. Defendant was made aware of these complaints and investigated them. An evaluation of this workshop was also conducted at its conclusion, which indicated majority approval of the workshop. Within the Kansas State Department of Education, none of the positions for division supervisors, one of which defendant currently occupies, nor those for sectional supervisors under them, the type of position plaintiff was seeking, are now or have ever been held by members of a racial minority. An exception is one of the current section supervisors in the Vocational Education Division, who is an American Indian. Heretofore, supervisors in the Health Occupations section, other than the temporary ones, have been registered nurses or have had extensive experience in the area of health occupations, except for a brief period of time when the supervisor of another section served as supervisor for both sections until the Health Occupations vacancy was filled. The district court found as a matter of fact that defendant, acting alone and in consort with others, had in bad faith refused to consider plaintiff’s application because she was black, and instead recommended a Caucasian less qualified under established job specifications. Defendant’s allegation that the position was changing to a broader, more administrative position, and therefore Mr. Bridges’ more advanced educational degree and administrative experience made him a better qualified candidate, was rejected by the court. Instead, the court found that, at the time plaintiff first spoke to defendant about the position, defendant indicated that he preferred an RN, and that a health occupations background was required. Further, the job requirements and qualifications had never been formally changed. In summary, the court classified defendant’s excuses as being “ . . .a ‘cover-up’ effort to conceal the real reasons for rejecting plaintiff’s application.” As a result of these findings, the court concluded that plaintiff had established a cause of action for discrimination. Defendant first argues the trial court’s findings to be clearly erroneous in their total disregard of the testimony of Commissioner Whittier and plaintiff’s former employer, Dr. Sanders. It is the position of defendant that the testimony of these two, being uncontradicted, established defendant’s good faith and business justification in not recommending plaintiff for the position. It is obviously not the function of the appellate court to try the facts or substitute for the trial court in the determination of factual issues. The appellate court does not weigh the evidence presented at trial, but instead only determines its sufficiency to support the findings. Southwestern Investment Co. v. Cactus Motor Co., 355 F.2d 674 (10th Cir.). This narrow scope of review recognizes the value of the trial court’s ability to observe the demeanor of the witness while on the stand and thus determine his credibility, a critical feature of trial proceedings absent in appellate review. The trial court here places emphasis on the demeanor of defendant’s witnesses which cannot be overlooked. The testimony of Dr. Sanders was by deposition, and, of course, the trial court could not view his demeanor. The flat allegation of defendant that' Dr. Sanders’ testimony was totally disregarded had no support in the record before us which shows it was duly presented, and should be discounted. The evidence as presented in the record is sufficient to support the trial court’s findings. Defendant’s second point on appeal concerns the introduction of the compilation of the workshop evaluations under the business records exception to the hearsay rule. In laying the foundation for this evidence, Mrs. Cobb, the person who made the compilation, does establish the evaluations as part of the customary and usual procedure that follows the holding of a workshop. She was apparently in charge of the workshop. The evaluation was admitted to prove the success of the workshop, and thereby the capabilities of plaintiff, as determined by the opinions of the majority of participants. The Tenth Circuit has previously held that expressions of opinions and conclusions are not always admissible as public records due to the denial of the right of cross-examination. Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir.). However, that same case goes on to recognize the trial court as “ . . the first and best judge of whether tendered evidence meets the standard of trustworthiness and reliability which will entitle it to stand as evidence of an issuable fact, absent the test of cross-examination.” This again is in an area in which the trial court is given latitude in applying the rules of evidence. The admissibility of the compilation, of course, did not determine the weight it should be given. It was considered along with all other evidence presented at trial when the court made its decision in this non-jury trial. The final argument on appeal is directed to the trial court’s application of the burden of proof. This case was tried prior to the Supreme Court decision in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, in which the Court delineated the burdens for each party in Title VII litigation. The principles enunciated in McDonnell have been recognized as applicable to section 1981 actions as well. Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.). It is defendant’s contention that the application of the McDonnell principles to the fact pattern here would bring about a different result. McDonnell requires that to establish a prima facie case of discrimination, the plaintiff show (1) that she is a member of a racial minority; (2) that she applied and qualified for a position for which the employer was seeking applicants; (3) that she was rejected in spite of her qualifications; and (4) that the position remained open and the employer continued to seek applicants. The first two elements are clearly present in our facts. In order to fulfill the last two, plaintiff must have been rejected some time prior to the hiring of Bridges. The arrival of the cutoff date becomes important on these elements. Although the testimony indicates that cutoff dates are not strictly enforced, but are often ignored when no candidates have applied for a vacancy, it is assumed that when a qualified applicant has filed in time, there is no need to extend the period. The trial court found plaintiff to be a qualified applicant. There was, then, no need to extend the period for application. The acceptance of Mr. Bridges’ application after the cutoff date can only be interpreted as rejection of plaintiff’s application. This rejection, coupled with the acceptance of Mr. Bridges’ application indicating the position was still open, satisfies the last two elements in McDonnell for a prima facie case. Under McDonnell it then is incumbent on the defendant to articulate some legitimate, nondiscriminatory reason for the rejection of plaintiff’s application. See Equal Employment Opportunity Comm’n v. University of New Mexico, 504 F.2d 1296 (10th Cir.). Here defendant offered a business judgment defense asserting generally that Mr. Bridges was better qualified. The trial court characterized this as a “cover-up” or a pretext. This, to us, is unusually strong terminology which we must take as a rejection of the explanation of defendant’s position as a bona fide one. It thus so falls far below what could constitute a “defense” and thus cannot be the articulation of a legitimate, nondiscriminatory reason for the employer’s rejection. The case is, of course, basically a fact question tried to the court. The legal issues presented on appeal advance no basis for reversal. Affirmed.

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

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

CHICAGO MERCANTILE EXCHANGE v. DEAKTOR et al. No. 73-241. Decided December 3, 1973 Per Curiam. The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, and had violated § 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U. S. C. § 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U. S. C. § 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts. The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation. The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F. 2d 529 (CA7 1973). Both courts were in error. Ricci v. Chicago Mercantile Exchange, 409 U. S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgnaent as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci, “we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . .” Id., at 307. In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case. The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion. 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?

UNITED STATES of America, Plaintiff-Appellee, v. John L. LEA, Defendant-Appellant. No. 79-1940. United States Court of Appeals, Seventh Circuit. Argued Jan. 15, 1980. Decided Feb. 19, 1980. Rehearing and Rehearing En Banc Denied March 24, 1980. Terrence E. Leonard, Andrew A. Ziemba, Chicago, 111., for defendant-appellant. Thomas P. Sullivan, U.S. Atty., Michael L. Siegel, Asst. U.S. Atty., Chicago, 111., for plaintiff-appellee. Before CUMMINGS, WOOD, and CUD-AHY, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. A jury convicted appellant Lea on twenty counts of engaging in a scheme to defraud within the meaning of the federal mail fraud statute. 18 U.S.C. § 1341. The principal ground upon which he appeals is that the government failed to establish a sufficient nexus between the scheme and the mailings that serve as the jurisdictional basis for prosecution under that statute. I. A. Background Safeway Stores, Inc. (Safeway) employed Lea as manager of the meat buying department of its Midwest Buying Office. In that capacity, Lea was responsible for the purchase at wholesale of fresh meat for ultimate sale in Safeway’s retail food stores. Standard operating procedure, to the extent relevant to this appeal, required that purchases be made using an offer and acceptance method. Safeway publicized specifications of its immediate needs, and interested suppliers or brokers promptly extended offers, usually by telephone. Negotiation tactics such as disclosure of a competing offer or indication of price relativity were strictly prohibited.. The buyer accepted the most favorable offer by telephoning the supplier or broker and conveying a purchase order number. The original of the corresponding purchase order form was then mailed to the supplier or, where a broker conveyed the offer, to the broker. Safeway’s corporate office, accounting department, and receiving warehouse each received copies, and the Midwest Buying Office retained one. Corporate headquarters received additional confirmation each week when the Midwest Buying Office sent a form listing suppliers who extended offers, the details of each offer, accepted offers, and where relevant, intermediary brokers. Safeway’s corporate policy required that buyers abide by the wishes of the seller regarding whether to transact business directly or through a broker. Although the policy expressly forbade buyers from attempting to deal directly for the purpose of eliminating a broker’s commission, Safeway encouraged buyers wherever possible, but within the constraints of the foregoing limitations, to deal directly with suppliers. Nationally, in an average year, Safeway purchased ninety-seven to ninety-eight percent of its carcass beef in transactions free of broker intervention. B. The Scheme to Defraud Allen Petlin and William Horwich were partners in a Chicago meat brokerage business known as Mutual Brokerage Service (Mutual). Initially, Mutual was unable to do any significant business with Safeway’s Midwest Buying Office. That changed suddenly in late 1966 when Petlin and Horwich began paying kickbacks to Lea on orders that Mutual placed for its client suppliers. Petlin or Horwich frequently telephoned Lea to convey offers to supply Safeway with carcass meat. During these conversations Lea would often divulge the content of Mutual’s competitors’ offers and Safeway’s anticipated future requirements. Lea did not provide comparable information to any other broker or supplier. When necessary, Lea also directed Mutual to specific suppliers that Lea believed would allow Mutual to offer a more competitive price. Two suppliers offered further evidence of Mutual’s favored status when they testified that Mutual contacted them shortly after they had tried unsuccessfully to do business directly with Lea. Offers similar in price and quantity to those tendered directly to and rejected by Lea were accepted when tendered through Mutual. Extreme pressure was thus placed on suppliers to extend offers to Safeway only through Mutual. Upon receipt of the purchase order form confirming acceptance, Mutual, as a matter of course, mailed confirmations of sale to the appropriate supplier and to the Midwest Buying Office. After delivery, Safeway sent payment directly to the supplier. Each month Mutual mailed to suppliers with whom they did business during the preceding month a brokerage statement listing commissions due and owing. Suppliers then mailed commission checks directly to Mutual. As far as Safeway was concerned, the broker effectively dropped out of the transaction upon receipt of the confirmation of sale. Commissions were a matter exclusively between supplier and broker. Safeway, however, remained interested in monitoring its buyers’ use of brokers. Accordingly, standard operating procedure required that when a buyer consummated a transaction through a broker he make a notation to that effect on the purchase order form and the weekly cumulative form. Nevertheless, at Lea’s direction, forms sent from the Midwest Buying Office to Safeway’s corporate headquarters contained no indication of Mutual’s involvement. Mutual deposited suppliers’ commission checks in a checking account at a Chicago bank and paid kickbacks to Lea from funds secured from the same account. The amount of each kickback was keyed to the volume of business that Mutual placed with Safeway. Over the eight-year duration of the scheme, Mutual earned $537,350 in commissions'and kicked back $29,000 to Lea. During the same period, Mutual’s share of Safeway’s midwest carcass beef purchases increased from a few scattered sales to more than fifty percent. II. The government based its prosecution under the mail fraud statute on the theory that the foregoing constituted a scheme among Lea, Petlin, and Horwich to defraud Safeway of the honest and faithful services of its employee, Lea. See United States v. Bush, 522 F.2d 641 (7th Cir. 1975), cert. denied, 424 U.S. 977, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976); United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 49, 38 L.Ed.2d 61 (1973). Alleged to be in furtherance of the scheme were three kinds of mailings: (1) written confirmations sent by Mutual to suppliers confirming the sale of meat through Mutual to Safeway, (2) brokerage statements sent by Mutual to suppliers detailing charges for brokerage commissions on sales to Safeway, and (3) checks in payment of the brokerage commission charges sent by suppliers to Mutual. Lea argues on appeal that the nexus between the mailings and the scheme to defraud Safeway is too attenuated to allow prosecution under the mail fraud statute. That Lea did not participate in any of the mailings does not preclude application of- the statute. See Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). Section 1341 is applicable not only where one “places” an item in a mail depository but also where one “knowingly causes” a mailing. The Supreme Court has settled the question that a mailing is knowingly caused “[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended. ...” Id. at 8-9, 74 S.Ct. at 363. Here, the parties to the scheme contemplated that Mutual would generate substantial commissions on transactions between suppliers and Safeway and then pay kickbacks to Lea from these funds. Mutual’s engagement in the ordinary business practices of a meat broker was therefore not only foreseeable but also essential to the scheme. Under Pereira, the only legal conclusion that can flow from these facts is that Lea knowingly’ caused the mailings that serve as the basis of his mail fraud conviction. Notwithstanding the foreseeability of the mailings, Lea raises a number of subsidiary points that he asserts make the nexus between the mailings and the scheme too attenuated to satisfy the statutory requirement that the mailing be “for the purpose of executing such scheme.” At the outset, we note that the government need not show that the mailing was an essential part of the scheme; the mail fraud statute requires only that the mailing be incident to an essential part of the scheme. Compare id. at 8, 74 S.Ct. at 362, with United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974). We held previously in Ohrynowicz v. United States, 542 F.2d 715 (7th Cir.), cert. denied, 429 U.S. 1027, 97 S.Ct. 650, 50 L.Ed.2d 630 (1976), that a mailing satisfies this requirement where it is a normal concomitant of a transaction that is essential to the fraudulent scheme. The basis of the mail fraud prosecution in Ohrynowicz was a “check-kiting” scheme, in which the defendants opened checking accounts at a number of banks using fictitious names and addresses. All of the fraudulent transactions were carried out with the temporary nonpersonalized checks that the banks hand-delivered immediately upon opening the accounts. Consequently, the government instead relied on the printers’ later mailings of the personalized checks that the banks routinely ordered for its customers. These mailings, clearly not essential to the scheme, were ordinary incidents of an essential element — the opening of checking accounts. We found that relation sufficient despite the fact that the items mailed were not instruments of the fraudulent scheme. Our examination of the record in the case at bar reveals substantial evidence supporting the government’s theory of a broad-based scheme to defraud among Lea, Petlin, and Horwich. By steering a major portion of Safeway’s beef purchases to suppliers dealing through Mutual, the.scheme established Mutual as a conduit for funds, some of which were kicked back to Lea. An indispensable element of the scheme was the use of Mutual as a broker through which to funnel Safeway’s purchases. Mutual’s mailings of confirmations and brokerage statements, and the suppliers’ mailings of commission checks were normal concomitants of the brokerage transactions and were therefore incident to an essential element of the scheme. The relation between the scheme and the mailings here is even closer than that found sufficient in Ohrynowicz. In that case, though the mailing was incident to an essential element, the items mailed were at best superfluous to the success of the scheme. Here, the items mailed, though probably not absolutely essential to success, furthered the scheme. To obtain funds to pay the kickbacks, Mutual had to secure commission payments from the suppliers who sold to Safeway. In the ordinary course of business, the confirmations and commission statements facilitated receipt of the commission checks, which, after being deposited in Mutual’s bank account, served as the source of funds for the payments to Lea. We do not hold today that all kickback schemes may be prosecuted under the mail fraud statute merely because one of the participants uses or causes another to use the mails. The government must still show, as it did here, the requisite nexus between the scheme and the mailings relied upon to invoke the statute. But the existence of that nexus in a particular case should not be evaluated in a vacuum. Proper analysis demands at the threshold a close examination of the parameters of the scheme. Where that examination discloses that an essential element of the scheme is expansion of a legitimate business into non-legitimate areas, mailings incident to the nonlegitimate activities may serve as the basis for prosecution under the mail fraud statute. III. Another Chicago-based meat broker testified that ten or twelve years before trial Lea offered to direct some of Safeway’s meat purchases to him provided he kicked back a portion of the commissions earned on those purchases. The trial judge admitted that testimony for the purpose of showing motive and intent. Rule 404(b) of the Federal Rules of Evidence authorizes the admission of evidence of “bad acts” for this limited purpose when its probative value outweighs its prejudicial effect. United States v. Weidman, 572 F.2d 1199, 1202-03 (7th Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). The necessary balancing is left to the sound discretion of the trial judge. See United States v. Jones, 438 F.2d 461, 465 (7th Cir. 1971). Although not the exclusive indicia of probativeness, the prior act must be “similar to the offense charged and close enough in time to be relevant.” United States v. Fierson, 41F.2d 1020, 1022 (7th Cir. 1969). The testimony here at issue demonstrated that Lea had previously sought to establish a relationship with another meat broker similar to the relationship with Mutual. Further, the testimony related to a meeting that occurred no later than two years after commencement of Lea’s relationship with Mutual. We recognize that admission of evidence of prior “bad acts” is always prejudicial. However, under these facts, there has been no showing that the trial judge’s decision to admit the evidence was an abuse of discretion. IV. We have considered Lea’s remaining contention — that the trial court improperly instructed the jury on the weight to be given the testimony of witnesses testifying under grants of immunity — and find that it lacks merit. See United States v. Demopoulos, 506 F.2d 1171, 1179-80 (7th Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975). AFFIRMED. . 18 U.S.C. § 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. . The Midwest Buying Office, one of four scattered nationwide, was originally located in Chicago but relocated to Prairie Village, Kansas in May 1971. . Lea asserts that Safeway suffered no pecuniary loss and that therefore the mail fraud statute is inapplicable. We find no support in the record for this characterization of the facts, nor is there support in the case law for this characterization of the law. Two suppliers testified that the prices at which they offered and sold beef to Safeway were increased to cover the cost of Mutual’s commission charges. One of these suppliers testified further that shortly after Lea rejected a direct offer from his supply company, Mutual contacted him and negotiated a sale to Safeway at a higher price. Even accepting for the moment Lea’s dubious assumption that the foregoing does not establish pecuniary loss, the government’s theory of prosecution cannot be assailed on this ground. The law in this circuit is that pecuniary loss is not an essential element of the crime of mail fraud.1 United States v. Reicin, 497 F.2d 563, 571 (7th Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); United States v. George, 477 F.2d 508, 512 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 49, 38 L.Ed.2d 61 (1973); see United States v. Reid, 175 U.S.App. D.C. 120, 126, 533 F.2d 1255, 1261 (D.C. Cir. 1976). . “Check-kiting,” as its name implies, involves the floating of worthless checks between bank accounts containing insufficient funds. By taking advantage of the time lag necessary for clearance, participants temporarily may be able to conceal fraudulent cash withdrawals. . The defendants probably would have preferred that the printers not mail the personalized checks since the only foreseeable consequence of those mailings was to facilitate the banks’ discovery of the fraud. . Lea’s restrictive definition of the parameters of the scheme serves as the basis for a number of his other assertions of error. He contends first that the government’s reliance on mailings that occurred before the payments of kickbacks is not supportable under the mail fraud statute. Implicit in this argument is that the scheme did not begin until payment of the first kickback. As we view the scheme, it began when Lea first proposed the arrangement to Petlin and Horwich. Accordingly, none of the mailings alleged in the indictment occurred before commencement of the scheme. The contention that five of the counts cannot stand because the mailings upon which they were based occurred after the last kickback is similarly without merit. Mutual’s receipt of commissions on the last of the sales that it brokered had its roots in the preferential treatment accorded it by Lea. Since the payment of the last kickback did not mark the conclusion of the scheme, Lea’s reliance on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), is misplaced. Lastly, we reject Lea’s argument that the government’s failure to link specific kickbacks to specific mailings is fatal. Lea, Petlin, and Horwich devised a continuing scheme to defraud. The government satisfied its burden of showing the existence of a sufficient nexus between the mailings and the continuing scheme. Greater specificity is not required. . The trial judge read the following instruction: The witnesses, Allen Petlin and William Horwich, testified under a grant of immunity, pursuant to a court order, after a petition by the government was filed requesting such an order. Under the law, none of the testimony during this trial can ever be used against them in any subsequent criminal proceeding. However, if any one of them testified untruthfully under this grant of immunity, he could be prosecuted for perjury or the making of a false statement even though he was testifying under a grant of immunity. The testimony of a witness who provides evidence against a defendant for immunity from prosecution, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the witness’ testimony has been affected by interest, or by prejudice against defendant.

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

CARNES v. UNITED STATES. No. 4151. United States Court of Appeals Tenth Circuit. Jan. 3, 1951. . Rueckhaus & Watkins, Albuquerque, N. M., for appellant. Everett M. Grantham, U, S. Atty., and Maurice Sanchez, Asst. U. S. Atty., Albuquerque, N. M., for appellee. Before HUXMAN, MURRAH, and PICKETT, Circuit Judges. HUXMAN, Circuit Judge. Appellant instituted this action against the United States under the Federal Tort Claims Act, as amended, 28 U.S.C.A. § 2401 (b), to recover damages for personal injuries suffered by-him. The facts are not in dispute and may be summarized as follows : On March 24, 1944, a B-24 airplane of the United States Army Air Forces crashed about seven miles north of Birmingham, Alabama. The crash occurred in an extremely rough terrain of wooded hills and uncultivated land. Parts of the plane were scattered for a distance of approximately 500 yards. It was about 600 yards from any of the parts of the crashed plane to the nearest road. The Army Base at Birmingham was immediately notified and within thirty to forty minutes thereafter posted guards at the scene of the crash. They were maintained there for six or seven days after the crash, until the wreckage was salvaged. Appellant, Jimmie Joe Carnes, resided approximately one and one-half or two miles from the scene of the crash. At that time he was 14 years and 1 month old. He and others visited the scene of the crash shortly after it occurred and at various other times during the salvage operations, and picked up souvenirs, although guards were on duty. On one of these occasions he picked up an object labeled “Destructor” and took it home with him. The destructor was a part of the equipment carried on the plane and was loaded with explosives and was intended to explode in the event of a crash and to destroy certain technical instruments in the plane. For some reason it failed to explode when this crash occurred. Appellant saw the word “Destructor” printed on the device but neither he, his father nor mother comprehended the danger inherent in the instrument. On or about February 2, 1945, he was experimenting with the destructor. He touched the wires protruding from the device to a flashlight battery and an explosion resulted causing serious injury to him. Upon these facts the trial court found: • 1. That the negligent or wrongful act of the Government’s agents occurred prior to January 1, 1945, the effective date of the Federal Tort Claims Act, and that, therefore, appellant could not maintain the action. 2. That appellant was guilty of contributory negligence. 3. That appellant’s intervention rendered it impossible for the defendant to remove the dangerous instrumentality, had it tried to do so. We think the trial court erred in its first conclusion finding that it was without jurisdiction. The Federal Tort Claims Act which became effective January 1, 1945, gives the District Court exclusive jurisdiction of “civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A. § 1346(b). Actionable negligence consists of the violation of a duty to another with resulting injury to him. This is elementary and needs no citation of authorities to support it. The correct rule is well stated in Schmidt v. Merchants Despatch Transportation Company, 200 N.Y. 287, 200 N.E. 824, 827, 104 A.L.R. 450, where the court said: “We have said that ‘in actions of negligence damage is of the very gist and essence of the plaintiff’s cause.’ * * * Though negligence may endanger the person or property of another, no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong.” Appellant did not have a claim against the Government until he suffered injury upon which he could have predicated an action in court. It will be noted that the Act gives the court jurisdiction of actions on claims (emphasis ours) accruing on or after January 1, 1945. The claim accrued, if at a'll, on February 2, 1945, when appellant was injured. Prior to that time he had no claim against the Government. He could not have sued the Government. His cause of action, if any -he had, accrued on the date he suffered his injury. Under the clear language of the Act, the court had jurisdiction of the cause of action predicated upon this claim. The case of Aachen & Munich Fire Ins. Co. v. Morton, 6 Cir., 156 F. 654, 15 L.R.A., N.S., 156, and Pickett v. Aglinsky, 4 Cir., 110 F.2d 628, upon which the Government relies to sustain its assertion that the right of action accrues at the time of the wrong are not in conflict because in each case it appears that the injury was suffered at the time the wrong was committed. There is language in Ryan Stevedoring Company v. United States, 2 Cir., 175 F.2d 490, and Terminal R. Association of St. Louis v. United States, 8 Cir., 182 F.2d 149, which when read out of context might lend support to a contrary view. Thus, in the Ryan Stevedoring Company case appears the following: “Hence liability exists only for torts committed on or after January 1, 1945.” [175 F.2d 494.] And in the Terminal case: “We are also of the opinion that the Act reasonably may not be construed to cover claims based on torts committed prior to January 1, 1945.” [182 F.2d 151.] An examination of both of these cases, however, will show that the injury giving rise to the claim on which the action was predicated arose at the time of the tort or wrongful act, and that in each case this occurred prior to the effective date of the Act. This case arose in Alabama, and is, therefore, controlled by the substantive 'law of that State. As pointed out, appellant was fourteen years and one month old. Under controlling Alabama law, “ * * * it is the settled rule that after the age of 14 all infants are prima facie presumed to be capable of the exercise of judgment and discretion, and are therefore subject to the law of contributory negligence when they seek to recover for personal injuries.” The question of whether appellant was guilty of contributory negligence was one of fact for the trial court’s determination. It resolved this issue against him. There is sufficient evidence in the record to sustain the court’s finding in this respect and this finding is binding on us on appeal. Having failed to exercise due care, appellant is, by his own acts of negligence, precluded from recovering and it is therefore not necessary for us to pass on the correctness of the court’s third finding. Since the court had jurisdiction and the complaint stated a cause of action, the court erred in dismissing the cause. It should have entered an appropriate judgment in conformity with its Finding Number Two. The judgment is therefore reversed and the case is remanded with directions to proceed in conformity with the views expressed herein. . Central of Georgia R. Company v. Robins, 209 Ala. 6, 95 So. 367, 369, 36 A.L. R. 10; See also Annotations 36 A.L.R., 10, at page 34; 100 A.L.R. 451, 472.

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

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

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.

HELVERING v. NORTHWESTERN NAT. BANK & TRUST CO. OF MINNEAPOLIS et al. No. 10779. Circuit Court of Appeals, Eighth Circuit. April 14, 1937. Ralph F. Staubly, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (James W. Morris, Asst. Atty. Gen., and Morrison Shafroth, Chief Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for petitioner. Grant L. Martin, of Minneapolis, Minn. (Leland W. Scott, Harry A. Blackmun, and Junell, Fletcher, Dorsey, Barker & Colman, all of Minneapolis, Minn., on the brief), for respondents. Before STONE, GARDNER, and WOODROUGH, Circuit Judges. GARDNER, Circuit Judge. This is a petition filed by the Commissioner of Internal Revenue to review two decisions of the United States Board of Tax Appeals in fourteen separate cases involving the federal estate tax liability of the estate of Harry E. Pence, deceased, and transferee liability of recipients of proceeds of insurance upon the decedent’s life. Deceased died at Minneapolis, Minn., March 29, 1933. His estate is in process of administration by the probate court of Hennepin county, Minn. At the time of his death his gross estate, within the meaning of the Federal Estate Tax Law' (Title III of the Revenue Act of 1926, § 301 et seq., 44 Stat. 69 et seq., as amended), aggregated $1,144,892.67. Included in that amount, however, was insurance payable to named beneficiaries in the aggregate amount, in excess of the’ statutory exemption, of $598,183.84. At the decedent’s death, there were outstanding valid claims against the estate, enforceable against it under the laws of Minnesota, to the amount of $3,906,429.82. These claims, under the Minnesota law, were not payable out of the proceeds of the life insurance. The return of the executors, filed under the Federal Estate Tax Law, deducted the full amount of the allowable claims outstanding against the estate. These deductions being far in excess of the gross estate, the return disclosed no tax liability. The Commissioner of Internal Revenue, being of the view that the claims deductible should be limited to an amount that could be actually satisfied out of the assets of the estate within the jurisdiction of the probate court, determined-a deficiency of federal estate tax in the sum of $55,263.98. On petition for redetermination, the Board of Tax Appeals allowed the total amount of the valid claims to he deducted from the gross estate, found there was no deficiency, and hence no liability for an estate tax. This decision is before us for review. The question presented is stated in petitioner’s brief as follows: “Where valid claims, contracted bona fide and for an adequate and full consideration in money or moneys worth, were outstanding against the decedent at the date of his death, is his estate entitled to a deduction on account of such claims in excess of the amount of the value of the estate of which the decedent died possessed and available for the payment thereof,' in determining the value of the net estate for the purpose of the tax?” It is the Commissioner’s contention that the claims deductible should be limited to an amount actually satisfiable out of the assets of the estate. Section 301 of the Revenue Act of 1926, 44 Stat. 69 (26 U.S.C.A. § 410), and section 401 of the Revenue Act of 1932, 47 Stat. 243 (26 U.S.C.A. § 535 and note), impose a tax upon the transfer of the net estate of decedent. Section 302 of that act (26 U.S.C.A. § 411) prescribes the determination, of a decedent’s gross estate, while section 303 (26 U.S.C.A. § 412 and note) prescribes the items deductible from the gross estate in ascertaining the net estate to which the tax attaches. This section 303 of the Revenue Act of 1926 (as amended by section 805 of the Revenue Act of 1932, 47 Stat. 280), 26 U.S.C.A. § 412 and note, in force at the date of decedent’s death, so far as here applicable, provides: “For the purpose of the tax the value of the net estate shall be determined — * * * “(a) In the case of a resident, by deducting from the value of the gross estate— “(b) Such amounts— “(1) for funeral expenses, “(2) for administration expenses, “(3) for claims against the estate, “(4) * * * "(5) * * * as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered. * * * The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money’s worth.” The tax involved is an estate tax and not a tax upon succession. Y. M. C. A. v. Davis, 264 U.S. 47, 44 S.Ct. 291, 292, 68 L.Ed. 558; Stebbins and Hurley v. Riley, 268 U.S. 137, 45 S.Ct. 424, 427, 69 L.Ed. 884, 44 A.L.R. 1454; New York Trust Co. v. Eisner, 256 U.S. 345, 41 S.Ct. 506, 65 L. Ed. 963, 16 A.L.R. 660. Considering a similar statute, the Supreme Court in Y. M. C. A. v.' Davis, supra, said: “What was being imposed here was an excise upon the transfer of an estate upon death of the owner. It was not a tax upon succession and receipt of benefits under the law or the will. It was death duties, as distinguished from a legacy or succession tax. What this law taxes is not the interest to which the legatees and de-visees succeeded on death, but the interest which ceased by reason of the death.” Again, the Supreme Court in Stebbins and Hurley v. Riley, supra, pointed out that the subject of an inheritance taxing statute might be either the power of transmission of property or the privilege of taking property by devise or descent. In the course of the opinion it is said: “There are two elements in every transfer of a decedent’s estate; the one is the exercise of the legal power to transmit at death; the other is the privilege of -succession.” * It is clear that the statute here involved is directed to the privilege of transmission and not to the privilege of receiving the estate. The applicable taxing statutes provide (1) that the tax should apply only to the net estate, and (2) that the net estate shall consist of the balance of the defined gross estate over the defined allowable deductions. It is important, therefore, to determine what claims were deductible from the gross estate. By the specific terms of the statute, claims against the estate which are allowed by the laws of the jurisdiction under which the estate is being administered, to the extent that they are contracted bona fide and for an adequate and full consideration in money or moneys worth, were deductible. The petitioner stresses certain rules of statutory construction, but rules of statutory construction are to be resorted to when there is a doubt, ambiguity, or uncertainty, and they are never to be used to create doubt, but- only to remove it. Minnesota Tea Co. v. Commissioner (C.C.A. 8) 76 F.(2d) 797, affirmed Helvering v. Minnesota Tea Co., 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284; Adams Express Co. v. Kentucky, 238 U.S. 190, 35 S.Ct. 824, 59 L.Ed. 1267, Ann.Cas.l915D, 1167; Lang v. Commissioner, 289 U.S. 109, 53 S.Ct. 534, 77 L.Ed. 1066. The statute clearly provides that the entire amount of claims against the estate, whether allowed by the court or paid by the estate or not, must be deducted. Commissioner v. Strauss (C.C. A.7) 77 F. (2d) 401, 405; Baer v. Milbourne (D.C.) 13 F.Supp. 998; Union Guardian Trust Co. v. Commissioner, 32 B.T.A. 996. In Commissioner v. Strauss, supra, decided by the Circuit Court of Appeals of the Seventh Circuit, it is said: “As to deductible debts, we agree with the Board of Tax Appeals. Just as we held that the Board and the courts can not exclude trust funds that are included by the statute, so do we hold that the Commissioner may not exclude deductions in the way of claims which the statute allows. * * The Statute governs in either case. Section 303 (a) (1), Revenue Act of 1926 (26 U.S.C.A. § 1095 (a) (1) [see 26 U.S.C.A. § 412 note], does not require the allowance of the debt by the court or its payment by the estate in order that it may be deducted from the gross estate.” The petitioner mildly urges that his contention finds support in the opinion of this court in Jacobs v. Commissioner (C. C. A.8) 34 F.(2d) 233, 235. That case rested upon the peculiar fact that the widow waived the benefit of an antenuptial contract in order to accept an alternative bequest in a will. For the amount of the antenuptial agreement, claim was disallowed. For that claim there was no claimant. The teaching of the opinion of that case is found in the words, “In our opinion a claim without a claimant was not in the mind or purpose of Congress when the words ‘claims against the estate’ were written into the revenue statutes.” Baer v. Milbourne (D.C.) 13 F.Supp. 998; In re Suderov’s Estate, 156 Misc. 661, 282 N.Y. S. 405. In the instant case there are claimants. . Petitioner also relies upon administrative construction as evidenced by regulations ' and impliedly approved by congressional re-enactrñent of the statute without material change. If the statute were uncertain and indefinite, or its meaning doubtful, resort to administrative construction might be warranted, but a plain unambiguous statute cannot be amended by administrative regulation, and this contention of petitioner ignores the fact that the Board of Tax Appeals has followed the statute in its decisions, rather than the regulations promulgated by the Commissioner. The regulations in this regard had never become effective because not accepted by the Board of Tax Appeals. Union Guardian Trust Co. v. Commissioner, 32 B.T.A. 996; Hallock v. Commissioner, 34 B.T.A. 575; Hays v. Commissioner, 34 B.T.A. 808; Lyne Administrator (memo opinion in B.T.A. Docket No. 82748); Windrow’s Estate (memo opinion in B.T.A. Docket No. 82748); O’Donnell, 35 B.T.A. No. 37. It is also to be observed that the regulations are inconsistent. Article 36, Regulations 70 (1929 Edition), follows the statute. It cannot, therefore, be said that Congress has accepted the Commissioner’s interpretation of the statute as embodied in the regulations relied upon. We are of the view that the Board of Tax Appeals properly applied the plain provisions of the statute to the facts involved in this case, and its decision is therefore affirmed.

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

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

Annette HEYMAN, Plaintiff-Appellee, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Defendant-Appellant. No. 92, Docket 75-7230. United States Court of Appeals, Second Circuit. Argued Oct. 10, 1975. Decided Oct. 24, 1975. Lawrence P. Weisman, Bridgeport, Conn. (Cohen & Wolff, P. C., Bridgeport, Conn., on the brief), for plaintiff-appellee. John Keogh, Jr., Norwalk, Conn. (James J. Farrell, Norwalk, Conn., on the brief), for defendant-appellant. Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges. IRVING R. KAUFMAN, Chief Judge: Although the basic principles for granting summary judgment are well-established, the frequent recurrence of cases in which granting it is inappropriate persuades us that these underlying tenets bear repetition. In order to elucidate the impropriety of applying summary judgment in the present case involving the interpretation of an insurance settlement agreement, a brief review of the facts is appropriate. Annette Heyman, a Connecticut resident, owns a shopping center in West-field, Massachusetts. In April, 1972, she secured a three-year fire insurance policy on this property from the defendant Commerce and Industry Insurance Company. The policy contained a “Replacement Cost Coverage Endorsement” which permitted Heyman, in the event of fire loss, to elect to receive either “replacement cost” or “actual cash value.” If she chose “replacement cost” reimbursement, the insurance company’s liability would be limited to the smallest of the following amounts: (a) The amount of this policy applicable to the damaged or destroyed property; (b) the replacement cost of the property or any part thereof identical with such property on the same premises and intended for the same occupancy and use; or (c) the amount actually and necessarily expended in repairing or replacing said property or any part thereof. Replacement Cost Coverage Endorsement, Par. 5 (emphasis added). On September 10, 1972, a one-story auto-service station/warehouse, 14,000 square feet in size, located in the West-field shopping center and leased to Sears, Roebuck & Co. was totally destroyed by fire. Heyman promptly submitted a claim to the insurance company alleging the replacement cost of the destroyed property to be $247,265. After a period of discussions and negotiations, the parties executed a settlement agreement on August 2, 1973. Among other recitals the third introductory clause stated that the [I]nsured intends to construct a new building at the Sears, Roebuck complex in order to replace the building which was destroyed and construction of the new building has already commenced[.] (Emphasis added.) The settlement agreement concluded with these provisions: 1. In consideration for payment by insurer to insured of $187,500, the parties for themselves, their successors and assigns, agree to remise, release, and forever discharge, any and all claims which they may have against each other arising under the above-mentioned insurance policy including, but not limited to, insured’s claim in connection with the above-mentioned fire loss. 2. Payment of the $187,500 shall be made as follows: $150,000 to be paid, all cash, upon execution of this agreement and $37,-500 to be paid, all cash, when insured has proceeded to the stage of construction of the new building where said building shall be water-tight — in other words, upon completion of construction of the walls and roof of said building. [Emphasis added] The insurance company paid, as required, $150,000 upon execution of the agreement. It has refused to pay the additional $37,500 despite notification that the new building is “watertight.” The reason assigned for the insurer’s unwillingness to disburse the balance is its discovery that the “replacement” building is a single-story structure containing an area of only 4,000 square feet — some 10,000 square feet less than the size of the original building. The insurance company argues that its obligation is to pay the remaining $37,500 only if the destroyed building is replaced by a new edifice of comparable size and condition. Because of Heyman's disagreement over this interpretation, she instituted suit in Connecticut Superior Court in August, 1974 for enforcement of the settlement agreement. The case was removed to federal district court one month later, and shortly thereafter both parties moved for summary judgment. Chief Judge Clarie granted Heyman’s motion, holding that A reading of the general tenor of the second contract and consideration of the circumstances under which it was executed, establishes a reasonable basis for the Court to find that the parties intended the company’s fire loss obligations under the policy to be merged into this final [settlement] agreement. The Court is persuaded from the overall record, that these mutual release provisions were intended by the parties to determine and end their dispute. Although we might not have any quarrel with this conclusion had it been made after a full-scale trial, it was erroneous to render such a decision in the circumstances present here, upon a motion for summary judgment. The Federal Rules of Civil Procedure provide several tools to aid in ascertaining the facts before the curtain ascends on a trial, see E. Warren, 38 Conn.B.J. 3 (1964). One such “tool” is the Rule 56 summary judgment procedure which enables the court to determine whether the “curtain” should rise at all. Fitzgerald v. Westland Marine Corp., 369 F.2d 499, 500 (2d Cir. 1966). Although for a period of time this Circuit was reluctant to approve summary judgment in any but the most extraordinary circumstances, see, e. g., Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946), that trend has long since been jettisoned in favor of an approach more in keeping with the spirit of Rule 56, First Nat’l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Dressier v. M. V. Sandpiper, 331 F.2d 130 (2d Cir. 1964); Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). But, the “fundamental maxim” remains that on a motion for summary judgment the court cannot try issues of fact; it can only determine whether there are issues to be tried. American Manuf. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); Cali v. Eastern Airlines, Inc., 442 F.2d 65, 71 (2d Cir. 1971). Moreover, when the- court considers a motion for summary judgment, it must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute, Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). This rule is clearly appropriate, given the nature of summary judgment. This procedural weapon is a drastic device since its prophylactic function, when exercised, cuts off a party’s right to present his case to the jury. Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972). Heyman does not take issue with these principles but instead argues that they do not apply to her case. She correctly points out that the only disagreement in this action is over the interpretation of the “new building” language in the settlement agreement, and insists that discerning contractual intent is a question of law. But, this argument has repeatedly been rejected in our prior decisions. Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Painton & Co. v. Bourns, Inc., 442 F.2d 216, 233 (2d Cir. 1971); Lemelson v. Ideal Toy Corp., 408 F.2d 860, 863 (2d Cir. 1969); Union Insurance Society v. Wm. Gluckin & Co., 353 F.2d 946, 950-51 (2d Cir. 1965); Boro Hall Corp. v. General Motors Corp., 164 F.2d 770, 772 (2d Cir. 1947). The parties have a right to present oral testimony or other extrinsic evidence at trial to aid in interpreting a contract whose provisions are not wholly unambiguous. Asheville Mica Co. v. Commodity Credit Corp., 335 F.2d 768, 770 (2d Cir. 1964). The point that the ultimate issue, the construction of a contract, is a question of law for the court, does not dictate a different result. When a contract is so ambiguous as to require resort to other evidence to ascertain its meaning and that evidence is in conflict, the grant of summary judgment is improper. . Painton & Co., supra, at 233. Nor is summary judgment to be made more readily available where both parties seek it, each in their own behalf. American Mfrs. Mut. Ins. Co., supra, at 279; Painton, supra, at 232 — 33. The well-settled rule is that cross-motions for summary judgment do not warrant the court in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed. 6 Moore’s Federal Practice K 56.13 at 2247. Application of these principles to the facts in this case clearly indicates that it was erroneous to grant summary judgment to the plaintiff. The parties are at loggerheads over the proper interpretation of their obligations under the settlement agreement and, more specifically, about the intent behind — and meaning of — the term “the new building” in the clause providing for payment of the $37,500 balance “when insured has proceeded to the stage of construction of the new building where said building shall be watertight. . . . ” The insurance company points to the third introductory clause — which recites Hey-man’s intention to construct a new building to “replace” the old one — and notes that Black’s Law Dictionary and several cases define “replace” in terms of restoring an object to its former condition. Olenick v. Government Employees’ Ins. Co., 42 A.D.2d 760, 346 N.Y.S.2d 320 (1973); Congress Bar & Restaurant, Inc. v. Transamerica Insurance Co., 42 Wis.2d 56, 165 N.W.2d 409 (1969). The insurer also maintains that the settlement agreement represented a mere partial integration, pertaining only to the amount agreed upon in satisfaction of Heyman’s unliquidated claim under the insurance policy provisions. Although the appellee disputes each of these contentions, we are required to resolve all ambiguities and disagreements in favor of the party against whom summary judgment is sought, see United States v. Diebold, Inc., supra, 369 U.S. at 655, 82 S.Ct. 993. We therefore reverse the judgment below. Of course, our holding reflects no opinion on the merits of the case. . Fed.R.Civ.P. 56 provides, in relevant part: (c) . . . [Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . (Emphasis added.) . The parol evidence rule is not a bar to such testimony. The evidence does not vary or contradict the written terms of the contract, but merely aids in their interpretation. See 3 Corbin, Contracts § 579 (1960).

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

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, GATX Terminals Corporation, Alabama Power Company, et al., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. Nos. 81-2001, 81-2007, 82-1061, 82-1802 and 82-1950. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 17, 1983. Decided Jan. 17, 1984. Graeme W. Bush, Washington, D.C., with whom David D. Doniger, Washington, D.C., was on brief, for petitioner, Natural Resources Defense Council. Susan L. Durbin, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., for petitioner, State of Cal. Daniel P. Selmi, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., also entered an appearance for petitioner, in 81-2007. William J. Barzano, Jr., Asst. Atty. Gen., Environmental Control Div., Chicago, Ill., was on brief, for petitioner, Illinois E.P.A. William F. Pedersen, Jr., E.P.A., Washington, D.C., of the Bar of the District of Columbia, pro hac vice, by special leave of the Court, with whom Robert M. Perry, Associate Adm’r and Gen. Counsel, E.P.A. and Jesse Carrillo, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondent. Patrick J. Cafferty, Jr., and Donald W. Stever, Jr., Attys., Dept, of Justice, Washington, D.C., also entered appearances for respondent, in 81-2001, et al. Ky P. Ewing, Jr., Washington, D.C., with whom Norman D. Radford, Jr., Jeffrey Civins, Houston, Tex., and Christopher T. Corson, Washington, D.C., were on brief, for intervenor, GATX Terminals Corp. Walter R. Allan, Alston R. Kemp, Jr., Michael R. Barr, Mauricio A. Flores, and Michael J. Halloran, San Francisco, Cal., entered appearances for intervenor, Chevron U.S.A. Inc. Henry V. Nickel, Andrea S. Bear, and Peter S. Everett, Washington, D.C., entered appearances for intervenor, Alabama Power Co., et al. in 81-2001. Before MIKVA and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: The process of loading and unloading vessels docked at marine terminals produces significant quantities of air pollution in harbor areas. Similarly, pollutants emitted as a ship approaches and leaves a marine terminal contribute substantially to the poor air quality of many harbors. Recognizing these facts, the Environmental Protection Agency (EPA) initially promulgated rules under which both “dockside” and “to-and-fro” vessel emissions were to be taken into account in regulating the construction and operation of marine terminals. See 45 Fed. Reg. 52,676, 52,736, 52,746 (1980) (vessel emission requirements). In 1981, however, EPA began to chart a new course, twice “staying” the vessel emission requirements and then, on July 25, 1982, revoking them. See 46 Fed.Reg. 36,695 (1981) (first stay); id. at 61,612 (second stay); 47 Fed.Reg. 27,544 (1982) (revocation). This about face did not result from EPA’s reconsideration of whether ascribing vessel emissions to marine terminals was a wise means of implementing the agency’s mandate under the Clean Air Act, 42 U.S.C. §§ 7401-7642 (Supp. V 1981) (the Act); reversal followed instead from EPA’s new conclusion that the agency had never had the authority in the first place to impose responsibility on marine terminals for emissions traceable to marine vessels. The central question in this case is whether, in revoking the vessel emission requirements, EPA properly construed its mandate under the Clean Air Act. We hold that EPA was correct to interpret the key statutory term “mobile sources” to include marine vessels but that the agency acted far too precipitously in proceeding from that interpretation to the further conclusion that it “therefore” had no authority to attribute to marine terminal owners any emissions arising from stationary dockside activities involving both vessels and terminals. Absent an attempt by the agency to identify the various emissions and the way in which they are physically discharged into the atmosphere, we have no way of determining whether the statute authorizes some of those emissions to be attributed to the terminal and, if so, which ones. Accordingly, we reverse the agency’s categorical exclusion of “the activities of any vessel” from the relevant definitions of a “stationary source” of pollution and remand so that the agency can undertake the analysis required by the statute. Because, however, it is entirely implausible that a vessel’s “to-and-fro” emissions could be attributed to a marine terminal owner under any approach that the statute would tolerate, we affirm that portion of EPA’s 1982 repeal which excluded “to-and-fro” vessel emissions from the definition of “secondary emissions.” I. Background In the Clean Air Act of 1970 Congress established a comprehensive state and federal scheme to control air pollution in the United States. See Pub.L. No. 91-604, 84 Stat. 1676 (1970). The central elements in this comprehensive scheme were the Act’s new source review provisions, which required all major new “stationary” sources of pollution as well as all existing “stationary” sources that were being significantly modified to obtain a permit before construction. At the same time, a series of stringent requirements were established for the issuance of such permits. See 42 U.S.C. §§ 7475, 7502-7503 (Supp. V 1981). Seven years later, Congress returned to the Act, and, in an effort to adjust the balance between federal and state regulation in certain areas, carved out an exception from the federal controls on “Stationary” sources for facilities such as parking lots that traditionally had been exclusively within the regulatory domain of the states. See Pub.L. No. 95-95, 91 Stat. 685, 695-96 (1977). The 1977 amendments state that, in determining whether a new or modified source qualifies as “major” or “significant” and hence is subject to the new source review provisions, EPA cannot include, nor require states to regulate, emissions from “mobile” sources located at the stationary source. The effect of this bar is to prohibit EPA from promulgating, or from requiring as a condition for approval of a state implementation plan (SIP), any program for the facility-by-facility review of facilities, such as parking lots, which are not themselves significant sources of pollution but which attract substantial numbers of “mobile” pollution-emitting sources. Such facilities are known as “indirect sources of pollution.” From the outset, the Act’s new source review provisions have applied to “stationary sources.” Originally, the term stationary source “generally [had] been interpreted to mean facilities that affect or may affect air quality primarily because of their own air pollutant emissions.” 38 Fed.Reg. 9,599 (1973). However, by 1973 EPA believed that, in addition to the transportation control measures then being considered — such as motor vehicle inspection and retrofitting used automobiles with emission control devices — preconstruction review of indirect sources would be a necessary further step “to insure the maintenance of the national ambient air quality standards, particularly for mobile source-related air pollutants, beyond 1975.” Id. In deciding to add such indirect source review to the list of transportation control measures states had to consider in their attempts to meet ambient air quality standard deadlines, EPA was no doubt prompted to some extent by our decision in NRDC v. EPA, 475 F.2d 968 (D.C.Cir.1973) (NRDC I). In that case, we found that EPA had no authority to extend the statutory deadlines for either state submission of the transportation control plan portions of their SIPs or for achievement of primary air quality standards for certain pollutants. Id. at 970. Rather, EPA was required to disapprove all “plans which do not provide for measures necessary to insure the maintenance of the primary standard after May 31,1975....” Id. at 972. See J. Krier & R. Stewart, Environmental Law and Policy 441-59 (1978) (chronology of EPA’s early experience with transportation control plans and indirect source review). Whatever the impetus, EPA went on to disapprove state implementation plans that did not provide for, inter alia, indirect source review, 40 C.F.R. § 52.22(a) (1974), and then established a mandatory federal indirect source review program for those states whose SIPs had been disapproved, id. at § 52.22(b). EPA’s statutory authority to impose indirect source review was confirmed by South Terminal Corp. v. EPA, 504 F.2d 646, 667-71 (1st Cir.1974). Congress, however, was not so accepting of EPA’s actions. Congress reacted negatively and immediately to EPA’s attempt to regulate indirect sources of pollution, attaching a number of riders to appropriation bills in an effort to preclude EPA administration of programs designed to tax or limit indirect emissions from parking facilities. See, e.g., Pub.L. No. 93-245, 87 Stat. 1071 (1974). Because some states had already voluntarily adopted indirect source review programs in order to comply with the EPA regulations, Congress extended similar relief retroactively and amended the Act to make clear that states could not be required, though they were permitted, to regulate indirect sources of pollution. See 42 U.S.C. § 7410(a)(5)(A). In the period between this court’s 1973 decision in NRDCI and Congress’ actions in 1977, however, neither Congress nor EPA focused any direct attention on the problem of emissions from vessels docked at marine terminals. The EPA regulation of indirect sources to which Congress reacted so immediately and decisively concerned only facilities that attracted automobiles. And the legislative history of that congressional response, up to and including the 1977 Amendments, similarly reveals no consideration of the vessel-emission problem. The problem of the emission of substantial quantities of pollutants from the loading and unloading of marine vessels, including hydrocarbons, particulates, and sulfur oxides, was first addressed when EPA set out to define “stationary source.” To implement the Act’s mandate that new source review apply to all major new stationary sources of pollution and to all significant modifications of existing sources, EPA had to determine how to group pollution-emitting activities for purposes of determining the contours of a “stationary source” of pollution. After we rejected EPA’s first effort to do so, see Alabama Power Co. v. Costle, 606 F.2d 1068, 1077-78 (D.C.Cir.), superseded in other aspects, 636 F.2d 323, 394-99 (D.C.Cir.1979), and after several EPA proposed and modified definitions, see 45 Fed.Reg. 6,802-03 (1980); 44 Fed.Reg. 51,924, 51,952 (1979), EPA eventually defined a stationary source as “any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act.” 45 Fed.Reg. 52,736 (1980). The agency then defined “building, structure, facility, or installation” as “all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control).” Id. (emphasis added). In the promulgation of this 1980 definition, EPA directly addressed the role that emissions from docked vessels were to play in regulating pollution from the activities carried on at marine terminals. EPA stated that it intended the final definition of stationary source “to encompass the activities of a marine terminal and only those dockside activities that would serve the purposes of the terminal directly and would be under the control of its owner or operator.” Id. at 52,696. With regard to ships, the agency limited “dockside activities” to “those activities in which the ships would engage while docked at the terminal... [and which] would directly serve the purposes of the terminal, such as loading and unloading... [and] over which the owner or operator of the terminal would have control.” Id. (emphasis added). To reach this result, EPA specifically had to reject the argument that ships at dockside were “mobile sources” within the meaning of the 1977 amendment to the Act that precluded indirect source review. Squarely confronting this question, the agency concluded that “an activity such as loading and unloading is certainly stationary, even if the ships that engage in it have mobility. Ships, moreover, are not ‘mobile sources’ within the meaning of § 110(a)(5) of the Act, the provision restricting indirect source review.” Id. The result of this process was that some of the emissions from the dockside activities of a vessel could be included in determining whether a new terminal would be a “major” source of pollution and whether a modification of an existing terminal would be “significant.” At the same time, EPA for more limited purposes also ascribed to marine terminals the emissions of vessels coming to and from the terminal. See 45 Fed.Reg. 52,737 (1980). These emissions were assigned to marine terminals under the rubric of “secondary emissions,” defined by the agency as emissions that “occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself.” Id. Secondary emissions are not used to determine' whether a new or modified source would be a “major” emitter and hence subject to new source review, but once a source has been independently ruled major, secondary emissions become relevant for various other purposes. Secondary emissions, for example, must be included in the air quality impact analysis that an applicant who seeks to construct a major new stationary source or to significantly modify an existing source must perform; in this analysis, the applicant must demonstrate that all emission increases from the construction or modification — including secondary emissions — will not contribute to a violation of air quality standards. See 40 C.F.R. § 52.21(k) (1983). Both aspects of the vessel emissions requirements — the dockside component and the to-and-fro component — became effective on August 7, 1980. Two months later, GATX Terminals Corp. (GATX), interve-nors in the present case, simultaneously filed a petition for reconsideration before EPA and a petition for review in this court, see Docket No. 80-2212 consolidated with Chemical Manufacturers Ass’n v. EPA, No. 79-1112 and consolidated cases, the latter of which is currently undergoing settlement negotiations. GATX’s petitions for reconsideration lay dormant before EPA until July 15, 1981, when EPA announced that it had, without notice or comment, temporarily stayed the vessel emissions requirements as of July 7, 1981 for ninety days (temporary stay). 46 Fed.Reg. 36,695 (1981). At that time, EPA announced that it had decided to reconsider its treatment of vessel emissions and solicited comments on whether the requirements should be stayed pending completion of that process and, if so, upon what conditions. Id. The temporary stay ended on October 7, 1981, bringing the vessel emissions requirements back into effect. This state of affairs lasted only until December 17, 1981, however, when EPA announced that it had again stayed the requirements, this time from December 7 until whenever it reached a final decision on the GATX reconsideration petitions. 46 Fed.Reg. 61,612 (1981) (extended stay). Proposing to rescind the vessel emissions requirements altogether, EPA also announced a notice of proposed rulemaking at this time. EPA suggested, as GATX had argued, that recission was appropriate because the requirements had been promulgated without adequate notice and because they were in violation of the 1977 ban on indirect source review. On June 25, 1982, EPA revoked the vessel emissions requirements in their entirety. 47 Fed.Reg. 27,554 (1982). In doing so, the agency found it unnecessary to decide a host of questions which call for the application of its expertise, including whether owners or operators of a marine terminal control the vessels docked there, for the agency accepted both the inadequate notice and the statutory interpretation arguments put forward by GATX. Acceptance of the latter constituted rejection of EPA’s earlier interpretation of the Act, under which ships at dockside were not considered to be “mobile sources” within the meaning of the 1977 congressional prohibition on indirect source regulation. Instead, the agency maintained, as it now does on review, that vessels are “mobile sources” even when being unloaded at dockside, and hence that none of the emissions traceable in any way to the activities of marine vessels can be made the responsibility of a marine terminal. Petitioners, the Natural Resources De-feuse Council, Inc., the State of California, and the Illinois Environmental Protection Agency, challenge EPA’s about-face. II. Discussion EPA’s decision to stay and then revoke the vessel emission requirements rests on two premises: first, that the requirements are barred by the 1977 ban on indirect regulation of mobile sources, and second, that the requirements were not promulgated in accordance with the Act’s procedural requisites. We find the first premise too sweeping to be sustained in full and the second premise too flawed to accept at all. Consequently, we invalidate certain portions of EPA’s 1982 revocation. Our holding on these issues makes it unnecessary to decide whether, and in what circumstances, the Act authorizes EPA to stay existing regulations without notice and comment. A. Whether the Clean Air Act Grants EPA Power to Attribute to Marine Terminals Any of the Emissions Produced by Marine Vessels 1. Standard of Review The parties sharply contest the standard of review we are to apply to determine whether EPA’s abnegation of all power to reach vessel emissions is “not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A) (Supp. V 1981). One reason for this dispute is that the case law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982), has not crystallized around a single doctrinal formulation which captures the extent to which courts should defer to agency interpretations of law. Instead, two “opposing platitudes” exert countervailing “gravitational pulls” on the law. Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 423 (D.C.Cir.1983) (Wright, J., dissenting). At one pole stands the maxim that courts should defer to “reasonable” agency interpretive positions, see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), a maxim increasingly prevalent in recent decisions. See, e.g., Public Service Comm’n v. Mid-Louisiana Gas Co., — U.S. —, 103 S.Ct. 3024, 3035, 77 L.Ed.2d 668 (1983). Pulling in the other direction is the principle that courts remain the final arbiters of statutory meaning, see FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965); that principle, too, is embossed with recent approval. See, e.g., FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). A second reason for the vigor with which the parties contest the standard of review is that the agency interpretation under attack constitutes a complete reversal of the position the agency took only two years ago. Here, too, the case law contains conflicting strands. There can be little doubt that a “ ‘settled course of behavior embodies the agency’s informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to.’ ” Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., — U.S. —, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting Atchison, T. & S.F.R.R. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08, 93 S.Ct. 2367, 2374-75, 37 L.Ed.2d 350 (1973)). At the same time, a change in administrative construction which is “thought necessary to match the statute’s construction to the original congressional intent” remains entitled, under some circumstances, to judicial deference. See National Muffler Dealers Association v. United States, 440 U.S. 472, 485, 99 S.Ct. 1304, 1311, 59 L.Ed.2d 519 (1979). From these discordant themes petitioners emerge with the conclusion that EPA’s interpretation warrants no deference at all, while the government concludes that “considerable” deference is owing. We do not find it necessary in this ease to resolve this dispute nor to attempt to harmonize the various precedents. We would affirm the agency’s conclusion that vessels are “mobile sources” for purposes of the ban on indirect source review even if we were to adopt the least deferential standard of review. See Section 2 at pages 768-771, infra. Similarly, we would sustain the agency’s revocation of the secondary emission component of the vessel emission requirement under that same standard. And our invalidation of EPA’s treatment of dockside emissions, see Section 3(a) at pages 771-772, infra, is not based upon our assessment of the accuracy of the result reached by the agency, but rather upon the agency’s complete failure to consider the criteria that should inform that result; as a consequence, whatever deference might be owing to the agency’s conclusions under other circumstances, on this issue none at all is warranted. 2. Whether Ships are “Mobile Sources” of Pollution for Purposes of the Clean Air Act We must begin, as always, with the language of the statute. See International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979). The statutory guidance afforded us here to determine whether vessels docked at marine terminals or coming to and from such terminals are “mobile” sources of pollution is contained in the following sentence from the 1977 ban on EPA regulation of indirect pollution sources: “the term ‘indirect source’ means a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution.” 42 U.S.C. § 7410(a)(5)(C) (Supp. V 1981). Nowhere in the statute is the term “mobile sources” defined. In ordinary usage, however, that term would seem to apply to any source that emits pollution and is capable of moving — which would, of course, include marine vessels. That fact is of some significance in our attempt to determine whether Congress intended marine vessels to be treated as “mobile sources” of pollution; “[a]fter all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.” Addison v. Holly Hill Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944) (Frankfurter, J.). We do not, however, treat that fact as dispositive, for inquiry into statutory meaning cannot cease at the bounds of a statute’s “plain” words. As Justice Frankfurter also realized, “the notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” United States v. Monia, 317 U.S. 424, 431, 63 S.Ct. 409, 412, 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting) (quoted with approval in FBI v. Abramson, 456 U.S. 615, 625 n. 7, 102 S.Ct. 2054, 2061 n. 7, 72 L.Ed.2d 376 (1982)). Only after examination of the context in which statutory words are set — the statute’s purpose, structure, and history — is it possible to determine reliably whether Congress used a word as a technical term of art or instead intended that word to bear merely its “plain” meaning. See, e.g., R. Dickerson, The Interpretation and Application of Statutes 230 (1975) (“[T]o exclude consideration of context would be to ignore one of the most basic principles of communication.”). Absent consideration of context, the plain meaning rule becomes merely a rorschach onto which judges cast their own conflicting visions of what statutory words ought to mean. We turn first, then, to the legislative history and administrative background of the 1977 ban on indirect source review. In this case, however, those contextual signposts turn out to be of little aid in directing us to a resolution of the issue before us. All that can be gleaned from that history and background is that, in 1977, Congress simply did not consider the specific problem of marine terminals and vessels. The EPA regulation of indirect sources, which began in 1973 after this court’s decision in NRDC I, 475 F.2d 968, was expressly directed at “major highways and airports, large regional shopping centers, major municipal sports complexes or stadiums, major parking facilities, and large amusement and recreational facilities.” 38 Fed.Reg. 15,837 (1973). Though the agency stated that this list of indirect sources was not necessarily exhaustive, at no time was there any mention in the agency’s proposal of marine terminals or of vessel emissions. In contrast, the agency’s proposals for indirect sources such as parking lots, highways, and airports were elaborately detailed: pre-construction review, for example, was required for any new parking facility in an urban area, or “associated parking” in such an area, that had a capacity of 1,000 or more cars, while the similar figure for non-urban areas was 2,000 cars; review was also required for new highway projects with an anticipated daily traffic volume of 20,000 or more vehicles within ten years. 36 Fed.Reg. 960 (1973). When Congress reacted' vigorously to EPA’s actions, it was thus a specific regulatory-lightning rod — one which did not include marine terminals or vessels — that drew the congressional response. See, e.g., H.R.Rep. No. 95-294, 95th Cong., 1st Sess. 222 (1977) (“[T]he Committee is especially cognizant of the potentially sweeping consequences and potentially socially and economically disruptive impacts which may result from efforts to reduce automobile pollution through mandated restrictions in parking supplies and restrictions on new parking facilities.”). As a result, it is not surprising that throughout the debate on indirect source review — stimulated by EPA’s attempt to require airports, highways, and parking lots to obtain federally-controlled permits before construction or significant modification — no mention was made of marine terminals or vessels. EPA did not attempt to regulate marine terminals; Congress did not respond to EPA’s inaction. Petitioners appeal to another, more tangible, part of the 1977 legislative history — a provision in the House bill defining the term “mobile source-related air pollutant” as any air pollutant “subject to regulation under [Title II] of this Act.” H.R. 6161, 95th Cong., 1st Sess. § 201(e) (1977), reprinted in 4 Legislative History of the Clean Air Act Amendments of 1977, at 2107 (1978) [hereinafter cited as “Leg.Hist.”]. The only sources of pollution explicitly subject to regulation under Title II are motor vehicles and airplanes. Arguably, as petitioners insist and respondents concede, see Brief for Respondent at 21, this definition therefore identified not only the nature of the pollutants in question but also their sources; that is, mobile-source related pollutants were those produced only by motor vehicles or aircraft. Since marine vessels are not among the sources of “mobile source-related pollutants” covered by Title II, petitioner’s syllogism concludes that the House did not consider vessels to be “mobile sources” of pollution. Even if this interpretation of the House bill is correct, a point upon which we have some doubt, **§it does not follow that the term “mobile sources” as it appears in the enacted legislation remained confined to automobiles and airplanes. The Conference Committee, while accepting the essence of the House bill, deleted without explanation the term “mobile source-related pollutant” and substituted, again without explanation, the term “mobile source.” Compare H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 437 (1977), 4 Leg.Hist. at 2904, with H.R.Rep. No. 95-564, 95th Cong., 1st Sess. 93 (1977), U.S.Code Cong. & Admin.News 1977, 1077, 3 Leg.Hist. at 473. Whether that substitution preserved the underlying concept of the House bill with regard to which sources were “mobile,” or whether the change instead expanded from the House bill the class of sources that were “mobile,” is a choice we cannot make in the absence of some basis for understanding the reasons animating that change. Because the Conference Report does not even allude to this change, and because we can discern no clear explanation for it in the history, background, or logic of the indirect source review ban, we refuse to read any dispositive significance into the initial House definition of “mobile source-related pollutant.” Thus, we can draw no conclusion about the etiology of the term “mobile sources.” As a result, all we can glean from the 1977 Act’s legislative history is that Congress simply had no specific intent as to whether vessel emissions were to be treated like auto emissions. That Congress has not specifically considered a controversial issue does not, however, mean that courts are rendered impotent to determine whether one resolution or another of that issue best comports with the statutory scheme as a whole. “[S]ilence... is no reason for limiting the reach of federal law... the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts.” United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973). The limitations on Congress’ ability to foresee or consider particular problems that may in the future arise under a statutory scheme often require that legislation be drafted by reference to general categories rather than to specific classes of activities within those categories. That requirement, in turn, demands that courts seek out the broader purposes— the overriding statutory goals — constitutive of the general categorical term in which Congress has embodied its will. Only by engaging in such purposive interpretation can we accord fidelity to Congress’ objectives. See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392, 90 S.Ct. 1772, 1783, 26 L.Ed.2d 339 (1970) (“[A] statute may reflect nothing more than the dimensions of the particular problem that came to the attention of the legislature, inviting the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical.”); see generally Fuller, Positivism and Fidelity to Law, 71 Harv.L.Rev. 630, 661-69 (1958). In this case, the salient congressional objection to indirect source review was the inequity and technological irrationality of regulating indirectly various sources of pollution: Considerations of equity and common sense demand that primary emphasis be placed on the prevention of pollution by reducing the emissions from each and every new automobile tail pipe. Efforts based on indirect control of the use of automobiles through restrictions on parking lots, shopping centers, and other indirect sources, rather than full and prompt controls for new autos, trucks, buses, and motorcycles are inherently inequitable. H.R.Rep. No. 95-294, 95th Cong., 1st Sess. 221 (1977), U.S.Code Cong. & Admin.News 1977, at 1300. Two principal reasons underlay this objection. First, the House believed “that the primary emphasis of any air pollution control program must be on the reduction of air pollution — including that generated by automobiles — at the source.” Id. at 221, U.S.Code Cong. & Admin.News 1977, at 1300. Building technological controls into an indirect source, rather than into the polluting source itself, was considered inefficient. Second, it was considered inequitable to impose upon owners of the indirect source facilities which EPA sought to regulate — parking lots, shopping centers, airports — the cost of cleaning up someone else’s emissions. Both of these purposes are equally applicable to the relationship between ships and harbors. It would be just as unfair, and would make as little technological sense, to require marine terminal owners to clean up vessel emissions as Congress thought it was in 1977 to require parking lot owners to bear the regulatory brunt of automobile emissions

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

LYNCH v. DELAWARE, L. & W. R. CO. No. 321. Circuit Court of Appeals, Second Circuit. May 9, 1932. Douglas Swift, of New York City, for appellant. Alfred T. Rowe, of New York City (Sol. Gelb and Anthony Sansone, both of New York City, of counsel), for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. Lynch, the deceased, was the engineer of a locomotive, used to pull a train upon the defendant’s road, and eoneededly engaged in interstate commerce at the time he was killed. His administratrix sued for a violation of the Boiler Inspection Act (45 USCA § 22 et seq.), because of the defective condition of an “injector” or “inspirator” upon the locomotive, which forees the water from the tank into the boiler. The only issue necessary for our decision is whether there was enough evidence to submit to the jury. The boiler of the locomotive exploded because the water got too low, and the water fell because the only injector in operation at the time did not feed enough water into it. If this was proved to he due to a defect in the injector, the judgment was right, barring putative errors in the charge, which we pass; otherwise, it was not. The plaintiff relied upon the testimony of three witnesses. Two were standing beside the track when the train passed on an upgrade, pulled by two locomotives of which Lynch’s was the first. These witnesses saw him standing on the steps of the right side of his cab and apparently looking at his injector from which water and steam were escaping. The third witness, Harle, was the engineer of the locomotive behind; he saw Lynch stand for about three-quarters of a minute on the steps of his cab looking at his injector, and he, too, saw water and steam escaping. Lynch went back into his cab; the water and steam stopped, and the locomotive was eased off for about four miles. Within two miles after it had been again put at full power, the boiler exploded. The injector is so set that the water will flow into the body of it from the tank by gravity. Steam both regulates the amount of water fed and lifts it to the boiler above. The feed is controlled by means of a pipe which runs from the boiler and mixes steam with the water; just how this regulates the amount fed to the boiler is not clear, and it is not important to know. The amount of steam let in through this pipe is governed by a valve which is manipulated in the cab. After the proper mixture is made it is lifted to the boiler by steam from a second and larger pipe, the amount of which is also controlled by a valve operated from the cab. It is, however, necessary that in the initial phase the injector should itself be open to the air; for this purpose it has an overflow valve also controlled from the cab. In operation the engineer first opens the overflow valve and water spills to the ground from the body of the injector. He then opens the regulating valve and makes the proper mixture for the feed he wishes; the mixture also spills. Then he opens the valve in the larger pipe and last of all closes the overflow valve. The injector thereafter pumps as much water to the boiler as the regulating steam pipe allows. During the period when the overflow and the regulating valves are open, the mixture comes out as water and “steam” or “vapor”; the witnesses used either word indifferently. From the plaintiff’s testimony in the setting described it appeared that Lyneh had found trouble with the feed of his boiler and stepped down to see whether the injector was working as it should. To do this apparently he opened the- overflow valve. Although Harle was somewhat vague as to whether he had’ not seen the escape of water and steam some time before Lynch stepped down, a jury might have found that he had not; it was consistent with his testimony that Lyneh had opened the valve just before he left his cab. He closed it when he got back, and it was in working order because the flow stopped. He allowed the boiler to be fed for four miles and then assumed he had enough water, though in fact 'he had not; and this would have been apparent to him had he looked at his water gauges, unless they showed more water than existed, something not suggested, and too conjectural to be the basis of a verdict. From all this nobody could conclude that the injector was not working properly. That is indeed a possibility; there might have been some check in the pipe leading to the boiler or in the steam pipes which made or lifted the mixture; though there could hardly have been any in the supply from the tank, for Lyneh had been satisfied with the mixture Which he saw spilling. But there is also the possibility that he had not opened the regulating valve enough. The defendant introduced evidence that after the explosion it had been found only one-third open, not admitting enough water. The plaintiff answers that the jury was not obliged to believe the witness, and for argument we may so assume. Still the evidence of any defect remains equivocal. To tilt the scales she argues that Lyneh was an experienced man who would not have failed to open* the regulating valve at a time when he wanted water. There would be more force in this were it not that, as we have said, he certainly did put on full power when the water was too low, as he could have known; in that particular he was certainly inattentive. The only premise which requires the conclusion that there was some defect in the injector, that is, the unlikelihood that he would not properly manipulate his valves, is thus seriously impaired, and in any event there remains no shred of affirmative evidence that the injector was not in proper working order. Indeed, there was much testimony that it was. It had been examined in June by servants of the Interstate Commerce Commission; had had at least routine inspection that very, day; and so much of it as was left after the explosion was found to be fit. Furthermore, the defendant also proved that Lyneh had not used the alternate injector for emergency. Without passing on the power of the jury to reject all this testimony, it is an unwarranted assumption that Lynch could not have neglected what the defendant’s witnesses said he had; it did not prove that the injector was defective. To supply this the plaintiff tried to show that the evidence of escaping steam itself showed a defect; but to do so she was obliged to pervert the testimony of the defendant’s witnesses. Several of these said that the escape of steam would be very unusual; and of course it would, if it were steam alone. That is what they plainly meant. All the eyewitnesses saw water as well as steam; and obviously Lyneh was not concerned by what he found, for he closed the overflow valve and assumed that his boiler was being fed. Nor is there any substance in the distinction attempted to be drawn between “steam” and “vapor.” Harle described it as steam, and saw nothing unusual in it; so did McDonald, one of the men whom Lynch passed. Scott, an expert for the plaintiff, spoke of “steam” as a normal phenomenon when the overflow valve is open. Those of the defendant’s witnesses who were more guarded in their choice of words preferred to call it “vapor,” though they usually added that it looked like steam. The fancied distinction has no reality, is no more than a straw to save a ease which was too speculative. Recent decisions of the Supreme Court (Southern Ry. v. Walters, 284 U. S. 190, 52 S. Ct. 58, 76 L. Ed. —; Atchison, T. & S. F. Ry. v. Saxon, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. —) admonish us that we are not in such cases to allow recoveries upon flimsy conjecture beyond the range of solid inference. The evidence is at best no more than evenly balanced, and the plaintiff therefore' failed to make out a case. New York Central R. R. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562; Burnett v. Pennsylvania R. R., 33 F.(2d) 579 (C. C. A. 6). Judgment reversed; new trial ordered.

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?

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

Did the court declare any statute or administrative action unconstitutional?

THE VALLESCURA. No. 249. Circuit Court of Appeals, Second Circuit. April 2, 1934. See, also, 43 F.(2d) 247. Loomis & Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for claimant-appellant. Joffe & Joffe, of New York City (Joseph Joffe and Louis Joffe, both of New York City, of counsel), for libelants-appellees. Before MANTON, L. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge (after stating the facts as above). While- there is some dispute on this appeal as to the facts, no' serious difficulty is presented on that score. It is undisputed that onions are an extremely perishable cargo and must be adequately ventilated to prevent decay. These onions were laden in part at G-andia and in part at Denia, in Spain, in apparent good order and condition and bills of lading were issued for them on that basis. It is undisputed that the ship encountered rough weather on the voyage which not only delayed her passage, but required keeping the onions without ventilation for periods long enough to cause considerable decay. The master testified in his first deposition that he had the ventilators and hatches closed some nights in good weather, and, while there was an attempt to deny and explain this, including a claim that the first deposition had been incorrectly translated, the District Court found nevertheless that the onions were negligently deprived of ventilation when the hatches and ventilators were closed in good weather. We accept the facts as found. That there was negligence in needlessly failing to ventilate the onions during a part of the voyage is plain enough. This negligence was' related primarily to the care of the cargo and not to the management of the ship. It was therefore not an error in management and navigation but a failure in the performance of a duty owed to cargo from which the ship is not relieved from liability under the Harter Act. (46 USCA §§ 190-195). Andean Trading Co. v. Pacific Steam Navigation Co. (C. C. A.) 263 F. 559; The Edith (C. C. A.) 10 F.(2d) 684; Barr v. International Mercantile Marine Co. (C. C. A.) 29 F.(2d) 26. The other disputed question of fact has to do with the notice of claim. A written notice was given too late. The libelants introduced proof, which the trial judge believed, that an oral notice of claim was given previously to the written notice and within the time prescribed. This was purely a question of fact depending upon the credibility of witnesses who testified in open court, and, as we have often said, a trier of the facts who has seen the witnesses has such a better opportunity to decide such questions than do we that his decision will be upheld unless a mistake is clearly shown. None has been, and the notice of claim is considered sufficiently proved. It does not follow, however, that the libelants are entitled to recover all of the damage to the onions. In proving the damage, it appeared that all of it was due to decay. So the same proof which showed damage put it direetly within one of the exceptions in the bills of lading. Without more there could be no recovery at all because at least a prima facie defense was made out by the decay exception. The libel-ants met this prima facie defense by proof of negligent care of the cargo, but did not show either that all the decay was due to such negligence or what part was caused by it. The special master and the District Judge who entered the final decree were both of the opinion that the ship was liable for all the damage unless it could show how much was due to causes other than its negligence on the theory that, where the negligence of a ship has contributed to the damage to cargo and for that reason alone it has in part lost the benefit of a bill of lading exception, it would be more equitable, as the special master said, “to compel the one whose fault has caused the confusion to make the proper apportionment or bear the whole loss.” Generally speaking, we have no quarrel with this as an equitable principle. There appear to be paramount considerations in a case of this nature, however, which require a reversal of the result which was reached without giving effect to them. Since the proof showed that all the damage was due to decay, it was the kind of the damage, regardless of the cause of the damage, which put it all. prima facie within the exception in the bills of lading and to that extent relieved the ship from all liability. Though the burden to bring the damag’e within the prima facie scope of the exceptions in' tho bills of lading was on the ship, Clark v. Barnwell, 12 How. 272, 280, 13 L. Ed. 985; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, the condition of the onions made other evidence to that end “unnecessary. It was then incumbent upon the libelants to prove that the prima facie defense, inherent in decay damage under the exceptions in the bills of lading, was not conclusive by showing that the decay was caused in whole or in part by the ship’s negligence. Proof that it had been wholly caused by the ship’s negligence would have destroyed the prima facie defense. Proof that the decay was caused in part by such negligence overcame that defense pro tanto. But, as the burden was on the libelants to prove not only that the onions had been damaged but to prove recoverable damage, it was necessary to prove what damage was caused by the negligence of the ship'. When it is seen that the negligence of the ship becomes important on the question of liability only in so far as it serves to defeat an otherwise good defense to this action, it seems clear that the kind of negligence which must be proved by a preponderance of the evidence is that which has caused decay that, in the language used in Clark v. Barnwell, supra, “might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods.” See, also, Western Transportation Co. v. Downer, 11 Wall. 129, 20 L. Ed. 160; Cau v. Texas & Pac. R. Co., 194 U. S. 427, 24 S. Ct. 663, 48 L. Ed. 1053; The Isla de Panay (C. C. A.) 292 F. 723. When the problem appears in this form, it is apparent that proof of negligence in this connection is not a question merely of showing that the ship did not provide adequate ventilation at all times when the weather permitted, but of showing in addition that the onions were damaged by decay which would not have occurred in spite of inadequate ventilation in good weather. To prove this necessarily required proof which would show what decay “might have been avoided by the exercise of reasonable skill and attention on the part of the persons conveying the goods.” In failing to make such proof, the libelants failed to prove any recoverable damage. The interlocutory decree provided that the libelants recover only such damage “as was caused by closing the hatches and ventilators of the vessel at night during good weather.” The burden of proof resting on the libelants under the law was thus clearly stated in the decree, and was not discharged by showing damage which apparently came within the bill of lading exceptions, though it might in part have been attributable to the negligence of the ship. Having left the cause of the decay in doubt, the libelants left the ship excused. The Isla de Panay (C. C. A.) 292 F. 723; The Bencleuch (C. C. A.) 10 F.(2d) 49. Decree reversed.

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

Dr. Harold D. KLETSCHKA, Plaintiff-Appellant, v. William J. DRIVER, Individually and as Administrator of the Veterans Administration, et al., Defendants-Appellees. No. 418, Docket 32698. United States Court of Appeals Second Circuit. Argued March 6, 1969. Decided April 22, 1969. Bernard T. King, Syracuse, N. Y. (Blitman & King, Syracuse, N. Y., on the brief), for plaintiff-appellant. Lillian Z. Cohen, New York, N. Y. (Louis J. Lefkowitz, Atty. Gen., of the State of New York and William G. O’Brien, on the brief), for defendants-appellees, Dr. C. Barber Mueller and Dr. Carlyle Jacobsen. Stephen R. Felson, Washington, D. C., (Justin J. Mahoney, U. S. Atty., and Samuel T. Betts, III, Syracuse, N. Y., on the brief), for defendants-appellees, William J. Driver, Dr. H. Martin Engle, Dr. Lyndon Lee, Jr., Dr. Morris Thomas, Dr. Lloyd S. Rogers, Dr. Herbert D. Gul-lick and John W. Macy, Jr. Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges. LUMBARD, Chief Judge: Appellant Dr. Harold D. Kletschka brought this suit in the Northern District of New York seeking relief from action taken by the Veterans Administration transferring him from the V. A. hospital in Syracuse, New York, to one in Houston, Texas. He alleges that this transfer, and certain other administrative actions taken against him, were the products of a conspiracy among the officials of the V. A. and the state medical school at Syracuse and violated his rights under the Constitution, various federal and state statutory provisions, and state common law. The complaint prays for declaratory and injunctive relief, as well as damages against the defendants. The district court granted summary judgment in favor of the defendants, relying on different grounds for the various causes of action. The facts alleged were found insufficient to establish the violation of any federal right, and in addition the court ruled that sovereign immunity barred several of the causes of action. No meritorious or substantial federal claim being presented the district court declined to exercise pendent jurisdiction over the state common law claims. We reverse in part and affirm in part. We hold that material issues of law and fact, making summary judgment inappropriate, exist with respect to plaintiff’s claims that he was entitled by statute and by the due process clause to a hearing prior to his transfer, and with respect to his damage claims under the Civil Rights Act, 42 U.S.C. § 1983. Unless these claims are dismissed upon further fact-finding we hold that the district court should exercise pendent jurisdiction over the closely related damage claims founded upon state common law. We affirm the district court’s disposition of all claims against defendant John W. Macy, Jr., Chairman of the United States Civil Service Commission, on the ground that the actions complained of are nonreviewable, and the damage claims against William J. Driver, Administrator of the Veterans Administration, on the ground of official immunity. We likewise affirm the grant of summary judgment with respect to those claims against defendants which rest upon § 1985 of the Civil Rights Act, the federal and state military reemployment statutes, 50 U.S.C. App. § 459, N.Y.Military Law, McKinney’s Consol.Laws, c. 36, § 242, and upon the Administrative Procedure Act except with respect to the statutory claim to a hearing. The case is remanded for further proceedings not inconsistent with this opinion. The complaint states that Dr. Kletsch-ka commenced work at the Syracuse V. A. Hospital in 1959. He was appointed Assistant Professor of Surgery in 1959 at the Upstate Medical Center in Syracuse, a medical school operated by New York State in close cooperation with the V. A. hospital. Plaintiff served in these two positions until he was recalled to active military duty in October, 1961. It was during his military service that Dr. Kletschka alleges the defendants began to conspire among themselves to undermine his position at the hospital and the school, the conspiracy culminating in Kletschka’s transfer without a hearing to the V. A. hospital in Houston in 1967. The cast of defendants, all sued in both their individual and representative capacities, reads as follows: William J. Driver — -Administrator of the V. A., Washington. Dr. Lyndon Lee, Jr. — Director of Surgical Services, V. A., Washington. Dr. Morris Thomas — Hospital Director, V. A. Hospital, Syracuse. Dr. Lloyd S. Rogers — Chief, Surgical Services, V. A. Hospital, Syracuse. Dr. Herbert D. Gullick — Assistant Chief, Surgical Services, V. A. Hospital, Syracuse. Dr. C. Barber Mueller — Chairman, Department of Surgery, State University of New York, Upstate Medical Center, Syracuse. Dr. Carlyle Jacobsen — President, State University of New York, Upstate Medical Center, Syracuse. John W. Macy, Jr. — Chairman, United States Civil Service Commission, Washington. From the complaint, the truth of which we must assume for these purposes, the following picture of the conspiracy emerges. In August, 1961, plaintiff had obtained from the V. A. a research grant of approximately $20,000 for use in the development of a “Plastic Implantable Artificial Heart.” Defendants Rogers and Mueller attempted to gain control over this project from plaintiff, but he successfully resisted their efforts. However, he was called to military service before he could utilize the grant. In his absence Rogers and Mueller initiated the conspiracy against plaintiff, which was subsequently joined by all the defendants except Macy. Upon his return to Syracuse from the Armed Forces in October, 1962, plaintiff discovered that his status at the hospital and the school had been reduced as a result of the defendants’ efforts. Before his activation he had been the Chief of the Thoracic Surgery division at the hospital, and had performed 90% of the hospital’s thoracic operations. On his return he was designated simply a “Staff Physician,” and was assigned no thoracic surgery. Likewise, at the school his former three-year term appointment, with substantial consulting and teaching responsibilities, had been reduced to a “Temporary Appointment” with appreciably fewer responsibilities. The defendants’ conspiracy also prevented plaintiff from using any research facilities at the hospital or school, and in particular frustrated his attempts to have the $20,-000 research grant restored. The United States Civil Service Commission refused to intercede on plaintiff’s behalf to reverse these changes in status, and this “arbitrary and unreasonable” refusal of the Commission, together with its refusal to block the transfer to Houston, is the basis for the inclusion of Macy as a defendant. But prior to the transfer plaintiff was able to gain, through various federal and state administrative appeals, the restoration of all elements of his premilitary status with the exception of the research grant. Thus while the other elements of status mentioned above are relevant to proof of a conspiracy, the only harm plaintiff presently suffers from is the transfer itself and the continued refusal of the V. A. to restore the research grant. The next stage of the alleged conspiracy concerned a periodic proficiency review, which was conducted in May, 1966, pursuant to V. A. regulations. Plaintiff was summoned to a counselling session in connection with this review and was told by defendants Rogers and Gullick that he had lost the confidence of his colleagues. It was hinted to plaintiff at this session that he would be terminated from the hospital. Dr. Kletschka claims that any loss of confidence in him by his colleagues was solely due to the action of the defendants in spreading malicious and slanderous statements concerning his professional competence. These statements were made for the purpose of damaging plaintiff’s reputation and were part of the defendants’ conspiracy to terminate him without cause from the hospital and the school. Plaintiff claims as evidence of the lack of cause the fact that he has never been furnished with a copy of any charges made against him. The plaintiff claims that sometime after the counselling session he, in part through the intercession of his congressman, was able to persuade Driver to order an investigation into the harassment of plaintiff concerning his employment at Syracuse. During this investigation the Syracuse officials, having completed their proficiency review of plaintiff, gave him an “unsatisfactory” performance rating in September, 1966. Since under established V. A. policy such a rating cannot be given while an investigation is in progress the rating was later withdrawn at Driver’s direction. Similarly Driver postponed the convening of a medical board, which was to have considered the possibility of separating the plaintiff from the V. A. After receiving the investigation report, which is not part of the record before us, Dr. Driver on January 18, 1967, the same day he withdrew the unsatisfactory rating, ordered the plaintiff transferred to the V. A. hospital in Houston, Texas. Driver denied plaintiff’s request for a hearing under 38 U.S.C. § 4110 on the grounds that the transfer was not punitive in nature, and therefore did not constitute “disciplinary action” within the meaning of § 4110. Plaintiff, in summary, claims that this transfer was the final result of a conspiracy between the federal and state defendants. In addition to depriving plain-. tiff of his employment rights at the Syracuse hospital and medical school the conspiracy has deprived plaintiff of his reputation and his ability to pursue his profession effectively. Finally, we are told that subsequent to his transfer to the Houston hospital, at which plaintiff was assigned very few duties, plaintiff was transferred to the V. A. hospital in Montgomery, Alabama. Plaintiff has accepted these transfers under protest since had he refused he would have been discharged. The motives alleged by plaintiff for the conspiracy are the resentment of defendants Rogers and Mueller over plaintiff’s refusal in 1961 to grant them control over his heart research project, and the desire of the defendants to retaliate against plaintiff for his prosecution of various administrative appeals. By this prolix complaint, which seems to run afoul of Fed.R.Civ.P. 8(a), plaintiff attempts to state six causes of action: Cause one, brought under the Administrative Procedure Act, § 10, complains of the illegal action of the V. A. transferring plaintiff and of the refusal of the Civil Service Commission to prevent this transfer and to restore the heart research grant. Plaintiff prays for declaratory and injunctive relief. Cause two alleges that the actions of the V. A., the state medical school, and the Civil Service Commission have deprived plaintiff of due process within the rationale of Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). Causes three and four seek damages under the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, alleging that the state and federal defendants conspired under color of state law to deprive plaintiff of federally guaranteed rights, namely his statutory and constitutional rights to a hearing and his employment rights under the Universal Military Training and Service Act. 50 U.S.C.App. § 459. Causes five and six, brought under pendent jurisdiction, seek damages against several of the defendants for slander and for wrongful interference with an employment relationship. The affidavits submitted by several of the federal defendants, and considered by the district court in ruling on the summary judgment motion, are rather grudging in providing information with respect to Dr. Kletsehka’s difficulties at the hospital and the school leading up to his transfer. In general they cite the investigation report ordered by Dr. Driver as the basis for the transfer, but the report is not in the record and apparently it has not been shown to the plaintiff. Consequently there is little in the record to refute the contention of plaintiff that his transfer was a punitive measure, designed to discipline him for unspecified transgressions, as the result of a conspiracy. Dr. Driver, in his affidavit of May 9, 1967, does explain the transfer as stemming from the “strained” relationships between the plaintiff and his colleagues, but we are told nothing concerning the reasons for this strain nor cited any facts indicating that the strain indeed existed. The affidavits of the two state defendants, Mueller and Jacobsen, are wholly uninformative concerning the charges of the complaint. Both are content to describe their duties and rest their defense upon the doctrine of sovereign, or official, immunity. Summary judgment may not be rendered unless the pleadings and supplementary affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In that light we proceed to consider the myriad claims presented by this suit. As a preliminary matter we note that venue is properly laid in the Northern District of New York, contrary to the alternative holding of the district court. It was in this district that “the claim arose,” within the meaning of 28 U.S.C. § 1391(b). In addition venue also seems proper under 28 U.S.C. § 1391(e). See Powelton Civic Home Owners Ass’n v. Department of Housing and Urban Development, 284 F.Supp. 809, 832-834 (E.D.Pa.1968). I. Administrative Procedure Act The Administrative Procedure Act 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. But this right to review does not apply to agency action “to the extent that * * [the] action is committed to agency discretion by law.” 5 U.S.C.A. § 701(a) (2). We hold that the propriety and wisdom of the V. A. decisions relating to plaintiff’s transfer and research funds are committed to agency discretion, with the one exception to be noted below, and hence may not be subjected to general review in the courts. We reach the same conclusion with respect to plaintiff’s claims against the Civil Service Commission for its refusal to reverse the actions of the V. A. In the absence of a statute which explicitly precludes judicial review, and we find none here, the extent to which agency action may be scrutinized by the courts depends on an assessment of the need for, and feasibility of, review bn the one hand and the possible disruption of the administrative process which might be occasioned by review on the other. See Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir. 1966); see generally Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367 (1968). It would not be feasible for the courts to review decisions by the V. A. awarding or refusing to award research grants. Each such decision involves a determination by the agency with respect to the relative merits of the many proposed research projects for which funds are sought. This determination requires considerable expertise in the scientific, medical, and technical aspects of each application. A reviewing court would have to master considerable technical data before it could even attempt to determine whether one application, Dr. Kletsehka’s for example, was so superior to the others that its rejection by the V. A. was an abuse of discretion. Furthermore, even if these technical aspects were mastered it would be difficult for the court to review the judgments of relative personal competence which necessarily play a role in the agency determination. In this instance the final decision to withdraw plaintiff’s research grant was made by heart research specialists employed at the V. A. facilities in Houston. We do not believe it would be practical for the district court to review such a decision, resting on complex and subtle evaluations of the technical merit of plaintiff’s project and the professional competence of the plaintiff himself. The decision to transfer the plaintiff, while it did not involve any considerations of scientific expertise beyond the competence of a court, did purportedly rest on a judgment that the strained personal relationships between plaintiff and members of the hospital staff were interfering with the work at the hospital. This would appear to provide a permissible basis for a transfer in the absence of any statutory or regulatory provisions prohibiting the consideration of such factors. Obviously we cannot review the wisdom or good faith of this transfer without subjecting all such personnel decisions to a similar review. Such a course would encourage a vast quantity of litigation and deprive the V. A. administrator of an element of flexibility which is necessary if he is to operate his department efficiently. Where the challenged personnel decision falls short of discharge we believe that, in general, the courts should seek to discourage arbitrary agency action by enforcing the various procedural rights of affected employees, and not by undertaking a full substantive review of the justification for the decision. See McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964); Baum v. Zuckert, 342 F.2d 145, 147 (6th Cir. 1965); McEachern v. United States, 321 F.2d 31, 33 (4th Cir. 1953). The general refusal of the courts to review the merits of personnel decisions finds additional support in the difficulty of verifying or refuting the wisdom of judgments based on partly intuitive assessments of personal competence and the ability of one man to work in harmony with others. See Saferstein, supra, at 363; cf. Capolino v. Kelly, 236 F.Supp. 955, 956 (S.D. N.Y.1964), aff’d 339 F.2d 1023 (2d Cir.) (per curiam), cert. denied 382 U.S. 858, 86 S.Ct. 114, 15 L.Ed.2d 96 (1965); Democratic State Comm. v. Andolsek, 249 F.Supp. 1009 (D.Md.1966). Plaintiff devotes no attention in his brief to his claim that the refusal of the Civil Service Commission to grant him relief is reviewable under the A. P. A. He cites no statute giving the Commission authority to review agency decisions concerning transfers or research grants, and has not included in the record any papers relating to proceedings before the Commission. He therefore presents us with no basis for reviewing this portion of the district court’s summary judgment order, and it is affirmed. Since this claim under the A. P. A. is the only basis of suit against defendant Macy, we affirm the dismissal of the complaint as to him. While we hold that the V. A. decisions challenged by plaintiff are not reviewable on the basis of the A. P. A. alone for abuse of discretion, we must still consider whether plaintiff can establish that the actions violated a specific statutory right. The enforcement of such a right by the courts may not entail the same practical objections to judicial review which we find persuasive in this case given the absence of any guidelines for the control of the V. A.’s discretion. Thus if plaintiff can point to the violation of a statutory right, which the courts may enforce, “to that extent” the action of the Y. A. is reviewable under the A. P. A., since the V. A. is without discretion to violate the right. 5 U.S.C.A. § 701(a); see Saferstein, supra,, at 370. With respect to the research funds plaintiff attempts to find such a right in 50 U.S.C.App. § 459(b) (A) (i), which grants certain reemployment rights to returning veterans who, before their service in the Armed Forces, were employed by the United States government. Such a veteran, “if still qualified” for his former position, is entitled to be “restored to such position or to a position of like seniority, status, and pay.” Plaintiff claims that his $20,000 research grant was part of his “status” prior to his military service, and that therefore the V. A. was under a statutory obligation to restore this grant to him upon his return from service. It is far from clear that this reemployment right may be enforced in the courts against the government. Several courts have held that it may not. See Insular Police Comm. v. Lopez, 160 F.2d 673 (1st Cir.), cert. denied 331 U.S. 855, 67 S.Ct. 1743, 91 L.Ed. 1863 (1947); Campbell v. Deviny, 81 F.Supp. 657 (D.D. C.1949), aff’d. 90 U.S.App.D.C. 176, 194 F.2d 881, cert. denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952). There is no occasion to address the propriety of such a broad holding here, however, for we do not think that this claimed right to research status “if still qualified” is sufficiently specific to avoid the objections to judicial review under the A. P. A. Plaintiff’s 1961 grant, assuming that it was warranted from the V. A’s point of view, might have become unjustified in 1962 because of intervening advances in heart research. An inquiry by a court into whether such a bona fide reason for the withdrawal of the grant existed would pose the same obstacles to effective review which we found to be conclusive against review based on the A. P. A. alone. Consequently we hold that this reemployment statute does not take the V. A. decision regarding the research grant out of the nonreviewable discretionary exception in the A. P. A. II. Statutory Right to a Hearing We hold that plaintiff does state a reviewable issue under 38 U.S.C. § 4110 with respect to his right to a hearing before a disciplinary board prior to being transferred. This section requires the Chief Medical Director of the V. A. to appoint disciplinary boards for the purpose of considering charges against physicians, inter alia, based upon “inaptitude, inefficiency, or misconduct * * The board must hold an evidentiary hearing at which the accused employee is entitled to be represented by counsel. After the hearing the board may recommend to the Administrator “suitable disciplinary action, which shall include reprimand, suspension without pay, reduction in grade, and discharge * * These four possible steps do not seem to exhaust the content of “suitable disciplinary action,” and we assume that the board could recommend a transfer as well. While under § 4110(d) the Administrator is free to reject a recommendation for disciplinary action, he is not, as we read the statute, free to impose disciplinary action which the board has not rec-commended. Indeed V. A. regulations specifically prohibit the use of “staff adjustments,” including transfers, “as a device to effect separation of employees when their separation for disciplinary reasons would be proper.” V.A.Dept. of Medicine & Surgery, Supplement, MP-5 Pt. 2, ¶ 8(c), June 1, 1964. Since it is mandatory for the Administrator to convene a board under § 4110, and for the board to grant the charged employee a hearing, and since this right to a hearing can be enforced without involving the courts in the wisdom of an agency decision concerning its personnel, in this respect disciplinary action taken by the V. A. is not “committed to agency discretion by law,” and thus is not excepted from the coverage of the Administrative Procedure Act. The district court has jurisdiction under the A. P. A., 5 U.S.C. § 703, to grant declaratory and injunctive relief if plaintiff can establish that he is entitled to the procedural protection afforded by § 4110. Such relief, operating on these individuals in their official capacities, would not contravene sovereign immunity. Cf. Bell V. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939, 13 A.L.R.2d 383 (1946). Furthermore, the A. P. A. constitutes a waiver of sovereign immunity concerning those claims which come within its scope. Estrada v. Ahrens, 296 F.2d 690, 698 (5th Cir. 1961); Powelton Civic Home Owners Ass’n v. Department of Housing and Urban Development, 284 F.Supp. 809, 834 (E.D.Pa.1968). To bring himself within § 4110 plaintiff must prove that his transfer to Houston was in fact disciplinary in character, i. e., based on charges of “inaptitude, inefficiency, or misconduct.” We hold that a genuine issue of material fact is presented respecting the reasons for plaintiff’s transfer, thereby precluding summary judgment on this portion of the complaint. It is plaintiff’s claim that the transfer was arranged by the defendants to avoid the necessity of taking more direct disciplinary action under § 4110, which would have required that the plaintiff be given notice of the charges against him and the opportunity to appear at a hearing with a lawyer and answer the charges. Several facts give enough credence to this claim to defeat a summary judgment motion. The defendants have failed to offer a convincing nondisciplinary explanation for the transfer. Dr. Driver, as noted above, attributes the transfer to the “strained” relationships between Dr. Kletschka and his colleagues, but does not explain the cause of the strain. In any event, on a summary judgment motion the truth of Dr. Driver’s explanation cannot be regarded as established since it is contradicted by plaintiff and to some extent by the facts. Several factors tend to indicate that the V. A. itself regarded the transfer as disciplinary in character. It was preceded by the awarding of an “unsatisfactory” rating to plaintiff. Based on this rating plaintiff had been summoned to appear before a medical board, apparently to be convened under 38 U.S.C. § 4106 (b), which would have considered the possibility of separating him from the V. A. Department of Medicine and Surgery. Both of these steps seem to involve at least implicit charges of “in-aptitude, inefficiency, or misconduct.” It is not unreasonable to infer that the transfer, timed to coincide with the withdrawal of the unsatisfactory rating, was regarded by the V. A. as a substitute for either open disciplinary action or a discharge, both of which carry with them a statutory right to a hearing. Indeed the brief for the federal defendants states that “the agency had little choice but to transfer Dr. Kletschka from the Syracuse hospital or bring charges and attempt to dismiss him,” thus all but admitting that the transfer was punitive in character. Finally, we note that the V. A. has never given Dr. Kletschka a specification of the reasons for the transfer, supporting the suspicion that no reasons exist which the V. A. is willing to subject to scrutiny. It was to guard against the danger of arbitrary treatment of personnel, without a fair opportunity being given the employee to refute whatever charges have been levied against him, that Congress guaranteed the right to a hearing before any disciplinary action could be taken. If this salutary procedural safeguard can be evaded merely by ordering a transfer, with no reasons being given for such action, then § 4110 would mean very little indeed. Disciplinary action by any name requires for its legitimization a full hearing under § 4110. Plaintiff is entitled to introduce proof establishing that his transfer falls within the disciplinary classification, and, if he can so prove, he is entitled to appropriate declaratory and injunctive relief. III. Constitutional Right to a Hearing Plaintiff argues that entirely aside from § 4110 he is entitled to a hearing under the due process clause of the Constitution. He cites as authority Birnbaum v. Trussed, 371 F.2d 672 (2d Cir. 1966). In that case the plaintiff alleged that officials of the state hospital where he worked had conspired with officials of a union to discharge him without a hearing, and that the defendants had made defamatory statements which made it appear to the public that plaintiff had been discharged because of his enmity toward Negroes. This court held that due process requires that a public employee be afforded a fair hearing before being discharged under circumstances which damaged his reputation and his ability to pursue his profession effectively. 371 F.2d at 678. Adoption of plaintiff’s argument would involve a considerable extension of the Birnbaum holding. Cf. Madera v. Board of Educ., 386 F.2d 778, 784 (2d Cir. 1967). Here plaintiff was transferred, rather than discharged, and whatever publicity that was engendered by the transfer did not involve the especially objectionable area of racial aspersions. Indeed, it is not clear that there was any publicity concerning plaintiffs disputes with the hospital and school officials, with the possible exception of the release of the unsatisfactory proficiency rating. Instead plaintiff seems to complain of a whispering campaign against him by the defendants among his Syracuse colleagues. But while these facts distinguish our case from Birnbaum they do not necessarily lead to a different result. A transfer to a distant location might have as severe an effect on the career of a professional man as an outright discharge from government service. And a whispering campaign such as plaintiff alleges could well damage his ability to pursue his profession effectively by undermining his status in the medical community. We believe that this difficult constitutional issue should be resolved only after the facts surrounding the transfer and the disputes which led up to it are fully developed by the district court. The record before us falls far short of providing a full picture of the facts, especially because of the tactical decision of the defendants to rely on their official immunity defense rather than to respond in detail to the allegations of the complaint. Consequently we also remand this portion of the summary judgment order for further hearing, expressing no view concerning the merits of plaintiff’s constitutional claim. IV. Civil Rights Act Plaintiff states damage claims under both § 1983, and § 1985 of the Civil Rights Act, 42 U-.S.C. § 1981 et seq. We hold that summary judgment on the claims under § 1985 was proper, but that the claims under § 1983 must be remanded for further fact-finding. The fourth cause of action in the complaint seems to allege a violation of § 1985(1). This provision of the 1871 Civil Rights Act, which apparently has never been construed by a court, covers conspiracies which attempt “to prevent, by force, intimidation, or threat, any person from accepting or holding any office * * * under the United States, or from discharging any duties thereof * * Since plaintiff makes no mention of this section in his brief, and did not refer to it at oral argument, he has abandoned the claim on appeal. Plaintiff does rely on his claim under § 1985(3), which reaches conspiracies under color of State law to deprive a person of “the equal protection of the laws.” But whatever other rights plaintiff may have been deprived of equal protection is not one of them. The actions taken by defendants were directed only against plaintiff as an individual and not because he was a veteran, or a member of some class or race. A violation of equal protection would be shown if the actions against plaintiff were part of a general pattern of discrimination, or were based on impermissible considerations of race or class, but plaintiff has not raised a genuine issue of fact concerning such discrimination. See Birnbaum v. Trussell, 371 F.2d 672, 676 (2d Cir. 1966); Birnbaum v. Trussell, 347 F.2d 86, 90 (2d Cir. 1965). To maintain a cause of action under § 1983 plaintiff must show: 1) that he has been deprived of a right, privilege, or immunity secured by the Constitution and laws of the United States; 2) that the defendants subjected plaintiff to this deprivation, or “cause[d]” him to be so subjected; and 3) that the defendants acted “under color of any statute, ordinance, regulation, custom, or usage, of any State * * *.” Since we have held that summary judgment was improper on plaintiff’s claims that he had been deprived of his constitutional and statutory rights to a hearing it follows that he meets the first of the three above requirements as against a summary judgment motion. A. State Defendants There seems no doubt that the actions taken by the state defendants in this case were taken under color of state law. Their actions, by the allegations, consisted of exerting influence upon the federal defendants, influence they possessed by virtue of the power and authority vested in them under state law. Cf. United States v. Classic, 313 U.S. 299, 325-326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). This informal, behind the scenes exertion of state authority is as much within the scope of § 1983 as the more usual examples of formal and open action leading to the denial of federal rights. The Fourteenth Amendment gave Congress the power to legislate against “State action of every kind” having the effect of impairing federally guaranteed rights, Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883), and Congress had exercised that power in § 1983. The informal nature of the defendants’ action here does make it more difficult for plaintiff to prove that the state defendants did “cause” him to be deprived of a federal right. It is clear that the actual deprivation was accomplished through the actions of the federal defendants. Our question is whether the record provides a basis for proof that the state defendants, by virtue of their influence over the operation of the V. A. hospital, may have played a significant role in causing the federal action, so as to raise an issue of fact. We hold that it does. The most striking evidence concerning the close relationship between the V. A. hospital and the state medical school is a passage in a letter written by defendant Rogers to plaintiff on February 16, 1959, at a time before plaintiff had accepted a position with the hospital: “This Veterans Administration hospital * * * is next door to the Medical School. It is completely integrated in all departments with the Medical Center * * *. It is customary for the full-time staff at the Veterans Administration Hospital to carry academic appointments in the Medical School departments, and to be considered as equal members of the various Medical School departments in all respects.” Record at 148. From Dr. Driver’s affidavit we learn that the Dean’s Committee of the school “assumes a general supervisory aegis over the quality of patient care and training programs in the Veterans Administration Hospital.” The school nominates to the V. A. Hospital Director persons for appointment to the V. A. professional staff, although the final decision concerning job applicants remains with the V. A. This general outline makes it clear that the chief administrators of the medical school are in a position to exert a powerful influence over the personnel policies of the Syracuse V. A. hospital. The V. A. considers its affiliation with the school crucial to its ability to provide a high quality of medical care. Because of this view it has granted to the state defendants, or so plaintiff may be able to prove, considerable control over the personnel of the hospital. Plaintiff may also be able to prove that this control was exerted in his ease, with the result that he was transferred as a disciplinary measure without a hearing in significant part because of the wishes, of the state defendants. It is his allegation that state defendant Mueller was, along with federal defendant Rogers, one of the originators of the conspiracy. We hold that he has presented a genuine issue of material fact concerning whether the state defendants “caused” the V. A. to deprive plaintiff of a federal right within the meaning of §

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

John F. CIEMPA, Plaintiff-Appellant, v. Andrew E. CONFORTI, and Dorothy Drewniak, Defendants-Appellees. No. 74-1339. United States Court of Appeals, First Circuit. Argued Dec. 2, 1974. Decided Dec. 9, 1974. W. Wright Danenbarger, Manchester, N. H., with whom Wiggin, Nourie, Sun-deen, Pingree & Bigg, Manchester, N. H., for plaintiff-appellant. Clifford J. Ross, Manchester City Sol., for defendants-appellees. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. PER CURIAM. This is an action brought pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 by a prospective, and eventually unsuccessful, candidate for the New Hampshire legislature, alleging that the practices adopted in the ward in which he was running deprived him of due process. The complaint sought an injunction. The court held an evidentiary hearing, and then dismissed the complaint, both for failure to state a cause of action, and on the basis of the facts found. In light of the broad allegations of the complaint we might have some question as to the propriety of the first of these rulings, but we sustain the second. It appeared that the plaintiff was running against a candidate who, at the time, was the Ward Clerk. The Moderator in charge of the election had a standing rule that candidates must stay beyond the door of the polling place, except when voting, but there was a further exception, and the cause of this dispute: the Ward Clerk is expected to work inside the polling place, even if a candidate. The court found, “As Ward Clerk, Mrs. Drewniak spends all of Election Day in the polling place working under the direction of the Moderator. Her main tasks are to check off absentee ballots and to determine, by telephoning the City Clerk’s office, whether or not people who are not on the checklist should have been placed on the checklist for Ward 6. She has nothing to do with voting and has nothing to do with the checklist. She is not seated so that she has access to any voters prior to the time that they actually vote. She can, however, be seen by voters as they proceed by the checklist to the voting machines. She does not and, of course, could not do any electioneering in the polling place, but she does say hello to friends and neighbors or wave to them.” Strictly, under these circumstances, greeting by speaking, waving, and presumably smiling, may be thought a mild form of electioneering. At the same time one could hardly expect a candidate who is spoken to, or waved to, not to respond. To ignore the greeter would be electioneering in reverse. We must feel that perfection would dictate that the candidate not be in the polling place at all, or, at least, not be stationed where voters could see her before they had voted. We do not conceive our duty, however, to require us to supervise state elections to that degree. There are no racial overtones in this case, no deliberate discrimination, and no electioneering beyond the minimum involved in the carrying out of the candidate’s regular activities implicit in her current office. There are various ways in which individuals already in office have, or may be thought to have, certain minor advantages. That does not automatically make a federal case. Affirmed.

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

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

UNITED STATES of America, Appellee, v. Joseph J. C. DiCARLO and Ronald C. MacKenzie, Defendants, Appellants. No. 78-1026. United States Court of Appeals, First Circuit. Argued March 6, 1978. Decided April 20, 1978. Francis J. DiMento and Earle C. Cooley, Boston, Mass., with whom DiMento & Sullivan and Hale & Dorr, Boston, Mass., were on brief, for appellants. Edward J. Lee, First Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Alan D. Rose, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee. Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges. ALDRICH, Senior Circuit Judge. This is an appeal from the denial of a new trial. Appellants, Joseph J. C. DiCarlo and Ronald C. MaeKenzie, hereinafter defendants, were found guilty after a jury trial in the district court of conspiracy to violate, and of substantive violations of, the Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952. The offenses involved the extortion by defendants, then Massachusetts state senators, of $40,000 from McKee-Berger-Mansueto, Inc. (MBM), a New York based construction management firm, in connection with a report by a legislative committee chaired by DiCarlo concerning a state contract with MBM. While their principal appeal was pending, defendants moved the district court for a new trial, alleging, (1) constitutionally defective representation by defense counsel because of a conflict of interest, and because of incompetence; (2) a due process violation by the U. S. Attorney’s failure, in response to a discovery request, to turn over certain letters allegedly having impeachment value in regard to a key government witness; (3) jury misconduct; and (4) newly discovered evidence, in the form of recantation of the testimony of certain witnesses. In connection therewith, defendants requested an ev-identiary hearing. In an extensive opinion, the district court denied defendants’ motion. Almost coincidentally, we rejected the principal appeal. United States v. DiCarlo, 1 Cir., 1977, 565 F.2d 802. Being of the view that our decision was uncertworthy, First Circuit Rule 17, we denied bail pending petition therefor. Certiorari was thereafter denied,-U.S. -, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). In addition, in an unpublished memorandum, we refused to stay the district court’s refusal of bail pending the present appeal. At the outset is the threshold issue of the proper standard of review for a case in this posture. The government, focusing upon the fact that the relief sought is a new trial, argues that the decision below may not be reversed absent proof that the trial court committed an abuse of discretion — the standard applied for motions for new trials under F.R.Crim.P. 33. See United States v. Zannino, 1 Cir., 1972, 468 F.2d 1299, 1303, cert. denied, 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 687. The district court, however, although defendants were not then in custody, treated their first three claims as falling under 28 U.S.C. § 2255, and only the last as of the discretionary scope of Rule 33. We agree. In seeking collaterally to attack their convictions under section 2255, defendants bear the burden of establishing by a preponderance of the evidence that they are entitled to relief. Coon v. United States, 5 Cir., 1971, 441 F.2d 279, cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103. This includes the burden of showing that they are entitled, if they claim it, to an evidentiary hearing. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the trial court may examine the record, the moving papers and any exhibits and affidavits submitted therewith and, on the basis of those materials, may summarily dismiss the motion if it “plainly appears . that the movant is not entitled to relief.” See Miller v. United States, 1 Cir., 1977, 564 F.2d 103,106; Moran v. Hogan, 1 Cir., 1974, 494 F.2d 1220. While genuine issues of material fact may not be resolved without a hearing, see Blackledge v. Allison, 1977, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 52 L.Ed.2d 136, a hearing is not necessary “when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.” Moran v. Hogan, ante, 494 F.2d at 1222. Moreover, if the claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make findings without an additional hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous. Bartelt v. United States, 5 Cir., 1974, 505 F.2d 647; Zovluck v. United States, 2 Cir., 1971, 448 F.2d 339, cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 21 L.Ed.2d 585. Ineffective assistance of counsel. Defendants’ attack upon trial counsel is in three layers. One is, broadly, that they were incompetent. This is a serious accusation to make against reputable and experienced attorneys. The court found it in no way borne out. We need not detail the court’s reasons, nor consider the matter further, except to express surprise that, in light of their additional burden to overcome the district court’s findings, they continue to press a charge that was baseless to begin with. Secondly, it is claimed that in deciding not to elicit from certain witnesses the names of Senate President Kevin B. Harrington and former Governor Francis W. Sargent as recipients of questionable MBM payments, trial counsel were moved by concern for them rather than the interests of the defendants. Finally, defendants say that if, in fact, their counsel considered solely defendants’ best interests, there was, nonetheless, a constitutionally impermissible conflict of interest which required a new trial. Taking first the issue whether trial counsel in fact gave weight to the interests of Harrington and Sargent, there is no direct testimony, nor could any reasonably be expected. Defendants must establish their claim by inference from the circumstances'. The circumstances are these. About one year prior to the return of the indictments in this case, DiCarlo was informed by Harrington that DiCarlo was the object of federal criminal investigation. Harrington suggested that DiCarlo obtain the services of an attorney. He recommended Walter J. Hurley, an experienced criminal defense lawyer, at all times relevant to this case associated in the practice of law with Thomas M. Joyce. Joyce was a well known lobbyist, with many friends in Massachusetts political circles, including Harrington and then Governor Sargent. DiCarlo met with Joyce, who stated that he knew someone in the Justice Department who would keep him abreast of the progress of the investigation, and thus enable him to alert Hurley of any developments. DiCarlo retained Hurley. Thereafter, learning from Hurley that MacKenzie was also under investigation, DiCarlo so informed MacKenzie. MacKenzie told DiCar-lo that he intended to retain his present counsel, Earle C. Cooley, and DiCarlo reported this to Hurley. Hurley urged Di-Carlo to persuade MacKenzie to retain, instead, Robert V. Mulkern, a lawyer unconnected with him, or Joyce, but who he believed would cooperate in a coordinated defense. MacKenzie acceded, but, at various times thereafter, expressed dissatisfaction. DiCarlo, at Hurley’s prompting, reassured MacKenzie that Mulkern was properly handling the case. It is unclear from the record whether Hurley was a partner of Joyce, or simply an associate, but, in any event, Joyce said he would set the fee, and ultimately did so. DiCarlo’s checks to Hurley were endorsed for deposit to the account of Joyce’s law firm. On the sixth day of trial, the Assistant U. S. Attorney, Edward J. Lee, furnished Hurley and Mulkern with materials containing reports of FBI interviews with MBM president McKee, who was then on the stand, and MBM officer, Jack Thomas, who had yet to testify. These materials revealed, inter alia, statements of MBM officials that they had made payments to certain Massachusetts politicians, including $2,000 to Harrington and two $10,000 payments to one Albert Manzi, at least one alleged to be a political contribution to then Governor Sargent. On receipt of this material, defense counsel asked their clients whether the information should be used for the defense. DiCarlo’s affidavit states that he told his counsel to use the information, “if it’s helpful. Bring it out. Withhold nothing.” The trial transcript reveals that both defense counsel used the general material extensively. During cross-examination of the MBM witnesses, who were crucial to the government’s case, the issue of MBM’s political contributions, nationwide, was probed in great detail, but the names of these recipients were not mentioned. Defendants now claim their counsel improperly refrained out of consideration for Harrington and Sargent. We agree with the court’s finding that there were substantial risks involved in using these names which prudent counsel might very reasonably wish to avoid. The jury might have viewed the dragging of prominent figures into the case a desperate, but not exculpatory, tactic, particularly if they had responded and denied receipt. Conversely, if it should appear that these contributions were in fact made, and illegal — there is some suggestion that the second alleged payment to Manzi was the result of raw political blackmail — it is hard to see how this would have helped persuade a jury that MBM had not been subject to, and capitulated to, similar conduct by defendants. In this posture defendants argue that, if, in fact, MBM had made these prior payments it would have had “friends in high places” enabling it to resist importunities by defendants. The suggestion that $2,000 purchased all-risk insurance, or that Harrington, for that amount, if requested, would have gone to DiCarlo and said, “You lay off,” is not credible. Even less persuasive would be the thought that Sargent, the Republican governor, could have gone to the Democratic chairman purportedly investigating the propriety of a Republican-let contract, and said that MBM had paid enough already. We accept the court’s view that defendants have offered nothing to persuade it that defendants’ counsels’ decision was not a wise one. Nor is this overcome by defendants’ claim that Hurley had a motive that conflicted with a decision to bring Harrington’s and Sargent’s names into the case —Joyce’s friendship with these individuals. Concededly, Harrington and Sargent would have preferred not to be mentioned as recipients of possibly illegal payments, but, aside from that publicity, they have not been shown to have any other interest inconsistent with those of the defendants. In fact, Harrington, at least, could be thought to have had a substantial interest in defendants’ acquittal. One need not read the newspapers to conceive the pall cast upon the legislature as a whole by an extortion conviction of two prominent senators. It is true that Joyce, as a lobbyist, wanted to cultivate friends with political power. Any concern for Sargent, however, would have been diminished by the fact that he was out of office by the time of trial. While he was friendly with Harrington, so he was with DiCarlo, who had already risen to a position of power. To put it crassly, we may wonder how it would improve his stature as a lobbyist if he were to sell out one senator, who was his client, for an incidental benefit to another, who was not. Defendants respond that the circumstances were such that they needed to prove no more than a possible conflict of interest, not an actual conflict. Concededly, there are such cases, but this was not one. In Miller v. United States, 1 Cir., 1977, 564 F.2d 103, we announced the standard by which claims of ineffective assistance of counsel based upon a conflict of interest are to be tested. There we distinguished between cases involving the joint representation of codefendants by one attorney, or members of the same firm, and cases of dual representation where an attorney presently has, or in the past has had, a legal relationship with a hostile party or witness. In the case of joint representation of codefendants we held that only a relatively slight showing of actual prejudice is required to establish ineffective assistance of counsel, because there an attorney “is particularly susceptible to disabling conflicts.” Id. at 106; Holloway v. Arkansas, - U.S. -, -, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). However, where dual representation is involved, the danger of conflicts is not so great. Accordingly, a real conflict of interest or a specific instance of prejudice must be shown. Id. at 106; see United States v. Jeffers, 7 Cir., 1975, 520 F.2d 1256, cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656; United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505. Defendants contend that their case presents similar dangers of conflict and thus should be governed by Miller’s joint representation standard. However, the special scrutiny given to instances where codefendants are represented by single counsel is not warranted here. First, obviously, there was no actual joint representation; each defendant had separate, unrelated counsel. Secondly, defendants do not claim that there ever was any attorney-client relationship between Joyce, Hurley or Mulkern and Harrington or Sargent. Finally, it is unsound to analogize the position of Harrington and Sargent to that of code-fendants. Neither had been charged nor brought to trial. Disclosing their names to the jury as recipients of MBM’s payments could not have increased their potential criminal liability, nor could any tactic by defendants’ counsel have decreased that liability. Even if their names were not used, neither Harrington or Sargent, nor Joyce or Hurley could insure that the information, which the government already had, would not be revealed. We, of course, do not suggest that an attorney may not have a pecuniary interest creating what we would term a per se disabling conflict. See, e. g., United States v. Hurt, 1976, 177 U.S.App.D.C. 15, 543 F.2d 162. When, however, the pecuniary interests are solely speculative — “the mere possibility of additional work for a former client,” — “the presumption [is] that the lawyer will subordinate his pecuniary interests and honor his primary professional responsibility to his clients in the matter at hand.” United States v. Jeffers, ante, at 1265; see, also, United States v. McCord, 1974, 166 U.S.App.D.C. 1, 8-10, 509 F.2d 334, 351-53, cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87. Particularly is there a heavy burden on a defendant when the facts were known to him from the beginning, United States v. James, 5 Cir., 1975, 505 F.2d 898, cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667, or, as in this case, long before the trial ended instead of afterwards. Defendants selected Hurley precisely because Joyce had political connections. Such connections are not simplistic, but extend in many directions. The least defendants could expect was the possibility of some interface. The least that, in turn, could be expected of defendants would be to make their own decisions when some such matters surfaced. Defendants were in no respect naive or unsophisticated. Nothing was concealed from them, including the fact that day after day the trial was proceeding without their counsel disclosing the names to the jury. They do not excite our sympathy when, having lost their case, they malign their counsel, and say they were put upon. Defendants have failed to allege or establish a real conflict of interest or any actual prejudice. They are entitled to no relief. Miller v. United States, ante. Brady violation. Defendants next contend that the government’s failure to disclose two letters written by Assistant U. S. Attorney Lee to prospective customers of MBM violated their right to a fair trial under Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The letters were written prior to trial in response to inquiries by certain governmental agencies that were considering awarding contracts to MBM. After describing the indictment, MBM’s role, and its cooperation with the government, the letters conclude that the U. S. Attorney was “not aware of any reason why [MBM] should be disqualified from public work.” In their discovery request, defendants sought, “23. All statements or promises or rewards of any kind, or tending in any way, directly or indirectly, do induce or encourage the giving of testimony, which statements have been made to any persons whom the Government intends to call as witnesses at the trial of the indictment herein. “24. All evidence of any kind favorable to the defendants material either to guilt or punishment, including without limitation that which may tend to be exculpatory, to impeach or discredit incriminatory evidence or to mitigate the crime charged, or which may lead to evidence of such character.” Defendants maintain that the letters were recommendations of MBM by the government that would have been of value for impeaching MBM witnesses. Since defendants posit their principal argument upon United States v. McCrane, 3 Cir., 1976, 547 F.2d 204, re-affirming, after remand, 427 U.S. 909, 96 S.Ct. 3197, 49 L.Ed.2d 1202, for further consideration in light of United States v. Agurs, 1976, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, United States v. McCrane, 3 Cir., 1975, 527 F.2d 906, we start with an examination of that case. There the defendants requested, “all material known to the government . which is exculpatory in nature or favorable to the defendant, or may lead to the discovery of exculpatory material or material which may be used to impeach prosecution witnesses . . .” In response to a request by counsel for the principal prosecution witness, the U. S. Attorney wrote letters about the witness to parties proposing to enter into contractual relations with him, corresponding much, in general outline, to the case at bar. In the earlier case of Brady v. Maryland, ante, the prosecuting attorney, in response to a request, had failed to disclose a statement of a third party that could be regarded as exculpatory. The Court held, “[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196. The first McCrane court, after noting that impeaching evidence fell within Brady, stated that a promise of preferential treatment given to a witness by the government is admissible for impeachment purposes. It went on to say that “jurors might have felt that the mere act of writing the letters was preferential treatment.” 527 F.2d at 911-12. It, accordingly, found a violation of Brady and ordered a new trial. Although in Brady the Court made no point of it, the request called for all statements of a designated individual, and hence was, in fact, a “specific” request. In the initial McCrane opinion the court did not discuss the nature of the request. In United States v. Agurs, 1976, 427 U.S. 93, 96 S.Ct. 2392, 49 L.Ed.2d 342, however, the Court distinguished between general and specific requests. Refusal of a “specific and relevant” request “is seldom, if ever, excusable.” 427 U.S. at 106, 96 S.Ct. 2392. This kind of request calls for any material evidence, i. e., “evidence [that] might have affected the outcome of the trial.” Id. at 104, 96 S.Ct. at 2398. On the other hand, the Court said that a general request, e. g., “all Brady material,” or “anything exculpatory,” involves a very different standard. “The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Id. at 112-13, 96 S.Ct. at 2401. [Footnotes omitted.] Upon remand for reconsideration in the light of Agurs, the McCrane court concluded that its prior decision was correct under either alternative. If the defendant’s request were to be construed as merely general, the evidence met Agurs’ standard of materiality. But also, and it is for this that defendants seek to rely on it, the court regarded the request as specific, hence imposing the more liberal standard of materiality. In resolving this latter issue in favor of defendant the court relied on a statement in the government’s brief which, although the government expressly denied that the request was specific, the court construed as a concession that it was. We will not pursue the correctness of the court’s construction; the government makes no such statement here. However, unless the government had so conceded, we consider the McCrane request a classic example of a non-specific request as defined in Agurs, and decline to accept McCrane’s contrary view. See United States v. Hearst, N.D.Cal., 1977, 435 F.Supp. 29, 30-31, aff’d, 9 Cir., 563 F.2d 1331, 1352. We also reject McCrane’s above-quoted statement that “the mere act of writing the letters was preferential treatment,” unless read in conjunction with the evidence, elsewhere noted, that they were written at the request of the witness’s counsel. This, however, brings us to the case at bar, where defendants claim that No. 23 was a specific request. In construing No. 23 as not calling for the U. S. Attorney’s letters the district court said, “The subject letters were not ‘recommendations,’ were not communications to or requested by MBM and were neutral in their impact.” For present purposes we will assume the incorrectness of part of this statement; the letters were sufficiently recommendatory that we would consider them to be “rewards” if, but only if, a statement had been made to a MBM witness which put them in that light. There was no impeaching significance in the letters themselves. They were not relevant unless, as the final clause of the request specified, they were intended to influence the witness. Clearly, they could not influence the witness unless there had been a statement to him, either a promise that they would be written, or, at the least, subsequent communication enabling him to realize that he had been rewarded. Not only is this clear, but the request itself, which appears carefully drawn, recognizes there would have had to have been a “statement” to the witness. The specificity of the request, in other words, related to any statement, not to the letters themselves. There is nothing to overcome the U. S. Attorney’s response that there was no such statement. It may be conceded that the letters fell within the terms of a general request, of which No. 24 was a good example, seeking anything that might lead on to something else. Here, however, because of its generality, the government does not face the strict sanction which attends the refusal of a specific request. The district court properly applied the general test, and found that defendants failed. We have considered the record, and find no reason to disagree. Misconduct by jurors. We may pass quickly over defendants’ complaint, supported by the statements of two alternate jurors, that the jury was exposed to certain unspecified newspaper and television accounts of the trial, and that the jurors discussed the case among themselves. The district court held these assertions to be “insubstantial” and that the documents submitted revealed no “material derogation of the defendants’ right to a fair trial,” and thus neither an evidentiary hearing nor a new trial was warranted. Defendants waived sequestration of the jury, thereby assuming the risk that the jurors would come in contact with some publicity concerning the trial. No relief is warranted without a showing that the publicity resulted in prejudice. United States v. Perrotta, 1 Cir., 1977, 553 F.2d 247; United States v. D’Andrea, 3 Cir., 1974, 495 F.2d 1170, cert. denied, 419 U.S. 855,95 S.Ct. 101, 42 L.Ed.2d 88. Court and counsel carefully monitored the press coverage of the trial. On two occasions a potentially prejudicial article and television report were brought to the court’s attention. Following the procedures required by Perrotta, the court polled the jurors as to whether they had seen them. In each case, all jurors responded that they had not. Defendants now claim that similar inquiry should have been made as to other unspecified publicity allegedly seen or heard by the jurors. The court was correct in rejecting this claim. Absent specification of particular pieces of publicity, and a showing of their potentially prejudicial effect, it had no duty to inquire further. The court also found insubstantial defendants’ claim of pre-deliberation discussion of the case by the jurors, and consideration by the jurors of defendants’ failure to testify. We agree. Quite apart from the fact that the alternate juror, who was the source of the statement that the jurors considered the defendants’ failure to testify, was not present during the jury’s deliberations following the court’s charge, this claim flies in the face of the familiar principle that a verdict may not be impeached by a juror’s testimony that the jury was guilty of misconceptions of fact or law, employed unsound reasoning, indulged in improper argument, etc. See, e. g., Young v. United States, 10 Cir., 1947, 163 F.2d 187, cert. denied, 332 U.S. 770, 68 S.Ct. 83, 92 L.Ed. 355; 6A J. Moore, Federal Practice, 159.-08[4] at 148-49 (2d ed. 1974). While there are exceptions, the present case is far from such. Newly discovered evidence. Defendants submitted three unsworn statements, two by witnesses at the trial, and one by the wife of one such witness, to support their claim, pursuant to F.R. Crim.P. 33, for a new trial on the ground of newly discovered evidence. The purported evidence takes the form of the recantation of two witnesses, Harding and Shields, concerning the July 6, 1972 meeting in New York City at which some of defendants’ extortionate threats allegedly were made. The witnesses did not retract their testimony as to the fact of the meeting, but only suggested that they had been mistaken as to its date, which they now believe to have been sometime during the spring of 1972. So much was deficient with respect to these statements that we merely list the areas. Passing the fact that the court expressly disbelieved Shield’s new version, and impliedly did so as to Mr. and Mrs. Harding, whose statements, it found, were at least in part dictated by DiCarlo’s new counsel, no explanation is offered for six months’ delay, rather than eliciting this testimony at trial, or is offered to meet the “considerable skepticism,” Lemire v. McCarthy, 1 Cir., 1978, 570 F.2d 17, 21, which attends recantation. The trial court’s findings will not be disturbed. United States v. Johnson, 1946, 327 U.S. 106, 111-12, 66 S.Ct. 464, 90 L.Ed. 562. We have considered the other arguments advanced by defendants and find them to be without merit. The order of the district court is affirmed. . We agree with the trial court that of all the alleged shortcomings of trial counsel, the only one with any plausible relationship to the alleged conflict of interest is failure to use these names. . The record in no way supports some seeming suggestion in defendants’ brief that Joyce said he would himself pay the fee. . Defendants also complain of their counsels’ failure to accept the government’s offer to locate one William Masiello and secure his presence at the trial, allegedly because he had been a former client of Mulkern. Quite apart from the fact that Masiello’s purported testimony was supplied only by a hearsay affidavit, cf. 6 J. Moore, Federal Practice, -1 56.11 [1.-2] at 200 (2d ed. 1976), the court found that he would have been a dangerous witness (“foolhardy”) for defendants to call. We agree with the court that the failure to call Masiello in no way prejudiced the defendants. See United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505. . In light of the present widespread concern over the MBM matter, of which we may take judicial notice, viewed by hindsight it would have been a considerable benefit to Harrington to have avoided the subject of the $2,000 check, provided that such silence would have ended the matter. However, this information was in the government’s possession to begin with, and silence could not have been assured, regardless of whether defense attorneys pursued this line of inquiry. . For the benefit of the bar we do not read this phrase as corresponding with a later remark by the Court that “a jury’s appraisal of a case ‘might’ be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt.” Id. at 108-9, 96 S.Ct. at 2400. Rather, we would apply the usual rule of demonstrably harmless error. Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. Nor, of course, must a request be answered just because it is specific. The initial question is whether it is Brady material. . We do, however, note the extraordinary claim in present defendants’ brief that the concession by government counsel in this unrelated case in another circuit estops the government here. This would be extraordinary even if defendants could claim, which they make no pretense of doing, that they knew and relied on it, a necessary condition of estoppel. . Alternatively, if the request sought more, it failed to meet the basic requirement of a specific request, “notice of exactly what the defense desired.” Agurs, 427 U.S. at 106, 96 S.Ct. at 2398. . “[The] letters would not in my view have created a reasonable doubt as to the guilt of the defendants, in the light of strong and persuasive evidence of guilt introduced at the trial. In the language of the Supreme Court the omission to furnish these letters was not material ‘in the context of the entire record.’ United States v. Agurs, supra, 112 [96 S.Ct. 2392].” . As to Shield’s testimony, the court noted, “Mr. Shield was an extremely articulate, assured and self-possessed witness. His manner was somewhat hostile to the United States Attorney. I cannot credit [defendants’ claim] that untrue testimony was extracted from him against his 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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

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

MAAS et al. v. NATIONAL CASUALTY CO. No. 4323. Circuit Court of Appeals, Fourth Circuit. June 6, 1938. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. Z. Townsend Parks, Jr., and Eldridge Hood Young, both of Baltimore, Md. (Young. & Crothers, of Baltimore, Md., on the brief), for appellants. William D. MacMillan and W. Randall Compton, both of Baltimore, Md. (Semmes, Bowen & Semmes, of Baltimore, Md., on the brief), for appellee. NORTHCOTT, Circuit Judge. This is an action at law brought in the Baltimore City Court of Baltimore, Maryland by. the appellants, F. Leonard Maas and Joseph A. Parker, individually and copartners trading as Maas Construction Company, here referred to as the plaintiffs, against the appellee, the National Casualty Company, a Michigan corporation, here referred to as the defendant. The object of the suit was to recover damages for an alleged libel committed by the defendant. The action was removed to the District Court of the United States for the District of Maryland. After removal an amended declaration was filed by the plaintiffs and pleas were filed by the defendant, to which plaintiffs replied. On December 16, 1937, the case was called for trial and a jury was selected and sworn. Before any evidence was taken the trial judge suggested that the pleas and replication be withdrawn and that a demurrer to the declaration be filed. To this suggestion the attorneys for both the plaintiffs and the defendant consented and a demurrer to the declaration was filed on behalf of the defendant. After argument the court sustained the demurrer and entered judgment for the defendant with costs. From this action this appeal was brought. The declaration alleged that the plaintiffs were engaged in the business of general contractors and had in the year 1934 contracted with the Board of Regents of the University of Maryland for the construction of a building at College Park, Maryland. That the defendant became surety under the contract. That while plaintiffs were engaged in constructing said building the defendant sent to the said Board of Regents the following telegram: “University of Maryland “College Park, Maryland. “Because of no information from Maas indicating that money from Womans Dormitory contract bonded by us is going to be used for no purpose other than payment bills this job we must continue our request that you make no payments to Maas without our consent (stop) Please wire your intention “National Casualty Company “E. M. Kincy.” The declaration further alleged that this telegram was maliciously intended to reflect on plaintiffs’ actions in connection with the contract and caused them to sustain loss and damage to their business and reputation “not only with the said Board of Regents of the University of Maryland but also with the public at large.” Two questions are presented for consideration. First: Were the words used in the telegram libelous per se? Second: If the words were not libelous per se was there a sufficient allegation of special damage ? We are of the opinion that both questions must be answered in the negative. The telegram was sent by an officer of the defendant in a perfectly legitimate and proper effort to insure it against loss, as surety on plaintiffs’ bond, and it is only by innuendo that any meaning can be read into the words used that would make them libelous per se. The rule as to innuendoes is well stated by Judge Soper, now of this court, in the case of Phillips et al. v. Union Indemnity Co., 4 Cir., 28 F.2d 701, where he said (page 702) : “It is familiar law that while the office of the innuendo is to connect the defamatory matter with the other facts set out, so as to show the meaning and application of the charge, it cannot enlarge or restrict the natural meaning of the words, or introduce new matter. It cannot be used to give a forced and unnatural construction and application of the words, but only a reasonable and natural construction and application. * * * Furthermore, since the injurious character of the publication and the harm done to the plaintiff depends upon the manner in which the writing is understood by those to whom it is uttered, it must be read and construed in the sense in which the reader would ordinarily understand it; and if, when thus considered, it cannot reasonably be interpreted as defamatory, it will not serve as a basis for the action. Washington Post Co. v. Chaloner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987; Baker v. Warner, 231 U.S. [588], 594, 34 S.Ct. 175, 58 L.Ed. 384.” See, also, Flaks v. Clark, 143 Md. 377, 122 A. 383; Newbold v. J. M. Bradstreet & Sons, 57 Md. 38, 40 Am.Rep. 426; Stannard v. Wilcox & Gibbs Sewing Mach. Co., 118 Md. 151, 84 A. 335, 42 L.R.A.,N.S., 515, Ann.Cas.1914B, 709. There is no charge in the telegram that plaintiffs were doing anything illegal or anything they did not have a right to do under, their building contract and no dishonest or improper motive is imputed to them. It is well settled that the question whether the words are libelous per se is one of law for the court (Phillips v. Union Indemnity Co., supra, and authorities there cited) and it is only when the language is susceptible of two meanings that the ques-lion is one for the jury. Here the words used are plain and unambiguous and do not support the innuendo as claimed by the plaintiffs. It is apparent from a reading of the declaration that there is no adequate allegation of special damages. The rule is stated in 86 A.L.R. 848 as follows: “In a great number of cases it has been held that, where the plaintiff alleges special damage by reason of the defamatory publication, which, although it is not actionable per se, damages him in his business, trade, or profession, the loss of customers, contract, sales, patients, or clients, the particular contracts, sales, customers, patients or clients lost must be alleged as a prerequisite to recovery of special damages.” See, also, Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; 37 C.J. 38. The demurrer was properly sustained and the judgment of the court below is affirmed. Affirmed.

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

WHITLEY v. POWELL et al. No. 5503. Circuit Court of Appeals, Fourth Circuit. Dec. 23, 1946. Hill Yarborough, of Louisburg, N. C., and John H. Zollicoffer, of Henderson, N. C., for appellant. Murray Allen, of Raleigh, N. C., for ap-pellees. Before PARKER, SOPER, and DOBIE, Circuit Judges. PARKER, Circuit Judge. This is an appeal by plaintiff in a crossing accident case from a judgment under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, dismissing the action at the conclusion of her testimony on the ground that, on the facts and the law, she had shown no right to relief. The case was heard by the judge without a jury;-and an initial question presented for our consideration is the rule of decision applicable on review. Defendant contends that the action of the lower court must be reviewed as though findings of fact had been made under Rule 52(a) and may not be reversed unless clearly erroneous. We think it clear, however, that rule 52(a) applies where the judge finds the facts upon the submission of the case to him for judgment, not where he enters an involuntary dismissal under rule 41(b) or directs a verdict under rule 50, and that the rule applicable upon appeal in these latter cases is whether or not the evidence shows a right to relief when considered in the light most favorable to the party against whom the motion for dismissal or directed verdict has been allowed. The rule stated applies where the case in which dismissal is granted has been heard by the judge without a jury as well as where the trial has been by jury; for the motion challenges, not the weight of the evidence, but its sufficiency, assuming it to be true with all proper inferences drawn in favor of the party relying upon it. For this reason, no finding of facts is made by the judge in granting the motion, but simply a ruling „ that plaintiff has shown no right to relief. If there is reversal as to this, the appellate court does not 'find the facts itself, as upon the reversal of findings, but remands the case for further trial. See Federal Deposit Ins. Corporation v. Mason, 3 Cir., 115 F.2d 548, 551; Schad v. Twentieth Century Fox Film Corporation, 3 Cir., 136 F.2d 991, 993; Moore’s Fed.Practice, vol. 3, p. 3044. We are advertent to the fact that, in some Circuits, it has been held that, where a case is heard before a judge without a jury, he may on a motion to dismiss evaluate the testimony and grant the motion on the merits; but in such case specific findings must be made, and it is these findings which are reviewed under the rule which defendant seeks to invoke. Whether such practice should be given the sanction proposed by the suggested amendment to rule 41(b) (See Federal Rules Decisions, Vol. 5, p. 465) it is not necessary here to inquire. It is sufficient to'say that no attempt to adopt the practice was made in this case; and, in the absence of a change in the rule, we do not think it appropriate for the judge to find the facts on a motion to dismiss under rule 41(b). This should be done only after both sides have rested and submitted the case for judgment on the merits. Defendant can do this at the conclusion of plaintiff’s case, if he so desires; but he should not be held to have done so merely by making a motion to dismiss, which he does without waiving the right to introduce further evidence. We decide the question of practice because it is raised in the briefs of counsel and is one of considerable importance. In the case at bar, however, we are of opinion that, under the rule that the evidence must be considered in the light most favorable to plaintiff, the judgment dismissing the case was correct and should be affirmed, as the evidence, when so considered, was not sufficient to show a right to relief on the part of plaintiff. The evidence shows that the crossing accident upon which plaintiff’s claim is based occurred around one o’clock in the morning of December 7, 1941, in the town of Frank-linton, N. C., where Mason Street crosses the tracks of the Seaboard Air Line Railway. Plaintiff was riding in her own car, which was being driven for her by a friend, one Bud Noble. The tracks of the railway run north and south at the crossing, Mason street east and west; and the car was struck as it was proceeding eastward across the tracks by a passenger train approaching from the south. There were four tracks at the crossing and that on which the train was traveling was the main line track, or the third track to be reached by one traveling eastward on Mason Street. The first track is a house or spur track, and between it and the main line track is what is known as a pass track. From the west rail of the main line track to the pavement west of the crossing is a distance of 37 feet, to the west rail of the spur track 32 feet, and to the east rail of the pass track 18 feet. A person traveling in an easterly direction can see ISO or 200 yards to the south when he reaches the first rail of the spur track, 700 feet to the south when he reaches the second track. The passenger train which was in collision was the Silver Meteor, one of the streamliners of the Seaboard, traveling, in violation of a municipal ordinance, at a speed of around 60 miles an hour. There was evidence that it did not blow the whistle or ring the bell for the crossing; but its headlight was burning brightly and it was making so much noise that it was heard by a witness in an office 150 yards distant with the doors and windows closed. Plaintiff was sitting on the right side of the seat of her car beside the driver; and she testifies that the car stopped at the first track on reaching the crossing and that she looked and saw the light of the approaching train. The driver then started ahead and was on the main line track when the car stalled. The driver thereupon jumped out of the car and escaped injury but plaintiff failed to get out. There is nothing to indicate that the driver, who has died in the meantime, did not see the light of the approaching train when it was seen by plaintiff and was plainly visible to the driver. The evidence as to speed and the failure to give crossing signals establishes negligence in the operation of the train, but not that this negligence was the proximate cause of plaintiff’s injury. On the contrary it is clearly shown, we think, that the sole cause of the injury was the negligence of driving in front of a train which the driver of the car must necessarily have seen and heard. It is well settled in North Carolina, as elsewhere, that negligence which is not the proximate cause of an injury does not give rise to a cause of action. Smith v. Sink 211 N.C. 725, 192 S.E. 108; Sherwood v. Southeastern Express Co., 206 N.C. 243, 173 S.E. 605, 607, and cases cited. If the negligence in the operation of the train be considered as one of the causes of the collision, however, there can be no question as to the driver of the car being guilty of contributory negligence. Godwin v. Atlantic Coast Line R. Co., 202 N.C. 1, 161 S.E. 541; McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880, 881. The case last cited involved a collision at this same crossing; and what was said by the Supreme Court of North Carolina in affirming a judgment of non-suit in that case is particularly appropriate here. The Court said: “When he approached the railroad plaintiff knew he was entering a zone of danger. He had timely opportunity to see the approaching train and to stop before reaching the live track. He did see, and seeing, chose to attempt to cross ahead of the train —to ‘beat it across’ while watching it approach out of the corner of his eye. He took his chance and lost. “Hence, the evidence, as it appears in the record before us, even when considered in the light most favorable to him, leads to the conclusion as a matter of law that plaintiff was contributorily negligent. * * * If he looked and saw when he was on the first track he had ample time and distance within which to stop. If he did not look, after passing the building, until he reached the second track his looking was not timely. And even then he was more than 15 feet from the point at which his automobile was struck.” As the car was being driven for plaintiff, who had the right to control the driver in its operation and would have been responsible to a third person for his negligence, there can be no question but that his contributory negligence was imputable to her. Beck v. Hooks 218 N.C. 105, 10 S.E.2d 608; Baird v. Baird 223 N.C. 730, 28 S.E.2d 225, 226; Harper v. Harper 225 N. C. 260, 34 S.E.2d 185, 189, 190. The rule applicable is stated by the North Carolina Supreme Court in the case last cited as follows: “The owner of an automobile has the right to control and direct its operation. So then when the owner is an occupant of an automobile being operated by another with his permission or at his request, nothing else appearing, the negligence of the driver is imputable to the owner. * * * In determining whether the doctrine applies, the test is this: Did the owner, under the circumstances disclosed, have the legal right to control the manner in. which the automobile was being operated — was his relation to its operation such that he would have been responsible to a third party for the negligence of the driver? 38 Am.Jur. 931. If the owner possessed the right to control, that he did not exercise it is immaterial.” There was testimony to the effect that plaintiff was a moron with an intelligence no greater that that of a twelve year old child; and it is argued that for this reason the negligence of the driver should not be imputed to her. No authority is cited in support of this proposition, and we know of none. Plaintiff cites decisions to the effect that the contributory negligence of a parent is not imputable to a child injured by the negligence of another; but these cases are manifestly not in point. Plaintiff, although not of a high order of mentality, was not a child, but a person of full age and sui juris. She had legal right and power to appoint an' agent or servant, and there was no reason why she could not assume toward Noble, with respect to the operation of the automobile, a relationship to which, in the language of Harper v. Harper, supra, “the law of agency is applied.” It is argued that plaintiff herself was guilty of contributory negligence in allowing Noble to drive in front of the approaching train; but in view of what has already been said we need not go into this. There was no error, and the judgment appealed from will be affirmed. Affirmed. See Young v. United States, 9 Cir., 111 F.2d 823; Mateas v. Fred Harvey, 9 Cir., 146 F.2d 989; Gary Theatre Co. v. Columbia Pictures Corporation, 7 Cir., 140 F.2d 891; Bach v. Friden Calculating Mach. Co., Inc., 6 Cir., 148 F.2d 407.

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

Sanford P. WILSON and The Wilson Investment Company, a New Mexico corporation, Appellants, v. C. P. WILLIAMS, Paul S. Williams, Rycade Oil Corporation, a corporation, and Frank J. Barnhisel, Appellees. C. P. WILLIAMS and Cordelia Pearl Williams, Executrix of the Estate of Paul S. Williams, deceased, Cross-Appellants, v. Sanford P. WILSON and The Wilson Investment Company, a New Mexico corporation; Rycade Oil Corporation, a corporation; and Frank J. Barnhisel, Cross-Appellees. Nos. 5031, 5026. United States Court of Appeals Tenth Circuit. May 13, 1955. James F. Haning, Wewoka, Okl., for appellants and cross-appellees. C. Harold Thweatt, Oklahoma City, Okl. (Embry, Crowe, Tolbert, Boxley & Johnson, Oklahoma City, Okl., was with him on the brief), for Rycade Oil Corp. A. G. C. Bierer, Jr., Guthrie, Okl. (Bierer & Moser, Guthrie, Okl., and G. O. Wallace, Wewoka, Okl., were with him on the brief), for appellees and cross-appellants. Before BRATTON, HUXMAN and PICKETT, Circuit Judges. BRATTON, Circuit Judge. This was an action instituted by Sanford P. Wilson and The Wilson Investment Company against C. P. Williams, Paul S. Williams, Rycade Oil Corporation, and Frank J. Barnhisel. Paul S. Williams died during the pendency of the action and the executrix of his estate was substituted party defendant. For convenience, Sanford P. Wilson and The Wilson Investment Company will be referred to as the Wilsons, C. P. Williams and Paul S. Williams as the Williams, Rycade Oil Corporation as Rycade, and Frank J. Barnhisel as Barnhisel. The Wilsons and the Williams entered into a written contract, a copy of which was. attached to the complaint. The contract provided among other things that the Wilsons owned an undivided ten-acre mineral interest, referred to as the Lowe lease; that they owned the drill site of the first well on such lease; that they owned the lease on another tract, referred to as the Reed lease; and that they owned certain physical equipment located at the drill site of Lowe No. 1 well, consisting of a pump unit, casing, tubing rods, clamps, and other incidental personalty. It further provided that the Wilsons waived and released to the Williams all claim to the Lowe lease; that they would assign to the Williams all their right, title, and interest in the Reed lease; and that they would convey to the Williams by proper mineral deed their title in an to the ten-acre mineral interest; that the Williams would within sixty days commence a well at a location on the acreage received by them by assignment or on the Reed lease, and would drill the well with diligence to the Wilcox sand at the approximate depth of 4,300 feet, unless a paying well were found at a lesser depth; and that they would pay to the Wilsons $3,500, of which $250 was paid upon the execution of the agreement and the balance of $3,-250 should be paid upon the execution and delivery of the assignments and the mineral deed. It further provided that the value of the equipment referred to was $20,000; that the Williams were given the right and option at any time within 120 days to secure title and possession of such equipment by paying to the Wil-sons $10,000 in cash and executing to the Wilsons a sales contract covering the balance of $10,000, such balance to be paid at the rate of $750 per month; and that until such equipment was fully paid for it should be used only on the block of leases referred to in the agreement. It further provided that in the event the proposed well failed to produce and was abandoned and the Williams had no further need for the equipment, then within sixty days from date of notice, the Wilsons might take possession of such equipment by paying to the Williams the sum of $6,577.76, that being the amount which the Williams had paid to the Ash-land Oil & Refining Company; that Barnhisel then held the lien upon such equipment securing that sum; and that upon payment of such sum the Williams would have no further claim or interest in the equipment. And it further provided that the Williams should execute to the Wilsons an oil-payment assignment in the amount of $50,000, payable out of the working interest in the leasehold estates referred to in the agreement. It was alleged in the complaint that the Wilsons had done and performed everything required of them under the agreement; that the Williams exercised their option to purchase such equipment by taking possession of the casing and tubing and using it in the drilling of the Aubrey No. 1 well on a tract of land near the premises described in the contract; that the Williams had failed and refused to pay therefor the $20,000 or any part thereof provided in the contract; and that the Wilsons had filed a lien statement in Seminole County. It was further alleged that to prevent theft, destruction, and deterioration thereof, the Wilsons took possession of the pumping unit, pump, certain rods, and other items of equipment which the Williams had permitted to lie out in the open on the leasehold estates; that with the knowledge, consent, and agreement of the Williams, the Wilsons had sold such property for $6,406.26; and that therefore in the event judgment should be rendered for the Wilsons it should be for $13,593.-74. It was further alleged that the Aubrey No. 1 well was finally proved to be a nonproducer and was abandoned; that the Wilsons exercised the option given them in the contract to repurchase the equipment; that the Wilsons were the owners of all equipment described in the agreement; and that the Williams failed and refused to give the Wilsons possession thereof. It was further alleged that the Williams were indebted to the Wil-sons in the amount of $20,000, less a credit of $6,577.76 paid by the Williams to the Ashland Oil & Refining Company. And it was further alleged that Rycade claimed some lien, right, title, or interest in and to the casing and tubing which was junior and inferior to the right, title, and interest of the Wilsons. Adapting itself to the facts as thus pleaded, the prayer was in the alternative. By answer, the Williams admitted certain allegations contained in the complaint and denied others. And they pleaded affirmatively that the Wilson Investment Company did not have capacity to bring the action for the reason that it was a foreign corporation doing business in Oklahoma without having been domesticated in that state. And by separate answer, Rycade admitted that some of the casing and tubing referred to in the contract between the Wilsons and the Williams was placed in the Aubrey No. 1 well; and admitted that the Wilsons wrote the letter undertaking to exercise their option to retake possession of the equipment. The court found and determined among other things that the Williams exercised their option to purchase the equipment for $20,000; that thereupon they became indebted to the Wilsons in that amount; that the casing and tubing were subject to a conditional sales lien for the balance of the purchase price from Ashland Oil and Refining Company; that the Williams paid such balance to the Ashland Company; that the lien stood in the name of Barnhisel, who held it for the benefit of the Williams; that the Williams contracted with Rycade to drill a well; that the Williams represented to Rycade that they were entitled to acquire such equipment; that the casing and tubing were used in the drilling of the Aubrey No. 1 well; and that the casing still remained in such well. The court further found that the Wilsons repossessed the surface equipment at the Lowe No. 1 well and sold it privately for $6,406.26; that they took possession of the tubing at the Aubrey No. 1 well and sold it for $2,400; that the Williams were entitled to three credits upon their obligation to the Wilsons in the sum of $20,000, one for $6,406.26 being the amount which the Wilsons received for the property taken from the Lowe well site, one for $2,400 being the amount received for the tubing taken from the Aubrey well and sold, and one for $6,-577.76 being the amount of the balance due on the sales lien of the purchase price from the Ashland Company. After allowing the three credits, the balance due on the agreed purchase price of the equipment was $4,615.98. Judgment was entered in favor of the Wilsons against the Williams for that amount, and a lien therefor was established against the balance of the equipment. The Wilsons appealed; and the Williams perfected a cross appeal. The Wilsons challenge the judgment on the ground that the court erred in not rendering judgment in their favor as provided in paragraph 6 of the contract, and for possession of the equipment as provided in paragraph 7. Paragraph 6 gave to the Williams the option to secure title and possession of the equipment for $20,000, and that option was exercised. Upon the exercise of such option, title to the property vested in the Williams, and the Williams became indebted to the Wilsons in the sum of $20,000. Paragraph 7 vested in the Wilsons the right to take possession of the equipment in the event the proposed well failed to produce and was abandoned and the equipment was not needed for the drilling of other wells on the leasehold estates. And'it required the Wilsons, upon the exercise of such right, to pay the Williams the sum of $6,577.76 representing the balance of the purchase price paid to the Ashland Company. It was alleged in the complaint that the Wilsons did exercise their option to repurchase or reacquire the property and that thereupon title vested in them. In their answer, Williams did not admit that allegation. On the contrary, it was denied. The evidence adduced upon the trial is not in the record, and the court did not find that the option of the Wilsons to repurchase or reacquire the property was exercised. In short, the record before us fails to contain any showing that the Wilsons ever repurchased or reacquired the property. While title was in the Williams, the Wilsons sold some of the equipment for $6,406.26; sold some for $2,400; and retained unto themselves the proceeds of both sales. And under the contract as we construe it, the Wil-sons were obligated to reimburse the Williams for the balance of the purchase price which the Williams paid to the Ashland Company. But they failed to do that. Based upon clear principles of •equity, it seems manifest that the Williams were indebted to the Wilsons in the sum of $20,000; and that the Wilsons were obligated to the Williams in the sums of $6,404.26, $2,400, and $6,577.76, respectively, leaving a net balance due the Wilsons of $4,615.98. To argue that the Williams were not entitled to such credits is neither demonstrable nor realistic. The Wilsons advance the further contention that the court erred in not. rendering judgment against Rycade for $10,200. It is argued in support of the-contention that Rycade knew of the existence of the contract between the Wilsons and Williams; that with such-knowledge it took and used the casing- and tubing; that by taking and using-such property, Rycade benefited from the contract between the Wilsons and the-Williams; and that it thereby rendered, itself liable to the Wilsons for the value-of such property, established in the contract at $10,200. Rycade was not a party to the contract between the Wilsons, and the Williams, and it never expressly-obligated itself to pay the Wilsons anything. With knowledge of the existence-of the contract, and relying upon the representation of the Williams that they-owned and had a right to dispose of the-casing and tubing from the Lowe No. 1 well, Rycade received from the Williams, some or all of such casing and tubing- and used it in the drilling of the Aubrey No. 1 well. But Rycade did not expressly adopt the contract between the Wilsons, and the Williams, and it did nothing-which constituted an implied obligation to pay the Wilsons the contract value for-any part of the equipment. The Wilsons-did not seek to recover against Rycade for the reasonable market value of the casing or tubing, or the reasonable value of its use. And there is no suggestion in the record that evidence was introduced tending to establish such value. Coming to the cross appeal, the Williams contend that The Wilson Investment Company was a foreign corporation; that it was not domesticated in Oklahoma; that it was engaging in business in that state; and that it could not maintain the action. Title 18, section 1.201, Oklahoma Statutes 1951, provides in presently material part that a foreign corporation which has engaged in or transacted, or is engaging in or transacting, business within the state, either before it shall have become domesticated or -after its certificate of domestication has been cancelled or revoked, shall not be permitted to maintain any action in any court of the state until a certificate of domestication, or another such certificate, as the case may be, has been issued to such corporation. Under the plain command of the statute, a foreign corporation must comply with its provisions as a condition precedent to the maintaining of an action in the courts of Oklahoma. Goodner Krumm Co. v. J. L. Owens Manufacturing Co., 51 Okl. 376, 152 P. 86. And where a foreign corporation is thus barred from maintaining an action In the courts of a state until it has obtained a certificate of domestication, it cannot maintain an action in the United States Court within the state without having obtained such a certificate. Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524. But in order to avail themselves of the bar contained in the statute, it was incumbent upon the Williams to plead and prove that The Wilson Investment Company was a foreign corporation; that it had not been domesticated in Oklahoma; and that it had engaged in or transacted, or was engaging in or transacting, business in that state. Dime Savings & Trust Co. v. Humphreys, 175 Okl. 497, 53 P.2d 665. It was stipulated that the foreign corporation was organized under the laws of New Mexico, and that it had never domesticated in Oklahoma. But it was not stipulated that the corporation had engaged in or transacted, or was engaging in or transacting, business in the state. It appeared from the face of the contract between the Wilsons and the Williams that the corporation owned an interest in the leasehold estates and drilling equipment described in such contract. But the mere taking of title to such property and the passive ownership of it did not constitute engaging in or transacting business in Oklahoma. United States v. Hotchkiss Redwood Co., 9 Cir., 25 F.2d 958; Bruun v. Hanson, 9 Cir., 103 F.2d 685, certiorari denied 308 U.S. 571, 60 S.Ct. 86, 84 L.Ed. 479; Chittim v. Belle Fourche Bentonite Products Co., 60 Wyo. 235, 149 P.2d 142. It also appeared from the contract that the corporation had been a party to a drilling or mining venture in Oklahoma which consisted of the "drilling of a well. But engaging in business or transacting business in Oklahoma means the doing or performing of a series of acts which require time, attention, and labor, for the purpose of livelihood, profits, or pleasure; and the doing of a single act of business in the state does not constitute the doing of business there within the intent and meaning of the statute, supra. Fuller v. Allen, 46 Okl. 417, 148 P. 1008; Denison v. Phipps, 87 Okl. 299, 211 P. 83; Barnett v. Aetna Explosives Co., 96 Okl. 132, 220 P. 874; Dime Savings & Trust Co. v. Humphreys, supra; Metal Door & Trim Co. v. Hunt, 170 Okl. 240, 39 P.2d 72, 101 A.L.R. 350; Central Life Assurance Society v. Tiger, 177 Okl. 108, 57 P.2d 1182. The Williams failed to discharge the burden of showing that the foreign corporation had engaged in or transacted, or was engaging in or transacting, business in Oklahoma. The second contention urged on the cross appeal related to the credit of $2,400 for the tubing which the Wilsons sold. It is argued that in a schedule attached to the contract between the Wilsons and the Williams the tubing was listed as having a value of $4,200; and that credit should have been allowed for that amount rather than the amount for which the Wilsons sold it. Almost two years intervened between the date of the contract and the date on which the Wilsons sold the tubing. During that interim, the tubing had been used in the drilling of the Aubrey No. 1 well. And there is no indication in the record that the property was in the same condition or of the same value at the time of the sale that it was at the date of the contract. With time and use, it may have deteriorated in quality with resulting diminution in value. The Williams were entitled to credit for the reasonable market value of the property at the time it was taken and sold, not the value specified in the schedule attached to the contract. The judgment is affirmed.

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

TAYLOR v. BURR PRINTING CO. Circuit Court of Appeals, Second Circuit. May 14, 1928. No. 256. 1. Contracts <§=53, 93(1) — Inadequacy as consideration of want advertisements plan or Inattentiveness of defendants held not ground for annulment. Defendants contracting to pay plaintiff certain sum in consideration of delivery of printed plan for securing classified want advertisements are not entitled to annulment of contract because plan was not an adequate consideration for contract, nor because they were inattentive to its terms, or did not properly examine it. 2. Contracts <§=94(2) — Plaintiff’s false representation that he was still publisher of paper held to justify defendants’ repudiating contract to pay for want advertisements plan. Where defendants contracted to pay plaintiff certain percentage of gross revenue for plan for securing classified want advertisements, plaintiff’s false representation that he was still the publisher of a paper, and that plan was used by such paper, was a relevant statement of existing fact, justifying defendants in repudiating the contract. 3. Contracts <3^=266(2)— Defendants held not barred from annulling, for fraud, contract for want advertisements plan because not returning plan to plaintiff. Defendants, contracting to pay plaintiff certain sum for printed plan for securing classified want advertisements, were not barred from annulling contract on discovering false representations by plaintiff because not returning the copy of the plan received, since all that plaintiff could demand is that defendant should not disclose its contents, and, if it be still in existence, deliver it to plaintiff. 4. Sales <@=^38 (2) — Buyer may rescind if seller’s false statement of existing fact induced buyer’s acceptance, without proving seller’s guilty knowledge. When a seller makes a false statement of some existent fact as an inducement to the buyer’s acceptance, the buyer may rescind without proving the seller’s guilty knowledge. 5. Contracts <3?=>94(l)-~Defendants held entitled to annulment of contract to pay for want advertisements plan because of plaintiff’s misrepresentation that plan had made certain paper supreme. Misrepresentation by plaintiff, suing for accounting upon contract, whereby defendant agreed to pay plaintiff certain sum in consideration of delivery of printed plan for securing classified want advertisements, that plan had been a success in a newspaper of which plaintiff had been publisher, and had made sueh paper the supreme paper of the city, held to have been made by plaintiff with an utter indifference to truth, entitling defendant to annul contract. Appeal from the District Court of the United States for the District of Connecticut. Suit by Thomas D. Taylor against the Burr Printing Company. Decree for defendant, and plaintiff appeals. Modified, and affirmed. The bill was for an accounting upon a contract under which the defendant, a newspaper publisher, in consideration of the delivery to it of a printed plan for securing classified want advertisements, agreed to pay to the plaintiff 10 per cent, of its gross revenue from sueh advertisements for a period of 10 years. The contract was executed on October 4, 1920, by a vice president of the defendant, and was repudiated within a few days on the ground, among others, of misrepresentations made in procuring its execution. The plaintiff — who was the originator of the plan, which he carefully kept secret — between November, 1915, and the spring of 1917, had been the publisher and manager of the Evening Telegraph, a Philadelphia newspaper, upon which in March, 1916, he put into operation the plan which he later sold to the defendant. There was a dispute as to whether this had ever worked to the advantage of the paper, but at the end of little more than a year after it was'first used the plaintiff was forced out as publisher, and relegated to a subordinate position, and the plan was abandoned. His salary was paid until June 24, 1918, shortly after which the paper was sold to the Philadelphia Public Ledger and disappeared. On October 4, 1920, over two years after the extinction of the Telegraph, the plaintiff appeared at the offices of the defendant at Hartford, Conn., after some preparatory correspondence in August. He had an extended interview with two of its officers, and obtained their signatures upon the contract in question, the consideration for which on his side was the delivery of a copy of the plan, with some ancillary forms, coupled with covenants to advise with the defendant by mail in its use, and not to give it to any other paper in Hartford. The witnesses for the defendant swore that at this interview the plaintiff used a card of introduction on which his name appeared as publisher of the Telegraph, and that he gave them to understand that the plan was still in successful use, and had made it the “supreme” paper of the city in this kind of advertising. The plaintiff and his son (whose presence at the interview was however disputed) agree that he spoke of the success of the plan when in use by the Telegraph, but denied that he used such a card, or that he gave the defendant to suppose that the plan was still in operation. The learned judge found that the plaintiff represented that he was then the publisher of the paper, that the plan had made it “supreme” in Philadelphia, that the defendant had relied upon these representations as inducements to enter into the contract, and that they were false. He also held that the plan was not an adequate consideration for the contract, as it was unintelligible and would not do what the plaintiff claimed for it. William E. Holloway, of New York City, and Albert Smith Faught, of Philadelphia, Pa., for appellant. Robinson, Robinson & Cole, Edward W. Broder, and John C. Blackall, all of Hartford, Conn., for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge (after stating the facts as above). We cannot agree with the learned judge in. substituting for the judgment of the defendant his own estimate of the value of the plan. Assuming that Chamberlin and Linton, the defendant’s representatives, had opportunity to examine it to their satisfaction on October 4, 1920, and that Taylor did not misstate its contents, their acceptance was final, and forbids a court to appraise its value by any standards of its own. These men were not children, but seasoned in their business, and, if they chose to enter into an improvident contract, any resulting loss is as much to the account of their principal as in any other 'ease. If they allowed themse’ves to be beguiled by Taylor’s praise of his work and his salesman’s talk, they have only themselves to thank for their failure to use more circumspection in important affairs. It is no excuse, either that they were inattentive to the terms of the contract, or that they did not properly examine what they bought. However, if to their carelessness the plaintiff added misrepresentation, the result is, of course, quite different. The District Judge has found that Taylor falsely represented, that he was still the publisher of the Telegraph, and from this, of course, it follows that it was still being published. While this finding is upon disputed facts, we should have no warrant to disturb it upon a record like that before us. Unless the card was stolen (and, indeed, Taylor did not hesitate to charge that it was), it gave the strongest corroboration to the defendant’s version and almost demonstrated its truth. It is quite true that, taken alone, it would not be enough to upset the contract that Taylor had had recourse to such a deceit only to gain an interview with Chamberlin and Linton. The ruse by which he effected an entrance, if it stopped when he got in, was not important; it must have been an inducement to the acceptance of the bargain. But it did not stop there; at least, Chamberlin and Linton said that it did not; and there is no reason to question their word after the judge has accepted it. His talk was throughout based upon the assumption that he was then the publisher, and that the plan was still in operation. This was inevitably so, for otherwise his initial trick would have been exposed. Even if all he said about the success of the plan had been true, it was a material deceit to put it in the present, rather than in the past, where it belonged. Had he told the truth, some inquiry would almost certainly have been made as to why it had not been continued, which would have forced him either into further falsehood, or would have disclosed a situation that might have failed his purposes. At any rate, having undertaken to speak at all, he was bound to give his hearers the facts as they were and to leave it to them to determine whether an experiment then three years old, terminating in the extinction of the paper, would be a satisfactory demonstration of the merit of his wares. He might not deprive them of that opportunity, and insist that it could have made no difference in their ultimate decision; they had the right to the truth, if he meant to use the incident at all. This, therefore, was a relevant misstatement of existing fact, which, when discovered, justified the defendant’s timely repudiation of the contract. The point is raised that the defendant did not return the copy received, but it can hardly be supposed that this particular paper was of any importance to the plaintiff. It was not a unique document, without which he could make no other sales. All that he may at most demand is that the defendant should not pass it on to others, or disclose its contents, and that, if it be still in existence, it be delivered over as a condition of annulment. The judge’s first finding alone is therefore enough to sustain the decree below, and we might rest upon it; but we think that the second is an equally good ground for the same result. The plaintiff’s declaration that the plan had made the Telegraph “supreme” in Philadelphia was amply 'disproved in fact by the testimony of Kirkman, Kelly, Kevin, and Johnson, all apparently disinterested witnesses, whom only the plaintiff and his son contradicted. These witnesses had had personal acquaintance with the Telegraph during the period in question, and said that, instead of being a source of strength to the paper, the plan had greatly embarrassed its affairs. While, when first put into use, it resulted in an enormous increase in advertisements of the kind in question, these soon ran beyond the period when they represented genuine offers find their continuance brought buyers when there was nothing to buy. The paper was thus stuffed with what amounted to false advertisements and lost caste with the public. We need not pass upon the truth of these conclusions; it is enough that the witnesses, who were adepts in the business, concluded that the plan was for these reasons an injury to the paper, and chose to abandon it and the plaintiff. So much was proved by a great preponderance of reliable evidence. Whether the plaintiff’s declaration to the contrary three years later was a fraud does indeed .depend upon something more. Had this been a statement of some existing “fact,” no scienter would have been necessary; this not being an action on the ease for deceit, but a suit in equity to rescind. In spite of the dictum to the contrary in So. Development Co. v. Silva, 125 U. S. 247, 250, 8 S. Ct. 881, 31 L. Ed. 678, we think it settled law that when a seller makes such a declaration as an inducement to the buyer’s acceptance, the buyer may rescind^ without proving the seller’s guilty knowledge. Smith v. Richards, 13 Pet. 26, 10 L. Ed. 42; Turner v. Ward, 154 U. S. 618, 14 S. Ct. 1179, 23 L. Ed. 391; Independent Harvester v. Tinsman, 253 F. 935 (C. C. A. 7); In re American Knit Goods Mfg. Co., 173 F. 480 (C. C. A. 2); Williston, § 1500. In a sense any assertion is a statement of fact even though it be only an opinion. It involves at least, as has often been pointed out, the belief of the utterer in the truth of what he says, Vulcan Metals Co. v. Simmons, 248 F. 853 (C. C. A. 2); and, unless it be such as no one could suppose the hearer would act upon, it may give ground for relief. The distinction depends-up on how far the utterance implicitly presupposes the use of some subjective standard by the utterer. Value, quality, fitness, success, are usually understood as meaning no more than that the objects conform with the declarant’s individual yardstick in such matters. While he may make it clear that his reference is to some commonly accepted measure, ordinarily he does not, and his hearer takes it for more at his peril. Utterances such as those now at bar are in this class. What one man would call a success another might not; there is no certain objective standard to which reference is impliedly made. We think, therefore,, that it was not enough to show that nobody could reasonably have thought that the plan had been successful, or had made the Telegraph “supreme,” if the plaintiff actually thought otherwise. Whether he did touches his own belief, and must always, except in extreme eases, rest in inference. Here we find it very hard to suppose that any one could truly suppose that the plan had done what the plaintiff said. We do not forget that during the month's of January and February, 1917, the paper for the first time had shown a profit, though this was in part accounted for by extraordinary payments made just then; nor do we underestimate the natural bias which an inventor has towards his discovery. Perhaps, if his conduct had been all aboveboard, we should feel bound to give him the benefit of the doubt, even though the sequence upon the successful months proved so disappointing, but his concealment of the full facts touching this very matter, when he did undertake to diselose, seeifis to us to forbid so charitable an interpretation. Moreover, in every case but one in which his earlier efforts with other papers have been disclosed, his plan was shown to have been a failure. That one, a paper in Springfield, Mo., was successful, if the single witness is to be believed; but in Providence, Atlanta, and Minneapolis those papers which tried the plan found it useless and threw it up. It is true that he had since then revised it, and had secured other purchasers in the summer of 1920; but these ventures had not yet been proved, and their success still rested in supposition. At least we can say, and we hold, that, in the face of such experience as he had had up to that time, nothing but an utter indifference to truth could have warranted his saying that the plan had been a success in the Telegraph, or had made “supreme” a paper which was sold out for the value of its press franchise. Therefore we hold that the defendant has made out its case upon this misrepresentation, as well as upon the undoubted one that the paper still continued to use the plan with him as its publisher. It results that the decree! must be affirmed. If the plaintiff wishes, in order to protect his rights and to secure him his share in the rescission, the decree may perpetually enjoin the defendant from disclosing any part of the plan, and direct it to return the copy which it received, if still in. existence, or to insure against its use by others. Decree, as so modified, affirmed.

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

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

INVESTMENT ANNUITY, INC., et al. v. W. Michael BLUMENTHAL as Secretary of the Treasury of the United States et al., Appellants. No. 78-1106. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 14, 1979. Decided Oct. 5, 1979. Richard Farber, Atty., Dept, of Justice, Washington, D. C., with whom M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Leonard J. Henzke, Jr., Attys., Dept, of Justice, Washington, D. C., were on brief, for appellants; Earl J. Silbert, U. S. Atty., Washington, D. C., of counsel. William L. Goldman, Washington, D. C., with whom Herbert L. Awe, Washington, D. C., on brief, for appellee First Inv. Annuity Co. of America. Arthur P. Hartel, Jr., was on brief, for appellee Inv. Annuity, Inc. Before WRIGHT, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges. Opinion for the Court filed by Circuit Judge LEVENTHAL. LEVENTHAL, Circuit Judge: The Internal Revenue Service (IRS) appeals orders of the district court that granted to marketers of investment annuities a judgment declaring erroneous the statutory interpretation contained in Revenue Ruling 77-85 and enjoining IRS from applying it to purchasers of investment annuities. Because we find that the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act bar the relief awarded by the district court, we reverse. I. BACKGROUND The purchaser (or policyholder) of an annuity buys from an insurance company the right to receive periodic payments beginning at a specified date (often the purchaser’s anticipated retirement age) and continuing as long as the policyholder lives. Under a fixed dollar annuity, the policyholder receives a sum certain. Under a variable annuity, the amount of payment varies depending on the investment performance of assets held in a “segregated asset account” rather than in the insurance company’s general asset account. A form of variable annuity, the investment annuity’s salient characteristics, and the ones that occasion the instant controversy, are (1) provision for substantial direction by the policyholder over the investment of assets contained in the segregated account or “custodial account,” and (2) its guarantee of liquidity. The substantive issue presented is whether investment annuities are “contracts with reserves based on a segregated asset account” within the meaning of section 801(g)(1)(B) of the Internal Revenue Code. If they are, income generated by the assets held in the custodial account is taxed to the insurance company at the nominal rates applicable to them. If they are not, the income is currently taxable to the policyholder. Beginning in 1965, IRS, in a series of private letter rulings directed to individual policyholders and to appellees, took the position that income generated by the assets held in custodial accounts was taxable to the insurance company, not the policyholder. The theory was that the company, not the policyholder, “owed” the assets. Sales of the contracts, initially modest, mushroomed when business and financial publications heralded them as permitting taxpayers to avoid taxation on investment earnings while retaining control and liquidity. IRS undertook a reconsideration of its position, eventually reversing it in Revenue Ruling 77 — 85. IRS concluded that retention of substantial incidents of ownership made the policyholder the “owner” of the assets for tax purposes, thereby removing the investment annuity from section 801(g)(1)(B) and making the income currently taxable to the policyholder. In view of policyholders’ reliance on IRS’s earlier determinations, however, IRS “grandfathered” existing contracts, applying its ruling only to new accounts or to existing accounts to which a contribution was made after March 9, 1977. In conjunction with the IRS ruling, state regulatory authorities and the Securities and Exchange Commission (SEC) rescinded their earlier, favorable determinations on the investment annuities marketed by ap-pellees. This effectively prohibited further marketing by appellees, and no investment annuities have been sold by appellees, nor have additional contributions to existing accounts been made, since March 9, 1977. After failing in a bid for congressional intervention, appellees brought this action, seeking declaratory and injunctive relief. The government moved to dismiss on the ground that the Anti-Injunction Act and the tax exemption to the Declaratory Judgment Act deprived the district court of jurisdiction. Appellees countered that because IRS had “grandfathered” existing contracts and because further sales were infeasible, the legality of the IRS’s ruling would otherwise escape judicial review, as there would be no opportunity to test in a taxpayer suit for refund. The District Court agreed with appellees that the pertinent provisions were not “intended to preclude pre-enforcement review of Service actions where the action will otherwise never be subject to judicial review.” J.A. at 175. However, in an order of July 12, 1977, the district court initially refused to maintain the action until appel-lees demonstrated that they had made “all good-faith efforts to stage a ‘friendly’ third-party challenge to Revenue Ruling 77-85.” Id. at 173. The court anticipated the sale of one more investment annuity to a cooperative taxpayer, who could then challenge Revenue Ruling 77-85 in a refund suit. When the state authorities and the SEC declined to accede to this procedure by approving such a sale, the district court, on September 28,1977, held that no third party investment was feasible and denied the government’s motion to dismiss. On November 9, 1977, the court issued a memorandum opinion and order declaring Revenue Ruling 77-85 invalid, and subsequently entered further relief, enjoining the government from applying the ruling to the extent it would increase the tax liability of investment annuity purchasers. II. ANALYSIS We do not pass on the merits of appellees’ claim, for we conclude that this action is barred by the Anti-Injunction Act and the tax exemption to the Declaratory Judgment Act. The Anti-Injunction Act provides unequivocally: No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. The language of the Declaratory Judgment Act exempting all suits “with respect to federal taxes” is, if anything, more restrictive. However, since we have held that the reach of the two Acts is coterminous, our analysis focuses on the Anti-Injunction Act. At the outset, we reject appellees’ contention that the Anti-Injunction Act does not apply because this is not a “suit for the purpose of restraining the assessment or collection of any tax.” Their theory is that there is no interference with the collection of revenue: appellees’ tax liability will increase as the income from the property held in the segregated accounts is attributed to them; present policyholders have been “grandfathered; ” and no further sales of investment annuities have occurred since IRS’s March 9, 1977, ruling. However, ap-pellees’ theory is undercut by their own action in seeking, and obtaining, relief in the form of an injunction against taxing policyholders on the income from investment annuity accounts. That the suit has had no current effect on the collection of taxes is of no import, for its “purpose” is clearly restraint. If appellees were to prevail in this court, they surely would reinsti-tute sales of investment annuities. In that event, the district court’s order would operate to prevent IRS from assessing and collecting taxes called for by Revenue Ruling 77-85. In recent years, Supreme Court decisions examining the Anti-Injunction Act have drummed its central purpose: to protect the government’s ability to assess and collect taxes free from pre-enforcement judicial interference by confined taxpayers seeking review to refund actions. To this end, the Court has given the Act “almost literal effect,” without regard to the harshness of the result. In Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the court concluded that the Act permitted relief from its strictures only where (1) the government could “under no circumstances” ultimately prevail, and (2) where equity jurisdiction was otherwise present. Id. at 7, 82 S.Ct. 1125. A claim that irreparable injury would result from the collection of the tax was not sufficient to overcome the Act’s prohibition, since such a showing, necessary to invocation of equity jurisdiction, satisfied only one prong of the test. Thus, the Court was unmoved by the claim that the challenged collection of taxes could bankrupt it. In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), the Court rejected a contention that there were judicially-created exceptions to the Act other than the “under no circumstances” test. Williams Packing, the Court stressed, was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court’s redisclos-ing of the Act’s purpose. Id. at 742, 94 S.Ct. at 2048. In Bob Jones University and a companion case, Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974), charitable organizations had sought to contest the revocation of their tax-exempt status prior to the assessment of taxes against them. Though recognizing that the denial of tax-exempt status threatened the flow of contributions to the charities, the Court declined to depart from the dual test of Williams Packing. In the instant case, appellees did not seek to persuade the district court that their case came within the Williams Packing exception. J.A. at 174. While appellee Investment Annuity, Inc., makes that contention on appeal, it has failed to meet its burden of demonstrating that, at the time suit was commenced, the government could “under no circumstances” ultimately prevail. This is not a case in which IRS flouted the express terms of the Code, or lacked any factual basis for the assessment of taxes against an individual taxpayer. Rather, the propriety of IRS’s treatment of investment annuities was “sufficiently debatable” to preclude the showing of certain success requisite to invocation of the Williams Packing exception. The principal contention of the appellees is that an exception to the Anti-Injunction Act exists where the practical effect of applying the Act would be to foreclose all judicial review of the challenged action. The district court agreed. Finding that no person could raise the validity of Revenue Ruling 77-85 in a refund suit, the district court held that the Act did not apply and proceeded to reach the merits. Appellees, and the district court, draw their inspiration from dictum in Bob Jones University, supra. The Supreme Court did state: “This is not a case in which an aggrieved party has no access at all to judicial review. Were that true, our conclusion might well be different.” 416 U.S. at 746, 94 S.Ct. at 2050. The government counters appellees’ thesis by arguing that United States v. American Friends Service Committee, 419 U.S. 7, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974), stands for the proposition that the Anti-Injunction Act bars a tax suit even where an aggrieved party is, by operation of the Act, denied all access to judicial review. While Justice Douglas’ dissent in American Friends, 419 U.S. at 14 n.3, 95 S.Ct. 13, did accuse the majority of deciding sub silentio the issue left open by the dictum in Bob Jones University, the majority evidently did not view the case as one in which plaintiffs were denied access to judicial review. The Court emphasized that “. the employees will have a ‘full opportunity to litigate’ their tax liability in a refund suit.” 419 U.S. at 11, 95 S.Ct. at 15 (citátion omitted). In view of the Court’s different perception, we reject the government’s argument that American Friends resolves the question left open in Bob Jones University. Read broadly, however, American Friends does reinforce the message of Williams Packing and its progeny that the Act’s bar is not lightly to be overcome. The clear meaning of Bob Jones University’s reference to Williams Packing as the “capstone” of judicial construction under the Act is that Williams Packing defines the sole basis for judicially-created exceptions to the Act. As a result, we cannot agree with appellees and the district court that the Act and the pertinent precedents countenance a general exception wherever a matter will otherwise escape judicial review. Nevertheless, the Act must yield when the denial of judicial review rises to the level of a constitutional infirmity. This narrower “exception,” not judicially inferred from the statute, but having constitutional roots, may be the implication of the Bob Jones University decision. While the Court barred the further fashioning of statutory exceptions, it did not deny the relevance of due process concerns. The Court’s reference to “a case in which an aggrieved party has no access at all to judicial review” came in the context of its discussion of the University’s claim that postponement of its challenge to the revocation of its tax-exempt status would violate due process. As to this claim, the Court held that the “problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference.” 416 U.S. at 747, 94 S.Ct. at 2051. We take the Court’s dictum as a recognition that the denial of all access to judicial review, as opposed to its postponement, might rise to the level of a constitutional infirmity. But in this, the Court merely reflected established doctrine that a taxpayer may not, consistently with due process, be denied the opportunity for an ultimate judicial determination of the legality of a tax assessment against him. Congress may in some cases restrict judicial review of administrative action, even though the results may have a detrimental impact on their subjects. And, it is clear that not all denials of access to judicial review amount to due process violations. In view of the unambiguous language of the Act, and the Supreme Court’s strict interpretation, any “exception” to the Act necessary to conform it to constitutional standards must be carefully tailored to achieve that end while preserving to the maximum extent the statutory purpose. The Court’s recognition in Bob Jones University that the complete denial of access to judicial review may implicate due process concerns provides no basis for crafting an exception in a case where the denial does not amount to a violation of due process. Here, the injury caused by the shift in IRS’s interpretation of the pertinent statute — a detrimental impact on appellees’ business — does not invade any property interest cognizable under the due process clause. The challenged government action concerned the tax liability of investment annuity purchasers; it did not require appellees to pay taxes and hence there was no government action that directly deprived them of property. Deprivation of property underlies the long-recognized right of taxpayer to judicial review of the assessment of taxes. Nor did the earlier private letter rulings on which appellees relied in building their business create any “legitimate claim of entitlement.” Such rulings express the Commission’s interpretation of the law at the time they are given, and may be taken into account subsequently, but they do not have the force of law and do not bind the Commissioner to adhere to the same position in the future. The fact that the government threatens to deprive a person of his property (by a tax assessment) may have pecuniary impact on a variety of other persons whose fortunes are in one way or another linked to him — his family, suppliers, prospective donees (e. g. colleges hoping for alumni contributions) and prospective coventurers. In some instances the impact may be sufficient to establish that they are “adversely affected” or “aggrieved” for purposes of ordinary doctrine establishing judicial review of agency action. But unless the persons are deprived of their own property, or a common law or statutory right, there is no basis for a claim that government has “deprived” them of property. Our opinion assumes that the district court was correct in its premise, not challenged here, that no alternative methods of judicial review were available. Whether or not this premise stands, the court is without jurisdiction to provide the relief sought or granted. Though this case involves the special statutory provisions relating to tax, a useful perspective is provided by considering it in the more general context of judicial review of agency activity. The “generous” provisions of the Administrative Procedure Act for judicial review have been held to embody a presumption in favor of judicial review that extends — assuming hardship, ripeness and suitability for judicial resolution — even to pre-enforcement actions for injunction or declaratory judgment. The presumption of reviewability of administrative action is subject to exceptions; “except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” There are only a handful of instances where a statute has expressly precluded judicial review, although on occasion the Court has discerned an implied statutory preclusion of review. The exemption for “action committed to agency discretion by law” has been construed narrowly — for cases where there is no law to apply or for extraordinary circumstances, such as those requiring flexibility in managing the resources of national defense. In the tax field there is quintessentially law to apply, and no claim of total withdrawal of issues from judicial review. There are, however, important statutory limitations. Perhaps the extreme case was put by the provision that where there is reason to believe that the assessment or collection of taxes might be endangered by delay, the Commissioner of Internal Revenue may, pursuant to statutory authority and without fear of judicial disapproval, make an immediate jeopardy assessment and require the taxpayer to forward payment or post a bond. This is evocative of the special problems posed by statutory provisions for the summary seizure, condemnation, and destruction of unwholesome food. Apart from such extreme instances, the tax field is marked by the general preclusion of advance declaratory or injunctive relief. Even here, the Court has interposed judicial provenance for cases where the agency strays palpably off the track. This is very like what it has done for cases where judicial review was entirely prohibited, and it identifies a special enclave in administrative law that hearkens to mandamus and the power to enforce “ministerial” duties in case of “clear error.” But such review is reserved for cases “so plainly beyond the bounds... as to warrant the immediate intervention of an equity court.” The court respects the need not to interrupt the flow into the public trove of the tax dollars that are the life-blood of the national government. A “peek at the merits” may guide the judge in determining whether there is available the jurisdiction for clear deviations from legislative instruction, for “[t]he reconciliation of doctrine lies not in concept but in practicalities.” For most tax issues and most taxpayers, a subsequent action for refund adequately safeguards all appropriate concerns. The problem posed to plaintiffs/appellees is that they do not have sole control over their prospective cause of action. The state regulatory authorities and the Securities and Exchange Commission must cooperate by reinstating their earlier favorable determination on the investment annuities marketed by appellees if the cause of action is to materialize. In this important respect, the appellees share the management of their business with the government. This is not a situation where there are no remedies, however. Congress keeps a watchful eye on developments in the tax field, and will listen to citizens with a grievance or plea. It is not necessary for Congress to effect a substantive change in the law. It might, if so disposed, provide the appellees and similarly situated parties with a remedy. Thus the Revenue Act of 1978 • made declaratory judgment available to prospective issuers of certain governmental obligations. Such issuers previously had found themselves in the same position in which the appellees find themselves now. Section 7478 was added to the Code to give the issuers an action for a declaration as to the status of the prospective obligations. So far as judicial remedies are concerned, however, in the absence of constitutional impediment, and we see none, this court must respect the limits placed by Congress on its jurisdiction. The orders of the district court are reversed, and the case is remanded with instructions to dismiss the complaint for lack of jurisdiction. So ordered. . Revenue Ruling 77-85 reversed, prospectively, the prior administrative practice of IRS according favorable tax treatment to purchasers of “investment annuities.” 1977-1 Comm.Bul. 12. . Internal Revenue Code of 1954, § 7421(a), 26 U.S.C. § 7421(a) (1976). . 28 U.S.C. § 2201 (1976). . We therefore reach no decision on the merits, except as necessary to dispose of one exception to the Anti-Injunction Act. . More specifically, the investment annuity operates as follows. An investment annuity contract establishes a “custodial account” with a third party, usually a bank, into which the policyholder pays a minimum amount (in cash or by the transfer of other assets) that he may supplement at any time up to the “starting date” of the annuity. The assets in the account are nominally the property of the insurance company, as they are pledged to the purchase of an annuity. The company also receives a percentage of the assets annually as a premium on an annuity policy, and any assets remaining in the account at the policyholder’s death as a “terminal premium.” The assets in the account are invested at the direction of the policyholder. While investment options are limited to those on an “approved list,” such lists normally include publicly-traded securities, government obligations, certificates of deposit, savings accounts, commercial paper, and life insurance. The policyholder may at any time direct the custodian to sell, purchase or exchange assets held in the account, and to reinvest income. The policyholder also retáins the power to direct the voting of the securities or to exercise any other rights pertaining to the assets. While the assets contained in the custodial account may not be returned directly to the policyholder, full or partial redemption of the annuity policy may be had prior to the starting date. In such a case, the custodian sells the assets and pays the proceeds over to the insurance company, which in turn pays them to the policyholder, less any cash surrender charges. Should the policyholder die before the starting date, the custodial account is liquidated and the proceeds paid to the policyholder’s beneficiaries in the same manner. J.A. at 139-142. . 26 U.S.C. § 801(g)(1)(B) (1976). . Appellee Investment Annuity, Inc.’s only business was the ownership of the shares of First Investment Annuity Company of America (FIAC), which engaged solely in the sale of investment of annuities. Following the government’s notice of appeal, Investment Annuity sold FIAC to IN A Corporation. Except where otherwise noted, we refer collectively to “ap-pellees.” . The advantages were twofold. First, because income from assets held by insurance companies is subject to only nominal taxation, the overall after-tax return on the investment (though offset somewhat by fees to the custodian and insurance company) would, as a result of compounding, be significantly greater than if currently taxed to the policyholder. Second, realization of the income was deferred to a time (e. g., after retirement) when the policyholder would likely occupy a lower tax bracket. These advantages, combined with the retained control over the investment, prompted the financial press to dub the investment annuity the “wrap-around” annuity, because it permitted investors to defer current income merely by “wrapping” an annuity around an existing investment. . The district court rejected the government’s claim of lack of standing, and the government has not pursued the point on appeal. . Appellees also sought an injunction requiring that, even if the government prevailed on appeal, it would nevertheless be required to afford favorable treatment to income arising from contributions made after March 9, 1977 and before resolution of the appeal. When the district court failed to provide such relief in its order of November 9, 1977, appellees filed a motion to it in this court. It was denied on December 9, 1977. The district court’s order of December 8, 1977, expressly provided for retroactive assessment of taxes in the event of a successful appeal by the government. . Internal Revenue Code of 1954, § 7421(a), 26 U.S.C. § 7421(a) (1976). The section does contain certain express exceptions, not here relevant. . 28 U.S.C. § 2201 (1976). . Eastern Ken. Welfare Rights Org. v. Simon, 165 U.S.App.D.C. 239, 244-46, 506 F.2d 1278, 1283-85 (1974), rev’d on other grounds, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); “Americans United’’ Inc. v. Walters, 155 U.S. App.D.C. 284, 290-91, 477 F.2d 1169, 1175-76 (1973), rev’d on other grounds, 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); accord, McGlotten v. Connally, 338 F.Supp. 448, 452-53 (D.D.C.1972) (three-judge court). . Appellees rely on Eastern Ken. Welfare Rights Org. v. Simon, 165 U.S.App.D.C. 239, 245, 506 F.2d 1278, 1284 (1974), rev’cl on other grounds, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), and McGlotten v. Connally, 338 F.Supp. 448, 453-54 (D.D.C.1972) (three-judge court). Those cases are easily distinguishable. In them, the plaintiffs sought to compel IRS to rescind tax-exempt status accorded certain organizations. Because the government would have been required to levy taxes on previously tax-exempt organizations, it was held that the Anti-Injunction Act did not apply. The effect of the decree was to increase the amount of taxes payable. The effect of the decree sought and obtained by appellees was to reduce the total amount of taxes payable, and was plainly a direct restraint on the government’s ability to collect taxes. . Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). The Court has also identified a “collateral objective of the Act — protection of the collector from litigation pending a suit for refund.” Williams Packing, supra, at 7-8, 82 S.Ct. at 1129 (quoted in Bob Jones University, supra, 416 U.S. at 737, 94 S.Ct. 2038); see also Commissioner v. Shapiro, 424 U.S. 614, 628-29, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). . Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). . E. g., Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 23, 76 L.Ed. 517 (1932); see Bob Jones "University v. Simon, 416 U.S. 725, 744-46, 94 S.Ct. 2038, 40 L.Ed.2d 496; Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). . See Commissioner v. Shapiro, 424 U.S. 614, 624-28, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). . Eastern Ken. Welfare Rights Org. v. Simon, 165 U.S.App.D.C. 239, 506 F.2d 1278 (1974), rev’d on other grounds, 426 U.S. 26, 96 S.Ct. 1917 (1976), does nqt preclude our result. The court there did rely on the lack of an “adequate legal remedy” to find that the Act did not apply. Id. at 245, 506 F.2d at 1286. But the basis of our holding in that case was that because the action was, in effect, one to require the collection of taxes by removing the tax-exempt status of certain organizations, the suit fell outside the Act altogether. See note 14 supra. . Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931) (Brandéis, J.) (“Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate.”). . E. g., Southern Ry. Co. v. Seaboard Allied Milling Co., - U.S. -, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (ICC decisions not to investigate proposed rates); Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (ICC suspension decisions). . E. g., DeRodulfa v. United States, 149 U.S. App.D.C. 154, 170-72, 461 F.2d 1240, 1256-68, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972) (veterans’ benefits). . In Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 75 L.Ed. 1289 (1931) (quoted in note 20 supra), the reference to taxpayer’s ultimate opportunity for judicial review is in the context that “property rights are involved.” . Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). . See Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); Wisconsin Nipple & Fabricating Corp. v. Commissioner, 581 F.2d 1235 (7th Cir. 1978). . 5 U.S.C. § 702 (1976). . Roth v. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1974); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). . The Pennsylvania Insurance Commissioner refused to approve an additional sale or contribution, even for the purpose of permitting a test case. The SEC declined to issue a “no-action” letter in view of the Insurance Commissioner’s action. But the Commissioner’s decision was premised on an evaluation that the public interest would best be served by a speedy resolution in the district court. In light of our ruling, the Commissioner may choose to modify his assessment and allow a test case to proceed. . See e. g„ 5 U.S.C. §§ 701, 702 and 706. . Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122 (1969) (en banc). . E. g. the prohibition of judicial review when the I.C.C. has refused to exercise its statutory authority to suspend a rate change for a limited time. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). . See e. g., Switchmen’s Union of North American v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), wherein the Court discerned a Congressional intent to make agency certification of a collective bargaining representative “the last terminal point,” with “no dragging out of the controversy into other tribunals of law.” 320 U.S. at 305, 64 S.Ct. at 99. While the Switchmen’s Court made much of the fact that the agency was doing nothing more than making a finding of fact and that it was not issuing a directive, the statute itself contained the directive; thus, the “finding of fact” was virtually conclusive as to outcome. Nonetheless, even in this context, the Court was unwilling to review agency action where it detected an intent of Congress to preclude such review. . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). . Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122 (1969). The courts will not examine the agency’s action in this “narrow band of matters that are wholly committed to official discretion, and that the inappropriateness or even mischief involved in appraising a claim of error or of abuse of discretion, and testing it in an evidentiary hearing, leads to the conclusion that there has been withdrawn from the judicial ambit

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

Joseph R. ALVERNES, Plaintiff-Appellant, v. SMALL BUSINESS ADMINISTRATION et al., Defendants-Appellees. No. 72-1271. United States Court of Appeals, First Circuit. Argued Nov. 8, 1972. Decided Dec. 19, 1972. Laurent L. Rousseau, Newport, R. I., with whom Francis J. Boyle and Moore, Virgadamo, Boyle & Lynch, Newport, R. I., were on brief, for appellant. Brian G. Bardoff, Newport, R. L, with whom Sheffield & Harvey, Newport, R, I., was on brief, for appellees, Israel M. Resnikoff and David T. Chase. Lincoln C. Almond, U. S. Atty., and' Everett C. Sammartino, Asst. U. S. Atty., on brief for appellee, Small Business Administration. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. ALDRICH, Senior Judge. Simplifying somewhat the facts, plaintiff-appellant was the owner of a parcel of land on which he had granted a first mortgage to the Small Business Administration, having a balance due of $66,-000, and a second mortgage to one Aquid-' neek, with a balance due of $6,800. Plaintiff defaulted on the payments and. the first mortgagee gave notice of a foreclosure sale. Prior to the sale, defendants Resnikoff and Chase, hereinafter defendants, being desirous of purchasing at the sale, agreed with Aquidneck to take care of the second mortgage in return for Aquidneck’s agreement not to bid. Aquidneck abstained at the sale, and defendants bid in the property for $50,000. Plaintiff, alleging that the agreement was unlawful, sought equitable relief to void the sale, or damages. The district court dismissed the bill, having, after a trial, determined that the parties to the agreement were legitimately protecting their interests in the property and that there was nothing fraudulent in the foreclosure sale. In addition, it found that the agreement had not damaged plaintiff, since the evidence showed that the purchase price was at least equal to actual fair value. The parties dispute the relevance, as well as the correctness, of the finding as to value. We hold it irrelevant, and for present purposes assume it to have been inadequate. Plaintiff asserts that the agreement between defendants and Aquidneck stifled free competitive bidding at the sale, thus depressing the price he might have received. For this he cites Fenner v. Tucker, 1860, 6 R.I. 551. There the court held that for a bidder to buy off a person who would have been interested in making a substantial bid, collusively restrained competition and rendered the sale voidable. We agree with that case, and would have followed it quite apart from our obligation to do so under Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The case at bar, however, has distinguishing features. In Fenner, the prospective bidder was a member of the general public who was interested in the property itself; in the present case, as warrantably found by the trial court, Aquidneck, the bought-off bidder, was a mortgage-holder on the property who was interested not in the property but only in protecting its mortgage interest. This finding, and this finding alone, distinguishes the case from Fenner. Had Aquidneck received a bonus for its promise not to bid, Fenner would have been directly applicable. However, since it did not, we have a special situation which does not respond to the Fenner analysis. Cf. Saunders v. Berrong, 1966, Miss., 183 So.2d 637, 640-642. One whose interest is in satisfying his second mortgage rather than in acquiring the property, will be likely to bid at a foreclosure sale only under certain circumstances. In the first place, he will not bid more than the amount of the first mortgage plus his own. Should the bidding rise above this amount he would have no reason to overbid, but, rather, every reason to keep silent and receive his money. In no way, in other words, did Aquidneek’s agreement with defendants restrain anyone, itself included, from bidding above the liens. This, then, must be the ceiling on plaintiff’s claim. On the other hand, to protect his mortgage, and particularly if the mortgagor is not thought good for the debt, a second mortgagee who sees a bid approaching what is due on the first mortgage may find it worth his while to bid up to the amount of his own in order to protect his security, providing, of course, that he considers the property to be worth that price. Thus in our case Aquidneck, absent the agreement, might conceivably have kept the bidding open to $72,800, or $22,800 more than plaintiff received. Because at the oral argument we were not clear as to the nature of the agreement, we inquired whether the fact that it caused Aquidneck not to bid and at the same time left plaintiff liable on the note secured :by the second mortgage affected plaintiff’s claim for relief. Defendants replied that they had no intention, as putative assignees, of proceeding against plaintiff on the note. Since they have backed this disclaimer by filing a stipulation in effect discharging plaintiff of this $6,800 obligation, this aspect of the case, valid or otherwise, has disappeared. Although the stipulation increases plaintiff’s effective recovery on the. sale from $50,000 to $56,800, there remains the question whether he has any complaint regarding the additional $16,-000, representing the difference between the bid price and the full amount due on the first mortgage, which Aquidneck might conceivably have been willing to bid absent the agreement. While we recognize the possibility that plaintiff might have been injured by Aquidneck’s loss of a motive to bid, we hold that plaintiff has no valid complaint. Since the consideration for the agreement was the amount of the second mortgage, and since Aquidneck was interested only in protecting itself, the agreement in total effect was a purchase of the mortgage. The undertaking not to bid merely defined the agreement, and was superfluous to Aquidneck, since in the light of the court’s finding as to the extent of its interest, any motive it might have had to bid against defendants vanished upon receipt of defendants’ promise to pay. To hold that plaintiff could object to this would be to allow the mortgagor to restrict his own mortgagee’s right to collect its debt. Having given the mortgage, and being in default, it cannot lie in plaintiff’s mouth to say that the mortgagee must be restrained in its attempt to recoup, and, particularly, must stand ready to contribute to him as mortgagor. In former days younger daughters had to see that their elder sister was married first, but we do not accept the thought that a second mortgagee is obliged to assist in the satisfaction of the first mortgage before it can realize on its own. Affirmed. . The S.B.A. was originally a defendant, also, no discussion is called for. but its dismissal was so clearly correct that . We cannot but remark that it would have been a much cleaner situation, • and perhaps obviated this litigation, had defendants, in view of their state of mind, become assignees of record of the second mortgage prior to the foreclosure sale.

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

STANDARD ELECTRICA, S. A., Plaintiff-Appellant, v. HAMBURG SUDAMERIKANISCHE DAMPFSCHIFFFAHRTS-GESELLSCHAFT, Defendant-Appellee, and Columbus Lines, Inc., Defendant. No. 252, Docket 30855. United States Court of Appeals Second Circuit. Argued Dec. 8, 1966. Decided April 19, 1967. Eeinberg, Circuit Judge, dissented. Seymour Simon, New York City (Richard T. Graham, New York City, on the brief), for plaintiff-appellant. Wharton Poor, New York City (R. Glenn Bauer, Peter J. Zambito and Haight Gardner Poor & Havens, New York City, on the brief), for defendant-appellee. Before LUMBARD, Chief Judge, and HAYS and FEINBERG, Circuit Judges. LUMBARD, Chief Judge: Libellant Standard Eléctrica, S.A., appeals from a judgment entered by Judge McLean in the Southern District of New York, on August 25, 1966, denying libellant’s motion for summary judgment made pursuant to Rule 58 of the Admiralty Rules of the United States Supreme Court, and dismissing its complaint seeking $13,300 from the defendant-appellee, Hamburg Suda-merikanische Dampfschifffahrts-Gesell-sehaft, as additional damages for the loss of 1,680 television tuners shipped from New York to Rio de Janeiro. The entire shipment consisted of nine “pallets,” each containing six cardboard cartons of 40 tuners. Seven of the nine pallets were never delivered, and ap-pellee has conceded its liability; the only question is the amount of that liability. The parties agree that the provisions of the Carriage of Goods by Sea Act of 1936 (hereinafter COGSA) are applicable, and limit recovery to “$500 per package.” Section 4(5), 46 U.S.C. § 1304(5). The sole issue on appeal, as below, is the meaning of the word “package” for purposes of that limitation. It is libellant’s contention that each cardboard carton qualifies as a package, and that the “palletized” form in which those cartons were received for shipment ought to be regarded as nothing more than a mechanical aid for delivery. Judge McLean held, however, that each pallet constituted a package within the meaning of § 4(5) of the Act. As the defendant had previously paid libellant $3,500, $500 for each of the seven missing pallets, together with interest, libellant’s motion was denied and the libel was dismissed. We agree with Judge McLean’s ruling and affirm the judgment below. The parties stipulated that all of the pallets were made up by the shipper, I. T. T. Export Corporation, in the following manner: As a base there was a wooden platform measuring 39" in length and 33" in width constructed of two floors about 4" apart nailed to three 2" x 4" stringers. On this platform were placed six corrugated fibreboard cartons, each containing 40 T.V. Tuners. The cartons were stacked in three tiers of two cartons each. Each tier completely covered the platform. The dimensions of each of the cartons were: 33% inches long, 19 inches wide and 12% inches high. Each carton weighed 60 pounds with 40 TV Tuners packed inside. Over the top tier of these cartons was fitted a wooden deck approximately % inch thick, the same width and length as the platform upon which the cartons were placed. The purpose of the top wooden deck was to prevent other cargo and the straps from cutting into the top two cartons. Four metal straps % inch wide were fitted over the top of the wooden deck, down the sides of the cartons and underneath the platform where their overlapping ends were fastened tightly together with metal seals. Two of these straps ran lengthwise and two ran crosswise. When bound together with the metal straps the dimensions of each pallet were 39" in length, 33" in width and 42" in height. The gross weight of each pallet was 380 lbs. When COGSA was enacted in 1936, it had as its central purpose the avoidance of adhesion contracts, providing protection for the shipper against the inequality in bargaining power. See Gilmore & Black, Admiralty 125-126 (1957); Caterpillar Overseas, S.A. v. S.S. Expeditor, 318 F.2d 720, 722 (2 Cir. 1963); Jones v. The Flying Clipper, 116 F.Supp. 386, 388-389 (S.D.N.Y. 1953). Section 4(5) provided that the carrier may not reduce its maximum liability below $500 per package or unit. See also 46 U.S.C. § 1303(8). At the same time, § 4(5) cast upon the shipper the burden of declaring the nature and value of the goods, and paying a higher tariff, if necessary, if he wished to impose-a higher liability upon the carrier. See Caterpillar Americas Co. v. S.S. Sea Roads, 231 F.Supp. 647 (S.D.Fla. 1964), aff'd, 364 F.2d 829 (5 Cir. 1966); also Morrisey v. S.S. A. & J. Faith, 252 F.Supp. 54 (N.D.Ohio 1965). In determining the meaning of “package,” we are without the aid of meaningful legislative history. Only certain general observations may be made as to the reason why “package” was selected as an appropriate unit upon which the limitation of liability was placed in our 1936 Act, and in the English Act of 1924, which is similar. No doubt the drafters had in mind a unit that would be fairly uniform and predictable in size, and one that would provide a common sense standard so that the parties could easily ascertain at the time of contract when additional coverage was needed, place the risk of additional loss upon one or the other, and thus avoid the pains of litigation. Few, if any, in 1936 could have foreseen the change in the optimum size of shipping units that has arisen as the result of technological advances in the transportation industry. As both parties recognize, it is now common for carriers to receive cargo from their shippers in a palletized form or “containerized” form. In some instances an entire trailer may be uncoupled from its tractor-truck on the pier and placed aboard the carrier. With the exception of Judge McLean’s opinion below, 262 F.Supp. 343 (S.D.N.Y.1966), and possibly United Purveyors, Inc. v. Motor Vessel New Yorker, 250 F.Supp. 102 (S.D.Fla. 1965), no court has yet considered how the limitation of liability is to be construed in light of this technological change. Libellant’s principal contention is that a pallet is merely a mechanical device that is to be used in conjunction with a forklift and other machinery in order to facilitate loading. Certain benefits will accrue to the carrier through the use of pallets, namely, less damage to cargo and less labor cost over the long run, as the result of the decrease of individual handling required for items of a lesser size. Libellant does not argue that these are functions not normally performed by packaging in general, but suggests only that we should disregard the pallet and look to the cardboard boxes for the purposes of the limitation. In support of this contention, libellant argues that COGSA is a remedial statute and should be interpreted broadly to protect the rights of shippers; that statutory provisions setting forth a limitation of liability should be strictly construed so as to decide all questionable cases in favor of its non-applicability and that $500 a package provides a much more stringent limitation than it did 30 years ago. Since the change in optimum size of a shipping unit could not reasonably have been foreseen, he argues, we should rule that the outer casing was merely a mechanical device and not a package. Libellant’s contention overlooks a number of factors. First, it does not take into account the characterizations of the parties themselves. The dock receipt, the bill of lading, and libellant’s claim letter all indicated that the parties regarded each pallet as a package. On the dock receipt the “Marks and Numbers” were given as “1/9 and the “No. of Pkgs.” as “9 pallets.” The invoice from the shipper to the libellant described the goods as follows: “Numbers on the packages: 1/9 Quantity: 9 * * *» After the loss was discovered libellant sent a letter to appellee’s agent complaining that “only 2 packages were discharged” out of “a shipment of 9 packages.” Inasmuch as we are not faced with a case where the parties have attempted to define the word package by their agreement in a manner that might be repugnant to the Act, see, e.g., Pannell v. United States Lines Co., 263 F.2d 497, 498 (2 Cir.) (dictum), cert. denied, 359 U.S. 1013, 79 S.Ct. 1151, 3 L.Ed.2d 1037 (1959), we think such characterizations are entitled to considerable weight in that the parties each had the same understanding as to what constitutes a “package” and those characterizations further reflect the meaning given that term by the custom and usage of the trade. Each pallet had the physical characteristics of a package and was clearly a “bundle put up for transportation.” Black, Law Dictionary (4th ed. 1951). Secondly, it was the shipper and not the carrier who chose to make up the cartons into a pallet, apparently for the reasons of greater convenience and safety in handling. The number of separate units received from the shipper is what is considered for the purposes of the bill of lading. As in this case, the number of inner cartons is not apt to be mentioned in any of the shipping documents prepared at the time of contract. Yet the parties, and courts necessarily, rely upon the shipping documents for information in the event of loss, see, e.g., India Supply Mission v. S.S. Overseas Joyce, 246 F.Supp. 536, 538 (S.D.N.Y.1965), and cases cited therein, and it would seem immaterial that the number of individual cartons within each pallet might have been visible to the workmen on the pier. Cf. Anticosti Shipping Co. v. Viateur St. Amand [1959] 1 Lloyd’s Rep. 352 (Supreme Court of Canada). Thirdly, it does not take into account the fact that § 4(5) specifically provides that the shipper, at his option, can obtain full coverage simply by declaring the nature and value of the goods in the bill of lading, and, if necessary, paying a higher tariff, and thereby avoid the “outdated” limitation. Lastly, since the word “package” fairly includes the pallets as made up for shipment in this case, we do not deem it important that the drafters might not have foreseen this precise application at the time that this provision was enacted thirty years ago, see, e.g., Cain v. Bowlby, 114 F.2d 519, 522-523 (10 Cir. 1940). If through the passage of time this statutory limitation has become inadequate and its application inequitable, a revision must come from Congress, it should not come from the courts. We are mindful that any other decision would only contribute to confusion as to the meaning of the word “package” as used in § 4(5), see, e.g., discussion of prior cases in Mitsubishi Int’l Corp. v. S.S. Palmetto State, 311 F.2d 382, 94 A.L.R.2d 1412 (2 Cir. 1962), cert. denied, 373 U.S. 922, 83 S.Ct. 1523, 10 L.Ed.2d 422 (1963); Gulf Italia Co. v. American Export Lines, Inc., 263 F.2d 135, 138 (2 Cir.) (dissenting opinion), cert. denied, 360 U.S. 902, 79 S.Ct. 1285, 3 L.Ed.2d 1254 (1959), and would place upon the carrier the burden of looking beyond the information in the bill of lading or beyond the outer packing to investigate the contents of each shipment. Only if “package” is given a more predictable meaning, will the parties concerned know when there is a need to place the risk of additional loss on one or the other accordingly or adequately to insure against it. Affirmed. . The libel and complaint against defendant Columbus Lines, Inc., was dismissed on the consent of all parties. . 46 U.S.C. § 1304(5): “Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.” . One old English ease suggests the contrary, Whaite v. The Lancashire & Yorkshire Railway Co., L.R. 9 Ex. 67 (1874), where a large open top wagon was held to be a package: “It would be absurd to say that a waggon was too large to be a package; plainly, size cannot be a criterion.” Cleasby, B. concurring. See also Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156 (1916) which was specifically referred to in the Hearings Before the Committee on Commerce, United States Senate, 74th Cong., 1st Sess., on a Bill relating to Carriage of Goods by Sea, May 10, 1935, pp. 38, 39. . Large container ships and trailer ships are being built in order to accommodate such special cargo. See, e. g., N. Y. Times, January 8, 1967, § 13 (advertisement). The acceptance of such shipping units gives rise to other exciting possibilities, such as the loading of vessels from “inland ports” by sky-crane helicopters. See, e. g., N. Y. Times, January 28, 1967, p. 29, cols. 6, 7 and 8. Economies, if realized, will only serve to foster the use of large shipping units.

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

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

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

FLOYD, Maria E., individually and as personal representative of the Estate of Floyd, James H., Deceased, Appellant, v. LYKES BROS. STEAMSHIP CO., INC. No. 87-1596. United States Court of Appeals, Third Circuit. Submitted under Third Circuit Rule 12(6) March 9, 1988. Decided April 21, 1988. Walter Z. Steinman, Philadelphia, Pa., for appellant. John T. Biezup, Palmer, Biezup & Henderson, Philadelphia, Pa., for appellee. Before WEIS , GREENBERG, and ALDISERT, Circuit Judges. The Honorable Joseph F. Weis Jr. was an active judge at the time this appeal was decided. He has now assumed senior status. OPINION OF THE COURT ALDISERT, Circuit Judge. The question for decision is whether the captain of a merchant ship violated applicable maritime law when he buried at sea a seaman who died of a heart attack on the return trip of the vessel eight days from its next port-of-call. After seaman James Floyd died, the captain conducted a burial-at-sea ritual. Maria Floyd, the seaman's daughter, for herself, as executrix of her father’s estate, and for the next-of-kin, sued the vessel’s owner for improperly disposing of her father’s body. The district court granted summary judgment in favor of Lykes Bros. Steamship Company. Maria Floyd has appealed. We will affirm. Jurisdiction was proper in the district court based on 46 U.S.C. §§ 688, 761. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291. Appeal was timely filed under Rule 4(a)(1), F.R.App.P. I. James H. Floyd, an ordinary seaman, died on board the S.S. Shirley Lykes between 2000 and 2400 hours on August 19, 1983. The vessel was at sea passing through the Straits of Gibraltar, en route from Europe to Canada and the United States, eight days from her next port-of-call. The next morning, the crew prepared Floyd’s body for burial and encased in it canvas, placing weights in the bottom of the canvas bag. At approximately 1320 hours on August 20, 1983, the crew carried Floyd’s body to the fantail of the Shirley Lykes and draped an American flag over the bag containing the remains. A number of the crew and passengers assembled, and Captain Powell recited a short eulogy and prayer. Floyd’s body was then consigned to the deep. At 0810 and 1500 hours on August 20, crew members sent two brief messages to the Lykes Bros. Steamship Company, the owner of the Shirley Lykes, in New Orleans. The first reported that Floyd had died of a heart attack and would be buried at sea. App. at 234. The second indicated that Floyd was buried at sea at 1336 hours on that date. Id. at 235. Neither Captain Powell nor the shipping company notified Floyd’s next-of-kin prior to burying the decedent at sea. Maria Floyd subsequently filed a complaint in the district court against Lykes. Count one of the complaint alleged a cause of action for wrongful death. The district court granted Lykes’ motion for summary judgment on Count one, ruling that there was no evidence that Floyd’s death was caused by any acts or omissions of the company. Floyd v. Lykes Bros. S.S. Co., 655 F.Supp. 380, 382-83 (E.D.Pa.1987). Count two of the complaint alleged that Lykes was liable for improperly disposing of Floyd’s body by burying it at sea. It sought damages for Maria Floyd, her mother, and her seven brothers and sisters. On March 11, 1987, the district court granted Lykes’ motion to dismiss this count with respect to the decedent’s mother, brothers, and sisters, stating that the only person entitled to bring a claim for the allegedly improper disposition of the remains of a decedent is the decedent’s next-of-kin. Id. at 384-85. The district court subsequently granted Lykes motion for summary judgment, and entered an order dismissing plaintiff’s complaint with prejudice. App. at 249. Maria Floyd appeals only from the district court’s grant of summary judgment on Count two of the complaint. II. The standard of review is familiar. Summary judgment may be granted only if no genuine issue of material fact exists. Rule 56(c), F.R.Civ.P.; Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). An issue is “genuine” only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509, 91 L.Ed. 2d 202 (1986). At the summary judgment stage, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id., 106 S.Ct. at 2510. On review, this court applies the same test that the district court should have adopted. Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446, 449 (3d Cir.1987). III. On appeal, Floyd contends that state tort law has established that the spouse or next-of-kin is entitled to possession of a body for the purpose of arranging for final disposition of the remains, see, e.g., Blanchard v. Brawley, 75 So.2d 891, 893 (La.Ct.App.1954), and that violation of the right of possession and burial is an actionable tort. See, e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118, 120 (1970). She argues that this state law tort precept should be incorporated into general maritime law. She says that currently recognized maritime authority deems burial at sea anachronistic and improper when the next-of-kin are not notified in advance. Lykes responds that this case is not governed by state tort concepts, but by federal maritime law. Relying on Brambir v. Cunara White Star, Ltd., 37 F.Supp. 906 (S.D.N.Y.1940), aff'd mem., 119 F.2d 419 (2d Cir.1941), Lykes argues that maritime law does not provide a cause of action for burial at sea. IV. We are satisfied that maritime law controls this case, and that the following maritime law precepts steer us to an appropriate result. Although common law originated in the customs on land, 1 W. Blackstone, Commentaries *63; see also materials collected in R. Aldisert, The Judicial Process 286-94 (1976), maritime law derives from customs at sea and therefore constitutes a separate and distinct body of law. See E. Jhirad, A. Sann, B. Chase & M. Chynsky, Benedict on Admiralty § 104, at 7-8, 7-9 (7th ed.1985). Only when there are no clear precedents in the law of the sea may courts “look to the law prevailing on the land.” Igneri v. Cie de Transports Oceaniques, 323 F.2d 257, 259 (2d Cir.1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964). Section 2 of Article III of the Constitution extends the judicial power of the United States to “all Cases of admiralty and maritime jurisdiction.” U.S. Const, art. Ill § 2. It should prove helpful to refer briefly to the purpose and scope of this constitutional provision. The Supreme Court has reviewed its history: As there could be no cases of “admiralty and maritime jurisdiction” in the absence of some maritime law under which they could arise, the provision presupposes the existence in the United States of a law of that character. Such a law or system of law existed in Colonial times and during the Confederation and commonly was applied in the adjudication of admiralty and maritime cases. It embodied the principles of the general maritime law, sometimes called the law of the sea, with modifications and supplements adjusting it to conditions and needs on this side of the Atlantic. The framers of the Constitution were familiar with that system and proceeded with it in mind. Their purpose was not to strike down or abrogate the system, but to place the entire subject — its substantive as well as its procedural features — under national control because of its intimate relation to navigation and to interstate and foreign commerce. In pursuance of that purpose the constitutional provision was framed and adopted. Although containing no express grant of legislative power over the substantive law, the provision was regarded from the beginning as implicitly investing such power in the United States. Commentators took that view; Congress acted on it, and the courts, including this Court, gave effect to it. Practically therefore the situation is as if that view were written into the provision. After the Constitution went into effect, the substantive law theretofore in force was not regarded as superseded or as being only the law of the several States, but as having become the law of the United States, — subject to power in Congress to alter, qualify or supplement it as experience or changing conditions might require. Panama R.R. Co. v. Johnson, 264 U.S. 375, 385-86, 44 S.Ct. 391, 393-94, 68 L.Ed.2d 748 (1924). Sixty-two years later the Court summarized the context and application of admiralty law: With admiralty jurisdiction comes the application of substantive admiralty law. See Executive Jet Aviation, [Inc. v. Cleveland,] 409 U.S. [249, 255, 93 S.Ct. 493, 498, 34 L.Ed.2d 454 (1972) ]. Absent a relevant statute, the general maritime law, as developed by the judiciary, applies. United States v. Reliable Transfer Co., 421 U.S. 397, 409 [95 S.Ct. 1708, 1714, 44 L.Ed.2d 251] (1975); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160-161 [40 S.Ct. 438, 440, 64 L.Ed.2d 834] (1920). Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 [79 S.Ct. 406, 409, 3 L.Ed.2d 550] (1959); Romero v. International Terminal Operating Co., 358 U.S. 354, 373-375 [79 S.Ct. 468, 480-482, 3 L.Ed.2d 368] (1959). This Court has developed a body of maritime tort principles, see e.g., Kermarec, supra, [358 U.S.] at 632 [79 S.Ct. at 410]; see generally Currie, Federalism and the Admiralty: “The Devil’s Own Mess,” 1960 S.Ct.Rev. 158, 164 .... East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864-65, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865 (1986) (footnote omitted). Added to the foregoing are the familiar precepts that state law may supplement maritime law when maritime law is silent or where a local matter is at issue, but state law may not be applied where it would conflict with maritime law. See Coastal Iron Works, Inc. v. Petty Ray Geophysical, 783 F.2d 577, 582 (5th Cir.1986) (collecting cases); see generally Benedict on Admiralty, supra, § 105, at 7-12, 7-13. V. Having established that maritime law emanates from customs of the sea, we now turn briefly to those customs respecting burial at sea. In the leading federal sea-burial decision, Brambir v. Cunard White Star, Ltd., 37 F.Supp. 906, 907 (S.D.N.Y.1940), af'fd mem., 119 F.2d 419 (2d Cir.1941), plaintiffs decedent was a passenger who died on board a passenger liner that was eight days from its destination. The ship’s master did not embalm the body, and buried the decedent at sea the second day after his death without notifying the decedent’s next-of-kin. The court dismissed plaintiff’s complaint, which alleged an “unlawful interference with and violation of the plaintiff’s right to accord her deceased husband a decent burial.” 37 F.Supp. at 906. The court stated that “the master of a ship has an absolute discretion as to the proper disposition of the corpse. The custom of burial at sea has long been sanctioned by usage.” Id. at 907. The court noted that a person who books passage on an ocean-going steamer impliedly acquiesces to be bound by the custom of the sea and “consents to burial therein in the event of death during the voyage.” Id. In White-Jacket or The World in a Man-of-War 320 (1892), Herman Melville penned this moving passage: HOW THEY BURY A MAN-OF-WAR’S-MAN AT SEA. QUARTERS over in the morning, the boatswain and his four mates stood round the main hatchway, and after giving the usual whistle, made the customary announcement — “All hands bury the dead, ahoy!” In a man-of-war, everything, even to a man’s funeral and burial, proceeds with the unrelenting promptitude of the martial code. And whether it is all hands bury the dead! or all hands splice the main-brace, the order is given in the same hoarse tones. Both officers and men assembled in the lee waist, and through that bareheaded crowd the mess mates of Shenly brought his body to the ... gangway. ... But there is something in death that ennobles even a pauper’s corpse; and the Captain himself stood bareheaded before the remains of a man.... “I am the resurrection and the life! ” solemnly began the Chaplain, in full can-onicals, the prayer-book in his hand_ “We commit this body to the deep!” At the word, Shenly’s mess-mates tilted the board, and the dead sailor sank in the sea. “Look aloft,” whispered Jack Chase. “See that bird! it is the spirit of Shenly.” Gazing upward, all beheld a snow-white solitary fowl, which — whence coming no one could tell — had been hovering over the main-mast during the service, and was now sailing far up into the depths of the sky. Accounts of sea-burials can be found in many classics: H. Melville, Billy Budd, Sailor; W. Stafford, Melville’s Billy Budd & the Critics 61-63 (1961); J. Conrad, The Nigger of the Narcissus 73-79 (1959); C.S. Forester, Captain Horatio Hornblower 129, 173-75 (1939). Other recent tales of the sea contain similar references: J. Hanley, Captain Bottell 144-57 (1933); N. Monsarrat, The Cruel Sea 268-75 (1952). These accounts are a staple in historical chronicles of sea life: L. Anderson, Story of Allan Gordon 113-18 (1893); H. Bailey, Shanghaied Out of ’Frisco in the ’Nineties 136-53 (n.d.); J. Barker, The Log of a Limejuicer 206-11 (1936); A. Fischer, Foc’sle Days 46-51 (1947); G. Gowllend, Master of the Moving Sea 119-20 (1959); W. Strickland, Journal of a Tour in the United States of America: 1794-1795 25-26 (1971). Literature and art, to be sure, reflect the mores and customs of the culture of which they are a part. Notwithstanding appellant’s claims to the contrary, the custom of burial at sea is also recognized both in current master and vessel handbooks, and in various medical guides for vessels at sea. Whichever handbook or guide a master consults in seeking advice upon the death of a seaman, he will find a passage discussing the option of burial at sea. See E. Turpin & W. MacEwen, Merchant Marine Officer’s Handbook 21-27 (1979); United States Department of Health, Education and Welfare, The Ship’s Medicine Chest and Medical Aid at Sea 358-59 (1978); World Health Organization, International Medical Guide for Ships 337 (1967); W. Wheeler, Medical Care of Merchant Seamen 24-25 (1945). VI. The appellant seems to concede the foregoing and rests her case on the common law precept that “the duty to deliver a decedent’s body to the next of kin is recognized in state common law and this duty should be incorporated into the general maritime law.” Br. for appellant at 15. She relies on a number of state tort cases, of which Blanchard v. Brawley, 75 So.2d 891 (La.Ct.App.1954), is representative, holding that the nearest relative or next-of-kin of the deceased possesses a quasi-property right in the body, and that this right is “predicated on the universally recognized duty of relatives to bury their dead, which duty involves the right to possession and custody of the body for purposes of burial or sepulchre in the same condition that existed at the moment life departed.” Id. at 893. Floyd believes that maritime law today will embrace these land-law state tort concepts. But the authorities she cites relate to land-based deaths, not to a formal burial at sea on a homeward-bound vessel that is eight days from its next scheduled port-of-call. The best authority that appellant can muster is a 1917 decision of the New York Court of Appeals, Finley v. Atlantic Transport Co., 220 N.Y. 249, 115 N.E. 715 (Ct.App.1917), that permitted a cause of action. But the facts there do not resemble the case at hand. As described by the court: [DJefendant in the operation of a first-class steamship had supplied a person qualified to embalm the body of the deceased and had provided a suitable place for the storage of the same; that the body was kept in a perfect state of preservation and made proof against decomposition for a period greatly exceeding the time ordinarily occupied by the voyage from the point where the steamship was at the time of death and the city of New York. Having embalmed the body, defendant continued to carry the same until about 5 p.m. July 6, 1913, a period of upwards of 4 days, when defendant buried it at sea in or near Nantucket Shoals at a time when the steamship was about 20 hours from port. 115 N.E. at 717. Moreover, in Finley there was no indication that a formal burial-at-sea ritual was performed. Appellant cites no state statute prohibiting the formal ritual of burial at sea. She does not rely on any federal law that operates to change the centuries-old custom of burial at sea. Numerous changes in maritime law have taken place since the court in 1940 decided the leading case of Brambir v. Cunard White Star, Ltd., yet no case and no statute contradict Brambir’s holding that “in [a death at sea] it would seem that the master of the ship has an absolute discretion as to the proper disposition of the corpse.” 37 F.Supp. at 907. Indeed, our research has unearthed only one other reported case, and it supports the customs of the sea. See O’Neill v. Compagnie Generale Transatlantique, 1937 A.M.C. 1129 (S.D.N.Y.1937). In O’Neill, Elizabeth Ann Ahearn, a passenger on the S.S. lie de France, died of natural causes while the vessel was en-route to New York. The ship’s crew did not discover the body for 14 hours, and the on-board physicians concluded that it could not be embalmed. Eleven Roman Catholic priests subsequently celebrated a requiem mass, and the body was buried at sea when the vessel was 650 miles from New York. Four cousins brought suit for damages because the ship’s crew did not embalm the body and bring it to port for interment in consecrated ground ashore. The court, in allowing the case to go to a jury, instructed the jurors that the carrier was not required to do more than give the body a decent burial, and admitted testimony as to what was a proper burial. The jury thereafter returned a verdict for the defendant. It will be noted that O’Neill preceded the adoption of the summary judgment procedure in federal courts, Rule 56, F.R.Civ.P., which took effect on September 16, 1938. Nothing in the Death on the High Seas Act, 46 U.S.C. §§ 761-768, or the Jones Act, 46 U.S.C. § 688, two statutes that deal with a seaman’s death at sea, precludes burial at sea. Furthermore, in 1983, Congress revised Title 46 of the United States Code, which contains the statutory law relating to United States flag vessels and seamen, to outline the disposition of a deceased seaman’s personal effects. Appellant fails to point to anything in that revision which supports her cause of action. See 46 U.S.C. §§ 10701-10711. Although Congress at the time of these amendments undoubtedly discussed the subject of seamen dying at sea, it did not enact any legislation precluding the time-honored custom of burial at sea or requiring the return of the body of someone who dies at sea. Therefore, appellant has failed to produce any statutory evidence to support her argument that a cause of action for burial at sea would now be appropriate “to effectuate the policies of general maritime law.” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 400, 90 S.Ct. 1772, 1787, 26 L.Ed. 2d 339 (1970). VII. In essence, appellant’s entire argument rests on a single premise: No case law or statute supports my theory, but this court should rely on a single sentence contained in a publication issued by the United States Public Health Service entitled The Ship’s Medicine Chest and Medical Aid at Sea. According to this authority, “[t]oday burial at sea is the exception.” See app. at 194. But the Ship’s Medicine Chest provides no support or explanation for this assertion. The authors do not tell us that this is so because modern medicine and surgical procedures make death at sea the exception, or that sailing vessels are now equipped with embalmers and morgues to obviate the necessity of a sea burial. From this single quotation from a how-to-do ship’s handbook, appellant anchors her argument that burial at sea is anachronistic and improper when the next-of-kin are not notified in advance. Phrased in legal terms, Floyd argues that the ship’s master abused his discretion when he failed to dock the vessel in an African or European port for a land burial or refused to refrigerate the remains, possibly in the vessel’s food locker, until the ship arrived at its home port. So construed, her argument may be considered a request that we reject the rule formulated in Brambir, that the ship’s captain has “absolute discretion,” and promulgate a standard that vests in the ship’s master something less than absolute discretion. Those who exercise discretion do not all enjoy the same freedom and latitude, for in the law there is wide, less wide, and narrow discretion. Professor Rosenberg teaches that discretion runs the gamut from “Grade A ... a type that is ... unreviewable and unreversible” to “Grade D, extremely dilute discretion.” M. Rosenberg, Appellate Review of Trial Court Discretion 9-14 (1975) (Federal Judicial Center). Brambir obviously gives the ship’s captain “Grade A” discretion, and appellant essentially urges us to conclude that he now possesses a less draconian power. But even if we succumb to appellant’s invitation, it would be of little help here. For where the discretionary power is not absolute, the standard of review would be analogous to an appellate court’s review of a trial court’s exercise of discretion. The universal standard of review in this circumstance is abuse of discretion, or whether the trial court’s action was “arbitrary, fanciful or unreasonable,” to use a formulation we have applied on numerous occasions. See, e.g., Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 115 (3d Cir.1976) (in banc) (Lindy II). We do not find it necessary to decide whether, in 1988, we should depart from Brambir’s 1940 notion of the ship captain’s absolute discretion. Even if we assume, without deciding, that the discretion of a ship’s master is somewhat less than unreviewable and adopt instead the concept we apply in reviewing judicial discretion, “that discretion is abused only when no reasonable man [or woman] would take the view adopted by [the decisionmaker].” Lindy II, 540 F.2d at 115 (quoting Delno v. Market St. Ry., 124 F.2d 965, 967 (9th Cir.1942)). Under such a standard, we would find no abuse in the present case. Appellant presented no evidence that the Shirley Lykes had trained embalmers among its crew, or had a ship’s morgue with adequate refrigeration facilities to preserve the remains after embalming. Floyd did not represent that the family would have been willing to designate a consignee at an African or European port to receive the un-embalmed remains or that the foreign country or city would accept delivery of the cadaver. Nor did she represent that the family was willing to compensate the shipping company for losses caused by delays in arriving at its scheduled destination after making an unplanned stop. Faced with the record in this case, we would not describe the captain’s decision for a sea burial as arbitrary, fanciful, or unreasonable. It bears emphasis that we are deciding the present case based only on the facts before us. Although the substantive law here is maritime, our decisionmaking process follows the common law tradition of deciding only specific cases or controversies. Thus, our holding here is simply a “precept[] attaching a definite detailed legal consequence to a definite, detailed state of facts.” United States v. Criden, 633 F.2d 346, 354 n. 4 (3d Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981) (quoting Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 Tulane L.Rev. 475, 482 (1933)). VIII. From our stated views, we conclude that there was no genuine issue of material fact to preclude the grant of summary judgment for the defendant. 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 "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?

MERRELL et al. v. UNITED STATES et al. No. 2785. Circuit Court of Appeals, Tenth Circuit. Jan. 31, 1944. Alfred Stevenson, of Holdenville, Okl. (John Rogers, of Tulsa, Old., W. T. Anglin and O. S. Huser, both of Holdenville, Okl., and J. Hugh Nolen, of Okemah, Old., on the brief), for appellants. John C. Harrington, of Washington, D.C. (Norman M. Littell, of Washington, D.C., Whit Y. Mauzy and Joe W. Howard, both of Tulsa, Okl., and Norman MacDonald of Washington, D.C., on the brief), for appellees. M. S. Robertson, of Muskogee, Okl., for Andy Huhva, heir. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. The ultimate question presented by this appeal is whether the Federal District Court acquired jurisdiction to administer the estate of a restricted Indian, member of the Five Civilized Tribes, upon removal of the administrative proceedings from the County Court of Tulsa County, Oklahoma, under the provisions of Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240. Preliminary thereto is the standing or authority of appellants to raise the question, and the answer depends on whether the appointment of appellants as administrators of the estate of the restricted Indian by the County Court of Okfuskee County, Oklahoma, is void upon its face and subject to collateral attack. The trial court held the Okfuskee County appointment void on its face, and sustained Federal jurisdiction to administer the estate of the restricted Indian upon removal of the proceedings from the Tulsa County Court. The Okfuskee County administrators have appealed. On May 26, 1942, Peter Micco, a full blood restricted Indian, died intestate in Okfuskee County, Oklahoma. He was seized of both real and personal property having an aggregate value of more than $400,000, most of which was restricted funds in the custody of the Secretary of the Interior. Decedent was survived by no wife, child, or parent, and left as his sole and only heirs the following next of kin: Haney Micco Larney, incompetent, sister, whose guardian was Perry Chisholm; Katie May Clark and Juanita Clark, nieces, minors, whose guardian was also Perry Chisholm; Andy Hulwa, sometimes known as Andy High, nephew, competent; and Sallie Little, Serena Spencer, and Norman Ripley, nieces, minors, whose guardian was E. F. O’Neal. On the date of decedent’s death (May 26, 1942), petitions for letters of administration were filed in both the county courts of Tulsa and Okfuskee Counties. The petition in Tulsa County was filed by M. S. Robertson, Probate Attorney for the Superintendent of the Five Civilized Tribes. It alleged the death of Peter Micco at Okemah, Okfuskee County, Oklahoma, and his residence in Tulsa County; the character and value of his property; iiis intestacy, his heirs at law, and nominated and requested the appointment of N. B. Day, former guardian of the decedent (see Micco v. Huser, 185 Okl. 394, 91 P.2d 1069), as administrator of the Estate. The matter was set for hearing on June 6, 1942, and notice was ordered and given, all as provided by the applicable Oklahoma statutes. 58 O.S.A. § 128. Notice was also given to the Superintendent of the Five Civilized Tribes in accordance with the Federal law. Sec. 3, Act of April 12, 1926. Two days later, and on May 28, 1942, Perry 'Chisholm, as guardian for Haney Micco Larney, Katie May Clark, and Juanita Clark, heirs at law and next of kin, joined in the petition of the United States Probate Attorney, and prayed that letters of administration be issued to N. B. Day in accordance with the original petition. On the following June 4th, the United States Attorney, acting in pursuance of the notice to the Superintendent of the Five Civilized Tribes, removed the proceedings from the Tulsa County Court to the United States District Court for the Northern District of Oklahoma in accordance with Section 3 of the Act of April 12, 1926. The petitioner for letters of administration in the Okfuskee County Court, filed May 26, 1942, was Howard Cummings, who was neither kin nor creditor of the decedent. The petition alleged the decedent’s death in Okfuskee County and his residence there. It further alleged the character and value of the estate, the intestacy of decedents, and heirs at law; that although the petitioner was not related to decedent, the heirs were full blood Indians and not eligible for appointment; that the petitioner was interested in the administration of the estate, and requested that L. F. Merrell be appointed administrator. The petition prayed that the matter be set for hearing and notice thereof given according to law. The Okfuskee County Court set the matter for hearing on June 8, 1942, and ordered statutory notices of the hearing given to the heirs at law. On the following June 3rd, Cummings filed an amendment to his original petition for letters of administration, in which it was alleged that all persons related to Peter Micco who, under the statute of the State of Oklahoma, had prior rights of appointment as administrator, were full blood Indians adjudged incompetent, and hence ineligible to serve as administrator of the Estate. Specifically, it was alleged that Andy Hulwa, one of the heirs, was a full blood Indian of the half blood relation, and unversed in the affairs of business, therefore incompetent to serve as administrator of the Estate. It was then alleged that by reason thereof, no person with preferential rights to the appointment of administrator under the laws of Oklahoma was eligible for the appointment, and consequently “no notice to any such persons is necessary for the appointment of an administrator” ; that there was “immediate necessity for the appointment of an administrator for the reason that other persons whose true intent cannot be known are attempting to usurp the jurisdiction of this court * * * by seeking the appointment of an administrator in other counties of the state, all of which is highly detrimental to the Estate of Peter Micco, and not to the best interest of any of the heirs.” The petition prayed for the appointment of an administrator, and the issuance of letters of administration instanter without further notice. On the next day, June 4th, M. S. Robertson, United States Probate Attorney, and Perry Chisholm, as guardian of his next of kin wards, filed a motion to dismiss the Okfuskee County administration proceedings on the ground that the court was without jurisdiction to hear and determine the petition because the decedent was at the time of his death a legal resident of Tulsa County, as evidenced by an order of the County Court of that County dated January 16, 1942, which directed the guardian of Peter Micco to establish a suitable place of abode for Micco within Tulsa County, where the said Micco “shall reside,” a copy of which order was attached to the motion and made a part thereof. The second ground of the motion to dismiss was that neither the petitioner for the letters of administration, nor his nominee for administrator, were related to the decedent or creditors of the Estate, and had no legal right to nominate or be appointed by the Okfuskee County Court. On the same date, June 4th, without notice of any kind to any one, the County Court of Okfuskee County proceeded to hear the original petition of Howard Cummings for letters of administration as amended, and to appoint the administrators who are the appellants here. According to the “Order Appointing Administrators,” Cummings and his attorney appeared at the hearing, and moved to amend the petition to request that E. F. O’Neal, guardian of Sallie Little, Serena Spencer and Norman Ripley, and Perry Chisholm, guardian of Haney Micco Larney, Katie May Clark and Juanita Clark, be appointed co-administrators with L. F. Merrell. Leave was granted to so amend, whereupon the petitioner, through his attorneys, announced to the court that the persons whom the petitioner sought to have appointed as co-administrators of the Estate, were persons having a prior right to the said appointment. The court “being satisfied” there were no other persons having a prior right of appointment, held that further notice was unnecessary, and ordered the petition as amended heard instanter. The order of May 26th, setting the original petition for hearing on June 8, 1942, was vacated and set aside, and the court proceeded to hear testimony pursuant to which it found ■that Peter Micco died intestate on May 26, 1942, in Okfuskee County, Oklahoma, while a bona fide resident of that County and State; that his heirs and next of kin are: Haney Micco Larney, adult incompetent sister, Sallie Little, Serena Spencer, Norman Ripley, Katie May Clark, and Juanita Clark, minors, and Andy Hulwa, a nephew of the half blood. The court found that Andy Hulwa did not have equal right to the appointment of administrator, and that E. F. O’Neal and Perry Chisholm, as guardians of their wards, were persons having a prior right to act as administrators of the Estate; that by reason thereof, no formal notice was necessary. The court then appointed O’Neal, Chisholm, and Merrell administrators, and fixed their bonds. Merrell and O’Neal qualified; Chisholm not only failed to qualify, but contested the jurisdiction of the court over the Estate. After removal of the administrative proceedings from the Tulsa County Court to the Federal Court, and on June 12, 1942, Andy Hulwa entered his appearance in the proceedings in the United States District Court, waived service of notice, and authorized the court to hear the matter of the appointment of the administrator at any convenient time. On the same date, E. F. O’Neal, as guardian of his next of kin wards, joined in the petition for the appointment of N. B. Day as administrator, waived further notice, and asked that the cause be heard at any convenient time. Thereafter and on June 19, 1942, the matter came on for hearing on the petition of Robertson, United States Probate Attorney, and according to the order of the court, Chisholm appeared as guardian of his wards, O’Neal for his wards, Andy Hulwa in person,- and the United States by the United States Attorney. Upon a hearing of the cause, the court found that Peter Micco died on May 26, 1942, a legal resident of Tulsa County; that he was a full blood Indian, and the United States was therefore a proper party. The court further found that the petitioners then appearing in court constituted all the heirs and next of kin of Peter Micco, and therefore no further notice was required by law, and that an administrator of the Estate of decedent should be appointed forthwith. ‘ Accordingly, N. B. Day and G. Ellis Gable of Tulsa County were appointed administrators of the Estate, effective upon the execution and approval of bond as provided by law. The appointees qualified, and have ever since assumed to act as administrators of-the Estate by appointment of the Federal Court. On the following September 25th, Merrell and O’Neal filed in the Federal Court an application to set aside its order appointing administrators on two grounds. First, that Peter Micco died a resident of Okfuskee County, and that the County Court of Okfuskee County had appointed administrators of the Estate prior to the date on which the Tulsa County proceedings were removed to the Federal Court, and the Okfuskee County Court having taken jurisdiction of the cause, and having appointed administrators, had prior and exclusive jurisdiction to administer the Estate. Second, jurisdiction of the Federal Court to probate the Estate, or to appoint administrators was directly challenged on the grounds that no such jurisdiction obtained in Federal Court, and its judgment was therefore void and without force and effect. The trial court overruled the motion, and this appeal followed. It is conceded that the Federal court acquired no greater jurisdiction than the Tulsa County Court possessed when the case was removed, and it is also admitted that the Okfuskee County Court first attempted to exercise jurisdiction by appointing an administrator of the Estate. It follows, therefore, that the Okfuskee County Court having first exercised jurisdiction, its judgment is exclusive of Federal jurisdiction, and not subject to collateral attack unless, of course, the absence of jurisdiction over the subject matter, or lack of power to render judgment, affirmatively appears from the face of the proceedings. Sewell v. Christison, 114 Okl. 177, 245 P. 632; In re Green’s Estate, 114 Okl. 283, 251 P. 1008; Appeal of Sims’ Estate, 162 Okl. 35, 18 P.2d 1077, 1083; Silmon v. Rahhal, 178 Okl. 244, 62 P.2d 501, 503; Woodruff v. Firestone, 182 Okl. 606, 79 P.2d 210. Cf. Powers v. Brown, 122 Okl. 40, 252 P. 27; Micco v. Huser, 185 Okl. 394, 91 P.2d 1069. The probate jurisdiction of the Okfuskee County Court is conferred by the Constitution and applicable statutes of Oklahoma, and must be exercised “in the manner prescribed by statute,” and not otherwise. Art. 7, Sec. 13, Oklahoma Constitution; 58 O.S.A. §§ 1-7; In re Johnson, 72 Okl. 174, 179 P. 605; Ozark Oil Co. v. Berryhill, 43 Okl. 523, 143 P. 173; Carter v. Frahm, 31 S.D. 379, 141 N.W. 370; Oakes Oklahoma Probate Practice, Secs. 6 and 12; Bancroft’s Probate Practice, Sec. 31. The residence of Peter Micco in Okfuskee County at the time of his death is prerequisite to the exercise of probate jurisdiction by the County Court of that County over his Estate. 58 O.S.A. § 5; Sewell v. Christison, supra; In re Davis’ Estate, 171 Okl. 575, 43 P.2d 115; Woodruff v. Firestone, supra; Griffin v. Hannan, 185 Okl. 433, 93 P.2d 1078. However, residence is presumed when the judgment based thereon is attacked because of its absence, and a recital of it in the judgment is conclusive and cannot be collaterally attacked, unless the contrary appears upon the face of the record which supports the judgment. 58 O.S.A. § 2; Wolf v. Gills, 96 Okl. 6, 219 P. 350; Sewell v. Christison, supra; Woodruff v. Firestone, supra; Freeman on Judgments, 5th Ed., Sec. 351 and 379; Bancroft’s Probate Practice, Vol. 1, Sec. 36. The jurisdiction of the Okfuskee County Court was invoked by the filing of a petition for letters of administration, in which it was alleged that the decedent, Peter Micco, died in Okfuskee County while a resident of that County. It also alleged his intestacy, his heirs, the general character and value of his property, and requested the appointment of an administrator. The court entertained the petition by fixing a date for the hearing of the same and by ordering notice thereof given according to law. Admittedly, the notice was not given to the known heirs and next of kin as ordered, but, before the date originally set for the hearing of the petition, it was amended to allege that notice was unnecessary under the statute because of facts set forth in the amendment. When the matter came on for hearing, the trial court recited the facts upon which it held that further notice was unnecessary, and upon this finding proceeded to hear and determine the subject matter of the petition. Among other things, the court specifically found and concluded that Peter Micco died in Okfuskee County, while a resident of that County, thereby adjudicating the factum of the decedent’s residence, and its jurisdiction based thereon. See Freeman on Judgments, 5th Ed. Vol. 1, Sec. 350, 351; Bancroft’s Probate Practice, Vol. 1, Sec. 36. And the adjudication is invulnerable to collateral attack in a Federal court exercising concurrent jurisdiction, unless from the face of the record it plainly appears that the adjudication was wholly unauthorized by the statute which conferred jurisdiction. Blackwell v. McCall, 54 Okl. 96, 153 P. 815; Roth v. Union Nat. Bank of Bartlesville, 58 Okl. 604, 160 P. 505; Winona Oil Co. v. Barnes, 83 Okl. 248, 200 P. 981; Ward v. Cook, 152 Okl. 234, 3 P.2d 728; Reliance Clay Products Co. v. Rooney, 157 Okl. 24, 10 P.2d 414; Tippins v. Turben, 162 Okl. 136, 19 P.2d 605; Cochran v. Norris, 175 Okl. 126, 51 P.2d 736; Fitzsimmons v. City of Oklahoma City, Okl. Sup., 135 P.2d 340; Freeman on Judgments, 5th Ed., Vol. 1, Sec. 382. Cf. Overby v. Gordon, 177 U.S. 214, 20 S.Ct. 603, 44 L.Ed. 741; Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885; Dunsmuir v. Scott, 9 Cir., 217 F. 200; Lambert v. Central Bank of Oakland, 9 Cir., 85 F.2d 954, 957. It is urged however, that the general rule of conclusiveness does not apply here because the Okfuskee County Court determined the factum of the decedent’s residence in the face of an order of the County Court of Tulsa County establishing the residence of the decedent there, and this order conclusively proves that decedent’s residence was in Tulsa County at the time of his death, and therefore the findings of the Okfuskee County Court on the vital question of residence are impeached on the face of the record on which the adjudication was made. The record does show that when on June 4, 1942, the Okfuskee County Court -adjudicated the factum of decedent’s residence, there was on file in that proceedings, a motion to dismiss on the ground that the decedent was a resident of Tulsa County at the time of his death as evidenced by an attached certified copy of the Tulsa County Court judgment, and it was alleged that the said order was in full force and effect at the time the motion was filed. According to the certified copy, dated January 16, 1942, Peter Micco resided at a named address in the City of Tulsa, Oklahoma, and the order authorized and directed the guardian of Micco to “establish a suitable place of abode within Tulsa County, Oklahoma, where the said Peter Micco shall reside in lieu of his family residence”. The guardian was authorized by statute to fix the residence of his ward at any place within the State, 30 O.S.A. § 15, and it will, of course, be presumed that the guardian acted in obedience to the court order. Residence having been established by the guardian,’ the incompetent ward could not effectively change, it without the knowledge or consent of his guardian. Laughlin v. Williams, 76 Okl. 246, 185 P. 104; Coppedge v. Clinton, 10 Cir., 72 F.2d 531. Moreover, residence- having been once established in Tulsa County, it is presumed to have continued there until the contrary is shown. Anthis v. Drew, 123 Okl. 18, 252 P. 11; In re Gray’s Estate, 119 Okl. 219, 250 P. 422. But residence in Tulsa County in January .1942, is only presumptive evidence of residence there on the date of his death approximately five months later. Admittedly, he died in Okfuskee County; the residence was certainly subject to change, and there is nothing in this record tending to show that the residence was not changed in the interim, except the bare allegation contained in the motion to dismiss. The presumption of decedent’s continued residence in Tulsa County, after its establishment there, is certainly insufficient to overcome the presumption which must be accorded the adjudication and judgment of the Okfuskee County Court. We conclude that the Okfuskee County Court judgment is not void upon its face, and is therefore not subject to collateral attack. The conclusiveness of the order of the Okfuskee County Court is challenged upon the further ground that notice of the hearing was not given in accordance with the statutory requirements, consequently the court did not acquire jurisdiction to appoint administrators. The applicable statute, 58 O.S.A. § 128, provides that when a petition for letters of administration is filed, the judge of- the county court must set a date for hearing the same, and cause notice thereof to be given in the manner provided therein. The statute further provides “that if the petition asks for the appointment of some person entitled under the law to appointment, and there shall accompany such petition a waiver of all persons having a prior right to appointment then no notice shall be given, and the court shall proceed without delay to hear such petition.” Based upon allegations in the amended petition, the court concluded that notice was unnecessary and accordingly proceeded to appoint the guardians of next of kin having prior right coadministrators of the Estate. 58 O.S.A. § 122. Its factual recitals may have been incorrect and its conclusions based thereon erroneous, yet the matter of notice is a quasi judicial fact, and as such is not subject to collateral attack. In re Green’s Estate, supra; King v. Salyer, 172 Okl. 130, 44 P.2d 11; Vol. 1, Bancroft’s Probate Practice 270. Whether the order of the Okfuskee County Court is vulnerable to direct attack, cf. Caulk v. Lowe, 74 Okl. 191, 178 P. 101, is not before us and is not decided. It follows that the judgment of the Okfuskee County Court is not void upon its face, and it is exclusive of Federal jurisdiction. In this posture, it becomes unnecessary to decide whether Section 3 of the Act of April 12, 1926, confers jurisdiction upon the Federal court to administer the Estate of a restricted member of the Five Civilized Tribes upon removal of administrative proceedings from the county court having properly acquired jurisdiction, and we do not decide that question. The judgment is reversed. Section 3, among other things, provides that where notice is served upon the Superintendent of the Five Civilized Tribes, the United States may remove from the state court in Oklahoma to the appropriate United States District Court, any suit to which a restricted member of the Five Civilized Tribes is a party, and claims, or is entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes, or the proceeds, issues, rents, and profits derived therefrom. Upon removal in the manner provided, the cause shall proceed as if it had been originally commenced in the Federal District Court.

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?

Varena ELSTON, wife of/and Joseph Yuratich, Plaintiffs-Appellees, v. SHELL OIL COMPANY and the Travelers Insurance Company, Defendants-Third Party Plaintiffs-Appellants, v. ZENITH, INC. and Employers Mutual Liability Insurance Company of Wisconsin, Third Party Defendants-Appellees, U. S. Fidelity & Guaranty Company, Intervenor-Appellee. No. 73-1616 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 20, 1973. John J. Weigel, New Orleans, La., for appellants. Peter J. Butler, New Orleans, La., for plaintiffs-appellees. Chester Francipane, Metairie, La., for third party defendants-appellees. Wood Brown, III, New Orleans, La., for intervenor-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: Shell Oil Company and its liability carrier appeal from a judgment entered upon a jury verdict for the appellees. We affirm. Mrs. Yuratieh suffered painful and nearly fatal injuries as a result of a collision involving a truck owned by the Shell Oil Company. The truck was being driven by an employee of Zenith, Inc., a labor contractor which supplied the driver on an hourly basis to make deliveries to Shell installations. The evidence of Shell’s control over the driver’s activities was amply sufficient for the jury to find that the driver was Shell’s borrowed servant for purposes of tort liability. See, e. g., Richardson v. Tate, 269 So.2d 278 (La.App.1972), writ denied, 271 So. 2d 260 (La.1973). Shell asserts as error the refusal to instruct the jury that personal injury awards are not subject to federal income tax. The refusal follows prior decisions of this court. Cunningham v. Bay Drilling Co., 421 F.2d 1398 (5th Cir. 1970); Prudential Ins. Co. of America v. Wilkerson, 327 F.2d 997 (5th Cir. 1964). We have recently refused to overrule our former decisions. Greco v. Seaboard Coast Line Railroad, 464 F.2d 496 (5th Cir.), rehearing en banc denied, 468 F.2d 822 (5th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1502, 36 L.Ed.2d 190 (1973). We therefore regard the issue foreclosed from reconsideration by this panel. Shell contends that a mistrial should have been declared because of an allegedly prejudicial comment by the court. As an alternative to its request for a mistrial Shell requested, and the court gave, an instruction to the jury to disregard the remark. The granting of Shell’s alternate request for relief was sufficient to cure any error. In light of the extent of Mrs. Yuratich’s injuries, we cannot say that the verdict was in excess of the maximum amount the jury could have reasonably found. See Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1042-1047 (5th Cir. 1970), aff’d after remand, 456 F.2d 180 (5th Cir.), cert denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972). Affirmed.

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

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

NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, INC., et al., Plaintiffs-Appellees, v. IMMIGRATION & NATURALIZATION SERVICE, et al., Defendants-Appellants. No. 88-5774. United States Court of Appeals, Ninth Circuit. Dec. 21, 1989. John R. Bolton, Robert C. Bonner, U.S. Atty., Barbara L. Herwig, John R. Daly, Dept, of Justice, Washington, D.C., for defendants-appellants. Peter A. Schey, Los Angeles, Cal., Susan Gzesk, Boston, Mass., Antonio Rodriguez, Los Angeles, Cal., Monica Yriarte, Patricia Perille, Washington, D.C., for plaintiffs-ap-pellees. Before FERGUSON, REINHARDT, and TROTT, Circuit Judges. PER CURIAM: This case involves the question of the validity of an Immigration and Naturalization Service (“INS”) regulation that requires the inclusion in release bonds of a blanket condition prohibiting aliens from engaging in employment pending the outcome of their deportation hearings. The National Center for Immigrants’ Rights, Inc., and a number of other organizations and individuals, requested a declaratory judgment that the regulation exceeds the scope of the Attorney General’s statutory authority, and a permanent injunction against its implementation. The Immigration and Naturalization Service, Alan Nelson, Commissioner, and Attorney General William French Smith were named as defendants. The district court granted summary judgment to the plaintiffs. A notice of appeal was timely filed. The caption of the notice reads, “National Center for Immigrants’ Rights, Inc., et al., Plaintiffs, v. Immigration and Naturalization Service, et al., Defendants.” The body of the notice states, “Notice is hereby given that defendants in the above-referenced action hereby appeal to the United States Court of Appeals for the Ninth Circuit_” The ap-pellees now challenge the adequacy of the notice of appeal. The appellees, relying on Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), have filed a suggestion that we dismiss the appeal for lack of jurisdiction. They interpret Torres as standing for the proposition that under Rule 3(c) of the Federal Rules of Appellate Procedure the names of the parties appealing must be listed in the body of the notice of appeal. Failure to do so, argue the appellees, necessitates dismissal of the appeal. Torres, however, does not stand for such a broad nor exacting proposition. In Torres, a notice of appeal from a judgment of dismissal listed the names of 15 out of 16 plaintiffs as parties to the appeal in the body of the notice, but did not list the petitioner. “It is undisputed that the omission [of the petitioner’s name] in the notice of appeal was due to a clerical error,” but since the petitioner “was never named or otherwise designated” when all the others were specifically named, the notice of appeal failed to give “fair notice of the specific individual or entity seeking to appeal.” Id. 108 S.Ct. at 2407, 2409. The use of the phrase “et al.” in the caption also failed to provide notice of a particular defendant’s intent to appeal. Id. at 2409. Thus, the court of appeals properly held that the judgment of dismissal was final as to the petitioner. Id. The case at hand, in contrast, presents an entirely different question. Here, no names were listed in the body of the notice, and no individual was inadvertently omitted as a result of clerical error. Instead, the term “defendants” was used in the body of the notice. The issue before us is whether that term fairly indicates that all and not just some of the defendants are appealing the decision below. We think that clearly it does. We hold that Torres does not require that the individual names of the appealing parties be listed in instances in which a generic term, such as plaintiffs or defendants, adequately identifies them. We find the reasoning of the Sixth Circuit in Ford v. Nicks, 866 F.2d 865, 870 (6th Cir.1989), on this point persuasive. The body of the notice in Ford stated that “[n]otice is hereby given that the defendants’ appeal to the United States Court of Appeals for the Sixth Circuit....” Id. at 869. The court reasoned that “[t]here are some 18 defendants, and the statement that ‘the’ defendants are taking the appeal gives fair notice that all 18 desire to be appellants, not just some of them.... We think it would be manifestly improper for us to read the words ‘the defendants,’ in the body of the instant notice, as meaning Chancellor Roy S. Nicks only. The other defendants may have been designated somewhat ‘inartfully,’ to borrow the adverb used in Torres, but to say that they were not designated at all would be untrue.” Id. at 870. Following the reasoning of Ford, we find that the notice of appeal here is also proper. Although the caption reads “Immigration and Naturalization Service, et al.,” the body of the notice reads “[n]ot-ice is hereby given that defendants in the above-referenced action hereby appeal ....” It is sufficiently clear from the body of the notice that all of the defendants are seeking to appeal. While their intentions might arguably have been clearer had the defendants used the article “the” in front of the word “defendants,” the omission of the article does not require a different result from that reached by the Sixth Circuit. Defendants, in its normal usage, means all defendants not just some. Had only some defendants intended to appeal, the proper term to be used in the body of the notice would have been “certain defendants.” Alternatively, if only some defendants desired to appeal, those defendants could have identified themselves individually. As stated by the Advisory Committee Notes on the 1979 amendment, “so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.” Id. at 870. As was the case in Ford, “ ‘the function of notice’ was met as to each of the defendants in this case;” therefore, this court has jurisdiction over the appeal and over each of the defendants. The suggestion raised by appellees of want of jurisdiction and appropriateness- of dismissal is hereby rejected. . Appellees also rely on Allen Archery, Inc. v. Precision Shooting Equipment, 857 F.2d 1176 (7th Cir.1988), a case in which there were two defendants, Precision Shooting and Shepley, but the notice of appeal stated only "Precision Shooting Equipment, Inc., defendant, hereby appeals....” The Seventh Circuit held that the notice did not constitute an appeal on the part of Shepley. As is clear from the text of our decision, infra, the holding of Allen Archery, like that of Torres, is of little relevance to the issue before us. . Even if "defendants" only referred to some defendants we would not dismiss the entire appeal; for jurisdiction would exist as to the Immigration and Naturalization Service, the defendant specifically named in the caption of the notice of appeal. Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114 (1st Cir.1989). . In Meehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir.1988), we considered the question whether a notice of appeal naming "Brian Meehan, et al” was sufficient to constitute an appeal on behalf of two unnamed defendants as well. We held that it was not. Our opinion does not indicate whether the quoted words appeared in the caption of the notice, the body, or both. What is clear, however, is that, unlike the case before us, there is no suggestion in the opinion that the names of the two other defendants appeared anywhere in the notice of appeal or that any generic term such as "defendants" or "the defendants" was used instead. . In Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.1989), the First Circuit held that it had jurisdiction over Acevedo-Ruiz’s appeal since he was named in the caption of the notice of appeal. In its opinion, the court assumed that it lacked jurisdiction over Acevedo-Ruiz’s wife and the conjugal partnership although the word "defendants” was used in the body of the notice. However, the court found it unnecessary to rule on that issue since it found jurisdiction over Acevedo-Ruiz’s appeal sufficient for purposes of the proceedings before it, and since the wife and partnership were merely derivative rather than real defendants. To the extent that dictum in Mariani-Giron suggests that the use of the term "defendants” is insufficient to give notice that all defendants are appealing, we simply disagree.

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

GUARANTY TRUST CO. OF NEW YORK v. COMMISSIONER OF INTERNAL REVENUE. No. 420. Circuit Court of Appeals, Second Circuit. Aug. 13, 1935. Davis, Polk, Wardwell, Gardiner & Reed, of New York City, for petitioner. Frank J. Wideman, Asst. Atty. Gen., and Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., for respondent. Before MANTON, SWAN, and CHASE, Circuit Judges. CHASE, Circuit Judge. The petitioner is the executor of the American will of James Benson Kennedy who was a citizen of the United States domiciled in New York when he died in England on February 24, 1931, during a temporary visit there. He left tangible and intangible personal property both in England and in the United States. Pie left an American will which disposed of his property in the United States and an English will effective only as to property in England. His property in England consisted of stocks, bonds, and securities of corporations not American and of governments other than the United States, cash and tangible personal property of the total value of $614,987.30. The executors of his English will paid the English death duties assessed thereon to the amount of $133,588.05. The American estate of the deceased as returned for taxation was increased by the Commissioner by the value of the English estate above given, without any deduction for English death duties paid, and the resulting deficiency assessed is the one before us upon this petition to review. Section 302 (a) of the Revenue Act of 1926, 26 USCA § 1094 (a), provided that the gross estate of every decedent should consist of all his property wherever situated to the extent of his interest therein at the time of his death. We need not now deal with deductions which are allowable if duly claimed by nonresidents, for this decedent was a resident of this country as well as an American citizen. Nor need we be concerned with any distinction between real estate and personal property in a foreign country, for decedent owned no English real property. See, however, 31 Opinions of the Attorney General, 287, May 14, 1918, excluding foreign real estate from the scope of the estate tax. < The language of the above statute is extremely broad, It follows that of -the Revenue Act of 1916 and subsequent acts were uniform in this respect until a change was made in that of 1934. The regulation applicable, T. R. 70, art. 11, provided in part, following the above-mentioned opinion of the Attorney General, that, where decedent was a resident of this country, the value of all personal property wherever situated should be included in his gross estate. The regulations under previous acts had been to the same effect. See Reg. 37, art. 13, Reg. 63, art. 12, and Reg. 68, art. 11, promulgated respectively under the 1918, 1921, and 1924 acts. This administrative construction of the statute is to be taken as having been approved by Congress when it re-enacted the statute without change in 1921, 1924, and 1926. McCaughn v. Hershey Chocolate Co., 283 U. S. 488, 51 S. Ct. 510, 75 L. Ed. 1183; Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457; United States v. Dakota-Montana Oil Co., 288 U. S. 459, 53 S. Ct. 435, 77 L. Ed. 893. In view of this we can have n'o doubt but that Congress intended to include the value of foreign personal property in the tax base just as the language used ordinarily would imply. The suggestion that the decision in United States v. Goelet, 232 U. S. 293, 34 S. Ct. 431, 58 L. Ed. 610, in which it was held that a tax imposed .on foreign built yachts did not apply to a yacht of a citizen permanently domiciled abroad is to the contrary, is too far-fetched for serious consideration. It' relates to what Congress intended when it enacted a different statute relating to a different tax. Nor does the possibility, even the present certainty, of double taxation, make the tax in any wise invalid. Burnet v. Chicago Portrait Co., 285 U. S. 1, 52 S. Ct. 275, 76 L. Ed. 587. That is a matter within the discretion of Congress and not a limitation upon its power to tax.' See Gibbons v. Ogden, 9 Wheat, 1, 6 L. Ed. 23; Willcuts v. Bunn, 282 U. S. 216, 51 S. Ct. 125, 75 L. Ed. 304, 71 A. L. R. 1260. The power of Congress to put the value of foreign personal property in the estate tax base seems as plain as its intent to do so. The fact that this personal property was in the possession of the English executor is immaterial, for the tax is imposed upon the transfer, not the property. Reinecke v. Northern Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397. The constitutional limitations upon the power of the states to tax personal property do not apply to the United States. Burnet v. Brooks, 288 U. S. 378, 53 S. Ct. 457, 77 L. Ed. 844, 86 A. L. R. 747; United States v. Bennett, 232 U. S. 299, 34 S. Ct. 433, 58 L. Ed. 612. The United States is equally free to tax the trans-. fer of such property. In Cook v. Tait, 265 U. S. 47, 44 S. Ct. 444, 68 L. Ed. 895, the power of Congress to tax a United States citizen, domiciled outside of this country, upon income from real and personal property located in Mexico, was upheld. Here the decedent received the governmental protection upon which the power to tax may be supported under the foregoing authorities until the moment he died. Of course his death was the event which took place to call the taxing statute into operation, and at that time he no longer needed or could be accorded protection, but the distinction the petitioner would put upon this ground is wholly unréal. The tax may well be supported by the benefit derived up to the instant of death. The incidental contention that the taxable estate of the decedent should be reduced by the amount of the English death duties paid cannot be sustained. The power to tax the estate made up by including the value of the personal property situated in England is not limited by any requirement to allow deductions from that value. Whether any deductions will be allowed is for the determination of Congress. Section 303 (a) (1) of the 1926 act, 26 USCA § 1095 (a) (1), provided for some deductions from the gross estate of a resident in arriving at the taxable net, but expressly excluded from such deductions “any estate, succession, legacy, or inheritance taxes.” 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.

UNITED STATES v. GROSS et al. No. 6794. Circuit Court of Appeals, Seventh Circuit. April 1, 1939. Joseph R. Roach and A. E. Roth, both of Chicago, 111., for appellants. Daniel D. Glasser and William J. Campbell, both of Chicago, 111., for the United States. Before SPARKS, MAJOR, and KER-NER, Circuit Judges. SPARKS, Circuit Judge. The appellants and John Vaneo were jointly indicted by a Federal Grand Jury on four separate counts. The first count charged them with feloniously carrying on the business of a wholesale liquor dealer without having paid the special tax required by -law. The second count charged them with having feloniously transported through the streets of the city of Chicago, 130 gallons of alcohol, in containers which did not have affixed to them stamps denoting the quantity of distilled spirits contained therein, and evidencing payment of all Internal Revenue taxes imposed upon such spirits as required by law. The third count charged them with removing, depositing and concealing alcohol in respect of which a tax was then and there imposed, with intent to defraud the United States of such tax. The fourth count charged the defendants-with a conspiracy to commit the ofifenses set forth in the preceding counts. To each count of this indictment the defendants entered a plea of not guilty, and on October 31, 1938, a jury was empaneled to try the cause. On the same da} Vaneo, by leave of court, withdrew his plea of not guilty and entered a plea of guilty, whereupon the trial proceeded. At the close of the Government’s evidence each appellant filed a motion for directed verdict. This was. renewed at the close, of all the evidence and was denied. The jury returned a verdict of guilty as charged in the indictment. Judgment was entered on the verdict, and from that judgment this appeal is prosecuted. Appellants have not complied with paragraph 5 of rule 22 of this court by setting forth the contested issues, but in the body of tlieir brief they state that they rely upon the following alleged errors; (1). The cross-examination of the defendants and a witness presented by them; (2) the ruling of the court in admitting evidence of unrelated felonies; and (3) the- ruling of the court in admitting in evidence an alleged confession of the appellant Nolan. The record substantially supports the following facts: Armstrong and Linder were investigators for the Government. On November 22, 1937, they went to the vicinity of Ashland Avenue and Seventeenth Street, where they smelled the fumes of mash emanating from 1540 West Seventeenth Street. They thereupon stationed themselves in a building near the one from which the odors emanated. They heard men working in that building and located themselves on the first floor of a building directly opposite a garage door in the rear of the suspected building. ■ At about nine-fifty P. M. they heard the start of a motor, the doors of the garage opened, and a Ford car backed out of the garage. The defendant Vaneo was at the wheel of the car and there were two other men inside the garage. They closed the doors as Vaneo “cleared” to drive away. Linder afterwards identified Gross as one of the other men, but Armstrong identified no one 'but Vaneo. As the car drove away it appeared to be heavily loaded. Armstrong and Linder thereupon drove their car to Fourteenth and Halsted Streets where they found the Ford car which had backed out of the garage.- They approached it and -smelled the fumes of alcohol. One of them set his foot on the bumper, and was convinced by the reaction of the springs that it was heavily loaded, and he also saw the shape of five-gallon cans under an old cloth that was back of the front seats. Shortly thereafter Vaneo left a tavern at the corner of Fourteenth and Halsted Streets, cleaned the windows of his car, and returned to the tavern. Shortly, afterwards appellants and Vaneo came out of the tavern, got into the Ford car and drove away. Armstrong and Linder followed the Ford and stopped it a short distance from the tavern. Nolan was then driving the car, and upon being stopped he stepped out of the car with his police badge in his hands and said to Armstrong and Linder: “I am a police officer of the city óf Chicago. What is the idea of stopping us?” - Armstrong said: “Well, anybody can have a badge like that. Plow many cans have you got in there?” Nolan then got into the front seat of the investigators’ car a!nd said: “Can’t you give a fellow a pass ? 1 am a police officer and I think you ought to give me a pass.” Armstrong replied: “Why?” To which Nolan answered: “In the first place the two boys here with me has nothing to do with this load. You can let them go. They don’t know a thing about it. I picked them up on Halsted. They wanted a ride home and the load belongs to me.” In the meantime Linder had driven the carload of alcohol to the Union Station Motor Garage. It had twenty-six five-gallon cans of untaxpaid alcohol in it. Armstrong called Assistant United States Attorney Glasscr by telephone and then took Nolan to Glasser’s home. Glass-er instructed Nolan that he was an Assistant United States District Attorney, and that any information he gave or any statements he might make might be used either for or against him; that he was under no orders to make a statement in regard to the offenses, but that if he wanted to help himself he could do so by telling Glasscr where the alcohol came from. This Nolan refused to do as he did not care to involve the people from whom he got the alcohol. He refused Glasser’s permission to call his captain or his supervising captain. He stated that this was the fifth load of alcohol that he had purchased, paying $9.00 for each five-gallon can; that he was selling it for $9.50, and that he was taking this load to Thirty-first and Halsted Streets. The building from which the odors of mash were emanating did not have a sign on or about it with the words: “Registered Distillery.” It was stipulated at the trial that the automobile seized on the night in question contained twenty-six five-gallon cans of untaxpaid alcohol; that it was 180 proof, and that the Government tax would be $3.60 per gallon; that neither of the defendants had issued to him a wholesale liquor dealer’s stamp at the time of the violation charged in the first count. It is first contended by appellants that the court in its cross-examination of Nolan and another witness went beyond the scope of the direct examination, thereby preventing appellants from having a fair trial. There is no doubt that the trial court has a right to examine the parties as well as witnesses, and we agree with appellants that in doing so the court should be calmly judicial, dispassionate and impartial. United States v. Breen, 2 Cir., 96 F. 2d 782. It would serve no good purpose to set forth in detail the court’s cross-examination complained of. It is quite true that many of the court’s questions were collateral to the main question involved. For this reason these witnesses could not be impeached with respect to their answers. It must be remembered that when a party or a witness takes the stand he takes his character with him, and he may be questioned as to collateral matters in so far as the answers thereto may reflect upon his character as a witness. A perusal of this record convinces us that the court did not abuse its discretion, and that the answers given to the questions could not have prejudiced the jury in any way. What we have said in this respect applies also to the District Attorney’s cross-examination of the defendant, Gross. It is further contended that the court erred in admitting evidence tending to show other unrelated offenses, that is to say, the unlawful operation of a distillery; maintenance therein of contraband alcohol; and other offenses involved in that situation. The evidence thus objected to referred to facts ascertained with reference to the building from which the alcoholic fumes were emanating, and from which the Ford automobile started. It is obvious that these facts were quite closely related to the charge under the first count of the indictment, and were properly admitted. It is urged, however, by appellants that there is no substantial evidence connecting either Gross or Nolan with those alleged unrelated offenses. With this contention we cannot agree. There is substantial evidence, of one of the investigators that Gross was at the building when Vaneo drove the Ford away. It is quite true that no one identified Nolan as one of the three parties then present, but his confession thereafter was substantial evidence from which the court could rightfully infer that he was present. This is further supported by Nolan’s testimony in which he refused to divulge the name of the party from whom he received the alcohol; and by his further statement that neither Gross nor Vaneo had anything to do with the affair and that he had just picked them up on Halsted Street in order to take them home. Furthermore, he was driving his car when he was arrested, and if he had merely picked them up for the purpose of taking them home he had obviously loaned the car to Gross and Vaneo, for they had it in their possession when the government witnesses first saw them. Here we have conflicting statements of Nolan, and the jury had a right to believe that which they deemed most worthy of credit. From all the facts and circumstances -the jury quite evidently believed that Nolan was the third party present when the automobile backed out of the garage. From these conflicting statements, together with Nolan’s refusal to divulge the names of the operators of the plant, we think the jury was warranted in concluding that both appellants were guilty under the first count as well as under the other counts. It is contended, however, by appellant Nolan that his confession was induced by a promise of reward and hope of immunity. A perusal of this record convinces us that there is no merit in this contention. The evidence was quite substantial to the contrary, and in view of the fact that Nolan was then a police officer, and had been for several years, we are unable to conceive that he was over-reached in this respect, and the evidence is quite positive that he was told that any statement he might make might be used for or against him. Judgment 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?

Stanley B. BLOCK; John C. Blazier; Joseph A. Clements; Dan W. Deloney; Wyatt C. Deloney; Ralph Diorio; Robert A. Epstein; Charles B. Filleman; Glenna Goodacre; Robert Goodacre; Joe E. Goodwin; Sarah Grace; Edmond J. Harris; Wesley H. Hocker; Roman Hought; W.R. Jacobsen; Robert L. Jordan; Ted Kotcheff; Frank H. Kush; David Laman; Hurdle H. Lea; David D. Maytag; Doyle E. Montgomery; Henry Nobel; Ron Maller; William H. Plummer; Edward E. Rottenberry; G. Walter Rottenberry; Michael J. Scarfia; Bill R. Sparks; Lewis F. Wood, Plaintiffs-Appellants, v. FIRST BLOOD ASSOCIATES; A. Frederick Greenberg; Richard M. Greenberg; Anabasis Investments, N.V.; Carolco Pictures, Inc.; Goldschmidt, Fredericks & Oshatz; Henry J. Goldschmidt; Lawrence E. Goldschmidt; Michael P. Oshatz; Leonard A. Messinger; Sanford J. Schlesinger; Edward I. Sussman; Mark A. Meyer; Touche Ross & Co., Defendants. FIRST BLOOD ASSOCIATES; A. Frederick Greenberg; Richard M. Greenberg, Defendants-Appellees, v. UNITED STATES of America, Intervenor. No. 90, Docket 91-7558. United States Court of Appeals, Second Circuit. Argued Nov. 24, 1992. Decided March 15, 1993. I. Stephen Rabin, New York City (Joseph P. Garland, Brian Murray, New York City of counsel), for plaintiffs-appellants. Scott M. Berman, New York City (Jay G. Strum, Michael K. Rozen, Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel), for defendants-appellees. Kay K. Gardiner, Asst. U.S. Atty. for S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty. for S.D.N.Y., Gabriel W. Gor-enstein, Asst. U.S. Atty. for S.D.N.Y., New York City, Barbara Biddle, Scott R. McIntosh, Appellate Staff, Civ. Div., U.S. Dept, of Justice, Washington, DC, James R. Doty, General Counsel, Paul Gonson, Solicitor, Jacob H. Stillman, Associate Gen. Counsel, Leslie E. Smith, Sr. Sp. Counsel, Michael G. Lenett, Sr. Counsel, Kelly Rowe, Atty., S.E.C., Washington, DC), for intervenor and amicus curiae S.E.C. Before PIERCE, MINER and WALKER, Circuit Judges. MINER, Circuit Judge: Plaintiff-appellant Stanley Block filed a class action in November 1986 against defendants-appellees First Blood Associates (“First Blood”), A. Frederick Greenberg and Richard M. Greenberg (collectively “the Greenbergs”), and against defendants Anabasis Investments, N.V. (“Anabasis”) and Carolco Pictures, Inc. (“Carolco”) after purportedly relying to his detriment on allegedly false statements made in a private placement memorandum issued by First Blood. In his complaint, Block alleged that all the defendants committed securities fraud, in violation of section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988), and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5 (1992), and committed the common law torts of fraud and deceit. Also alleged in the complaint was a breach of contract claim against First Blood. In July of 1988 the district court denied Block’s motion for class certification but granted him leave to renew upon a showing that a “meaningful number” of other investors shared with him an “identity of interest.” See Block v. First Blood Assocs., 691 F.Supp. 685, 695-96 (S.D.N.Y.1988) (“Block II”). Block’s second motion for class certification was filed in December 1988 and denied by the district court three months later. See Block v. First Blood Assocs., 125 F.R.D. 39 (S.D.N.Y.1989) (“Block III”). In July of 1989 Block and twenty-nine other investors (collectively “the Investors”) filed an amended complaint against the original defendants: First Blood; the Greenbergs; Anabasis; and Carolco; and added the following as defendants: Touche Ross & Co. (“Touche Ross”); the law firm of Goldschmidt, Fredericks & Oshatz; and its partners, Barry Fredericks, Henry Gold-schmidt, Michael Oshatz, Leonard A. Mes-singer, Sanford Schlesinger, Edward Suss-man and Mark Meyer. In his amended complaint, Block reiterated the allegations in his first complaint, except the breach of contract claim against First Blood, and further alleged: section 10(b) and common law fraud and deceit against the newly added defendants; negligence and malpractice against the newly added defendants; breach of contract against Anabasis‘and Carolco; breach of fiduciary duty against First Blood and the Greenbergs; and negligent misrepresentation against all the defendants. The district court ordered that discovery be completed by November 14, 1990, and that a final pretrial order be submitted two weeks later. to dismiss the Investors’ action as time barred. On April 30, 1991, the district court granted the defendants’ motion and dismissed the action. See Block v. First Blood Assocs., 763 F.Supp. 746 (S.D.N.Y.1991) {“Block F”). The district court construed defendants’ summary judgment motion as including a motion to amend their answer pursuant to Fed.R.Civ.P. 15(a) to plead a statute of limitations defense. See id. at 747-48. After granting the defendants leave to amend, see id. at 748-50, the district court found that the Investors’ claims were time barred under the pre-Ceres statute of limitations because their action accrued in 1982 — the date when the last plaintiff purchased shares in First Blood — and all the acts complained of took place at or before the purchase of the shares. See id. at 750-51. The district court also determined, upon applying retroactively the new limitations period announced in Ceres, that the Investors’ action was time barred. See id. at 751-52. Finally, the district court dismissed the Investors’ state law claims, apparently for lack of pendent jurisdiction. See id. at 752. The Investors appeal from the district court’s dismissal of their claims, and Block appeals from the district court’s refusal to grant his motion for class certification. BACKGROUND The facts giving rise to this action are set forth in five published opinions written by Judge Sweet, see Block V, 763 F.Supp. 746; Block v. First Blood Assocs., 743 F.Supp. 194 (S.D.N.Y.1990) (“Block IV”); Block III, 125 F.R.D. 39; Block II, 691 F.Supp. 685; Block v. First Blood Assocs., 663 F.Supp. 50 (S.D.N.Y.1987) (“Block /”). We assume familiarity with these opinions and therefore provide only a brief summary of the facts and circumstances giving rise to this action. First Blood is a New York limited partnership formed in July 1981 for the purpose of acquiring the rights to the film First Blood (Carolco/Orion 1982) (“the film”) from Anabasis, a privately-owned company organized under the laws of the Netherlands Antilles. The Greenbergs are the only general partners of First Blood. See Block II, 691 F.Supp. at 688. In September 1982, through a sale and service contract (“the Purchase Agreement”), First Blood purchased the film from Anabasis for $200,000 in cash and a recourse note in the sum of $18,924,000. First Blood also entered into a distribution agreement with Anabasis (“the Distribution Agreement”), granting “Anabasis the exclusive right to exploit the film on a world-wide basis in all media for a period commencing on the date of the Distribution Agreement and ending December 31, 1990” and “the exclusive right to exploit the film to the full extent such rights are possessed by [First Blood].” See id. Anabasis agreed to pay First Blood certain “contingent license fees” and certain “additional license fees” if the film generated certain levels of “gross receipts.” Contingent license fees were estimated to be slightly in excess of the amount due on the recourse note until 1989 (approximately $2000 per full partnership unit per year), after which they would increase substantially. “Additional license fees” included various percentages of the film’s gross receipts in excess of $45,000,000. The Distribution Agreement required that Anabasis pay First Blood “additional license fees as earned.” See id. First Blood wanted to take advantage of certain tax regulations in force at the time and to generate long-term profits. Touche Ross prepared a report, projecting that substantial tax benefits would accrue to First Blood through 1987, to be followed by substantial profits beginning in 1989. First Blood issued a private placement memorandum (“the Memorandum”) offering limited partnership units to “ ‘accredited’ investors or [those investors] who either alone or with their purchaser representative^) have such knowledge and experience in financial and business [sic] that they are capable of evaluating the merits and risks of their prospective investments.” First Blood offered twenty-eight limited partnership units for $200,000 each and accepted subscriptions for fractional units. Fifty-seven investors purchased full or fractional interests in First Blood, ranging from $50,000 to $400,000 in price. See id. The Memorandum limited the offering to sophisticated and wealthy investors. All prospective limited partners were required to complete a purchaser questionnaire, which required the investors to list their income tax rate, net worth, education, frequency of investment in marketable securities and previous investments purchased under the nonpublic offering exemption from registration of the Securities Act of 1933 (“the 1933 Act”), 15 U.S.C. § 77d (1988). See 691 F.Supp. at 688-89. First Blood also required the limited partners purchasing a full partnership unit to assume $662,970 of the recourse note executed in favor of Anabasis (“the Assumption Agreement”) or a share of the recourse note proportionate to their fractional partnership units. The Assumption Agreement further required the limited partners to bear their proportionate shares of the principal amount of the unpaid indebtedness to the extent the contingent licensee fees payable by Anabasis to First Blood were insufficient to pay the principal due on the recourse note. First Blood promised that: [t]he Limited Partners will share in ninety-eight (98%) percent of the net profits, losses and cash flow of the Partnership, and the General Partners will receive two (2%) percent of the net profits, losses and cash flow. Distributions to the Limited Partners will be allocated among them in proportion to their respective capital accounts. There Can Be No Assurance That Exploitation Of The Film Will Yield Suffioient Cash Flow To Return To The Limited Partners Any Portion Of Their Investment In The Partnership, Inoluding Any Payment Required Under The Assumption Agreement Or Provide A Profit Thereon. See id. at 689. In October 1982, Block purchased one-quarter of a partnership unit for $50,000. Block has practiced law for over thirty years, has invested frequently in marketable securities, has previously purchased securities exempt from registration under the 1933 Act and has been a limited partner in a securities arbitrage partnership. Prior to investing in First Blood, Block received and reviewed the Memorandum and the Touche Ross projections of First Blood’s profitability and tax benefits. Block has received all distributions projected in the Touche Ross projections and all promised tax savings. First Blood has disbursed ninety-eight percent of the net profits, losses and cash flow of the partnership to the limited partners. Block also has received all necessary information for tax reporting purposes as promised in the Memorandum. The gravamen of the Investors’ complaint concerns inconsistencies between the Memorandum and the Purchase Agreement with respect to First Blood’s ownership of the film. The Memorandum indicates that First Blood is to have all of Anabasis’ right, title and interest to the film, including the music rights, sound recording rights and merchandising rights. The Purchase Agreement, however, provides that Anabasis reserves the following rights in the film: the rights to any remake; the rights to stage productions; the music rights; the sound recording rights; the merchandising rights; the right to publish; the television rights; the rights in the literary work; any option rights; and the right to make “featurettes.” See id. Thus, the Investors claim that First Blood did not in fact acquire all rights to the film and indeed failed to acquire the necessary rights for the limited partnership to earn a profit from the distribution and other uses of the film. The Investors further claim that, because of First Blood’s failure to disclose that it did not acquire all the rights to the film, First Blood could never earn a profit, thereby causing the IRS to disallow the tax deductions claimed by one of the Investors on the ground that the partnership investment was a tax-motivated, and not a profit-motivated, transaction. Although the film, starring Sylvester Stallone, was a “huge success,” the Investors claim to have spent an additional $41,-669 in financing charges and to have received less than $11,000 in distributions on each $200,000 limited partnership unit. The Investors demand recovery from the appellees of the amounts invested in and expended on account of their investments in First Blood, the amount of additional taxes, interest and penalties due and owing as a result of the revenues generated by the film, and punitive damages. See Block IV, 743 F.Supp. at 196. DISCUSSION 1. The Accrual of the Section 10(b) Claim Prior to Ceres, a section 10(b) claim accrued “ ‘when the plaintiff ha[d] actual knowledge of the alleged fraud or knowledge of facts which in the exercise of reasonable diligence should have led to actual knowledge,’ ” Phillips v. Levie, 593 F.2d 459, 462 (2d Cir.1979) (quoting Stull v. Bayard, 561 F.2d 429, 432 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978)), and the statute of limitations period was determined by looking to the law of the forum state, Ceres, 918 F.2d at 352. Here, the district court properly applied New York’s borrowing statute, N.Y.Civ.Prae.L. & R. 202 (McKinney 1990), which directs a court to apply the statute of limitations of the state where the cause of action accrued. We have held that a § 10(b) action accrues in the state where “its economic impact is felt, normally the plaintiff’s residence.” See Sack v. Low, 478 F.2d 360, 366 (2d Cir.1973). Thus, if the Investors’ action were time barred in the states of their residence, their action also would be barred in a federal court sitting in New York. Ceres, 918 F.2d at 353. The parties agree that this action would be time barred under the applicable statutes of limitations in the states where the Investors reside if it accrued in October 1982, i.e., when the last investor purchased shares in First Blood. See Block V, 763 F.Supp. at 751. The Investors argue that their action did not accrue until late 1984, when they first realized that they were not receiving the expected return on their investments. We agree with the district court’s finding that, in October 1982, the Investors possessed all the knowledge necessary to provide them with sufficient inquiry notice that the Memorandum contained material misstatements with respect to First Blood’s ownership of the rights to the film and the questionable profitability of their investments. The Purchase Agreement was frequently referred to in the Memorandum, and the Memorandum indicated that the Purchase Agreement was available for inspection at First Blood’s offices. Moreover, the Memorandum includes numerous underscored and capitalized warnings that the investment contains a substantial risk of adverse tax consequences. Given the sophistication of the Investors, an examination of the Memorandum should have revealed that this investment was tax-motivated and not intended to turn a profit, and an examination of the Purchase Agreement would have revealed that First Blood was not, in fact, the owner of all the rights to the film. See Landy v. Mitchell Petroleum Technology Corp., 734 F.Supp. 608, 617 (S.D.N.Y.1990); see also Bender v. Rocky Mountain Drilling Assocs., 648 F.Supp. 330, 334-35 (D.D.C.1986). Thus, the district court properly determined that the Investors’ action accrued in October 1982 and dismissed their action as time barred. Because we are affirming the district court’s decision to dismiss the Investors’ action under pre-Ceres law, we need not reach the issues of: whether the district court erred in retroactively applying the rule in Ceres to this action; whether section 27A of the Securities Exchange Act of 1934 (providing for a revival of certain time-barred § 10(b) claims) is unconstitutional; or whether the district court properly declined to certify this case as a class action. 2. Waiver of the Statute of Limitations Defense The Investors further argue that the ap-pellees have waived their statute of limitations defense by failing to raise it over a period of more than four years since the complaint was filed. In support of their argument, the Investors rely on Fed. R.Civ.P. 8(c), which requires a party to “set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense.” After observing that the appellees had not in fact moved to amend their answer to include the statute of limitations as an affirmative defense, Judge Sweet construed their summary judgment motion also as a motion to amend under Fed. R.Civ.P. 15(a). Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” We review a district court’s decision to grant a party leave to amend under Rule 15 for abuse of discretion. Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir.1986). The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmov-ant of prejudice or bad faith. See State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981). However, “the longer the period of an unexplained delay, the less will be required of the non-moving party in terms of a showing of prejudice.” Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir.1983) (citing Advocat v. Nexus Indus., Inc., 497 F.Supp. 328, 331 (D.Del.1980)). In determining what constitutes “prejudice,” we consider whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction. See, e.g., Tokio Marine & Fire Ins. Co., 786 F.2d at 103; Fluor, 654 F.2d at 856; Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1157-58 (2d Cir.1968); Calloway v. Marvel Entertainment Group, 110 F.R.D. 45, 48 (S.D.N.Y.1986). “Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” Fluor, 654 F.2d at 856. In arguing that the district court abused its discretion by granting the appellees leave to amend their answer, the Investors rely on our decision in Strauss, where we reversed a district court’s decision granting the defendant leave to amend its answer to include a statute of limitations defense. However, the plaintiff in Strauss successfully demonstrated that he could have timely brought his action in another forum had the defendant promptly raised its statute of limitations defense. See Strauss, 404 F.2d at 1157-58. Here, however, the Investors have failed to demonstrate that they could have brought their claims in another forum if the appellees had raised their statute of limitations defense earlier. Plaintiffs’ reliance on our decision in Evans is also misplaced. In Evans, plaintiff and her appointed counsel commenced an action for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988). The defendant moved to amend its answer to assert the defense of res judicata based on a dismissal over two years earlier of a similar claim brought by the plaintiff pro se in state court. We refused to allow the defendant to amend because plaintiff’s counsel was unaware of the state court’s decision, and the defendant—which knew of the decision—should have informed plaintiff’s counsel. See Evans, 704 F.2d at 48. Had the plaintiff’s counsel known of the state court’s decision, the res judicata issue could have been adjudicated prior to the expenditure of time, effort and resources. See id. The defendant in Evans acted in bad faith, whereas here the Investors’ claim was untimely on the day it was commenced and the defendants were not aware of facts that were unknown to the plaintiffs. The Investors argue that they were prejudiced solely because of the time, effort and money they expended in litigating this matter. These allegations do not arise to the “substantial prejudice” we contemplated in Strauss, see 404 F.2d at 1155, or even the lesser prejudice required in Evans, see 704 F.2d at 47. Therefore, the district court did not abuse its discretion in granting First Blood and the Greenbergs leave to amend their answer. 3. The Pendent Claims A district court may exercise pendent jurisdiction over state-law claims “whenever the federal-law claims and state-law claims in the case ‘derive from a common nucleus of operative fact’ and are ‘such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.’ ” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). The decision whether to exercise pendent jurisdiction is within the discretion of the district court. Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 563 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991). In exercising that discretion, a district court is required to “consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdic-tion_” Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619. Although courts adjudicating cases similar to plaintiffs’ have declined to dismiss pendent claims after the federal claims were dismissed, see, e.g., Enercomp, Inc., v. McCorhill Pub., Inc., 873 F.2d 536, 545-46 (2d Cir.1989); Philatelic Found. v. Kaplan, 647 F.Supp. 1344, 1348 (S.D.N.Y.1986), we do not believe Judge Sweet abused his discretion in refusing to exercise pendent jurisdiction over plaintiffs’ state law claims when their federal claims were dismissed before trial. See Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). CONCLUSION The judgment of the district court is affirmed for the foregoing reasons. . Anabasis, Carolco and the defendants added in the amended complaint have been dismissed from the case and are not parties to this appeal. . The Memorandum provides: It is very likely that the Internal Revenue Service will examine the Federal income tax returns of the Partnership and, in such event, may challenge positions taken by the Partnership. SUCH CHALLENGES MAY BE SUCCESSFUL.... NEITHER THE PARTNERSHIP NOR ANY AGENT THEREOF ASSUMES ANY RESPONSIBILITY FOR THE TAX CONSEQUENCES OF THIS TRANSACTION TO AN INVESTOR. . The district court’s determination that plaintiffs’ action accrued in October 1982 disposes of their arguments that the filing of the class action tolled the statute of limitations for all the plaintiffs except Block and that the claims asserted by plaintiffs in their amended complaint relate back to the filing of the original complaint in November 1986. Because the class action complaint was filed more than four years after the statute of limitations began to run, none of the plaintiffs’ claims was timely on the date the complaint was filed. See Block V, 763 F.Supp. at 750 n. 3.

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

Cecilia KARIKAS, Appellant v. UNITED STATES of America, Appellee. No. 16354. United States Court of Appeals District of Columbia Circuit. Argued Oct. 2, 1961. Decided Nov. 9, 1961. Mr. Robert L. Ackerly, Washington, D. C., for appellant. Mr. Robert Brewer Norris, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., and Frederick G. Smithson, Asst. U. S. Atty., were on the brief, for appellee. Mr. Carl W. Belcher, Asst. U. S. Atty., at the time the record was filed, entered an appearance for appellee. Before Wilbur K. Miller, Chief Judge, and Edgerton and Fahy, Circuit Judges. WILBUR K. MILLER, Chief Judge. On August 6,1959, a young woman who gave her name as Anne Whiteside appeared at the Washington office of Pan American World Airways and presented for redemption six unused tickets from New York to Rome, and return from Rome to New Orleans via New York. The tickets bore validating stamps indicating they had been issued by Delta Travel Bureau of New Orleans. Each showed on its face a cost of $1,194.50. Miss Whiteside asked that the entire refund be made by one check payable to International Students Relations Committee, but was told that could not be done; that the air line’s rule was to draw separate checks to the persons whose names appeared on the tickets. Accordingly, six checks dated August 6, 1959, for $1,194.50 each, payable respectively to Hiriam Schonenberg, Ling Chen, Peter Simmons, Jr., Donald Lee, Saul Leherman and Roland Hodges, drawn on Pan American’s Refund Account in Bankers Trust Company of New York, were prepared and delivered to Anne Whiteside. A day or two later, Investment Bankers of America, a stock brokerage firm of the District of Columbia, received through the mail a purchase order form dated August 7, 1959, requesting that three stocks be purchased. The form bore the signature, “Anne Whiteside,” under which was typed, “Treasurer, Students’ Committee Investment Club, International Students Relations Committee,” and attached to it were the six refund checks endorsed in blank by signatures purporting to be those of the payees. The brokerage firm was able to buy only one of the three stocks mentioned — this at a cost of $200 — because the other two were selling at prices higher than those specified in the order. So the customer had a credit balance of $6,967. On August 18, Anne Whiteside closed the account and received Investment Bankers’ check for $6,967, payable to her as Treasurer, Students’ Committee Investment Club. A certificate for the one stock purchased had already been mailed to her. The six refund checks bearing the endorsement of Investment Bankers of America cleared in due course and were charged to Pan American’s account by the bank on which they were drawn. Some four months before the redemption just described, a representative of Pan American had picked up from Tour Travel International, a travel bureau which had an office in the District of Columbia, certain blank tickets, or “ticket stock,” which it had theretofore consigned to the bureau for completion, validation and sale in the ordinary course of business. He issued a receipt showing the serial numbers of the blank tickets so collected from the bureau. Nearly a year passed before Tour Travel was notified of a discrepancy between the blank tickets which had been consigned to it and those which Pan American had repossessed. On March 8, 1960, Pan American wrote Tour Travel' that an audit of its consigned ticket stock and its ticket sales showed the six tickets redeemed August 6,1959, had been among those originally consigned to Tour Travel and had not been accounted for by it. It later developed that the validation stamp on the six redeemed tickets, which purported to be that of Delta Travel Bureau, was not the stamp of Delta, which denied any connection with or knowledge of the validation and sale of the redeemed tickets. ' Further investigation seemed to implicate Joanne Goan and Cecilia Karikas, who had worked in the Washington office of Tour Travel, but who had left its employ about the end of April, 1959, Finally, a thirty-count indictment was returned against them in the District of Columbia. The first twelve counts charged them with forging and uttering the six tickets which were redeemed by Pan American. With respect to each of the six refund checks, the women were charged in separate counts with forging the endorsement, uttering the check with the forged endorsement, and causing it to be transported in interstate commerce —a total of eighteen counts in addition to the first twelve. On March 20, 1961, Joanne Coan entered a plea of guilty to count 16, which charged her and Cecilia Karikas with forging the endorsement “Ling Chen” on the back of the refund check bearing that name as payee. Thereafter she testified for the Government at the trial of Cecilia Karikas. She gave evidence in considerable detail: that she and Miss Karikas were both employed by Tour Travel until some time in the spring of 1959, after which she went to her home in Pennsylvania but returned to Washington to visit Miss Karikas at her apartment; that six blank tickets which she had in her file were filled out on a typewriter in the apartment at the suggestion of Miss Karikas; that, claiming to be Anne Whiteside, she obtained the refund checks and delivered them to Miss Karikas, who endorsed three of them and asked her to endorse the other three so the handwriting would not be the same; that she received from Investment Bankers the check heretofore mentioned and delivered it to Miss Karikas, who later gave her $2,000 in cash as her part of the ill-gotten proceeds. It is unnecessary to summarize the remainder of Mrs. Coan’s testimony which completed the story of how they carried out the fraudulent scheme. Details were furnished by other witnesses — bankers, F.B.I. agents, a handwriting and typewriting expert, the manager of Tour Travel, and Pan American’s employees. In a preliminary interview with investigating officers, Miss Karikas first denied any connection with or knowledge of the scheme to defraud, but finally admitted and later testified that she had signed the names of the payees on three of the refund cheeks, although she denied any intent to defraud. She was found not guilty under the first twelve counts, which charged her with forging and uttering the six false tickets, but was found guilty under the remaining eighteen counts, which accused her of forging the endorsements, uttering the checks with the endorsements so forged, and causing them to be transported in interstate commerce. Miss Karikas advances several reasons for reversal. First she argues the trial court erred in refusing to require a mental examination of Mrs. Coan, “where,” she says, “there was evidence that the co-defendant might be a pathological liar.” Her pre-trial motion that a mental examination of Mrs. Coan be ordered was based principally on the affidavit of a psychiatrist, who had never seen Mrs. Coan, to the effect that a person with a background such as hers had been represented to him, might be a pathological liar. Appellant withdrew the motion but renewed it after Mrs. Coan had testified against her. Because of the additional fact that the witness had admitted making false statements about her accomplishments in the musical world, Miss Karikas said a mental examination should be ordered. Mrs. Coan’s attorney, a respected practitioner with thirty years’ experience, who had represented her in other matters as well, said he thought her quite normal. In denying the motion, the trial judge said he could not see “the slightest basis for a mental examination of her * * *. The cross-examination and the facts elicited on cross-examination may very well ultimately go to the value and weight of her testimony before a jury, but there is nothing in it to suggest itself to me at all that a mental examination for her is in order.” We hold the judge acted within his discretion in denying the motion. Appellant thus states her second reason for reversal: “The trial court erred in questioning appellant in a manner which indicated that the court believed appellant was guilty of forgery and doubted her explanation and in permitting Government counsel to char- • acterize appellant’s answers to the court as a ‘judicial admission’ of her guilt of forgery.” Testifying in her own defense, Miss Karikas admitted endorsing three of the refund checks, but said she did so at the request of Mrs. Coan in order to facilitate depositing the checks to the account of the travel agency, and denied any intent to defraud. On cross-examination by Mr. Smithson, Government counsel, and examination by the court, the following occurred : “Q. [By Mr. Smithson]. Were-n’t you at all concerned about the forgery of the fictitious names on the back of the checks? “Mr. Sandground [Attorney for Miss Karikas]: I object, Your Honor. “The Court: On what ground? “Mr. Sandground: I don’t think that is a proper question. It is a conclusion, forgery, and has certain legal implications. “The Court: It also has a meaning, I. think, for any layman. I overrule the objection. You may answer. “Weren’t you concerned about forging a negotiable check?” . ‘.‘The Witness: I did not think of forgery, sir. “The Court:' What did you think of it as? “The Witness: I was just merely accommodating Miss Dinstel [Mrs. Coan] in signing the name of the person on the front to the other side, so that the names would look different, and that she could deposit them in the bank in New York, as she said she would. “The Court: To whose account? “The Witness: To Tour Travel.” Appellant’s argument is that the judge’s use of the word “forgery,” which imputes an intent to defraud, indicated to the jury he had already decided appellant had that intent, when in fact the existence of the intent was a question for the jury. But in the court’s instructions it was made plain that the jury must find beyond a reasonable doubt an unlawful and fraudulent intent, as well as a false making or signing. In view of the careful instructions, we think the jury must have clearly understood that, in the examination of a witness, the court’s occasional use of the word “forgery” to describe a false signing was not intended to foreclose in any way the issue of intention to defraud, which was for them to decide. Government counsel’s characterization of appellant’s statement that she falsely endorsed three of the checks as “a judicial admission in open court of the forgery” was not strictly accurate, as she did not admit having had an intent to defraud, which is, as we have said, an ingredient of forgery. She admitted only the false signing. But Government counsel, in his comment, added the following: “but she denies that she had any intent to profit by them.” While he did not thus say she denied an intent to defraud, we think his additional language sufficiently suggested that idea. So, even if the challenged statement in the argument of Government counsel was technically. erroneous, we do not think it was so sérious as to require reversal. Moreover, we do not agree that the trial judge questioned appellant “in a manner which indicated the court believed appellant was guilty of forgery and doubted her explanation.” On the contrary, the court’s questions gave Miss Karikas an opportunity, which she embraced, to amplify and emphasize her denial of an intent to defraud. As a third reason for reversal, appellant says: “The trial court erred in permitting Government counsel to argue to the jury that counsel for appellant had reserved an opening statement to the jury to permit counsel and appellant an opportunity to weave a defense after the close of the Government’s case, thus impugning the conduct of counsel and appellant in an improper and prejudicial manner.” It is noted that appellant did not object to the prosecutor’s remarks at the time they were made, and did not request the court to instruct the jury to disregard them. Having failed to do so, and the matter not amounting to plain error affecting substantial rights, she cannot complain .here that she was prejudiced by what was said by Government counsel. Cf. Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., and Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R.2d 1074 (1950). Moreover, the fact that appellant’s trial counsel did not object indicates he did not regard the prosecutor’s remarks as a reflection upon him or his client; the first complaint on that score is made here by appellant’s counsel on appeal who did not represent her at the trial. Mr. Sandground, trial counsel for Miss Karikas, was within his rights in obtaining permission to withhold his opening statement until the United States had presented its case, as the prosecuting attorney stated to the jury; and doing so was probably a good trial tactic. He could then legitimately frame his defense to meet the evidence adduced by the Government, which was a perfectly proper course for him to take. The prosecutor’s remarks were perhaps too picturesque, but we are sure they were not intended as a charge of wrongdoing against appellant’s trial counsel, who is a capable and honorable member of our bar. Appellant’s fourth and final contention is that the trial judge erred in denying her motion for judgment of acquittal because, she says, there was insufficient evidence of intent to defraud. Mrs. Coan’s testimony and circumstantial evidence from other witnesses, including Miss Karikas herself, was amply sufficient, we think to justify the jury in rejecting appellant’s denial of a fraudulent intent. As prejudicial error does not appear, the judgment appealed from must be upheld. Affirmed. . She said Mrs. Coan endorsed three of the refund cheeks and she endorsed the other three “so that the names would look different.” Prom this the jury could infer she knew the checks were being endorsed for a fraudulent purpose.

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

RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Appellant, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; Minncedar Land Limited Partnership; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp., CedarMinn Building Limited Partnership, a Minnesota limited partnership; Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Appellees. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Appellees, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A., Appellant. Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship. RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Plaintiff-Appellee, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; MinnCedar Land Limited; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp.; CedarMinn Building Limited Partnership, a Minnesota limited partnership, Defendants-Appellants. Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Defendants. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Defendants-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A.; Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship, Defendants-Appellees. RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Plaintiff-Appellee, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; MinnCedar Land Limited; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp., CedarMinn Building Limited Partnership, a Minnesota limited partnership, Defendants-Appellants. Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Defendants. (Two Cases) CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Plaintiffs-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A.; Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship, Defendants-Appellees. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota Limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Plaintiffs-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A., Defendant-Appellee. Nos. 91-1902, 91-1972, 91-2287 and 91-2546. United States Court of Appeals, Eighth Circuit. Submitted Nov. 13, 1991. Decided Feb. 18, 1992. Rehearing and Rehearing En Banc Denied March 27, 1992. Dorothy L. Nichols, Washington, D.C., argued (Richard T. Aboussie, Colleen B. Bombardier, Richard J. Osterman, Jr., Jose P. Ceppi, Lawrence H. Richmond and Ter-rill A. Rupp, on the brief), for Resolution Trust Corp. Roger B. Kaplan, Woodbridge, N.J., argued (Laura V. Studwell, Woodbridge, N.J. and Robert R. Weinstine, Steven C. Tourek and David A. Kristal, St. Paul, Minn., on the brief), for CedarMinn Bldg. Ltd. Partnership, et al. Before FAGG, Circuit Judge, TIMBERS, Senior Circuit Judge, and MAGILL, Circuit Judge. THE HONORABLE WILLIAM H. TIMBERS, Senior United States Circuit Judge for the Sea-ond Circuit, sitting by designation. MAGILL, Circuit Judge. The Resolution Trust Corporation (RTC) appeals the district court’s determination that the repudiation of certain leases by RTC as the receiver for a failed savings and loan was untimely. We find this result in error and, therefore, reverse. I. Midwest Federal Savings & Loan Association was mired in financial straits. Conjuring up a short-term solution to keep federal regulators at bay, Midwest Federal contracted with a group of investment partnerships to sell and lease back nineteen branch offices of the thrift. Under the two sale-leaseback agreements reached in 1985 and 1986, Midwest Federal sold nineteen branch offices to the partnerships (hereinafter collectively referred to as CedarMinn) at inflated prices. CedarMinn, in turn, agreed to lease the branches back to Midwest Federal at inflated rents. This agreement enabled Midwest Federal to show significant income during the years the sales were recognized. Midwest Federal wholly financed the purchase by CedarMinn through a non-recourse loan to the partnerships. Midwest Federal structured its lease payments to service the debt. Midwest Federal issued two letters of credit totalling $11.8 million to ensure payment. The agreements’ entire risk, therefore, devolved upon Midwest Federal. The district court found that the contractual rents under the agreements were more than five times the market rate. RTC v. CedarMinn Bldg. Ltd. Partnership, No. 4-90-828, slip op. at 24 (D.Minn. May 22, 1991). The Federal Home Loan Bank Board on February 13, 1989, declared Midwest Federal insolvent and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) as conservator. On May 4, 1989, FSLIC transferred the assets and liabilities of Midwest Federal to a new entity, Midwest Savings Association. FSLIC was appointed receiver of Midwest Federal and conservator of Midwest Savings. Congress passed the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) in August of 1989. Under FIRREA, RTC statutorily succeeded FSLIC as conservator of Midwest Savings. After negotiations aimed at selling Midwest Savings in its entirety failed, the conservator sold Midwest Savings’ deposits to other institutions in October of 1990. On October 5,1990, RTC was appointed receiver of Midwest Savings. Shortly thereafter, on October 29, 1990, RTC repudiated the CedarMinn leases. RTC brought an action in district court seeking a declaratory judgment that its repudiation was timely. CedarMinn sued for damages and the right to draw on the letters of credit. The district court held: (1) RTC’s repudiation of the leases was invalid because it was not made within a reasonable period after RTC’s appointment as conservator or receiver; and (2) CedarMinn was enjoined from drawing on the letters of credit so long as RTC continued to make timely rental payments because RTC’s attempted repudiation did not constitute a default. Both sides appeal. II. RTC repudiated the leases under 12 U.S.C.A. § 1821(e)(1) (West 1989), which provides that the conservator or receiver for any insured depository institution may disaffirm or repudiate any burdensome contract or lease. In so doing, the conservator or receiver must make the repudiation determination within a reasonable period after its appointment. 12 U.S.C.A. § 1821(e)(2). The liability for a conservator or receiver which timely repudiates a lease in which it was the lessee is limited to the contractual rent accrued through the date of disaffirmance. 12 U.S.C.A. § 1821(e)(4)(B)(i). The lessor loses any claim under an acceleration clause or penalty provision of the lease. 12 U.S.C.A. § 1821(e)(4)(B)(ii). CedarMinn argues that the “reasonable period” for repudiation commences when RTC is first appointed as a conservator or receiver. CedarMinn contends the October 1990 repudiation, which came fourteen months after RTC’s initial appointment under FIRREA, therefore, was untimely. RTC asserts that the statute gives both the conservator and receiver an independent right to repudiation and a separate “reasonable period” in which to make the repudiation decision. The period during which it could repudiate the leases, therefore, renewed itself when RTC was appointed receiver of Midwest Savings in October 1990. The district court declared the repudiation ineffective, ruling that RTC was required to make the repudiation determination within a reasonable period of its first appointment as conservator or receiver. RTC v. CedarMinn Bldg. Ltd. Partnership, No. 4-90-828, slip op. at 19-20 (D.Minn. Mar. 4, 1991). A. Independent Repudiation Rights The plain language of FIRREA grants independent rights of repudiation to RTC in both its capacity as conservator and receiver of an institution. Therefore, even though RTC may succeed itself in the capacity of conservator or receiver of the same institution, it retains the right to repudiate leases, regardless of whether it accepted the leases in its prior capacity. The statute at issue reads in its entirety: (1) Authority to repudiate contracts In addition to any other rights a conservator or receiver may have, the conservator or receiver for any insured depository institution may disaffirm or repudiate any contract or lease— (A) to which such institution is a party; (B) the performance of which the conservator or receiver, in the conservator’s or receiver’s discretion, determines to be burdensome; and (C) the disaffirmance or repudiation of which the conservator or receiver determines, in the conservator’s or receiver’s discretion, will promote the orderly administration of the institution’s affairs. (2) Timing of repudiation The conservator or receiver appointed for any insured depository institution in accordance with subsection (c) of this section shall determine whether or not to exercise the rights of repudiation under this subsection within a reasonable period following such appointment. 12 U.S.C.A. § 1821(e). In these two short subsections, Congress repeats the dual treatment of “conservator or receiver” seven times. Nowhere in the language of the statute is it stated or implied that the appointment of RTC as a conservator negates powers RTC would enjoy if it were later appointed a receiver of the same institution. Had Congress intended RTC’s status as a conservator or a receiver to be mere artifice, it would have granted all duties, rights, and powers to the Corporation. B. Independent Repudiation Time Frame Even though we find that the plain language of the statute confers an independent right of repudiation upon both the conservator and receiver of a failed, government-insured thrift, our inquiry is not over. We must next determine whether Congress’ insistence that the decision to repudiate be made within a reasonable period constitutes an implicit restriction on the receiver’s right to repudiate in situations where the receiver follows a conservator. In other words, does Congress’ mandate to make the repudiation determination within a reasonable period contemplate only a single time frame? Or is the decision by RTC not to repudiate the leases in its position as conservator irrelevant to RTC’s determination in its capacity as receiver? The standard we employ to review an agency’s interpretation of a statute it administers is clear. When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). FIRREA requires the “conservator or receiver” to determine whether or not to repudiate a contract “within a reasonable period following such appointment.” 12 U.S.C.A. § 1821(e)(2). We find the statute subject to conflicting readings. RTC argues that Congress intended to provide independent repudiation rights to both the conservator and receiver. Since there is no indication that Congress intended to restrict the receiver’s power to repudiate in situations where it follows a conservator, RTC asserts that Congress meant to give RTC a fresh chance to repudiate contracts when it is reappointed as a receiver. Ce-darMinn makes a plausible argument that the “reasonable period” requirement begins to run upon the appointment of RTC as either “conservator or receiver” and, therefore, contemplates a single time frame. Since we find the statute less clear on this point, we must accede to a permissible interpretation of the statute by RTC. Chevron U.S.A., 467 U.S. at 842-43, 104 S.Ct. at 2781-82. RTC has formally interpreted § 1821(e) as granting independent rights on it as both conservator and receiver to repudiate contracts. Moreover, RTC interprets FIRREA as granting it this repudiation power as a receiver even in situations in which it had earlier failed to repudiate as conservator. For the following reasons, we find reasonable RTC’s interpretation that Congress intended both the conservator and the receiver to have an independent “reasonable period” in which to repudiate. First, while the specific language of the statute is less than crystalline, the design and language of the statute as a whole, see K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988), reveal the congressional intent to create independent powers of repudiation, regardless of any activity taken by RTC in a prior capacity. Throughout FIR-REA, Congress specifically articulated when the Corporation was to exercise a duty, right, or power in its capacity as a “conservator or receiver.” In each instance, it is clear that Congress intended the duty, right, or power to be enjoyed or exercised by both the conservator and the receiver. It stretches credibility to assume Congress intended any of these rights to be forfeited in instances when the Corporation preceded itself as conservator or receiver of an institution. More instructive, however, is the care Congress took to delineate those duties, rights, and powers the Corporation could pursue only in its capacity as receiver, or only in its capacity as conservator, but not both. Second, the traditional tools of statutory construction likewise elicit a clear congressional directive to grant RTC an independent right of repudiation in both its capacity as conservator and receiver. The accepted canon of statutory construction is to treat the disjunctive “or” as giving independent meaning to the words it separates, unless the context of the statute requires otherwise. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989) (per curiam); United States v. Lane, 464 F.2d 593, 595 (8th Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972). 'The word “or” in the statute is not a fertile word which is subject to varied constructions.’ United States v. Newman, 405 F.2d 189, 197 (5th Cir.1968). When ‘or’ is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively. U.S. Customs Serv. v. Federal Labor Relations Auth., 739 F.2d 829, 832 (2d Cir.1984). In Ballentine v. De Sylva, 226 F.2d 623, 625 (9th Cir.1955), aff'd, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), a statute provided that the “widow... or children” of a deceased author of a copyrighted work may apply for an extension of the copyright. The court held that the disjunctive application of the word “or” granted both the widow and the children the right to apply for the extension. Id. at 627. Moreover, the action by one of the enumerated persons did not cut off the rights of the other merely because one person acted first. Id. Third, the statutory history of FIRREA reveals nothing that indicates Congress intended something other than giving the right of repudiation to both the conservator and the receiver. The House Report tracks the language of the statute, giving the repudiation power to the conservator or receiver. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 127. Moreover, the statute and its legislative history emphasize that the powers granted RTC under FIR-REA parallel the powers granted conservators or receivers under the former law. Id. at 126; 12 U.S.C.A. § 1441a(b)(4) (West Supp.1991); S.Rep. No. 101-19, 101st Cong., 1st Sess. 31 (1989). It has been recognized for at least a century that receivers may repudiate contracts and leases. Sunflower Oil Co. v. Wilson, 142 U.S. 313, 322, 12 S.Ct. 235, 237, 35 L.Ed. 1025 (1892); First Nat’l Bank of Chicago v. First Nat’l Bank of Wheaton, 78 F.2d 502, 502-03 (7th Cir.), cert. denied, 296 U.S. 651, 56 S.Ct. 368, 80 L.Ed. 463 (1935); Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 597 (1st Cir.1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937); see R. Clark, 2 A Treatise on The Law and Practice of Receivers, § 442 at 733-34 (3d ed. 1959). This power continued to be exercised by the FDIC and FSLIC in the years preceding FIRREA. 12 C.F.R. § 549.3(a) (1988); Argonaut Sav. & Loan Ass’n v. FDIC, 392 F.2d 195, 197 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968); FDIC v. Grella, 553 F.2d 258, 262 (2d Cir.1977). Conservators of government-insured savings institutions and banks also held this power of repudiation. 12 C.F.R. § 548.2(k) (1988) (“The conservator... may... (k)... repudiate any lease or contract he considers burdensome”); Dinan v. First Nat’l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mich.1954). Since Congress intended RTC to exercise rights formerly held by the FDIC and FSLIC, there can be no doubt that Congress intended RTC to retain the independent rights granted to conservators and receivers to repudiate leases. Fourth, the importance of retaining an independent right to repudiate contracts is exemplified by the distinct missions of the conservator and receiver. That Congress intended conservators and receivers to have different missions is clear. RTC as conservator of a failed institution was empowered to take action necessary to restore the failed thrift to a solvent position and “to carry on the business of the institution and preserve and conserve the assets and property of the institution.” 12 U.S.C.A. § 1821(d)(2)(D). As receiver, on the other hand, RTC was empowered to liquidate the institution. 12 U.S.C.A. § 1821(d)(2)(E). CedarMinn, relying on RTC v. United Trust Fund, 775 F.Supp. 1465, 1468 (S.D.Fla.1991), argues that the distinction in duties between conservators and receivers is more theoretical than real. “[T]he RTC frequently appoints conservators, receivers, new conservators, and new receivers in case of thrift difficulties,” and the changing back and forth from one legal entity to another frequently amounts to no more than blanket signing of papers and mere legal formalities. Id. It is difficult to argue that the concern that RTC could prolong indefinitely the repudiation decision is misplaced. Nevertheless, we refuse to adopt such a cavalier attitude about the distinction in roles between the conservator and receiver. At least as early as the 1930s, it was recognized that the purpose of a conservator was to maintain the institution as an ongoing concern. Bryce v. National City Bank of New Rochelle, 17 F.Supp. 792, 799 (S.D.N.Y.), aff'd, 93 F.2d 300 (2d Cir.1937). The Home Owners’ Loan Act of 1933, 12 U.S.C. § 1464(d)(6)(D) (1988) (amended 1989), specifically provided that a conservator of a federal savings and loan was to “operate the association in its own name or to conserve its assets.” Receivers, on the other hand, have been empowered to liquidate the institution. FDIC v. Grella, 553 F.2d 258, 261 (2d Cir.1977). This distinction was not only specifically recognized in FIRREA, it was emphasized in the Conference Report. The title... distinguishes between the powers of a conservator and receiver, making clear that a conservator operates or disposes of an institution as a going concern while a receiver has the power to liquidate and wind up the affairs of an institution. H.R.Conf.Rep. No. 101-209, 101st Cong., 1st Sess. 398 (1989). This distinction in the roles between conservator and receiver is not only recognized historically, but is practical as well, particularly as it pertains to the repudiation strategy of a conservator and receiver. The conservator’s mission is to conduct an institution as an ongoing business. In that light, the strategic decision whether or not to repudiate a lease — particularly when the institution is operating a consumer enterprise from the leased premises — stands apart from the strategy of a receiver, whose interest, by definition, is shutting the business down. A conservator needs an open door; a receiver does not. Therefore, the value of a specific lease could vary significantly depending on the mission of the occupying party at the particular time. The requirement that RTC make the repudiation decision once and for all shortly after its first appointment as conservator would put RTC in the untenable position of trying to operate the business as an ongoing concern with one hand, while at the same time calculating the lease repudiation issue as if it were shutting the business down. This distinction is illustrated by Monument Square Assocs., Inc. v. RTC, No. 90-12060-T, 1991 WL 280020 (D.Mass. Dec. 13,1991). In Monument Square, RTC was appointed conservator of Home Owners Savings Bank. RTC was burdened with two leases, only one of which covered property actually being used by the Corporation. Therefore, RTC repudiated the lease on the non-occupied property within a month of its appointment as conservator. Id. at 2. The lease on the property being used by the institution, however, was not repudiated until nearly six months later, after the institution was placed in receivership. Id. This case articulates the need for RTC to retain independent rights of repudiation in its two capacities. Obviously, RTC as conservator would choose to repudiate a lease on property it is not using, but might hesitate to repudiate the lease on property from which it is conducting a business. On the other hand, once the institution is placed into receivership, RTC might elect to repudiate the lease on the property it formerly used to conduct its business. Relying on this dichotomy of purpose and the plain language of the statute, the Monument Square court determined that RTC retained a separate right to repudiate even though it followed itself as conservator and even though it elected as conservator not to repudiate the contract. Id. at 7. Fifth, Congress’ grant of the repudiation right to the conservator or receiver must also be viewed in light of the fact that it has long been recognized that conservators of failed institutions are often replaced by receivers. Dinan v. First Nat l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mich.1954). Prior to the passage of FIRREA, Congress recognized that conservators appointed for failed institutions may be succeeded by receivers. 12 U.S.C. § 1464(d)(6)(D) (1988) (amended 1989); Lincoln Sav. & Loan Ass’n v. Wall, 743 F.Supp. 901, 902-03 (D.D.C.1990). FIR-REA specifically retained this power. 12 U.S.C.A. § 1464(d)(2)(F) (West Supp.1991). Finally, it must be recognized that Congress granted broad power to the Corporation and directed that conservators and receivers should not shy away from wielding this power. Congress specifically directed RTC to look closely at sale-leaseback transactions such as those at issue here. In detailing the repudiation power Title II provides for repudiation of real property leases. The disaffirmance of burdensome leases should take into account the total circumstances of the lease, including whether, in the case of a sale and lease back, the lease was executed as part of an arm’s length transaction. H.R.Conf.Rep. No. 101-209, 101st Cong., 1st Sess. 399 (1989). CedarMinn stresses that the leases were negotiated at arm’s length. What CedarMinn fails to recognize is that Midwest’s arms were tied behind its back by its financial crisis. The luxuriant terms of these contracts should have made this evident to CedarMinn. In fact, counsel for CedarMinn admitted to the court that no sophisticated business person would accept these leases. For all of these reasons, we find RTC’s interpretation of the statute permissible. Moreover, our analysis shows that the congressional intent is so apparent that RTC’s interpretation is the most reasonable interpretation. C. “Reasonable Period” Since we find that RTC retained a new power to repudiate leases when it was appointed receiver in October 1990, we need only briefly address the reasonable period limitation of 12 U.S.C.A. § 1821(e)(2). FIRREA does not define reasonableness. Congress specifically intended to give RTC flexibility in determining what constitutes a reasonable period for repudiation. The amount of time that is reasonable must be determined according to the circumstances of each case. Union Bank v. Federal Sav. & Loan Ins. Corp., 724 F.Supp. 468, 471 (E.D.Ky.1989). No one could quarrel seriously with the fact that RTC’s repudiation within twenty-four days of its appointment as receiver was reasonable. We need not decide whether the fourteen-month delay between RTC’s appointment as conservator and its subsequent repudiation as receiver was unreasonable. We need only point out that since CedarMinn could show no prejudice by RTC’s continued attempts to renegotiate the leases prior to the placement of Midwest Savings in receivership, RTC’s repudiation could have been reasonable regardless of whether it had been appointed receiver of the institution and given an independent opportunity to repudiate the leases. III. Congress passed FIRREA as emergency legislation to resolve expeditiously the “monumental problems involved with the unprecedented costs” of the savings and loan crisis. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 104. Among the powers granted by Congress to RTC is the extraordinary right to repudiate contracts and leases RTC deems burdensome. That Congress intended this powerful tool to be exercised independently by conservators and receivers is clearly a permissible construction of the statute. We therefore find that RTC retained an independent right to repudiate the leases with CedarMinn within a reasonable period of its appointment as receiver. Since the repudiation occurred within twenty-four days of its appointment, FIRREA has been fully complied with. Ce-darMinn’s damages are limited to those prescribed under 12 U.S.C.A. § 1821(e)(4). The judgment below is reversed. . The sale-leaseback transactions were initiated by Midwest Federal. CedarMinn and its principals had no prior connection to Midwest Federal. . Subsequent to the filing of this appeal, Cedar-Minn drew on the letters of credit, claiming a separate default by RTC. Upon motion by RTC, the district court modified its initial order, holding: (1) CedarMinn was enjoined from dispersing the proceeds of the letters of credit, RTC v. CedarMinn, No. 4-90-828, slip op. at 32 (D.Minn. May 22, 1991); (2) the RTC’s offsetting of its rental payments to compensate for the rental payments paid to CedarMinn from secondary leases was a “technical” default under the contract, id. at 19; but (3) despite the "technical” default, CedarMinn was not entitled to liquidated damages because the contract’s liquidated damages clause was unenforceable as a penalty provision, id. at 26. . Unless noted otherwise, all statutory citations are to U.S.C.A. (1989). . The October 29, 1990, repudiation was to be effective February 28, 1991. Therefore, the contractual rent would accrue through February 28, 1991. 12 U.S.C.A. § 1821 (d)(4) (B)(i)(II). . Throughout this opinion, the term Corporation will refer to either the RTC or the FDIC. Congress gave the RTC all of the receivership and conservatorship powers it granted the FDIC. 12 U.S.C.A. § 1441a(b)(4) (West Supp. 1991). Therefore, the use of the term Corporation will refer to either agency exercising these parallel powers. . The RTC was established as an instrumentality of the United States to carry on a program to manage all cases of failed thrifts. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 152-53. The RTC is an agency of the United States when acting as a corporation and an agency of the United States to the same extent as the Federal Deposit Insurance Corporation when acting as a conservator or receiver. 12 U.S.C.A. § 1441a(b)(l)(B) (West Supp.1991). . Statement of Policy Regarding Treatment of Collateralized Letters of Credit After Appointment of the Resolution Trust Corporation as Conservator or Receiver, at 3 (Sept. 25, 1990); Statement of Policy Regarding the Payment of Interest on Direct Collateralized Obligations after Appointment of the Resolution Trust Corporation as Conservator or Receiver, at 3 (April 1990). The latter policy statement specifically provides that a receiver retains all powers of repudiation regardless of whether a prior conservator or receiver of the same institution honored those contracts. .12 U.S.C.A. § 1821(c)(1) authorizes the Corporation to accept appointment as "conservator or receiver” for any insured depository institution; §§ 1821(c)(2)(C) and (c)(3)(C) stipulate that the Corporation shall not be subject to any other agency of the United States when it is acting as a "conservator or receiver;” § 1821(c)(3)(A) provides that the Corporation may accept appointment as a "conservator or receiver” of a state insured depository institution; § 1821(c)(3)(B) grants the Corporation the same powers as "conservator or receiver" when appointed by a state authority as when appointed by a federal authority; §§ 1821(c)(4) and (5) articulate the grounds under which the Corporation may appoint itself as sole "conservator or receiver” of an institution; § 1821(c)(7) establishes the judicial review available to an institution challenging the Corporation's appointment of itself as "conservator or receiver;’’ § 1821

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

MEMPHIS LIGHT, GAS & WATER DIVISION et al. v. CRAFT et al. No. 76-39. Argued November 2, 1977 Decided May 1, 1978 Powell, J., delivered the opinion of the Court, in which BreNNAN, Stewart, White, Marshall, and BlackmuN, JJ., joined. SteveNS, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 22. Frierson M. Graves, Jr., argued the cause and filed a brief for petitioners. Thomas M. Daniel argued the cause for respondents. With him on the brief were Elliot Taubman and Bruce Mayor David Sive filed a brief for the National Council of the Churches of Christ as amicus curiae. Me. Justice Powell delivered the opinion of the Court. This is an action brought under 42 U. S. C. § 1983 by homeowners in Memphis, Tenn., seeking declaratory and injunctive relief and damages against a municipal utility and several of its officers and employees for termination of utility service allegedly without due process of law. The District Court determined that respondents’ claim of entitlement to continued utility service did not implicate a “property” interest protected by the Fourteenth Amendment, and that, in any event, the utility’s termination procedures comported with due process. The Court of Appeals reversed in part. We granted certiorari to consider this constitutional question of importance in the operation of municipal utilities throughout the Nation. I Memphis Light, Gas and Water Division (MLG&W) is a division of the city of Memphis which provides utility service. It is directed by a Board of Commissioners appointed by the City Council, and is subject to the ultimate control of the municipal government. As a municipal utility, MLG&W enjoys a statutory exemption from regulation by the state public service commission. Tenn. Code Ann. §§ 6-1306, 6-1317 (1971). Willie S. and Mary Craft, respondents here, reside at 1019 Alaska Street in Memphis. When the Crafts moved into their residence in October 1972, they noticed that there were two separate gas and electric meters and only one water meter serving the premises. The residence had been used previously as a duplex. The Crafts assumed, on the basis of information from the seller, that the second set of meters was inoperative. In 1973, the Crafts began receiving two bills: their regular bill, and a second bill with an account number in the name of Willie C. Craft, as opposed to Willie S. Craft. Separate monthly bills were received for each set of meters, with a city service fee appearing on each bill. In October 1973, after learning from a MLG&W meter reader that both sets of meters were running in their home, the Crafts hired a private plumber and electrical contractor to combine the meters into one gas and one electric meter. Because the contractor did not consolidate the meters properly, a condition of which the Crafts were not aware, they continued to receive two bills until January 1974. During this period, the Crafts’- utility service was terminated five times for nonpayment. On several occasions, Mrs. Craft missed work and went to the MLG&W offices in order to resolve the “double billing” problem. As found by the District Court, Mrs. Craft sought in good faith to determine the cause of the “double billing,” but was unable to obtain a satisfactory explanation or any suggestion for further recourse from MLG&W employees. The court noted: “On one occasion when Mrs. Craft was attempting to avert a utilities termination, after final notice, she called the defendant’s offices and explained that she had paid a bill, but was given no satisfaction. The procedure for an opportunity to talk with management was not adequately explained to Mrs. Craft, although she repeatedly tried to get some explanation for the problems of two bills and possible duplicate charges.” Pet. for Cert. 38-39. In February 1974, the Crafts and other MLG&W customers filed this action in the District Court for the Western District of Tennessee. After trial, the District Court refused to certify the plaintiffs’ class and rendered judgment for the defendants. Although the court apparently was of the view that plaintiffs had no property interest in continued utility service while a disputed bill remained unpaid, it nevertheless addressed the procedural due process issue. It acknowledged that respondents had not been given adequate notice of a procedure for discussing the disputed bills with management, but concluded that “[n]one of the individual plaintiffs [was] deprived of [a] due process opportunity to be heard, nor did the circumstances indicate any substantial deprivation except in the possible instance of Mr. and Mrs. Craft.” Id., at 45. The court expressed “hope,” “whether on the principles of [pendent] jurisdiction, or on the basis of a very limited possible denial of due process to Mr. and Mrs. Craft,” that credit in the amount of $35 be issued to reimburse the Crafts for “duplicate and unnecessary charges made and expenses incurred by [them] with respect to terminations which should have been unnecessary had effectual relief been afforded them as requested.” The court also recommended “that MLG&W in the future send a certified or registered mail notice of termination at least four days prior to termination,” and that such notice “provide more specific information about customer service locations and personnel available to work out extended payment plans or adjustments of accounts in genuine hardships or appropriate situations.” Id., at 46-47. On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court’s refusal to certify a class action, but held that the procedures accorded to the Crafts did not comport with due process. 534 F. 2d 684 (1976). On July 12, 1976, petitioners sought a writ of certiorari in this Court to determine (i) whether the termination policies of a municipal utility constitute “state action” under the Fourteenth Amendment; (ii) if so, whether a municipal utility’s termination of service for nonpayment deprives a customer of “property” within the meaning of the Due Process Clause; and (iii) assuming “state action” and a “property” interest, whether MLG&W’s procedures afforded due process of law in this case. On February 22, 1977, we granted certiorari, 429 U. S. 1090. We now affirm. II There is, at the outset, a question of mootness. Although the parties have not addressed this question in their briefs, “they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual ‘case or controversy,' Richardson v. Ramirez, 418 U. S. 24 (1974)... Sosna v. Iowa, 419 U. S. 393, 398 (1975). As the case comes to us, the only remaining plaintiffs are respondents Willie S. and Mary Craft. Since the Court of Appeals affirmed the District Court’s refusal to certify a class, the existence of a continuing “case or controversy” depends entirely on the claims of respondents. Cf. Sosna v. Iowa, supra, at 399, 402. It appears that respondents no longer desire a hearing to resolve a continuing dispute over their bills, as the double-meter problem has been clarified during this litigation. Nor do respondents aver that there is a present threat of termination of service. “An injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct.” United Transportation Union v. Michigan Bar, 401 U. S. 576, 584 (1971). Respondents insist, however, that the case is not moot because they seek damages and declaratory relief, and because the dispute that occasioned this suit is “capable of repetition, yet evading review.” Tr. of Oral Arg. 45-46. We need not decide whether this case falls within the special rule developed in Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911); see Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Roe v. Wade, 410 U. S. 113, 125 (1973), to permit consideration of questions which, by their very nature, are not likely to survive the course of a normal litigation. Respondents’ claim for actual and punitive damages arising from MLG&W’s terminations of service saves this cause from the bar of mootness. Cf. Powell v. McCormack, 395 U. S. 486, 496-500 (1969). Although we express no opinion as to the validity of respondents’ claim for damages, that claim is not so insubstantial or so clearly foreclosed by prior decisions that this case may not proceed. Ill The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of “property” within the meaning of the Due Process Clause. Although the underlying substantive interest is created by “an independent source such as state law,” federal constitutional law determines whether that interest rises to the level of a “legitimate claim of entitlement” protected by the Due Process Clause. Board of Regents v. Roth, 408 U. S. 564, 577 (1972); Perry v. Sindermann, 408 U. S. 593, 602 (1972). The outcome of that inquiry is clear in this case. In defining a public utility’s privilege to terminate for nonpayment of proper charges, Tennessee decisional law draws a line between utility bills that are the subject of a bona fide dispute and those that are not. “A company supplying electricity to the public has a right to cut off service to a customer for nonpayment of a just service bill and the company may adopt a rule to that effect. Annot., 112 A. L. R. 237 (1938). An exception to the general rule exists when the customer has a bona fide dispute concerning the correctness of the bill. Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 193 A. 613, 615 (1937); Annot., 112 A. L. R. 237, 241 (1938); see also 43 Am. Jur., Public Utilities and Services, Sec. 65; Annot., 28 A. L. R. 475 (1924). If the public utility discontinues service for nonpayment of a disputed amount it does so at its peril and if the public utility was wrong (e. g., customer overcharged), it-is liable for damages. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 690, 28 A. L. R. 461 (1920).” Trigg v. Middle Tennessee Electric Membership Corp., 533 S. W. 2d 730, 733 (Tenn. App. 1975), cert. denied (Tenn. Sup. Ct. Mar. 15, 1976). The Trigg court also rejected the utility’s argument that plaintiffs had agreed to be bound by the utility’s rules and regulations, which required payment whether or not a bill is received. “A public utility should not be able to coerce a customer to pay a disputed claim.” Ibid. State law does not permit a public utility to terminate service “at will.” Cf. Bishop v. Wood, 426 U. S. 341, 345-347 (1976). MLG&W and other public utilities in Tennessee are obligated to provide service “to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause,” Farmer v. Nashville, 127 Tenn. 509, 515, 156 S. W. 189, 190 (1913), and may not terminate service except “for nonpayment of a just service bill,” Trigg, 533 S. W. 2d, at 733. An aggrieved customer may be able to enjoin a wrongful threat to terminate, or to bring a subsequent action for damages or a refund. Ibid. The availability of such local-law remedies is evidence of the State’s recognition of a protected interest. Although the customer’s right to continued service is conditioned upon payment of the charges properly due, “[t]he Fourteenth Amendment’s protection of 'property’... has never been interpreted to safeguard only the rights of undisputed ownership.” Fuentes v. Shevin, 407 U. S. 67, 86 (1972). Because petitioners may terminate service only “for cause,” respondents assert a “legitimate claim of entitlement” within the protection of the Due Process Clause. IV In determining what process is “due” in this case, the extent of our inquiry is shaped by the ruling of the Court of Appeals. We need go no further in deciding this case than to ascertain whether the Court of Appeals properly read the Due Process Clause to require (i) notice informing the customer not only of the possibility of termination but also of a procedure for challenging a disputed bill, 534 F. 2d, at 688, and (ii) “ '[an] established [procedure] for resolution of disputes' ” or some specified avenue of relief for customers who “dispute the existence of the liability,” id., at 689. A “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.” Mullane v. Central Hanover Trust Co., 339 U. S. 306, 314 (1950) (citations omitted). The issue here is whether due process requires that a municipal utility notify the customer of the availability of an avenue of redress within the organization should he wish to contest a particular charge. The “final notice” contained in MLG&W’s bills simply stated that payment was overdue and that service would be discontinued if payment was not made by a certain date. As the Court of Appeals determined, “the MLG&W notice only warn[ed] the customer to pay or face termination.” 534 F. 2d, at 688-689. MLG&W also enclosed a “flyer” with the “final notice.” One “flyer” was distributed to about 40% of the utility’s customers, who resided in areas serviced by “credit counseling stations.” It stated in part: “If you are having difficulty paying your utility bill, bring your bill to our neighborhood credit counselors for assistance. Your utility bills may be paid here also.” No mention was made of a procedure for the disposition of a disputed claim. A different “flyer” went to customers in the remaining areas. It stated: “If you are having difficulty paying your utility bill and would like to discuss a utility payment plan, or if there is any dispute concerning the amount due, bring your bill to the office at..., or phone....” Id., at 688 n. 4. The Court of Appeals noted that “there is no assurance that the Crafts were mailed the just mentioned flyer,” ibid., and implicitly affirmed the District Court’s finding that Mrs. Craft was never apprised of the availability of a procedure for discussing her dispute “with management.” The District Court’s description of Mrs. Craft’s repeated efforts to obtain information about what appeared to be unjustified double billing — “good faith efforts to pay for [the Crafts’] utilities as well as to straighten out the problem” — makes clear that she was not adequately notified of the procedures asserted to have been available at the time. Petitioners’ notification procedure, while adequate to apprise the Crafts of the threat of termination of service, was not “reasonably calculated” to inform them of the availability of “an opportunity to present their objections” to their bills. Mullane v. Central Hanover Trust Co., supra, at 314. The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending “hearing.” Notice in a case of this kind does not comport with constitutional requirements when it does not advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified. As no such notice was given respondents — despite “good faith efforts” on their part — they were deprived of the notice which was their due. B This Court consistently has held that “some kind of hearing is required at some time before a person is finally deprived of his property interests.” Wolff v. McDonnell, 418 U. S. 539, 557-558 (1974). We agree with the Court of Appeals that due process requires the provision of an opportunity for the presentation to a designated employee of a customer’s complaint that he is being overcharged or charged for services not rendered. Whether or not such a procedure may be available to other MLG&W customers, both courts below found that it was not made available to Mrs. Craft. Petitioners have not made the requisite showing for overturning these “concurrent findings of fact by two courts below....” Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949). Our decision in Mathews v. Eldridge, 424 U. S. 319 (1976), provides a framework of analysis for determining the “specific dictates of due process” in this case. “[0]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 334-335. Under the balancing approach.outlined in Mathews, some administrative procedure for entertaining customer complaints prior to termination is required to afford reasonable assurance against erroneous or arbitrary withholding of essential services. The customer's interest is self-evident. Utility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety. And the risk of an erroneous deprivation, given the necessary reliance on computers, is not insubstantial. The utility’s interests are not incompatible with affording the notice and procedure described above. Quite apart from its duty as a public service company, a utility — in its own business interests — may be expected to make all reasonable efforts to minimize billing errors and the resulting customer dissatisfaction and possible injury. Cf. Goss v. Lopez, 419 U. S. 565, 583 (1975). Nor should “some kind of hearing” prove burdensome. The opportunity for a meeting with a responsible employee empowered to resolve the dispute could be afforded well in advance of the scheduled date of termination. And petitioners would retain the option to terminate service after affording this opportunity and concluding that the amount billed was justly due. C Petitioners contend that the available common-law remedies of a pretermination injunction, a post-termination suit for damages, and post-payment action for a refund are sufficient to cure any perceived inadequacy in MLG&W’s procedures. Ordinarily, due process of law requires an opportunity for “some kind of hearing” prior to the deprivation of a significant property interest. See Boddie v. Connecticut, 401 U. S. 371, 379 (1971). On occasion, this Court has recognized that where the potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the procedures underlying the decision to act are sufficiently reliable to minimize the risk of erroneous determination, government may act without providing additional “advance procedural safeguards,” Ingraham v. Wright, 430 U. S. 651, 680 (1977); see Mathews v. Eldridge, supra, at 339-349. The factors that have justified exceptions to the requirement of some prior process are not present here. Although utility service may be restored ultimately, the cessation of essential services for any appreciable time works a uniquely final deprivation. Cf. Stanley v. Illinois, 405 U. S. 645, 647-648 (1972). Moreover, the probability of error in utility cutoff decisions is not so insubstantial as to warrant dispensing with all process prior to termination. The injunction remedy referred to by petitioners would not be an adequate substitute for a pretermination review of the disputed bill with a designated employee. Many of the Court’s decisions in this area have required additional procedures to further due process, notwithstanding the apparent availability of injunctive relief or recovery provisions. It was thought that such remedies were likely to be too bounded by procedural constraints and too susceptible of delay to provide an effective safeguard against an erroneous deprivation. These considerations are applicable in the utility termination context. Equitable remedies are particularly unsuited to the resolution of factual disputes typically involving sums of money too small to justify engaging counsel or bringing a lawsuit. An action in equity to halt an improper termination, because it is less likely to be pursued and less likely to be effective, even if pursued, will not provide the same assurance of accurate decisionmaking as would an adequate administrative procedure. In these circumstances, an informal administrative remedy, along the lines suggested above, constitutes the process that is “due.” y Because of the failure to provide notice reasonably calculated to apprise respondents of the availability ‘ of an administrative procedure to consider their complaint of erroneous billing, and the failure to afford them an opportunity to present their complaint to a designated employee empowered to review disputed bills and rectify error, petitioners deprived respondents of an interest in property without due process of law. The judgment of the Court of Appeals is Affirmed. Although MLG&W is listed as one of the petitioners, the District Court dismissed the action as to the utility itself because “a municipality or governmental unit standing in that capacity is not a 'person’ within the meaning” of § 1983. Pet. for Cert. 43. The Court of Appeals did not disturb that determination, and respondents have not sought review of the point in this Court. The individual petitioners, who are sued in both their official and personal capacities, are the utility’s president and general manager, vice president, members of the Board of Commissioners, and two employees who have had responsibility for terminating utility services. They will be referred to throughout as either “MLG&W” or “petitioners.” Of those who brought the original action, only the Crafts remain. The parties have not sought review in this Court of the rulings made below with respect to the other plaintiffs. The city service fee is a separate item on the regular utility bill, as required by municipal ordinance. The District Court’s conclusion was advanced with little explanation, other than a reference to MLG&W’s credit extension program. In an earlier discussion, the opinion offered a description of the utility’s procedures. First, the court listed the steps involved in a termination: (i) Approximately four days after a meter reading date, a bill is mailed to the service location or other address designated by the customer. The last day to pay the net amount would be approximately 20 days after the meter reading date, (ii) Approximately 24 days after the meters are read, a “final notice” is mailed stating that services will be disconnected within four days if no payment is received or other provision for payment is made, (iii) Electric service is then terminated by the meter reader, unless the customer assures him that payment is in the mail, shows a paid receipt, or explains that nonpayment was due to illness. If there is no communication prior to termination, the meter reader or serviceman is instructed to leave 8/ cutoff notice giving information about restoration of service, (iv) Approximately five days after the electric service cutoff, the remaining services are terminated if the customer has not paid the bill or made other arrangements for payment. Pet. for Cert. 34-35. The court also noted that on or about March 1, 1973, MLG&W instituted an “extended payment plan.” This generous program allows customers able to demonstrate financial hardship to pay only one-half of a past due bill with the balance to be paid in equal installments over the next three bills. The plaintiffs in this action were participants in the plan. Id., at 36. Finally, the court observed that MLG&W provided a procedure for resolution of disputed bills: “Credit counselors assist customers who have difficulty with payments or disputes concerning their bills with MLG&W. If those counselors cannot satisfy the customer, then the customer is referred to management personnel; generally the chief clerk in the department; then the supervisor in credit and collection. In addition, a dissatisfied customer may appeal to the Board of Commissioners of MLG&W as to complaints regarding bills, service, termination of service or any other matter relating to the operation of the Division. A customer may, if he so desires, be accompanied by an appropriate representative. The billing of customers, the determination as to when a final notice is sent, and the termination of service [are] governed by policies, rules and regulations adopted and approved by the Board of Commissioners of MLG&W.” Id., at 36-37. In its order filed on December 30, 1974, the court acknowledged that defendants had issued the recommended credit and “instituted some new procedures which will give more definitive and adequate notice to customers of possible or impending cut-off of services.” Id., at 49. See n. 16, infra. Petitioners have abandoned their contention that “state action” is not present in this case. Brief for Petitioners 44. “Not until after the action was filed were the Crafts able to discover that they continued to receive double computer billings because MLG&W failed to combine the two accounts properly (A. 146-150), or that, as a result of the double computer billings, MLG&W had overcharged them for gas service and city service fees.” Brief for Respondents 5. The District Court found that “[o]f the balance-claimed by MLG&W in March, 1974, some involved possible gas overcharges and double or duplicate billings with respect to city service fees.” Pet. for Cert. 39. Presumably, respondents also seek recovery for the loss of pay occasioned by Mrs. Craft’s several visits to the offices of MLG&W “which should have been unnecessary had effectual relief been afforded them as requested.” Id., at 46. While not urging mootness, petitioners assert that their compliance with the District Court’s recommendation that a $35 credit be issued to the Crafts removes any claim for damages from this case. We do not understand the District Court’s suggestion to have been an award of damages. The validity of the damages claim is a matter for initial determination by the courts below. Tennessee's formulation of a public utility’s privilege to terminate service for nonpayment of an undisputed charge is in accord with the common-law rule. See generally 64 Am. Jur. 2d, Public Utilities §§ 63-64 (1972); Annot., 112 A. L. R. 237, 241 (1938); Note, The Duty of a Public Utility to Render Adequate Service: Its Scope and Enforcement, 62 Colum. L. Rev. 312, 326 (1962). Petitioners attempt to avoid the force of Trigg by referring to several Tennessee decisions which state the general rule that a utility may terminate service for nonpayment of undisputed charges or noncompliance with reasonable rules and regulations. These authorities, however, do not cast doubt upon the exception recognized in Trigg for a customer who tenders the undisputed amount, but withholds complete payment because of a bona fide dispute. See Patterson v. Chattanooga, 192 Tenn. 267, 241 S. W. 2d 291 (1951); Farmer v. Nashville, 127 Tenn. 509, 156 S. W. 189 (1913); Jones v. Nashville, 109 Tenn. 550, 72 S. W. 985 (1903); Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S. W. 1058 (1897); Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060 (1897). Petitioners also rely on Lindsey v. Normet, 405 U. S. 56 (1972). There, the Court upheld an Oregon statute that required a tenant seeking a continuance of an eviction hearing to post security for accruing rent during the continuance, and limited the issues triable in an eviction proceeding to the questions of physical possession, forcible withholding, and legal right to possession. This reliance is misplaced. First, the Court merely held that the Oregon procedures comported with due process, without intimating that a tenant’s claim to continued possession during a rent dispute failed to implicate a "property” interest. Second, “[t]he tenant did not have to post security in order to remain in possession before a hearing; rather, he had to post security only in order to obtain a continuance of the hearing.... [T]he tenant was not deprived of his possessory interest even for one day without opportunity for a hearing.” Fuentes v. Shevin, 407 U. S. 67, 85 n. 15 (1972) (emphasis in original). In Arnett v. Kennedy, 416 U. S. 134 (1974), "the Court concluded that because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection.” Bishop v. Wood, 426 U. S. 341, 345 n. 8 (1976). See Arnett v. Kennedy, supra, at 166 (Powell, J., concurring in part); cf. Board of Regents v. Roth, 408 U. S. 564, 578 (1972). The Court of Appeals did refer to its earlier decision in Palmer v. Columbia Gas of Ohio, Inc., 479 F. 2d 153 (1973), which approved a comprehensive remedy for a due process violation, including investigation of every communicated protest by a management official, provision of a hearing before such an official, and an opportunity to stay the termination upon the posting of an appropriate bond. Id., at 159-160, 168-169. These procedures were fashioned in response to findings, based on uncon-tradicted evidence, of hostility and arrogance on the part of the collection-oriented clerical employees, id., at 168. No such findings were made here, and the Court of Appeals’ ruling did not purport to require a similar remedy in this case. Respondents do request certain additional procedures: “an impartial decision maker,” who may be a responsible company official; “the opportunity to present information and rebut the records presented”; and “a written decision,” which apparently can be rendered after termination or payment. Tr. of Oral Arg. 28, 31; Brief for Respondents 31. As respondents have not cross-petitioned, cf. Strunk v. United States, 412 U. S. 434, 437 (1973), we do not decide whether — or under what circumstances — any of these additional procedures may be appropriate. We do note that the magnitude of the numbers of complaints of overcharge would be a relevant factor in determining the appropriateness of more formal procedures than we approve in this case. The resolution of a disputed bill normally presents a limited factual issue susceptible of informal resolution. We do not understand the District Court’s reference to “an opportunity to talk with management” as implying necessarily that Mrs. Craft should have been given an opportunity to discuss her bills with corporate officers of MLG&W. Rather, the point was that Mrs. Craft was not informed of the opportunity to meet with designated personnel who were duly authorized to review disputed bills with complaining customers and to correct any errors. Pet. for Cert. 39. William T. Mullen, secretary-treasurer of MLG&W, testified that the utility processed 33,000 “high bill” complaints in 1973. App. 130. He conceded, however, that no description of a dispute resolution process was ever distributed to the utility’s customers, id., at 162-163, 176, and there is no indication in the record that a written account of such a procedure was accessible to customers who had complaints about their bills. Mrs. Craft’s case reveals that the opportunity to invoke that procedure, if it existed at all, depended on the vagaries of “word of mouth referral,” id., at 163. See, e. g., Wolff v. McDonnell, 418 U. S. 539, 564 (1974); Morrissey v. Brewer, 408 U. S. 471, 486-487 (1972); In re Gault, 387 U. S. 1, 33 (1967) ; Anti-Fascist Committee v. McGrath, 341 U. S. 123, 171-172 (1951) (Frankfurter, J., concurring). The dissenting opinion of MR. Justice SteveNS asserts that the Court’s decision “trivializes” procedural due process. Post, at 22. While recognizing that other information would be “helpful,” the dissent would hold that “a homeowner surely need not be told how to complain about an error in a utility bill....” Post, at 26. In a different context a person threatened with the deprivation of a protected interest need not be told “how to complain.” But the prior decisions of this Court make clear that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, supra, at 481; Mathews v. Eldridge, 424 U. S. 319, 334 (1976). In the particular circumstances of a threat to discontinue utility service, the homeowner should not be left in the plight described by the District Court in this case. Indeed, the dissent’s view identifies the constitutional flaw in petitioners’ notice procedure. The Crafts were told that unless the double bills were paid by a certain date their electricity would be cut off. But — as the Court of Appeals held — this skeletal notice did not advise them of a procedure for challenging the disputed bills. Such notice may well have been adequate under different circumstances. Here, however, the notice is given to thousands of customers of various levels of education, experience, and resources. Lay consumers of electric service, the uninterrupted continuity of which is essential to health and safety, should be informed clearly of the availability of an opportunity to present their complaint. In essence, recipients of a cutoff notice should be told where, during which hours of the day, and before whom disputed bills appropriately may be considered. The dissent’s restrictive view of the process due in the context of this case would erect an artificial barrier between the notice and hearing components of the constitutional guarantee of due process. Petitioners have moved to clarify and regularize their notice procedure, and it is possible that the revised notice presently afforded may be entirely adequate. Developed in response to a suggestion made by the District Court, it lists “methods of contact” and states in part that trained “Credit Counselors are available to clear up any questions, discuss disputed bills or to make any needed adjustments. There are supervisors and other management personnel available if you are not satisfied with the answers or solutions given by the Credit Counselors.” App. 193. We also note that Tennessee law requires that the board of supervisors of -each independent utility district, as opposed to a utility division of a municipality, “maintain a set of rules and regulations regarding the adjustment of all complaints which may be made to the district concerning... the adjustment of bills,” and that such rules “be posted or otherwise available for convenient inspection by customers and members of the public in the offices of the district....” Tenn. Code Ann. § 6-2618 (b) (Supp. 1977). “[A] hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal.” Londoner v. Denver, 210 U. S. 373, 386 (1908). The opportunity for informal consultation with designated personnel empowered to correct a mistaken determination constitutes a “due process hearing” in appropriate circumstances. See, e. g., Goss v. Lopez, 419 U. S. 565, 581-584 (1975). See generally Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267 (1975). In Goss v. Lopez, supra, at 568 n. 2, and 583, the Court noted that an informal disciplinary procedure obtaining at the particular high school “was not followed in this case.” The

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

What is the issue of the decision?

James C. MATLOCK, Plaintiff-Appellee, v. Thomas V. BARNES, in his capacity as the Mayor of the City of Gary, et al., Defendants-Appellants. No. 90-1047. United States Court of Appeals, Seventh Circuit. Argued Jan. 22, 1991. Decided May 15, 1991. Joseph S. VanBokkelen, Paul A. Leonard, Jr., Goodman, Ball & VanBokkelen, Highland, Ind., for plaintiff-appellee. Hamilton L. Carmouche, Merrillville, Ind., MacArthur Drake, Gary, Ind., for defendants-appellants. Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges. CUMMINGS, Circuit Judge. James Matlock sued the city of Gary, Indiana, and four of its officials, including Mayor Thomas V. Barnes, alleging that he had been transferred from his job as a legal investigator for the city’s Law Department in retaliation for his support of Barnes’ political enemy, former mayor Richard Hatcher. Invoking 42 U.S.C. § 1983, Matlock sought damages for violations of his First and Fourteenth Amendment rights. After a five-day trial, the jury agreed with Matlock that his transfer was politically motivated and awarded him $5,307.58 in back pay and $20,000 in damages for emotional distress. Defendants appeal rulings made by the magistrate in response to their motion for summary judgment and the magistrate’s refusal to enter a judgment notwithstanding the verdict. Defendants also challenge the jury’s award of damages and attorney’s fees. FACTS . James Matlock began working as a legal investigator for the Law Department of the city of Gary in January 1972. The Department employed no more than eight staff members during Matlock’s tenure. Most of the staff were attorneys; the number of investigators ranged from one to three. The work in the Department consisted mainly of investigating accidents and litigating small property damage claims brought against the city. According to a job description published by the city of Gary, Matlock’s duties included: taking statements from witnesses in a legible manner, taking photographs of sites being investigated and obtaining medical and administrative records when necessary. Mat-lock apparently performed his job well, for his superiors never complained about the quality of his work during his sixteen years in the Department. In May 1987, Richard Hatcher, who had been Gary’s mayor since 1968, was defeated by Thomas Barnes in a hard-fought Democratic primary. Because of the Democratic party’s lock on Gary politics, Barnes prevailed in the general election and took office in January 1988. As part of his new administration, Barnes appointed defendant Gilbert King, Jr., as the head of the Law Department. Defendant Beulah Ware became director of the Personnel Department and defendant Richard Comer was named deputy mayor. Matlock had campaigned for Hatcher in the primary. On April 30, 1988, Matlock attended the annual Jefferson-Jackson Day dinner in Indianapolis, an affair hosted by the Indiana State Central Committee of the Democratic Party. He escorted former mayor Hatcher, who was at that time the vice-chairman of the Jesse Jackson presidential campaign, to his seat. When Mat-lock turned to leave, shortly after taking Hatcher to the front row of the hall, he stopped at a table to speak to a friend. Matlock tripped over the feet of deputy mayor Comer while leaning over to shake his friend’s hand. Mayor Barnes was seated immediately to Comer’s right. On May 23, 1988, Ware, the Director of Personnel, notified Matlock that he was being transferred to the Gary City Jail to become a correctional officer, or “turnkey,” and that his salary would be reduced from $15,192 a year to $11,635. Matlock started as a turnkey in June, though he had no training in the supervision of prisoners. He filed suit in December 1988 against the city of Gary, Barnes, Ware and King, alleging that he had been transferred for exercising his First Amendment rights of free speech and political association. He subsequently amended his complaint to add Comer as a defendant and to sue the officials in their individual as well as official capacities. The defendants maintained below that Matlock was not transferred for political reasons. Comer admitted in his deposition that he had seen Matlock accompanying Hatcher at the Jefferson-Jackson Day dinner and had reported his observation to King and Ware. King acknowledged that he had discussed the possibility of transferring Matlock with the Mayor after the dinner. All defendants stated, however, that Matlock was not transferred for a public display of allegiance to the former mayor and his political faction, but because he had revealed a personal loyalty to Hatcher at a time when the Department was pursuing litigation against him. The defendants believe that Matlock had to be transferred to protect the confidentiality of the Department’s files. Both parties filed for summary judgment when discovery ended. The magistrate, in a thoughtful memorandum and order, declined to enter summary judgment for either party. He noted that genuine issues of material fact existed in .particular about the nature of the legal investigator position. The Supreme Court has held that “policymaking” or “confidential” employees can be fired on political grounds, see Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and the magistrate believed that he could not accurately categorize Matlock’s position as a matter of law. The magistrate did grant partial summary judgment to Matlock, finding that Comer, Ware and King had participated in Matlock’s firing and that their actions were politically motivated. The court did not enter summary judgment on the question of Mayor Barnes’ participation or motivation. After a five-day trial, the jury returned a verdict for Matlock. The defendants, renewing an objection they had made in their motion for summary judgment, argued that they were entitled to qualified immunity in the individual capacity suits because the state of the law on politically motivated transfers was unclear at the time of Mat-lock’s transfer. The plaintiffs offered to dismiss the individual capacity suits and as a result judgment was entered against all defendants in their official capacities and the city of Gary. Compensatory damages awarded by the jury totalled $25,307. The magistrate later awarded front pay in the amount of $7,500, costs of $1,354 and attorney’s fees under 42 U.S.C. § 1988 of $57,-675. Defendants appeal the failure of the magistrate to enter summary judgment in their favor on the issue of whether Mat-lock’s job was policymaking or confidential, the magistrate’s partial grant of summary judgment to Matlock on the issue of the political motivation of Comer, Ware and King, and the magistrate’s refusal to enter a judgment notwithstanding the verdict. Defendants also object to the amount of damages and attorney’s fees awarded. ANALYSIS Whether Matlock’s Job as a Legal Investigator Was a Policymaking or Confidential Position In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, the Supreme Court held that a public employee cannot be fired because of his or her political beliefs unless political loyalty is an acceptable prerequisite for the job. In Rutan v. Republican Party of Illinois, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), decided last Term, the Court held that transfers, promotions, and recalls after layoffs are governed by the same rule. The prohibition on patronage practices is subject to an important exception. It is permissible to fire public employees who are likely to be formulating and implementing the policies of the party in power for lacking the correct political affiliation. The theory is that a newly elected administration has a legitimate interest in implementing the broad policies it was elected to implement without interference from disloyal employees. Elrod, 427 U.S. at 367, 96 S.Ct. at 2686. Elrod thus distinguishes employees who are either “policymaking” or “confidential” from non-policymaking, non-confidential employees; the former can be dismissed for their political beliefs while the latter cannot. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) the Court moved away somewhat from the “policymaking” and “confidential” labels, holding that public employees are protected from patronage dismissals if “party affiliation is an appropriate requirement for the effective performance of the office involved.” 445 U.S. at 518, 100 S.Ct. at 1295. This Court has characterized the Branti test as follows: The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking where there is room for principled disagreement on goals or their implementation. Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), certiorari denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139. We also have noted that though a functional approach is now preferred to a definitional one, the descriptions “ ‘policymaking’ and ‘confidential’ accurately describe the vast majority of offices that fall within the realm of legitimate patronage.” Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir.1985). Since Matlock filed his suit, defendants have staked much of their defense on their argument that the legal investigator position Matlock occupied was policymaking and confidential and therefore that they were entitled to transfer Matlock even if they were motivated by his politics. They contend that Matlock can be called a “policymaker” because he exercised a great deal of discretion in how he carried out his investigations of suits pending in the Department. In addition, they maintain that a legal investigator position is “confidential” because the investigator has unlimited access to confidential files in the Department and that Matlock’s continued presence in the office at a time when litigation was pending against former mayor Hatch-er presented a threat to the integrity of the Department. The magistrate rebuffed defendants’ argument about Matlock’s policy-making, confidential status, first when he declined to enter summary judgment for defendants and later when he refused to enter a judgment notwithstanding the verdict. In evaluating defendants’ motion for summary judgment, Magistrate Rodovich properly focused on “the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office.” Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.1985), certiorari denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289. With respect to defendants’ contention that the legal investigator position was “policymaking,” he found simply that the depositions and affidavits revealed too little to make entry of summary judgment appropriate for either party. “It is impossible to determine accurately the exact nature of the duties of the investigator for the Law Department.” Matlock v. Barnes, et al., No. H 88-673 (N.D.Ind.1989) (order denying defendants’ motion for summary judgment and granting in part plaintiff’s motion for summary judgment). On the issue of confidentiality, the magistrate noted this Court’s disapproval of the notion that a fear of an employee’s possible breach of confidence can as a matter of law qualify the employer for the Elrod exception. In Meeks, a panel of this Court stated: [I]t would cast the net of the Elrod exception too wide to allow political support to be used to extrapolate a tendency to breach a sworn duty, behave unprofessionally, or commit criminal acts. 779 F.2d at 421. The magistrate also believed that a jury might conclude from the facts that after transferring Matlock the defendants had manufactured their concern about confidentiality to justify their actions. Matlock had never breached the Department’s confidentiality in his sixteen years in the office. Also, King in particular had been aware of Matlock’s political allegiance since becoming head of the Department but had done nothing to remove him until the Jefferson-Jackson Day dinner. The magistrate’s decision not to enter summary judgment for the defendants on the issue of the legal investigator’s status was correct. We review the denial of summary judgment de novo and agree with the magistrate’s assessment of the evidence. By its nature, the question of whether a job is policymaking or confidential is often factual. Nekolny, 653 F.2d at 1169. Here both sides apparently had neglected to describe in their affidavits and depositions the duties of the legal investigator. On the issue of confidentiality, a jury was entitled to weigh the credibility of defendants’ proffered justification. Genuine issues of material fact persisted, and the magistrate rightly proceeded to trial. Defendants’ contention that they were entitled after trial to judgment on Matlock’s policymaking, confidential status is likewise without merit. Defendants moved for a directed verdict after close of the plaintiff’s case and renewed their motion by asking for a judgment notwithstanding the verdict after the jury decided in favor of Matlock. The jury found in a special interrogatory that Matlock did not occupy a policymaking or confidential position. We review the denial of a motion for JNOV de novo, asking: whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir.1985). The jury verdict was more than adequately supported by the evidence brought forth at trial, and we decline to reverse on this ground. In political patronage cases, defendants bear the burden of establishing that political affiliation is an appropriate qualification for the job from which plaintiff is ousted. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687; Grossart v. Dinaso, 758 F.2d 1221, 1226 (7th Cir.1985). The public employer must demonstrate the legitimate government interest in discharging the employee which overrides the encroachment on the employee’s First and Fourteenth Amendment rights. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687. Here the defendants tried to qualify for the Elrod and Branti exception by showing that Matlock’s job was policymaking or confidential in nature. At first glance, the duties of the legal investigator seem to have been too limited to qualify Matlock as a policymaker. A job that is merely ministerial is not “policymaking.” See Thulen v. Bausman, 930 F.2d 1209, 1213 (7th Cir.1991) (strictly menial government worker is clearly and completely protected from patronage firing). Matlock’s office handled mainly small property claims against the city and accident investigations. Trial testimony established that Matlock accepted case assignments from the attorneys in the Department who supervised him, investigated claims by visiting accident sites, interviewing witnesses and taking pictures, and prepared written recommendations for the attorneys which they often adopted but were free to ignore. Matlock did not supervise anyone. He also did not have the authority to settle cases on his own. In sum, Mat-lock seems not to have had as much responsibility as other law enforcement personnel deemed by courts to be policymakers. See Livas v. Petka, 711 F.2d 798, 799-801 (7th Cir.1983) (public prosecutor); Thulen, 930 F.2d at 1217 (deputy sheriff); Ness v. Marshall, 660 F.2d 517, 522 (3rd Cir.1981) (city solicitor). However, as this Court recently noted in Hudson v. Burke, 913 F.2d 427 (7th Cir.1990), even “investigators” can be policymakers if they provide “sufficient subjective input into policy decisions so that political affiliation was an appropriate consideration for hiring and firing.” 913 F.2d at 432. Hudson involved clerks to the City of Chicago’s Finance Committee who dealt mainly with “small issues like potholes and street lights.” Id. The analysis in Hudson was not limited to considering the laundry list of plaintiffs’ seemingly mundane duties. The defendants there established that partisan politics entered into many decisions of the Finance Committee, especially because it was “a powerful committee at a time of antagonism and divisive political turmoil.” 913 F.2d at 434. They introduced evidence showing that the office’s investigators performed “politically sensitive fact-finding missions,” id., that they contributed to the formulation of budget proposals and bond ordinances, 913 F.2d at 432, and that political affiliation had historically played a role in hiring in the office, id. In effect, the evidence tended to prove that even decisions about mending potholes could be political when Chicago’s Finance Committee made them. Defendants here utterly failed to introduce comparable evidence about the poli-cymaking nature of the legal investigator’s job in the city of Gary Law Department. Nowhere in the transcripts is there any suggestion that the Department regarded the settlement of the claims it handled as political matters. There was no evidence that the Department made policy or set goals for the city of Gary. The defendants’ witnesses testified that the Department did not hire or fire on the basis of political affiliation generally, suggesting that city officials considered jobs within the Department to be non-policymaking. Mat-lock himself testified that he could not have been hired for his political affiliation because at the time he applied for the job, he had none. Defendants fare little better on their contention that Matlock occupied a “confidential” position. At trial, King testified that two cases were pending against former mayor Hatcher at the time Matlock escorted him to the Jefferson-Jackson Day dinner. After taking office, Mayor Barnes had sued Hatcher for allegedly removing all the Department’s files when his administration departed. Also, several Hatcher appointees to the Gary Municipal Airport Authority District had sued Mayor Barnes and his administration after being terminated. King and the other defendants testified that because all employees of the Department had access to all court files, they lost confidence in Matlock’s ability to safeguard the secrecy of the office upon seeing how close Matlock was to Hatcher. Defendants maintained that these facts proved the legal investigator job to be confidential within the meaning of Elrod. Again, defendants' argument was not necessarily a losing one. Ordinarily "confidentiality," as that term is used in Elrod, connotes a need for political loyalty, not merely a worker's duty to keep the secrets of his or her office. This Court has expressed doubt that "any access to court records when coupled with political animosity creates a serious threat of politically motivated breaches of confidentiality." Meeks, 779 F.2d at 421 (court bailiff is not confidential employee merely because he has access to confidential information). Nonetheless in Meeks itself we recognized that there are situations, especially in small offices where constant face-to-face contact is required, in which "political animosity, while not a noble basis for discharging an employee, can in practice create a hostile work environment." Meeks, 779 F.2d at 423. In these cases, "it would strain credulity to read the First Amendment or Elrod to require an elected official to work in constant direct contact with a person viewed as a political enemy." Id. See also Soderbeek v. Burnett County, 752 F.2d 285 (7th Cir.1985) (jury question exists as to whether political affiliation is proper qualification for job as sheriff's secretary in six-person office), certiorari denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261. In Matlock's case, defendants could have established the confidentiality of Matlock's position by offering convincing proof of their unease about working in small quarters in direct and constant contact with Matlock, a Hatcher-backer. The jury seems simply not to have believed defendants' professed concern about breaches of office confidentiality, however. The evidence supports their conclusion. Matlock cast doubts on defendants' supposedly grave efforts to limit access to information about the proceedings against Hatcher. The case against Hatcher regarding the missing files was not being handled by any attorney in the Department, but by outside counsel. Furthermore, the Department had taken no action to prevent other Hatcher loyalists from obtaining or disseminating confidential information regarding the case. Alton Gill, who had been Hatcher's corporation counsel, had access to the same court files Matlock did. He had entered private practice after resigning from the Department and shared office space with the outside attorney representing the city in the case against Hatcher. The city never had expressed any concern about Gill's ability to compromise the city's case. Finally, some of the evidence indicated that the Department did not even care to pursue its litigation against Hatcher, much less protect information arising from the case. The Department had been so lax in litigating the case that it was facing a motion to dismiss for failure to prosecute. Perhaps the most influential facts were the ones directly related to Matlock and his transfer. Matlock had never before breached the security of the Department. Until he was transferred, no one in the office had ever expressed concern to him about his association with Hatcher and the possible confidentiality problems raised by that association. This was in spite of the fact that Ware and King knew of Matlock's loyalties before Matlock appeared in public as Hatcher's escort. The jury was in the best position to assess the credibility of the defendants' arguments about the need for secrecy in the Department, and its finding that Matlock's position was non-confidential as well as non-policymaking will not be overturned. Nothing in the record demonstrates that the legal investigator position was generally one for which political affiliation is an appropriate requirement. Defendants are not entitled to a judgment notwithstanding the verdict on the basis of Matlock's status. Whether Matlock Was Fired for his Political Affiliation A public employer can escape liability for what seems to be a politically motivated employment decision by showing that it would have reached the same employment decision even in the absence of the protected conduct. Mt. Healthy School Dist. Bd. of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471. In other words, the public employer can advance legitimate, non-political reasons for its decision. Magistrate Rodovich precluded jury investigation into the motives of defendants Comer, Ware and King by awarding partial summary judgment to Matlock on the issue of whether their actions were politically motivated. Defendants argue that this question should have gone to the jury, because their affidavits raised a genuine issue of material fact as to whether Matlock was transferred merely for making a political statement or because his superiors “lost confidence” in Matlock’s ability to perform his job adequately after learning that he was personally close to someone against whom the Department had litigation pending. While we are inclined to agree that the question of motivation, like that of the status of the legal investigator, should have been tried, we are precluded from reviewing defendants’ argument. The suits against Comer, Ware and King have been rendered moot by defendants’ failure to appeal successfully from the jury verdict against Barnes and the city. The only suits remaining in this ease are those against the officials in their official capacities. The city of Gary thus is the only defendant whose assets can be used to satisfy judgments rendered against any of the defendants. “[A] plaintiff seeking to recover on a damages judgment in an official capacity suit must look to the government entity itself,” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 because an official capacity suit “is, in all respects other than name, to be treated as a suit against the entity.” Id. The jury found Mayor Barnes and the city of Gary liable for the politically motivated transfer of Matlock, and the defendants do not successfully challenge these verdicts. This means that the city is in any case liable for the amount of the judgment award. Reversing the partial summary judgment entered against Comer, King and Ware would be pointless, because further proceedings could only investigate a matter already tried: whether the city is liable for Matlock’s transfer. Because any decision on our part cannot change Matlock’s right to recovery or the city's liability, the issue of whether Comer, Ware and King were politically motivated in transferring Mat-lock is moot. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (federal courts cannot decide questions that cannot affect the rights of the litigants in the case before them). The judgments entered against Comer, Ware and King are vacated and the magistrate is instructed to dismiss the suit against these parties. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (proper disposition if ease becomes moot en route to appellate court is to reverse or vacate judgment below and remand with direction to dismiss). Damages Defendants believe that Matlock was not entitled to the full amount of lost wages, $5,307, because he failed to mitigate those damages. They also argue that the jury award of $20,000 for emotional distress was unsupported by the evidence. The jury’s judgment that Matlock was under no duty to mitigate damages is not contrary to the weight of the evidence. Defendants bore the burden of showing that Matlock failed to exercise reasonable diligence to mitigate damages and that Matlock was likely to have found comparable work. Hanna v. American Motors Corp., 724 F.2d 1300 (7th Cir.1984), certiorari denied, 467 U.S. 1241, 104 S.Ct. 3512, 82 L.Ed.2d 821. The obligation to mitigate is largely an inquiry into “reasonableness” which is properly within the province of the jury. Smith v. Rowe, 761 F.2d 360, 367 (7th Cir.1985). Matlock testified that after he was involuntarily transferred, he showed up for work at the Gary jail and continued to work there 40 hours a week at the 4:00 P.M. to midnight shift. He also stated that after his transfer he performed investigatory work on a part-time basis when not working at the jail. From these facts a juror might conclude that Matlock had already done what reasonably was possible to mitigate damages. Defendants, for their part, introduced no evidence demonstrating that more effort on Matlock’s part would have resulted in his finding comparable work at his old salary. The $20,000 damage award for emotional distress likewise withstands the defendants’ attacks. We cannot vacate an award for excessiveness unless it is “monstrously excessive” or there is “no rational connection between the evidence on damages and the verdict.” Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir.1983). Also, it is necessary to consider whether the award is excessive in comparison to other awards in similar cases. Levka v. City of Chicago, 748 F.2d 421, 425 (7th Cir.1984). Defendants contend that the jury award in this case is unsupported because Matlock’s direct commentary about his emotional distress was limited to his testimony that he had preexisting hypertension problems and that his new job was “too stressful” (Tr. at 196-197). They compare this case to Nekolny, in which this court vacated awards of $5,000 and $2,000 to two plaintiffs for mental and emotional distress on the grounds that “a single statement by a party that he was ‘depressed,’ ‘a little despondent,’ or even ‘completely humiliated’ * * * is not enough to establish injury” in the absence of other facts indicating emotional injury. Nekolny, 653 F.2d at 1172-1173. This case is easily distinguished from Nekolny because Matlock introduced many facts from which the jury could gauge the emotional distress and personal indignity he suffered. The jury heard testimony about Matlock’s sixteen-year tenure in the Law Department and the level of competence and independence he had attained within the office. They were then able to compare the legal investigator job with Matlock’s new job in the city jail, where he was responsible for feeding and moving prisoners. The jurors were not obliged, as in Nekolny, to take plaintiffs’ vague utterances about indignity and humiliation as gospel. They could themselves arrive at an estimation of plaintiff’s loss, by comparing the circumstances of Matlock’s life and work before and after his transfer. The $20,000 award is also not excessive in comparison to awards in similar cases. In Webb v. City of Chester, 813 F.2d 824, 836 (7th Cir.1987), this Court found that awards in cases where plaintiff had been fired ranged from a “low of $500 to a high of over $50,000.” In Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir.1989), involving police officers transferred out of their unit to another unit within the Police Department, we noted that though $55,000 was clearly excessive for emotional distress, a remittitur to $15,000 would be reasonable. The jury awards with respect to back pay and emotional distress are upheld. Both are supported by the evidence and the emotional distress award is not excessive in amount. Attorney’s Fees Finally, defendants argue that the district court abused its discretion in awarding $57,675 in attorney’s fees to Matlock’s attorney under 42 U.S.C. § 1988. They believe the amount is “excessive and inordinate” (Def.Br. 43), mainly because it includes the fees attributable to work on claims on which defendants prevailed. Under 42 U.S.C. § 1988, a plaintiff may be awarded reasonable attorney’s fees as a prevailing party if he or she succeeds on “any significant issue in litigation which achieves some of the benefit sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. The defendants here thus cannot complain that they are being charged for the preparation and presentation of some claims which plaintiff ultimately lost, for example the claims against defendants in their individual capacities. Matlock is the prevailing party by the definition set forth in Hensley. The magistrate conducted an in-depth ev-identiary hearing before accepting plaintiff’s fee petition. He reviewed the detailed petition, heard testimony about the reasonableness of the hourly rates of plaintiff’s attorneys, considered case law on the subject of attorney’s fees, and patiently heard defendants’ objections. We cannot say that he abused his discretion. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed with respect to Thomas Barnes and the city of Gary. The judgments against Comer, Ware and King are vacated and the district court is directed to dismiss the suits against these three officials. . The trial was before a magistrate by consent of the parties. . Defendants submitted a "Motion to Dismiss and/or for Summary Judgment.” The magistrate treated the motion as one for summary judgment as will this Court. . Defendants include in their brief an argument that they should have been granted summary judgment on grounds of qualified immunity. Defendants previously filed two interlocutory appeals raising this same issue. We consolidated the two appeals and dismissed them, finding that the dismissal of the individual capacity suits made resolution of the qualified immunity issue moot. Matlock v. Barnes, et al., Nos. 89-3386 and 89-3432 (7th Cir. Jan. 9, 1990) (unpublished order dismissing consolidated interlocutory appeals). We adhere to this ruling. Now defendants make the rather novel argument that the magistrate prejudiced them by allowing them to prevail in their individual capacity suits. Defendants believe that they were entitled to a judgment absolving them of wrongdoing and that plaintiffs voluntary dismissal deprived them of this ability. Defendants might have preferred a victory on the merits rather than a victory due to plaintiffs capitulation. A win is a win, however, and defendants cannot appeal from a judgment that is not adverse. . Defendants halfheartedly argue that the Barnes administration had no widespread policy of transferring city employees who supported Hatcher's faction. While it is true that municipal liability can derive only from a municipality’s policy or custom, see Monell v. Department of Social Services, 436 U.S. 658, 671, 98 S.Ct. 2018, 2026, 56 L.Ed.2d 611 liability can be imposed for a "single decision by municipal policymakers under appropriate circumstances.” Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452. Thus it makes no difference that Barnes generally did not fire or transfer employees for their political affiliations. It is sufficient that he, as a decision-maker possessing final authority to establish Gary’s policy, authorized Matlock’s firing. . Perhaps the most graphic way to illustrate the lack of interest that Comer, Ware and King personally have in the outcome of the official capacity suits is to note that their death or replacement would result merely in the substitution of their successors. Kentucky v. Graham, 473 U.S. at 166 n. 11, 105 S.Ct. at 3105 n. 11.

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?